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Chapter 10

The Federal Prosecution Service DESKBOOK

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Part III
PRINCIPLES GOVERNING CROWN COUNSEL’S CONDUCT
Chapter 10

10 COMMUNICATIONS WITH THE MEDIA

10 COMMUNICATIONS WITH THE MEDIA

10.1 Introduction

The obligation of the justice system to inform the public is an essential ingredient of a fair and equitable justice system. In February 1998, the Minister of Justice affirmed this principle by publicly stating that it is a priority for the Department of Justice to restore the public’s confidence in the system of criminal justice.

Public confidence in the administration of justice depends on access to full and accurate information on court proceedings. A misinformed media can convey misleading messages, thereby undermining public confidence.

By providing appropriate information, Crown counsel can help ensure that citizens have a fair opportunity to determine whether the justice system is functioning effectively.

In the past, communications with the media have largely been handled by official spokespersons. Crown counsel, who are often the most knowledgeable persons about the information requested, should be able to respond directly, to ensure that accurate information is presented to the public.

10.2 Statement of the Policy

Subject to the overriding duty to the administration of justice to ensure that trials are fair, Crown counsel are encouraged to provide the media with timely, complete and accurate information on matters relating to the administration of criminal justice in which the Attorney General of Canada is involved.

The goal of the policy is to enhance public understanding of, and confidence in, the administration of justice by providing available information. Crown counsel should respond to all reasonable requests for such information.

10.3 Scope of the Policy

10.3.1 Relationship to Departmental Policy

This policy is intended to complement the Media Relations Policy of the Department of Justice¹, and should be read with that policy. The policy seeks to give more specific guidance to prosecuting counsel. Like all other policies in this Deskbook, the policy also applies to Crown agents.

10.3.2 Types of Communication

10.3.2.1 Contacts Initiated by the Media

This policy applies both to contacts initiated by the media, and to contacts initiated by Crown counsel. In the former case, media representatives may seek information in person (eg., by questioning counsel outside the courtroom), by telephone, or by electronic mail. In such situations, Crown counsel may not have the opportunity to consult before responding.

10.3.2.2 Contacts Initiated by Crown Counsel

Crown counsel may also identify a need to correct inaccuracies or provide information without being contacted by the media. This might be done, for example, through a letter to the editor of a newspaper, by a handout or fact sheet, by the issuance of a press release or the holding of a press conference. In those situations, Crown counsel must consult with a senior manager such as the Prosecution Group Head or Regional Director, and/or the Communications Branch of the Department, both with respect to the appropriate means of communication, and the content of the communication.

One situation where Crown counsel may consider such measures is in the staying of proceedings or withdrawal of charges. In some circumstances, a statement in court may be the best means of communication.

10.3.3 Communications before Charges are Laid

Before laying charges, the media may seek to confirm that the police are investigating a specific individual or that charges are expected to be laid. It is a longstanding practice of the Department to decline to confirm or deny such allegations. To deny the existence of an investigation at one time, and to decline to comment later, is as revealing as an affirmation. Moreover, it is important not to comment so as not to prejudice an ongoing investigation. The proper response is to advise that, as a matter of policy, the Attorney General of Canada does not discuss such matters publicly.

10.3.4 Communicating with the Media in One’s Personal Capacity

Crown counsel, like all departmental employees, are subject to certain limitations when communicating with the media in their personal capacity. Crown counsel must not make statements that would:

compromise his or her ability to do his or her job in the future; for example, a prosecutor who states that drug laws in Canada are “immoral”;
discourage public respect for the administration of justice or weaken the public’s confidence in our legal institutions, for example by publicly commenting on or criticizing a judge’s decision in another case in a manner that could bring about either of these results;
contravene professional codes of conduct; or
constitute opinions on matters of public interest where the primary reason the opinion is sought or is relevant is because of the nature of a person’s position as Crown counsel.

10.4 Application of the Policy

10.4.1 Guiding Principles

The following general principles should govern Crown counsel’s approach to communications with the media:

Give facts, not opinions - Crown counsel should provide information, and they should explain. They should not offer personal opinions about court decisions, or laws or governmental policies. The goal is to foster understanding, not to create sensation.
Speak for attribution - All communications with the media should be considered “on the record”. Crown counsel must assume that any comments they make to journalists can be attributed to them in their names.
Respect journalists’ needs - It is important to recognize that journalists have a job to do, whether or not you assist them. Because they will pursue the story, it is usually better to respond to their questions. It is also necessary to bear in mind journalists’ deadlines in attempting to respond.
Be responsive - “No comment” is not an acceptable response to a request for information. If the particular question posed cannot be answered because it calls for an opinion, invites comment on matters under judicial consideration, or attempts to confirm the existence of a police investigation, explain to the questioner why the response sought would be inappropriate.
Educate the public - The media, and the public generally, may not understand the complexities of the justice system. Crown counsel have a duty to explain aspects of the system such as the role of the prosecutor or the appeal process, in a comprehensible way.
Be timely - Misinformation, left uncorrected, damages the system’s reputation. Seek to prevent an inaccurate public record by providing information in a timely way, respecting where possible journalists’ needs to meet deadlines. Where comment is to be made after a misleading or inaccurate story appears, a representative of the Crown should set the record straight as soon as possible.
Protect the integrity of the trial - All comments which prejudice the right of an accused to a fair trial must be avoided. Counsel for the Attorney General do not argue their case in the media.

10.4.2 Specific Direction

The following sections are intended to provide, in a non-exhaustive way, guidance to Crown counsel as to how to apply the foregoing general principles.

10.4.2.1 Provision of Factual Information

Crown counsel may provide factual information, not opinions, concerning:

cases before the courts²;
the prosecution policies in this manual (e.g. explaining the “reasonable prospect of conviction” standard in the “Decision to Prosecute” policy);
the process, substantive criminal law or procedure;
the operation of the criminal justice system;
the role of prosecutors in the system;
the meaning of a court decision, without commenting on whether it is “right”, “wrong”, “good” or “bad”;
the role and responsibilities of the Attorney General and Minister of Justice.

10.4.2.2 Information which Cannot be Provided

Crown counsel should not comment on:

privileged information;
advice given to, or discussions held with, the Attorney General, colleagues, foreign officials, or members of an investigative agency, whether or not such advice or discussions are privileged;
any information the disclosure of which is prohibited by law (e.g. by virtue of the Privacy Act, Young Offenders Act) or by a court-imposed publication ban;
policies, procedures or decisions of investigative agencies (such inquiries should be directed to the investigative agency);
the existence of any plea negotiations or possibility of a plea of guilty or other disposition³.

10.4.2.3 Expression of Personal Opinion

Prosecutors should not speculate on, or offer personal opinion on:

the wisdom or efficacy of federal or provincial policies, programs or legislation;
the possibility of charges being laid;
the strength or weakness of the Crown or defense case during a trial;
the appropriateness of a judge's charge to the jury, particular rulings, the verdict of a jury, the sentence or any comments made by the judge;
whether a decision will be appealed or not (however, the procedure for considering whether or not to appeal may be explained);
the guilt or innocence of an accused.

10.4.2.4 Deferring Requests

When in doubt about some aspect of a media inquiry, Crown counsel should decline to answer at that time, explain why, and seek the advice of the FPS Director or the Regional Director. Additionally, prosecutors may wish to refer calls to designated spokespersons or the Public and Media Relations and Analysis division of the Communications Branch. A Media Relations Advisor should be notified of the inquiry in any event. Referring the inquiry to another person will often be advisable where the case: a) is a particularly controversial one; b) a designated spokesperson has already handled media inquiries regarding the same subject; or c) there are security concerns in the case, for example, for the personal safety of Crown counsel.

10.5 Internal Responses to Media Inquiries

Crown counsel should brief the Prosecution Group Head on all media inquiries. Where a proceeding may receive media attention or create public controversy, the Attorney General personally may be called upon for comment. In such cases, counsel shall immediately provide a briefing note to the Assistant Deputy Attorney General (Criminal Law), routed through counsel’s manager. It should outline the facts, action taken to date, and the focus of media interest⁴.

Such cases include those in which:

the subject matter of the prosecution involves significant constitutional questions, federal-provincial or international relations, government operations, or national security;
the accused is a public figure;
the issue or issues raised have previously generated public debate.

1 See “Communications Issues in Litigation” on the Department’s Intranet site, under Communications and Executive Services Branch.

2 Great caution must be exercised in this regard. It would be permissible, for example, to provide a copy of a document entered as an exhibit, i.e. after its admissibility had been determined.

3 Note, however, that after a plea of guilty has been entered, Crown counsel may explain, for example, why a plea to a lesser included offence was accepted.

4 See Part IX, Chapter 45, “Consultation with Responsibility Centres” and Part IX, Chapter 48, “Ministerial Briefing Material”.