2. Prosecutors: How Far Should Discretion Go?

Prosecutors are central to the operation of the criminal justice system. In particular, their role in deciding whether to launch prosecutions and on what charges makes them relatively more sensitive to political pressures. We want to make sure that prosecutions are not launched too lightly, for example on the basis of flimsy evidence, in ways that endanger the peace and security of citizens. Authoritarian states often typically rely on prosecutors as mere conduits of the political will of the moment. At the same time, we want to make sure that prosecutors are not protecting anyone by refraining from launching prosecutions. For example, we would expect them to treat offences that have historically been under-prosecuted or victims that come from marginalized groups seriously, in ways that might contribute to correcting some of the biases of the criminal justice system.

Much like judges, prosecutors must conform to a certain measure of reserve. Unlike in civil matters, the role of crown attorneys as counsel at bar does not require that every possible step be undertaken to secure a particular legal outcome. Contrary, say, to a commercial dispute, the role of the crown advises against “firing all guns” however thin the chances of success. The interests served in the criminal context have a different character. More than defending private interests, crown counsels themselves act as quasi-judicial officers promoting “the furtherance of criminal justice” as stated in the Babos case – a concept grander than most forms of interests normally defended in litigation, and closer to the integrity of public moral sentiments (the “conscience collective,” in Durkheimian terms). This distinction is central, as the end result actively sought by Prosecutors is not conviction at any cost but the public sentiment that justice in the grand sense has been sought and rendered in the process.

As quasi-judicial officers, crown counsel thus have the discretion to gauge (1) which cases deserve prosecution; and (2) following which infractions. A quasi-administrative test is applied in filtering the information reported into cases brought to trial, essentially safeguarding public moral sentiments in the process. This test is divided into two prongs, one analyzing whether the seriousness of the evidence forms a reasonable prospect of conviction, and another focusing on whether prosecution is in the public interest. Where the “reasonable prospect of conviction” prong seems fairly straightforward, requiring more than a potential, or prima facie fulfilment of the elements of the alleged offence, the “public interest” prong is more complex. Under this second prong a wide variety of elements will be taken into consideration with a marked degree of discretion, allowing for the following factors to be attributed a varying weight from case to case: the seriousness or triviality of the infraction; mitigating or aggravating circumstances; the prevalence of the alleged offence in the community; the level of concern engendered in the community by the offense and ensuing harm; the attitude of the victims; the circumstances of the defendant; or whether a prosecution would maintain public confidence in the government, for example. In essence, crown counsel should make such decisions based on the visibility of the infraction in question: where offences of very high visibility such as the current prosecution of ex-minister Nathalie Normandeau for fraud commands full involvement of crown resources, by contrast, offences of lesser visibility such as the violation of old and near-obsolete dispositions, for instance oyster theft (Section 323 Cr.C.), accompanied by mitigating circumstances and the passage of a considerable amount of time, may be subject to wider discretion in declining to prosecute.

Contrary to other quasi-administrative tests, judicial oversight is particularly sensitive when it comes to prosecutorial discretion. As explained in the Anderson and in Krieger cases, the crown’s wide margin of discretion in this respect forms a fundamental part of our justice system. In similar fashion to, say, academic freedom, or freedom of press, a wide margin of discretion is called for in order to produce an output unhindered by political or economic pressure, one capable of reflecting the needs and interests of a free and democratic society. Wide prosecutorial discretion therefore stands as one of the many symbols safeguarding against authoritarianism in liberal societies. For this reason, there is a presumption to the effect that prosecutorial discretion should be considered as exercised in good faith. The jurisprudence pertaining to the review of prosecutorial discretion has employed a range of terminology to describe the type of prosecutorial conduct that constitutes abuse of process, from “flagrant impropriety,” to evidence that the Crown’s decision “undermines the integrity of the judicial process,” or “results in trial unfairness,” or is inspired by “improper motive[s]” and “bad faith.” The idea is that prosecutorial discretion is reviewable for abuse of process where there is evidence that the Crown’s conduct is egregious and seriously compromises trial fairness or the integrity of the justice system. The burden of proof for establishing abuse of process lies on the claimant, who must prove it on a balance of probabilities. Given that the Crown will normally be the only party who will know why a particular decision was made, the type of evidence furnished by the defendant in this context should point to highly unusual practices such as the repudiation of a plea of agreement (as illustrated in Nixon, cited in Anderson).

Another function held by crown attorneys is the adoption of tactics and general forms of conduct before the court. Here the range of prosecutorial discretion is reduced, allowing for the court to assess the choices made with a lesser degree of deference. Anderson and Krieger highlight that, in order to function as courts of law, courts have implicit powers that derive from their authority to control their own process. This jurisdiction includes the power to penalize counsel for ignoring rulings or orders, or for inappropriate behaviour such as tardiness, incivility, abusive cross-examination, improper opening or closing addresses or inappropriate attire. Sanctions may include orders to comply, adjournments, extensions of time, warnings, cost awards, dismissals, and contempt proceedings. While deference is not owed to counsel who are behaving inappropriately in the courtroom, our adversarial system accords a higher degree of deference to the tactical decisions of counsel. In other words, while courts may sanction the conduct of the litigants, they should generally refrain from interfering with the conduct of the litigation itself. 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. A judge may exceptionally override a Crown tactical decision in order to prevent a charter violation. Finally, as with all Crown decision making, courtroom tactics or conduct may amount to abuse of process, but abuse of process is not a precondition for judicial intervention as it is for matters of prosecutorial discretion.

Babos delineates with more detail the test applicable in cases of abuse of process by the crown. Abuse of process will usually be invoked in order to safeguard the fairness of the trial and its outcome. This procedure may however also be employed under another, “residual” heading, this time commanding a stay of proceedings where state conduct goes so far as to impinge on the integrity of the justice system itself. In some cases, anything short of this measure would amount to judicial condonation of egregious misconduct and erode the public’s confidence in the administration of justice. A stay of proceedings is the most drastic remedy a criminal court can order. It permanently halts the prosecution of an accused.  In doing so, the truth-seeking function of the trial is frustrated and the public is deprived of the opportunity to see justice done on the merits. The test used to determine whether a stay of proceedings is warranted is the same for both categories of abuse of process and consists of three requirements: (1) there must be prejudice to the accused’s right to a fair trial or the integrity of the justice system that “will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome”; (2) there must be no alternative remedy capable of redressing the prejudice, such as the ordering of a new trial where the concern is trial fairness; and (3) where there is still uncertainty over whether a stay is warranted after steps 1 and 2, the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against “the interest that society has in having a final decision on the merits.”

The following hypothetical drawn from Babos may serve as a useful illustration.  Take a case where it is discovered, after trial, that the crown has tampered with the jury in order to secure the conviction of an accused.  Manifestly, the crown conduct would impinge on the accused’s right to a fair trial – but it would also impinge on the integrity of the justice system. Ordering a new trial would probably redress the unfairness of the original trial.  But the inquiry would not end there.  The court would also have to decide whether ordering a new trial, or some other remedy, would suffice to dissociate it from the prejudice occasioned to the integrity of the justice system by the police misconduct.  If no remedy would suffice, the court would have to engage in the balancing process and determine whether the integrity of the justice system would be better served by a stay of proceedings or a full trial on the merits.  Given the seriousness of the misconduct – jury tampering strikes at the very heart of the criminal justice system – the residual category might well necessitate a stay of proceedings to redress the threat to the integrity of the justice system, even though the unfairness that marred the first trial could be cured by a second trial. 

Finally, as a last dimension to crown work, Canadian criminal code implicitly recognizes the possibility of initiating private prosecutions at Sections 2, 504 and 785. The right of a citizen to institute a prosecution for a breach of the law is viewed as a valuable constitutional safeguard against inertia or partiality on the part of authority. In every case the Attorney General will need to be noticed of the proceedings, and a judge will need to consent to the indictment. Pursuant to a 2002 reform, Section 579.01 of the Criminal Code allows the Attorney General to call witnesses, examine and cross-examine witnesses, present evidence and make submissions without actually conducting the proceedings. In many provinces, however, the custom has been that private proceedings were normally stayed by the crown office upon notice. As illustrated in the West Coast Environmental Law publication, this practice however seems to differ from one jurisdiction to the other, with Ontario and the federal government apparently being more open to such practices. 

Model code of professional conduct

Duty as Prosecutor 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. 

Commentary [1] When engaged as a prosecutor, the lawyer’s primary duty is not to seek to convict but to see that justice is done through a fair trial on the merits. The prosecutor exercises a public function involving much discretion and power and must act fairly and dispassionately. The prosecutor should not do anything that might prevent the accused from being represented by counsel or communicating with counsel and, to the extent required by law and accepted practice, should make timely disclosure to defence counsel or directly to an unrepresented accused of all relevant and known facts and witnesses, whether tending to show guilt or innocence. 


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