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Chapter 11

The Federal Prosecution Service DESKBOOK

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Part III
PRINCIPLES GOVERNING CROWN COUNSEL'S CONDUCT
Chapter 11

11 THE RELATIONSHIP BETWEEN CROWN COUNSEL AND THE POLICE

11 THE RELATIONSHIP BETWEEN CROWN COUNSEL AND THE POLICE¹

11.1 Introduction

Law enforcement is a continuum. At one end, the police investigate criminal offences and arrange for suspected offenders to appear in court. At the other, the Attorney General, through Crown counsel, is responsible for neutrally and fairly presenting the Crown's case in court. Their roles are interdependent. While both have separate responsibilities in the criminal justice system, they must inevitably work in partnership to enforce criminal laws effectively.

This chapter describes the responsibilities of the police and Crown counsel, emphasizing the role of each in the administration of justice. Special attention is given to the following: the authority to commence prosecutions and deal with prosecutions once commenced, consultations, screening cases, and resolving disagreements between police and Crown counsel.

11.2 Role of the Police: Authority to Investigate and Lay Charges

11.2.1 The Common Law Principle

Maintaining the independence of the police from direct political control is fundamental to our system of law enforcement. Under the common law, the police could not be directed by the Executive or by Parliament to start an investigation, much less lay charges. As one former Attorney General said, “No one can tell an officer to take an oath which violates his conscience and no one can tell an officer to refrain from taking an oath which he is satisfied reflects a true state of facts”.² In R. v. Metropolitan Police Commissioner, ex parte Blackburn,³ Lord Denning described the principle in this way:

I hold it to be the duty of the Commissioner of Police, as it is of every chief constable, to enforce the law of the land. He must take steps so to post his men that crimes may be detected; and that honest citizens may go about their affairs in peace. He must decide whether or not suspected persons are to be prosecuted; and, if need be, bring the prosecution or see that it is brought; but in all these things he is not the servant of anyone, save of the law itself. No Minister of the Crown can tell him that he must, or must not, keep observation on this place or that; or that he must, or must not, prosecute this man or that one. Nor can any police authority tell him so. The responsibility for law enforcement lies on him. He is answerable to the law and to the law alone.

11.2.2 The Special Situation of the RCMP

Section 5 of the Royal Canadian Mounted Police Act provides that the Commissioner of the RCMP has the control and management of the Force, subject to the “direction” of the Solicitor General. The relationship between the Commissioner and the Solicitor General has been described in the following terms by the Supreme Court of Canada:

While for certain purposes the Commissioner of the RCMP reports to the Solicitor General, the Commissioner is not to be considered a servant or agent of the government while engaged in a criminal investigation. The Commissioner is not subject to political direction. Like every other police officer similarly engaged, he is answerable to the law and, no doubt, to his conscience⁴.

It has been held, as well, that the right of an RCMP member to lay an information is subject to the orders of the Commissioner or a superior officer.⁵ The issue of control of police functions becomes even more complex because in eight provinces the RCMP provides police services under contract with the province. These agreements do not deal with the right to commence an investigation, but they do address related matters like the setting of operational priorities and resource allocation. They also describe the role of the RCMP vis-à-vis the provincial Attorney General.

11.2.3 Other Statutory Exceptions

Some Criminal Code offences -- for instance, war crimes,⁶ bribery of judicial officers,⁷ offences on territorial seas⁸ -- require the consent of the Attorney General or a Minister of the Crown before an information can be laid. So do some offences under other federal laws, such as the Canada Labour Code and the Canadian Human Rights Act.⁹

11.3 Role of Crown Counsel Before and After Charges Are Laid

11.3.1 Introduction

Crown counsel and investigative agencies play complementary roles in the criminal process. Both have roles to play before and after charges are laid.

While the involvement of Crown counsel is not generally required as a matter of law at this stage, it has become increasingly apparent that it is desirable.¹⁰ Co-operation and effective consultation between the police and Crown counsel are essential to the proper administration of justice, as investigators are expected to gather evidence that is admissible and relevant to the charge. Later, when deciding whether to prosecute, consultation will often be helpful in assessing the sufficiency of the evidence and the public interest criteria.¹¹

Accordingly, Crown counsel should be available for consultation during an investigation and before the laying of charges. This will encourage investigators to ask their advice. In complex cases, Crown counsel may need to work closely with the police in identifying and acquiring relevant and cogent evidence. This does not mean, however, that Crown counsel should assume responsibility for work that properly should be done by investigators. At the end of an investigation, counsel’s role is to provide the investigators with a fair and objective assessment of the strength of the case and the appropriateness of proceeding. In performing this assessment, counsel must be guard against the possibility that he or she has been afflicted by “tunnel vision”, i.e., has lost the ability to conduct an objective assessment of the case through contact with the investigating agency¹².

11.3.2 Statutorily Prescribed Involvement of Crown Counsel Before Charges Are Laid

In some instances, Crown counsel become involved in an investigation because of statutory requirements. These include, but are not limited to:

Obtaining authorizations for electronic surveillance pursuant to section 186 of the Criminal Code;
Obtaining special search warrants and restraint orders pursuant to sections 462.32 and 462.33 of the Criminal Code in respect to suspected proceeds of crime;¹³
Obtaining restraint orders pursuant to section 14 the Controlled Drugs and Substances Act in respect to suspected offence related property;
Obtaining management orders pursuant to section 490.81 of the Criminal Code and section 14.1 of the Controlled Drugs and Substances Act and, in limited circumstances, section 6 of the Seized Property Management Act;
Obtaining orders for the disclosure of income tax information pursuant to section 462.48 of the Criminal Code;
Processing outgoing mutual legal assistance requests, such as those contemplating the execution of search warrants inside Canada or abroad. Section 7 of the Mutual Legal Assistance in Criminal Matters Act makes the Minister of Justice responsible for the administration of the Act.¹⁴
Enforcing orders on behalf of foreign governments, or on behalf of Canada where property is abroad, for the seizure, restraint, or forfeiture of offence-related property or the proceeds of crime pursuant to section 9.3 of the Mutual Legal Assistance in Criminal Matters Act;
Making a request for the extradition of a person who is wanted in Canada for prosecution or imposition of sentence, but who is believed to be in another country. Section 78(1) of the Extradition Act makes the Minister of Justice responsible for the administration of the Act.¹⁵

In all of these situations, Crown counsel can assist in preparing the materials necessary to seek such approval and in making the application to court, where applicable.

11.3.3 Non-Statutory Involvement of Crown Counsel

Crown counsel can provide a wide range of assistance to investigators. In most of these non-statutory roles, Crown counsel play a supporting role, with the investigator drafting the materials and providing them to Crown counsel for review.

11.3.3.1 Advice Concerning the Operational Plan

The police have complete autonomy in deciding whom to investigate and for what suspected crimes. They also have the discretion to decide how to structure an investigation and which investigative tools to use.

However, prior to undertaking an investigation or in its early stages, investigators may wish to consult with Crown counsel for advice and guidance as to how the investigation should be structured to ensure a sustainable prosecution. It is best to make structural decisions early in the investigation, rather than waiting until it is too late to take corrective action. For example, if the operational plan contemplates an investigation of a large criminal organization, it may be prudent to consult Crown counsel prior to undertaking the investigation. Decisions can be made early in the investigation that may assist in developing a case that can be put before the courts in an effective manner.

11.3.3.2 Immunity Agreements – Investigative Assistance Agreements

Crown counsel must be involved in the granting of immunity from prosecution, and any agreement should be reduced to writing.¹⁶

11.3.3.3 Preparation of Search Warrant Materials

While generally investigators are fully versed in the requirements for obtaining a search warrant, investigative agencies often regard consultation with Crown counsel as advisable, particularly when dealing with novel situations or potentially high profile searches.

Crown counsel can provide advice in obtaining a wide range of warrants and orders, including:

General warrants¹⁷
Tracking warrants
Dialed number recorder warrants
DNA warrants
Production orders under sections 487.012 and 487.013 of the Criminal Code

The nature of assistance will range from advising as to whether a warrant is needed to assisting in the drafting of the application. Actual drafting of the materials by Crown counsel should be considered only in the most sensitive of cases.

11.3.3.4 Access to Sealed Packets

In some cases, investigators will obtain an order to seal a search warrant and supporting materials. Occasionally, either the subject of the search or the media may apply for access to the sealed materials. Crown counsel may appear on those applications.

The decision as to whether the initial sealing order ought to continue, or whether some form of partial release of information can be made, is made jointly by investigators and Crown counsel.

11.3.3.5 Extensions of the Time the Seized Items May be detained

As investigations have become more complex, the ability of investigators to conclude a case within the initial three month detention period provided by subsection 490(2) has become problematic. In many cases, the investigation may continue for a lengthy period after the search is conducted.

The Criminal Code provides for three stages of detention:

The first three months – ordered by the justice who receives a Form 5.2 Report;¹⁸
The next nine month period;¹⁹ or
A period longer than one year from the date of seizure.²⁰

Section 490 allows applications for detention to be made by either a prosecutor or a peace officer. In the vast majority of cases, peace officers are capable of dealing with these applications without the involvement of Crown counsel. However, in some cases, the application to extend can be a very complex proceeding. Protection of ongoing investigations, informers and other related issues might arise. The individual searched may attempt to use the detention hearing as a means of gaining access to the police file long before charges can be laid.

Crown counsel can play a role in detention hearings, including:

Reviewing and providing input into affidavit material prepared by investigators (even where Crown counsel may not appear at the hearing).
Providing advice to investigators concerning the type of information that ought to be detained and that which ought to be returned.²¹
Appearing on contested hearings, where it is anticipated that complex issues will arise.²²

11.3.3.6 Preparation of the Crown Brief

The Crown Brief is one of the most important documents that an investigator will prepare during the course of an investigation. It is through the brief that an investigator presents the theory of his or her case and demonstrates the evidence that exists to prove that theory.

Crown counsel can assist in a number of ways in the preparation of the brief, including:

Providing advice in the planning stages on how to structure the brief;
Providing input during the course of an investigation on areas in the brief that need to be improved or addressed; and
Providing advice on the use of electronic briefs.

11.3.3.7 Disclosure Management

In all but the most routine of cases, disclosure management is key to a successful prosecution. Unless planning and thought is given to developing a disclosure strategy and incorporating it into the operational plan, significant impediments to bringing the case before the court in a timely manner may arise.

Crown counsel can assist in disclosure management in a number of ways:

Providing advice on the general obligations to disclose as set out in case law;
Providing advice and guidance on the structure of the disclosure management strategy to ensure that the materials generated and collected by the investigators are in a form that meets prosecution needs and legal requirements;
Providing advice on issues of privilege (such as “police informer” privilege) and editing; and
Providing advice on the scope of disclosure that is required in a particular case

11.3.3.8 Interviewing of Potential Witnesses Prior to Charges being laid

Generally, Crown counsel do not interview witnesses before charges are laid.²³ Crown counsel assesses potential evidence by reviewing the material contained in the Crown Brief, and in deciding whether the Decision to Prosecute²⁴ criteria are met. This may include, for example, viewing videotaped statements of witnesses.

However, in some circumstances, it may be appropriate for Crown counsel to interview a witness prior to charges being laid. Situations where this might be appropriate, include:

Where the prosecution will depend on witnesses of an unsavoury background, such as police agents and jailhouse informers. Given issues of credibility that arise with witnesses of this type, a precharge interview is generally prudent;²⁵
Where the prosecution will depend on witnesses who may be reluctant to testify, given their lack of familiarity with the Courts and the special nature of the alleged offence. For example, where the allegation involves sexual assaults or young children, an interview may be appropriate to allow Crown counsel to explain the process and the protections for the witness. Here, caution must be used to ensure that Crown counsel is not taking on the role of investigator, but rather is merely providing the witness with some additional information about the process;²⁶
Where the case involves particularly problematic Charter issues that necessitates a closer examination of the evidence. For example, Crown counsel may wish to interview a wiretap application affiant prior to approving charges; and
Cases where there is a statutory requirement for Crown to consent to the laying of charges.²⁷

11.3.3.9 General Advice Needed During the Course of an Investigation

It is impossible to anticipate all forms of advice that Crown counsel is able to give during the course of investigation. When in doubt whether Crown counsel can assist, a senior investigator should contact the local FPS Director to determine if assistance can be given. Some examples of general advice include:

ice on limitation periods for the laying of charges and the renewal or extension of court orders;
providing advice concerning agents and informers;²⁸
providing advice as to whether a search warrant is needed in particular circumstances;
measures such as the Controlled Drugs and Substances (Police Enforcement) Regulations; and
should be conducted with witnesses (e.g. “K.G.B.” statements) and questions that should be asked to address certain aspects of proof. Counsel may also review transcripts and videotapes of interviews of key witnesses to provide input to investigators on the quality and reliability of such persons as Crown witnesses.

11.3.4 Charge Review

The role of Crown counsel in the assessment or “screening” of charges raises a number of difficult issues. Investigators are clearly entitled to seek and receive legal advice before laying charges. Equally clear is the desirability of an effective working relationship to foster consultation when charges are considered. However, the extent to which the Attorney General can at law prevent the laying of charges, because of insufficient evidence or because a particular prosecution is not in the public interest, is not at all clear.

Some authorities argue that it is fundamental to our system of laws that no one can direct an investigator to lay a charge, or to refrain from doing so. Indeed, whether and to what extent the right of “anyone” (including a police officer) to lay an information under section 504 of the Criminal Code can be confined or abrogated is debatable.²⁹

In practice, however, a form of pre-charge screening or “charge approval” occurs in Quebec, New Brunswick and British Columbia. Under these schemes, charges can be laid only if Crown counsel reviews and approves them. Four main arguments have been advanced in support of a charge approval process:³⁰ it is fairer to the accused; it ensures that only cases with a reasonable prospect of conviction will proceed; it is more efficient because fewer mistakes will occur in the laying of charges; and the decision whether to prosecute is more objective.

On the other hand, opponents of pre-charge screening say that Crown control of the process leads to an erosion of police independence, the making of decisions behind closed doors rather than in open court, and a pre-empting by the Crown of the role to be played by the courts in the criminal trial process.

The Attorney General of Canada considers that the following policy principles strike the appropriate balance between the role of the police and the role of Crown counsel before charges are laid:

Members of investigative agencies are entitled to investigate offences and carry out their duties in accordance with the law and general standards, practices and policies established by those agencies. During the investigation, investigators are entitled -- and encouraged -- to consult with Crown counsel about the evidence, the offence and proof of the case in court. At the end of the investigation, investigators are again entitled (and strongly encouraged in difficult cases) to consult with Crown counsel on the laying of charges. This consultation might include discussions about the strength of the case and the form and content of proposed charges. Ultimately, however, investigators have the discretion at law to commence any prosecution according to their best judgment, subject to statutory requirements for the consent of the Attorney General, and the authority of the Attorney General to stay proceedings if charges are laid. However, investigators may not give any undertaking to the accused or counsel for the accused about the conduct of the proceedings (concerning, for instance, conditions of bail, whether the charge will proceed or not) without first consulting Crown counsel.

It is important to note that the Supreme Court has indicated the Crown and the police are to be given some latitude in deciding how to structure their relationship. In R. v Regan, LeBel J. stated: “Furthermore, while the police tasks of investigation and charge-laying must remain distinct and independent from the Crown role of prosecution, I do not think it is the role of this Court to make a pronouncement on the details of the practice of how that separation must be maintained.”³¹

Where the Attorney General of Canada chooses to participate in a process of pre-charge screening, the Attorney General of Canada will apply the charge approval standard established in Part V, Chapter 15, “The Decision to Prosecute”, to all proceedings proposed to be commenced at the instance of the Government of Canada.

11.3.5 Conduct of Post-Charge Proceedings

The right and duty of the Attorney General, through Crown counsel, to supervise criminal prosecutions once charges are laid is a “fundamental part” of our criminal justice system.³² Generally, just as peace officers are independent from political control when laying charges, Crown counsel are independent from the police in the conduct of prosecutions.³³ Crown counsel's independence extends, for instance, to assessing the strength of the case,³⁴ electing the mode of trial,³⁵ providing disclosure to the accused,³⁶ deciding which witnesses to rely on (including decisions about immunity from prosecution)³⁷ and deciding if the public interest warrants continuing or staying a prosecution.³⁸

The authority of the Attorney General to screen charges at this stage is clear. Indeed, as described in Part V, Chapter 15, “The Decision to Prosecute”, Crown counsel “are expected to review the [original] decision to prosecute in light of emerging developments affecting the quality of the evidence and the public interest, and to be satisfied at each stage, on the basis of the available material, that there continues to be a reasonable prospect of conviction”. Crown counsel are also obliged to pursue early and fair resolution of all cases.³⁹

Once charges are laid, full responsibility for the proceedings shifts to the Attorney General. On request, police have the responsibility to carry out further investigations that counsel believes are necessary to present the case fairly and effectively in court. As well, the Attorney General has the authority to control the proceedings after charges are laid, including conditions of bail, staying or withdrawing charges and representations on sentence. These decisions should, wherever reasonably possible, be made in consultation with the investigators although consultation (much less agreement) is not required as a matter of law.

11.4 The Special Situation of Integrated Proceeds of Crime Units

As a result of the implementation of proceeds of crime legislation in Canada, thirteen Integrated Proceeds of Crime (IPOC) Units were created. These units are located in St. John’s, Halifax, Fredericton, Quebec City, Montreal, Ottawa, Toronto, London, Winnipeg, Regina, Edmonton, Calgary and Vancouver. Each unit is composed of investigators (RCMP, municipal and provincial police, and Canada Customs officers), forensic accountants, Crown counsel and administrative support personnel.

Crown counsel and investigators in these units work hand-in-hand on proceeds of crime and money laundering cases. The investigators identify, seize and cause to be forfeited criminal assets, recommend persons for prosecution, gather intelligence and identify, develop and manage human sources. They are responsible for decision-making during the investigative stage. Crown counsel, on the other hand, are available to provide legal services and advice on aspects of the investigation. Crown counsel play such a significant role in the development of these cases during the investigative stage because of the complexity of the investigations, the potential for Crown liability for damages, and the legislative requirement that the Attorney General of Canada make applications for seizure, restraint orders and other matters. As a result, these units represent a significant change in the Attorney General's role in the administration of justice, since Crown counsel work so closely with the investigative team. These units are also a good illustration of the effectiveness of a multi-disciplinary approach. To ensure that objectivity and independence is maintained, the ultimate decision to prosecute a given case is taken by the Prosecution Group Head or the Regional Director. Absent exceptional circumstances, the actual prosecution is carried out by counsel in the Regional office, and not by counsel from the unit.

11.5 Resolving Disagreements between Crown Counsel and Investigators on Whether to Proceed

After consultation, investigators and Crown counsel will usually agree on the charging decision. If they disagree, the issue should be resolved through discussion at successively more senior levels on both sides.

Normally, assessments respecting whether a case should commence or continue should be made at the regional level. Access to witnesses, investigators and physical evidence make this a practical reality. Disagreements that are not resolved should be referred to the Prosecution Group Head and then, if necessary, to the Regional Director or the Senior Regional Director. Where the unresolved disagreement is between a Crown agent and the police, the matter should be referred to the Agent Supervisor in the Regional Office. If the matter cannot be resolved at this level, it should be referred to the Group Head.

In rare circumstances, senior managers at Headquarters may need to review a case in which there is a disagreement⁴⁰. First, the appropriate Senior General Counsel⁴¹ in the Criminal Law Branch should assess the case. Then, if necessary, the Assistant Deputy Attorney General (Criminal Law) and, finally, the Deputy Attorney General may need to provide advice.

1 While this chapter focuses primarily on the role of the RCMP, most of the principles discussed apply to peace officers generally. As to the relationship between the R.C.M.P. and the F.P.S., see the “Memorandum of Understanding”, an appendix to this Deskbook.

2 The Hon. R. Roy McMurtry, “Police Discretionary Powers in a Democratically Responsive Society” (1978), 41 RCMP Gazette no. 12 at 5-6.

3 [1968] 1 All E.R. 763 at 769 (C.A.).

4 R. v. Shirose, [1999] 1 S.C.R. 565 at 591.

5 Wool v. The Queen and Nixon (1981), 28 Crim. L.Q. 162 (F.C.T.D.).

6 Crimes Against Humanity and War Crimes Act, s. 9(3).

7 Criminal Code, s. 119.

8 Criminal Code, s. 477.2

9 See Part V, Chapter 16, “Decisions Made by, and on Behalf of, The Attorney General” for a more complete list.

10 With respect to megacases and war crimes, it is considered essential: see Part XII, Chapter 54, “Megacase Management ”.

11 See Part V, Chapter 15, “The Decision to Prosecute”.

12 The concept of “tunnel vision” is discussed extensively in: FPT Heads of Prosecution Committee, Report of the Working Group on the Prevention of Miscarriages of Justice, 2005, Chapter 4. (http://www.justice.gc.ca/eng/dept-min/pub/pmj-pej/index.html).

13 Section 462.331 also provides that if a management order is needed with respect to property seized under section 462.32 or restrained under section 462.33, the application is to be made by the Attorney General, or a person acting with the written consent of the Attorney General. For further discussion, see Part VI, Chapter 24, “ Proceeds of Crime”.

14 Where the investigation relates to offences that would be prosecuted by the Attorney General of Canada, investigators may seek assistance from local Crown counsel in the preparation of the materials. Where the investigation relates to offences that would be prosecuted by the Attorney General of the province, assistance in drafting the materials should be obtained from the provincial Crown. However regardless of the nature of the investigation, the request to the foreign country must be made via the International Assistance Group in Ottawa. Only the Attorney General of Canada has authority to make a request for an arrest pursuant to treaties.

15 As with mutual legal assistance requests, investigators should seeks advice from the appropriate Crown counsel office. However, regardless of the nature of the investigation, the request must be made via the International Assistance Group in Ottawa. Only the Attorney General of Canada has authority to make a request for an arrest pursuant to treaties.

16 See Part VII, Chapter 35, “Immunity Agreements”.

17 In some jurisdictions, judges will only meet with investigators in the presence of Crown counsel. In those jurisdictions, Crown counsel will appear with the investigator.

18 Criminal Code, s. 490(1)(b).

19 Criminal Code, s. 490(2).

20 Criminal Code, s. 490(3).

21 The extent to which Crown counsel can assist is determined to a large extent by the status of the investigation. If the case is in its early stages, it may be difficult to determine what is relevant and what is not.

22 Crown counsel would appear in most cases where the application has to be brought in the superior court. Where the case proceeds in another court, Crown counsel’s attendance will depend on the nature of the case.

23 One reason for this is that if the purpose of the interview is to assess the person’s credibility, it may be difficult to accurately assess how that person will come across when testifying in the more stressful setting of the courtroom.

24 Part V, Chapter 15.

25 See the procedure for dealing with “jailhouse informers” set out in Part VII, Chapter 35, “Immunity Agreements.”

26 See, generally, Part VI, Chapter 29, “Victims of Crime.”

27 As set out in Part V, Chapter 16, “Decisions Made by, and on Behalf of, the Attorney General.”

28 See Part VII, Chapter 36, “The ‘ Informer’ Privilege.”

29 See A.G. Quebec v. Lechasseur (1981), 63 C.C.C. (2d) 301 esp. at 307-08 (S.C.C.); and R. v. Shirose, note 4, at 591.

30 Discretion to Prosecute Inquiry (Stephen Owen, Chairman) (1990), Commissioner's Report at 25. See also Royal Commission into the Prosecution of Donald Marshall, Jr., Inquiry Report, vol. 1 at 232.

31 [2002] 1 S.C.R. 297 at para.64

32 Re Dowson and The Queen (1981), 62 C.C.C. (2d) 286 at 288 (Ont. C.A.); approved 7 C.C.C. (3d) 527 at 535-36 (S.C.C.).

33 See Part I, Chapter 4, “The Independence of the Attorney General”.

34 See Part V, Chapter 15, “The Decision to Prosecute”.

35 See Part V, Chapter 19, “Elections and Re-elections”.

36 See Part V, Chapter 18, “Disclosure”.

37 See Part VII, Chapter 35, “Immunity Agreements”.

38 Section 579 of the Criminal Code. See also Part V, Chapter 15, “The Decision to Prosecute”.

39 See Part IV, Chapter 13, “Management of Criminal Litigation”, and Part V, Chapter 20, “Plea and Sentence Discussions and Issue Resolution”.

40 See Part II, Chapter 5, “The Federal Prosecution Service”, and Chapter 6, “The Functional Responsibility of the Assistant Deputy Attorney General (Criminal Law)”.

41 In drug, proceeds of crime, and money laundering cases, and cases involving national security issues, this is the Senior General Counsel (Strategic Prosecution Policy Section). In crimes against humanity and war crimes cases, this is the General Counsel (Crimes against Humanity and War Crimes). In all other cases, this is the Senior General Counsel (Criminal Law).