Judge certifies class-action lawsuit over delayed bail hearings and alleged Charter breaches

A class-action lawsuit alleging that the Alberta government breached Charter rights potentially thousands of times by denying people timely bail hearings will go ahead.

In a decision filed in Calgary on Monday, Court King's Bench Associate Chief Justice John Rooke certified a class-action suit for individuals arrested between May 2, 2016, and Sept. 26, 2022, who were caught up in what the plaintiffs allege was a systemic breach of the province's bail system.

At issue is the Criminal Code requirement of a right to a bail hearing within 24 hours of being arrested.

The plaintiffs allege that when the province changed how it runs first-appearance bail hearings in late 2016, many people were held in custody for longer than they should have been.

"The government has overall responsibility for the criminal justice system," one of the lawyers for the plaintiffs Margaret Waddell said in an interview Tuesday.

"If there's a presumption of innocence you shouldn't be incarcerated unless there's good reason to hold you."

Waddell said they have to wait for the province to disclose how many "overholds" – being held beyond 24 hours without a bail hearing –  occurred within the period identified in the lawsuit, but it is expected to be a significant number.

According to provincial data highlighted in Rooke's decision, between March 2018 and June 2020 nearly 17,000 people were subject to overholds, which amounts to about 12 per cent of all arrestees. 

Waddell said qualified class members are those who would have been released had they had a timely bail hearing or those who were ultimately acquitted. 

She added that it's her understanding that overholds decreased significantly in 2020. 

To proceed to a trial, a class action must be certified by a judge who finds certain criteria has been met.

Lawyers for the provincial government opposed the certification on several grounds, including that the justice minister can't micromanage police agencies responsible for arranging bail hearings, and that the lawsuit doesn't address the cause of the delay.

Rooke rejected that argument.

"It is the fact of delay beyond 24 hours, not the individual causes or who caused the delay that is relevant to certification," he wrote.