Role of the Crown

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General Principles

The Crown's role as a "minister of justice" must enforce the laws of the jurisdiction.

It is improper for the Crown to be selective as to which laws they wish to enforce except when exercising discretion in a particular case.[1]

Both Crown and defence have a "responsibility in providing relevant case law to assist the court".[2]

The role of the prosecuting Crown is "quasi-judicial".[3]

Nevertheless, prosecutions are to be undertaken with "earnestness and vigour".[4]

The prosecutor "always has a discretion in prosecuting criminals to the full extent of the law".[5]

  1. R v Catagas, 1977 CanLII 1636 (MB CA) at para 2
  2. R v Adams, 2011 NLCA 3 (CanLII)
  3. R v Bain, [1992] 1 SCR 91, 1992 CanLII 111 (SCC)
  4. Berger v US 295 US 78 (1935)
    Bain, supra ("[A prosecutor's duty is] to see to it that every material point is made which supports the prosecution case or destroys the case put forward for the defence. But as prosecuting Counsel he should not regard his task as one of winning the case. He is an officer of justice. He must present the case against the prisoner relentlessly, but with scrupulous fairness.")
  5. R v Lyons, 1987 CanLII 25 (SCC), [1987] 2 SCR 309 at para 64

Crown

See also: disclosure

The Crown includes victim services. However, disclosure obligations are not implicated in the records of victim services as the prosecutor does not have knowledge or control over those materials.[1]

  1. R v H.T., 2008 NLTD 24 (CanLII)

Prosecutor

Section 2 of the Code defines "prosecutor":

2
...
“prosecutor” means the Attorney General or, where the Attorney General does not intervene, means the person who institutes proceedings to which this Act applies, and includes counsel acting on behalf of either of them;
...
R.S., 1985, c. C-46, s. 2; ... 2013, c. 13, s. 2; 2014, c. 17, s. 1, c. 25, s. 2; 2015, c. 3, s. 44.


CCC

Reference to prosecutor under Part XXVII (Summary Convictions):

785.
...
"prosecutor" means the Attorney General or, where the Attorney General does not intervene, the informant, and includes counsel or an agent acting on behalf of either of them;
...
R.S., 1985, c. C-46, s. 785; R.S., 1985, c. 27 (1st Supp.), ss. 170, 203; 1992, c. 1, s. 58; 1995, c. 22, s. 7, c. 39, s. 156; 1996, c. 19, s. 76; 1999, c. 25, s. 23(Preamble); 2002, c. 13, s. 78; 2006, c. 14, s. 7; 2013, c. 11, s. 4.


CCC

The Crown Attorney

The Crown Attorney is invested with the authority to conduct prosecutions on behalf of the Director of Public Prosecutions for the province or Federal government.[1]

The choice of who is to prosecute an accused person is part of the Attorney General's core prosecutorial discretion and is not reviewable short of an abuse of process. [2]

The Crown's role is to "assistant to the Court in the furtherance of justice, and not to act as counsel for any particular person or party".[3]

  1. BC: Crown Counsel Act, RSBC 1996, c 87
    MB: Crown Attorneys Act, CCSM c C330
    ONT: Crown Attorneys Act, RSO 1990, c C.49
    QC: An Act respecting the director of Criminal and Penal Prosecutions, RSQ, c D-9.1.1
    NB: An Act Respecting the Role of the Attorney General, RSNB 2011, c 116
    NS: Public Prosecutions Act, SNS 1990, c 21
    FED: Director of Public Prosecutions Act, SC 2006, c 9, s 121
  2. R v Hundert, 2010 ONSC 6759 (CanLII) at para 39, 40
  3. Boucher v The Queen, 1954 CanLII 3 (SCC), [1955] SCR 16, at p. 25

The Attorney General

The Attorney General's role is to represent the public interest in criminal prosecutions.[1]

The AG derives its power from its role as advisor to the Crown.[2]

In the UK, the Attorney General never sits in cabinet, however, is Canada the AG will always be part of government. As a result, the independence of prosecutions is even more important than in the UK.[3]

Only Criminal charges under the Criminal Code may be prosecuted by the Attorney General of provincial government. Violations of other federal acts, such as the food and drug act, may be prosecuted by Attorney general of Canada.[4]

For the purposes of all federal acts involving criminal law except those in the Criminal Code, the "Attorney General" refers to the Attorney General of Canada and their agents. Provincial attorney general is excluded from having authority over such matters.[5]

The Attorney General of Canada may prosecute conspiracy charges under the Criminal Code. [6]

Where there is an absence of involvement of federal prosecutors, there can be authority for the provincial Attorney General to prosecute.[7]

2
...
“Attorney General”

(a) subject to paragraphs (b.1) to (g), with respect to proceedings to which this Act applies, means the Attorney General or Solicitor General of the province in which those proceedings are taken and includes his or her lawful deputy,
(b) with respect to Yukon, the Northwest Territories and Nunavut, or with respect to proceedings commenced at the instance of the Government of Canada and conducted by or on behalf of that Government in respect of a contravention of, a conspiracy or attempt to contravene, or counselling the contravention of, any Act of Parliament other than this Act or any regulation made under such an Act, means the Attorney General of Canada and includes his or her lawful deputy,
(b.1) with respect to proceedings in relation to an offence under subsection 7(2.01), means either the Attorney General of Canada or the Attorney General or Solicitor General of the province in which those proceedings are taken and includes the lawful deputy of any of them,
(c) with respect to proceedings in relation to a terrorism offence or to an offence under section 57, 58, 83.12, 424.1 or 431.1 or in relation to an offence against a member of United Nations personnel or associated personnel under section 235, 236, 266, 267, 268, 269, 269.1, 271, 272, 273, 279 or 279.1, means either the Attorney General of Canada or the Attorney General or Solicitor General of the province in which those proceedings are taken and includes the lawful deputy of any of them,
(d) with respect to proceedings in relation to
(i) an offence referred to in subsection 7(3.71), or
(ii) an offence referred to in paragraph (a) of the definition “terrorist activity” in subsection 83.01(1), where the act or omission was committed outside Canada but is deemed by virtue of subsection 7(2), (2.1), (2.2), (3), (3.1), (3.4), (3.6), (3.72) or (3.73) to have been committed in Canada,

means either the Attorney General of Canada or the Attorney General or Solicitor General of the province in which those proceedings are taken and includes the lawful deputy of any of them,

(e) with respect to proceedings in relation to an offence where the act or omission constituting the offence
(i) constitutes a terrorist activity referred to in paragraph (b) of the definition “terrorist activity” in subsection 83.01(1), and
(ii) was committed outside Canada but is deemed by virtue of subsection 7(3.74) or (3.75) to have been committed in Canada,

means either the Attorney General of Canada or the Attorney General or Solicitor General of the province in which those proceedings are taken and includes the lawful deputy of any of them,

(f) with respect to proceedings under section 83.13, 83.14, 83.28, 83.29 or 83.3, means either the Attorney General of Canada or the Attorney General or Solicitor General of the province in which those proceedings are taken and includes the lawful deputy of any of them, and
(g) with respect to proceedings in relation to an offence referred to in sections 380, 382, 382.1 and 400, means either the Attorney General of Canada or the Attorney General or Solicitor General of the province in which those proceedings are taken and includes the lawful deputy of any of them;

...
R.S., 1985, c. C-46, s. 2; ... 2012, c.1, s. 160, c. 19, s. 371; 2013, c. 13, s. 2; 2014, c. 17, s. 1, c. 25, s. 2; 2015, c. 3, s. 44.


CCC

The Attorney General is obligated to make decisions regarding prosecutions in a "judicial manner".[8]

  1. R v Gabriel, 1999 CanLII 15050 (ON SC), (1999), 137 CCC (3d) 1, 26 C.R. (5th) 364 (Ont. S.C.) ("The Attorney General represents the public interest in the prosecution of crime.")
  2. Krieger v Law Society of Alberta, 2002 SCC 65 (CanLII), [2002] 3 SCR 372 at para 25 ("This power finds its source in the Attorney General’s general role as the official legal advisor to the Crown.")
  3. Krieger v Law Society of Alberta at para 29 ("Membership in Cabinet makes the principle of independence in prosecutorial functions perhaps even more important in this country than in the U.K.")
  4. R v Wetmore, 1983 CanLII 29 (SCC), [1983] 2 SCR 284 A.G. (Can.) v Can. Nat. Transportation, Ltd., 1983 CanLII 36 (SCC), [1983] 2 SCR 206 - Federal Govt authority to prosecute under the Combines Investigation Act is constitutional
  5. R v Hauser, 1979 CanLII 13 (SCC), [1979] 1 SCR 984
  6. R v Pelletier, 1974 CanLII 596 (ON CA), (1974), 18 CCC (2d) 516 (Ont. C.A.)
  7. Pelletier, ibid.
  8. R v Smythe, [1971] 2 O.R. 209, at p. 216, affd. 1970 CanLII 29 (SCC), [1971] SCR 680
    R v Hauser, 1979 CanLII 13 (SCC), [1979] 1 SCR 984

Delegating Authority

Unless prohibited by statute, the Attorney General of Canada may delegate a prosecution the provincial Attorney General and vice versa.[1]

  1. R v Luz, 1988 CanLII 4529 (ON SC), (1988), 5 O.R. (3d) 52 (H.C.J.) at p.59 ("The power to prosecute is that of the Attorney General... He or she may prosecute personally or by counsel or agent. Unless prohibited by statute he may delegate any of his powers to subordinate officers or to counsel instructed on his behalf. No statutory power is necessary for such delegation. The power to delegate to counsel or agent is a functional necessity of the office, requiring no statutory authority.")
    see also Gentles v Ontario (Attorney General), 1996 CanLII 8166 (ON SC), at paras 46 to 48

Attorney General of Canada

Powers of the Attorney General of Canada
467.2 (1) Notwithstanding the definition of “Attorney General” in section 2, the Attorney General of Canada may conduct proceedings in respect of

(a) an offence under section 467.11 or 467.111; or
(b) another criminal organization offence where the alleged offence arises out of conduct that in whole or in part is in relation to an alleged contravention of an Act of Parliament or a regulation made under such an Act, other than this Act or a regulation made under this Act.

For those purposes, the Attorney General of Canada may exercise all the powers and perform all the duties and functions assigned to the Attorney General by or under this Act.
Powers of the Attorney General of a province
(2) Subsection (1) does not affect the authority of the Attorney General of a province to conduct proceedings in respect of an offence referred to in section 467.11, 467.111, 467.12 or 467.13 or to exercise any of the powers or perform any of the duties and functions assigned to the Attorney General by or under this Act.
1997, c. 23, s. 11; 2001, c. 32, s. 28; 2014, c. 17, s. 11.


CCC

Purpose of Prosecution

The role of the crown is not to secure convictions, it's role is to present to a trier of fact evidence that is considered credible and relevant to the alleged offence.[1] It is to "promote the cause of justice" and not to persuade a trier of fact "to convict other than by reason".[2] The Crown's job includes seeking the truth. However, it does not mean seeking justice for a complainant.

The Crown is expected to "present, fully and diligently, all the material facts that have evidentiary value, as well as all the proper inferences that may reasonably be drawn from those facts."[3] The use of rhetorical techniques to distort the evidence or to present misleading and highly prejudicial statements are inappropriate.[4]

The prosecution of offences is not a contest between the crown and the accused. It is an investigation to determine the truth. It should be done without any feelings of animus.[5]

Nevertheless, the Crown may still "act as a strong advocate within the adversarial process. ...it is both permissible and desirable that it vigorously pursue a legitimate result to the best of its ability."[6]

The decision to prosecute is solely in the authority of the crown and should only be reviewable in the clearest of cases.[7]

It is not necessary for the Crown to personally believe in a person's guilt to proceed on charges.[8]

It is possible for the Crown to avoid a subpoena to provide evidence justifying the basis for exercising their discretion, such as in a corner's inquest.[9] However, a subpoena to attend a commission inquiry to explain their actions will be enforceable.[10]

The Crown's advice on the form charges cannot be reviewable except as a possible abuse of process.[11]

The powers of the prosecutors include the "power to charge multiple offences".[12]

Where alleged "conduct constitutes an offence under more than one section of the Code, the Crown has a discretion with respect to the offence for which the accused is to be prosecuted".[13]

Historically, the Crown Counsel was not responsible for making recommendations on penalty in a sentencing hearing.[14]

  1. R v Boucher, 1954 CanLII 3, [1955] SCR 16, 110 CCC 263 at para 26
    R v Power, 1993 CanLII 3372 (NL CA) ("This quasi-judicial role precludes the Crown having an interest in procuring a conviction as its duty is to fairly and impartially exhibit all facts to the court. The prosecutorial role excludes any notion of winning or losing")
    R v Chamandy, (1934) 1934 CanLII 130 (ON CA), 61 C.C.C. 224 (Ont. C.A.) ("A criminal trial ... is an investigation that should be conducted without animus on the part of the prosecution, with the single view of determining the truth. It is the duty of counsel for the Crown at a criminal trial to bring out before the jury all the facts favourable and unfavourable to the accused.")
  2. R v Proctor, 1992 CanLII 2763 (MB CA), (1992) 69 CCC (3d) 436 at para 59 and adopted in R v Trochym 2007 SCC 6 (CanLII)
  3. R v Trochym, 2007 SCC 6 (CanLII), [2007] 1 SCR 239
  4. R v Trochym at 79
  5. R v Chamandy, 1934 CanLII 130 (ON CA), (1934), 61 CCC 224, at p.227
  6. R v Cook, 1997 CanLII 392 (SCC), [1997] 1 SCR 1113 at para 21
  7. Miazga v Kvello Estate, 2009 SCC 51 (CanLII)
  8. Miazga v Kvello Estate, at paras 65 to 67
  9. Picha v Dolan, 2009 BCCA 336 (CanLII)
  10. Attorney General v Davies, 2009 BCCA 337 (CanLII)
  11. R v Ghavami, 2010 BCCA 126 (CanLII)
  12. Nelles v Ontario, 1989 CanLII 77 (SCC), [1989] 2 SCR 170 at para 40
  13. R v Simon (1979), 45 CCC (2d) 510 (ONCA) at p. 514
  14. R v Butterwasser (1948), 32 Cr. App. Reports 81(*no link) at 87 (UK decision)
    R v Lapierre, [1976] NSJ 421, (NSCA)(*no link) at para 32 ("Crown counsel should never request a specific term of imprisonment and in this province it rarely happens that such is done.")

Discretion of Crown

Relationship with Police

The crown must remain separate from the police. [1] The Crown and police are to consult with each other but the "maintenance of a distinct line between these two functions is essential to the proper administration of justice."[2]

The Crown can be liable for their part in giving advice to police during an investigation.[3]

While it is acceptable, the Crown should not try to be involved in interviews with parties prior to charges being laid.[4]

  1. Dix v Canada (A.G.), 2002 ABQB 580 (CanLII) - fined $200,000 to crown
  2. See Marshall Inquiry http://www.gov.ns.ca/just/marshall_inquiry/
  3. see Dix v Canada (Attorney General), 2002 ABQB 580 (CanLII)
    Proulx v Quebec (Attorney General), 2001 SCC 66 (CanLII), [2001] 3 SCR 9
  4. R v Regan, 2002 SCC 12, [2002] 1 SCR 297 at 61-70

Negotiations with Defence

The Crown is permitted to negotiate charges, by offering to drop certain charges that are supported by evidence, in exchange for guilty pleas to others. [1] By inference, it may be improper for the Crown to use charges unsupported by evidence as part of bargain. There is also a requirement that the defence be in possession of a "substantial" portion of the disclosure so that an informed decision can be made.[2]

A plea deal worked out between a particular Crown Attorney and defence counsel may have a binding effect on the Crown on other cases.[3]

  1. R v Babos, 2014 SCC 16 (CanLII) at para 59
  2. Babos at paras 59 to 60
  3. (UK) r v Mattu, [2009] EWCA Crim 1483 [1]

Judge Shopping

Judge shopping is where counsel attempts to influence which judge will hear a particular matter. Judge shopping by crown counsel is not acceptable as it suggests that the system is partial.[1]

  1. R v Scott, 1990 CanLII 27 (SCC), [1990] 3 SCR 979
    R v Regan, 2002 SCC 12 (CanLII), [2002] 1 SCR 297 at para 61
    R v Pilarinos 2001 BCSC 1690 (CanLII) at para 126 ("The principle is clear – judge shopping by Crown counsel is not acceptable in our system of justice. I will return to this issue when I discuss the evidence in this case.")

Witnesses

Crown's should not call witnesses that give evidence that they knew or should have known were lying.[1]

The Crown has an ethical obligation "to ensure that an accused person is not denied a fair trial as a result of their words or deeds". However, it is not to say that Crown counsel cannot "be forceful during closing argument" that may "jeopardize the accused's right to a fair trial".[2]

Obligation to Call Witnesses

  1. (US) United States v Freeman, 691 F.3d 893 (7th Cir. 2012)
    Testimonial Evidence
  2. R v Joyce, 1998 CanLII 12216 (NB CA) at p. 10

Preparation

Guidelines on the preparation of witnesses by crown include:[1]

  • Counsel should not discuss evidence with witnesses collectively
  • It witnesses memory should be exhausted through questioning before any references are made to conflicting evidence
  • Witnesses recollection should be recorded by counsel. Sometimes it should be done in the presence of a third-party or police officer.
  • Question should not be suggestive

Inappropriate preparation and communication with witnesses may contaminate the residence and produce a mistrial.[2]

  1. R v Spence, 2011 ONSC 2406 (CanLII)
  2. R v Spence, ibid.

Crown Undertakings

Agreements made by a Crown Attorney is binding upon the Attorney General. Their word is to be relied upon. Thus, if a subsequent Crown were to repudiate an agreement could be an abuse of process. [1]

  1. Aucoin v Nova Scotia (Attorney General) (1990) 94 N.S.R. (2d) 205(*no link) -- first crown agrees to withdraw charges, attorney general directs charges to proceed
    R v Hardick [1990] NSJ No. 305(*no link) - charges stayed

Abuse of Process

See also: Abuse of Process and Abuse of Process by Crown Counsel

Intervening Crowns

Intervention by the Crown in a collateral case is to be done "sparingly" or "rarely".[1] Granting intervener status may result in unfairness or appearance of unfairness without adding much to the content of the submissions.[2]

  1. R v Mayers, 2011 BCCA 268 (CanLII), at para 5 - concerning intervening in sentence appeal
    R v Osolin, 1993 CanLII 87 (SCC), [1993] 2 SCR 313 ("The discretion to allow interventions in criminal appeals has been exercised sparingly by this Court.")
  2. Mayers

Conduct in Trial

Theory of the Case
A Crown does not need to "particularize" as to the manner in which a crime is alleged to have been committed.[1] There is some "fluidity" allowed to the Crown chancing the theory "to accommodate changes in the evidence", including changes arising from the accused testifying.[2]

The Crown is not obliged to prove "particulars" that are given orally at the opening of a trial.[3]

A mistrial can be found where the Crown, at the end of its case, stays the charges against a co-accused, effectively changing its theory of the case.[4]

  1. R v Heaton, 2014 SKCA 140 (CanLII), at para 22
  2. Heaton at para 22
  3. Heaton at para 23
  4. R v White, 2009 BCSC 1838 (CanLII)

See Also

Related

Other Parties

Other Sources