On January 8th and 9th, three Indigenous people were arrested related to their peaceful resistance of the Rowland encampment eviction. The inevitable product of the over-policing of Indigenous people is that there will be more Indigenous people in the system. But this is not the end of the story.
While Police can press charges, Crown Prosecutors are not obligated to pursue them. In particular, a Crown Attorney can only pursue charges under the Criminal Code where two criteria are met:
1) (First) there must be a reasonable likelihood that the individual being charged will be found guilty of the crime. Simply put, this is questioning whether there is sufficient evidence to prove the person committed the alleged crime. This factor is formally described as “a reasonable prospect of conviction.”
2) (Second) the pursuit of a conviction must be in the “public interest.”
The decision to pursue, or not pursue charges, is an aspect of “prosecutorial discretion” or the power that a Crown has in their practice as a lawyer. First and foremost, the Crown’s obligation is to pursue a fair and impartial exercise of their discretion in deciding the public interest. So, while a case may have sufficient evidence; the determination of the public interest is a balancing exercise of various factors including, but not limited to:
the gravity or relative seriousness of the incident:
Here, the crown considers a variety of factors such as whether there was any serious personal injury or harm caused by the offender. For example, in an “obstruction” charge – which in the case of several of those arrested at the Rowland encampment arose from simply not following police instruction – there is very rarely any physical harm caused to an officer. However, an offence against an officer (even one not causing harm) can be considered serious because they are “justice system participant.” Still, the Crown must consider not proceeding where there are underlying social factors such as houselessness and systemic discrimination that provide context to the offence, which ties into the next factor
the special vulnerabilities of an accused
Vulnerabilities of the accused consider a broad range of factors, including their age, their identity as an Indigenous person, and the consequences for their future. For example, the youngest protestor who was arrested is a young university student whose career may be affected by criminal charges, which should factor into the Crown’s decision to prosecute.
the criminal history of the accused
Basically, here the goal is to evaluate whether an individual is a first-time offender and whether it is appropriate to avoid drawing that person into the justice system. Crowns recognize that criminal charges can often compound and lead to someone being drawn into a cycle of crime so avoiding a criminal record can actually be in the public interest.
The impact of prosecution on “confidence in the administration of justice”
There is a high level of public attention on the Rowland encampment arrests because of the inherent injustice many people acknowledge in the violence and brutality of these evictions. Evidence of police misconduct, such as abuse of force, can weigh in favour of dropping charges given the context of the offence. This factor cannot consider the political advantage to a particular party and instead evaluates public perception and confidence. For example, Brandi Morin is an award-winning Indigenous journalist who was documenting the events at the clearing. Arresting a journalist carrying out their job could certainly shake confidence in our justice system and deter journalists from covering local events out of fear of arrest.
the availability of alternatives to prosecution.
Finally, the Crown Attorney has to evaluate whether prosecution would be “disproportionately harsh or oppressive.” For example, the three Indigenous people arrested could all be diverted to the Indigenous Peoples Court, where there is access to culturally relevant justice programs. This is especially relevant for Elder Roy Cardinal, who was a resident of the encampment; navigating the justice system while houseless dramatically increases the oppressive nature of criminal charges.
In the case of a Cree drummer protecting his wife from police brutality, a houseless Indigenous Elder resisting the destruction of his encampment community, a journalist documenting colonial violence, and a young student standing in support of their houseless neighbours: the pursuit of charges is certainly in question.
Make sure to keep your eye out for our next post to explore the role of mental health and trauma in the evaluation of the public interest and sentencing of Indigenous offenders.
Until next time,
The ReconciliACTIONyeg team