What’s the police’s role in getting someone charged with a crime?
The police will investigate a crime whenever they have reasonable suspicion that someone has committed, or is committing, one. They’ll arrest a suspect if they have reasonable and probable grounds to believe the suspect has committed a crime.
After they arrest someone, the police will write a report setting out the evidence and allegations against that person. Then the police will submit this report, called the Report to Crown Counsel (RTCC), to the prosecutor’s office. Once a prosecutor has reviewed the police report, they can choose to:
(1) Decline to approve a charge;
(2) Refer the matter back to the police for further investigation;
(3) Issue a Crown caution letter;
(4) Refer the matter to alternative measures; or
(5) Approve one or more charges. These don’t have to be the sames charge or charges the police had recommended.
Notice that, in Canada, alleged victims aren’t the ones that make charge-approval decisions. There’s no such thing as “pressing charges” in Canada. In British Columbia, the police also aren’t the ones to make that decision. In this province, the decision to charge someone with a crime is the prosecutor’s to make, and no one else’s.
How does a prosecutor decide whether or not to approve a charge against someone?
Prosecutors apply a two-part test to decide whether to approve a charge against someone. They must conclude that:
(1) There is a substantial likelihood they can prove the charge beyond reasonable doubt;
(2) Charging the person is in the public interest.
The words “substantial likelihood” aren’t clear, but they seem to mean “more likely than not”.
If the police allege an accused has committed a very serious crime, the prosecutor will lower their charge-approval standard somewhat. Basically, it’s so strongly in the public interest to prosecute serious crimes that prosecutors will charge-approve them even when the evidence isn’t so strong.
If the police are investigating someone, what can that person do to protect themselves?
Sometimes, the police aren’t sure they have enough evidence to warrant recommending a charge to the prosecutor. Or they have enough evidence, but they would still like it if they had a stronger case. In those situations, the police will ask the suspect to provide them with a statement.
When the police ask a suspect for a statement, it’s almost never a good idea for the suspect to give them one. Before they can get a statement from a suspect, the police must warn them that they have a right to speak to a lawyer. Most of the time, the suspect will choose to speak to a free lawyer, who will advise them of their right to remain silent.
The police use various techniques to try to get a suspect to talk to them during a police interview. Usually, at minimum they’ll tell the suspect that the interview is the suspect’s “opportunity” to tell their side of the story. In reality, the police are hoping the suspect will give them incriminating evidence. In Canada, the police are allowed to lie to people during police interviews.
If the police have served someone with a court date, does that mean the prosecutor will charge that person with a crime?
Not necessarily. When the police serve someone a Promise to Appear (i.e. a first court date), that person is accused of committing a crime. However, as we’ve seen, at that stage the prosecutor hasn’t yet charged them with one. Typically, at some point before the accused’s first court date the prosecutor’s office will receive the police’s report. That’s when a prosecutor will decide whether to approve one or more charge(s) against the accused.
The accused’s first court date can be up to several months from the date the police served them their Promise to Appear. During that time, it’s a good idea for an accused to obtain more thorough legal advice than they might’ve received when the police first arrested them. There are many steps an accused can take to help their defence before their first court date.
Is it possible to convince a prosecutor not to approve a charge the police have recommended?
Yes, in rare instances. As mentioned, there can be a gap between the time the police arrest an accused and the prosecutor decides whether to charge that accused. It’s possible to convince the prosecutor not to approve a charge by advocating to them before they obtain the police’s report. It’s best to do this through a lawyer because a lawyer’s communications with the prosecutor are privileged (i.e. inadmissible in court).
Obviously, it’s better for someone to avoid a criminal charge in the first place then to try to beat it later on. Being charged with a crime can create negative consequences for one’s employment, for example. It can also create social stigma generally.
You can find some of the firm’s case results of non-approved charges HERE.