HARDLY A DAY GOES BY when you don't read or hear about our clogged criminal court system, the legal aid crisis and trials that are dragging on interminably.

There's no doubt that part of the problem lies with defence lawyers who waste time as a result of their inexperience or desire to accumulate billable hours, as well as with unrepresented defendants who have little or no idea how to conduct a cross-examination.

However, we think the Crown itself is part of the problem, with over-zealous Crown prosecutors trying to obtain convictions for a more serious offence than the accused's conduct really merits.

A couple of classic examples have surfaced in recent weeks, one involving a Toronto storekeeper who was charged after he made a citizen's arrest of an habitual criminal, and the other involving a mother currently on trial for murder in the death of one of her children.

The storekeeper, David Chen, apprehended the serial thief when he returned to the store about an hour after a surveillance camera spotted him removing some produce. Mr. Chen and his employees made a citizen's arrest, chasing the thief and holding him against his will while waiting for police to arrive. Toronto police responded by charging the thief with theft while confronting the storekeeper and his helpers with far more serious allegations, including unlawful confinement, assault and even kidnapping (a charge which has since been dropped).

Given the circumstances, Mr. Chen probably wasn't doing anything more than the average observer would have expected of him — certainly not the sort of thing Parliament intended in legislating penalties for such gross misconduct as kidnapping and forcible confinement.

In fact, the only valid purpose in laying any criminal charge would be to have a judge weigh whether the force Mr. Chen and his employees used was excessive. That could have been accomplished by simply laying a charge of common assault and if the judge agreed that the accused had crossed the line, invite the court to give written reasons and grant a conditional discharge.

Instead, all the Crown apparently has offered is a suspended sentence in exchange for a guilty plea that would leave Mr. Chen with a criminal record for activity that at most was an understandable over-reaction to a property crime.

In the other case, Erika Mendieta faces a possible life sentence with no chance of parole for at least 10 years as the result of the death of a two-year-old daughter. Her trial grabbed a lot of attention last week when a former boyfriend testified that he, not she, was responsible for the child's lethal injuries.

Despite the confession, the prosecutor apparently intends to ask the jury to ignore the testimony and convict the 33-year-old mother of second-degree murder in the face of evidence that she called 911 when the child appeared to be dying.

The little girl died on Nov. 23, 2003, 10 days after Ms. Mendieta placed a frantic 911 call from the family home in the former North York.

An autopsy showed that the child died of blunt force trauma to her head. Her body was covered from head to toe with bruises and marks.

Although the little girl was clearly a victim of culpable homicide, the question to be addressed in such cases is whether there is clear evidence of intent to kill as opposed to a lethal assault brought on by frustration, anger or some other factor that led to a loss of control.

The former live-in boyfriend testified that he had slapped and pushed little Emmily because he couldn't stand the way she and her baby brother were crying, and had also struck the boy, who was not seriously injured. He said Ms. Mendieta was out of the house at the time, picking her other four children up from school.

At this point, it's anyone's guess as to how the Mendieta trial will play out, but we suspect that at least some of the jurors will wind up wondering why the boyfriend was never charged.

But the real questions to be asked are why the Crown went to trial on a charge of second-degree murder rather than manslaughter, and whether it even offered to accept a plea to the lesser offence, which carries a maximum sentence of life but no minimum.

Out in British Columbia, the problem of clogged criminal courts has for years been dealt with effectively by having senior crown attorneys "vet" all serious charges, permitting them to proceed to trial only if there is a strong possibility of conviction. In cases such as the Chen and Mendieta ones, the charges would be reduced or withdrawn.

The result of such a process is the likelihood of a resolution that will be far less costly and time-consuming, either through plea bargains that eliminate the need for a trial or a narrowing of issues that permits a short trial by judge alone rather than a full-fledged jury trial.

Although Ontario supposedly has such a charge-vetting system, there's little evidence that it's being used.