2006: Martensville Nightmare won't go away Sask Prosecutors continue to defend their malicious prosecutions | Prosecutorial Misconduct Keeps on happening in 2006
Robert J. Frater of the Ontario Bar
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 -- inflammatory jury 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.
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. Boucher. 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 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 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.
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 incompetence. 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 a Crown counsel. 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.
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 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.
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 he/she thinking?" The nadir was reached in R. v. Kaufman, as this short extract of the cross-examination reveals:
The Court: Maître P., Maître 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. Cones 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: "[t]he accused was painted as a potential perjurer by reason of his silence on arrest".
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. The 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, 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, and 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?" Since this was recognized as improper by the Supreme Court of Canada 20 years before Boucher, its persistence is a source of interest. 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.
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 mistrial/retrial 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.
Here are some of the ways in which a prosecution may be inappropriately personalized:
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 11 in New York and Washington can be worked into a jury 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:
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.
Disclosure is a messy business. Notwithstanding the guidance to be gleaned from a number of Supreme Court decisions, august committees and policy manuals, the 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 to make proper disclosure may now have become the worst of a trial prosecutor's sins. Undoubtedly this is part of the legacy of the notorious wrongful conviction cases -- Marshall, Morin, Milgaard, Sophonow. Pretrial disclosure, it is safe to say, has become a minefield for the Crown. In recent times, the punishment for improper disclosure has moved beyond the entering of stays of proceedings at trial, or the quashing of a conviction on appeal, to include significant costs awards, and even, in Alberta, disciplinary proceedings before the law society. Even in the absence of disciplinary proceedings, tarnishing of your professional reputation is 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.
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 a number 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. Ahluwahlia, referred to in F., below, is the best example of this. Where Crown counsel have been most frequently deficient in this regard is in closing addresses to the jury: counsel that play fast and loose with the facts have been criticized.
Counsel also have to be extremely cautious in their ex parte dealings with courts, as illustrated by the Supreme Court decisions in R. c. Rendon; R. v. Curragh Inc.; and Canada (Minister of Citizenship & Immigration) v. Tobiass. The drive to seek efficiencies in the criminal justice system has undoubtedly increased our need to have out-of-court discussions with court officials, including judges: we must keep such necessary communications within appropriate bounds.
Finally, the recognition of the desirability of providing information to the media calls for care as well. Guarding against the possibility of causing prejudice to court proceedings is an ever-present concern.
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:
Question: What is a narcotics case without a Charter argument?
Answer: 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 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 or herself in the position where he/she 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 Doherty 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 itself 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 defence.
Crown counsel usually rely on the police to get to the bottom of investigative matters; Ahluwahlia 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. The 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. To some extent, this will involve thinking and acting like an investigator yourself.
The third example arises from the recent Supreme Court of Canada decision in Proulx c. Québec (Procureur général). Benoît Proulx had been convicted of murder but the Quebec Court of Appeal overturned the conviction and entered an acquittal. Proulx then launched the Quebec equivalent of a 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," 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.
To the overzealous prosecutor, the desire to punish is an irresistible urge. In the most notorious recent example, a series of extradition cases went south 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. For 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". 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 "[e]arly charge screening and case assessments are decisive points in the prosecution process and constitute cornerstones of the litigation policy". The courts too, are demanding that prosecutors bring manageable indictments before them.
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.
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.
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". 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.
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. Québec (Procureur général) 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,  1 S.C.R. 565, at para. 33. [Emphasis added.]
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 his/her 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 moment in time by a principle of accountability. 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 Media seeks 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 proceedings. 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.
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.