This is a recent piece in my firm’s Ottawa Citizen column on fundamental legal rights and freedoms, entitled “Right to Know”.
This article is the first of a two-part series I am writing on the role of the Crown prosecutor.
Crown’s role to be fair, not necessarily to win
BY SOLOMON FRIEDMAN, THE OTTAWA CITIZEN
In the past several columns, we have explored the role of defence counsel as fearless and unyielding advocate of his or her client. The defence’s counterpart in the criminal justice system is the prosecuting lawyer, generically referred to as the Crown Attorney, or simply, “the Crown.”
Although our court system is an adversarial one, the two sides are not simply mirror images of one another.
Unlike defence counsel, who are specifically enjoined to be biased and zealous in the pursuit of their client’s interests, the prosecutor must take a dispassionate and detached view of the court proceedings, all in the name of the administration of justice.
Our Courts have repeatedly said that the ideal prosecutor is a “minister of justice” who discharges his or her duty to the court in a fair and objective manner.
It is the Crown’s duty, therefore, not to secure a conviction at all costs, but to ensure that the evidence supporting the prosecution is put fairly before the court. For this reason, it is often said that the Crown never wins or loses.
Moreover, prosecutors are not permitted to express their personal opinions about the guilt or innocence of the accused or to engage in inflammatory rhetoric in the court proceedings. They must carry out their role with solemnity, dignity and professionalism.
Similarly, the Crown ought not to act as an advocate for the victim or the victim’s family. The criminal justice system is not a three-party proceeding and, in general, complainants or their relations have no standing in the criminal process.
Owing to their status as quasi-judicial officers, Crowns are further required to avoid “tunnel vision” as they prosecute matters and must always remain open to the possibility of the innocence of the individual on trial.
In Ontario, prosecutors are governed by the Crown Policy Manual, which sets out policies and procedures which Crown Attorneys are expected to follow.
One of the most important functions of the prosecutor at the preliminary stage of criminal proceedings is the execution of the “charge screening” process.
In general, criminal charges are laid by the investigating police agency and then forwarded to the Crown Attorney’s Office for prosecution. However, prosecutors are obligated to critically assess the viability and appropriateness of criminal charges, at every stage of the proceedings.
That is, charge screening is an ongoing process, and prosecutorial decisions must be constantly reassessed, as the facts change and new information is brought to light.
The Crown Policy Manual sets out a two-part review that prosecutors must conduct when screening charges.
First, prosecutors are not permitted to proceed with charges where there is “no reasonable prospect of conviction.” Note that this standard is higher than the initial threshold applied by police when laying a charge, which is “reasonable and probable grounds to believe an offence has been committed.”
In other words, the prosecutor must be of the opinion that the prosecution is a viable one and that there is a substantial likelihood of success. The Policy Manual states, however, that prosecutors do not need to believe that a convictions is “probable” or “more likely than not”, just that a reasonable prospect of conviction exists.
More importantly, this standard is completely unrelated to the Crown’s personal opinion of the accused person’s guilt or innocence. In fact, it is perfectly conceivable that a prosecution could be brought where the prosecuting Crown is not convinced of the accused’s guilt, but simply believes that there is a “reasonable prospect of conviction.”
This standard for proceeding with charges is not a universal one. In some jurisdictions, the prosecution must satisfy a far more rigorous assessment. This was clearly demonstrated in the recent case of Dominique Strauss-Kahn, in which the District Attorney for New York County sought the dismissal of rape charges against Strauss-Kahn.
In the prosecution’s filings, D.A. Cyrus Vance Jr. explained that prosecutors in his office cannot proceed with criminal charges unless they are “personally convinced beyond a reasonable doubt of the defendant’s guilt.” Obviously, this is a far higher standard than simply asking if there is a “reasonable prospect of conviction.”
In addition to determining the likelihood of conviction, Crown prosecutors cannot proceed with charges where it is “not in the public interest” to do so.
In assessing the public interest in prosecuting a criminal charge, the Crown will examine a myriad of factors, including the seriousness or triviality of the offence and any significant aggravating or mitigating factors that may apply. Crowns will also assess the attitude of complainants towards court proceedings and the impact of the prosecution on other affected parties.
Most importantly, “public interest” is not to be confused with “public opinion.” Opinions, like public moods, come and go, and can often be swayed by isolated incidents and an imperfect understanding of the legal system.
The public interest, on the other hand, involves the confidence of the public in the administration of justice. It connotes, in the words of one provincial prosecution manual, “the notion of enduring public good and order.”
For that reason, independence is the hallmark of the ideal prosecutor. Accordingly, Crowns are expected to act free of political or public pressure and to exercise their discretion in a manner consistent with their status as quasi-judicial officers of the Court.
As the Supreme Court put it, “[The Crown’s] function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility.”
