View source for Role of the Crown

{{fr|Rôle_de_la_Couronne}}
{{Currency2|January|2024}}
{{LevelZero}}{{HeaderParties}}

==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.<ref>
{{CanLIIRP|Catagas|g9w67|1977 CanLII 1636 (MB CA)|38 CCC (2d) 296}}{{perMBCA|Freedman CJ}}{{atL|g9w67|2}}<Br>
</ref>

Both Crown and defence have a "responsibility in providing relevant case law to assist the court." <ref>
{{CanLIIRP|Adams|2f77n|2011 NLCA 3 (CanLII)|267 CCC (3d) 155}}{{perNLCA|Welsh JA}}
</ref>

; Prosecuting Crown as Judicial Office
The role of the prosecuting Crown is "quasi-judicial." <ref>
{{CanLIIRP|Bain|1fsft|1992 CanLII 111 (SCC)|[1992] 1 SCR 91}}{{perSCC-H|Stevenson J}}<br>
{{CanLIIR|Boucher|1nlk7|1954 CanLII 3 (SCC)|[1955] S.C.R. 16}}<br>
{{CanLIIRP|Cook|1fr1f|1997 CanLII 392 (SCC)|[1997] 1 SCR 1113}}<br>
{{CanLIIRP|Babos and Piccirilli|g36g4|2014 SCC 16 (CanLII)|[2014] 1 SCR 309}}<br>
Henry v. British Columbia (Attorney General), 2015 SCC 24, [2015] 2 S.C.R. 214{{fix}}
</ref> 
It has been suggested that counsel ought to regard themselves as "part of the Court rather than as an advocate."<ref>
{{CanLIIRP|Nelles v Ontario|1ft2z|1989 CanLII 77 (SCC)|[1989] 2 SCR 170}} at 580 (SCR)<br>
{{Supra1|El-Ajami}}{{AtL||36}}</ref>

Nevertheless, prosecutions are to be undertaken with "earnestness and vigour."<ref>
''Berger v US'' 295 US 78 (1935)<br>
{{supra1|Bain}} ("[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.")
</ref>

; 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 in some form or another to "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."<ref>
* NL [https://lsnl.ca/wp-content/uploads/2013/07/Code-of-Professional-Conduct-Jan-2013.pdf]: Rule 5.1-3
* NS [https://nsbs.org/wp-content/uploads/2019/11/CodeofProfessionalConduct.pdf]: Rule 5.1
* NB [http://lawsociety-barreau.nb.ca/uploads/forms/Code_of_Professional_Conduct.pdf]: Rule 5.1-3
* PEI [https://lawsocietypei.ca/media/for-lawyers/regulation/Professional%20Code%20of%20Conduct.pdf]: Rule 5.1-3
* ON [https://lso.ca/about-lso/legislation-rules/rules-of-professional-conduct]: Rule 5.1-3
* MB [https://lawsociety.mb.ca/wp-content/uploads/2019/11/Chapter-5-ENG-Code-of-Professional-Conduct-2020-02-05.pdf]: Rule 5.1-3
* SK [https://www.lawsociety.sk.ca/media/395633/codeofconduct13dec2019.pdf]: 5.1-3
* AB [https://dvbat5idxh7ib.cloudfront.net/wp-content/uploads/2017/01/14211909/Code.pdf]: Rule 5.1
* BC [https://www.lawsociety.bc.ca/support-and-resources-for-lawyers/act-rules-and-code/code-of-professional-conduct-for-british-columbia/]: Rule 5.1-3
</ref>

; Discretion
The prosecutor "always has a discretion in prosecuting criminals to the full extent of the law."<ref>
{{CanLIIRP|Lyons|1ftlw|1987 CanLII 25 (SCC)|[1987] 2 SCR 309}}{{perSCC|La Forest J}}{{atL|1ftlw|64}}<br>
</ref>

; 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.<ref>
{{CanLIIRPC|Picha v Dolan|24t0j|2009 BCCA 336 (CanLII)|308 DLR (4th) 614}}{{TheCourtBCCA}}</ref> 
However, a subpoena to attend a commission inquiry to explain their actions will be enforceable.<ref>
{{CanLIIRPC|Attorney General v Davies|24t0k|2009 BCCA 337 (CanLII)|308 DLR (4th) 577}}{{TheCourtBCCA}}</ref>

; Reviewability of Advice
The Crown's advice on the form charges cannot be reviewable except as a possible abuse of process.<ref>
{{CanLIIRP|Ghavami|28jx6|2010 BCCA 126 (CanLII)|253 CCC (3d) 74}}{{perBCCA|Donald and Huddart JJ}}</ref>

; Duties in Handling of Multiple Charges
The powers of the prosecutors include the "power to charge multiple offences."<ref>
{{CanLIIRPC|Nelles v Ontario|1ft2z|1989 CanLII 77 (SCC)|[1989] 2 SCR 170}}{{perSCC|Lamer J}}{{atL|1ft2z|40}}<br>
</ref>

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."<ref>
{{CanLIIRP|Simon|hv0g5|1979 CanLII 2997 (ON CA)|45 CCC (2d) 510 (ONCA)}}{{perONCA-H|Martin JA}}{{atp|514}}<br>
</ref>

; History
Prior to 1879, most prosecutions in England were brought to the court privately.<ref>
{{CanLIIRPC|Krieger v Law Society of Alberta|51rs|2002 SCC 65 (CanLII)|[2002] 3 SCR 372}}{{atL|51rs|25}}
</ref>The powers of the Attorney General concerns mainly initiaiting, managing and terminating prosecutions.<Ref>
{{ibid1|Krieger}}{{atL|51rs|25}}
</ref>

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.<ref>
{{supra1|Krieger}}{{atL|51rs|24}}<br>
{{CanLIIRPC|Regina v Pelletier|g1c44|1974 CanLII 596 (ON CA)|18 CCC (2d) 516}} citing ''Wilkes''<br>
{{UKCase|Wilkes v The King| (1768), Wilm. 322, 97 E.R. 123}} per Wilmot LCJ<br>
</ref>

{{Reflist|2}}

==Definition of Crown, Prosecutor and Attorney General==
* [[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."<ref>
{{CanLIIRx|Desjardin|j0r2f|2019 ABCA 215 (CanLII)}}{{TheCourtABCA}}{{atL|j0r2f|11}}
{{CanLIIRP|Chamandy|g18m3|1934 CanLII 130 (ON CA)|61 CCC 224}}{{perONCA|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.")<br>
</ref>

The purpose of a prosecution can be seen as an investigation, without feeling or animus, with a single view to determine the truth.<ref>
{{ibid1|Chamandy}}("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.")
</ref>

{{reflist|2}}
===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."<ref>
{{CanLIIRPC|Ontario (Attorney General) v Clark|jfnmp|2021 SCC 18 (CanLII)|SCJ No 18}}{{perSCC-H|Abella J}} (8:1)
</ref>

; 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.<ref>
{{CanLIIRP|Boucher|1nlk7|1954 CanLII 3|, [1955] SCR 16}}{{perSCC|Locke J}}{{atL|1nlk7|26}}<br>
{{CanLIIRP|Power|1npls|1993 CanLII 3372 (NL CA)|81 CCC (3d) 1}}{{perNLCA|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")<br>
{{supra1|Chamandy}} ("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")<br>
{{CanLIIRP|Vallières|hv0p9|1969 CanLII 1000 (QC CA)|4 CCC 69}}{{perQCCA|Hyde JA}}<br>
{{CanLIIRP|Charest|1pjd0|1990 CanLII 3425 (QC CA)|57 CCC (3d) 312}}{{perQCCA|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"")
{{CanLIIRP|Ahmed|j0sp0|2019 SKCA 47 (CanLII)|10 WWR 99}}{{perSKCA|Barrington-Foote JA}}{{atL|j0sp0|28}} ("The Crown must bring forward evidence it considers credible that relates to the material facts")<Br>
</ref> 
The role is also characterized as one of ensuring that "justice is done."<Ref>
{{CanLIIRP|Stinchcombe|1fsgp|1991 CanLII 45 (SCC)|[1991] 3 SCR 326}}{{perSCC-H|Sopinka J}}{{Atp|333}}<br>
{{supra1|Ahmed}}{{atL|j0sp0|28}} ("The function of the prosecutor is not to secure a conviction, but to “ensure justice is done” ")<Br>
</ref>

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.<ref>
{{supra1|Ahmed}}{{atL|j0sp0|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...")<bR>
{{supra1|Stinchcombe}}{{atp|338}}
{{CanLIIRP|Harris|25cdz|2009 SKCA 96 (CanLII)|2 WWR 477}}{{perSKCA|Ricards JA}}{{atL|25cdz|42}}<br>
{{CanLIIRP|R v JV|j0116|1994 CanLII 5620 (QC CA)|91 CCC (3d) 284}}{{perQCCA|Lebel JA}}{{atL|j0116|8}}<br>
</ref>

A criminal proceeding is not a contest between a prosecution that seeks to convict and an accused seeking acquittal.<ref>
{{supra1|Chamandy}}("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.")
</ref>

; 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."<ref>
{{CanLIIRP|Proctor|1npk2|1992 CanLII 2763 (MB CA)|69 CCC (3d) 436}}{{perMBCA|Twaddle JA}}{{atL|1npk2|59}} and adopted in {{CanLIIRP|Trochym|1qbvh|2007 SCC 6 (CanLII)|[2007] 1 SCR 239}}{{perSCC|Deschamps J}}</ref>
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."<ref>
{{supra1|Trochym}}</ref> They should not be engaging in "[h]yperbole and overstatement."<ref>
R v Boudreau, 2021 ABPC 175 at para 107<br>
</ref>

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.<ref> 
{{supra1|Chamandy}}{{atp|227}}</ref>

; 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."<ref>
{{CanLIIRP|Cook|1fr1f|1997 CanLII 392 (SCC)|[1997] 1 SCR 1113}}{{perSCC|L’Heureux-Dubé J}}{{atL|1fr1f|21}}</ref>
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."<ref>
{{supra1|Charest}}<br>
{{CanLIIRP|Pisani|1twrm|1970 CanLII 30 (SCC)|1 CCC (2d) 477}}{{perSCC|Laskin J}}{{atp|478}}
</ref>

The use of rhetorical techniques to distort the evidence or to present misleading and highly prejudicial statements are inappropriate.<ref>
{{supra1|Trochym}} at 79</ref>

; 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.<ref>
{{CanLIIRPC|Miazga v Kvello Estate|26g27|2009 SCC 51 (CanLII)|[2009] 3 SCR 339}}{{perSCC|Charron J}}{{atsL|26g27|65| to 67}}</ref>

The Crown should not express any personal opinion of guilt or innocence.<ref>
{{supra1|Charest}} ("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)")<br>
{{supra1|Boucher}}{{perSCC|Locke J}}{{atp|273}}<br>
</ref>

; 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.<ref>
{{supra1|Miazga}}</ref>

; Duty to Recommend Penalties
Historically, the Crown Counsel was not responsible for making recommendations on penalty in a sentencing hearing.<ref>
{{UKCase|Butterwasser| (1948), 32 Cr. App. Reports 81}} at 87 (UK decision)<br>
{{CanLIIR-N|Lapierre|, [1976] NSJ 421, (NSCA)}}{{at-|32}} ("Crown counsel should never request a specific term of imprisonment and in this province it rarely happens that such is done.")<br>
</ref>

{{reflist|2}}

==Discretion of Crown==
* [[Prosecutorial Discretion]]

==Relationship with Police==
The crown must remain separate from the police. <ref>
{{CanLIIRPC|Dix v Canada (AG)|dwr|2002 ABQB 580 (CanLII)|1 WWR 436}}{{perABQB|Ritter J}} - fined $200,000 to crown</ref>
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."<ref>See Marshall Inquiry http://www.gov.ns.ca/just/marshall_inquiry/</ref>

A critical part of the Crown's independence is its independence from police.<Ref>
{{CanLIIRPC|Ontario (Attorney General) v Clark|jfnmp|2021 SCC 18 (CanLII)|456 DLR (4th) 361}}{{perSCC-H|Abella J}} (8:1){{atL|jfnmp|41}}
</ref>

The Crown can be liable for their part in giving advice to police during an investigation.<ref> 
see {{supra1|Dix v Canada (Attorney General)}}<br>
{{CanLIIRPC|Proulx v Quebec (Attorney General)|51zl|2001 SCC 66 (CanLII)|[2001] 3 SCR 9}}{{perSCC|Iacobucci and Binnie JJ}}<br>
</ref>

While it is acceptable, the Crown should not try to be involved in interviews with parties prior to charges being laid.<ref>
{{CanLIIRP|Regan|51v8|2002 SCC 12 (CanLII)|[2002] 1 SCR 297}}{{perSCC|LeBel J}} at 61-70</ref>

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.<ref>
{{supra1|Ontario (Attorney General) v Clark}}
</ref>

{{reflist|2}}

==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.<ref>
{{CanLIIRP|Hills|j8l7j|2020 ABCA 263 (CanLII)|2 WWR 31}}{{AtL|j8l7j|42}}<br>
''contra'' {{CanLIIRP|Stinchcombe|1fsgp|1991 CanLII 45 (SCC)|[1991] 3 SCR 326}}{{perSCC-H|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.")
</ref>

{{reflist|2}}
===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.
<ref>
{{CanLIIRP|Babos|g36g4|2014 SCC 16 (CanLII)|[2014] 1 SCR 309}}{{perSCC-H|Moldaver J}}{{atL|g36g4|59}}
</ref> 
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.<ref>
{{ibid1|Babos}}{{atsL|g36g4|59| to 60}}
</ref>

A plea deal worked out between a particular Crown Attorney and defence counsel may have a binding effect on the Crown on other cases.<ref>
{{UKCase|R v Mattu|, [2009] EWCA Crim 1483}} [http://www.bailii.org/ew/cases/EWCA/Crim/2009/1483.html] 
</ref>
{{reflist|2}}

==Relationship with the Courts==

; Concessions
Any concessions of law that are made by the Crown are non-binding on the Court.<ref>
{{CanLIIRP|Hills|j8l7j|2020 ABCA 263 (CanLII)|2 WWR 31}}{{perABCA|Antonio JA}}{{atL|j8l7j|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")<Br>
{{CanLIIRP|Silveira|1frk8|1995 CanLII 89 (SCC)|[1995] 2 SCR 297}}{{AtL|1frk8|100}}{{fix}}<br>
</ref>

Courts generally take a "dim view" to the Crown conceding constitutional cases given that they have "wide ramifications" to other parties. <Ref>
{{ibid1|Hill}}{{atL|j8l7j|29}} <Br>
{{CanLIIRPC|M v H|1fqm4|1999 CanLII 686 (SCC)|[1999] 2 SCR 3}}{{perSCC|Gothier J}} (dissent on separate issue){{atL|1fqm4|210}}<br>
</ref>

However, concessions of a factual nature or mixed fact and law involve tactical and strategic decisions are so are more likely to be honored.<ref>
{{supra1|Hill}}{{atL|j8l7j|30}}
</ref>

{{reflist|2}}
===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.
<ref>
{{CanLIIRC-N|Aucoin v Nova Scotia (Attorney General)| (1990) 94 NSR (2d) 205}} -- first crown agrees to withdraw charges, attorney general directs charges to proceed<br>
{{CanLIIR-N|Hardick|, [1990] NSJ No 305}} - charges stayed</ref>

{{reflist|2}}

===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.<ref>
{{CanLIIRP|Scott|1fsp3|1990 CanLII 27 (SCC)|[1990] 3 SCR 979}}{{perSCC|Cory J}}<br>
{{CanLIIRP|Regan|51v8|2002 SCC 12 (CanLII)|[2002] 1 SCR 297}}{{perSCC|LeBel J}}{{atL|51v8|61}}<br>
{{CanLIIRP|Pilarinos|4wkg|2001 BCSC 1690 (CanLII)|52 WCB (2d) 161}}{{perBCSC|Bennett J}}{{atL|4wkg|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.")</ref>

{{reflist|2}}

==Non-Appearance of Crown==
{{quotation2|
803<br>
{{removed|(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.
<br>
(5) to (8) [Repealed, {{LegHistory90s|1991, c. 43}}, s. 9]
<br>
R.S., {{LegHistory80s|1985, c. C-46}}, s. 803; {{LegHistory90s|1991, c. 43}}, s. 9; {{LegHistory90s|1994, c. 44}}, s. 79; {{LegHistory90s|1997, c. 18}}, s. 112; {{LegHistory00s|2008, c. 18}}, s. 45.
|{{CCCSec2|803}}
|{{NoteUp|803|4}}
}}

==Relationship with Witnesses==
Crown's should not call witnesses that give evidence that they knew or should have known were lying.<ref>
(US) ''United States v Freeman'', 691 F.3d 893 (7th Cir. 2012)<br>
[[Testimonial Evidence]]
</ref>

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."<ref>
{{CanLIIRP|Joyce|1l0p9|1998 CanLII 12216 (NB CA)|518 APR 1}}{{perNBCA|Drapeau JA}}{{atp|10}}<br>
</ref>

; Obligation to Call Witnesses
* see [[Prosecutorial_Discretion#Calling_Witnesses]]

{{reflist|2}}
===Preparation===
The Crown has a duty to properly prepare witnesses for testifying.<REf>
{{CanLIIR|Trought||2019 ONSC 1421 (CanLII)}}, at paras. 17-18<br>
{{CanLIIR|Liard||2013 ONSC 5457 (CanLII)}}, at para. 424
</ref>

Guidelines on the preparation of witnesses by crown include:<ref>
{{CanLIIRP|Spence|fl8t9|2011 ONSC 2406 (CanLII)|85 CR (6th) 72}}{{perONSC|Howden J}}<Br>
see also Ontario, The Commission on Proceedings Involving Guy Paul Morin (Toronto: Ontario Ministry of the Attorney General, 1998) pp. 36-37, 767-70</ref>
*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.<ref>
{{ibid1|Spence}}</ref>

There is no "fixed or invariable" rule to what would be appropriate as far as "alerting" witnesses to subjects raised on cross-examination.<Ref>
{{CanLIIRP|Mahmood||2011 ONCA 693 (CanLII)|107 OR (3d) 641}}{{perONCA-H|Watt JA}} at para 67
</ref>

{{reflist|2}}

==Abuse of Process==
{{seealso|Abuse of Process|Abuse of Process by Crown Counsel}}

==Intervening Crowns==
Intervention by the Crown in a collateral case is to be done "sparingly" or "rarely."<ref> 
{{CanLIIRP|Mayers|flsdr|2011 BCCA 268 (CanLII)|307 BCAC 68}}{{perBCCA|Saunders JA}}{{atL|flsdr|5}} - concerning intervening in sentence appeal<br>
{{CanLIIRP|Osolin|1fs2h|1993 CanLII 87 (SCC)|[1993] 2 SCR 313}}{{perSCC-H|Sopinka J}} ("The discretion to allow interventions in criminal appeals has been exercised sparingly by this Court.")
</ref> 
Granting intervener status may result in unfairness or appearance of unfairness without adding much to the content of the submissions.<ref>
{{supra1|Mayers}}</ref>

{{quotation2|
; When Attorney General does not stay proceedings
579.01 If the Attorney General intervenes in proceedings and does not stay them under section 579 {{AnnSec5|579}}, he or she may, without conducting the proceedings, call witnesses, examine and cross-examine witnesses, present evidence and make submissions.
<br>
{{LegHistory00s|2002, c. 13}}, s. 47.
{{Annotation}}
|{{CCCSec2|579.01}}
|{{NoteUp|579.01}}
}}

{{quotation2|
; 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 {{AnnSec5|579}} and 579.01 {{AnnSec5|579.01}} 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.

{{LegHistory90s|1994, c. 44}}, s. 60;
{{LegHistory10s|2019, c. 25}}, s. 265.
{{Annotation}}
|{{CCCSec2|579.1}}
|{{NoteUp|579.1|1|2}}
}}

{{reflist|2}}

==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.<ref>
{{CanLIIRP|Heaton|gft9g|2014 SKCA 140 (CanLII)|318 CCC (3d) 115}}{{perSKCA|Jackson JA}}{{atL|gft9g|22}}<br>
</ref>
There is some "fluidity" allowed to the Crown chancing the theory "to accommodate changes in the evidence", including changes arising from the accused testifying.<ref>
{{ibid1|Heaton}}{{atL|gft9g|22}}<br>
</ref>

The Crown is not obliged to prove "particulars" that are given orally at the opening of a trial.<ref>
{{ibid1|Heaton}}{{atL|gft9g|23}}<br>
</ref>

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.<ref>
{{CanLIIRx|White|27tgb|2009 BCSC 1838 (CanLII)}}{{perBCSC|Griffin J}}
</ref>

; 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.<ref>
{{CanLIIRx|Pawluk|hn8wm|2017 ONCA 863 (CanLII)}}{{perONCA|Paciocco JA}}{{atL|hn8wm|30}}<br>
{{CanLIIRP|Khawaja|2f041|2010 ONCA 862 (CanLII)|103 OR (3d) 321}}{{TheCourtONCA}} (3:0), aff’d [http://canlii.ca/t/fv831 2012 SCC 69] (CanLII), [2012] 3 SCR 555{{perSCC-H|McLachlin CJ}} (7:0)<Br>
</ref>

It may not necessarily be unfair for the Crown to change its theory of the case mid-trial to a lesser included offence.<ref>
{{ibid1|Pawluk}}{{atL|hn8wm|30}}
</ref>

; 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.<Ref>
{{CanLIIRP|IC|2765j|2010 ONSC 32 (CanLII)|249 CCC (3d) 510}}{{perONSC|R Clark J}}<br>
{{CanLIIRP|Jolivet|526w|2000 SCC 29 (CanLII)|[2000] 1 SCR 751}}{{perSCC-H|Binnie J}}{{atL|526w|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.")<br>
</ref>

Generally, it must be shown that the Crown had broken some agreement, undertaking or quid pro quo.<Ref>
{{CanLIIRx|Sparks and Ritch|j6bzl|2020 NSSC 116 (CanLII)}}{{perNSSC|Brothers J}}{{atL|j6bzl|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.")
</ref>

; Crown Duty to Correct the Record
All lawyers, including Crown, have a duty not to mislead the court.<ref>
{{CanLIIRP|Phillion|2b6bs|2010 ONSC 1604 (CanLII)|256 CCC (3d) 63}}{{perONSC|Ratushny J}}{{AtL|2b6bs|57}}
</ref>
That includes a duty not to keep silent in the face of a falsehood.<ref>
Mark M. Orkin, Legal Ethics: A Study of Professional Conduct (Toronto: Cartwright & Sons, 1957) at p. 27<Br>
{{Supra1|Phillion}}{{atL|2b6bs|57}}
</ref>

Crown has a duty to correct any evidence that they know or ought to know is false or misleading.<ref>
{{Supra1|Phillion}}{{atL|2b6bs|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. ")<br>
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<br>
</ref>

; Disqualification
Counsel can be disqualified from acting as Crown counsel where there is a loss of objectivity.<ref>
see R v Trang, 2002 ABQB 286 (CanLII) at para 27<br>
R v El-Ajami, 2023 ABKB 489 (CanLII)}}{{AtL|jzvpb|32}}
</ref>

Loss of objectivity can be inferred from admissions of bias or enmity, as well as actions and statements.<Ref>
El-Ajami at para 32<Br>
R v Cochrane 2013 ABQB 214 at para 13<br>
</ref>

{{reflist|2}}

==See Also==
* [[Crown Duty to Disclose]]
'''Related'''
* [[Definitions of Parties, Persons, Places and Organizations]]
* [[Remote Attendance in Court]]

'''Other Parties'''
* [[Accused in Court|Role of the Accused]] 
* [[Role of the Defence Counsel]]
* [[Role of the Trial Judge]] 
* [[Role of the Victim and Third Parties]]
* [[Role of Law Enforcement]]

'''Crown Policy Manuals'''
* [http://www.llbc.leg.bc.ca/public/pubdocs/bcdocs/411866/crown_counsel_policy_manual.pdf BC Crown Policy Manual]
* [https://justice.alberta.ca/programs_services/criminal_pros/Publications%20Library%20%20Criminal%20Prosecutions/CrownProsecutorsManual.aspx/DispForm.aspx Alberta Policy Manual]
* [https://novascotia.ca/pps/crown_manual.asp Nova Scotia Crown Policy Manual]