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Why so many B.C. criminal cases cannot be solved pretrial | Kyla Lee

Thursday, May 07, 2020 @ 1:40 PM | By Kyla Lee

Last Updated: Wednesday, May 13, 2020 @ 1:11 PM

Kyla Lee %>
Kyla Lee
When the British Columbia provincial court announced its plan to start reopening some services, I was pleasantly surprised. Some of the aspects of the plan included telephone dispositions for summary matters proceeding by joint submission or where the parties are close together in their submissions. I was pleased to see a plan in place for moving matters forward and that steps are being taken to bring the courtrooms into a position where they can be conducting trials in a safe fashion again.

But one thing really stuck out to me.

In the new practice direction issued by the court, the court shed light on an interesting statistic: only four per cent of those files that are set for trial actually end up proceeding to trial on the scheduled trial date.

That four-per-cent number does not come as a result of 96 per cent of cases being bumped for lack of court time. That four per cent number is a result of entrenched inefficiencies in the criminal justice system in British Columbia, and in Canada, which have led to the less than optimal use of court resources.

To address this, the B.C. provincial court has issued a new practice direction requiring all files to have a pretrial conference, before being set for trial. At the pretrial conference, the Crown and defence will have an off-the-record discussion, with a judge, about the issues in the case, the possibility of resolution and the typical matters like disclosure, pretrial applications, Charter applications, witnesses and time estimates.

And while I applaud the initiative being taken by the B.C. provincial court to move matters toward resolution in the early stages, I see two significant hurdles that are beyond the control of the court to the effective use of pretrial conferences. Those are mandatory minimum sentences and Crown counsel resolution policy.

For my practice, the majority of files that I deal with are impaired driving cases. Every single one of my clients with an impaired driving charge is facing a mandatory minimum. As a result, every single one of my clients has no incentive to plead guilty. If they were to roll the dice and take their best shot at trial, they would still receive the same penalty. The result of this is that if Crown is not willing to accept a plea to a Motor Vehicle Act offence or eliminate a driving prohibition and criminal record through an alternative arrangement, my clients are no better off pleading guilty than setting the matter for trial.

This is, of course, not just the case for driving offences. But a significant number of criminal cases, according to Statistics Canada, involve impaired driving. And these cases, because there is a mandatory minimum, are exemplary of the problems that cases involving mandatory minimums pose to the effectiveness of a resolution. So a good lens into the burden on the court is through impaired driving cases. 

And it’s no surprise they account for a large portion of criminal cases scheduled for trial; with the mandatory minimums in place, there is often no reason to resolve them before trial with a guilty plea.

Which is exactly the point. The pretrial conference practice directive does not change the fact that no allegedly impaired driver has any reason to plead guilty in exchange for the mandatory minimum sentence. This means that a majority of cases, potentially, that go through the pretrial conference process may do so needlessly.

Of course, the potential for a Motor Vehicle Act resolution would be a worthwhile discussion to avoid the necessity of trial and skirt the mandatory minimum on a guilty plea.

However, this again engages factors about which the B.C. provincial court has no control.

Crown counsel policy in British Columbia largely operates to prohibit and prevent pretrial resolution of these matters by way of a plea to a lesser offence. This is set out in the impaired driving policy for B.C. Crown counsel. 

The policy directs that a plea to a lesser offence is only permitted where the charge approval standard is no longer met. Well, if the charge approval standard is no longer met then, acting appropriately, Crown counsel must stay the charge. Alternatively, the policy permits the early resolution where the accused has “exceptional” personal circumstances, “beyond the ordinary hardship arising from a conviction.”

The Crown policy does not appear to align with the court’s reference in the practice direction to the fact that Crown counsel need to be reasonable and realistic in their sentencing positions and exercise “enhanced discretion for resolving individual cases.”

And while some may look at this and suggest that, equally, more individuals charged with offences where there are mandatory minimums should plead guilty, there is one substantial difference between the position that the Crown and lawmakers find themselves in and that an accused person is in. An accused individual has a constitutional guarantee to the presumption of innocence and a trial to prove their guilt beyond a reasonable doubt.

It is not something to be given up lightly in the interests of expediency, particularly when facing mandatory minimum penalties and a restrictive policy that operates against the interests of early resolution.

So while I applaud the B.C. provincial court in taking this much-needed and long-overdue step, I do so with caution, recognizing that there is much more at play in arriving at that four per cent figure.

Editor’s note: This story has been updated to include new information.

Kyla Lee is a criminal lawyer and partner at Acumen Law Corporation in Vancouver. Her practice focuses on impaired driving. She is the host of a podcast, Driving Law, and a weekly video series Cases That Should Have Gone to the Supreme Court of Canada, But Didn’t! She is called to the bar in Yukon and British Columbia. Follow her at @IRPLawyer.

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