Role of the Crown

From Criminal Law Notebook

General Principles

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

Duty of Knowledge

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]

Prosecuting Crown as Judicial Office

The role of the prosecuting Crown is "quasi-judicial." [3] It has been suggested that counsel ought to regard themselves as "part of the Court rather than as an advocate."[4]

Nevertheless, prosecutions are to be undertaken with "earnestness and vigour".[5]

Code of Conduct

In each province, there is a code of conduct or code of ethics that applies to lawyers practicing in that province. These rules also contain additional obligations upon Crown counsel.

The province's rules for prosecutors are all largely uniform, requiring prosecutors under Rule 5.1-3: "When acting as a prosecutor, a lawyer must act for the public and the administration of justice resolutely and honourably within the limits of the law while treating the tribunal with candour, fairness, courtesy and respect."[6]

Discretion

The prosecutor "always has a discretion in prosecuting criminals to the full extent of the law".[7]

Subpoenas

The Crown may avoid a subpoena seeking them to provide evidence justifying the basis for exercising their discretion, such as in a coroner's inquest.[8] However, a subpoena to attend a commission inquiry to explain their actions will be enforceable.[9]

Reviewability of Advice

The Crown's advice on the form charges cannot be reviewable except as a possible abuse of process.[10]

Duties in Handling of Multiple Charges

The powers of the prosecutors include the "power to charge multiple offences".[11]

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".[12]

History

Prior to 1879, most prosecutions in England were brought to the court privately.[13]The powers of the Attorney General concerns mainly initiaiting, managing and terminating prosecutions.[14]

Historically the King was the guardian of the peace and governed the informations and indictments filed with the court. represents the Crown's suits against the accused and are in their control.[15]

  1. R v Catagas, 1977 CanLII 1636 (MB CA), 38 CCC (2d) 296, per Freedman CJ, at para 2
  2. R v Adams, 2011 NLCA 3 (CanLII), 267 CCC (3d) 155, per Welsh JA
  3. R v Bain, 1992 CanLII 111 (SCC), [1992] 1 SCR 91, per Stevenson J
    R v Boucher, 1954 CanLII 3 (SCC) R. v. Cook, 1997 CanLII 392 (SCC), [1997] 1 S.C.R. 1113
    R. v. Piccirilli, 2014 SCC 16, [2014] 1 S.C.R. 309
    R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309
    Henry v. British Columbia (Attorney General), 2015 SCC 24, [2015] 2 S.C.R. 214(complete citation pending)
  4. Nelles v Ontario, 1989 CanLII 77 (SCC), [1989] 2 SCR 170 at 580 (SCR)
    El-Ajami at para 36
  5. 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.")
  6. * NL [1]: Rule 5.1-3
    • NS [2]: Rule 5.1
    • NB [3]: Rule 5.1-3
    • PEI [4]: Rule 5.1-3
    • ON [5]: Rule 5.1-3
    • MB [6]: Rule 5.1-3
    • SK [7]: 5.1-3
    • AB [8]: Rule 5.1
    • BC [9]: Rule 5.1-3
  7. R v Lyons, 1987 CanLII 25 (SCC), [1987] 2 SCR 309, per La Forest J, at para 64
  8. Picha v Dolan, 2009 BCCA 336 (CanLII), 308 DLR (4th) 614, per curiam
  9. Attorney General v Davies, 2009 BCCA 337 (CanLII), 308 DLR (4th) 577, per curiam
  10. R v Ghavami, 2010 BCCA 126 (CanLII), 253 CCC (3d) 74, per Donald and Huddart JJ
  11. Nelles v Ontario, 1989 CanLII 77 (SCC), [1989] 2 SCR 170, per Lamer J, at para 40
  12. R v Simon, 1979 CanLII 2997 (ON CA), 45 CCC (2d) 510 (ONCA), per Martin JA, at p. 514
  13. Krieger v Law Society of Alberta, 2002 SCC 65 (CanLII), [2002] 3 SCR 372, at para 25
  14. Krieger, ibid., at para 25
  15. Krieger, supra, at para 24
    Regina v Pelletier, 1974 CanLII 596 (ON CA), 18 CCC (2d) 516 citing Wilkes
    Wilkes v The King (1768), Wilm. 322, 97 E.R. 123 (UK) per Wilmot LCJ

Definition of Crown, Prosecutor and Attorney General

Purpose of Prosecution

A prosecution is a "search for the truth within the confines of a process that provides for procedural and substantive fairness for the accused".[1]

The purpose of a prosecution can be seen as an investigation, without feeling or animus, with a single view to determine the truth.[2]

  1. R v Desjardin, 2019 ABCA 215 (CanLII), per curiam, at para 11 R v Chamandy, 1934 CanLII 130 (ON CA), 61 CCC 224, per Riddell JA ("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.")
  2. Chamandy, ibid.("It cannot be made too clear, that in our law, a criminal prosecution is not a contest between individuals, nor is it a contest between the Crown endeavouring to convict and the accused endeavouring to be acquitted; but it is an investigation that should be conducted without feeling or animus on the part of the prosecution, with the single view of determining the truth.")

Duties of Crown Counsel

The role of a prosecutor is to "assess whether a prosecution is in the public interest and, if so, to carry out that prosecution in accordance with the prosecutor’s duties to the administration of justice and the accused".[1]

Crown Role Not to Secure Conviction

The role of the Crown is not to secure convictions. Its role is to present to a trier of fact evidence that is considered credible and relevant to the alleged offence.[2] The role is also characterized as one of ensuring that "justice is done".[3]

The role of bringing forward relevant evidence does not oblige the Crown to call certain evidence. This choice is part of the Crown core discretion. Merely disclosing the existence of the evidence is generally sufficient to satsify this duty.[4]

A criminal proceeding is not a contest between a prosecution that seeks to convict and an accused seeking acquittal.[5]

Role Includes Promoting Justice

The Crown's role is to "promote the cause of justice" and not to persuade a trier of fact "to convict other than by reason".[6] The Crown's job includes seeking the truth. However, it does not mean seeking justice for a complainant.

Role Includes Presenting Evidence and Seeking Truth

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."[7] They should not be engaging in "[h]yperbole and overstatement".[8]

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.[9]

Crown May Advocate

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."[10] The Crown should "press fully and firmly every legitimate argument tending to establish guilt, but must be "accurate, fair and dispassionate in conducting the prosecution and in addressing the jury".[11]

The use of rhetorical techniques to distort the evidence or to present misleading and highly prejudicial statements are inappropriate.[12]

Personal Views of Guilt Not Relevant and Impermissible

It is not necessary for the Crown to personally believe in a person's guilt to proceed on charges.[13]

The Crown should not express any personal opinion of guilt or innocence.[14]

Decision to Prosecute

The decision to prosecute is solely in the authority of the crown and should only be reviewable in the clearest of cases.[15]

Duty to Recommend Penalties

Historically, the Crown Counsel was not responsible for making recommendations on penalty in a sentencing hearing.[16]

  1. Ontario (Attorney General) v Clark, 2021 SCC 18 (CanLII), SCJ No 18, per Abella J (8:1)
  2. R v Boucher, 1954 CanLII 3, , [1955] SCR 16, per Locke J, at para 26
    R v Power, 1993 CanLII 3372 (NL CA), 81 CCC (3d) 1, per Marshall JA (2:1) ("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")
    Chamandy, supra ("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.") and ("a criminal prosecution is not a contest between the State and the accused in which the State seeks a victory")
    R v Vallières, 1969 CanLII 1000 (QC CA), 4 CCC 69, per Hyde JA
    R v Charest, 1990 CanLII 3425 (QC CA), 57 CCC (3d) 312, per Fish JA ("Crown counsel's duty is not to obtain a conviction, but "to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime"") R v Ahmed, 2019 SKCA 47 (CanLII), 10 WWR 99, per Barrington-Foote JA, at para 28 ("The Crown must bring forward evidence it considers credible that relates to the material facts")
  3. R v Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 SCR 326, per Sopinka J, at p. 333
    Ahmed, supra, at para 28 ("The function of the prosecutor is not to secure a conviction, but to “ensure justice is done” ")
  4. Ahmed, supra, at para 28("...the Crown has the discretion to decide which witnesses will be called, and a court will not interfere with that discretion unless the Crown is influenced by some oblique motive: ... . Further, the duty to bring forward evidence may be satisfied by disclosing the material to the defence...")
    Stinchcombe, supra, at p. 338 R v Harris, 2009 SKCA 96 (CanLII), 2 WWR 477, per Ricards JA, at para 42
    R v R v JV, 1994 CanLII 5620 (QC CA), 91 CCC (3d) 284, per Lebel JA, at para 8
  5. Chamandy, supra("It cannot be made too clear, that in our law, a criminal prosecution is not a contest between individuals, nor is it a contest between the Crown endeavouring to convict and the accused endeavouring to be acquitted; but it is an investigation that should be conducted without feeling or animus on the part of the prosecution, with the single view of determining the truth.")
  6. R v Proctor, 1992 CanLII 2763 (MB CA), 69 CCC (3d) 436, per Twaddle JA, at para 59 and adopted in R v Trochym, 2007 SCC 6 (CanLII), [2007] 1 SCR 239, per Deschamps J
  7. Trochym, supra
  8. R v Boudreau, 2021 ABPC 175 at para 107
  9. Chamandy, supra, at p. 227
  10. R v Cook, 1997 CanLII 392 (SCC), [1997] 1 SCR 1113, per L’Heureux-Dubé J, at para 21
  11. Charest, supra
    R v Pisani, 1970 CanLII 30 (SCC), 1 CCC (2d) 477, per Laskin J, at p. 478
  12. Trochym, supra at 79
  13. Miazga v Kvello Estate, 2009 SCC 51 (CanLII), [2009] 3 SCR 339, per Charron J, at paras 65 to 67
  14. Charest, supra ("It is improper for Crown counsel to express his or her opinion as to the guilt or innocence of the accused(9) or as to the credibility of any witness.(10) Such expressions of opinion are objectionable not only because of their partisan nature, but also because they amount to testimony which likely would be inadmissible even if Crown counsel had been sworn as a witness.(11)")
    Boucher, supra, per Locke J, at p. 273
  15. Miazga, supra
  16. Butterwasser (1948), 32 Cr. App. Reports 81 (UK) at 87 (UK decision)
    R v Lapierre, [1976] NSJ 421, (NSCA)(*no CanLII links) , 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]

A critical part of the Crown's independence is its independence from police.[3]

The Crown can be liable for their part in giving advice to police during an investigation.[4]

While it is acceptable, the Crown should not try to be involved in interviews with parties prior to charges being laid.[5]

The Crown has no legal duties to the police on how they choose to conduct a prosecution. To a degree the law immunizes the Crown against allegation of misfeasance by police.[6]

  1. Dix v Canada (AG), 2002 ABQB 580 (CanLII), 1 WWR 436, per Ritter J - fined $200,000 to crown
  2. See Marshall Inquiry http://www.gov.ns.ca/just/marshall_inquiry/
  3. Ontario (Attorney General) v Clark, 2021 SCC 18 (CanLII), 456 DLR (4th) 361, per Abella J (8:1), at para 41
  4. see Dix v Canada (Attorney General), supra
    Proulx v Quebec (Attorney General), 2001 SCC 66 (CanLII), [2001] 3 SCR 9, per Iacobucci and Binnie JJ
  5. R v Regan, 2002 SCC 12 (CanLII), [2002] 1 SCR 297, per LeBel J at 61-70
  6. Ontario (Attorney General) v Clark, supra

Relationship with Defence Counsel

Despite the special status of Crown, it is still treated as being in an "adversarial role" to the accused in many respects.[1]

  1. R v Hills, 2020 ABCA 263 (CanLII), 2 WWR 31, at para 42
    contra R v Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 SCR 326, per Sopinka J ("The tradition of Crown counsel in this country in carrying out their role as "ministers of justice" and not as adversaries has generally been very high.")

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 a 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), [2014] 1 SCR 309, per Moldaver J, at para 59
  2. Babos, ibid., at paras 59 to 60
  3. R v Mattu , [2009] EWCA Crim 1483 (UK) [10]

Relationship with the Courts

Concessions

Any concessions of law that are made by the Crown are non-binding on the Court.[1]

Courts generally take a "dim view" to the Crown conceding constitutional cases given that they have "wide ramifications" to other parties. [2]

However, concessions of a factual nature or mixed fact and law involve tactical and strategic decisions are so are more likely to be honored.[3]

  1. R v Hills, 2020 ABCA 263 (CanLII), 2 WWR 31, per Antonio JA, at para 29 ("If Crown counsel’s position was a concession, it does not bind this Court as to its legal content or effect. “As has been noted on numerous occasions, concessions of law are not binding on courts")
    R v Silveira, 1995 CanLII 89 (SCC), [1995] 2 SCR 297, at para 100(complete citation pending)
  2. Hill, ibid., at para 29
    M v H, 1999 CanLII 686 (SCC), [1999] 2 SCR 3, per Gothier J (dissent on separate issue), at para 210
  3. Hill, supra, at para 30

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 NSR (2d) 205(*no CanLII links) -- first crown agrees to withdraw charges, attorney general directs charges to proceed
    R v Hardick, [1990] NSJ No 305(*no CanLII links) - charges stayed

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, per Cory J
    R v Regan, 2002 SCC 12 (CanLII), [2002] 1 SCR 297, per LeBel J, at para 61
    R v Pilarinos, 2001 BCSC 1690 (CanLII), 52 WCB (2d) 161, per Bennett J, 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.")

Non-Appearance of Crown

803
[omitted (1), (2) and (3)]

Non-appearance of prosecutor

(4) Where the prosecutor does not appear at the time and place appointed for the resumption of an adjourned trial, the summary conviction court may dismiss the information with or without costs.
(5) to (8) [Repealed, 1991, c. 43, s. 9]
R.S., 1985, c. C-46, s. 803; 1991, c. 43, s. 9; 1994, c. 44, s. 79; 1997, c. 18, s. 112; 2008, c. 18, s. 45.

CCC (CanLII), (DOJ)


Note up: 803(4)

Relationship with 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), 518 APR 1, per Drapeau JA, 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), 85 CR (6th) 72, per Howden J
  2. Spence, ibid.

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]

When Attorney General does not stay proceedings

579.01 If the Attorney General intervenes in proceedings and does not stay them under section 579 [stay of proceedings by crown], he or she may, without conducting the proceedings, call witnesses, examine and cross-examine witnesses, present evidence and make submissions.
2002, c. 13, s. 47.
[annotation(s) added]

CCC (CanLII), (DOJ)


Note up: 579.01

Intervention by Attorney General of Canada or Director of Public Prosecutions

579.1 (1) The Attorney General of Canada or the Director of Public Prosecutions appointed under subsection 3(1) of the Director of Public Prosecutions Act, or counsel instructed by him or her for that purpose, may intervene in proceedings in the following circumstances:

(a) the proceedings are in respect of an offence for which he or she has the power to commence or to conduct a proceeding;
(b) the proceedings have not been instituted by an Attorney General;
(c) judgment has not been rendered; and
(d) the Attorney General of the province in which the proceedings are taken has not intervened.
Sections 579 and 579.01 to apply

(2) Sections 579 [stay of proceedings by crown] and 579.01 [Attorney General may intervene in certain proceedings] apply, with any modifications that the circumstances require, to proceedings in which the Attorney General of Canada or the Director of Public Prosecutions intervenes under this section.

1994, c. 44, s. 60; 2019, c. 25, s. 265.
[annotation(s) added]

CCC (CanLII), (DOJ)


Note up: 579.1(1) and (2)

  1. R v Mayers, 2011 BCCA 268 (CanLII), 307 BCAC 68, per Saunders JA, at para 5 - concerning intervening in sentence appeal
    R v Osolin, 1993 CanLII 87 (SCC), [1993] 2 SCR 313, per Sopinka J ("The discretion to allow interventions in criminal appeals has been exercised sparingly by this Court.")
  2. Mayers, supra

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]

Changing Theory Mid-trial

The Crown can generally change its theory to conform with the evidence that comes out in trial as long as it is not unfair.[5]

It may not necessarily be unfair for the Crown to change its theory of the case mid-trial to a lesser included offence.[6]

Crown Changing Position

The Crown can change its trial strategy at its discretion as the trial unfolds unless the defence can show that it is abusive, had an "oblique motive" or prejudicial.[7]

Generally, it must be shown that the Crown had broken some agreement, undertaking or quid pro quo.[8]

Crown Duty to Correct the Record

All lawyers, including Crown, have a duty not to mislead the court.[9] That includes a duty not to keep silent in the face of a falsehood.[10]

Crown has a duty to correct any evidence that they know or ought to know is false or misleading.[11]

Disqualification

Counsel can be disqualified from acting as Crown counsel where there is a loss of objectivity.[12]

Loss of objectivity can be inferred from admissions of bias or enmity, as well as actions and statements.[13]

  1. R v Heaton, 2014 SKCA 140 (CanLII), 318 CCC (3d) 115, per Jackson JA, at para 22
  2. Heaton, ibid., at para 22
  3. Heaton, ibid., at para 23
  4. R v White, 2009 BCSC 1838 (CanLII), per Griffin J
  5. R v Pawluk, 2017 ONCA 863 (CanLII), per Paciocco JA, at para 30
    R v Khawaja, 2010 ONCA 862 (CanLII), 103 OR (3d) 321, per curiam (3:0), aff’d 2012 SCC 69 (CanLII), [2012] 3 SCR 555, per McLachlin CJ (7:0)
  6. Pawluk, ibid., at para 30
  7. R v IC, 2010 ONSC 32 (CanLII), 249 CCC (3d) 510, per R Clark J
    R v Jolivet, 2000 SCC 29 (CanLII), [2000] 1 SCR 751, per Binnie J, at para 21 ({"This is the stuff of everyday trial tactics and hardly rises to the level of an “oblique motive”. Crown counsel is entitled to have a trial strategy and to modify it as the trial unfolds, provided that the modification does not result in unfairness to the accused. Where an element of prejudice results (as it did here), remedial action is appropriate.")
  8. R v Sparks and Ritch, 2020 NSSC 116 (CanLII), per Brothers J, at para 24 ("While there are times the Crown will not be permitted to change its position when the defence has reasonably relied on that position, this is not such a case. Absence some quid pro quo, agreement or an undertaking that the Crown intends to be bound by, the Crown is entitled to change its strategy as the evidence unfolds.")
  9. R v Phillion, 2010 ONSC 1604 (CanLII), 256 CCC (3d) 63, per Ratushny J, at para 57
  10. Mark M. Orkin, Legal Ethics: A Study of Professional Conduct (Toronto: Cartwright & Sons, 1957) at p. 27
    Phillion, supra, at para 57
  11. Phillion, supra, at para 58 ("In the criminal context, the Honourable Patrick Lesage has recently re-stated this basic principle, that Crown counsel has a duty to correct Crown evidence that he/she knows or ought to have known to be false or misleading. ")
    Hon. Patrick J. LeSage, Report of the Commission of Inquiry Into Certain Aspects of the Trial and Conviction of James Driskell (2007) at p. 105
  12. see R v Trang, 2002 ABQB 286 (CanLII) at para 27
    R v El-Ajami, 2023 ABKB 489 (CanLII)}}, at para 32
  13. El-Ajami at para 32
    R v Cochrane 2013 ABQB 214 at para 13

See Also

Related

Other Parties

Crown Policy Manuals