In Regina v. Reilly, 2019, ABCA 212, the Alberta Court of Appeal rejected the notion that a stay of proceedings under Section 24(1) of the Charter is warranted when the police “over-hold” a detainee, without taking them before a Justice, before twenty-four (24) hours.

Published On: Jun 11,2019


The Court set aside a stay of proceedings imposed due to systemic breaches in Alberta of accused persons’ right to be taken before a justice as soon as practicable (to a maximum of 24 hours).   The Crown conceded that the respondent’s s. 7, 9, and 11(e) Charterrights were breached, but the remedy imposed was not fit.  They accordingly appealed.

The Court justified setting aside the stay of proceedings because a “new bail system” had been implemented in Alberta in 2016-2017 which, among other things, replaced police officers with prosecutors as the Crown’s representative in bail court and provided for hearings by CCTV. The system failed to provide hearings for many arrestees within 24 hours of arrest, including in the instant case.

The Court of Appeal held that the application judge had considered irrelevant factors in granting a stay, and that a stay, as an extraordinary remedy, could not be applied in every individual over-holding case because of the existence of a systemic problem.  The test for a Stay of Proceedings is delineated in Reginav.Babos, 2014 SCC 16, [2014] 1 S.C.R. 309.  It is well established that a stay of proceedings is an exceptional remedy, which is only appropriate in extreme cases. As put in Babos at para. 30:

30     A stay of proceedings is the most drastic remedy a criminal court can order (R. v. Regan2002 SCC 12 (CanLII), [2002] 1 S.C.R. 297, at para. 53). It permanently halts the prosecution of an accused. In doing so, the truth-seeking function of the trial is frustrated and the public is deprived of the opportunity to see justice done on the merits. In many cases, alleged victims of crime are deprived of their day in court.

The Court of Appeal said that in the criminal context, a stay results in impunity for the accused from any criminal conduct. That result may be entirely satisfactory to the accused, but it is not often “appropriate and just” considering the broader public interest in the administration of justice. It is for that reason that a stay is “exceptional” and “rare” and only justified in the “clearest of cases”, where the abuse of process is an “affront to fair play and decency” that is “disproportionate to the societal interest in the effective prosecution of criminal cases”: Babos at para. 44.

According to Babos, there are two categories of case where the exceptional remedy of a stay may be warranted: (i) where trial fairness is compromised, and (ii) a “residual category” where trial fairness is not jeopardized, but state conduct undermines the integrity of the judicial process. Because the two categories often overlap, Babos states at para. 32 that the test is the same for both:

32     The test used to determine whether a stay of proceedings is warranted is the same for both categories and consists of three requirements:

(1)   There must be prejudice to the accused’s right to a fair trial or the integrity of the justice system that “will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome” (Regan, at para. 54);


(3)   Where there is still uncertainty over whether a stay is warranted after steps (1) and (2), the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against “the interest that society has in having a final decision on the merits”(ibid., at para. 57).

The Court further expounded upon the irrelevant factors considered by the Application’s Judge at paragraphs 37-39:

[37]           As just discussed, the trial judge correctly stated the test for a stay, but failed to properly apply it. The trial judge’s findings of fact and selection of a Charter remedy are entitled to deference, but not when they are based on an error of law or principle. In addition to the analytical problems already identified, the decision to grant a stay was influenced by a number of irrelevant factors. Canada has an excellent criminal justice system, but few would argue that it is perfect. In this application for a stay, the Crown was required to answer for the excessive detention of the respondent before he was taken before a justice, but it was not required to answer for each and every perceived deficiency in the criminal justice system.

[38]           The trial judge noted at paras. 65-6 that defence duty counsel was not yet being provided in the bail office at the time of the respondent’s detention, as recommended by the Irving report. This may or may not have been justified or desirable, but no breach of s. 10(b) of the Charter was alleged or found. The sole issue arose from the respondent having been detained for more than 24 hours. There is no evidence on this record that the existence of defence duty counsel would have speeded up the bail process, and indeed, intuitively, one would think that the insertion of another level of review would likely have slowed down the process. That appears to have been the result when defence duty counsel were introduced in October and November, 2018. In any event, the issue of defence duty counsel was not properly in issue, and was not relevant to the granting of a stay.

[39]           The trial judge also considered that the number of “Code Reds” increased under the new bail system. A Code Red is issued by the Edmonton Police Service when the holding cells are full, and no other detainees can be accommodated: trial reasons at paras. 22, 37. That, however, has no bearing on the issues in this appeal. Doubling the size of the lock-up, so there would never be any Code Reds, would not justify holding detained persons for longer than 24 hours. On the other hand, if all detainees were taken before a justice within 24 hours, the fact that there had been a Code Red in place during their detention would be irrelevant

However, the court discussed the problem of systemic over-holding breaches, and the Crown’s “underlying tone of resignation and fatalism” in addressing them (at para. 51). The court held as follows (at para. 59):

  • The responsibility for devising and implementing a specific systemic remedy lies on the Crown.

  • The provisions of 503(1) of the Criminal Code and s. 9 of the Charter are clear. Inadequate funding is not an excuse.

  • The immediate obligation on the Crown is for all detained persons to be taken before a justice within 24 hours, on time, every time, for every detained person.

  • Since two years have passed after full implementation of the [new] system, the Crown is rapidly exhausting the argument that time is needed to transition to the new system. The number of 24 hour violations should be reduced to close to zero in the immediately foreseeable future.

If you have been detained or know of someone who is seeking to retain a lawyer for an emergency bail hearing,  call Mr. J.S. Patel, Barrister at 403-585-1960.