MLJ Volume 36-1.pdf - Robson Hall Faculty of Law

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”.