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The Federal Prosecution Service DESKBOOK

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Partie IV
LITIGATION FRAMEWORK
Chapter 13

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13 MANAGEMENT OF CRIMINAL LITIGATION

13.1 Purpose, Scope And Guiding Principles Of The Policy

This chapter provides prosecutors and managers with policy and practice direction aimed at achieving the best possible use of available resources. It seeks to ensure the earliest possible disposition of cases which need not go to trial and the efficient prosecution of cases which are not otherwise disposed of. To these ends, the policy sets out practices that should apply in respect of charge screening, case assessment, disclosure and plea negotiations, and addresses the issue of the relationship with law enforcement agencies, particularly during the investigation of significant cases¹.

This policy is an umbrella or overarching policy which provides the basic framework of the Attorney General of Canada's criminal litigation practice. It should be read in conjunction with the policies and guidelines set out in other chapters of the Federal Prosecution Service Deskbook which deal more specifically with various elements of the criminal process. It should also be read in conjunction with departmental-wide policies dealing with issues such as diversity and equality.

The policy provides the operational framework within which prosecutorial discretion is to be exercised. However, the need to provide prosecutors with the necessary flexibility is recognized, as is the fact that regional differences exist regarding both the nature of the practice of criminal law and the expectations of other participants in the process such as the local judiciary, the defence bar and law enforcement agencies.² Because of this, it is expected that the manner of implementation may vary from region to region and from case to case.

This policy applies to the full range of criminal litigation. Whereas the policy focuses on the early resolution of routine cases, it also encourages the early identification of difficult issues in the case of long and complex trials.The criminal litigation policy is based on the following guiding principles:

• The criminal justice system needs to be more efficient in its use of available resources. New practices must be adopted to achieve that end.
• Resources are invested at the front-end of the process in the expectation that this will minimize the subsequent consumption of resources.
• Better and earlier co-operation with investigative agencies, including joint planning, is an essential component of this policy.

13.2 Charge Screening

13.2.1 General Principles

Charge screening normally refers to the process by which a prosecutor, applying the “Decision to Prosecute” policy,³ assesses the advisability and appropriateness of proceeding with charges which have either been recommended or already laid by investigators. The purpose of this process is in part to ensure that only where proceedings are warranted do cases go forward, and that all cases proceed on the basis of appropriate charges. It also provides an opportunity to assess whether the investigation is complete or needs to be pursued.⁴ This type of front-end intervention by prosecutors also permits an early assessment of the manner in which the case should proceed or be dealt with, including the consideration of alternatives to prosecution.⁵

Early charge screening and case assessment are decisive points in the prosecution process and constitute cornerstones of the litigation policy. Prosecutors involved in this initial process will have a crucial impact on the way cases are dealt with.

To avoid having court time and other resources unnecessarily dedicated to charges that will not proceed, charge screening must be completed as soon as reasonably possible.

Because of the importance and scope of charge screening under this policy, a record of decisions made at that stage should be maintained. Such a record will serve several purposes, including certainty and consistency of approach.

13.2.2 Prosecutorial Independence

Charge screening is not a continuation of the investigation, but rather an opportunity for counsel to independently assess the merits of the Crown’s case before going forward with the prosecution.

Moreover, it is important that counsel who carries out charge screening in any particular case not only exercise independent judgment, but also be perceived as exercising such judgment.

A perceived lack of independence may result from the nature or extent of the involvement of counsel at the investigative stage. Such involvement does not, however, automatically disqualify that counsel from conducting the charge screening.

In cases where counsel has had an extensive or active involvement in the investigative process, it may be prudent for the Prosecution Group Head or Regional Director to apply special measures to avoid a perception of lack of independence. Such measures could range from having a review of the decision of counsel made by another counsel, for example on the basis of the record of decision referred to above, to having the charge screening decision referred to a counsel having had no involvement with the investigation.

13.2.3 Charging Standards

13.2.3.1 Consistency

As stated in the “Decision to Prosecute” policy, the Attorney General of Canada will only prosecute cases where there exists a reasonable prospect of conviction and where the public interest requires that the matter be prosecuted.

The “Decision to Prosecute” policy must be applied in all cases. In jurisdictions where there is pre-charge screening, the policy will be applied before charges are laid. In jurisdictions where there is no pre-charge screening, law enforcement officers should be encouraged to refer to the policy or to consult a prosecutor in case of doubt.⁹

13.2.3.2 Charging Practices

Investigations in areas of federal prosecutorial jurisdiction often single out large organizations involved in complex and far-reaching criminal conspiracies. Such investigations may therefore target a large number of individuals and uncover a large number of offences. This will in turn present inherent challenges for the management of the case, not only for the Crown, but for the courts and the criminal justice system in general.

When dealing with cases of this magnitude and complexity, prosecutors will need to be particularly alive to issues such as the appropriate number of indictments and which accused should be regrouped within any given indictment. It is the responsibility of the Crown to decide how and on what basis the prosecution should proceed.¹⁰ This task requires consideration of a myriad of factors, including the resource implications of any given decision.

13.3 Case Assessment

13.3.1 Introduction

It is at the time of initial charge screening that the prosecutor decides whether a prosecution should proceed and, if so, on what charge or charges. It is also at that stage that the decision can be taken in respect of alternate charges, diversion, plea offers and the appropriate sentence on plea if all the relevant information is available at that time. Moreover, it is clearly more cost-effective to have all preliminary decisions made at an early stage, before cases get into the court system.

13.3.2 Alternative Resolutions

13.3.2.1 Alternative Measures/Diversion

Individuals can be diverted from the criminal process either before or after a charge has been laid, but only where they would otherwise properly be charged or prosecuted pursuant to the “Decision to Prosecute” policy. The issue of diversion first arises at the front-end of the process and is one which, ideally, will be addressed by the prosecutor responsible for charge screening in the particular case in accordance with the “Diversion” policy.¹¹

13.3.2.2 Plea Discussions

13.3.2.2.1 Introduction

A large percentage of criminal cases are resolved by a guilty plea, which may result in substantial savings for the system in general. On the other hand, few accused would plead guilty if there were not some advantage in doing so. The courts now recognize that it is appropriate for the Crown to enter into plea discussions with the accused and to agree to a lesser sentence or a lesser charge in return for an acknowledgement of guilt by the accused. As noted by Carthy J.A. of the Ontario Court of Appeal, “... the justice system acknowledges and encourages plea-bargaining and must show some resistance to undoing a bargain”.¹² Plea discussions provide an opportunity to explore the benefits of such a plea.

It is important to note that the rationale for engaging in plea discussions applies whether the case is a routine one or one likely to prove long and complex. In either case, plea discussions should be actively pursued, and the accused may be entitled to some advantage in return for a guilty plea. The distinction between these two situations lies in the particular focus of the litigation policy and the fact that the public interest is not necessarily reflected in the same way in both situations. Thus, it is easier to justify a more lenient approach to the resolution of routine (and usually less serious) cases than it is in respect of offences that are more serious and require stern denunciation. Moreover, the overall object of the policy is to encourage the early disposition of routine cases so that the necessary resources will be available for the prosecution of the more serious and complex cases.

13.3.2.2.2 Informed and Voluntary Pleas

A guilty plea which is not voluntary and informed does not serve the interests of justice, nor the prosecution's interest in the early and conclusive resolution of cases.

Moreover, it is important to remember that the object of plea negotiations is to avoid the costs of unnecessary litigation, but only in cases where the accused is guilty, and willing to admit guilt.

13.3.2.2.3 Early Pleas

Guilty pleas are sometimes offered on the eve of, on the day of or during the course of trial, after the prosecution, law enforcement agencies and the courts have already expended considerable time and resources dealing with the case. The administration of justice benefits from properly considered guilty pleas being entered at the earliest possible stage in the process. The approach to negotiations should accordingly tend to favour early pleas and discourage late pleas to the extent possible.

Where circumstances warrant, prosecutors should argue that the court should not grant the accused who enters a late plea the same extent of benefits which can sometimes accompany a plea of guilty.¹⁷ A late plea entered by an accused who has received timely disclosure does not reflect the element of reformation which is the usual basis for granting a benefit in return for the plea. Moreover, resource limitations within the criminal justice system are now such that the system cannot afford to encourage late pleas by treating them in the same manner as early pleas.

13.3.2.2.4 Agreement as to Relevant Facts

It would in all cases be prudent for counsel involved in plea discussions to have a clear understanding, which is shared by the accused, as to what facts the parties have agreed upon for the purposes of making representations on sentence following the agreement as to plea.

13.3.2.2.5 Special Practice Directions

The special circumstances of the unrepresented accused have brought particular attention to the need for certainty in resolving cases through plea discussions and have led to practices which deserve to be considered in all cases, and not only in those involving unrepresented accused. These practices include ensuring plea comprehension by the accused and keeping a written record of discussions to avoid uncertainty as to the terms of any offer.

13.3.2.3 Issue Resolution

Not all cases will end in a guilty plea, and a trial may be necessary to establish the guilt or innocence of the accused. Even where early resolution of a case is not possible, it may be possible to expedite the litigation by identifying and resolving specific issues.

13.3.2.3.1 Joint Statement of Facts

A joint statement of facts on some or all of the issues may be the most effective vehicle to identify the issues in a timely fashion. It frees up witnesses and court time, and may leave only issues of law to be argued both at trial and on appeal. It may also lead to a re-election before judge alone, thus avoiding the additional costs of a jury trial.

13.3.2.3.2 Narrowing of Issues, Admissions and Use of Evidentiary Aids

Discussions may assist in narrowing both factual and legal issues. Admissions on the part of both parties and the use of statutory evidentiary aids¹⁸ may also result in a more efficient process, saving the time of both the court and the affected witnesses.

Moreover, prosecutors should seek to identify and circumscribe outstanding issues and should not agree to having court time scheduled for arguing legal issues unless satisfied that the issues require argument.

13.3.2.3.3 Discussions with Unrepresented Accused

Discussions with an unrepresented accused raise special issues of ethics, fairness and certainty as to the result. They should be approached with particular care.

13.4 Disclosure

Early disclosure has a beneficial effect on the whole process and is, in many instances, essential to an early resolution of the case. Moreover, timely disclosure may result in admissions which will reduce the length of, and in some cases even the need for, a judicial hearing.

The Crown's duty to disclose is not absolute. It has discretion to withhold certain privileged information, such as information which might disclose the identity of a confidential informer or the existence of a continuing investigation. Because of the harm which may result, in particular from the inadvertent disclosure of an informer's identity²¹, prosecutors involved in the process of disclosure should be alive to the possibility of such inadvertent disclosure and seek, when appropriate, from the relevant law enforcement agency, an indication of whether any damaging information subject to privilege is contained in the material produced to the Crown for disclosure. In this regard, it is important to keep in mind that apparently innocuous facts may sometimes identify a confidential source just as easily as if the person's identity were directly revealed in the material.

Because of the importance of disclosure and the consequences of non-disclosure (in terms, for example, of Charter relief), it has become essential for the Crown to develop the necessary tools for ascertaining at any given time what it has or has not received from law enforcement agencies, and what it has or has not already disclosed to the accused.²²

Whereas in routine cases the issue of disclosure is usually addressed by prosecutors after a charge has been laid or the investigation completed, the process can be quite different in complex cases where a prosecutor has been involved in assisting investigators in the course of their investigation. In such circumstances, not only should disclosure issues be addressed on an ongoing basis during the course of the investigation, but it should be one of counsel's tasks to advise investigators in that regard so that delays in effecting disclosure do not become an impediment to the early disposition of the case once a charge has been laid.²³

Disclosure can be a very costly and cumbersome process. Prosecutors are encouraged to seek and develop better ways of effecting disclosure. For example, it may be just as convenient for all involved in a particular case to have the information communicated in an electronic format rather than in boxes of documents.²⁴

13.5 Management Of Significant Cases²⁵

13.5.1 Co-operation between Law Enforcement Agencies and the Crown²⁶

Law enforcement agencies and Crown counsel play complementary roles in the criminal process: one being responsible mainly for the investigation of offences, and the other being responsible for the prosecution function. They both enjoy institutional independence at their respective stage of the process. The need for institutional independence does not, however, preclude co-operation and mutual assistance in carrying out each other's mandate. Indeed, ongoing co-operation between the Crown and law enforcement agencies, although always desirable, has now become essential so as to ensure that resources will not be wasted in the pursuit of incompatible goals.²⁷

Co-operation is all the more important when the investigation is likely to result in the expenditure of substantial Crown resources at the prosecution stage. In this context, joint planning becomes a management tool aimed at anticipating and responding to resource requirements. The magnitude and complexity of certain investigations is such that the Crown may not be able to deal in a timely and effective way with the resulting prosecutions unless it has been informed beforehand of what and when resources are likely to be required.

The need for co-operation also arises in the course of specific investigations as both parties should be working together in contemplation of, and in preparation for, subsequent prosecution. The major aspect of this ongoing effort, beyond the seeking and giving of legal advice, is the preparation of materials which will be required by the process after the charges have been laid. This includes, for example, the material required for the purposes of disclosure, bail, voir-dires and the trial proper.

13.5.2 Role of the Prosecutor

The Crown can assist law enforcement agencies in all cases by providing them with advice which may help focus investigations and facilitate the Crown's task at trial. This is particularly important where long and costly investigations are involved, which in turn are likely to result in equally long and expensive prosecutions.

Some of the areas where the advice of prosecutors may be particularly helpful include the sufficiency of grounds for obtaining a search warrant, the legality of warrantless searches, the constitutionality of certain investigative practices and the application of the Attorney General's charging standards.

It is important to note that early and active Crown involvement as proposed above is not intended to deprive law enforcement agencies, and more particularly the police, of their independence at the investigative stage, but merely to make available to them the resources that may assist them in proceeding according to the rule of law and in a way that will facilitate subsequent prosecutions. As a general rule, investigative agencies remain ultimately responsible for the way in which the investigation is carried out.

Especially in the more significant cases, the involvement of experienced counsel at the investigative stage may benefit both law enforcement officials and the Crown by ensuring that, throughout the investigation, relevant decisions are made with effective prosecution in mind. It is important that consideration be given to having a prosecutor assigned to assist at the investigative stage where a case has been identified as one likely to benefit from such involvement at a particular point in the investigation.

It may also be more efficient in certain cases for the prosecutor assigned to the investigation to be assigned to the subsequent prosecution as well. It also facilitates co-operation with the investigators, permits a more efficient determination of what witnesses are required, and facilitates disclosure by the Crown.

It is, however, important to recognize that Crown involvement in the police investigation carries with it the possibility that the prosecutor will be called as witness in the case. This is obviously a matter of great concern since the prosecutor heard as a witness is rarely able to continue in his or her capacity as counsel in the case. This in turn defeats one of the main objectives of assigning counsel to a case at the early stage, that is having a knowledgeable and experienced counsel ready to proceed in the case from the moment the charge is laid. Fortunately, courts have been reluctant to allow counsel for either side to be called as a witness in the case unless there is no other reasonable alternative available in the circumstances.²⁹

13.5.3 Assessment

The effective management of significant cases requires close co-operation between Crown counsel and law enforcement agencies at the planning, the investigative and the prosecution stages. The level and effectiveness of a particular co-operative effort may vary from case to case, and there may be valuable lessons learned from each experience.

This suggests that it would be important to review the management of each significant case after it has been completed so that successful practices can be clearly recognized, as well as areas where greater efficiencies can be attained.

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Date Modified:

2008-12-24