Law experts debate best way to drop cases

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This article was published 16/10/2017 (2939 days ago), so information in it may no longer be current.

More than 5,000 criminal charges are dropped in Manitoba each year, often disappearing quickly and without public explanation.

Crown prosecutors across the country use their discretion to dismiss cases that shouldn’t be in the courts, but the way it’s been done in Manitoba for years has been a source of contention.

Ten years ago, in the wake of a wrongful murder conviction that spurred an inquiry into Manitoba’s justice system, an Ontario judge questioned the province’s common practice of staying criminal charges as a way for prosecutors to drop the case. However, the practice has still been going strong since then.

Former Ontario chief justice Patrick LeSage wrote in his 2007 Driskell Inquiry report that staying a charge is not the best practice to stop a criminal case. Legally, it means charges are temporarily suspended and can be brought back to court within a year.

Instead, he said, the Crown should withdraw the charge, making the decision final and publicly accountable.

“(Withdrawing a charge) is preferable to the stay because it is requested in open court, it is subject to some judicial supervision and it sends a clear message to the public that the Crown is not prosecuting the case, as opposed to temporarily putting the case ‘on hold’ by entering a stay. The word ‘withdrawal’ is on its face more telling than ‘stay,’” LeSage wrote.

He questioned Manitoba’s method of using stays to quickly drop charges in the context of wrongful conviction cases such as the one involving James Driskell, whose criminal charges were stayed via a letter after his first-degree murder conviction was overturned in 2005 and a new trial was ordered following a government decision that there had likely been a miscarriage of justice.

But the practice of staying charges outside of a courtroom, often via forms filed and sent between lawyers, has continued unabated in the decade since Driskell’s case sparked concern. Although some will give a reason, prosecutors don’t have to publicly explain why they decide to stay charges, whether or not they do it in a public courtroom.

“That has been a long-standing practice in Manitoba for just decades and decades and decades, to the point where the profession just got used to it and nobody really has raised it as an issue,” said Bruce MacFarlane, former deputy attorney general of Manitoba and a member of the panel that contemplated the use of stays-of-proceedings for the Driskell Inquiry report.

MacFarlane said it would be too onerous to expect Crown attorneys to give reasons for the thousands of charges stayed annually, and that doing so could lead to more court delays.

“Usually, there’s no reason to give an explanation. That’s the objective of defence, is to get a stay. So when the Crown decides to enter the stay, the defence is happy, the public doesn’t really care and so what’s the point?”

Although Manitoba Justice couldn’t say how many times a year Crown prosecutors file a form to stay charges rather than speaking about the case in court, a department spokeswoman said the form option has been in place since 2005 — the same year prosecutors stayed Driskell’s charges in a letter instead of going ahead with a new murder trial.

The form is considered more efficient and practical.

“This allows a matter to be dealt with as quickly as possible, instead of waiting for an appearance in court,” the Manitoba Justice spokeswoman wrote in an email.

Requiring prosecutors to give a reason why they’re dropping charges could hurt the independence of the Crown’s office and spark safety issues or privacy concerns, particularly when dealing with certain witnesses and highly sensitive information, said University of Manitoba law Prof. David Ireland, a former Crown attorney and defence lawyer.

Some Crown attorneys tell the court why charges are being stayed — when a key witness doesn’t show up, for example — but they don’t have to give an explanation.

“Should you have to go to court and put people at risk by saying what’s going on behind the scenes? The answer, to me, would be no,” Ireland said.

Unlike an appeal of a judge’s ruling, there’s no mechanism in the justice system to challenge a prosecutor’s decision to stay a charge, making their reasons for doing so legally irrelevant.

“At the end of the day, they are part of the government, but they do have this independent role to assess charges based on public interest and reasonable likelihood of conviction and to proceed on that mandate,” Ireland said.

“If you had to put on the record why you’re staying proceedings, then you’re no longer independent.”

katie.may@freepress.mb.caTwitter: @thatkatiemay