Judicial Constraint of Prosecutorial Discretion Bound to Remain Limited

Prosecutorial discretion continues to be a fraught area of legal interrogation in Canada and less than stellar prosecutorial activities will rarely result in a stay, even when the prosecutorial action is found to be egregious. Manikis and Grbac explain why, in this week's featured article.

Excerpted from Bargaining for Justice: The Road Towards Prosecutorial Accountability in the Plea Bargaining Process by MARIE MANIKIS* AND PETER GRBAC*:

"If the Supreme Court of Canada’s recent decisions on prosecutorial discretion1 are any indication, judicial constraint of prosecutorial discretion will continue to be exercised in an exceptionally limited manner. Consider, for example, the Supreme Court’s decision in Babos.2 One of the central issues of this case was the egregious conduct of a prosecutor who, during the plea bargaining process,3 threatened to lay additional charges against two accused if they refused to enter guilty pleas.4 Despite the lower courts’ acknowledgment that the prosecutor’s conduct was unacceptable and despite the call from the trial judge to grant a stay of proceedings, the majority of the Supreme Court refused to justify that stay or provide any other remedies for this misconduct.5 Even though the prosecutor’s “bullying tactic” was “reprehensible and unworthy of the dignity of her office,”6 Justice Moldaver, writing for the Majority, ultimately denied the accused’s appeal. Considering the manner in which the lower courts characterized the prosecutor’s conduct (as an abuse of process) and mindful of the strongly worded dissent from Justice Abella, the Majority’s opinion arguably stands for the acceptance, albeit reluctantly, of behaviour that should not have been condoned as well as a resultant dilution of standards that should have been applied in order to guard against injustice.7

Situations of prosecutorial misconduct, like the one presented in Babos, raise serious questions about the role of prosecutorial discretion in the criminal justice system generally and the plea bargaining process more specifically. For all of the alleged benefits that come with prosecutorial discretion—such as flexibility, scarce resource maximization, and individualized justice8—there remains the “very real potential for pernicious use and abuse of this discretion.”9 This article focuses on the place of prosecutorial discretion in the specific context of plea bargaining in Canada and asks whether and to what extent prosecutorial discretion ought to be guided and constrained to promote the principles of procedural fairness, accountability, flexibility, and transparency. Considering that between 2008 and 2009, fifty-nine percent of accused persons appearing before Canadian adult courts pleaded guilty and it is widely believed that many of these guilty pleas resulted from a plea bargain reached between prosecutors and defence counsel,10 a critical reflection surrounding prosecutorial discretion in the plea bargaining process is both important and timely."

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