Discretion to Stay a Prosecution

Today’s announcement by the Crown Attorney’s office in Ontario that charges have been stayed against the former Attorney General Michael Bryant is accompanied by an 11 page analysis of the facts and the applicable law, that should be noted by those who follow the role of the Law Officers of the Crown and the discretion to stay charges.

This will add to the academic literature such as the works of John Edwards, The law officers of the Crown : a study of the offices of Attorney-General and Solicitor-General of England, and The Attorney General, Politics and the Public Interest (London : Sweet & Maxwell, 1984). There is also commentary by the two leading Attorneys General of Ontario from the last century: Roy McMurtry, “The Office of the Attorney General” in D. Mendes da Costa, ed., The Cambridge Lectures (Toronto: Butterworths, 1981); Ian G. Scott, “The Role of the Attorney General and the Charter of Rights” (1987) 29 Crim. L. Q. 187; Hon. Ian Scott, “Law, Policy, and the Role of the Attorney General: Constancy and Change in the 1980s” (1989) 39 U.T.L.J. 109.

As a very young lawyer, I had a major hand in Statement by then Attorney General R. Roy McMurtry to the Legislature of Ontario in 1978 on another prosecution: Ontario, Legislative Assembly, Official Report of Debates (Hansard), No. 3 (23 February 1978) at 50-52:

A prosecution is not automatically launched in every case where there is some evidence to support the laying of criminal charges. Police officers and the Crown law officers who advise them have broad powers to decide whether or not to launch a prosecution, taking into account all the circumstances surrounding the case.

Every day police officers and Crown attorneys decide not to prosecute potential accused. On many occasions charges are not laid, even though the police and the Crown would be fully justified in proceeding to prosecute. It is not, therefore, a question of whether the individual is rich or poor, prominent or not. Rather, it is a question of whether proceedings are appropriate, taking into account the public interest and the fair administration of justice.

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