2.3 Decision to Prosecute

Public Prosecution Service of Canada Deskbook

Guideline of the Director Issued under Section 3(3)(C) Of The Director Of Public Prosecutions Act

May 14, 2019

Table of Contents

1. Introduction

The decision whether to prosecute is among the most important decisions that will be made by Crown counsel. Considerable care must be taken in each case to ensure that the correct decision is made. A wrong decision to prosecute and, conversely, a wrong decision not to prosecute tend to undermine confidence of the community in the criminal justice system.

The Director of Public Prosecutions (DPP) under the authority of s 3(3)(a) of the Director of Public Prosecutions ActFootnote 1 (DPP Act) initiates and conducts prosecutions on behalf of the federal Crown.Footnote 2 The DPP delegates this power and function to federal prosecutors who are appointed or retained for this purpose and act as the DPP’s agentsFootnote 3 when making a decision to prosecute.Footnote 4

As part of their quasi-judicial role as “ministers of justice,”Footnote 5 Crown counsel ensure that prosecutionsFootnote 6 based on sufficient evidence and which best serve the public interest are brought before the courts. In the exercise of this power, Crown counsel have a high ethical duty to act independently, fairly and objectively without either negative or positive animus towards the accused.Footnote 7

At the same time, Crown counsel must recognize the independent functions of the police and investigative agencies, which decide what charges to recommend or lay in light of evidence gathered during an investigation, and of the courts, which determine the admissibility and weight of the evidence at trial and determine the guilt or innocence of an accused person.Footnote 8

2. The Decision to Prosecute Test

When deciding whether to initiate and conduct a prosecution on behalf of the federal Crown, Crown counsel must consider two issues:

If the answer to either question is no, the test is not met,Footnote 9 and the prosecution should not proceed. If charges have been laid, the charges should be withdrawn or a stay of proceedings entered.

3. Application of the Test

The test must be applied to each charge against each accused. This should take place in a timely manner following the laying of charges, or in pre-charge approval provinces, upon the referral of charges by the police or the investigative agency.

If requested by the police or investigative agency, Crown counsel may provide a preliminary assessment on whether the test would be met prior to charges being laid or referred for approval. However, it is preferable that the advice be given once the investigation has been completed.

3.1. Reasonable prospect of conviction

Crown counsel must objectively assess the whole of the evidence likely to be available at trial, including any credible evidence that would favour the accused, to determine whether there is a reasonable prospect of conviction. This assessment should be made on the assumption that the trial will unfold before an impartial trier of fact acting in accordance with the law.

A reasonable prospect of conviction requires that there be more than a bare prima facie case, or in other words, it requires more than evidence that is capable of making out each of the necessary elements of the alleged offence against an accused.Footnote 10 However, the test does not require a probability of conviction, that is, it does not require a conclusion that a conviction is more likely than not.Footnote 11

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 violation of the Canadian Charter of Rights and Freedoms 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” through close contact with the police, investigative agency or victims, or have otherwise been influenced by biases, stereotypes or prejudices of any kind, such that the assessment is insufficiently rigorous and objective.Footnote 12 Crown counsel should be attuned to the fact that they may be unaware of their own biases and prejudices.Footnote 13

In assessing the sufficiency of the evidence, Crown counsel should take care to not usurp the role of the court. The Supreme Court of Canada explained this in Miazga v Kvello Estate:Footnote 14

... the Crown prosecutor who harbours personal doubt about the guilt of the accused cannot substitute his or her own views for those of the judge or jury in making the threshold decision to go forward with a prosecution. The Martin Report explains as follows, at pp 71-72:

Crown counsel need not and ought not to be substituting his or her own views for those of the trial judge or jury, who are the community’s decision makers. It cannot be forgotten that much of the public’s confidence in the administration of justice is attributable to the trial court process that ensures that justice is not only done, but is seen to be done...

The evidential standard must be applied throughout the proceedings – from the time the investigative report is first received until the exhaustion of all appeals. When charges are laid, the test may have to be applied primarily on the basis of the investigative report, although it is certainly preferable – especially in borderline cases – to look beyond the statements of the witnesses. Later in the proceedings, 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 result in a conviction.

3.2. The public interest

It is a well-accepted principle of law in Canada and throughout the Commonwealth that a prosecution should be undertaken only where the requisite evidence exists and a prosecution would best serve the public interest. It has never been the rule that a prosecution will occur solely on the basis that there is sufficient evidence to support a charge.Footnote 15

Consequently, if there is sufficient evidence, Crown counsel must then consider whether, in all of the circumstances, a prosecution would best serve the public interest. Crown counsel consider the public interest only when satisfied that the evidentiary foundation to support a charge has been met as “no public interest, however compelling, can warrant the prosecution of an individual if there is no reasonable prospect of conviction.”Footnote 16 If there is a reasonable prospect of conviction, “the public interest in the due enforcement of the criminal law will in most cases, without more, require that the matter be brought before the courts for a decision on the merits.”Footnote 17

Crown counsel must continuously consider the public interest in light of relevant emerging developments and the available material. There must be a re-assessment of the public interest at each stage of the prosecution.

Crown counsel should take into account the matters set out below when considering the public interest. Factors that are often relevant are listed. It would be impossible to catalogue every factor that could be relevant in every situation. As well, the relevance and the weight of these factors vary from case to case. In addition, considerations may also arise in specific types of cases, such as when the accused is Indigenous,Footnote 18 or a member of another group that is overrepresented in the criminal justice system. In assessing the public interest, Crown counsel should also consult relevant Public Prosecution Service of Canada (PPSC) directives and guidelines.

Even if there is sufficient evidence to proceed with a prosecution, Crown counsel should proceed only if, considering all of the circumstances, a prosecution would best serve the public interest. In some cases there may be an appropriate alternative to prosecution. For example, based on the assessment of the public interest as a result of a careful consideration of the factors below, Crown counsel may conclude in certain cases that there are more effective ways to address the offending conduct and to reduce the likelihood of recidivism, such as the use of alternative measures (or extrajudicial measures for a young person), referral to a Restorative Justice program or other diversionary responses. In other cases, such as where an offender has been rehabilitated and there is no need to address general deterrence and denunciation, proceeding with a prosecution may not be in the public interest. Footnote 19

PPSC prosecutors must consider the following factors related to:

1)   The nature of the alleged offence

  1. Its seriousness or triviality: the more serious the alleged offence, the more likely the public interest will require that a prosecution be pursued. However, where the alleged offence is not so serious as to plainly require a prosecution, Crown counsel must consider their duty to uphold the laws enacted by ParliamentFootnote 20 and any important public interest served by conducting a prosecution, for example ensuring compliance with a regulatory regime through prosecution;
  2. For administration of justice offences, such as failures to appear or failures to comply with conditions: consideration should be given to how an offender’s circumstances related to the offence, where the offence can be considered as relatively minor and did not affect public or individual safety. For example, did the offence of failing to appear as required relate to an underlying problem or condition of the accused, such as homelessness, a substance abuse issue or a mental disorderɁ Such considerations should factor into the determination as to whether prosecution of the administration of justice offence best serves to promote future compliance with court orders, particularly when the accused is a member of an overrepresented population such as Indigenous persons;
  3. The prevalence and impact of the alleged offence in the community: in particular where Indigenous women and girlsFootnote 21 and other groups are already disproportionately represented as victims of violent crime;
  4. The likely sentence in the event of a conviction: in the case of an Indigenous accused, the Crown should, to the extent feasible, assess the likely sentence in view of the approach outlined by the Supreme Court of Canada in R v Gladue, and affirmed and clarified in its subsequent rulings.Footnote 22
  5. The delay between the commission of the alleged offence and the time of the charging decision: considerations relevant to the impact of any delay include the responsibility of the accused for the delay, the discoverability of the alleged offence by the police or investigative agency, and the complexity and length of the investigation; or
  6. The law that is alleged to have been breached: whether it is obsolete or obscure.

2)   The nature of the harm caused by or the consequences of the alleged offence

  1. The nature of the harm includes loss or injury caused by the alleged offence and relevant consequences to the victim, the community, the environment, natural resources, safety, public health, public welfare or societal, economic, cultural or other public interests;
  2. The extent to which the alleged offence causes concern in the community, such as in Indigenous communities, where the impacts of crime are significant and contribute to the on-going trauma and disproportionate victimization already being experienced by Indigenous persons as a result of historic and systemic factors;Footnote 23
  3. The entitlement of any person to criminal compensation, reparation or forfeiture if a prosecution occurs; or
  4. The availability of civil remedies is not a factor that militates against a prosecution.

3)   The circumstances, consequences to and attitude of victims

Although Crown counsel do not act as lawyers for victims,Footnote 24 the effect of the alleged offence on victims is relevant and important in assessing the public interest. Counsel must consider:

  1. The attitude of the victim of the alleged offence to a prosecution. This may include the attitude of the victim’s family members;
  2. The impact of the alleged offence on the victim and the victim's family, including any loss, injury or harm suffered;
  3. The youth, age, intelligence, vulnerability, disability, dependence, physical health, mental health, and other personal circumstances of the victim;
  4. Whether the victim was serving the public or was a public official;
  5. Whether a prosecution is likely to have an adverse effect on the victim's physical or mental health;
  6. Where the effect of the alleged offence on the victim or the community exacerbates the on-going trauma and victimization caused by the impacts of residential schools and the historical factors experienced by Indigenous victims; or
  7. Whether the alleged offence impacts non-Indigenous victims who are also overrepresented as victims in the criminal justice system by virtue of race, age, gender, poverty, substance abuse disorder, mental illness or any other similar factor.

4)   The level of culpability and circumstances of the accused

  1. The accused's degree of responsibility;
  2. Significant mitigating or aggravating circumstances, including those identified in the Criminal Code, other acts of Parliament, or in the jurisprudence, such as
    R v. Gladue and R v. Ipeelee;Footnote 25
  3. Level of involvement and whether they were in a position of authority or trust;
  4. The harm the accused caused, especially to communities or to members of groups who are overrepresented as victims in the criminal justice system, such as Indigenous women and girls;
  5. The accused’s motivation, and in particular any bias, prejudice or hate based on race, national or ethnic origin, language, religion, gender, age, mental or physical disability, sexual orientation, or any other similar factor;
  6. The accused’s agreed upon co-operation with the investigation or prosecution of others, or the extent to which they have already done so;
  7. The accused’s age, intelligence, physical or mental health or infirmity; or
  8. The accused’s background, including their antecedents and the likelihood of future illegal conduct. When the accused is Indigenous, the Crown should consider any available information regarding the unique systemic or background factors that may have played a role in bringing the particular Indigenous offender before the courts. For example, did the offender, or a member of his family,  attend residential schools, and is there information that this experience influenced  the offender and had a bearing on the criminal conductɁFootnote 26 The decision whether to proceed may not be altered at this stage by such considerations but it is important for Crown counsel to be aware of such factors at the earliest possible opportunity;Footnote 27
  9. In addition, when considering the criminal record of an accused, the Crown must consider carefully the specific nature of that record. For example, to what degree does it consist of what can be characterized as minor administration of justice offences relating to underlying issues such as homelessness, mental illness, poverty or addiction.

5)   The need to protect sources of informationFootnote 28

Whether prosecuting would require or cause the disclosure of information that should not be disclosed in the public interest, for example it would be injurious to:

  1. Confidential informants;
  2. Ongoing investigations;
  3. International relations;
  4. National defence; or
  5. National security.

6)   Confidence in the administration of justice

  1. Whether a prosecution would maintain public confidence in the government, courts, a regulatory regime, and the administration of justice or have the opposite effect;
  2. The likelihood of achieving the desired result and requisite level of specific and general deterrence and denunciation without a prosecution through available alternative measures, non-criminal processes or a prosecution by a provincial prosecution service. Where the accused is Indigenous, recognized Indigenous laws, norms, traditions and values may provide guidance regarding appropriate alternatives to prosecution for the offender. Such alternatives will be particularly appropriate where mechanisms and resources exist in communities so that offenders can be referred to alternative processes such as those involving Indigenous elders, Justice committees or specialized courts;
  3. The effect on the administration of justice of committing resources to conduct the proceedings when considered in relation to the seriousness or triviality of the alleged offence, the likely sentence that would result from a conviction, and the attendant public benefit(s);
  4. Whether the consequences of a prosecution or conviction would be disproportionately harsh or oppressive; or
  5. Whether a prosecution would negatively impact or exacerbate the contemporary effects of residential schools and colonization on Indigenous persons or communities interacting with the criminal justice system.

3.3. Irrelevant criteria

A decision whether to prosecute must clearly not be influenced by any of the following:

  1. Stereotypes, discrimination or bias relating to 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.

3.4. ConsultationFootnote 29

Crown counsel who are faced with difficult decisions regarding either branch of the test should consult with experienced colleagues and supervisors or managers. Where decisions could have a significant impact on other prosecution decisions regarding a class of cases, the enforcement practices or policies of the police or investigative agency, a regulatory enforcement/compliance regime, or provincial or national practice, the Chief Federal Prosecutor (CFP) must consult with the appropriate Deputy Director of Public Prosecutions (Deputy DPP).Footnote 30

In some cases it will be appropriate for Crown counsel to obtain the views of the police, the investigative agency or the victim when determining whether the institution or continuation of prosecution best serves the public interest.

Consultation with counsel within the federal government, particularly with a Department of Justice Legal Services Unit that advises a federal department or agency that has an enforcement mandate, may also be warranted as they may be particularly sensitive to the nature, philosophy and objectives of the enforcement regime and its remedial options, from warnings to administrative measures. In prosecutions relevant to regulatory statutes, investigative agencies often have views about the enforcement of their regulatory schemes and should be consulted in the event that the public interest factors weigh against a prosecution.

In the event that the police or investigative agency disagrees with the decision not to prosecute a referred charge or a laid charge, Crown counsel advises the CFP or their designate, who may communicate with the police or investigative agency at the appropriate level. Where necessary, in cases of national importance, the CFP consults with the relevant Deputy DPP.

Ultimately, however, Crown counsel or the relevant manager within the PPSC must decide independently of the police or investigative agency whether a prosecution is warranted.

3.5. Reasons for decision

Where a decision is made not to institute proceedings, Crown counsel should keep an appropriate record of the reasons for that decision as well as consultations made in reaching that decision. For contentious matters where counsel decides to prosecute, Crown counsel may wish to keep notes of their assessment of the “decision to prosecute” for future reference and briefings.

In appropriate cases, reasons to explain a decision not to prosecute should be provided in order to maintain confidence in the administration of justice.

Reasons are provided to the police or the investigative agency in serious matters or those of significant public interest when a decision not to prosecute has been made. Reasons that reflect sensitivity to the police or investigative agency’s mandate support the proper administration of justice.

A victim of crime may also feel aggrieved by decisions not to prosecute, or decisions to prosecute when they do not favour a prosecution. Crown counsel should keep the victim appropriately informed in a timely fashion of the decision.

Finally, the need to maintain confidence in the administration of justice may also necessitate, in some circumstances, public communication of the reasons for not prosecuting.Footnote 31 This communication may occur by way of a statement in court at the time charges are stayed or withdrawn, or a news release. In providing reasons, Crown counsel should consider the privacy interests of victims, witnesses and accused persons, and where requested by a victim, protect their identity from public exposure.

3.6. Delegated matters

Where a charge has been delegated from a provincial attorney general to the DPP for prosecution, Crown counsel makes the decision to prosecute in accordance with the applicable provincial decision to prosecute test.

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