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Why so many prolific offenders are walking free in Kelowna

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Changes to provincial guidelines on approving criminal charges are key to the proliferation of repeat offenders walking city streets and committing more crimes, according to the City of Kelowna's community safety director.

Darren Caul presented a Criminal Justice Advocacy paper to city council Monday, May 30, which was focused mostly on property crime, in an effort, he said, to start a dialogue with the province on an issue that’s plaguing all B.C. cities.

Along with the changes to how charges are assessed, he pointed to a shortage of staff in the B.C. Prosecution Service office in Kelowna as key elements to the growing problem.

“The concern here is – at least the appearance – that without adequate Crown resources the B.C. Prosecution Service has had to adapt with new guidelines – new guidelines that were issued in January of last year – and new policies that may be enabling a high volume of lower level crime, less significant crime, to, in effect, be triaged out of system,” Caul told council.

READ MORE: Kelowna report calls on province for help with prolific offenders

On the resource side, earlier this year the B.C. Crown Counsel Association said at least five more prosecutors need to be hired in the Kelowna office.

Caul didn’t know, for sure, how many are currently working in Kelowna but understood that number to be 15, so being short by five is quite significant.

That, however, is combined with the new “charge assessment guidelines” that say, for example: “Justice does not require that every provable offence must be prosecuted. The resources of the criminal justice system are not unlimited.”

The guidelines also talk about whether the "public interest has been or can be served without a prosecution" and "the length and expense of a prosecution when considered in relation to the social benefit to be gained by it."

The rate of files rejected by the B.C. Prosecution Service has gone up 75% in the past five years. That’s seems to be an indication of how the guidelines have changed how decisions are being made by Crown counsel, Caul said. Which, in turn, may be the reason the number of files submitted by police to the prosecution service has also gone down by 10%, he said.

“The (advocacy) report talks about exploring whether or not there’s been a reactionary reduction in the number of reports to Crown counsel that police are submitting,” Caul said.

“I’m not a police officer. I’m not a lawyer. It seems to me the line of inquiry for a review of the charge assessment guidelines is this: If you’re a police officer who is routinely submitting a report to Crown counsel for things that previously would have been approved and they are consistently not approved, it seems to me that I would probably stop submitting said reports to Crown counsel.”

He showed city council three examples of prolific offenders who average one police file per week.

One generated 346 files and 29 convictions for property crimes and assaults since 2016, and is banned from 11 businesses, but is routinely released.

Another offender had 17 property crime and other charges in five months up to the end of December. That person has had 51 criminal charges since 2016, including 29 charges for failure to attend court.

The third example was a person with 194 police files since 2018, with 23 criminal convictions last year for property crime and breaching court orders who was, in November, sentenced to two weeks in jail for 17 convictions.

Caul used those examples to highlight the fact that more than 50% of property crimes in Kelowna are committed by 10% of the criminals.

READ MORE: Cases of assault with a weapon take big jump in Kelowna: RCMP

He also questioned rules on setting bail that have eased over time.

A person is innocent until proven guilty so, in most cases, they should not be held in jail awaiting trial. But a recent court decision makes it harder to charge and convict someone for breaching bail conditions, he said.

“That (release) might make sense in many cases but, when you’re seeing the same offender again and again and again, is there a different way to deal with that offender because you can seek remand (into custody) if it’s to assure court attendance, protect the safety of the public and to maintain public confidence in the administration of justice,” Caul said.

That’s why he said there needs to be a prosecutor dedicated solely to repeat offenders.

Out of the 15 prolific responsible for 1,039 police files in the first 11 months of 2021, nine of them were out in the community in December.

Caul stressed that his report was not meant as a criticism of the work the B.C. Prosecution Service staff are doing.

“The outcome for our community is that we have prolific property offenders who are subject to police files more than an average of once a week for six years,” Caul said. “We’re seeing individuals who are caught in this catch and release system while police do not have the ability to ensure that this individual receives the right ratio, if you will, of care or consequences.”

Last July, city council adopted a similar advocacy paper on the need for housing for people with complex care, Axelle Bazett, intergovernmental relations manager for the city, told council at the same meeting.

Within six months, the province had a working group on the issue. By January it had a model of care and a few months later complex care facilities were delivered, she said.

“This report is really about starting a dialogue and, as we’ve seen with complex care housing, it’s that we start by raising the issue,” Bazett said. “It’s through the relationships, it’s through the conversations and it’s through keeping it in the public – and also in private conversation with the ministry – it will be about keeping that momentum going.”


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