Type of document: covid 19 Recovery
Effective date: October 7, 2021

covid 19 Recovery

The effects of the covid 19 pandemic, including a necessary reduction in court operations, have caused unprecedented challenges in the criminal justice system. These challenges have resulted in a substantial backlog of criminal cases in the courts. Balancing this backlog against incoming prosecutions means that Prosecutors must take steps to reduce the number of cases in the criminal justice system to ensure that priority is given to the prosecution of serious offences.

The Prosecutor must review each case in accordance with the overall direction of the Manual and make principled decisions that also address the backlog of cases in the courts due to the covid 19 pandemic. In reviewing each case, the Prosecutor must:

  • determine whether the prosecution is viable and appropriate, including whether it is in the public interest to proceed given the impact of the covid 19 pandemic on the criminal justice system
  • consider all available and appropriate sanctions, consistent with public safety, to resolve cases as early as possible
  • make every effort possible to minimize delays caused by the covid 19 pandemic, their impact on victims, witnesses and accused, and reduce the risk of cases being stayed for unreasonable delay

The community relies upon Prosecutors to pursue charges that enhance public safety and promote public confidence in the administration of justice and the rule of law. 

Prosecutors must act with objectivity, independence and fairness in each case to ensure principled decisions are made. Decisions made by Prosecutors in the proper exercise of their discretion will be supported by the Attorney General.

Charge Screening

A charge may only proceed if there is a reasonable prospect of conviction and it is in the public interest. This standard must be applied to all cases and at all stages. Where there is no reasonable prospect of conviction or there is no public interest to proceed, the Prosecutor must withdraw the charge.

Reference should be made to the Charge Screening Directive.

Reasonable prospect of conviction and the impact of the covid 19 pandemic

In accordance with the Prosecutor’s continuing obligation to assess reasonable prospect of conviction at all stages of the prosecution, the Prosecutor must consider any frailties in the prosecution that may have been exacerbated by the covid 19 court restrictions or any other covid 19 impacts.

For example, the Prosecutor must consider the impact of any lengthy delays, the ability of witnesses to participate in a hearing in-person or remotely and access to appropriate technology.

If there is a reasonable prospect of conviction, the Prosecutor must then consider whether it is in the public interest to continue the prosecution.

Public interest and the impact of the covid 19 pandemic

Not all prosecutions that have a reasonable prospect of conviction will be in the public interest to continue. No one factor is determinative when assessing the public interest, but consideration must be given to both the seriousness of the offence including the harm done to victims and public balanced against the significant pressures on the criminal justice system caused by the covid 19 pandemic. 

The Prosecutor must also consider the following:

  1. the length, delay and expense of a trial, and any covid 19 court restrictions and limitations on court operations, and the need to reduce the number of cases in the criminal justice system, so that resources are available for the prosecution of serious offences
  2. the impact of the covid 19 pandemic on an accused, victim or witness or a segment of the community in light of their age, physical health, mental health or special vulnerability (e.g. the frequency of intimate partner violence during the covid 19 pandemic)
  3. the disproportionate impact of the covid 19 pandemic on racialized, marginalized, and Indigenous communities (e.g. an increase in the frequency of discriminatory or hate-related offences during the covid 19 pandemic)
  4. the disproportionate impact of the covid 19 pandemic on vulnerable accused persons, including racialized, marginalized and Indigenous accused (e.g. not having access to accommodations or supports that normally exist or barriers aggravated by living in a remote First Nations or fly-in community)
  5. whether the offence was motivated by the covid 19 pandemic (e.g. taking advantage of closed businesses or people’s fear of infection)
  6. whether the charge is an offence against the administration of justice, such as a fail to comply offence, where the restrictions imposed by the covid 19 pandemic impacted an accused’s ability to comply with the court order
  7. whether the experience of being arrested and charged (possibly held in custody pending release) with a criminal offence can, in itself, deter the accused person from being further involved in the criminal justice system
  8. the public interest factors in the Charge Screening Directive, including the gravity or relative seriousness of the offence, the prevalence of the type of offence in the community, the criminal history of the accused and the circumstances and views of the victim including any safety concerns

Reference should be made to the Charge Screening Directive.

Public Interest Factors to Consider in Fail to Comply Offences

In determining whether it is in the public interest to proceed with a prosecution of a fail to comply offence, the Prosecutor must also consider the following public interest factors:

  1. how long the accused was compliant with the terms of the release order, before and after failing to comply with the order, especially given the impact of the covid 19 pandemic on the accused
  2. any apparent reasons for failing to comply with the order, including whether the personal circumstances of the accused made it more challenging for them to understand the court order, or to comply with it
  3. whether there are new criminal charges and whether the resolution of those charges can sufficiently hold the accused accountable without the need to proceed with the prosecution of the fail to comply offence
  4. whether the accused failed to comply with a non-communication condition with a victim including a history of failing to comply with a non-communication condition or whether the accused initiated contact
  5. whether the nature of the fail to comply impacts the appropriateness of the continued release of the accused in the community (e.g. failing to comply with a weapons prohibition)

Where it is in the public interest to proceed, the Prosecutor must consider all available and appropriate sanctions, including whether it would be appropriate to refer the accused to a community justice or Indigenous Restorative Justice program.

Reference should be made to the Charge Screening and Indigenous Peoples Directives.

Community Justice or Indigenous Restorative Justice Programs

In some cases, the public interest can be better served through the exercise of prosecutorial discretion to withdraw or stay criminal charges after the completion of a community justice or Indigenous Restorative Justice program. Such programs allow the accused to take responsibility for their actions, address the root causes of the problem, and reintegrate them into the community in a positive way. A referral to one of these programs may be appropriate even for an accused who has previously completed one of these programs or been convicted of a criminal offence.

The following Directives identify offences that are ineligible and presumptively for community justice or Indigenous Restorative Justice programs, and set out factors the Prosecutor must consider in assessing the appropriateness of such programs for eligible offences: Community Justice Programs for Adults, Indigenous Peoples, Mentally Ill Accused: Alternatives to Prosecution and Youth Criminal Justice: Extrajudicial Sanctions.

Offences to be Presumptively Referred

Taking into account the impact of covid 19 on the criminal justice system, and the need to reduce the number of cases in the courts to ensure that priority can be given to the prosecution of serious offences, the following offences are presumptively referable to a community justice or Indigenous Restorative Justice program:

  • theft and possession under $5,000
  • mischief under $5,000
  • fraud under $5,000
  • food, travel and accommodation frauds
  • take motor vehicle without consent
  • utter forged document
  • possession of identity document
  • causing a disturbance

Other Eligible Offences

In determining whether a referral to a community justice or Indigenous Restorative Justice program for other eligible offences is an effective alternative to a formal prosecution, the Prosecutor must consider the impact of covid 19 on the criminal justice system and the need to reduce the number of cases in the courts to ensure that resources are directed to the prosecution of serious offences.

The Prosecutor must also consider the following factors:

  1. the impact of the covid 19 pandemic on the accused, including loss of job, health consequences, additional child-care and education responsibilities, working from home or significant financial constraints
  2. the disproportionate impact of the covid 19 pandemic on vulnerable accused persons, including racialized, marginalized and Indigenous accused (e.g. not having access to accommodations or supports that normally exist or barriers aggravated by living in a remote First Nations or fly-in community)
  3. whether the offence was motivated by the covid 19 pandemic (e.g. taking advantage of closed businesses or people’s fear of infection)
  4. frailties in the prosecution (e.g. staleness of the case, availability of witnesses, or the ability of witnesses to participate in-person in an in-person or remote hearing)
  5. whether a just result is accelerated by a referral to a community justice or Indigenous Restorative Justice program taking into particular consideration any delays caused by the covid 19 pandemic

Position on Sentence in Resolution Discussions

In determining a position on sentence in resolution discussions, the Prosecutor must consider all relevant factors, including the circumstances of the accused and alleged offence, the principles and purposes of sentencing, and the safety and security of the victim or public. The Prosecutor must also consider the impact of covid 19 on the criminal justice system and the need to reduce the number of cases in the courts to ensure that resources are directed to the prosecution of serious offences.

The Prosecutor must consider, all available and appropriate sanctions, consistent with public safety, to resolve cases as early as possible. In some cases, the public interest can be better served by resolving a case for a sentence that will not result in a criminal conviction or a custodial sentence. Even for an accused who has previously been convicted of a criminal offence or received a custodial sentence, a sentence that will not result in a criminal conviction or a custodial sentence may still be appropriate.

Given the impact of the covid 19 pandemic on the criminal justice system:

  1. Where the established sentencing range would ordinarily support a suspended sentence, the Prosecutor must consider resolving the case for a discharge or referring the accused to a community justice or Indigenous Restorative Justice program unless the safety and security of the victim or public cannot be addressed by the proposed sanction or the proposed sanction would not adequately reflect the circumstances of the offence or offender.
  2. Where the established sentencing range would ordinarily support a sentence up to 6 months in custody, the Prosecutor must consider resolving the case for a non-custodial sentence or a custodial sentence served in the community unless the safety and security of the victim or public cannot be addressed by the proposed sentence, the proposed sentence is not available in law, or the proposed sentence would not adequately reflect the circumstances of the offence or offender.

Reference should be made to the Indigenous Peoples, Intimate Partner Violence, Offences Against Children, Sexual Offences Against Adults and the Victims Directives.

Alcohol Impaired Driving Resolutions

In reviewing alcohol impaired driving cases, Prosecutors must consider the impact of the covid 19 pandemic as an exceptional circumstance justifying the withdrawal of the Criminal Code driving offence in exchange for a guilty plea to the Highway Traffic Act (HTA) offence of careless driving.

Where the exceptional circumstance justifying a careless driving resolution is the impact of the covid 19 pandemic, an accused is ineligible for the resolution if any of the following deemed aggravating factors under the Criminal Code and other factors are present:

  • bodily harm or death resulted
  • the accused’s blood alcohol concentration is equal to or more than 120 mg within two hours after operating a vehicle
  • the accused has a prior criminal or HTA record for similar offences
  • the accused is prohibited or suspended from driving under a federal or provincial act
  • a collision or significant bad driving was reported
  • the accused has a prior HTA ‘warn’ or ‘ADLS’ licence suspension
  • the accused was being paid for driving at the time
  • a person under the age of 16 years was a passenger in the vehicle
  • the accused refused to provide a breath or blood sample
  • the accused was driving a large motor vehicle
  • the impairment was caused by drugs or a combination of drugs and alcohol

A decision to accept a careless driving resolution must be approved by the Crown Attorney or designate. The protection of the public is the primary concern at every stage of the prosecution of impaired driving offences.

Where a careless driving resolution is approved, the Prosecutor should consider seeking a $1000 fine and a Provincial Offences Act (POA) probation order with a condition requiring that an ignition interlock device be installed in the offender’s vehicle or other driving restrictions. The Prosecutor should also consider as a term of a probation order a condition requiring the accused to complete the Back on Track Program remedial measures program.

Reference should be made to the Impaired Driving Directive.