In the conduct of criminal prosecutions, Crown counsel have many responsibilities. The following are among the most important.
In order to maintain public confidence in the administration of justice, Crown counsel must not only act fairly; their conduct must also be seen to be fair. One can act fairly while unintentionally leaving an impression of secrecy, bias or unfairness.
As part of the Crown's duty to be fair, counsel are obliged to ensure that any comments made during jury addresses are not "inflammatory. Inflammatory conduct or comments could render a trial unfair. The kinds of comments and conduct that the courts have found to be "inflammatory" and thus could render the trial unfair can be divided into six categories:. The special ethical obligations on Crown counsel, as "ministers of justice" demand the highest standards of honesty and integrity.
Crown counsel's conduct should garner the public's confidence and trust. Thus, it is important that Crown counsel avoid actual, perceived or potential conflicts of interest. Footnote 39 An easily identifiable conflict of interest may arise where, for example, counsel prosecutes a former client. Crown counsel should not participate in any prosecution involving an accused, a victim or a material witness who is a relative, a friend, or anyone else in respect of whom there is an objectively reasonable perception of conflict of interest.
If the matter is already before the court when the conflict becomes apparent, Crown counsel should notify defence counsel and the court and disqualify themselves from the case. Crown counsel provide legal advice to investigative agencies and departments within the federal government and to law enforcement agencies involved in enforcing federal law. Footnote 40 The primary purpose of providing this legal advice is to help ensure that evidence is gathered in a manner that will be admissible at trial.
This involves compliance with the Charter , the Canada Evidence Act and other legal principles. Crown counsel may also advise on the sufficiency and relevance of evidence and identify areas requiring investigative follow-up. Crown counsel may provide legal advice relating to police investigative techniques, which do not relate to a specific case, but may affect the admissibility of evidence in future prosecutions.
Counsel's duty is to give independent legal advice on criminal law matters. In regulatory matters, this may include advising investigative agencies about the criminal law issues arising from an investigation, practice, or policy. Counsel have a further responsibility to discuss the public interest implications with a department or agency contemplating a prosecution and to apply the Attorney General's directive regarding those interests.
When advising investigative agencies, Crown counsel must always be mindful of the distinct roles of the investigator and the prosecutor in the administration of justice. Footnote 42 Given the increasing complexity of law enforcement, counsel often become involved at the investigative stage to help ensure that the investigative strategies, techniques and procedures are consistent with the rules of evidence and with the Charter as well as to advise investigators on the nature of the evidence required, the scope and direction of the investigation, the use of investigative powers, the sufficiency of evidence and the quality of the witnesses.
Anyone who faces five years or more in prison if convicted of a crime has the right, under the Charter, to request a jury trial, and many defendants facing serious offences such as murder opt to have a jury hear their case. The jurors become the triers of fact and assess the evidence while the judge takes on the role of legal advisor, explaining the law to the jurors.
The jurors then retire to deliberate on a verdict. If the defendant is convicted of a crime, the judge passes sentence, imposing a penalty that can range from a fine to a prison term depending on the severity of the offence.
During trial, the Crown Prosecutor and your criminal defence lawyer will both have opportunities to present their cases. To prove that you committed the crime, the Crown Prosecutor has to present a credible piece of evidence in front of the court. The evidence can be in physical form such as a gun or weapon with your fingerprints on it.
At first, the Crown Prosecutor will present their case and witnesses. This provides your lawyer with an excellent opportunity to find any flaws in witness statements.
The prosecution can also re-examine a witness to clarify emerging issues during cross-examination. If the Crown Prosecutor fails to present enough evidence to prove your guilt, your defence attorney can ask the judge to dismiss the criminal charges against you.
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