2.2 Duties and Responsibilities of Crown Counsel

Public Prosecution Service of Canada Deskbook

Guideline of the Director Issued under Section 3(3)(c) of the Director of Public Prosecutions Act

Revised September 12, 2023

Table of Contents

1. Introduction

This guideline describes the duties and responsibilities of Crown counselFootnote 1 in carrying out their delegated functions pursuant to sections 3(3) and 9(1) of the Director of Public Prosecutions Act.

2. The Conduct of Criminal Litigation

Crown counsel are vested with substantial discretionary powersFootnote 2 delegated by the Director of Public Prosecutions (DPP).Footnote 3 These discretionary powers must be exercised with the public interest in mind.Footnote 4

As quasi ministers of justice, Crown counsel's primary interest is not to secure a conviction, rather, it is to pursue justice.Footnote 5 In doing so, Crown counsel represent the public interest. They are not lawyers for the police, the victims, or the accused. The Supreme Court of Canada articulated Crown counsel's role, in the context of a criminal prosecution, in its landmark decision in Boucher:

It cannot be over-emphasized that the purpose of a criminal prosecution 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 a duty to see that all available legal proof of the facts is presented: it should be done firmly and pressed to its legitimate strength, but it must also be done fairly. The role of the prosecutor excludes any notion of winning or losing.Footnote 6

Crown counsel are subject to ethical obligations that differ from those of other litigants.Footnote 7 Fairness, moderation, and dignity should always characterize Crown counsel's conduct during litigation.Footnote 8 At the same time, thorough and vigorous advocacy are important qualities in Crown counsel. The Supreme Court affirmed that vigorous Crown advocacy is a critical element of Canada's criminal law mechanism.Footnote 9 However, Crown counsel should not consider litigation as a personal contest of skill or professional pre-eminence.

Courts generally do not interfere with Crown counsel's exercise of discretion unless it has been exercised for an oblique motive, offends the right to a fair trial, or otherwise amounts to an abuse of process.Footnote 10 At all times Crown counsel must exercise their discretion in good faith and in accordance with the highest of ethical standards. In Regan, the Supreme Court of Canada listed objectivity, independence, and lack of animus as three major duties of a minister of justice.Footnote 11 These duties attach to Crown counsel at all times, and in all dealings with an accused person, both before and after charges are laid. They also attach to Crown counsel's dealings with other justice system participants, including victims and witnesses.

The duties also attach to Crown counsel's exercise of prosecutorial discretion when decisions are made leading up to trial. For example, Crown counsel exercise discretion when they decide whether to oppose bail or consent to release, proceed with the case, prefer an indictment, or formulate a resolution position. Every discretionary decision has an impact on both the accused and the administration of justice.

While Crown counsel have many responsibilities, the responsibilities outlined below are among the most important.

3. The Duty to be Fair and Maintain Public Confidence

Public confidence in the administration of justice is bolstered by a system where Crown counsel are not only strong and effective advocates, but also ministers of justice, with a duty to ensure the justice system operates fairly for all. Crown counsel must recognize that one can intend to act fairly while unintentionally leaving an impression of secrecy, bias, or unfairness. Crown counsel have a duty not only to act fairly, but also to ensure that their conduct is seen to be fair.Footnote 12

As part of this duty, Crown counsel must consider whether systemic and background factors or systemic racism contributed to bringing an accused to court. Systemic and background factors may also have contributed to certain victims being over-represented as victims of crime. Racism, historical mistreatment, lower socio-economic status, mental illness, substance use disorders, and discriminationFootnote 13 are all factors that increase the likelihood of a person entering the criminal justice system, either as an accused or a victim. Crown counsel must turn their mind to these realities, because these factors may bear on decisions made throughout the course of a prosecution.

Crown counsel must recognize that the exercise of prosecutorial discretion has an impact on an accused, and that impact will be different on each individual accused. For example, decisions can have a more onerous and disproportionate impact on vulnerable and marginalized populations. Therefore, Crown counsel must ensure that their decisions do not disproportionately impact someone due to their vulnerability.Footnote 14  This means that applying the same rules, measures, or standards to every accused may not always be appropriate. Successfully eliminating the unfair, unequal, or discriminatory impact of prosecutorial decisions requires Crown counsel to actively examine all of their choices, in the context of the material placed before them by investigative agencies and information provided by the accused.

Crown counsel also fulfill the duty to be fair by:

3.1. The duty to educate oneself on an ongoing basis

The proper exercise of prosecutorial discretion requires Crown counsel to educate themselves on an ongoing basis, not only on the law, but also about the ethical duties of their office and the social realities of the communities in which they prosecute. This may be done through continuing legal education, self-study, or other training.

3.2. The duty to adopt proper language and conduct

Crown counsel must use language that is free of bias, stigmatization, and negative attitudes or beliefs. Crown counsel must recognize that terminology used to label victims of crime, accused persons, or witnesses may have a profound impact. This includes unfairness or further traumatization to the victim (if there is one). Using derogatory or biased language may also cause a mistrial, loss of confidence in the prosecution service, and the expenditure of additional resources.

Crown counsel must not "engage in inflammatory rhetoric, demeaning commentary or sarcasm, or legally impermissible submissions".Footnote 23 Such conduct undermines trial fairness. While Crown counsel may argue a case forcefully, such behavior must never be used under any circumstances.Footnote 24 A comment may be determined inappropriate in context with the nature of the comment, the number of times the comment was made, the specific language used, or the overall tone of Crown counsel's address. Crown counsel are held to a higher standard than counsel for the accused.

4. The Duty to Maintain Objectivity

Crown counsel fulfill this duty by:

5. The Duty to Act with Integrity and Dignity

Crown counsel fulfill this duty by:

6. The Duty to Mentor and Guide

Mentorship is essential to the legal profession. Mentoring relationships facilitate the passing on of skills, knowledge, and wisdom developed through experience. Mentoring not only provides substantive learning opportunities, but can also help a lawyer develop judgement, allowing them to exercise their discretion reasonably, and with confidence. Experienced Crown counsel should mentor junior Crown counsel when they are able to do so.

7. The Duty to be Independent from the Judiciary

Crown counsel fulfill this duty by:

8. The Duty to Avoid Conflict of Interest

The special ethical obligations on Crown counsel, as quasi ministers of justice, demand the highest standards of honesty and integrity. Crown counsel's conduct should garner the public's confidence and trust. Thus, it is important that Crown counsel avoid actual, perceived, or potential conflicts of interest.Footnote 32

Crown counsel should not participate in any prosecution involving an accused, a victim, a material witness who is a relative or friend, or anyone else in respect of whom there is an objectively reasonable perception of conflict of interest. If the matter is already before the court when the conflict becomes apparent, Crown counsel should notify defence counsel and the court and disqualify themselves from the case.

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