An award-winning prosecutor on trial delays, mandatory minimums, and drug crime

Robert Gillen, who retired last spring after a 33-year career as a Crown prosecutor in British Columbia, isn’t what you’d call soft on crime. Among the many bad guys he put behind bars is, for example, John Horace Oughton, the so-called “paper bag rapist,” convicted in 1987 for a string of sexual assaults in B.C., and still serving an indefinite prison term as a dangerous offender.

But Gillen, 64, who was recently presented the Commitment to Justice Award by a committee of top Crown prosecutors from across Canada, brings nuance, not bluster, to the debate about law and order. He is frustrated by Charter of Right and Freedoms challenges that delay trials, but also sharply critical of the Conservative government’s imposition of more mandatory minimum penalties.

Born in B.C.’s southern interior, Gillen grew up largely on Gabriolla Island, where his father was a road crew foreman and his mother a homemaker. He wanted to be a lawyer from childhood, although he doesn’t remember what gave him the ambition. Now retired to the island, it was from there that Gillen spoke by phone to Maclean’s today.

Q You were a Crown prosecutor for more than three decades. When you retired earlier this year, what issues were worrying you most?

The largest issue currently is probably the Charter-related challenges that go on in court cases. The length of the process to get cases through court because of the pre-trial hearings regarding the admissibility of evidence—some go on for years. While I think the Charter is incredibly important, there needs to be some sort of constraint put on the process. It really requires judges to stand up and make decisions in a way that’s very challenging for them, because their decisions can be reviewed by appellate courts.

Q You’re suggesting judges should decide faster if a Charter challenge is valid or not.

A Three years or more to decide if evidence is admissible so you can get on with a relatively brief trial is, from my perspective, over the top.

Q And are these challenges about whether police gathered evidence properly, that sort of thing?

A That’s right. In the old days, the accused went on trial and evidence was determined to be admissible or not in relatively short order. Now, it’s not the accused who goes on trial but the state, to determine what it did wrong relative to the accused.

Q What do you see as the main developments in federal criminal justice policy since the Conservatives came to power in 2006, and what do you make of them?

A Generally speaking the removal of judicial discretion means the accused will face a mandatory minimum penalty on many offences. The public likes that because they don’t like judges being soft on crime. The problem is there is no incentive for an accused not to fight every inch. That means the opportunity to resolve a case in a way that probably would be acceptable to the public is gone. Cases that would otherwise be relatively smooth or straightforward become very, very difficult battles.

Q So you don’t think uniform, tough penalties make sense?

A If you put every case that you have in the system through the most rigorous examination, you’ll break the system. There needs to be a balance.

Q But aren’t there cases where critics of judges legitimately regard some sentences as too light?

A From my perspective, if you have a situation where you don’t like the sentence imposed, you have an appellate review process. There’s a kind of hang-’em-high attitude currently. Maybe it’s always been there. But that’s what the political will is echoing in legislation, and from my perspective, it’s not helpful.

Q Some readers—particularly those with strong partisan perspectives—won’t know how to reconcile the two points you’ve made so far. Your critique of Charter-challenge delays will go over big with the tough-on-crime crowd; but your opposition to mandatory minimums will be applauded by those on the other side.

A There needs to be a balance to it all.

Q What’s your view of how the justice system should approach illegal drugs? Should more drug offenders be sent to jail?

A It’s a very complex issue. Frankly, I’m probably as poor a guesser as anybody about what might be the best solution.

Q But weren’t drugs at the root of much of the crime you dealt with over the years?

A Mental illness and addictions are probably the primary issues that cause people to get involved with crime. I suppose what we need is some sort of intervention to assist those people. You have examples of various shops trying. In Vancouver, you’ve got Community Court. You try to put people with those issues in contact with mental health providers, addiction counselors, as soon as you can. That sort of intervention is better than simply throwing the person in jail—as if that’s going to do something.

Q I thought you Crown prosecutors were supposed to be harder-nosed about criminals than you’re sounding right now.

A I don’t think that’s true. Most prosecutors are reasonable people. The system operates a good deal on discretion. You don’t take every criminal act that comes across the desk and put it into the system. Examples of alternatives that we look to are in areas like restorative justice, which get very meaningful results.

Q You’re referring to alternatives to conventional courts where criminals are often made to meet with their victims and understand the harm they’ve done. I can imagine some eye-rolling among those who assume that sort of approach is hopelessly soft-hearted.

A Oh, sure. But you only have to see it in action.




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An award-winning prosecutor on trial delays, mandatory minimums, and drug crime

  1. Good interview.

    “A That’s right. In the old days, the accused went on
    trial and evidence was determined to be admissible or not in relatively
    short order. Now, it’s not the accused who goes on trial but the state,
    to determine what it did wrong relative to the accused.”

    I’m a strong supporter of the charter myself, but i find myself nodding in agreement here. Seems to me [mostly from watching/reading lots of Rumpole] that under the old system there was ample opportunity for a good “brief” to cross examine the police and other authority figures to see whether someone’s rights had been breached. Putting the whole state on trial seems ridiculous.

    “The problem is there is no incentive for an accused not to fight every inch”

    That’s interesting. I thought one of the problems with MMs was going to be that defendants would be inclined to plead more, even if they got a lesser sentence, in order to not do the MM. That would be problematic in two ways. 1] A clear breach of justice for those who might otherwise have pled innocent. 2] Some people who deserve a longer sentence might even walk? Is this another perspective, a different wrinkle or in fact a contradiction?

    “Most prosecutors are reasonable people. The system operates a good
    deal on discretion. You don’t take every criminal act that comes across
    the desk and put it into the system. Examples of alternatives that we
    look to are in areas like restorative justice, which get very meaningful results…

    …. I can imagine some
    eye-rolling among those who assume that sort of approach is hopelessly
    soft-hearted…

    A. Oh, sure. But you only have to see it in action.”

    My oh my, now isn’t that interesting, coming from a career prosecutor?

  2. Yet another person in a position of authority who doesn’t speak up until out of that position

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