By: Alice Woolley
PDF Version: What Ought Crown Counsel to do in Prosecuting Sexual Assault Charges? Some Post-Ghomeshi Reflections
Case Commented On: R v Ghomeshi, 2016 ONCJ 155
The Ghomeshi trial made me think about the ethical duties of prosecutors in sexual assault cases. Not because I have any basis for saying that the prosecutors violated their ethical duties. I have no personal knowledge of what the prosecutors did or did not do in their preparation and presentation of the Ghomeshi case. I also do not know either the pressures they faced or the policies that governed their decisions.
Rather, I have thought about the ethical duties of prosecutors because of claims made by people in response to criticisms of the Ghomeshi prosecutors. Specifically, I have heard the following:
- The prosecutor simply takes the case the police provide: “You do the best you can with the evidence you’re given” (Laura Fraser, “Jian Ghomeshi trial questions answered by criminal lawyers” CBC February 12, 2016, here).
- The prosecutor should not prepare witnesses. Otherwise, the prosecutor risks becoming a witness due to his disclosure obligations pursuant to R v Stinchcombe, [1991] 3 SCR 326: “Crown interference, even through so-called preparation, can result in a Crown Attorney becoming a witness to the own proceeding or worse still a stay of proceeding for an abuse of process” (Sean Robichaud, “In Defence of the Crown in Ghomeshi”, here).
- The prosecutor represents the public, not the complainants, and owes the complainants no obligation in his role as prosecutor.