The Conduct of the Crown – Part I

Our criminal justice system is based on the common law, and relies on the adversarial principle: the best way to get at the truth in a case is for one party to engage the other in a legal duel, a battle over the facts and the law. In some jurisdictions, which use the civil law rather than the common law system, a judge or a committee investigates and lays charges. The civil law system can become bureaucratic and political, to say the least!

While an adversarial system searches for truth by focusing on the interests of each party and cuts out the politics and bureaucracy, there are rules of procedure and practice that must be followed to ensure that the process does not spin out of control. Among these rules are codes of conduct which regulate how the lawyers act towards each other and towards the court. This code is intended not only to preserve peaceful and respectful dealings between counsel during court proceedings, but are meant to ensure the smooth functioning of the criminal justice system as cases move through it. In Ontario, these codes of conduct can be found in a few sources: the Rules of Professional Conduct enforced by the Law Society of Upper Canada, the Crown Policy Manual, issued by Ontario’s Ministry of the Attorney General, which guides the behaviour of Crown Attorneys who prosecute criminal cases on behalf of the state; recommendations made by eminent judicial committees, such as the Law Reform Commission of Canada, the Law Reform Commission of Ontario, and the reports of commissions of enquiry which have reported on wrongful convictions and the operation of the justice system, such as the Martin Committee, the Kaufman Commission, and the Goudge Inquiry.

The Law Society, in its Rules of Professional Conduct, sets out certain general principles that apply to all lawyers. The following example is an excerpt from Rule 4, which deals with the relationship between lawyers and the administration of justice.

4.01 THE LAWYER AS ADVOCATE

Advocacy

4.01 (1) When acting as an advocate, a lawyer shall represent the client resolutely and honourably within the limits of the law while treating the tribunal with candour, fairness, courtesy, and respect.

Commentary– The lawyer has a duty to the client to raise fearlessly every issue, advance every argument, and ask every question, however distasteful, which the lawyer thinks will help the client’s case and to endeavour to obtain for the client the benefit of every remedy and defence authorized by law. The lawyer must discharge this duty by fair and honourable means, without illegality and in a manner that is consistent with the lawyer’s duty to treat the tribunal with candour, fairness, courtesy and respect and in a way that promotes the parties’ right to a fair hearing where justice can be done. Maintaining dignity, decorum, and courtesy in the courtroom is not an empty formality because, unless order is maintained, rights cannot be protected.

This rule applies to the lawyer as advocate, and therefore extends not only to court proceedings but also to appearances and proceedings before boards, administrative tribunals, arbitrators, mediators, and others who resolve disputes, regardless of their function or the informality of their procedures.

Role in Adversary Proceedings – In adversary proceedings the lawyer’s function as advocate is openly and necessarily partisan. Accordingly, the lawyer is not obliged (save as required by law or under these rules and subject to the duties of a prosecutor set out below) to assist an adversary or advance matters derogatory to the client’s case.

In adversary proceedings that will likely affect the health, welfare, or security of a child, a lawyer should advise the client to take into account the best interests of the child, where this can be done without prejudicing the legitimate interests of the client.

When acting as an advocate, a lawyer should refrain from expressing the lawyer’s personal opinions on the merits of a client’s case.

When opposing interests are not represented, for example, in without notice or uncontested matters or in other situations where the full proof and argument inherent in the adversary system cannot be achieved, the lawyer must take particular care to be accurate, candid, and comprehensive in presenting the client’s case so as to ensure that the tribunal is not misled.

Duty as Defence Counsel – When defending an accused person, a lawyer’s duty is to protect the client as far as possible from being convicted except by a tribunal of competent jurisdiction and upon legal evidence sufficient to support a conviction for the offence with which the client is charged. Accordingly, and notwithstanding the lawyer’s private opinion on credibility or the merits, a lawyer may properly rely on any evidence or defences including so-called technicalities not known to be false or fraudulent.

(The complete text of this Rule and commentary can be found online at the Law Society’s website).

Crown Attorneys are held to a higher ethical standard than most lawyers, because of the power they command. In a criminal case, the resources of the government’s entire law enforcement apparatus is deployed against an individual charged with a crime. The police and prosecutors have the tools, the people, the money and the time to investigate, and the power to detain suspects, to force witnesses to testify, and to require that people and businesses divulge private information. These resources are not available to individual citizens, even to those with lots of money: even a rich businessman cannot break into a house at gunpoint and search it from top to bottom, the way police officers armed with a search warrant can.

As a result of these powers at their disposal, the lawyers who work for the Crown are required to conduct themselves in a manner that is scrupulously honest and above reproach, with careful regard to the rules of procedure, ethical behaviour and professional responsibility. Sadly, there are too many examples of wrongful convictions, of innocent people whose lives have been shattered, because of a few occasions where Crown prosecutors have sacrificed their ethical obligations in their zeal to secure a conviction. A Crown attorney must avoid the temptation to take ethical shortcuts or circumvent the rules of professional conduct, because he personally believes that a defendant in a criminal case is guilty, because there is a lot of publicity surrounding a trial, or because she wants to improve her win/loss record.

The Rules of Professional Conduct specifically discuss how a Crown Attorney must behave in a criminal case:

Duty as Prosecutor

(3) When acting as a prosecutor, a lawyer shall act for the public and the administration of justice resolutely and honourably within the limits of the law while treating the tribunal with candour, fairness, courtesy, and respect.

Commentary– When engaged as a prosecutor, the lawyer’s prime duty is not to seek to convict but to see that justice is done through a fair trial on the merits. The prosecutor exercises a public function involving much discretion and power and must act fairly and dispassionately. The prosecutor should not do anything that might prevent the accused from being represented by counsel or communicating with counsel and, to the extent required by law and accepted practice, should make timely disclosure to defence counsel or directly to an unrepresented accused of all relevant and known facts and witnesses, whether tending to show guilt or innocence.

“It cannot be overemphasized that the purpose of a criminal prosecution is not to obtain a conviction; it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proof of the facts is presented; it should be done firmly and pressed to its legitimate strength, but it must also be done fairly. The role of prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater responsibility. It is to be efficiently performed with an ingrained sense of the dignity, the seriousness, and the justness of judicial proceedings.” (R. v. Boucher) “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, (cites omitted) it is well recognized that the adversarial process is an important part of our judicial system and an accepted tool in our search for truth: See for example, R. v. Gruenke, [1991] 3 S.C.R. 263 at 295, 67 C.C.C., (3d) 289; per L’Heureux-Dube, 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 vigorously pursue a legitimate result to the best of its ability. Indeed, this is a critical element of this country’s criminal law mechanism: (cites omitted). 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. (R. v. Cook)

1 See, for example: R. v. Boucher (1954), 110 C.C.C. 263 (S.C.C.); R. v. Cook (1997), 114 C.C.C. (3d) 481 (S.C.C.); R. v. Savion and Mizrahi (1980), 52 C.C.C. (2d) 276 (Ont. C.A.) at 289; R. v. Owen McIntosh; R. v. Paul McCarthy (1997), 117 C.C.C. (3d) 385 (Ont. C.A.); R. v. Power (1994), 89 C.C.C. (3d) 1 (S.C.C.) at 13-16 per L’Heureux-Dube; R. v. T.(V). (1992), 71 C.C.C. (3d) 32 (S.C.C.); R. v. Smythe (1971), 3 C.C.C. (2d) 366 (S.C.C.); R. v. R.(A.J.) (1994), 20 O.R. (3d) 405 (Ont. C.A.); R. v. Bain (1992), 69 C.C.C. (3d) 481 (S.C.C.); R. v. Durette (1992), 9 O.R. (3d) 557 (Ont. C.A.); R. v. Conway (1989), 70 C.R. (3d) 209 (S.C.C.) at 255; Nelles v. Ontario, [1989] 2 S.C.R. 170 at 193; R. v. Logiacco (1984), 11 C.C.C. (3d) 374 (Ont. C.A.). 2

Crown Counsel as an Advocate

The role of Crown counsel as an advocate has historically been characterized as more a “part of the court” than an ordinary advocate. A prosecutor’s responsibilities are public in nature. As a prosecutor and public representative, Crown counsel’s demeanor and actions should be fair, dispassionate and moderate; show no signs of partisanship²; open to the possibility of the innocence of the accused person and avoid “tunnel vision.” ³ It is especially important that Crown counsel avoid personalizing their role in court.⁴ Objectionable cross-examination or immoderate jury addresses are the antithesis of the proper role of the Crown.

The adversarial system in which we operate requires our participation as strong advocates, but it also is seriously flawed if the “adversaries” are not evenly matched. We have, therefore, a special duty to the accused and his counsel so that they may fully and fairly place their evidence and arguments before the courts.

2 R. v. Henderson (1999), 44 O.R. (3d) 628 (C.A.); R. v. Arthur F. (1996), 30 O.R. (3d) 470; R. v. Vandenberghe (1995), 96 C.C.C. (3d) 371 (C.A.); R. v. Stinchcombe (1992), 68 C.C.C. (3d) 1 (S.C.C.).

3 “…tunnel vision means the single-minded and overly narrow focus on a particular investigative or prosecutorial theory, so as to unreasonably colour the evaluation of information received and one’s conduct in response to that information.” The Commission on Proceedings Involving Guy Paul Morin, The Hon. Fred Kaufman, Commissioner (Toronto: Queen’s Printer, 1998) at p. 1136

4 R. v. F.S. (2000), 47 O.R. (3d) 349 (Ont. C.A.); R. v. Chambers (1990), 59 C.C.C. (3d) 321 (SCC); R. v. McDonald (1958), 120 C.C.C. 209. 3

While the vast majority of Crown Attorneys behave in a fair and ethically conscientious way, there will inevitably be occasions where, in the heat of battle, or in their zeal to convict a defendant who he believes is guilty, a prosecutor will cut corners or over-reach his authority. In such situations, it is critical that a criminal defence lawyer be vigilant and aggressive in ensuring that his client’s rights are respected, whether it is the right to full disclosure, the right against self-incrimination, or the presumption of innocence. It has famously been said that a trial is not a tea party, and that is true. Trials are a form of civilized combat, and the higher the stakes, the tougher the fight, and the tougher the fighters. It is when the stakes are highest, the crimes most serious, that the need for vigilance to ensure that a defendant’s rights are fully protected and that his trial is fair. To maintain confidence in the administration of justice, members of the public need to have faith that no one among them will be fined or sentenced to prison, sometimes for life, without receiving a fair trial.

But how does one make sure that the Crown prosecutor does not overstep her bounds? It is not easy. That topic, as well as a recent example of how careful one must be to protect a client’s rights, will be the subject of the next article on our blog.