To charge or not to charge -- and other discretions.

• Author: Olsen, Erin

In our system of criminal justice, the Crown Prosecutors can be considered the gatekeepers of the criminal justice system. They screen police investigations, direct the presentation of a case to a judge, and argue what appropriate sentences might be. All of these duties involve the exercise of discretion. Prosecutors vested with this discretion are expected to be professional and non-partisan when exercising it. Indeed, the exercise of discretionary powers compares well with the overriding function of the Crown Prosecutor in criminal proceedings, which is neatly described in the Boucher case from the Supreme Court of Canada in 1954: "The role of prosecutor excludes any notion of winning or losing; his function is a matter of public duty that which in civil life there can be none charged with greater personal responsibility. It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings."

The importance of the exercise of discretion cannot be over-emphasized. It is the use of discretion by prosecutors that enables the trial process to consider the individual circumstances of each case and each accused. A criminal justice system that attempted to eliminate discretion would be unworkably complex and rigid.

Many decisions concerning the operation of the criminal justice system involve the exercise of discretion by the prosecutor. For example, prosecutors have discretion to make decisions about the following:

* whether charges should be laid or not (the discretion to take no action);

* which charges are appropriate based on the particular facts of the case

* whether to consent or oppose the release on bail of people who are charged with offences;

* whether to seek or oppose adjournments;

* whether to disclose certain sensitive material to defence counsel (e.g. counselling records of sexual assault victims);

* whether to plea bargain a case;

* what witnesses to call at trial; and

* whether to appeal or not.

What happens if a prosecutor exercises his or her discretion improperly? The exercise of a discretionary power is not absolute. Sometimes, the courts can remedy abuses of discretionary powers. There are a variety of sanctions available, including awarding costs against the Crown, directing a stay of proceedings, or simply allowing an appeal by an accused against the Crown in which the exercise of discretion was at issue. The exercise of discretion can also be reviewed and...