People are finally being charged for participation in the Stanley Cup riots. Every time new charges are laid, there’s immediate media coverage. Many people are saying, “It’s about time.” In this article, I want to shed some light on how our charge approval system works in B.C.

An article titled “Why 1000 charged in U.K. riots and 0 charged in Vancouver” appeared in a Toronto newspaper, the Star, on August 17. Many people here in B.C. were wondering the same thing. Was the U.K. system better at addressing crime? Were the police in B.C. simply slow or just not doing their jobs? Were Crown prosecutors thwarting the police’s efforts at trying to get the bad guys? Is B.C. simply so lax in how it deals with criminals that this was just another example of how the criminals rule the streets in this province?

My response to all those questions is “no”. First, there were a lot of people participating in the Stanley Cup riots over a large area. Second, the police officers stationed downtown that evening were far outnumbered by the riotous crowds. There were approximately 100 arrests made that night, with millions of photos, videos, and witness accounts provided to the police in the days, weeks, and months that followed. Many of the photos and videos were of varying quality and made by civilian bystanders.

The investigators have a voluminous amount of evidence to painstakingly pore through. They must ensure that they are indeed witnessing a criminal act and more importantly, that they can identify the perpetrator. The police must then forward their recommendations with respect to charges to Crown counsel.

In B.C., Crown prosecutors are tasked with the job of approving charges and these charge approval decisions must be made in accordance with the Criminal Justice Branch’s charge assessment guidelines policy. When a prosecutor is reviewing a file from the police, two questions must be asked: 1) is there a substantial likelihood of conviction and 2) is the prosecution in the public interest? If the answer to both those questions is yes, charges will be approved.

When determining whether there’s a substantial likelihood of conviction, the Charge Assessment Guidelines of the Crown Counsel Policy Manual sets out the following three questions that must be considered: 1) what material evidence is likely to be admissible (violations of the Charter have a role to play here), 2) the weight likely to be given to the admissible evidence, and 3) the likelihood that viable, not speculative, defences will succeed. The public interest factor is far more nebulous and difficult to distill into this column.

Very generally, factors that favour prosecution include seriousness of the allegations, considerable harm done to a victim, the likelihood of a significant sentence for the offender, vulnerability of the victim, et cetera. Factors that go against prosecution include the minor, trivial, or technical nature of the offence and whether the desired result can be reached without prosecuting the matter. Additional factors to be considered include the circumstances of the offender, the age of the offence, and whether there is a need to maintain public confidence in the administration of justice.

Criminal law 101 teaches us that Crown prosecutors are not to act zealously or pursue convictions at all costs. The charge approval process is one that must be treated seriously and I believe that a legally trained mind should be the one making the call. There are people who want to see police officers given the responsibility of approving charges in B.C. and I respectfully disagree with this proposed course of action. People shouldn’t be charged simply based on bald allegations without sufficient evidence backing them up.

Police officers don’t have the training that prosecutors do in the rules of evidence, Charter violations, and what is required to actually prove a criminal offence at trial. What I could foresee happening is that a lot of people would fix trial dates, backlogging the system further, and ultimately, a prosecutor would have to step in and simply direct a stay of proceedings on a file that never had any likelihood of succeeding and never should have been approved in the first place.

Reasonable Doubt appears on Straight.com on Fridays. The column’s writers, Laurel Dietz and Nancy Seto, are criminal defence lawyers at Cobb St. Pierre Lewis. You can send your questions for the column to them at straight.reasonable.doubt@gmail.com.

A word of caution: Don’t take this column as personal legal advice, because it’s not. It is intended for general information and entertainment purposes only.