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Conflict of
Interest
The Seven Deadly Prosecutorial
Sins
(Cite as: 7 Can. Crim. L. Rev.
209, *218)
*
Canadian Criminal Law Review
April, 2002
Article
*209 The Seven Deadly Prosecutorial Sins
[FNd1]
Robert J. Frater [FNa1]
The last decade has seen a
marked increase in criminal litigation concerning the conduct
of Crown counsel. The most prevalent forms of misbehaviour engaged
in by Crown counsel -- inflammatory jury addresses and improper
cross- examination, for example -- can be be categorized according
to the seven deadly sins: gluttony, lust, greed, pride, sloth,
envy and wrath. The author offers advice as to how prosecutors
can strive to achieve the standard of practice contemplated by
Mr. Justice Rand's famous admonition in R. v. Boucher.
A. Introduction
It is customary in articles on Crown advocacy written by prosecutors
to begin by paying homage to the words of Mr. Justice Rand in
R. v. Boucher. [FN1] This article is no different. To guard against
the extremely unlikely possibility that there is a Crown counsel
who hasn't read them, here they are:
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 also
must be done fairly. The role of 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.
We have read these words again and again in training materials,
policy manuals and court judgments, but alas, it must be said,
many of us have failed to live by them. The last decade has seen
an explosion in case law in which the conduct of Crown counsel
was, if not a decisive legal issue, an important one.
Compared to defence counsel, perhaps we should not feel so bad:
while the allegation against Crown counsel is usually some type
of error in judgment, the same decade has also seen an explosion
in case law in relation to defence counsel's alleged incompetence.
[FN3] Then again, we have always held ourselves, and the courts
have too, to a higher standard of conduct.
The result is that these are not comfortable times to be a Crown
counsel. [FN4] We were, and are, much more comfortable in defending
allegations of misconduct by the police and other government
officials, where we can retain a sense of detachment.
In the hope of in some small
way of assisting counsel in attaining the "Bouchervian"
ideal, I have examined the case law from the last decade or so
and attempted to group the most prevalent allegations of Crown
misconduct; recognizing that you have a problem is the first
step toward dealing with it. Much to my surprise, my reading
uncovered that there was a striking correspondence between the
types of misconduct alleged against Crown counsel and the seven
deadly sins: gluttony, lust, greed, pride, sloth, envy and wrath.
B.
A Glutton for Punishment -- Destroying your Case by Attacking
the Accused
One of the stereotypes of criminal law practice is that defence
counsel can't lead evidence-in-chief, and prosecutors can't cross-examine.
Not being a great cross-examiner is no sin; compensating for
it by employing dubious cross-examination techniques is. The
volume of case law in this area suggests some fairly widespread
misconceptions about cross-examination.
Three things are particularly disturbing about this recent case
law. First is simply the sheer number of cases in which improper
Crown cross-examination has led to a new trial.
Second is an equally unattractive fact: most of the examples
appear to be such obvious examples of plainly bad advocacy, you
are left to wonder "what was he/she thinking?" The
nadir was reached in R. v. Kaufman, [FN7] as this short extract
of the cross-examination reveals:
The Court: Maître P., Maître P., you will not
argue with the witness please and you will keep the line of questions
as per -- you will keep the line of questions ...
Crown Counsel: Of course, of course. This is a game between me
and Mr. Kaufman.
The Court: I understand that you -- it is not a game.
Crown Counsel: I know it is not a game but it's time to -- you
know, it is something between him and me now.
The third concern, which perhaps
explains both why the bulk of the case law in the area is post-1982,
and why the commission of the sin so often leads to a new trial,
is that the impugned cross-examination tends to indicate a lack
of respect for certain of an accused's Charter rights.
Three rights in particular
are usually involved when courts find a Crown cross-examination
to be improper:
(a) the right to silence;
(b) the right to disclosure of the Crown's case; and
(c) the protection against self-incrimination provided by section
13 of the Charter.
R. v. Cones serves to illustrate the first type of case. It was
a case in which the accused, while testifying, offered for the
first time an explanation for the bad driving that had led to
criminal negligence charges. Crown counsel demanded to know why
this explanation had not been offered immediately upon arrest.
The Ontario Court of Appeal took some pains to point out how
such a line of cross-examination subverts the right to silence:
"[t]he accused was painted as a potential perjurer by reason
of his silence on arrest".
The disclosure cases also involve a recurring fact pattern: faced
with what the Crown believes is a cleverly concocted defence,
Crown counsel suggests to the accused that the defence has been
tailored to conform to disclosure materials provided by the Crown.
[FN10] The suggestion rarely takes the cross-examiner anywhere,
[FN11] for the accused simply denies it.
The third area involves cross-examination on knowledge of section
13 Charter rights. This has arisen in situations where Crown
counsel wants to suggest that the only reason testimony is being
given by a defence witness is that the person realizes the testimony
cannot be used against him or her. The Supreme Court of Canada
effectively ended the debate as to whether this line of questioning
was appropriate in R. v. Jabarianha, [FN12] ruling that it can
only be done in "rare circumstances."
Crown counsel must be particularly vigilant in guarding against
allegations of lack of respect for an accused's Charter rights.
It is perhaps an understandable byproduct of Crown practice,
given that Crown counsel are inevitably in the position of advocating
narrow interpretations of Charter rights, [FN13] and frequently
are burdened with responding to Charter applications that may
be justifiably viewed as fanciful. The realities of Crown practice
should not, however, foster an attitude of disrespect for Charter
values that permeates counsel's advocacy.
The one other area of improper Crown cross-examination that bears
mentioning is the most frequently recurring attack on an accused,
which is usually along the lines of, "so, are you saying
the police/witness(es) are lying?" Since this was recognized
as improper by the Supreme Court of Canada 20 years before Boucher,
its persistence is a source of interest. Given its frequency,
it is difficult to argue against the idea that it must have at
least some intuitive appeal. The attitude of the courts may be
explained on the basis that it comes within a category of things
which, Lord Pearce has said,
[though they might] obliquely throw some light on the issues
must in practice be discarded because there is not an infinity
of time, money and mental comprehension available to make use
of them.
C. Lusting
after Conviction -- Improperly Arousing the Jury's Passions
For every Crown counsel who believes sarcasm, abuse, and gross
exaggeration are effective tools of cross-examination, there
is an equal number that believe those devices add a desirable
rhetorical flourish to a jury address. Unfortunately for such
counsel, appellate courts tend to have a more prosaic view of
what constitutes acceptable Crown oratory.
The case law concerning inflammatory Crown jury addresses has
proliferated just as rapidly as the case law on improper Crown
cross-examination. Often, the two complaints have been combined
to torpedo a conviction that was amply justified on the evidence.
Though the number of ways a Crown's closing address may be improper
is considerable, counsel can avoid most of the mistrial/retrial
deathtraps by remembering four simple rules.
1. It is
not Your Prosecution
Jury trials are frequently long and hard-fought. The investment
of time and energy understandably leads Crown counsel to have
strong feelings about "my case". Appellate courts tend
to be critical of Crown counsel who personalize the case in various
ways. Indeed, it should never be forgotten that R. v. Boucher
was a case about a Crown jury address, where counsel used language
which suggested that the Crown would only prosecute where a thorough
investigation had satisfied the authorities of the accused's
guilt, and he did believe in the accused's guilt. He asked the
jury to find the accused guilty and give him the pleasure of
asking for the death penalty. [FN18]
Here are some of the ways in which a prosecution may be inappropriately
personalized:
- . reliance on the office of
Crown counsel as being inherently trustworthy;
- . suggesting the jury and
the Crown are engaged in a common cause;
- . expressions of personal
opinion -- "I believe", "I think".
2. Defence
Counsel and their Clients are not Evil
Even though the accused's cascading criminal record barely fits
in your file, and even though defence counsel's conduct may have
challenged conventional ideas about what constitutes ethical
practice, it is not Crown counsel's job to belittle, besmirch
or berate either before the jury. [FN19] Pointing out infirmities
in the defence position is one thing; attacking who they are
is another.
1. Keep the Violins in their
Cases
Somewhere in this country, a prosecutor sits idly, wondering
how a reference to the tragic events of September 11 in New York
and Washington can be worked into a jury address on a break,
enter and theft case; somewhere an appellate court waits to flog
that prosecutor with a Boucher whip.
Inappropriate appeals to emotion appear to be a habit as hard
to kick as cigarette smoking. Appellate courts are about as sympathetic
as your family doctor to a two-pack-a-day addict.
Typical examples involve:
- suggestion that the floodgates
will open if the accused goes free;
- asking the jury to be the
voice for the victim;
- comparing the crime to some
other celebrated crime.
2. Don't
Undermine the Accused's Constitutional Rights
As with cross-examination, subtle or not-so-subtle attempts to
undermine an accused's constitutional rights are likely to be
fatal. Thus, suggestions that the accused shaped the defence
around the Crown's disclosure materials, or should have given
his version of events immediately upon arrest, have been found
to be improper. [FN23]
D. Greed Kills
-- Dealing Unreasonably with Reasonable Disclosure Requests
Disclosure is a messy business. Notwithstanding the guidance
to be gleaned from a number of Supreme Court decisions, august
committees and policy manuals, the issue of what should be disclosed
regularly occupies a significant portion of Crown counsel's time.
Dealing with disclosure requests can be extremely tedious because
of their frequently unfocussed nature, the difficulty of discovering
whether the sought-after information even exists, much less getting
a copy, the potential conflict with police officers reluctant
to comply, and so on. All of this when, in many cases, Crown
counsel may suspect that the last thing defence counsel wants
is full disclosure -- the refusal is the prize, since an improper
refusal may invite a stay of proceedings.
The failure to make proper disclosure may now have become the
worst of a trial prosecutor's sins. Undoubtedly this is part
of the legacy of the notorious wrongful conviction cases -- Marshall,
Morin, Milgaard, Sophonow. Pretrial disclosure, it is safe to
say, has become a minefield for the Crown. In recent times, the
punishment for improper disclosure has moved beyond the entering
of stays of proceedings at trial, or the quashing of a conviction
on appeal, to include significant costs awards, and even, in
Alberta, disciplinary proceedings before the law society. Even
in the absence of disciplinary proceedings, tarnishing of your
professional reputation [FN30] is a possible result of the failure
to disclose, whether the failure was a sin of commission or omission.
Providing full disclosure is among the most important "minister
of justice" functions of Crown counsel. It may require great
persistence, and undoubtedly calls for the exercise of careful
judgment in ensuring all appropriate privilege claims are asserted.
It does not demand, however, that the Crown litigate all marginal
requests for information. Decisions to resist disclosure should
involve some readily identifiable principle (e.g., the information
is privileged) rather than be prompted by the difficulty of complying.
Disclosure may be very expensive, but the costs of non-disclosure
are now prohibitive.
E. There's
no Pride in Lyin': Communicating Honestly and Openly with the
Courts
This is probably the least common of Crown sins, for virtually
all prosecutors recognize their duty to act with the utmost integrity
in their dealings with the courts. It bears mentioning only because
there are a number of different areas in which courts have recently
criticized Crown counsel for their communications, and because
new responsibilities of Crown counsel require heightened sensitivity
to the concern.
Courts expect candour and scrupulous honesty by the Crown. In
areas of factual controversy they expect Crown counsel to have
ready answers. R. v. Ahluwahlia, referred to in F., below, is
the best example of this. Where Crown counsel have been most
frequently deficient in this regard is in closing addresses to
the jury: counsel that play fast and loose with the facts have
been criticized.
Counsel also have to be extremely
cautious in their ex parte dealings with courts, as illustrated
by the Supreme Court decisions in R. c. Rendon; R. v. Curragh
Inc.; [FN34] and Canada (Minister of Citizenship & Immigration)
v. Tobiass. The drive to seek efficiencies in the criminal justice
system has undoubtedly increased our need to have out-of-court
discussions with court officials, including judges: we must keep
such necessary communications within appropriate bounds.
Finally, the recognition of the desirability of providing information
to the media calls for care as well. Guarding against the possibility
of causing prejudice to court proceedings is an ever-present
concern.
F. Get off
Your Sorry, Slothful Butt: Recognizing a Duty to Investigate
The evolution of the role of the prosecutor is easy to document.
First, we federal prosecutors are all constitutional lawyers
now, as Madame Justice Southin has wittily observed:
Question: What is a narcotics case without a Charter argument?
Answer: A plea of guilty.
A basic grasp of the mens rea and actus rea requirements of a
crime, and knowledge of a police brief, will ill-equip you to
conduct a prosecution these days. A drug prosecutor, for example,
must have knowledge of case law under numerous Charter provisions,
familiarity with privileges such as "informer" and
"solicitor-client", and a firm grasp of a number of
complex evidentiary rules such as the co-conspirator's exception
to the hearsay rule.
Prosecutors are also being asked to assume new or greater responsibilities
with respect to charge screening, diversion and sentencing (sentencing
circles, "conditional" sentences). New demands on a
prosecutors' time seem to emerge yearly, if not more often.
Judicial decisions have also ensured that only a portion of prosecutors'
time will be spent taking a brief and prosecuting it. Courts
are increasingly imposing duties of investigation on prosecutors.
Three examples are illustrative.
Pretrial disclosure, dealt with in D, above, continues to be
a growth industry. Deciding what to disclose may be easier and
less time-consuming than determining whether requested material
exists. So-called "third party" disclosure, which may
consist of records held by other government agencies, is not
necessarily easy to acquire given:
(a) the actual disclosure request may be unfocussed;
(b) it may not be quite clear who the record-holder is;
(c) the record-holder may be reluctant to allow you to even look
at the material, since they may be mystified as to the relevance
of the material to a criminal proceeding.
Woe betide the prosecutor who fails to do the legwork to put
himself or herself in the position where he/she can sensibly
argue about whether the information sought exists, is relevant,
or is privileged. (continued)
Copyright © 2002 by
CARSWELL, a Division of Thomson Canada Ltd. or its
Licensors. All rights reserved.
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