Navigation Links
The Federal Prosecution Service DESKBOOK
[ Previous | Table of Contents | Next ]
Part III
PRINCIPLES GOVERNING CROWN COUNSEL'S CONDUCT
Chapter 12
Table of Contents
12 CONTACTS WITH THE COURTS
12.1 Background
Because of the dual roles of the Minister of Justice and the Attorney General of Canada1, situations can arise which raise questions about government influence on the courts and the possible impairment of judicial independence. To cite only the most obvious example, Department of Justice officials are in the unique and delicate position of being responsible both for conducting government litigation and for advising on issues relating to the courts and the judiciary. Contacts with the courts to deal with matters of policy and administration are both appropriate and necessary, but have the potential to be controversial if they are not handled properly. The purpose of this policy is to ensure that Crown counsel have sufficient guidance to assist them in their contacts with courts.
The guidelines found below are adapted from the Department of Justice policy entitled “Guidelines on Contacts between Officials of the Department of Justice and the Courts
”. In a sense, there is nothing new about the content of the guidelines. The principle of judicial independence is fundamental to our justice system, and every lawyer should recognize the need to be careful and sensitive about contacts with courts and judges. Crown counsel, moreover, are well aware of the implications of their unique role and the importance of avoiding acting in any way that would give rise to a suggestion that they have attempted to improperly influence or pressure the judiciary. Most of the time, common sense and our professional integrity should be a sufficient guide. The guidelines will serve as a statement of our commitment to the important principles referred to above, and as a useful reminder of what is expected of Justice employees.
Nonetheless, situations do arise in which things are not so simple or clear, and there may be a benefit to a broader consideration of the issues involved. The guidelines are a beginning, the basis of a discussion. Particularly complicated or problematic cases are to be referred to the Department of Justice's Committee on Contact with the Courts.
12.2 Objectives
The objective of these guidelines is to help Justice officials avoid situations that could give the impression that Crown counsel, the Department of Justice, or the government is improperly attempting to influence or exert pressure on the courts or judges in the exercise of judicial functions. While all counsel must be sensitive to the propriety of their contacts with the courts and their relationship with the judicial, and are expected to act ethically, Crown counsel and other officials, as representatives of the Minister of Justice and the Attorney General of Canada, are in a unique position that requires particular caution in dealings with the courts.
12.3 Guidelines
12.3.1 Business or personal relationship with a judicial officer
Crown counsel shall not appear before a judicial officer when the lawyer has a business or personal relationship with that officer which might reasonably be perceived to affect the officer's impartiality.
12.3.2 Improper attempts to influence judicial officer
In a contested cause or matter, Crown counsel shall not attempt, or knowingly allow anyone else to attempt, to influence the decisions or actions of a judicial officer, directly or indirectly, except by means of open persuasion as an advocate.
12.3.3 Communicating with judicial officer in contested matters
In a contested cause or matter, Crown counsel shall not communicate, directly or indirectly, with a judicial officer, except:
- in open court;
- with the consent of, or in the presence of, all other parties or their counsel;
- in writing, provided a copy is given at the same time to the other parties or their counsel; or
- in ex parte matters, as permitted by law.
12.3.4 Meetings in relation to administrative matters
In discussing with judges and court officials matters of government policy that could affect the administration of the courts, Crown counsel shall conduct themselves in such a way as to avoid any possible suggestion that they are improperly attempting to influence or exert pressure on the courts or individual judges in the course of exercising their judicial functions.
12.3.5 Referral to the Committee on Contacts with the Courts
Where there is doubt about whether a particular contact or action involving a Crown counsel is appropriate, counsel shall refer the question to the prosecution group head. If there is still doubt, the question shall be referred to the Department of Justice's Committee on Contact with the Courts.
1 See Part I, Chapter 3, “The Role of the Minister of Justice and the Attorney General in Developing and Enforcing the Criminal Law
”.
[ Previous | Table of Contents | Next ]