Alberta prosecutors say they are at a "breaking point" and have abandoned many more serious criminal cases than the public knows – far more than the 15 cases that came to light on Tuesday in Provincial Court in Edmonton.
James Pickard, president of the Alberta Crown Attorneys' Association, says they have stayed criminal charges against 200 people – including 18 accused of impaired driving – in the past two months because of a shortage of prosecutors.
The revelation comes a day after Edmonton's Chief Crown Prosecutor, Shelley Bykewich, said in Provincial Court that she was staying 15 cases, amounting to 40 charges, including weapons offences and drunk driving, because of a lack of resources.
That was the first publicly known instance in Canada of a large-scale suspension at one swath of legal proceedings over resources in response to a Supreme Court of Canada ruling last July known as R v. Jordan that set time limits for criminal trials. But others were happening, out of sight, in smaller numbers in Alberta. And on Wednesday, the province's 250-plus prosecutors made the larger amount of stays public and criticized the government's "triage" strategy for dealing with the new time limits of 18 months in Provincial Court and 30 months in superior court, from charge to a trial's completion.
"It just seems to me [triage is] a medical term that's used in an emergency room because the emergency room has no choice," Mr. Pickard told The Globe and Mail. "That emergency room is responding to injuries when someone walks in, so you triage then. You don't triage when you have the opportunity to prevent that from happening. You don't create a triage situation."
Of the impaired-driving cases that have been dropped, he said: "We are potentially opening up the situation for an impaired driver to kill somebody."
Alberta Attorney-General Kathleen Ganley is standing behind the triage approach. "Jordan represented a sea change in the law," she told The Globe. "We had to react very quickly. All of our Crowns will try to do their best to make sure the triaging is by way of settling matters or by way of sending additional things to diversion [such as mental-health courts or other non-traditional approaches]. But sometimes it will be the case that charges will be withdrawn."
She was skeptical of Mr. Pickard's assertion that people would die as a result of the impaired-driving charges dismissed by prosecutors: "It's important to bear in mind that we have given discretion to our front-line prosecutors to exercise their best judgment to ensure that the matters proceeding are the most serious and the most violent, and the matters that will endanger life. Mr. Pickard may doubt their ability to exercise that discretion judiciously, but I think that for the most part they … do consider public safety top of mind."
Edmonton defence lawyer Tom Engel was also skeptical of what the prosecutors are telling the public. "I think they're lobbying for more money," he said.
Alberta will table a budget in mid-March, and the prosecutors are asking for 35 vacant positions to be filled, and another 50 to be created. (There are 262 provincial prosecutors at the moment in Alberta, a number the association says has barely budged since 2006, before the population grew by one-third. Ms. Ganley disputed that, saying 28 prosecutors were added in 2009-10.) Mr. Engel said he believes that some of the stayed charges were simply weak cases better off dropped.
In October, Alberta announced a triage strategy for giving priority to serious and violent offences. Two weeks earlier, an Alberta judge had dismissed a first-degree murder charge against federal prisoner Lance Regan, accused of stabbing to death a fellow inmate at Edmonton Institution. By creating the possibility that murder cases would be thrown out, the Supreme Court ruling put pressure on cases at the lower end, which are large in number and can be time-consuming. Alberta's triage approach aimed to ensure that murder and other violent crimes could meet the Supreme Court deadlines.
Impaired driving is an offence that has been the subject of countless publicity campaigns by governments and non-profit groups and random stop programs by police. Parliament deems it important enough to require mandatory minimum penalties.
"How does someone charged with impaired driving fully accept the gravity of what they have done if they're not being held accountable?" Jason Hills, president of the Edmonton chapter of MADD, a non-profit group, said in an interview.
Mr. Pickard said the government's triage strategy had four levels: first, "case viability standards," in which weak cases would not receive extra Crown resources, but instead would be dismissed; alternative measures, in which people who accept responsibility for minor crimes could be dealt with outside of court, by making restitution or doing volunteer work, for instance; early resolution, in which teams of prosecutors would screen charges to determine whether a "best offer" plea deal could be made to an accused; and dropping cases because resources are stretched too thin. Mr. Pickard said that was supposed to be "the last resort," and that the province has now arrived at that stage.
Ms. Ganley said the province is currently recruiting 14 to 16 prosecutors and will have more to say about additional resources in the budget process.
"Crowns have been staying charges since there have been Crowns," she said in the interview. "That's always an option available. Sometimes it's for reason of insufficient evidence to prosecute. Or sometimes it's because it's not in the public interest to prosecute. Obviously this isn't business as usual but it's also not totally unusual."
She said that 75 per cent of the cases were administration of justice offences such as failure to appear in court. Mr. Pickard said that was incorrect and that they involved 200 separate individuals and "they were all impaireds, frauds, thefts, assaults, etc."