The Alberta government is instructing prosecutors not to waste time and money on serious and violent cases – including first-degree murder – when they have only a “slim chance” of a conviction. Instead, they are being told to accept plea bargains to lesser offences. In minor cases, a police arrest with no prosecution at all “may be enough of a deterrent.” And they need not prosecute complex, time-consuming fraud cases if an offender has already faced sanctions from a regulatory body.
The instructions are part of a new “triage protocol” in which prosecutors must now ask themselves, for crimes at the highest end just as at the lowest, whether securing a difficult conviction is worth the effort and expense.
The nine-page protocol, obtained by The Globe and Mail, marks the country’s most aggressive approach to reducing the burdens on prosecutors and courtrooms, in response to the Supreme Court of Canada’s ruling last July setting strict time limits for criminal proceedings. Alberta is one of two provinces in which a judge has dismissed a first-degree murder charge because of unreasonable delay, since the Supreme Court ruling.
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While to some extent the protocol codifies established practice, prosecutors in Alberta and elsewhere in the country say it is the first written policy they are aware of that stresses the importance of resource considerations in prosecutorial decision-making. And the head of a national Crown attorneys’ association sees a softening of prosecution standards, between the lines.
Alberta’s NDP government issued the protocol last Monday, one day before Edmonton’s chief Crown prosecutor stayed 15 cases in Provincial Court because of a lack of resources, and two days before the province’s association of prosecutors declared that 200 cases, including drunk driving, weapons offences and assaulting a peace officer, had been stayed in just two months over a lack of prosecutors. No other province is known to be staying cases because of a lack of resources, according to Rick Woodburn, president of the Canadian Association of Crown Counsel.
The protocol, sent to more than 250 prosecutors, says that “even once a file is determined to be prosecutable … and is serious or violent, and therefore a priority, it may still not be worth prosecuting to the fullest extent possible, given the anticipated result and resources required.”
It drives that point home by comparing the spending of resources on first-degree murder, the most serious crime in the Criminal Code, to those spent on low-level crimes: “Just as it is not worth flying in out-of-jurisdiction witnesses for minor files, running a trial of several weeks on a slim chance of obtaining a first degree murder conviction when a plea to second degree has been offered may not be an appropriate use of resources.”
First-degree murder gives offenders no chance at full parole for 25 years; in second-degree murder, parole may be set at anywhere from 10 to 25 years.
The protocol also says: “Likewise, complicated fraud prosecutions requiring several weeks or months of court time may not be justified if the accused has already faced sanctions from professional or regulatory bodies.”
Mr. Woodburn says the meaning he takes from it as a prosecutor is that plea bargains in murder cases are now deemed more acceptable than in the past. “If there was a ‘slim chance,’ then of course you wouldn’t proceed with it,” he said in an interview. (The Globe shared the protocol with him.) But he says that at some point, the case is in the hands of a prosecutor because a police officer and the prosecution service have made the call that more than a slim chance exists.