I would like to take this opportunity to provide you with some information on the charge assessment process. Crown Counsel are guided by the BC Prosecution Service (BCPS) Charge Assessment Guidelines (CHA 1) and must impartially assess the investigative file that is brought to them, carefully balancing all relevant factors in light of the available evidence, the governing Criminal Code provisions (as informed by the relevant case law), and their assessment of the public interest as agents for the Attorney General of British Columbia. Crown Counsel must and do exercise considerable independent discretion in determining whether to approve charges.
In doing so, they consider the circumstances of the specific alleged offence, as well as the background of the alleged offender, including whether there is any related offence history. Crown Counsel exercise their discretion on a case-by-case basis, oftentimes informed by factors unique to the case that are not necessarily known to third parties, or to the public. As a general rule, Crown Counsel must be satisfied that there is both a substantial likelihood of conviction and that the public interest requires a prosecution. This two-part test continues to apply throughout the prosecution. If during the course of a prosecution it becomes clear that either part of the charge assessment standard can no longer be met, Crown Counsel are obliged to end the prosecution. In exceptional circumstances, where the relevant public interest factors weigh so heavily in favour of a prosecution that it is necessary to resort to a lower charge assessment standard in order to maintain public confidence in the administration of criminal justice, a charge may still be approved even though the substantial likelihood of conviction test is not met.
Crown Counsel must exercise particular caution in such cases because the nature or quality of the available evidence or the exceptional circumstances said to justify resorting to a lower charge assessment standard (for example, the gravity of the offence, the identity of the alleged offender, or the 2 degree of public outrage about the offence) could materially increase the risk of a miscarriage of justice. Under such exceptional circumstances, a lesser evidentiary standard may be resorted to, namely: whether there is a “reasonable prospect of conviction”, wording that is similar to that employed in several other provincial jurisdictions. You may find it useful to know that in 2012, as part of a widespread review of the criminal justice system, Gary McCuaig, a retired senior prosecutor from Alberta, was engaged by the Ministry of Attorney General to conduct an independent review of the way criminal charges are assessed and laid in British Columbia. During his review, Gary McCuaig consulted widely in the development of his recommendations, including with the RCMP and municipal police agencies.
Gary McCuaig’s final report made 12 recommendations, including the recommendation that the pre-charge screening process – the charging standard and the existing assessment processes as set in the Crown Counsel Policy Manual – be retained in its existing form. The basic premises and underlying rationales for Gary McCuaig’s recommendations continue to apply today. You may wish to view the full report: https://www2.gov.bc.ca/assets/gov/law-crime-and-justice/criminal-justice/prosecutionservice/reports-publications/2012-bc-charge-assessment-review-mccuaig-report.pdf Your letter also indicates concern over court delays. I can assure you that the BCPS recognizes that the fair and timely adjudication of all cases at all levels of court is an important objective. With respect to the timeliness of criminal prosecutions, this is impacted by a variety of factors including availability of court time, file complexity, and the availability of defence counsel, police, and civilian witnesses. The BCPS is committed to doing all that it reasonably can to advance cases, recognizing of course that they must do so fairly, objectively, within the limits prescribed by law, and in a manner that respects the constitutionally-protected rights of persons who are accused of crimes. You also expressed concerns about community safety and gun and gang violence prevention and intervention. I would like to let you know that the Ministry of Public Safety and Solicitor General (PSSG) has created a multi-pronged, comprehensive gang strategy that recognizes the interdependence of crime prevention, core policing and specialized investigative units, as well as the intricate and interconnected landscape of gun and gang violence. The strategy demonstrates a continued commitment to strengthening provincial capabilities to address gang violence through focused and sustained strategies and initiatives over several years to reduce illegal guns and gangs and to enhance community safety.
The Government of Canada invested $327.6 million over five years to help support a variety of initiatives to reduce gun crime and criminal gang activities under the Gun and Gang Violence Action Fund (GGVAF). British Columbia’s share is $30 million over five years. The Province is providing additional funding to advance prior investments for addressing gun and gang violence in communities across the province. Leveraging provincial and federal funds, significant investments are being made across the Justice and Public Safety sectors (such as policing, Crown Counsel, specialized firearm tracing and interdiction capabilities, corrections, and community prevention and intervention programs) for the implementation of a comprehensive provincial strategy to address gang violence in communities. 3 These investments include realizing recommendations from the Illegal Firearms Task Force (IFTF) Report, which was released in November 2017, and contains 37 recommendations to help government respond to illegal firearms threats. The recommendations support new and innovative approaches and align directly with PSSG’s provincial gang strategy. These include significant investments to realize the following:
The Combined Forces Special Enforcement Unit – BC (CFSEU-BC) has established the Illegal Firearms Task Force to investigate, interdict and prosecute firearms traffickers;
Criminal analysts from various federal and provincial agencies have established the integrated Firearms Intelligence Hub to serve as a central point of intelligence for illegal firearms trafficking in BC;
PSSG has operationalized funding for the Firearms Investigation Assistance Team and a new self-contained firearm forensic laboratory (SeaCan), which will work in tandem and provide timely and necessary firearm forensic services province-wide and support a firearms-focused approach that aligns priorities across intelligence, enforcement and regulatory agencies; Funding has been provided for the Provincial Witness Security Program, which will provide cooperators the necessary protection, care and long-term handling; a proven method for fighting organized crime, obtaining evidence and disrupting loyalties is to recruit gang members to give evidence against each other; Effective January 2019, all police agencies are required to participate in the Provincial Tactical Enforcement Priority process, which identifies and targets priority gangaffiliated individuals in each district of the province. This will help ensure provincewide and cross-border application of a firearms-focused approach to illegal firearms interdiction. Community initiatives are being realized through the GGVAF and provincial investment supporting gang and gun strategies. Through 2019/20, $2.6 million was devoted to providing three years of sustained funding to six gang-related prevention and intervention programs, based in Abbotsford, the Cariboo-Chilcotin region, the Capital Regional District and priority communities across BC. This is in addition to funding provided to enhance and expand CFSEUBC’s Gang Exiting Pilot Program and BC’s Expect Respect and a Safe Education (ERASE) program, as well as Surrey Wraparound and Cariboo-Chilcotin Wraparound.
These programs aim to provide prevention and intervention support for high-risk and gang-involved youth. Gang exiting is a new model for identifying gang-involved youth in the Lower Mainland that uses an integrated case management approach, so they can positively change their lives and exit gang life. ERASE trains school and district staff, as well as law enforcement and community partners to address safety issues relating to gangs, guns and illicit drugs. Having sustained and reliable funding will ensure that British Columbia’s programs are able to provide sustainable program delivery that will:
Emphasize community engagement;
Emphasize targeted training; and
Develop Indigenous gun and gang violence prevention tools.
To better understand how the funding is helping communities, and to evaluate best practices related to gang prevention and intervention, recipients will also be responsible for reporting performance metrics to the Ministry of Public Safety and Solicitor General, which will be shared with Public Safety Canada to support their existing inventory of best practices in crime reduction initiatives. Having an ability to highlight the community impact of our investments gives us a 4 better understanding about how these interconnected initiatives successfully disrupt organized crime. These investments build on recent investments in critical enforcement and public safety initiatives, which include:
New, dedicated anti-trafficking teams with the provincial RCMP and CFSEU-BC,
the provincial gang unit to prioritize investigative resources to target traffickers of deadly illicit drugs and illegal firearms traffickers;
More police resources to go after, arrest and prosecute dangerous and violent drug traffickers, and disrupt the drug supply line in communities;
Enforcement resources for all police agencies through the province’s gang unit, including more funding for projects that specifically target traffickers, to stem the flow of fentanyl into BC; Increased support for police-based community outreach and funding for multidisciplinary approaches;
Bringing together mental health, social service and police agencies to proactively reach people who are seen to be at elevated risk; and
More funding to expand the Coroner Service’s Drug-Death Investigations Team, which will help to resolve its backlog, meet the significant increase in workload and lab testing, and provide timely, accurate data. Understanding the interplay between prevention, intervention and enforcement as part of a comprehensive strategy is critical to eradicating gun and gang violence in our communities.
This is especially important as the paradigm of “what works” shifts away from a one-size-fits-all approach to a more tailored rationalization of investments in prevention, intervention and enforcement.