Friday, May 02, 2008


Crown Counsel Policy Manual, P. 3 - 5

F.y.i., from:

Criminal Justice Branch, Ministry of Attorney General

Mandate of the Criminal Justice Branch:

The Crown Counsel Act affords significant prosecutorial independence to the Branch and, at the same time, balances that independence with accountability. The mandate of the Branch is set out in Section 2 of the Crown Counsel Act, where it states:

The Branch has the following functions and responsibilities:

(a) to approve and conduct, on behalf of the Crown, all prosecutions of offences in British Columbia; ...

(d) to advise the government on all criminal law matters; ...

(f) to provide liaison with the media and affected members of the public on all matters respecting approval and conduct of prosecutions of offences or related appeals; ...

Role of Crown Counsel:

... The position held by counsel for the Crown is not that of a lawyer in civil litigation. His functions are quasi-judicial. His duty is not so much to obtain a conviction as to assist the judge and jury in ensuring that the fullest possible justice is done. His conduct before the Court must always be characterized by moderation and impartiality. He will have properly performed his duty and will be beyond all reproach if ... he presents evidence to the jury without going beyond what it discloses ...

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. [Emphasis added. - BC Mary.] ... the role of the prosecutor excludes any notion of winning or losing; his function is a matter of public duty ... It is to be efficiently performed with an ingrained sense of the dignity, the seriousness, and the justness of judicial proceedings.

Relationship of the Branch with other Justice Agencies (Page 4):


The independence of the investigative and prosecutorial functions has been acknowledged as an important aspect of the administration of justice. In particular, the police must be free to conduct investigations and to form their own theories and opinions about who committed the offence which has been alleged. [Emphasis added. - BC Mary.] The police have a unique and well recognized role. Historically, the notion that the police make decisions about who, what, and how to investigate, free from government interference, can be traced back over 1,000 years. Recently, the Supreme Court of Canada has confirmed that principle.

Crown Counsel exercise a role which is distinct from the investigation in order that their objectivity is not, and is not seen to be, compromised, so that they can properly discharge their quasi-judicial roles in making an objective ad principled decision on the initiation or conduct of a prosecution.

At the same time, there can be no question that cooperation between the police and Crown Counsel is absolutely essential to the proper administration of justice.

Police and prosecutor are in a symbiotic relationship. Evidence gathered by the police during the investigative stage is the lifeblood of a prosecution. If it is anaemic or tainted, no amount of forensic brilliance can save the prosecution. Conversely, an incompetent prosecutor can render the most probing and meticulous police investigation impotent. For the criminal justice system to fully realize its goal of apprehending, convicting and sentencing the guilty (but not the innocent) by means of a process that complies with the Charter of Rights and Freedoms, police and prosecutors must have an effective working relationship.

When a police officer lays an Information, he or she must swear on oath that there are reasonable grounds to believe and that the officer does in fact believe, an offence has been committed. ...

... police have the authority to lay an Information; however, Crown Counsel have the ultimate authority to direct a stay of proceedings. Therefore, it is expected that the police will lay an Information only after the approval of charges by Crown Counsel, or, if charges are not approved, upon exhaustion of an appeal of that decision by the police.

Recognizing that the charge assessment responsibility of Crown Counsel and the investigative responsibility of the police are mutually independent, cooperation and effective communication between Crown Counsel and the police are essential to the proper administration of justice. In serious cases, or those of significant public interest, Crown Counsel discuss with the police, where practicable, their intention to not approve a charge recommended by the police ... or to direct a stay of proceedings, and also resolution discussions.

Although it is not completely clear to me from the Crown Counsel Policy Manual's 248 pages, I take it to mean that a Special Prosecutor, such as Bill Berardino in the Basi Virk Basi trial, is appointed for a specific trial only, but otherwise comes under the same terms as Crown Counsel described here. Stated simply: that a Special Prosecutor is, in fact, a Crown Counsel within a narrowed field.

The manual does explain, as follows:

Directions from Attorney General on specific prosecutions:

Special prosecutors

(1) If the ADAG considers it is in the public interest, he or she may appoint a lawyer, who is not employed in the Ministry of Attorney General, as a special prosecutor.

(2) A special prosecutor must carry out his or her mandate, as set out in writing by the ADAG, and in particular must
(a) examine all relevant information and documents and report to the ADAG with respect to the approval and conduct of any specific prosecution, and
(b) carry out any other responsibilities respecting the initiation and conduct of a specific prosecution.

(4) If, after a special prosecutor receives the mandate under subsection (2), the AG, Deputy AG, or ADAG gives a direction to a special prosecutor in respect of any matter within the mandate of the special prosecutor, that direction must be given in writing and be published in the Gazette.

(5) Subject to the mandate given to the special prosecutor by the ADAG or to a directive referred to in subsection (4), the decision of a special prosecutor with respect to any matter within his or her mandate is final, but a decision not to approve a prosecution may be appealed by a law enforcement officer under the process established by Section 4 (4).

Has anybody been following these Gazette entries?? - BC Mary.

Comment received, with thanks, from Gary E:

Mary, sometime ago I decided to look for entries in The BC Gazette and found that like everything else in this province you have to pay through the nose. Although the federal Gazette is free and I beleive it is online.

Does B.C. still have an Ombudsman?? - BC Mary.

Mary, sometime ago I decided to look for entries in The BC Gazette and found that like everything else in this province you have to pay through the nose. Although the federal Gazette is free and I beleive it is online.
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