INDEPENDENT OFFICE OF PROFESSIONAL RESPONSIBILITY: GREATER POWER ; ACCESS TO RESOURCES MUST BE BALANCED WITH GREATER RESPONSIBILITY AND INSPECTION OF PUBLIC LAWYERS SUCH AS PROSECUTORS 

Introduction

 

What is the proper scope of state power and its agent the public lawyer in Criminal law?  Moreover, are there enough incentives for public lawyers such as prosecutors to remain vigilant in upholding their higher duty?  This paper will consider the emergence of contemporary debates about criminalisation in the context of a concern with concepts such as over-criminalisation.  It will look at the possibility of creating narrowly defined prosecutorial discretion and policy making with oversight from an independent administrative body.

It is possible to imagine a system that can monitor the discretionary powers of the public lawyer in his/her role to decide whether to proceed with a criminal charge for example through considerate policy making.  When it comes to prosecutors, it is often argued that the aim of the criminal law is to protect particular rights, interests or goods – notably property, the person, and sexual autonomy.  It is important to comb through the range of interests or goods that are protected by the modern criminal law through public lawyers and find ways to ensure that they act ethical at all times.

In his critical investigation into the administration of law in Canada Adam Dodeck differentiates public lawyers from those practicing in private sectors.  Public lawyers are government lawyers.  Their only client is the government.  Any lawyer that exercises public power has a higher duty to act with transparency, accountability, and with regards to Rules of Professional Conduct.  Dodeck reports that in the past few decades the number of government lawyers and their proportion in the Canadian legal profession has continued to rise.[1]

The reason it is important to ensure a more efficient discretionary and prosecutorial policy making system in Canada is that statistics indicate many individuals are wrongly convicted or found not guilty every year.  The question is how did those “not guilty” individuals were forced to go to trial in the first place?  In their book Manufacturing Guilt, Barry and Dawn Anderson quote criminological evidence that on the back of best estimates one percent of all convictions are in fact wrongful.[2]  Andersons write that these include cases that do not distinguish between personal and property offences or between violent and non-violent crimes.[3]  By applying this estimate to Canada, in 2010, 87,214 cases resulted in a sentence of incarceration.[4]  Using the assumption that one per cent of those imprisoned were innocent, the data suggest that there were 872 individuals wrongfully convicted in that year.[5]

Archibal Kaiser presented a paper in analyzes some of the reasons behind wrongful convictions.  He points out to contributory factors such as false accusations, misleading police investigative work, inept defence counsel, misperceptions by Crown prosecutors of their role, factual assumption of an accused’s guilt by actors in the criminal justice system, community pressure for a conviction, inadequate identification evidence, perjury, false confessions, inadequate or misinterpreted forensic evidence, judicial bias, poor presentation of an appellate case, and difficulty in having fresh evidence admitted at the appellate stage.[6]  This paper focuses on ways to reduce misperceptions by Crown prosecutors of their role and increasing their vigilance while administratively punishing their mistakes.

Criminal Law is Public Law

First, it is important to focus on the role of public lawyers in particular, prosecutors.  This branch of public lawyers have the opportunity for an extensive career in the criminal law and are afforded a great level of discretion in our liberal criminal justice system.  The publicness of the criminal law is one of the important differences between criminal law from all other areas of law.  According to Markus D Dubber in his article “Criminal Law between Public and Private Law,” the formal publicness of criminal law is reflected in the title of criminal cases.[7]  To Dubber, this is proof of the procedural and institutional framework for criminal law’s resolution: based on a state official’s investigation (the police officer), the case is brought by a public lawyer (the prosecutor) before yet another (the judge) who— generally except in a few cases that include a jury— decides the case.[8]  It is important to consider whether the normal ethical duties of lawyers are sufficient given the obvious publicness of the role of prosecutors and the current lack of an independent watchdog office that could comment on their policies and individual decision-making.

The overwhelming result of all trials ends in a verdict of guilt for the accused and at that point another state official (bailiff, prison warden, parole officer, etc.) is obligated to apply the decision.[9]  However, Dubber clarifies that the reference to the State in the style of cause is not thought to be a requirement for the publicness of a dispute.[10]  He cites German cases that refer simply to the ‘Criminal Case against X’; a reference to ‘the People’ emerges only in the judgment deciding the case (‘In the name of the people’).[11]  Quoting Andrew Ashworth regarding the publicness of criminal law Dubber also concludes that it is “the existence of a machinery of enforcement (police, prosecutors, courts, prisons, etc.) which marks out the difference between criminal and civil liability.”[12] There is no doubt that in Canada public lawyers are the individuals entrusted with a public prosecutorial role funded by the taxpayers of this country and this adds strength to the argument for an independent office of professional responsibility for public lawyers such as prosecutors.

Problems with Prosecutors who misunderstand their Role

The role of prosecutors is sensitive.  First, it is important to point out that offenses that are more serious worsen the consequences of a wrongful conviction for the defendants.[13]  The presumption of innocence affirms that the State, with its great power and ability to denunciate and punish individuals depriving them of their liberty should access these powers once it has sufficient evidence to charge.[14]  An example of the dangers of the prosecutor’s role can be found in cases where it is argued that the defendant should bear the burden of proving matters that lay “peculiarly within his own knowledge.”  Although Wigmore has denounced this idea as impractical,[15] it reappears from time to time for the sensible motive that it helps lower the amount of work that prosecutors are obliged to complete.[16]  When charged, an innocent individual may be forced to prove his/her innocence of some of the elements of a crime.  This seems to fly in the face the idea of presumption of innocent under section 11(d) of the Canadian Charter of Rights and Freedoms.[17] Although the idea of guilt beyond a reasonable doubt at trial seems to help an accused, this is not the same standard that a prosecutor has to use in deciding whether to charge someone – the standard is lower: “reasonable prospects for conviction.”[18] Taken together with the general lack of human infallibility, these facts should lower public confidence in the Canadian prosecutorial system because it may lead to an arbitrary and unchecked level of power for the individual prosecutor.

Second, from a prosecutorial discretionary policy perspective, sometimes various allegations such as the over breadth of a section of the Criminal Code are dismissed as relatively unimportant in the real world.[19]  One of the main arguments that is used for dismissing these allegations in Canada is the claim that it is hoped that prosecutorial discretion will prevent enforcement of Statutes and Legislation in circumstances in which liability would be unwarranted.[20] For example, in the case of polygamy, the Attorney General (AG) of British Columbia, indicated that “simple polygamy” – described, as “polygamy without some direct harm to the participants or others, such as children” would not be prosecuted.[21]  The AG said that, “experience and logic both suggest that a polygamy investigation could never even result in charges without some serious aggravating factors.”[22]  This calls attention to how allegations of over-breadth raise issues of first, fair notice and second, respect for legality – two of the most serious problems caused by the phenomenon of over-criminalisation.[23] Prosecutorial discretion may be a source of help in minimizing the injustice otherwise caused by over-inclusive statutes.[24]  Clearly then, there is a reliance on prosecutorial discretion, however the prosecutors are given no ethical public lawyering guidelines.   Their policies and individual decision making is not independently scrutinized.  Commentators suggest that reliance on the good judgment of prosecutors is no substitute for getting our laws right in the first place and arguably ensuring that prosecutors fully understand their role.[25]

If one of the primary policy aims of prosecutorial discretionary powers are truly the reduction of over-criminalisation then an independent body should be able to monitor the aforementioned shortcoming of legislation and the Justice system’s reliance on discretion.  It is necessary to reinforce the point that prosecutorial discretion, attached to a higher duty and responsibility of public lawyering is only providing a second – best solution to the imprecise drafting of Criminal law.  Public lawyers such as prosecutors however can only achieve even this second – best role when they remain vigilant and are not afforded arbitrary powers in upholding their truth seeking higher duties.  This solution offers a way in reducing the level of Crowns who misunderstand their role and exercise their discretion.  An independent monitoring of the conduct of public lawyers beyond Tort reliefs such as Malicious Prosecution that may be intimidating to citizens ignoring the fact that they are expensive and lengthy is of utmost importance.  The results of various investigations can then go towards the evidence that would allow for quick settlements in situations where wrong doings have been proven and documented.

Dangers of not having a Higher Duty

Certain evils are associated with a system that does not keep its public lawyers in check.  Commentators uniformly complain about the politicization of United States’ Criminal Justice system.[26]  The democratic character of criminal justice in that country is the cause of many of its best and worst characters.[27] For example, no other country has a legislature system that micromanages decisions about sentencing and parole, and few other democracies elect their prosecutors and judges than in the US.[28]  The input of academics is rarely applied by the American Criminal Justice system.[29] Husak discusses the problems with a politicized criminal justice system in his article “Too much Punishment.  Too many Crimes.”  The most important thing to Husak is that neither the Republican nor the Democratic Party in the US has been willing to allow the other to earn the reputation of being tougher on crime.[30]  The same political dilemma may occur where a political interpretation of the Criminal law by a Canadian prosecutor may create arbitrary situations with certain individuals who are charged and hauled in front of courts for certain crimes while others are not prosecuted for the very same acts.  An independent office will help take politics out of the job of the public lawyer and the prosecutor by narrowly defining the higher duties and by ensuring that policy manuals are respectful of public interest concerns.

Another important evil that can arise out of a system that is not independently monitored is the problem of what may fairly be characterized as scare tactics applied by public lawyers on their day-to-day activities at work.  It is no secret that prosecutors over-charge persons of interest in order to increase the possibility that he/she will bargain down to admission of guilt for one of the charges or a lower form of the same crime.  Why are overlapping offenses objectionable? As long as overlapping offenses contain distinct elements, no rule or doctrine of the criminal law requires that different counts be merged in order to prevent the state from bringing several charges at the same time – even though the defendant may seem to have committed one crime.[31]  As a result, prosecutors have been delegated an enormous level of power to charge defendants with multiple offenses and without vigilance and awareness of the higher duty that can be produced by an independent watchdog, it will be difficult to hold prosecutorial powers in check.[32]

Husak writes that the main effect of these overlapping statutes is to allow charge stacking that endangers the defendants with onerous punishments.[33]  Offenders prosecuted for several crimes that cover much the same conduct face more lengthy sentences than could have been imposed had they been charged with only one and this tactic seems to be able to force defendants to plea to something lower in face of heavy handed punishment for the one crime that they committed.[34]  Clearly, such tactics do not seem to be the purest path towards seeking the truth and the higher duty that every public lawyer is sworn to uphold.  Furthermore, defendants have greater incentives to bargain and plead guilty to a single offense in exchange for having the other charges against them dropped.[35] The elimination of overlapping and potentially conflicting criminal laws should be an important change in the way Canadians criminalize human behavior.  The independent watchdog would monitor what tactics could be applied, guarding the truth seeking mechanism and ensuring more courteous prosecutorial discretion and policymaking.

Towards a Code describing the Public Lawyer’s Duties and Canadian Offices of Professional Responsibility

Adam Dodeck writes that on both a descriptive and a normative basis relating to an ideal standard or model, the work of government lawyers has changed the image of the profession.[36]  In other words, public lawyers are not meant to be working as keen advocates or impartial partisans, instead they are guardians of the rule of law in whom we have entrusted substantial funding and power for constructing, interpreting, and conserving our laws.”[37]  It is therefore important to think about lawyering in a fluid manner: in such an atmosphere public lawyers have no choice but to use their personal judgement in interpreting the evidence and law that comes before them in every case

As aforementioned, the private lawyer’s fiduciary duty towards a client is different than the public lawyer’s duty towards the public.  There is a need for practical steps that hold public lawyers accountable to those higher responsibilities.  The higher duty is owed in response to a set of standards considering the great amount of power and resources at a public lawyer’s disposal.  The idea that with great power comes great responsibility is intellectually consistent with the need for more checks and balances and scrutiny.

Two paths that can achieve this goal are either the creation of an independent watchdog as suggested by Adam Dodeck or by creating more checks and balances in the work of public lawyers is a mechanism similar to the Principle of compulsory prosecution in Germany theoretically guiding the work of public prosecutors.[38]  With a German style prosecutorial system, less independent monitoring of the activities is necessary because of the much lower level of discretion in who gets charged and what satisfies the various tests.  However, the alternative of an independent office for ethical and responsible lawyering for public lawyers seems to be an easier approach for reducing the misunderstanding of Crown of their role.

At this stage it is important to study some of the differences between public lawyers and other kinds of lawyers that creates the basis for an office to increase the incentives for ethical lawyering.  The statistics are self-evident: the rise over the past fifty years of the government lawyer as a diverse sub-group of lawyers is further justification for the need for such a procedural Act.  In 2009-10 an estimated 15-25% of Canadian lawyers worked in the public sector, depending on the jurisdiction (taken from specific law societies).[39]

It must be asserted here that the role of prosecutor excludes any notion of winning or losing: the prosecutor’s function is a matter of public duty which in a person’s civil life there may be none charged with a greater personal responsibility.[40]   This duty is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings is at stake.[41]  In fact, the source of this heightened ethical duty is found in Public law: in the constitutional responsibilities of the AG.  Dodeck writes that as delegates of the AG, lawyers such as prosecutors have a positive duty that extends far beyond minimal general duty of the rest of the legal community. [42]  Government lawyers must guarantee that all action of government complies with all laws: civil, criminal, and administrative.[43]  The question that needs to be asked is whether this is too big of a task to be put in the hands of an individual and his/her affiliates without an independent group of citizens with a diverse background who could comment on the individuals actions and the policies that have allowed for those actions?

Some of the reported irregularities and incompetence at the investigatory, pre-trial, trial, and appellate stages of the Criminal Justice system can be tackled through a procedural mechanism legislated by the Parliament of Canada.  Even one wrongful conviction is a problem – the stakes are simply too high given that the over-whelming majority of people who are charged will be found guilty.  This is why Parliament must become more involved in legislating the level of discretion of a prosecutor or have an independent office monitor those actions.

Public lawyers such as prosecutors also owe a higher duty because of their great amount of access to public resources.  They are not only asked to ensure that the state and its officials comply with the law, but they are also involved in creating law in a way that private sector lawyers are not.

The mandate, mission, and values of the Department of Justice provide that its lawyers should “provide high-quality legal services while upholding the highest standards of integrity and fairness.”[44]  Thus, the official policy of the Department of Justice would seem to support the idea of a higher duty for all government lawyers codified in an Act of the Parliament or monitored by an independent Office of Professional Responsibility.

Furthermore, in The Public Service Lawyers, Tait suggests that Government lawyers have a higher duty to the law and to the Constitution: they are the protectors of the rule of law as it applies to government in a parliamentary democracy such as Canada.[45]  In practical terms, this means that government lawyers must provide independent and impartial advice.  This is different than the role of a private lawyer perhaps best defined by Lord Henry Broughum: “an advocate in the discharge of his duty knows one person in the entire world, and that person is his client.”

Another important distinction is that public lawyers’ client is not in the business of making money.  The government is supposed to be enhancing the “public interest” no matter how ambiguous that term may be.[46]  An Act or code that discuses exactly when the prosecutor should feel the he/she has the requisite discretion, evidence, and legal basis to prosecute individuals would implicitly ensure that public interest scenarios analyzed by the legislative body. The mere existence of wrongful convictions and not guilty verdicts is enough reason to suggest that relying on a prosecutor’s experience and understanding of the law and the criminal justice system’s aims and principals without a codified higher duty risks over-criminalisation and inefficiencies as well as forcing citizens to stir up an intimidating, lengthy, and expensive litigation process for Malicious Prosecution.  Such cases need to be reduced or at least provided with an evidentiary background that could be provided by the independent Office of Professional Responsibility.

Let us not forget that while self-regulation of the legal profession is very strong in Canada, especially in comparison to other countries, self-regulation is not coterminous with the independence of the bar.[47]  The public does have a right to request that the government lawyers be scrutinized for the exercise of power that is given to them from the resources that comes directly from the public.

Here also is an opportunity for the Parliament to close a loophole in the criminal justice system for potential over-zealous prosecutors who overcharge persons of interest with overlapping multiple accusations arising out of a single behaviour of the accused.  The prosecutor may lose sight of the proper scope of his/her discretion for a variety of reasons such as the reduction of workload given that trials may be more complicated or in order to get the accused to admit guilt to one offense instead of several false accusations realizing the expensive and lengthy prosecutorial process that is funded by tax payers only on the side of the Crown with the reality of the cuts to funding for Legal Aid for the defendants.

Tort Law is not enough to deal with Prosecutorial Misunderstanding of their Role

As briefly mentioned earlier, another source of accountability for government lawyers is in punitive damages, duty of care, and more broadly Tort law.  In addition to its primary function of compensation, Tort law can also serve an educative function, reminding professionals and the public of their duties.[48]  Tort law may also function as an ombudsman as Allen Leinden has written, “[Tort law] can be used to apply pressure upon those who wield political, economic, or intellectual power.”[49]  The problem is that it is not clear who has the ability to hold government lawyers responsible in Tort when injustice is served?  Would it not be those who can afford to bring an action in Tort?  The cases for successful malicious prosecution are rarely seen and given the high rate of wrongful convictions and not guilty verdicts, this statistic should be surprising.  The plaintiff must demonstrate on a balance of probabilities that the defendant Crown prosecutor commenced or continued the impugned prosecution with a purpose inconsistent with his or her role as a minister of justice.[50]

Perhaps the Canadian government at all levels should institute a proactive disclosure of legal advice by prosecutors.  The public has a right to know how government officials are spending their money.  Similar arguments regarding chilling effect of the expenditure of public funds are necessary.[51]  Existing accountability mechanisms within government is likely to ensure a higher level of competence and ethical conduct by most government lawyers however an organization that can assure accountability of government lawyers is a necessary next step in the legal profession.

Canadian Offices of Professional Responsibility (OPR)

In the words of Dodeck, Canadian Offices of Professional Responsibility (OPR) would receive and investigate complaints about the conduct of government lawyers.[52]  They could take a variety of actions: dismiss the grievance as groundless, discuss the issue with the affected government lawyer, defer the matter to the government lawyers’ managers for action, if found to have violated a government rule so regulation, mention the matter for correction within Government if they conclude that there cause to believe that the government lawyer has violated a provision of Law Societies’ rules or Code of Conduct, refer the matter to the suitable Law Society.[53]

Prosecutors working as part of the branches under the AG have special higher duties in comparison to lawyers from other sectors of the legal profession.  The usual practices of separating government lawyers’ public law duties from their ethical responsibilities do not make sense.[54]  Unlike other lawyers, government lawyers take part in the making and the interpretation of the law.  This unique responsibility requires a higher ethical duty of Government lawyers.

Greater power and access to resources means a need for a code and an office that ensures greater responsibility for all government lawyers such as prosecutors.  This greater responsibility for public lawyers as delegates of the Crown Attorney must naturally be held to checks and balances: accountability and scrutiny.

 

R v Nixon, Strengthening the Argument for an Independent Body

 

The Supreme Court of Canada released its unanimous decision in R v. Nixon in summer of 2011 holding that Crown prosecutors may repudiate plea agreements as those agreements fall within the realm of prosecutorial discretion in certain circumstances.[55] At issue in this case was a plea agreement between the Crown and the Appellant, Ms. Olga Nixon charged with multiple Criminal Code offenses.[56]  Feeling his evidence would not support a conviction; the Crown counsel offered a plea agreement with Ms. Nixon that reduced the charges to regulatory offences with a $1,800 fine.[57]  This decision was reviewed by counsel’s superiors, who decided that the agreement is repudiated and trial be pursued.[58]  In arriving at its decision that the repudiation was acceptable, the Court reached four conclusions.  First, that, the repudiation of a plea agreement falls within the scope of prosecutorial discretion and is therefore it was only subject to judicial review for abuse of process.[59]  Second, that abuse of process reviews should only be lead when the evidentiary underpinning is proper, meeting the necessary threshold.[60]  Third, that evidence a plea arrangement has been repudiated by the Crown meets that threshold.[61]  Lastly, that in order the repudiation to be an abuse of process the repudiation must either result in prejudice undermining trial fairness or undermine society’s expectations of fairness in the administration of justice.[62]  Therefore, although prosecutorial discretion is subject to judicial review, repudiating a bargain was acceptable short of undermining trial fairness or the administration of justice.[63]

R v Nixon defines the scope of prosecutorial discretion to encompass the decision as to whether a prosecution should be brought continued or ceased. Further, that decision-making process does not terminate when a plea agreement is shaped but continues as long as proceedings are ongoing and the Crown may be forced to make decisions as to the prosecution’s maintenance.[64] The idea can be perhaps extended to all public lawyers who have to make decisions to repudiate an agreement or for example proceed in a situation of exercise of discretion.  It was decided that to allow review on other grounds would blur the line between the Crown and the Judiciary, a separation that is essential to the Canadian Justice System.[65]

The Supreme Court would only allow a review of an act of prosecutorial discretion when a proper evidentiary foundation exists.[66] If such an evidentiary foundation is present, then the “threshold” to review the decision exists. Decisions to repudiate a plea agreement, however, will always cross this threshold according to the decision[67].  Plea agreements are vital to the proper and fair administration of criminal justice, guaranteeing they are honored is essential.[68] Review precludes arbitrary repudiations that have no concern to resulting prejudice to the person of interest or circumstances where there is a systematic problem with Crown counsel in a particular jurisdiction.[69]

Having determined repudiations are subject to review, the Court looks to the central issue: what will establish an abuse of process and prevent the Crown from repudiating the plea agreement?  There are, traditionally, two forms of abuse of process in Canadian law, first, abuse of process where the fairness of the defendant’s trial is at issue and second, abuse of process that challenges society’s expectancies of fairness in the administration of justice.[70]  In Ms. Nixon’s case the Court found no examples of the first kind of abuse but for the second kind of abuse of process the SCC looked to the circumstances surrounding the Crown’s decision including evidence of political interference, bad faith, the accommodation of a political stance or anything improper in the factors considered in making the decision.[71] The Court found, based on the trial judge’s decision, none of these factors were present.[72] The decision to repudiate was finally based on deliberations of fairness and the administration of justice.[73]

As exemplified by R v Nixon under the current system and although there may be some weight on the Crown to explain its decision, that decision is discretionary and the ultimate burden lies with the accused to prove the decision was an abuse.[74]  Ms. Nixon failed to do so. Without such evidence, the Crown’s decision to repudiate was an acceptable exercise of prosecutorial discretion.[75]  The question according to Sharpe and Crowell is whether by allowing Crown prosecutors to repudiate plea agreements, the Court has potentially created a situation where those agreements could lose some legitimacy.[76] The Court itself acknowledges that plea agreements are a practical necessity in the criminal justice system.

Agreements allow the speedy resolution of a great number of criminal cases, leaving resources available for the most essential and significant cases.[77] SCC notes the importance of prosecutorial discretion and that repudiation must at least be possible.[78] Unless it results in prejudice against the fairness of the accused’s trial or undercuts the veracity of the judicial process, a decision to repudiate is an internal one.[79] The ability of the accused to prove the impropriety of that internal Crown decision, even in instances of abuse of process, may be limited.  Judicial review may be easily arranged given repudiation meets the threshold, but a final finding of abuse of process is much more difficult.[80]  The limited level of solutions available adds to the strength of the argument for an independent administrative body such as the OPR that according to Adam Dodeck reviews the conduct of prosecutors.

 

OPR’s Application of the Law that can help Monitor Systematic Policymaking and Prosecutorial Discretion

 

As mentioned before, there are other models for prosecutorial discretion such as the Principle of Mandatory Prosecution in countries like Germany, however, any attempt to suggest that all crimes which make it to the office of the prosecutor are actually prosecuted seems to be somewhat of a myth.[81]  Common sense would dictate that not all crimes can be prosecuted because no state in the world currently enjoys the higher level of resources that would be essential for indicting all crimes that happen at all times.  Prosecutors everywhere therefore have to conduct their work through the prosecutorial discretion.  In Canada, the OPR could potentially also take its guidelines not just from the Legislators but also from Supreme Court decisions that discuss the higher duty for public lawyers and prosecutors.  In R v Proulx, L’Heureux- Dubé J. points out the prosecutorial function of Attorneys General (adopting the opinion of LeBel JA (as he then was) in the Quebec Court of Appeal):

The AG is traditionally responsible for administering justice and for initiating or terminating criminal and penal prosecutions. He also acts as the representative of the Crown in the courts and in various criminal proceedings. [82] Those functions give him the status of constitutional guardian of the social peace, who has a duty to ensure that crimes and violations of the law are punished…The AG and the AG’s prosecutors are the guardians of the public interest, and assume a general responsibility for the efficient and proper functioning of the criminal justice system.[83] Their role is not limited to that of private counsel who is responsible for an individual case. There are several fundamental and interrelated concepts that inform how the AG and, by extension, all Crown prosecutors are to perform this public function.  The prosecutorial decision is that of the AG. The result is that the AG occupies a position of independence unique among cabinet ministers.[84]

Furthermore, the proper relationship between the AG was best described by the AG of England, Sir Hartley Shawcross (later Lord Shawcross) in 1951:[85]

I think the true doctrine is that it is the duty of an AG, in deciding whether or not to authorize the prosecution, to acquaint himself with all the relevant facts, including, for instance, the effect which the prosecution, successful or unsuccessful as the case may be, would have upon public morale and order, and with any other considerations affecting public policy.[86]

Inextricably linked to the concept of independence is that of discretion. Prosecutorial discretion refers to the discretion exercised by the AG in relation to the prosecution of alleged offences.[87]  It is because the AG exercises such discretion that they are often described as acting quasi-judicially.[88]  The Supreme Court of Canada described prosecutorial discretion as follows:  “discretion is an essential feature of the criminal justice system.”[89] It is argued that a system that attempted to eliminate discretion (similar to the German Principle of Mandatory Prosecution) would be unworkably complex and rigid.[90]

Police necessarily exercise discretion in deciding when to lay charges, to arrest and to conduct incidental searches, as prosecutors do in deciding whether or not to withdraw a charge, enter a stay, consent to an adjournment, proceed by way of indictment or summary conviction, launch an appeal and so on.[91] It is therefore evident that there are both individual and systematic policymaking realities that have helped create a discretionary system.  Adam Dodeck’s independent OPR would go beyond the work that a Law Society could conduct in punishing members who fail to uphold their higher duty to the public.

The presence of legal professionals, citizens, perhaps a representative from wrongfully convicted individuals as well as experts on the systematic role of prosecutorial discretion could sit on the board of the OPR.  These would be former Crown and Judges with a working past in both criminal and civil courts who could speak to the systematic necessities of discretion as well as the real potential of abuse when there is a failure to abide by the general role of Crown prosecutors when they misunderstand their role as described in the statement of Rand J. in Boucher v. The Queen:[92]

It cannot be over-emphasized that the purpose of a criminal prosecution is not to obtain a conviction; it is to lie before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime.[93] Counsel has 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.[94] The 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.[95] It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings.[96]

As mentioned before, Crown prosecutors occupy an office that is often described as quasi-judicial similar to the AG.[97]  This descriptor stems from the concept of prosecutorial discretion, which has been explained as follows: “Prosecutorial discretion” is a term of art.[98] It does not simply refer to any discretionary decision made by a Crown prosecutor. Prosecutorial discretion refers to the use of those powers that constitute the core of the AG’s office and which are protected from the influence of improper political and other vitiating factors by the principle of independence.[99] As to the importance of prosecutorial discretion to the administration of justice on a systematic level, the Supreme Court has also stated:

In the criminal law process prosecutorial discretion exists throughout the entire process, from the initial investigation stage through to the conclusion of the trial.[100] The people involved in the process, be they police officers…or other individuals charged with the responsibility of investigating breaches of various laws, or Crown Attorneys, are not the same nor will they necessarily act in the same way in exercising the discretion they have.[101]

Former Supreme Court of Canada Justice Ian Binnie’s 2013 talk on false convictions in Canada.

 

This may lead to a situation where one person is charged with an offence, while another in seemingly identical circumstances is not; one person is prosecuted by indictment, another by summary conviction; one person is dealt with under one provision of a particular Statute while another is dealt with under a different, perhaps harsher provision.[102]

Prosecutorial discretion is, however, not absolute. Discretion at the local level is circumscribed and guided by obligations and duties imposed upon Crown prosecutors by statute, judicial decisions, the Canadian Charter of Rights and Freedom, ethical standards of the various law societies, and the directions and guidelines created by Attorneys General.[103]  These guidelines can include OPR’s findings to increase the level of knowledge and improve the quality of evidence as well as clarifying the duties for all public lawyers such as prosecutors while providing the public with evidence that can help them in the civil case for Abuse of Process as in R v Nixon above or the Tort of Malicious Prosecution.

This point must be stressed:  in exercising their discretion, prosecutors must consider whether the prosecution is in the public interest.[104] As Commissioner in the Sophonow Inquiry, former Supreme Court of Canada justice Peter Cory observed that the “community looks upon the Crown prosecutor as a symbol of fairness, of authority and as a spokesman for the community.”[105]

 

Accountability of Crown Prosecutors

 

While not directly accountable to the Legislature or the public, Crown prosecutors are accountable to the AG.[106]  Crown counsel in Ontario for example to be responsible ultimately to the AG who is responsible to the Legislature…. The Ministry of the AG exercises careful supervision of prosecutions for which it is responsible.[107]  However, this is not an independent body. The guidelines for prosecutors in Alberta for example explains that to be clear, Crown prosecutors who exercise their discretion in a principled manner and who, when faced with difficult decisions, consult with supervisors and colleagues will be supported in their decision-making.[108]  It is likely that the presence of the OPR that receives complaints and conducts administrative inquiries will generate further incentives for ethical public lawyering.  It will be the hope that prosecutors would become more aware and sensitive to vigilantly abide with their higher duties arising out of their greater access to resources and public interest goals.