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Memorandum Of Understanding Between The RCMP And The FPS

The Federal Prosecution Service DESKBOOK

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MEMORANDUM OF UNDERSTANDING BETWEEN THE ROYAL CANADIAN MOUNTED POLICE AND THE FEDERAL PROSECUTION SERVICE

Respecting the Conduct of
Criminal Investigations and Prosecutions

PREAMBLE

WHEREAS the Royal Canadian Mounted Police (the RCMP) and the Department of Justice, represented by the Federal Prosecution Service (the FPS), recognize the need for an effective partnership in the pursuit of their respective mandates;

WHEREAS the parties recognize that the public interest requires that they work together in supporting each other’s mandate;

WHEREAS it is recognized that effective co-operation is built on mutual trust and a clear understanding of the other party’s role and responsibilities;

WHEREAS such co-operation shall be pursued while respecting the independence and responsibilities of each of the parties;

WHEREAS this Agreement is intended by the FPS to complement its criminal litigation policy;

WHEREAS this Agreement recognizes that the mandate of the parties includes diversion and restorative justice initiatives;

WHEREAS this Agreement provides a basic framework that can be supplemented by local arrangements reflecting local practices and that is consistent with the litigation policy and applicable operational guidelines of the FPS and the RCMP respectively;

THEREFORE the parties agree as follows:

1. Purpose

The purpose of this Memorandum is:

1.1 To provide a clear and objective understanding of each of the parties’ roles and responsibilities at the investigative stage and at the prosecution stage.

1.2 To outline the manner in which members of the RCMP can assist personnel of the FPS (“prosecutors”) as they carry out their responsibilities as set out in the Attorney General’s guidelines in furtherance of the efficient administration of criminal justice.

1.3 To outline the manner in which prosecutors can assist the RCMP as they carry out their law enforcement responsibilities as set out in the RCMP Act and operational guidelines.

1.4 To deal with the working relationship between the RCMP and the FPS, and is not intended to create any new rights or obligations enforceable at law.

2. Guiding Principles

2.1 The parties have a crucial role to play in the administration of criminal justice in Canada. In that respect they share a common objective, which is the fair and efficient enforcement of the criminal law of Canada.

2.2 While sharing a common objective the parties have roles and responsibilities which are, however, different.

2.3 This common objective can best be attained through an effective partnership that respects each of the parties’ specific roles and responsibilities.

2.4 An effective partnership is built on mutual trust and confidence; mutual trust and confidence are built on mutual respect and a mutual understanding of each other’s role, responsibilities and independence.

2.5 This effective partnership is based on two fundamental principles: the independence of the RCMP at the investigative stage, and the independence of prosecutors at the prosecution stage.

2.6 This Agreement recognizes that the RCMP directs investigations and that the FPS will provide assistance as required. It also recognizes that the FPS directs prosecutions and that the RCMP will provide assistance as required.

2.7 In the discharge of their responsibilities, individual members of the RCMP and individual prosecutors are guided by their respective institutional guidelines: this includes, for example, the Operations Manuals of the RCMP and the FPS Deskbook.

2.8 The parties recognize that neither can effectively carry out its role and responsibilities without the assistance of the other. In this regard, the shared responsibility for disclosure and the joint management of significant cases need to be addressed as priorities.

2.9 The parties recognize the need to implement local practices and procedures that facilitate consultation and communication in the execution of their respective duties.

2.10 The parties undertake to disseminate this Memorandum throughout their respective organizations so that their personnel are made aware of the principles it establishes and recognizes.

2.11 This Memorandum addresses general principles that will be supplemented from time to time by other documents that, when agreed upon, shall be annexed to and form part of this Memorandum.

3. Roles and Responsibilities

In the exercise of their respective mandates the parties reinforce and respect the independence of each other, while recognizing the need to work together toward common goals. Generally, the RCMP are responsible for the investigation whereas prosecutors are responsible for carrying out the prosecution. Prosecutors can, however, play an important role at the investigative stage as can the RCMP at the prosecution stage.

3.1 Role and responsibilities of the RCMP

3.1.1 As peace officers, RCMP members are bound by internal directives and by obligations imposed on peace officers in relation to the preservation of the peace, the prevention of crime and offences against thelaws of Canada and (where applicable) the laws in force in any province or territory in which they may be employed. The manner in which these duties are carried out are governed by law and by the rules prescribed by the Commissioner and found in the RCMP Operations Manual, as amended from time to time.

3.1.2 The RCMP preserve and organize information and evidence collected in the course of their investigation, in contemplation of the Crown's obligation to disclose and in recognition of the benefits of early disclosure.

a) at the Investigative stage

3.1.3 The RCMP exercise discretion with respect to investigations: they open, conduct, direct and control investigations and determine the structure, scope, length, and means used to carry out investigations.

3.1.4 However, there may be instances where statutory requirements (see, for example, paragraph 3.2.6 below) or good practice (where a contemplated process is likely to raise difficult issues at the prosecution stage) will require the involvement of prosecutors.

Witnesses

3.1.5 The RCMP handle and control all arrangements with police informers or civilian agents, and prepare and maintain such records as are necessary to discharge the obligations of the RCMP and prosecutors with respect to disclosure.

3.1.6 The RCMP are responsible for all matters pertaining to protection of witnesses and informants.

3.1.7 If in the course of its work the RCMP, without the prosecutor’s consent, give an undertaking or make a decision that requires the prosecutor’s consent, the prosecutor is not bound by the undertaking or decision.

b) at the Prosecution stage

The RCMP role continues beyond the laying of charges as they may be required to assist prosecutors until the prosecution is complete.

Preparation

3.1.8 The RCMP carry out additional investigative steps that are reasonably required by prosecutors to ensure they can effectively present their case and carry out their duties.

3.1.9 The obligation of the RCMP to preserve evidence and all relevant information that might assist defence continues during the prosecution stage. They maintain continuity and security of all physical evidence in their care.

3.1.10 As requested and where reasonably possible, the RCMP attend and participate in post-charge interviews of prospective witnesses by prosecutors and maintain notes of such interviews for disclosure purposes.

3.1.11 Lead RCMP investigators, to the extent reasonably possible, make themselves available to review with prosecutors the facts of the case and disclosure issues prior to preliminary hearing or trial.

Witnesses

3.1.12 The RCMP work with prosecutors to accommodate as much as is reasonably possible the special needs of potential witnesses such as those who:

present special physical or mental needs
are children
are victims of domestic violence offences or sexual abuse

3.1.13 The RCMP may be called upon by prosecutors to ensure witnesses are provided with appropriate materials and prior statements in preparation for the giving of evidence. When obliged to ensure service of witness subpoenas, the RCMP do so at the first reasonable opportunity and advise the prosecutor promptly where difficulties are identified (for example, when a witness cannot be located or there are indications that a witness likely will not comply with a subpœna).

Proceedings

3.1.14 The RCMP provide prosecutors with appropriate briefs in a timely way. The obligation to provide all relevant reports and briefs continues throughout the judicial phase.

3.1.15 The RCMP are responsible for identifying special security measures required for persons in custody who attend the proceedings, and for advising prosecutors accordingly.

3.1.16 The RCMP, when notified by or on behalf of a prosecutor in accordance with local practice, attend such proceedings as required without the necessity of formal process.

3.1.17 When called as witnesses they bring with them to court any notes or other things in their possession that are relevant to their anticipated evidence.

3.2 Role and duties of the FPS

3.2.1 In all matters prosecutors represent the Attorney General of Canada, and are bound by duties imposed by Acts of Parliament, Treaties of Canada, the Canadian Charter of Rights and Freedoms, and jurisprudence. The manner in which these duties are carried out and prosecutorial discretion is exercised are governed by the guidelines of the Attorney General contained in the FPS Deskbook, as amended from time to time.

3.2.2 Prosecutors, to the extent reasonably possible, seek to review with the lead investigator the facts of the case and disclosure issues in a timely manner and prior to preliminary hearing or trial.

3.2.3 The prosecutor’s role is not to obtain a conviction; it is to lay before a trier of fact what the prosecutor considers to be credible evidence relevant to what is alleged to be a crime. This must be done fairly, excluding any notion of winning or losing. However, where prosecutors elect to pursue a prosecution they do so vigorously and to the best of their ability, with due regard for the rule of law, legal ethics and the overriding obligation to act fairly and in the public interest.

3.2.4 As advocates, prosecutors discharge their duties with industry, skill and vigour and are adequately prepared for each case.

a) at the Investigative stage

3.2.5 The role of the FPS at this stage can be statutory or a matter of administrative arrangement or good practice. The RCMP are independent at the investigative stage, and a prosecutor’s role is to provide assistance and legal advice during the course of investigations conducted and directed by the RCMP.

3.2.6 Where required by law, prosecutors may approve and apply for access to any special investigative procedures requested by the RCMP. To the extent reasonably possible, all such requests are considered by prosecutors in a timely manner and, when asked to do so, they provide to the RCMP reasons where a request is not approved. These special investigative procedures include applications for judicial authorization, for example, in respect of:

electronic surveillance
restraint orders
special warrants
management orders
production orders

b) at the Prosecution stage

3.2.7 Prosecutors exercise prosecutorial discretion in accordance with criteria adopted by the Attorney General of Canada.

3.2.8 Prosecutors review evidence and circumstances of a case in accordance with the Attorney General’s guidelines dealing with the decision to prosecute.

3.2.9 In some provinces, this review is done before charges are laid: this practice is referred to as “pre-charge screening”. In other provinces, this review is conducted after charges are laid: this practice is referred to as “post-charge screening”.

3.2.10 The review referred to above is a crucial component of the exercise of prosecutorial discretion. It is an ongoing process and the final decision belongs to prosecutors.

3.2.11 Whenever reasonably possible and where circumstances warrant, prosecutors consult with the RCMP before deciding to stay charges laid or not to proceed with charges recommended by the RCMP.

4. Disclosure

4.1 The parties share the Crown's constitutional responsibility and ongoing obligation to disclose to the accused all material and information in their possession or control which is not privileged or clearly irrelevant, irrespective of whether the prosecutor intends to introduce it into evidence.

5. Resources

5.1 RCMP provide personnel with sufficient experience and expertise to complete the investigation and to assist the FPS with prosecution, including the conduct of additional investigative steps as might be reasonably required by prosecutors.

5.2 The FPS provides personnel with sufficient experience and expertise to carry out the prosecution and to assist the RCMP with investigation as contemplated by this Memorandum.

5.3 The parties ensure continuity and availability of assigned personnel, through to the completion of the case, to the extent possible.

6. Training

6.1 The RCMP are responsible for training its personnel on an ongoing basis.

6.2 The FPS is responsible for training its personnel on an ongoing basis.

6.3 Each party seeks to assist the other in meeting its training needs. In particular,

the FPS recognizes that the RCMP possess the expertise to train prosecutors on investigative matters relevant to the mandate of the RCMP. Where such training is required the FPS first considers the RCMP for such assistance, with a view to providing consistency across Canada. The RCMP provides personnel as might be necessary for such training, subject to agreement between the parties as to fair apportionment of costs.
the RCMP recognize that the FPS possesses the expertise to provide training on legal matters relevant to the mandate of the FPS. Where such training is required, the RCMP will first consider the FPS for such services and will consider in all cases the importance of providing consistent training across Canada. The FPS provides personnel as might be necessary for such training, subject to agreement between the parties as to fair apportionment of costs.

7. Communications and Conflict Resolution

7.1 The parties exchange the information required to allow the RCMP and prosecutors to communicate outside normal business hours in time-sensitive situations.

7.2 The parties consult each other at the local and national levels on a regular basis.

7.3 The parties make every effort to resolve issues expeditiously and at the lowest possible level in each organization. Issues not resolved at the local level are brought to the next highest level of responsibility within each organization. Where necessary, issues are brought to the Assistant Commissioner of the RCMP (Federal Services) and the Assistant Deputy Attorney General (Criminal Law).

7.4 The parties have constituted a National Advisory Committee to deal with common issues relevant to the relationship between the two organizations and to monitor the operation of this Memorandum of Understanding. The core Membership includes the FPS Directors and Criminal Operations Officers. It is co-chaired by the Assistant Commissioner (Federal Services) and the Assistant Deputy Attorney General (Criminal Law).

7.5 The parties agree to constitute a joint Headquarters Committee to deal with issues of national importance. Its membership will include the Assistant Commissioner of the RCMP (Federal Services) and the Assistant Deputy Attorney General (Criminal Law) and their respective designates.

8. Media Communications

8.1 The parties recognize the need for a comprehensive and co-operative media strategy.

8.2 Absent compelling circumstances, the parties do not comment publicly on ongoing investigations.

9. Appeals

9.1 It is the responsibility of the Attorney General of Canada to review judicial decisions in federal prosecutions and consider whether appellate or review remedies ought to be exercised. When a decision is made to exercise such remedies, the RCMP are informed in a timely manner.

9.2 When the RCMP request that an appeal be considered in relation to a judicial decision, the request is reduced to writing, approved by the appropriate authority within the RCMP and forwarded to the appropriate representative of the FPS in a timely manner.

9.3 When a written request from the RCMP is received, the FPS promptly advises the RCMP in writing of any decision and reasons in respect of the request.

10. Evaluation and Revision

The parties to this Agreement evaluate its effective operation on an ongoing basis and discuss and implement such revisions to this Agreement as may from time to time be deemed necessary.