Prosecutorial Discretion
I’ve just started my LLM at U of T and am considering a paper/article on the limits of prosecutorial discretion. A defining personal example for me is the racing legislation under the Ontario HTA. With that legislation the Ontario Government created a circumstance where 2 identical fact situations could be subject to two different charges under the HTA at the discretion of the crown. Given that there’s unlikely to be much high level discussion of matters related to the HTA, I’m interested if any SLAW members are aware of other statutes (provincial or federal) where two identical fact situations could be subject to different charges under the same statute, or perhaps different statutes. More examples will allow me to find more case law from higher level courts, and this will assist my research and give more weight to the paper.
Isn’t it pretty common to have police lay multiple charges arising out of a single incident? Some people claim that this multiplicity of charges is one of the reasons for the delays in the criminal courts, others that the multiplicity gives the Crown something to bargain with about pleas, others that the police need to ensure that they have laid charges that the facts will support as a matter of law, and – depending on how long they have between investigation and charging – they lay a number of charges to ensure that the offence is covered somehow.
All of these would suggest that an action that may constitute many offences is not very rare. Which charges get laid is a matter of professional judgment, which involves discretion.
I don’t think it is rare either for the police officer to consider the consequences of conviction when laying a charge, if there is a choice (or in deciding whether to charge at all, rather than warn. Whether a warning is appropriate will of course depend largely on the gravity of the offence.)