2006: Martensville Nightmare won't go away Sask Prosecutors continue to defend their malicious prosecutions | Prosecutorial Misconduct Keeps on happening in 2006
Crown prosecutors face many challenges in the exercise of their functions. Increasingly their conduct is being examined in light of the ethical obligations of other lawyers. Conflict of interest is one of those obligations.
This article examines the conflict of interest obligations of federal Crown prosecutors that flow from their role in the criminal justice system. Beginning with a brief description of the role of Crown prosecutors, the author then explores the legal and policy framework in which these obligations are described.
The ethical principles that govern prosecutors are all variations of the same rule of professional conduct: the prosecutor's duty is not to seek a conviction, but to see that justice is done.
Crown prosecutors are both public officials and lawyers who are subject to intense scrutiny by the public, law societies, the defence bar and the media. As representatives of the Crown, they are expected to be advocates on behalf of the state and obtain convictions of the accused who are guilty; they must also ensure that innocent persons are not convicted. It is this duality of role and duty which makes it difficult to articulate what ethical standards should apply to them as they carry out their duties in the criminal justice system.
While it is more common to have a discussion of conflict of interest and other ethical implications in the context of civil litigation or solicitor's work, ethical duties, including the consideration of conflict of interest implications, do arise for Crown prosecutors. Nevertheless, there are difficulties in establishing and defining the standards that apply to them as much of the emphasis is often placed on the perspective of defence counsel, the remedies of the accused or general platitudes on the public interest role of Crown prosecutors in the system of justice. Firstly, it is an area of legal ethics which is often understated and underestimated as a substantive body of knowledge and, while some academic writing is appearing, it is still a relatively new subject in Canada. Secondly, the information which exists is either designed for the private practitioner or is scattered in many different sources. There are general codes, statutes, rules, policies and an unwritten body of thought built up through custom and practice. Lastly, Crown prosecutors may be regulated by different bodies for the same issues, which makes it difficult to extrapolate general principles. The law societies regulate all lawyers by rules of professional conduct, which apply to Crown prosecutors, to varying degrees, as lawyers; on the other hand, there are employment standards and policies, which apply to Crown prosecutors as salaried employees of the Crown.
Crown prosecutors face conflict of interest dilemmas at three main levels. As public officials, they are expected to serve the public interest and the question arises as to what extent their role as guardians of the system of justice permits them to serve with impartiality and equanimity. As employees and public sector lawyers in a public service, they are expected to act with impartiality and independence, which creates dilemmas for them with respect to the receipt of gifts and benefits and engaging in outside activities such as publishing and teaching. Lastly, as members of the legal profession, who are subject to professional standards, they must decide to what extent they can play by the ordinary rules of the legal profession as advocates when they do not have a defined client in the traditional sense while at the same time they are expected by some to meet very onerous standards. The purpose of this article is to introduce the concept of conflict of interest in the context of federal public sector lawyering as it applies to Crown prosecutors in Canada. It is limited to the situation of federal Crown prosecutors. Beginning with a brief glimpse of the role of the Crown prosecutor, and using the federal Department of Justice as an example, Part B explores the role of the Crown prosecutor in the system of criminal justice. Part C looks at the different definitions of conflict of interest which help to set the standard by which Crown prosecutors are judged. Part D describes the sources for the standard in the federal Department of Justice manuals, policies, the Canadian Bar Association rules of professional conduct, the law society rules of professional conduct, federal statutes and the common law. Part E examines conflict of interest implications in the context of the professional duty of a lawyer (e.g., professional rules of conduct), public service employee (e.g., government and other policies) and public official (e.g., public duty). The conclusions are set out in Part F.
B. What is the Role of the Crown Prosecutor?
This role has been canvassed many times in legal literature and by the courts. It is defined as much by the cases on abuse of process and malicious prosecution suits as it is by statute. Some commentators have quite rightly urged ongoing scrutiny of comments which cloud the traditional understanding of this role:
Accepting, then, the centrality of vigorous yet fair partisan advocacy on the part of Crown counsel, it is necessary to understand the implications of this principle for standards of prosecutorial liability. It is here that the misunderstandings of Crown counsel's role, found in the literature on prosecutorial liability demonstrate their potential to skew the analysis of necessary standards of liability. For example Sossin commences from the starting premise that vigorous advocacy by the prosecutor, i.e., arguing for conviction on the facts of any given case, "tarnishes" the Canadian ideal of the prosecutor. Assuming there is sufficient evidence to warrant a trial, arguing firmly but fairly for conviction, far from tarnishing the ideal of Crown prosecutor, in fact defines it. Further, the two aspects of the dual role of Crown counsel, that of advocate for the prosecution and that of minister of justice, do not part company when the Crown vigourously seeks a conviction in a case where the evidence will support it. Both aspects of the role demand the same attention to needs of the adversarial process because it is both the partisan advocate for the prosecution and the impartial minister of justice who recognize that convicting the guilty where there is evidence to do so is a good thing, and something that should be properly pursued in accordance with the adversarial traditions and procedures that define the Canadian criminal trial.
The jurisdiction of the federal Attorney General of Canada to prosecute was clarified in 1969 with an amendment to the Criminal Code which permitted prosecutions for offences created under other federal statutes such as for tax evasion. Subsequently, the courts confirmed that whether or not the federal statute derived its constitutional authority under the Constitution Act, 1867, Parliament could give the Attorney General responsibility to prosecute.
Section 2 of the Criminal Code is a primary source for the authority of the Attorney General and the Crown prosecutor, which is defined to include "Attorney General":
(a) ... with respect to proceedings to which this Act applies, means the Attorney General or Solicitor General of the province in which those proceedings are taken and includes his lawful deputy, and
(b) with respect to the Yukon Territory, the Northwest Territories and Nunavut, or with respect to proceedings commenced at the instance of the Government of Canada and conducted by or on behalf of that Government in respect of a contravention of, a conspiracy or attempt to contravene, or counselling the contravention of, any Act of Parliament other than this Act or any regulation made under such an Act, means the Attorney General of Canada and includes his or her lawful deputy,
The federal Crown prosecutor is a lawyer acting on behalf of the Attorney General of Canada who serves the public interest. Expressions like "impartial arbitrator", "representative of the Attorney General", "delegated independence" and "minister of justice" are used frequently to describe their role. The duality is difficult to explain in terms which make it easily understandable. Mr. Justice Lamer (as he then was) in the leading Canadian case on malicious prosecution, Nelles v. Ontario, confirmed that:
The office of 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".
This role has been held to be distinct from, but supportive of the role of a police officer in that the duties of the police officer are "the preservation of the peace, the prevention of crime, and the protection of life and property".
As such, the Crown prosecutor performs a quasi-judicial function and high standards are expected of anyone holding the office. In some cases the Court has commented that the public is entitled to expect excellence. Crown prosecutors at both the provincial, territorial and federal levels of government are generally full-time public officials but legal agents, or part-time prosecutors from the private bar, are also used.
One singular feature which distinguishes Crown prosecutors from defence counsel and other members of the legal profession is that they do not have an identifiable client. This has been interpreted to mean that they have a shared duty both to the Court and to the public at large so that they can present any evidence that is available which may either exonerate or convict an accused.
Their employment status and role within the legal profession are different. The federal Crown prosecutor wears three hats -- lawyer, employee, public official. The leading case on the role of the federal prosecutor is Mr. Justice Rand in R. v. Boucher where he stated:
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 performed with an ingrained sense of the dignity, the seriousness and the justness of the judicial proceedings.
However, there are also similarities to other members of the legal profession. A Crown prosecutor can be called as a witness like any other lawyer and can claim solicitor-client privilege for communications to officials in government agencies and investigative agencies.
Gavin MacKenzie, in his text, Lawyers and Ethics, Professional Responsibility and Discipline, describes the prosecutor's duty as follows:
The prosecutor's duty to ensure that an accused person receives a fair trial heightens the prosecutor's duty of care. Prosecutors must take reasonable steps to assess the truth or falsity, and not just the plausibility, of evidence that they lead; they must not lead evidence that they know, or ought to know, is false. They must personally confirm the truth of statements that they make to the court. Prosecutors who are reckless as to the truth of such statements violate their duty to do justice.
Ethics still remains a part of the professional responsibility for all lawyers. Often described as "knowing the right thing to do", it remains a highly regarded standard of the legal profession. While there is no standard for what constitutes "integrity", there are those who have asked if it is time to introduce integrity testing for lawyers.
The role of the Crown prosecutor, more so than is the case for other lawyers, is a direct link to public confidence in the criminal justice system. Their work is highly visible and is always in the public eye. They are expected to be fair while others can be partisan. Much has been written about the role of the Crown prosecutor but surprisingly the professional rules of conduct of the various law societies do not contain a lot of guidance with respect to conflict of interest for these public sector lawyers. Ideally, the debate should begin with an examination of the source for ethical guidance. Is this something that a lawyer knows instinctively, as an innate sense of right or wrong, or does it come with experience and sound reasoning together with access to professional standards? Most have concluded that good ethical conduct begins with a highly motivated public sector lawyer who wants to see that justice is done:
It is not unwarranted for society to demand that ethical standards be applied to prosecutors. The public has invested prosecutors with almost total discretion in the performance of their duties. Although there has been considerable discussion in recent years to limit prosecutorial discretion, society, the legislatures, and the courts generally recognize that an attempt to provide guidelines, standards, or limitations on prosecutorial discretion is a difficult, if not impossible, task. Legislatures and courts have consistently backed away from attempts to codify any limitation on the prosecutor's discretion, recognizing that the most effective limitation on the exercise of discretion is a professionally responsible prosecutor.
By tradition, there is usually tremendous deference by the courts to the Crown prosecutor's role. The reasons are obvious. The courts recognize that decisions and actions of Crown prosecutors should not easily be open to review and scrutiny or otherwise the courts would be second-guessing the discretion they exercise on behalf of the Attorney General. Motions for disqualification and suits for malicious prosecution would be encouraged, thereby paralysing them.
There are signs that this judicial reluctance is changing. Crown prosecutors are again expressing anxiety over the increase in suits for malicious prosecution and the possibility of the courts recognizing a constitutional tort for an alleged breach of the Charter when criminal proceedings are instigated. Arguments are also surfacing in the cases more frequently that Crown counsel have acted improperly in the conduct of the case during the court proceedings, which may jeopardize the trial and lead to allegations of apprehension of bias on the part of the trial judge, non-disclosure or that there has been an abuse of process. In some cases there is concern about the intrusion into the employment status of Crown prosecutors through the threat of disciplinary proceedings before the law society. New causes of action have been advanced by accused. Lastly, according to some, the traditional ethical duties, such as solicitor-client privilege and the duty of confidentiality, are under siege.
These trends are worrisome. Because of their role in the criminal justice system and, in particular, the expectations of the public, Crown prosecutors are more likely to be held to a higher standard with respect to their conflict of interest obligations, which will now be explored further below. Without specific guidance in the form of a separate code of ethics, it is very difficult to modify behaviour and meet expectations.
C. What is Conflict of Interest?
First, the theory. Conflict of interest is an expression which is very much tied to a context and, for many, difficult to grasp. There are those for whom it remains a highly theoretical and esoteric approach which has little practical significance. In many cases the standard by which conduct is evaluated is the appearance of impropriety, which may result in a highly subjective and arbitrary standard of review.
Academic writing on the subject is a useful source of inspiration. A better approach for lawyers generally, according to some commentators, is to use the expression "conflict of duty". Paul Perrell describes this latter approach as follows:
On the theme of duty, conflicts of interest may be more easily understood and more accurately described by substituting for the word "interest" in the phrase "conflict of interest" the word "duty" where duty includes both responsibilities to others and a notional responsibility to self- interest. Thus, a conflict of interest is a conflict of duty, and for lawyers, conflicts of interest are problems of discordant or incompatible duties.
There are two themes which emerge from these observations. However one chooses to describe this conduct it is usually the case that differing interests are at the heart of the problem. Secondly, while the appearance of conflict of interest is easy to allege, the consequences for any lawyer who is the subject of such an allegation, are serious. Many find the concepts difficult to grasp. It is helpful if a distinction is made between "conflict of interest", "ethics" and "values". Values are viewed as "enduring beliefs that influence attitudes, actions, and the choices we make .... A choice between values does not always involve a choice between right and wrong." For example, a value in the government context is that the public service should be non-partisan.
Ethics describes the general principles or standards of good conduct, which help to influence choices as to what is right or wrong or morally good or bad.
The professional conduct rule requiring a lawyer to act with integrity means in practice that a lawyer must not only act ethically, but must come to the "right" or "correct" ethical choice as determined by the lawyer's peers based upon their collective race or professional experience. Thus in the profession, there is the anomalous situation where there is a legal rule, in the form of a professional conduct rule, requiring members to obey an "ethical" rule. This in turn is no more than a duty to make moral judgements based upon sound, but undefined moral principles. The failure to do so is a disciplinary offence.
The basic contradiction for lawyers is that ideally ethics should be based on choice, rather than prescribed by rules. This creates some difficulty because there will always be a problem with definition and application. Ethical choices are usually choices by conscience. When you are choosing between what is morally good or bad, right or wrong, you may have to rely on intuition or reflection and experience. This can result in demanding, difficult decision-making. The subject of values and ethics has attracted a lot of interest in the last few years in the Canadian federal public service. A study team, chaired by the former Deputy Minister of Justice, John C. Tait, Q.C., explored many of the issues facing public servants in the world of downsizing, re-engineering and other change. Mr. Tait's group identified four core values of the public service -- democratic (e.g., helping Ministers to serve the common good); professional (e.g., excellence, professional competence, merit, economy, objectivity and impartiality in providing advice); ethical (e.g., integrity, honesty, impartiality, selflessness); people (e.g., courage, moderation, decency, balance, humanity, respect, civility, tolerance).
As mentioned earlier, a Crown prosecutor is both a public official and a lawyer. Part of the difficulty in discussing conflict of interest obligations for Crown prosecutors is first establishing what standards are expected of a prosecutor and then applying them to that individual's situation. Their responsibilities play out against a much broader landscape than would be the case for other members of the legal profession. An understanding of what is meant by conflict of interest can occur in two main ways. There are codes of professional conduct for lawyers and codes of behaviour for public sector employees. However, a definition in a code may not help to the extent that the final determination may be subjective and heavily dependent on one's judgment. Another way of establishing a common understanding will be if there is a motion for disqualification before a court to remove a lawyer from a case, disciplinary action by a law society or disciplinary action by the employer.
Conflict of interest arises in different contexts for the public service lawyer, as noted previously. It is both a subset of legal ethics and an obligation of a public official to act independently and fairly. In the public sector it is the set of standards, as set out in the Treasury Board Conflict of Interest and Post-Employment Code for the Public Service, which govern the intermingling of public duty and private interests. The general principle is that a public servant should not use his or her public office for private gain and he or she should act in the public interest. Therefore, the Treasury Board Code has specific provisions with respect to gifts, disclosure of assets, preferential treatment and post-employment rules. The Treasury Board Code, unlike the rules of professional conduct, does not contain a definition of "conflict of interest". There are general principles set out in section 6 which emphasize that public servants must remain fair and impartial and therefore refrain from using public office for private gain. By implication the essential ingredient to establish a conflict of interest is "incompatibility".
On the other hand, it does refer to real, potential and the appearance of conflict of interest. There is an obvious crossover between the professional rules of conduct for lawyers and the Treasury Board Code which is useful in establishing a common understanding of real or actual conflict of interest.
Commissions of inquiry have also looked at the issue. As part of the Stevens Inquiry, which was set up to look at alleged impropriety of a federal Cabinet Minister in the context of his conflict of interest obligations, Mr. Justice Parker set out the following criteria for the existence of a real conflict of interest: 1. the existence of a private interest; 2. that is known to the public office holder; and 3. that has a connection or nexus with his or her public duties or responsibilities that is sufficient to influence the exercise of those duties or responsibilities.
In addition, Mr. Justice Parker indicated that this does not require only a divergence of interests. It applies as well when interests coincide. In other words, a conflict of interest may arise whether or not you have an opposing interest. Plea-bargaining could be an example of this. The Crown prosecutor and defence counsel may agree that a case should be resolved expeditiously but plea-bargaining could compromise the public interest if used for the wrong reason.
Appearance of conflict of interest is more difficult to define. There are few cases on point. It is analogous to the principle that justice must not only be done, it must be seen to be done. An appearance of conflict of interest may exist, according to Mr. Justice Parker, even if there is no real conflict. Mr. Justice Parker also took exception to the proposition that the requirements of the criminal law should be used in the interpretation of conflict of interest guidelines: I do not believe it is appropriate to impose by analogy or otherwise the requirements of criminal law upon conflict of interest guidelines. Indeed, I note that the criminal law itself has carved out an exception to the doctrine of mens rea in the area of breach of trust by public office holders. In R. v. Campbell, (1967) 3 C.C.C. 250, the Ontario Court of Appeal found that even under a Criminal Code prosecution for breach of public trust, full mens rea or wilful blindness was not required, and that in certain circumstances ordinary negligence was sufficient to establish the criminal offence. If knowledge or intention is not required in related prosecutions under the criminal law, it surely cannot be a prerequisite for the application of conflict of interest guidelines.
Accepting the definition set out in R. v. Valente (No. 2) by the Supreme Court of Canada, Mr. Justice Parker concluded that the definition for an appearance of conflict of interest is as follows: An apparent conflict of interest exists when there is a reasonable apprehension, which reasonably well-informed persons could properly have, that a conflict of interest exists. With respect to potential conflict of interest Mr. Justice Parker went on to describe it as:
Where the public office holder finds himself or herself in a situation in which the existence of some private economic interest could influence the exercise of his or her public duties or responsibilities, the public office holder is in a potential conflict of interest provided that he or she has not yet exercised such duty or responsibility. As soon as the telephone call is placed, or the meeting convened, or the questions answered, or the letter drafted, a duty or responsibility in public office has been exercised, the line between potential and real has been crossed.
In the case of Crown prosecutors, the conflict of interest is usually not one of balancing public duty and private gain. On the contrary, incompatible interests may be at stake because of the difficult role they have in the system of justice and the competing interests they must weigh. This is usually referred to as an inherent conflict in the role of the Crown prosecutor. In other words, is the duty of the Crown prosecutor to seek a conviction or to see that justice is done? How far can advocacy go? This is a "conflict of interest" which may never be resolved and it will be discussed later in this article.
Most jurisdictions, including the federal Department of Justice, are beginning to develop more comprehensive policies with respect to conflict of interest and other ethical issues in light of the changing nature of the practice of law and the evolving case law. It is timely to now highlight some of the main sources which are relevant to the federal Crown prosecutor's practice.
D. Some Sources for Guidance There is no one single, comprehensive guide which brings together a set of standards for the Crown prosecutor. However, there are several sources for guidance, including law society legislation and rules of professional conduct, federal legislation, internal manuals, policies and the common law.
1. Law Society
As a federal public sector lawyer, a Crown prosecutor is required to maintain a practising status with a provincial or territorial law society as a condition of employment. Nor is there a formal federal "bar" or association which would be the equivalent to a law society for them. By default, and because each law society has specific provisions with respect to conflict of interest, federal Crown prosecutors look to these rules for guidance. The most common definition which one finds is that which is in the various law society texts, which is similar to that of the Canadian Bar Association's Code of Professional Conduct:
A conflicting interest is one that would be likely to affect adversely the lawyer's judgment or advice on behalf of, or loyalty to a client or prospective client.
There are three main limitations to the using law society rules as comprehensive standards.
Unfortunately, many of the professional rules of conduct which apply specifically to criminal litigation are written from the point of view of defence counsel and the private sector lawyer. However, the CBA Code does refer specifically to the duties of a prosecutor in Chapter IV, "The lawyer as Advocate". Therefore, for the public service lawyer, conflict of interest is part of both the ethical standards of the public service and the professional rules of conduct. Law societies are recognizing the special duties and obligations of Crown prosecutors. A recent revision to the rules of professional conduct by the Law Society of Upper Canada in Ontario did attempt to take into account the views of Crown prosecutors and the defence bar.
It is also unclear the degree to which a law society should or can regulate the conduct of public sector lawyers, including discipline. The Alberta Court of Appeal recently concluded that the Law Society of Alberta cannot review the decisions of the Attorney General, which in this case included the obligation of the provincial Crown prosecutor to disclose certain information to defence counsel. The Court noted that the provincial Attorney General had followed its own disciplinary process in resolving the matter.
Lastly, while some jurisdictions have legislation in place which provides a general framework for the conduct of prosecutors, the rules with respect to outside activities are generally found in the rules of professional conduct, policies or guidelines.
2. Manuals and Policies
At the federal level prosecutors can obtain guidance from the Department of Justice Act, the Treasury Board Code, the law society professional rules of conduct, manuals and the various policies which have been developed in the Department. The purpose of the manuals is to provide information about how to do the work, to provide general guidance on standards and to elaborate upon the role of the public sector lawyer in a criminal litigation context.
Most jurisdictions, including the Department of Justice, are beginning to develop more comprehensive policies with respect to conflict of interest and other ethical issues in light of the changing nature of the practice of law and the evolving case law.
(1) The Federal Prosecution Service DeskBook (2000)
A deskbook, first developed as a manual in 1993, and which is made available publicly, provides a useful compilation of the prosecution policies of the Attorney General of Canada.
As mentioned previously, it is crucial that lawyers be able to understand fully and articulate their role as Crown prosecutors before they can make decisions relating to conflict of interest.
In the preface to the Federal Prosecution Service Deskbook, Mr. Daniel Bellemare, Assistant Deputy Attorney General (Criminal Law) provided the following guidance:
To ensure public confidence in the administration of criminal justice, prosecutorial discretion must be exercised in a way that is objective, fair, transparent and consistent. However, those large discretionary powers carry heavy responsibilities for Crown prosecutors. Morris Rosenberg, the Deputy Minister of Justice, expressed this reality in June 2000 during the XXth Annual FPS Conference in these words:
Carrying out the duties of a prosecutor is difficult. It requires solid professional judgement and legal competence, a large dose of practical life experience and the capacity to work in an atmosphere of great stress. Not everyone can do this. Moreover, there is no recipe that guarantees the right answer in every case, and in many cases reasonable persons may differ. A prosecutor who expects certainty and absolute truth is in the wrong business. The exercise of prosecutorial discretion is not an exact science. The more numerous and complex the issues, the greater the margin for error.
In the section on "The Duties and Responsibilities of Crown Counsel" the following appears:
(i) Conflicting Policies and Conflict of Interest
Crown counsel are not employed by the departments and agencies to which they provide legal advice. At all times, counsel remain representatives of the Attorney General of Canada. Counsel should be aware that policies of the Attorney General may conflict with those of the departments and agencies. Conflicts could, for example, arise between a department's enforcement policy and the Attorney General's prosecution policy.
Crown counsel shall at all times comply with the policies of the Attorney General. If policies conflict, counsel shall advise the department or agency of the conflict and resolve the matter under the usual consultation process established for resolving conflicts. Counsel should also be careful to avoid a conflict of interest or the appearance of a conflict of interest. An easily identifiable conflict of interest may arise where, for example, counsel prosecutes a former client. However, conflicts of interest may also arise due to the structure or organization of government.
For example, a conflict may arise where there is a recommendation for prosecution by one government department against another government department, both of whom, from time to time, are represented by the Department of Justice. If this occurs, Crown counsel should advise the Regional Director who will consider whether it would be more appropriate to retain counsel from the private sector, as agent of the Attorney General of Canada, to review the evidence, provide advice on the charges, and conduct any resultant prosecution.
(2) Policy on Legal Agents
Some of the conflict of interest issues facing Crown prosecutors arise in the context of legal agents. Legal agents are lawyers from the private sector who are appointed on a standing (long term) or ad hoc (temporary) basis to act on behalf of, and in the interests of, the Attorney General of Canada. They are used in both civil and criminal proceedings. The Department of Justice policy on legal agents is now fully set out in the DeskBook (2000). Many of the common law rules that have been developed on conflict of interest for defence counsel are relevant as the legal agents usually act as counsel for accused in their other work. These cases will be referred to later on in more detail.
Conflict of interest is important for legal agents, as it is for public servants, because of their individual role as members of the private sector and their professional role as lawyers.
It is crucial that legal agents understand the importance of the principle of independence of the Attorney General, the public interest and the professional competence of the individual lawyer. Conflict of interest is brought to the attention of legal agents mainly through the terms and conditions of their appointment. The Terms and Conditions of Appointment of Agents are incorporated into the appointment letter and the agent signs an acknowledgement of receipt and also agrees to specific terms and conditions, which govern the appointment.
Section 5 of the Terms and Conditions states as follows: You should be aware of, and conduct yourself in compliance with, the provisions of the Conflict of Interest and Post-Employment Code for Public Office Holders, the Supreme Court of Canada's decision in and the provisions of the Criminal Code respecting Offences Against the Administration of Law and Justice (Part IV) and, in particular, section 121 (influencing public employees).
Should you acquire an interest or appear to do so, you must immediately advise your supervisor. Accordingly, you must take all necessary steps to avoid a conflict of interest or the appearance of a conflict of interest in your work as an agent of the Attorney General, and you should have a thorough understanding of the provisions in the Crown Counsel Policy Manual which deal with the issue. Please note that it would be deemed a conflict of interest for you or your firm to conduct defence work anywhere in prosecutions under the statute(s) for which you are appointed a standing agent for the duration of your appointment.
However, the Assistant Deputy Attorney General (Criminal Law) could permit exceptions in special cases. Special consideration will be given, on a case by case basis, where your firm has already been retained to handle one or several cases at the time of your appointment that would or may fall within the ambit of the conflict of interest provision.
There has been further elaboration of section 5 in guidelines developed by the Department, Conflicts of Interest Policy for Standing Agents-- Guidelines for its granting of exemptions by its Assistant Deputy Attorney General (Criminal Law). These Guidelines address the issue of a deemed conflict of interest: The deemed conflict of interest arises from the imminent appointment of the lawyer/firm as a standing agent of the Attorney General of Canada and in circumstances where it is not practicable to postpone the appointment for a period of time to allow the conflict to be resolved.
This section is complex because it combines a variety of responsibilities under one title, conflict of interest, including:
. the individual responsibility of the lawyer as an appointee to declare any personal interest in the file whereby this personal interest would result in private benefit to the detriment of the public interest;
. the responsibilities under the Criminal Code with respect to influence peddling, bribes, breach of trust and frauds against government generally;
. the standards expected of Crown prosecutors as set out in the DeskBook (2000);
. the guidelines on a deemed conflict of interest as discussed above;
. the professional standards as developed in the case law in Martin v. Gray and which discussed the issue of the transfer of relevant and confidential information when a lawyer left a firm to join another was prejudicial to the interests of the client.
(a) Department of Justice Act It is the Department of Justice Act that provides the framework for the legal organization of the Department within government and describes the role of the Minister and Attorney General for Canada in general terms. First passed in 1868, it incorporates by reference, but only to the extent to which it applies in the Canadian context, the role of the Attorney General of England. Noticeably brief, as is the case for the related provincial equivalents, the statute provides a general overview.
Sections 4 and 5 of the Department of Justice Act are the most relevant sections for the purposes of this article. Section 4 sets out the duties and responsibilities of the Minister of Justice; section 5 is the parallel provision for the Attorney General. Section 4 provides that the Minister of Justice is the official legal advisor of the Governor General and the legal member of Cabinet who shall:
(a) see that the administration of public affairs is in accordance with law;
(b) have the superintendence of all matters connected with the administration of justice in Canada, not within the jurisdiction of the governments of the provinces;
(c) advise on the legislative Acts and proceedings of each of the legislatures of the provinces, and generally advise the Crown on all matters of law referred to the Minister by the Crown; and
(d) carry out such other duties as are assigned by the Governor in Council to the Minister.
The description of the roles and responsibilities of the Attorney General is found in section 5:
5. The Attorney General of Canada
(a) is entrusted with the powers and charged with the duties that belong to the office of the Attorney General of England by law or usage, in so far as those powers and duties are applicable to Canada, and also with the powers and duties that, by the laws of the several provinces, belonged to the office of attorney general of each province up to the time when the Constitution Act, 1867, came into effect, in so far as those laws under the provisions of the said Act are to be administered and carried into effect by the Government of Canada;
(b) shall advise the heads of the several departments of the Government on all matters of law connected with such departments;
(c) is charged with the settlement and approval of all instruments issued under the Great Seal;
(d) shall have the regulation and conduct of all litigation for or against the Crown or any department, in respect of any subject within the authority or jurisdiction of Canada; and
(e) shall carry out such other duties as are assigned by the Governor in Council to the Attorney General of Canada.
(b) Parliament of Canada Act Members of the Senate and House of Commons are subject to specific rules as set out in the Parliament of Canada Act. Unlike the situation for federal public servants, there is no general code for conflict of interest for federal Members of the House of Commons or the Senate. They are governed mainly by statute, the rules of procedure, their own conscience and the inherent jurisdiction for governance of the Speakers.
These rules are important for Crown prosecutors to keep in mind if constituents complain to their Member of Parliament of if Members of Parliament want to speak to a Crown prosecutor about a case. Given the duality of the role of the Minister as Minister of Justice and Attorney General for Canada, it may also be the case that Crown prosecutors may be privy to information about Bills before Parliament. Sections 32 to 41 of the Parliament of Canada Act apply specifically to members of the House of Commons.
For example, section 38 provides that every contract with the federal government must contain a clause which stipulates that no member of the House of Commons can be a party to a contract or share in, or be part of, the benefits of a contract. Sections 14 to 16 of the Parliament of Canada Act apply to Senators.
A member of the Senate cannot be a party to a government contract or receive compensation as a result of the contract. Rules regulating the conduct of the members of the House of Commons and the Senate can be found in the Standing Orders of the House of Commons and the Rules of the Senate of Canada. These rules are silent on the issue of conflict of interest.
(c) Lobbyists Registration Act
In addition to the Lobbyists Registration Act, which was first enacted in 1988, and which governs communications by individuals (including lawyers) with federal public office holders in an attempt to influence government decisions, the federal Ethics Counsellor introduced a Lobbyists Code of Conduct. There are three categories of lobbyists for the purposes of the Act -- consultant lobbyists, in-house lobbyists (corporate) and in-house lobbyists (organizations). Disclosure is required for all lobbyists but the degree of disclosure varies. The activities which must be disclosed include the development of federal legislation and regulations, the award of a contract or arranging a meeting if the activity is for payment and on behalf of a client in the case of consultant lobbyists. The Lobbyists Code of Conduct supplements the Act and sets out ethical standards similar in tone and content to a lawyer's rules of professional conduct. Transparency, confidentiality and conflict of interest are discussed as general principles. Conflict of interest rules are as follows:
1. Competing interests
Lobbyists shall not represent conflicting or competing interests without the informed consent of those whose interests are involved.
2. Disclosure Consultant
Lobbyists shall advise public office holders that they have informed their clients of any actual, potential or apparent conflict of interest, and obtained the informed consent of each client concerned before proceeding or continuing with the undertaking.
3. Improper influence
Lobbyists shall not place public office holders in a conflict of interest by proposing or undertaking any action that would constitute an improper influence on a public office holder. These rules are relevant to the extent that anyone who has dealings with a federal public servant, including federal Crown prosecutors, should be aware of them if they lobby the government for changes to legislation or make a job offer to someone who is still employed with the federal Crown. It is now common for law firms, for example, to be registered as lobbyists whose mandate may be to approach the Minister of Justice and attorney General of Canada on a range of issues affecting the criminal justice system.
(d) Criminal Code The Criminal Code is important. It is one of the principal statutes under which the role of the Attorney General in the criminal justice system is set out and there is a specific section which applies to the conduct of public officials. Federal Crown prosecutors do not generally handle prosecutions under this statute. The Criminal Code also contains a specific section on public officials and what is referred to as "frauds against government" and therefore it governs the behaviour of Crown prosecutors as public officials. Bribery and influence peddling are examples of the types of offences which are found in this section of the Criminal Code.
There are two points to note here. Normally, because of the division of jurisdiction between the federal and provincial levels of government, it is the provincial Attorney General who is responsible for prosecutions under this section. Where federal public servants are charged with an offence under section 121, the prosecution would be handled by the provincial Attorney General. There have been a number of cases in recent years where the courts have looked at the role of public officials and their interaction with the private sector under section 121. Recent cases, including R. v. Fisher, R. v. Hinchey and R. v. Cogger have highlighted the need for all public servants, including Crown prosecutors, to be aware of and understand, the implications of a receipt of benefits by a public servant from a member of the private sector and these will be discussed later in Part E.
(4) Common Law There are still very few reported criminal cases on conflict of interest which involve the Attorney General. Much of the case law still focuses on allegations of abuse of process, malicious prosecution or professional misconduct. From time to time institutional conflict of interest surfaces as an issue and it will be dealt with briefly here.
Since the role of the Attorney General is to provide legal advice and to conduct litigation on behalf of the Crown, it is the Attorney General who is perceived to be the guardian of the public interest. However, the role of the Minister of Justice and the Attorney General for many poses an "institutional conflict of interest". Much of the discussion on this issue is the result of the dual role of the Minister -- on the one hand, the Minister of Justice develops policy proposals for legislation and provides legal advisory services to the federal Crown; on the other hand it is the Attorney General of Canada who must exercise his or her responsibilities in an independent matter and in the public interest. The principle which has been developed to describe the dual role of the Minister of Justice, as a member of the House of Commons and Cabinet, and the Attorney General of Canada, was first articulated by the Attorney General of England, Sir Hartley Shawcross, in 1951: I think the true doctrine is that it is the duty of an Attorney-General, 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. In order so to inform himself, he may, although I do not think he is obliged to, consult with any of his colleagues in the Government; and indeed, as Lord Simon once said, he would in some cases be a fool if he did not.
On the other hand, the assistance of his colleagues is confined to informing him of particular considerations, which might affect his own decision, and does not consist, and must not consist in telling him what that decision ought to be. The responsibility for the eventual decision rests with the Attorney General, and he is not to be put, and is not put, under pressure by his colleagues in the matter. Nor, of course, can the Attorney General shift his responsibility for making the decision on to the shoulders of his colleagues. If political considerations which, in the broad sense that I have indicated, affect government in the abstract arise, it is the Attorney General, applying his judicial mind, who has to be the sole judge of those considerations. This issue of "institutional" conflict of interest has been before the courts on several occasions.
The discussion has not been limited to the role of the Attorney General of Canada. Military justice came before the Supreme Court of Canada in R. v. Généreux. An accused, who faced several charges under the Narcotic Control Act, and desertion, argued that he had not received a fair and impartial trial before the General Court Martial, a military tribunal. Many of the arguments put forward by the accused focused on the appointment and tenure of the members of the tribunal and the structure of the tribunal. Legislative changes to the National Defence Act were implemented with the result that a new office, the Director of Public Prosecutors was created, and the role of the Office of the Judge Advocate General was clarified.
The Director of Public Prosecutors is not a Department of Justice lawyer and is responsible for preferring of all charges and the conduct of all prosecutions before the court martial. While the Judge Advocate General acts as legal advisor to the Governor General, the Minister of National Defence, the department of National Defence and the Canadian Forces "in matters relating to military law", section 10.1 specifies that this authority "is not in derogation of the authority of the Minister of Justice and Attorney General of Canada under the Department of Justice Act".
As a second example, this expression is also used to describe the dual role that a Minister of Justice has as both Minister of Justice and Attorney General for Canada. In essence the Minister wears two hats. However, the courts have consistently disallowed litigants to use this as a mechanism to successfully claim the existence of a conflict of interest.
The case of Winn v. Canada is an example. The respondent, the Attorney General of Canada, refused to prosecute certain offences under the Canadian Human Rights Act. The Canadian Human Rights Commission had found that the National Research Council had engaged in discriminatory practices against the plaintiff, Dr. G. The applicant was a friend of Dr. G. and applied to the Attorney General for consent to initiate criminal proceedings. The applicant maintained the Attorney General would be in a conflict of interest should consent to prosecute be refused.
The Attorney General's counsel had represented the National Research Council before the Human Rights Tribunal. The Attorney General consulted outside counsel, who concluded it was not appropriate to provide consent. The Attorney General waited until the Tribunal had provided its decision and the same outside counsel reviewed the issue of providing consent a second time, reaching the same conclusion.
The Court concluded there was no conflict of interest because there was no special relationship between the Attorney General of Canada and the National Research Council and, moreover, there was no apprehension of bias. A second case of interest is Idziak v. Canada (Minister of Justice). This was an extradition case. The appellant asked the Minister of Justice to refuse to exercise discretion under section 25 of the Extradition Act. In accordance with section 25 and the provisions of the treaty in force at the time, the Minister had the discretion to allow the individual to remain in Canada.
The Minister's decision would be based on three conditions:
1. if the foreign prosecution was politically motivated;
2. if the individual was subject to measures in the Canadian justice system; or
3. if, after a request by Canada to the foreign jurisdiction not to seek the death penalty, the foreign jurisdiction refused to provide a guarantee to this effect. However, the Minister signed the warrant to surrender to return him to United States authorities. The United States wanted to extradite the appellant to face charges of participating in a conspiracy. The Supreme Court of Canada dismissed the appeal and supported the Minister's interpretation of section 25.
The Court recognized the dual role of the Minister of Justice but did not agree that there was actual bias or a perceived apprehension of bias: The appellant contends that a dual role has been allotted to the Minister of Justice by the Extradition Act. The Act requires the Minister to conduct the prosecution of the extradition hearing at the judicial phase and then to act as adjudicator in the ministerial phase. These roles are said to be mutually incompatible and to raise an apprehension of bias on their face. This contention fails to recognize either the clear division that lies between the phases of the extradition process, each of which serves a distinct function, or to take into account the separation of personnel involved in the two phases.
It is correct that the Minister of Justice has the responsibility to ensure the prosecution of the extradition proceedings and that to do so the Minister must appoint agents to act in the interest of the requesting state. However, the decision to issue a warrant of surrender involves completely different considerations from those reached by a court in an extradition hearing.
The extradition hearing is clearly judicial in its nature while the actions of the Minister of Justice in considering whether to issue a warrant of surrender are primarily political in nature. This is certainly not a case of a single official's acting as both judge and prosecutor in the same case. At the judicial phase the fugitive possesses the full panoply of procedural protection available in a court of law. At the ministerial phase, there is no longer a lis in existence. The fugitive has by then been judicially committed for extradition. The Act simply grants to the Minister a discretion as to whether to execute the judicially approved extradition by issuing a warrant of surrender. Institutional conflict of interest also arises in a different setting.
On the basis that the federal Crown is not above the law, the Attorney General may prosecute another arm of government, usually in the case of regulatory offences. These situations are referred to as "R. v. R." Solutions to the problem have been found. In the case of federal prosecutions, the Department of Justice has developed a policy for the conduct of these prosecutions, which includes among other measures, the appointment of a legal agent from the private bar.
Facing the existence of institutional conflict of interest, the federal Crown has responded with legislative change (military system of justice), by fashioning a remedy through the courts (extradition) and implementing policy changes. It is now time to further explore the sometimes conflicting roles of a Crown prosecutor, and the solutions that have been identified in response.
E. "The Three Hats"
The Crown prosecutor wears different hats as professional lawyer, employee and public servant. Difficult to reconcile, the standards which apply to each of these three roles will now be discussed in more detail.
1. Crown Prosecutor and Professional Lawyer Obligations Conflict of interest is found in all of the provincial and territorial rules of professional conduct and the CBA Code. Paul Perrell, in his book "Conflict of Interest in the Legal Profession" summarizes the rule succinctly: A common or unifying theme for the various classes of conflicts of interest is the theme of divided loyalties and duties. This theme is recognized by the rules of professional conduct. For example, in Ontario's Rules of Professional Conduct, Commentary 1 to Rule 5 (Conflict of Interest) defines a conflicting interest as follows:
1. A conflicting interest is one which would be likely to affect adversely the lawyer's judgment on behalf of, or loyalty to a client or prospective client, or which the lawyer might be prompted to prefer to the interests of a client or prospective client. Commentary 3 to this rule focuses on loyalty and duty, and states:
3. Conflicting interests include but are not limited to the financial interest of the lawyer or an associate of the lawyer, and the duties and loyalties to any other client, including the obligation to communicate information. When there is a conflict of interest, the lawyer is pulled between loyalty and duty to the client and loyalty and duty to oneself, or to family, partners, associates, other clients, or to the administration of justice.
On the theme of duty, conflicts of interest may be more easily understood and more accurately described by substituting for the word "interest" in the phrase "conflict of interest" the word "duty" where duty includes both responsibilities to others and a notional responsibility to self-interest. Thus, a conflict of interest is a conflict of duty, and for lawyers, conflicts of interest are problems of discordant or incompatible duties. When a client complains that a lawyer had or has a conflict of interest, the complaint more precisely is that the lawyer did not perform or will be unable to perform a professional duty owed the client because of some opposing or contradictory duty. Thus, a discussion of the general principles about conflicts of interest requires an inventory of the duties lawyers owe to clients and others.
Two comments are noteworthy here. The peculiar dilemma in conflict of interest situations for Crown prosecutors is that they have no identifiable client and the courts have therefore had to articulate the appropriate ethical standards by analogy. In some cases this has resulted in some confusion, which has led to different results and, in some cases, the imposition of high standards for those charged with the public duty inherent in a criminal prosecution. Secondly, it is one of those rare situations where the accused's right to counsel must give way to an ethical duty. This is so for two reasons. The courts have recognized the importance of the rules of professional conduct as a statement of public policy and, in the case of Crown prosecutors, their objectivity and impartiality lies at the heart of their independence. Competing duties, in the nature of actual, apparent or potential conflict of interest, would contradict that fundamental principle.
(1) What Rules Apply?
The basic factors which the courts have recognized in a civil context as giving rise to a conflict of interest, and which can give rise to disqualification of the lawyer, are as follows:
1. the exchange of confidential information
2. the existence of a solicitor-client relationship
3. prejudice to the solicitor-client relationship if the information is used. It is often taken for granted that the rules for civil and criminal cases are the same even though the role of the Crown prosecutor is distinct within the legal profession.
There is in fact little discussion in the cases as to whether the rules should be different in a criminal case and in at least one case the Crown not only argued that Martin v. Gray could not be applied in a criminal case but that a prosecutor is not an advocate.
Two cases from the Province of Quebec and one from Alberta should be noted. In R. v. Joyal the Quebec Court of Appeal reviewed conflict of interest implications for a legal agent acting on behalf of the Attorney General of Canada. While this case preceded Martin v. Gray, the outcome would probably have been the same, applying the three factors noted above. The legal agent had represented the accused approximately 5 years earlier and the Court concluded there was no conflict of interest as the previous offences were of a minor nature and unconnected to the current charges for trafficking in cocaine.
In R. v. Morales the Court chose to make distinctions between the situation involving a legal agent, who continues to represent accused, and full-time Crown attorneys. A motion to disqualify a lawyer who had represented one of the accused in a criminal matter and had accepted a job as a Crown attorney on behalf of the Attorney General of Quebec, on the basis of conflict of interest, was rejected. Although she was now in the same office as those responsible for the prosecution of this particular case, the Court took pains to distinguish the ethical responsibilities of the Crown attorney from those in a private sector setting. The Court also pointed out that the duty of confidentiality is not less important than for a private sector lawyer; the duty is simply different.
Concern was expressed about the difficult onus on the Crown's office to establish appropriate mechanisms to defeat a motion to disqualify as well as the impact on the hiring of counsel from outside of government. Support for the Court's position was bolstered by the lack of evidence that the lawyer in question had ever discussed the case with her government colleagues or that she would do so. There is support for this position in the case of other government counsel in civil cases. In R. v. Le the Court reached a compromise.
The applicant accused had been indicted for the offences of conspiracy, participating in a criminal organization and some related drug offences. One of the accused, Dinh Duc Le, applied to the Alberta Court of Queen's Bench to disqualify the Edmonton Office of the Department of Justice from further prosecuting his case on the basis that a legal secretary, formerly in the employment of the accused's counsel, had recently joined the Edmonton Office to work for the Crown prosecutors pursuing his case.
The Court ordered severance of the accused and declared that five of the prosecutors would be disqualified from acting as Crown prosecutors on the case. The Court took into account that no screening measures were put into place when the secretary joined the Department of Justice, although she was moved out of the section when the issue was brought to light. The Court was convinced that no confidential information had been exchanged in her new position but was not prepared to distinguish this fact situation in favour of the Crown.
(2) Crown Prosecutors and General Conflict of Interest Issues As conflict of interest for defence counsel has been examined in depth elsewhere, the usual cases where conflict of interest is alleged in the case of the Crown prosecutor will be briefly noted here:
1. in the context of a previous solicitor-client relationship, where the Crown prosecutor subsequently changes jobs or where the conflict of interest is imputed to the Office where the Crown prosecutor works (e.g., witnesses, legal agents);
2. where the Crown is conducting a criminal prosecution and the complainant sues the Crown for damages;
(a) Martin v. Gray -- changing jobs -- acting against a former client The Federation of Law Societies, the umbrella organization for all provincial and territorial law societies in Canada, produced a Model Rule on Conflicts Arising as a Result of Transfer between Law Firms in March, 1994, which regulates the transfer of lawyers between law firms. It was agreed to in principle by all law societies, and the Department of Justice Guidelines for screening mechanisms, which help to ensure confidential information is not disclosed, form part of the Rule. This is relevant to Crown prosecutors if they change jobs, either by joining the defence bar or choosing another field of practice. The Department of Justice signed the Protocol developed by the Federation of Law Societies in consultation with the Canadian Bar Association in 1994. The Rule was drafted as a result of the Supreme Court of Canada case, Martin v. Gray. All those jurisdictions who are a party to the Protocol agreed to implement a Rule setting out the procedure to follow when a lawyer, who may have information which is relevant and confidential to a client, moves from one firm to another and the move affects the interests of the client.
The Rule is the product of the concern that lawyers may take with them confidential and relevant information when they change jobs. The facts of Martin v. Gray are simple. A lawyer who worked for defendant's counsel, first as an articling student and then as a lawyer, joined another firm representing the plaintiff in the same matter. It was agreed that the lawyer had received relevant confidential information about the defendant but her involvement in the file was for a specific, and limited, period of time. The new firm filed affidavits indicating no breach of confidence had occurred and undertook, if necessary, to ask her to work at home. The Supreme Court of Canada concluded there was a conflict of interest. The majority held that there was a refutable presumption that confidences are shared. There must be clear and convincing evidence that all reasonable measures (e.g., screening mechanisms) have been taken to ensure the lawyer, referred to as the "tainted" lawyer, will not disclose information to members of the new firm who are now acting against the tainted lawyer's former client. What are the consequences for Crown prosecutors?
If a member of the defence bar subsequently accepts employment with the Crown that lawyer cannot prosecute a former client or pursue an appeal for the Crown in the same case where the defence counsel represented the accused at the trial. By accepting a new job with an administrative board and switching hats from public prosecutor to head of legal services at the board, a prosecutor can lose the appearance of objectivity and create problems in the prosecution of an offence for which the prosecutor was responsible previously. As noted previously, the Court will look for evidence of the previous retainer in order to assess whether the current proceeding is related to the previous retainer.
In Sebulsky v. R., the accused was charged with driving a motor vehicle while impaired because of excessive blood- alcohol content. The accused alleged his right to a fair trial under paragraph 11(d) of the Charter and paragraph 2(e) of the Bill of Rights was violated because the Crown prosecutor had been his defence counsel prior to him giving the breath sample. The Court concluded there was a conflict of interest and counsel should have withdrawn. It is still debatable what weight the court will give to the fact that it will place onerous conditions on the Office of the Crown prosecutor to find lawyers or restrict the mobility of lawyers. In R. v. Joyal, the Court of Appeal expressed concern while in R. v. Lindskog the Court was not prepared to give much weight to this concern.
One of the more serious consequences for Crown prosecutors if they change jobs is the impact on the system for the administration of justice. An accused can ask for a stay of proceedings and allege abuse of process and a reasonable apprehension of bias. The response of the Courts has been mixed. While refusing to grant an immediate stay of proceedings, the Court in R. v. Moscuzza asked for submissions on other remedies on the basis that a stay would not help in preventing further damage to the administration of justice. In R. v. Le the Court refused to disqualify the entire prosecution section.
(b) Witnesses Recognition is given to the special duties of the Attorney General. The Crown prosecutor does not enter into a solicitor-client relationship with a witness who appears on behalf of the Crown. There are a few principles of note from the cases where witnesses are involved and which are relevant here. Crown prosecutors, unlike defence counsel, are able to represent parties in circumstances where they appear to be switching sides.
If a complainant in a criminal matter, for example, subsequently sues the Attorney General in a civil action, lawyers for the Attorney General from the provincial Department of Justice are not in a conflict of interest by appearing for the defendant Crown. Secondly, the courts are hesitant to approve the issuance of a subpoena to a lawyer as a witness in any case and will only allow it in exceptional circumstances. The evidence must be material to the case. The same rule applies to Crown prosecutors.
However, if the Crown prosecutor becomes a witness she can no longer act as counsel on the case. Lastly, the Courts are hesitant to approve the removal of Crown prosecutors and to order a change of counsel with private, independent counsel. Duality in the role of the attorney General, and the hardship such a change in counsel would create, have been taken into consideration by the Courts.
(c) The Office of the Attorney General as a firm
The courts are divided on the issue as to whether, as is the case for private firms, the conflict of interest of one lawyer should taint the whole office. The court may be willing to accept different, but not lower, standards for the reason that the Crown's Office works differently and the Crown prosecutors are salaried employees who represent the public interest. However, the courts are divided. In the case of R. v. Joyal, mentioned previously, the Court was unwilling to agree to a motion to disqualify the entire Office and in R. v. F. (D.P.) the Court concluded the government lawyer could not be disqualified where there was no evidence that the accused's former defence counsel had worked in the same office as the Crown prosecutor.
The Nova Scotia Supreme Court expressed a similar hesitation to remove a Crown prosecutor where a lawyer had recently joined the Nova Scotia Public Prosecution Service, was in the same Office but not acting in the matter before the Court, and had been a member of the firm that had represented the accused. Similarly, in R. v. Le, the Alberta Court of Queen's Bench applied severance in the case of a legal secretary who had transferred from the accused counsel's firm to the Department of Justice. In R. v. A. (E.J.), a staff legal aid lawyer was disqualified where a lawyer in the same office had represented the complainant in a different matter. Lastly, the Court may be prepared to look behind the basic principle of presumed sharing of confidences by members of the same firm where the Crown prosecutor is prepared to attest that no confidential information was received from a colleague.
As discussed previously, there is no one document which sets out the role of the Crown prosecutor. It is a role circumscribed by statute, case law, rules of professional conduct, history, custom and practice. There is very little case law on two aspects affecting the Crown's prosecution of a case. The Crown prosecutor's removal from a case could have serious implications for the Crown and disrupt the work of the criminal justice system but the Courts have not articulated principles which would outline in what circumstances the Court will ascribe a higher value to the operational difficulties of the Crown's office. Secondly, it is still unclear when the Crown should bring a motion to disqualify defence counsel. This raises the interesting duality of the Crown prosecutor as fierce advocate and a "minister of justice".
As a litigant before the Courts the Crown has brought motions to disqualify for various reasons, including defence counsel acting against former clients in a related matter both as Crown witnesses and for cases of joint retainers. It is well recognized by the Courts that a healthy tension must exist between the Crown prosecutor as fearless advocate and seeker of truth.
In R. v. Cook, Justice L'Heureux-Dubé drew the line as follows: Nevertheless, while it is without question that the Crown performs a special function in ensuring that justice is served and cannot adopt a purely adversarial role towards the defence (Boucher v. The Queen,  S.C.R. 16; Power, supra, at p. 616), it is well recognized that the adversarial process is an important part of our judicial system and an accepted tool in our search for the truth: see, for example, per L'Heureux-Dubé J.
Nor should it be assumed that the Crown cannot act as a strong advocate within this adversarial process. In that regard, it is both permissible and desirable that it vigourously pursue a legitimate result to the best of its ability. Indeed, this is a critical element of this country's criminal law mechanism: R. v. Bain, (1992) 1 S.C.R. 91; Boucher, supra. In this sense, within the boundaries outlined above, the Crown must be allowed to perform the function with which it has been entrusted; discretion in pursuing justice remains an important part of that function.
Crown prosecutors are seen as administrators of the system of justice in addition to their role as advocates. This dual role may make it difficult to decide when it is appropriate to make a motion to disqualify defence counsel on the basis of conflict of interest. It is unclear if full disclosure by the defence counsel and a waiver are sufficient to defeat a motion for disqualification brought against a Crown prosecutor. The courts have also been unclear in providing guidance on when and whether a Crown prosecutor should take steps to disclose the potential conflict of interest.
The motives of Crown prosecutors may be open to question and it could have an impact on the fairness of the trial, given their adversarial role. The jurisprudence in the United States would tend to suggest that motions for disqualification by the Crown should be rare. While the Crown prosecutor plays by the rules of advocacy in some respects, there are specific public interest obligations which limit how far they can go. The DeskBook (2000) helps to fill many of the gaps for federal Crown prosecutors by combining as many of the elements of the role as possible in one document.
2. Criminal Prosecutions, Civil Suits The Crown charged W.R.D. with sexual offences involving his stepdaughter. The stepdaughter sued the provincial government on the basis that the social worker employed by the government had acted negligently by failing to listen to, and act on, her complaints against the accused. The Supreme Court of Canada concluded there was no conflict of interest because government counsel employed by the provincial Department of Justice acted on both the civil action and the criminal prosecution.
Chief Justice Lamer accepted the judgment of the Manitoba Court of Appeal where Justice Huband had concluded: The Attorney General is in a unique position, quite unlike that of a member of the private Bar. She is responsible for the prosecution of criminal cases within this jurisdiction. She also represents the Government of Manitoba for forensic purposes in civil suits. It is no answer, beyond political window dressing, to retain outside counsel. Whoever her agents may be, whether her permanent staff or outside special appointments, they must function under the Attorney General's direction. And the Attorney General must be allowed to fulfil the responsibilities of that office unless and until circumstances arise which would compel the Court to interrupt the fulfilment of those responsibilities. No such case has been made out.
3. The Crown Prosecutor as Employee
As an employee the Crown prosecutor is subject to general conflict of interest rules established by the Treasury Board as employer and set out in the Treasury Board Code. The Treasury Board Code was approved by Treasury Board under the Financial Administration Act in 1985, replacing the 1973 Public Service Conflict of Interest Guidelines (P.C. 1973-4065). Each Deputy Minister, or delegate, administers it. It is made a term of every appointment that the employee is responsible for reading the Treasury Board Code and bringing to the attention of the appropriate official a real, apparent or potential conflict of interest (usually the Deputy Minister or delegate).
It has also been incorporated in the standard form Treasury Board contract and as part of the legal agent appointments. New employees may file one of two documents. All employees are required on each appointment to certify in writing that they have read, understood and will observe the Treasury Board Code as a condition of employment. This is called a Certification Document and is filed in a separate registry in the Human Resources Directorate.
A further document, called a Confidential Report, can be filed if an employee wishes to disclose. No documents are filed publicly. The Treasury Board Code applies to all employees for whom the Treasury Board is employer. Therefore it applies to employees in the Department who are at or below the level of Assistant Deputy Minister and Assistant Deputy Attorney General. In the case of Associate Deputy Ministers and the Deputy Minister, there is a separate code, the Conflict of Interest and Post-Employment Code for Public Office Holders (June 1994), which applies to them and which the Ethics Counsellor, under the general direction of the Clerk of the Privy Council, oversees.
The main difference between the two codes is that in the case of public servants it is considered to be a voluntary disclosure in that they review the Treasury Board Code and decide what to disclose. In the case of the 1994 Code there is a mandatory disclosure and the Ethics Counsellor makes a decision on how to proceed.
Some other differences include: . employees under the Code do not file any reports publicly; Ministers, their staffs and Governor in Council appointees, who are subject to the 1994 Code, do file a public statement along with the confidential report; . the 1994 Code and the Code contain the same general obligations except that under the former individuals must make decisions in the public interest and with regard to the merits of each case; . gifts under the Code are not subject to a dollar limit; under the 1994 Code there is a $200 limit with some qualifications.
"Conflict of interest" is used in a variety of situations: . to describe a code of conduct which applies to all public servants by virtue of the Code and covers the mingling of private economic interests with public duties; . to describe a code of conduct which applies to lawyers as part of their professional duties in the context of the relevant rules of professional conduct from the various law societies; . to describe the practical application of the principle of the dual role of the Minister as Minister of Justice and Attorney General (e.g., institutional conflict of interest). In the case of public servants, the objective of the Treasury Board Code is voluntary compliance.
Employees are responsible for reviewing its provisions and deciding whether there is a conflict of interest issue which must be disclosed. It is based on the premise that even if there is a conflict of interest it may be possible to take steps to reduce the risk through: . avoidance or; . disclosure or; . stopping the prohibited activity. It is important that all employees understand the standards they must follow and take the steps they can to eliminate or reduce the conflict of interest implications.
There are numerous situations where Crown prosecutors, as employees, have to decide whether they can undertake certain activities. It may be the case, for example, that they face unique challenges because they practise in remote or small communities where they are well-known. There may also be limitations on the nature of their outside activities because of their role. For example, it might be inappropriate for them to work as bartenders in the evening. Outside activities and employment are permitted except where it is likely to result in a conflict of interest. A conflict of interest will exist if the proposed activity interferes with the exercise of their judgment or daily responsibilities.
Employees are permitted to be members of volunteer Boards of Directors, maintain their own businesses and teach except where there will be interference with their job responsibilities. Gifts can be accepted if they are offered as a courtesy, they do not interfere with an employee's objectivity and impartiality and do not compromise the integrity of the government.
Again, as with outside employment and volunteer work the gift or benefit should not interfere with the exercise of their judgment or daily responsibilities. If an employee receives a coffee mug after giving a presentation at a seminar the issue of conflict of interest does not generally arise; if the same employee receives a coffee mug as Director of Human Resources and the coffee mug has advertising on it from a temporary help agency the gift should be declined. However, if a Crown prosecutor receives a gift, even if it is of minimal value, it is likely they may have to decline it if the receipt of the gift has an impact on their duties. There is no dollar value for gifts so the existence of a conflict of interest does not depend on whether it is a coffee mug or an expensive sculpture.
The circumstances are always relevant as well as the nature of the function an employee performs. Criminal prosecutors are in a difficult position. If defence counsel pays for lunch or a legal agent sends a box of chocolates both situations could present a problem. In the first situation the accused, if it occurs in the context of a trial, could perceive the appearance of a conflict of interest based on the perceived impropriety of the luncheon.
In the second situation, the legal agent could be looking for future work as currently legal agents do criminal prosecutions throughout the country. As mentioned earlier, the Criminal Code must be kept in mind. Recent cases, including Fisher, Hinchey and Cogger have highlighted the need for all public servants, including Crown prosecutors, to be aware of and understand, the implications of a receipt of benefits by a public servant from a member of the private sector. While on the face of section 121 of the Criminal Code it would appear to target fraud, bribery and influence peddling, the scope of the provision has been interpreted very broadly by the courts.
It is relevant to the debate on conflict of interest because both Fisher and Hinchey involved public servants and Cogger, a Member of Parliament who was a Senator. Both Hinchey and Fisher were decisions on the interpretation of paragraph 121(1)(c). Briefly, this provision prohibits the receipt of a benefit, directly or indirectly, by a public employee from an organization with dealings with the government unless the employee has written consent from the appropriate "head of the branch of the government".
Paragraph 121(1)(c) provides as follows: 121(1)
Every one commits an offence who ... (c) being an official or employee of the government, demands, accepts or offers or agrees to accept from a person who has dealings with the government a commission, reward, advantage or benefit of any kind directly or indirectly, by himself or through a member of his family or through any one for his benefit, unless he has the consent in writing of the head of the branch of government that employs him or of which he is an official, the proof of which lies on him; The Ontario Court of Appeal addressed the Charter arguments in Fisher.
The Ontario Court of Appeal decided that paragraph 121(1)(c) did not offend section 7 of the Charter even though it does not set out a mental element. However, the words "the proof of which lies in him" were struck down because the change of burden offended the presumption of innocence in paragraph 11(d) of the Charter.
Moreover, the Court concluded that paragraph 121(1)(c) of the Criminal Code does not require a quid pro quo. Even though the person giving the gift expects nothing in return it is sufficient to establish that the government employee received something because he or she is an employee.
Mr. Fisher was charged with accepting a computer system as a benefit contrary to paragraph 121(1)(c) because the person who gave the computer system had ongoing dealings with the government and the employee did not have written consent. Madam Justice Arbour of the Ontario Court of Appeal noted on the issue of written consent that: In my opinion, the written consent contemplated by s. 121(1)(c) is not analogous to a registration certificate, or to a licence or permit. In fact, the only thing that might suggest otherwise is the requirements that the consent be in writing.
Typically, a licensing scheme is one that regulates and monitors a field of activity for a fee. There is no suggestion in s. 121, of governments administering a licensing scheme to permit their employees to obtain benefits and rewards from government contractors. What is contemplated by the requirement that government employees obtain the consent of their superiors before accepting benefits is the removal of any secrecy and the judgment of a person in authority to the effect that the proposed gift will not compromise the integrity of the government. What the employee obtains from his or her superior is not a permit or a licence, but a consent.
The Crown succeeded on appeal before the Ontario Court of Appeal and the matter was remitted to the Provincial Court (leave to appeal to the Supreme Court of Canada was refused). There is a further elaboration of the application of paragraph 121(1)(c) in the Hinchey case. Mr. and Mrs. Hinchey were charged with defrauding a paving company contrary to paragraph 380(1)(a) and, in addition, accepting a benefit without consent under paragraph 121(1)(c).
As part of his duties as a district engineer with the Newfoundland Department of Works, Mr. Hinchey supervised road construction projects. While it is unclear from the evidence just who raised the issue of employment, Mrs. Hinchey was placed on the company's payroll as an assistant flag person, she received unemployment insurance for twenty weeks but she never worked. The Supreme Court of Canada ordered a new trial (Mrs. Hinchey was acquitted of unemployment insurance fraud) because the Court concluded the trial judge had made errors, which gave an appearance of unfairness (he referred to one juror as a "lunkhead" and another as a "bitter man").
However, the judgment is important because of its support for the Fisher case and the nature of criminal liability. The majority rejected the minority's view that the paragraph requires the Crown to prove "corrupt intention".
Mr. Justice Cory underscored the importance of this section to the integrity of public life: The magnitude and importance of government business require not only the complete integrity of government employees and officers conducting government business but also that this integrity and trustworthiness be readily apparent to society as a whole.
The importance of section 121 in public life was highlighted by the Supreme Court of Canada in Cogger. Mr. Cogger, a Senator, was charged in February, 1993, with having accepted a benefit or advantage in consideration for co- operating and assisting M. Gerry Montpetit to get government business, contrary to subsection 121(1)(a)(ii), (iii) of the Criminal Code. Mr. Cogger received $212,000 over a period of 2 years and he maintained this was compensation for acting as a lawyer on behalf of clients. The Supreme Court of Canada concluded that the appeal of the Crown should be allowed and a new trial was ordered.
The Court noted that the Crown does not have to establish that the benefit was conferred because the recipient knew of employment status of the public official. In this case it was important that Mr. Cogger knew he was a Senator in his dealings with government.
Therefore the onus is in the Crown to establish the accused knew he was an official, he accepted or demanded a benefit intentionally and he knew the payment was in consideration for assisting with influencing the government in completing the business transaction. Similar to Fisher (but for a different offence), the Court also noted that "corruption" is not a required element of actus reus or mens rea under 121(1)(a).
The new trial was ordered because the trial judge concluded that a "corrupt" purpose was needed to support a conviction. The Court reiterated: The wording of s. 121(1)(a)(ii) is quite clear. It is also comprehensive. It is designed to prevent government officials from undertaking, for consideration, to act on another person's behalf in conducting business with the government. This is both a clear and honourable goal. Parliament has indicated that it is unacceptable for government officials to accept consideration from individuals for the purpose of conducting business with government on that party's behalf.
I see no reason, especially given the clear wording of the section, to insert an additional element, which was not desired by the drafters of the Code. These cases are important to federal prosecutors for several reasons. In their professional capacity they may be approached to teach at a university which receives funding from the government, they may be offered a gift by a legal agent from a private firm who they are supervising and they may attend business luncheons where the defence counsel pays for lunch.
Mr. Justice Cory in Hinchey offered the following for guidance: The section makes it an offence for an employee to accept or agree to accept from a person who has dealings with the government, a commission, reward, advantage or benefit of any kind directly or indirectly, by himself or through a member of his family, unless he has the consent in writing of the government that employs him. Thus if a government employee accepts, on a rainy day, a ride downtown from a friend who does business with the government he has received a benefit. That could hold true as well for the cup of coffee or occasional lunch bought by the friend for the government employee.
Obviously the section was never designed to include in its prohibition these very minor benefits. Nor should it apply to the exchange of those lunches and dinners that has long been a pattern of behaviour between old friends. However, benefits on a larger scale might well warrant closer scrutiny and require the obtaining of permission from the government employing the official. A reasonable balance must be struck that recognizes both the great dangers involved in paying benefits to government employees and the normal exchange of minor favours between friends. Despite this recent guidance from the Court, there still remains a lot of ambiguity about the practical implications of these provisions.
I draw your attention to the following comments of Mr. Justice Cory, again from Hinchey: In my view the mental element of blameworthiness for s. 121(1)(c) requires proof not only that the accused was aware or knew of the requisite elements of the offence but also that he knew that he received the benefit at least in part because of his position with the government; or that he was wilfully blind to circumstances which would lead to that conclusion; or was reckless as to the consequences of accepting the benefit without the consent and permission of his superior, that is to say he was aware of the risk of his actions breaching the subsection but nonetheless took the risk of proceeding in that manner. ... When the requisite mens rea for s. 121(1)(c) is under consideration in a case a number of factors will have to be taken into account.
They may include: the position in government held by the accused; the business and social relationship existing between the accused and the person paying the benefit; the amount and nature of the benefit; the manner in which the benefit was paid: for example were attempts made to disguise the benefit? Factors such as these when considered in the context of all the surrounding circumstances can provide the basis for the finder of fact to properly infer that the accused was aware of the requisite elements of the offence and that he had received the benefit at least in part because of his position with the government and enter a conviction. One further comment of note is that if a lawyer is the subject of disciplinary proceedings and a charge under section 121 of the Criminal Code, there is authority to the effect that if the main focus of disciplinary proceedings is a criminal prosecution the Court will not permit it.
The Court expressed concern that if the law society disciplinary hearing concluded there had been unprofessional conduct this could lead the public to conclude a lawyer had committed an illegal act, thereby pre-empting the criminal proceedings. The private practice of law is not permitted. There are more than conflict of interest issues at play here. Since Department of Justice lawyers are full-time employees for the Crown there are also issues with respect to the duty of loyalty, insurance and practising fees and solicitor-client privilege.
The work of Crown prosecutors, with the exception of legal agents, has always been understood to be exclusive and full-time for the Crown. In keeping with the principle that Crown prosecutors must be free from political influence, they cannot run for election in a federal or provincial election without taking a leave of absence. This is similar to rules in other jurisdictions governing the civil service. Crown prosecutors who are employees are insured by the Crown for certain errors.
The Treasury Board Policy on the Indemnification of Servants of the Crown is the framework policy for the indemnification of public servants: The Crown will indemnify a servant against civil liability incurred by reason of any act or omission within the scope of the servant's employment or duties, and will make no claim against that servant based upon such personal liability, if the servant acted honestly and without malice.
The Crown will also reimburse Crown prosecutors for their practising fees as the federal government is self-insured. In all jurisdictions but Nova Scotia the Department no longer pays for insurance premiums for professional liability for its lawyers. Lastly, all employees may publish articles but must respect the employer's right to review the publication in the interests of prejudice to the Crown in future litigation, interference with solicitor-client privilege or the rule of confidentiality.
4. Crown Prosecutors as Public Officials Every federal public servant takes an oath upon appointment: I ... solemnly and sincerely swear (or affirm) that I will faithfully and honestly fulfil the duties that devolve on me by reason of my employment in the Public service and that I will not, without due authority in that behalf, disclose or make known any matter that comes to my knowledge by reason of such employment. From that basic starting point, a Crown prosecutor looks for guidance on conflict of interest issues from a variety of sources, including the Department's Mission Statement and other information which is published regularly on the role of the Department, best practices and relationships with others in government.
The Crown prosecutor then brings to each situation their ability to make difficult judgments and balance many different interests. This duty of loyalty is not necessarily the same as the lawyer duty of confidentiality or the duty to respect the professional obligations concerning conflict of interest. It is a broader duty which relates to all information that comes to the knowledge of the employee during their employment, which is not approved for public disclosure, and which they take with them when they leave.
Conflict of interest is becoming increasingly important for the public sector lawyer. Given the complexity of the operations of government, and therefore of the Crown, in the private sector the federal Crown prosecutor must keep in mind the distinct roles of employee, lawyer and prosecutor.
It still remains debatable whether calls for a separate code of professional conduct, as has occurred in the United States, are merited. There are still relatively few cases on conflict of interest, in contrast to other issues such as abuse of process, which come before the courts. Recent cases in the Supreme Court of Canada on the issue of judicial independence serve to remind the public sector counsel of the importance of the independence of the judiciary and the Attorney General for Canada.
In this case there were allegations that the Assistant Deputy Attorney General inappropriately met with the Chief Justice of the Federal Court concerning a war crimes case before the court, in the absence of other counsel. This case resulted in the development of specific guidelines to regulate contact between public officials in the Department of Justice and the courts. As is often the case, it is presumed that Crown prosecutors know and understand the rules and that the standards are clear and that they are easy to apply.
It underscores the fact that judgments have to be made quickly and in difficult circumstances, without the befit of in-depth research and analysis. Conflict of interest is a term which is frequently used in different contexts. It may be used to refer to the perceived inherent conflict for Canada and the Minister of Justice, the intermingling of an employee's private interests with public duty and the professional duty as a fiduciary who acts in the interests of the client and the public interest.
While the standards may sometimes be vague and difficult to apply, the difficulty of application comes within an intuitive sense or with the gift of experience. Subjective in nature, the determination of conflict of interest matters may be evidence that there is neither a right nor a wrong until there has been a formal adjudication of the issue before a disciplinary panel or a court. Given the importance the Courts ascribe to the role of Crown prosecutors to the administration of justice, the determination of the existence of a conflict of interest remains an ongoing challenge for Crown prosecutors. It requires ongoing vigilance and prudence.