Footnote added to Handbook to affirm prosecutorial discretion

The Benchers have amended Chapter 8, Rule 18 "Duties of prosecutor" in the Professional Conduct Handbook by adding a footnote to clarify that the rule is not intended to interfere with the proper exercise of prosecutorial discretion.

The change was made in light of the Supreme Court of Canada decision in Krieger v. Law Society of Alberta, [2002] 3 S.C.R. 372; 2002 S.C.C. 65 (see below). In that case, the Court found that the exercise of the prosecutorial discretion must be treated with deference by the courts, the executive branch of government and provincial law societies. A law society could, however, review an allegation that a prosecutor, acting dishonestly or in bad faith, failed to disclose relevant information.

Chapter 8, Rule 18 of the Handbook, as amended by footnote 1, reads:

Duties of prosecutor

18. When engaged as a prosecutor the lawyer's prime duty is not to seek a conviction, but to see that justice is done. The prosecutor exercises a public function involving much discretion and power, and must act fairly and dispassionately. The prosecutor should not do anything that might prevent the accused from being represented by counsel or communicating with counsel and, to the extent required by law and accepted practice, should make timely disclosure to defence counsel or to an unrepresented accused of all relevant facts and known witnesses, whether tending to show guilt or innocence, or that would affect the punishment of the accused.1

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1 In view of the policy, legal and constitutional considerations that favour permitting prosecutors to function independently, this rule is not intended to interfere with the proper exercise of a prosecutor's discretion. See Krieger v. Law Society of Alberta, [2002] 3 S.C.R. 372 and other cases.

Krieger v. Law Society of Alberta

In Krieger, a prosecutor in Alberta was assigned to prosecute an accused charged with murder. Prior to the commencement of the preliminary hearing, the prosecutor received the results of DNA and biological tests conducted on blood found at the scene of the crime, which implicated a different person than the accused. Ten days later, he advised counsel for the accused that the results of the testing would not be available in time for the preliminary hearing. Defence counsel only learned of the testing results at the preliminary hearing and complained to the Deputy Attorney General that there had been a lack of timely and adequate disclosure.

The prosecutor was reprimanded and removed from the case after a finding that the delay was unjustified. Six months later, the accused complained to the Law Society of Alberta about the prosecutor's conduct. The prosecutor sought an order that the Law Society had no jurisdiction to review the exercise of prosecutorial discretion by a Crown prosecutor and an order that the Rule of the Alberta Code of Professional Conduct requiring a prosecutor to make timely disclosure to the accused or defence counsel was of no force and effect. The prosecutor's application was dismissed in the Court of Queen's Bench, but that decision was overturned by the Court of Appeal.

On further appeal to the Supreme Court of Canada, the Court held that the Rule and Commentary in the Code of Professional Conduct were intra vires the Legislature of Alberta.

The Court determined that the exercise of prosecutorial discretion must be treated with deference by the courts and members of the executive, as well as by statutory bodies such as provincial law societies. As such, it will not be reviewable except in cases of flagrant impropriety, such as dishonesty or bad faith. Without being exhaustive, the core elements of prosecutorial discretion encompass whether to: (a) bring the prosecution of a charge laid by police; (b) enter a stay of proceedings in either a private or public prosecution, (c) accept a guilty plea to a lesser charge, (d) withdraw from criminal proceedings altogether and (e) take control of a private prosecution.

The Court found that the disclosure of evidence is not a matter of prosecutorial discretion but rather is a legal duty of the prosecution. It followed that the Law Society had the jurisdiction to review an allegation that a Crown prosecutor, acting dishonestly or in bad faith, failed to disclose relevant information. This was so notwithstanding that the Attorney General had reviewed the conduct from the perspective of an employer.