The Seven Deadly Prosecutorial

The Seven Deadly Prosecutorial
Robert J. Frater*
The last decade has seen a marked increase in criminal litigation concerning
the conduct of Crown counsel. The most prevalent forms of misbehaviour engaged
in by Crown counsel -inflammatoryjury addresses and improper cross-examination, for example - can be be categorized according to the seven deadly sins:
gluttony, lust, greed, pride, sloth, envy and wrath. The author offers advice as to
how prosecutors can strive to achieve the standard of practice contemplated by Mr.
Justice Rand's famous admonition in R. v. Boucher.
- - - - - - - - - -
Xiiernikre dkcennie a bte' le lieu d'une augmentation remarqui?e despoursuites
pn matikre de droit criminel portant sur la conduite des procureurs de la Couronne.
Le8 formes les plus courantes de rnauvaise conduite adoptkes par les procureurs de
la Couronne, comme par exemple les plaidoiries incendiaires au jury et les contreinterrogatoires inconvenants, peuvent 2tre classkes en fonction des sept pichis
capitaux :la gourmandise, la luxure, l'avarice, l'orgueil, la paresse, l'envie et la
colkre. L'auteur donne des conseils sur ce que peuvent faire les procureurs pour
arriver d pratiquer k droit de la facon envisagke par le juge Rand dans sa position
ckl2bre duns la dkcision R. v. Boucher.
.. .
-
A. Introduction
It is customary in articles on Crown advocacy written by prosecutors
to begin by paying homage to the words of Mr. Justice Rand in R. v. B0ucher.l
This article is no different. To guard against the extremely unlikely possibility that there is a Crown counsel who hasn't read them, here they are:
It cannot be over-emphasized that the purpose of a criminal prosecution is not to obtain
a conviction; it is to lay before a jur-y'whatthe Crown considers to be credible evidence
- - - - - - - - - - - - - - - -
t
The views expressed are those of the author and not of the federal Department of Justice.
The author wishes to acknowledge the assistance of Kenneth Campbell of the A.G. Ontario,
whose excellent unpublished papers on the first two sins were very helpful.
* Of the Ontario Bar.
1 (1954), [I9551 S.C.R. 16,110 C.C.C. 263,20 C.R. 1,1954 CarswellQue 14 (S.C.C.).
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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: should be done firmly and pressed to its legitimate
strength but it also must be done fairly. 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. It is to be efficiently performed
with an ingrained sense of the dignity, the seriousness and the justness of judicial
proceedings .2
We have read these words again and again in training materials, policy
manuals and court judgments, but alas, it must be said, many of us have
failed to live by them. The last decade has seen an explosion in case law in
which the conduct of Crown counsel was, if not a decisive legal issue, an
important one.
Compared to defence counsel, perhaps we should not feel so bad: while
the allegation against Crown counsel is usually some type of error in judgment, the same decade has also seen an explosion in case law in relation to
defence counsel's alleged inc~mpetence.~
Then again, we have always held
ourselves, and the courts have too, to a higher standard of conduct.
The result is that these are not comfortable times to be aCrown c o ~ n s e l . ~
We were, and are, much more comfortable in defending allegations of misconduct by the police and other government officials, where we can retain a
sense of detachment.
In the hope of in some small way of assisting counsel in attaining the
"Bouchervian" ideal, I have examined the case law from the last decade or
so and attempted to group the most prevalent allegations of Crown misconduct; recognizing that you have a problem is the first step toward dealing
with it. Much to my surprise, my reading uncovered that there was a striking
correspondence between the types of misconduct alleged against Crown
counsel and the seven deadly sins: gluttony, lust, greed, pride, sloth, envy
and wrath.'
B. A Glutton for Punishment - Destroying your Case by
Attacking the Accused
One of the stereotypes of criminal law practice is that defence counsel
can't lead evidence-in-chief, and prosecutors can't cross-examine.Not being
2 Boucher, ibid at 23-24 [S.C.R.].
3 Indeed, so frequent are these allegations in Ontario that the Court of Appeal has promulgated
special rules for dealing with them: see Procedural Protocol - Re Allegations of Incompetence of Trial Counsel in Criminal Cases, www.ontariocourts.on.ca/courtofappeaY
notices/procedural-protocol/index.
html.
4 Unless, perhaps, you happen to work for the recently salary-augmented A.G. Ontario, but I
don't want to deal with envy in this section.
5 Readers interested in knowing more about the seven deadly sins should consult the informative website at www.rushman.orglseven/. For a discussion of the provocative thesis that
each of the seven castaways on Gilligan's Island represent one of the deadly sins, see http:/
/members.tripod.com/TTLF/gilligan.html.
THE SEVEN DEADLY PROSECUTORIAL SINS
2 11
a great cross-examiner is no sin; compensating for it by employing dubious
cross-examination techniques is. The volume of case law in this area suggests
some fairly widespread misconceptions about cross-examination.
Three things are particularly disturbing about this recent case law. First
is simply the sheer number of cases in which improper Crown cross-examination has led to a new trial.6
Second is an equally unattractive fact: most of the examples appear to
be such obvious examples of plainly bad advocacy, you are left to wonder
"what was helshe thinking?'The nadir was reached in R. v. K a ~ f m a nas
,~
this short extract of the cross-examination reveals:
The Court: Maitre P., Maitre P., you will not argue with the witness please and you will
keep the line of questions as per -you will keep the line of questions. . .
Crown Counsel: Of course, of course. This is a game between me and Mr. Kaufman.
The Court: I understand that you -it is not a game.
Crown Counsel: I know it is not a game but it's time to - you know, it is something
between him and me now.
The third concern, which perhaps explains both why the bulk of the
case law in the area is post-1982, and why the commission of the sin so often
leads to a new trial, is that the impugned cross-examination tends to indicate
a lack of respect for certain of an accused's Charter rights. Three rights in
particular are usually involved when courts find a Crown cross-examination
to be improper:
-'
(a) the right to silence;
(b) the right to disclosure of the Crown's case; and
(c) the protection against self-incrimination provided by section 13 of
the Charter.
R. v. Coness serves to illustrate the first type of case. It was a case in
which the accused, while testifying, offered for the first time an explanation
for the bad driving that had led to criminal negligence charges. Crown
counsel demanded to know why this explanation had not been offered immediately upon arrest. The Ontario Court of Appeal took some pains to point
out how such a line of cross-examination subverts the right to silence: "[tlhe
6 A representative sample includes: R. v. Rose, 42 C.R. (5th) 183,153 C.C.C. (3d) 225,2001
CarswellOnt 955, [20011 O.J. No. L150 (Ont. C.A.) (forced accused to "defend against
vague and irrelevant suggestions of improper conduct"); R. v. Riche, 146 Nfld. & P.E.I.R.
27, 1996 CarswellNfld 337 (Nfld. C.A.) (cross-examination termed "outrageous"); R. v. R.
(A.J.) (1994), 94 C.C.C. (3d) 168, 1994 CarswellOnt 152 (Ont. C.A.) (cross-examination
"calculated to demean and humiliate" the accused). It was noted in R. (A.J.)that the volume
of such cases in Ontario alone was large; it has multiplied since.
7 151 C.C.C. (3d) 566,2000 CarswellQue 2824 (Que. C.A.) at 570 [C.C.C.].
8 143 C.C.C. (3d) 355,32 C.R. (5th) 226,2000 CarswellOnt 556 (Ont. C.A.).
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accused was painted as a potential perjurer by reason of his silence on
arre~t".~
The disclosure cases also involve a recurring fact pattern: faced with
what the Crown believes is a cleverly concocted defence, Crown counsel
suggests to the accused that the defence has been tailored to conform to
disclosure materials provided by the Crown.IoThe suggestion rarely takes
the cross-examiner anywhere," for the accused simply denies it.
The third area involves cross-examination on knowledge of section 13
Charter rights. This has arisen in situations where Crown counsel wants to
suggest that the only reason testimony is being given by a defence witness
is that the person realizes the testimony cannot be used against him or her.
The Supreme Court of Canada effectively ended the debate as to whether
this line of questioning was appropriate in R. v. Jabarianha,12 ruling that it
can only be done in "rare circumstances."
Crown counsel must be particularly vigilant in guarding against allegations of lack of respect for an accused's Charter rights. It is perhaps an
understandable byproduct of Crown practice, given that Crown counsel are
inevitably in the position of advocating narrow interpretations of Charter
rights,I3and frequently are burdened with responding to Charter applications
that may be justifiably viewed as fanciful. The realities of Crown practice
should not, however, foster an attitude of disrespect for Charter values that
permeates counsel's advocacy.
The one other area of improper Crown cross-examination that bears
mentioning is the most frequently recurring attack on an accused, which is
usually along the lines of, "so, are you saying the police/witness(es) are
lying?"14 Since this was recognized as improper by the Supreme Court of
Canada 20 years before Boucher,15 its persistence is a source of interest.16
9 Cones, ibid. at 366 [C.C.C.].
10 See, for example, R. v. Schell, 148 C.C.C. (3d) 219,38 C.R. (5th) 165,2000 CarswellOnt
3422 (Ont. C.A.).
1I However, in R. v. Cavan, 139 C.C.C. (3d) 449, 1999 CarswellOnt 3480 (Ont. C.A.), leave
to appeal refused [2000] 1 S.C.R. viii, 2000 CarswellOnt 1152,2000 CarswellOnt 1153,
2000 CarswellOnt 1 154, 2000 CarswellOnt 1155 (S.C.C.), the accused was held to have
opened the door to such a line of cross-examination by attributing his detailed recollection
of events to reading disclosure materials.
12 2001 SCC 75, 2001 CarswellBC 2500, 2001 CarswellBC 2501 (S.C.C.); see also: R. v.
Swick, 118 C.C.C. (3d) 33, [I9971 O.J. No. 3580 (Ont. C.A.).
13 A Crown response to an application to exclude evidence may consist of multiple attempts
to minimize the Charter's force, to wit: (a) there is no such Charter right; (b) if it exists,
the accused has no standing to claim it; (c) if helshe had standing there was no breach; (d)
if there was a breach the evidence should nevertheless be admitted.
14 See, for example, R. v. Vandenberghe, 96 C.C.C. (3d) 37 I, 1995CarswellOnt 1806, [I 9951
O.J.No.243 (0nt.C.A.).
15 R. v. Markadonis, [I9351 S.C.R. 657,64 C.C.C. 41, 1935 CarswellNS 50 (S.C.C.).
16 Anyone with a serious interest in this line of cross-examination should examine the
judgment of the Australian High Court in Palmer v. R. (1998), 96 A. Crim. R. 213, 2
A.L.J.R. 254 (Australia H.C.). The judgments of McHugh J. and Kirby J. are particularly
THE SEVEN DEADLY PROSECUTORIAL SINS
213
Given its frequency, it is difficult to argue against the idea that it must have
at least some intuitive appeal. The attitude of the courts may be explained
on the basis that it comes within a category of things which, Lord Pearce
has said,"
[though they might] obliquely throw some light on the issues must in practice be
discarded because there is not an infinity of time, money and mental comprehension
available to make use of them.
C. Lusting after Conviction -Improperly Arousing the
Jury's Passions
For every Crown counsel who believes sarcasm, abuse, and gross exaggeration are effective tools of cross-examination, there is an equal number
that believe those devices add a desirable rhetorical flourish to a jury address.
Unfortunately for such counsel, appellate courts tend to have a more prosaic
view of what constitutes acceptable Crown oratory.
The case law concerning inflammatory Crown jury addresses has proliferated just as rapidly as the case law on improper Crown cross-examination. Often, the two complaints have been combined to torpedo a conviction
that was amply justified on the evidence.
Though the number of ways a Crown's closing address may be improper
is considerable, counsel can avoid most of the rnistriallretrial deathtraps by
remembering four simple rules.
1. It is not Your Prosecution
Jury trials are frequently long and hard-fought. The investment of time
and energy understandably leads Crown counsel to have strong feelings
about "my case". Appellate courts tend to be critical of Crown counsel who
personalize the case in various ways. Indeed, it should never be forgotten
that R. v. Boucher was a case about a Crown jury address, where counsel
used language which suggested that the Crown would only prosecute where
a thorough investigation had satisfied the authorities of the accused's guilt,
and he did believe in the accused's guilt. He asked the jury to find the
accused guilty and give him the pleasure of asking for the death penalty.18
Here are some of the ways in which a prosecution may be inappropriately personalized:
reliance on the office of Crown counsel as being inherently trustworthy;
interesting, the former because it offers a limited defence for such cross-examination,the
latter because it neatly summarizes the reasons for and against permitting such crossexamination.
17 Toohey v. Metropolitan Police Commissioner, [I9651 A.C. 595, [I9651 1 All E.R. 506,49
Cr. App. R. 148 (U.K. H.L.) at 607 [A.C.].
18 Boutrher, supra, note 1 at 27 [S.C.R.].
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suggesting the jury and the Crown are engaged in a common cause;
expressions of personal opinion -"I believe", "I think".
2. Defence Counsel and their Clients are not Evil
Even though the accused's cascading criminal record barely fits in your
file, and even though defence counsel's conduct may have challenged conventional ideas about what constitutes ethical practice, it is not Crown counsel's job to belittle, besmirch or berate either before the jury." Pointing out
infirmities in the defence position is one thing; attacking who they are is
another.
1. Keep the Violins in their Cases
Somewhere in this country, a prosecutor sits idly, wondering how a
reference to the tragic events of September 1 1 in New York and Washington
can be worked into ajury address on a break, enter and theft case; somewhere
an appellate court waits to flog that prosecutor with a Boucher whip.
Inappropriate appeals to emotion appear to be a habit as hard to kick as
cigarette smoking. Appellate courts are about as sympathetic as your family
doctor to a two-pack-a-day addict.
Typical examples involve:
suggestion that the floodgates will open if the accused goes free;20
asking the jury to be the voice for the victim;21
comparing the crime to some other celebrated crime.22
2. Don't Undermine the Accused's Constitutional Rights
As with cross-examination, subtle or not-so-subtle attempts to undermine an accused's constitutional rights are likely to be fatal. Thus, suggestions that the accused shaped the defence around the Crown's disclosure
materials, or should have given his version of events immediately upon
arrest, have been found to be improper.23
19 See, for example, R. v. Lee, (sub nom R. v. Siu) 124 C.C.C. (3d) 301, 1998 CarswellBC
838 (B.C. C.A.); R. v. B. (R.B.), 2001 BCCA 14, 152 C.C.C. (3d) 437,2001 CarswellBC
18 (B.C. C.A.).
20 R. v. Munroe, 96 C.C.C. (3d) 431, 38 C.R. (4th) 68, 1995 CarswellOnt 19 (Ont. C.A.),
leave to appeal refused El9951 4 S.C.R. 53,43 C.R. (4th) 366, 102 C.C.C. (3d) 383, 1995
CarswellOnt 989, 1995 CarswellOnt 1183 (S.C.C.) (in which the S.C.C. described the
Crown address as "repugnant").
21 R. v. Pitt, 109 C.C.C. (3d) 488, 1996 CarswellNB 368 (N.B. C.A.), leave to appeal refused
(1997), 21 1 N.R. 319 (note), 188 N.B.R. (2d) 80 (note), 480 A.P.R. 80 (note), [1996]
S.C.C.A. No. 494 (S.C.C.).
22 R. v. Munroe, supra, note 20 at 464 [C.C.C.].
23 R. v. Peavoy, 117 C.C.C. (3d) 226,9 C.R. (5th) 83,1997 CarswellOnt 2689 (Ont. C.A.) at
233-235 [C.C.C.].
THE SEVEN DEADLY PROSECUTORIAL SINS
215
D. Greed Kills -Dealing Unreasonably with Reasonable
Disclosure Requests
Disclosure is a messy business. Notwithstanding the guidance t o be
gleaned from a number of Supreme Court decisions,24august committees25
and policy manuals,26the issue of what should be disclosed regularly occupies a significant portion of Crown counsel's time. Dealing with disclosure
requests can be extremely tedious because of their frequently unfocussed
nature, the difficulty of discovering whether the sought-after information
even exists, much less getting a copy, the potential conflict with police
officers reluctant to comply, and so on. All of this when, in many cases,
Crown counsel may suspect that the last thing defence counsel wants is full
disclosure -the refusal is the prize, since an improper refusal may invite a
stay of proceedings.
The failure t o m a k e proper disclosure may now have become the worst
of a trial prosecutor's sins.27Undoubtedly this is part of t h e legacy of the
notorious wrongful conviction cases - Marshall, Morin, Milgaard, Sophonow. Pretrial disclosure, it is safe t o say, has become a minefield for the
Crown. In recent times, the punishment for improper disclosure has moved
beyond t h e entering of stays of proceedings a t trial, or the quashing of a
conviction on appeal, to include significant costs awards,28 and even, in
Alberta, disciplinary proceedings before the law society.29 Even in the ab24 See, for example: R. v. Stinchcombe, [I9911 3 S.C.R. 326,8 C.R. (4th) 277,68 C.C.C. (3d)
1,1991 CarswellAlta 192,1991 CarswellAlta 559 (S.C.C.); R. v. Egger, [I9931 2 S.C.R.
451, 21 C.R. (4th) 186, 82 C.C.C. (3d) 193, 1993 CarswellAlta 410, 1993 CarswellAlta
561 (S.C.C.); R. v. Chaplin, [I9951 1 S.C.R. 727,36 C.R. (4th) 201,96 C.C.C. (3d) 225,
1995 CarswellAlta 72 (S.C.C.); R. v. McQuaid, (sub nom. R. v. Dixon) [I9981 1 S.C.R.
244, (sub nom. R. v. Dixon) 122 C.C.C. (3d) 1, 13 C.R. (5th) 217, 1998 CarswellNS 7,
1998 CarswellNS 8, [I9981 S.C.J. No. 17 (S.C.C.); R. v. Curragh Inc., [I9971 1 S.C.R.
537, 113 C.C.C. (3d) 481,5 C.R. (5th) 291, [I9971 S.C.J. No. 33,1997 CarswellNS 88,
1997 CarswellNS 89 (S.C.C.); R. v. Carosella, [I9971 1 S.C.R. 80,112 C.C.C. (3d) 289,
4 C.R. (5th) 139, [I9971 S.C.J. No. 12, 1997 CarswellOnt 85, 1997 CarswellOnt 86
(S.C.C.); R. v. Shirose, (sub nom. R. v. Campbell) [I9991 1 S.C.R. 565, 133 C.C.C. (3d)
257,24 C.R. (5th) 365, 1999 CarswellOnt 948, 1999 CarswellOnt 949, [I9991 S.C.J. No.
16 (S.C.C.).
25 Report of the Criminal Justice Review Committee (Ontario, 1998);Report of the Attorney
General's Advisory Committee on Charge Screening, Disclosure and Resolution Discussions (G. Arthur Martin, Chair) (Toronto: Ontario Ministry of the Attorney General, 1993)
(hereinafter,"Martin Committee Report").
26 See, for example, The Federal Prosecution Service Deskbook (hereinafter FPS Deskbook),
Part V, Chapter 18. The FPS Deskbook can be found on the website of the Department of
Justice, at http://canada.justice.ca under "Publications".
27 In R. v. Stinchcombe, supra, note 24 at 339 [S.C.R.], Justice Sopinka called the failure to
make full disclosure "a very serious breach of professional ethics".
28 See, for example, R. v. Greganti, 142 C.C.C. (3d) 77,2000 CarswellOnt 442, [2000] O.J.
No. 395 (Ont. S.C.J.).
29 Krieger v. Law Society (Alberta), 2000 ABCA 255,2000 CarswellAlta 1014, [2000] A.J.
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CANADIAN CRIMINAL LAW REVIEW
[7 Can. Crim. L.R.]
sence of disciplinary proceedings, tarnishing of your professional reputation30is a possible result of the failure to disclose, whether the failure was a
sin of commission or omission.
Providing full disclosure is among the most important "minister of
justice" functions of Crown counsel. It may require great persistence, and
undoubtedly calls for the exercise of careful judgment in ensuring all appropriate privilege claims are asserted. It does not demand, however, that the
Crown litigate all marginal requests for information. Decisions to resist
disclosure should involve some readily identifiable principle (e.g.,the information is privileged) rather than be prompted by the difficulty of complying. Disclosure may be very expensive, but the costs of non-disclosure
are now prohibitive.
E. There's no Pride in Lyin': Communicating Honestly and
Openly with the Courts
This is probably the least common of Crown sins, for virtually all
prosecutors recognize their duty to act with the utmost integrity in their
dealings with the courts. It bears mentioning only because there are anumber
of different areas in which courts have recently criticized Crown counsel for
their communications, and because new responsibilities of Crown counsel
require heightened sensitivity to the concern.
Courts expect candour and scrupulous honesty by the Crown. In areas
of factual controversy they expect Crown counsel to have ready answers. R.
v. A h l u ~ a h l i areferred
,~
to in F., below, is the best example of this. Where
Crown counsel have been most frequently deficient in this regard is inclosing
addresses to the jury: counsel that play fast and loose with the facts have
been ~ r i t i c i z e d . ~ ~
Counsel also have to be extremely cautious in their ex parte dealings
with courts, as illustrated by the Supreme Court decisions in R. c. R e n d ~ n ; ~ "
R. ,v. Curragh Inc.;" and Canada (Minister of Citizenship & Immigration)
v. to bias^.^^ The drive to seek efficiencies in the criminal justice system has
30
31
32
33
34
35
No. 1129 (Alta. C.A.), leave to appeal allowed, 2001 ~ & s w e l l ~ l714,2001
ta
CarswellAlta
715 (S.C.C.).
Pity the poor Crown counsel who was the subject of the comments of Justices McLachlin
and Major in R. v. Curragh, supra, note 24 at 588-589 [S.C.R.].
149 C.C.C. (3d) 193,39 C.R. (5th) 356,2000 CarswellOnt 4573 (Ont. C.A.).
R. v. Walker, 90 C.C.C. (3d) 144, 1994 CarswellOnt 898 (Ont. C.A.) at 153-154 [C.C.C.]
("Crown counsel was not entitled to conjure up . . . a horror story in the absence of any
evidence"); R. v. Rose, 119981 3 S.C.R. 262, 129 C.C.C. (3d) 449,20 C.R. (5th) 246,1998
CarswellOnt 4392, 1998 CarswellOnt 4393 (S.C.C.) at 321 [S.C.R.].
(Sub nom. R. c. Denton) 2001 SCC 34, (sub nom. R. v. Peters) 156 C.C.C. (3')222,2001
CarswellQue 982,2001 CarswellQue 983 (C.SC.), confirmant (sub nom. R. v. Peters) 140
C.C.C. (3')52,33 C.R. (5e)83, 1999 CarswellQue 3022 (C.A. QuC.).
R. v. Curragh Inc., supra, note 24.
[1997] 3 S.C.R. 391, 118 C.C.C. (3d) 443, 10 C.R. (5th) 163, 1997 CarswellNat 1385,
1997 CarswellNat 1386, [I9971 S.C.J. No. 82 (S.C.C.).
THE SEVEN DEADLY PROSECUTORIAL SINS
217
undoubtedly increased our need to have out-of-court discussions with court
officials, including judges: we must keep such necessary communications
within appropiiate bounds.
Finally, the recognition of the desirability of providing information to
the media36calls for care as well. Guarding against the possibility of causing
prejudice to court proceedings is an ever-present concern.
F. Get off Your Sony, Slothful Butt: Recognizing a Duty to
Investigate
The evolution of the role of the prosecutor is easy to document. First,
we federal prosecutors are all constitutional lawyers now, as Madame Justice
Southin has wittily observed:37
Question:
Answer:
What is a narcotics case without a Charter argument?
A plea of guilty.
A basic grasp of the mens rea and actus rea requirements of a crime,
and knowledge of a police brief, will ill-equip you to conduct a prosecution
these days. A drug prosecutor, for example, must have knowledge of case
law under numerous Charter provisions, familiarity with privileges such as
"informer" and "solicitor-client", and a firm grasp of a number of complex
evidentiary rules such as the co-conspirator's exception to the hearsay rule.
Prosecutors are also being asked to assume new or greater responsibilities with respect to charge screening, diversion and sentencing (sentencing
circles, "conditional" sentences). New demands on a prosecutors' time seem
to emerge yearly, if not more often.
Judicial decisions have also ensured that only a portion of prosecutors'
time will be spent taking a brief and prosecuting it. Courts are increasingly
imposing duties of investigation on prosecutors. Three examples are illustrative.
Pretrial disclosure, dealt with in D, above, continues to be a growth
industry. Deciding what to disclose may be easier and less time-consuming
than determining whether requested material exists. So-called "third party"
disclosure, which may consist of records held by other government agencies,
is not necessarily easy to acquire given:
(a) the actual disclosure request may be unfocussed;
(b) it may not be quite clear who the record-holder is;
(c) the record-holder may be reluctant to allow you to even look at the
36 See, for example, The FPS Deskbook, supra, note 26 at Part 111, Chapter 10.
37 In R. v. Leipert, 106 C.C.C. (3d) 375,47 C.R. (4th) 3 1,1996CarswellBC 798 (B.C. C.A.)
at 378 [C.C.C.], affirmed 4 C.R. (5th) 259, 112 C.C.C. (3d) 385, [1997] 1 S.C.R. 281,
1997 CarswellBC 101,1997 CarswellBC 102 (S.C.C.).
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CANADIAN CRIMINAL LAW REVIEW
[ I Can. Crim. L.R.]
material, since they may be mystified as to the relevance of the
material to a criminal proceeding.
Woe betide the prosecutor who fails to do the legwork to put himself o r
herself in the position where helshe can sensibly argue about whether the
information sought exists, is relevant, or is privileged.
A second example is provided by the case of R. v. Ahluwahlia." In that
case, fresh evidence was admitted on appeal to demonstrate that a Crown
witness at trial, a F.B.I. police agent, had lied about his criminal record. The
judgment of Dohei-ty J.A., of the Ontario Court of Appeal, was highly critical
of the Crown's failure to explain the perjury:
For reasons not shared with this court, the Crown does not appear to have regarded
itself as under any obligation to get to the bottom of this matter. It contended itseIf with
inquiries of counsel involved in the case and some Canadian police officers . . . .
The Crown has obligations to the administration of justice that do not burden other
litigants. Faced with its own witness's perjury and the fact that the perjured evidence
coincided with the incomplete disclosure that the Crown says it innocently passed to the
defence, the Crown was obliged to take all reasonable steps to find out what had happened
and to share the results of those inquiries with the d e f e n ~ e ? ~
Crown counsel usually rely on the police to get to the bottom of investigative
matters;40Ahluwahlia makes clear that delegation of responsibility may not
suffice in some circumstances.
The bluntness of Doherty J.A.'s criticism may be a further attempt to
bring home to the Crown one of the primary lessons of the Morin Commission: the Crown must be ever vigilant to guard against "tunnel vision" whether our own, or that of the police.41The Crown may have to poke and
prod the investigators, to ensure that they were not afflicted by tunnel vision.
Hard questions must be asked, and firm measures taken to ensure the integrity
of the administration of justice. T o some extent, this will involve thinking
and acting like an investigator yourself.
,
The third example arises from the recent Supreme Court of Canada
. ~ ~ had been condecision in Proulx c. Qukbec (Procureur g k r ~ k r a l ) Proulx
victed of murder but the Quebec Court of Appeal overturned the conviction
and entered an a~quittal.~'
Proulx then launched the Quebec equivalent of a
38 R. v. Ahluwahlia, supra, note 3 1.
39 Ibid. at 213 [C.C.C.].
40 Indeed the Martin Committee Report, .snpra, note 25, stated, at 39, "the Crown is entitled
to rely on the police, as the investigative source of most of the information relevant to the
guilt or innocence of an accused person, to bring forward accurately and completely
whatever has a bearing on the case".
41 Report of the Commission on Proceedings involving Guy Paul Morin (Toronto: Ontario
Ministry of the Attorney General, 1998) vol. 2 at 1136-1138; The Inquiry Regarding
Thomas Suphonow (2001), www.gov.mb.ca~justice/sophonow/arnold~recommend.html
#I.
42 2001 SCC 66,46 C.R. (5') 1,2001 CarswellQue 2187,2001 CarswellQue 2188 (C.S.C.)
43 R. c. Proulx, 76 C.C.C. (3') 316, I992 CarswellQue 265 (C.A. QuC.).
THE SEVEN DEADLY PROSECUTORIAL SINS
219
malicious prosecution suit, which succeeded at trial, but was overturned by
the Quebec Court of Appeal, 2: 1. The Supreme Court of Canada reinstated
the trial judgment by a 4:3 vote.
Among the factors the Supreme Court majority relied upon to characterize the prosecutor's actions as malicious, was the prosecutor's reliance on
investigative work done by a retired police officer, Tardif. Tardif was the
original lead investigator. By 1999, he was not only retired, but facing a
defamation action by Proulx. The majority criticized the prosecutor for
"allow[ing] Tardif to resume work on the case,"44 when Tardif was in a
manifest conflict of interest.
Nowhere does the majority acknowledge that assignment of investigators is in fact the responsibility of the police, not Crown counsel. That
point aside, one of the messages we must take from this judgment is that
Crown counsel ought not simply serve up whatever has been prepared by
the police. To the Proulx majority, Crown counsel's obligation appears to
be to scrutinize not only the individual pieces of evidence, but the investigation as a whole.
It will be interesting to see how the case law in this area develops. Will
the courts increasingly expect Crown counsel to, in effect, vouch for the
investigation? How can Crown counsel actually do so without taking American District Attorney-style control of the investigation? The scope of Crown
counsel's responsibility to investigate poses difficult problems.45
G. Penal Envy: Controlling the Urge to Overcharge and
Overincarcerate
To the overzealous prosecutor, the desire to punish is an irresistible
urge. In the most notorious recent example, a series of extradition cases went
because an intemperate American prosecutor had the bad sense to
tell a Canadian television audience that an accused would be the "boyfriend
of a very,bad man [in prison]" if he didn't return to the U.S. posthaste.47For
44 Proulx, supra, note 42 at para. 42 [SCC].
45 It should be noted that the focus of Regan v. R., currently on reserve in the S.C.C. (S.C.C.
#27541), is the contention that Crown counsel was too involved in the investigation.
Conducting inappropriate investigations may also lead to difficulties, as evidenced by R.
v. Kirkham, 126 C.C.C. (3d) 397, 17 C.R. (5th) 250,1998 CarswellSask435 (Sask. Q.B.).
46 To he perfectly accurate in the extradition context, the cases went south; the fugitives
didn't.
47 United States v. Shulman, [2001] 1 S.C.R. 616, 2001 SCC 21, 152 C.C.C. (3d) 294,41
C.R. (5th) 100, 2001 CarswellOnt 962, 2001 CarswellOnt 963, [2001] S.C.J. No. 18
(S.C.C.), reconsideration refused 2001 CarswellOnt 2045, 2001 CarswellOnt 2046
(S.C.C.); United States v. Cobb, [2001] 1 S.C.R. 587,2001 SCC 19, 152 C.C.C. (3d) 270,
41 C.R. (5th) 81, 2001 CarswellOnt 964, 2001 CarswellOnt 965, [2001] S.C.J. No. 20
(S.C.C.), reconsideration refused 2001 CarswellOnt 2045, 2001 CarswellOnt 2046
(S.C.C.); United States v. Cobb, (sub nom. United States of America v. Tsioubris) [200I]
I S.C.R. 613, (sub nom. United States of America v. Tsioubris) 2001 SCC 20, (sub nom.
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such prosecutors, no indictment is too long, and no term of incarceration too
punitive.
Prosecutors are, however, receiving a host of messages from different
sources aimed at changing such attitudes. The Martin Committee reminded
Crown counsel that "the object is not to put as many accused as possible in
jail as quickly as possible, but to achieve justice".48 At least since that
Committee's report, if not before, charge screening has been regarded as a
crucial activity of Crown counsel to reduce unnecessary charges and facilitate early resolution of cases. In the Federal Prosecution Service policy
manual, it is stated that "[elarly charge screening and case assessments are
decisive points in the prosecution process and constitute cornerstones of the
litigation
The courts too, are demanding that prosecutors bring
manageable indictments before them.50
The message to prosecutors is equally loud with respect to sentencing.
Parliament clearly believed that jails and prisons were too full, and enacted
sentencing provisions aimed at reducing prison populations." Conditional
sentences are here to stay - get over it.52
To be a Crown advocate in 2001 thus involves a firm responsibility to
assist the administration of justice in achieving maximized efficiency. Fewer
prosecutions, more diversion, fewer charges, less jail. While we may not
have been reduced to being bean-counters, there is a heightened sense of
obligation to help the court system cope with the strain of lengthy dockets.
H. I am Prosecutor, Beware my Wrathful Roar: Confusing
Independence with Licence
In 1925, the Attorney General of England, Viscount Simon, did prosecutors a great service and disservice by proclaiming that the Attorney
General "should receive orders from nobody".53 He was speaking of the
Attorney General's responsibilities with respect to the institution of proceedings, and making the eminently sensible point that the decision to institute proceedings should not be subject to political influence.
United States ofAmerica v. Tsioubris) 152 C.C.C. (3d) 292,2001 CarswellOnt 960,2001
CarswellOnt 96 1, [2001] S.C.J. No. 2 1 (S.C.C.), reconsideration refused 2001 CarswellOnt
2045,2001 CarswellOnt 2046 (S.C.C.).
48 Martin Committee Report, supra, note 25 at 114.
49 FPS Deskbook, supra, note 26 at Part IV, Chapter 13, p. iv- 13-3.
50 See, for example, R. v. Pangman (2000), 46 W.C.B. (2d) 354 (Man. Q.B.), where the trial
judge raised the issue of an "overloaded" indictment of her motion.
5 1 For example, ss. 7 18.2(d) and (e), and 742ffof the Criminal Code.
52 The last bastion of len,g.hy carceral sentences for drug offenders, the Alberta Court of
Appeal, has: see R. v. Rahime, 2001 ABCA 203,156 C.C.C. (3d) 349,2001 CarswellAlta
1019 (Alta. C.A.).
53 As quoted in J.L.J. Edwards, The LAW Oficers of the Crown (London: Sweet and Maxwell,
1964) at 2 15.
THE SEVEN DEADLY PROSECUTORIAL SINS
221
Viscount Simon was also speaking of himself, or rather his office nothing about his famous statement could have been intended to give rise to
a conception of prosecutors as rugged individualists, taking orders from no
one as they exercise their unbridled discretion. It would be surprising if
Simon himself did not think he could issue orders to those carrying out his
work.
As a practical matter, prosecutors do not "receive orders" from anybody
with respect to the vast majority of decisions they are required to make.
There are simply too many decisions and too many prosecutors to permit
strict oversight of individual prosecutors. This reality should not be permitted
to foster an "I call the shots" attitude among prosecutors.
Unfortunately, the previously-mentioned decision of the Supreme
Court of Canada in Proulx c. Que'bec (Procureur ge'ne'ral) may give some
comfort to the "rugged individualist" prosecutor. In seeking to demonstrate
the absence of malice, the prosecutor in Proulx had testified that he did not
institute proceedings on his own, but consulted with colleagues and superiors. The Proulx majority was dismissive:
Nor can the Prosecutor rely on consultations that he had with colleagues and superiors.
He knew more about the case than they did and, as the holder of an important office
under the Criminal Code, R.S.C. 1985, c. C-46, the decision to lay the charge was his
and his alone: R. v. Campbell, [I9991 1 S.C.R. 565, at para. 33. [Emphasis added.]54
The words "holder of an important office" under the Criminal Code are
perhaps an oblique reference to the definition of "prosecutor" under section
2 of the Criminal Code which states:
"prosecutor" means the Attorney General or, where the Attorney General does not
intervene, means the person who institutes proceedings to which this Act applies, and
includes counsel acting on behalf of either of them.
This paragraph of the Proulx judgment is supportable neither by the
reference to the Shirose judgment (paragraph 33 of that judgment refers to
an inapposite judgment of Lord Denning's on the independence of police
constables) nor by the definition of "prosecutor" in the Code, nor by principle. The decision to lay charges is the Attorney General's, and counsel acts
on hislher behalf. Indeed, counsel may receive direction from the Attorney
General. It is one thing to say, as perhaps the Proulx majority intended, that
consultation is not a full answer to an allegation of malice; it is quite another
to encourage the wrong-headed belief that every prosecutor is an island of
individual decision-making.
Despite Proulx, and despite the fact that the independence principle
remains significant, it has probably been eclipsed in importance at this
54 Proulx v. A.G. Quebec, supra, note 42 at para. 33 [SCC].
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moment in time by a principle of acc~untability.~~
The prime motivating
force behind this is again the celebrated series of wrongful convictions in
this country, and the resultant concern for public confidence in the justice
system.
Again, the federal policy manual is relevant, as it is rife with messages
of accountability. The Deskbook itself, as a public document, is intended in
part to explain prosecutorial practices to the public. The policy on Communicating with the Media56seeks to put an end to the traditional Crown
response to media inquiries: "no comment". The policy on "Independence
and Accountability in Decision-Making"" seeks to describe the meaning of
independence and how it neither discourages consultation nor precludes
accountability. The number of reporting obligations in the Deskbook is
considerable.
The Courts, too, are increasingly seeking to hold the prosecution accountable. Orders of costs against the Crown have been frequent. Courts are
demanding explanations for actions, even for actions which have traditionally been done without explanation, such as the entry of stays of proceedi n g ~ . 'Courts
~
still say nice things about the integrity of Crown counsel, but
they want the comfort of knowing there is a reasonable explanation for
decisions taken.
The message to Crown counsel is this: exercise independent judgment,
but consult where necessary (taking a liberal reading of "where necessary")
and be prepared to justify your decisions.
And in all cases, where two or more paths present themselves, take the
high road.
55 For a helpful discussion on the relationship between independence and accountability,see
Kaufman, Review of the Nova Scotia Public Prosecution Service, Final Report, (Halifax:
Nova Scotia Public Prosecution Service, 1999) at 1 1-21.
56 FPS Deskbook, supra, note 26 at Part 111, Chapter 10.
57 FPS Deskbook, supra, note 26 at Part 111, Chapter 8.
58 R. v. Larosa, [2000] O.J. No. 976 (Ont. S.C.J.).