why would a prosecutor drop a criminal charge?

but, when a case comes to a sudden end with little explanation, curiosity can sometimes turn to confusion.

such was the case in june of this year when the crown decided to stay all charges relating to a historic nine-kilogram fentanyl bust by regina police.

when asked why, the public prosecution service of canada (ppsc) highlighted two key considerations that all prosecutors must make in deciding whether to pursue a charge:

“w here both elements are not satisfied, prosecutions are discontinued,” the ppsc said.

“ we appreciate that you seek additional details,” the federal agency continued. “but the ppsc  must ensure that the privacy interests of third parties are protected, and that common law and statutory confidentiality obligations are respected.” 

the ppsc pointed to a chapter of  its deskbook titled decision to prosecute.

guiding materials for provincial prosecutors are available on the saskatchewan government’s website under the heading public prosecutions policies and other documents.

a reasonable likelihood of conviction

former regina doctor sylvester ukabam was charged with sexually assaulting five of his former patients. after a lengthy trial, he was acquitted. the judge had concerns about the reliability of the testimony of the complainants. ukabam is seen here walking into court of queen’s bench on wednesday, jan. 12, 2022 in regina. kayle neis / regina leader-post

charter issues are frequent features of drug-related cases. jeffery santos was convicted of possession for the purpose of trafficking after police caught him near swift current with a kilogram brick of cocaine in 2020. however, he was later acquitted following an appeal to this province’s top court, which found that without the evidence police obtained through breaching santos’ charter rights, he wouldn’t have been convicted.

former regina correctional officer ayad badi, who was caught with more than a quarter-kilogram of cocaine in 2020, hoped that the charge against him would fail for constitutional reasons related to police procedure. federal prosecutor brian smith handled the case for the crown at trial, after which badi was con victed  and sentenced to three years in prison . he did not appeal.

former whl coach bernie lynch, seen here in front of regina’s court of king’s bench on thursday, sept. 21, 2023, was convicted of sexually assaulting a player in 1988. the judge found the victim credible and reliable, while finding lynch to be neither. kayle neis / regina leader-post

the 2022 acquittal (upheld on appeal ) of former regina doctor sylvester ukabam, who faced seven charges of sexual assault, flowed from the judge’s concerns about the complainants’ reliability.

in 2023, former whl coach bernie lynch was convicted for the 1988 sexual assault of an underage player. provincial prosecutor chris white handled the trial for the crown while the trial judge found the complainant credible and reliable and lynch to be neither. lynch has since appealed.

admissibility of evidence was at play in 2023 when former saskatchewan roughriders quarterback jake dolegala was found not guilty of impaired driving. paperwork relating to the breath samples he provided to police was deemed inadmissible as evidence.

former saskatchewan roughriders quarterback jake dolegala is seen here during a cfl football game at mosaic stadium in regina, sask. on sept. 5, 2023. dolegala was found not guilty of impaired driving. police evidence regarding the result of his breath samples was deemed inadmissible during his trial. michelle berg

the public interest

“ when deciding whether to prosecute or discontinue a prosecution, crown counsel must consider a number of public interest factors. no one factor is determinative,” the federal deskbook advises.

an alternative to prosecution was found earlier this year in the case of f ormer saskatchewan party mla ryan domotor, who was charged in 2023 with soliciting sexual services. he completed alternative measures — specifically the prostitution offender intervention program — and the charge was stayed as a result.

saskatchewan mla ryan domotor was charged with soliciting sexual services, and the charge was stayed after he completed alternative measures. supplied

it also notes that in some cases, such as domestic or sexual violence, a victim’s unwillingness to testify “ weighs in favour of not proceeding with a prosecution, unless there is a reasonable belief that the victim may change their mind.”

such a consideration was on display during the brief january 2024 trial of abdoulaye gadjiko, who faced charges for kidnapping, threats, assault and failing to comply with release conditions. when the complainant didn’t show up to court, provincial prosecutor colleen hepburn decided to withdraw the charges because, without the woman’s testimony, the crown didn’t have much of a case.

evidently, this consideration did not stop provincial prosecutors from pursuing charges brought against travis patron, the one-time leader of the canadian nationalist party who was found guilty in october 2022 of promoting hatred against jews.

in october of 2022, travis patron was convicted of promoting hatred against jews. troy fleece / regina leader-post

“words matter,” provincial prosecutor ryan snyder told the jury at the time.

provincial prosecutors are also asked to evaluate whether the alleged offence is of “considerable public concern.” federal literature refers to “ prevalence and impact of the alleged offence in the community.”

while these types of considerations can be a factor in deciding whether to pursue a charge, they’re also often on display in a prosecutor’s submissions about an appropriate sentence for a convicted person.

that was the case in smith’s submissions prior to sentencing for david innes, a calgary man who in 2021 was caught at the regina airport packing a gun and drugs with a street value of around $29,000. his arrest was part of an investigation that led to a much larger drug seizure.

smith told the judge a message needed to be sent about the “toxic and deadly” combination of drugs and guns — something he said courts have called a “bane on society.” he also pointed out that innes’ crimes were committed in a city struggling with an overdose crisis where “we have people dying on virtually a daily basis.”

david innes, seen here in custody outside of regina’s court of king’s bench in may 2023, was convicted of drug and weapons offences. kayle neis / regina leader-post

innes was handed an 11-year prison term , which fell much closer to smith’s suggestion of 12 years than the two years plus probation suggested by the defence.

in 2021, anthony lance swanson unlawfully sold handguns from the trunk of his car and later pleaded guilty to weapons trafficking. in his submissions on sentence, provincial prosecutor arjun shankar tried to drive home the crown’s position on the severity of the offence and the issue of gun trafficking as a growing problem in the province.

swanson claimed that the three-year mandatory minimum sentence was  unconstitutional in his case and argued for a lesser penalty. however, the judge decided the appropriate sentence was three years , rendering the issue of constitutionality moot.

privileged information

1. reveal the identity of a confidential informant;
2. breach solicitor/client privilege;
3. be injurious to national security, international relations, or national defence; or
4. breach investigative privilege

regarding confidential informants, federal literature says the crown has a “duty” to protect their identities.

informants provide information to police with the “promise of protection and confidentiality.” they have a special legal privilege and federal prosecutors are asked to object to any disclosure that might reveal an informant’s identity or their status.

both roles were occupied by noel harder, a one-time vice-president of the saskatoon biker gang fallen saints. after being caught toting a load of guns in 2014, harder made a deal with police to act as an informant , and later as a police agent assisting with project forseti.

noel harder

harder’s identity eventually became public through court proceedings as well as media reporting, in which he agreed to be named.

when it comes to investigative privilege, federal materials include a footnote that reads: “ for example, the crown may have a disclosure obligation in a minor case that would compromise an ongoing investigation in a more important or serious case. in this circumstance, crown counsel would have a duty to protect that ongoing investigation. this may result in the crown not being able to proceed with the minor case because they cannot fulfil their disclosure obligation.”

in the area of public interest, the federal deskbook states that “ crown counsel must consider their duty to protect sensitive or privileged information, as well as the harm that can result from its disclosure.”

1. reveal the nature and extent of an ongoing investigation;
2. be injurious to national security, international relations, or national defence;
3. negatively impact the privacy interests or safety of a third party or victim; or
4. disclose an investigative technique, thereby compromising future investigations

immunity

harder was granted immunity from prosecution and financial compensation in exchange for his co-operation with project forseti and his agreement to follow certain conditions. that’s according to the june 26, 2017 decision of judge shannon metivier , now the chief judge of the provincial court of saskatchewan.

harder was kicked out of witness protection a few months later, then charged in 2018 for weapons offences that eventually resulted in a guilty plea.