In 2009, I prosecuted one of the most emotionally challenging cases of my career. It involved a young woman, whom I will refer to as Jessica. Jessica was deeply troubled. She had a traumatic upbringing, resulting in a fraught relationship with her mother. Her father was no longer involved in her life. While only 15 years of age, she found herself unable to care for a newborn baby girl. The child had been abducted, the suspect arrested and charged, and a youth criminal justice trial had just begun.
In court, while testifying about the experience, she presented poorly and typically appeared distraught. She had lost “my baby”, she testified, and could barely bring herself to comprehend the legal proceedings that had unfolded around her.
Yet Jessica was not the victim; rather, she was the accused young person.
The baby was not hers. She had been entrusted by a friend (another teen girl) to watch over the child for a night, and Jessica did not return her the next day. Despite numerous calls and text messages begging her to return the child, Jessica refused. Following an extensive police investigation, Jessica was located with the child.
I remember asking her in cross-examination why she did not simply bring the baby back to her mother as she had promised. In a telling moment, she stated she could not leave “my baby”. It would later be revealed during the sentencing proceedings that Jessica was desperate to have her own child, and to shower it with the love she felt she had been denied her own life. She had come to love her own friend’s baby so much, in her mind she began to think of the baby in this way.
What is the role of a prosecutor when faced with a sentencing proceeding for someone like Jessica?
When I began my career as Crown counsel, I believed I would serve society well by simply prosecuting criminals and sending them to jail. I did not appreciate the often complex backgrounds of the people I would encounter, or the challenges of responding to the needs of both victims and the community. Over a decade later, I have come to realize that such a simplistic approach will often worsen matters rather than improve them.
Jessica was a racialized young person from a disadvantaged region of Toronto. Her own mother was struggling financially and the trial had taken a horrible toll on everyone involved. The crime she had committed was incredibly serious, but through the exemplary work of her lawyer at the sentencing proceeding, I began to appreciate the trauma that had unfolded in her young life and lead to the abduction happening. Her emotional disconnect from her actions became a source of empathy for me, and was not, as I had originally feared, been a sign of some craven disregard for the safety of a child.
I found myself asking, what possible purpose could incarcerating this young person serve? Would I truly be serving my community by asking a judge to place her in custody now? The defence and I ultimately jointly proposed a non-custodial disposition, designed to focus on her rehabilitative needs, which the youth court judge accepted.
During the sentencing hearing, Jessica thanked me and the judge for “giving her a chance.” Years later, I spoke to her defence lawyer again and he informed me he had remained in touch with Jessica. She was in school, with a part-time job, and was a young mother herself now. She had not re-offended as far as he knew.
The Social Context Of Our Justice System
Should prosecutors approach each case in the manner I did Jessica’s? Such an approach could be unduly naïve. There are truly dangerous offenders who enter the criminal justice system daily. I have personally prosecuted many of them. Some offenders are simply not suitable candidates for a focus on rehabilitation.
But we cannot ignore that our justice system is currently failing many of our most vulnerable citizens. Persons with mental health issues experience disproportionate contacts with police, higher levels of arrests, criminal charges and custodial rates. Mental health issues are estimated to be around 2-3 times more common in Canadian prisons than in the general population. Substance abuse issues are rampant.
Racialized persons are also vastly over-represented at all stages of the criminal justice system, with black Canadians representing 9.5% of the total federal prison population while representing only 2.9% of the Canadian population. For Aboriginal Canadians, the numbers are nothing short of staggering. Statistics Canada reported for 2015/2016 that Aboriginal adults represented 26% of admissions to provincial and territorial correctional services, while representing about 3% of the Canadian adult population.
The decisions made each day by Crown prosecutors carry with them enormous social consequences, accordingly. Scholar Angela Davis notes that prosecutorial discretion can cause or exacerbate racial disparities, even unintentionally. “Neutral” policies on their surface may in reality disproportionately impact racialized communities. Yet that same power, she notes, can be used to remedy the problem.
A Social Justice Based Approach
What then, are the principles that should guide a modern approach to the role of the Crown in criminal proceedings? It must never be forgotten that the role of the Crown is not to seek convictions; it is to see that justice is done, and the public interest is served. In my experience, the public interest is often better served by an alternative approach to a classic prosecution.
In the United States, former US Attorney General Eric Holder has called for a revolution in how prosecutors approach their jobs, and the metrics used to quantify “success”:
Of course… we also need to refine the metrics we use to measure success; to evaluate the steps we’re taking; and to assess the effectiveness of new criminal justice priorities. In the Smart on Crime era, it’s no longer adequate – or appropriate – to rely on outdated models that prize only enforcement, as quantified by numbers of prosecutions, convictions, and lengthy sentences, rather than taking a holistic view.
At a minimum, prosecutors should be empowered to refer accused persons to restorative justice processes and emphasize community-based dispositions whenever possible. Amendments to the Criminal Code, and updates to provincial Crown policy manuals, will be required, as noted by the recent Senate report on court delays in Canada. But at its core, this approach requires a “culture shift” that emphasizes acknowledgement of the disparate impact the criminal justice system has on various communities, and the urgent need to take concrete steps to address these disparities.
By utilizing prosecutorial discretion accordingly, with a particular focus on restorative justice programs, we can help reduce the over-reliance on incarceration in our jails and the often devastating collateral consequences of criminal convictions for many offenders. The cost savings through such programs could be immense. But there is also no reason to doubt its potential for success either – diversion programs and community-based sentences have been shown to be highly effective in rehabilitating youthful offenders in particular and improving public safety when implemented properly.
Prosecutors should consider an accused person’s gender, ethnicity, cultural background, mental health concerns and/or Aboriginal status all stages of the criminal justice process. For young persons, the Youth Criminal Justice Act already requires consideration of these factors. They should be considered in adult cases as well.
More information about the people who come before our courts should always be embraced. Our courts currently require the use of Gladue reports in sentencing cases of Aboriginal offenders. Recently, some courts have recently begun accepting the need for “cultural assessment reports” for non-Aboriginal offenders too. These tools are often invaluable in helping to understand the broader context in which an offence occurred and to guard against making unfair assumptions based on one’s entirely different life experiences.
None of this is to suggest that all cases can be resolved through alternative approaches to criminal justice. Truly dangerous, violent criminals should be incarcerated for what they have done. The community is made safer by their removal from it, and victims deserve to know that those that have harmed them will not escape responsibility for their actions. But the justice system ensnares a wide variety of cases and the human beings behind them, and a single approach cannot work for them all.
In many cases, alternatives to formal prosecutions and appropriate community based programs are the most effective tools we have to promote an offender’s rehabilitation, make our communities safer and promote social justice. Yet embracing the “culture shift” alluded to in the Jordan decision as prosecutors is one of the first steps to achieving the unlocked potential that sits right at our fingertips.
It should not take a leap of faith to achieve these goals. But it will require we maintain our conviction that there are far more stories like Jessica’s waiting to be told, if only we would let them be.
About the author
Brock Jones has been an Assistant Crown Attorney for 12 years. This year, he was awarded the OCAA’s Rupert Ross Award for his commitment to the enhancement of social justice.
The views expressed in this article are his alone, and do not necessarily reflect upon the views of the Ministry of Attorney General (Ontario.)
 Statistics Canada reports the annual cost of incarcerating an adult inmate in Ontario, for example, was over $75,000 per year in 2014/5. For young persons, a 2011 Auditor General Report noted the costs may be much higher, depending on the type of placement ordered by a court.
[2 The Ontario Court of Appeal in R. v. Hamilton 2004 CanLII 5549 held that all factors that speak to the personal culpability of an offender should be considered, including experiences with systemic racial and/or gender bias.