Criminal Law

Abandoning justice triage system not advisable: Dunn

By Peter Small, Contributor

It would be a mistake to scrap the triage policy that directs Alberta prosecutors to abandon lesser criminal cases in favour of more serious files, Calgary criminal lawyer Greg Dunn tells

“It's going to make things worse rather than better,” says Dunn, principal of Dunn & Associates.

The Canadians Press (CP) reports that United Conservative Party (UCP) Leader Jason Kenney has said that if elected premier he would “shred the triage memo" created two years ago by Alberta’s NDP government.

Kenney tells the national news agency that the policy flies in the face of justice, and could be rectified with more resources and better planning. He pledges that a UCP government would hire 50 more prosecutors and support staff and would use alternative measures such as more drug treatment courts.

However, Dunn says hiring 50 prosecutors and support staff won’t be an effective counterweight to the burden of ending Crown discretion as spelt out in the triage policy. “It could very well be a disaster,” he says.

“Even if we have 1,000 prosecutors, I don't think it does the general public any good to have court time being gobbled up by minor offences,” Dunn says.

The Triage Practice Protocol codifies a long-standing Crown process of prioritizing cases according to the public interest, taking into account limited court time and resources, he says.

This is especially important, Dunn says, because of the tight time limits set by the Supreme Court of Canada for court cases to tried — 18 months for provincial courts and 30 months for superior courts.

The UCP should be applauded for pledging additional resources for the justice system, he says. “If you have more prosecutors, and more judges, you can run more cases, and fewer will need to be triaged.”

But 50 new prosecutors would likely be spread thin, Dunn says. “In both Calgary and Edmonton, the prosecutors will say that they're woefully understaffed. And you've got some fairly significant secondary centres — Red Deer, Lethbridge, Medicine Hat, Grande Prairie, and Fort McMurray,” he adds.

“I think, to some extent, getting rid of the triage policy is a bit of political gamesmanship. The problem lies not with the fact that cases are triaged. The problem lies — and where the public loses confidence in the administration of justice — is when resources become scarce to the point that more serious cases are being triaged,” Dunn says.

When it comes to cases such as shoplifting, very minor assaults, and low-level domestic squabbles, “Do we really need to have full-blown trials gobbling up days?” he asks.

The public would say, “No, let’s get rid of these cases by virtue of a common-sense triage policy,” Dunn says. Minor offenders can be given extrajudicial sanctions, like community service or small donations to charity, he says, adding that Alberta needs more prosecutors and triage.

The triage protocol gives prosecutors, especially young Crowns, a bit of cover when prioritizing files, Dunn says. “It’s much more of a ‘We have your back’ policy.”

Senior prosecutors, on the other hand, have been around long enough to know that triage is part of the job, he says.

“And in my view, being involved in the criminal justice system for 20 years, those decisions are best made in the trenches. They're best made on the courthouse steps, or in the courthouses themselves,” Dunn says. “And they're best made by the prosecutors who have control of the file, not by politicians who don't understand the criminal justice system, and not by bureaucrats.”

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