Criminal Law Notebook

Prosecutorial Discretion

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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