Ye olde crown prosecutor.

• Author: Mah, Connie L.

Canada's history is, at least in part, the history of a former British colony, thus British history has played an important role in the formation of Canadian institutions. Our constitution, our legislative system, and our legal system are based upon the English legal tradition. In particular, the Canadian legal system was derived mainly from the English common law system, and continues to share many legal institutions and notions.

One institution of particular note is the notion of a Crown Prosecutor, which developed within the English common law system. The history of the development of the common law system in England is important to understand the notion of the Crown Prosecutor in Canada.

History of the Common Law in England

The term Crown refers to the sovereign power and position of a monarch. This term embodies the sovereign and its rights, duties, and prerogatives. Crown came to personify the English State. Many powers originally belonging to the King were entrusted to the Crown. The term Crown became synonymous with government.

Crown law referred to criminal law and the term Crown has come to refer to the prosecutor in criminal proceedings in a court of law. Crown Prosecutors are lawyers entrusted with the duty to conduct criminal proceedings on behalf of the police and the State.

The notion of the Crown Prosecutor was born in the English common law system. English common law originated in feudal England. During this time, it became customary for the King of England to sit in judgment over disputes among his subjects during his travels across England. The King judged according to the customs of the local area in which the disputes arose. Some customs were local and some were common throughout the country, the latter becoming known as common customs. Over time, the King delegated these tasks, and courts were established to adjudicate disputes. Judges relied on previous decisions to decide new cases, and the legal tradition of common law arose from all the decisions made.

In the common law system of England, crimes were originally considered to be committed against the individual and not the State. The victim or his relative would initiate and personally conduct the prosecution of an alleged offender. This was known as a system of private prosecution.

Fueled by personal vengeance, there were many abuses to this system. The result was that the common laws of England were not applied consistently throughout England. Henry VIII identified...