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3. Chapter 54

The Federal Prosecution Service DESKBOOK

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Part XII
NEW POLICIES
Chapter 54

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54 MEGACASE MANAGEMENT

54.1 Introduction

The administration of justice may be severely strained by trials that stretch over an extended period of time and involve many accused facing several charges. As the Ontario Court of Appeal has observed, “[u]ntil relatively recently a long trial lasted for one week, possibly two. Now, it is not unusual for trials to last for many months, if not years.”¹ The level of public concern generated by these proceedings is such that the terms “megacase”, or “megatrial”, which entered the legal lexicon in the last decade or so, are now in common use in the media.

Generally speaking there are three essential features to a megacase. First, they result from lengthy investigations, usually involving wiretapping. Second, they concern joint enterprises. This usually means that there will be more than one accused, each facing many serious charges. Third, the cases are characterized by voluminous evidence. Because they deal with serious crime committed by persons who use sophisticated methods of avoiding detection and/or are engaged in extensive criminality, proof of the Crown's case may involve production of thousands of pages of wiretap transcripts, surveillance reports, business documents, witness statements and other documentary evidence. Not every case having some or all of these characteristics will necessarily be considered a megacase; this policy is directed at those that will lead to unusually long, complex and costly trials.²

54.2 Purpose of the Policy

The purpose of this policy is primarily to function as a legal risk management tool to address the legal, financial and strategic risks associated with megacases. In so doing it will ensure a consistent approach is taken, one that serves to support the ADAG (Criminal Law) in respect of his or her functional responsibility for prosecutions by generating specific recommendations as to how particular megacases should be managed. The special challenges posed by these cases must be identified at an early point and a plan of action created and approved to ensure that key strategic choices are made throughout the investigative process in a timely way.

54.3 The Management of a Megacase

54.3.1 The Relationship with the Investigative Agency

There can be no doubt that the principle of the investigative independence of the police is firmly entrenched in this country³. That principle seeks to ensure that investigative decisions will not be subject to improper political control. The Supreme Court of Canada has also recognized that both investigative and prosecutorial functions should be exercised independently, but the same court has refused to dictate how the relationship between investigators and prosecutors should be structured.⁴

While prosecutors and investigators continue to be independent when discharging their respective functions, a sense of partnership must permeate the relationship in megacases, as has been noted:

Excellence and innovation require cooperation, at all levels. In a world of interdependence, cooperation is probably the only sustainable response to increased complexity. Cooperation is a matter of common sense. It is about rationalization of limited resources. It is a question of survival.⁵

Accordingly, FPS involvement in megacases will be characterized by early, continuous and close involvement with the investigative agency.

54.3.1.1 Provision of Legal Assistance to the Investigative Agency

As early as possible in the investigation, the FPS Director should discuss with the local head of the investigative agency the need to dedicate the services of one or more counsel on an ongoing basis to assist with the many challenges facing investigators. These counsel should have the experience necessary to ensure that any advice given is in accordance with best prosecutorial practices⁶. Because these counsel are experienced, and consult regularly with those who are conducting prosecutions full-time, advice and assistance given at the investigative stage will be supported down the road by the prosecutor(s) handling the case. The investigative agency should be confident in the knowledge that the provision of legal services will effectively be seamless, that is, consistent from the investigative stage through to trial.

Crown counsel's assistance to investigators must be offered on several fronts⁷, such as:

• providing advice on the legality of investigative measures;
• assisting in the development of a strategic plan that will result in a manageable prosecution or prosecutions;
• drafting immunity agreements with co-operating agents, where necessary⁸;and
• reviewing or assisting in the drafting of search warrants or other applications, where appropriate.

It should be emphasized that Crown counsel's role is to provide appropriate legal advice when advice is sought. This will involve advising investigative agencies as to how investigative choices will impact on any future prosecution, and may also involve asking hard questions designed to ensuring the investigation remains focused. It does not, however, require Crown counsel to do the investigative agency's work.

54.3.1.2 Input into the Formation of the Investigative Agency's Operational Plan

The formation and structure of an operational plan is the exclusive responsibility of the investigating agency. Involvement from the very outset of the investigation by Crown counsel can, however, assist the investigators in achieving the ultimate objective of the plan, which will usually be to debilitate a criminal organization. Crown counsel can offer insight as to how the choice of particular instruments (e.g, the number of accused, the type of charges, measures other than prosecution) may affect fulfillment of the plan.

Where prosecutions are to proceed, they must be financially and legally manageable⁹. Crown counsel can assist the investigators by, for example: a) identifying aspects of the operational plan that may present difficult problems of proof, particular disclosure obligations, or lead to unwieldy prosecutions; and b) analyzing whether the operational plan takes account of significant resourcing issues¹⁰. While Crown counsel can offer advice to focus the investigation, it is not the role of counsel to make choices such as who should be investigated, and what techniques should be used. It is crucial that the FPS be alerted to the probability that significant human and financial resources may need to be allocated to the case. The need to seek additional resources, such as counsel from other FPS offices or by submissions to Treasury Board for special funding, has to be identified as early as possible in order to make sure the projected resource requirement is properly addressed; if the resources will not be available, the investigative agency must be advised.

54.3.1.3 Disclosure Management

The most effective way of satisfying Crown counsel's ethical obligation to make full disclosure of the Crown's case¹¹ is to be involved at an early stage and continue to be involved throughout the investigation.¹²

More than any other issue, the preparation of disclosure materials requires intensive cooperation between Crown counsel and the investigative agency, such that the responsibility should be viewed as a joint one. Crown counsel must give the investigative agency sufficient assistance and direction to ensure that the investigators produce a well-organized package that is as complete as possible and in a user-friendly format before charges are laid.¹³ The assistance provided should seek to enable the police to produce both excellent Crown briefs and complete disclosure packages for the defence.

Crown counsel can assist the investigative agency in numerous ways¹⁴, for example:

• providing legal advice as to what material is privileged or non-disclosable for any other reason;
• ensuring that the disclosure package contains a summary of the case against each individual (which will be particularly important for charge screening);
• assisting with the preparation of separate disclosure packages to be used for bail hearings; and
• ensuring the investigative agency prepares the package in a user-friendly way by, for example, cataloguing wiretap material according to its relevance to common issues such as investigative necessity, knowns/unknowns, etc.

There is a need to ensure that investigative agency operation manuals and prosecution policies support each other in relation to prosecution issues including disclosure, and appropriate protocols are developed to clarify the responsibilities with respect to significant details such as who will pay for preparation of copies of documents.

54.3.1.4 Provision of Case Management Tools

Crown counsel can play an important role in facilitating the investigative agency's burden with respect to case management. Crown counsel are acutely aware of the usual legal arguments made in these cases with respect to disclosure, for example. The Federal Prosecution Service is committed to preparing useful tools such as checklists governing disclosure and wiretap issues, and identifying the components of a model Crown brief, to help ensure a disciplined approach to case management by the investigators.

54.3.2 Charge Management

Effective charge management assumes an ongoing level of cooperation with the investigative agency such that the agency will not be seeking to proceed on a prosecution or prosecutions that are unwieldy in terms of the number of accused or the number of charges. This policy assumes that there will be a meeting of minds on the approach at an early stage such that both sides can work on issues such as disclosure based on an understanding of what charges are likely to go forward. The investigative agency has the final say, however, as to all strategic choices on the structure of the investigation.

Crown counsel are required, on an ongoing basis, to assess every case according to the reasonable prospect of conviction/public interest test set out in the Decision to Prosecute¹⁵. Charge review in the megatrial context requires strict attention to the difficult choices that must be made, and Crown counsel must objectively review the case to determine what the public interest requires, as the Decision to Prosecute policy demands.

First, to the extent possible, charge review should be done before charges are laid. This assumes that there has been co-operation with the investigative agency, particularly with respect to the preparation of a package for Crown counsel that gives a comprehensive overview of the investigation and a detailed summary of the evidence against each individual. Meaningful charge review cannot take place without receiving such information, and prosecutions cannot proceed where a high standard of disclosure is not met.

Second, the consideration of the “public interest” factor in the decision to prosecute must take into account what will be strategically feasible. The fact that many charges meet the “reasonable prospect of conviction” test does not necessarily mean that all criminal acts by all accused must be prosecuted; difficult choices must be made. Counsel must bear in mind the potential number of accused and the evidence available in deciding what combination of accused and charges will give rise to a prosecution or a prosecution that can be successfully mounted. A prosecution that is so large and complex that no reasonable juror will be able to follow the evidence will not serve the public interest.¹⁶

The charge review process will also necessitate paying close attention to the desirability of encouraging early resolution discussions, and using other appropriate measures short of prosecution. Crown counsel should have a comprehensive view of appropriate dispositions for each accused, in order to encourage early resolution and reduce the number of accused as appropriate. As set out in other policies¹⁷, the Crown makes its best offer at the earliest point in the proceedings; thereafter, such an offer will not be repeated absent an exceptional change in circumstance.

54.3.3 Composition of the Prosecution Team

A megacase will usually require deployment of a multidisciplinary team to address the numerous challenges that will arise. Managers must pay attention to a wide variety of factors in considering the composition of the prosecution team, including the personal compatibility of the individuals selected. Depending on the needs of the particular case, the various parts of the team may include any or all of the following¹⁸:

• megacase review counsel, to work closely with the investigative agency;
• bail counsel, to deal solely with initial bail hearings and subsequent bail reviews;
• lead and assisting counsel, to perform the charge screening and conduct preliminary hearings and trials;
• counsel with specific expertise, to deal with various Charter motions, claims of prosecutorial misconduct, or funding of the defence, for example;
• paralegals and other administrative support personnel to assist counsel with all of the foregoing functions;
• a project manager to handle matters like the scheduling and attendance of witnesses;
• communications persons, who can assist prosecuting counsel with the demands for information, or provide media training to prosecuting counsel;
• information management experts, to ensure that systems are in place to properly manage electronically-stored information;
• non-departmental personnel, should contracting out of photocopying be necessary, for example.

54.4 The Crown's Prosecution Plan

The early involvement of the FPS with the investigative agency is designed in large measure to facilitate the development of an appropriate prosecution plan. Development of such a plan should be seen as an essential part of the prosecution function. It is incumbent upon FPS Directors to identify potential megacases as early as possible, and ensure that the prosecution plan is developed and approved by the Director.

54.4.1 Early Warning

In the early stages of the investigation, while it would be unreasonable to expect a detailed prosecution plan, it is nonetheless important for the FPS Director to provide the ADAG (Criminal Law), as soon as practicable, with a “heads-up” when it becomes clear that the investigation may likely develop into a mega trial. This may involve, for example, an assessment of the investigative agency's operational plan and its potential impact on the FPS. As well, the early warning note would describe what steps the FPS is taking, or should take, to manage the potential risk.

54.4.2 Development of the Prosecution Plan

It is up to the FPS Director, or the ADAG (Criminal Law), to decide when a prosecution plan should be prepared. As a general rule however, the prosecution plan should be developed within a time frame that will permit the plan to be effectively reviewed, and the resource requirements to be properly addressed. Accordingly, the prosecution plan should be developed as soon as the unfolding investigation permits a strategy to be defined.

The prosecution plan must be sufficiently descriptive of the nature of the investigation that it can be objectively reviewed. It must address, inter alia:

• the nature of the investigation and the key evidence in the case;
• the likely resource demands of the case, including an analysis of whether those demands can be satisfied by the regional office in question;
• the general contours of the prosecution, including the number of potential accused and charges, and the number of prosecutions
• particular legal challenges likely to arise;
• an assessment of how effectively information is being managed, so that disclosure will be able to be made as soon as practicable after arrest.

With respect to resource demands, the plan must specifically identify potential expenditures such as personnel costs (Crown counsel, paralegals, project manager, etc.), administration or information management costs, and other costs, such as fees for court-appointed counsel. The FPS Director should identify how the particular demands of the megacase will impact on the overall management of resources in the region.

Just as the Crown may review the investigative agency's operational plan, so should that agency be consulted on the prosecution plan.

54.5 Review of the Prosecution Plan

Megacases directly and indirectly have a serious impact of the lives of all those connected with them, and involve the significant expenditure of public funds. The Attorney General is ultimately accountable to Parliament for decisions taken on his or her behalf, and the ADAG (Criminal Law) has functional responsibility for prosecutions¹⁹. Both need to be satisfied that resources are being effectively used, and the prosecution team needs to know its prosecution strategy is supported at the highest levels.

Because of this, a megacase, more than most prosecutions, needs to go through a process of critical review of the prosecutors' prosecution plan before the case proceeds. A megacase is somewhat analogous to a government program, given the amount of money being spent. Engaging in this review will help ensure that public funds are well-spent, and the decisions made by the individual prosecutor have the approval of the FPS.

54.5.1 Purpose of the Review – the “Challenge Function”

Once the FPS Director has approved a prosecution plan, he or she must recommend the approval of that plan to the ADAG (Criminal Law). The ADAG (Criminal Law) is accountable to the Attorney General and Deputy Attorney General for the prosecution function, and must get sufficient information to provide knowledgeable advice with respect to megacases. The ADAG (Criminal Law) must, therefore, be able to critically review the prosecution plan.

To support the ADAG in that review, the FPS has created the National Prosecution Advisory Committee (NPAC), primarily to exercise a challenge function in relation to the prosecution plan. The NPAC is comprised of senior prosecutors from across the country with extensive trial and appellate experience and expertise relevant to the smooth functioning of major cases. At least one member must have significant managerial experience. Members are chosen by the ADAG (Criminal Law) after consultation with FPS Directors.

54.5.2 Recommendation to the ADAG (Criminal Law)

While it must be submitted in time to allow for meaningful review and ultimate approval by the ADAG, it is up to individual FPS Directors to decide when a matter should be submitted to the NPAC for review. The NPAC exercises a challenge function with respect to strategic planning on megacases; it does not “approve” plans. The NPAC provides advice to the megacase team and to the FPS Director based on its objective assessment of the case, and provides recommendations to the ADAG. As a result of the challenge, the FPS Director may choose to make modifications to the plan before the committee makes its recommendations to the ADAG.

The lead prosecutor on any megacase, and his or her Director, must present the plan to the Committee. It should be viewed by the prosecution team and the Director as an opportunity to get advice on the overall approach to the case, or any particularly troublesome aspects of the case. It is expected that the result of the discussions will be a strong consensus as to the soundness of the plan, and the prosecution team will gain confidence that its plan will be supported. The chair of the NPAC and the FPS Director will provide written recommendations to the ADAG (Criminal Law) with respect to the latest version of the prosecution plan. If the plan is approved, the FPS Director remains responsible for ensuring the execution of the plan.

Counsel may use the NPAC as a source of advice, for example, in assessing the legal strategy and any significant legal risks as they arise. Requests for assistance may also encompass seeking the advice of the NPAC on particular legal issues. It is up to counsel's FPS Director to determine when a matter should be referred to the Committee. The NPAC may also provide advice on revisions to the prosecution plan.

The Committee will be responsible for maintaining an inventory of megacases, including information relevant to the legal and financial challenges the cases may pose. The SPPS will provide support to the Committee in carrying out this function.

54.6 The NPAC's Litigation Monitoring Function

Apart from the specific mandate of the Committee with respect to megacases, the Committee may exercise additional functions in support of the ADAG (Criminal Law)'s responsibility for the prosecution function, and in cooperation with FPS Directors, including:

• examining issues in relation to the FPS Deskbook;
• monitoring emerging trends in federal prosecution practice and making recommendations as to how the FPS should adjust to such trends;
• ensuring consistency of approaches by the FPS throughout the country, including in respect of work done by agents;
• identifying regional practices or approaches that may be of national interest and make recommendations for their broader diffusion.

54.7 Post-case Assessment

In every case where a prosecution plan has been approved, and in other cases in which the FPS Director thinks it is advisable, a “lessons learned” exercise should be conducted after the completion of the prosecution. These post-case assessments should be conducted in cooperation or consultation with the investigative agency.

The FPS Director, who has the responsibility for ensuring these exercises take place, should consult with the head of the local investigative agency so that they can jointly determine how to conduct an effective post-case assessment.

Questions that should be addressed include: the adequacy of the resources deployed, the effectiveness of the cooperation with the investigative agency before and during the prosecution; the ability of the prosecution team to identify and effectively manage the legal risks presented by the case; the use of the NPAC and support by other areas of the Department.

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Date Modified:

2008-12-24