Elimination of Alberta prosecutors’ triage protocol raising concerns

By Ian Burns

Law360 Canada (September 19, 2023, 1:33 PM EDT) -- The organization representing Crown attorneys in Alberta is raising alarm bells about recent changes to a triage protocol which emphasized a focus on serious and violent crimes, saying it has the potential to increase stress on the criminal justice system.

Attorney General Mickey Amery announced last week that the province was terminating the triage practice protocol, which was put in place in 2017 in response to the Supreme Court’s decision on trial delay in R. v. Jordan, 2016 SCC 27, and the fact that the Alberta Crown Prosecution Service (ACPS) was facing a shortage in prosecutors.

The protocol allowed Crown attorneys to prioritize serious and violent crimes over other offences within the system, but the government said it was no longer necessary due to increased investment in the ACPS. Eliminating the protocol will better address violent crimes in the community and ensure all viable charges are prosecuted, the province said.

Breena Smith, vice-president of the Alberta Crown Attorneys’ Association (ACAA), said the protocol wasn’t ideal because many victims potentially weren’t getting their day in court, but added the association was concerned the move would cause stresses on the criminal justice system due to an increased workload and additional resources are required — not only for Crown prosecutors but also for courtrooms, sheriffs and clerks.

“If we are not triaging files that presumably means there are more trials being set and more files gong through the system, so we are concerned that will lead to bottlenecks and that we won’t be able to handle the additional workload and the backlog that already exists in the system will only intensify,” she said. “Despite the good intentions in having increased public safety and increased confidence in the administration of justice in Alberta, our concern is that without these additional resources the results the government is hoping for, or what the public would want to see, isn’t what will actually materialize.”

As part of its announcement last week, Alberta also said it was making changes to the bail practice protocol for Crown prosecutors to “prioritize public safety and take a tough approach on crime caused by repeat violent offenders and gang activity.” The protocol provides guidance to prosecutors to seek to detain any accused who is a threat to public safety, especially repeat violent offenders, unless the risk to public safety can be addressed by bail conditions. Prosecutors must evaluate the risk that the accused will commit another offence if released, the province said.

But Smith said the new protocol on bail is something that Crowns have always been doing.

“We always consider the safety of the public and the victims, and we try to maintain the public’s confidence in the administration of justice. That also must be balanced against the rights of the accused, but we would always oppose the release of an accused we feel is a danger to the public,” she said. “I think that obviously the intention and the motivation of ensuring public safety is one that we can all get behind and increasing confidence in the justice system but whether there is an actual change of our practices and what we are doing I don’t know if that lines up with expectations that things will change.”

Graham Johnson, DDSG Criminal Law

Graham Johnson, DDSG Criminal Law

Since taking office in 2019, Alberta’s United Conservative Party (UCP) government has emphasized “tough on crime” policies, including increased resources for police and prosecutors. Graham Johnson, a senior partner with DDSG Criminal Law in Edmonton, said adding more police and prosecutors has meant there has been a larger number of files to deal with.

“And with that there needs to be greater funding for the legal aid system, and to the government’s credit — although it took a job action by defence lawyers — they actually came through and there have been more resources put into legal aid,” he said. “They showed some appreciation for the fact that the various parts of the system are all intertwined, and you can’t have more prosecutors and more police to bring and prosecute more cases without resolving greater need for legal aid.”

Smith said Crown prosecutors’ workloads were unmanageable for many years, but a recent agreement with the province to provide a pay bump and increased resources for Crown prosecutors has borne fruit.

“We are happy to report that agreement our association and the government has improved things in terms of we are seeing better recruitment and retention for prosecutors and there is not the mass exodus or turnover we have seen before — our service has stabilized,” she said. “The government has reported that the vacancy rate is the lowest it has been in years, and that is what we see as well.”

But Johnson said the actions the government has taken in terms of its “tough on crime” approach shows they “really don’t have a good understanding of what is motivating people to commit most of the crime, and what is within their power to do something about it.”

“The criminal law of course is federal jurisdiction, so the province can’t legislate on criminal matters,” he said. “But there are lots of things the government could be doing in areas under its jurisdiction, like provincial correctional facilities and health and addiction service, that I think could help address a lot of the underlying causes of crime.”

If you have any information, story ideas or news tips for Law360 Canada please contact Ian Burns at Ian.Burns@lexisnexis.ca or call 905-415-5906.

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