Alberta Court of Appeal Criticizes Crown/Police Practice of Overcharging

R v Cox 2013 ABCA 394:

 

[24] We would like to add a final comment. As mentioned at the hearing of the appeal, the court

was surprised that the criminal conduct of the appellant, which consisted of possession of

narcotics, armed robbery and possession of 10 stolen and loaded firearms, should give rise to a

total of 45 criminal charges. To illustrate, the robbery of the drugstore resulted in five charges,

specifically:

 

i) …did use a firearm in committing a robbery.

 

ii) …was masked in the commission of an indictable offence, to wit a robbery.

 

iii) …did, without lawful excuse, point a firearm (at the victims).

 

iv) …did, without lawful excuse, use a firearm in a careless manner or without

reasonable precautions for the safety of other persons.

 

v) …did, have in his possession a weapon, to wit a firearm, for a purpose

dangerous to the public peace.

 

[25] The robbery was the genesis of all of these charges. The last two charges (careless use of a

firearm and possession of a firearm for a purpose dangerous) did not address any earlier or later

conduct. While the usefulness of adding the charge of pointing a firearm may be debatable, it is

difficult for us to understand the purpose of the last two charges. This was a robbery committed

with a firearm, which by itself attracted a mandatory sentence of at least four years' imprisonment

on conviction. The fact that a firearm was used in such a dangerous manner was absorbed in the

wording of the robbery charge, the seriousness of which was properly reflected in the mandatory

minimum penalty. How a charge of "careless use of a firearm" could arise from the intentional use

of a firearm to execute this armed robbery, is not immediately apparent.

 

[26] We addressed our concern with the Crown counsel who had conduct of the appeal, but she

was not the prosecutor who drafted the Indictment and was therefore unable to help us.

 

[27] As in our experience this is not an isolated case, we wish to take this opportunity to

caution against the practice over-charging in this way. We recognize that determining the

appropriate charge is a matter of prosecutorial discretion, but we can see no proper benefit in

charging in this manner and there are many problems associated with the practice.

 

[28] First, when an accused elects to be tried by judge and jury, providing comprehensive and

coherent instructions to so many redundant charges is a challenging task for any trial judge.

Second, even if properly charged, a jury is more likely to return inconsistent verdicts when faced

with so many counts, which could result in meritorious convictions being overturned on appeal.

Third, this practice will result in a multiplicity of convictions that distorts an accused person's

criminal record when considered by a court in the future. In this case, for example, the 10 firearms

found in the appellant's possession were reflected in over 30 convictions. Finally, the practice

erodes the reputation of the Crown as fair and reasonable, a reputation without which the Crown

cannot effectively discharge its obligations in the proper administration of criminal justice.

 

[29] In this instance, the record reveals that this crowded Indictment was a successor to an

equally crowded Information sworn by the police at first instance. It is when the prosecution is

taken over by the Attorney General's representative that the Crown usually has its first opportunity

to evaluate the case and separate the wheat from the chaff. Experienced Crown counsel do

precisely that because they have long recognized not only the practical problems described above

regarding overburdened Indictments, but also because no good can come from a hyper-inflated

charging document.

 

[30] In our respectful view, Crown counsel would have been wise to take account of the facts

and proceeded only with a precise set of charges that adequately represented the culpability of the

appellant.