Crown prosecutor another key player
The issue of crime and policing involves many players. The obvious ones are: the public, the federal and provincial governments, the city, social service and community groups and the RCMP.
However, there is another front-line player who has a hand in the game – the B.C. Prosecution Service Criminal Justice Branch otherwise known as the Crown prosecutors.
The Crown Prosecutors under the Crown Counsel Act are responsible for making the charge assessment decision which determines where or not a prosecution will proceed.
The Criminal Justice Branch provides a Crown Counsel Policy Manual for prosecutors to follow when making the charge assessment decision. B.C. has adopted the ìpre-chargeî process where the police can only ìrecommendî charges to the Crown and not lay a charge on their own.
This “pre-charge” approval procedure also uses a different standard to test the evidence and is only used here and in two other provinces. The rest of the country uses a “post-charge” model where the police lay the charges and then they are reviewed by the Crown using a different standard to test the case.
B.C. prosecutors are mandated to test the evidence to the point they believe there is a “substantial” likelihood of conviction, while other provinces require a “reasonable” likelihood of con- viction. One word can make a huge difference in law.
To ordinary folks the outcome of the two processes many appear not much different; however, there is evidence of friction between the RCMP and the B.C. Crown due to the number of charges not approved or later withdrawn which results in a frustrated police service and citizenry.
It should be pointed out that the Criminal Justice Branch Crown prosecutors are facing their own challenges. In the 2016 report, “Championing Positive Change: Findings of the Review of The BC Prosecution Service,” author Murray D. Segal showed a dramatic increase in workload for prosecutors and the system as a whole regardless of the fact crime rates are falling.
Segal summed up the situation in his report this way, “The CJB conducts about 85 per cent of the cases within the Province. At any given time it has 20,000 to 30,000 active files before the courts. Ninety per cent of the work is in the Provincial Court. Over 90 per cent of the work gets resolved without a trial.”
Crown prosecutors can do only so much under the rules and with the resources they have available to them. They must make practical decisions and then prosecute the charges at the next level which are the law courts.
Judicial independence is paramount in the Canadian judicial system. The Canadian Constitution mandates the ju- diciary (judges) is separate from and independent of the other two branches of government.
As noted in Segal’s report, 90 per cent of CJB court cases are handled in provincial court. This means in Penticton most of the cases are tried by provincial court judges who are appointed by the lieutenant-governor after a recommendation process by the Judicial Council of British Columbia.
The Judicial Council is also responsible for a code of ethics for provincial judges and has adopted the Canadian Judicial Council’s “Ethical Principles for Judges” as the code and is online for the public to read.
There have been media and other reports about the staffing levels of provincial judges and court room availability, and, recently the provincial government has appointed more judges.
In addition to the ethical principles, judges are guided by court precedents and decisions by higher courts including the Supreme Court of Canada.
I sometimes hear people saying, “Lock them up and throw away the key.” Sometimes that does happen with dangerous offenders but that isn’t a realistic solution for our social problems.
Nevertheless, there is a need for the new Penticton mayor and council to come up with a way to nurture positive changes in the system. More on that in future columns. Murray Mason retired from a 28year career in a Canadian police service where he served as a uniformed officer, and later as a detective and in senior management. He now lives in Penticton, where he is a writer.