In 2008, the Public Prosecution Service of Canada (PPSC) conducted a national, in-house survey of the investigative agencies that initiate most of the cases that it prosecutes. It also committed to providing feedback to survey recipients once the analysis was complete. This report on survey findings and conclusions is intended to meet this commitment, and to serve as a springboard for further communication and exchange between the PPSC and investigative agencies in the provinces.1
The PPSC was created in December 2006, when the Director of Public Prosecutions Act came into force. It replaces the former Federal Prosecution Service (FPS), which was part of the Department of Justice Canada. The Director of Public Prosecutions is responsible for prosecuting offences under federal jurisdiction, and for providing prosecution-related legal advice to law enforcement agencies over the course of investigations that may lead to such prosecutions. As such, the PPSC works with investigative agencies across Canada. These include the RCMP, provincial and municipal police services, and the enforcement arms of federal departments and agencies.
The PPSC operates from 11 regional offices and five sub-offices across Canada. Its headquarters are located in Ottawa. The majority of its employees are prosecutors. The PPSC also retains the services of private-sector legal agents to conduct prosecutions on behalf of the federal Crown. The PPSC uses legal agents where it does not have a regional office or where it is impracticable or otherwise not cost-effective to handle cases with staff counsel.
The 2008 PPSC survey of investigative agencies represents the organization’s first attempt to seek feedback on its services. Its purpose was three-fold:
Separate surveys were undertaken for the provinces and territories given the distinct characteristics of prosecutions in a northern context.
The survey questionnaire2 addressed the full range of PPSC services, including drug, organized crime and regulatory prosecutions, as well as general legal advice, liaison and training. Using a five point scale, respondents were asked to qualify various aspects of these services as poor, acceptable, good, very good or excellent. These aspects include, but are not limited to the following:
Respondents were also invited to provide written comments on the strengths of specific PPSC services in each of these areas, and to suggest possible strategies for improving them. In closing, respondents were invited to list any other prosecution-related activities that they thought the PPSC should be involved in but currently is not, as well as to provide any other comments that they felt were relevant.
The survey questionnaires were mailed to investigative agencies in the provinces over the course of February 2008. The survey packages were addressed to officers in charge and other investigative agency managers. The mailing list was drawn from the 2007 Canadian Police Information Centre (CPIC) manual. The list includes RCMP detachments, those of provincial and municipal police services, as well as specialized police units focusing on specific areas such as drugs and gangs, organized crime, major crimes and money laundering.
The questionnaire was also mailed to enforcement and investigation units within federal departments or agencies such as the Canada Border Services Agency (CBSA), the Canada Revenue Agency (CRA), the Department of National Defence (DND), Environment Canada (EC), Fisheries and Oceans Canada (FOC), Parks Canada (PC), Transport Canada (TC) as well as to members of the Competition Bureau at Industry Canada (IC).
The final survey pool in the provinces is comprised of 380 respondents, for a return rate of close to 35%. This is considerably higher than the generally expected 15% response rate for mail out surveys, indicating a high level of interest in providing feedback to the PPSC among investigators. There was an unequal distribution of respondents across the provinces. By far the most respondents were from Ontario, accounting for almost a quarter (24%) of the survey sample. Respondents in each of the Western provinces represented roughly 15% of the sample: Alberta (14%), Saskatchewan (16%) and British Columbia (16%). There were far fewer respondents from Manitoba, Quebec and the Atlantic region, each of these provinces accounting for 8% of respondents or less.
Four out of five respondents belonged to a police service, including the RCMP (58%), municipal police services (20%) and the Ontario Provincial Police (OPP) (9%).3 Significantly fewer respondents (14%) were affiliated with the enforcement arms of federal departments and agencies. The 53 investigative agency respondents were distributed as follows: 20 for the CBSA, 12 for the DND, 7 for the Competition Bureau, 7 for the CRA, 2 for EC, 2 for Parks Canada, 2 for Transport Canada and 1 for CP Railway.
Respondents were almost equally split among three groups in terms of their frequency of contact with the PPSC, with roughly a third reporting daily (7%) or weekly (23%) contact, bi-weekly (14%) or monthly (23%) contact, or infrequent contacts with the PPSC, at less than once per month (33%).
As for the nature of their contacts with the PPSC, more than four out of five respondents (82%) reported that they had used drug prosecution services; fewer respondents reported that they had used regulatory prosecution services (32%) and organized crime prosecution services (14%). In addition, over two thirds of respondents (68%) reported that they had received general legal advice, compared to 37% who reported that they had been involved in liaison activities and 14% who reported that they had participated in training activities.4
Respondent rankings of PPSC service aspects were coded and entered into MS Excel and SPSS5 data bases. Using SPSS, inferential statistical tests were performed to determine whether the rankings varied in a statistically significant manner according to the respondents’ province, the investigative agency to which they belonged, or the type of services that they were rating. The tests did not show any statistically significant differences within or between these groups. Therefore, from a statistical perspective, any variation in respondent perceptions of PPSC services can be equally attributed to chance as it can to differences based on the province in which respondents are located, the type of investigative agency they belong to, or the PPSC service(s) they used. This suggests, and the qualitative analysis will show that there are other factors at play.
Notwithstanding the above, an analysis of the frequency of respondent rankings of PPSC services indicates that certain aspects of PPSC drug, organized crime and regulatory prosecution services tend to be more positively ranked, while others tend to be ranked more negatively.6
General legal advice, liaison and training received positive rankings overall.7 For instance, respondents most frequently rated the consistency, usefulness and timeliness of general legal advice as very good or excellent. Similarly, respondents most frequently rated liaison meetings as very useful or extremely useful, and the relevance and usefulness of training activities and training materials as very good or excellent.
Respondent comments varied in length, from a single word or sentence to a few paragraphs and, in some cases, a full page. All comments were transcribed onto a chart and analysed to identify the range of themes that were raised, the similarities and differences in their manifestations, as well as the resulting impact on respondent perceptions of PPSC services and suggested strategies for improving them.
Comments revealed a remarkable level of consistency in the considerations that contribute to more positive perceptions of PPSC services by their presence and to more negative perceptions by their absence. Further, this holds true across prosecution fields/services, investigative agencies and locations throughout the provinces. These factors include the following:
There was also a high level of consistency in the strategies that respondents proposed to strengthen PPSC services, including:
It is important to note that the purpose of the qualitative analysis is not to account for the frequency of various comments, or to ascertain whether the respondents’ interpretation or portrayal of events are wholly “
accurate” or “
true”. In any case, the data generated by the survey would not allow us to do so. Rather, it is to understand the array of factors that explain the perceptions that the comments describe. Thus, frequent comments or perceptions do not necessarily have more inherent value, in terms of generating knowledge or understanding, than infrequent or even unique ones.
As will be shown, respondent perceptions can be influenced by a range of factors, including their beliefs and attitudes on the seriousness of the offences being enforced and the type of legal response that is called for, their understanding of the prosecutor’ role in the criminal justice system, their actual interactions with PPSC staff prosecutors and legal agents, and the extent to which these interactions meet their needs and expectations. Hence, comments reveal more than one example of differing perceptions of the same services, based on these variations. This is to be expected, given the complex dynamics of any working relationship, and the range of individual, organizational and legal factors at play.
Respondents viewed PPSC prosecutors’ knowledge of the relevant laws, regulations, policies, legal precedents and Charter issues, as well as their understanding of the legal rules and procedures governing drug, organized crime and regulatory prosecutions as a solid basis for providing sound legal advice and practical assistance to investigators. Specifically:
Although respondent comments indicate that PPSC prosecutors’ legal knowledge and advice are central to positive perceptions of PPSC services, comments also show that such knowledge and advice are not sufficient. Ongoing communication, liaison and training are equally important, not only in terms of promoting optimal investigative practices, but also in terms of setting the foundation for effective working relationships between investigators and prosecutors. In particular:
personal contact” and to network.
Respondent comments raise a number of issues pertaining to various aspects of the PPSC’s management of drug, organized crime and regulatory prosecutions. These include the timeliness of pre-charge screening and/or post-charge review processes, the perceived forcefulness of its prosecution approach, the efficacy of disclosure mechanisms, and the reliance on legal agents.
Pre-charge screening or “
charge approval” occurs in Quebec, New Brunswick and British Columbia. In these jurisdictions, charges can be laid only if Crown counsel reviews and approves them. Although pre-charge screening is not required in other jurisdictions, charges are subject to review after they are laid. Respondent comments highlight the importance of timely pre- and post-charge review processes.
PPSC prosecutors must consider two issues when deciding whether to proceed with a case: whether the evidence is sufficient to justify the institution or continuation of proceedings and, if it is, whether the public interest requires a prosecution to be pursued. Their role is not to win a conviction at any cost but to put before the court all available, relevant and admissible evidence necessary to enable the court to determine the guilt or innocence of the accused.
The survey questionnaire did not distinguish between the services provided by staff prosecutors and those provided by legal agents. Distinctions between the two groups were made by respondents themselves, both in their survey comments on PPSC services – most strongly in the field of drug prosecutions – and in the inquiries they addressed to the PPSC prior to completing the survey.
ad hoc Crowns”, “
per diems”, “
rent-a-Crowns” and, most tellingly, “
contract defence attorneys”. These terms are less a reflection of agents' knowledge or skills than of the fact that agents are not permanent employees of the PPSC9, which these respondents viewed as negatively impacting on:
Various respondents attributed shortcomings in their working relationship with PPSC prosecutors to operational pressures within the PPSC, resulting in an obligation to “
do more with less”.
As for the considerations that influence respondent perceptions of the PPSC, there was a high level of consistency in the strategies that respondents proposed to strengthen PPSC services.
In addition to more prosecutors overall, respondents called for the designation of more “
full-time”, staff prosecutors to support particular geographic areas, specialized units, and/or locations now served by distant PPSC offices or agents; the assignment of specialised prosecutors to particular prosecution fields; and/or the dedication of a prosecutor or team of prosecutors to major cases in order to ensure the consistency and timeliness of services
Respondents also raised the need to promote the retention of experienced prosecutors, given the frequent need for specialized knowledge to effectively prosecute drug, organized crime and regulatory charges, and the time and training required to acquire it. However, they also acknowledged that the retention of experienced prosecutors can be compromised by non-competitive PPSC pay scales and working conditions, and argued for their enhancement. In addition, respondents suggested that the PPSC should deliver new services in areas such as bail hearings and detention orders, search warrant preparation and takedown planning.
Respondents who had had little or no contact with the PPSC during its first year of existence requested more information on its mandate, the services that it provides, how it can assist investigators, and how to contact prosecutors.
However, by far the most frequently proposed strategy to promote a more effective rapport between investigators and PPSC prosecutors is to promote ongoing communication and liaison between the two groups, at both the front-line and management levels. In particular, respondents repeatedly called on prosecutors to inform them of the rationale for staying or reducing charges, or entering into sentencing agreements, and to provide constructive criticism of their investigative practices. They also called for regular interactions on more general legal matters to ensure that everyone is “
on the same page”.
With respect to information sharing and training, respondents suggested that the PPSC produce and broadly circulate written materials on relevant legal matters to investigative agencies. It was also proposed that the Internet be used as a repository for the written information produced, thereby reducing the number of requests for legal advice directed to PPSC prosecutors.
Finally, respondents repeatedly called on the PPSC to expand its formal and informal training activities. In order to maximize benefits and reduce costs, they also proposed that the PPSC participate in joint training efforts with their agencies, and deliver the training at central locations. In addition, respondents requested that the PPSC broadly disseminate announcements of such activities.
Respondents who questioned the forcefulness of PPSC’s prosecution approach called on prosecutors to be less risk averse, reduce their reliance on plea and sentencing agreements, and fight for harsher sentences (particularly in drug cases). Respondents who felt that sentences for drug offences are inconsistent or inappropriate, called for (more) research on sentencing trends and precedents in order to better support PPSC prosecutors in sentencing negotiations or arguments. While prosecutors must maintain their independence in determining the appropriate approach in a given case, comments show that it can be beneficial for them to at least acknowledge investigator concerns, and to maintain ongoing communication on case-specific and more general legal matters.
Respondents from jurisdictions with pre-charge screening or “
charge approval” argued that the process could be streamlined or eliminated given that it can cause excessive delays in case processing, and may not reflect local realities or community expectations. Similarly, respondents across the provinces highlighted the importance of timely post-charge review in order to allow for adequate trial preparation, and avoid last-minute requests to investigators.
On a broader level, some respondents – particularly police involved in drug prosecutions – questioned the reliance on agents due to their “
part-time” status, resulting in an actual or perceived conflict of interest when they act as defence counsel in matters that are unrelated to the statutes for which they are appointed. These respondents strongly expressed the view that PPSC prosecutors should be permanent employees of the organization.
The results of the 2008 PPSC survey of investigative agencies paint a remarkably consistent picture of the factors that contribute to more positive perceptions of PPSC services by their presence and to more negative perceptions by their absence. As both the quantitative and qualitative analyses show, respondent perceptions do not vary, in a systematic way, according to service delivery location, the investigative agencies involved or the services used. Rather, results indicate that respondent perceptions of PPSC services tend to vary based on their beliefs and attitudes regarding the enforcement and prosecution of criminal offences, as well as their individual experiences with the staff prosecutors and agents with whom they work. To some extent, this is not surprising, given the range of criminal offences that the organization prosecutes, the number of service delivery locations, many of which are rural or remote, the reliance on a large number of legal agents, as well as current operational pressures faced by the PPSC and investigative agencies, including staff recruitment and retention issues.
Nonetheless, the survey results suggest a number of areas in which to focus our efforts: PPSC prosecutors’ knowledge and legal advice, communication, liaison and training, and various aspects of the case management process. However, the results do not provide concrete measures of organizational performance in each or these areas, or the factors that can affect performance levels. As a result, there is a need to further document PPSC activities and outcomes, to implement additional strategies to improve organizational performance where required, and to enhance mechanisms to monitor improvements (or to explain a lack thereof). Possible next steps are summarized below. Clearly, many are underway or being considered, demonstrating their relevance to the PPSC’s current priorities as well as its planning and reporting requirements.
part-time” status, there may also be a need to further communicate conflict of interest guidelines.
1 The results of the survey in the territories are dealt with in a separate report entitled 2008 PPSC Survey of Investigative Agencies in the Territories: Report on Findings and Conclusions. The report can be found at http://ppsc-sppc.gc.ca/eng/pub/siat08-saot08/index.html.
2 The survey questionnaire can be found at http://ppsc-sppc.gc.ca/eng/pub/siap08-saop08/questionnaire.html.
3 Although the survey was sent to independent First Nations Police services, only two were included in the survey sample since they were the only ones that reported using PPSC services during the year preceding the survey.
4 The survey questionnaire defined general legal advice and liaison as concerning legal matters of a more general nature, rather than a specific file or potential prosecution. Nonetheless, in commenting on PPSC services in these areas, respondents referred to both general and case-specific advice and liaison. Hence, reported levels of use in these areas are likely an overestimation.
5 SPSS – Statistical Package for the Social Sciences – is a statistical software program.
8 Respondents did not express the same level of concern over the use of legal agents for regulatory or organized crime prosecutions as they did for drug prosecutions.
9 Legal agents are private-sector lawyers who have entered into an agreement with the Director of Public Prosecutions (DPP) to conduct federal prosecutions pursuant to section 7(2) of the DPP Act.
10 In more general terms, private sector agents are allowed to act as defence counsel in matters that are unrelated to the statutes for which they are appointed. Terms and conditions of their appointment, including conflict of interest guidelines, can be found at http://www.ppsc-sppc.gc.ca/eng/pub/tca-cnm/part2.html.