Legal Ease, June 24

The last time I was on circuit court, the Crown withdrew a number of criminal charges against various people. Someone who was to be a witness asked me what the Crown was doing and why.

My short answer was the Crown realized the various charges were not likely to succeed or the accused deserved a break. That led me to realize the idea of Crown prosecutorial discretion is not well know let alone understood.

When a Crown prosecutes a case and a defence lawyer defends a case they do not fight without rules.

The defence lawyer is highly partisan and seeks to get the best result possible consistent with not misleading the court or doing something unethical.

The Crown however is not like the defence. The Crown is supposed to seek justice – not victory – and that means a Crown acts differently when considering cases.

The role of the Crown is the starting point. The Crown is not tasked to secure convictions; the Crown’s job is to make sure justice is done.

That means that where there is credible evidence that reasonably could convince a judge (or jury) that an accused is guilty of a crime it is proper for the Crown to put forward that evidence.

Of course, that means if the evidence is not sufficient to meet the standard, the case should not go forward. That’s why Crowns will often withdraw cases saying “there is no reasonable prospect of conviction”.

The RCMP investigate cases and lay charges where they think a case can be proven beyond reasonable doubt – and they are fairly cautious about laying charges.

But the police determination that a case can succeed or ought to go ahead in no way binds the Crown. The RCMP and the Crown are very different and one does not bind the other.

But even if a case is such that it could lead to a conviction, that does not mean the Crown should pursue the case.

The Crown is there to “do justice” and sometimes there are cases that could lead to a conviction but there is no public interest in pursuing the case.

I recently dealt with a situation where an older person of good character was charged with assault. She probably did commit the assault, which was nothing more than a shove, but she had been provoked almost beyond comprehension.

It was a situation where the prosecution could go ahead but there was no good reason for it to go ahead. The public interest certainly did not require a prosecution. As a result the Crown withdrew the charge as not being in the public interest.

All this makes sense in the context of the Crown acting to do justice. If a case is not going to succeed, putting someone through the stress and anxiety of trial is quite unfair.

Similarly, even if a case could succeed if it would do no one any good to get a conviction, justice should be tempered with mercy and no prosecution proceed.

The Crown’s discretion is exercised independently and is not (except maybe in some truly extraordinary circumstance) reviewable by a Court.

It is for the Crown to decide whether justice requires a prosecution. The Court then decides if the prosecution is made out.