Steven Penney is a professor in the Faculty of Law at the University of Alberta
The Ministry of Justice and Solicitor-General in Alberta recently unveiled a "triage" protocol directing prosecutors to consider resource constraints in deciding whether to bring criminal charges to trial. The protocol arose out of concerns about case backlogs, overburdened courts and prosecutors and the prospect that a great many cases are at risk of being tossed out by the courts for violating defendants' Charter rights to be tried within a reasonable time.
The latter concern has become especially acute in the aftermath of the Supreme Court of Canada's 2016 decision in R. v. Jordan, which imposed strict new time limits on criminal prosecutions.
The protocol has nonetheless attracted considerable criticism, including by some prosecutors. The complaint seems to be that the protocol infringes on prosecutorial independence and is insensitive to the interests of victims of crime in rationing justice for crass financial reasons.
These criticisms are unjustified.
Like other public goods, resources for criminal justice are finite and should be apportioned as efficiently, transparently and equitably as possible. While there is a strong argument that governments should spend more on prosecutors, judges, legal aid and court staff and facilities (especially in places, such as Alberta, struggling to keep up with rapid population growth), money can never be the ultimate solution. Every dollar spent on criminal justice, after all, is one unavailable for health, education and other priorities. Giving individual, front-line prosecutors unfettered authority to proceed without any concern for public resources is fiscally irresponsible and unsustainable.
No one would deny that victims, as well as society as a whole, are harmed when perpetrators of crime evade responsibility for their actions, especially when cases are dropped despite a reasonable prospect of conviction. But prosecutors have always been ethically obliged to withdraw charges when it is not in the public interest to proceed. If every viable case were prosecuted, the most serious, violent charges would be disproportionately dismissed by the courts for undue delay, as these cases are typically more complex and lengthy than less serious, non-violent offences.
Such a consequence cannot possibly be in the public interest. Alberta's triage protocol aims to mitigate the problem by giving front-line prosecutors clear and detailed guidance about how to prioritize their caseloads.
Recognizing that the current volume of cases is "overwhelming the capacity of the courts," it reminds prosecutors to explore alternatives to prosecution and focus their time and energy on the most serious charges. It also urges them to pursue fair and equitable plea agreements at the earliest possible opportunity to both save scarce resources and spare victims and witnesses the often painful prospect of a criminal trial.
Nor does the protocol detract from prosecutorial independence. The federal and various provincial prosecution services vary in the degree of autonomy they enjoy vis-à-vis executive government. But under the Criminal Code, prosecutions are conducted by delegates of the provincial or federal attorney-general, who is ultimately responsible for every criminal case.
Though attorneys-general are constitutionally forbidden from influencing prosecutions for partisan reasons, it has long been recognized that they may craft policies instructing Crown attorneys on how to exercise their discretion. Indeed, in most jurisdictions, there are dozens of such policies. As the Supreme Court stressed in a recent decision, a regard for the "social repercussions" of the decision whether to prosecute "properly informs prosecutorial discretion."
The Jordan decision sent a shock wave though the criminal-justice community. In a pointed rebuke to both governments and justice-system professionals, the Supreme Court lamented the "culture of complacency" that has developed over the problem of pretrial delay. Although much more needs to be done, the government of Alberta is to be applauded, not condemned, for attempting to tackle the problem in such a direct and principled manner. It may not be good politics to admit that justice must be rationed, but it is unequivocally good policy. Other provinces would be wise to follow Alberta's lead.