Ontario mulling having prosecutors approve criminal charges before police lay them

Seven years ago, criminologist Christopher Williams released a report urging reform on how criminal charges are laid — to provide relief to Ontario's backlogged justice system. 

His solution?

Instead of having police officers decide whether to lay charges, give that power to prosecutors, as other provinces had already.

"My research, in a nutshell, found that in provinces where police have charging power, such as Ontario, you have a very high percentage of cases that are stayed or withdrawn," Williams told CBC Toronto.

"The systems are essentially overwhelmed by the sheer volume of charges, hence producing charges being stayed or withdrawn."

Ontario is now eyeing a similar change as its justice system faces even greater pressure following the pandemic. Ontario's Ministry of the Attorney General is considering the merits of moving to a system in which prosecutors would screen criminal charges proposed by police before officers lay them. 

Currently, that only happens in some cases, but it's not required. Instead, the Crown's review happens after a person is charged to determine whether prosecuting is in the public interest, and whether the charge has a reasonable prospect of conviction. If the charge doesn't meet those criteria, prosecutors withdraw it.

A CBC Toronto investigation recently revealed how most criminal cases in Ontario since 2020 have ended with the charges being withdrawn, stayed, dismissed or discharged. For 2022-23, the latest fiscal year for which data is available, 56 per cent of cases ended one of those ways — a 14 per cent increase since 2013-14 when guilty decisions made up most outcomes.

Last year, the ministry told a provincial committee switching from post- to pre-charge prosecutor screening could help prevent charges that don't meet the bar for prosecution from clogging up the system. It would also reduce the risk of delays that can lead to charges being stayed and free up resources for prosecuting more serious offences. 

The hitch was that it would be critical to have police agree on whether, and how, the ministry made the switch to pre-charge screening, it told the committee.

Police resistant

And it doesn't look like that's happening.

Despite being open to consultation with prosecutors before laying charges, the Ontario Association of Chiefs of Police argues officers need to retain the power to lay charges even if the Crown disagrees.

"We have to look at immediate victim safety, we have to look at public satisfaction, we have to look at what evidence do we have," said executive director Paul Pedersen.

"The decision on whether or not there's a reasonable prospect of conviction, the decision on whether or not this is something that warrants precious trial time, the decision that the Ministry of the Attorney General through its Crown attorneys make isn't a decision — quite frankly — that impacts our investigation and our reasonable grounds to believe that a charge [should be] laid."

CBC Toronto asked the ministry for details on where it's at with consultations on pre-charge screening and how much police opposition would impact the likelihood of changing the system.

In a statement, a spokesperson would only confirm that discussions are ongoing with the Ministry of the Solicitor General and that the government continues "to listen to voices across the justice system."

Legal groups, academics in favour 

A year ago, a report on criminal charge screening practices across the country was prepared for a federal justice committee. In it, all of the Ontario justice system stakeholders consulted agreed that the province should consider making the change to a system where prosecutors screen charges before police lay them — except for the police. 

Those in favour of change included academics, groups like Legal Aid Ontario and the Ontario Human Rights Commission, and also Crown representatives. All of their arguments pointed to how pre-screening could reduce the high number of withdrawn and stayed charges in the province. 

Many pointed to comparable stats from other provinces like British Columbia, New Brunswick and Quebec, which pre-screen charges and see fewer dropped and tossed each year.

One of the longest-standing examples is B.C. It's been about 40 years since the province made it mandatory for police to get prosecutor approval before laying a charge. The British Columbia Crown Counsel Association says it's proven to be a successful system.

"I 100 per cent do think it leads to greater efficiency," said vice-president Jennifer Johnston.

"If you're stopping at the gate [charges] that shouldn't be there in the first place, one would reasonably anticipate that in the long-term, this is going to lead to greater time savings."

Withdrawn and stayed charges are the minority in B.C., where they made up 32 per cent of criminal case outcomes in 2022-23.

Split views from Ontario prosecutors

The Crown representatives in Ontario that were consulted for the federal report unanimously agreed that the province should consider changing to pre-charge screening.

But the president of the professional association representing Crown attorneys in Ontario doesn't share those views. Donna Kellway says she has concerns about the impact overhauling the system would have on already strapped Crown resources.

"It's very labour intensive," said Kellway, who heads the Ontario Crown Attorneys' Association. 

"I worry about public safety when arrests have to be made. An arrest has been made and now a Crown has to be involved — the Crowns are already working around the clock."

She also thinks it's pretty rare for police to lay charges that have no reasonable prospect of conviction.

"You're starting off in the majority of cases with a reasonable prospect of conviction, but then that can change," Kellway said.

Ontario doesn't currently track the reasons charges are withdrawn or stayed so, statistically, it's unclear why charges get dropped or tossed, and at what point in the court system. 

But Williams argues the numbers that do exist for provinces which have made the switch, like B.C., clearly show the benefits of prosecutors screening charges.

"Non-viable charges were reduced, the total volume of charges was thereby reduced and the system was better able to deal with the real charges — the viable charges — that actually had reasonable prospects for conviction," he said.