Prolific offenders: Q & A with Attorney General David Eby

Written By Fran Yanor

Over the past months, mayors across B.C. have voiced alarm about inner city crime waves and random violent attacks making their citizens feel unsafe. Police data shows an inordinate amount of crime committed by a small group of people. Critics say these prolific offenders have been allowed to surf through the justice system without consequence in a so-called ‘catch-and-release’ cycle.

As the minister responsible for overseeing the administration of justice in B.C., Attorney General David Eby is duty-bound to ensure the system keeps communities safe. As such, Eby, is now tasked with reining in the rampant criminal behaviour of the province’s most prolific offenders.

Last week, Eby, also Minister of Housing, sat down with Northern Beat to talk about the issues and what he will, can’t, and might consider doing in his capacity as Attorney General.

What is within your ability to influence and change in the justice system in terms of prolific offenders?

The biggest opportunity for the province in our authorities are around programs and interventions for people outside of the criminal justice system. 

As soon as they get into court, we’re dealing with the federal Criminal Code; we’re dealing with the independent judiciary; we’re dealing with the independent Crown counsel office; and federal prosecutors as well. Things get much further out of the province’s political control. 

The obvious opportunity that’s been there for us on these kinds of issues has been improving mental health and addiction services. Our first significant intervention of this budget – in relation to street disorder issues, related to mental health and addiction – was the 500 complex care beds across the province to provide health care-like services for people who are potentially involved in this kind of activity, and maybe cycling in-and-out of prisons.

“For these prolific offenders – the vast majority of them – mental health and addiction issues are driving the behaviours.”

We believe that providing health care supports will help intercept and prevent a lot of that activity. However, it seems also very likely, based on what the mayors have presented to us, that there’s a group of people who won’t take us up on the services because they are voluntary. 

The complex care beds rely on somebody wanting these kinds of services and interventions. There are lots of people who do want them and who will take us up on them, and it will improve their lives and improve community safety and their own safety.

But for that group who won’t take us up on these, then we’re into a more challenging area. 

What kind of programs, what kind of services can we offer that court could order someone to participate in? 

What, of the services that we offer right now, prevents courts from using these services to interrupt this kind of cycle of offending?

Are there pieces that we could give to police – who are responding to these calls and arresting these folks over and over again – that could assist in getting them into these services?

“It’s pretty clear to me that what we’re offering right now is not addressing the concerns of the mayors”.

At its core, for these prolific offenders – the vast majority of them – mental health and addiction issues are driving the behaviours. And it’s pretty clear to me that what we’re offering right now is not addressing the concerns of the mayors, so that’s the opportunity I see in front of us at the provincial level.

Are specialized courts able to mandate treatment? How can you help these people?

We have some integrated courts in the province. Some are community courts. We have a drug court. Some are broader than that. Some are specifically for First Nations offenders, but they’re sentencing courts. 

What all of those programs try to do is match up the offender with the services they’ll need to stop the behaviour. And I think that is a very positive initiative. But those courts are only in limited locations in the province. 

“What all of those programs try to do is match up the offender with the services they’ll need to stop the behaviour.”

Many rural communities don’t even have a dedicated courthouse space, let alone an integrated court. So, that won’t be the solution for every community. 

We need solutions that are going to work in different parts of the province. Because we’ve heard these concerns from communities like Quesnel, Trail, Terrace, as well as the largest centers like Vancouver, Victoria, Surrey.

Are there any mandatory treatment programs being ordered in these integrated courts now? Or is the current system all voluntary?

In terms of the approach of these courts, the person generally needs to agree to participate. 

Some people are put into it directly because of where the offence takes place. If you commit an offence in downtown Vancouver, for example, your first stop is going to be through the community court, especially if you’re a first-time offender. 

Some of them are geographically based. Some of them are opt-in. The drug court requires someone to want to participate in that process.

“There’s a group of people that just will not participate in those programs voluntarily.”

There’s a group of people that just will not participate in those programs voluntarily, even if there’s a clear exit route from the lifestyle they’re engaged in, because of their addiction, for example.

This may be another opportunity for us is to bring some consistency to these programs and to… (address) the people who, frankly, have no difficulty, personally, sitting in jail for 30 days without seeking any treatment – they would prefer that to a six-months-long treatment program with all kinds of conditions and restrictions.

At what point in the justice system can treatment be recommended?

There are three opportunities for courts to potentially impose conditions on people, like participating in a drug treatment program or mental health program. 

The first is, the Crown and defence can recommend it to the court and the court can agree. 

The court can impose it as a condition of bail before they release somebody back into the community. 

And at sentencing, there can be a conditional sentence order that says, “Here’s the sentence, you need to do these programs. And if you don’t do that, you’re going to come and serve the rest of that sentence in custody.’ 

“That’s the work that we need to do, with the mayors and with other stakeholders, to identify where people are dropping through the system.”

So, there are opportunities for courts to be able to do this, and have it be mandatory. But it seems that for some of these offenders, that’s not happening. And if it is happening, it’s not successful. So that’s the work that we need to do with the mayors and with other stakeholders to identify where people are dropping through the system.

Will the judicial system recommend mandatory treatment for people if they don’t have easy access to treatment services, or to a treatment facility nearby?

Yeah, access might be an issue, especially in rural communities.

Generally speaking, when someone has a defence lawyer, and (their client) has an addiction issue, that lawyer is working hard to try to get that person into a treatment program, because it will have a strong influence on the judge’s decisions about bail, as well as the judge’s decision about the ultimate sentence if their offences are related to addiction. There’s definitely motivation on the part of people’s lawyers to get them into these kinds of programs. 

Despite that, there is something clearly not working in terms of this relatively small number of offenders.

The prolific offenders of concern are a relatively small group of people who are known to law enforcement and the courts. Does that make dealing with this situation easier?

It’s an easier problem to define, to tailor your solutions.

That’s really the hope that I find in this. When I look at the urban mayors’ letters, these are some of the biggest cities in the province and there are fewer than 300 people that they identified when they did their statistical analysis. 

When I talk to smaller, rural, and remote communities, the numbers get down into single digits and everybody knows the people’s names. 

So that says to me that this is a problem that we can solve. It’s not like there’s 40,000 people running around. It’s somewhere around 500 or maybe fewer. That’s very hopeful in terms of the interventions that we can bring.

“This is a problem that we can solve. It’s not like there’s 40,000 people running around.”

We already have the complex care bed funding in place. We have some programs that are opening and operating already in major centers where they’re most prepared to open those quickly. The ministry of mental health and addiction is working with other communities and with health authorities to get those other beds open and announced. They’ll all be in place, we expect, by the end of the year. It’s our goal. 

But it’s important to underline that these are voluntary programs.

We need to figure out how to be creative within our municipal and provincial authorities to respond to a criminal justice issue, which is a federal responsibility. And that creativity is going to rely on being able to go to experts in these areas and have them help us identify solutions that work. And on an urgent basis.

Our compassion and concern and interaction on mental health and addiction can’t cloud the fact that we need communities to be safe. Certain behaviors are unacceptable. And we need to address them. That’s the work that’s ahead of us. That will be the underlying theme of the work that we’ve got ahead of us.

What’s the possibility of having dedicated Crown counsel to follow prolific offenders all the way through the system? Have you considered this as a potential remedy?


This is a really vexing problem. It’s going to require being willing to hear potential solutions from anywhere. 

The particular suggestion around having a dedicated Crown who could follow a particular offender, or that there would be a unit of Crown that could follow specific offenders… and who know these offenders and their background… is a good one. It came in part from Mike Morris, the MLA for Prince George, a BC Liberal MLA.

The Crown council service has struck a subcommittee with police. They have an active police-Crown liaison committee, and they’ve set up a new subcommittee with Crown counsel and police on the specific issue of prolific offenders. They’re going to be canvassing that suggestion and others and providing recommendations to me and to government about what solutions they come up with. It may be that this is one of those approaches.

I just want to be clear… this is not a special prosecutor. That’s a whole different process. This would be Crown council within the independent Crown council service, that would be dedicated to the issue of prolific offenders and would follow specific offenders so that they knew these folks just like the police do, and there wouldn’t be an issue of somebody quickly looking at a file and approving a release of someone who shouldn’t be released.

Crown Counsel has a number of specialized units that can be centered in different areas, but provide support in rural and remote communities as needed. For example, we have circuit courts where specialized Crown go out to communities. It’s the same Crown over and over and they know people. They fly in for court, and then they fly back out. 

Similarly, because of the pandemic, we have more and more virtual Justice Services and virtual appearances on bail hearings, and so on. We have a virtual bail program throughout the North now. So Crown can appear from anywhere. This enables us to be able to offer those kinds of specialist Crown services without having to specifically locate Crown in those communities.

It’s not possible to have all these resources in every community, but what about the hub communities, like Prince George and smaller hubs like Terrace?

I think that the best approach for government is going to be to take the recommendations from this Crown-police liaison committee, because they know, they’re both on the front lines. The police, Crown counsel, they know the issue, and the offenders, and the process, and where the resources will be best dedicated and how. 

For us, getting those recommendations from them is going to lead us forward about how to address this from the provinces’ authorities in relation to Crown counsel. More broadly, I think there are probably stakeholders outside of that specialist subcommittee about the criminal justice system that are going to be able to provide information to us as well about solutions we can offer in community around mandatory services that will interrupt the cycle of offending. 

Is mandatory treatment on the table?

The core here is that we’re really stepping up and increasing our voluntary services. This group of offenders is not going to take up those voluntary services. So whatever we come up with, is going to have to have some element of compulsion to it and provide courts with that option to require people to take up those services. I think that’s the core issue and the core opportunity.

“Whatever we come up with, is going to have to have some element of compulsion to it.”

What about the people who repeatedly break the law, but are not being charged? Or the offenders who have few or no convictions despite their repeated criminal behaviour?

There’s some really interesting trends. We have seen a 20 per cent decline in the number of Reports to Crown Counsel from police. And there’s not really an explanation for that other than the decline overall in property crime across the province, which is also about 20 per cent off of pre-pandemic numbers. 

It’s an interesting and important question about whether police are declining to bring files forward. And if so, what the reasons for that would be and how we can address that. Because Crown can’t address files that are not brought forward by police. 

And if police are not bringing files forward because they’re frustrated with Crown, then it’s kind of a vicious cycle.

So, that is a very live question. 

“If police are not bringing files forward because they’re frustrated with Crown, then it’s kind of a vicious cycle.”

I’ve heard a suggestion that a significant number of the offences committed by these individuals may go unreported by the victims of the property. I certainly believe that to be possible. 

If that’s the case, and the convictions are only a small portion of what these individuals are up to, then that really does underline the importance of addressing this issue by addressing the behavior of these individuals. Because the impact on community safety can be quite profound from just a small number of people.

If people are not calling the police and police are not arresting or charging because they feel charges won’t get approved by Crown, then there’s all this unreported crime. What are your thoughts on that?

A key role of the attorney general is to maintain public confidence in the justice system. 

On hearing about this issue in December from the mayors – as well as from the mayors of Terrace and Williams Lake and Trail – my offer to them was, ‘When police tell you about an individual, and the charges are not being approved, please let me know.’ 

Because I do have the ability to direct, in a particular case, that prosecution go ahead where appropriate. And more broadly, I’m certainly prepared to direct policy around Crown to address this issue, if necessary.

The challenge that we face right now is it’s not immediately obvious what that policy would be, because Crown are working within the federal law framework that informs a lot of their decisions about whether they’re seeking the detention of someone, or whether they’re seeking conditions on a release, for example, which is a big issue around this. 

“I’m prepared to issue those directions, but we need those specific cases… or the specific policy that we agree is going to make a difference here.’

Some of the work that we’re going to have to do with the mayors and other stakeholders is, ‘OK, I’m prepared to issue those directions, but we need those specific cases, and the opportunity for me to do that. Or the specific policy that we agree is going to make a difference here.’

And one of the pieces that I appreciate and respect about our Crown council service is that they’re very active in these issues. They’ve established this liaison committee and they’re working to identify those policies themselves, as well.

If it is an issue that can be addressed in relation to Crown direction, Crown are taking their own initiative. As well, I’m prepared to issue those directions once we’re clear about what it is that is going to address this.

As the AG, how do you maintain impartiality over the justice system and also say, ‘OK, we need to have consequences for these behaviours?’

I’m limited in what the directions can be. 

I can’t direct Crown to ignore what the federal law is, or to pretend Supreme Court of Canada decisions don’t exist on this issue, because they do. Or that Bill C-75 didn’t happen, because it did. So that’s some of the challenge around this around what the directions would look like.

“I can’t direct Crown to ignore what the federal law is.”

In specific cases where I feel like they meet the threshold for detention and the Crown may decide that they’re not taking detention, that is a scenario where I could potentially issue a direction. I’m very reluctant to do so because I have great confidence in our Crown. But the mayors, I want them to know that that is something that exists and they have the opportunity in egregious cases.

You’re not the first AG to deal with a prolific offender problem. In the past, detention for minor offences was typically based on a ‘ladder concept:’ by your third or fourth repeating offence, you might get some jail time. But what if the offender is never charged in the first place so their record doesn’t show repeating behaviours?

Yeah, the big challenge with a lot of these offenders is that the crimes they engage in are so small and petty, in terms of the criminal justice system. Shoplifting, the value is under $1,000. Mischief, the value is under $1,000. It’s a nightmare for businesses. It’s a headache for community. It makes people feel unsafe downtown. 

But in terms of the sentences that are available, even when someone goes to jail, they’ll go to jail for 30 days. Then they’re back out. In some cases, they’re even worse than when they went into jail.

That is the big challenge with this particular group of offenders.

Also, when it’s informed by mental health and addiction, the courts are likely to say, ‘Well, jail’s not going to be the solution here anyway.’ 

Is it right to have a system designed to keep people out of jail if there aren’t adequate supports for them when they get shot back out on the street?

If we accept, at its core, that these offences are driven by the physical health of this person; that they have a physical health problem of addiction and mental health that is causing them to be a danger and a threat for other people in the community; then the answer is clearly not jail. 

But it’s not nothing either. 

“The answer is clearly not jail. But it’s not nothing either.”

The requirement that that individual obtain the health services they need to stop being a threat to other people and themselves is not something that’s new. It exists in different ways in our system.

But it’s not addressing these offenders and we need to find out why.

This transcript was edited for brevity (the minister) and intelligibility (the writer).