Now let's talk about the public interest.
I think it would be reasonable for a prosecutor to say that, since the potential accused is indigenous and since the issue of residential schools and indigenous history has widespread repercussions, authorization to prosecute would be limited. I think it is difficult to do a case-by-case analysis to determine whether a given indigenous person has been a victim. It's really the use of the word “systemic” that makes it difficult. I think it's very likely that prosecutors will consider that most or all indigenous people have experienced systemic discrimination.
Let's move on to the second part of the analysis, which is the issue of public interest. I want you to explain how that happens. Let's say you get through the first step and determine that there's a reasonable chance of guilt, you have to determine whether the prosecution is in the public interest, and you have to analyze the accused's situation. The guide cites indigenous identity as one of the factors that can influence the public interest:
Crown counsel must consider the ongoing impacts of colonialism, residential schools, over-representation and systemic discrimination in the criminal justice system when the accused is First Nations, Métis or Inuit.
This relates directly to the public interest. What does this directive to prosecutors mean when they are deciding whether or not to lay charges against a first nations person?