Reilly v Alberta, 2022 ABKB 612

Court of King’s Bench of Alberta Citation: Reilly v Alberta, 2022 ABKB 612 Date: 20220926 Docket: 1801 06296 Registry: Calgary Between: Ryan Reilly and MS [1] Plaintiffs - and - Her Majesty the Queen in the Right of the Province of Alberta [2] Defendant _______________________________________________________ Memorandum of Decision of the Associate Chief Justice J.D. Rooke _______________________________________________________ I.

Introduction [ 1 ] This is the certification decision (Decision) on the class proceeding herein, under the Class Proceedings A ct, SA 2003, c-C 16.5 , as amended (the Act ) , wherein the Third Amended Statement of Claim (TASC), filed June 25, 2020, para 4, refers to Criminal Code, RSC 1985 c C-46 ( Criminal Code or Code ),

section 503 , and to the proposed class definition (as elaborated in para 65), as follows: All persons who were arrested in Alberta between May 2, 2016 and the date of certification, who: (

a) did not receive a bail hearing within 24 hours of their arrest [3] ; (

b) did not consent to an adjournment of their bail hearing;

(

c) did not have their bail hearing adjourned by a justice within 24 hours of their arrest [4] ; (

d) were not arrested or charged with an offence listed under

Section 469 of the Criminal Code ; (

e) were granted bail at a bail hearing or were released without a bail hearing, but after 24 hours from the time of their arrest; (

f) did not receive a prison sentence or a sentence based upon time served as a result of the charges stemming from their arrest; and (

g) did not have their bail hearings conducted by the Public Prosecution Service of Canada [PPSC] or any other Federally appointed prosecutor (the “Class” or the “Class Members”). [ 2 ] On February 3, 2017 (TASC, para 21), in Hearing Office Bail Hearings (Re) , 2017 ABQB 74 ( Bail Hearings Reference ) the then Chief Justice of this Court confirmed that Alberta’s bail hearing regime was contrary to the Code and without legislative authority, with a six-month reprieve (to August 8, 2017) from the consequences of invalidity to allow an orderly transition from a regime of peace officer-conducted bail hearings to prosecutor-conducted bail hearings (subsequently called “Crown Bail”). [ 3 ] At some point after February 3, 2017 and before August 3, 2017 (TASC, para 30), Alberta developed a new system for bail hearings in Alberta, commonly referred to as “Crown Bail”, whereby Crown prosecutors took over the prosecution of bail hearings from the Crown’s police forces.

It is this Crown Bail system that is the focus of these proceedings – TR12 – 3/23-39. [ 4 ] April 4, 2017 was the date that the TASC (paras 1 and 35) states the Plaintiff, Ryan Reilly, was arrested. The circumstances from his time of arrest to the conclusion of the case are summarized in the TASC (paras 36-48), including that he was not granted a bail hearing for approximately 36 hours and that in the end result, was not convicted of an offence. [ 5 ] April 6, 2017 was the date that the TASC (paras 2 and 52) states the Plaintiff, MS (the Proposed Representative Plaintiff, or PRP) was arrested.

The circumstances from his time of arrest to the conclusion of the case are summarized in the TASC (paras 52-62), including that he was not granted a bail hearing for approximately 26 hours and that, in the end result was acquitted on the charge(

s) originally facing him. A. Causes of Action [ 6 ] At paras 66-80, the TASC alleges and describes causes of action for breaches of ss. 7, 9, 10(c) [5] , 11(d), 11(

e) and 12 of the Canadian Charter of Rights & Freedoms , being

Part I of the Constitution Act , 1982 c.11 RSC 1985 ( Charter ) . At paras 81-84 it pleads a cause of action in negligence. [6] B. Damages [ 7 ] The Plaintiffs claim (TASC paras 92-96 and 98(f)-(g)) damages and punitive damages of $100 million each, and (TASC paras 87 (h) – (j)) interest, costs on an indemnity basis, and costs of notice and administering the plan of distribution. C. Amended Statement of Defence [ 8 ] While detailed, in essence Alberta’s Amended Statement of Defence (ASD), filed December 21, 2018, is a general denial of all allegations, while describing the bail hearing process in Alberta. D.

Reply to Notice to Admit [ 9 ] In its Reply (filed May 4, 2021) to the Plaintiffs’ Notice to Admit (filed May 3, 2021), Alberta admits, inter alia (para 20) that “since August 3, 2017, thousands of Albertans have not received bail hearings within the timelines set out in s. 503 of the Criminal Code ” . E. Amended Notice of Application (Certification) [ 10 ] The Amended Notice of Application (Certification) (Amended Application for Certification, or AAC), filed February 19, 2021, sought, inter alia , that: a.

MS be appointed the Representative Plaintiff (the Proposed Representative Plaintiff or PRP) – (see also TR11 -7/8-10 to the same effect); b. The class definition be restated, with an amended start date of October 25, 2016 [7] , being the date admitted by Alberta in para 4 of the Reply to Notice to Admit, that Alberta commenced a pilot project to have Crown Prosecutors replace police officers as the presenters for “the State bail hearings”, in response to the report commissioned by Alberta and authored by Nancy Irving entitled “ Alberta Bail Review: Endorsing a Call for Change ”; and c.

The common issues (Schedule “A” to the AAC) be certified, which, as amended or subject of some further review, are listed (and any changes explained) below. II. Arguments of the Parties [ 11 ] As I move into the arguments of the parties, I make two observations.

First, much of the Plaintiffs’ arguments (and almost all of the first 11 paras, and many paras that follow from the Plaintiffs’ Brief (PB)) go to the true, but basic, platitudes of legal principles (sometimes admitted by Alberta) applicable to the substantive issues in the litigation – e.g. the presumption of innocence until proven guilty; pre-trial release at the earliest opportunity and in the least onerous manner; detention is the exception not the rule; constitutional responsibility between the Federal and Provincial governments, etc. – none of which I need address when considering the appropriate procedure to hear that substance.

I will not address those principles herein.

[ 12 ] Second, for the reasons set out at para 11 of Robinson v. HMQ , 2022 ABQB 497 , referencing Engen v. Hyundai Auto Canada Corp , 2021 ABQB 740 , at para 8 (a principle purported to be followed by both the Plaintiffs (TR11 – 3/31-35) and Alberta (see AB para 140), although I observe that is not always the case), I will only address the class proceeding procedural principles that are at issue in the litigation before me. A. Plaintiffs’ Written and Oral Arguments [ 13 ] The Plaintiffs claim systemic breach ( inter alia , PB, para 3-5: TR11 – 6/13 – 7/7) of the Charter in the Province’s Crown Bail system.

They state that in “ R. v. Reilly (cites follow), Alberta has admitted to every level of Court that sections 7 , 9 and 11(

e) of the Charter were breached…”, referencing the criminal proceedings relating to Mr.

Reilly that ultimately led to this class proceeding: 2018 ABPC 85 , at para 3 ; 2019 ABCA 212 , at paras 2 , 15-18, 22, 47-9, and 51-2; and 2020 SCC 27 , thus representing some basis in fact for the Charter and negligence claims, including remedies “considered by the Court of Appeal” (PB, para 6) [8] . [ 14 ] The Plaintiffs also describe the “Transition to ‘Crown Bail’” commencing in October 2016 (PB, para 38 et seq ). [ 15 ] The Plaintiffs set out their experiences at paras 76-95 of the PB, and in anticipation of an argument that damages found might be individually assessed, state, pointing to Court of Appeal comments on assessment of damages (PB, para 78-9): While damages for individual experiences will necessarily have to be assessed individually, there is a degree of uniformity of injury suffered by every class member inherent from the loss of their liberty … and some evidence that a portion of the class damages can be assessed in the aggregate.

Counsel elaborated to the same effect in the discussion at TR12 – 59/26-60/34 – see also TR12 – 48/19-34. Counsel for Alberta seemed to agree (TR12 -61/12-62/13) where there is a complete assessment of liability, which would be for the common issues trial justice to determine. B. Alberta’s Written and Oral Arguments [ 16 ] Alberta’s written Brief (AB) was filed March 18, 2021. Alberta first argues certain preliminary matters.

While conceding (AB paras 2-3, 13 and elsewhere) that there are “a residual number of persons who are not brought before a Justice within 24 hours of their arrest” under the Code ’s s. 503, Alberta argues that this action proceeds notwithstanding the cause of the delays and notwithstanding that who or what caused the delays are unknown. That has already been dealt with by the Court’s Order of October 15, 2019, dismissing an application to add other defendants, and directing the Plaintiffs not seek redress against law enforcement agencies, such that this action is and remains only against Alberta.

The Plaintiffs stated it this way in oral argument (TR11 – 4/15-22): “the nature of the Charter breach and the negligence claims are being asserted only to the conduct of the Crown or in so far as the police [9] are involved, it is under the jurisdiction of the Ministry of Justice with respect to the administration of justice and they are indivisible in that context”. I responded (TR 11 – 4/33-4): “I either grand certification against the Ministry or I deny it and I don’t grant anything against the police, because it’s not being sought”.

I agree with this submission by the Plaintiffs (specifically PRB, paras 8-9), and I reject the continuing argument by Alberta thereafter about missing parties, in face of my October 15, 2019 ruling. [ 17 ] Similarly, Alberta argues (AB para 10) that the fact of delay beyond 24 hours after arrest (what Alberta calls the “ effect ”) does not address the cause of the delay. However, it is the fact of the delay – the “effect” – that is the complaint in this action, with further resulting consequences – deprivation of liberty and the like.

Thus, I find that this action is not about the cause of delay (except on a systemic basis, which I will momentarily address, but about the fact of delay. Indeed, I addressed this with Counsel for Alberta at TR11-55/38-56/22 & 59/41-60/11 & 63/27-38 & 66/5-14; and TR12 – 34/29-39 and 36/5-26. Having said that, if liability is found, the damages may have to be determined on, at least in part, an individual basis. This is something the common issues justice will be required to determine.

See also the discussion by Alberta Counsel at TR12 – 36/41-37/19, regarding Rumley v British Columbia , 2001 SCC 69 , a case certified on negligence, caused by systemic – well beyond individual – abuse – which has some analogy to this case.

Rumley is an example of a circumstance where there cannot effectively be individual cases, but the abuse – in this case, delay – is so manifest that a broad procedural remedy must be found. [ 18 ] The other prime preliminary argument made by Alberta is about the nature of the requirement of systemic delay before Alberta can be found liable [10] , as addressed in the Court’s Order of October 15, 2019, in the following words: “The … clam as against HMQ is limited to allegations of systemic breach with respect to the bail system, as distinct from operational or management failures”.

At AB para 4, Alberta argues the delay may be due to the “arresting law enforcement agency … not [having] done what is necessary to allow a hearing to take place.” The Plaintiffs argue (as Alberta notes in AB paras 8 and 13) that this amounts to a breakdown in the bail system that Alberta, which has the overall responsibility for administering the bail system in the Province, has a duty to make certain doesn’t happen. Alberta seems to acknowledge as much (AB para 38 and the first sentence of para 47).

It will be for the common issues justice to determine if the failures to meet s. 503 are systemic failures on the part of Alberta, as opposed to operational or management failures. It is thus the common issues justice who will be required, as Alberta argues at AB para 21, to “guard against an impermissible dressing up of the operational or management failures as a ‘systemic’ issue”. [ 19 ] Alberta argued that the Minister of Justice has no authority to micromanage the police, whose obligation is to get an accused a bail hearing under s. 503 within 24 hours.

The ability of the Minister under the Police Act was also the subject of much discussion, including alleged misconduct of police in Lethbridge and the intervention of the Minister, which caused the Court to pose (somewhat inarticulately) the following thoughts (TR12 – 43/39 - 44/6): The point is that the Minister has power of supervision over the police forces … so if there’s a problem at the police force that they’re not doing things, the Minister can interject.

Clearly, whether the Minister has the right in the context of an … ‘overarching’ system of bail across the Province to interject, not on a case-by-case basis, but on a systemic basis [is the question] [11] . And so, I think that’s the point that the Minister has quite a bit of authority to get in there and systemically, at least, tell the police what they need to do in this context.

What follows (TR12 – 44/19 et seq) is a discussion about the comparison to the power of the Ministry in the context of abuse ofadministrative segregation in Ontario (Francis v. Ontario, 2020 ONSC 1644 (Francis ONSC) and Francis v. Ontario, 2021 ONCA 197(Francis CA)) and my recent decision in Alberta in Robinson – where, unsurprisingly, the parties take different points of view. [20] Alberta also argued (AB paras 23-8) that its admission that “There is a systemic problem with Alberta’ bail system” in thecontext of Mr.

Reilly’s application for a stay of the criminal prosecution against him due to a breach of Code s. 503, is not transferable toan admission of liability in this class proceeding. [21] Furthermore, Alberta rejected (AB para 29) the Plaintiffs’ claims that the Alberta Court of Appeal gave any binding ruling onbreach of s. 503 as entitling damages for breach of the Charter. [22] Much of the AB (paras 37-126) was dedicated to the description of the bail system in Alberta (under the heading of “RelevantFacts”, and several sub-headings).

While useful as background and understanding the system, and thus likely relevant for the commonissues justice, it does little, if anything, to assist in determining certification. C.

Issues Argued [23] Rather than further describe the issues argued by each party, I will consider them together by issue. [24] Alberta argues in the AB and in oral argument and with great emphasis that this action should not be certified becausesubstantially the same claim was not certified in Ontario: Cirillo v Ontario, 2019 ONSC 3066 (Cirillo ONSC), subsequently upheld afterthe hearing herein: 2021 ONCA 353 (Cirillo ONCA), (see AB paras 131-9).[12] In Cirillo the same causes of action as at Bar –negligence and Charter breach – were rejected.

However, in Cirillo, it was the certification specifically of claims involving “operational,management, administration, supervision, resourcing and/or control” by Ontario in the bail process that was denied (AB para 131),whereas at Bar those elements have been specifically excluded and only systemic breaches are alleged. The Plaintiffs address this at,inter alia TR11 – 33/13-18 & 33-34/23, and TR12 51/3-36. They argue that in Cirillo: ... what the plaintiffs in that case were pleading were policy issues and policy questions are not judiciable. ... they were not talking abouthow bail operates.

They were engaged in a full scale attack on the criminal justice system in Ontario.... We’ve been focussing on theconstitutional imperative[13] that’s placed on the Government of Alberta to get accused persons in front of a justice within 24 hours, andthat overarching responsibility lies with the Crown. Justice Morgan doesn’t deal with that in his analysis of the issue of resourcing. The Plaintiffs further explain their view of how the issue of resourcing arises in this case, relying on Just[14].

In essence, having madethe decision to administer a bail system – in the case at Bar, Crown Bail – the government has a duty to do allocate the resourcesnecessary to do so properly, non-negligently, and in accordance with the Charter.

This is the issue the Plaintiffs say that “Justice Morgandoes not touch on… in his analysis at all, and that is why Cirillo is wrong”. [25] Without finding that Cirillo was wrong, it is to be remembered that these policy issues are not just broad considerations (likethose described at AB paras 159-60), but arise in the context of a public duty that is specifically mandated by statute (s. 503 of the Code),owed by what is alleged by the Plaintiffs to be agents of and indivisible from Alberta.

While a breach of statute does not automaticallygive rise to a civil action (AB para 168-9), whether a breach of statute or public duty constitutes a private law duty sufficient for asystemic negligence claim in this class action (see AB paras 165-6) is ultimately for the common issues trial justice to determine. Cirillowas focused on a different aspect of the issue (ie., the broad allocation of resources “generally” “devoted to the criminal justicesystem”)[15], rather than those specifically required to be allocated to this statutory provision, and is thus distinguishable.

As to theissues of whether the Plaintiffs can establish liability against Alberta on such issues as proximity (AB paras 156 & 161-7), I also leavethat substantive matter to the common issues trial justice to determine. At this stage, I find that there is not a credible basis to concludethat the claims of the Plaintiffs are “bound to fail”. 1. Causes of Action [26] To be certified under s. 5(1) of the Act, the pleadings must disclose a cause of action. The Plaintiffs plead Charter breachesand systemic negligence.

Alberta admits (AS para 13) that breach of Code s. 503 “can rise to the level of a breach of Charter right”, butfurther argues (TR12 – 23/38-24/26 & 25/21-27) that s. 503 of the Code does not impose an absolute strict liability duty, although it mayinform the analysis or standard applicable to another claim, referencing R v Saskatchewan Wheat Pool (SCC), [1983] 1SCR 205. [27] Alberta also concedes (AB paras 141 & 203) that the Plaintiffs have “met the low bar of disclosing a cause of action relatingto sections 7, 9, 11(d), 11(

e) and 12 of the Charter”, but rejects the claim under s. 10(c) (inter alia, AB paras 204-5), the latter of whichthe Plaintiffs concede, so the remaining causes of action for alleged Charter breach remain for certification. [28] As to negligence, Alberta argues (inter alia, AB paras 152 & 154) that those claims are bound to fail (PRB paras 26-7, assummarized in AB para 200) because they seek “to challenge core policy decisions, including funding decisions, made in Alberta …[that] are non-judiciable and do not establish a duty of care”.

Alberta further argues that there is no necessary proximity between Albertaand the Class; no statutory duty of care (para 201); and that the claim is a “legally untenable position that Alberta is ultimatelyresponsible for … the bail system….”.

However, as seen Nelson v Marchi, 2021 SCC 41 – a decision issued after the hearing in the caseat Bar – it is for Alberta to prove, on a full record, after certification, that it has “met its burden that [the Plaintiffs seek] to challenge acore policy decision immune from [systemic] negligence liability” (at para 86, referencing Just). [29] The Plaintiffs note Alberta’s reliance on Cirillo at the certification level (Cirillo SC), affirmed in the result in the Court ofAppeal (Cirillo CA).

They assert, however (PRB paras 27-35) that, in addition to not being binding on this Court, Cirillo merely “standsfor no more than the proposition that an overly-broad and improperly asserted claim in negligence which focuses on policy decisions ofthe Crown is untenable”. Moreover, the Plaintiffs assert that the certification finding in Cirillo SC “focuses on the Crown in its capacityas government, wielding its executive authority to determine the allocation and the adequacy of resources devoted to the criminal justice

system” (at para 20). In Cirillo SC, Morgan J. concluded (at para 27) that this would “start to resemble the task of a public enquiry”. ThePlaintiffs argue (PRB para 28) that, contrary to Alberta’s position, the claim in Cirillo “is not at all ‘eerily similar’ to the allegations ofthe Plaintiffs” here, which relate to “systemic negligence in the Crown bail system”, including failure to properly staff the Crown Bailprosecutors office and provide effective oversight of the system.

In this regard the Plaintiffs refer to passages of the Bail HearingsReference before the former Chief Justice of this Court, including system failures of the type recognized in Just, on which basis, in oralargument, the Plaintiffs assert (TR11 – 20/15-29) that “the bail system has to be resourced to meet the statutory and policy objective” –thus making resourcing a “part of the negligence claim”.

The Plaintiffs noted too Alberta’s reliance on Phaneuf, but argued that therewas no finding there of breach of the Code, and, in the case at Bar, underfunding is pleaded as (PRB para 35): [A] factual component of Alberta’s overall operational failure in not rendering its bail system functional.

In other words, the claim inPhaneuf was “I am suing because I believe the government should have spent more money on this system”, whereas the claim herein is“I am suing because the government did not operate the system properly, including not spending enough money for it to comply with theCharter and the Criminal Code, as Alberta must do”. [30] The Plaintiffs also rely (paras 36-9) on Francis CA, in the context of administrative segregation, which I dealt with inRobinson, which the Plaintiffs argue has “direct parallels”, adding that the “Police Act makes it the Crown’s responsibility to ensure thatthe police cog[16] in the bail machinery is functioning properly.

The proximity and foreseeability are plainly evident in the Plaintiffs’claim as pleaded”[17]. Counsel for the Plaintiffs pointed out, in oral argument (TR12 – 56/30-57/18), the Ministerial oversight of thepolice and “ultimate responsibility” for the administration of justice, as set out in sections 2 and 3 of the Police Act – in particular s. 2(2):“Notwithstanding anything in this Act, all police services and police officers shall act under the ... Minister of Justice... in respect ofmatters concerning the administration of justice”.

The Plaintiffs contend that the nature of Alberta’s oversight responsibility in thisregard is different from its role in the investigation of crimes and the day-to-day operations of the police, for which the police areresponsible, as seen in the cases of R v Shirose, (SCC), [1999] 1 S.C.R. 565 and my decision in R v Szcerba, 2002ABQB 660, relied upon by the Alberta (AB paras 175-81). I do not find at this certification stage (see AB para 167), that claims made inrespect of such statutory duties as under the Police Act and other Provincial legislation are “doomed to fail”.

Rather, it will be for thecommon issues trial justice to determine if they succeed or fail. [31] The Plaintiffs support this result by asserting (PRB para 40, relying on Johnson v Ontario, 2016 ONSC 5314 at para 35) thatwhere it is not “plain and obvious that the Plaintiffs’ claim in systemic negligence cannot possibly succeed… the claim ought to beallowed to proceed to be tested on its merits” before the common issues justice.

I agree. [32] In the result, I find that the issue of a cause of action for systemic negligence should be considered, along with Charterbreaches alleged, on a full evidential and argued record[18], before the common issues justice. [33] As to Alberta’s reliance on the statutory immunity under s. 3(

d) of the Proceedings Against the Crown Act, S.A. 2000, c. P-25, to challenge the cause of action of systemic negligence (PRB, para 41), I agree with the Plaintiffs that “[t]here is no authority tosuggest that the operation of he Crown Bail system constitutes a law enforcement activity that dooms this claim to failure.” [34] As I have also tried to make clear, I too agree with the Plaintiffs (PRB paras 42-4) that, at the certification stage at least,causation is not a basis upon which to determine whether a cause of action against Alberta for systemic negligence is doomed to fail.

Rather, where the Plaintiffs have pleaded some basis in fact for the claim, it is the failure of Alberta to meet the mandatory provisions ofs. 503 of the Code that is actionable, regardless of the cause, or who is responsible for it in a given case. 2. Class of Two or More [35] The named Plaintiffs constitute 2 persons, which is the minimum required.

The Plaintiffs advise that there are many morepotential plaintiffs; indeed, the Plaintiffs point to data (TR11 – 31/31-36) from Alberta that “there [are] almost 17,000 people fromMarch of 2018 to June of 2020 [who] were subject to overholds, approximately 12 percent of arrestees”.

This is effectively admitted byAlberta’s AB paras 3 and 142 (with the exception/caveat referenced below regarding argument by Alberta to the effect that “the class canonly include persons who have had their criminal charges fully dealt with (including appeals) by the certification date” (AB para 144).The Plaintiffs argue that Alberta’s caveat in this regard is not necessary, relying on the class definition (TR11 40/6-17), a position withwhich I agree. 3. Common Issues [36] The argument over the proposed common issues took up a substantial portion of the Briefs (especially Alberta’

s) and oralarguments of the parties. a. The Plaintiffs’ Submissions [37] The Plaintiffs[19] took a very broad approach and argued (PRB para 45) that the “Plaintiffs have adduced some basis in factto support the common issues … arising from the causes of action for breach” of the Charter and systemic negligence.

They elaboratedorally (TR11 43/17-22) that “if you accept the Plaintiffs’ argument that the causes of action are not challenges to policy decisions takenby [Alberta], but instead relate to operational negligence as well as the Charter breaches, then all of these … proposed common issues …are certifiable”. [38] The Plaintiffs also argue (PRB paras 45-49), based on R v Jordan, 2016 SCC 27, that, when a time limit is legally imposed bya statute or when the common law provides a deadline (presumably statutory, as here, or judicially imposed, as in Jordan) and the timelimit is missed in the criminal trial process, “the presumption is that a Charter breach occurred.

The onus then shifts to the Crown tojustify the breach….”. The Plaintiffs expanded on this in oral argument, arguing that “close” doesn’t cut it when time limits aremandatory: TR11 – 18/34-19/20. Moreover, they argue that the “Crown” (whether police or prosecutors) is indivisible, and the questionas to which was the cause of the delay is irrelevant to certification.

Reference is also made by the Plaintiffs (PRB paras 56-7 and TR11 –46/9-28) to Athey v Leonati, (SCC), [1996] 3 SCR 458, and Clements v Clements, 2012 SCC 32 for the propositionthat all that is necessary is to show a cause that materially contributed to, not was the only cause for, the risk of injury, and to my similar

analysis in Windsor v C.P., 2006 ABQB 348 at para 106, upheld at 2007 ABCA 294. Additionally, and finally, all such causes of delayin the 24 hour requirement, the Plaintiffs argue (PRB paras 51-3, relying on: Francis CA, at paras 106-7; Rumley; and Cloud v Canada(2004), O.R. (3d) 402 (C.A.)) are, absent evidence by Alberta to the contrary, common issues for which the “merits of these legalarguments will be determined at a common issues trial, on a full evidentiary record”. b.

Alberta’s Submissions [39] Alberta, however, took a very detailed approach, which I will analyze generically here and then individually in the nextsection. [40] Alberta argued (AB paras 211-214 & 217, and exhaustively directly or indirectly elsewhere) that the issues were not common,but “collapse under the weight of individuality”[20].

I reject this argument, as I have found that the only allegation in this case, at thehighest level, is that the Crown Bail system systematically and negligently failed to bring all the applicable class members before ahearing officer within 24 hours. [41] Alberta also argued (AB para 283-91 and admittedly “repeatedly stated throughout” its brief) that “not all necessary partiesare named in this action”. However, the Court had already determined on October 15, 2019 that no other parties would be added and thusother persons who might have had some responsibility for the delay were excluded.

Moreover, the class definition eliminates all othercauses. The Plaintiffs will succeed or fail only as against Alberta. c. Common Issues Individually Analyzed [42] I will approach arguments as to individual proposed common issues by reference to their proposed number[21].

i) Duty of Care CI#1 [43] With respect to CI#1 individually – A long argument (AB paras 218-232) is advanced by Alberta, including, in

summary,inter alia (that which I have not otherwise dealt with herein) AB, para 219: There is no basis in fact that a single aspect of the bail processcaused delays, where there were many cases with no undue delays. [44] The Court’s Response[22]: with respect to cases in which there were no undue delays, the wording of the CI#1 issue expresslymakes it clear that it only references those cases where delays are beyond 24 hours.

With respect to the question of whether any singleaspect of the bail process caused the delay in particular cases, I reiterate that the case at Bar is framed as a claim for systemic negligencein the management of the Crown Bail program overall. [45] At AB para 220 – Alberta argues that the Plaintiffs’ claims are narrowed to systemic issues and exclude individual operationalor management issues.

The Court’s Response: while individual operational or management issues are excluded, CI#1 quite clearlyrelates only to issues that provide some basis in fact for collective/systemic negligence. [46] AB paras 221-9 continues to argue that “each and every other bail system participant… may cause or materially contribute todelays” but none are under the control or supervision of Alberta, and therefore each case of delay must be examined individually.

TheCourt’s Response: to repeat, those participants and their particular roles, if any, in delays beyond the 24 hours are clearly excluded as aresult of my October 15, 2019 Order, with only systemic considerations, for which Alberta is responsible being at issue. Thus, individualanalysis is not necessary, although some examples of individual cases (contrary to or in addition to what is argued in AB, paras 224-6)may provide some evidence at the common issues trial of systemic issues.

Moreover, some of the matters listed in AB paras 222-9[23]may have a systemic component in a broader context than resulting in individual cases – e.g., resources and infrastructure questions suchas some aspects of what is described in AB paras 222(b), (e), (g), (

h) and (

i) and 223 (a), and(b). [47] CI#1 reads: Did Alberta’s operation, management, administration, supervision, resourcing and or control of the judicialinterim release process (bail) in Alberta cause or materially contribute to systemic delays[24] in bail hearings routinely taking place morethan 24 hours after the Class Members’ arrest?[25] [48] Alberta’s position (AB, paras 211-3, relying on Spring v Goodyear Canada Inc., 2020 ABQB 253 at para 135, Pasian vAcademic Clinician’s Management Services, 2013 ONSC 7787 also at para 135, and Williams v Mutual Life Assurance Company(2000), (ON SC), 51 OR (3d) 54 (Ont SCJ) at para 39, is that the Plaintiffs must demonstrate that there is some basisin fact that the proposed common issues exist, and that the common issue can be answered across the entire class, noting that a commonissue cannot be dependent on findings of fact which have to be made with respect to each individual class member.

I will briefly examinethose arguments, almost completely absent any Plaintiffs’ response on individual common issues (as I interpret it, only the broadstatements in the PRB, paras 42-4, as it relates to the allegations of systemic negligence). I will address Charter issues below. [49] Alberta argues (AB paras 214-7) that proposed CI#1 to 7 must fail because, first, they relate to the Plaintiffs’ negligenceclaim, which Alberta says is bound to fail. I reject this argument, because I am not satisfied that cause of action framed as it is on asystemic basis, is bound to fail.

Secondly, they argue (see also AB para 314) that these issues are “phrased at the highest level ofabstraction”, “in an attempt to establish commonality”, but “collapse under the weight of individuality”. I find that the answer to thissubmission is substantive and not procedural, and as such, it is the work for the common issues justice, based on a full record, shouldpass the relatively low bar preliminary test at the certification level, pending evidence at a common issues trial. CI#3 [50] AB para 233 says, in effect, that CI#3 is no different in substance than CI#1.

The Court’s Response: CI#1 breaks down anysystemic negligence alleged breaches into particular potential causes, and CI#3 seems to focus on the result of the findings in CI#1. Inthat context they may be separate. I believe that this should be reconsidered and thus I direct Counsel to work together and re-write CI#1

and CI#3 to combine them or, at least, to have materially different sub-parts to them (e.g., “a” and “b”). CI#4 [ 51 ] AB paras 238-40 says that CI#4 is a legal question and that even an affirmative answer would not be determinative as it leaves out “other bail system stakeholders”, for which, at AB para 170 et seq , Alberta argues it is not responsible [26] . The Court’s Response: As to the extent of Alberta’s responsibility, that is a matter of substance, not a threshold procedural issue for certification, so I leave that to the common issues trial justice, on a full record.

That said, at least two further points arise. First, no authority has been provided by Alberta that a relevant legal question cannot be a common issue, and basic logic would seem to argue to the contrary. Second, the fact that the Plaintiffs want to focus on only one of the “bail system stakeholders” (it is actually more than that – Alberta, indivisible with both police and prosecutors), doesn’t make it an inappropriate common issue. It just means that the Plaintiffs have not chosen to raise common issues with other “bail system stakeholders”. In the result, I do not find these arguments valid.

CI#5 & #7 [ 52 ] AB para 234 takes issue with the statement in CI#5 & #7 that Alberta is “holding an accused” whereas Alberta asserts that until the police bring an accused before the Court for a bail hearing, it is the police who are “holding” an accused. The Court’s Response: This is a “nuanced issue” in that the each of these CIs refers directly or indirectly to Alberta or its “agents”. There is a specific common issue - CI#4 - which asks for a determination as to whether police or prosecutors are Alberta’s agents, so CI#5 & #7 may be considered in that context, or in a more general meaning of “agency”.

I believe that this issue could be addressed with better wording, as Counsel may discuss after this Decision, with the assistance to the Case Management Justice if appropriate, but I will otherwise leave them as they are at this time. CI#6 & #7 [ 53 ] AB para 236 argues that, as framed, these CIs require “a reasonable assessment of each class member’s individual circumstances” and are not common; similarly, AB para 237, in relation to CI#7 claims that as it relates to each case, there is a requirement of “a determination of what was the cause of why ( sic ) class members’ hearings were delayed”.

The Court’s Response: Without intending to interfere with or limit the common issues justice’s findings, and for reasons relating to my discussions in this Decision on individual considerations, I do not agree with Alberta’s submissions in this regard.

As the frame of reference is systemic issues, individual considerations are not relevant at this stage – although, to the extent that the common issues justice determines liability in favour of the Plaintiffs, some individual assessment of damages may be subsequently required and such questions may need to be answered at that time, as prescribed by the common issues trial justice. CI#8 & #9 [ 54 ] AB para 241 argues that these questions are phrased “in the most abstract manner possible in an attempt to show commonality”. The Court’s Response: This is a repeated, but unclear, allegation.

Nevertheless, the Court is open to Counsel agreeing on less “abstract” wording, but absent agreement, I will allow these CIs to forward for consideration by the common issues justice, as currently drafted. CI#8 & #9 [ 55 ] AB paras 242-54 argue, relying on Cirillo , that any such breaches of rights must be assessed on an individual basis for each alleged Charter breach, and relying on Thorburn v British Columbia (Public Safety and Solicitor General) , 2013 BCCA 480 at para 39 , that there is a reasonableness requirement.

The Court’s Response: For reasons articulated at other places in this Decision, I reject this argument as the claim is limited to broad systemic issues, not individual issues at this stage, although, as noted above in relation to CI#6 & #7, they may become relevant at a later individual damages assessment stage of the proceedings before the common issues justice. I have addressed Cirillo above and will not further plow that ground in this context.

As to any requirement of a reasonableness consideration for any Charter breaches, per Thorburn , this again raises the alleged need for individual consideration, which I have rejected in this systemic case.

On the other issues as to reasonableness raised in Thorburn , I will leave that for determination on a full record before the common issues justice - noting that Alberta (AB paras 251-2, referencing Good ) acknowledges that certification can follow on Charter cases where there is a “common thread affecting all class members”. ii) Charter Breaches [ 56 ] Alberta raises other issues regarding the proposed Charter CIs in AB paras 254-269. Without going through all of them individually, they raise matters that:

a) have been abandoned (ie. s.10(

c) of the Charter );

b) I have already rejected in this case – ie., I have determined that this is a systemic, not individual, liability claim and thus have found no need for individual determinations before certification or afterwards, before any assessment of damages, if liability is found by the common issues justice;

c) are inapplicable in the context of bail or add nothing of substance to the debate – e.g., as to the substantive presumption of innocence, discussed at AB paras 262-4, the Supreme Court has made it clear that presumption has no direct relationship to bail, and the substantive right to “reasonable” bail, most often has no relationship to the statutory time mandate;

d) state the obvious – e.g., AB para 264, that the delay must be systematically attributed to Alberta;

e) or are best determined by the common issues justice – e.g., AB paras 257 & 266-9, whether bail hearings conducted after the statutory mandate of 24 hours; or

f) may constitute arbitrary detention or cruel and unusual treatment (in a systemic context), until conducted. [ 57 ] To argue that damages are subsidiary to a finding of liability and cannot support certification and must be individually assessed if liability is found – AB paras 270-1 - are trite truisms, the latter in the absence of aggregate damages. d. Results: Individual Common Issues [ 58 ] In the result of these arguments and my findings, I accept as valid common issue CI#1 as quoted above and those common issues that follow, as set out below, with my directions in italics.

That being said, the Court has no issue with Counsel agreeing to alternative wording to that suggested herein, after specific approval when the Certification Order is perfected before execution by the Court. [ 59 ] The remaining common issues, with my directions in italics, are as follows: CI#2: If the answer to question #1 is yes, how?

CI#3: [ Court’s Response: Directed to be reconsidered by Counsel and potentially re-written with CI#1. ] Did the systemic delays in the judicial interim release process cause or materially contribute to the failure of the Class Members to be brought before a justice for a bail hearing within 24 hours of arrest? CI#4: Are the municipal police services in Alberta and Crown prosecutors, agents of the Crown, for the purposes of s. 5(1) of the Proceedings Against the Crown Act , S.A. 2000, c.

P-25, in respect of the operation, management, administration, supervision, resourcing, and/or control of the bail hearing regime in Alberta? CI#5: [ Court’s Response: Counsel are directed to re-consider wording. ] By holding the Class Members for more than 24 hours after arrest without a bail hearing, when a justice was otherwise available, did Alberta, or any of its agents, contravene s. 503(1) of the Criminal Code , R.S.C. 1985, c. C-46 ( Criminal Code or Code )?

CI#6: Did Alberta owe a duty of care to the Class to provide them with a bail hearing without reasonable delay, and in any event, after no longer than 24 hours from arrest, if a justice was available, or as soon as possible thereafter? CI#7: If the answer to question #6 is yes, did Alberta, or any of its agents, breach this duty of care by holding the Class Members for more than 24 hours after arrest without a bail hearing? CI#8: [ Charter s. 10(

c) is struck for the reasons set out above. ] Did Alberta or any of its agents, through the operation, management, administration, supervision, resourcing, and/or control of the bail hearing regime in Alberta, infringe upon the Class Members’ rights under ss. 7 , 9 , 11(d) , 11(

e) or 12 of the Canadian Charter of Rights and Freedoms (the “ Charter ”) [27] ? If so, how? CI#9: If the answer to question #8 is yes, were any or all of the infringements demonstrably justified in a free and democratic society in accordance with s. 1 of the Charter ? CI#10: If the answer to question #8 is yes and the answer to question #9 is no, is the class entitled to claim damages under s. 24(1) of the Charter ? CI#11: If the answer to questions #7 and #10 are yes, can the Court make an aggregate assessment of damages?

CI#12: If Alberta committed a breach of any of its legal obligations to the Class, does the Crown’s conduct justify an award of punitive damages? CI#13: If the answer to question #12 is yes, in what amount? 4.

Preferable Procedure [ 60 ] Alberta argues (AB paras 6, 8, 13 and 273-82) that a class proceeding is not preferable because it would require a “determination as to the cause and responsibility for those delays, which can only occur after a lengthy and detailed review of what happened in each case”, and “individual issues of class members would dominate and overwhelm … the action, … [because] … it requires an examination of the individual circumstances of each individual’s bail hearing” (AB para 276).

Once again, I find that the limit of the potential liability against Alberta, by the Court’s Order of October 15, 2019, to systemic causes of delay is, in the case at Bar, the answer to what is a commonly repeated defence objection of individualism in all class proceedings, an argument now taken up by Alberta in this case. On the contrary, for reasons articulated herein, I conclude and find that this case meets the preferable procedure requirement of s. 5(2) of the Act . 5. Identifiable Class and Suitable Representative Plaintiff [ 61 ] Alberta concedes this at AB para 142, with a “few caveats”.

As noted in AB para 142, the Amended Notice of Application excludes bail hearings conducted by federal prosecutors, whereas the Plaintiffs’ submissions include these.

The Court’s Response: That issue is readily resolved, because it is the Amended Notice of Application that binds (and it excludes Federal prosecutions), not the submissions of Alberta. [ 62 ] Under the class definition in the TASC, AB argues (AB para 144) that, additionally, class members can only be those who had not received a prison sentence, or a sentence based on time served, as determined up to the appeal level, prior to the certification date.

The Court’s Response: The answer to this is addressed in the PRB at para 7, which I accept: It will be sufficient if a class member meets the definition if they have been sentenced at trial by the end of the opt-out period. If the parties feel further clarification is required, they can provide wording in the Certification Order.

[ 63 ] Alberta asserts (AB paras 145-6), relying upon the decision of a former member of this Court, in T.L. v Alberta (Director of Child Welfare) , 2006 ABQB 104 at para 34 , that the PRP, MS, must be prepared to disclose his name to be the RP. The Court’s Response: Although s. 20(6)(a) (and s. 5(1) (e)) of the Act does not say that anonymization of the name is prohibited, even the discretionary, not mandatory wording of s.20(6)(a) (by the qualification wording of the Court “otherwise ordering”), I find not to be determinative. A name could still be a pseudonym, as the Plaintiffs noted at paras 23-5 of the PRB.

The T.L. case did , however, proceed with an anonymized representative plaintiff (as explained by Counsel for the Plaintiffs, in 2009 ABQB 96 at para 26 , when the notice was approved - see TR12 – 52/29-37). Further, while there does appear to be some logic to those reasons, there are other considerations (e.g., including alleged victims of the original substantive offence being identified) that may apply.

Moreover, as the Plaintiffs argue (PRB para 21), s. 20(6) of the Act contains a discretionary requirement for name and address, but furthermore, through the October 15, 2019 Order, the Court specifically ordered “otherwise” in the language of s. 20(6) .

Finally, on this point, as T.L. is not binding on me, I will leave any remaining issues in this regard for such further consideration that may be given by the common issues justice to determine on more specific current evidence and argument. [ 64 ] The only complaint by Alberta as to the litigation plan (paras 147 & 292) is that “it does not provide for how the Court would determine what caused a person’s bail hearing to be delayed”.

The Court’s Response: I reject this complaint because I have found that, in that the action is only for systemic, not individual, causes of delay, it is the fact of delay beyond 24 hours, not the individual causes or who caused the delay that is relevant to certification. [ 65 ] The claim of Alberta that some members of the class (see PRB paras 58-60) “would prefer to have ‘control’ over their own proceedings” through individual claims is completely without evidentiary support or merit. III.

Conclusion [ 66 ] In conclusion, I certify this action as a class proceeding with the definition of the class and other terms as sought the Plaintiffs, with the following exceptions and explanations mentioned above, which, in

summary, include the following: - The dates of the start and termination of the class period may be adjusted before, and contained within, the Certification Order by agreement of Counsel approved, on ruled on, by the Case Management Justice; - some of the common issues approved in principle may have their wording modified by the agreement of Counsel before the Certification Order; - MS is appointed Representative Plaintiff, notwithstanding the use of a Court approved pseudonym. Heard on the 12 th day of May, 2021. Dated at the City of Calgary, Alberta this 26 th day of September, 2022. J.D. Rooke A.C.J.C.Q.B.A.

Appearances: M.L. Waddell & O. Phillips for the Plaintiffs L. Brasil, G.A Meikle, QC & J. Dube for the Defendant