02/12/2015 08:00 EST | Updated 04/14/2015 05:59 EDT

Const. David Wynn killing ignites debate over police officers at bail hearings

On the morning of Sept. 4, 2014, Edmonton police Const. Wilson Quan stood before Justice of the Peace Joyce Lester and agreed to the release of Shawn Rehn on a $4,500 cash bond and the promise that he stay away from illegal drugs and prohibited weapons.

It was Rehn’s last appearance in the justice system before he shot and killed RCMP Const. David Wynn and wounded Aux. Const. Derek Bond.

At a tense news conference less than 48 hours after the shooting, RCMP Commissioner Bob Paulson questioned why Rehn was allowed on the street.

What Paulson didn’t mention that day is that RCMP officers, along with municipal police, are often the ones who agree to release people like Rehn when they sit in for Crown prosecutors at bail hearings.

Members of the police in Edmonton, the only jurisdiction that has provided numbers, presided over 15,144 bail hearings in the city in 2014, or about 41 hearings per day. Now the force says it wants to be relieved of the responsibility.

On Wednesday, the Alberta Association of Chiefs of Police called for a review of the practice.

B.C., Saskatchewan and Manitoba also allow police officers to perform the role of prosecutor at bail hearings. But in most cases it's done under exceptional circumstances, in smaller communities, on weekends and at night, when a prosecutor is not available.

In Alberta, it is routine for police officers to act on behalf of the Crown at bail hearings held before justices of the peace.

Concerns over police playing role of prosecutor

David Tanovich, a law professor at the University of Windsor, understands the need for officers to stand in under exceptional circumstances, but not when highly trained prosecutors can do the job.

“In large centres like Edmonton and Calgary, for officers to be doing basically all of the bail hearings is very troubling,” he said.

“The concern here is that police officers have a different mandate from Crown prosecutors. They don’t have the same ethical obligations, and there doesn’t appear to be any oversight of their conduct in this particular role.”  

Tanovich says Crown prosecutors are well trained in legal and court procedures and have an ethical duty to run a fair bail hearing, while police are trained to investigate crime and protect the public.

The Edmonton Police Association, which represents front-line officers, also has concerns about its members playing the role of prosecutor.

“There needs to be a separation between police work and when the legal system takes off, and I think it was going over the line doing bail hearings,” said Maurice Brodeur, the association’s president.

Some members take great pride in running bail hearings, he said, and some do a very good job. But he has heard from officers who don’t like doing it and are intimidated by the role.

“They don’t have multiple years of legal training to do such things, and here they are going against fully trained defence lawyers.”  

Abandoned pilot projects had aimed at better bail hearings

The advantage of using police officers is convenience and cost. An accused has the right to a timely hearing, so they are often held at night and on weekends. To staff them all would force the province to pay additional prosecutors.

While she was justice minister, former Alberta premier Alison Redford initiated a pilot project that would have seen prosecutors do just that.

“Having Crown prosecutors present at bail applications will result in more appropriate detention orders and releases and ensure that those who should remain in jail remain in jail and those who should be released are released with appropriate conditions,” Redford told a legislative committee in 2009. The pilot project, which cost $1.8 million, was abandoned.

Even earlier, Barry Hill, a now retired Crown prosecutor, had been involved in efforts to build a better hearing system in Alberta.

His two-year project began in 2007 and was focused on northern Alberta RCMP detachments, where police are more thinly staffed. Many of the officers, he said, had little to no legal training.

“That was a problem, because they didn’t have familiarity with the basic ideas. They would learn by watching, I guess, or somebody teaching them.”

That teacher turned out to be Hill, who travelled from detachment to detachment delivering a PowerPoint presentation on how to run a bail hearing. He was also doing as many hearings as possible on his own, often late into the night.

One of the problems he encountered was incompatible computer systems. The Alberta Justice program developed for prosecutors would often flag issues with offenders that would not show up on police systems, such as multiple instances where an accused had violated conditions of a previous release.

“There was a big problem with some of these people being repetitively released.”

Another problem was a lack of staffing. Except for a secretary, Hill was on his own.

“The fact that the project never continued was a resource problem, but the fact that there’s arguments over it now I guess is really no surprise to me.”

Crucial information missing in Rehn hearing

Following the slaying of Wynn in January, Alberta Justice announced it would review the use of police officers in the system. But the question remains — would a better system have detained Rehn?

Tanovich, the law professor, reviewed a transcript from that hearing and points out that neither Rehn’s lengthy criminal record nor an emergency protection order obtained by his former common-law wife were raised.

“One of the problems in the case was that the officer clearly didn’t construct Mr. Rehn as a dangerous person. And what troubles me there is that Mr. Rehn had a history of domestic violence. And this is one of the problems when we don’t take domestic violence or gendered violence seriously.”   

Raising those points with the justice of the peace, Tanovich said, could have made a difference.

“I think there’s a good possibility he would have been detained or certainly he would have been subject to house arrest.”