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where police have charging power, such as Ontario, you have a very high percentage of cases that are stayed or withdrawn," Williams told CBC Toronto.

"The systems are essentially overwhelmed by the sheer volume of charges, hence producing charges being stayed or withdrawn."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Toronto investigation recently revealed how most criminal cases in Ontario since 2020 have ended with the charges being withdrawn, stayed, dismissed or discharged.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.

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."