Recently, TV Ontario aired a documentary called “The Arrest”, about several Canadian cases in which people sued the police for wrongful arrest. The film shows a lot of footage of the actual arrests but also shows the lasting damage to the victims – sometimes physical abuse during the arrest but even more the many other consequences such as post-traumatic stress, loss of employment, ongoing negative media and online portrayals, and so on.
Early on, the documentary alludes briefly to how many arrests in Canada either don’t result in charges at all, or result in charges that are withdrawn or stayed by the crown.
There is no data source for how many people are arrested in Canada each year. We do know the number of people charged with crimes, but many people, no doubt many thousands across Canada each year, are arrested and released by police without charge. Yet these arrests can have huge negative consequences. For example, the names of people arrested and not charged can remain in police data bases and turn up in criminal background checks, leading to lost employment or inability to enter education programs or refusal by US border authorities. As Professor Anna Roberts, among others, points out, in the public mind and in the media, being arrested is generally tantamount to being guilty.
Effects of being arrested
Arrests without charge can lead to people being denied entry to education programs, or having difficulties with child custody, or being unable to get or keep a professional designation. Examples of these situations were described in a series of articles in the Toronto Star in 2014, and although action was promised to change the situation, the regulations to do so have still not been put into force in Ontario. That same investigation found that there were more than 400,000 names in police files of people who had never been charged, yet still faced negative consequences. To put it in context, that is equivalent to every single person in a city like Halifax or London, Ontario.
However even when charges are levied, a huge proportion of people are not convicted. A news report in 2016 based on Statistics Canada data reported than more than 25% of charges across the country were withdrawn or stayed. A Global News analysis in 2019 found that nearly half of criminal cases in Edmonton in 2018-19 were withdrawn. Ontario data for the last several years show that around 35% of all criminal cases have charges stayed or withdrawn.
Why are so many charges dropped?
The number is of charges dropped is especially high in Ontario because, as the TVO documentary points out, in this province police decide whether to lay charges, whereas in most of Canada they must have the agreement of a Crown attorney to do so. Prosecutors are much less likely to charge where they see no likelihood of conviction, but police have many incentives to lay charges even if there isn’t nearly enough evidence to convict in court.
Even dropped charges have huge negative effects
As the documentary shows, each case where a charge is dropped is both a victory and a defeat. It’s a victory for the person who was charged without sufficient cause. And it’s a defeat for justice in that each person in that situation was arrested, often jailed, had their lives badly disrupted, suffered sustained losses and may be subject to future issues as well – and all for cases where there was no real prospect of a conviction. It cannot be acceptable that people are jailed, have to pay large legal fees, lose jobs, lose custody of children, are prohibited from professions, cannot travel, are vilified in the media, and may be subject to further police investigation, all when there are not sufficient grounds to press charges.
Little recourse for wrongful treatment
Nor do people in this situation have any recourse. The standard required to win a suit for wrongful arrest is very high and rarely met, although the Supreme Court did recently reaffirm limits on police conduct. In the TVO documentary the persons involved all received settlements, though some of them took many years to reach this point, and their treatment was especially egregious. We do not know how much money Canadian police forces pay out each year in settlements of lawsuits. However most people in this situation just want to get on with their lives and don’t have the inclination or resources to launch a lawsuit, so they are never compensated for their unfair treatment, even if they are held in jail for months.
It would be reasonable to expect that arrest without adequate grounds might occur in a few cases, but when it accounts for 25 to 40% of all cases, involving many tens of thousands of people each year, it’s clear that we are arresting and charging far too many people. Moreover, as has been the focus of recent public attention, these arrests fall disproportionately on Indigenous people, visible minorities, people with mental health issues, the homeless, and other vulnerable groups. This should be a situation that distresses every Canadian. It’s a giant waste of public resources and a huge violation of human rights.