Police don't lay charges

Police have a lot of power - provided that they follow the rules, they can search your home, take a sample of your breath, or even apply deadly force. There is, however, something that they don’t do: lay charges.

Imagine this: you spot someone stealing your car and you call the police. Police attend, catch the offender, and take him away; but, they don’t lay the theft charge. In B.C., Crown Prosecutors (also known as Crown Counsel) lay charges.

After police arrest a person, they forward a package of documents relating to the offence to Crown Counsel. This package of documents contains a description of the alleged offence, a description of the offender (i.e. date of birth, criminal record, and address), witness names/statements, photographs, and any audio/video recordings.

When Crown Counsel get the package, they make a decision: charge the person with a crime or don’t charge the person with a crime. When deciding whether or not to lay charges, Crown ask themselves two questions:

  1. Is there a substantial likelihood of conviction? Here, Crown considers whether or not they are ‘pretty sure’ that they will get a conviction. To determine that question, Crown considers several factors, including whether or not evidence gathered by police will be admissible in court. Crown also considers the likelihood that some defence will succeed at trial. If Crown are ‘pretty sure’ that they will get a conviction, they ask themselves the next question.

  1. Is prosecuting the offender in the public interest? Here, Crown considers a few factors, including whether or not the ‘offender’ committed a genuine mistake or if there was some misunderstanding. Crown may not lay charges if the offence was trivial, did not result in any significant harm, or would merely result in an insignificant penalty.

If these two hurdles are cleared (i.e. there is a substantial likelihood of conviction and it is in the public interest to prosecute), then charges are laid and the alleged offender is brought to court to answer to the charges.

Consider the following example: a 12 year old child with no previous record steals a candy bar from a supermarket. In the circumstances, there is enough evidence to easily convict the child. But, it may not be in the public interest to prosecute – the public may not benefit from giving this young child a criminal record. So, rather than laying charges, Crown may refer the child to a restorative justice program, intended to help the child address their behaviour and repair the harm that they caused.

In some other provinces, like Ontario, police may lay charges. With that said, I suggest that the procedure in B.C. is better - Crown are in a better position (than police) to determine whether or not charges should be laid. Crown are more familiar with the rules of evidence/trial procedure and are better able to determine the likelihood of conviction.

Also note that, despite television portrayals, Crown Counsel are not merely interested in charging people, getting a conviction, and sending people to jail. They are actually interested in seeing that justice is done and in working for the public interest.

If you are further interested in Crown Counsel’s roles and duties, you should refer to the Crown Counsel Act or the Crown Counsel Policy Manual, both of which are available online and at your local courthouse library.

Now you know.

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

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About the Author

Jeff Zilkowsky is a lawyer practicing at MacLean Law in the Lower Mainland and in Kelowna, and focuses his practice on family law and litigation.  

In his column, Jeff provides information about current legal events or points of interest or concern relating to the law. 

The information contained in Jeff’s column should not be used or relied upon as legal advice.

Comments are always appreciated and encouraged, so don’t hesitate to email Jeff at [email protected]

Visit Jeff’s website at www.jeffzilkowsky.com or visit the website of MacLean Law.

The views expressed are strictly those of the author and not necessarily those of Castanet. Castanet does not warrant the contents.

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