Prosecutorial Discretion: Difference between revisions
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Prosecutorial discretion refers to the "discretion exercised by the Attorney-General in matters within his authority in relation to the prosecution of criminal offences”.<ref> | Prosecutorial discretion refers to the "discretion exercised by the Attorney-General in matters within his authority in relation to the prosecution of criminal offences”.<ref> | ||
R v Anderson, [http://canlii.ca/t/g784t 2014 SCC 41] (CanLII) at para 44<br> | R v Anderson, [http://canlii.ca/t/g784t 2014 SCC 41] (CanLII){{perSCC|Moldaver J}} at para 44<br> | ||
</ref> | </ref> | ||
It encompasses all "decisions regarding the nature and extent of the prosecution and the Attorney General's participation in it".<ref> | It encompasses all "decisions regarding the nature and extent of the prosecution and the Attorney General's participation in it".<ref> | ||
Anderson{{ibid}}, at para 44<br> | |||
Krieger v Law Society of Alberta, [http://canlii.ca/t/51rs 2002 SCC 65] (CanLII), [2002] 3 SCR 372, at para 47<br> | Krieger v Law Society of Alberta, [http://canlii.ca/t/51rs 2002 SCC 65] (CanLII), [2002] 3 SCR 372{{perSCC|Iacobucci and Major JJ}, at para 47<br> | ||
</ref> | </ref> | ||
The prosecution is empowered with discretionary authority over many decisions that have limited ability to be reviewed. | The prosecution is empowered with discretionary authority over many decisions that have limited ability to be reviewed. | ||
The discretion has its origins from the "Royal Prerogative of Justice and its enforcement in maintaining the King's Peace".<Ref> | The discretion has its origins from the "Royal Prerogative of Justice and its enforcement in maintaining the King's Peace".<Ref> | ||
R v Smythe (1971), [http://canlii.ca/t/1vkpf 1971 CanLII 30] (ON CA), 3 CCC(2d) 97 (Ont. C.A.) | R v Smythe (1971), [http://canlii.ca/t/1vkpf 1971 CanLII 30] (ON CA), 3 CCC(2d) 97 (Ont. C.A.){{perONCA|Wells CJHC}}, at p. 105 and p. 109 aff'd at [http://canlii.ca/t/1twrk 1971 CanLII 831] (SCC){{perSCC|Fauteux CJ}}<br> | ||
</ref> | </ref> | ||
The doctrine of prosecutorial discretion is not reviewable by courts except only on proof of abuse of process".<ref> | The doctrine of prosecutorial discretion is not reviewable by courts except only on proof of abuse of process".<ref> | ||
R v Nixon, [http://canlii.ca/t/flzgm 2011 SCC 34] (CanLII), [2011] 2 SCR 566 at paras 20, 63 to 64<Br> | R v Nixon, [http://canlii.ca/t/flzgm 2011 SCC 34] (CanLII), [2011] 2 SCR 566{{perSCC|Charron J}} at paras 20, 63 to 64<Br> | ||
</ref> | </ref> | ||
Discretion must be exercised "in relation to a specific case" and not simply a blanket choice of what laws to enforce.<ref> | Discretion must be exercised "in relation to a specific case" and not simply a blanket choice of what laws to enforce.<ref> | ||
R v Catagas, [http://canlii.ca/t/g9w67 1977 CanLII 1636] (MB CA), [1978] 38 CCC (2d) 296 | R v Catagas, [http://canlii.ca/t/g9w67 1977 CanLII 1636] (MB CA), [1978] 38 CCC (2d) 296{{perMBCA|Freedman CJM}}, at p. 301<Br> | ||
</ref> | </ref> | ||
Courts should be reluctant to interfere with prosecutorial discretion as they must respect the division of powers.<ref> | Courts should be reluctant to interfere with prosecutorial discretion as they must respect the division of powers.<ref> | ||
R v Power, [http://canlii.ca/t/1frvh 1994 CanLII 126] (SCC), [1994] 1 SCR 601 | R v Power, [http://canlii.ca/t/1frvh 1994 CanLII 126] (SCC), [1994] 1 SCR 601{{perSCC| L'Heureux‑Dubé J}} | ||
("courts have been extremely reluctant to interfere with prosecutorial discretion is clear from the case law. They have been so as a matter of principle based on the doctrine of separation of powers ...")<br> | ("courts have been extremely reluctant to interfere with prosecutorial discretion is clear from the case law. They have been so as a matter of principle based on the doctrine of separation of powers ...")<br> | ||
see also R v Cook, [http://canlii.ca/t/1fr1f 1997 CanLII 392] (SCC), [1997] 1 SCR 1113<br> | see also R v Cook, [http://canlii.ca/t/1fr1f 1997 CanLII 392] (SCC), [1997] 1 SCR 1113{{perSCC|L’Heureux‑Dubé J}}<br> | ||
</ref> | </ref> | ||
Discretion is essential to keep the system from becoming "unworkably complex and rigid."<ref> | Discretion is essential to keep the system from becoming "unworkably complex and rigid."<ref> | ||
R v Beare, [1988] 2 SCR 387, [http://canlii.ca/t/1jbbw 1988 CanLII 126] (SCC) at p.410-411 | R v Beare, [1988] 2 SCR 387, [http://canlii.ca/t/1jbbw 1988 CanLII 126] (SCC){{perSCC|La Forest J}} at p.410-411</ref> | ||
Courts should not be reviewing the rationale for each and every decision of the Crown, it would be virtually impossible to have judge made rules to regulate the considerations involved. It would also create a conflict with the judge effectively regulating a prosecution.<ref> | Courts should not be reviewing the rationale for each and every decision of the Crown, it would be virtually impossible to have judge made rules to regulate the considerations involved. It would also create a conflict with the judge effectively regulating a prosecution.<ref> | ||
Power{{supra}} at pp. 626-627<br> | |||
</ref> | </ref> | ||
The court cannot direct the Crown on what offences they must prosecute.<ref> | The court cannot direct the Crown on what offences they must prosecute.<ref> | ||
Power (“A judge does not have the authority to tell prosecutors which crimes to prosecute...”.)<br> | Power{{supra}} (“A judge does not have the authority to tell prosecutors which crimes to prosecute...”.)<br> | ||
</ref> | </ref> | ||
While the Attorney-General may enact policies that limit discretion, they are often considered undesirable.<ref> | While the Attorney-General may enact policies that limit discretion, they are often considered undesirable.<ref> | ||
e.g. R v K.(M.), (1992) 74 CCC (3d) 108, [http://canlii.ca/t/1npk4 1992 CanLII 2765] (MB CA) | e.g. R v K.(M.), (1992) 74 CCC (3d) 108, [http://canlii.ca/t/1npk4 1992 CanLII 2765] (MB CA){{perMBCA| O'Sullivan JA}} at p. 110 - commenting on "zero-tolerance" policy on prosecution</ref> | ||
Core matters of prosecutorial discretion cannot be reviewed except for abuse of process. | Core matters of prosecutorial discretion cannot be reviewed except for abuse of process. | ||
The conduct can be reviewed where the conduct of the Crown consituted a "marked and unacceptable departure from the reasonable standards expected of the prosecution"<ref> | The conduct can be reviewed where the conduct of the Crown consituted a "marked and unacceptable departure from the reasonable standards expected of the prosecution"<ref> | ||
See R v 974649 Ontario Inc., [http://canlii.ca/t/51xh 2001 SCC 81] (CanLII), [2001] 3 SCR 575<br> | See R v 974649 Ontario Inc., [http://canlii.ca/t/51xh 2001 SCC 81] (CanLII), [2001] 3 SCR 575{{perSCC|McLachlin CJ}}<br> | ||
R v L.L., [http://canlii.ca/t/gjqqr 2015 ABCA 222] (CanLII), at para 10<br> | R v L.L., [http://canlii.ca/t/gjqqr 2015 ABCA 222] (CanLII){{TheCourt}}, at para 10<br> | ||
</ref> | </ref> | ||
Matters that have been found to be part of the core function of the Crown and so subject to prosecutorial discretion include:<ref>R v D.N., [http://canlii.ca/t/1hkj0 2004 NLCA 44] (CanLII) at para 17<br> | Matters that have been found to be part of the core function of the Crown and so subject to prosecutorial discretion include:<ref> | ||
R v D.N., [http://canlii.ca/t/1hkj0 2004 NLCA 44] (CanLII){{perNLCA|Wells JA}} at para 17<br> | |||
Krieger{{supra}}<br> | Krieger{{supra}}<br> | ||
Power{{supra}} at para 41 to 43<br> | |||
Beare{{supra}} at pp. 410-411<br> | |||
</ref> | </ref> | ||
* the decision to prosecute | * the decision to prosecute | ||
| Line 64: | Line 65: | ||
* taking control of a private prosecution | * taking control of a private prosecution | ||
* the decision to appeal | * the decision to appeal | ||
* the decision to consent to an adjournment <Ref> | * the decision to consent to an adjournment <Ref>DN{{supra}} and Beare{{supra}} at para 51</ref> | ||
* consenting or refusal to consent to re-election<ref>R v Ng, [http://canlii.ca/t/5bm4 2003 ABCA 1] (CanLII)</ref> | * consenting or refusal to consent to re-election<ref>R v Ng, [http://canlii.ca/t/5bm4 2003 ABCA 1] (CanLII){{perABCA|Wittmann JA}}</ref> | ||
* notice to seek increased penalty<ref>R v Gill, [http://canlii.ca/t/fsrl0 2012 ONCA 607] (CanLII) </ref> | * notice to seek increased penalty<ref>R v Gill, [http://canlii.ca/t/fsrl0 2012 ONCA 607] (CanLII){{perONCA|Doherty JA}}</ref> | ||
It is not constitutionally required that the Crown consider the aboriginal status of the accused before making decisions that will limit the judge's sentencing options.<ref> | It is not constitutionally required that the Crown consider the aboriginal status of the accused before making decisions that will limit the judge's sentencing options.<ref> | ||
R v Anderson, at paras 29 to 33<br> | R v Anderson{{supra}}, at paras 29 to 33<br> | ||
</ref> | </ref> | ||
| Line 75: | Line 76: | ||
The "existence of prosecutorial discretion does not offend the principles of fundamental justice".<ref> | The "existence of prosecutorial discretion does not offend the principles of fundamental justice".<ref> | ||
Beare{{supra}} at para 56<br> | Beare{{supra}} at para 56<br> | ||
R v Lyons, [1987] 2 SCR 309, [http://canlii.ca/t/1ftlw 1987 CanLII 25] (SCC) | R v Lyons, [1987] 2 SCR 309, [http://canlii.ca/t/1ftlw 1987 CanLII 25] (SCC){{perSCC|La Forest J}}, at p. 348<br> | ||
R v Jones, [http://canlii.ca/t/1ftqk 1986 CanLII 32] (SCC), [1986] 2 SCR 284 | R v Jones, [http://canlii.ca/t/1ftqk 1986 CanLII 32] (SCC), [1986] 2 SCR 284{{perSCC|La Forest J}}, at 303-304<br> | ||
</ref> | </ref> | ||
| Line 86: | Line 87: | ||
The Crown does not need to call any witnesses it considers to be unnecessary.<ref> | The Crown does not need to call any witnesses it considers to be unnecessary.<ref> | ||
Lemay v The King, [http://canlii.ca/t/21v5b 1951 CanLII 27] (SCC), [1952] 1 SCR 232, at p. 241<br> | Lemay v The King, [http://canlii.ca/t/21v5b 1951 CanLII 27] (SCC), [1952] 1 SCR 232, at p. 241<br> | ||
R v Jolivet, [http://canlii.ca/t/526w 2000 SCC 29] (CanLII), [2000] 1 SCR 751, at para 14 | R v Jolivet, [http://canlii.ca/t/526w 2000 SCC 29] (CanLII), [2000] 1 SCR 751{{perSCC|Binnie J}}, at para 14 | ||
</ref> Likewise, the crown does not need to call unidentified witnesses or untrustworthy witnesses.<ref>Jolivet{{ibid}} at para 29</ref> | </ref> Likewise, the crown does not need to call unidentified witnesses or untrustworthy witnesses.<ref>Jolivet{{ibid}} at para 29</ref> | ||
There is no obligation on the Crown to call any witnesses at all, short of it amounting to abuse of process.<ref> | There is no obligation on the Crown to call any witnesses at all, short of it amounting to an abuse of process.<ref> | ||
R v Rezaei, [http://canlii.ca/t/h36gx 2017 BCSC 611] (CanLII)<br> | R v Rezaei, [http://canlii.ca/t/h36gx 2017 BCSC 611] (CanLII){{perBCSC|Jenkins J}}<br> | ||
R v Cook, [http://canlii.ca/t/1fr1f 1997 CanLII 392] (SCC), [1997] S.C.J. No. 2 | R v Cook, [http://canlii.ca/t/1fr1f 1997 CanLII 392] (SCC), [1997] S.C.J. No. 2{{perSCC|L'Heureux-Dube J}}, at para 56<br> | ||
</ref> | </ref> | ||
The decision to call a witness on a related subject after the Crown had determined the witness is otherwise unreliable can be acceptable in some circumstances.<ref> | The decision to call a witness on a related subject after the Crown had determined the witness is otherwise unreliable can be acceptable in some circumstances.<ref> | ||
R v LL, [http://canlii.ca/t/gjqqr 2015 ABCA 222] (CanLII)<br> | R v LL, [http://canlii.ca/t/gjqqr 2015 ABCA 222] (CanLII){{TheCourt}}<br> | ||
</ref> | </ref> | ||
{{reflist|2}} | {{reflist|2}} | ||
==Relationship with Police== | ==Relationship with Police== | ||
The Crown and police are to consult with each other but the "maintenance of a distinct line between these two functions is essential to the proper administration of justice."<ref>See Marshall Inquiry http://www.gov.ns.ca/just/ | The Crown and police are to consult with each other but the "maintenance of a distinct line between these two functions is essential to the proper administration of justice."<ref>See Marshall Inquiry http://www.gov.ns.ca/just/marshall_inquiry/</ref> | ||
The Crown can be liable for their part in giving advice to police during an investigation.<Ref> | The Crown can be liable for their part in giving advice to police during an investigation.<Ref> | ||
see Dix v Canada (Attorney General), [http://canlii.ca/t/dwr 2002 ABQB 580] (CanLII)<br> | see Dix v Canada (Attorney General), [http://canlii.ca/t/dwr 2002 ABQB 580] (CanLII){{perABQB|Ritter J}}<br> | ||
Proulx v Quebec (Attorney General), [http://canlii.ca/t/51zl 2001 SCC 66] (CanLII), [2001] 3 SCR 9<br> | Proulx v Quebec (Attorney General), [http://canlii.ca/t/51zl 2001 SCC 66] (CanLII), [2001] 3 SCR 9{{perSCC|Iacobucci and Binnie JJ}}<br> | ||
</ref> | </ref> | ||
While it is acceptable, the Crown should not try to be involved in interviews with parties prior to charges being laid.<ref> | While it is acceptable, the Crown should not try to be involved in interviews with parties prior to charges being laid.<ref> | ||
R v Regan, [http://canlii.ca/t/51v8 2002 SCC 12], [2002] 1 SCR 297 at 61-70</ref> | R v Regan, [http://canlii.ca/t/51v8 2002 SCC 12], [2002] 1 SCR 297{{perSCC|LeBel J}} at 61-70</ref> | ||
{{reflist|2}} | {{reflist|2}} | ||
| Line 117: | Line 117: | ||
Most prosecution offices are guided by Crown Policy manuals requirements that there be a "reasonable prospect of conviction" and there is a "public interest" in the proceeding.<ref> | Most prosecution offices are guided by Crown Policy manuals requirements that there be a "reasonable prospect of conviction" and there is a "public interest" in the proceeding.<ref> | ||
Miazga v Kvello Estate, [2009] 3 SCR 339, [http://canlii.ca/t/26g27 2009 SCC 51] (CanLII), at para 64 | Miazga v Kvello Estate, [2009] 3 SCR 339, [http://canlii.ca/t/26g27 2009 SCC 51] (CanLII){{perSCC|Charron J}}, at para 64 | ||
</ref> | </ref> | ||
| Line 125: | Line 125: | ||
Considerations on the exercise of discretion must take into account the interest of the individual and the public interest.<Ref> | Considerations on the exercise of discretion must take into account the interest of the individual and the public interest.<Ref> | ||
R v Harrigan and Graham (1975), 33 C.R.N.S. 60 (Ont. C.A.) | R v Harrigan and Graham (1975), 33 C.R.N.S. 60 (Ont. C.A.){{NOCANLII}}{{perONCA|Henry J}}, stated, at p. 69 ("In exercising these powers, which vitally concern the right and liberty of the individual, he must take into account not only the interest of the individual but also what the public interest requires.")<Br> | ||
R v Kenny, [http://canlii.ca/t/1p8vw 1991 CanLII 2738] (NL SC) | R v Kenny, [http://canlii.ca/t/1p8vw 1991 CanLII 2738] (NL SC){{perNLSC|Barry J}} | ||
</ref> | </ref> | ||
Re-evaluation of proceedings can be based on aspects that | Re-evaluation of proceedings can be based on aspects that come to light at trial:<ref> Miazga v Kvello Estate, at para 76</ref> | ||
* witnesses may not testify in accordance with their earlier statements; | * witnesses may not testify in accordance with their earlier statements; | ||
* weaknesses in the evidence may be revealed during cross-examination; | * weaknesses in the evidence may be revealed during cross-examination; | ||
| Line 140: | Line 140: | ||
{{seealso|Crown Election}} | {{seealso|Crown Election}} | ||
The decision to proceed either by summary conviction or by imdictment is an "essential component of the fair and efficient operation of the criminal justice system".<ref> | The decision to proceed either by summary conviction or by imdictment is an "essential component of the fair and efficient operation of the criminal justice system".<ref> | ||
R v Nur, [http://canlii.ca/t/g22fg 2013 ONCA 677] (CanLII) | R v Nur, [http://canlii.ca/t/g22fg 2013 ONCA 677] (CanLII){{perONCA|Doherty JA}}, at para. 190, appealed to SCC on other issues at [http://canlii.ca/t/gh5ms 2015 SCC 15] (CanLII){{perSCC|McLachlin CJ}}<Br> | ||
</ref> | </ref> | ||
Revision as of 23:15, 4 November 2018
- < Procedure and Practice
- < Role of Parties in Proceedings
General Principles
Prosecutorial discretion refers to the "discretion exercised by the Attorney-General in matters within his authority in relation to the prosecution of criminal offences”.[1] It encompasses all "decisions regarding the nature and extent of the prosecution and the Attorney General's participation in it".[2] The prosecution is empowered with discretionary authority over many decisions that have limited ability to be reviewed.
The discretion has its origins from the "Royal Prerogative of Justice and its enforcement in maintaining the King's Peace".[3]
The doctrine of prosecutorial discretion is not reviewable by courts except only on proof of abuse of process".[4]
Discretion must be exercised "in relation to a specific case" and not simply a blanket choice of what laws to enforce.[5]
Courts should be reluctant to interfere with prosecutorial discretion as they must respect the division of powers.[6]
Discretion is essential to keep the system from becoming "unworkably complex and rigid."[7]
Courts should not be reviewing the rationale for each and every decision of the Crown, it would be virtually impossible to have judge made rules to regulate the considerations involved. It would also create a conflict with the judge effectively regulating a prosecution.[8]
The court cannot direct the Crown on what offences they must prosecute.[9]
While the Attorney-General may enact policies that limit discretion, they are often considered undesirable.[10]
Core matters of prosecutorial discretion cannot be reviewed except for abuse of process.
The conduct can be reviewed where the conduct of the Crown consituted a "marked and unacceptable departure from the reasonable standards expected of the prosecution"[11]
Matters that have been found to be part of the core function of the Crown and so subject to prosecutorial discretion include:[12]
- the decision to prosecute
- the stay of a charge
- the withdraw of a charge
- the acceptance of a lesser charge
- the Crown election
- taking control of a private prosecution
- the decision to appeal
- the decision to consent to an adjournment [13]
- consenting or refusal to consent to re-election[14]
- notice to seek increased penalty[15]
It is not constitutionally required that the Crown consider the aboriginal status of the accused before making decisions that will limit the judge's sentencing options.[16]
Constitutionality
The "existence of prosecutorial discretion does not offend the principles of fundamental justice".[17]
- ↑
R v Anderson, 2014 SCC 41 (CanLII), per Moldaver J at para 44
- ↑
Anderson, ibid., at para 44
Krieger v Law Society of Alberta, 2002 SCC 65 (CanLII), [2002] 3 SCR 372{{perSCC|Iacobucci and Major JJ}, at para 47
- ↑
R v Smythe (1971), 1971 CanLII 30 (ON CA), 3 CCC(2d) 97 (Ont. C.A.), per Wells CJHC, at p. 105 and p. 109 aff'd at 1971 CanLII 831 (SCC), per Fauteux CJ
- ↑
R v Nixon, 2011 SCC 34 (CanLII), [2011] 2 SCR 566, per Charron J at paras 20, 63 to 64
- ↑
R v Catagas, 1977 CanLII 1636 (MB CA), [1978] 38 CCC (2d) 296, per Freedman CJM, at p. 301
- ↑
R v Power, 1994 CanLII 126 (SCC), [1994] 1 SCR 601, per L'Heureux‑Dubé J
("courts have been extremely reluctant to interfere with prosecutorial discretion is clear from the case law. They have been so as a matter of principle based on the doctrine of separation of powers ...")
see also R v Cook, 1997 CanLII 392 (SCC), [1997] 1 SCR 1113, per L’Heureux‑Dubé J
- ↑ R v Beare, [1988] 2 SCR 387, 1988 CanLII 126 (SCC), per La Forest J at p.410-411
- ↑
Power, supra at pp. 626-627
- ↑
Power, supra (“A judge does not have the authority to tell prosecutors which crimes to prosecute...”.)
- ↑ e.g. R v K.(M.), (1992) 74 CCC (3d) 108, 1992 CanLII 2765 (MB CA), per O'Sullivan JA at p. 110 - commenting on "zero-tolerance" policy on prosecution
- ↑
See R v 974649 Ontario Inc., 2001 SCC 81 (CanLII), [2001] 3 SCR 575, per McLachlin CJ
R v L.L., 2015 ABCA 222 (CanLII), per curiam, at para 10
- ↑
R v D.N., 2004 NLCA 44 (CanLII), per Wells JA at para 17
Krieger, supra
Power, supra at para 41 to 43
Beare, supra at pp. 410-411
- ↑ DN, supra and Beare, supra at para 51
- ↑ R v Ng, 2003 ABCA 1 (CanLII), per Wittmann JA
- ↑ R v Gill, 2012 ONCA 607 (CanLII), per Doherty JA
- ↑
R v Anderson, supra, at paras 29 to 33
- ↑
Beare, supra at para 56
R v Lyons, [1987] 2 SCR 309, 1987 CanLII 25 (SCC), per La Forest J, at p. 348
R v Jones, 1986 CanLII 32 (SCC), [1986] 2 SCR 284, per La Forest J, at 303-304
Calling Witnesses
The Crown does not need to call any witnesses it considers to be unnecessary.[1] Likewise, the crown does not need to call unidentified witnesses or untrustworthy witnesses.[2]
There is no obligation on the Crown to call any witnesses at all, short of it amounting to an abuse of process.[3]
The decision to call a witness on a related subject after the Crown had determined the witness is otherwise unreliable can be acceptable in some circumstances.[4]
- ↑
Lemay v The King, 1951 CanLII 27 (SCC), [1952] 1 SCR 232, at p. 241
R v Jolivet, 2000 SCC 29 (CanLII), [2000] 1 SCR 751, per Binnie J, at para 14 - ↑ Jolivet, ibid. at para 29
- ↑
R v Rezaei, 2017 BCSC 611 (CanLII), per Jenkins J
R v Cook, 1997 CanLII 392 (SCC), [1997] S.C.J. No. 2, per L'Heureux-Dube J, at para 56
- ↑
R v LL, 2015 ABCA 222 (CanLII), per curiam
Relationship with Police
The Crown and police are to consult with each other but the "maintenance of a distinct line between these two functions is essential to the proper administration of justice."[1]
The Crown can be liable for their part in giving advice to police during an investigation.[2]
While it is acceptable, the Crown should not try to be involved in interviews with parties prior to charges being laid.[3]
- ↑ See Marshall Inquiry http://www.gov.ns.ca/just/marshall_inquiry/
- ↑
see Dix v Canada (Attorney General), 2002 ABQB 580 (CanLII), per Ritter J
Proulx v Quebec (Attorney General), 2001 SCC 66 (CanLII), [2001] 3 SCR 9, per Iacobucci and Binnie JJ
- ↑ R v Regan, 2002 SCC 12, [2002] 1 SCR 297, per LeBel J at 61-70
Evaluating Whether to Proceed
Most prosecution offices are guided by Crown Policy manuals requirements that there be a "reasonable prospect of conviction" and there is a "public interest" in the proceeding.[1]
One cannot evaluate the decisions of the Crown to proceed retroactively. The context of what was known at the time.[2]
Considerations on the exercise of discretion must take into account the interest of the individual and the public interest.[3]
Re-evaluation of proceedings can be based on aspects that come to light at trial:[4]
- witnesses may not testify in accordance with their earlier statements;
- weaknesses in the evidence may be revealed during cross-examination;
- scientific evidence may be proved faulty; or
- defence evidence may shed an entirely different light on the circumstances as they were known at the time process was initiated.
- ↑ Miazga v Kvello Estate, [2009] 3 SCR 339, 2009 SCC 51 (CanLII), per Charron J, at para 64
- ↑
Miazga v Kvello Estate, ibid. at para 76
- ↑
R v Harrigan and Graham (1975), 33 C.R.N.S. 60 (Ont. C.A.)(*no CanLII links)
, per Henry J, stated, at p. 69 ("In exercising these powers, which vitally concern the right and liberty of the individual, he must take into account not only the interest of the individual but also what the public interest requires.")
R v Kenny, 1991 CanLII 2738 (NL SC), per Barry J - ↑ Miazga v Kvello Estate, at para 76
Crown Election
The decision to proceed either by summary conviction or by imdictment is an "essential component of the fair and efficient operation of the criminal justice system".[1]
- ↑
R v Nur, 2013 ONCA 677 (CanLII), per Doherty JA, at para. 190, appealed to SCC on other issues at 2015 SCC 15 (CanLII), per McLachlin CJ