The Prosecutor

AuthorDavid Layton; Michel Proulx
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).
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
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.
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.

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