Hearing Office Bail Hearings (Re), 2017 ABQB 74

Court of Queen’s Bench of Alberta Citation: Hearing Office Bail Hearings (Re), 2017 ABQB 74 Date: 20170203 Docket: 1601 05637 Registry: Calgary In the Matter of Hearing Office Bail Hearings Pursuant to Sections 2 and 515 of the Criminal Code , RSC 1985, c C-46 Between: Attorney General of Alberta Applicant - and - Edmonton Police Service Legal Aid of Alberta Criminal Trial Lawyers Association Calgary Criminal Defence Lawyers Association Respondents - and - Calgary Police Service Intervener _______________________________________________________

Reasons for Judgment of the Honourable Chief Justice Neil Wittmann _______________________________________________________ [ 1 ] There is a longstanding practice in Alberta for police officers to act as prosecutors at bail hearings before justices of the peace. The Applicant, the Attorney General of Alberta, has applied to this Court for a declaration that police officers have the legal authority to do so under the Criminal Code , so that this practice may continue. For the reasons that follow, I have found that the requisite authority does not exist.

As a result, the declaration will be opposite to the one the Attorney General is seeking and the practice must cease. Background [ 2 ] At approximately 3:00 am on January 17, 2015, two RCMP officers attended the Apex casino near St. Albert to investigate the theft of a vehicle. Inside the casino, the officers encountered Shawn Rhen who shot both officers. Constable David Wynn was killed and Auxiliary Constable Derek Bond was seriously injured. Rhen fled the casino and was later found dead at a near-by residence, where he had taken his own life.

Rhen had a lengthy criminal history, including violent offences and weapons offences, and was facing 29 outstanding criminal charges at the time. He had recently obtained bail on some of the charges and was released into the community with the consent of the police officer conducting the bail hearing. [ 3 ] This tragic event led the Alberta government to review the bail system in Alberta, and in particular, first appearance bail hearings. [ 4 ] “Bail” typically refers to the situation where a person charged with a crime is released into the community until their charge is dealt with by the courts.

The legal term for bail is ‘judicial interim release.’ The Criminal Code governs the procedure for releasing an individual charged with a crime pending the hearing of their case. In some cases, the person is released by a police officer immediately with conditions, for example, on a Promise to Appear. If the person is held in custody, he or she must be taken before a justice of the peace or a judge to address bail within 24 hours of arrest.

With some exceptions, once the person is before the justice of the peace or judge, the Criminal Code requires the person be released without conditions, unless the prosecutor shows cause why the person should be released with conditions or detained in custody. [ 5 ] Currently in Alberta, the majority of first appearance bail hearings are conducted by a justice of the peace with a police officer representing the Crown. These hearings operate around the clock at two centralized Hearing Offices that have telephone or video links with police agencies throughout the province.

In this respect, Alberta’s first appearance bail hearings system differs from systems in place elsewhere in Canada. In most provinces, bail hearings are normally held during regular business hours in a courtroom with a Provincial Court judge or justice of the peace presiding and a prosecutor representing the Crown. [ 6 ] After the Rhen shooting, concerns over Alberta’s system led the Alberta government to commission an independent review of bail hearings, including an analysis of who should conduct bail hearings in the province: Crown prosecutors or police officers.

The resulting report, authored by retired senior federal prosecutor Nancy Irving, was entitled “Alberta Bail Review: Endorsing a Call for Change” (“the Irving Report”). It was authored on February 29, 2016, and released to the public on April 29, 2016. [ 7 ] The Irving Report, put in evidence in this application, made a total of 31 recommendations. The first recommendation was that “Crown prosecutors replace police presenters at Hearing Office bail hearings.” This recommendation was based in part on Ms.

Irving’s review of two legal opinions on whether police officers are permitted to conduct bail hearings pursuant to s 515 of the Criminal Code . The opinions both concluded police officers do not have the legal authority to conduct bail hearings.

The fourth recommendation was that if the practice of having police presenters representing the Crown was to continue at bail hearings, the Minister of Justice should (1) satisfy herself that the police have the requisite authority under the Criminal Code , and/or (2) seek an appropriate amendment to the Criminal Code . [ 8 ] According to the Irving Report, approximately 60,000 arrests in Alberta in 2015 resulted in Hearing Office bail hearings before a justice of the peace, conducted by police presenters. [ 9 ] On April 28, 2016, the day before the public release of the Irving Report, the Attorney General issued Ministerial Orders designating specified police officers her lawful deputies under s 2 of the Criminal Code for applications under ss 515-518 of the Criminal Code before justices of the peace.

Ministerial Orders were issued for each of the eleven police agencies in Alberta. [ 10 ] On April 29, 2016, the date the Irving Report was made public, the Attorney General filed the Originating Application in this case. The Attorney General’s application seeks a declaration that designated police officers have the requisite authority under the Criminal Code to present as prosecutors at first appearance bail hearings before justices of the peace.

The Attorney General’s position is that this authority is conferred either through the Ministerial Orders or by virtue of the fact that the police officers have instituted the proceedings in question at a bail hearing. [ 11 ] The Attorney General’s application raises the following issues: 1. Are the requirements for a declaratory order satisfied in this case?

2. Do the Ministerial Orders designating specified police officers as “lawful deputies” for the purposes of first appearance bailhearings before justices of the peace satisfy the requirements of ss 2 and 515 of the Criminal Code? 3. In the alternative, do police officers have the authority to conduct first appearance bail hearings before justices of the peace as aresult of initiating proceedings as described in s 2 of the Criminal Code? 4.

In the event that the Court determines that police officers cannot conduct bail hearings in either of the ways described above, willthe Court suspend that declaration for six months as requested by the Attorney General? [12] The Attorney General named five Respondents in its application: the Edmonton Police Service; the Legal Aid Society ofAlberta; the Criminal Trial Lawyers Association; the Calgary Criminal Defence Lawyers Association; and the Royal Canadian MountedPolice. The first four Respondents made written and oral submissions. The RCMP withdrew and requested removal from theproceedings.

In addition, the Calgary Police Service made submissions as an intervener. Declaratory Relief [13] The Applicant seeks a declaration from this Court determining whether police officers have the legal authority to act asprosecutors at first appearance bail hearings. Declaratory judgments or orders confirm or deny a legal right. However, unlike otherjudgments, declarations do not grant relief beyond their pronouncement of the parties’ rights unless a party has asked for otherconsequential relief.

In this case, the Applicant asks for the answer to a pure legal question with no request for ancillary relief. [14] The Court’s jurisdiction to issue a declaration rests in its inherent powers and is confirmed in statute through the JudicatureAct, RSA 2000, c J-2, at s 11: No proceeding is open to objection on the ground that a judgment or order sought is declaratory only, and the Court may make bindingdeclarations of right whether or not any consequential relief is or could be claimed. [15] Declaratory judgments are discretionary and require consideration of several factors.

The Supreme Court of Canada recentlysummarized the test to determine whether declaratory relief is appropriate or not, noting the applicant “must establish that the court hasjurisdiction to hear the issue, that the question is real and not theoretical, and that the party raising the issue has a genuine interest in itsresolution.” Additionally, a declaration can only be granted “if it will have practical utility, that is, if it will settle a ‘live controversy’between the parties”: Daniels v Canada (Indian Affairs and Northern Development), 2016 SCC 12, [2016] 1 SCR 99, at para 11. [16] The Applicant submits that the test is met in this case.

The Respondents agreed with those submissions, as do I. [17] First, as a superior court, this Court has the inherent jurisdiction to issue a declaration. [18] The next factor is whether the applicant seeks the answer to a legal question, as opposed to seeking the court’s opinion on asocial or political issue: Brown v Alberta, 1999 ABCA 256, 177 DLR (4th) 349, at paras 16-25. In this case, the Applicant seeksguidance on the proper

interpretation of the Criminal Code and the legality of Ministerial Orders. Both of these questions raise legalissues suitable for the Court’s determination. [19] The final consideration is whether there a genuine legal issue that needs resolution. A declaration will not issue if the issue ishypothetical, academic, or contingent on future events. The declaration must be capable of having a practical effect in resolving theissues in the case: Solosky v The Queen, (SCC), [1980] 1 SCR 821, 105 DLR (3d) 745.

The Applicant acknowledgedthat there is an advisory element to this case as the declaration will assist the Attorney General in determining whether the practice ofhaving police officers present at first appearance bail hearings can continue. However, this does not mean the issue is hypothetical.Police officers have acted in this capacity for some time in Alberta and continue to do so. If the declaration in this case determines thepractice is legally invalid, the practice must end. There are practical implications to the declaration which take it out of a purely advisoryor academic question.

Therefore this factor is also satisfied. [20] The Applicant also addressed why the Attorney General has sought a declaration in this case instead of using a differentprocess such as judicial review of a first appearance bail decision. This procedure allows the question to be addressed in a singleproceeding rather than through multiple litigants attempting to raise the issue through judicial review.

Additionally, the Applicantsubmits prerogative remedies that issue from judicial review are limited and may not be available to address a procedural question suchas the status of a police officer at a hearing: Edmunds v The Queen, (SCC), [1981] 1 SCR 233, 58 CCC (2d) 485,1981CarswellNfld 5, [Edmunds], at paras 28-29 (WL); R v Fedoruk (1986), (SK KB), 46 Sask R 140, 1986CarswellSask 411 at paras 3-8 (Sask QB); and R v Russell, 2001 SCC 53, [2001] 2 SCR 804 at para 19.

Finally, proceeding in thismanner allowed the Applicant to invite other potentially interested or affected parties to make submissions to the Court. [21] I am satisfied that this Court has jurisdiction to hear this issue, that the issue is not academic and the Attorney General has agenuine interest in resolving it, and that the declaration will have practical utility. Police Designated as “Lawful Deputies” [22] The Applicant’s main argument is that the Ministerial Orders are a permissible delegation of the Attorney General’s powersand that they conform to the requirements of the Criminal Code.

Her argument is supported by the Criminal Trial Lawyers Association,the Calgary Criminal Defence Lawyers Association, and the Calgary Police Service, and is opposed by the Edmonton Police Service andthe Legal Aid Society of Alberta. The latter two respondents (“the Opposing Respondents”), argue the delegation to police officers iscontrary to the Parliamentary intent of the Criminal Code and is an illegal and inappropriate delegation of power.

[ 23 ] In order to assess these arguments, it is necessary to review the relevant

definitions in the Criminal Code , and the scheme set out in

Part XVI (16) of the Code , entitled “Compelling Appearance of an Accused Before a Justice and Interim Release.” [ 24 ] “Prosecutor” is defined in s 2 of the Code as: “prosecutor” means the Attorney General or, where the Attorney General does not intervene, means the person who institutes proceedings to which this Act applies, and includes counsel acting on behalf of either of them; [ 25 ] Attorney General and counsel are also defined terms under s 2: “Attorney General” (

a) subject to paragraphs (b.1) to (g), with respect to proceedings to which this Act applies, means the Attorney General or Solicitor General of the province in which those proceedings are taken and includes his or her lawful deputy, ... ... “counsel” means a barrister or solicitor, in respect of the matters or things that barristers and solicitors, respectively, are authorized by the law of a province to do or perform in relation to legal proceedings; ... [ 26 ] Finally, a peace officer is defined under s 2 to include police officers: “peace officer” includes ... (

c) a police officer, police constable, bailiff, constable, or other person employed for the preservation and maintenance of the public peace or for the service or execution of civil process, ... [ 27 ]

Part XVI [16] of the Code has various provisions which relate to bail. As was explained in the Irving Report, there are two types of bail, bail by police and bail by judicial officer. Sections 493 to 502 of the Code provide police officers with powers of arrest and the authority to release an accused person on their own.

The Irving Report states that for most offences, police will release an accused on the condition that the accused promises to appear in court on a specific date, unless the police believe keeping the person in custody is necessary in the public interest or because they believe the accused will fail to appear in court. [ 28 ] If the police choose not to release the accused person, they are required under s 503(1) of the Code to take the person before a justice within twenty-four hours of the arrest to determine if he or she should be released on bail - this is bail by a judicial officer.

A “justice” is defined in s 2 of the Code as a justice of the peace or a provincial court judge. It is this appearance before a judicial officer that is referred to as the first appearance bail hearing or Hearing Office bail hearing, and is governed by s

Section 515 requires a “prosecutor” to show cause why an accused should remain in custody or why he or she should have conditions attached to their release. Bail hearings for the majority of offences can occur before a justice of the peace or provincial court judge; however, for more serious offences the prosecutor must attend before a judge and the burden shifts to the accused to show why he or she should not be detained (s 515(11) and s 522). “Judge” is defined in the definition

section of

Part 16, and in Alberta means a judge of the superior court of criminal jurisdiction for the province [the Court of Queen’s Bench of Alberta] (s 493). Judicial Interim Release Order of release 515

(1) Subject to this section, where an accused who is charged with an offence other than an offence listed in

section 469 is taken before a justice, the justice shall, unless a plea of guilty by the accused is accepted, order, in respect of that offence, that the accused be released on his giving an undertaking without conditions, unless the prosecutor, having been given a reasonable opportunity to do so, shows cause, in respect of that offence, why the detention of the accused in custody is justified or why an order under any other provision of this

section should be made and where the justice makes an order under any other provision of this section, the order shall refer only to the particular offence for which the accused was taken before the justice. … Interim release by judge only 522

(1) Where an accused is charged with an offence listed in

section 469, no court, judge or justice, other than a judge of or a judge presiding in a superior court of criminal jurisdiction for the province in which the accused is so charged, may release the accused before or after the accused has been ordered to stand trial.

(2) Where an accused is charged with an offence listed in

section 469, a judge of or a judge presiding in a superior court of criminal jurisdiction for the province in which the accused is charged shall order that the accused be detained in custody unless the accused, having been given a reasonable opportunity to do so, shows cause why his detention in custody is not justified within the meaning of subsection 515(10). ... [ 29 ] The Ministerial Orders in this case only permit police officers to conduct s 515 bail hearings that occur before a justice of the peace. [ 30 ] The parties agree that the analysis in this case is twofold: one, is the delegation to police officers permissible under the

Criminal Code; and two, is the delegation appropriate? Submissions of the Applicant Attorney General [31] The Applicant submits that it is legally permissible under the Criminal Code for the Attorney General to deputize policeofficers to act as prosecutors for bail hearings before justices of the peace. The Applicant further argues that designating police officersas legal deputies is an appropriate delegation of the Attorney General’s authority.

Permissible Delegation under the Criminal Code [32] The Applicant relies on the well-settled principle that due to the myriad functions he or she is tasked with, an AttorneyGeneral is required to delegate some of his or her duties. The Supreme Court recognized this in R v Harrison, (SCC),[1977] 1 SCR 238, [1976] 3 WWR 536, 1976 CarswellBC 155 noting that it would be impossible for an Attorney General to perform allof his or her functions personally. There is, therefore, an implied presumption that delegation will occur.

The Attorney General is alsopresumed to delegate to deputies and selected officials with appropriate training and experience. This presumption is known as theCarltona doctrine, and was explained in Harrison at para 14 (WL): ... Thus, where the exercise of a discretionary power is entrusted to a Minister of the Crown it may be presumed that the acts will beperformed, not by the Minister in person, but by responsible officials in his department: Carltona, Ltd. v. Commissioners of Works[1943] 2 All E.R. 560 (C.A.).

The tasks of a Minister of the Crown in modern times are so many and varied that it is unreasonable toexpect them to be performed personally. It is to be supposed that the Minister will select deputies and departmental officials ofexperience and competence, and that such appointees, for whose conduct the Minister is accountable to the Legislature, will act on behalfof the Minister, within the bounds of their respective grants of authority, in the discharge of ministerial responsibilities.

Any otherapproach would but lead to administrative chaos and inefficiency. [33] The Criminal Code definition of Attorney General expressly recognizes this fact by including the Attorney General’s “lawfuldeputy” in its definition. [34] In this case, the Ministerial Orders purport to delegate the lawful deputy role to specified police officers. The Orders read asfollows: I, KATHLEEN T. GANLEY, Minister of Justice and Solicitor General for the Province of Alberta, pursuant to

section 2 of the CriminalCode of Canada, do hereby designate the persons from the [specified] Police Service named in the attached appendix as my lawfuldeputies as described in s. 2 of the Criminal Code of Canada for the purposes of all

summary conviction and indictable proceedings,exclusively for applications under sections 515, 516, 517 and 518 of the Criminal Code of Canada, presided upon by a Justice of thePeace. [35] The Applicant argues the Orders are permissible under the Criminal Code. The steps involved in her statutory

interpretationargument are as follows: 1) the definition of “prosecutor” includes the Attorney General; 2) the definition of Attorney General includesthe Attorney General’s lawful deputy; 3) the Ministerial Orders designate specified police officers as lawful deputies; and 4) thespecified police officers therefore qualify as prosecutors under s 515. [36] Aside from this basic analysis, the Applicant submits that the delegation of the “lawful deputy” role is also permissible whenone considers the history of the definition of Attorney General in the Criminal Code and the expansive

interpretation of the term in thecase law. [37] A historical overview of the definition of “Attorney General” reveals that the phrase “lawful deputy” was not added to thedefinition until the Parliamentary session of 1968-69, through the Criminal Law Amendment Act, SC 1968-69, c 38. Prior to that time,Attorney General meant only the Attorney General or Solicitor General of the province in which proceedings were taken: R v Luis(1989) (ON SC), 50 CCC (3d) 398, 1989 CarswellOnt 844, (Ont SC), at para 6. [38] At the time the phrase “lawful deputy” was added to the definition, the Criminal Code

definitions of “prosecutor” and“counsel” were already in existence. This suggests that the term “lawful deputy” was meant to have a distinctive meaning that isadditional to those terms: Quebec (Attorney General) v Carrières Ste-Thérèse Ltée, (SCC), [1985] 1 SCR 831, 20 DLR(4th) 602, 1985 CarswellQue 85, at para 27 (WL). As such, the Applicant submits it is appropriate to delegate a lawful deputy role tosomeone other than a prosecutor or counsel, such as a police officer. [39] Further support for this position comes from case law which has interpreted “lawful deputy” in a broad manner.

TheApplicant provided a number of cases that have given expansive meaning to the term “lawful deputy” with specific reference to theCriminal Code definition.

Although a lawful deputy may have initially been intended to mean a Deputy Attorney General, over time itbecame clear that the term is not so restricted: Harrison, at para 15: I do not find anything in the Criminal Code which derogates from the thought that the duties imposed upon the Attorneys General are tobe exercised under their authority by responsible officials of their respective departments. “Attorney General”, according to anamendment to s. 2 of the Code made in 1968-69, c. 38, s.2, includes “the lawful deputy” of the said Attorney General....

I do not read"lawful deputy" as confined to “Deputy Attorney General”. The words comprehend all persons appointed to act on behalf of the AttorneyGeneral when acting within the scope of their authority. [40] An example of the expansive

interpretation of the term comes from Luis. The accused sought to have a trial by judge alone,rather than by a judge and jury, on a murder charge. The Criminal Code required the “Attorney General” to consent in order to proceedin this way. The Crown prosecutor wished to act as agent for the Attorney General by giving consent, but was unsure if this was proper.

The Court therefore turned its mind to the definition of Attorney General and its inclusion of the Attorney General’s “lawful deputy.” [41] The Court confirmed that a “lawful deputy” does not simply refer to the Deputy Attorney General.

It noted that a lawfuldeputy is a person who has been authorized to perform conduct on behalf of a principal, at para 6: ... “Lawful deputy” relates to the concept of being deputized, i.e. authorized, to perform various conduct on behalf of the principal. ... [42] Referring to the acknowledgement in Harrison that the Attorney General cannot discharge all of his or her duties personally,but must act through agents, the Court found that any reference to Attorney General in the Criminal Code includes all agents of theAttorney General when conducting criminal prosecutions, which would include Crown prosecutors, at paras 8-9: ...

The Supreme Court of Canada has also recognized that an Attorney General cannot possibly be expected to personally discharge allthe demands of office, but, practically, must act through agents unless statutorily prohibited from doing so: Harrison v. The Queen, (SCC), [1975] 2 S.C.R. 95, 18 C.C.C. (2d) 129.

With respect to the present definition of Attorney General, I conclude that any reference in the Criminal Code to Attorney General can betaken to include the Attorney General, the Solicitor General, the Deputy Attorney General and all the agents of the Attorney General orSolicitor General when conducting criminal prosecutions. ... [43] The Applicant points out that similar findings have been made in lower court decisions, such as in R v Torres (2007) 73 WCB(2d) 439, 2007 CarswellOnt 2141 (ONSC). It is therefore accepted in the case law that the

interpretation of “lawful deputy” is expansive,and, in the Applicant’s submission, it could also extend to a police officer. [44] Considering these various factors, including the necessity of delegation and express permission to do so under the CriminalCode, along with the expansive

interpretation of lawful deputy, the Applicant submits there is support for its position that delegation topolice officers is permissible under the Criminal Code. Ministerial Orders as Appropriate Delegation [45] The Applicant submits the delegation has been to an appropriate person or authority, and has been suitably restricted. [46] The Applicant refers to the wording in the Orders and notes they are restricted in several important respects. Each Ordernames specific police officers and is not a blanket provision allowing all police officers to act in this role.

In addition, the AttorneyGeneral has taken care to only delegate a few necessary duties to police officers. The police officers who are designated as lawfuldeputies may only act under a few of the provisions relating to bail hearings in the Code: (

i) s 515 permitting them to present as prosecutors at bail hearings; (ii) s 516 permitting them to apply to adjourn a bail hearing; (iii) s 517 permitting them to apply for a publication ban of the bail hearing; and (iv) s 518 permitting them to call evidence regarding the circumstances of the accused or the offence at the bail hearing. [47] Not all bail related powers are delegated to police officers in the Orders. For example, police officers are not given the abilityto conduct reviews of interim release orders or applications to revoke bail (ss 520, 521, 524).

A further restriction is that the policeofficers designated as lawful deputies may only present before justices of the peace. This is a relevant distinction because other bailhearings are excluded, such as those before provincial court judges, and for the most serious offences, those before judges of a superiorcourt. [48] These various restrictions, it is submitted, appropriately restrict the scope of authority that has been delegated to policeofficers. [49] The Applicant further submits that the nature of the delegated function must be considered to determine if the delegation isappropriate.

Here, the Ministerial Orders allow police officers to present information to a justice of the peace on whether an accusedshould be detained or released, and if so, on what conditions. This function is very close to the functions explicitly delegated to policeofficers under ss 495 to 499 of the Criminal Code, where police officers are tasked with making decisions on whether an accused shouldbe released with or without conditions at several stages of the arrest process.

For example, under ss 495 to 497, an officer may arrest aperson without a warrant and is then tasked with deciding whether to release the person on an appearance notice or whether there arereasonable grounds to detain the person in custody according to the criteria set out in s 497. Those criteria include considering the publicinterest and whether detention is necessary; to establish the identity of the person; to preserve evidence; to prevent the continuation ofthe offence or another offence; or to ensure the safety of a victim or witness. Release from custody by peace officer 497

(1) Subject to subsection (1.1), if a peace officer arrests a person without warrant for an offence described in paragraph 496(a), (b)or (c), the peace officer shall, as soon as practicable, (

a) release the person from custody with the intention of compelling their appearance by way of summons; or (

b) issue an appearance notice to the person and then release them. Exception

(1.1) A peace officer shall not release a person under subsection (1) if the peace officer believes, on reasonable grounds, (

a) that it is necessary in the public interest that the person be detained in custody or that the matter of their release from custody be dealtwith under another provision of this Part, having regard to all the circumstances including the need to (

i) establish the identity of the person, (ii) secure or preserve evidence of or relating to the offence, (iii) prevent the continuation or repetition of the offence or the commission of another offence, or (iv) ensure the safety and security of any victim of or witness to the offence; or (

b) that if the person is released from custody, the person will fail to attend court in order to be dealt with according to law. ... [50] The considerations in s 497 (1.1) are similar to the factors considered under s 515 (10) at a bail hearing, such as whether thedetention is necessary to ensure the accused will attend in court, or to protect the safety of the public including a witness or victim, or toprevent the accused from committing another offence, or to maintain confidence in the administration of justice. 515 ... Justification for detention in custody

(10) For the purposes of this section, the detention of an accused in custody is justified only on one or more of the following grounds: (

a) where the detention is necessary to ensure his or her attendance in court in order to be dealt with according to law; (

b) where the detention is necessary for the protection or safety of the public, including any victim of or witness to the offence, or anyperson under the age of 18 years, having regard to all the circumstances including any substantial likelihood that the accused will, ifreleased from custody, commit a criminal offence or interfere with the administration of justice; and (

c) if the detention is necessary to maintain confidence in the administration of justice, having regard to all the circumstances, including (

i) the apparent strength of the prosecution’s case, (ii) the gravity of the offence, (iii) the circumstances surrounding the commission of the offence, including whether a firearm was used, and (iv) the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment or, in the case of an offence thatinvolves, or whose subject-matter is, a firearm, a minimum punishment of imprisonment for a term of three years or more. [51] The Applicant submits there are common themes considered under these two sections.

The factors that a police officer isexpressly tasked with considering as a decision maker under s 497 are similar to the factors the officer is tasked with presenting to ajustice of the peace through the Ministerial Orders.

Thus the powers given to police through the Ministerial Orders are analogous topowers they already possess. [52] The Applicant concedes presenting at a bail hearing is a significant responsibility; however, she notes that the ultimatedecision to detain or release is made by an independent judicial officer. [53] Finally, in terms of the present application, the Applicant reminds the Court that because there was an express delegation inthis case, the Minister is assumed to have selected officials of experience and competence.

As such, the review of the delegation is owedsome deference and is done on the reasonableness standard: United States v Helfrich, 2004 BCSC 297, 183 CCC (3d) 565, at paras 32,35. Submissions of Edmonton Police Service and Legal Aid Alberta [54] The Opposing Respondents, the Edmonton Police Service and Legal Aid Alberta question the legality of deputizing policeofficers to act as prosecutors. They argue that the delegation is not permissible under the Criminal Code, nor is it an appropriatedelegation of the Attorney General’s authority. 1.

The Delegation is Not Consonant with the Scheme of the Criminal Code [55] The Opposing Respondents submit that when one considers the broader context of the Criminal Code as a whole, it is notpermissible for police officers to conduct bail hearings for indictable offences. They point to the modern principles of statutoryinterpretation, which require the words of

an Act to be read “in their entire context and in their grammatical and ordinary senseharmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament:” Wilson v Atomic Energy of CanadaLtd, 2016 SCC 29, 399 DLR (4th) 193, at 102 (dissent) (“Atomic Energy”). Words in statutes should be given “their most obviousordinary meaning” according to the particular statutory context, and read in a way “that avoids absurdity and assigns a meaning to all of the words Parliament has used:” Atomic Energy, at para 102, R v G (B), (SCC), [1999] 2 SCR 475, 174 DLR (4th) 301,

at para 69 . [ 56 ] Applying these principles, the Opposing Respondents argue that when the scheme of the Criminal Code is reviewed, it is clear that Parliament’s intention was to have legally trained prosecutors at bail hearings for indictable offences. Further, a review of the Code shows that Parliament purposefully assigned different functions to police officers and prosecutors relating to bail.

Therefore, the Ministerial Orders deputizing police officers to act as prosecutors at s 515 bail hearings are contrary to Parliamentary intent. [ 57 ] On the first point, the Opposing Respondents note the Criminal Code establishes two streams for criminal proceedings, and each stream defines prosecutor differently. The first stream is for offences classified as indictable offences, and the second stream is for offences classified as

summary conviction offences. There are also hybrid offences, which can proceed either way, but they are deemed indictable by the

Interpretation Act , RSC 1985, c I-21, s 34, until the Crown elects which way to proceed. According to the Irving Report, the majority of offences in the Criminal Code , and their respective bail hearings before justices of the peace, involve indictable offences or hybrid offences. [ 58 ] The definition that applies for prosecutors of indictable offences is in s 2 of the Code and states: “prosecutor” means the Attorney General or, where the Attorney General does not intervene, means the person who institutes proceedings to which this Act applies, and includes counsel acting on behalf of either of them; [ 59 ]

Part XXVII (27) of the Code deals with the less serious

summary conviction offences, and sets out the applicable procedures for them: Edmunds at para 25 . The

Part 27 definition of prosecutor is at s 785 and states: “prosecutor” means the Attorney General or where the Attorney General does not intervene, the informant, and includes counsel or an agent acting on behalf of either of them; [ 60 ] The Opposing Respondents point to these two

definitions as evidencing Parliament’s intent for indictable offences to be prosecuted by a person who is legally trained. This is apparent because of a critical difference between the two

definitions. The s 785 definition allows “counsel” or an “agent” of the Attorney General to act as prosecutor. The s 2 definition allows only “counsel” of the Attorney General to act as prosecutor. Counsel is defined as a barrister or solicitor and is therefore is a role restricted to lawyers. “Agent” is not defined or similarly restricted, permitting non-lawyers to prosecute

summary conviction matters. [ 61 ] The Opposing Respondents submit Parliament’s intention in defining “prosecutor” separately for

Part 27 was to allow non- lawyer agents to appear as prosecutors only on

summary conviction matters. They point to case law in support of their position which has found that non-lawyers are not permitted to prosecute indictable matters. [ 62 ] In R v NC , [1997] OJ No 3058 (Ont Ct J (Prov Div)) a student-at law appeared on behalf of the Crown to prosecute a hybrid “theft-under” charge before a youth court judge. The Court found that at the time the student-at-law appeared, the Crown had not elected whether to proceed summarily or on indictment. Pursuant to the

Interpretation Act , the offence was deemed indictable. Accordingly, the provisions in

Part 27 of the Criminal Code were not applicable and the s 2 definition of prosecutor applied. The student-at-law was not yet qualified as a lawyer, so could not meet the s 2 requirement of being the Attorney General or their counsel, at para 9: In the proceedings before me, at the time the student-at-law purported to represent the Crown, the election had not been made. Accordingly, the provisions of

Part XXVII were not applicable, and the general definition of “prosecutor” in

section 2 of the Code applied. The student-at-law, not being a barrister and solicitor, could not act as “counsel” for the Attorney General. Since the proceedings are indictable prior to the Crown election, a student-at-law can not make the election on behalf of the Crown. Thus, at the time I made my ruling, the student-at-law was not entitled to act as prosecutor. ... [ 63 ] Another example is Edmunds , where the Supreme Court considered whether a RCMP officer could prosecute an indictable offence before a judge in a

summary conviction court. The accused challenged his conviction on the basis the officer did not have the proper authority to conduct the prosecution. The Court referred to the s 2 definition of prosecutor and the s 785 definition of prosecutor (s 720 at that time) and agreed that the officer conducting the proceedings “did not come within the definition of s 2 of the Code ,” at para 20. The dissent agreed on this point, holding that the prosecution of an indictable offence “is required to be presented by the Attorney General or his ‘counsel’”, at para 11. It further found that in the case of

summary conviction prosecutions, the use of the word “agents” must “contemplate persons other than qualified lawyers” acting as prosecutors, including police officers, at para 12. [ 64 ] The Opposing Respondents submit these cases show that Parliament intended for non-legally trained persons, such as police officers, to act as prosecutors only in less serious

summary conviction matters. In the same way that police officers are not permitted to run trials for indictable offences in the cases, they should not be permitted to run s 515 bail hearings for indictable or deemed indictable offences. The use of the word “prosecutor” in s 515 clearly indicates a bail hearing is a prosecutorial act. A reading of ss 2, 515, and 785 in the context of the Criminal Code as a whole suggests that it is not permissible for police to conduct s 515 bail hearings for indictable or deemed indictable offences. [ 65 ] The Opposing Respondents bolster their statutory

interpretation argument by pointing to the scheme under

Part XVI (16) of the Code , which relates to compelling an accused person to appear before the court to face charges. They submit that

Part 16 demonstrates that Parliament intended for ordinary people, peace officers (including police officers), officers in charge, and prosecutors, to play different roles in relation to the arrest, release and detention of suspected criminals. They argue the Ministerial Orders flaunt this intent by placing police officers in the position of prosecutors. [ 66 ] For example, under s 494, an ordinary person is given the ability to perform a citizen’s arrest. Once this is done, the citizen is required to deliver the person to a peace officer. An ordinary citizen therefore has no powers to detain an accused person.

Under ss 495- 497, a peace officer (including a police officer) may arrest a person and, for less serious charges, is given the responsibility to determine whether a suspect should be detained or released. In circumstances where the suspect faces more serious charges however, the decision about detention or release needs to be made in front of a justice of the peace with the assistance of a prosecutor. The Opposing Respondents submit that Parliament was purposeful in delegating these roles differently depending on the seriousness of the offence.

[67] Further, the terms “peace officer” (which includes police officers), “officer in charge” and “prosecutor” are all definedseparately and distinctly in the Code. The Opposing Respondents submit that through the Ministerial Orders, the Attorney General haserased these differences by assigning a “peace officer” the role of “prosecutor” in relation to bail hearings for indictable offences. [68] Finally, the Opposing Respondents submit that their

interpretation is based on a plain and simple reading of the

definitionsand scheme set out in the Criminal Code, which is the approach required under the law. 2.

Delegation to Police Officers is Inappropriate [69] The Opposing Respondents agree that the Attorney General can delegate certain of her duties, either pursuant to the Carltonadoctrine or through the explicit recognition in s 2 of the Code that Attorney General includes her “lawful deputy.” However, they submitthat in either case there are limits on the delegation: R v Horne & Pitfield Foods Ltd, 1982 ABCA 202 , [1982] 5 WWR 162, 39AR 428 (ABCA), at para 11. [70] One of the limits, already discussed, is that the delegation must be in accordance with the legislative scheme of any governinglegislation.

Another limit is that under the Carltona doctrine, the delegation must be to a responsible officer within the Minister’sdepartment. The Opposing Respondents note that the Applicant’s cases all involved delegations that were inter-departmental or inter-ministerial.

In this case, the delegation is to police officers, who are persons outside of the Minister’s department and cannot act as her“stand-ins.” The Opposing Respondents support this position with reference to the case of R v McCarthy, 2008 ABQB 14, 87 Alta LR(4th) 362. [71] In McCarthy, this Court considered the status of police officers vis-à-vis the provincial Attorney General in the context ofdisclosure requirements.

At issue were records of complaints made to the Edmonton Police Service and whether those documents wereconsidered to be in the possession of the Attorney General or in the possession of a third party (the police service). The Court found thatalthough the police service acts under the direction of the Minister of Justice and Attorney General, it is not an extension of the AttorneyGeneral.

The Edmonton Police Service is under the oversight of a police commission, which in turn is overseen by city council, atparas18-19: In terms of governance structure, the EPS is a creature of statute governed by the Police Act, R.S.A. 2000, c. P-17 (the “Act”). Althoughs. 2(2) of the Act provides that all police services act under the direction of the Minister of Justice and Attorney General, when the Act isread in its entirety it is clear that police services, such as the EPS, are not merely an extension of the Attorney General: Szczerba, at para.46.

Specifically, s. 28 of the Act vests responsibility for oversight of the EPS in the Edmonton Police Commission (the “Commission”), notthe Minister of Justice or the Attorney General. In terms of the operative chain of command, the EPS Chief of Police is chosen by andaccountable to the Commission, which in turn is appointed by and accountable to the Edmonton City Council.

Neither the Minister ofJustice or Attorney General plays an oversight role. ... [72] Further, the Court noted police officers are municipal rather than provincial employees, which is in contrast to Crownprosecutors who are employed by and work for the Ministry of Justice and report to the Attorney General.

These key differences led theCourt to conclude that “the Crown and EPS are not different arms of the same organization, but rather are separate and independententities with different reporting structures and accountabilities” McCarthy at para 20. [73] As police officers are outside the oversight of the Attorney General, the Opposing Respondents submit that there is nomechanism through which the Attorney General can personally control or hold accountable the police officers acting in her place. This isin contrast to her ability to hold Crown prosecutors accountable, as they are employed by her department.

It is submitted the AttorneyGeneral’s delegation to police officers is therefore an abdication of her authority to a separate public agency. [74] As for the Attorney General’s acknowledged ability to delegate to a lawful deputy in s 2 of the Code, the OpposingRespondents submit the case law is not as broad as the Applicant submits. Luis and Torres were both cases that concerned delegations toCrown attorneys. The Opposing Respondents point out none of the Applicant’s cases include any delegations to extra-ministerial non-lawyers. Therefore, they submit, the

interpretation of “lawful deputy” is not as expansive as suggested. [75] The Opposing Respondents state that the delegation is not appropriate as police officers are not experienced and competentofficials to carry out the Attorney General’s responsibilities with respect to bail hearings. In particular, police officers do not have theknowledge, experience or training necessary for the role.

They submit that in order to speak to judicial interim release, an appropriateofficial would require a law degree from a school recognized by the Law Society of Alberta, practical experience through the process ofarticling, knowledge and compliance with the Law Society’s Code of Conduct, and specific to Crown prosecutors, knowledge andadherence to the Prosecutorial Code of Conduct. [76] The Opposing Respondents also argue a police officer’s training and experience is related to the enforcement of laws.Information from the Edmonton Police Service’s website indicates that training for police recruits is split equally between the classroomand performing practical exercises.

The topics for training include legal studies, documentation, officer safety control tactics, firearmstraining, police vehicle operations, investigations, interviews, and community based policing and problem solving. [77] The Opposing Respondents provided cases where courts have acknowledged the different roles played by police in theadministration of justice.

For example, in R v Regan, 2002 SCC 12, [2002] 1 SCR 297, the Supreme Court noted that “the separation ofpolice and Crown roles is a well-established principle of our criminal justice system,” at para 71. [78] Due to the significant differences in their training, experience and professional obligations, the Opposing Respondents arguethat delegating the prosecutorial role at bail hearings to police officers is not appropriate.

Analysis [79] It is clear that Ministers such as the Attorney General are expected to, and for practical reasons must, delegate aspects of theirrole to others: Harrison. The Criminal Code recognizes this expressly in the s 2

definitions. The ability to delegate is not in question. It iswhether the delegation is permissible and appropriate in this case. [80] In my view, the answer to this question is answered by the Criminal Code itself. The Code is lengthy, thorough and detailedlegislation that evidences Parliament’s intentions for the administration of justice and the role it envisioned for the various participants inthat system. Upon review, I find that Parliament intended prosecutors at bail hearings on indictable offences to be legally trained. [81] Initially, this intent can be seen through the different

definitions of “prosecutor” under s 2 and s 785. The definition of“prosecutor” under s 2 vests prosecutorial power in the Attorney General, and allows that role to be filled by the Attorney General’s“counsel,” or by the Attorney General’s “lawful deputy.” By definition, “counsel” must be a barrister or solicitor who is legallyauthorized to perform in such a role by the province. A “lawful deputy” is not defined. [82] Under s 785, the definition of “prosecutor” changes.

Prosecutorial power is still vested in the Attorney General, and his or hercounsel, but the role may also be filled by an agent of the Attorney General. The addition of “agent” in the s 785 definition allows theprosecutorial role to be filled by persons who are not barristers or solicitors with legal training, and on a plain reading could includepersons such as police officers. The fact that Parliament chose to have two

definitions for “prosecutor” for indictable and

summaryconviction offences shows, on a plain reading, an intention to differentiate between the two roles. It also shows that Parliament was aliveto the possibility that non-legally trained agents could perform some duties under the Code, but not others. [83] I find that Parliament’s intention in crafting s 785 was to allow non-legally trained persons to act as prosecutors for

summaryconviction offences. The inverse inference is that Parliament intended for only legally-trained persons to act as prosecutors for indictableoffences, and viewed the s 2 definition of prosecutor as being already restricted in this fashion. [84] This

interpretation of the role of prosecutors in the two schemes has been confirmed at law: NC; Edmunds. [85] Parliament’s intention is also expressed in

Part 16 of the Code relating to powers of release. In

Part 16, Parliament devised ascheme whereby different actors have defined roles and responsibilities pertaining to release, with the roles and responsibilities differingdepending on the seriousness of the offence. The different forms of potential release include release by a peace officer (s 497), release byan officer in charge (ss 498, 499), release by a justice (s 515) or release by a judge of a superior court (s 522). A prosecutor is given theresponsibility of presenting evidence and making submissions on release under s 515 releases by a justice.

Significantly, each of theterms used in these sections, “peace officer”, “officer in charge”, “prosecutor”, “judge” and “justice”, are separately defined terms unders 2 of the Code or under the s 493

definitions for

Part 16. [86] In my view, a plain reading of the words and scheme set out in

Part 16 shows that Parliament defined the roles andresponsibilities of the various actors purposefully, choosing peace officers or officers in charge to have powers of release for less seriousoffences, requiring a justice to make decisions on release for more serious offences, and requiring a judge of a superior court to decide onrelease for the most serious offences. Through the wording of s 515, Parliament decided that prosecutors should be involved when ajustice is deciding whether to detain or release an accused.

Presumably, if Parliament intended for peace officers to show cause at bailhearings, it would have specifically given that responsibility to peace officers in s 515, or provided that either a prosecutor or peaceofficer could show cause at a hearing. Or, similar to the s 785 definition of prosecutor under

Part 27, Parliament could have definedprosecutor to include the Attorney General’s agent for

Part 16. Instead, Parliament chose to assign the task of showing cause at bailhearings to a prosecutor only. [87] The Applicant submitted that because the factors considered by police officers pertaining to release are similar to thoseconsidered by a justice of the peace at a bail hearing, police officers are suitable candidates to present those factors in the prosecutorialrole at a bail hearing.

While this may be true, it is clear that to place police officers in the prosecutor’s role would, as the OpposingRespondents stated, flaunt Parliament’s intent. [88] The position supported by the Applicant could also open the door to further delegations to lawful deputies of the AttorneyGeneral of prosecutorial functions beyond bail. [89] I agree that the legal training in law school and practical experience of articling equips counsel to the Attorney General withthe knowledge and skills needed when speaking to judicial interim release and their other prosecutorial functions.

The same level ofknowledge, skills and experience is not provided in police training, which understandably has a different focus. [90] However, I find that these considerations, on their own, are not dipositive of this case. Despite the obvious differences intraining and experience, Parliament decided under

Part 27 that agents, such as police officers, are suitable candidates to present evidenceand make submissions at bail hearings and trials for

summary conviction offences. In my mind, this weakens some of the argumentsabout the appropriateness of having police officers in a prosecutorial role, whether due to their training, their extra-ministerial status, ortheir accountability to the Attorney General. [91] Therefore, I find the deciding factor here is that a review of the applicable

definitions, along with the scheme set out in theCriminal Code, shows Parliament intended for legally-trained persons to act in the prosecutorial role for indictable offences: AtomicEnergy. I agree that the use of the word “prosecutor” in s 515 indicates that a bail hearing is a part of the prosecutorial act. [92] In

summary, although the Attorney General has the ability to delegate her duties to a lawful deputy, she cannot overrideParliament’s intention to have legally trained prosecutors for indictable offences when doing so. The appointment of police officers to aprosecutorial role under s 515 provides them with a power that is contrary to the intent of the Criminal Code: Horne & Pitfield Foods.The Criminal Code must prevail over the Ministerial Orders: Re Bradley et al and the Queen, (1975), (ON CA), 24

CCC (2d) 482, 9 OR (2d) 161, [1975] OJ No 2374 (ONCA) [Bradley] at para 23 (QL). [93] I understand the delegation of the lawful deputy role to police officers was likely an attempt to legitimize a longstandingpractice that came about due to practical challenges. However, it essentially allowed police officers entry into the prosecutorial rolethrough the back door, and cannot continue on that basis. Police officers do not have the legal authority under the Criminal Code topresent as prosecutors at first appearance bail hearings.

Police Officers’ Authority as a Result of Initiating Proceedings [94] As an alternative argument, the Applicant submits that police are authorized to present at first appearance bail hearingsbecause they, individually or collectively, fall within the definition of a prosecutor as “the person who institutes proceedings”: “prosecutor” means the Attorney General or, where the Attorney General does not intervene, means the person who institutesproceedings to which this Act applies, and includes counsel acting on behalf of either of them; “every one, person and owner”, and similar expressions, include Her Majesty and an organization; “organization” means (

a) a public body, body corporate, society, company, firm, partnership, trade union or municipality, or ... [95] Proceedings are initiated in the Code through the laying of charges under s 504, where anyone who believes on reasonable andprobable grounds that an offence has been committed may swear an information (setting out the charge) before a justice.

Under s 504“anyone” can lay an information, including a private person, though most commonly charges are laid by the police in Alberta. [96] The Applicant submits that an information may be laid by a police officer who receives knowledge of the case from anotherofficer, giving the officer reasonable grounds to lay the charge, relying on paras 75-81 in R v Awad, 2015 NSCA 10, 1126 APR 116.This, coupled with the broad definition of “person” in the Code, which includes an organization, suggests that police officers within thesame organization may be considered to have instituted proceedings when a charge is laid.

In this way, the

interpretation of the phrase“where the Attorney General does not intervene” can include the situation where a police officer is a prosecutor until the AttorneyGeneral intervenes. [97] The Applicant concedes that the other more common

interpretation of the phrase “where the Attorney General does notintervene” refers to the fact that the Attorney General has the ability to intervene in private prosecutions, which occur when a privateperson lays an information (instituting proceedings): Bradley, at paras 26-27(QL). She nevertheless submits that the other

interpretationis also proper. [98] To buttress this argument, the Applicant submits that the Attorney General’s involvement does not commence when aninformation is laid. She argues the Attorney General does not intervene, and a criminal prosecution does not commence, until process hasissued.

Process is the stage of proceedings where an accused person is compelled to appear in court to answer the charge. [99] The Applicant points to case law which distinguishes between when a charge is laid and when process is issued: R v Dowson, (SCC), [1983] 2 SCR 144, 7 CCC (3d) 527, 1983 CarswellOnt 94 at paras 31-39 (WL); R v McHale, 2010 ONCA 361,256 CCC (3d) 26, leave to appeal to SCC refused, [2010] SCCA No. 290.

The distinction between the two procedural steps is mostclearly laid out in McHale, at paras 43-44: In the usual course, criminal proceedings are commenced or instituted by laying an information before a justice alleging the commissionof an offence. Receipt of the information is a ministerial act. Provided the information alleges an offence known to law and is faciallycompliant with the requirements of the Criminal Code, the justice must receive the information. The justice takes the information underoath and affixes his or her signature to the jurat on the written Form 2.

An information is a sworn allegation of crime. But it does not compel the person named as the accused to attend court to answer to thecharge. Although the person named in the information is “charged with an offence” for the purposes of s. 11 of the Canadian Charter ofRights and Freedoms, we distinguish between the commencement of criminal proceedings and the commencement of a criminalprosecution. This distinction coincides with the dual functions of the justice.

The ministerial act of receiving the information coincideswith the institution of proceedings, and the judicial act of issuing process signals the commencement of the prosecution: R. v. Dowson, (SCC), [1983] 2 S.C.R. 144, at pp. 150, 155 and 157; Southam Inc. v.

Coulter (1990), (ON CA), 75O.R. (2d) 1 (C.A.), at pp. 6-7. [100] Later in McHale, relying on this distinction, the Court concludes that a prosecution only commences after process has issued,and as such the Attorney General’s supervisory authority only commences at that point in time, at para 71: A criminal prosecution only commences after a justice has made a decision to issue process: Dowson, at p. 150. As Chief Law Officer ofthe Crown, the Attorney General has supervisory control over criminal prosecutions.

It seems reasonable to conclude that thissupervisory authority begins contemporaneously with the commencement of a criminal prosecution. ... [101] In reliance on this distinction between the laying of an information and the commencement of a prosecution through issuingprocess, the Applicant suggests that police qualify as prosecutors from the point in time that they lay an information until process isissued, and the Attorney General then intervenes.

The Applicant suggests that in cases where the police do not exercise their powers torelease a person, and instead bring the person before a justice of peace, there is a window of time where the police remain the “person”who instituted proceedings and the Attorney General has not yet intervened. [102] Countering this position, the Opposing Respondents argue the Applicant’s argument is premised on the incorrect assumption

that a s 515 bail hearing occurs prior to process being issued. Process is required to compel a person to appear before the court, andallows the court to establish jurisdiction over an accused person. Where an accused person is not already in police custody, process canissue in a few ways, such as a summons or a warrant: ss 504-514 of the Criminal Code. However, when a person is in police custody andis not released, the person is brought before the court for a s 515 bail hearing.

Once the person appears in court, the court gainsjurisdiction and process issues. [103] R v Wilson, 2015 SKCA 58, 460 Sask R 147, confirms that a court gains jurisdiction when an accused is brought before thecourt by any means, and that process is not essential to the jurisdiction of the court, at paras 27 to 28: ...the receipt of the information and the issuing of process are separate procedures and receipt of the information by a justice under s. 504does not imply that an application for process must be made under s. 507(1). The proper

interpretation of ss. 470(a), 504 and 507(1)together is that process need not be issued every time an information is laid or received although for the great majority of cases processwill be requested to compel appearance of the accused. Accordingly, there is nothing in ss. 470(a), 504 and 507(1) which displaces the longstanding principle that process is not essential to thejurisdiction of the court where an accused appears by any means to answer the charge.

Where an information has been laid and theaccused comes before the court by any means, the court has jurisdiction. [Emphasis in original] [104] Thus, the Opposing Respondents submit that when a person in police custody is brought to court for a bail hearing, processissues at that point in time, and the Attorney General is responsible for conducting the prosecution. [105] Further, the Opposing Respondents submit the phrase “where the Attorney General fails to intervene” is clearly intended to dealwith the differences between public and private prosecutions.

When a police officer lays an information to commence criminalproceedings, he or she does so on behalf of Her Majesty the Queen, and would never personally consider himself or herself as a part ofthe prosecution: Mandelbaum v Denstedt, (MB CA), [1969] 3 CCC 119, 66 WWR 636 (MBCA). Where a privateperson initiates criminal proceedings by laying an information, the person swears the information in his or her own name, not on behalfof Her Majesty.

Once that is done, the Attorney General can choose to intervene, or not, in which case the prosecution proceeds withoutthe Crown attorney’s involvement: Motor Coach Industries v International Association of Machinists and Aerospace Workers, [1982]4 WWR 436, 16 Man R (2d) 62, [1982] MJ No 247 (Man Co Ct), at paras 9-12 (QL), aff’d (MB CA), [1982] 5 WWR391, 16 Man R (2d) 419 (MBCA). If the Attorney General does intervene, he or she can choose to proceed with the prosecution, orwithdraw or stay it. [106] Following from this, the Opposing Respondents submit that the only

interpretation attributable to the “person who initiatesproceedings,” is to a private person who lays a private information, and that in all other cases the prosecutor is the Attorney General.“Intervention” by the Attorney General, as it is referred to in the definition, only occurs in cases where the Attorney General takes overconducting a prosecution from a private person.

Analysis [107] I agree with Opposing Respondents that the phrases “the person who institutes proceedings” and “where the Attorney Generaldoes not intervene” in the s 2 definition of prosecutor, when interpreted in their proper context, are meant to refer to a person whoinitiates a private prosecution and the power of the Attorney General to intervene in those prosecutions. [108] The fact that our system allows both private prosecutions and public prosecutions is rooted in legal history.

The followingpassage from the Ontario Court of Appeal explains that crimes were originally seen as committed against an individual, and theindividual was responsible for prosecuting the offence. Over time, crimes were seen as committed against the state, and the attorneygeneral, representing the state, eventually took over the prosecution of most offences, Bradley at paras 26-27: In Anglo-Saxon times, crimes were regarded as committed not against the State but against a particular person or his family.

The victimor injured party or some directly interested party brought the offence to justice, and personally conducted the prosecution. In Normantimes, a change in the concept of the nature of a criminal offence began. A public crime was no longer a wrong against an individual; itwas wrong against the State. By the familiar device of legal fiction, more and more crimes were regarded as a breach of the King'speace.

Thus, by the 19th century Blackstone was able to state categorically that "[the Sovereign] is therefore the proper person toprosecute for all public offences and breaches of the peace, being the person injured in the eye of the law" [citations omitted]. The Attorney-General, and his agent the Crown Attorney, represent the Sovereign in the prosecution of crimes.

The role of the privateprosecutor, permitted by statute in this country, is parallel to but not in substitution for the role of the Attorney-General, and where thetwo roles come into conflict, the role of the Crown's prosecutor is paramount, where in his opinion the interests of justice require that heintervene and take over the private prosecution. [109] As noted in this passage, the Criminal Code still allows private citizens to lay charges and commence a private prosecution.However, the Attorney General has supervisory power over all prosecutions: Steele v Alberta, 2014 ABQB 124, 308 CCC (3d) 539, at73: While both a private prosecutor and a public prosecutor have the statutory authority to initiate and conduct a prosecution, the AttorneyGeneral has a supervisory responsibility for the conduct of all prosecutions, however initiated.

The Supreme Court of Canada in Dowsonat 155 cited with approval the following passage from the decision of the Ontario Court of Appeal in the same matter: “The right of aprivate citizen to lay an information, and the right and duty of the Attorney-General to supervise criminal prosecutions are bothfundamental parts of our criminal justice system.” [Emphasis added in Steele] [110] McHale discusses one example of a supervisory power that has been codified in s 579.1, where the Attorney General is giventhe power to enter a stay of proceedings, including over private prosecutions.

[ 111 ] Looking further at the Criminal Code itself, there are a number of provisions which refer to the Attorney General “intervening”: s 485.1, s 507.1(4), s 574 (3), s 577, s 579.01. On a plain reading of these provisions, I find the references to the Attorney General either intervening or not intervening, when read in context, all relate to interventions in a private prosecution. [ 112 ] For example, s 485.1 describes how proceedings that are dismissed for want of prosecution can be recommenced through laying a new information or upon a fresh indictment. The

section sets up two procedures for recommencement, each with different requirements, depending on the status of the Attorney General in the prosecution. If the Attorney General is conducting the prosecution, or has intervened, the personal consent of the Attorney General or the Deputy Attorney General is required for recommencement. If Attorney General is not conducting the prosecution and has not intervened, the consent of a judge by written order is required.

It is clear that these different scenarios contemplate a situation where the Attorney General is either conducting the prosecution or someone other than the Attorney General is conducting the prosecution.

The references to the Attorney General intervening refer to whether the Attorney General has intervened or not in a private prosecution. 485.1 Where an indictment in respect of a transaction is dismissed or deemed by any provision of this Act to be dismissed for want of prosecution, a new information shall not be laid and a new indictment shall not be preferred before any court in respect of the same transaction without (

a) the personal consent in writing of the Attorney General or Deputy Attorney General, in any prosecution conducted by the Attorney General or in which the Attorney General intervenes; or (

b) the written order of a judge of that court, in any prosecution conducted by a prosecutor other than the Attorney General and in which the Attorney General does not intervene. [ 113 ] Other provisions are similarly concerned with who is conducting the proceedings, the Attorney General or a private prosecutor: - “In a prosecution conducted by a prosecutor other than the Attorney General and in which the Attorney General does not intervene...”, s 574(3); - “... in the case of a prosecution conducted by the Attorney General or one in which the Attorney General intervenes...”, s 577 (a); - “If the Attorney General intervenes in proceedings and does not stay them under

section 579...”, s 589.01. [ 114 ] These provisions clearly refer to the parallel systems for prosecutions in which either:

a) a prosecution was commenced publicly and the Attorney General is prosecuting it;

b) a prosecution was commenced privately and is being prosecuted privately, or

c) a prosecution was commenced privately and the Attorney General has intervened and is prosecuting. [ 115 ] I do not see any room within these provisions for the Applicant’s position that the Attorney General intervenes in a public prosecution instituted by a police officer. Nor was the Applicant able to supply any case law in support where this issue had been directly litigated.

In fact, if a police officer were able to prosecute an indictable offence until the Attorney General intervened, that would contradict the findings in cases such as Edmunds . [ 116 ] The Applicant also argued that a prosecution commences when process issues, and that only at that point in time does the Attorney General intervene in a public prosecution. I find the Applicant’s focus on “process issuing” as the start of a prosecution to be misplaced, especially in the context of this case, which concerns bail hearings. [ 117 ] The Applicant’s position is problematic for a few reasons.

First, the steps involved in commencing a prosecution differ depending on whether the accused person has been released or detained. In cases where a person is not detained in custody, there are usually two steps to the commencement of a prosecution. The first step is laying an information and the second is issuing process: Ambrosi v British Columbia (Attorney General) , 2014 BCCA 123 , 311 CCC (3d) 264, at paras 19-23 , leave to appeal refused, [2014] SCCA No 320. A justice must receive the information if the alleged offence is known to law and if it complies with the requirements of s 504.

The second step is a pre-inquiry hearing to decide whether to issue process in the form of either a summons or a warrant. The pre- inquiry is conducted under s 507 for informations laid by a peace officer, a public officer, or the Attorney General and is heard by a justice. Where the information is laid by a private person, the pre-inquiry is conducted under s 507.1, and must be heard by a designated justice, or provincial court judge, or in Quebec a judge of the Court of Quebec.

If the case is made out, a summons or a warrant will issue to compel the accused to attend court. [ 118 ] Importantly, the second step in this process, where a pre-inquiry hearing is held and process potentially issues, does not occur if the accused is detained pending a bail hearing. The pre-inquiry in s 507, which is the applicable

section when a police officer lays an information, is not required “if an accused has already been arrested with or without a warrant:” s 507 (1). Case law has interpreted this phrase as meaning that the person is currently under arrest when the information is laid, and has not yet been released: R v Drozd , 2011 ONCJ 51 , 92 WCB (2d) 902, at para 26 . Therefore, in a case where the person is detained and taken to a bail hearing, the issuing of process under this

section will be unnecessary: R v Ladzinski , 2012 ONCJ 205 , 101 WCB (2d) 129, at para 9 . However, by no means could one argue that because “process” had not issued under s 507, a prosecution had not yet commenced, and the Attorney General had not yet intervened. [ 119 ] The Applicant’s cases are distinguishable because they involved private prosecutions where the accused was not detained. In such cases, “process” has an important role as it signals that the court is willing to take jurisdiction over a person and compel them to appear.

Compelling attendance at court is not a concern in bail hearing cases: the person has already been compelled to attend. As was stated in Wilson at para 28, “process is not essential to the jurisdiction of the court where an accused appears by any means to answer the charge.” Instead it is merely “the proceeding adopted to compel the appearance of the accused to answer the information...” Wilson , at

para 9, quoting R v Dahmer (1982), (SK KB), 19 Sask R 290 and R v Hughes (1879), 4 QB 614. Thus, I find that inproceedings where the person is detained and brought to a bail hearing, issuing process is unnecessary and does not signal thecommencement of the prosecution. [120] I agree with the Opposing Respondents’ position that the Attorney General’s involvement in a public prosecution begins at thetime that charges are laid. When a charge is laid in a public prosecution, it is laid on behalf of Her Majesty the Queen (the Crown).

Withthe laying of the charge, the Attorney General, usually through Crown prosecutors, is given responsibility for the conduct of a publicprosecution from that moment onwards. This is evident because after the charge is laid, the work of the prosecutors begins. Prosecutorsare required to exercise their discretion in determining whether to proceed or to withdraw or stay charges laid by police officers. Thesedecisions occur before process issues. Prosecutors may also be involved in other decisions before process issues, such as makingelections or deciding which charges to proceed on.

I also find that the use of the word “prosecutor” in s 515 signals that a prosecution isproceeding at the time of a bail hearing, even though process has not yet issued. Thus, the prosecutorial role, and involvement of theAttorney General or his or her counsel, commences before the issuing of process, at least in public prosecutions. [121] In my view this issue is again decided on the basis of statutory

interpretation principles. I find that the phrase “where theAttorney General does not intervene” in the s 2 definition of prosecutor, when read in its entire context and in its grammatical andordinary sense harmoniously with the scheme of the Criminal Code, the object of the Criminal Code, and the intention of Parliament,means where the Attorney General does not intervene in a private prosecution: Atomic Energy.

Thus, I interpret the s 2 definition ofprosecutor to mean either the Attorney General (or his or her counsel) or the person who instituted proceedings through a privateinformation (or his or her counsel) if the Attorney General does not intervene in those proceedings. [122] Based on my analysis, I cannot grant the declaration sought by the Applicant Attorney General. Instead, I declare thatdesignated police officers do not have the requisite authority under the Criminal Code to present as prosecutors at first appearance bailhearings before justices of the peace.

Timing of the Declaration [123] The Applicant has asked that if I find having police officers present at bail hearings is unauthorized under the Criminal Code,the declaration to that effect be suspended for six months. This request is made to allow for the orderly transition from the currentpractice to one in which Crown prosecutors appear at all bail hearings. The Applicant submits that an orderly transition is essential forpublic safety reasons and is necessary to maintain the rule of law.

She notes that over twenty Crown prosecutors and additional supportstaff will need to be hired, and there will need to be an integrated response by police, the Alberta Crown Prosecution Service, the justicesof the peace, and the provincial court. If time for an orderly transition is not in place, there is a possibility that accused persons will bereleased unconditionally and that applications to review those releases will put increased pressure on already strained court resources. [124] The Applicant submits that courts have granted transition periods in the past to avoid similar negative outcomes.

In Schachter v Canada, (SCC), [1992] 2 SCR 679, 93 DLR (4th) 1, the Supreme Court noted that suspended declarations wereappropriate in certain circumstances, including 1) when striking down legislation poses a potential danger to the public; or 2) otherwisethreatens the rule of law; or 3) when an unconstitutional provision is underinclusive and striking down the law immediately woulddeprive deserving persons of benefits without providing them to the wronged applicant, at para 79: A court may strike down legislation or a legislative provision but suspend the effect of that declaration until Parliament or the provinciallegislature has had an opportunity to fill the void.

This approach is clearly appropriate where the striking down of a provision poses apotential danger to the public (R. v. Swain, supra) or otherwise threatens the rule of law (Reference Re Manitoba Language Rights, (SCC), [1985] 1 S.C.R. 721). It may also be appropriate in cases of underinclusiveness as opposed to overbreadth. ... [125] The Applicant also submitted other cases where courts granted suspensions of declarations.

In Reference re Remuneration ofJudges of the Provincial Court (et al), (SCC), [1998] 1 SCR 3 the independence of the judiciary was called intoquestion and the Supreme Court granted a suspended declaration so that provinces could set up proper judicial compensationcommissions. In R v Powley (2001), (ON CA), 53 OR (3d) 35, 196 DLR (4th) 221, aff’d 2003 SCC 43, [2003] 2SCR 207, the Ontario Court of Appeal found Ontario’s Game and Fish Act infringed the constitutional rights of two aboriginal huntersand granted a stay of the judgment to allow the province to consult with stakeholders and develop a new regime.

In R v Brydges, (SCC), [1990] 1 SCR 190, [1990] 2 WWR 220, the Supreme Court granted a transition period so that police had time tochange the information on their caution cards to comply with requirements under s 10(

b) of the Canadi

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