Why would a prosecutor drop a criminal charge?

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When criminal charges pique public interest, the curious look for clarity and a conclusion.

But, when a case comes to a sudden end with little explanation, curiosity can sometimes turn to confusion.

As a general rule, authorities don’t make public allegations of criminal wrongdoing without some kind of supporting evidence. So when a prosecutor decides to stop trying to prove an allegation by staying the charge (potentially temporary) or withdrawing it completely (permanent), the obvious question from the outside is: “Why?”

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However, the explanation offered by those in charge of prosecutions — federally or provincially — can sometimes be very limited.

Such was the case in June of this year when the Crown decided to stay all charges relating to a historic nine-kilogram fentanyl bust by Regina police.

When asked why, the Public Prosecution Service of Canada (PPSC) highlighted two key considerations that all prosecutors must make in deciding whether to pursue a charge:

1. Is there a reasonable likelihood of conviction?

2. Is it in the public interest to proceed?

“Where both elements are not satisfied, prosecutions are discontinued,” the PPSC said.

As for specifics related to the drug bust, none were provided.

“We appreciate that you seek additional details,” the federal agency continued. “But the PPSC must ensure that the privacy interests of third parties are protected, and that common law and statutory confidentiality obligations are respected.” 

While the response did not clarify what led to the Crown’s decision in this particular case, publicly available documents offer a general view of the issues a prosecutor must consider when deciding whether to pursue a charge.

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The PPSC pointed to a chapter of its Deskbook titled Decision to Prosecute.

Guiding materials for provincial prosecutors are available on the Saskatchewan government’s website under the heading Public Prosecutions Policies and Other Documents.

While federal prosecutors and their provincial counterparts each play a unique role in Saskatchewan’s justice system, many of the considerations they must make in determining whether to pursue a charge are similar. Not all of those considerations are referenced within this article.

A reasonable likelihood of conviction

“No public interest, however compelling, can warrant the prosecution of an individual if there is no prospect of conviction,” states the federal literature.

It goes on to note that when deciding whether there’s a reasonable likelihood of conviction, a prosecutor must consider: evidence likely to be admissible and available; the availability, competence, credibility, and reliability of witnesses; credible evidence that may favour the accused person; and, the impact of potential breaches of Canada’s Charter of Rights and Freedoms.

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Provincial policy lists similar considerations and adds that, in the early phases of a case pursued by police, a prosecutor may not know the exact strength of the evidence. It notes that further inquiry with investigators may be necessary and if, at any stage of the proceedings, the reasonable likelihood of conviction standard is not met and is not likely to be met before a preliminary inquiry or trial, the charge should be stayed or withdrawn.

While explanations are often limited when a charge is stayed or withdrawn, the factors that prosecutors must consider are sometimes on display in Saskatchewan cases that do proceed.

Charter issues are frequent features of drug-related cases. Jeffery Santos was convicted of possession for the purpose of trafficking after police caught him near Swift Current with a kilogram brick of cocaine in 2020. However, he was later acquitted following an appeal to this province’s top court, which found that without the evidence police obtained through breaching Santos’ Charter rights, he wouldn’t have been convicted.

Former Regina correctional officer Ayad Badi, who was caught with more than a quarter-kilogram of cocaine in 2020, hoped that the charge against him would fail for constitutional reasons related to police procedure. Federal prosecutor Brian Smith handled the case for the Crown at trial, after which Badi was convicted and sentenced to three years in prison. He did not appeal.

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Credibility and reliability are often at issue in criminal cases. Credibility has to do with a person’s truthfulness, and reliability has to do with the ability of a person to accurately recollect an event.

The 2022 acquittal (upheld on appeal) of former Regina doctor Sylvester Ukabam, who faced seven charges of sexual assault, flowed from the judge’s concerns about the complainants’ reliability.

In 2023, former WHL coach Bernie Lynch was convicted for the 1988 sexual assault of an underage player. Provincial prosecutor Chris White handled the trial for the Crown while the trial judge found the complainant credible and reliable and Lynch to be neither. Lynch has since appealed.

Admissibility of evidence was at play in 2023 when former Saskatchewan Roughriders quarterback Jake Dolegala was found not guilty of impaired driving. Paperwork relating to the breath samples he provided to police was deemed inadmissible as evidence.

The public interest

“When deciding whether to prosecute or discontinue a prosecution, Crown counsel must consider a number of public interest factors. No one factor is determinative,” the federal Deskbook advises.

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A non-exhaustive list of considerations includes: the nature and gravity of the offence, the circumstances of the accused, the circumstances and views of the victim, confidence in the administration of justice, harm to the community, and alternatives to prosecution.

Provincial materials refer to similar considerations.

An alternative to prosecution was found earlier this year in the case of former Saskatchewan Party MLA Ryan Domotor, who was charged in 2023 with soliciting sexual services. He completed alternative measures — specifically the Prostitution Offender Intervention Program — and the charge was stayed as a result.

“The public interest generally weighs in favour of proceeding with cases involving serious offences such as terrorism, the trafficking or importation of large amounts of controlled substances, the trafficking of harmful opioids such as fentanyl or carfentanyl, or personal injury offences,” the federal literature states.

It also notes that in some cases, such as domestic or sexual violence, a victim’s unwillingness to testify “weighs in favour of not proceeding with a prosecution, unless there is a reasonable belief that the victim may change their mind.”

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In the absence of an alleged victim’s testimony, a prosecutor must consider whether there is sufficient evidence to continue the prosecution.

Such a consideration was on display during the brief January 2024 trial of Abdoulaye Gadjiko, who faced charges for kidnapping, threats, assault and failing to comply with release conditions. When the complainant didn’t show up to court, provincial prosecutor Colleen Hepburn decided to withdraw the charges because, without the woman’s testimony, the Crown didn’t have much of a case.

Provincial materials also refer to considerations about whether a prosecution would be perceived as counterproductive by doing such things as: “making a ‘martyr’ of an alleged offender,” or “providing publicity to an alleged hate propagandist.”

Evidently, this consideration did not stop provincial prosecutors from pursuing charges brought against Travis Patron, the one-time leader of the Canadian Nationalist Party who was found guilty in October 2022 of promoting hatred against Jews.

“Words matter,” provincial prosecutor Ryan Snyder told the jury at the time.

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Patron’s appeal of that conviction and the related sentence was dismissed.

Provincial prosecutors are also asked to evaluate whether the alleged offence is of “considerable public concern.” Federal literature refers to “prevalence and impact of the alleged offence in the community.”

While these types of considerations can be a factor in deciding whether to pursue a charge, they’re also often on display in a prosecutor’s submissions about an appropriate sentence for a convicted person.

That was the case in Smith’s submissions prior to sentencing for David Innes, a Calgary man who in 2021 was caught at the Regina airport packing a gun and drugs with a street value of around $29,000. His arrest was part of an investigation that led to a much larger drug seizure.

Smith told the judge a message needed to be sent about the “toxic and deadly” combination of drugs and guns — something he said courts have called a “bane on society.” He also pointed out that Innes’ crimes were committed in a city struggling with an overdose crisis where “we have people dying on virtually a daily basis.”

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Innes was handed an 11-year prison term, which fell much closer to Smith’s suggestion of 12 years than the two years plus probation suggested by the defence.

In 2021, Anthony Lance Swanson unlawfully sold handguns from the trunk of his car and later pleaded guilty to weapons trafficking. In his submissions on sentence, provincial prosecutor Arjun Shankar tried to drive home the Crown’s position on the severity of the offence and the issue of gun trafficking as a growing problem in the province.

Swanson claimed that the three-year mandatory minimum sentence was unconstitutional in his case and argued for a lesser penalty. However, the judge decided the appropriate sentence was three years, rendering the issue of constitutionality moot.

Privileged information

The federal literature notes that prosecutors are asked to appraise whether a case features evidence protected by privilege. Relating to conviction likelihood, federal prosecutors are to consider the consequences of “the Crown’s inability to disclose that evidence.”

This includes information which could:

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1. Reveal the identity of a confidential informant;
2. Breach solicitor/client privilege;
3. Be injurious to national security, international relations, or national defence; or
4. Breach investigative privilege

Regarding confidential informants, federal literature says the Crown has a “duty” to protect their identities.

Informants provide information to police with the “promise of protection and confidentiality.” They have a special legal privilege and federal prosecutors are asked to object to any disclosure that might reveal an informant’s identity or their status.

Disclosure refers to evidence relevant to the case which is to be turned over to the defence so an accused person can decide how to proceed, whether it’s by pleading guilty or proceeding to a trial.

In some cases, if left with no other option, a prosecutor may stay proceedings to protect an informant.

Informants are legally different than police “agents” who are directed by law enforcement and participate in a criminal situation in some way. Agents don’t have the same legal privilege.

Both roles were occupied by Noel Harder, a one-time vice-president of the Saskatoon biker gang Fallen Saints. After being caught toting a load of guns in 2014, Harder made a deal with police to act as an informant, and later as a police agent assisting with Project Forseti.

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The 15-month investigation spanned seven cities in Saskatchewan and Alberta. It led to the seizure of guns and significant quantities of drugs, and ultimately resulted in numerous charges being brought against members of the Hells Angels and Fallen Saints.

Harder’s identity eventually became public through court proceedings as well as media reporting, in which he agreed to be named.

When it comes to investigative privilege, federal materials include a footnote that reads: “For example, the Crown may have a disclosure obligation in a minor case that would compromise an ongoing investigation in a more important or serious case. In this circumstance, Crown counsel would have a duty to protect that ongoing investigation. This may result in the Crown not being able to proceed with the minor case because they cannot fulfil their disclosure obligation.”

In the area of public interest, the federal Deskbook states that “Crown counsel must consider their duty to protect sensitive or privileged information, as well as the harm that can result from its disclosure.”

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This includes information that could:

1. Reveal the nature and extent of an ongoing investigation;
2. Be injurious to national security, international relations, or national defence;
3. Negatively impact the privacy interests or safety of a third party or victim; or
4. Disclose an investigative technique, thereby compromising future investigations

Immunity

Provincial policy describes the granting of immunity from prosecution as an “extraordinary exercise of prosecutorial discretion.”

The policy basically outlines what people might understand as making a “deal,” where an accused person offers utility to the Crown and is given some consideration in exchange. It could involve providing information to police for an investigation or agreeing to testify at the trial of another accused person.

“Those who have violated the law should be held accountable for their crimes,” the provincial policy reads.

“However, some crimes can only be proved by the testimony of witnesses who are implicated in the same crime or in some other criminal activity.”

It goes on to say that an emphasis on investigating the “upper echelons” of criminal organizations has “heightened the need” to rely on the “evidence or assistance” of people facing charges.

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The provincial literature shows that immunity can take many forms, including: reduction or staying of charges against the co-operating person, their friends, or family; an agreement to a less severe sentence; an agreement concerning bail; relocation, the provision of a new identity or securing employment; payment of money (lump sum, expenses or monthly allowances); payment of reward money; and, special privileges while in custody.

The provincial material also lists the limited circumstances in which immunity should be granted.

First, when the evidence is crucial with regard to a serious charge and “the overriding public interest requires it.”

Second, when there is “no other viable means to obtain the information or evidence,” or it isn’t “practicable” due to public safety risk for police to simply continue investigating.

Third, if the “value of the information outweighs any risk to public safety or any erosion of public confidence in the administration of justice” which may result from granting immunity.

And lastly, it can be granted when the evidence or information relates to criminal involvement that is more serious or — “in exceptional cases” — at least as serious as that of the informer or witness.

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Harder was granted immunity from prosecution and financial compensation in exchange for his co-operation with Project Forseti and his agreement to follow certain conditions. That’s according to the June 26, 2017 decision of Judge Shannon Metivier, now the chief judge of the provincial court of Saskatchewan.

Harder was kicked out of witness protection a few months later, then charged in 2018 for weapons offences that eventually resulted in a guilty plea.

An obituary states Harder died in 2022.

— with files from the Saskatoon StarPhoenix

bharder@postmedia.com

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