Part V PROCEEDINGS AT TRIAL AND ON APPEAL Chapter 15

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15 THE DECISION TO PROSECUTE

15.1 Introduction

This chapter explains the criteria for deciding whether to prosecute. It is based on standards that have been developed over the years by Attorneys General in Canada and by heads of prosecution elsewhere in the Commonwealth.

Deciding whether to prosecute is among the most important steps in the prosecution process. Considerable care must be taken in each case to ensure that the right decision is made. A wrong decision to prosecute and, conversely, a wrong decision not to prosecute, both tend to undermine the confidence of the community in the criminal justice systemFootnote 1.

Fairness and consistency are important objectives in the process leading to the institution of criminal proceedings.Footnote 2 However, fairness does not preclude firmness in prosecuting, and consistency does not mean rigidity in decision-making. The criteria for the exercise of the discretion to prosecute cannot be reduced to something akin to a mathematical formula; indeed, it would be undesirable to attempt to do so. The breadth of factors to be considered in exercising this discretion clearly demonstrates the need to apply general principles to individual cases and to exercise good judgment in so doing.

15.2 Statement of the Policy

Crown counsel must consider two issues when deciding whether to prosecute. First, is the evidence sufficient to justify the institution or continuation of proceedings? Second, if it is, does the public interest require a prosecution to be pursued?

As noted above, this policy is consistent with policies used by Attorneys General throughout Canada and by prosecution agencies throughout the Commonwealth. The strength of this consensus has been recognized by the Martin Committee in Ontario, which stated as follows:

It is a fundamental principle of the administration of justice in this country that not only must there be sufficient evidence of the commission of a criminal offence by a person for a criminal prosecution to be initiated or continued, but the prosecution must also be in the public interestFootnote 3.

15.3 Application of the Test

15.3.1 Sufficiency of the Evidence

In the assessment of the evidence, a bare prima facie case is not enough; the evidence must demonstrate that there is a reasonable prospect of conviction. This decision requires an evaluation of how strong the case is likely to be when presented at trial. This evaluation should be made on the assumption that the trier of fact will act impartially and according to law.

A proper assessment of the evidence will take into account such matters as the availability, competence and credibility of witnesses and their likely impression on the trier of fact, as well as the admissibility of evidence implicating the accused. Crown counsel should also consider any defences that are plainly open to or have been indicated by the accused, and any other factors which could affect the prospect of a conviction; for example, the existence of a Charter violation that will undoubtedly lead to the exclusion of evidence essential to sustain a conviction. Crown counsel must also zealously guard against the possibility that they have been afflicted by “tunnel vision,Footnote 4 through close contact with the investigative agency, colleagues or victims, such that the assessment is insufficiently rigorous and objective.

This evidential standard must be applied throughout the proceedings – from the time the investigative report is first received until the time of trial. When charges are laid, the test may have to be applied primarily against the investigative report, although it is certainly preferable – especially in borderline cases -- to look beyond the statements of the witnesses. Later in the proceedings, especially after a preliminary inquiry, counsel may be able to make a more effective assessment of some of the issues, such as the credibility of witnesses. Assessments of the strength of the case may be difficult to make, and of course there can never be an assurance that a prosecution will succeed. Nonetheless, counsel are expected to review the decision to prosecute in light of emerging developments affecting the quality of the evidence and the public interest, and to be satisfied at each stage, on the basis of the available material, that there continues to be a reasonable prospect of conviction. If counsel are not so satisfied, they may direct that a stay of proceedings be enteredFootnote 5.

15.3.2 The Public Interest Criteria

If satisfied that there is sufficient evidence to justify the institution or continuation of a prosecution, Crown counsel must then consider whether, in the light of the provable facts and the whole of the surrounding circumstances, the public interest requires a prosecution to be pursued.

It is not the rule that all offences for which there is sufficient evidence must be prosecuted. Sir Hartley Shawcross, Q.C., then Attorney General of England (later Lord Shawcross), outlined the following principles which have since been accepted as correct by successive Attorneys General of Canada:

It has never been the rule in this country – I hope it never will be – that suspected criminal offences must automatically be the subject of prosecution. Indeed, the very first regulations under which the Director of Public Prosecutions worked provided that he should ... prosecute, amongst other cases: “wherever it appears that the offence or the circumstances of its commission is or are of such a character that a prosecution in respect thereof is required in the public interest.” That is still the dominant consideration Footnote 6.

The factors which may properly be taken into account in deciding whether the public interest requires a prosecution will vary from case to case. Generally, the more serious the offence, the more likely the public interest will require that a prosecution be pursued.

The resources available for prosecution are not limitless, and should not be used to pursue inappropriate cases. The corollary is that the available resources should be employed to pursue with due vigour those cases worthy of prosecutionFootnote 7.

In some cases it will be appropriate for Crown counsel to obtain the views of the investigative agency or client department when determining whether the public interest requires a prosecution to be commenced or continued. This can, in most instances, be accomplished through discussion with the investigators or the Departmental Legal Services Unit attached to the client department. Ultimately, however, Crown counsel must decide independently whether the public interest warrants a prosecution Footnote 8.

Where the alleged offence is not so serious as plainly to require criminal proceedings, Crown counsel should always consider whether the public interest requires a prosecution. Public interest factors which may arise on the facts of a particular case include:

  1. the seriousness or triviality of the alleged offence;
  2. significant mitigating or aggravating circumstances;
  3. the age, intelligence, physical or mental health or infirmity of the accused;
  4. the accused's background;
  5. the degree of staleness of the alleged offence;
  6. the accused's alleged degree of responsibility for the offence;
  7. the prosecution's likely effect on public order and morale or on public confidence in the administration of justice;
  8. whether prosecuting would be perceived as counter-productive, for example, by bringing the administration of justice into disrepute;
  9. the availability and appropriateness of alternatives to prosecution;
  10. the prevalence of the alleged offence in the community and the need for general and specific deterrence;
  11. whether the consequences of a prosecution or conv would be disproportionately harsh or oppressive;
  12. whether the alleged offence is of considerable public concern;
  13. the entitlement of any person or body to criminal compensation, reparation or forfeiture if prosecution occurs;
  14. the attitude of the victim of the alleged offence to a prosecution;
  15. the likely length and expense of a trial, and the resources available to conduct the proceedings;
  16. whether the accused agrees to co-operate in the investigation or prosecution of others, or the extent to which the accused has already done so;
  17. the likely sentence in the event of a conviction; and
  18. whether prosecuting would require or cause the disclosure of information that would be injurious to international relations, national defence, national security or that should not be disclosed in the public interest.

The application of and weight to be given to these and other relevant factors will depend on the circumstances of each case.

The proper decision in many cases will be to proceed with a prosecution if there is sufficient evidence available to justify a prosecution. Mitigating factors present in a particular case can then be taken into account by the court in the event of a conviction.

Where a decision is made not to institute proceedings, it is recommended that a record be kept of the reasons for that decision. Furthermore, counsel should be conscious of the need in appropriate cases to explain a decision not to prosecute to, for example, the investigative agency. Ensuring that affected parties understand the reasons for the decision not to prosecute, and that those reasons reflect sensitivity to the investigative agency’s mandate, will foster better working relationships. Victims of crime may also feel aggrieved by decisions not to prosecute, so steps may need to be taken to maintain confidence in the administration of justice.Footnote 9

The need to maintain confidence in the administration of justice may also necessitate, in some circumstances, public communication of the reasons for not prosecuting.

The need to maintain confidence in the administration of justice may also necessitate, in some circumstances, public communication of the reasons for not prosecuting. Such a communication may consist, for example, of a statement in court by Crown counsel at the time charges are stayed or withdrawn, or a press release.Footnote 10 Communications of this type should only be made, if at all, after consultation with the FPS Director and the ADAG (Criminal Law).

15.3.2.1 The “ Public Interest” in the Regulatory Context

As noted above, it is appropriate for Crown counsel to consider the views of the investigative agency in considering whether prosecution is warranted. This may be particularly important in the case of prosecutions under statutes such as the Immigration and Refugee Protection Act, the Fisheries Act, the Competition Act or the Income Tax Act, where the offence provisions serve important regulatory goals. Consideration of what the public interest requires will of necessity require consideration of how the regulatory purpose of the statute might best be achieved. If, for example, the relevant regulatory authority has a mechanism for dealing with the alleged offender such as a compliance program, Crown counsel should consider whether an alternative such as this might better serve the public interest than prosecution. The need to understand the particular regulatory context underscores the obligation of Crown counsel to consult in carrying out counsel’s duties under this policy.

15.4 Irrelevant Criteria

  1. the race, national or ethnic origin, colour, religion, sex, sexual orientation, political associations, activities or beliefs of the accused or any other person involved in the investigation;
  2. Crown counsel's personal feelings about the accused or the victim;
  3. possible political advantage or disadvantage to the government or any political group or party; or
  4. the possible effect of the decision on the personal or professional circumstances of those responsible for the prosecution decision.
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