The Prosecutor

• Author: David Layton; Michel Proulx
• Pages: 577-660

577

CHA PTER 12

THE PROSECU TOR

A. INTRODUCTION

The proper analysis of a prosecutor’s ethical obligations beg ins with the

recognition that the Crown occupies a unique role as a party in crim-

inal litigation, seeki ng justice in the form of a reliable result reached

through a fair process. Consequently, though in many ways the stan-

dards of conduct for prosecutors are similar to those for defence lawyers,

a prosecutor cannot be guided by the exact same principles as govern

a lawyer appearing for the accused. There are particular constraints

imposed on prosecutors on account of their mission as advocates com-

mitted to truth seek ing and fairness, constraints that do not apply to

defence counsel. Granted, defence lawyers also owe an allegiance to

a greater good in the sense t hat as off‌icers of the court they cannot

be purely adversarial a nd exclusively committed to their clients at the

expense, for insta nce, of misleading the court. But defence counsel’s

obligations to the court are not nearly as exten sive as the prosecutor’s

broad duties to the public interest.

Setting high ethica l standards is consi stent with the tradition of

Crown counsel in this country, who generally carry out their role in

an exemplary way.1 Still, the amount of scrutiny levelled at prosecu-

tors by the public, judiciary, and government has increa sed over the

1 See R v Stinchcombe (1991), 68 CCC (3d) 1 at 12 [para 23] (SCC) [Stinchcombe];

R v Bain (1992), 69 CCC (3d) 481 at 511 [para 2] (SCC).

ETHICS AND CR IMINAL LAW578

past twenty-f‌ive years. Conviction appeal s frequently include grounds

attacking the propriety of prosecutorial conduct, for example an asser-

tion that the cross-examination of an accused wa s abusive. More gen-

erally, post-mortems conducted on many wrongful convictions have

reviewed Crown counsel’s function at various stages of the criminal

process,2 and public inquir ies have also probed the exercise of prosecu-

torial discret ion following public criticism of charging deci sions or

plea resolutions.3 Prosecution services have responded by formulati ng

and making public comprehensive policy manuals that set standard s

regarding many asp ects of the Crown function4 and by endeavouring to

ensure that prosecutions a re carried out in a fair ma nner that achieves

accurate result s.5

2 See, for example, Nova Scot ia, Royal Commission on the Donald Marsh all, Jr.,

Prosecution: Findings and Recommendations, vol 1 (Halifax : The Commission,

198 9) [Marshall Inquiry Repor t]; Ontario, Rep ort of the Commission on Proceed-

ings Involving Guy Paul Morin (Toronto: Minist ry of the Attorney General, 1998)

(Chair Fred Kaufm an) [Morin Inquiry Rep ort]; Manitoba, The Inquir y regarding

Thomas Sophonow: The Investigation, Prosecution and Consideration of Entitlement

to Compensation (Winnipeg: Attor ney General, 2001) (Commiss ioner P Cory);

Manitoba, Report of the Commission of Inquir y into Certain Aspects of the Trial

and Conviction of Jame s Driskell (Winnipeg: The Commi ssion, 2007) (Commis-

sioner Patrick J Le Sage, QC) [Driskell Inquiry Report]; Newfoundland, The L amer

Commission of Inquiry p ertaining to the Cases of: Ronald Dalton , Gregory Parsons,

and Randy Dr uken — Report and Anne xes (St John’s: Government of New found-

land and Labr ador, 2006) (Commissioner A ntonio Lamer) [Lamer Inquiry

Report]; Inquir y into Pediatric Forensic Pathology in Onta rio: Report(Toronto: At-

torney General of O ntario, 2008) (Commissioner Hon Stephen T Goudge).

3 See, for example, Brit ish Columbia, Forsaken: The Repor t of the Missing Women

Commission of Inquiry (Vancouver: The Commission, 2012) (Commissioner

Wally T Oppal, QC) vol 2A at 26 –80: decision to stay ch arge against Robert

Pickton; Man itoba, Report of the Taman Inquiry into t he Investigation and Prosecu-

tion of Derek Harvey-Zenk (W innipeg: The Inquiry, 2008) (Commissioner R oger

Salhany, QC) at 85–109: plea resolution involv ing police off‌icer charged wit h

seriou s off-duty offence.

4 See Section B, below i n this chapter.

5 See, for example, the Ca nada, FPT Heads of Prose cutions Committee Working

Group, Report on the Pre vention of Miscarriages of Justice (Ottawa: Depar tment

of Justice, 2004) [FPT Heads of P rosecutions 2004 Repor t]; Canada, FPT He ads

of Prosecution s Subcommittee on the Prevention of Wrongf ul Convictions, The

Path to Justice: Preventing Wrong ful Convictions (Ottawa: Public P rosecution

Service of C anada, 2011) [FPT Heads of Prose cutions 2011 Report].

The Prosecutor 579

B. RULES OF PROFESSIONAL CONDUCT AND

PROSECUTION SERV ICE POLIC Y M A NUA LS

Canadian code s of professional conduct devote only modest space to the

role of a prosecutor but nonetheless manage to succinctly encapsulate

Crown counsel’s singular just ice-seeking function as an advocate. The

relevant rule and commentar y found in most codes states as follows:

When acting as a prosec utor, a lawyer must act for the public and

the admini stration of justice resolutely and honourably w ithin the

limits of the l aw while treating t he tribunal wit h candour, fairness,

courtesy, and respect.

Commentary

When engaged as a prosecutor, the law yer’s prime duty is not to seek

to convict but to see that just ice is done through a fair tr ial on the

merits. The prosecutor exerci ses a public function involving much

discretion and power a nd must act fairly and disp assionately. The

prosecutor should not do anythin g that might prevent the accuse d

from being represente d by counsel or communicatin g with counsel

and, to the extent requ ired by law and accepted practice, should ma ke

timely disclo sure to defence counsel or direct ly to an unrepresented

accused of all releva nt and known facts and witnes ses, whether tend-

ing to show guilt or innocence.6

Much more detailed expositions of the proper function of a prosecu-

tor can be found in the various Crown counsel policy manuals prom-

ulgated by Canadian prosecution services. These manuals provide

guidance regarding a my riad of topics, from very general matters such

as Crown counsel’s duty to seek justice in the public interest and the

importance of prosecutorial independence to extremely narrow and

specif‌ic aspects of the prosecution function such as how to handle a

domestic assault bail matter and when it is permissible to renege on a

plea agreement. Traditionally unavailable to the public,7 most Crown

6 Alta r 4.01(4) & commentary; Sask r 4.01(3) & commentary; BC, Man, NS, N L

r 5.1-3 & commentar y 1. Ont r 5.1-3 & commentary is the sa me except the rule

uses “shall” i nstead of “must.” To similar effect are CBA Co de ch IX, commen-

tary 9, and NB ch 8, com mentary 13.

7 See John Edward s, “The Attorney General and the Charter of Rights” in Rober t

Sharpe, ed , Charter Litigation (Toronto: Butterworths, 1987) at 66: manua ls

were not public document s at that time; R v Power (1994), 89 CCC (3d) 1 at

17–18 [para 39] (SCC) [Power]: suggesting t hat prosecutorial cha rging decision

guideline s should remain conf‌idential.