Monday, February 23, 2009

Almost 1/3 of police charges get withdrawn or dismissed

According to recently released data by Statistics Canada on our adult criminal justice system, approximately 30% of charges laid by the police in 2006-2007 were either withdrawn by the Crown or dismissed or stayed by the courts.

Why is this happening? What role does race play? If a disproportionate number of these cases involve racialized individuals, then it would provide additional evidence of the scope of racial profiling. There is already some evidence that this is the case. In their 2008 series, Crime and Punishment, the Toronto Star uncovered data that reveals that racialized individuals are 53 percent more likely than Whites to be not convicted. No conviction is defined as (i) an acquittal; (ii) a withdrawal or stay of charges; and, (iii) a finding of guilt with a discharge on sentencing. See Rankin and Powell, "Is Justice System Blind to Colour" Toronto Star (21 July 2008).

One remedy is to have Crown Attorneys screen arrests before charges are laid. This is the current practice in British Columbia, Quebec and New Brunswick. See the discussion in McGoey, "The 'Good' Criminal Law Barrister: A Crown Perspective" (2004). In New Brunswick, only 16% of the cases were withdrawn or stayed as compared to 40% in Ontario where there is no pre-charge screening. While Ontario and other provinces have mandatory post-charge screening, the concern is the delay in review and timing of withdrawal.

Posted by Professor Tanovich

1 comment:

  1. This raises an interesting question of prosecutorial decision-making. Often the focus is on defence lawyers and their obligation to raise ethical issues and racial disparity in the criminal justice system. However, the focus should also similarly shift to the Crown with respect to the role it plays in effectively respond to or deterring racialized practices within their system.

    Further, if the Statistics Canada data is indicative of the issue of police “over-charging” racialized communities, then the Crown has significant legal obligations in examining why this is the case. In the true tradition of representing the Crown, both historically and even now, Crown counsel have tended to narrowly view the role of their office and their individual obligations. In response to the McGoey article of the “good” Crown, the Crown attorney has to similarly ensure the public interest is met given the significant racial profiling data out there today.

    The Crown can show its renewed commitment to serving the public interest by implementing a number of measures. Tracking and monitoring decision-making of both police officers and fellow prosecutors at critical stages that influence or determine the outcome of criminal cases can have profound implications for racialized individuals. Data is dispositive of the issue of discriminatory bail outcomes for racialized communities. For example, a 1995 Ontario review found that black individuals were less likely than their white counterparts to receive bail. Further, data shows that racialized individuals spend more time in remand (pre-trial custody awaiting trial). Indeed, Crown counsels have a broader public interest obligation to ensure a timely and fair prosecution conducted in good faith. They have the further obligation to be fully aware of the discrepancies in the criminal justice system that passively allow certain racialized accused to unnecessarily languish in custody awaiting trials that often never come to fruition.

    In addition, what is needed is a comprehensive and coordinated strategy to assist to identify patterns where race/ethnicity influences police officers' decisions to lay charges against individuals- with emphasis on their background and the type of charge being laid. A partial remedy would be for Crown offices to internally record data and use this collection system to monitor the practices of police officers relating to laying charges. A further benefit would be that the Crown would also be more cognizant of their duty to respond in a timely manner to correct these manipulations of the criminal justice system. Thus, internal guidelines in Crown offices across jurisdictions in Canada can promote race awareness in the criminal justice system.

    With respect to enacting pre-screening provisions in Ontario that follow those established in other jurisdictions, such as British Columbia, New Brunswick, and Quebec, greater collaboration between the Crown and the police agencies does not necessarily mean automatic transparency and partiality. The result may be collusion between the Crown and police as a result of this enhanced collaborative decision-making.

    British Columbia is a case in point. In B.C, the British Columbia civil Liberties Association (BCCLA) has expressed concern in the past with respect to investigations into police misuse of force against civilians where the discretion to advance a criminal charge rests with the Crown and where there is too much involvement between the two parties. The BCCLA's response has been in relation to the Robert Dziekanski taser death, where the Crown has decided against criminal charges for the four RCMP Constables involved in the incident. In B.C, there has been a call for an SIU modelled after Ontario where the director will have the authority to lay charges.

    However, in the true tradition of the Crown, in representing multiple yet often competing interests, the Crown will more effectively serve the public interest by establishing and following comprehensive internal guidelines that seek to address the disparities of the criminal justice system. A corollary of this would be the opportunity for the Crown to play a more modern role by monitoring and rectifying ‘racialized overcharging’ in policing practices. This, then, will truly encompass the modern role of the “good” Crown.