2.7 Relationship between Crown Counsel and Investigative Agencies

Public Prosecution Service of Canada Deskbook

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

March 1, 2014

Table of Contents

1. Introduction

Administration of criminal justice is a continuum. At one end, the police investigate criminal offences and arrange for suspected offenders to appear in court. At the other, Crown counsel are responsible for presenting the Crown's case in court. Their roles are interdependent. While both have separate responsibilities in the criminal justice system, they must inevitably work in cooperation to administer and enforce criminal laws effectively. As the Supreme Court of Canada has stated, “the proper functioning of the criminal justice system requires (…) that all actors involved be able to exercise their judgment in performing their respective duties, even though one person's discretion may overlap with that of another person.”Footnote 1

This guideline describes the respective responsibilities of the investigative agencies and of Crown counsel, emphasizing the role of each in the administration of justice. It should be read in conjunction with the Public Prosecution Service of Canada’s (PPSC) service standards.

2. Role of Law Enforcement Agencies and Investigative Agencies: the Authority to Investigate and to Lay Charges

2.1. The common law principle

Maintaining the independence of law enforcement agencies from direct political control is fundamental to our system of criminal justice. Under the common law, the police could not be directed by the Executive or by Parliament to start an investigation, much less lay charges. As one former Ontario Attorney General said, “No one can tell an officer to take an oath which violates his conscience and no one can tell an officer to refrain from taking an oath which he is satisfied reflects a true state of facts”.Footnote 2 In R v Metropolitan Police Commissioner, ex parte Blackburn,Footnote 3 Lord Denning described the principle in this way:

I hold it to be the duty of the Commissioner of Police, as it is of every chief constable, to enforce the law of the land. He must take steps so to post his men that crimes may be detected; and that honest citizens may go about their affairs in peace. He must decide whether or not suspected persons are to be prosecuted; and, if need be, bring the prosecution or see that it is brought; but in all these things he is not the servant of anyone, save of the law itself. No Minister of the Crown can tell him that he must, or must not, keep observation on this place or that; or that he must, or must not, prosecute this man or that one. Nor can any police authority tell him so. The responsibility for law enforcement lies on him. He is answerable to the law and to the law alone.

2.2. Statutory exceptions

For certain offences under the Criminal Code (Code) and other federal statutes, for example, corruption of judicial officersFootnote 4 or offences on territorial seas,Footnote 5 war crimes,Footnote 6 the Canada Labour Code,Footnote 7 the Canada Human Rights Act,Footnote 8 terrorism offences and offences against non-Canadians committed outside of Canada, the consent of the Director of Public Prosecutions (DPP)Footnote 9 or minister of the Crown is required to lay an information.

3. Role of Crown Counsel Before and After Charges are Laid

3.1. Introduction

Crown counsel and investigative agencies play complementary roles in the criminal process. They both have roles to play before and after charges are laid.

While the involvement of the Crown is not required at the pre-judicial stage, the practice is increasingly common. The authors Michael Code and Patrick Lesage have noted this phenomenon and explained it as follows:

There has been a natural evolution towards much closer police and Crown pre-charge collaboration over the past 20 to 30 years. As noted above, criminal procedure had become much more complex than it was in an earlier era. Police investigative procedures are now the subject of pre-trial motions to determine whether there has been a Charter violation, whether evidence will be admitted under the new “principled approach” and whether a statutory process, such as a wiretap authorization or search warrant, has been properly followed. The police have increasingly turned to Crown counsel for pre-charge legal advice in order to navigate these difficult waters… It is simply not feasible in the modern era to expect the police and Crown to work in entirely separate silos, as they once did.Footnote 10

Cooperation and consultation between law enforcement agencies and the Crown are essential to the proper administration of justice, since investigators must gather evidence that is both admissible and relevant. Later, when deciding whether to prosecute, consultation becomes useful for assessing the sufficiency of the evidence and the public interest criteria.Footnote 11 This cooperation is even more important in complex cases.

Accordingly, Crown counsel should be available for consultation during an investigation and before charges are laid. This will encourage investigators to ask for advice. In complex cases, Crown counsel may be required to work closely with the police to identify and collect cogent and relevant evidence. However, this does not mean that Crown counsel must take on the work of the investigators. At the end of an investigation, the role of Crown counsel is to give the investigators a fair and objective assessment of the quality of the evidence and the appropriateness of proceeding. In conducting this assessment, counsel must be vigilant and take care to avoid “tunnel vision”, meaning the loss of the ability to conduct an objective assessment of the case through contact with the investigators.Footnote 12

3.2. Statutory involvement before charges are laid

In some instances, Crown counsel become involved in an investigation because of statutory requirements. These include:

In all these situations, Crown counsel may assist in preparing the necessary materials and making the application to court, where applicable.

3.3. Non-statutory involvement

Crown counsel can provide a wide range of assistance to investigators. In most non-statutory roles, Crown counsel play a supporting role by providing advice to ensure the rule of law.

3.3.1. Advice concerning the operational plan

The police have complete autonomy to decide whom to investigate and for what suspected crimes. They also have the discretion to decide how to structure the investigation and which investigative tools and techniques to use.

However, prior to undertaking an investigation or in its early stages, investigators may wish to consult with Crown counsel for advice and guidance as to how the investigation should be structured to ensure a sustainable prosecution. It is best to make structural decisions early in the investigation, rather than waiting until it is too late to take corrective action. For example, if the operational plan contemplates an investigation of a large criminal organization, it may be prudent to consult Crown counsel prior to undertaking the investigation. Decisions can be made early in the investigation that may assist in developing a case that can be put before the courts in an effective manner.

3.3.2. Immunity agreements – Investigative assistance agreements

Crown counsel must be involved in the granting of immunity from prosecution, and any agreement must be in writing.Footnote 17

3.3.3. Preparation of search warrant material

Although investigators may apply for certain judicial authorizations without the advice of Crown counsel, Crown counsel can provide advice when requested to do so.

Crown counsel may give advice on various types of warrants and orders,Footnote 18 including:

Crown counsel should be prepared to advise whether a judicial authorization is required, what judicial authorization is required, whether the threshold for the application is met, and whether a publication is appropriate. Normally the police draft the materials in support of a judicial authorization. Only exceptionally will Crown counsel be involved.

3.3.4. Access to sealed packets

In some cases, investigators will obtain an order to seal a search warrant and supporting materials. Occasionally, either the subject of the search or the media may apply for access to the sealed materials. Crown counsel may appear on those applications.

The decision as to whether the sealing order should continue or whether to allow a partial disclosure of information is made jointly by investigators and Crown counsel.

3.3.5. Extensions of the time periods seized items may be detained

Investigations are becoming more complex, and investigators often need to extend the time seized items may be detained or retained under s. 490(2) of the Code. In many cases, the investigation may continue for a lengthy time after the search.

The Criminal Code provides for three stages of detention:

  1. The first three months - ordered by the justice who receives the Form 5.2 report;Footnote 19
  2. The next nine months;Footnote 20 or
  3. A period longer than one year from the date of seizure.Footnote 21

Section 490 allows Crown counsel or a peace officer to present applications for detention. In the vast majority of cases, peace officers are able to deal with these applications without the involvement of Crown counsel. However, in some cases, the application to extend can be a very complex procedure. Issues regarding the protection of ongoing investigations, informers and other related issues may arise. The individual subject to the search may attempt to use the detention hearing as a means of gaining access to the investigation file long before charges are laid.

Crown counsel may play a role in these hearings, in particular by:

3.3.6. Preparation of the Crown brief

The Crown brief is one of the most important documents an investigator will prepare during an investigation.Footnote 24 It is through this brief that the investigator presents his or her theory of the case and demonstrates the existing evidence to prove that theory.

Crown counsel may assist in the preparation of the brief in a number of ways, including:

3.3.7. Disclosure management

Except in the most routine cases, disclosure management is key to an effective prosecution. Unless planning and thought is given to developing a disclosure strategy and incorporating it into the operational plan, significant obstacles may arise and prevent the court from hearing the case in a timely manner.

Crown counsel may assist in disclosure management in various ways, including providing advice on:

3.3.8. Interviewing potential witnesses before charges are laid

Generally, Crown counsel do not participate in the interviewing of witnesses before charges are laid.Footnote 26 Crown counsel assess potential evidence by reviewing the Crown brief,Footnote 27 documentary evidence and videotaped witness statements.

However, in some circumstances, it may be appropriate for Crown counsel to interview a witness before charges are laid. In these situations, the investigator or the Crown witness coordinator normally should be present during the interview. Situations in which such involvement may be appropriate include:

3.4. Charge review

During the investigation, investigators are not only entitled, but are encouraged to consult with Crown counsel about the evidence, the offence and proof of the case in court. At the end of the investigation, investigators are again entitled (and strongly encouraged in difficult cases) to consult with Crown counsel on the laying of charges. This consultation might include discussions about the strength of the case and the form and content of proposed charges. Ultimately, however, the police have the discretion at law to commence any prosecution according to their best judgment, subject to statutory requirements for the consent of the Attorney General, and the authority of the Attorney General to stay proceedings if charges are laid.

In practice, a form of pre-charge screening or “charge approval” occurs in Quebec, New Brunswick and British Columbia. Under these systems, charges can only be laid if Crown counsel reviews and approves them.Footnote 32

When the DPP chooses to participate in a process of pre-charge approval of charges, the DPP will apply the charge approval standard established in the PPSC Deskbook guideline “2.3 Decision to Prosecute” to all proceedings proposed to be commenced at the instance of the Government of Canada. Consideration should be given to whether counsel who advises the investigative agency during the investigation (the pre-charge advisory Crown) should be different from counsel who conducts the screening process (the pre-charge approval or screening Crown). There is no iron clad rule in this respect. Factors to consider in making this decision include the effective and efficient prosecution of the matter, the orderly transition of the file, the length of time and extent of involvement of the pre-charge Crown counsel, the need to avoid preconceived notions, exclusion if called as a witness, and the value of fresh eyes assessing the case.

3.5. After charges are laid

Generally, just as peace officers are independent from political control when laying charges, Crown counsel are independent from the police in the conduct of prosecutions.Footnote 33 Crown counsel's independence applies, for example, to assessing the strength of the case,Footnote 34 electing the mode of trial,Footnote 35 providing disclosure to the accused,Footnote 36 assessing the witnesses (including decisions about immunity from prosecution),Footnote 37 deciding how to present the evidence,Footnote 38 negotiating and repudiating plea agreements,Footnote 39 and deciding if the public interest warrants continuing or staying a prosecution.Footnote 40

When charges are laid, full responsibility for the proceedings shifts to the DPP. The police must, on request, carry out further investigations that counsel believes are necessary to present the case fairly and effectively in court. The DPP also has the authority to control the proceedings after charges are laid. This authority extends to conditions of bail, staying or withdrawing charges and representations on sentencing. This role should, whenever reasonably possible, be carried out in consultation with the investigators, but the consultation (much less agreement) is not required by law.

4. Resolving Disagreements Between Crown Counsel and Investigators on Whether to Proceed

In cases where a disagreement between investigators and Crown counsel on whether to lay charges or not occurs, the issue should be resolved according to any existing agreements between the two organizations or through discussions at successively more senior levels on both sides.

The decision whether a case should commence or continue should be made at the regional level. Disagreements should be referred to the team leader and then, if necessary, to the Deputy Chief Federal Prosecutor (or General Counsel, Legal Operations) and to the Chief Federal Prosecutor (CFP). When the unresolved disagreement is between a Crown agent and the police, the matter should be referred to the agent supervisor at the regional office. If the issue cannot be resolved at this level, it should be referred to the CFP.

In rare circumstances, senior managers at PPSC Headquarters may need to review a case in which there is a disagreement. The CFP should refer the case to the appropriate Deputy DPP for assessment.

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