Legal Aid hits bail hearing milestone

Alberta Legal Aid has hit a milestone with the holding of more than 100,000 bail hearings, a move that came as a result of an RCMP shooting in St. Albert.

This week Alberta Legal Aid announced it had held 120,000 bail hearings for Albertans in custody since 2018, which is when the Alberta bail system saw substantial changes.

“I don't think there's any doubt it's a major change,” said Steven Penny, professor in the Faculty of Law at the University of Alberta.

Previous to the changes launched in 2018, police officers used to regularly conduct bail hearings, but after a review of the bail system, it was deemed more appropriate to have Crown prosecutors conduct the hearings.

Once Crown prosecutors were involved, the accused person then needed fair representation in the hearing, which is when Legal Aid Alberta was tasked with representing those accused in their hearings.

Lori MacKay, a justice of the peace bail duty counsel for Legal Aid Alberta, said after it was determined Crown prosecutors would be involved, it raised concerns from the defence side of the balance of justice.

A bail review was conducted and released in 2016 — done as a result of the death of Const. David Wynn, a St. Albert RCMP officer who was shot and killed on duty by a man, Shawn Rehn, who was out on bail at the time. It was a police officer who conducted Rehn’s bail hearing at the time, however it was found during a fatality inquiry that the officer did nothing wrong during the hearing.

The 2015 event resulted in a closer look at the bail system in the province and it was found that Alberta was the only jurisdiction where police assumed the role of prosecutor at virtually all first appearances. It was recommended that prosecutors, and eventually defence counsel, get involved in the process.

Bail is important to the criminal justice system, Penny said, because an accused is assumed to be innocent of the offences they are charged with until proven guilty.

“That principle then places a heavy burden on the state or the Crown to justify any infringement on a person's liberty before they're actually tried and convicted of the offence,” Penny said.

The justice system needs to balance the fact that the accused may have committed the offence or another related offence and may present a risk to the public, Penny said, with the principle that an accused is innocent until proven guilty. There is a risk that an accused may not show up for their trial or poses a flight risk.

“There's a risk that they will commit, you know, fairly serious crimes while they're awaiting their trials, and so the bail system is designed to balance those two interests,” Penny said.

It can have a significant impact on an accused’s life if they are detained before their trail, MacKay said.

Bail is a crucial stage of a person’s experience with the criminal justice system, MacKay said, and if a person ends up detained and in custody, they will not be able to talk with their lawyer on a free and unrestricted bias, making it incredibly difficult for them to prepare for trial.

The accused might be the only person who is able to track down witnesses for the trial and this may be hampered by their detainment, MacKay said.

“Their earning capacity is cut off, they may lose their job, their family may suffer extreme economic hardship. Not only that, while they're in custody, they will not be able to see their loved ones. They have limited access to phones,” MacKay said.

If a person has any health issues, their access to health care is limited while in custody, MacKay said, and access to mental-health care is limited or non-existent.

“There are real, very severe consequences to somebody not being able to be out to deal with their trial, and that's all before being found guilty,” MacKay said.

Since the program’s inception Alberta Legal Aid has handled more than 95 per cent of the bail hearings in the province.

“It's really an invaluable service and it's one that I’m very happy to be a part of,” MacKay said.