Executive Summary of the Report on Race and Prosecutorial Decision-Making: An Analysis of the Public Prosecution Service of Canada's British Columbia Regional Office - September 2022

Report & Executive Summary prepared by Lauren McAuley, Research Director and Jessica Lawn, British Columbia Team Leader and Senior Counsel

© His Majesty the King in Right of Canada, 2023.

Cat. No. J79-18/2-2023E-PDF
ISBN: 978-0-660-49483-8

For a copy of the full version of this report, please send your request to PPSCCommunicationsSPPC@ppsc-sppc.gc.ca.


In November 2021, the British Columbia Office of the Human Rights Commissioner published a report summarizing their investigations of racial disparities in policing. The report titled “Equity is safer: Human rights considerations for policing reform in British Columbia” described the commissioned findings of Dr. Scot Wortley.Footnote 1 Overall, Dr. Wortley’s research found significant overrepresentation of Indigenous, Black, and people of colour (IBPOC)Footnote 2 in the arrest data of five British Columbia (BC) regions: Vancouver, Surrey, Prince George, Duncan/North Cowichan, and NelsonFootnote 3.

In response to the findings published by the British Columbia Office of the Human Rights Commissioner, the Public Prosecution Service of Canada (PPSC) sought to evaluate the downstream effects of racial and ethnic disparities in BC policing on the work of prosecutors. The British Columbia Regional Office (BCRO) undertook its own analysis and this report is the culmination of the research on the impact of racial and ethnic disparities in policing on the PPSC BCRO’s operations, decision-making, and the resulting impacts on the Criminal Justice System. In addition to investigating the downstream effects of racial disparities in policing, the project sought to address broader questions about the role that the PPSC plays in addressing the racial disparities present in BC’s Criminal Justice System.Footnote 4 While the role of police agencies is often highlighted in the research on racial inequities in the Canadian Justice SystemFootnote 5, the role prosecutors play in the lifespan of a criminal file is not often studied. As such, a detailed report was created to address the following questions:

  1. To what extent are certain IBPOC groups over or underrepresented in the PPSC BCRO’s files?
  2. What is the role of the charge approval decision in increasing or decreasing the racial disparities present in BC arrest data?
  3. Is there an association between the race or ethnicity of the accused and their file outcome?
  4. To what extent does the PPSC play a role in mitigating or amplifying racial disparities present in BC’s Justice System?

It is important to note that the PPSC BCRO’s investigation is preliminary, and the full report is limited to the analysis of race or ethnicity and prosecutorial decision-making. We recognize race is only one facet of an accused’s identity. While an intersectional analysis of prosecutorial decision-making might have been ideal, we were unable to conduct a project of that magnitude. The report’s findings are significant for positive change within the PPSC, and we hope the results will prompt further research and consultation.

The role of a prosecutor

The report centers on key decision points for BCRO’s federal Crown counsel. Discretion is the centerpiece of the work of prosecutors.Footnote 6 Each prosecution, from beginning to its end, requires a prosecutor to make independent, policy-grounded decisions. In turn, these decisions direct the course of a proceeding. Other justice system participants are often reacting to the decisions made in the prosecution. Therefore, it is important to critically examine the decision-making of prosecutors because their regular use of discretion will significantly influence the file’s proceedings and seemingly, small decisions such as bail submissions can have long-term effects for the person charged.

By the time prosecutors receive a file for charge approval, the identity of the accused, circumstances of the incident, and the nature of police interaction are set. As a result, each prosecutor must work within the parameters of predetermined and potentially biased facts. The report illustrates that while a decision made at an individual level may be appropriate on those facts, when examined at the aggregate level these individualized decisions have led to an overrepresentation of Indigenous and Black Canadians, as well as Canadians from other racial minority groups in the Criminal Justice System. The report does not demonstrate “bad apples” within the organization or individuals who are incorrectly applying the charge approval standard. Instead, it highlights tangible areas for improvement in the current practices in the PPSC BCRO and offers opportunities for management to empower individual prosecutors to make decisions, which reduce the racial inequities present in the BC Justice System.

Throughout the writing of the report, we have seen that there is often a culture of colour blindness associated with prosecutorial decision-making. A colour blind approach refers to an individual ignoring race in order to maintain egalitarian self-image. This decision-making pattern is reflective of the broader idea that prosecutors see all people “as equal under the law”. As a result, this colour blindness may be the root of the negative aggregate results since colour blindness may be creating a false sense of equity in the work of prosecutors.

Research design

In order to address the research questions listed above, the BC research team took inspiration from the British Columbia Human Rights Commissioner’s Report and, in particular, from Dr. Scot Wortley’s seminal work in creating that Report. Using many of Dr. Wortley’s techniques, we created a research design that would be impactful, yet feasible, given the time constraints of the project.

For the project, the research team evaluated all Controlled Drugs and Substances Act (CDSA) 4(1) and 5(2) chargesFootnote 7 laid in 2017 across five BC areas. Through specific inclusion criteria, the project was able to create a detailed data set of 424 files.Footnote 8 The offences of focus were chosen, since they were the two most common charges laid in the BC region in 2017.Footnote 9 Additionally, they present the highest opportunity for police bias. CDSA 4(1) and 5(2) charges often result from opportunistic policing such as random police checksFootnote 10, traffic stopsFootnote 11, and street patrol.Footnote 12 The year 2017 was examined as it ensured that files had come to their conclusions and were not impacted by the pandemic period. The full report includes graphs, case studies, as well as the full data set.


In order to conduct research on race, racial and ethnic categories are inevitably required. In the report, like in the work of the Dr. Wortley, these categories listed in the census were combined to create symmetry with the categorization options listed on police databases.

Throughout the report, the terms racial minorities and IBPOC will be used to describe individuals who identify as Indigenous, Black, Asian, South Asian, Hispanic, and/or Middle Eastern/Arab. We are sensitive to the fact that the terms racial minority and IBPOC have also been questioned for their accuracy and inclusivity, however, we believe that in accordance with the current governmental practices, this is the appropriate terminology for this time period.Footnote 13

Key Findings

Arrest data

Our research found that based on population estimates, police disproportionately arrested and recommended charges for some groups. Specifically, Indigenous people were grossly overrepresented but White, Black, Hispanic and West Asian/Arab individuals were also overrepresented. These racial disparities are fundamental to understanding the overrepresentation of IBPOC in the work of the PPSC. Until there is a significant reduction in the racial inequities currently present in police practices, the overrepresentation of racial minorities in the BC Justice System will not change. As prosecutors disproportionately receive files involving IBPOC accused, it is likely that they will disproportionately prosecute these groups of people. While this baseline of inequity is fundamental to understanding the current overrepresentation of IBPOC accused in PPSC’s work, it does not absolve prosecutors from their responsibility in reducing the issue of overrepresentation of Indigenous, Black, as well as accused from other racial minority groups in the BC Justice System.

Charge approval data

The decision to approve or decline charges is the first and, arguably, the most important decision a prosecutor makes in the lifespan of a criminal file.Footnote 14 Our research demonstrated that various IBPOC groups do not benefit from the charge approval analysis when compared to their White counterparts. Put frankly, instead of reducing the ratio of some IBPOC groups in the criminal Justice System, the decision to prosecute had a negative impact on them. These outcomes are demonstrated in two significant results in the charge approval analysis.

First, prosecutors in Vancouver, Nelson, and Duncan were failing to use their discretionary power to decline to lay charges. The result is that the level of overrepresentation in the police forwarded charges is maintained. This means that Black individuals remain overrepresented by 790% and Indigenous individuals remain overrepresented by 781% as compared to their population estimates in Vancouver’s files. Across the three regions, the lack of charge approval decision-making disproportionately impacts White, Indigenous, Black, Hispanic and West Asian/Arab individuals who are already overrepresented in the files forwarded by police agencies.

Second, in Surrey and Prince George, prosecutors are using their discretion to decline police forwarded charges, however, this decision results in increased overrepresentation for IBPOC groups. More specifically, the decision to decline to lay charges in both Surrey and Prince George resulted in an increased representation of Indigenous individuals in the PPSC’s files of 156% and 36% respectively when compared to police files. Additionally, in Surrey, the decision to decline charges resulted in an increased representation for Hispanic and Asian individuals.

Detention data

After the decision to prosecute, the next critical decision point is the Crown position on bail.Footnote 15 From previous research, we know that due to racial stereotypes and bias, Black, Indigenous, and Hispanic defendants are more likely to be detained or have stricter bail conditions when compared to their White counterparts.Footnote 16 As a result, the bail position sought by Crown counsel is critical to understanding the overrepresentation of IBPOC individuals in the incarcerated population.

In our analysis, we found significant differences in bail positions sought by Crown counsel dependent on the race of the accused. In Vancouver, Crown counsel disproportionately sought initial detention for accused belonging to IBPOC groups. While in Surrey, Crown counsel disproportionately sought detention for IBPOC accused post bench warrant. It should be noted that in both Vancouver and Surrey, Crown counsel’s detention position did not vary as a result of the accused’s prior criminal record.

These patterns are especially important when seen in relation to the association between detention and guilty pleas. Since individuals who are detained pre-trial are more likely than their counterparts to enter a guilty plea.Footnote 17

Stay of proceedings data

Generally, a stay of proceedings should result from additional information or a change in circumstances. However, our review has demonstrated that there are many instances in which a prosecutor may question the decision to prosecute at the outset as a result of particular issues (for example a Charter breach) but persist in the prosecution only to stay the proceedings at a later date citing that same issue. This could demonstrate a failure in the application of the charge approval test at the outset, which, in turn, results in certain groups of people being subjected to the charges when others benefit from the prosecutorial decision to decline charges.

An overview of the five regions demonstrates that files with Black, South Asian, Asian and West Asian/Arab accused disproportionately resulted in a stay of proceeding. The stay of proceeding data paired with charge approval data reveals disparities in file outcome dependent on the race of the accused. First, for Black and Asian individuals, while their files are significantly overrepresented in stay of proceedings’ statistics, their files are not associated with an overrepresentation in charges that are not approved. Thus, there does not seem to be an association between charge approval decisions and stay of proceedings decisions for Black and Asian individuals.

Secondly, South Asian individuals are overrepresented in both the decision to not approve charges and to enter into a stay of proceedings. As such, South Asian individuals are disproportionately underrepresented in files which reach sentencing.

Finally, out of the three groups (Indigenous, Hispanic, and West Asian/Arab) who were overrepresented in file charge approval, only West Asian/Arab individuals were still overrepresented in stay of proceedings. Thus, for West Asian/Arab individuals, their underrepresentation in the decision to decline charges may be corrected by an overrepresentation in the decision to enter into a stay of proceedings. The same correction was not seen in the data for Indigenous and Hispanic people.

Spotlight on file outcomes for Indigenous accused

Given the significant overrepresentation of Indigenous individuals in the BC Criminal Justice System as well as the calls to action from the Truth and Reconciliation Commission, it is important to specifically examine file outcomes as they relate to Indigenous people.Footnote 18 For this analysis, we chose to focus on the two largest geographical areas – Vancouver and Surrey.

In Vancouver, Indigenous individuals are grossly overrepresented by 781% in both arrests and charge approvals, as compared to their census population estimates. Throughout a prosecution, Indigenous individuals are significantly underrepresented in stay of proceedings and acquittals. However, they are overrepresented in guilty pleas and incarceration. In comparison, White individuals are nearly perfectly represented based on their population data. Since we learned that it is common in the Vancouver region to charge files and then later stay them, it may be possible that Indigenous offenders are not equally benefitting from the decision to stay a file because they are pleading guilty at a disproportionate rate. Finally, when Indigenous individuals are found guilty, they are significantly more likely to be incarcerated.

In Surrey, similar themes emerge. Indigenous individuals are grossly overrepresented in the charges forwarded to and approved by the PPSC. It is important to note, that unlike Vancouver, the Surrey agents often use their discretion not to approve charges. However, this use of discretion did not benefit Indigenous people, instead through the PPSC’s charge approval process, Indigenous individuals’ overrepresentation increases by 156%. This may have an effect on Indigenous individuals’ subsequent overrepresentation in stayed files. In Surrey, like Vancouver, Indigenous individuals are overrepresented in files ending through guilty pleas. However, unlike Vancouver, in Surrey, Indigenous individuals are not disproportionately represented in experiences of incarceration.


Discretion is the centerpiece of the work of prosecutors.Footnote 19 Each prosecution, from beginning to end, requires a prosecutor to make independent policy-grounded decisions. In turn, these decisions direct the course of a proceeding. All possibilities within a criminal file begin with a prosecutor’s decision. In their decision-making, Crown counsel must uphold a “high ethical duty to act independently, fairly and objectively without either negative or positive animus towards the accused.” Yet, the research demonstrated that Indigenous and Black Canadians, as well as Canadians from other racial minority groups are overrepresented throughout key decision points and, ultimately, in the prosecutions as a whole conducted in the BC Region. As such, the report highlights tangible areas for improvement in the current practices in the PPSC BCRO and offers opportunities for management to empower individual prosecutors to make decisions, which reduce the racial inequities present in the BC Justice System. Through equity-driven action, the PPSC can take positive steps towards the improvement of the BC Justice System for IBPOC individuals.


The report lists six recommendations, which serve to provide preliminary ideas for data-driven improvements to the PPSC’s operations.

1. Accountability for Independent Decision-Making

The work of this report has highlighted that though an individual decision may be justified, when considered on aggregate, problematic and inequitable patterns emerge. As we have demonstrated, the information presented to prosecutors does not always adequately capture the correct race or ethnicity of an individual accused. It appears prosecutors are approaching race and ethnicity through a “justice is blind” or “colour blind” approach. This approach may be the root of the aggregate results, which show an overrepresentation of Indigenous and Black Canadians, as well as Canadians from other racial minority groups in the PPSC’s work. We hope to encourage equity-based decision-making and a more nuanced analysis in the work of prosecutors with the hope that it will help prosecutors to recognize, acknowledge, and counter both individual, organizational, and systematic biases they may encounter. By becoming more attuned with influence of these biases, prosecutors can play their part in reducing overrepresentation of Indigenous, Black and other racially marginalized groups in the criminal justice system. Specifically, we hope to empower prosecutors to seek out additional information and develop a stricter application of the decision to prosecute test in order to ensure that all prosecutions serve the interest of the public.

Tangible change may be accomplished through a more stringent application of the decision to prosecute test, greater managerial support for equity driven prosecuting, and the implementation of a zero-tolerance policy for problematic language.

2. Requesting information about the accused in the Disclosure Letter

In current PPSC practice, the race or ethnicity of an accused is largely determined based on the categorization used by police when the incident report is uploaded to JUSTIN. Our findings, which are consistent with the findings in Dr. Wortley’s report to the BC Human Rights Tribunal, show that the police racial categorization is often based on the arresting officer’s perception or the information already in the police database. There are numerous issues associated with reliance on police perception of race, the most blatant of which being that the police are often wrong in their categorization.

The best mechanism to request self-identification of the accused is through their counsel. While some prosecutors do this work already through informal emailsFootnote 20, a formalized mechanism is required. We recommend adding the following request to the Disclosure Form sent to all defence counsel:

By requesting this information, prosecutors can fulfill their duties to seek more appropriate outcomes and sentences for Indigenous peoples and other racial and ethnic groups overrepresented in the criminal justice system.

3. Improved the PPSC’s record keeping

One of the greatest challenges when conducting this project was the lack of records available for the files evaluated. In addition to the lack of records, there were unclear procedures available for the information uploaded into iCase. As such, the records, which were received, required extensive cross-referencing with the physical file. In order to continue to review the PPSC’s practices in a data-conscious way, we recommend organizational changes to clarify which charges are uploaded into iCase, clarify language used by prosecutors, ensure certain documents are uploaded to iCase, and create mechanisms to ensure compliance with document upload policies.

4. Increased training with greater mechanisms for evaluation

An increase in EDIA training and resources for PPSC staff is a current departmental priority.Footnote 21 Research has shown that increased training and awareness of implicit racial bias can reduce biased decision-making.Footnote 22 However, the training must be matched with evaluation. In order to ensure that the PPSC plays an active role in reducing the racial disparities present in the Canadian Justice System, there must be mechanisms in place to determine whether the EDIA training provided is effective.

5. Increased support for alternative outcomes

There is a diverse array of alternative outcomes available in the BC region, such as First Nations Court, Drug Treatment Court, and Alternative Measures Programs. Each program offers offenders alternatives to the traditional Criminal Justice System. For offenders belonging to IBPOC groups, alternative systems can offer a targeted, treatment focused experience. Throughout our review, these services appeared to be underutilized by BC prosecutors. For example, out of the 89 first time offenders, only 14 were directed towards alternative systems.

Through an increased use of alternative outcomes, offenders of all races may benefit from the positive effects of these systems. In accepting and promoting the use of alternative court system, PPSC prosecutors can work to increase positive experiences of offenders within the BC Court system.

6. Surrey Pilot Project

In late 2022, the PPSC BCRO will be opening a new area office in Surrey. This office will ultimately replace the two agent firms currently conducting prosecutions in Surrey. As it covers the busiest courthouse in BC, the new office in Surrey will handle a large volume of cases.

The new office presents a unique opportunity for data collection. As the Surrey office offers a clean slate for data collection, it could be the site of a pilot project. In shaping the processes and standards of the new Surrey office through an equitable, race-focused lens, the PPSC could evaluate the efficacy of new processes for racial equity in prosecutorial work.

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