New protocol encourages Alberta prosecutors to take plea bargains for serious crimes

The Alberta government's new "triage" approach for cases in the strained justice system instructs the prosecution service to seek lesser convictions for serious charges in an effort to alleviate some of the pressure.

Guidelines spell out how Crown should assess which cases proceed

Crown prosecutors in Alberta have a new protocol to help them assess and review files in light of limited resources to take cases to court. (CBC)

The Alberta government's new "triage" protocol for cases in the strained justice system instructs the prosecution service to seek lesser convictions for serious charges in an effort to alleviate some of the pressure.

The nine-page document, obtained by CBC News on Wednesday, states that "running a trial of several weeks on a slim chance of obtaining a first-degree murder conviction when a plea to second-degree has been offered may not be an appropriate use of resources."

The new Prosecution Service Practice Protocol says the use of triage "reflects the gap between the resources allocated to the Alberta Crown Prosecution Service and the number of otherwise viable charges laid by the police.

"It is a measure born of necessity due to a combination of limited resources and increased demands on the justice system."

'Limited resources are now a factor'

James Pickard, president of the Alberta Crown Attorneys' Association, said in an email that the triage protocol is the first written direction the prosecution service has received "that places such an emphasis on resources in relation to our decision-making.

"What is clear in the triage protocol is that limited resources are now a factor to weigh on all files — even the most serious and violent."

The new protocol, introduced Feb. 27, first reiterates the long-standing principle of weighing case viability and determining the likelihood of conviction.

It emphasizes the importance of steering away from charges that aren't likely to go anywhere, explaining it frees up resources in the overtaxed system to focus on "serious and violent offences." 

The second key component of the protocol includes more defined guidelines relating to early resolution — or plea bargains — including for serious and violent offences.

"We have a duty not only to the court to be efficient in our use of court time, but also to the public to ensure that resources are being used wisely," the document states.

Decisions should be based on law

Rick Woodburn, president of the Canadian Association of Crown Counsel, said to his knowledge, Alberta is the only province to enact such a document.

"Crown prosecutors should be independent and, ethically speaking, shouldn't be making choices based on the fact there's a lack of resources," Woodburn said.

"Our decision-making practice is based on the law and whether or not there is a reasonable prospect of conviction and whether or not it's in the public interest to proceed, but a budget concern is none of ours."

On Feb. 28, Edmonton's chief Crown prosecutor stayed 15 cases. Some of the charges in those cases were for violent offences, including assault.

The next day, the Alberta Crown Attorneys Association held a news conference during which the association announced it had stayed 200 charges since the beginning of the year. 

Justice Minister Kathleen Ganley said the decision to prosecute will continue to be based on evidence.

"The triage protocol is explicit," she told the legislature. "Things will not be lost prosecutions merely because of timing, but prosecutors are empowered to make the decisions necessary to focus on serious and violent crime."

Ganley has said the government plans to put more money into the justice system to ensure long-delayed court cases do not continue to be dropped.

'Deeply concerning'

Progressive Conservative member of the legislature Mike Ellis, a former police sergeant, said he is appalled by the protocol, as he warned the government about a shortage of Crown prosecutors last year. 

"We're talking about victims who are not going to be able to seek justice," he said. "And that is what is deeply concerning for me."

Edmonton defence lawyer Brian Beresh expects the protocol will only make a small difference.

He said the triage protocol is a poorly applied Band-Aid on a broken system in need of an overhaul. The overhaul would include a more rigorous vetting of cases before they enter the court and better access to legal aid.

"The last thing we want is a system of justice that rapidly runs people through the system and convicts the wrong people or convicts them of the wrong charges," Beresh said.

With files from Camille Feireisen