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Custody & Release Process

Posted on October 30, 2020

What happens when you or your family member is arrested and taken to the Arrest Processing Centre or jail? In R v Reilly, 2020 SCC 27, we can examine the custody process. We’ll also explore how this might affect your defence strategy.

When a police officer arrests someone, there are different ways in which the person could be eventually released. First, the officer can conduct what is called a field release. This means they are releasing someone with paperwork that compels the person to come to court. They also need to attend for fingerprinting/photographs, and possibly with conditions that restrict the person’s liberty in some way, such as not consuming an intoxicating substance or to have no contact with someone.

However, if the officer chooses not to release the person from the station or in the field, the person will be then held to have a judicial interim release hearing otherwise known as a “bail hearing”. The most common type is while the person is still within police custody. This means they’re not at a Remand Centre, and instead are in front of a Justice of the Peace.

When this happens, the Criminal Code says that this type of bail hearing (either in front of a judge or a Justice of the Peace) should be within 24 hours of arrest.

In Alberta, there have been a number of concerns with the bail system. Mr. Reilly was a person who was charged with several domestic assault offences. He was held in custody for over 35 hours prior to his bail hearing. Mr. Reilly eventually argued that his detention violated his Charter rights. The Provincial Court of Alberta concluded it did. The trial judge ordered a stay of proceedings because of the delay in getting him to his bail hearing and stated that this was a result of a systemic problem within the Alberta bail system. In 2019, the Alberta Court of Appeal overturned the stay. They held that the trial judge erred with respect to providing a remedy for the individual when the trial judge noted that this was a systemic issue.

The Supreme Court of Canada heard and decided the matter this past month. The Supreme Court concluded that the trial judge did NOT err and concluded that the stay was the appropriate remedy.

This decision is important for future defence strategies. If you are arrested and detained for a bail hearing speak to your lawyer about how long you were held in custody. Your lawyer also needs to understand what happened to you during that time frame. Your lawyer should be mindful of every action and incident that occurred prior to your arrest. They should focus on the past as well as how to navigate and advocate for you as the case progresses.

Our lawyers do this every day. We are serious lawyers who help with serious charges and are here to help.