The Role of the Prosecutor at Sentencing

AuthorLia Di Giulio
The Role of the Prosecutor at
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 .
[] SCR  at –.

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