MLJ Volume 36-1.pdf - Robson Hall Faculty of Law
MLJ Volume 36-1.pdf - Robson Hall Faculty of Law MLJ Volume 36-1.pdf - Robson Hall Faculty of Law
2 MANITOBA LAW JOURNAL|VOLUME 36 ISSUE 1 Other provinces and the federal government watched the review unfold over the next several years with a degree of anxiety, and perhaps a healthy dose of scepticism. After all, is this really a proper role for the Crown? Isn’t the Criminal Code based on the fundamental proposition that the Crown prosecutes alleged offenders, leaving to the private bar and legal aid societies the responsibility to defend and pursue individual cases where there is reason to believe that a miscarriage of justice may have occurred? To be sure, Crown counsel may quite properly stay or withdraw proceedings, or even concede an appeal against conviction in individual cases where it becomes evident that the evidence does not support prosecution. But that occurs in individual cases on the basis of specific facts. Is it a proper function for the Crown to conduct what is essentially an unfocused “sweep” of cases to see if a miscarriage of justice may have occurred? If it is a proper role, where does the authority come from? And what prompted such an unusual step in Manitoba? By 2012, the review had been completed, at least one and possibly two miscarriages had been discovered, a Commission of Inquiry led by a former Chief Justice from Ontario had recommended that a review of this nature be undertaken at the national level, and all provinces had subsequently followed suit with similar reviews. In this essay, I will describe the “backstory” to this legal experiment, hatched initially in Manitoba but subsequently embraced widely throughout Canada. II. THE BIFURCATED ROLE OF PROSECUTORS IN CANADA The starting point in this discussion necessarily involves an understanding of the role and responsibilities of prosecuting counsel. At law, Crown counsel in Canada, and more widely throughout the Commonwealth, have two separate and distinct roles. The first, that of “advocate”, is well understood and publicly very visible. In respect of this role, the Supreme Court of Canada has observed that it is “both permissible and desirable” that the Crown “vigorously pursue a legitimate result to the best of its ability”. 1 “Indeed”, the Court added, “this is a 1 R v Cook, [1997] 1 SCR 1113 at para 21, 146 DLR (4th) 437 [Cook]. To paraphrase Justice Moldaver, then of the Ontario Court of Appeal and now of the Supreme Court of Canada, a criminal trial is not a tea party: R v Baltrusaitis (2002), 58 OR (3d) 161 at para 34, 162 CCC (3d) 539. In this respect, see Robert J Frater, Prosecutorial
Wrongful Convictions 3 critical element of this country’s criminal law mechanism”. 2 As a consequence, prosecuting counsel are expected to be firm and press the evidence to its legitimate strength. The second role, facially at odds with that of advocate, is the role of Crown attorneys as “ministers of justice”. The locus classicus concerning this responsibility was first described in 1954 by Rand J on behalf of the Supreme Court of Canada. It has since been affirmed repeatedly by the Supreme Court, and has been adopted with approval by such diverse appellate courts as the Privy Council in the UK, the House of Lords, the Supreme Court of Ireland, the High Court of Australia and the Supreme Court of Appeal of South Africa: 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 the prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility. It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings. 3 In short, the prosecutor does not act in the largely partisan sense usually required of defence counsel by the adversarial system, but as a promoter of the public interest in achieving a just result. Significantly, the Misconduct (Aurora, Ont: Canada Law Book, 2009) at 2-3. 2 Cook, supra note 1. See also R v Assoun, 2006 NSCA 47 at paras 226–228, 244 NSR (2d) 96, leave to appeal to SCC refused [2006] 2 SCR iv, 359 NR 392 (note). 3 Boucher v The Queen (1954), [1955] SCR 16 at 23-24, 110 CCC 263; re-affirmed in: R v Regan, 2002 SCC 12 at paras 19, 62, 65, 137, 151, 153 and 155, [2002] 1 SCR 297 [Regan]. Note especially para 155, where it is observed that this role is not confined to the courtroom, but extends to all dealings with the accused. See also Miazga v Kvello Estates, 2009 SCC 51 at paras 7, 47, and 88-89, [2009] 3 SCR 339; R v Stinchcombe, [1991] 3 SCR 326 at 341, 68 CCC (3d) 1; Nelles v Ontario, [1989] 2 SCR 170 at 191, 60 DLR (4th) 609. Outside Canada, the Boucher principle has been approved in Randall v The Queen, [2002] UKPC 19; Benedetto v The Queen, [2003] UKPC 27; R v H, [2004] UKHL 3; Libke v R, [2007] HCA 30; DO v DPP, [2006] IESC 12; and Van der Westhuizen v S, [2011] ZASCA 36. Frater, supra note 1 at 2, says that “[t]he enormously influential nature of that statement cannot be gainsaid”.
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2 MANITOBA LAW JOURNAL|VOLUME <strong>36</strong> ISSUE 1<br />
Other provinces and the federal government watched the review<br />
unfold over the next several years with a degree <strong>of</strong> anxiety, and perhaps a<br />
healthy dose <strong>of</strong> scepticism. After all, is this really a proper role for the<br />
Crown? Isn’t the Criminal Code based on the fundamental proposition that<br />
the Crown prosecutes alleged <strong>of</strong>fenders, leaving to the private bar and<br />
legal aid societies the responsibility to defend and pursue individual cases<br />
where there is reason to believe that a miscarriage <strong>of</strong> justice may have<br />
occurred? To be sure, Crown counsel may quite properly stay or withdraw<br />
proceedings, or even concede an appeal against conviction in individual<br />
cases where it becomes evident that the evidence does not support<br />
prosecution. But that occurs in individual cases on the basis <strong>of</strong> specific<br />
facts. Is it a proper function for the Crown to conduct what is essentially<br />
an unfocused “sweep” <strong>of</strong> cases to see if a miscarriage <strong>of</strong> justice may have<br />
occurred? If it is a proper role, where does the authority come from? And<br />
what prompted such an unusual step in Manitoba?<br />
By 2012, the review had been completed, at least one and possibly two<br />
miscarriages had been discovered, a Commission <strong>of</strong> Inquiry led by a<br />
former Chief Justice from Ontario had recommended that a review <strong>of</strong> this<br />
nature be undertaken at the national level, and all provinces had<br />
subsequently followed suit with similar reviews. In this essay, I will<br />
describe the “backstory” to this legal experiment, hatched initially in<br />
Manitoba but subsequently embraced widely throughout Canada.<br />
II. THE BIFURCATED ROLE OF PROSECUTORS IN CANADA<br />
The starting point in this discussion necessarily involves an<br />
understanding <strong>of</strong> the role and responsibilities <strong>of</strong> prosecuting counsel. At<br />
law, Crown counsel in Canada, and more widely throughout the<br />
Commonwealth, have two separate and distinct roles. The first, that <strong>of</strong><br />
“advocate”, is well understood and publicly very visible. In respect <strong>of</strong> this<br />
role, the Supreme Court <strong>of</strong> Canada has observed that it is “both<br />
permissible and desirable” that the Crown “vigorously pursue a legitimate<br />
result to the best <strong>of</strong> its ability”. 1 “Indeed”, the Court added, “this is a<br />
1<br />
R v Cook, [1997] 1 SCR 1113 at para 21, 146 DLR (4th) 437 [Cook]. To paraphrase<br />
Justice Moldaver, then <strong>of</strong> the Ontario Court <strong>of</strong> Appeal and now <strong>of</strong> the Supreme<br />
Court <strong>of</strong> Canada, a criminal trial is not a tea party: R v Baltrusaitis (2002), 58 OR (3d)<br />
161 at para 34, 162 CCC (3d) 539. In this respect, see Robert J Frater, Prosecutorial
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