Stay of Charges in Case of Delay in Bail Hearing

The case of R v Reilly, 2020 SCC 27 underscored the importance of ensuring that people who are detained are brought before the Court within the 24-hour time limit as set out in the Criminal Code. In Alberta, there had been a systemic problem of arrestees being detained for longer than that 24-hour period.

If you or someone you know has been arrested and has been held for more than 24 hours without being brought before the Court for a bail hearing, then it may be that the charges could be dropped.

The case went all the way to the Supreme Court of Canada. There, the Court restored a stay of proceedings that a trial judge ordered in response to the detainee being held for more than 24 hours.

Generally, upon arrest, an accused person will be released to await their matter to be dealt with by the Courts. Detaining people is the exception, not the norm. Where an accused is not released, they must be taken for a bail hearing within 24 hours of arrest, without unreasonable delay, and regardless, within that period; or where a justice is not available in that period, then as soon as possible. In this case, Mr. Reilly was detained 36 hours before being taken before a justice for a bail hearing.

Not only should a person not be detained longer than 24 hours, 24 hours is the outer limit of “unreasonable delay”.

Previously, police officers represented the crown in bail hearings in Alberta, however, this was changed in 2016 by replacing police officers with crown prosecutors (lawyers). Bail offices that used to be open 24 hours were changed to now close at midnight. This new system experienced some issues in getting the new processes sorted out and had difficulties getting accused persons before a Justice of the Peace for a bail hearing within 24 hours. While these difficulties were expected in the beginning as kinks were being smoothed out, over time, the problems persisted.

In response, the trial judge directed a stay of proceedings, meaning an end to the criminal case against Mr. Reilly, given his rights were breached, and given the systemic issues that persisted in the bail system. The trial judge ruled that all parties (crown, defence, police, justices of the peace) were aware of this problem and did little to nothing to address it. The trial judge stated it was a “clearest case” for the remedy of a stay of proceedings.

The crown appealed that decision, and the case went to the Court of Appeal. The Court of Appeal took issue with the trial judge seemingly trying to remedy or more accurately, denounce, a systemic problem as opposed to addressing solely the accused and case at hand. The Supreme Court, however, ruled that there was no basis for the Court of Appeal to interfere with the trial judge’s discretion in addressing a systemic problem that was failing to be addressed.

The crown in this case argued that the new bail system has created more burden and load on the crown to canvass more sources and systems in preparation for a hearing, something the police were more efficient at doing previously. They recognize implementing this new system was a complex task and a working group has continually been working to find solutions; it is not as though they have been purposely ignoring or perpetuating the problem.

The Supreme Court made it clear: a stay of proceedings was within the realm of discretion the trial judge had in addressing such a systemic problem.


While this case does not propose a solution to this systemic problem of arrestees being overheld longer than what is statutorily allowed, it does send a strong message and with the backing of the Supreme Court, that such Charter violations are not acceptable, and cases can and will be stopped against accused persons where such violations occur.

Compliance with the 24-hour period as set out in the Criminal Code forces all parties to make significant efforts to address such issues or risk facing cases being dropped for this continued systemic violation. It remains to be seen what changes or efforts will be made now in response to a stay remedy being upheld for such violations. While it was not one particular reason or problem or party that was perpetuating the problem, concrete changes will need to be identified and implemented to address this in a more effective and tangible way than before.

Conditions for accused persons while awaiting a bail hearing can be quite egregious and shocking; including being confined to a small cell with only a toilet and sink, a lack of mattress, blankets, and pillows, lights that are never turned off, and poor food. Being held in such conditions for anywhere even close to 24 hours is extremely violating and an affront to a person’s dignity. People have children to attend to and work they may be unexplainably missing. It is not an issue that can any longer be lightly taken and given the Supreme Court’s decision to uphold the stay, hopefully it will be the motivation needed for all parties to take this issue seriously.