Prosecutorial Discretion and the Ethics of Stays
- May 22, 2016
- Clayton Rice, K.C.
Many junior criminal lawyers in Alberta think that a stay of proceedings is a normal way for a Crown Attorney to terminate a prosecution before verdict at trial. But it hasn’t always been this way. I was a young lawyer the day I received the first stay of proceedings for a client. It came by letter. And I recall thinking that the letter was very strange. I had never seen one before. It wasn’t even addressed to me. It was addressed to the Clerk of the Court and I received a copy. The first thing I did was look it up in the Criminal Code and sure enough – there it was! I called a senior lawyer. “Have you ever seen one of these?” I asked. He had heard of it but never seen one. “Bring it over,” he said. That was over thirty years ago. And now? Stays of proceedings in Alberta are as common as rain on the window.
I have concluded that the exercise of the discretion to stay proceedings by front line prosecutors as agents for the Attorney General of Alberta and the federal Director of Public Prosecutions under s. 579 of the Criminal Code has become systemically unethical. Here’s why.
The control of a prosecution, the duty to move a case along, and the discretion to terminate it including the manner of termination are important dimensions of a Crown Attorney’s quasi-judicial responsibilities. Professor Kent Roach of the University of Toronto, Faculty of Law, described the discretion to stay proceedings in the Report Relating to Paragraph 1(f) of the Order In Council for the Commission of Inquiry into Certain Aspects of the Trial and Conviction of James Driskell (2005) (the LeSage Inquiry), at p. 23:
“The power of the prosecutor to stay public or private prosecutions under s. 579 of the Criminal Code has been described by the Supreme Court as one of the five ‘core elements of prosecutorial discretion’ [Krieger v. Law Society (Alberta) 2002 SCC 65 at para. 46] that relate to whether a prosecution will be brought and what form a prosecution will take. As such, the decision whether to use a stay should be made independently by the prosecutor in accordance with the traditions of the prosecutor as a Minister of Justice. At the same time, the use of the prosecutorial stay like other exercises of prosecutorial discretion, will be treated with deference by the courts and other parts of government.”
The text of s. 579(1) provides that a prosecutor may “direct the clerk…to make an entry on the record that the proceedings are stayed”. By virtue of sub-sec. (2) if notice is not given that the proceedings are recommenced within one year after the entry of the stay “the proceedings shall be deemed never to have been commenced”. The judiciary has had little opportunity to consider the section because a court is rendered functus officio when a clerk receives the direction. Here are some basics from the case law.
- The direction to the clerk is a statutory administrative discretion given to the Attorney General that is outside the control of the judge. (See: R v Smith (1992), 79 CCC (3d) 70 (BCCA) per Hollinrake J.A., at para. 12)
- Although, historically, the discretion was immune from judicial review, except in cases of flagrant impropriety, it is now subject to scrutiny under s. 7 of the Charter and the abuse of process doctrine. (See: Campbell v Ontario (1987), 35 CCC (3d) 480 (Ont CA) per curiam, at para. 2; and, R v N (D) (2004), 188 CCC (3d) 89 (NLCA) per Wells C.J., at paras. 15-8)
A stay of proceedings is not a trial verdict. It is not a final determination on the merits. It is not subject to the double jeopardy doctrines of res judicata and issue estoppel nor would the special plea of autrefois acquit be available. A stay of proceedings means that a new proceeding arising out of the same delict is always possible. There is nothing to prevent the laying of a new Indictment after the one year expires. Unlike summary conviction proceedings which must be commenced within six months under s. 786(2) of the Code, there is no statutory limitation on indictable offences in Canada.
There are three ways by which a Crown Attorney may terminate a prosecution other than by proceeding to verdict at trial:
- withdraw a charge at any time prior to plea by the defendant, or with leave of the court, after a plea has been entered;
- direct a stay of proceedings; or,
- proceed with the trial but elect not to call any evidence, or to stop calling further evidence, and asking the judge to acquit or instruct the jury to return a directed verdict.
The decision to enter a stay of proceedings, or to obtain an acquittal by adducing no evidence, was the subject of consideration by former Chief Justice Antonio Lamer in The Lamer Commission Of Inquiry Pertaining To The Cases Of: Ronald Dalton, Gregory Parsons, Randy Druken (2006). In the Report and Annexes (the Report) the Chief Justice began the analysis this way, at pp. 317-8:
“There is a significant legal consequence flowing from which avenue has been chosen. If the accused is acquitted, he is immune from any future prosecution for the same conduct. After a stay has expired, the former accused may be charged with the same offence for the same conduct at any time. This makes the stay of proceedings a much easier choice for the Crown. There is ‘nothing to lose’ by entering a stay so the Crown is relieved of the burden of having to assess the evidence and determine whether a subsequent prosecution is a realistic possibility. But there is a downside for the accused. A stay of proceedings may leave an impression with the public that the charge is merely being ‘postponed’ or ‘the authorities’, in a broad sense, still believe in the validity of the charge.”
The conflicting views about the propriety of directing a stay was highlighted by the respective positions of the Association In Defence Of The Wrongly Convicted (AIDWYC) and counsel for the Director of Public Prosecutions. The Report contains this extract from the brief prepared by AIDWYC, at p. 318:
“…[T]he privilege of the stay is such that the Crown never has to say it’s sorry – or, for that matter, anything at all. Subject to the rarely exercised power to revive within one year, a stay permanently terminates a prosecution. Some empty phrases might accompany the entry of a stay – the invocation of an ‘ongoing investigation,’ ‘after careful consideration,’ the ever-handy ‘public interest’ – but rarely anything of substance. The Crown, in short, never has to publicly justify its use of the power to stay proceedings.
A stay, it is clear, is not an exoneration. There is no admission here of a misconceived or ill-executed prosecution. The defendant is left in a legal – and very public – limbo: no longer an accused but forever shrouded in a cloud of officially induced suspicion. This is a conscious and likely deliberate consequence of the Crown decision to enter a stay of proceedings. It preserves, if barely, the propriety of the initial prosecution and, simultaneously, indelibly tarnishes the defendant.”
Counsel for the Director of Public Prosecutions took issue with the views of AIDWYC. She argued that the contention that a stay of proceedings leaves a cloud of suspicion over a person is a specious argument that undermines the presumption of innocence which prevails throughout the charging period and the one year hiatus. Her submission was, of course, a prosecutor’s argument designed to disarm defence lawyers. It is, in essence, a minimalist legal argument that fails in its humanity and received a rhetorical rebuke from Chief Justice Lamer in the Report, at p. 318: “…[T]his analysis is legally correct but practically unrealistic. For example, a person facing a charge of murder is also presumed innocent but is there not a cloud hanging over such an accused?”
At the time of the Lamer Inquiry in 2006 there was a wide divergence in practice across Canada. In Manitoba, for example, the overwhelming practice was to rely upon the stay of proceedings as the preferred way to terminate prosecutions. In Ontario, the predominant view was that a stay of proceedings should not be entered unless there is a reasonable likelihood of new incriminating evidence coming to light. The Report concluded that the wide latitude for prosecutorial discretion, and the absence of judicial accountability, presented opportunities for abuse. These recommendations were made, at p. 323:
- Withdrawal of Charge. A withdrawal of the charge is appropriate where the Crown Attorney decides that: (i) reasonable and probable grounds did not exist to lay the charge; (ii) there is no probability of a conviction; or, (iii) it is not in the public interest to proceed with the charge.
- Stay of Proceedings. A stay of proceedings is appropriate where there is a reasonable likelihood of recommencement of the proceedings but it has become necessary, for example, for the police to conduct further investigation that was previously unforeseen. It is not a basis to stay proceedings merely because a judge has made a ruling unfavourable to the Crown.
- Call No Evidence. It is appropriate for the Crown Attorney to commence the trial but to elect to call no evidence, and request an acquittal, where there is no probability of a conviction nor a reasonable likelihood of recommencement of the proceedings.
- Call No Further Evidence. Where the Crown has called evidence it is appropriate to call no further evidence, and request an acquittal, where the Crown Attorney determines that the evidence is so manifestly unreliable that it would be dangerous to convict. This follows even though there may be some evidence on which the trial judge likely would deny a motion for a directed verdict.
The recommendations of the Lamer Inquiry are very similar to the policy contained in the Alberta Justice Crown Prosecutors’ Manual (2015) regarding the exercise of discretion to stay proceedings, at paras. 11-2:
“11. Staying the proceedings is an appropriate exercise of discretion in instances in which the Crown prosecutor determines that there is a reasonable likelihood of recommencing the proceedings but it has become necessary, for example, for the police to conduct further investigation that was previously unforeseen.
12. When deciding whether to enter a stay of proceedings, the Agent should consider the following factors:
- the circumstances of the case and the reason for the inability of the Crown to proceed with the trial;
- the merits of the particular case (including the sufficiency of evidence and the likelihood of conviction);
- the relative importance of the case;
- the likelihood of recommencement.”
The duties and responsibilities of federal prosecutors are contained in s. 2 of the Public Prosecution Service of Canada Deskbook. The policy directive recognizes the quasi-judicial function of Crown counsel that includes the duties of fairness, moderation and dignity. The “minister of justice” responsibility imposes upon Crown counsel the obligation to exercise their prosecutorial authority according to the highest ethical standards. Although the Deskbook appears silent on the factors to be weighed in exercising the discretion to direct a stay of proceedings, the decision to prosecute test, contained in s. 2.3.2, includes consideration of whether there is a “reasonable prospect of conviction”. If there is no reasonable prospect of conviction and a prosecution would not best serve the public interest, the policy simply directs that “charges should be withdrawn or a stay of proceedings entered”. (See also: R v Regan,  1 SCR 297 per Binnie J., at para. 156; and, Cunliffe v Law Society of British Columbia (1984), 13 CCC (3d) 560 (BCCA) per Hinkson J.A., at para. 34)
If the Attorney General of Alberta’s policy is being implemented by her front line prosecutors – why are so many prosecutions stayed and so few recommenced? Throughout my career I have had only one stayed provincial prosecution revived under Code s. 579(2). It was an attempted murder case with a drug trafficking element and a wiretap component conducted by Alberta Justice. It was apparent from subsequent disclosure when proceedings were recommenced that the Calgary Police Service used the one year window to pursue new investigative leads. I have not had one stayed federal prosecution recommenced by the Director of Public Prosecutions or the Attorney General of Canada under the auspices of the former Department of Justice. The total of provincial and federal stayed prosecutions in my practice numbers in the hundreds. That is a truly extraordinary statistic. One case was recommenced. And if that is the experience of one criminal lawyer in Alberta – the national statistics must be staggering.
The consequences of this systemic culture of stays flow from the simple, but often forgotten fact, that a stay of proceedings is not a verdict on the merits. A new Indictment for a previously stayed offence may always be laid. Potential jeopardy continues. As the Lamer Inquiry concluded, the presumption of innocence is no recompense for the shadow cast by officially induced suspicion. And, should a new Indictment be laid, any claim of breach of the right to trial within a reasonable time under Charter s. 11(b) would be pointless. The speedy trial clock does not start until the date of the new Indictment. The operative time period for delay purposes does not include pre-charge delay. And, because the charge was unknown (it did not exist), it would be difficult to establish prejudice. Oh, and by the way, if stayed proceedings are deemed at law “never to have been commenced” after the expiry of one year, why are they retained in the Canadian Police Information Centre (CPIC) repository in Ottawa that is linked with the United States National Crime Information Center and the National Law Enforcement Telecommunications System?
The conclusion is inescapable that the discretion to direct a stay of proceedings is being systemically used in Alberta as a substitute for offering no evidence at trial and requesting an acquittal. It is important to emphasize that the discretion is an administrative one conferred on the Attorney General of Alberta and the Director of Public Prosecutions by statute. The exercise of the discretion is constrained by the duty of fairness and the obligation to act honourably for the public and the administration of justice under Rule 4.01(4) of The Law Society of Alberta’s Code of Conduct. It could never have been the intention of Parliament to vest the Attorney General with the authority to create a subclass of citizen painted with officially induced suspicion for life. These are ethical questions.
The ethics of stays may be reinforced by the Attorney General of Alberta implementing a vigorous adherence to the policy in her Crown Prosecutors’ Manual. The Director of Public Prosecutions should adopt a similar one. It is a reasonable policy which, if implemented in a considered way by front line prosecutors, will ensure that cases where no evidence should be offered will result in acquittals and stays of proceedings will be directed only in those rare cases where there is a likelihood of recommencement. Adherence to this policy will avoid prosecutorial stays from becoming the final disposition although that may do nothing for the many Albertans who will take their stays to the grave.