Role of Crown Counsel

Henry Waldock
Last updated: 2025-09-16

AI generated Summary

"Crown Counsel in Canada are lawyers who act as prosecutors on behalf of the Crown, representing the state and the public interest in criminal proceedings. Their primary duty is not to secure a conviction at all costs, but to ensure the trial process is fair, that evidence is presented thoroughly and accurately, and that the integrity of the justice system is maintained. [British Columbia Crown Counsel] are responsible for assessing police evidence to determine if charges should be laid, using a two-part test that requires a substantial likelihood of conviction and that a prosecution is required in the public interest. Crown Counsel do not represent the police, the victim, or the accused; their client is the public as a whole, and they are independent officers of the court, protected from outside influence. They appear in court to present the prosecution's case, call witnesses, [cross-examine defence witnesses], and make sentencing submissions. The final sentence is determined by the judge. In British Columbia, the Assistant Deputy Attorney General (ADAG) heads the BC Prosecution Service and supervises all prosecutions, while the Public Prosecution Service of Canada handles federal offences such as drug trafficking and tax evasion."

Principles

Crown Counsel advocates in court against those who appear to have broken the peace. They do so by choosing charges, bringing the evidence before the court, and pointing out how it proves the guilt of the defendant. Although the prosecutor may advocate firmly for conviction, it may do so only fairly on the strength of the available evidence. The prosecutor bears no duty to get a conviction. Boucher v. The. Queen, [1955] S.C.R . 16

Crown Counsel and police are separate agencies with distinct functions. Police investigate; Crown Counsel prosecute. Prosecutors have no obligation to protect the interests of police officers when prosecuting criminal cases. Ontario (Attorney General) v. Clark, 2021 SCC 18

The Crown decides whether a prosecution should be brought, continued or ceased, and if so, what it should be for. Nixon 2011 SCC 34; Varennes, 2025 SCC 22 at paras 42-49.

Crown provides a sober second look at an investigation, thereby protecting the public purse and the suspect from unnecessary trials.

Before the charge is laid, the investigation belongs to the police. Crown can assist by giving general advice, but do not control the investigation.

When considering whether to approve charges, Crown can recommend further investigation. Big investigations may profit from frequent consultation with Crown; but too much consultation may undermine the prosecutor's independence.

Police can lay charges even if Crown does not approve them. However, police will then have to find someone to prosecute them. British Columbia prosecutors have authority to step in and stay the charges if they consider it to be in the public interest. Crown Counsel Act s.4, 5 & 6; Crown Counsel Policy Manual - see PRI 1

Once Crown approves charges, the prosecution belongs to Crown Counsel.

Crown has an ongoing duty to disclose evidence to the defence. Therefore if police disclose any evidence which may reveal the identity of a confidential informant, police must clearly identify this risk to Crown. Police can then rely upon Crown to protect the informer’s privilege.

Crown has no duty to disclose tactics to the defence. Therefore, no discussions between Crown and police officers about the evidence need be disclosed.

Police enjoy solicitor-client privilege over advice received from Crown, but can find itself forced to waive that privilege if someone challenges their good faith. Campbell & Shirose v. The Queen (1999) 133 CCC (3d) 257 (SCC).

Independence of prosecutor from investigation

Ontario (Attorney General) v. Clark, 2021 SCC 18 - Police arrested two guys for armed robbery. The guys claimed that police beat them up. Crown dropped the charges against one of them, and at the trial of the other, failed to produce the officers to explain their side of the story. The courts stayed charges on the basis of the outrageous brutality of the officers. Subsequent investigation suggested that the police officers did nothing wrong. The police sued the prosecutor for failing to defend the officers from false allegations that the defendants made against them. The court rejected the claim: the Crown owed no duty to protect the officers from false claims, because prosecutors must operate independently from police interests.

Marshall Inquiry (1989) “cooperative and effective consultation between police and the Crown is also essential to the proper administration of justice. But under our system, the policing function – that of investigation and law enforcement – is distinct from the prosecuting function. We believe the maintenance of a distinct line between these two functions is essential to the proper administration of justice.”

Mathew Miazga 2009 SCC 51 prosecuted a difficult child sexual abuse case involving multiple adults. He got some convictions at trial, and they were upheld on appeal, but the Supreme Court of Canada ordered a retrial. Eventually, the children recanted. The defendants sued him for malicious prosecution. The trial judge said that it was so obvious that the prosecution had no case that the prosecutor must not have believed that the accused were guilty; he had to pay for the harm he did to them by the prosecution. The Supreme Court of Canada pointed out that several courts found that the accused were guilty. The case couldn't have been so terribly weak. And besides, there is no requirement that a public prosecutor personally believe in the guilt of the accused. The prosecutor must assess the strength of the evidence, and prosecute only for the purpose of bringing people to justice. The decision to prosecute belongs to the Crown. Crown Counsel are independent of judicial and political interference. They make their decision in a "quasi-judicial" role. Courts should not second-guess this decision except in the clearest of circumstances.

Proulx v. Quebec [2001] SCR 9 The police thought Proulx committed a murder, and gave a report to Crown. A prosecutor thought the case was too weak, and declined to proceed. Proulx sued the police for saying he was a murderer. After retiring from the force, one of those police officers found new identification evidence. Crown took that officer into the prosecution team, approved charges, and persuaded a jury to convict. Appeal court overturned the conviction. Proulx then sued the prosecutor for malicious prosecution. Supreme Court of Canada upheld the claim: the prosecutor mixed private and public interests in the prosecution, and relied on flimsy evidence.

In R. v. Mercer, 2005 NLCA 10, an audit and a law society investigation turned up many suspicious facts about a corporation and a law firm. The prosecutor kept a senior police officer informed of the progress of these investigations, so that they would know when to commence a criminal investigation. There was no evidence that the auditors used their powers for the purposes of a criminal charge. The trial judge stayed the case because of what he perceived as collaboration between prosecution and police. The appeal court reversed this, because it was clear that the audit was not used to further the police investigation. The senior police officer took very good notes of his conversations with the prosecutor.

When prosecutors involve themselves in investigation, defence may compel them to testify at the trial. R. v. Dolinki, 2014 ONSC 361. But counsel should never put his or her credibility on the line by testifying in a matter on which s/he acts. So a subpoena generally knocks counsel off the case. This can derail big cases.

In Dix v. Canada (A.G.), 2002 ABQB 580, police asked for a prosecutor to be assigned early in the investigation. They got a guy they liked. He was “pro-police”. He interviewed the Crown witnesses early, he kept tabs on the investigation, and visited the police station regularly. In the civil suit, the trial judge found that he “stepped over the legal, functional, and ethical division which should exist between the respective functions of the police and prosecutors and that his involvement was greater than it needed to be and greater than it was desirable to be.”

The judge found he lost objectivity, he was overzealous, to the point of misleading the court at the bail hearing about the strength of the case, and held him personally liable for $200,000. (paragraph 290)

R. v. Regan 2002 SCC 12 In the prosecution of the former Premier of Nova Scotia, police didn’t like the initial charge decision of crown. During the investigation, police leaked details to the press. Another prosecutor reassessed the case, interviewing many complainants, and ultimately approving many charges. She asked the police to help her avoid a specific judge who had political connections to Regan. Defence sought a stay of proceedings because of abuse of process. They alleged that the prosecutor, by involving herself in the investigation, showed bias. The trial judge granted the stays but the Supreme Court of Canada disagreed.

Crown may interview witnesses before trial.
Judge shopping is bad
A change of prosecutor dealt with the issues of possible bias.
Police should not have leaked information before the charges, but they did take steps to prevent further leaks.

One conclusion of the Guy Paul Morin inquiry was that crown failed to assess objectively the reliability of the evidence.

If Crown owes an obligation to maintain a separation from police, in order to give that sober second review of the proposed charges, then should Crown give advice during the investigative stage? What are the implications?

Liability

If Crown advises police, then Crown may be liable for a police investigation gone wrong. Dix; Proulx

When Crown gives Advice

Campbell & Shirose v. The Queen (1999) 133 CCC (3d) 257 (SCC) Relying upon comments from a Quebec trial judge, a police officer believed that he could pose as a wholesale vendor of drugs to upper-level drug dealers. Police got advice from the Dept. of Justice. He set up a “buy”, and then arrested the dealers. Trouble was, by offering drugs for sale, he was offending the Narcotic Control Act. Defence sought a stay of proceedings for abuse of process. The police asserted “good faith”, but also sought protection of solicitor-client privilege over the advice they received from the Department of Justice. The Supreme Court of Canada concluded that they could have one or the other but not both.

A woman accused Mr McClure 2001 SCC 14 of sexual assault. Not only was he charged, but she sued him too. He demanded disclosure of the woman’s lawyer’s civil file. The Supreme Court of Canada decided that her solicitor-client privilege was so important that although disclosing it might help “full answer and defence”, solicitor-client privilege was generally more important, except when innocence is at stake. McClure must show that the lawyer’s file likely contains something that shows McClure is innocent. If so, the trial judge then examines the file to determine whether the document exists, and whether it would likely raise a reasonable doubt. If so, the judge discloses it.

In operation “Eye Spy” police ran an illegal money-laundering operation in order to catch high-level drug dealers like Mr Castro 2001 BCCA 507 (SCC refused leave to appeal). Despite the Supreme Court of Canada’s decision in McClure (above), the court held that defence could obtain disclosure of legal advice to police when making abuse of process applications like entrapment.

The Alberta Court of Appeal disagrees: Schacher 2003 ABCA 313; The New Brunswick Court of Appeal views Castro with some suspicion: Chapelstone Developments Inc., Action Motors Ltd. and Hamilton v. H.M.T.Q. (Canada), 2004 NBCA 96.

What Kind of Advice?

Crown can’t advise police on topics of police misconduct or police liability. That’s because our role is that of advocate for the public and “minister of justice”. So if your officers have done something illegal, or are contemplating doing something dirty, we Crown have to remain hands off.

Crown cannot specifically represent the police in protection of police interests. In public enquiries into wrongful conviction, or failed investigations, police retain their own counsel. Crown Counsel doesn't act for them.

Crown can provide only advice not direction in matters of general police procedure and policy. During an investigation, you can ask Crown for advice based upon hypotheticals. You aren’t obliged to accept that advice. Indeed, it violates the principle that we are separate agencies that you should be required to accept Crown’s advice.

There are exceptions to that principle. A designated wiretap agent must make the wiretap application. His or her “advice” is probably more like “direction”.

Direct Indictments

If you fear that delay will destroy the case, you can encourage your prosecutor to move it along faster with a direct indictment - which omits the preliminary inquiry stage, and goes straight to trial. This decision lies in the control of the prosecutor, but you might know something about the case that might require this step.

According to the BC Crown Policy Manual, factors that Crown in BC should consider when deciding whether to proceed by indictment include:

Victims and Witnesses – where there is significant danger of harm, either psychological or physical, to victims or witnesses and it is reasonable to believe that they would be adversely affected if required to participate in multiple judicial proceedings.
Informant – to protect the identity of a confidential informant.
Logistical Problems – where the public interest requires resolution of a serious logistical problem, such as an absconding co-accused, a complex case involving numerous witnesses and lengthy testimony, or other procedural or substantive complications.
Delay – where it is a reasonable possibility that conducting a preliminary inquiry would cause such delay that the trial process would become unmanageable, or result in a successful application for a judicial stay of proceedings under the Charter.
Expedited Trial Necessary – where the public interest requires an expedited trial date for reasons such as:
- Serious health problems of an accused or an essential witness;
- The likelihood that hostile Crown witnesses will change their evidence in the near future; or
- Similar developments that make an early trial date necessary.
Ongoing Investigations – to protect ongoing police investigations, operations and security where the need for such protection is significant and demonstrable.
Courtroom Security – where, because of the nature of the issues involved or the parties or witnesses involved, there exist significant problems of courtroom security, including the safety of the public and those involved in the administration of justice.
Multiple Proceedings – where a direct indictment is necessary to avoid multiple proceedings. (For example: where one accused has been ordered to stand trial following a preliminary inquiry, and a second a ccused has just been charged with the same offence.)
Discharge – where a judge at a preliminary inquiry has made a decision which is clearly unreasonable in that it is either not supported by the evidence or based on a clear error in law and results in a failure to commit on an Information, or a particular count which the public interest requires to be prosecuted.
Unable to Obtain Admissions – where the Crown has led evidence at the preliminary inquiry and has been unsuccessful in obtaining admissions of fact from the accused for the purposes of the preliminary inquiry on easily proven matters, and the cost of a full preliminary inquiry would be substantial and unreasonable.
Procedural Error – where after a full preliminary inquiry, the committal order ma y be invalid solely due to procedural error.
Limited Crown Case – where the Crown failed to call material available evidence at a preliminary inquiry resulting in a discharge on an Information or particular count, but the evidence is still available for trial.
New Evidence – where material new evidence has become available after a discharge at a preliminary inquiry and the public interest requires that the matter be prosecuted. (For example: where similar fact evidence arises linking the charge to a subse quent charge; or DNA evidence now supports a substantial likelihood of conviction.)
Different or Additional Charges – where material new evidence becomes available after committal and the public interest requires a prosecution on a different or additional charges.
New Complainant – where material new evidence from an additional complainant becomes available after committal and, taking into account the law on similar fact evidence and severance, it is in the public interest that a trial be conducted on all charges together by direct indictment and not be delayed for a preliminary inquiry on the new complaint. In this regard, consideration also must be given to factor s #1 and #3, above. Where the Crown proceeds by direct indictment and the accused does not have a preliminary inquiry, the accused receives full disclosure of the case against him or her in the ordinary course, as prescribed by law. In some cases, the accused may have received additional disclosure through a co-accused having had a preliminary
inquiry or trial or through the accused having had an extradition hearing.

Discussion Points

R. v. Regan 2002 SCC 12

During the police investigation into allegations that the accused, a former Premier of Nova Scotia, had committed numerous sexual offences against a variety of young women who had worked for or with him, a police officer confirmed to a reporter that the accused was under investigation, in violation of police policy to remain silent about individual suspects until charges are laid. At the conclusion of the investigation, a report was submitted to the Director of Public Prosecutions ("DPP") requesting his opinion about the laying of charges. The DPP recommended that charges should be laid involving four of the eight Nova Scotia-based complainants who were willing to testify. He chose the incidents which involved the most serious physical violations. He also recommended that the police re-contact the six women who had been victims of apparent criminal conduct, but were unwilling to testify. The police did not agree with the DPP's charging recommendation, being of the view that a more complete picture of the allegations against the accused should be put before the court. After the Crown joined police in re-interviewing most of the original complainants, 19 counts for sex-related offences were laid against the accused. One year after the preliminary inquiry, the Crown decided to prefer a direct indictment setting out 18 counts of sex-related offences, including one new charge (count 16).

After the DPP's written recommendation, one of the Crown Attorneys met with police. At that recorded meeting, she suggested that it would not be "advisable" for charges to be brought before a particular judge, because she thought he might be a political appointment of the same party as the accused. Instead, she said she would "keep monitoring the court docket to see who is sitting when and what would be in our best interest". Police and Crown also agreed to re-interview a number of the complainants.

Citing the cumulative effect of this Crown behaviour combined with the police premature identification of him as a suspect, the accused sought a stay of all of the charges. At trial, a partial stay -- 9 of the 18 counts -- was granted. One of the charges stayed was count 16, which was similar in fact to an incident alleged to have occurred in Alberta, and the trial judge was suspicious that the Crown's eagerness to put the Alberta facts before a Nova Scotia court motivated the Crown to lay this new, similar, Nova Scotia-based charge. The Court of Appeal, in a majority decision, allowed the Crown's appeal and set aside the stays of the nine counts.

In April 2002, the Nova Scotia DPP stayed the remaining counts, saying that Regan was unlikely to serve jail time, and it was no longer in the public interest to pursue him.

Crown interviews pre-charge

In Ontario, one Crown said never (Code) but others said, yup, we do it too. In Quebec it’s mandatory for some sexual assaults. In BC, we do it, but sparingly.

The issue isn’t whether Crown should talk to witnesses, but whether, by so doing, the Crown prosecutor will lose objectivity.

Crown’s duty is a sober second look at the charges, to make sure they should proceed.

Judge Shopping

Crown counsel was correct to avoid the judge who had ties to the accused. But she went about it the wrong way. The correct way is to ask the judge to recuse himself, and to come to court armed to the teeth with evidence to present in that application.

But it sure made hay for the defence.

Police Leak

The police officer should not have answered the reporter’s questions. Your job is to protect the privacy of your suspect until the time is come to make the allegations public.

In this case, the police took active steps to lock down the information, in the face of persistent media inquiries, and wrote a covering letter to the Crown requiring the same of them. They demonstrated good faith after a lapse in judgment. SCC liked that a lot.

Crown Discretion

The Crown decides whether a prosecution should be brought, continued or ceased, and if so, what it should be for. After a fatal vehicle collision, Crown Ms Nixon 2011 SCC 34 with many serious criminal offences. The trial prosecutor doubted the evidence would support criminal convictions, and agreed with defence counsel to accept a guilty plea under the Traffic Safety Act instead. Senior prosecutors intervened, and broke the agreement. Defence complained. The trial judge forced the Crown to honour its agreement. The Crown appealed. The Supreme Court of Canada sided with the Crown. A trial judge should ensure the trial process is unfair or oppressive, but deciding what to prosecute is the Crown's job.

In order to protect prosecutors from the pressures of public opinion (which is often ill-informed, and subject to herd instincts), Crown enjoys right of independence from judicial interference with their decision-making process. It is for this reason that prosecutor Picha, 2009 BCCA 336 resisted a subpoena to attend at an inquest into a murder-suicide. She was the Crown who consented to the killer's release on his charges involving spousal violence. After his release, he killed his wife and himself. The coroner wanted Crown to explain the reasons for its decision. The court found that exposing prosecutors to this kind of scrutiny would interfere with the independence necessary to make those decisions dispassionately. In future, prosecutors would never consent to release, for fear of being hauled before an inquiry.

It occurs to me that police release provisions impose exactly the same decision on police officers. But police officers do not enjoy the same immunity from scrutiny that prosecutors do.

In another decision rendered at the same time as Picha, the same court found that government does have the power to direct a commission to require prosecutors to explain themselves. A.G. v. Davies 2009 BCCA 337.

In a lengthy conspiracy trial, Mr Ghavami, 2010 BCCA 126 asked the court to find that his trial took longer because of the Crown's choice of charges against him and his co-accused. He was a minor player in a drug conspiracy. The Provincial Crown charged many of his co-conspirators with another group of offences. The other trial so occupied his co-accused, the Federal Crown could not proceed on Ghavami's trial for 3 years. So for 3 years, Ghavami's bail terms restricted his liberty significantly. The trial judge stayed the charges against him because the trial took too long. He found that the Crown caused the delay by choosing to prosecuting him together with his co-accused, knowing that the other accused would be preoccupied. The Crown should have prosecuted him separately.

The Court of Appeal overturned that decision. Unless the court finds abuse of process, the court has no business criticizing the Crown's charging decision.