[1]               There is a longstanding practice in Alberta for police officers to act as prosecutors at bail hearings before justices of the peace. The Applicant, the Attorney General of Alberta, has applied to this Court for a declaration that police officers have the legal authority to do so under the Criminal Code, so that this practice may continue.  For the reasons that follow, I have found that the requisite authority does not exist. As a result, the declaration will be opposite to the one the Attorney General is seeking and the practice must cease.

[2]               At approximately 3:00 am on January 17, 2015, two RCMP officers attended the Apex casino near St. Albert to investigate the theft of a vehicle. Inside the casino, the officers encountered Shawn Rhen who shot both officers. Constable David Wynn was killed and Auxiliary Constable Derek Bond was seriously injured. Rhen fled the casino and was later found dead at a near-by residence, where he had taken his own life. Rhen had a lengthy criminal history, including violent offences and weapons offences, and was facing 29 outstanding criminal charges at the time. He had recently obtained bail on some of the charges and was released into the community with the consent of the police officer conducting the bail hearing.

[3]               This tragic event led the Alberta government to review the bail system in Alberta, and in particular, first appearance bail hearings.

[4]               “Bail” typically refers to the situation where a person charged with a crime is released into the community until their charge is dealt with by the courts. The legal term for bail is ‘judicial interim release.’ The Criminal Code governs the procedure for releasing an individual charged with a crime pending the hearing of their case. In some cases, the person is released by a police officer immediately with conditions, for example, on a Promise to Appear. If the person is held in custody, he or she must be taken before a justice of the peace or a judge to address bail within 24 hours of arrest. With some exceptions, once the person is before the justice of the peace or judge, the Criminal Code requires the person be released without conditions, unless the prosecutor shows cause why the person should be released with conditions or detained in custody.

[5]               Currently in Alberta, the majority of first appearance bail hearings are conducted by a justice of the peace with a police officer representing the Crown. These hearings operate around the clock at two centralized Hearing Offices that have telephone or video links with police agencies throughout the province. In this respect, Alberta’s first appearance bail hearings system differs from systems in place elsewhere in Canada. In most provinces, bail hearings are normally held during regular business hours in a courtroom with a Provincial Court judge or justice of the peace presiding and a prosecutor representing the Crown.

[6]               After the Rhen shooting, concerns over Alberta’s system led the Alberta government to commission an independent review of bail hearings, including an analysis of who should conduct bail hearings in the province: Crown prosecutors or police officers. The resulting report, authored by retired senior federal prosecutor Nancy Irving, was entitled “Alberta Bail Review: Endorsing a Call for Change” (“the Irving Report”). It was authored on February 29, 2016, and released to the public on April 29, 2016.

[7]               The Irving Report, put in evidence in this application, made a total of 31 recommendations. The first recommendation was that “Crown prosecutors replace police presenters at Hearing Office bail hearings.” This recommendation was based in part on Ms. Irving’s review of two legal opinions on whether police officers are permitted to conduct bail hearings pursuant to s 515 of the Criminal Code. The opinions both concluded police officers do not have the legal authority to conduct bail hearings. The fourth recommendation was that if the practice of having police presenters representing the Crown was to continue at bail hearings, the Minister of Justice should (1) satisfy herself that the police have the requisite authority under the Criminal Code, and/or (2) seek an appropriate amendment to the Criminal Code.

[8]               According to the Irving Report, approximately 60,000 arrests in Alberta in 2015 resulted in Hearing Office bail hearings before a justice of the peace, conducted by police presenters.

[9]               On April 28, 2016, the day before the public release of the Irving Report, the Attorney General issued Ministerial Orders designating specified police officers her lawful deputies under s 2 of the Criminal Code for applications under ss 515-518 of the Criminal Code before justices of the peace. Ministerial Orders were issued for each of the eleven police agencies in Alberta.

[10]           On April 29, 2016, the date the Irving Report was made public, the Attorney General filed the Originating Application in this case. The Attorney General’s application seeks a declaration that designated police officers have the requisite authority under the Criminal Code to present as prosecutors at first appearance bail hearings before justices of the peace. The Attorney General’s position is that this authority is conferred either through the Ministerial Orders or by virtue of the fact that the police officers have instituted the proceedings in question at a bail hearing.

[11]           The Attorney General’s application raises the following issues:

[12]           The Attorney General named five Respondents in its application: the Edmonton Police Service; the Legal Aid Society of Alberta; the Criminal Trial Lawyers Association; the Calgary Criminal Defence Lawyers Association; and the Royal Canadian Mounted Police. The first four Respondents made written and oral submissions. The RCMP withdrew and requested removal from the proceedings. In addition, the Calgary Police Service made submissions as an intervener.

[13]           The Applicant seeks a declaration from this Court determining whether police officers have the legal authority to act as prosecutors at first appearance bail hearings. Declaratory judgments or orders confirm or deny a legal right. However, unlike other judgments, declarations do not grant relief beyond their pronouncement of the parties’ rights unless a party has asked for other consequential relief. In this case, the Applicant asks for the answer to a pure legal question with no request for ancillary relief.

[14]           The Court’s jurisdiction to issue a declaration rests in its inherent powers and is confirmed in statute through the Judicature Act, RSA 2000, c J-2, at s 11:

[15]           Declaratory judgments are discretionary and require consideration of several factors. The Supreme Court of Canada recently summarized the test to determine whether declaratory relief is appropriate or not, noting the applicant “must establish that the court has jurisdiction to hear the issue, that the question is real and not theoretical, and that the party raising the issue has a genuine interest in its resolution.” Additionally, a declaration can only be granted “if it will have practical utility, that is, if it will settle a ‘live controversy’ between the parties”: Daniels v Canada (Indian Affairs and Northern Development), 2016 SCC 12, [2016] 1 SCR 99, at para 11.

[16]           The Applicant submits that the test is met in this case. The Respondents agreed with those submissions, as do I.

[17]           First, as a superior court, this Court has the inherent jurisdiction to issue a declaration.

[18]           The next factor is whether the applicant seeks the answer to a legal question, as opposed to seeking the court’s opinion on a social or political issue: Brown v Alberta, 1999 ABCA 256, 177 DLR (4th) 349, at paras 16-25. In this case, the Applicant seeks guidance on the proper interpretation of the Criminal Code and the legality of Ministerial Orders. Both of these questions raise legal issues suitable for the Court’s determination.

[19]           The final consideration is whether there a genuine legal issue that needs resolution. A declaration will not issue if the issue is hypothetical, academic, or contingent on future events. The declaration must be capable of having a practical effect in resolving the issues in the case: Solosky v The Queen, 1979 CanLII 9 (SCC), [1980] 1 SCR 821, 105 DLR (3d) 745. The Applicant acknowledged that there is an advisory element to this case as the declaration will assist the Attorney General in determining whether the practice of having police officers present at first appearance bail hearings can continue. However, this does not mean the issue is hypothetical. Police officers have acted in this capacity for some time in Alberta and continue to do so. If the declaration in this case determines the practice is legally invalid, the practice must end. There are practical implications to the declaration which take it out of a purely advisory or academic question. Therefore this factor is also satisfied.

[20]           The Applicant also addressed why the Attorney General has sought a declaration in this case instead of using a different process such as judicial review of a first appearance bail decision. This procedure allows the question to be addressed in a single proceeding rather than through multiple litigants attempting to raise the issue through judicial review. Additionally, the Applicant submits prerogative remedies that issue from judicial review are limited and may not be available to address a procedural question such as the status of a police officer at a hearing: Edmunds v The Queen, 1981 CanLII 173 (SCC), [1981] 1 SCR 233, 58 CCC (2d) 485, 1981CarswellNfld 5, [Edmunds], at paras 28-29 (WL); R v Fedoruk (1986), 1986 CanLII 2951 (SK KB), 46 Sask R 140, 1986 CarswellSask 411 at paras 3-8 (Sask QB); and R v Russell, 2001 SCC 53, [2001] 2 SCR 804 at para 19. Finally, proceeding in this manner allowed the Applicant to invite other potentially interested or affected parties to make submissions to the Court.

[21]           I am satisfied that this Court has jurisdiction to hear this issue, that the issue is not academic and the Attorney General has a genuine interest in resolving it, and that the declaration will have practical utility.

[22]           The Applicant’s main argument is that the Ministerial Orders are a permissible delegation of the Attorney General’s powers and that they conform to the requirements of the Criminal Code. Her argument is supported by the Criminal Trial Lawyers Association, the Calgary Criminal Defence Lawyers Association, and the Calgary Police Service, and is opposed by the Edmonton Police Service and the Legal Aid Society of Alberta. The latter two respondents (“the Opposing Respondents”), argue the delegation to police officers is contrary to the Parliamentary intent of the Criminal Code and is an illegal and inappropriate delegation of power.

[23]           In order to assess these arguments, it is necessary to review the relevant definitions in the Criminal Code, and the scheme set out in Part XVI (16) of the Code, entitled “Compelling Appearance of an Accused Before a Justice and Interim Release.”

[24]           “Prosecutor” is defined in s 2 of the Code as:

[25]           Attorney General and counsel are also defined terms under s 2:

[26]           Finally, a peace officer is defined under s 2 to include police officers:

[27]           Part XVI [16] of the Code has various provisions which relate to bail. As was explained in the Irving Report, there are two types of bail, bail by police and bail by judicial officer. Sections 493 to 502 of the Code provide police officers with powers of arrest and the authority to release an accused person on their own. The Irving Report states that for most offences, police will release an accused on the condition that the accused promises to appear in court on a specific date, unless the police believe keeping the person in custody is necessary in the public interest or because they believe the accused will fail to appear in court.

[28]           If the police choose not to release the accused person, they are required under s 503(1) of the Code to take the person before a justice within twenty-four hours of the arrest to determine if he or she should be released on bail - this is bail by a judicial officer. A “justice” is defined in s 2 of the Code as a justice of the peace or a provincial court judge. It is this appearance before a judicial officer that is referred to as the first appearance bail hearing or Hearing Office bail hearing, and is governed by s 515. Section 515 requires a “prosecutor” to show cause why an accused should remain in custody or why he or she should have conditions attached to their release. Bail hearings for the majority of offences can occur before a justice of the peace or provincial court judge; however, for more serious offences the prosecutor must attend before a judge and the burden shifts to the accused to show why he or she should not be detained (s 515(11) and s 522). “Judge” is defined in the definition section of Part 16, and in Alberta means a judge of the superior court of criminal jurisdiction for the province [the Court of Queen’s Bench of Alberta] (s 493).

[29]           The Ministerial Orders in this case only permit police officers to conduct s 515 bail hearings that occur before a justice of the peace.

[30]           The parties agree that the analysis in this case is twofold: one, is the delegation to police officers permissible under the Criminal Code; and two, is the delegation appropriate?

[31]            The Applicant submits that it is legally permissible under the Criminal Code for the Attorney General to deputize police officers to act as prosecutors for bail hearings before justices of the peace.  The Applicant further argues that designating police officers as legal deputies is an appropriate delegation of the Attorney General’s authority.

[32]           The Applicant relies on the well-settled principle that due to the myriad functions he or she is tasked with, an Attorney General is required to delegate some of his or her duties. The Supreme Court recognized this in R v Harrison, 1976 CanLII 3 (SCC), [1977] 1 SCR 238, [1976] 3 WWR 536, 1976 CarswellBC 155 noting that it would be impossible for an Attorney General to perform all of his or her functions personally. There is, therefore, an implied presumption that delegation will occur. The Attorney General is also presumed to delegate to deputies and selected officials with appropriate training and experience. This presumption is known as the Carltona doctrine, and was explained in Harrison at para 14 (WL):

[33]           The Criminal Code definition of Attorney General expressly recognizes this fact by including the Attorney General’s “lawful deputy” in its definition.

[34]           In this case, the Ministerial Orders purport to delegate the lawful deputy role to specified police officers. The Orders read as follows:

[35]           The Applicant argues the Orders are permissible under the Criminal Code. The steps involved in her statutory interpretation argument are as follows: 1) the definition of “prosecutor” includes the Attorney General; 2) the definition of Attorney General includes the Attorney General’s lawful deputy; 3) the Ministerial Orders designate specified police officers as lawful deputies; and 4) the specified police officers therefore qualify as prosecutors under s 515.

[36]            Aside from this basic analysis, the Applicant submits that the delegation of the “lawful deputy” role is also permissible when one considers the history of the definition of Attorney General in the Criminal Code and the expansive interpretation of the term in the case law.

[37]           A historical overview of the definition of “Attorney General” reveals that the phrase “lawful deputy” was not added to the definition until the Parliamentary session of 1968-69, through the Criminal Law Amendment Act, SC 1968-69, c 38. Prior to that time, Attorney General meant only the Attorney General or Solicitor General of the province in which proceedings were taken: R v Luis (1989) 1989 CanLII 7135 (ON SC), 50 CCC (3d) 398, 1989 CarswellOnt 844, (Ont SC), at para 6.

[38]            At the time the phrase “lawful deputy” was added to the definition, the Criminal Code definitions of “prosecutor” and “counsel” were already in existence. This suggests that the term “lawful deputy” was meant to have a distinctive meaning that is additional to those terms: Quebec (Attorney General) v Carrières Ste-Thérèse Ltée, 1985 CanLII 35 (SCC), [1985] 1 SCR 831, 20 DLR (4th) 602, 1985 CarswellQue 85, at para 27 (WL). As such, the Applicant submits it is appropriate to delegate a lawful deputy role to someone other than a prosecutor or counsel, such as a police officer.

[39]           Further support for this position comes from case law which has interpreted “lawful deputy” in a broad manner. The Applicant provided a number of cases that have given expansive meaning to the term “lawful deputy” with specific reference to the Criminal Code definition. Although a lawful deputy may have initially been intended to mean a Deputy Attorney General, over time it became clear that the term is not so restricted: Harrison, at para 15:

[40]           An example of the expansive interpretation of the term comes from Luis. The accused sought to have a trial by judge alone, rather than by a judge and jury, on a murder charge. The Criminal Code required the “Attorney General” to consent in order to proceed in this way. The Crown prosecutor wished to act as agent for the Attorney General by giving consent, but was unsure if this was proper. The Court therefore turned its mind to the definition of Attorney General and its inclusion of the Attorney General’s “lawful deputy.”

[41]           The Court confirmed that a “lawful deputy” does not simply refer to the Deputy Attorney General. It noted that a lawful deputy is a person who has been authorized to perform conduct on behalf of a principal, at para 6:

[42]           Referring to the acknowledgement in Harrison that the Attorney General cannot discharge all of his or her duties personally, but must act through agents, the Court found that any reference to Attorney General in the Criminal Code includes all agents of the Attorney General when conducting criminal prosecutions, which would include Crown prosecutors, at paras 8-9:

[43]           The Applicant points out that similar findings have been made in lower court decisions, such as in R v Torres (2007) 73 WCB (2d) 439, 2007 CarswellOnt 2141 (ONSC). It is therefore accepted in the case law that the interpretation of “lawful deputy” is expansive, and, in the Applicant’s submission, it could also extend to a police officer.

[44]           Considering these various factors, including the necessity of delegation and express permission to do so under the Criminal Code, along with the expansive interpretation of lawful deputy, the Applicant submits there is support for its position that delegation to police officers is permissible under the Criminal Code.

[45]            The Applicant submits the delegation has been to an appropriate person or authority, and has been suitably restricted.

[46]           The Applicant refers to the wording in the Orders and notes they are restricted in several important respects. Each Order names specific police officers and is not a blanket provision allowing all police officers to act in this role. In addition, the Attorney General has taken care to only delegate a few necessary duties to police officers. The police officers who are designated as lawful deputies may only act under a few of the provisions relating to bail hearings in the Code:

[47]           Not all bail related powers are delegated to police officers in the Orders. For example, police officers are not given the ability to conduct reviews of interim release orders or applications to revoke bail (ss 520, 521, 524). A further restriction is that the police officers designated as lawful deputies may only present before justices of the peace. This is a relevant distinction because other bail hearings are excluded, such as those before provincial court judges, and for the most serious offences, those before judges of a superior court.

[48]           These various restrictions, it is submitted, appropriately restrict the scope of authority that has been delegated to police officers.

[49]           The Applicant further submits that the nature of the delegated function must be considered to determine if the delegation is appropriate. Here, the Ministerial Orders allow police officers to present information to a justice of the peace on whether an accused should be detained or released, and if so, on what conditions. This function is very close to the functions explicitly delegated to police officers under ss 495 to 499 of the Criminal Code, where police officers are tasked with making decisions on whether an accused should be released with or without conditions at several stages of the arrest process. For example, under ss 495 to 497, an officer may arrest a person without a warrant and is then tasked with deciding whether to release the person on an appearance notice or whether there are reasonable grounds to detain the person in custody according to the criteria set out in s 497. Those criteria include considering the public interest and whether detention is necessary; to establish the identity of the person; to preserve evidence; to prevent the continuation of the offence or another offence; or to ensure the safety of a victim or witness.

[50]           The considerations in s 497 (1.1) are similar to the factors considered under s 515 (10) at a bail hearing, such as whether the detention is necessary to ensure the accused will attend in court, or to protect the safety of the public including a witness or victim, or to prevent the accused from committing another offence, or to maintain confidence in the administration of justice.

[51]           The Applicant submits there are common themes considered under these two sections. The factors that a police officer is expressly tasked with considering as a decision maker under s 497 are similar to the factors the officer is tasked with presenting to a justice of the peace through the Ministerial Orders. Thus the powers given to police through the Ministerial Orders are analogous to powers they already possess.

[52]           The Applicant concedes presenting at a bail hearing is a significant responsibility; however, she notes that the ultimate decision to detain or release is made by an independent judicial officer.

[53]           Finally, in terms of the present application, the Applicant reminds the Court that because there was an express delegation in this case, the Minister is assumed to have selected officials of experience and competence. As such, the review of the delegation is owed some deference and is done on the reasonableness standard: United States v Helfrich, 2004 BCSC 297, 183 CCC (3d) 565, at paras 32, 35.

[54]           The Opposing Respondents, the Edmonton Police Service and Legal Aid Alberta question the legality of deputizing police officers to act as prosecutors. They argue that the delegation is not permissible under the Criminal Code, nor is it an appropriate delegation of the Attorney General’s authority.

[55]           The Opposing Respondents submit that when one considers the broader context of the Criminal Code as a whole, it is not permissible for police officers to conduct bail hearings for indictable offences. They point to the modern principles of statutory interpretation, which require the words of an Act to be read “in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament:” Wilson v Atomic Energy of Canada Ltd, 2016 SCC 29, 399 DLR (4th) 193, at 102 (dissent) (“Atomic Energy”). Words in statutes should be given “their most obvious ordinary meaning” according to the particular statutory context, and read in a way “that avoids absurdity and assigns a meaning to all of the words Parliament has used:” Atomic Energy, at para 102, R v G (B), 1999 CanLII 690 (SCC), [1999] 2 SCR 475, 174 DLR (4^th) 301, at para 69.

[56]           Applying these principles, the Opposing Respondents argue that when the scheme of the Criminal Code is reviewed, it is clear that Parliament’s intention was to have legally trained prosecutors at bail hearings for indictable offences. Further, a review of the Code shows that Parliament purposefully assigned different functions to police officers and prosecutors relating to bail. Therefore, the Ministerial Orders deputizing police officers to act as prosecutors at s 515 bail hearings are contrary to Parliamentary intent.

[57]           On the first point, the Opposing Respondents note the Criminal Code establishes two streams for criminal proceedings, and each stream defines prosecutor differently. The first stream is for offences classified as indictable offences, and the second stream is for offences classified as summary conviction offences. There are also hybrid offences, which can proceed either way, but they are deemed indictable by the Interpretation Act, RSC 1985, c I-21, s 34, until the Crown elects which way to proceed. According to the Irving Report, the majority of offences in the Criminal Code, and their respective bail hearings before justices of the peace, involve indictable offences or hybrid offences.

[58]           The definition that applies for prosecutors of indictable offences is in s 2 of the Code and states:

[59]           Part XXVII (27) of the Code deals with the less serious summary conviction offences, and sets out the applicable procedures for them: Edmunds at para 25. The Part 27 definition of prosecutor is at s 785 and states:

[60]           The Opposing Respondents point to these two definitions as evidencing Parliament’s intent for indictable offences to be prosecuted by a person who is legally trained. This is apparent because of a critical difference between the two definitions. The s 785 definition allows “counsel” or an “agent” of the Attorney General to act as prosecutor. The s 2 definition allows only “counsel” of the Attorney General to act as prosecutor. Counsel is defined as a barrister or solicitor and is therefore is a role restricted to lawyers. “Agent” is not defined or similarly restricted, permitting non-lawyers to prosecute summary conviction matters.

[61]           The Opposing Respondents submit Parliament’s intention in defining “prosecutor” separately for Part 27 was to allow non-lawyer agents to appear as prosecutors only on summary conviction matters. They point to case law in support of their position which has found that non-lawyers are not permitted to prosecute indictable matters.

[62]           In R v NC, [1997] OJ No 3058 (Ont Ct J (Prov Div)) a student-at law appeared on behalf of the Crown to prosecute a hybrid “theft-under” charge before a youth court judge. The Court found that at the time the student-at-law appeared, the Crown had not elected whether to proceed summarily or on indictment. Pursuant to the Interpretation Act, the offence was deemed indictable. Accordingly, the provisions in Part 27 of the Criminal Code were not applicable and the s 2 definition of prosecutor applied. The student-at-law was not yet qualified as a lawyer, so could not meet the s 2 requirement of being the Attorney General or their counsel, at para 9:

[63]           Another example is Edmunds, where the Supreme Court considered whether a RCMP officer could prosecute an indictable offence before a judge in a summary conviction court. The accused challenged his conviction on the basis the officer did not have the proper authority to conduct the prosecution. The Court referred to the s 2 definition of prosecutor and the s 785 definition of prosecutor (s 720 at that time) and agreed that the officer conducting the proceedings “did not come within the definition of s 2 of the Code,” at para 20. The dissent agreed on this point, holding that the prosecution of an indictable offence “is required to be presented by the Attorney General or his ‘counsel’”, at para 11. It further found that in the case of summary conviction prosecutions, the use of the word “agents” must “contemplate persons other than qualified lawyers” acting as prosecutors, including police officers, at para 12.

[64]           The Opposing Respondents submit these cases show that Parliament intended for non-legally trained persons, such as police officers, to act as prosecutors only in less serious summary conviction matters. In the same way that police officers are not permitted to run trials for indictable offences in the cases, they should not be permitted to run s 515 bail hearings for indictable or deemed indictable offences. The use of the word “prosecutor” in s 515 clearly indicates a bail hearing is a prosecutorial act. A reading of ss 2, 515, and 785 in the context of the Criminal Code as a whole suggests that it is not permissible for police to conduct s 515 bail hearings for indictable or deemed indictable offences.

[65]           The Opposing Respondents bolster their statutory interpretation argument by pointing to the scheme under Part XVI (16) of the Code, which relates to compelling an accused person to appear before the court to face charges. They submit that Part 16 demonstrates that Parliament intended for ordinary people, peace officers (including police officers), officers in charge, and prosecutors, to play different roles in relation to the arrest, release and detention of suspected criminals. They argue the Ministerial Orders flaunt this intent by placing police officers in the position of prosecutors.

[66]           For example, under s 494, an ordinary person is given the ability to perform a citizen’s arrest. Once this is done, the citizen is required to deliver the person to a peace officer. An ordinary citizen therefore has no powers to detain an accused person. Under ss 495-497, a peace officer (including a police officer) may arrest a person and, for less serious charges, is given the responsibility to determine whether a suspect should be detained or released. In circumstances where the suspect faces more serious charges however, the decision about detention or release needs to be made in front of a justice of the peace with the assistance of a prosecutor. The Opposing Respondents submit that Parliament was purposeful in delegating these roles differently depending on the seriousness of the offence.

[67]           Further, the terms “peace officer” (which includes police officers), “officer in charge” and “prosecutor” are all defined separately and distinctly in the Code. The Opposing Respondents submit that through the Ministerial Orders, the Attorney General has erased these differences by assigning a “peace officer” the role of “prosecutor” in relation to bail hearings for indictable offences.

[68]           Finally, the Opposing Respondents submit that their interpretation is based on a plain and simple reading of the definitions and scheme set out in the Criminal Code, which is the approach required under the law.

[69]           The Opposing Respondents agree that the Attorney General can delegate certain of her duties, either pursuant to the Carltona doctrine or through the explicit recognition in s 2 of the Code that Attorney General includes her “lawful deputy.” However, they submit that in either case there are limits on the delegation: R v Horne & Pitfield Foods Ltd, 1982 ABCA 202 (CanLII), [1982] 5 WWR 162, 39 AR 428 (ABCA), at para 11.

[70]           One of the limits, already discussed, is that the delegation must be in accordance with the legislative scheme of any governing legislation. Another limit is that under the Carltona doctrine, the delegation must be to a responsible officer within the Minister’s department. The Opposing Respondents note that the Applicant’s cases all involved delegations that were inter-departmental or inter-ministerial. In this case, the delegation is to police officers, who are persons outside of the Minister’s department and cannot act as her “stand-ins.” The Opposing Respondents support this position with reference to the case of R v McCarthy, 2008 ABQB 14, 87 Alta LR (4th) 362.

[71]           In McCarthy, this Court considered the status of police officers vis-à-vis the provincial Attorney General in the context of disclosure requirements. At issue were records of complaints made to the Edmonton Police Service and whether those documents were considered to be in the possession of the Attorney General or in the possession of a third party (the police service). The Court found that although the police service acts under the direction of the Minister of Justice and Attorney General, it is not an extension of the Attorney General. The Edmonton Police Service is under the oversight of a police commission, which in turn is overseen by city council, at paras18-19:

[72]           Further, the Court noted police officers are municipal rather than provincial employees, which is in contrast to Crown prosecutors who are employed by and work for the Ministry of Justice and report to the Attorney General. These key differences led the Court to conclude that “the Crown and EPS are not different arms of the same organization, but rather are separate and independent entities with different reporting structures and accountabilities” McCarthy at para 20.

[73]           As police officers are outside the oversight of the Attorney General, the Opposing Respondents submit that there is no mechanism through which the Attorney General can personally control or hold accountable the police officers acting in her place. This is in contrast to her ability to hold Crown prosecutors accountable, as they are employed by her department. It is submitted the Attorney General’s delegation to police officers is therefore an abdication of her authority to a separate public agency.

[74]           As for the Attorney General’s acknowledged ability to delegate to a lawful deputy in s 2 of the Code, the Opposing Respondents submit the case law is not as broad as the Applicant submits. Luis and Torres were both cases that concerned delegations to Crown attorneys. The Opposing Respondents point out none of the Applicant’s cases include any delegations to extra-ministerial non-lawyers. Therefore, they submit, the interpretation of “lawful deputy” is not as expansive as suggested.

[75]           The Opposing Respondents state that the delegation is not appropriate as police officers are not experienced and competent officials to carry out the Attorney General’s responsibilities with respect to bail hearings. In particular, police officers do not have the knowledge, experience or training necessary for the role. They submit that in order to speak to judicial interim release, an appropriate official would require a law degree from a school recognized by the Law Society of Alberta, practical experience through the process of articling, knowledge and compliance with the Law Society’s Code of Conduct, and specific to Crown prosecutors, knowledge and adherence to the Prosecutorial Code of Conduct.

[76]           The Opposing Respondents also argue a police officer’s training and experience is related to the enforcement of laws. Information from the Edmonton Police Service’s website indicates that training for police recruits is split equally between the classroom and performing practical exercises. The topics for training include legal studies, documentation, officer safety control tactics, firearms training, police vehicle operations, investigations, interviews, and community based policing and problem solving.

[77]           The Opposing Respondents provided cases where courts have acknowledged the different roles played by police in the administration of justice. For example, in R v Regan, 2002 SCC 12, [2002] 1 SCR 297, the Supreme Court noted that “the separation of police and Crown roles is a well-established principle of our criminal justice system,” at para 71.

[78]           Due to the significant differences in their training, experience and professional obligations, the Opposing Respondents argue that delegating the prosecutorial role at bail hearings to police officers is not appropriate.

[79]           It is clear that Ministers such as the Attorney General are expected to, and for practical reasons must, delegate aspects of their role to others: Harrison. The Criminal Code recognizes this expressly in the s 2 definitions. The ability to delegate is not in question. It is whether the delegation is permissible and appropriate in this case.

[80]           In my view, the answer to this question is answered by the Criminal Code itself. The Code is lengthy, thorough and detailed legislation that evidences Parliament’s intentions for the administration of justice and the role it envisioned for the various participants in that system. Upon review, I find that Parliament intended prosecutors at bail hearings on indictable offences to be legally trained.

[81]           Initially, this intent can be seen through the different definitions of “prosecutor” under s 2 and s 785. The definition of “prosecutor” under s 2 vests prosecutorial power in the Attorney General, and allows that role to be filled by the Attorney General’s “counsel,” or by the Attorney General’s “lawful deputy.” By definition, “counsel” must be a barrister or solicitor who is legally authorized to perform in such a role by the province. A “lawful deputy” is not defined.

[82]            Under s 785, the definition of “prosecutor” changes. Prosecutorial power is still vested in the Attorney General, and his or her counsel, but the role may also be filled by an agent of the Attorney General. The addition of “agent” in the s 785 definition allows the prosecutorial role to be filled by persons who are not barristers or solicitors with legal training, and on a plain reading could include persons such as police officers. The fact that Parliament chose to have two definitions for “prosecutor” for indictable and summary conviction offences shows, on a plain reading, an intention to differentiate between the two roles. It also shows that Parliament was alive to the possibility that non-legally trained agents could perform some duties under the Code, but not others.

[83]            I find that Parliament’s intention in crafting s 785 was to allow non-legally trained persons to act as prosecutors for summary conviction offences. The inverse inference is that Parliament intended for only legally-trained persons to act as prosecutors for indictable offences, and viewed the s 2 definition of prosecutor as being already restricted in this fashion.

[84]           This interpretation of the role of prosecutors in the two schemes has been confirmed at law: NC; Edmunds.

[85]           Parliament’s intention is also expressed in Part 16 of the Code relating to powers of release. In Part 16, Parliament devised a scheme whereby different actors have defined roles and responsibilities pertaining to release, with the roles and responsibilities differing depending on the seriousness of the offence. The different forms of potential release include release by a peace officer (s 497), release by an officer in charge (ss 498, 499), release by a justice (s 515) or release by a judge of a superior court (s 522). A prosecutor is given the responsibility of presenting evidence and making submissions on release under s 515 releases by a justice. Significantly, each of the terms used in these sections, “peace officer”, “officer in charge”, “prosecutor”, “judge” and “justice”, are separately defined terms under s 2 of the Code or under the s 493 definitions for Part 16.

[86]           In my view, a plain reading of the words and scheme set out in Part 16 shows that Parliament defined the roles and responsibilities of the various actors purposefully, choosing peace officers or officers in charge to have powers of release for less serious offences, requiring a justice to make decisions on release for more serious offences, and requiring a judge of a superior court to decide on release for the most serious offences. Through the wording of s 515, Parliament decided that prosecutors should be involved when a justice is deciding whether to detain or release an accused. Presumably, if Parliament intended for peace officers to show cause at bail hearings, it would have specifically given that responsibility to peace officers in s 515, or provided that either a prosecutor or peace officer could show cause at a hearing. Or, similar to the s 785 definition of prosecutor under Part 27, Parliament could have defined prosecutor to include the Attorney General’s agent for Part 16. Instead, Parliament chose to assign the task of showing cause at bail hearings to a prosecutor only.

[87]           The Applicant submitted that because the factors considered by police officers pertaining to release are similar to those considered by a justice of the peace at a bail hearing, police officers are suitable candidates to present those factors in the prosecutorial role at a bail hearing. While this may be true, it is clear that to place police officers in the prosecutor’s role would, as the Opposing Respondents stated, flaunt Parliament’s intent.

[88]           The position supported by the Applicant could also open the door to further delegations to lawful deputies of the Attorney General of prosecutorial functions beyond bail.

[89]           I agree that the legal training in law school and practical experience of articling equips counsel to the Attorney General with the knowledge and skills needed when speaking to judicial interim release and their other prosecutorial functions. The same level of knowledge, skills and experience is not provided in police training, which understandably has a different focus.

[90]           However, I find that these considerations, on their own, are not dipositive of this case. Despite the obvious differences in training and experience, Parliament decided under Part 27 that agents, such as police officers, are suitable candidates to present evidence and make submissions at bail hearings and trials for summary conviction offences. In my mind, this weakens some of the arguments about the appropriateness of having police officers in a prosecutorial role, whether due to their training, their extra-ministerial status, or their accountability to the Attorney General. 

[91]           Therefore, I find the deciding factor here is that a review of the applicable definitions, along with the scheme set out in the Criminal Code, shows Parliament intended for legally-trained persons to act in the prosecutorial role for indictable offences: Atomic Energy. I agree that the use of the word “prosecutor” in s 515 indicates that a bail hearing is a part of the prosecutorial act.

[92]           In summary, although the Attorney General has the ability to delegate her duties to a lawful deputy, she cannot override Parliament’s intention to have legally trained prosecutors for indictable offences when doing so.  The appointment of police officers to a prosecutorial role under s 515 provides them with a power that is contrary to the intent of the Criminal Code: Horne & Pitfield Foods. The Criminal Code must prevail over the Ministerial Orders: Re Bradley et al and the Queen, (1975), 1975 CanLII 766 (ON CA), 24 CCC (2d) 482, 9 OR (2d) 161, [1975] OJ No 2374 (ONCA) [Bradley] at para 23 (QL).

[93]           I understand the delegation of the lawful deputy role to police officers was likely an attempt to legitimize a longstanding practice that came about due to practical challenges. However, it essentially allowed police officers entry into the prosecutorial role through the back door, and cannot continue on that basis. Police officers do not have the legal authority under the Criminal Code to present as prosecutors at first appearance bail hearings.

[94]           As an alternative argument, the Applicant submits that police are authorized to present at first appearance bail hearings because they, individually or collectively, fall within the definition of a prosecutor as “the person who institutes proceedings”:

[95]           Proceedings are initiated in the Code through the laying of charges under s 504, where anyone who believes on reasonable and probable grounds that an offence has been committed may swear an information (setting out the charge) before a justice. Under s 504 “anyone” can lay an information, including a private person, though most commonly charges are laid by the police in Alberta.

[96]           The Applicant submits that an information may be laid by a police officer who receives knowledge of the case from another officer, giving the officer reasonable grounds to lay the charge, relying on paras 75-81 in R v Awad, 2015 NSCA 10, 1126 APR 116. This, coupled with the broad definition of “person” in the Code, which includes an organization, suggests that police officers within the same organization may be considered to have instituted proceedings when a charge is laid. In this way, the interpretation of the phrase “where the Attorney General does not intervene” can include the situation where a police officer is a prosecutor until the Attorney General intervenes.

[97]           The Applicant concedes that the other more common interpretation of the phrase “where the Attorney General does not intervene” refers to the fact that the Attorney General has the ability to intervene in private prosecutions, which occur when a private person lays an information (instituting proceedings): Bradley, at paras 26-27(QL). She nevertheless submits that the other interpretation is also proper.

[98]           To buttress this argument, the Applicant submits that the Attorney General’s involvement does not commence when an information is laid. She argues the Attorney General does not intervene, and a criminal prosecution does not commence, until process has issued. Process is the stage of proceedings where an accused person is compelled to appear in court to answer the charge.

[99]           The Applicant points to case law which distinguishes between when a charge is laid and when process is issued: R v Dowson, 1983 CanLII 59 (SCC), [1983] 2 SCR 144, 7 CCC (3d) 527, 1983 CarswellOnt 94 at paras 31-39 (WL); R v McHale, 2010 ONCA 361, 256 CCC (3d) 26, leave to appeal to SCC refused, [2010] SCCA No. 290. The distinction between the two procedural steps is most clearly laid out in McHale, at paras 43-44:

[100]      Later in McHale, relying on this distinction, the Court concludes that a prosecution only commences after process has issued, and as such the Attorney General’s supervisory authority only commences at that point in time, at para 71:

[101]      In reliance on this distinction between the laying of an information and the commencement of a prosecution through issuing process, the Applicant suggests that police qualify as prosecutors from the point in time that they lay an information until process is issued, and the Attorney General then intervenes. The Applicant suggests that in cases where the police do not exercise their powers to release a person, and instead bring the person before a justice of peace, there is a window of time where the police remain the “person” who instituted proceedings and the Attorney General has not yet intervened.

[102]      Countering this position, the Opposing Respondents argue the Applicant’s argument is premised on the incorrect assumption that a s 515 bail hearing occurs prior to process being issued. Process is required to compel a person to appear before the court, and allows the court to establish jurisdiction over an accused person. Where an accused person is not already in police custody, process can issue in a few ways, such as a summons or a warrant: ss 504-514 of the Criminal Code. However, when a person is in police custody and is not released, the person is brought before the court for a s 515 bail hearing. Once the person appears in court, the court gains jurisdiction and process issues.

[103]      R v Wilson, 2015 SKCA 58, 460 Sask R 147, confirms that a court gains jurisdiction when an accused is brought before the court by any means, and that process is not essential to the jurisdiction of the court, at paras 27 to 28:

[104]      Thus, the Opposing Respondents submit that when a person in police custody is brought to court for a bail hearing, process issues at that point in time, and the Attorney General is responsible for conducting the prosecution.

[105]      Further, the Opposing Respondents submit the phrase “where the Attorney General fails to intervene” is clearly intended to deal with the differences between public and private prosecutions. When a police officer lays an information to commence criminal proceedings, he or she does so on behalf of Her Majesty the Queen, and would never personally consider himself or herself as a part of the prosecution: Mandelbaum v Denstedt, 1968 CanLII 797 (MB CA), [1969] 3 CCC 119, 66 WWR 636 (MBCA). Where a private person initiates criminal proceedings by laying an information, the person swears the information in his or her own name, not on behalf of Her Majesty. Once that is done, the Attorney General can choose to intervene, or not, in which case the prosecution proceeds without the Crown attorney’s involvement: Motor Coach Industries v International Association of Machinists and Aerospace Workers, [1982] 4 WWR 436, 16 Man R (2d) 62, [1982] MJ No 247 (Man Co Ct), at paras 9-12 (QL), aff’d 1982 CanLII 3942 (MB CA), [1982] 5 WWR 391, 16 Man R (2d) 419 (MBCA). If the Attorney General does intervene, he or she can choose to proceed with the prosecution, or withdraw or stay it.

[106]      Following from this, the Opposing Respondents submit that the only interpretation attributable to the “person who initiates proceedings,” is to a private person who lays a private information, and that in all other cases the prosecutor is the Attorney General. “Intervention” by the Attorney General, as it is referred to in the definition, only occurs in cases where the Attorney General takes over conducting a prosecution from a private person.

[107]      I agree with Opposing Respondents that the phrases “the person who institutes proceedings” and “where the Attorney General does not intervene” in the s 2 definition of prosecutor, when interpreted in their proper context, are meant to refer to a person who initiates a private prosecution and the power of the Attorney General to intervene in those prosecutions.

[108]      The fact that our system allows both private prosecutions and public prosecutions is rooted in legal history. The following passage from the Ontario Court of Appeal explains that crimes were originally seen as committed against an individual, and the individual was responsible for prosecuting the offence. Over time, crimes were seen as committed against the state, and the attorney general, representing the state, eventually took over the prosecution of most offences, Bradley at paras 26-27:

[109]      As noted in this passage, the Criminal Code still allows private citizens to lay charges and commence a private prosecution. However, the Attorney General has supervisory power over all prosecutions: Steele v Alberta, 2014 ABQB 124, 308 CCC (3d) 539, at 73:

[110]       McHale discusses one example of a supervisory power that has been codified in s 579.1, where the Attorney General is given the power to enter a stay of proceedings, including over private prosecutions. 

[111]      Looking further at the Criminal Code itself, there are a number of provisions which refer to the Attorney General “intervening”: s 485.1, s 507.1(4), s 574 (3), s 577, s 579.01. On a plain reading of these provisions, I find the references to the Attorney General either intervening or not intervening, when read in context, all relate to interventions in a private prosecution.

[112]      For example, s 485.1 describes how proceedings that are dismissed for want of prosecution can be recommenced through laying a new information or upon a fresh indictment. The section sets up two procedures for recommencement, each with different requirements, depending on the status of the Attorney General in the prosecution. If the Attorney General is conducting the prosecution, or has intervened, the personal consent of the Attorney General or the Deputy Attorney General is required for recommencement. If Attorney General is not conducting the prosecution and has not intervened, the consent of a judge by written order is required. It is clear that these different scenarios contemplate a situation where the Attorney General is either conducting the prosecution or someone other than the Attorney General is conducting the prosecution. The references to the Attorney General intervening refer to whether the Attorney General has intervened or not in a private prosecution.

[113]      Other provisions are similarly concerned with who is conducting the proceedings, the Attorney General or a private prosecutor:

[114]      These provisions clearly refer to the parallel systems for prosecutions in which either:

[115]      I do not see any room within these provisions for the Applicant’s position that the Attorney General intervenes in a public prosecution instituted by a police officer. Nor was the Applicant able to supply any case law in support where this issue had been directly litigated. In fact, if a police officer were able to prosecute an indictable offence until the Attorney General intervened, that would contradict the findings in cases such as Edmunds.

[116]      The Applicant also argued that a prosecution commences when process issues, and that only at that point in time does the Attorney General intervene in a public prosecution. I find the Applicant’s focus on “process issuing” as the start of a prosecution to be misplaced, especially in the context of this case, which concerns bail hearings. 

[117]      The Applicant’s position is problematic for a few reasons. First, the steps involved in commencing a prosecution differ depending on whether the accused person has been released or detained. In cases where a person is not detained in custody, there are usually two steps to the commencement of a prosecution. The first step is laying an information and the second is issuing process: Ambrosi v British Columbia (Attorney General), 2014 BCCA 123, 311 CCC (3d) 264, at paras 19-23, leave to appeal refused, [2014] SCCA No 320. A justice must receive the information if the alleged offence is known to law and if it complies with the requirements of s 504. The second step is a pre-inquiry hearing to decide whether to issue process in the form of either a summons or a warrant. The pre-inquiry is conducted under s 507 for informations laid by a peace officer, a public officer, or the Attorney General and is heard by a justice. Where the information is laid by a private person, the pre-inquiry is conducted under s 507.1, and must be heard by a designated justice, or provincial court judge, or in Quebec a judge of the Court of Quebec. If the case is made out, a summons or a warrant will issue to compel the accused to attend court.

[118]      Importantly, the second step in this process, where a pre-inquiry hearing is held and process potentially issues, does not occur if the accused is detained pending a bail hearing.  The pre-inquiry in s 507, which is the applicable section when a police officer lays an information, is not required “if an accused has already been arrested with or without a warrant:” s 507 (1). Case law has interpreted this phrase as meaning that the person is currently under arrest when the information is laid, and has not yet been released: R v Drozd, 2011 ONCJ 51, 92 WCB (2d) 902, at para 26. Therefore, in a case where the person is detained and taken to a bail hearing, the issuing of process under this section will be unnecessary: R v Ladzinski, 2012 ONCJ 205, 101 WCB (2d) 129, at para 9. However, by no means could one argue that because “process” had not issued under s 507, a prosecution had not yet commenced, and the Attorney General had not yet intervened.

[119]      The Applicant’s cases are distinguishable because they involved private prosecutions where the accused was not detained. In such cases, “process” has an important role as it signals that the court is willing to take jurisdiction over a person and compel them to appear. Compelling attendance at court is not a concern in bail hearing cases: the person has already been compelled to attend. As was stated in Wilson at para 28, “process is not essential to the jurisdiction of the court where an accused appears by any means to answer the charge.” Instead it is merely “the proceeding adopted to compel the appearance of the accused to answer the information...” Wilson, at para 9, quoting R v Dahmer (1982), 1982 CanLII 2304 (SK KB), 19 Sask R 290 and R v Hughes (1879), 4 QB 614. Thus, I find that in proceedings where the person is detained and brought to a bail hearing, issuing process is unnecessary and does not signal the commencement of the prosecution.

[120]      I agree with the Opposing Respondents’ position that the Attorney General’s involvement in a public prosecution begins at the time that charges are laid. When a charge is laid in a public prosecution, it is laid on behalf of Her Majesty the Queen (the Crown). With the laying of the charge, the Attorney General, usually through Crown prosecutors, is given responsibility for the conduct of a public prosecution from that moment onwards. This is evident because after the charge is laid, the work of the prosecutors begins. Prosecutors are required to exercise their discretion in determining whether to proceed or to withdraw or stay charges laid by police officers. These decisions occur before process issues. Prosecutors may also be involved in other decisions before process issues, such as making elections or deciding which charges to proceed on. I also find that the use of the word “prosecutor” in s 515 signals that a prosecution is proceeding at the time of a bail hearing, even though process has not yet issued. Thus, the prosecutorial role, and involvement of the Attorney General or his or her counsel, commences before the issuing of process, at least in public prosecutions.

[121]      In my view this issue is again decided on the basis of statutory interpretation principles. I find that the phrase “where the Attorney General does not intervene” in the s 2 definition of prosecutor, when read in its entire context and in its grammatical and ordinary sense harmoniously with the scheme of the Criminal Code, the object of the Criminal Code, and the intention of Parliament, means where the Attorney General does not intervene in a private prosecution: Atomic Energy. Thus, I interpret the s 2 definition of prosecutor to mean either the Attorney General (or his or her counsel) or the person who instituted proceedings through a private information (or his or her counsel) if the Attorney General does not intervene in those proceedings.

[122]      Based on my analysis, I cannot grant the declaration sought by the Applicant Attorney General. Instead, I declare that designated police officers do not have the requisite authority under the Criminal Code to present as prosecutors at first appearance bail hearings before justices of the peace.

[123]      The Applicant has asked that if I find having police officers present at bail hearings is unauthorized under the Criminal Code, the declaration to that effect be suspended for six months. This request is made to allow for the orderly transition from the current practice to one in which Crown prosecutors appear at all bail hearings. The Applicant submits that an orderly transition is essential for public safety reasons and is necessary to maintain the rule of law. She notes that over twenty Crown prosecutors and additional support staff will need to be hired, and there will need to be an integrated response by police, the Alberta Crown Prosecution Service, the justices of the peace, and the provincial court. If time for an orderly transition is not in place, there is a possibility that accused persons will be released unconditionally and that applications to review those releases will put increased pressure on already strained court resources.

[124]      The Applicant submits that courts have granted transition periods in the past to avoid similar negative outcomes. In Schachter v Canada, 1992 CanLII 74 (SCC), [1992] 2 SCR 679, 93 DLR (4^th) 1, the Supreme Court noted that suspended declarations were appropriate in certain circumstances, including 1) when striking down legislation poses a potential danger to the public; or 2) otherwise threatens the rule of law; or 3) when an unconstitutional provision is underinclusive and striking down the law immediately would deprive deserving persons of benefits without providing them to the wronged applicant, at para 79:

[125]      The Applicant also submitted other cases where courts granted suspensions of declarations. In Reference re Remuneration of Judges of the Provincial Court (et al), 1998 CanLII 833 (SCC), [1998] 1 SCR 3 the independence of the judiciary was called into question and the Supreme Court granted a suspended declaration so that provinces could set up proper judicial compensation commissions. In R v Powley (2001), 2001 CanLII 24181 (ON CA), 53 OR (3d) 35, 196 DLR (4th) 221, aff’d 2003 SCC 43, [2003] 2 SCR 207, the Ontario Court of Appeal found Ontario’s Game and Fish Act infringed the constitutional rights of two aboriginal hunters and granted a stay of the judgment to allow the province to consult with stakeholders and develop a new regime. In R v Brydges, 1990 CanLII 123 (SCC), [1990] 1 SCR 190, [1990] 2 WWR 220, the Supreme Court granted a transition period so that police had time to change the information on their caution cards to comply with requirements under s 10(b) of the Canadian Charter of Rights and Freedoms.

[126]      The Applicant submits that a transition period would be an appropriate exercise of this Court’s discretion in light of the risks to public safety and to the administration of justice that could occur if the declaration were given immediate effect.

[127]      While acknowledging that a transition period would be helpful, the Edmonton Police Service (“EPS”) raised a concern that this Court may not have the authority to grant a suspension of a finding of illegality. EPS submits that if having police officers conduct bail hearings for indictable offences is counter to the Criminal Code, a suspended declaration will put police officers in the difficult position of continuing to act as prosecutors when it is contrary to law.

[128]      EPS submits that the Applicant’s cases do not assist the Court, as they are all constitutional cases in which the courts were able to grant a suspension due to their powers under s 24(1) of the Charter to craft “such remedy as the court considers appropriate and just in the circumstances.” This Court is not facing a constitutional issue, but rather has been asked to give a statutory interpretation of what is or is not legally permissible.

[129]      I have reviewed the cases submitted by the Applicant and do not agree with the position put forward by EPS. Although the cases are constitutional in nature, the various courts did not rely on s 24(1) for their jurisdiction to issue a suspended declaration.

[130]      I note that one of the first cases to allow a suspended declaration was the Supreme Court’s decision in the Manitoba Language Reference case:   Reference re Manitoba Language Rights, 1985 CanLII 33 (SCC), [1985] 1 SCR 721, 19 DLR (4th) 1 [Manitoba Language Reference].  This case is often cited as precedent by courts for the ability to suspend a declaration, and it did not involve challenges to the Charter or craft a remedy under s 24(1). It is a helpful case as the Court considered in some depth the justification for providing a suspended declaration.  

[131]      The issue in the case was a constitutional challenge to the majority of Manitoba’s laws, which were only printed in English pursuant to Manitoba’s Official Languages Act. English only printing conflicted with federal legislation which required Manitoba’s legislature to enact, print and publish laws in both French and English. The Reference confirmed that the federal legislation was mandatory and all legislation in Manitoba must be enacted, printed and published in both official languages. The case was decided on the basis of s 52 of the Constitution Act, 1982, which states that laws “inconsistent with the provisions of the Constitution” are of “no force or effect”. Section 52 is silent as to remedy.

[132]      Acknowledging that significant time would be needed to translate the laws, and the legal chaos that would ensue if Manitoba was lawless for a period of time, the Court agreed to suspend the declaration that Manitoba’s laws were invalid, giving the province time to effect the translations. A review of the decision shows that the Supreme Court relied on maintenance of the rule of law for its jurisdiction to suspend the declaration, at paras 59-60, and 83-84:

[133]      The rule of law was also mentioned by the Supreme Court when it upheld the decision in Powley. The Court held that a court of general jurisdiction has the ability to stay its decision if giving immediate effect to the decision would undermine the order’s purpose or otherwise threaten the rule of law, at para 51:

[134]      I also note that courts have suspended declarations outside of the constitutional context. For example, in 2211266 Ontario Inc (cob Gentlemen’s Club) v Brantford (City), 2012 ONSC 5830, [2012] OJ No 4883, aff’d 2013 ONCA 300, 307 OAC 34, a portion of a municipal by-law concerning adult performers was declared invalid. The Court held that it was an appropriate case to suspend the declaration of invalidity for six months. There was a concern that in striking down the provision, some of the protections for adult entertainers in the by-law would not be available to topless female dancers. A suspension would allow the municipality time to amend the section while extending the protections during the transition period.

[135]      In order to justify the suspension, the Court turned to the principles for delaying declarations of invalidity in Schachter, to see if they applied. It found this was an appropriate case as topless female performers could be placed at risk if they were removed from the protection of the by-law, at paras 63-65:

[136]      See also British Columbia Ferry Corp v Canada (Minister of National Revenue), 2001 FCA 146, [2001] 4 FC 3, for another decision which relied on Schachter to suspend a declaration in a statutory interpretation case.

[137]      In light of the foregoing, I conclude that the ability to suspend a declaration is not confined to constitutional cases, nor does the Constitution or the Charter ground a court’s jurisdiction to suspend a declaration.

[138]      I find this Court has the jurisdiction to fashion a suitable remedy such as suspending a declaration. Section 8 of the Judicature Act provides the court with the power to grant all remedies “either absolutely or on any reasonable terms and conditions that seem just to the Court”:

[139]      More pointedly, rule 1.4(2)(h) of the Alberta Rules of Court gives this Court the power to stay the effect of a judgment or order:

[140]      I do not believe there is any great semantic difference between the terms “stay” and “suspend” as they both refer to postponing the effect of a judgment. Black’s Law Dictionary, 10th Edition, provides the following definition of a stay:

[141]      In light of this authority, and the direction in the cases discussed, I find this Court has the jurisdiction to suspend the declaration that police officers are not authorized to present at bail hearings under the Criminal Code. If significant changes to the bail hearing system were imposed forthwith, legitimate concerns would arise for public safety and the administration of justice in this province. In these circumstances, I consider it proper to suspend the declaration for a period of six months to allow the affected parties time to transition to a new system.

[142]      This Court declares police officers do not have the authority to appear as prosecutors at bail hearings where indictable offences are charged. It follows that the Ministerial Orders purporting to clothe police officers with prosecutorial authority in indictable offence bail hearings are invalid.

[143]      This declaration of invalidity is suspended until August 8^th, 2017.