Pre-charge screening: a report
June 11 2017 - Chris Williams
Crowns or Cops?: An Examination of Criminal Charging Powers in Canada
Christopher J. Williams
(Toronto Police Accountability Coalition)
Across Canada there are about 68,000 police officers, and many of the criminal charges laid are laid by these officers. Given the wide disparity in the number of communities and the way officers are managed, there is often little consistency in the facts which underlie particular charges and which come before the courts.
Three provincial governments have taken steps to rectify this situation British Columbia, Quebec, and New Brunswick. All three have set in place systems where there is pre-charge screening by crown prosecutors: instead of waiting for courts to determine there was little merit in the charge or the case had other deficiencies, this task is undertaken by the crown before it reaches the court.
There are three clear conclusions of what happens in the three pre-charge provinces:
1. The courts in pre-charge provinces have considerably lower caseloads, an average of 22 per cent lower than the other provinces. To compare the two largest provinces: if Ontario used the pre-charge system established in Quebec, the case load in Ontario would have been 70,500 rather than 93,700.
2. Multi-charge cases often a sign of over-charging are much less frequent in pre-charge provinces. For instance, Ontario has 1.7 times the population of Quebec, but 2.5 times as many multiple-charge cases. Therefore Ontario has 1.5 times as many multi-charge cases per capita than Quebec.
3. In pre-charge provinces many fewer cases are either stayed or withdrawn. The number stayed or withdrawn in Quebec is 9 per cent; in Ontario, 46 per cent.
Pre-charge screening leads to better use of precious court time, as well as the time and energy of those in the criminal justice system, and protects members of the public from charges deemed not supportable by the court.
Among all of the ways in which state power can be exercised in relation to the citizens and residents of a polity, criminal justice interventions are among the most consequential. More specifically, when state agents such as police officers and prosecutors initiate and execute processes of criminalization the results for affected individuals can be dire. With respect to the criminal conviction, often characterized as a secular Mark of Cain, the reputational repercussions are notable, as are the exclusions (e.g. ineligibility for certain forms of employment) experienced by the criminally convicted. Moreover, aside from the possibility and actuality of wrongful convictions, everyday observers are standardly unsympathetic in the face of these realities, a view rooted in the proposition that those who had their day in court are justifiably marginalized.
But the concept of criminalization encompasses more than the handing down of convictions, for charges alone those that do not eventuate in convictions can be profoundly damaging. Gary McCuaig, a former Chief Crown Prosecutor in Alberta, explains that
If a charge is laid and then stayed because of a lack of evidence, an accused may be exposed to all the negative consequences of being charged publicity, employment problems, border crossing problems, child access problems if a family violence charge when he arguably should not have been charged at all. This is particularly so in cases of sexual misconduct, where no amount of explanation after a stay can undo the damage to an accuseds reputation.
In strikingly similar terms, a 2012 report by the British Columbia Civil Liberties Association places emphasis on the disruptive and potentially destructive impacts of charges on accused persons and their immediate relatives:
it is...important to note the personal hardship endured by individuals and their families upon being charged with a criminal offence when the cases collapses before a trial or guilty plea. The process of being arrested and charged, has dramatic consequences regardless of the outcome of the case. Employment or health care may be interrupted. Accused persons may be forced to endure onerous bail conditions including ones requiring them to have no contact with family and friends, not attend certain locations, or respect a curfew or house arrest. In many cases where charges are ultimately stayed or withdrawn, many individuals and families rightly feel that these incursions to their liberty were unjustified and improper.
Bearing these points in mind, a liberal democracy that engages in the liberal issuance of criminal charges is presumably functioning in a profoundly illiberal manner. Against such practices, therefore, one would expect that a high justificatory threshold would apply to any and all instances when an individual is charged in order to minimize the likelihood of unnecessary charges. But to what degree does this standard and ideal hold in Canada? Formulating an answer to this question requires, firstly, a recognition that there is no singular Canada with respect to this subject. There is, instead, a Canada consisting of three provinces British Columbia, Quebec and New Brunswick in which police officers investigate alleged crimes then forward reports (including recommended charges) to Crown counsel who can then decide to lay charges, not lay charges or invoke alternative (non-court) measures; this approach is known as pre-charge screening. In the other Canada the remaining provinces and territories that account for 62% of the national population the powers of investigating and charging lie with the police, though Crown counsel can subsequently amend or drop charges; this approach is typically referred to as post-charge screening. That which follows is a critical overview of both forms of screening; since post-charge screening is the dominant charging process, and since pre-charge screening is in many ways a reaction to post-charge screening, we will begin with the latter.
II. Theres No Excuse For It: The Pitfalls of Post-Charge Screening
In theory, one might contend, the police are well situated to exercise the task of laying criminal charges. In addition to having greater first-hand knowledge of incidents than any other set of criminal justice actors, their longstanding institutional experiences with the court system specifically, determinations of viable vs. unviable charges means that their charging practices will be appropriately calibrated. And given their status as public servants who are said to have full respect for the public interest, they will be inclined to do their part to ensure the courts are not burdened by unmanageable case loads.
In reality the police exhibit tendencies in the direction of charging promiscuously and illogically. Police overcharging is a daily occurrence, states Ian Hunter, professor emeritus in the faculty of law at the University of Western Ontario, while lawyer Edward Greenspan observes that the police lay charges and often times they will lay charges based on insufficient information. One explanation of excessive/erroneous charging suggests that it stems from a combination of thoughtlessness on the part of the police combined with their apparent ignorance of contemporary developments in Canadian jurisprudence: In a post-charge regime, the police, in laying charges, do little actual screening&There is little assessment of any viable defences, nor can the police be expected to be current on sophisticated Charter issues and decisions. Cops are not quasi-lawyers, in other words, and the nature of their occupational milieu is not conducive to the attainment of cutting-edge legal knowledge.
Beyond this rather benign explanation of police overcharging lie other perspectives which are more critical and even damning. A prime example was provided in July 2005 in Ottawa when Justice Richard Lajoie acquitted a defendant, Chadwick Lamoureux, of 52 charges stemming from a November 2003 incident involving breaking and entering with theft. Aside from rebuking the police for putting forth inadequate evidence and for overcharging, he implied that the officers were motivated by the desire to inflate crime statistics for the purpose of bolstering arguments for higher police budgets. Minus speculation about budgetary considerations, Toronto lawyer Frank Addario also, at an earlier point in time, noted that police overcharging has obvious distortive effects on crime statistics, while adding there's no excuse for it. There is no reason, when two kids have stolen a case of Coke, to charge them with 12 counts of theft and 12 counts of possession. While Addarios sense of indignation is understandable there is, however, a well-established reason why overcharging exists.
Conceptions of police power as coercive are often underpinned by images of police officers pointing guns at suspects, stopping and searching individuals in the name of proactive policing and the like. But much of their coercive currency is spent in off-the-street situations wherein arrestees can find themselves staring down the barrel of several charges, the likes of which are issued by officers for the purpose of generating guilty pleas. As a Globe and Mail editorial put it, sometimes, police lay more charges against an accused person than can practically be sustained, precisely in order to induce the defendant to plead guilty to the more solidly grounded charges. A letter to the same newspaper provides a thoughtful perspective on the mutually reinforcing relationship between plea bargaining and overcharging:
Plea bargaining is the process by which the Crown agrees to drop one or more charges against an accused in return for a guilty plea on the remaining charge(s)&Boilerplating is also a long-standing practice, whereby police, knowing plea bargaining is likely to occur, charge an accused with as many offences as they believe might apply in the hope that one or more will stick. More boilerplating leads to more plea bargaining leads to more boilerplating. Everyone involved, often including the accused, knows what's happening. Everyone knows the dance steps, no one bothers to ask why they're still dancing.
So, contra Addario, there is a reason for overcharging; the apparent madness is methodical, highly incentivized and effective to the point where the majority of charged individuals never go to trial.
It should be added that overcharging is not always a matter of quantitative excess because there are situations when a single charge constitutes overcharging. In these instances which are examples of what one might call qualitative overcharging evidence in support of a particular charge (e.g. drug possession) is overridden in favour of a more serious charge within the same offense category (e.g. drug trafficking). Here, the master objective is the same as with quantitative overcharging, namely, the extraction of relatively expeditious guilty pleas. Determining the national prevalence of qualitative overcharging is a difficult task but in certain jurisdictions valuable suggestive research has been conducted.
In 2012, for example, a Winnipeg Free Press analysis of 80 killings originally charged as first or second degree murder revealed that 38 of them were later reduced to manslaughter convictions. As the article notes, this is indicative of the issue of overcharging, in which an obvious manslaughter case is initially treated as murder&This may be done to help expedite bargaining between lawyers to ensure a conviction is obtained without going to trial. Far from enamoured with such practices, Marc Rosenberg, an Ontario Appeal Court Justice, laments, I'm not sure how we came to a place where a coercive way is a legitimate way of doing practice. The inducement to plead guilty is too extreme. And given the connection between defendant financial resources and criminal defence effectiveness, coercion in the form of overcharging is felt with particular force by those on the lowest rungs of the socio-economic ladder.
All things considered, the two-headed entity consisting of overcharging and plea bargaining is dually problematic. In addition to running contrary to a host of legal system ideals honesty, integrity, fairness these practices even fail on the narrow technocratic grounds of bureaucratic efficiency. Though it can be stated that one duty of a conscientious prosecutor is to prune away excessive charges and to proceed only on those which are not duplicative and where there is a reasonable prospect of conviction, no amount of well-intentioned pruning seems able to render post-charge screening systems capable of handling massive inflows of police-issued charges, particularly in Canadas most populous province. Commenting on the Ontario system, one observer rails against the prevalence of dead-on-arrival charges which result in a court system gummed up with cases that go nowhere. Zeroing in on one part of Ontario, Michael Edelson, past president of the Defence Counsel Association of Ottawa, notes the following: In the Ottawa area alone, various police agencies laid 33,678 criminal charges against individuals between January and October 2011. These ranged from minor summary conviction offences to the most serious indictable crimes, such as murder. The Office of the Crown Attorney has approximately 45 lawyers on staff to prosecute this massive caseload. What we have here, then, is analogous to medieval water funnel torture except it is self-inflicted to a substantial degree.
III. Weed Out The Stuff: The Logic of Pre-Charge Screening
According to James Stribopoulos, formerly a professor at Osgoode Hall Law School and now a judge in the Ontario Court of Justice, pre-charge screening is a really effective way of ferreting out meritless cases early on in the process and also noticing deficiencies in cases early on in the process, which translates into tremendous savings in terms of resources. Claims along these lines are not hard to find among legal experts who are not only familiar with the officially articulated principles and goals governing pre-charge screening, but also knowledgeable about relevant comparative (province by province) statistical data.
As noted earlier, pre-charge screening constitutes a reaction to longstanding post-charge systems. Far from being instances of change for the sake of change, transitions to pre-charge legal regimes were stimulated by shortcomings associated with having the police in charge of charge decisions. Consider, in this regard, the historical experience of British Columbia:
Up until the mid-1970s, a variety of post-charge assessment systems were in use in various municipalities in the province. In 1974, a more uniform charge assessment practice began to develop with the establishment of the Crown Counsel system. At that time, significant court delays and stays flowing from inadequate police reports and unprovable charges had become a problem. There was still no one charge approval standard in use throughout the province...In 1982, a Ministerial Task Force recommended that the Crown take over the charging function to help improve the quality both of police reports and cases moving forward. These recommendations were adopted and widely credited with improving efficiencies and saving costs.
Robert Gunnell, a lawyer based in Maple Ridge, effectively captures the core reasoning of this post-charge to pre-charge transition when he interrogatively declares, If you want to weed out the stuff that shouldnt be there, isnt it better to get that done before somebody is charged?
The weeding out processes that are part and parcel of pre-charge screening are guided by a host of injunctions contained within Crown counsel manuals. For instance, the Public Prosecutions Operational Manual of New Brunswick and the Crown Counsel Policy Manual of British Columbia both place emphasis on factors that do not support a prosecution, including, respectively, the loss or harm can be described as minor and was the result of a single incident, particularly if it was caused by misjudgment and a conviction is likely to result in a very small or insignificant penalty. The reality of finite resources combined with a desire to prioritize middle and high level incidents provides the impetus for these guidelines which, in a sense, represent applications of the logic of triage to the legal world.
As an alternative to post-charge screening, the expectations placed upon Crowns in pre-charge systems encourage rational reductions in (1) the range of occurrences handled by these systems, and (2) the number of charges attached to individual occurrences. Over the past twenty years, more and more critical observers have described criminal justice as a monstrosity with too many tentacles extending in too many directions. The criticisms are familiar (e.g. in the past you went to the principals office, now you go to the police station) and the consequences, such as gratuitous criminalization, are well documented.
With an eye toward departing from these expansionist tendencies, pre-charge regimes highlight the selective desirability of alternatives to criminal justice processes: Information with respect to the suitability of a candidate for diversion or alternative measure is a factor to be taken into consideration by Crown Counsel in reaching a final charge assessment decision. And in standard situations, when charges are issued, Crowns are directed to reject overcharging. To wit: prosecutorial norms in New Brunswick dictate that where more than one charge may apply, the Crown Prosecutor will choose the most appropriate charge(s) to reflect the circumstances of the case. The Crown Prosecutor will not lay two or more charges for the sole purpose of being able to negotiate a guilty plea. True, gaps between rhetoric and reality are quite common in the legal world yet even moderate adherence to this principle would render pre-charge systems less coercive and more in keeping with the presumption of innocence than their post-charge counterparts.
IV. Key Propositions and Corresponding Data
Proponents of pre-charge screening periodically express opposition to post-charge screening during times when the former comes under review and certain voices such as those of the police put forth assertions in favour of the latter. In British Columbia in early 2012, for example, a criminal defence lawyer in New Westminster had this to say about proposed changes: You start having police review charges and determine charges and the Crown, in robotic fashion, goes forward and tries to prove those charges...get ready for more acquittals, get ready for more wasted court time, get ready for more guys like me...making more in the process and having a larger acquittal rate. And when Gary McCuaig completed his system review later that year he noted, among other things, that
if the police are able to lay charges, it is inevitable that additional charges be they summary conviction or hybrid will enter the system&These additional charges will have to be dealt with, and Crown and court time used, when there may be other ways to address the same problem (Alternative Measures/revocation of bail) rather than a separate charge.
However, neither of these prognosticators paired their claims with corresponding data, an analytical deficit that we will now seek to remedy. The material which follows addresses three propositions, all of which speak to indications of the degree to which criminal charging practices in pre-charge systems depart from, or are in accord with, those of post-charge systems.
Proposition #1: Relative to their levels of crime, pre-charge provinces will have lower case loads than post-charge provinces.
Table 1 features data on the number of court decisions for each province in 2014-2015, the number of criminal incidents reported to Statistics Canada by police in 2014, and a Court Decision to Criminal Incident (CDCI) Ratio which we have devised to capture the degree of charge selectivity that obtains in each province. A higher ratio signals greater selectivity perhaps indicative of quality control such that, say, a jurisdiction with a 1:8 CDCI ratio is more selective than one with a 1:6 ratio.
Table 1: Court Decision to Criminal Incident (CDCI) Ratios
(Single-Charge Cases and Multiple Charge Cases in 2014-2015)*
Police-Reported Criminal Incidents
1 : 6.9
1 : 12.5
1 : 7.1
Average CDCI Ratio
1 : 8.8
1 : 8.3
Prince Edward Island
1 : 7.9
1 : 6.8
1 : 5.2
1 : 6.7
1 : 7
1 : 8.8
Average CDCI Ratio
1 : 7.2
*Source: Cansim Table 252-0053 Adult criminal courts, number of cases and charges by type of decision.
**Source: Juristat Police-reported crime statistics in Canada, 2014
***This is a figure adjusted upwardly from the figure found in the Cansim table (35,776 decision) to reflect the fact that in Quebec 14% of cases are heard in municipal courts and are not reported to Statistics Canada.
From a broad standpoint, the most notable finding is that pre-charge provinces, with an average CDCI ratio of 1:8.8, are 22% more selective than post-charge provinces which have an average ratio of 1:7.2. A more specific examination of three pairs of comparable provinces demonstrates that British Columbia is 42% more selective than Alberta, Quebec is 33% more selective than Ontario, and New Brunswick is slightly more selective (5%) than Nova Scotia. Additionally, the application of the pre-charge CDCI ratio to certain post-charge provinces provides an indication of the significant caseload reductions that could be achieved if charge decision-making power shifted from police officers to Crowns. So, for instance, if Ontarios ratio was 1:8.8 (instead of 1:5.2) then its caseload would have been 55,270 rather than 93,700 or about 40% fewer cases.
Proposition #2: Multiple-charge cases will be less prevalent in pre-charge provinces in terms of raw numbers and as percentages of total cases.
Table 2 features data on the total number of cases in each province in 2014-15, the total number of multiple-charge cases in each province, and the percentage of cases that constitute multiple-charge cases. When population and crime rates are taken into account, provinces with relatively high numbers of multiple-charge cases may be regarded as having issues with over-charging.
Table 2: Prevalence of Multiple-Charge Cases
(Single-Charge Cases and Multiple Charge Cases in 2014-2015)*
Number of Multiple-Charge Cases*
Percentage of Court Decisions Pertaining to Multiple-Charge Cases
Prince Edward Island
*Source: Cansim Table 252-0053 Adult criminal courts, number of cases and charges by type of decision.
** This is a figure adjusted upwardly from the figure found in the Cansim table (19,240 multiple-charge decisions) to reflect the fact that in Quebec 14% of cases are heard in municipal courts and are not reported to Statistics Canada.
Overall, pre-charge provinces have, on average, a 6% lower share of total cases that are multiple-charge cases; but the truly striking disparities emerge when examining comparable provinces at the level of raw multiple-charge case totals. For instance, Ontario has 1.7 times the population of Quebec, and a very similar crime rate, yet Ontario has 2.5 times as many multiple-charge cases. Shifting to the west, Alberta has 25% more multiple-charge cases than British Columbia despite having 10% fewer residents and a 7% lower police-reported crime rate. On these measures the differences between New Brunswick and Nova Scotia are less pronounced yet Nova Scotias multiple-charge caseload would drop from 4,970 to 4,200 if it had the same percentage of multiple-charge cases as New Brunswick (57%).
Proposition #3: Pre-charge systems will generate fewer cases that conclude by being stayed or withdrawn.
Table 3, the most simple and straightforward table, is also the most striking in terms of its display of pre-charge vs. post-charge disparities; it features province-by-province data on the percentage of cases stayed or withdrawn during 2014-2015.
Table 3: Stayed or Withdrawn Cases
Percentage of Cases Stayed or Withdrawn (2014-2015)
Prince Edward Island
Source: Cansim Table 252-0053 Adult criminal courts, number of cases and charges by type of decision.
In post-charge jurisdictions in which the police lay charges, cases are 1.8 times more likely to end up being stayed or withdrawn than in pre-charge provinces. This underscores the validity of a previously quoted commentators lament about an overabundance of dead-on-arrival charges, as well as criticisms, put forth by journalist Rosie Dimanno, about charges that are laid and subsequently dropped because there was no reasonable substance to them and zero likelihood of conviction.
A focus on two comparable provinces Ontario and Quebec reveals that Ontario cases are 5.1 times more likely to be stayed or withdrawn than those in Quebec. In 2014-2015, throughout Canada, 83,717 cases were stayed or withdrawn; Ontario, with 39% of the national population and a lower than average crime rate, accounted for 52% (43,265) of these cases, equalling 832 dead cases per week.
V. Concluding Remarks
Expressing a view that is in close accord with our findings, an evaluation of the BC criminal justice system declares that vetting by [the] Crown removes frivolous or weak cases at the front end rather than wasting court resources only to have those cases collapse at a later stage. Still, an appropriately nuanced perspective must acknowledge the meaningful degrees of differentiation that exist among post-charge provinces. In the two least populous provinces Newfoundland and PEI police seem to exercise their charging power quite judiciously as measured by CDCI ratios, prevalence of multiple-charge cases and percentages of stayed or withdrawn cases. Speculatively, this may be related to the salience of interpersonal familiarity in these provinces; over-charging the nephew of the friendly local bar owner is presumably less acceptable than saddling a stranger with excessive charges, for example.
It is in larger provinces those with populations over one million where police charging appears to be most problematic. Large numbers of gratuitous charges waste massive amounts of money and time. And, even more consequentially, they visit an array of hardships on individuals who, in the end, are quite likely to see their charges stayed or withdrawn. These grim processes are especially pronounced in Ontario, a province in which charging power in the hands of 26,000 police officers produces system-wide waste, inefficiencies and state-sanctioned coercion in the form of over-charging. If, at some point, Ontario transitions to pre-charge screening, and if other provinces follow suit, then by almost any measure the effects on the Canadian criminal justice system would be salutary.
British Columbia Guidelines for Police Preparation of Reports to Crown Counsel
Report to Crown Counsel
In order that Crown Counsel may appropriately apply the charge assessment standard, the Report to Crown Counsel should provide an accurate and detailed statement of the available evidence. The following are the basic requirements for every Report to Crown Counsel whether the information is provided electronically or not:
1. a comprehensive description of the evidence supporting each element of the suggested charge(s);
2. where the evidence of a civilian witness is necessary to prove an essential element of the charge (except for minor offences), a copy of that persons written statement;
3. necessary evidence check sheets;
4. copies of all documents required to prove the charge(s);
5. a detailed summary or written copy of the accuseds statement(s), if any;
6. the accuseds criminal record, if any; and
7. an indexed and organized report for complex cases.
If the Report to Crown Counsel does not comply with these standards it may be returned to the investigator with a request outlining the requirement to be met.