Crown Decision-Making Under the Youth Criminal Justice Act

Charge Approval, Proceeding with and Dropping Charges (continued)

4. Dropping Charges

All other factors being equal – a situation that never seems to occur in youth justice research – the rate of cases being terminated prior to adjudication[12] should be lower in B.C. than in Saskatchewan because, on the surface at least, one would hypothesize that the charge approval process in B.C. should weed out weak cases. In addition, there is the higher standard required to proceed with the case in B.C. There is limited, inconclusive evidence that these factors may, in fact, affect the incidence of dropped cases. According to Youth Court Survey data for fiscal year 2001-02, 34 percent of B.C. cases were stayed or withdrawn compared to 44 percent of cases in Saskatchewan.[13] In the year before, the difference was even larger; 30 percent of B.C. and 44 percent of Saskatchewan cases were terminated. Because of the multitude of factors that can affect case terminations, this is an extremely rough indicator of the effects of the standards of substantial and reasonable likelihood on adjudication rates. Clearly, however, more research is required on the effects of pre-charge screening by proseuctors before the linkage between this review process and the dropping of charges can be confirmed.

A variety of explanations were offered as to why charges are dropped by the Crown.[14] We were interested here in the reasons why some charges were dropped rather than others and especially why all charges in the case were stayed or withdrawn.[15] Interviews suggest that in many instances, charges are particularly likely to be stayed after the accused has entered a not guilty plea. In Saskatchewan, one defence lawyer claimed that cases are dropped only if the accused pleads not guilty.[16]

Most respondents said that witness non-appearance or witnesses changing their evidence were the main reasons why cases were dropped at the trial date. The age of the charges undoubtedly affects the memory and availability of witnesses so that the likelihood of conviction decreases as time goes on.

Organizational factors may affect termination of charges. A Saskatchewan defence counsel explained that trial dates are set in docket court and the Crown counsel working there are usually unfamiliar with all of the details of the alleged offences. When the trial Crown gets the case, she or he may discover that there is no evidence and stay the charges. Similarly, the facts of the incident sometimes change with time – upon closer inspection, “the case is simply not there”.

We're more likely to stay a charge because of change in evidence as opposed to a lack of evidence. For instance, six kids in a robbery; initially it looks like they're all involved but subsequent investigation will lead us to see that two were not actually involved (B.C. Crown).

Arguably, this reason suggests that active or rigorous inquiry by defence counsel about the “facts” of the case may encourage charge terminations.

Another factor increasing the likelihood of dropped charges was the lack of police expertise in collecting suitable and sufficient evidence.

We've got tons of cases where the police won't give me material evidence. For example, you have three kids and police catch them and they won't give you evidence how the two passengers knew the car was stolen. That's a glaring example. So I make the cops go get it and if they can't or won't, I won't be very patient with them. If someone is not a big risk, it is a small offence, and the police won't get me the evidence I want. I won't be patient and keep adjourning it [i.e., the charges will be stayed] (B.C. Crown).

With respect to the dropping of individual charges in a case, defence-Crown negotiations play a role. In addition, police often lay multiple charges in the expectation that some will be dropped.

With breaches especially, the police will charge every possible breach they can think of and they often overlap, for example curfew and residency. When kids have 15 or 20 charges, we're a little more relaxed on dropping some of them. Generally, the police aren't very happy with us if we go crazy with dropping them (B.C. Crown).

Court backlog was never mentioned as a reason for terminating cases prior to adjudication and when asked directly, Crowns denied that this had ever been done – in the words of one Crown, “it is unethical”.

5. Summary

British Columbia is one of two provinces in Canada where police do not lay charges. Pre-charge screening, or charge approval as the procedure is termed in B.C., involves a review of police documentation and a Crown decision to charge or to take no further action (other than perhaps a Crown caution letter).

In the B.C. charge approval sample, a slight majority were approved and therefore charged by the Crown. Among the cases that were observed, pre-charge referral to EJS was rare. Crowns may approve charges with the intent of later diverting them post-charge in order to impress upon the accused the seriousness of his/her behaviour. Most cases of no further action were not approved because the Crown assessed the evidence as insufficient to meet the standard of substantial likelihood of conviction; a good number were dropped because of procedural flaws. About half of both approved and non-approved charges involved young persons with prior findings of guilt.

Unlike other decisions described in this report, the primary source of information in charge approval is the police report and the prior record of the young person. Only if the youth has had previous youth justice system experience may others become involved.

In one of the charge approval cases, the Crown acknowledged that the decision to charge also involved the desire to protect a 15 year old, substance abusing prostitute from herself. Other decisions were more in keeping with the principles of the new legislation. A good majority of cases screened out of the system did not meet the substantial likelihood of conviction standard found in British Columbia. Interviews with Crown and defence counsel in both provinces were not helpful in determining the differences, in operational terms, between substantial and reasonable likelihood of conviction.

Why some cases end because all charges dropped was partly resolved in interviews with Crown and defence counsel. Respondents provided a number of reasons: witnesses did not appear or changed their evidence; the charges had aged so much that witness memory would be questionable; evidence had turned out less solid than it initially appeared; and police inability to obtain sufficient evidence to proceed. A plea of not guilty seemed to precipitate re-consideration of the likelihood of conviction.