Prosecutorial Discretion: Difference between revisions

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[[Fr:Pouvoir_discrétionnaire_en_matière_de_poursuites]]
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==General Principles==
==General Principles==
<!-- -->
{{seealso|Role of the Crown}}
{{seealso|Role of the Crown}}


Prosecutorial discretion refers to the "discretion exercised by the Attorney-General in matters within his authority in relation to the prosecution of criminal offences”.<ref>
Prosecutorial discretion refers to the "discretion exercised by the Attorney-General in matters within his authority in relation to the prosecution of criminal offences.”<ref>
''R v Anderson'', [http://canlii.ca/t/g784t 2014 SCC 41] (CanLII){{perSCC|Moldaver J}} at para 44<br>
{{CanLIIRP|Anderson|g784t|2014 SCC 41 (CanLII)|[2014] 2 SCR 167}}{{perSCC-H|Moldaver J}}{{atL|g784t|44}}<br>
</ref>
</ref>
It encompasses all "decisions regarding the nature and extent of the prosecution and the Attorney General's participation in it".<ref>
It encompasses all "decisions regarding the nature and extent of the prosecution and the Attorney General's participation in it."<ref>
{{ibid1|Anderson}}{{at|44}}<br>
{{ibid1|Anderson}}{{atL|g784t|44}}<br>
Krieger v Law Society of Alberta, [http://canlii.ca/t/51rs 2002 SCC 65] (CanLII), [2002] 3 SCR 372{{perSCC|Iacobucci and Major JJ}{{at|47}}<br>
{{CanLIIRPC|Krieger v Law Society of Alberta|51rs|2002 SCC 65 (CanLII)|[2002] 3 SCR 372}}{{perSCC|Iacobucci and Major JJ}}{{atL|51rs|47}}<br>
</ref>  
</ref>  
The prosecution is empowered with discretionary authority over many decisions that have limited ability to be reviewed.  
The prosecution is empowered with discretionary authority over many decisions that have limited ability to be reviewed.  


The discretion has its origins from the "Royal Prerogative of Justice and its enforcement in maintaining the King's Peace".<ref>
This discretion "accord[s]" with and sourced from the principles of fundamental justice.<Ref>
''R v Smythe'' (1971), [http://canlii.ca/t/1vkpf 1971 CanLII 30] (ON CA), 3 CCC(2d) 97 (Ont. C.A.){{perONCA|Wells CJHC}}, at p. 105 and p. 109 aff'd at [http://canlii.ca/t/1twrk 1971 CanLII 831] (SCC){{perSCC|Fauteux CJ}}<br>
{{CanLIIRPC|Sriskandarajah v. United States of America|fv82z|2012 SCC 70 (CanLII)|[2012] 3 SCR 609}}{{perSCC|McLachlin CJ}}{{atL|fv82z|27}}
{{supra1|Krieger}}{{atL|51rs|32}}
</ref>
It is an "indisputable device for the effective enforcement of the criminal law."<ref>
{{ibid1|Sriskandarajah}}{{atL|fv82z|27}}
</ref>
 
; History
The discretion has its origins from the "Royal Prerogative of Justice and its enforcement in maintaining the King's Peace."<ref>
{{CanLIIRP|Smythe|1vkpf|1971 CanLII 30 (ON CA)|3 CCC (2d) 97}}{{perONCA|Wells CJHC}}{{atps|105 and 109}} aff'd at [http://canlii.ca/t/1twrk 1971 CanLII 831] (SCC){{perSCC-H|Fauteux CJ}}<br>
</ref>
</ref>


The doctrine of prosecutorial discretion is not reviewable by courts except only on proof of abuse of process".<ref>
; Review
''R v Nixon'', [http://canlii.ca/t/flzgm 2011 SCC 34] (CanLII), [2011] 2 SCR 566{{perSCC|Charron J}} at paras 20, 63 to 64<Br>
The doctrine of prosecutorial discretion is not reviewable by courts except only on proof of abuse of process."<ref>
{{CanLIIRP|Nixon|flzgm|2011 SCC 34 (CanLII)|[2011] 2 SCR 566}}{{perSCC|Charron J}}{{atsL|flzgm|20|}}, {{atsL-np|flzgm|63| to 64}}<Br>
</ref>
</ref>


; Application
Discretion must be exercised "in relation to a specific case" and not simply a blanket choice of what laws to enforce.<ref>
Discretion must be exercised "in relation to a specific case" and not simply a blanket choice of what laws to enforce.<ref>
''R v Catagas'', [http://canlii.ca/t/g9w67 1977 CanLII 1636] (MB CA), [1978] 38 CCC (2d) 296{{perMBCA|Freedman CJM}}, at p. 301<Br>
{{CanLIIRP|Catagas|g9w67|1977 CanLII 1636 (MB CA)|[1978] 38 CCC (2d) 296}}{{perMBCA|Freedman CJM}}{{atp|301}}<Br>
</ref>
</ref>


Courts should be reluctant to interfere with prosecutorial discretion as they must respect the division of powers.<ref>
Courts should be reluctant to interfere with prosecutorial discretion as they must respect the division of powers.<ref>
''R v Power'', [http://canlii.ca/t/1frvh 1994 CanLII 126] (SCC), [1994] 1 SCR 601{{perSCC|L'Heureux‑Dubé J}}
{{CanLIIRP|Power|1frvh|1994 CanLII 126 (SCC)|[1994] 1 SCR 601}}{{perSCC|L'Heureux‑Dubé J}}
("courts have been extremely reluctant to interfere with prosecutorial discretion is clear from the case law.  They have been so as a matter of principle based on the doctrine of separation of powers ...")<br>
("courts have been extremely reluctant to interfere with prosecutorial discretion is clear from the case law.  They have been so as a matter of principle based on the doctrine of separation of powers ...")<br>
see also ''R v Cook'', [http://canlii.ca/t/1fr1f 1997 CanLII 392] (SCC), [1997] 1 SCR 1113{{perSCC|L’Heureux‑Dubé J}}<br>
see also {{CanLIIRP|Cook|1fr1f|1997 CanLII 392 (SCC)|[1997] 1 SCR 1113}}{{perSCC|L’Heureux‑Dubé J}}<br>
</ref>
</ref>


Discretion is essential to keep the system from becoming "unworkably complex and rigid."<ref>
Discretion is essential to keep the system from becoming "unworkably complex and rigid."<ref>
''R v Beare'', [1988] 2 SCR 387, [http://canlii.ca/t/1jbbw 1988 CanLII 126] (SCC){{perSCC|La Forest J}} at p.410-411</ref>
{{CanLIIRP|Beare|1jbbw|1988 CanLII 126 (SCC)|[1988] 2 SCR 387}}{{perSCC|La Forest J}}{{atp|410-411}}</ref>


Courts should not be reviewing the rationale for each and every decision of the Crown, it would be virtually impossible to have judge made rules to regulate the considerations involved. It would also create a conflict with the judge effectively regulating a prosecution.<ref>
Courts should not be reviewing the rationale for each and every decision of the Crown, it would be virtually impossible to have judge made rules to regulate the considerations involved. It would also create a conflict with the judge effectively regulating a prosecution.<ref>
{{supra1|Power}} at pp. 626-627<br>
{{supra1|Power}}{{atps|626-627}}<br>
</ref>
</ref>


Line 43: Line 55:


While the Attorney-General may enact policies that limit discretion, they are often considered undesirable.<ref>
While the Attorney-General may enact policies that limit discretion, they are often considered undesirable.<ref>
e.g. R v K.(M.), (1992) 74 CCC (3d) 108, [http://canlii.ca/t/1npk4 1992 CanLII 2765] (MB CA){{perMBCA| O'Sullivan JA}} at p. 110 - commenting on "zero-tolerance" policy on prosecution</ref>
e.g. {{CanLIIRP|K(M)|1npk4|1992 CanLII 2765 (MB CA)|74 CCC (3d) 108}}{{perMBCA| O'Sullivan JA}}{{Atp|110}} - commenting on "zero-tolerance" policy on prosecution</ref>


Core matters of prosecutorial discretion cannot be reviewed except for abuse of process.  
Core matters of prosecutorial discretion cannot be reviewed except for abuse of process.  


The conduct can be reviewed where the conduct of the Crown consituted a "marked and unacceptable departure from the reasonable standards expected of the prosecution"<ref>  
The conduct can be reviewed where the conduct of the Crown consituted a "marked and unacceptable departure from the reasonable standards expected of the prosecution"<ref>  
See R v 974649 Ontario Inc., [http://canlii.ca/t/51xh 2001 SCC 81] (CanLII), [2001] 3 SCR 575{{perSCC|McLachlin CJ}}<br>
See {{CanLIIRP|974649 Ontario Inc|51xh|2001 SCC 81 (CanLII)|[2001] 3 SCR 575}}{{perSCC-H|McLachlin CJ}}<br>
''R v LL'', [http://canlii.ca/t/gjqqr 2015 ABCA 222] (CanLII){{TheCourt}}{{at|10}}<br>
{{CanLIIRP|LL|gjqqr|2015 ABCA 222 (CanLII)|300 CCC (3d) 345}}{{TheCourtABCA}}{{atL|gjqqr|10}}<br>
</ref>
</ref>


Matters that have been found to be part of the core function of the Crown and so subject to prosecutorial discretion include:<ref>
Matters that have been found to be part of the core function of the Crown and so subject to prosecutorial discretion include:<ref>
''R v DN'', [http://canlii.ca/t/1hkj0 2004 NLCA 44] (CanLII){{perNLCA|Wells JA}} at para 17<br>
{{CanLIIRP|DN|1hkj0|2004 NLCA 44 (CanLII)|188 CCC (3d) 89}}{{perNLCA|Wells JA}}{{atL|1hkj0|17}}<br>
{{supra1|Krieger}}<br>
{{supra1|Krieger}}<br>
{{supra1|Power}} at para 41 to 43<br>
{{supra1|Power}}{{atsL|1frvh|41| to 43}}<br>
{{supra1|Beare}} at pp. 410-411<br>
{{supra1|Beare}}{{atps|410-411}}<br>
</ref>
</ref>
* the decision to prosecute  
* the decision to prosecute  
Line 65: Line 77:
* taking control of a private prosecution
* taking control of a private prosecution
* the decision to appeal
* the decision to appeal
* the decision to consent to an adjournment <ref>DN{{supra}} and Beare{{supra}} at para 51</ref>
* the decision to consent to an adjournment <ref>
* consenting or refusal to consent to re-election<ref>''R v Ng'', [http://canlii.ca/t/5bm4 2003 ABCA 1] (CanLII){{perABCA|Wittmann JA}}</ref>
{{supra1|DN}} and {{supra1|Beare}}{{atL|1jbbw|51}}</ref>
* notice to seek increased penalty<ref>''R v Gill'', [http://canlii.ca/t/fsrl0 2012 ONCA 607] (CanLII){{perONCA|Doherty JA}}</ref>
* consenting or refusal to consent to re-election<ref>
{{CanLIIRP|Ng|5bm4|2003 ABCA 1 (CanLII)|173 CCC (3d) 349}}{{perABCA|Wittmann JA}}</ref>
* notice to seek increased penalty<ref>
{{CanLIIRP|Gill|fsrl0|2012 ONCA 607 (CanLII)|96 CR (6th) 172}}{{perONCA-H|Doherty JA}}</ref>


It is not constitutionally required that the Crown consider the aboriginal status of the accused before making decisions that will limit the judge's sentencing options.<ref>
It is not constitutionally required that the Crown consider the aboriginal status of the accused before making decisions that will limit the judge's sentencing options.<ref>
{{supra1|Anderson}}, at paras 29 to 33<br>
{{supra1|Anderson}}{{atsL|g784t|29| to 33}}<br>
</ref>
</ref>


; Constitutionality
; Constitutionality
The "existence of prosecutorial discretion does not offend the principles of fundamental justice".<ref>
The "existence of prosecutorial discretion does not offend the principles of fundamental justice."<ref>
{{supra1|Beare}} at para 56<br>
{{supra1|Beare}}{{atL|1jbbw|56}}<br>
''R v Lyons'', [1987] 2 SCR 309, [http://canlii.ca/t/1ftlw 1987 CanLII 25] (SCC){{perSCC|La Forest J}}, at p. 348<br>
{{CanLIIRP|Lyons|1ftlw|1987 CanLII 25 (SCC)|[1987] 2 SCR 309}}{{perSCC|La Forest J}}{{atp|348}}<br>
''R v Jones'', [http://canlii.ca/t/1ftqk 1986 CanLII 32] (SCC), [1986] 2 SCR 284{{perSCC|La Forest J}}, at 303-304<br>
{{CanLIIRP|Jones|1ftqk|1986 CanLII 32 (SCC)|[1986] 2 SCR 284}}{{perSCC|La Forest J}}{{atps|303-304}}<br>
</ref>
</ref>


Line 86: Line 101:


The Crown does not need to call any witnesses it considers to be unnecessary.<ref>
The Crown does not need to call any witnesses it considers to be unnecessary.<ref>
Lemay v The King, [http://canlii.ca/t/21v5b 1951 CanLII 27] (SCC), [1952] 1 SCR 232, at p. 241<br>  
{{CanLIIRPC|Lemay v The King|21v5b|1951 CanLII 27 (SCC)|[1952] 1 SCR 232}}{{fix}}{{atp|241}}<br>  
''R v Jolivet'', [http://canlii.ca/t/526w 2000 SCC 29] (CanLII), [2000] 1 SCR 751{{perSCC|Binnie J}}{{at|14}}
{{CanLIIRP|Jolivet|526w|2000 SCC 29 (CanLII)|[2000] 1 SCR 751}}{{perSCC-H|Binnie J}}{{atL|526w|14}}<br>
</ref> Likewise, the crown does not need to call unidentified witnesses or untrustworthy witnesses.<ref>{{ibid1|Jolivet}} at para 29</ref>
{{CanLIIRP|Ellis|fvkr6|2013 ONCA 9 (CanLII)|293 CCC (3d) 541}}{{perONCA-H|Watt JA}}{{atL|fvkr6|44}} ("As a matter of general principle, Crown counsel is under no obligation to call a witness whom the Crown considers is unnecessary to the Crown’s case...")
</ref>  
Likewise, the crown does not need to call unidentified witnesses or untrustworthy witnesses.<ref>
{{ibid1|Jolivet}}{{atL|526w|29}}</ref>


There is no obligation on the Crown to call any witnesses at all, short of it amounting to an abuse of process.<ref>
There is no obligation on the Crown to call any witnesses at all, short of it amounting to an abuse of process.<ref>
''R v Rezaei'', [http://canlii.ca/t/h36gx 2017 BCSC 611] (CanLII){{perBCSC|Jenkins J}}<br>
{{CanLIIRx|Rezaei|h36gx|2017 BCSC 611 (CanLII)}}{{perBCSC|Jenkins J}}<br>
''R v Cook'', [http://canlii.ca/t/1fr1f 1997 CanLII 392] (SCC), [1997] S.C.J. No. 2{{perSCC|L'Heureux-Dube J}}{{at|56}}<br>
{{CanLIIRP|Cook|1fr1f|1997 CanLII 392 (SCC)|[1997] SCJ No 2}}{{perSCC|L'Heureux-Dube J}}{{atL|1fr1f|56}}<br>
</ref>
</ref>


The decision to call a witness on a related subject after the Crown had determined the witness is otherwise unreliable can be acceptable in some circumstances.<ref>
The decision to call a witness on a related subject after the Crown had determined the witness is otherwise unreliable can be acceptable in some circumstances.<ref>
''R v LL'', [http://canlii.ca/t/gjqqr 2015 ABCA 222] (CanLII){{TheCourt}}<br>
{{CanLIIRP|LL|gjqqr|2015 ABCA 222 (CanLII)|300 CCC (3d) 345}}{{TheCourtABCA}}<br>
</ref>
</ref>


Line 105: Line 123:


The Crown can be liable for their part in giving advice to police during an investigation.<ref>  
The Crown can be liable for their part in giving advice to police during an investigation.<ref>  
see Dix v Canada (Attorney General), [http://canlii.ca/t/dwr 2002 ABQB 580] (CanLII){{perABQB|Ritter J}}<br>
see {{CanLIIRPC|Dix v Canada (Attorney General)|dwr|2002 ABQB 580 (CanLII)|96 CRR (2d) 1}}{{perABQB|Ritter J}}<br>
Proulx v Quebec (Attorney General), [http://canlii.ca/t/51zl 2001 SCC 66] (CanLII), [2001] 3 SCR 9{{perSCC|Iacobucci and Binnie JJ}}<br>
{{CanLIIRPC|Proulx v Quebec (Attorney General)|51zl|2001 SCC 66 (CanLII)|[2001] 3 SCR 9}}{{perSCC|Iacobucci and Binnie JJ}}<br>
</ref>
</ref>


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


{{reflist|2}}
{{reflist|2}}


==Evaluating Whether to Proceed==
==Evaluating Whether to Prosecute (Charge Screening)==


Most prosecution offices are guided by Crown Policy manuals requirements that there be a "reasonable prospect of conviction" and there is a "public interest" in the proceeding.<ref>
Most prosecution offices are guided by Crown Policy manuals requirements that there be a "reasonable prospect of conviction"<ref>Some provinces use difference standards such as "realistic prospects of conviction" (NS) or "substantial likelihood" (BC)</ref> and there is a "public interest" in the proceeding.<ref>
Miazga v Kvello Estate, [2009] 3 SCR 339, [http://canlii.ca/t/26g27 2009 SCC 51] (CanLII){{perSCC|Charron J}}{{at|64}}
{{CanLIIRPC|Miazga v Kvello Estate|26g27|2009 SCC 51 (CanLII)|[2009] 3 SCR 339}}{{perSCC|Charron J}}{{atL|26g27|64}}
</ref>
</ref>


One cannot evaluate the decisions of the Crown to proceed retroactively. The context of what was known at the time.<ref>
One cannot evaluate the decisions of the Crown to proceed retroactively. The context of what was known at the time.<ref>
{{ibid1|Miazga v Kvello Estate}} at para 76<br>
{{ibid1|Miazga v Kvello Estate}}{{atL|26g27|76}}<br>
</ref>
</ref>


Considerations on the exercise of discretion must take into account the interest of the individual and the public interest.<ref>
Considerations on the exercise of discretion must take into account the interest of the individual and the public interest.<ref>
''R v Harrigan and Graham'' (1975), 33 C.R.N.S. 60 (Ont. C.A.){{NOCANLII}}{{perONCA|Henry J}}, stated, at p. 69 ("In exercising these powers, which vitally concern the right and liberty of the indi­vidual, he must take into account not only the interest of the individual but also what the public interest requires.")<Br>
{{CanLIIR-N|Harrigan and Graham| (1975), 33 CRNS 60}}{{perONCA|Henry J}}, stated{{Atp|69}} ("In exercising these powers, which vitally concern the right and liberty of the indi­vidual, he must take into account not only the interest of the individual but also what the public interest requires.")<Br>
''R v Kenny'', [http://canlii.ca/t/1p8vw 1991 CanLII 2738] (NL SC){{perNLSC|Barry J}}
{{CanLIIRP|Kenny|1p8vw|1991 CanLII 2738 (NL SC)|68 CCC (3d) 36}}{{perNLSC|Barry J}}
</ref>
</ref>


Re-evaluation of proceedings can be based on aspects that come to light at trial:<ref> {{supra1|Miazga v Kvello Estate}}{{at|76}}</ref>
Re-evaluation of proceedings can be based on aspects that come to light at trial:<ref>  
{{supra1|Miazga v Kvello Estate}}{{atL|26g27|76}}</ref>
* witnesses may not testify in accordance with their earlier statements;  
* witnesses may not testify in accordance with their earlier statements;  
* weaknesses in the evidence may be revealed during cross-examination;  
* weaknesses in the evidence may be revealed during cross-examination;  
* scientific evidence may be proved faulty; or  
* scientific evidence may be proved faulty; or  
* defence evidence may shed an entirely different light on the circumstances as they were known at the time process was initiated.
* defence evidence may shed an entirely different light on the circumstances as they were known at the time process was initiated.
; Province's Policy
* [https://novascotia.ca/pps/publications/ca_manual/ProsecutionPolicies/DecisionToProsecute.pdf Nova Scotia]
* [https://www.ontario.ca/document/crown-prosecution-manual/d-3-charge-screening Ontario]
* [https://open.alberta.ca/dataset/0e128f8d-6aa1-433f-bb7f-f9fc299b331d/resource/fba50a35-6454-4932-9bf6-0067e776d601/download/2017-triage-protocol.pdf Alberta]
* [https://www2.gov.bc.ca/assets/gov/law-crime-and-justice/criminal-justice/prosecution-service/crown-counsel-policy-manual/cha-1.pdf British Columbia] [https://www2.gov.bc.ca/assets/gov/law-crime-and-justice/criminal-justice/prosecution-service/reports-publications/2012-bc-charge-assessment-review-mccuaig-report.pdf]
* [https://www.justice.gc.ca/eng/rp-pr/cj-jp/fv-vf/har/part4.html Federal Crown]
{{reflist|2}}
===Prospects of Conviction===
"Reasonable Prospects of Conviction" (RPC) is an objective test.
RPC must be more than establishing a ''prima facie'' case against the accused.
RPC does not require that conviction is "likely".
The Crown is generally permitted consideration of the reliability of the complainant or witness. Determinations on the credibility of that person is often not appropriate and is done only exceptionally and on a limited basis.
{{reflist|2}}
=== Public Interest ===
The determination of public interest is primarily a function of the gravity of the offence and level of culpability of the offender.
While there are many elements that inform the gravity of the offence
The Crown considers the wishes of the alleged victim or complainant, including:
* the trauma caused by testifying and its effect on rehabilitation
* the social pressures upon the person from their involvement
* their willingness to cooperate and testify
There should also be careful consideration on whether it is possible to mitigate these issues through resources with the courts, victim services or police. For example, the use of testimonial aids may assist in the testimony. Real dangers to the person may be mitigated through police protections. Emotional trauma may be mitigated with victim services.
The Crown will usually not force a vulnerable victim to testify in a case where there is clear interest against doing so.


{{reflist|2}}
{{reflist|2}}
Line 139: Line 190:
==Crown Election==
==Crown Election==
{{seealso|Crown Election}}
{{seealso|Crown Election}}
The decision to proceed either by summary conviction or by imdictment is an "essential component of the fair and efficient operation of the criminal justice system".<ref>
The decision to proceed either by summary conviction or by imdictment is an "essential component of the fair and efficient operation of the criminal justice system."<ref>
''R v Nur'', [http://canlii.ca/t/g22fg 2013 ONCA 677] (CanLII){{perONCA|Doherty JA}}, at para. 190, appealed to SCC on other issues at [http://canlii.ca/t/gh5ms 2015 SCC 15] (CanLII){{perSCC|McLachlin CJ}}<Br>
{{CanLIIRP|Nur|g22fg|2013 ONCA 677 (CanLII)|303 CCC (3d) 474}}{{perONCA-H|Doherty JA}}{{atL|g22fg|190}}, appealed to SCC on other issues at [http://canlii.ca/t/gh5ms 2015 SCC 15] (CanLII){{perSCC-H|McLachlin CJ}}<Br>
</ref>  
</ref>  


Latest revision as of 07:03, 23 July 2024

This page was last substantively updated or reviewed December 2017. (Rev. # 95639)

General Principles

See also: Role of the Crown

Prosecutorial discretion refers to the "discretion exercised by the Attorney-General in matters within his authority in relation to the prosecution of criminal offences.”[1] It encompasses all "decisions regarding the nature and extent of the prosecution and the Attorney General's participation in it."[2] The prosecution is empowered with discretionary authority over many decisions that have limited ability to be reviewed.

This discretion "accord[s]" with and sourced from the principles of fundamental justice.[3] It is an "indisputable device for the effective enforcement of the criminal law."[4]

History

The discretion has its origins from the "Royal Prerogative of Justice and its enforcement in maintaining the King's Peace."[5]

Review

The doctrine of prosecutorial discretion is not reviewable by courts except only on proof of abuse of process."[6]

Application

Discretion must be exercised "in relation to a specific case" and not simply a blanket choice of what laws to enforce.[7]

Courts should be reluctant to interfere with prosecutorial discretion as they must respect the division of powers.[8]

Discretion is essential to keep the system from becoming "unworkably complex and rigid."[9]

Courts should not be reviewing the rationale for each and every decision of the Crown, it would be virtually impossible to have judge made rules to regulate the considerations involved. It would also create a conflict with the judge effectively regulating a prosecution.[10]

The court cannot direct the Crown on what offences they must prosecute.[11]

While the Attorney-General may enact policies that limit discretion, they are often considered undesirable.[12]

Core matters of prosecutorial discretion cannot be reviewed except for abuse of process.

The conduct can be reviewed where the conduct of the Crown consituted a "marked and unacceptable departure from the reasonable standards expected of the prosecution"[13]

Matters that have been found to be part of the core function of the Crown and so subject to prosecutorial discretion include:[14]

  • the decision to prosecute
  • the stay of a charge
  • the withdraw of a charge
  • the acceptance of a lesser charge
  • the Crown election
  • taking control of a private prosecution
  • the decision to appeal
  • the decision to consent to an adjournment [15]
  • consenting or refusal to consent to re-election[16]
  • notice to seek increased penalty[17]

It is not constitutionally required that the Crown consider the aboriginal status of the accused before making decisions that will limit the judge's sentencing options.[18]

Constitutionality

The "existence of prosecutorial discretion does not offend the principles of fundamental justice."[19]

  1. ↑ R v Anderson, 2014 SCC 41 (CanLII), [2014] 2 SCR 167, per Moldaver J, at para 44
  2. ↑ Anderson, ibid., at para 44
    Krieger v Law Society of Alberta, 2002 SCC 65 (CanLII), [2002] 3 SCR 372, per Iacobucci and Major JJ, at para 47
  3. ↑ Sriskandarajah v. United States of America, 2012 SCC 70 (CanLII), [2012] 3 SCR 609, per McLachlin CJ, at para 27 Krieger, supra, at para 32
  4. ↑ Sriskandarajah, ibid., at para 27
  5. ↑ R v Smythe, 1971 CanLII 30 (ON CA), 3 CCC (2d) 97, per Wells CJHC, at pp. 105 and 109 aff'd at 1971 CanLII 831 (SCC), per Fauteux CJ
  6. ↑ R v Nixon, 2011 SCC 34 (CanLII), [2011] 2 SCR 566, per Charron J, at paras 20, 63 to 64
  7. ↑ R v Catagas, 1977 CanLII 1636 (MB CA), [1978] 38 CCC (2d) 296, per Freedman CJM, at p. 301
  8. ↑ R v Power, 1994 CanLII 126 (SCC), [1994] 1 SCR 601, per L'Heureux‑Dubé J ("courts have been extremely reluctant to interfere with prosecutorial discretion is clear from the case law. They have been so as a matter of principle based on the doctrine of separation of powers ...")
    see also R v Cook, 1997 CanLII 392 (SCC), [1997] 1 SCR 1113, per L’Heureux‑Dubé J
  9. ↑ R v Beare, 1988 CanLII 126 (SCC), [1988] 2 SCR 387, per La Forest J, at p. 410-411
  10. ↑ Power, supra, at pp. 626-627
  11. ↑ Power, supra (“A judge does not have the authority to tell prosecutors which crimes to prosecute...”.)
  12. ↑ e.g. R v K(M), 1992 CanLII 2765 (MB CA), 74 CCC (3d) 108, per O'Sullivan JA, at p. 110 - commenting on "zero-tolerance" policy on prosecution
  13. ↑ See R v 974649 Ontario Inc, 2001 SCC 81 (CanLII), [2001] 3 SCR 575, per McLachlin CJ
    R v LL, 2015 ABCA 222 (CanLII), 300 CCC (3d) 345, per curiam, at para 10
  14. ↑ R v DN, 2004 NLCA 44 (CanLII), 188 CCC (3d) 89, per Wells JA, at para 17
    Krieger, supra
    Power, supra, at paras 41 to 43
    Beare, supra, at pp. 410-411
  15. ↑ DN, supra and Beare, supra, at para 51
  16. ↑ R v Ng, 2003 ABCA 1 (CanLII), 173 CCC (3d) 349, per Wittmann JA
  17. ↑ R v Gill, 2012 ONCA 607 (CanLII), 96 CR (6th) 172, per Doherty JA
  18. ↑ Anderson, supra, at paras 29 to 33
  19. ↑ Beare, supra, at para 56
    R v Lyons, 1987 CanLII 25 (SCC), [1987] 2 SCR 309, per La Forest J, at p. 348
    R v Jones, 1986 CanLII 32 (SCC), [1986] 2 SCR 284, per La Forest J, at pp. 303-304

Calling Witnesses

See also: Inferences#Inference from Failing to Call Witnesses and Competence of Witnesses to Testify

The Crown does not need to call any witnesses it considers to be unnecessary.[1] Likewise, the crown does not need to call unidentified witnesses or untrustworthy witnesses.[2]

There is no obligation on the Crown to call any witnesses at all, short of it amounting to an abuse of process.[3]

The decision to call a witness on a related subject after the Crown had determined the witness is otherwise unreliable can be acceptable in some circumstances.[4]

  1. ↑ Lemay v The King, 1951 CanLII 27 (SCC), [1952] 1 SCR 232(complete citation pending), at p. 241
    R v Jolivet, 2000 SCC 29 (CanLII), [2000] 1 SCR 751, per Binnie J, at para 14
    R v Ellis, 2013 ONCA 9 (CanLII), 293 CCC (3d) 541, per Watt JA, at para 44 ("As a matter of general principle, Crown counsel is under no obligation to call a witness whom the Crown considers is unnecessary to the Crown’s case...")
  2. ↑ Jolivet, ibid., at para 29
  3. ↑ R v Rezaei, 2017 BCSC 611 (CanLII), per Jenkins J
    R v Cook, 1997 CanLII 392 (SCC), [1997] SCJ No 2, per L'Heureux-Dube J, at para 56
  4. ↑ R v LL, 2015 ABCA 222 (CanLII), 300 CCC (3d) 345, per curiam

Relationship with Police

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."[1]

The Crown can be liable for their part in giving advice to police during an investigation.[2]

While it is acceptable, the Crown should not try to be involved in interviews with parties prior to charges being laid.[3]

  1. ↑ See Marshall Inquiry http://www.gov.ns.ca/just/marshall_inquiry/
  2. ↑ see Dix v Canada (Attorney General), 2002 ABQB 580 (CanLII), 96 CRR (2d) 1, per Ritter J
    Proulx v Quebec (Attorney General), 2001 SCC 66 (CanLII), [2001] 3 SCR 9, per Iacobucci and Binnie JJ
  3. ↑ R v Regan, 2002 SCC 12 (CanLII), [2002] 1 SCR 297, per LeBel J at 61-70

Evaluating Whether to Prosecute (Charge Screening)

Most prosecution offices are guided by Crown Policy manuals requirements that there be a "reasonable prospect of conviction"[1] and there is a "public interest" in the proceeding.[2]

One cannot evaluate the decisions of the Crown to proceed retroactively. The context of what was known at the time.[3]

Considerations on the exercise of discretion must take into account the interest of the individual and the public interest.[4]

Re-evaluation of proceedings can be based on aspects that come to light at trial:[5]

  • witnesses may not testify in accordance with their earlier statements;
  • weaknesses in the evidence may be revealed during cross-examination;
  • scientific evidence may be proved faulty; or
  • defence evidence may shed an entirely different light on the circumstances as they were known at the time process was initiated.
Province's Policy
  1. ↑ Some provinces use difference standards such as "realistic prospects of conviction" (NS) or "substantial likelihood" (BC)
  2. ↑ Miazga v Kvello Estate, 2009 SCC 51 (CanLII), [2009] 3 SCR 339, per Charron J, at para 64
  3. ↑ Miazga v Kvello Estate, ibid., at para 76
  4. ↑ R v Harrigan and Graham (1975), 33 CRNS 60(*no CanLII links) , per Henry J, stated, at p. 69 ("In exercising these powers, which vitally concern the right and liberty of the indi­vidual, he must take into account not only the interest of the individual but also what the public interest requires.")
    R v Kenny, 1991 CanLII 2738 (NL SC), 68 CCC (3d) 36, per Barry J
  5. ↑ Miazga v Kvello Estate, supra, at para 76

Prospects of Conviction

"Reasonable Prospects of Conviction" (RPC) is an objective test.

RPC must be more than establishing a prima facie case against the accused.

RPC does not require that conviction is "likely".

The Crown is generally permitted consideration of the reliability of the complainant or witness. Determinations on the credibility of that person is often not appropriate and is done only exceptionally and on a limited basis.

Public Interest

The determination of public interest is primarily a function of the gravity of the offence and level of culpability of the offender.

While there are many elements that inform the gravity of the offence

The Crown considers the wishes of the alleged victim or complainant, including:

  • the trauma caused by testifying and its effect on rehabilitation
  • the social pressures upon the person from their involvement
  • their willingness to cooperate and testify

There should also be careful consideration on whether it is possible to mitigate these issues through resources with the courts, victim services or police. For example, the use of testimonial aids may assist in the testimony. Real dangers to the person may be mitigated through police protections. Emotional trauma may be mitigated with victim services.

The Crown will usually not force a vulnerable victim to testify in a case where there is clear interest against doing so.

Crown Election

See also: Crown Election

The decision to proceed either by summary conviction or by imdictment is an "essential component of the fair and efficient operation of the criminal justice system."[1]

  1. ↑ R v Nur, 2013 ONCA 677 (CanLII), 303 CCC (3d) 474, per Doherty JA, at para 190, appealed to SCC on other issues at 2015 SCC 15 (CanLII), per McLachlin CJ

See Also

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