Crown Role Flashcards
₢ shall act for:
The public and the administration of justice
₢ shall act:
- Resolutely,
- Honourably
- Within the limits of the law
₢ shall treat the tribunal with:
- Candour
- Fairness
- Courtesy, and
- Respect
₢ shall treat all persons with whom₢ has dealing with:
- Courtesy
- Civility
- Good faith
₢ should take care when dealing with self represented people:
To ensure that unrepresented person does not think his interests are protected by lawyer
When caselaw is discussed in court, ₢ should:
Inform the court of any binding authority that they consider to be directly on point and hasn’t been mentioned
Boucher v The Queen [1955] SCR 16
- Purpose of prosecution is not to obtain a conviction
- Excludes any notion of winning or losing
- Public duty with great personal responsibility
What should occur when speaking with self reps:
- 3rd party should be present
- Should inform A that need not say anything and anything that is said will be noted down and record kept
- Should make clear no privilege arises – not their lawyer
- Should advise to retain csl
- Keep detailed records of all discussions
What should not occur when speaking with self reps:
- Should not initiate negotiations - advise of s.606(1)
- Shouldn’t conduct plea or sentence negotiations unless satisfied that A accepts responsibility for all elements of the offence
S. 651(2)
Codifies the right for the accused to be self represented
R v Swain [1991] 1 SCR 933
The accused as the right to control their own defence
What duty does the TJ have toward self represented accused persons?
General duty to ensure that they receive a fair trial.
Not entitled to any special advantage
Relationship between ₢ and Police
- Separation necessary for proper administration of justice
- Ensure that ₢ uphold rolse as minister of justice
How should the ₢ advocate?
- Vigorously
2. Objectively defend the general public interest
Campbell v Shirose [1991] 1 SCr 565
Leading case on solicitor-client privileged between Crown and Police service
Who is the client of the ₢?
- The police service not individual officers
- Officers can share information among each other
- Individual officer may not have authority to waive the privilege
What creates solicitor-client privilege?
- A communication
- Made in confidence
- With a lawyer
- For the purpose of giving or receiving legal advice
What does privilege encompass?
The factual information
How must privilege be waived?
- Knowingly and deliberately
2. Inadvertent disclosure does not equal implicit waiver
Exceptions to solicitor-client privlege
- Innocence at stake - onus on accused - stringent test
2. Good faith police conduct
S. 37, 38, 39 CEA
Public Interest Privilege
What does public interest privileged cover?
- Investigative techniques
- Ongoing investigations
- Safety of individuals
- Police internal communications
What does litigation privileged cover?
- Discussions and notes from meetings with officers in preparation for trial
- May apply to material jointly prepared by ₢ and officer at request of₢
Advising the police
- Essential to avoid conduct that blurs the distinction between the investigation and proprietorial functions
- Appropriate to assist police during pre-charge and post-charge stages
Where is the authority for ₢ to request further investigation?
1s. 11(a) of the CAA
R v Darwish [2010] OJ No 604 (CA)
The disclosure right of the accused does not require police to investigate potential defences
R v McNeil [2009] SCC 3
₢ must disclose info about any police misconduct where the findings or allegations:
- Relate to the subject matter of the offence (disclose)
- Could reasonably bear on the case
Factors to consider when disclosing McNeil reports where there are findings/ allegations of serious misconduct
- Likely relevance standard
- or Not clearly irrelevant standard
- Need to look to the role the officer played in the case
- Determine whether the nature of the misconduct is relevant
On notice of potentially relevant info re: officer credibility/reliability
- Duty to inquire on other government agencies/police forces and obtain info if it is reasonable feasible to do so
- Related to ₢ duty to the administration of justice
₢ gatekeeper role re McNeil
- Determine whether police misconduct records fall within Stitchcombe
- Or if the records are not likely relevant and are covered by O’Connor
When disclosing McNeil report:
- In sealed envelope
- When accepted, implied undertaking not to use in non-case related way
- Self reps need to review on site
Cross on witness facing outstanding charges:
- Not permitted without proper foundation to establish relevance
- Cross on act underlying outstanding charge permitted when facts are relevant to W’s credibility
- Need to keel collateral fact rule in mind
Crown discretion
- High degree of discretion
2. Unless abuse of process contrary to s. 7
Allegations of Crown misconduct
- Need to advise Crown Attorney
2. If related to ongoing prosecution. must be re-assigned
When Crown misconduct is found
- Either: fairness of trial or contravenes integrity of the judicial process
- Don’t need bad faith
Remedy for Crown misconduct
Stay but must consider any other remedy first
