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
• 2. The Conduct of Criminal Litigation
• 3. The Duty to be Fair and Maintain Public Confidence
  • 3.1. The duty to educate oneself on an ongoing basis
  • 3.2. The duty to adopt proper language and conduct
• 4. The Duty to Maintain Objectivity
• 5. The Duty to Act with Integrity and Dignity
• 6. The Duty to Mentor and Guide
• 7. The Duty to be Independent from the Judiciary
• 8. The Duty to Avoid Conflict of Interest

1. Introduction

This guideline describes the duties and responsibilities of Crown counsel^{Footnote 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 powers^{Footnote 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 discrimination^{Footnote 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:

• Making disclosure in accordance with the law;^{Footnote 15}
• Bringing all relevant cases and authorities known to counsel to the attention of the court, even if they are contrary to the Crown's position;
• Not misleading the court;
• Stating the law accurately;
• Not accepting a plea or alternative measures, in circumstances where there is no reasonable prospect of conviction;
• Being conscious of the factors that can lead to wrongful convictions, for example false confessions or mistaken eyewitness identification;
• Not expressing personal opinions on the evidence, including the credibility of witnesses or the guilt or innocence of the accused, in court or in public. Such expressions of opinion are improper;^{Footnote 16}
• Being accurate and dispassionate in presenting evidence or addressing the jury. This includes abstaining from inflammatory rhetoric, demeaning commentary, or sarcasm;
• Not relying on, nor referring to, evidence that has not been admitted at trial, even if that evidence is available but the Crown chose not to adduce it;
• Not discriminating on any prohibited basis;^{Footnote 17}
• Making decisions on files in a timely fashion, in particular when the decisions impact the accused's incarceration, public safety, or confidence in the administration of justice;
• Asking relevant and proper questions during the examination of a witness;
• Not asking questions designed to embarrass, insult, abuse, belittle, attack, or demean the witness. Cross-examination can be skillful and probing, yet still show respect for the witness.^{Footnote 18} The law distinguishes between a cross-examination that is "persistent and exhaustive," which is proper, and a cross-examination that is "abusive";^{Footnote 19}
• Acting with civility and respect to all parties whether inside or outside the courtroom;^{Footnote 20}
• Respecting defence counsel,^{Footnote 21} the accused, and the proceedings while vigorously asserting the Crown's position, and not publicly and improperly criticizing defence counsel or the defence strategy;
• Remaining open to theories put forward by the defence;
• Respecting the court and judicial decisions, and not publicly disparaging judgments, including jury verdicts; and
• Avoiding engagement in "judge shopping".^{Footnote 22}

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:

• Being aware of the dangers of tunnel vision, and taking active steps to guard against it, including seeking out the perspectives of other colleagues who may provide a different perspective;
• Ensuring evidence is reviewed in an objective, rigorous, and thorough manner throughout the proceedings;^{Footnote 25}
• Remaining objective when providing advice to investigators at the pre-charge stage, and ensuring that pre-charge involvement does not impact Crown counsel's ability to remain objective at the prosecution stage. Active steps, including involving a "fresh eyes" perspective, must be taken to ensure the prosecution is free from actual or perceived biases.^{Footnote 26} In some cases, it may not be appropriate for the advisory Crown to also be the prosecuting Crown;
• Taking active steps to set aside their own biases, and identifying biases that may have impacted the investigation. Crown counsel must guard against all forms of conscious and unconscious biases that may perpetuate historical and systemic discrimination. Bias or discrimination can be based on a number of identity factors including race, national or ethnic origin, colour, religion, age, sex, sexual orientation, gender identity or expression, marital status, family status, genetic characteristics, disability, socio-economic status, or political association; ^{Footnote 27}
• Making all necessary inquiries regarding potentially relevant evidence;^{Footnote 28}
• Never permitting personal interests or any political considerations to interfere with the proper exercise of prosecutorial discretion; and
• Not exceeding the scope of appropriate remarks, for example elevating the role of Crown counsel in the eyes of the jury to the custodian of the public interest.^{Footnote 29}

5. The Duty to Act with Integrity and Dignity

Crown counsel fulfill this duty by:

• Complying with their bar association's applicable rules of ethics;
• Complying with the PPSC's Code of Conduct, Missions and Values, and the PPSC Deskbook;
• Exercising careful judgment in presenting the case for the Crown throughout the course of a prosecution.
• Conducting themselves with civility;^{Footnote 30}
• Not rushing to judgment in exercising prosecutorial discretion;
• Ensuring that all relevant information is available in order to properly exercise prosecutorial discretion. If relevant information is not available, Crown counsel must make requests to the investigative agency so that they may provide or gather that information;
• Remaining independent of the investigating agency, the victim and the witness(es);
• Adequately preparing for each case; and
• Acting with moderation, fairness, and impartiality.

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:

• Not discussing an ongoing case with the presiding judge, or any sitting judge, without the participation of defence counsel (or an accused representing themselves), unless there is a legal justification for such ex parte discussions;^{Footnote 31}
• Not dealing with matters in chambers that should properly be dealt with in open court;
• Avoiding personal or private discussions with a judge in chambers or outside the court while presenting a case before that judge;
• Refraining from appearing before a judge on a contentious matter when a personal connection exists between Crown counsel and the judge that would compromise, or appear to compromise, the independent function of either role; and
• Refraining from socializing with a judge outside of court before the case is fully decided.

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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Date modified:

2023-09-12