Charge approval vs. the Ontario model of after the charge screening in Ontario.

criminal chargesAfter my second year of law school, I worked for the Federal Crown Prosecutor’s office at Main and Hastings in Vancouver. The epicenter of drug crime in Canada, from street level hand-to-hand transactions to massive importing cases, I was wholly immersed in all aspects of the Criminal Justice system. On the Crown’s side, that is.

During what is colloquially referred to as a “summer article” I was given the opportunity to conduct bail hearings in front of judges and participate in the Charge Approval process. In British Columbia, charge approval is a fundamental aspect of Criminal Procedure. It is the very first step in the criminal process, in that a Crown Attorney decides whether, on the synopsis provided by the arresting officer(s) and their notes, to lay a criminal charge as a result of that arrest. This seemingly simple first step is a pivotal one in the eventual impact the laying of a criminal charge will have on an individual. The reason for this seems obvious: once a criminal charge is laid, it is very difficult to make it go away.

Most Canadian jurisdictions have a threshold to reach before a charge can be laid; in British Columbia, Crown Attorneys exercise a quasi-judicial function when deciding whether to lay a charge. If that threshold is not met, and there is no reasonable prospect of conviction, the charge dissolves and no further action is taken against the arrestee.

Although Criminal Law is under Federal jurisdiction pursuant to s. 91(27) of the Constitution, the provinces have the power to regulate the administration of justice under s. 92 (14). This is how different provinces can administer the same Criminal Code in dissimilar procedural ways.

What difference does it make for charge screening?

Another consideration Charge Approval addresses are the implications on the accused. When someone is charged, they may not get bail; if they do, their liberty will be severely restricted. Their reputation can suffer irreparable damage, and perhaps least importantly, the financial aspects of not only retaining a lawyer to fight the charges, but also the loss of earnings whilst on bail and the impact on future earning capacity a criminal charge will make, necessitate a high level of scrutiny when allegations are made.

To me, British Columbia had gotten it right. There, charges are not laid by police but by Government lawyers. This is the most fundamental procedural difference between British Columbia and Ontario and what ultimately leads to a more transparent system of justice. Crown attorneys are not only representatives of the Attorney General but are also members of the Law Society; for these reasons they are bound by a higher ethical and legal standard than Police Officers. Not only are Crowns legally educated, trained and liscenced, but are further bound by the code of ethics mentioned above. This puts Crowns in a better position to approve criminal charges and begin their prosecution than police officers who do not benefit from the same legal education.

Further, Crown counsel are entrusted with “judge-like discretion” in the charge approval process, meaning it is incumbent upon them to maintain very high standards of fairness and impartiality. Their decisions are made in a judge-like atmosphere necessitating independence and neutrality. One must not think of how the decision may be justified, but must make that decision based on fact — absent emotion or partiality toward one side – removed from the usually adversarial trial process.

Crown Attorneys must further consider whether there is a “substantial likelihood of conviction” from the facts of the arrest, and if it is in the interests of society to prosecute the case. The substantial likelihood test is a high one – probable conviction or likely conviction will not suffice – there must be a substantial likelihood the person will be convicted before a charge will be laid. This is a crucial concept in any criminal justice system, and one that British Columbia’s charge approval process adequately addresses.

The final prong of the test as alluded to above is whether the prosecution is in society’s interest. Nebulous in its application, this prong requires Crown Attorneys take into account the larger societal interests engaged by the Criminal Justice System. The rights of both victim and accused are tied into this finding, resulting in an all encompassing consideration that must be made before each and every criminal charge is approved of.

Which brings me to my point: our system of justice guarantees that one will be presumed innocent until proven guilty. What I find irksome about the practise of criminal law thus far is not weekend in-custody visits, the brutally long hours or the perpetual state of argument in which we find ourselves – it is that somehow, Canadians have forgotten our Constitutionally protected presumption of innocence and have decided that everyone who is charged must be guilty. And I haven’t even been called to the bar yet.

Further exacerbated by the media, and society’s seemingly insatiable appetite for salacious fact patterns, when a criminal charge is laid the balance seems to be overwhelmingly tipped against the accused. The rank and file Canadian doesn’t realise that because criminal charges are laid by the Police in Ontario, all that is required before a charge is laid is an allegation. No corroboration or substantiation are required at this stage: just an allegation. And I realise this is a better alternative to the converse: that victims of crime be ignored and charges not laid as a result. That is certainly a result that has been and should be protected against. But at what cost to the one against whom the allegation is made?

Our current system has created an environment in which new “tough on crime” legislation is being introduced annually, more charges are being laid, requiring more prisons, more Crowns to prosecute these cases, more stress cast upon an already bucking criminal justice system and more people being incarcerated at rates never before seen in Canada. Yet crime rates have been in steady decline since 1973.

[1] So why the hysteria?

Charge approval is just one potential solution. But in my very limited experience, it’s one that can simply and effectively be implemented to alleviate the strain on the system. By not laying charges based on unsubstantiated allegations or for minor arrests wrought with constitutional violations, the overall goals of the Criminal Justice System can be better served and society’s interests better protected.

by Anna Stuffco, Student-at-Law

[1] Statistics Canada: