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2004: No. 3 May-June
Table of contents Footnote added to Handbook to affirm
prosecutorial discretion
The Benchers have amended Chapter 8, Rule 18 "Duties of
prosecutor" in the Professional
Conduct Handbook by adding a footnote to clarify that the rule is
not intended to interfere with the proper exercise of prosecutorial
discretion.
The change was made in light of the Supreme Court of Canada decision in
Krieger v. Law Society of Alberta, [2002] 3 S.C.R. 372; 2002
S.C.C. 65 (see below). In that case, the Court found that the exercise of
the prosecutorial discretion must be treated with deference by the courts,
the executive branch of government and provincial law societies. A law
society could, however, review an allegation that a prosecutor, acting
dishonestly or in bad faith, failed to disclose relevant information.
Chapter 8, Rule 18 of the Handbook, as amended by footnote 1,
reads:
Duties of prosecutor
18. When engaged as a prosecutor the lawyer's prime duty is not to
seek a conviction, but to see that justice is done. 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 to an unrepresented accused of all relevant facts and known
witnesses, whether tending to show guilt or innocence, or that would
affect the punishment of the accused.1
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1 In view of the policy, legal and constitutional
considerations that favour permitting prosecutors to function
independently, this rule is not intended to interfere with the proper
exercise of a prosecutor's discretion. See Krieger v. Law
Society of Alberta, [2002] 3 S.C.R. 372 and other cases.
| Krieger v. Law Society of Alberta
In Krieger, a prosecutor in Alberta was assigned to
prosecute an accused charged with murder. Prior to the commencement
of the preliminary hearing, the prosecutor received the results of
DNA and biological tests conducted on blood found at the scene of
the crime, which implicated a different person than the accused. Ten
days later, he advised counsel for the accused that the results of
the testing would not be available in time for the preliminary
hearing. Defence counsel only learned of the testing results at the
preliminary hearing and complained to the Deputy Attorney General
that there had been a lack of timely and adequate disclosure.
The prosecutor was reprimanded and removed from the case after a
finding that the delay was unjustified. Six months later, the
accused complained to the Law Society of Alberta about the
prosecutor's conduct. The prosecutor sought an order that the Law
Society had no jurisdiction to review the exercise of prosecutorial
discretion by a Crown prosecutor and an order that the Rule of the
Alberta Code of Professional Conduct requiring a prosecutor
to make timely disclosure to the accused or defence counsel was of
no force and effect. The prosecutor's application was dismissed in
the Court of Queen's Bench, but that decision was overturned by
the Court of Appeal.
On further appeal to the Supreme Court of Canada, the Court held
that the Rule and Commentary in the Code of Professional Conduct
were intra vires the Legislature of Alberta.
The Court determined that the exercise of prosecutorial
discretion must be treated with deference by the courts and members
of the executive, as well as by statutory bodies such as provincial
law societies. As such, it will not be reviewable except in cases of
flagrant impropriety, such as dishonesty or bad faith. Without being
exhaustive, the core elements of prosecutorial discretion encompass
whether to: (a) bring the prosecution of a charge laid by police;
(b) enter a stay of proceedings in either a private or public
prosecution, (c) accept a guilty plea to a lesser charge, (d)
withdraw from criminal proceedings altogether and (e) take control
of a private prosecution.
The Court found that the disclosure of evidence is not a matter
of prosecutorial discretion but rather is a legal duty of the
prosecution. It followed that the Law Society had the jurisdiction
to review an allegation that a Crown prosecutor, acting dishonestly
or in bad faith, failed to disclose relevant information. This was
so notwithstanding that the Attorney General had reviewed the
conduct from the perspective of an employer. |
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