Did they sell us a Rusted Ol'Jalopy?

Did they sell us a Rusted Ol'Jalopy?

On August 1^st, 2019 I responded to a CBC article titled “Hundreds of Calgarians charged with crimes walk free due to a lack of prosecutors”.  

https://calgary-law.ca/blog/truth-or-propaganda-hundreds-of-cases-stayed-due-to-manpower-shortage

The message of this post was a cautionary word; specifically, that the article read to me as more of a one-sided propaganda piece designed to attract public support for more government spending. Over a few months, the CBC published a series of articles driving this narrative.  I responded to some of them:

https://calgary-law.ca/blog/expanding-the-prosecutors-office-continuing-the-debate/

PROOF THEY SOLD US A RUSTED OLD JALOPY

In my post, “Truth or Propaganda: Hundreds of Cases Stayed due to Manpower Shortage”, I responded to information supplied by the Government that Alberta needed more lawyers to reduce the accused-to-prosecutor ratio.  I concluded my post as follows:

 “….though I have serious reservations about the assertion that the Crown Prosecutor’s Office in Calgary is suffering from a manpower shortage, I am not saying that the Government’s claim is necessarily untrue.  What I am saying is that there is little or nothing in the CBC news article that persuades me the Government's claim is true and when left in an information vacuum, I don’t it accept it as such.  In this writer’s view, there are many informational gaps in the article and many questions left unanswered.”

Leading up to this conclusion, I addressed the Government’s assertion that the ratio of accused-to-Crown justified the expensive new hires.

“Though I have no reason to doubt the statistic, I have reason to think that the statistic fails to tell the entire story.  It is worth mentioning that in Alberta, most criminal charges are laid by the police.  Other Provinces, however,  endorse a system not used in Alberta called "charge approval". In Ontario and British Columbia (two Provinces mentioned in the CBC news article), Crown counsel reviews every report sent to them by the police or other investigative agencies to decide whether someone will be charged with a criminal offence.  In other words, in other Provinces, the Crown decides whether a person will be charged and if charged, the allegations they will face”.  

It is important to emphasize that as of August 2019, there was plenty of evidence from law enforcement and prosecution agencies that Crown “charge approval” was capable of dramatically decreasing the number of cases handled by local prosecutor’s offices and in the courts. 

THE ALBERTA PRE-CHARGE APPROVAL PROJECT

On September 2^nd, 2020 the CBC released an article titled “Alberta Government Expands Criminal Pre-Charge Screening Project”. 

https://www.cbc.ca/news/canada/edmonton/alberta-government-expands-criminal-charge-pre-screening-pilot-project-1.5708710

According to the article, in mid-to-late 2019 (the time the Government was asking the taxpayer to fund more lawyers), it was either in the midst of a charge approval project or was planning one. As reported by the CBC:

“RCMP detachments and Crown prosecutor offices in three communities — Hinton, Canmore and Strathcona County — used the system for six months in late 2019 and early 2020”.

To my mind, before priming taxpaying Albertans in late 2019 to endorse the hiring of more lawyers it was incumbent on the Government to advise that they were either in the process of evaluating the costs and benefits of charge approval or about to launch the project. 

On September 2^nd, 2020, the CBC provided some important information. 

As a result of “charge approval”, “…there was a decrease of 21 per cent in commenced cases and 29 per cent in criminal charges laid compared to the same time period the previous year…”. 

Now, reflect on what the Alberta Crown Attorney’s Association sold us in August 2019:

 “Alberta prosecutors have the highest caseload in the country behind Saskatchewan and more hires are desperately needed, according to the ACAA”. In August 2019 the ACAA added:

“About 350 prosecutors are employed in Alberta. Calgary General Prosecutions has 66 prosecutors. 

With 309 people charged per prosecutor, Alberta's ratio is the highest behind Saskatchewan.

For comparison, Ontario, Quebec and British Columbia prosecutors handle an average of 193, 175 and 121 persons charged, respectively”.

Now, adopting some information from the most recent CBC article, accepting a decrease of 21% in commenced cases, suggests a 21% reduction in cases in people charged per prosecutor. Doing the math, that means the ratio of accused to prosecutor drops to about 244 people charged per prosecutor; and that’s not the end of things, for “charge approval” also resulted in an additional reduction of 29% in criminal charges laid. This means that the ratio arguably drops to around 167 people charged-per-prosecutor – a number not as low as British Columbia, but lower than Ontario and Quebec.  

Is this proof that the ACAA and UCP Government sold us a rusted old jalopy in 2019?  Seriously, isn’t it incumbent upon Government and its agencies to address alleged staff shortages by implementing reasonable efficiencies. If it’s true (as the CBC article reported) that police improperly charge accused persons upwards 21% of the time, isn’t charge approval absolutely necessary to not only protect the Alberta taxpayer but to ensure presumptively innocent people aren’t falsely prosecuted? 

EVALUATING THE RATIO 167:1

Having done 167:1 calculation, it is incumbent on me to advise you that I am not trained to properly evaluate the numbers. Also, it is incumbent on me to tell you that the Crown may need some additional bodies to occupy its pre-charge screening unit. However, with a lower accused-to-crown ratio, there appears to be room within the organization to re-tool its existing employees for this purpose; meaning, the Government doesn’t necessarily need to hire more people (or as many).

Looking forward, I expect the ratio to drop even further. This is so because I expect Alberta to adopt an administrative impaired driving model which will, in the near future, exponentially reduce the number of impaired driving cases before the courts.  This means that the Crown Offices across Alberta should have more bodies to allocate to other units, including a pre-charge screening unit. 

ARE ANYMORE LAWYERS NEEDED?

Though I do not suggest that my calculations are perfectly accurate, I think it is safe to suggest in the final calculation, pre-charge screening would result in a significant reduction in the crown-to-accused ratio and that the Alberta Crown Attorney’s Association (ACAA) should have (1) advised the public that some of the comparison Provinces (Ontario, Quebec and British Columbia) used a pre-charge screening model, (2) that pre-charge screening could significantly reduce the accused to crown ratio and (3) that there was either a pilot project running on or about August 2019 or was soon to be implemented. 

Keep in mind, in August 2019 the Government was selling the need to hire an additional 50 lawyers. The question is, would the taxpayer endorse these hires knowing that pre-charge screening could offset the alleged staffing shortage? Also, would the taxpayer endorse the need for 50 more lawyers (and their associated costs) knowing that the Alberta Government is likely going to adopt an administrative model for prosecuting impaired driving cases – a program that would almost certainly significantly reduce the need for more lawyers.

ADMINISTRATIVE IMPAIRED DRIVING MODEL

In June 2020 the UCP Government tabled legislation to decriminalize the majority of impaired driving cases. Rather than prosecuting many impaired drivers criminally, the Government would use an administrative model similar to British Columbia.  

Now, remember that the ACAA used British Columbia’s accused-to-prosecutor ratio of 121:1 to drive its request for more lawyers. However, they did not reflect on the fact that British Columbia prosecutors do not handle a heavy load of impaired driving cases; meaning that the ratio of accused to prosecutor is further reduced by a reduction in criminal impaired driving prosecutions. It appears that the UCP Government was contemplating this model as early as August 2019 and as of today’s date, is close to tabling legislation that will see most impaired driving cases handled outside of the criminal law.

CONCLUSION

Fast forward to September 2020 and ask whether the Government really needs to hire any more lawyers? If the 309:1 ratio is reduced to around 167:1 on the basis of charge approval and likely to be further reduced as a result of a significant scaling back of impaired driving prosecutions, it strikes me that there is simply no need to expand the size of Alberta’s prosecution services. Remember, with each new lawyer comes a host of additional costs beyond the salary, benefits and pensions; to include the need for additional support staff, office space, supplies and other expenses.

It is important to remember that somebody needs to pay for Government services. Private industry are the real taxpayers that fund Government. I appreciate that all Government employees pay taxes, but since they are paid by the taxpayer, a portion of every dollar paid in taxes returns to pay themselves. This is just a simple truth. 

Of course, we need people to work in our Government sector. They are critical to a heathy Canada. However, it is a mistake to think that taxpayer dollars are unlimited or that solving Government staffing issues is always a simple matter of hiring more people. 

In 2020, I don’t think it is offside to say that private industries across Canada (and in particular Alberta) have suffered near catastrophic economic decline. Where many Government workers have continued to receive a full paycheck, millions of Canadians in private industry have sustained a massive hit to their wallet. 

With all this in mind, this Calgary criminal lawyer fully supports initiatives (such as pre-charge approval) that may reduce the need for taxpayer dollars. I do not, however, endorse unnecessary new hires that may unreasonably reduce workloads at the expense of taxpayers who are already struggling. Also, I question what kind of Canada we are going to leave for future generations. In short, somebody needs to pay for these initiatives.  I often question where our Government (municipal, provincial and federal) thinks money comes from. 

In conclusion, I am not necessarily saying that the Government is not in need of more staff or that the Crown does not need more lawyers. With respect to the Crown, however, I am saying that based on the information provided, I am very sceptical that there is a legitimate need for more lawyers.  

Lawyers are expensive. The question is, are more of them necessary?

Reflecting on 2020, I wonder whether lawyers really offer much of anything to the real needs of our society? I say this understanding that in 2020, many people, such as frontline hospital workers (i.e., nurses) are shouldering an immense burden. They are caring for a growing number of sick and downtrodden during a time of global pandemic. While the Kenny Government is selling us the need to hire more lawyers, it appears they are targeting the very health care institutions that may help us get through COVID-19.

This begs the question: what kind of new hires does Alberta really need?  

Of course, all of this is only my opinion.