Whether you call them Crown Attorneys, Crown counsel or prosecutors, it is clear that the lawyers who prosecute those charged with criminal offences are vested with very substantial discretionary powers. These individuals comprise a significant cornerstone of justice, and in their daily duties and responsibilities of exercising judgment and discretion, they must exercise this discretion fairly, impartially, in good faith and according to the highest ethical standards (Public Prosecution Service of Canada, 2014).
Indeed, the Supreme Court of Canada (SCC) has articulated the importance of prosecutors’ legal and ethical responsibilities in its landmark decision in Boucher v. The Queen (1955, para. 270):
"The role of the prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with a greater personal responsibility. It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings."
Fairness, moderation, and dignity should characterize Crown counsel’s conduct during criminal litigation. Yet despite this, the Canadian legal system is unfortunately not immune to cases of prosecutorial abuse of process or misconduct. While the purpose of the criminal prosecution is not to obtain a conviction, the Canadian jurisprudence concerning prosecutorial accountability is significantly underdeveloped (c.f. Fainer, 2015).
For example, while an egregious case of deliberate non-disclosure by a prosecutor may attract criminal liability under ss. 137 and 139 of the Criminal Code, it is important to note that not every breach of the prosecutor’s legal and constitutional duty to disclose will constitute a violation of process. Prosecutorial non-disclosure can arise from “mere inadvertence, a misunderstanding of the evidence, or even a questionable strategy adopted in good faith” (Department of Justice, 2011, para. 154). A finding of prosecutorial misconduct must be based upon an act or omission which reveals an intentional departure from the fundamental duty to act in legal and procedural fairness.
Canadian prosecutors run the risk of legal, professional and employment sanctions if they engage in abuse of process (Department of Justice, 2011). However, disciplinary steps taken against government employees are seldom made public, so while in theory this approach accords with standard human resource practices, the resulting discipline is left unclear for the public. In effect, interested members of the public usually do not learn what action, if any, has been taken against Crown counsel who has not complied with his or her legal duties or employment obligations. This can lead the public to erroneously believe that there have been no consequences for the prosecutorial abuse of process (Department of Justice, 2011).
One of the most recent and controversial Supreme Court cases of prosecutorial misconduct was R. v. Babos (2014). The issue at hand was whether the prosecutorial misconduct, in the form of threats and intimidation, was severe enough to warrant a stay of proceedings for the accused (c.f. Heighton, 2014). A 6-1 majority of the Supreme Court held that while the prosecutor’s actions were certainly reprehensible—i.e. repeatedly threatening the accused that additional charges would be laid if they did not plead guilty—the misconduct was not enough to meet the high threshold for abuse of process to warrant a stay in proceedings (R. v. Babos, 2014, paras. 72-73). However, Supreme Court Justice Abella, as the lone dissenter, held that the SCC majority set the threshold too high regarding prosecutorial misconduct (R. v. Babos, 2014, para. 83) and heavily emphasized the need for public confidence in the integrity of the justice system.
This does not mean that Crown counsel cannot conduct vigorous and thorough prosecutions, as in fact the SCC has affirmed that vigorous Crown advocacy is “a critical element of this country’s criminal law mechanism” (R. v. Cook, 1997, para. 19). Rather, we must be mindful of a key message which resonates in Justice Abella’s lone dissent: “Justice is not only about results, it is about how those results are obtained” (R. v. Babos, 2014, para. 85). The discretion to commence and pursue a prosecution is vital to the effective prosecution of criminal cases, and the legal duties of the Crown are not merely discretionary functions, but rather absolute, legal, and ethical obligations to the administration of justice and to the rule of law (c.f. R. v. Stinchcombe, 1991; Miazga v. Kvello Estate, 2009; R. v. McNeil, 2009). When Crown counsel threatens an accused with additional charges if he or she does not plead guilty, deliberately does not disclose relevant evidence (c.f. Henry v. British Columbia (Attorney General), 2015), colludes with police to tamper evidence, or tampers with the jury to secure a conviction, such misconduct cannot ensure that justice will be served to the best of its ability. Prosecutorial misconduct “takes fatal aim at the heart” of the public’s confidence in the legal system and in the system’s ability to conduct criminal litigation with integrity and dignity (R. v. Babos, 2014, para. 85).
Department of Justice. (2011). Report on Disclosure in Criminal Cases from the Steering Committee on Justice Efficiencies and Access to Justice. Government of Canada: Department of Justice. Available at: http://www.justice.gc.ca/eng/rp-pr/csj-sjc/esc-cde/rod-crc/index.html.
Fainer, L. (2015). ‘Holding Authorities Accountable – Deficiencies in the Canadian Regime.’ Innocence Canada: July 8. Available at: https://www.aidwyc.org/holding-accountable/.
Heighton, R. (2014). ‘Supreme Court Sets High Bar for Prosecutorial Abuse of Process: R v Babos.’ theCourt.ca: March 6. Available at: http://www.thecourt.ca/supreme-court-sets-high-bar-for-prosecutorial-abuse-of-process-r-v-babos/.
Public Prosecution Service of Canada. (2014). Guideline of the Director Issued under Section 3(3)(c) of the Director of Public Prosecutions Act. Public Prosecution Service of Canada: March 1. Available at: http://www.ppsc-sppc.gc.ca/eng/pub/fpsd-sfpg/fps-sfp/tpd/p2/ch02.html#section_1.
Boucher v. The Queen (1955) S.C.R. 16.
Henry v. British Columbia (Attorney General) (2015) SCC 24, 2 S.C.R. 214.
Miazga v. Kvello Estate (2009) SCC 51, 3 S.C.R. 339.
R. v. Babos, (2014) SCC 16, 1 S.C.R. 309.
R. v. McNeil (2009) SCC 3, 1 S.C.R. 66.
R. v. Stinchcombe (1991) 3 S.C.R. 326.