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A Defence lawyer's perspective on issues in criminal law
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Truth or Propaganda? Hundreds of Cases Stayed due to Manpower shortage?
Tagged Criminal Defence BlogAugust 1, 2019
“Whatever a patron desires to get published is advertising, whatever he wants to keep out of the paper is news”.
From a placard on the desk of L.E. Edwardson, the day city editor of the Chicago Herald and Examiner.
This post is about consuming news.
the cbc headline
The headline of a July 22nd, 2019 CBC article reads: “Hundreds of Calgarians charged with crimes walk free due to lack of prosecutors”. The secondary headline: “Average of 5-15 low complexity cases dumped every week”.
The Alberta Crown Attorney’s Association (ACAA) says that “…the current situation is a reflection of the gap between the number of prosecutors and the number of viable charges laid by police”. In the words of CBC reporter, Megan Grant:
Every week, an average of one full day of low-complexity trials are stayed, but there have been weeks when prosecutors are dumping up to three days' worth of cases.
According to the Crown Attorney’s Association (ACAA), Alberta Crown’s have the second highest caseload in the Country -- only behind Saskatchewan.
This story is essentially about the lack of resources funding Government departments and the risk to public safety caused by that lack of funding. The message is that Alberta Prosecutor’s are overworked and under staffed and as a result, criminals walk free. Indeed, a powerful message; but is it an accurate one?
manpower problem or propaganda?
At the outset, it is probably true that a high number of viable low complexity trials are stayed or withdrawn by the Crown on the day of trial and it may be true that occasionally cases are stayed as a result of a lack of resourcing. It is probably true that today, police are charging more (in the mind of this Calgary criminal lawyer, even over-charging) and there is definitely truth to the fact that the Supreme Court of Canada has established a standard for completing cases within a reasonable time.
R. v. Jordan places pressure on all participants in criminal justice (not just the Crown) to complete trials within a specific period of time: 18 months for Provincial Court cases (including “low complexity” cases) and a whopping 30 months for cases heard in Superior Courts..
Notwithstanding that manpower may sometimes be a problem, it is the view of this former Prosecutor -- who worked for the Office of the Attorney General of Alberta from 2002-2005 (a time when the office was about half the size it is today and not compartmentalized into several units), that the assertion of under resourcing may not be the root cause of dumped prosecutions. In my opinion, the message may be more opportunistic than accurate. I highlight the word “may”.
who's message is it?
When analyzing whether the claim of under resourcing is responsible for dumped prosecutions, the first step is to recognize the person or party delivering the message.
The information grounding this story comes almost exclusively from a Government interest group -- the ACAA -- a union whose mandate is to act at all times in the best interest of its members. What is in the best interest of Government union members (that is, employees of the taxpayer) is not necessarily synonymous with what is in the best interest of the employer/organization (in this case the Government) or the general public.
According to the CBC story, the ACAA is looking for an additional 50 Prosecutors. Not mentioned in the article is that funding 50 prosecutors must come from coffers filled by taxpayers; meaning that taxpayers must effectively endorse the hiring of expensive full-time staff, who not only come with a high salary, but a lifetime of benefits. Conservatively, fifty Prosecutors will cost Alberta taxpayers approximately $7, 500,000/year. This number assumes that all 50 hires start with a Level 2 salary and benefits. Of course, the longer these folks stay with the Government, the higher their salary ascends and the more benefits (including pension) they receive. The point being, $7.5 million/year is extremely conservative. The economic numbers over a lifetime, including pensions is staggering.
Blended into the messaging is politics. Part of UCP Premier Jason Kenny’s political platform was a promise to hire these additional 50 lawyers. What better way to persuade the taxpaying public that these expensive employees are necessary than by endorsing a narrative that criminals are walking free due to lack of manpower.
Notice, the CBC article was released without comment from anybody outside of the Government or its union lobby group. That is to say, there was no comment by the Canadian Taxpayer’s Federation, the Criminal Defence Lawyer’s Association (CDLA), the Criminal Trial Lawyer’s Association (CTLA), any former Crown Prosecutor, defence lawyer, the Police or anybody not obviously aligned in interest with the ACAA, the Minister of Justice or the Provincial Conservatives. The lesson: if the source(s) used by the reporter seem aligned in interest to the message being communicated and there is no counterpoint, one should be immediately skeptical about the message.
evaluating the information
“Propaganda” is information of a biased or misleading nature used to publicize or promote a particular political or point of view. Ask yourself, does this article -- effectively grounded in single source information -- smell of propaganda?
What I found interesting about this CBC article was not so much the information it contained, but that which it did not.
To reiterate the opening headline: “Hundreds of Calgarians charged with crimes walk free due to a lack of prosecutors”. Secondary headline: “Average of 5-15 low complexity cases dumped each week”.
Notice, the statement that an “average number of low complexity cases are dumped per week does not necessarily mean that those cases were dumped because of a shortage of prosecutors. In fact, there is no explanation as to “why” these cases were dumped. Cases could be “stayed”, “withdrawn” or “dumped” for any number of reasons having nothing to do with manpower issues. For example, they could be stayed due to absent witnesses, low public interest, plea bargaining, delay, low prospect of success and yes, perhaps a lack of manpower.
The article goes on to say that data was provided by the ACAA, adding that all cases scheduled for one Monday in Courtroom 507 were “stayed” by the Crown.
CBC reported that low complexity courtrooms have between 3-8 trials scheduled, with on average "five taking place". What they failed to report is that some trials are resolved by guilty pleas or diversion. Some charges are withdrawn. In some cases "no evidence" is called and yes, some cases are stayed. Again, the reason for a stay can be for any number of reasons having nothing to do with manpower issues.
Given the shape of the article, one might be inclined to think that 5-15 low complexity cases are dumped each week due to a lack of prosecutors or that all of the cases stayed on that black Monday were as a result of a lack of manpower. Without any explanation for why the cases were stayed, the reader should not assume from this news report that all of them (or even any of them) were stayed because there were no Crown Prosecutor’s available to handle the work.
Interestingly, it is very likely that every “stay” entered on the Court record was voiced by an actual Crown prosecutor, who was actually present in court. The very presence of a lawyer to utter the words “stayed” should convince you that the Crown had somebody available to appear before the judge; meaning that the Crown had a lawyer in the courtroom.
It is noteworthy that some "stays" are by letter. As a Calgary criminal lawyer, I have received the occasional stay letter from the Crown. I can assure you that I have yet to receive a letter where the reason for the stay was confirmed to be due to manpower issues. Additionally, with respect to stays in relation to low complexity courtrooms, none of them came as a surprise; for in almost every case, the accused had a viable defence. That's why it was set for trial.
insufficient information to draw conclusions
It is a good time to talk about low complexity cases. As a Calgary criminal lawyer I have handled a multitude of low complexity prosecutions and defences. The designation “low complexity” speaks for itself. Low complexity cases are defined as those that will take less than a half-day to complete. Though time to complete a trial certainly does not necessarily equate with “complexity”, the fact is, most of the time it does. Breaches, for example, are common in low complexity trial courts. Prosecuting a breach is fairly boilerplate. Whatever the charge, disclosure for the vast majority of low complexity cases can be fully reviewed in less than 15 minutes, with full trial preparation taking an hour or much less. Any Crown with even a modicum of experience could probably competently prosecute many low complexity cases without any trial preparation whatsoever.
Now, I am not endorsing prosecuting without preparation. Certainly more is expected of our Prosecutors. My point is: this article is informationally deficient. It offers no information as to the average number of actual in court days for prosecutors each month. It offers no information about how Crown schedules are managed or the number of "out-of-court" preparation days afforded to each Crown per week. There is no information as to how many Crowns were ensconced in their respective offices on the day there was an alleged manpower shortage. There is no information about the average number of hours worked for individual prosecutors. There is no information about the number of charges in low complexity courtrooms that should not have been in there in the first place, or as it often happens, how many were resolved as part of a more comprehensive plea bargain involving other charges. For example, a couple of weeks ago, I resolved six low complexity trials scheduled over three days in a single day as part of a proper plea bargain. So when the CBC reports that there were up to 5-15 low complexity cases “dumped” per week, the fact is, I had at least 3 potentially viable cases “dumped” by the Crown for good reasons that had absolutely nothing to do with manpower issues. Were these cases thrown into the “dumped due to manpower” category?
opportunistic calgary defence lawyers
A major issue that I have with this CBC article is the assertion that defence lawyers in Calgary are intentionally creating backlog.
...[A]s defence lawyers learn of these types of stays, they're more likely to book a trial that will increase backlog and the frequency with which charges will be dropped.
My first concern is that this claim was made without any response by a single defence lawyer. My second concern is that the underlying message is that Calgary defence lawyers are engaged in a kind of skeezy brinkmanship when the fact is, the trial coordinator's office books cases according to time estimates set by the Crown in accordance with courtroom availability. The point is, defence lawyers have little control over the dynamics of any courtroom. Low complexity trial courtrooms have long been woven into the tapestry of the Calgary Court Centre. Staffing these courtrooms should come as no surprise to anybody at Alberta Justice. Low complexity trials can often be scheduled with about a 5 week lead time (in some cases less), so in this Calgary defence lawyer's view, there is plenty of flexibility built into trial scheduling to easily accommodate Jordan issues. The takeaway, if cases are not approaching the Jordan guidelines (18 months) and the trial coordinator is not overbooking, any claim that defence counsel is intentionally creating "backlog" is, in my opinion, dubious at best.
309 person's charged per prosecutor
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.
In British Columbia, for example, there are two layers of screening before a person is charged, where in Alberta there is only one. In Alberta, charges are laid at the sole discretion of the police. Police are not put to the same standards as prosecutors. So every file that comes into the Calgary Crown Office is a person already charged. By contrast, in British Columbia, the police have no discretion to charge; rather, they screen the file to determine if charges are possible and then deliver an information package to the Crown, who decides whether charges will be laid. Accordingly, in Calgary, "stays" entered for any case, including low complexity cases, by the Crown are for persons already charged and in the Court system. This means that Alberta Crowns have, by operation of the Provinces charging model, more cases to "dump".
Even if it is true that there are 309 persons charged per prosecutor with General Prosecutions in Calgary, the fact is, the crime rate in Alberta has been consistently declining over the last decade or longer. Ironically, it was the CBC who reported this.
Despite the growing gap between the rural and urban crime rates, both have fallen over the past 10 years.
In rural areas, the crime rate has dropped by 13 per cent, and in urban areas it is 19 per cent lower than it was in 2009.
Does this statistic support that we need an additional 50 prosecutors? It appears to do the opposite.
To be fair, I am not a fan of the use of statistics. Perhaps Homer Simpson had the most erudite response to the use of statistics to support a claim:
Kent Brockman: Mr. Simpson, how do you respond to the charge that petty vandalism such as graffiti is down 80%, while heavy sack beatings are up a shocking 900%?
Homer: Oh people can come up with statistics to prove anything Kent. Forty percent of all people know that.
consuming news requires diligence
At the end of the day, my problem with this article is that it appears to be a one-sided, low hanging fruit news report, unleashed on the public with little supporting information.
To be clear, I cast no aspersions on the reporter. My sense is that in the frenzy to sell newspapers, reporters have little choice but to publish swiftly in a manner that will be consumed and easily digested by its customers. Accordingly, though it is my view that the media has an important responsibility to the public, it is our responsibility as readers to be critical about how we consume information portrayed in the media. If it appears the media is being used as a megaphone for an interest group, we should consume the information with extreme caution or not at all.
In sum, 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.
David G. Chow
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