The Role of the Prosecutor at Sentencing

• Author: Lia Di Giulio
• Pages: 113-128

113

CHAPTER SIX

The Role of the Prosecutor at

Sentencing

Lia Di Giulio*

Misperceptions of the role of the prosecutor at sentencing abound. For

many people, the image that comes to mind is of an aggressive Amer-

ican prosecutor elected to extract the most severe sentences from the

court and seeking endless concessions from the defence counsel during

plea bargaining. Members of the public often believe that the Crown is

the victim’s lawyer, seeking to advance his or her perspective at senten-

cing. Both perceptions are false.

e prosecution exercises broad discretion and power, which has

the potential to greatly aect the lives of the defendant and the public.

As a result, the prosecutor has traditionally been held to the highest

standards of fairness and ethics in discharging its function. e Crown

is rst and foremost a minister of justice and is bound by all policies

and responsibilities set in place by the Ministry of the Attorney Gen-

eral. It has often been said that a prosecutor performs a quasi-judicial

function, and as such, the public is entitled to hold the prosecutor

* The views expressed in this chapter are solely those of the author and do not in any way

ref‌lect the views of the Ministry of the Attorney General, Ontario.

 John D Brooks, “Ethical Obligations of the Crown Attorney—Some Guiding Principles

and Thoughts” ()  University of New Brunswick Law Journal  at .

114 |   

to the highest levels of professional competence and fairness. Unlike

defence counsels, prosecutors do not have “clients.” e prosecutor has

a duty to the court and the public at large rather than to one individ-

ual. e prosecutor must always act in good faith and demonstrate

awareness that the criminal justice system is a truth-seeking process.

e prosecutor never wins or loses. e role of prosecutor is perhaps

best captured in the famous case of R v Boucher, where Rand J stated:

It cannot be over-emphasized that the purpose of a criminal prosecu-

tion is not to obtain a conviction, it is to lay before a jury what the

Crown considers to be credible evidence relevant to what is alleged

to be a crime. Counsel have the duty to see that all available legal

proof of the facts is presented: it should be done rmly and pressed

to its legitimate strength, but it must also be done fairly. e role of

prosecutor excludes any notion of winning or losing; his function

is a matter of public duty than which in civil life there can be none

charged with greater personal responsibility. It is to be eciently per-

formed with an ingrained sense of the dignity, the seriousness and

the justness of judicial proceedings.

Sentencing is a critical stage in the criminal justice system for both

the victim and the oender. Much can be said about the sentencing

process, and indeed, entire books have been written on the topic. is

chapter explores the role of the prosecutor at sentencing, focusing spe-

cically on the prosecutor’s unique position as an impartial advocate

whose duty is to act in the public interest. In particular, it discusses

sentencing submissions, the prosecutor’s role as an eective advocate,

plea bargaining, joint submissions, victims, and various key eviden-

tiary issues that prosecutors encounter in the sentencing process. e

chapter concludes with a brief discussion of the procedures for Crown

sentence appeals.

 Deborah MacNair, “Crown Prosecutors and Conf‌lict of Interest: A Canadian Perspective”

()  Canadian Criminal Law Review  at .

 Ibid.

 [] SCR  at –.