R. v. R.J.R.

(Brooks, AB - Theft Under). JR was charged with theft under in relation to a shoplifting incident that occurred in Brooks, Alberta.  After reviewing the case, it was the opinion of this Alberta criminal lawyer that the Prosecutor did not have a reasonable prospect of conviction and even if they did, the case was so abysmally weak that there was little to no public interest in prosecuting the charge.

In short, JR did not steal anything. The theft occurred when another person associated with JR was in a store, snatched and grabbed some items, ran out the front door and was pursued by store staff. The person who committed the snatch-and-grab was seen running down the road. JR's truck was parked in the parking lot. 

JR exited the store with the staff and noticed items tossed into the bed/back of the truck.  This was brought to the attention of the store staff by JR. The items were returned.

JR stayed with the store staff and did not try to escape. JR shared contact information with the store staff.  Eventually, JR left the location; later spotting the snatch-and-grabber on the street and ultimately picked that person up.  JR was upset with the snatch-and-grabber.  JR did not run away, in any way try to escape and was not doing anything in the store other than looking at some work clothing. 

The police spotted JR's truck (which was described by the store staff) and conducted a traffic stop. JR was arrested and charged with theft under $5000.  The Prosecutor's position was that JR was a "party" to the offence.

In Canadian criminal law a "party to an offence" is, in theory, culpable no less than the principle. Where a "principle is the person who actually committed the offence, a "party" is a person who aided, abetted, encouraged or had an intention in common with the principle. Of course, the Crown must prove that the accused aided, abetted, encouraged or had an intention in common.

In JR's case, there was not direct evidence to prove party to an offence. To convict JR, the Crown would have needed to rely on "circumstantial evidence" -- loosely defined as inference evidence. To convict an accused based solely on circumstantial evidence, the inference of guilt must be the only available reasonable conclusion. Since the Crown must prove its case "beyond a reasonable doubt" and since the only reasonable inference was not that JR aided, abetted, encouraged or had an intention in common with the principle -- but was simply shopping as any shopper would do -- this Calgary defence lawyer was of the strong opinion that the Crown could not prove its case.  The defence opinion was that JR ought to have pled "not guilty" and had a trial. 

The Crown opined that JR was effectively "standing six" or keeping watch to assist the theft. The Crown also thought JR was intentionally distracting the store clerk. This was not the case. It can hardly be said that a person who is doing legitimate shopping is somehow culpable for the actions of an associate who decides to commit a crime. None of JR's behaviour was consistent with helping the actual thief and JR's conduct after the snatch-and-grab was not consistent with having commonality with the thief.

The problem for JR was trial fees.

In this case, trial fees were heavily discounted by JR's defence lawyer, but the substantial trial fee reduction was nevertheless challenging for JR.  

The Crown offered to resolve JR's case in an unusual way -- a peace bond. In most cases of shoplifting, the usual way of resolving is by way of diversion through Alternative Measures. Defence counsel strenuously urged the Crown to resolve differently, but unfortunately, Prosecutor's have massive power. Sadly, massive power sometimes results in abuses, irrational decisions and unreasonable exercise of authority. 

While peace bond is usually a very nice resolution option, in JR's case, this criminal defence lawyer was of the view that it was neither a proper nor a just resolution. Defence counsel urged JR to reject the resolution offer; however, since JR did not want to risk a criminal record and did not wish to pay trial fees, the offer was accepted. JR agreed to the peace bond and the charges were withdrawn.  While JR avoided a criminal record, the peace bond still included conditions that if breached could put JR at risk of more legal trouble. 

This case contains some important lessons. First, the Prosecutor has immense power (especially early in the proceedings). While the defence does everything in its power to encourage the Crown to a proper resolution, this does not always happen. In the opinion of this Calgary based criminal lawyer, JR was an innocent person who was essentially strong armed to accept peace conditions or risk a criminal record and trial fees. Second, an offer to withdraw the charge, even if is by peace bond, is very compelling to the accused because the accused is the person who risks a criminal record and trial fees.  Where the Crown need not worry about its finances, the accused is often in a very different position. Legal fees often drive an accused's decision making with respect to his or her case.

At the end of the day, one certainly cannot blame JR for accepting the peace bond offer even though JR's position, assisted by the evidence, demonstrated that JR committed no criminal offence whatsoever. This is so because criminal law is uncertain. It is a process that is subject to human frailty.  For example, drawing certain trial judges can dramatically increased the risk of conviction. Some judges convict more easily and routinely than others. Some have less of an understanding of "proof beyond a reasonable doubt". Of course, the lawyers are also human. Defence counsel can have a bad day; so can the Crown.  

Two-decades ago, Crown Prosecutor's were instructed to consider the cost to the taxpayer to run cases. Today, those considerations are not as obvious.  While the State runs cases with deep pockets, the accused must often shoulder the cost directly. Even when trial fees are discounted, the reality is, legal fees can still be an impediment to a person making full answer and defence or to fully defending a case. While defence counsel can cite principle as a basis for refusing a deal, risk and money remain crucial considerations.

It is not unusual for criminal defence lawyers in Alberta to discount trial fees. While discounts are the exception, not the norm, they are more likely to occur in cases where it is obvious that the accused should not be forced into a bad position simply because he or she can't afford to defend the case. Of course, law is a business and lawyers, like anybody else, sell their services for a price. Many accused in Alberta do not qualify for Legal Aid. David Chow no longer accepts Legal Aid cases, but on occasion, in certain cases, will offer discounted trial fees to persons in need.