Court of Queen’s Bench Justice Chris Martin made the remarks in R. v. Harper after a man initially accused of eight armed robberies faced an 82-count indictment.
“Not to be unduly critical to Crown counsel here, this is not an isolated approach to charging. Over-charging is an increasing trend — one which has little if any utility. It needlessly complicates and distorts a case, and distracts from the core issues,” said Martin.
The judge, who sentenced Winnipeg resident Jamie Harper for 8-1/2 years in prison, dedicated a good portion his ruling discussing issues that have delayed the proceedings.
“Two things were readily obvious — one, that a plea resolution should have been reached and, two, Crown and defence counsel were at loggerheads in large part because of the sheer size of the 82-count indictment and the huge gap in positions respecting sentence,” said Martin.
He added: “Why is all this important? Because over-charging and unrealistic sentencing positions blocked counsel from reaching a plea arrangement, an arrangement they should have reached within months of Mr. Harper’s arrest. As a result, scarce judicial resources were wasted through countless remands, conducting a three-day preliminary inquiry, and keeping Mr. Harper in remand custody for 30 months.”
Winnipeg criminal lawyer Gary Stern doesn’t see a trend in Crown counsel overcharging people and says it was unfair for the judge to make those comments given the duty prosecutors have to the public.
“The bottom line is it may be a trend to lay all these charges but at the end of the day, if there is an accusation someone committed a crime, shouldn’t they be prosecuted?” Stern asks. “If it’s your ox being gored. Wouldn’t you want the offender to be prosecuted?”
The prosecutor is justified in pursuing all charges if they have evidence to support them, Stern adds.
“You can’t sweep it under the rug; if there’s an allegation someone committed a crime, they’ve got to be prosecuted.”
While he’s sympathetic to the concern about court resources that go into addressing a pile of charges, the solution is to increase them and not to tell Crown to lower the number of charges, according to Stern.
In another observation, the judge also lamented the time Crown and defence counsel wasted trying to come to an agreement on what’s an appropriate sentence. The need to arrive at such an agreement is mostly “illusory,” according to Martin.
“Legitimate disagreements as to an appropriate sentence will always exist. But the benefit, and perhaps psychological need, of agreeing or even greatly narrowing a joint recommendation or sentence range for the judge before a plea is arranged, is illusory,” he wrote.
“That should not usually prevent a guilty plea, where the realistic likelihood of conviction is present anyway. Lawyers are advocates. Sentencing judges do not freelance; we are bound by sentencing principles, rules, and precedents. Lawyers must have the confidence to advocate their position on sentence, without undue delay, and to trust that the sentencing judge will get it right or otherwise know that an appeal may lie.”
Marin emphasized the issue wasn’t unique to the case before him.
“Again, moving away from this case, increasingly, disagreements between counsel respecting sentencing matters are too often an excuse leading to delay, by putting off the tough call until another time,” he wrote. “This style of practice must be discouraged.”