Injustice Created by Crown Imbalance

Although litigation is frequently characterized as adversarial, some of the realities in the criminal justice system are slightly more nuanced. Crown counsel represent the public’s interest, and not that of a victim or complainant. Obviously the public has an interest on those impacted by a crime, but Crown counsel do not directly represent those parties or those interests.

In 1954, Justice Rand explained this in the Supreme Court of Canada decision, Boucher v. The Queen, 1954 CanLII 3 (SCC), as follows,

It cannot be over-emphasized 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; [their] function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility.

Public Prosecution Service of Canada’s manual states,

The responsibilities placed on Crown counsel as law officers of the Crown flow from the special obligations resting on the Office of the Director of Public Prosecutions (ODPP) in the execution of this mandate. As a result, Crown counsel are subject to certain ethical obligations that may differ from those of other litigants.

The Supreme Court of Canada affirmed this in Skogman v. The Queen in reviewing Crown obligations in using preliminary inquiries under Part XVIII of the Code.

In R v Regan, the Court described this role as an important check and balance, going so far as to call Crown counsel a “minister of justice” in all stages of their work. But sometimes that role isn’t always fulfilled properly.

A recent Ontario Superior Court of Justice decision in R. v. Strybosch looked at a stay application for charges of sexual assault and sexual interference, on the basis of prosecutorial indiscretion for repudiating a plea agreement. The Crown took the position that such applications were only available to the Crown, given the unique role that they play.

Justice Goodman cited R. v. Zarinchang for the two categories for abuse of process and judicial stays, related to trial fairness, and fundamental notions of justice,

[21] In considering whether to grant a stay of proceedings under either of these categories, the following criteria must be satisfied: The prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; it must be directed at prospective prejudice, not to redress past prejudice, and no other remedy is reasonably capable of removing that prejudice.

In this case, Justice Goodman concluded that the Crown conduct was so offensive to societal notions of fair play and decency, and that any remedy short of a stay of proceedings would inadequately disassociate the justice system from the state conduct. A stay would therefore better protect the integrity of the justice system.

The Supreme Court of Canada emphasized in R. v. Nixon the significance of the repudiation of a plea agreement,

[63] However, the repudiation of a plea agreement is not just a bare allegation. It is evidence that the Crown has gone back on its word. As everyone agrees, it is of crucial importance to the proper and fair administration of criminal justice that plea agreements be honoured. The repudiation of a plea agreement is a rare and exceptional event.  In my view, evidence that a plea agreement was entered into with the Crown, and subsequently reneged by the Crown, provides the requisite evidentiary threshold to embark on a review of the decision for abuse of process. Further, to the extent that the Crown is the only party who is privy to the information, the evidentiary burden shifts to the Crown to enlighten the court on the circumstances and reasons behind its decision to resile from the agreement. That is, the Crown must explain why and how it made the decision not to honour the plea agreement.  The ultimate burden of proving abuse of process remains on the applicant and, as discussed earlier, the test is a stringent one. However, if the Crown provides little or no explanation to the court, this factor should weigh heavily in favour of the applicant in successfully making out an abuse of process claim.
[emphasis added]

In this case, Justice Goodman found that the Crown counsel permitted the complainant to unduly influence the exercise of prosecutorial discretion, resulting in them directing the prosecution. They then attempted withheld the transcript in providing an explanation, until an audio recording was produced.

By relying on the resolution agreement, the accused completed counselling regarding to comments made in the context of the charges, in hopes of satisfying the complainant. Justice Goodman concluded that it would be unfair or oppressive to allow the Crown to then proceed with the prosecution,

What this case illustrates is that the unique role of the Crown prosecutor alone is insufficient to ensure fairness, and that criminal defence counsel play an especially important role in ensuring vigilance is used in the criminal justice system.

While much of the backlog during the pandemic is being focused on through court-based resources, including expanding Crown counsel, the role of others in the justice system who ensure these special obligations are met need to be remembered as well.