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(Prime Time Crime exclusive Oct. 17, 2008)
By Bob Cooper
In a previous column I characterized the Charge Approval System as the worst thing that’s happened to the Justice System in British Columbia in the last 30 years but said that that was a whole other column. Well, here it is.
For those unfamiliar with the system let me explain. Formerly, when a police officer arrested someone he went before a Justice of the Peace and verbally related the circumstances of the case. If the JP felt that a case was made out, he issued Information charging the person with whatever offence(s) the evidence supported. The police officer then swore under oath that the Information was true and the charge was laid. The police officer then completed a Prosecutor’s Report which contained a brief synopsis of the case along with the evidence each witness was expected to give. This report went to the City Prosecutor’s Office who assigned a prosecutor to take the case to Magistrate’s Court.
I should also point out that the Office of Justice of the Peace was designed to be staffed by lay people from the community. Most of them had been employed in the courts and had more than a passing familiarity with the justice system but their greatest quality in most cases were that they had common sense. JPs were also the ones who issued the vast majority of search warrants.
In the mid-70s, the provincial government of the day took over the operations of the courts in BC and implemented the Charge Approval System. Under Charge Approval when a police officer arrested or wanted to charge a person with an offence he completed a Report to Crown Counsel which went to the Charge Approval section where a prosecutor would review the report and decide whether or not a charge should be laid. The government set out a two-pronged standard to guide Crown Counsel. Firstly, there had to be a substantial likelihood of conviction. Secondly, it had to be in the public interest that a charge proceed.
Sounds reasonable at first blush doesn’t it? Prosecutions cost money and it was sold to us as a Quality Control process to weed out the weaker cases that were unlikely to succeed. We quickly learned that it was little more than a device to cut costs by dumping cases and has been used that way for the last 30+ years by provincial governments of both stripes. Want to close courthouses? Don’t want to build more prisons or hire more prosecutors? No problem, just dump more cases.
“Substantial likelihood of conviction” was interpreted by some Crown as a 100% guarantee. A case that can walk in and prosecute itself. Just the possibility of a defense being raised was sufficient for some Crown to stay the case. “Public Interest” was the more subjective of the two standards and was used to decline or stay many more cases.
As an example of the use of “public interest” I arrested a drunk in 1982 in front of the Blue Eagle café one night and while waiting for the wagon he spat in my face. I locked him up for Assaulting a Peace Officer, submitted my reports and went on my days off. When I came back to work my report was returned from Charge Approval. The “No Charge” box was ticked and the following was written in the “Remarks” section by the Crown Counsel who reviewed the report: “Nick, (the Police/Crown Liaison NCO at the time) if you have any concerns please see me. This guy’s a drunk. Drunks are drunks. This kind of shit comes from dealing with drunks”.
It was now OK to spit in a cop’s face. Not by any act of Parliament, nor a decision of the Supreme Court. Just some lawyer who felt it wasn’t worth the effort.
Other offences such as Causing a Disturbance soon went South in similar fashion. As any Vancouver cop knows, the current state of the Downtown Eastside is due in large measure to the Charge Approval System. Same as New York in the 70s but we never learn.
The defense bar loves this system because 99.99% of the time it works vastly in their favour. But one of the basic tenants of our legal system is that it is supposed to be as transparent as possible. This system operates entirely behind closed doors. The evidence is never tested in court and the Crown effectively usurps the function of the judge or jury. It also reduces the traditional Office of Justice of the Peace to a rubber stamp.
I’m not saying for a moment that police officers don’t make mistakes and that there are some cases which have no chance of success and if all the system did was weed those cases out that would be alright. In fact the majority of cases that are stayed or plea-bargained are the ones in the middle. The ones that fall short of being perfect but still deserve to be heard.
The case that inspired this column involved the murder of a woman named Tammy Murray who was stabbed 60 times in her Burnaby apartment. Her killer, boyfriend Aaron Hickey, admitted the killing but claimed he was provoked and suffered a blackout due to intoxication which is convenient because no one else was present. Hickey was initially charged with 2nd Degree Murder but Crown offered him a plea to Manslaughter. The victim’s family has now gone to BC Supreme Court to get the plea struck. That Crown will be arguing against them is evidence of a vested interest in the status quo.
Let me be clear. My quarrel here is not with the Crown. Nor am I saying that their decision may not have merit (although 60 stab wounds?). The family has asserted that the fact that Ms. Murray worked as an escort was a factor in the Crown’s decision. I don’t believe that for a second and I don’t hesitate to stand with the Crown on that issue. Among those involved in one of three separate reviews of the case was Vancouver Regional Crown Counsel Terry Schultes who I have a tremendous amount of respect for both professionally and personally. Since taking over as Regional Crown he has made tremendous strides in mending a very strained relationship between the police and crown counsel.
My quarrel is with the system that puts Crown Counsel in this position. Its very existence engenders the sort of mistrust felt by Ms. Murray’s family that was best expressed by her sister Tanya when she said “All I want is a judge or a jury to decide whether the evidence is relevant enough to be dropped down (to manslaughter), not for them to decide over coffee”.
There are a couple of long-standing sayings in the legal system. ‘You can’t put a price tag on justice’ and ‘Justice must not only be done, it must be seen to be done’. The Charge Approval System puts the lie to both.
I wish the Murray family luck.