2.2 Duties and Responsibilities of Crown Counsel

Public Prosecution Service of Canada Deskbook

Guideline of the Director Issued under Section 3(3)(c) of the Director of Public Prosecutions Act

December 27, 2019

Table of Contents

• 1. Introduction
• 2. The Conduct of Criminal Litigation
  • 2.1. The duty to ensure that the mandate of the Director is carried out with integrity and dignity
  • 2.2. The duty to maintain judicial independence
  • 2.3. The duty to be fair and to maintain public confidence in prosecutorial fairness
  • 2.4. The duty to maintain objectivity
    • 2.4.1. Inflammatory remarks and conduct
• 3. Conflict of Interest
• 4. Providing Legal Advice
  • 4.1. Solicitor-client privilege
• Appendix A: Justice System Participant Misconduct

1. Introduction

This guideline describes the duties and responsibilities of Crown counsel^{Footnote 1} in carrying out their delegated functions under sections 3(3) and 9(1) of the Director of Public Prosecutions Act.

2. The Conduct of Criminal Litigation

Section 3(3)(a) of the DPP Act mandates the Director of Public Prosecutions (DPP) to initiate and conduct prosecutions under and on behalf of the Crown. The responsibilities placed on Crown counsel as law officers of the Crown flow from the special obligations resting on the Office of the Director of Public Prosecutions (ODPP) in the execution of this mandate.^{Footnote 2} As a result, Crown counsel are subject to certain ethical obligations that may differ from those of other litigants.^{Footnote 3}

The DPP and his or her delegated Crown counsel are vested with substantial discretionary powers.^{Footnote 4} Public interest considerations require Crown counsel to exercise judgment and discretion which go beyond functioning simply as advocates.^{Footnote 5} Counsel appearing for the DPP are considered "ministers of justice", more part of the court than proponents of a cause.^{Footnote 6} The Supreme Court of Canada articulated the duty on prosecutors in its landmark decision in Boucher:

It cannot be over-emphasized that the purpose of a criminal prosecution is not to obtain a conviction, it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proof of the facts is presented: it should be done firmly and pressed to its legitimate strength, but it must also be done fairly. The role of the prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with a greater personal responsibility. It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings.

In Regan,^{Footnote 7} the Supreme Court further explained that the "minister of justice" responsibility is not confined to the courtroom and attaches to Crown counsel in all dealings in relation to an accused person whether before or after charges are laid. The Court further described the "minister of justice" function as follows:

These statements suggest at least three related but somewhat distinct components to the "Minister of Justice" concept. The first is objectivity, that is to say, the duty to deal dispassionately with the facts as they are, uncoloured by subjective emotions or prejudices. The second is independence from other interests that may have a bearing on the prosecution, including the police and the defence. The third, related to the first, is lack of animus—either negative or positive—towards the suspect or accused. The Crown Attorney is expected to act in an even-handed way.

Fairness, moderation, and dignity should characterize Crown counsel's conduct during criminal litigation.^{Footnote 8} This does not mean that counsel cannot conduct vigorous and thorough prosecutions. Indeed, vigour and thoroughness are important qualities in Crown counsel. In fact, the Supreme Court of Canada affirmed that vigorous Crown advocacy is "a critical element of this country's criminal law mechanism" in Cook:^{Footnote 9}

Nevertheless, while it is without question that the Crown performs a special function in ensuring that justice is served and cannot adopt a purely adversarial role towards the defence … . [I]t is well recognized that the adversarial process is an important part of our judicial system and an accepted tool in our search for the truth …. Nor should it be assumed that the Crown cannot act as a strong advocate within this adversarial process. In that regard, it is both permissible and desirable that it vigorously pursue a legitimate result to the best of its ability. Indeed, this is a critical element of this country's criminal law mechanism. In this sense, within the boundaries outlined above, the Crown must be allowed to perform the function with which it has been entrusted; discretion in pursuing justice remains an important part of that function.

Criminal litigation on the part of the Crown, however, should not become a personal contest of skill or professional pre-eminence.^{Footnote 10}

The conduct of criminal litigation is not restricted to the trial in open court. It also encompasses Crown counsel's prosecutorial authority leading up to trial, including, for example, the decision to prosecute, referring an alleged offender to an alternative measures program, disclosure, decisions on judicial interim release, the right to stay proceedings or withdraw charges, elect the mode of trial, grant immunity to a witness,^{Footnote 11} prefer indictments, join charges and accused, consent to re-elections, and consent to the waiver of charges between jurisdictions. Both in and out of court, Crown counsel exercise broad discretionary powers. Courts generally do not interfere with this discretion unless it has been exercised for an oblique motive, offends the right to a fair trial, or otherwise amounts to an abuse of process.^{Footnote 12} Accordingly, counsel must exercise this discretion fairly, impartially, in good faith and according to the highest ethical standards. This is particularly so where decisions are made outside the public forum, as they may have far greater practical effect on the administration of justice than the public conduct of counsel in court.^{Footnote 13}

In the conduct of criminal prosecutions, Crown counsel have many responsibilities. The following are among the most important.

2.1. The duty to ensure that the mandate of the Director is carried out with integrity and dignity

Counsel fulfill this duty by:

• complying with their bar association's applicable rules of ethics;^{Footnote 14}
• complying with the Public Prosecution Service of Canada Code of Conduct;
• exercising careful judgment in presenting the case for the Crown, in deciding whether or not to oppose bail, in deciding what witnesses to call and what evidence to tender;
• acting with moderation, fairness, and impartiality;^{Footnote 15}
• conducting oneself with civility;^{Footnote 16}
• not discriminating on any basis prohibited by section 15 of the Canadian Charter of Rights and Freedoms (Charter);
• adequately preparing for each case;
• remaining independent of the police or investigative agency while working closely with it; and
• conducting resolution discussions in a manner consistent with the DPP guideline.^{Footnote 17}

2.2. The duty to maintain judicial independence ^{Footnote 18}

Counsel fulfill this duty by:

• not discussing matters relating to a case with the presiding judge without the participation of defence counsel unless there is a legal justification for such ex parte discussions, such as portions of an application under section 37 of the Canada Evidence Act or in addressing common law informer privilege;^{Footnote 19}
• not dealing with matters in chambers that should properly be dealt with in open court;
• avoiding personal or private discussions with a judge in chambers while presenting a case before that judge; and
• refraining from appearing before a judge on a contentious matter when a personal connection exists between Crown counsel and the judge that would compromise the independent function of either role.

2.3. The duty to be fair and to maintain public confidence in prosecutorial fairness ^{Footnote 20}

In order to maintain public confidence in the administration of justice, Crown counsel must not only act fairly; their conduct must also be seen to be fair. One can act fairly while unintentionally leaving an impression of secrecy, bias or unfairness.

Counsel fulfill this duty by:

• making disclosure in accordance with the law;^{Footnote 21}
• bringing all relevant cases and authorities known to counsel to the attention of the court, even if they may be contrary to the Crown's position;
• not misleading the court;
• not expressing personal opinions on the evidence, including the credibility of witnesses or on the guilt or innocence of the accused in court or in public. Such expressions of opinion are improper;^{Footnote 22}
• not adverting to any unproven facts, even if they are material and could have been admitted as evidence;
• asking relevant and proper questions during the examination of a witness and not asking questions designed solely to embarrass, insult, abuse, belittle, or demean the witness. Cross-examination can be skilful and probing, yet still show respect for the witness.^{Footnote 23} The law distinguishes between a cross-examination that is "persistent and exhaustive", which is proper, and a cross-examination that is "abusive";^{Footnote 24}
• stating the law accurately in oral pleadings;
• respecting defence counsel,^{Footnote 25} the accused, and the proceedings while vigorously asserting the Crown's position, and not publicly and improperly criticizing defence strategy;
• respecting the court and judicial decisions and not publicly disparaging judgments; and
• avoiding themselves engaging in active "judge shopping."^{Footnote 26}

2.4. The duty to maintain objectivity

Counsel fulfill this duty by:

• being aware of the dangers of tunnel vision and ensuring they review the evidence in an objective, rigorous and thorough manner in assessing the strength of the evidence emanating from the police investigation throughout the proceedings;^{Footnote 27}
• exercising particular care regarding actual and perceived objectivity when involved in an investigation at the pre-charge stage;^{Footnote 28}
• making all necessary inquiries regarding potentially relevant evidence;^{Footnote 29}
• never permitting personal interests or partisan political considerations to interfere with the proper exercise of prosecutorial discretion; and
• not exceeding the scope of appropriate opening remarks, for example elevating the role of Crown counsel in the eyes of the jury to the custodian of the public interest.^{Footnote 30}

2.4.1. Inflammatory remarks and conduct

As part of the Crown's duty to be fair, counsel are obliged to ensure that any comments made during jury addresses are not "inflammatory."^{Footnote 31} Whether an address will be considered to be inflammatory is determined by looking at the number and nature of the comments, the specific language used and the overall tone of counsel's address. Inflammatory conduct or comments could render a trial unfair.^{Footnote 32}

The kinds of comments and conduct that the courts have found to be "inflammatory" (and thus could render the trial unfair) can be divided into six categories:

• Expressions of personal opinion
  • These include opinions on the honesty and integrity of police witnesses; that Crown counsel does not believe the accused; or on the guilt of the accused.^{Footnote 33}
• Inappropriately negative comments about the accused's or a witness's credibility or character
  • Such comments include characterizations of the accused as a liar, excessive use of sarcasm, ridicule, derision or exaggeration in referring to the accused or defence witnesses, excessive reference to the accused's criminal record, native country.^{Footnote 34}
• Observations or statements of fact not supported by the evidence
  • These situations include ones in which Crown counsel misstates the evidence in a way that impugns the accused's character.^{Footnote 35}
• Appeals to fear, emotion or prejudice
  • These comments are often in terrorem arguments in which Crown counsel urges the jury to protect society from the accused, who is portrayed in unflattering terms.^{Footnote 36}
• Negative comments about defence counsel or defence strategy
  • Crown counsel shall not suggest that defence counsel have used improper tactics, presented illegal evidence or made other comments designed solely to portray defence counsel as being untrustworthy.^{Footnote 37}
• Inappropriate language, tactics, and conduct in general
  • Inappropriate tactics include:
    • not placing before the court all the circumstances surrounding the obtaining of statements from the accused;
    • in cross-examination of the accused, while professing to test his credibility, bringing various matters before the jury which have no relevance to the issues at trial;
    • at the conclusion of the evidence given by the accused in his defence, stating in the presence of the jury that the accused will be arrested for perjury;
    • improperly presenting evidence to the jury through the device of reading from reports of judgments of the Supreme Court of Canada and other courts;
    • raising a "concoction theory" based on Crown disclosure for the first time in the closing address.^{Footnote 38}

3. Conflict of Interest

The special ethical obligations on Crown counsel, as "ministers of justice" demand the highest standards of honesty and integrity. Crown counsel's conduct should garner the public's confidence and trust. Thus, it is important that Crown counsel avoid actual, perceived or potential conflicts of interest.^{Footnote 39} An easily identifiable conflict of interest may arise where, for example, counsel prosecutes a former client.

Crown counsel should not participate in any prosecution involving an accused, a victim or a material witness who is a relative, a friend, or anyone else in respect of whom there is an objectively reasonable perception of conflict of interest. If the matter is already before the court when the conflict becomes apparent, Crown counsel should notify defence counsel and the court and disqualify themselves from the case.

4. Providing Legal Advice

Crown counsel provide legal advice to investigative agencies and departments within the federal government and to law enforcement agencies involved in enforcing federal law.^{Footnote 40} The primary purpose of providing this legal advice is to help ensure that evidence is gathered in a manner that will be admissible at trial. This involves compliance with the Charter, the Canada Evidence Act and other legal principles. Crown counsel may also advise on the sufficiency and relevance of evidence and identify areas requiring investigative follow-up. Crown counsel may provide legal advice relating to police investigative techniques, which do not relate to a specific case, but may affect the admissibility of evidence in future prosecutions.

Counsel's duty is to give independent legal advice on criminal law matters. In regulatory matters, this may include advising investigative agencies about the criminal law issues arising from an investigation, practice, or policy. Counsel have a further responsibility to discuss the public interest implications with a department or agency contemplating a prosecution and to apply the Attorney General's directive regarding those interests.^{Footnote 41}

When advising investigative agencies, Crown counsel must always be mindful of the distinct roles of the investigator and the prosecutor in the administration of justice.^{Footnote 42} Given the increasing complexity of law enforcement, counsel often become involved at the investigative stage to help ensure that the investigative strategies, techniques and procedures are consistent with the rules of evidence and with the Charter as well as to advise investigators on the nature of the evidence required, the scope and direction of the investigation, the use of investigative powers, the sufficiency of evidence and the quality of the witnesses. Effective management of complex litigation requires pre-charge cooperation between the police and Crown counsel. However, the existence of such cooperation does not diminish the need for an independent, impartial assessment of both the evidence and public interest considerations when the decision is made as to whether to prosecute.

4.1. Solicitor-client privilege

Information subject to solicitor-client privilege, including Crown counsel's legal advice to government departments and investigative agencies, normally is exempt from the Crown's disclosure duty.^{Footnote 43} Consequently, Crown counsel may not release a legal opinion, refer to it, or describe it in any fashion to defence counsel^{Footnote 44} or the public unless the privi-lege has been waived or it meets the "innocence at stake" threshold. Crown counsel must be conscious of the fact that not everything they do will be covered by privilege—whether the privilege attaches depends on the nature of the relationship, the subject mat-ter of the advice and the circumstances in which it is sought.^{Footnote 45} Crown counsel should be aware of internal policies of the relevant investigative agency, and also ensure waivers of privilege are undertaken in accordance of the agency's internal policy.

With law enforcement agencies outside the Government of Canada, the privilege rests with the agency. With departments and agencies within the Government of Canada, the privilege rests with the Crown in right of Canada. In practical terms, however, decisions concerning privilege, such as waiver, are usually made by the government department or agency that received the advice. Counsel should be aware of internal policies of the relevant organization and ensure that any waivers of privilege are done in accordance with the organization's internal policy.

Appendix A: Justice System Participant Misconduct

Allegations relating to conduct by justice system participants constituting criminality or serious procedural or ethical breaches raise particular concerns for the administration of justice. A justice system participant includes a potential witness, police officer, investi-gator, defence counsel or Crown counsel, as well as PPSC employee in the course of their handling of a PPSC matter. To the extent that allegations entail wrongdoing by public servants (including members of the RCMP), this note must be read in conjunction with the Public Servants Disclosure Protection Act and thePPSC's Code of Conduct.

Crown counsel, including Crown agents, paralegals and PPSC employees have the responsibility to immediately report allegations of such conduct to PPSC management in writing in a timely fashion. The persons in each office to whom such conduct should be reported should be identified and made known to each office.

Management, in turn, have an obligation to assess the report and act appropriately based upon that assessment. This includes communicating to the employee in writing the man-ner in which the reporting was addressed. If details about the particular steps cannot be communicated because of privacy or privilege issues, then at a minimum the person who raised the matter should be informed that action is being taken.

The person who reported the conduct should be informed that they may raise concerns about the manner in which the matter is being addressed with a Deputy Director (or with the Director, if the conduct had been reported to a Deputy Director). The person may also make a complaint to an appropriate external review body, eg, to a Law Society or police review body, if they continue to have concerns about the manner in which PPSC is addressing the matter.

The report of the misconduct, the management assessment of the report, the management response to the person and the documented follow-up steps must be placed upon the rel-evant files.

A briefing note should be provided without delay to the Deputy Director of Public Pros-ecutions. It must outline the conduct in question, and if it relates to a finding made by a court, explain the specific findings of the court. It must indicate what steps have been taken and what further inquiries or steps will be taken. An Early Warning Report may also need to be prepared.

When applicable, the CFP or their designate must notify in writing the appropriate person within the police force or investigatory body about the matter. This notice will indicate that PPSC management will pay direct attention to the matter and expect to be advised as to what steps, if any, they are taking.

All cases in which the justice system participants were or are involved:

• must be identified;
• Crown counsel who have carriage or may have carriage must be advised; and,
• the nature of the conduct must be indicated on the files.

Determinations must be made if additional disclosure to accused persons in relation to open as well as closed files is required. Such disclosure must be made without delay. If such disclosure cannot be made due to concerns relating to a public interest privilege, eg, a public safety concern, the risk of endangering an individual's safety or the proper functioning of a police technique, then steps must be identified to ensure in the most timely and appropriate manner that defence counsel and the Court are made aware of the potential for additional disclosure or of an issue preventing such disclosure. If neither can occur without causing the identified risk, then steps must be taken to ensure that the rights of the accused are safeguarded while the disclosure issue is addressed. Depending upon the circumstance, there may be no alternative to staying the prosecution.

Addressing the safeguarding of the rights of the accused and the proper administration of justice does not relieve counsel or their supervisor or manager from the obligation to en-sure that the matter of the conduct of the justice system participant are addressed in an appropriate, timely manner.

The CFP, Deputy CFP or GC LO should have discussions with the relevant provincial Crown counterpart to discuss what communications should occur in these circumstances. For example, it may be that in cases where there is a concern about police or investigator misconduct that may be appropriate for investigation because of concerns about criminality, eg, perjury, obstruction of justice or other illegal conduct, ‎that a particular police body should be informed along with the provincial Crown (or that the information to them occur with the expectation that they will refer matters to the police for such investigation as they consider appropriate). This will vary depending upon the investigatory structure applicable in each jurisdiction, for example, if there is a special investigative police unit with such specific responsibilities.

The particular allegations, including any findings of a court, as viewed through the lens of our solemn obligations to the court, will determine whether and what additional other steps are required.