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2025 ABKB 210

This case was an appeal before the Court of King’s Bench.  The Appellant was convicted of assault causing bodily harm, resisting arrest, dangerous operation of a motor vehicle, impaired operation of a motor vehicle, and failure to provide a breath sample without reasonable excuse. The trial judge sentenced the Appellant to a 16-month Conditional Sentence Order, which was a significantly reduced sentence due to the trial judge finding that the Leduc RCMP had violated the Appellant’s Charter Rights. The Appellant argues that the sentence should have been stayed altogether due to the violation. 

The Appellant was a middle-aged professional who lives in B.C. and was visiting Leduc, AB on December 15, 2021, when the offences occurred. The Appellant had rolled through a stop sign and changed lanes without signaling, and an RCMP officer pulled him over. The Appellant claimed he didn’t have any documentation in the vehicle, refused to offer a breath sample, and attempted to drive away. An RCMP officer was clinging to the vehicle when he accelerated, and was dragged more than 200 metres at speeds of up to 45km/hr. The officer survived, having suffered severe bruising. The Appellant was arrested at 11:58 PM and taken into custody at the Leduc RCMP detachment.

The Appellant was given a bail hearing at 1:30 PM the following day and was ordered released on a $500 cash bail by a Justice of the Peace. The cash bail was appropriate in these circumstances, as the Appellant was not a resident of Alberta. 

The Appellant had the $500 to pay for bail in his bank account. However, the Leduc RCMP detachment only accepted payment in cash. Though those in custody were able to use the phone to call someone to deliver the money, those that couldn’t pay cash had to wait to be transported to Edmonton Remand Centre. He was not able to be transferred to Edmonton Remand for an additional 22 hours, resulting in an “overholding” or arbitrary detention.

The Appellant testified that he was initially asked if he had anyone to call, and said he needed to think about it. The Appellant further testified that he did think of friends that may be able to help him, and he asked to use the phone at least eight times, each time refused by the officer guarding him, the Appellant believed this to be an intentional punishment for his actions.

The officer testified that he did not recall the Appellant ever asking to make a phone call. When shown records from the Leduc RCMP showing that the Appellant had requested a phone call three times, the officer denied knowledge of those requests. The officer denied having any ill will towards the Appellant. The trial judge found the officer more credible than the Appellant and preferred his testimony where it differed from the Appellant’s. 

Despite believing the police’s testimony, the trial judge found there was no excuse for the RCMP effectively “losing track” of a prisoner. The trial judge considered this a significant issue, the Leduc RCMP detachment not accepting electronic payments has resulted in overholding in the past, though there was no evidence demonstrating whether 22 hours was a particularly long delay, this is a systematic failure to properly release people on bail. The trial judge found no evidence suggesting the RCMP was aware of the issue and considered this to be negligence rather than an intentional overholding.

The trial judge found that the Appellant’s s. 9 Charter right to not be arbitrarily detained had been violated, that proper protection of those rights would require police or remand authorities to accept credit cards, debit cards, and e-transfer as well as cash. If that is not possible, and a person in custody is only able to pay bail with a card, they must be transferred to a Remand Centre that can accept payment within a reasonable time. If there is a “miscommunication” about the accused person’s ability to pay bail such as in this case, steps must be taken to have the accused appear before a judicial officer to address the issue. 

The failure of the RCMP to do any of the above resulted in a s.9 Charter rights breach, which was aggravated by the RCMP’s inability to explain why the Appellant’s three logged requests to use the phone had been denied. 

Though the trial judge found the overholding to be a serious Charter rights breach, he also considered the offence committed by the Appellant that endangered the life of a police officer to be serious. In assessing whether a stay of the charges was appropriate, the trial judge considered the three-step Babos test, which was clarified by the Supreme Court of Canada in R v Babos, 2014 SCC 16. 

The first step considers whether there was a prejudice to trial fairness or judicial integrity. The trial judge found this step met in this case, as there was serious overholding of the Appellant, and to conduct a trial after the Appellant had been mistreated by state agents would condone unfair behaviour. 

The second step considers whether any lesser remedy than a full stay of the charges would be appropriate. As there was no evidence that this overholding issue was widespread, and the trial judge had accepted the RCMP to have been unaware of this issue rather than indifferent, the trial judge considered it appropriate to reduce the sentence rather than give a stay. This decision considered the dangerous nature of the Appellant’s offences. 

The third step is to balance the competing interests at play, the trial judge considered that a sentence reduction was the appropriate remedy, but considering the fact that the RCMP is only having this issue of overholding brought up for the first time now, the trial judge believed that it would be unlikely for these overholding issues to continue. The trial judge cites R v Rashid, 2010 ONCA 591, which held that clear judicial recognition that a policy or practice was leading to Charter rights breaches can adequately protect Charter rights. 

The Appellant brings up R v Reilly, 2018 ABPC 85, 2019 ABCA 212, 2020 SCC 27, which was a series of decisions regarding overholding during the bail process in which the Supreme Court of Canada upheld the Provincial Court of Alberta’s decision to grant a stay of charges. The stay was granted in response to a systemic and ongoing problem with the bail process, which the police were aware of and had not taken steps to remedy, and resulted in widespread overholding.

The Alberta Court of King’s Bench, in considering Reilly when compared to this case, found that there was a significant difference in how widespread the issue of overholding was, and that in this case, there was no indication the police had been aware of the issue. The Court of King’s Bench upheld the 16-month Conditional Sentence Order, but in doing so, they also acknowledged this issue with overholding and stressed that the police have a duty to facilitate non-cash bail payments in line with the trial judge’s recommendations. Additionally, the Court stressed that this case involving an accused person who lived outside of Alberta is one of the rare cases where it would be appropriate to require payment before releasing the accused on bail, and that less stringent bail requirements will usually be sufficient.