By: Alice Woolley
PDF Version: Prosecutors as Ministers of Justice?
Three recent cases have brought to light bad behaviour by criminal prosecutors.
In R v Suarez-Noa, 2015 ONSC 3823 Justice Reid ordered a mistrial after the prosecutor suggested “to the jury that the accused had behaved like an animal rather than a human being,” calling the characterization “highly improper” and incapable of being “erased from the minds of the jurors” (at paras 10-11).
According to the CBC, in the Nuttall/Korody bombing trial British Columbia Supreme Court Justice Catherine Bruce said the prosecutors “took my breath away” with the “impropriety” of their decision to show a video to the jury that contained “footage of an actual pressure-cooker explosion.” She further described the prosecutor’s decision to ignore her express instruction not to refer to defences of duress and entrapment as “unspeakable” and as something she had “never experienced… before. Ever.” The CBC reported that Justice Bruce “said she would have called a mistrial had the proceedings not been so protracted and difficult”.
In R v Delchev, 2015 ONCA 381,the Ontario Court of Appeal allowed Delchev’s appeal of his convictions on 16 counts of firearms and drug related offence and ordered a new trial. It did so on the basis that the trial judge had improperly failed to consider whether the prosecutor’s conduct in plea negotiations constituted an abuse of process warranting a stay of proceedings.
The prosecutor in Delchev made a settlement offer following a Charter motion for the exclusion of evidence. In that motion Delchev testified as to threats made against him by one John Ramsay. In its settlement offer the Crown said that it would “recommend a conditional sentence” if Delchev “would admit that his evidence up to that point in the proceeding regarding duress was false, and that his counsel knew it to be false” (Delchev, at para 11). As the Court of Appeal noted, this settlement offer had the “potential to negatively affect the relationship between the appellant and his lawyers” (at para 56). It also did not reflect the legal obligation of defence counsel to “call the accused to testify even if the lawyer’s private opinion is that the client will be disbelieved”, and to only refuse to call the accused as a witness where “the lawyer knows the testimony to be false or fraudulent or believes it to be false by reason of an admission made by the accused” (at para 61). The Crown’s settlement offer created the risk that a defence counsel would not offer evidence she ought to because of fear that the Crown will use that implausible or disbelieved evidence to attack defence counsel through a plea offer to that counsel’s client.
These three examples are notable but not surprising. While in most cases prosecutors act in accordance with their legal and ethical obligations, bad behaviour by prosecutors is not hard to discover when you look at the case law. Courts and regulators rarely sanction lawyers who engage in it, but examples are easy to find.
At the same time, however, in common law and in accordance with codes of conduct, the prosecutor is said to be a “minister of justice” and “as more a ‘part of the court’ than an ordinary advocate” (Delchev, at paras 64-65). As the Supreme Court put it in Boucher v The Queen, [1955] SCR 16, at 23-24:
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 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.
Which leads to this question (which I am exploring in a broader research project): why this gap between prosecutorial aspirations and reality (at least some of the time)? How can lawyers whose legal and ethical duty is to do justice act in ways that work real injustice?
Based on my research so far, my working thesis is that the “do justice” ethic for prosecutors is at best unhelpful in creating ethical conduct, and at worst is toxic for prosecutorial ethics. It does not increase the likelihood of ethical conduct and may in fact be one of the reasons why unethical conduct occurs.
In the first place, the “do justice” ethic lacks specific content. Does it mean that a prosecutor ought to temper his advocacy in the courtroom? If so, when, how and to what extent? Does it impose positive obligations on the prosecutor to, for example, redress injustices in the courtroom (as Fred Zacharias argued)? Does it require a prosecutor not to bring forward a case that is lawfully permitted but morally troubling (e.g., where there is a harsh mandatory minimum and mitigating facts that the law does not take into account)? As a consequence, it is not clear how the exhortation to “do justice” can meaningfully guide prosecutorial decision-making.
Relatedly, the do justice ethic does not necessarily give someone a deep internal commitment to justice from which they can develop sound moral intuitions (which, as I’ve discussed elsewhere, are important for ethical behaviour). As Abbe Smith has cogently argued, it tends instead to give someone an internal commitment to her power and obligation to create justice, i.e., the belief is in the prosecutor’s justice-seeking power, not in justice itself. Being told that she has the unique role to seek and protect justice creates an internal concept for the prosecutor as someone who has a particular capacity to understand what justice requires, and makes that person less inclined to doubt her perceptions or to see the role that ordinary cognitive biases may be playing in her perceptions. When you combine that internal concept with the adversarial nature of the criminal trial, and the ordinary human desire to “win” any particular contest, which competitively inclined lawyers probably have to an above average extent, you have ideal circumstances for poor intuitions about the best answer to an ethical dilemma. The prosecutor believes she has special insight into what justice requires, her desire to win makes anti-justice decisions particularly desirable, her belief in her justice-discerning abilities makes her unaware of the corrupting effect of her desire to win, and her bad decision follows.
Further, the do justice ethic does not easily connect to the prosecutor’s adversarial role in a courtroom. How can the Crown act “as a strong advocate within this adversarial process” who “vigorously pursue[s] a legitimate result to the best of its ability” (R v Cook, [1997] 1 SCR 1113 at para 21) while simultaneously excluding any idea of winning and losing from her assessments? That inconsistency may lead prosecutors simply to ignore the do justice imperative and to pursue ordinary advocacy without – at the same time – having a strong sense of the limits of that advocacy that apply to ordinary lawyers.
In addition, the do justice ethic arguably distorts the criminal justice system, providing prosecutors with a source of moral authority in the courtroom and in society – the ability to claim implicitly, as the Crown improperly did explicitly in R v Boucher, that action by a Crown is entitled to more respect because done by an actor pursuing justice. That may not create bad behaviour by prosecutors, but it may provide more opportunities for its occurrence – i.e., for prosecutors to take advantage of power differentials in an unjust way.
The do justice ethic comes from a high-minded and admirable place. It is designed to capture the indisputably unique and complex aspects of the prosecutorial function in a free and democratic society. The problem is that it does not do so with any degree of insight or sophistication, and it may have the tendency to undermine the ethical discharge of that function.
If there is anything to this argument, the next question to be considered is: how do we capture the special features of the prosecutorial function and articulate the legal and ethical duties attached to that function? Tucker Carrington, founding director of the Mississippi Innocence Project, suggested one answer to this question when he said in response to my critique that the most ethical prosecutors he deals with are those who are “really great lawyers”, advocating effectively within the bounds of the law, substantively and procedurally. My hunch is that that account of the prosecutor’s role, if coupled with consideration of unique prosecutorial challenges such as the absence of clients, provides a better and richer ethical account of the lawyer’s role than does an empty exhortation to do justice.
This post originally appeared on Slaw.
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Tyler Lord
Professor Woolley,
To begin with, I have to say that I make my comments in my personal capacity as a lawyer and not as a representative of, or on behalf of, the prosecutorial authority that I work for.
I will argue that your project to explain the contours of the exercise of prosecutorial discretion or to develop guidelines to guide the exercise of that discretion, is off the mark and fails to go to the core of the issues your are describing. Further, I will argue that defence counsel’s “ethic” of zealous advocacy is far more amorphous and open to abuse than the exercise of prosecutorial discretion. However, I will also argue that the “solution” to the exercise of poor judgment, on either side of the practice of criminal law, is, as Mr. Carrington suggests, better lawyers.
In my day-to-day practice as a Crown prosecutor, I see first-hand the effect given to the principle of “do justice”. Crown prosecutors “get it” and action it, in myriad ways throughout their practice. I have found that Crown practice is collaborative and that we all assist each other in working our way through the many difficulties – practical and ethical (not always distinct) that arise on every file. I balance the ethical imperatives of being a Crown with the requirement of staunch advocacy in court by examining a file and assessing the evidence; was it collected lawfully, does it cover the elements of the offences, will it be admissible, and so on. This list is far from exhaustive, but the examination that I conduct on every file is ongoing and constant, and goes to answer the prosecutorial imperative of “reasonable prospect of conviction”. If a file passes muster to proceed, the staunch advocacy arises when I argue my positions in court: that the evidence was gathered lawfully, that it is admissible and that there is evidence that goes to every element of the offence. I am allowed – even required – to press all of these points as fully as I can. I do so fairly – by not overstating the evidence, by pointing out and drawing attention to weaknesses in my cases and by freely discussing the cases that do not support my position. However, I also draw attention to the strengths of my case and the law that supports my position. I am allowed to stress all of this, but I am also allowed to be wrong.
Critically, I have also found the opposite of something you express concern over; that is, I have NOT found that my arguments carry more moral authority because they come from “the Crown”. On the contrary, I have found that my arguments and positions have been attached with more scrutiny – for the self-same reason. And that’s as it should be. Judge’s understand VERY well the concept of “reasonable doubt”.
Juries are a special case. Jury argument requires more restraint, because of the potential for “Crown moral authority”, but any perusal of Rob Frater’s excellent book “Prosecutorial Misconduct” (or his paper “Seven Deadly Prosecutorial Sins”) will steer an overzealous Crown away from such things. So will a good discussion with senior counsel about what is, and is NOT, proper to argue in front of jury.
The Crown arguments in the Nuttal/Koroday case (to cite one example you use) are representative of a bad lawyer, one who (inter alia) (1) should have listened more carefully to the judge and (2) better understood the law of entrapment. They are also the result (I will argue) of a Crown counsel who did not listen to his colleagues. They are not the result of blurred ethical lines in the Crown’s office or the fuzzy application of a nebulous concept of “do justice”.
You seem to suggest that Crown’s are almost personally pre-disposed to abuse their power, based on our human desire to “win”, coupled with our belief in “justice” as we see it. Well, I can advise that I “win” (if I can be permitted to use that term) when all the available evidence has been presented and all the available arguments have been made, in as fair and complete a way as possible. If conviction is the result, then so be it; recall that I am required to be believe the evidence can support a conviction before I take a case anywhere. However, if the Court arrives at a different conclusion, then I have not “lost”, as the case is not mine to “win” or “lose”; it is the Court’s to decide. Reasonable doubt is a high standard, and one never knows how things will unfold in court. (There is a joke about the last thing a prosecutor hears before a great case goes sideways…it’s the judge saying, “Crown, call your first witness”.) An acquittal is not a “loss”. If a prosecutor loses sight of that fact, or the principles that inform that fact, then he or she is not fit to hold the job.
This brings me to my second point, that defence counsel’s imperative is more nebulous and dangerous than the Crown’s.
What “the Crown” says and does in court is rooted in disclosure and the evidence and is constrained by principle (i.e. rooted in the facts and the law). However, the opposite is often true for (bad) defence counsel. I have seen defence counsel make-up evidence, suborn perjury and misrepresent judicial decisions so poorly one could wonder whether they even possessed a rudimentary ability to read. I have had defence counsel argue in court that they can essentially make-up evidence (i.e. create conjectural arguments) because they were not limited by the evidence the same way that Crown counsel are. I have seen countless defence counsel turn sombre courtrooms into farcical theatres, so that their clients may see them railing against “the system” and doing all in their power to set them free. All of this – and more – is excused on the basis that defence counsel are supposed to do everything within their power, short of breaking the law, to see their client acquitted. I have had defence counsel tell me that if they have Client X acquitted, their careers will be set. What more impetus could their be to distort the facts and the law in order to achieve a “favourable” result? More and more, (bad) defence counsel are turning to artifice and showmanship in order to justify their retainer.
The examples of poor defence counsel conduct are legion: R. v. Calder, 2012 NSCA 3 (lawyer smuggles drugs into prison – sadly, these cases are not rare) and R. v. Mastop, 2013 BCCA 494 (lawyer aides criminal organization by providing it with disclosure). There is also Anber’s case, from Ontario 2012 where an inexperienced defence counsel posted his client’s disclosure on the internet, asking if anyone could remove the edits that Crown counsel had placed on it (through Adobe).
Clearly, if anyone is in need of ethical guidance, it is criminal defence lawyers (I make this statement this way for the purposes of argument).
However, I have found most defence counsel act ethically and properly – and understand the parameters of their roles. Indeed, I echo Mr. Carrington and say that the best defence counsel I have worked with (and we are colleagues) also happen to be “really good lawyers”. And that’s my point. The common denominator for “good” Crown’s and “good” criminal defence lawyers is that they are “good lawyers”. Their understanding of their ethical obligations and constraints is a fundamental aspect of their jobs.
If a Crown counsel or a defence lawyer are poor, it’s not because they have been steered that way by the contours of their respective jobs; it’s because they don’t understand those jobs in the first place.
I believe that the problem you have highlighted is a symptom, not the “disease”. It isn’t the special nature of Crown (or defence) counsel’s role that is steering lawyer’s into the wrong, it’s some lawyer’s poor understanding of that role.
As a result, I argue that the “solution” to the problem you outline if not a redefinition of or a refocus on, the Crown’s obligations – those are well understood – but a re-emphasis on ethical legal education and and ongoing training and support (particularly for junior lawyers).
To torture the language a little more, I will close by saying that the functions Crown and defence counsel perform are not like Tolkein’s “Ring of Power”, corrupting those who wear it because they don’t understand it. As such, the focus needs to be on who we make our ring bearers – and whether we can select, educate and train (and retain) Frodos, and not Golums.
Thank you.
Tyler Lord
Calgary, AB