Alberta Justice and Solicitor General continues to explore adopting a system where Crown prosecutors screen all criminal charges before police lay them, a move welcomed by associations representing lawyers and met with cautious support from police chiefs.
A “pre-charge approval system” already exists in three other provinces and could ease strain on police, prosecutor, and court resources while reducing the number of charges that are ultimately stayed or withdrawn in court, the ministry’s latest annual report states.
RCMP detachments and Crown prosecutor offices in three communities — Hinton, Canmore, and Strathcona County — used the system for six months in late 2019 and early 2020.
“At the end of the pilot, all of the detachments and Crown offices asked to continue using the pre-charge process,” ministry spokesperson Katherine Thompson said in a statement. She said after positive results, those communities will keep using the system and the pilot project will expand to Red Deer this fall.
There was a decrease of 21 per cent in commenced cases and 29 per cent in criminal charges laid compared to the same time period the previous year, Thompson said, adding the pre-screening had “little to no impact” on the timeliness of laying charges.
University of Alberta law professor Steven Penney said the system is generally recognized as more efficient and fair because it helps winnow out charges that likely won’t succeed in court.
“The police perspective on things at the time that they lay the charges may appear to be reasonable to them, but they’re not lawyers,” Penney said.
He said police may not understand some of the hurdles in proving a case, and other problems, such as changes in evidence or witness testimony, may arise.
“When there is an opportunity for a Crown prosecutor to become involved earlier in recommending or deciding whether charges should be laid, there are fewer bad cases that end up in the system,” he said.
In a 2017 report that drew on Statistics Canada data, criminologist Christopher Williams concluded that the courts in the three provinces that use the pre-charge system — British Columbia, New Brunswick, and Quebec — had, on average, caseloads that were lower by 22 per cent.
Williams said in addition to saving scant court resources, such a system guards against “over-charging” and “protects members of the public from charges deemed not supportable by the court.”
Alberta Justice and Solicitor General developed the pilot project with the RCMP and the Public Prosecution Service of Canada. It acknowledged that police use a different test in laying charges than Crown prosecutors use in determining whether to proceed with those charges, said Thompson, the ministry spokesperson.
“The pilot project looked at if a process could be established to ensure that only charges that meet the higher prosecutorial standard are laid,” she said.
McFee said as the pilot scales up to Red Deer, a larger city, a willingness to deviate from a one-size-fits-all approach will be key.
“It is just going to be pretty important that you are looking at the local environment, what the capacity is, and certainly how you can deal with it in a timely manner,” he said.
Widespread support among lawyers
Damian Rogers, president of the Alberta Crown Attorneys’ Association, said he thinks most provincial Crown prosecutors support moving to a pre-charge approval system.
“We see it as offering the potential to get files from police in a more ready-for-prosecution state and that it can potentially reduce the amount of work that both police and prosecutors put into files that aren’t prosecutable or aren’t in the public interest to prosecute,” he said.
It would mean dedicating more prosecutor resources earlier on in cases but eliminate time the Crown currently spends reviewing charges it ultimately decides not to proceed with, he said.
Rogers said colleagues in B.C. and New Brunswick have said the system “improved the working relationship between police and Crown prosecutors and that it improves the quality of files that they get from police.”
“Sometimes these are criminal charges that are not borne out by the evidence on the file,” association director Amanda Hart-Dowhun said.
“And then it is only when the Crown prosecutor or sometimes the court takes a closer look that they are withdrawn or otherwise dismissed,” she said. “And until that happens, they clog down the system that is already pretty strained.”
Court delays can also lead to stays of criminal charges even if those charges would likely succeed on prosecution.
A landmark 2016 Supreme Court of Canada ruling, known as the Jordan decision, set a limit of 18 months between the laying of charges and the actual or anticipated end of a trial in provincial court. For superior court cases, the limit is 30 months.
Defence lawyers can file what are known as Jordan applications to suspend their clients’ cases if there are unreasonable delays.
The Alberta Justice and Solicitor General annual report shows that since that ruling, and as of March 31, 2020, the courts have granted 28 Jordan applications.