Prosecutor

Compiled by Eric B. Appleby:

Overview

The prosecutor represents the people or the Crown and should have no interest other than to see that justice is done. The prosecutor’s pre-eminent duty is to the state – see Professional Conduct for Lawyers and Judges by Beverley G. Smith, at chapter 8, para. 13. 7.1 Role of In the case of Nelles v. Ontario (1989), 98 N.R. 321; 35 O.A.C. 161 (S.C.C.), the Supreme Court of Canada stated at paras. 38 and 39: [38] “Historically the Attorney General’s role was that of legal adviser to the Crown and to the various departments of government. More specifically the principal function was and still is the prosecution of offenders. The appointment of Crown Attorneys as agents of the Attorney General, arose from the increasing difficulty of the Attorney General to attend effectively to all of his duties amid increases in population, and the expansion of settlement.

[39] The office of the Crown Attorney has as its main function the prosecution of and supervision over indictable and summary conviction offences. The Crown Attorney is to administer justice at a local level and in so doing acts as agent for the Attorney General. Traditionally the Crown Attorney has been described as a minister of justice and ought to regard himself as part of the court rather than as an advocate . (Morris Manning, Abuse of Power by Crown Attorneys, [1979] L.S.U.C. Lectures 571, at p. 580, quoting Henry Bull, Q.C.) As regards the proper role of the Crown Attorney, perhaps no more often quoted statement is that of Rand, J., in Boucher v. R., [1955] S.C.R. 16, at pp. 23-24: 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 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.”

Duties of prosecutor

In the case of R. v. Hauser (1977), 7 A.R. 89 (C.A.), the Alberta Court of Appeal stated at paras. 16 and 17: [16] “This function of the Attorney General is considered in a recent decision of the House of Lords in Attorney General v. Gouriet; Post Office Engineering Union v. Gouriet; Union of Post Office Workers v. Gouriet, [1977] 3 W.L.R. 300. The facts were that Mr. Gouriet as a citizen complained that the Post Office employees were detaining or delaying postal packets or messages between England and South Africa, and Gouriet applied for an Injunction to restrain the employees. The Attorney General had not consented to the proceedings, and took the position that Mr. Gouriet had no status in the Court, The Court of Appeal for England, in effect, said that if the Attorney General would not do his duty and consent to proceedings to prevent a breach of the nation’s law, the Court could, on the application of a citizen, intervene.

[17] The matter went to the House of Lords, where the decision of the Court of Appeal was overruled, but in the course of that decision, some observations which are germane to the matters at hand, and which relate to the function of the Attorney General are made. Viscount Dilhorne said that at P. 319: The Attorney General has many powers and duties. He may stop any prosecution on indictment by entering a nolle prosequi. He merely has to sign a piece of paper saying that he does not wish the prosecution to continue. He need not give any reasons. He can direct the institution of a prosecution and direct the Director of Public Prosecutions to take over the conduct of any criminal proceedings and he may tell him to offer no evidence. In the exercise of these powers he is not subject to direction by his ministerial colleagues or to control and supervision by the Courts.”

In the case of R. v. Burns (D.R.) (1993), 136 N.B.R.(2d) 166; 347 A.P.R. 166 (C.A.), the New Brunswick Court of Appeal stated: [13] “The duties of a prosecutor have been repeated time and time again, but every now and then, they are unfortunately overlooked to the detriment of a proper and fair administration of criminal justice. The case of R. v. Boucher, [1954] S.C.R. 16; 110 C.C.C. 263, is still the leading case which reviews these duties. In the present case, it was the duty of Crown counsel to assist the judge in seeing that the evidence, not only of his own witnesses, but those of the defence be presented before the court in a fair and impartial manner. The prosecutor is not the advocate of the complainant, but a public officer whose duty extends to all citizens, including the accused.”

Standard of conduct

In the case of R. v. Chan (A.H.) (2003), 334 A.R. 374 (Q.B.), the Crown preferred a direct indictment against several accused – The accused intended to seek a stay of proceedings, alleging abuse of process based on prosecutorial misconduct, or to move to quash the direct indictment based on an improper exercise of the Attorney General’s discretion in consenting to the indictment – The accused sought disclosure of correspondence between local Crown counsel and the Minister of Justice’s office and associated internal memoranda related to the preferment of the indictment – The Alberta Court of Queen’s Bench held that the accused had to meet a threshold requirement of a credible showing of flagrant impropriety before the court could enter into an abuse hearing based on prosecutorial misconduct or judicial review of the Attorney General’s preferment of the indictment – The accused’s evidence did not raise a tenable allegation of mala fides or a credible showing of impropriety on the part of the Crown or the Attorney General – Therefore, an assessment of the documents’ relevance was premature – See paragraphs 20 to 35.

In the case of R. v. F.S. (2000), 130 O.A.C. 41 (C.A.), the accused appealed his convictions on several sexual offences against his stepdaughter – The Ontario Court of Appeal allowed the appeal and ordered a new trial where Crown counsel’s conduct seriously prejudiced the accused – He personalized his role and injected his own credibility and belief into the case – His stated goal was to obtain a conviction and justice for the complainant – He was inappropriately sarcastic, flippant and disrespectful to the accused – His conduct was not moderate and impartial but improper and unfair – He also improperly attacked the accused’s credibility – He improperly misrepresented the accused’s evidence to the jury and the trial judge endorsed the misstatement – He invited the accused to explain why the complainant would make up the allegations then ridiculed the explanation – He also improperly asked the accused whether the complainant was a known liar. – See paragraphs 10 to 29.

In the case of R. v. Balchand (O.) (2001), 155 O.A.C. 132 (C.A.), the accused was charged with murdering Vickram’s wife – Defence counsel’s line of attack was designed to implicate Vickram as the killer – The Ontario Court of Appeal held that it was wrong for Crown counsel to focus on this line of attack and use it to portray the accused as a person without conscience, who would deliberately implicate an innocent man to save herself – It was also wrong for Crown counsel to place the accused in the position of having to call the police liars where her evidence differed from their evidence.

Conflict of interest

In the case of R. v. Lindskog (K.B.) (1997), 159 Sask.R. 1 (Q.B.), the accused was charged with sexual assault – The Crown prosecutor, Ritter, had represented the accused on a theft charge in 1993 when Ritter was a legal aid lawyer – The Saskatchewan Court of Queen’s Bench held that Ritter had a disqualifying conflict of interest that amounted to a breach of the accused’s right to a fair trial under ss. 7 and 11(d) of the Charter – However, the court held that the appropriate remedy was not to order a stay, but rather to remove Ritter as Crown counsel – Ritter had obtained information about the accused’s background and character and it would be an obvious conflict of interest for him to cross-examine the accused if the accused elected to testify – See paragraphs 37 and 38.

See, like the case of Barristers and Solicitors, more about the conflict of interest of the prosecutor.

Duty to call witnesses

In the case of R. v. Franks (1991), 4 B.C.A.C. 72; 9 W.A.C. 72 (C.A.), the British Columbia Court of Appeal stated that a prosecutor has a discretion to determine who should be called to testify for the Crown – The court added that it should not interfere with that discretion unless it be shown that the prosecutor has been influenced by some oblique or improper motive in the exercise of his discretion – See paragraph 13.

Law is our Passion

This entry about Prosecutor has been published under the terms of the Creative Commons Attribution 3.0 (CC BY 3.0) licence, which permits unrestricted use and reproduction, provided the author or authors of the Prosecutor entry and the Encyclopedia of Law are in each case credited as the source of the Prosecutor entry. Please note this CC BY licence applies to some textual content of Prosecutor, and that some images and other textual or non-textual elements may be covered by special copyright arrangements. For guidance on citing Prosecutor (giving attribution as required by the CC BY licence), please see below our recommendation of "Cite this Entry".

• APA
• MLA
• MLA 7
• CHICAGO
• OSCOLA

Usage Metrics

40 Views

Google Scholar: Search for Prosecutor Related Content

 

Schema Summary

This entry was last updated: February 13, 2017