Offsetting a prosecutor's discretion

It is now Friday, and fifth day I have been working on this piece at the one of the courthouse law library computers.  However, my time here has been short.

As long as I have been practicing criminal law, I am always surprised by the variety of situations that I encounter.  While there is are typical client situations, legal questions, and practical problems that occur regularly, there is always something new, a new circumstance or new idea.

Here is something of a new idea that came to me recently.  It has to do with a prosecutor's choice to proceed by indictment instead of summary conviction.   In Canadian criminal law, most offence sections are hybrid: a prosecutor may elect to proceed by summary conviction or by indictment.  When the election is summary, the maximum penalty is usually significantly shorter.  One other benefit to a summary election to the defendant is the waiting period to apply for a pardon is three years, instead of five.  See Classification of Offences.

Most hybrid cases proceed by summary conviction, not indictment.  There are times, when an indictable election is required.  First, prosecutors will make such election when the six month limitation period has expired.  In those situations, my philosphy is to offer to waive the limitation period.  Second, there will usually be an election by indictment when a number of charges are bundled together and at least one of them is purely indictable.  If the case ends up being resolved by a plea to one or more of the lesser charges, I would also ask the prosecutor to change his or her election.  Finally, it is frequently the case where an indictable election is appropriate simply because of the seriousness of the offence or because the offender has a long record.

In the case I have before the provincial court, the prosecutor has insisted on proceeding by indictment.  He said he was doing so for the sake of having the remedy of a longer mandatory weapons prohibition.  The prosecutor is not asking for jail, but even if he were, the jail time would certainly be less than the maximum available on summary conviction.  My client has no record and the circumstances only involved threatening conduct.  No immediate or lasting harm came to anyone and there were significant triable issues.

From one perspective or another, one can see the circumstances of any case at various positions along the spectrum of less serious to more.  Originally, I was of the view that a discharge would not be an appropriate way to deal with the matter, that a harsher disposition was in order, namely, jail or a suspended sentence.  There is no question it is a case for probation, but for the very reason that the prosecutor has taken an objectively unreasonable position on the Crown election, I am urging the court to impose a lesser punishment, being a conditional discharge, not a suspended sentence.  In either case, he is getting probation.  I am basically arguing that one of the factors that tips the balance in favour of a discharge as opposed to a suspended sentence is the fact that the prosecutor is proceeding by indictment.  The judge has put the case over for a presentence report, so I will have to report on the result later.