NOT ABUSING OFFICER DISCRETION; CONSIDERATIONS FOR LAYING A CHARGE - By Brian Lass

Being a Law Enforcement Officer with Police or “Peace” Officer powers bestowed upon you, most certainly arrives with a great deal of responsibility. Not only do you have the ability to take away a person’s liberties (ie. affect a lawful arrest), but (further) you as well have the ability to commence a legal proceeding – by way of charging said person with an Offence.

Further to the above; In opposition to the laying of a charge, an Officer may as well employ their discretion and elect to replace a charge with that of a less formal consideration – such as a warning (verbal or otherwise). However, there can sometimes be a tendency (arguably) for an Officer to employ such lenient measures, simply to be dismissive of the “extra work” that comes congruent with the laying of a charge. As such, it goes without saying that a verbal warning (or “slap on the wrist” so-to-speak) should not be abused, nor be the “go-to” conclusion in the majority of matters – of which the Officer may be investigating.

Reality would dictate (however) that it can sometimes be seemingly unclear, as to which “enforcement action” (warning, ticket, summons, etc) may be warranted. And (as such), the following question can indeed be posed; “In what circumstances should I charge someone with an Offence”?

In light of the above question, there are most certainly some gleaming circumstances – as to which an Officer should indeed lay an appropriate charge. These such circumstances would include (but are not limited to):

- the offence is of a serious nature (such as violence resulting in injury, assault of a Peace Officer, use of a weapon and/ or intentional damage to property),

- the safety of the victim or other persons is of concern,

- the offender has been identified as a High Risk person,

- the general attitude of the offender is of concern, and/or

- the offence involved gang activity.

There should definitively be consistency displayed on the part of the Officer, in regards to laying charges appropriately in such situations – as noted above.

Further to the above (however) there may be “less obvious” scenarios, as to which an Officer must make the determination of whether a charge would be applicable (in the circumstances). I am of the view that; Perhaps somewhat ironically, the best way to address the aforementioned decision, is by giving consideration to a subject area – of which exists beyond the laying of a charge (and even beyond a presumed finding of guilt in Court, for that matter). More specifically, I am referencing that of common sentencing considerations and principles.

Arguably, the most precedent case law (to date) which speaks to “the punishment fitting the crime”, is the Ontario Court of Appeal decision in R v Cotton Felts Ltd., 1982. Albeit the aforementioned case is respective of an Occupational Health & Safety Act matter (a worker had his arm amputated by a piece of machinery), this decision is habitually cited (specifically in a provincial offences context) – as it is the root source of what is to be considered during submissions on sentencing;

1) Aggravating Factors (factors that would lend to more egregious behaviours and therefore stricter penalties) 

2) Mitigating Factors (factors that would lend towards leniency in penalty) 

3) General Deterrence (penalties that would “send a message” to the public in its totality, that the illegal act in question is unacceptable)

4) Specific Deterrence (penalties that will best ensure the guilty party will not re-offend)

With the above in mind, perhaps yet another question can indeed be posed; “How will understanding sentencing principles assist me (as an Officer) in the field, and lend to whether I should or should not charge someone”.

Ultimately, when an Officer is investigating a matter in the field, a decision has to be made in respect of “how” the matter must be concluded (ie. arrest, laying of a charge, show cause, warning, etc). And (as such), the utilization of the above noted “sentencing considerations” in the field, can indeed lend a “helping hand” with respect to whether or not the Officer should be considering the laying of a charge – or more specifically, the difference between a ticket, summons, or criminal appearance notice. The aforementioned (of which) is applicable when considering the defendant should be held to an aggregate amount of accountability – proportionate to the circumstances of the investigation and alleged offence…

For example, should an Officer be dealing with a would-be defendant in respect to a Trespassing related offence, the following questions can be posed (as they relate to the sentencing considerations listed above);

- is the defendant a repeat or habitual offender? (this would be an aggravating factor)

- is the defendant known to associate with other people who engage in the same types of anti-social behaviour? (as such, the laying of a charge and plausible penalty on a finding of guilt, may indeed act as a “general deterrent”)

- did the defendant display any egregious behaviours in association to the alleged offence and your encounter with him/ her? (as well as being an aggravating factor, the laying of a charge and plausible penalty on a finding of guilt, may indeed act a specific deterrent).

As an overall framework, an investigating Officer should understand that; Albeit the Officer has a duty to intervene and prevent the continuation of an array of offences, the Officer must also consider how to deter any further related occurrences. As such, the laying of an applicable & appropriate charge may very well be the most suitable consideration in many circumstances – and should plausibly be “the norm”.