Canada

Facing a huge COVID-19 backlog, prosecutors are quietly diverting more drug possession and impaired driving charges from criminal court

Without fanfare, the federal and provincial governments have begun targeting drug possession and drinking and driving offences as potential charges that can be diverted out of the criminal justice system to help reduce massive backlogs that have been exacerbated by the COVID-19 pandemic.

But just as the pandemic accelerated the modernization of Ontario’s courts — with teleconferencing and Zoom trials replacing the need for some face-to-face court appearances — the policy shifts on relatively minor criminal charges are being hailed as unprecedented, with some predicting they’re going to lead to historic, significant and long called for reform of the criminal justice system.

“There’s a lot of components of the justice system that COVID has provided the opportunity to look more critically at and ask ourselves: ‘Are there ways we can do this better?’” said Rebecca Jesseman, director of policy at the Canadian Centre on Substance Abuse and Addiction.

This past week, the Public Prosecution Service of Canada (PPSC) publicly released new guidelines that direct federal prosecutors to focus on the most serious drug cases that raise “public safety concerns, while pursuing alternative measures and diversion from the justice system.”

Jesseman said she was particularly struck that the directive included the admission that criminal sanctions, “as a primary response, have a limited effectiveness,” in deterrence and in addressing public safety concerns “when considering the harmful effects of criminal records and short periods of incarceration.”

That, Jesseman said in an interview from Ottawa, “is a very important statement in recognizing that we need to take a better approach to this.” She added: “It recognizes there are alternatives that are more effective, that we can be investing our money more wisely in prevention, harm reduction, in treatment, in recovery services, that are going to provide individuals with better outcomes and better protect society.”

Prominent Toronto defence lawyer Greg Lafontaine said the PPSC has taken a “significant step” toward, ultimately, the outright decriminalization of the possession of illicit substances or drugs — something public health experts have advocated for years and now has the support of Canada’s chiefs of police.

The PPSC’s directive has “changed the analytical starting point to a presumption of non-prosecution in favour of diversion,” he said. “This policy shift in perspective will have an impact of real substance for the many Canadians who find themselves before the court on simple possession charges.”

The Ontario Ministry of the Attorney General is also giving its prosecutors new instructions. They’re being advised to consider the impact of the pandemic as “an exceptional circumstance” justifying the withdrawal of some Criminal Code drinking and driving offences — in exchange for guilty pleas to careless driving under the Highway Traffic Act (HTA), which would see offenders avoid a criminal record.

“Prosecutors will review all incoming and existing criminal matters on a case-by-case basis to assess the viability of the prosecution and consider all available and appropriate sanctions, consistent with public safety, to resolve cases as early as possible,” ministry spokesperson Brian Gray wrote in an email.

He said there is no estimate on the number of charges that could be affected.

Daniel Brown, a Toronto defence lawyer and vice-president of the Criminal Lawyers Association, said it makes sense for the province to focus on impaired driving cases. They clog up the court system and are at most often at risk of being tossed out because of delay.

“Eliminating even a small portion of impaired driving trials could ensure that other serious criminal cases are prosecuted successfully,” he said.

According to Statistics Canada, impaired driving offences (9.1 per cent) and fraud (9.1 per cent) were the highest proportion of cases in 2017-18, surpassing the 18-month time limit set out by the Supreme Court of Canada in R. v. Jordan in 2016, followed by drug offences (8.7 per cent).

While the pleading down of drinking and driving cases is not something Mothers Against Drunk Driving (MADD) generally agrees with in principle, the influential organization recognizes the unique circumstances created by COVID-19 and understands why the ministry has taken this step.

“If these things were being done because of incompetence or shortage of staff or any type of rationale where the government was at fault, you could be appalled that they were doing this,” said Andrew Murie, CEO of MADD Canada.

“But COVID closed the courts ... and then you’re left with this dilemma, you have all these cases that need to be dealt with,” otherwise they risk being thrown out of court because of untimely delay.

The criteria for which offenders this applies to is also appropriately stringent, he added. So, for instance, the ministry says no Crown attorney should accept an HTA plea by an impaired driver who caused a death or injury or a crash. Also ineligible are repeat offenders or someone who had a blood alcohol reading of 120 mg or more within two hours after operating a vehicle.

Calvin Barry, a Toronto defence lawyer specializing in impaired driving cases, says the reason the cases are such a burden on court resources is because the stakes are so high. People will throw money trying to fight a charge “because they can’t afford a criminal conviction, they can’t afford the insurance going into facilitator, they have to travel, they’re scared about the American border restrictions and getting jobs,” he said.

And prosecutors, until now, were not allowed to withdraw them and would only take a plea to careless driving in “exceptional circumstances.”

But people who plead out to careless driving are not getting just a slap on the wrist, he said. There remains a significant social stigma after losing a driver’s licence, a hefty fine and, in some cases, being required put an ignition interlock on a steering wheel — “a show-stopper on a first date, let me tell you.”

He believes the province’s move now could set the stage for Ontario to adopt a system that’s been in place in British Columbia for a decade. That province has an immediate roadside prohibition program in which some first-time offenders are diverted to an administrative system, rather than charging them with a Criminal Code offence.

Critics say the approach violates the presumption of innocence and imposes automatic sanctions, such as driving bans, vehicle seizures or fines.

Proponents argue the system works by ensuring immediate, powerful penalties for impaired driving, providing a rehabilitative focus that helps change dangerous driving behaviours. Also avoided are criminal court proceedings that can take months or even years before offenders face the full consequence of their actions, if they are convicted.

Moving to an administrative system was a key recommendation made to the provinces in MADD’s latest policy paper. A similar program is also in Manitoba and is currently being implemented in Alberta.

“As soon as it was brought in British Columbia, they had a 50 per cent reduction in impaired driving deaths,” Murie explained. “There was a fundamental shift — people did not want their cars impounded. They didn’t stop drinking, but they stopped drinking and driving.”

Barry and MADD are unlikely bedfellows. But Barry, a former prosecutor, also sees the benefits of an administrative system similar to what exists in B.C. He’s aware of lawyers there “crying the blues” because impaired driving work has dried up and they’re no longer in court arguing to get clients off because of constitutional delays and other “technicalities.”

“Obviously, it’s not good for defence lawyers if that model comes but I think it’s better for the public in the long run, because then you can put the resources, at least in Ontario, into the real violence, the guns, the drugs, guns and gangs, the murders, the rapes. It’s not a bad panacea really.”

The Ministry of the Attorney General did not provide a specific answer to the Star’s question about whether the province is looking at adopting an administrative system similar to those in Western Canada.

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