Expanding the Prosecutor's Office: Continuing the Debate
Expanding the Prosecutor's Office: Continuing the Debate
news as a propaganda tool?
This post is an extension of my previous article, “Truth or Propaganda: Hundreds of Cases Stayed due to Manpower shortage”. The basis for this post is yet another CBC news story that I just picked up on today. The point of this post: to argue that we don't have enough information to justify the expense. This post should be read in conjunction with my previous post:
According to the CBC, Premier Jason Kenny has now officially weighed-in on the alleged shortage of Government lawyers resulting in stayed prosecutions.
“I’m very concerned to hear criminals are getting off scot-free because of this, [it’s] totally unacceptable”.
https://www.cbc.ca/news/canada/calgary/kenney-50-new-prosecutors-1.5222331
The CBC report then reiterates the information contained in its July 22nd, 2019 article; again acting as a megaphone for one-side of the conversation, without adding a scintilla of information to either confirm the assertions of the Government or even to obtain comment from anybody on the opposite-side of the debate. For example, there is no comment from the Canadian Taxpayer’s Federation, the Calgary Criminal Defence Lawyer’s Association, the Criminal Trial Lawyer’s Association, a former Crown Prosecutor or even an opposition political party member. Ordinarily when a reporter seeks comment, from parties opposite to one-side of the debate they include this in their news story and when "no comment" is offered, they tell us that. This signals to me that the CBC never sought comment from a single source that might add some perspective to an issue that could seriously impact Alberta taxpayers.
perspective
In my opinion, though it may be true that some additional Prosecutor’s are needed, the information reported by the CBC is little more than an empty sell-job by the Government, crafted on the basis of questionable statistics that in no way confirm the need for the expensive new hires.
By way of example, the report references the fact that “Calgary General Prosecutions has 66 prosecutors” but fails to mention that since 2006 the Calgary Prosecutor’s Office has grown into a massive juggernaut, constructed on the back of many individualized units that were once part of “General Prosecutions”. By my memory, when I was a Crown Prosecutor in 2005, General Prosecutions consisted of approximately 60 Crowns. We handled domestic violence, impaired driving and the circuit courts. There were still other units outside of General Prosecutions. Summary Conviction Appeals had one prosecutor. The Appeals Branch had three prosecutors. Special Prosecutions had three prosecutors. Youth was an independent unit with a handful of lawyers. In 2019, there is an impaired driving unit, a domestic violence unit and an entire unit tasked with handling circuit courts called CaRRO. All units have ballooned in size. For instance, Specialized Prosecutions (formally "special prosecutions") now consists of around a dozen lawyers. Many of the economic crime cases once handled by General Prosecutors are now handled by this expanded unit.
Since becoming a Calgary criminal defence lawyer in 2005 I have witnessed Prosecution Services in Alberta expand to levels that concern me. I have witnessed the politicization of crime, which I perceive to be low-hanging fruit politics that conveniently drives party platforms. Seldom do politicians mention that crime rates are declining or that Calgary and Regional Prosecution Services has nearly doubled in size since 2005.
To reiterate, however, I am not saying that Alberta does not need to hire more Crowns; rather, I am saying that the sell-job by the various Government interest groups on the Alberta taxpayer is devoid of meaningful information to justify the decision.
cost considerations
The costs are staggering. It’s not only the 7.5-10 million dollar/year starting point to pay lawyer salaries; it’s the run-off costs from these hires as well. For example, there is a reasonable likelihood that these 50 lawyers will demand support services. This will likely require around 15-20 Legal Assistant hires. These 50 lawyers will need office space, furniture and equipment. I am guessing that each lawyer will need at least 200 square feet of actual office space, which means that the taxpayer will have to foot the bill for an additional 10,000 square feet. Conservatively, this probably adds up to $25,000/month or $300,000/year just to house these additional employees.
Add on computers, desks, bookshelves, dry-cleaning, courtroom attire and other taxable benefits such as parking and the numbers will balloon to epic proportions. By way of example, I pay nearly $500/month to park near the Calgary Court Centre. By contrast, Calgary prosecutors have a taxable benefit, paying only about 10% of my monthly expense. My point is, when it comes to Government, we don't think that hard about all the benefits they confer on themselves. These benefits don't exist for ordinary business. Their economic security doesn't exist for ordinary business.
Keep in mind, salaries do not stay the same. In government, with seniority comes a higher salary. There is a major difference between Level 2 prosecutors, Level 3 and management. Every Level 4 position costs the taxpayer nearly ¼ million-dollars per year. By the way, a great many private practicing defence lawyers do not earn this kind of money or have this kind of economic security.
So in the end, who pays for all of this? The statement 50 more lawyers doesn't sound all that bad, but when you add the perspective of numbers, it might change the debate. The fact is, all Government is mostly funded by non-Government-taxpayers. History shows that it is a Sisyphusean task to reduce the size of Government once it has increased in size. Generally, the only way to reduce the numbers is by attrition.
Of course, the Government is selling an increase to Prosecution services, while at the same time reducing funding for defence services. The Legal Aid dilemma is a topic for another day.
Premier kenny's comments problematic
From a straight criminal law perspective, I have serious reservations about Premier Kenny’s comment that “criminals are getting off scot-free”.
To begin with, Premier Kenny should know that in Canada an accusation does not make one a criminal. People are accused all the time. However, in this Country we have a “presumption of innocence”, which means that all accused are “presumed innocent until proven guilty”.
Premier Kenny should also know that many “stays” in low complexity courtrooms have nothing to do with a manpower shortage, but have everything to do with frailties in the case, including the real possibility that the accused is innocent.
Accordingly, people merely “accused” in low complexity court are not “criminals”. Of course, Premier Kenny has been politician for long enough to know this. His comment is highly probable because he likely understands that it drives public perception. If Albertans think that “criminals” are getting off "scot-free" because of a manpower shortage, they will happily pay to expand Government services.
Practically speaking, few get off “scot-free” in our criminal justice system. “Scot-free” means “without suffering any punishment or injury”. The presumptively innocent who Premier Kenny says get off “scot-free” were charged by police. Many were handcuffed and taken into custody. Some spent time in jail and may even have remained in jail until their case was “stayed” by the Crown. Some of these people were on restrictive release conditions while they awaited trial. Some were removed from their home and many paid legal fees to criminal defence lawyers to handle their case. Minimally, most of these persons endured the stress and hardship that comes with the label of merely being “accused”.So to say these people got of “scot-free” is simply wrong.
the politics of crime
This Calgary criminal lawyer is tired of the politicization and propagandization of crime. In my opinion, criminal justice should not be a political platform used to sell the masses. It’s too easy a sell because the issue is largely emotional.
When the Government needs to sell the taxpayer on costly criminal justice initiatives, my opinion is that the sale should be based on a total package of information so that the taxpayer knows where the money is going. When money is to be spent on expensive services, such as lawyers, it is even more important to justify the expense. When that money goes to services that directly implicate civil liberty, it is even more important to justify the initiative.
In my opinion, Canadians get a real benefit of being able to attend quality school across this Country. Law School is a special kind of privilege. In my opinion, a law school education is for Nation Builders. Real Nation Builders work towards the creation and development of this Country; this is a job that should be reserved mostly for real taxpayers.
Please understand, I am not saying that Prosecutors are unimportant or do not Nation Build. However, as the Government grows, there is less and less actual nation building. So if we are going to expand Government services -- especially with expensive lawyers -- we should do so based on a complete package of information to justify the need.
As reflected by Thomas Paine in Common Sense:
Society in every state is a blessing, but Government, even in its best state, is but a necessary evil; in its worst state an intolerable one: for when we suffer, or are exposed to the same miseries BY A GOVERNMENT, which we might expect in a country WITHOUT GOVERNMENT, our calamity is heightened by reflecting that we furnish the means by which we suffer. Government, like dress, is the badge of lost innocence; the palaces of kings are built upon the ruins of the bowers of paradise. For were the impulses of conscience clear, uniform and irresistibly obeyed, man would need no other lawgiver; but that not being the case, he finds it necessary to surrender up a part of his property to furnish means for the protection of the rest; and this he is induced to do by the same prudence which in every other case advises him, out of two evils to choose the least. Wherefore, security being the true design and end of government, it unanswerably follows that whatever form thereof appears most likely to ensure it to us, with the least expense and greatest benefit, is preferable to all others.
In conclusion, the CBC report driving the Governments message "for more" lacks information to justify the request "for more". We need to stop blindly giving Government more; for one day we will wake to find that we have given them too much.
David G. Chow
Private Practicing, Calgary Criminal Lawyer