When criminal charges are laid

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On November 6, 2016, Brad Dean was hit by a car and killed, while cycling on River Road in Richmond. Two other cyclists were seriously injured as well. On the anniversary of his death, hundreds of cyclists gathered in Stanley Park for a memorial ride. Just days afterwards, Crown Counsel announced that they would not be laying criminal charges against the driver of the car. Instead, he was charged with driving without due care and attention under the Motor Vehicle Act of British Columbia. The decision not to lay criminal charges has been controversial.

We cannot comment on that particular decision. Among other reasons, we do not have all the information available to Crown Counsel, and it would not be appropriate for us to offer an opinion. We can however provide some general information about how those decisions are made.

Please bear in mind that what follows is an outline of the general process. It is not a guide to how the law applies in a particular case, as that depends on the charge, the facts of the case, and the law.

Criminal offences

Criminal offences generally require proof of an act (conduct) that the law treats as a crime, and a criminal intention. If someone is found guilty of a crime, the sentence (punishment) is often – though not always – more severe than for other types of offences, and there may be other consequences for the person convicted of the criminal offence.

When police complete an investigation, they present a Report to Crown Counsel. They summarize the evidence gathered and usually propose the laying of a charge or charges.

Crown Counsel are the lawyers who conduct prosecutions in British Columbia. They look at all the relevant information and documents before making their decision to charge or lay charges – their charge assessment. Crown Counsel must consider:

  1. whether there is a substantial likelihood of conviction; and, if so,
  2. whether a prosecution is required in the public interest.

Crown Counsel’s charge assessment is a legal determination and it requires skill and experience on the part of Crown Counsel. They can only prosecute a case when there is a strong, solid case to put before the court. When they’re deciding whether a conviction would be likely, Crown Counsel evaluates the evidence to see what would be admissible, what weight that evidence would have, and what possible defences there might be. Crown Counsel must be satisfied there is a substantial likelihood of conviction before considering the public interest.

This is laid out in the Crown Counsel’s Charge Assessment Guidelines (PDF). It would be wrong of Crown Counsel to prosecute a case that does not meet the charge assessment guidelines.

Finally, it’s worth remembering that the person charged is presumed innocent. Crown Counsel can’t just prove that they probably committed the crime; the charge has to be proven beyond a reasonable doubt. This is a different and more demanding standard than the balance of the probabilities that would apply, for example, in a lawsuit asking for compensation for an injury.

If you want to learn more about how Crown Counsel makes their decisions you can look at the BC Crown Counsel Act, which is the law that establishes their function and responsibilities, and the Charge Assessment Guidelines found in the Crown Counsel Policy Manual (PDF). And for more information on how criminal charges are laid, you can also look at this Dial-A-Law script, published by the Canadian Bar Association, BC Branch.