Reilly v Alberta (2024): Alberta’s Court of Appeal allows Bail Overhold Class Action to Proceed —

Persons detained by police have a constitutional right to be brought before a justice within 24 hours of their arrest, in accordance with section 503(1) of the Criminal Code and section 11(e) of the Charter. In September 2022, Rooke ACJ certified Reilly v Alberta as a class action, for damages for individuals who were detained for more than 24 hours. The Province appealed. On August 19, 2024, the Court of Appeal of Alberta (2024 ABCA 270) upheld the certification decision in a 2-1 split decision. Two of the three judges on the appeal panel agreed with the Certification Judge that the issues in the action are appropriate to be adjudicated on a class-wide basis. Justice Wakeling, who wrote a lengthy dissent, would have set aside the certification order. The Province has indicated that it will seek leave to appeal to the Supreme Court of Canada.

It is important to emphasize that this is a certification decision. The Courts have not addressed the merits of this civil claim yet, and the merits were not in issue before the Court of Appeal. Still, there are a number of aspects of this series of decisions that are interesting.

Firstly, the failure to give detainees timely bail hearings was the subject of a similar proposed class action in Ontario. The motions judge there refused to certify that class proceeding in a decision upheld by the Court of Appeal for Ontario: Cirillo v Ontario, 2021 ONCA 353. The Ontario courts held that the negligence claim as pleaded in that case attacked core policy decisions that were immune from suit, that the class definition was flawed, that there were no common issues, and that a class proceeding was not the preferable procedure.

Notably, the scope of the claim in Cirillo was significantly larger than the narrower systemic delays alleged in Reilly v Alberta, which focuses on the delays arising from the change to Alberta’s Crown Bail system that began in 2016. In Reilly v Alberta, the Court of Appeal agreed with the Certification Judge’s finding that the claims in Cirillo were distinguishable, and declined to follow the Ontario Courts’ decisions.

Secondly, this is not the first time that Mr. Reilly’s facts have been before the Courts. After Mr. Reilly was arrested in April 2017, all charges against him were stayed because he had been subject to a significant bail overhold, which the Provincial Court of Alberta found “reflects a systemic and ongoing problem”: “The state has been aware of the ongoing problem and little if anything has been done to address the issue. Knowing that there is a problem is one thing, addressing it quite another. The state has abrogated its duty to its citizens” (R v Reilly, 2018 ABPC 85 at para 63).

The Court of Appeal set aside the trial judge’s stay of charges, but commented in obiter on the potential Charter breach remedies for bail overholds: “Damages should be the presumptive remedy where the citizen is detained for longer than 24 hours before being taken before a justice, and he or she is subsequently acquitted. This, unfortunately, would require a separate claim for those damages, but since the Crown admits the breach, it presumably would not insist on the citizen actually commencing a small claims action for those damages. It is in the Crown’s interest to facilitate those claims. If this remedy turns out to be ineffective, the Crown may have to tolerate less desirable remedies” (2019 ABCA 212 at para 32). In a two-paragraph decision, the Supreme Court of Canada restored the stay and expressed agreement with the trial judge that Mr. Reilly’s circumstance “was an instance of a systemic and ongoing problem that was not being satisfactorily addressed” (2020 SCC 27 at para 1). In oral arguments, Brown J noted in oral argument that “it seemed obvious” that Alberta’s bail system “had gone off the rails, if it was ever on the rails.”

So, while the certification decision did not address the merits of the class action, Courts at all levels have accepted that Mr. Reilly’s bail overhold was part of a systemic problem. They have also foreshadowed that this systemic breach of rights may be appropriate for individual damages awards. If leave to appeal the certification decision is granted, it will be difficult for the Supreme Court to deny its prior finding of a systemic problem; the question will be whether a class action is the appropriate avenue to redress.