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The Federal Prosecution Service DESKBOOK

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Part III
PRINCIPLES GOVERNING CROWN COUNSEL'S CONDUCT
Chapter 9

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9 THE DUTIES AND RESPONSIBILITIES OF CROWN COUNSEL

9.1 Introduction

This chapter describes the duties and responsibilities of Crown counsel in the provision of legal advice and the conduct of criminal litigation. The term “Crown counsel”, as used in this chapter and throughout the Deskbook, is meant to refer to lawyers employed by the Department of Justice and private sector agents acting on behalf of the Attorney General of Canada¹.

9.2 Provision of Legal Advice

Crown counsel often are asked to provide legal advice to departments and agencies within the federal government and to law enforcement agencies involved in enforcing federal law.

9.2.1 Conflicting Policies and Conflict of Interest

Crown counsel are not employed by the departments and agencies to which they provide legal advice. At all times, counsel remain representatives of the Attorney General of Canada². Counsel should be aware that policies of the Attorney General may conflict with those of the departments and agencies. Conflicts could, for example, arise between a department's enforcement policy and the Attorney General's prosecution policy. Crown counsel shall at all times comply with the policies of the Attorney General. If policies conflict, counsel shall advise the department or agency of the conflict and resolve the matter under the usual consultation process established for resolving conflicts.³

Counsel should also be careful to avoid a conflict of interest or the appearance of a conflict of interest⁴. An easily identifiable conflict of interest may arise where, for example, counsel prosecutes a former client⁵. However, conflicts of interest may also arise due to the structure or organization of government. For example, a conflict may arise where there is a recommendation for prosecution by one government department against another government department, both of whom, from time to time, are represented by the Department of Justice. If this occurs, Crown counsel should advise the Regional Director or Senior Regional Director who will consider whether it would be more appropriate to retain counsel from the private sector, as agent of the Attorney General of Canada, to review the evidence, provide advice on the charges, and conduct any resulting prosecution.⁶

9.2.2 Management or Policy Decisions

Crown counsel are not responsible for making management or policy decisions for government departments and agencies. Counsel's duty is to give legal advice on criminal law matters. This may include advising investigative agencies about the criminal law issues arising from an investigation, practice, or policy. Counsel have a further responsibility to discuss the public interest implications with a department or agency contemplating a prosecution and to apply the Attorney General's policy regarding those interests.⁷

When advising investigative agencies, Crown counsel must always recognize the distinction between the role of the police and the role of the prosecutor in the administration of justice⁸. Given the increasing complexity of law enforcement, counsel may be asked to become involved at the investigative stage. For example, in wiretap and search warrant cases, counsel may be asked to advise and assist the agency that is preparing preliminary documents. Effective management of complex litigation requires pre-charge co-operation between the police and Crown counsel. However, the existence of such a relationship does not diminish the desirability of an independent, impartial assessment of both the evidence and public interest considerations when the decision is made as to whether to prosecute⁹.

9.2.3 Solicitor-Client Privilege

Legal advice given by Crown counsel to government departments and investigative agencies is protected by solicitor-client privilege¹⁰. Crown counsel may not release the legal opinion, refer to it, or describe it in any fashion to defence counsel¹¹ or the public unless the privilege has been waived. Crown counsel must be conscious of the fact that not everything they do will be covered by privilege – whether or not the privilege attaches depends on the nature of the relationship, the subject matter of the advice and the circumstances in which it is sought¹².

With law enforcement agencies outside the Government of Canada, the privilege rests with the agency. With departments and agencies within the Government of Canada, the privilege rests with the Crown in right of Canada. In practical terms, however, decisions concerning privilege, such as waiver, are usually made by the government department or agency that received the advice. In some instances, particularly those in which there is a strong public interest,¹³ decisions of this nature should be made in consultation with the Privy Council Office and the Department of Justice.

Written legal opinions given by Crown counsel should, in general, be marked “Protected: Solicitor/Client Privilege”.

9.3 The Conduct of Criminal Litigation

The responsibilities placed on Crown counsel as law officers of the Crown flow from the special obligations resting on the office of the Attorney General of Canada. As a result, Crown counsel are subject to certain ethical obligations which may differ from those of defence counsel.¹⁴

The Attorney General and his or her agents are vested with very substantial discretionary powers¹⁵. Public interest considerations require Crown counsel to exercise judgment and discretion which go beyond functioning simply as advocates.¹⁶ Counsel appearing for the Attorney General are considered “ministers of justice”, more part of the court than proponents of a cause.¹⁷ Fairness, moderation, and dignity should characterize the conduct of Crown counsel during criminal litigation.¹⁸ This does not mean that counsel cannot conduct vigorous and thorough prosecutions¹⁹. Indeed, vigour and thoroughness are important qualities in Crown counsel. Criminal litigation on the part of the Crown, however, should not become a personal contest of skill or professional pre-eminence.²⁰

The conduct of criminal litigation is not restricted to the trial in open court. It also encompasses the prosecutorial authority of Crown counsel leading up to trial -- for example, the decision to prosecute, referring an alleged offender to an alternative measures program,²¹ disclosure, the right to stay proceedings or withdraw charges, elect the mode of trial, grant immunity to a witness, prefer indictments, join charges and accused, consent to re-elections, and consent to the waiver of charges between jurisdictions. Crown counsel’s obligation to ensure the integrity of the prosecution continues throughout the litigation process.²²

Both in and out of court, Crown counsel exercise broad discretionary powers. Courts generally do not interfere with this discretion unless it has been exercised for an oblique motive, offends the right to a fair trial or amounts to an abuse of process. Accordingly, counsel must exercise this discretion fairly, impartially, in good faith and according to the highest ethical standards. This is particularly so where decisions are made outside the public forum, as they may have far greater practical effect on the administration of justice than the public conduct of counsel in court.²³

In the conduct of criminal prosecutions, Crown counsel have many responsibilities. The following are among the most important.

9.3.1 The duty to ensure that the responsibilities of the office of the Attorney General are carried out with integrity and dignity

Counsel can fulfil this duty:

• by complying with applicable rules of ethics established by their bar association;
• by exercising careful judgment in presenting the case for the Crown, deciding what witnesses to call, and what evidence to tender;
• by acting with moderation, fairness, and impartiality;
• by not discriminating on any basis prohibited by s. 15 of the Charter;
• by adequately preparing for each case;
• by not becoming simply an extension of a client department or investigative agency;²⁴ and
• by conducting plea and sentence negotiations in a manner consistent with the policy set out in this deskbook.²⁵

9.3.2 The duty to preserve judicial independence

Counsel can fulfil this duty:

• by not discussing matters relating to a case with the presiding judge without the participation of defence counsel;
• by not dealing with matters in chambers that should properly be dealt with in open court;
• by avoiding personal or private discussions with a judge in chambers while presenting a case before that judge; and
• by refraining from appearing before a judge on a contentious matter when a personal friendship exists between Crown counsel and the judge.

9.3.3 The duty to be fair and to appear to be fair

Counsel can fulfil this duty:

• by making disclosure in accordance with the policy set out in this manual;²⁶
• by bringing all relevant cases and authorities known to counsel to the attention of the court, even if they may be contrary to the Crown's position;
• by not expressing personal opinions on the evidence, including the credibility of witnesses, in court or in public;
• by being conscious of the factors that can lead to wrongful convictions, such as false confessions and mistaken eyewitness identification;
• by zealously guarding against the possibility of being afflicted by “tunnel vision”²⁷, through close identification with the investigative agency and/or victim, or through pressure by the media and/or special interest groups;
• by remaining open to alternative theories put forward by the defence;
• by not expressing personal opinions on the guilt or innocence of the accused in court or in public;
• by asking relevant and proper questions during the examination of a witness and by not asking questions designed solely to embarrass, insult, abuse, belittle, or demean the witness. Cross examination can be skilful and probing, yet still show respect for the witness;
• by respecting the court, defence counsel, the accused, and the proceedings while vigorously asserting the Crown's position; and
• by never permitting personal interests or partisan political considerations to interfere with the proper exercise of prosecutorial discretion.

9.3.3.1 Inflammatory Remarks and Conduct

As part of the Crown’s duty to be fair, counsel are obliged to ensure that any comments made during jury addresses are not “inflammatory”. Whether an address will be held to be inflammatory is determined by looking at the number and nature of the comments, and the tone of the address. Ultimately, the test is whether the objectionable comments are seen to have deprived the accused of his or her right to a fair trial.

As mentioned previously, the Attorney General and his or her agents have very substantial discretionary powers. It must be borne in mind that the opportunity to damage the reputation of the administration of justice is always present²⁸.

The general principles governing Crown jury addresses have been referred to by Fish J.A. of the Québec Court of Appeal in R. v. Charest (1990), 76 C.R.(3d) 63:

The kinds of comments and conduct that have been found to be “inflammatory” (and thus render the trial unfair) can be divided into six categories:

• Expressions of personal opinion
  • these include opinions: on issues in the case; on the honesty and integrity of police witnesses; that he or she does not believe the accused; or that the accused is guilty.²⁹
• Negative comments about the accused’s or a witness’s credibility or character
  • Such comments may include excessive reference to the accused’s criminal record, native country, likelihood of being a liar, excessive use of sarcasm or exaggeration in referring to the accused or defence witnesses.³⁰
• Observations or statements of fact not supported by the evidence
  • These situations tend to be ones in which Crown counsel misstates the evidence in a way which impugns the accused’s character.³¹
• Appeals to fear, emotion or prejudice
  • These comments are often in terrorem arguments in which Crown counsel urges the jury to protect society from the accused, who is portrayed in very unflattering terms.³²
• Negative comments about the accused’s counsel
  • On occasion, Crown counsel have suggested that defence counsel have used improper tactics, presented illegal evidence or made other comments designed to portray defence counsel as being untrustworthy.³³
• Inappropriate language, tactics, and conduct in general
  • Characterizations of the accused as a liar, excessive use of sarcasm, ridicule or derision, use of biblical references and irrelevant authority, are proscribed.³⁴ Inappropriate tactics include:
  • not placing before the court all the circumstances surrounding the obtaining of statements from the accused;
  • eliciting through a friendly witness a remark that is unsupported by any evidence and continuing to press the point in the presence of the jury during a discussion with the judge;
  • in cross-examination of the accused, while professing to test his credibility, bringing various matters before the jury which have no direct relation to the question of the accused’s guilt;
  • at the conclusion of the evidence given by the accused in his defence, stating in the presence of the jury that the accused will be arrested for perjury;
  • improperly presenting evidence to the jury through the device of reading from reports of judgments of the Supreme Court of Canada;
  • during a hearing to review parole ineligibility pursuant to s. 745 of the Criminal Code, discrediting the procedure of reviewing parole ineligibility as well as the parole process; and
  • raising a “concoction theory” with respect to disclosure for the first time in the closing address³⁵.

9.4 Prevention of Wrongful Convictions

In January 2005, FPT Ministers Responsible for Justice released the Report of the Working Group on the Prevention of Miscarriages of Justice. The Report calls a wrongful conviction “a failure of justice in the most fundamental sense.”

The Report makes a series of recommendations on what prosecutors can do to prevent wrongful convictions and concludes “everyone involved in the criminal justice system must be constantly on guard against the factors that can contribute to miscarriages of justice.” Indeed, the Working Group believes that individual police officers and prosecutors, individual police forces and prosecution services, and indeed the entire police and prosecution communities, must make the prevention of wrongful convictions a constant priority.

In particular, the Report notes that “tunnel vision” has been identified as a leading cause of wrongful convictions in Canada and elsewhere and is the “antithesis” of the proper role of Crown counsel. “Tunnel vision must be guarded against vigilantly, as it is a trap that can capture even the best police officer or prosecutor.”³⁷

Many of the Report's recommendations are reflected throughout this Deskbook. Although the Report's recommendations are aimed primarily at the most serious of offences, particularly homicides, many of its suggestions have general application.

9.5 Additional References

Re: Skogman and The Queen, [1984] 2 S.C.R. 93; 13 C.C.C. (3d) 161 (S.C.C.): Crown counsel are in a different position from the ordinary litigant, for they represent the public interest in the community at large.

Boucher v. The Queen, [1955] S.C.R. 16; 110 C.C.C. 263 (S.C.C.): “It cannot be over-emphasized that the purpose of a criminal prosecution is not to obtain a conviction; it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proof of the facts is presented: it should be done so firmly and pressed to its legitimate strength, but it must also be done fairly. 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.”

R. v. Stinchcombe, [1991] 3 S.C.R. 326; 68 C.C.C. (3d) 1 (S.C.C): The Crown is under a duty at common law to disclose to the defence all material evidence, whether favourable to the accused or not. Transgressions with respect to this duty constitute a very serious breach of legal ethics.

Lemay v. The King, [1952] 1 S.C.R. 232; 102 C.C.C. 1 (S.C.C.): There is a long established rule that the prosecutor has discretion to determine who are material witnesses, and this discretion will not be interfered with unless it was exercised for an oblique motive.

Cunliffe and Bledsoe v. Law Society of British Columbia (1984), 13 C.C.C. (3d) 560 (B.C.C.A.): It is extremely important to the proper administration of justice that Crown counsel be aware of and fulfil their duty to be fair.

R. v. Lalonde (1971), 5 C.C.C. (2d) 168 (Ont. H.C.): The Crown Attorney must be firm while being fair in prosecuting the accused so that the Court will not be duped by defences which are not thoroughly examined in Court. The criminal law leaves to the Crown Attorney many discretions as to whom and what to prosecute, and the conduct of the Crown's case. Our law does not equate a good and fair Crown Attorney with a weak lawyer.

R. v. Sugarman (1935), 25 Cr. App. R. 109: It cannot be too often made plain that the business of counsel for the Crown is fairly and impartially to exhibit all the facts to the jury. The Crown has no interest in procuring a conviction. Its only interest is that the right person should be convicted, that the truth should be known, and that justice should be done.

R. v. Power (1994), 89 C.C.C. (3d) 1 (S.C.C.): The Attorney General reflects through his or her prosecutorial function, the interest of the community to see that justice is properly done. The Attorney General's role in this regard is not only to protect the public, but also to honour and express the community's sense of justice. Accordingly, courts should be careful before they attempt to “second-guess” the prosecutor's motives when he or she makes a decision. Where there is conspicuous evidence of improper motives or of bad faith or of an act so wrong that it violates the conscience of the community, such that it would genuinely be unfair and indecent to proceed, then and only then should courts intervene to prevent an abuse of process which could bring the administration of justice into disrepute. Cases of this nature will be extremely rare.

CBA Code of Professional Conduct, Chap. VIII, page 29 commentary 7: When engaged as a prosecutor the lawyer's prime 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. He should not do anything which might prevent the accused from being represented by counsel or communicating with counsel and to the extent required by law and accepted practice, he should make timely disclosure to the accused or his counsel (or to the court if the accused is unrepresented) of all relevant facts and witnesses known to him, whether tending towards guilt or innocence.

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Date Modified:

2008-12-24