Preamble to the Prosecution Manual

Prosecution Manual

The legal framework for decisions made by Prosecutors is provided by the Criminal Code, other federal legislation and legal decisions of courts. It is also necessary in the public interest to have uniform prosecution policies applicable across the province in order to assist and guide Prosecutors in the exercise of their discretion. Prosecution policies provide mandatory direction, advice and guidance to Prosecutors on the exercise of prosecutorial discretion.

In Ontario, prosecution policies are issued by the Attorney General through the issuance of Directives. The Directives, as a whole, constitute Ontario’s Prosecution Manual. Directives provide consistency of approach to prosecutions across Ontario and typically relate to a particular category of cases (e.g. impaired driving or intimate partner violence) or to a specific prosecutorial issue (e.g. judicial interim release (bail)). The Directives also provide the public with an indication of the guiding principles for Prosecutors, enhancing accountability and transparency.

Prosecutors are required to familiarize themselves with the contents of the Prosecution Manual and must follow the mandatory direction, advice and guidance as set out in the Directives when making decisions in cases. The Directives are not intended to replace the sound judgement that Prosecutors exercise. Prosecutors are expected to exercise their discretion in accordance with the overall priorities in the Manual, keeping in mind the need to see justice done in individual cases. Directives which bind the discretion of the Prosecutor in the conduct of individual cases are few and far between. There will be decisions made daily by Prosecutors that are not specifically described in the Directives. In general, Prosecutors should exercise their discretion in keeping with the spirit of the Directives and their duties as local Ministers of Justice.

The role of the Attorney General

The Attorney General of Ontario occupies a unique dual position – as both the Minister of Justice for the provincial government and as the Chief Law Officer of the Crown. The Attorney General is a minister and member of Cabinet. The responsibilities of the Attorney General extend beyond those of other Cabinet ministers [Roles and Responsibilities of the Attorney General].

Under the Canadian constitution the federal government is responsible for the creation of criminal law, and the provinces are responsible for the administration of justice. As Chief Law Officer in Ontario, the Attorney General is responsible for the administration of justice, including the prosecution of individuals charged with criminal and regulatory offences. The Attorney General must carry out the prosecutorial responsibilities based on objective, legal criteria, independent of any political considerations that may arise in any particular criminal case or area of criminal policy.

It is extremely rare for an Attorney General to become involved in decision-making in individual prosecutions. Decisions in individual prosecutions are made by the Prosecutors who act as agents for the Attorney General. The Prosecutors are part of the Criminal Law Division under the Ministry of the Attorney General.

In the event that the Attorney General or Deputy Attorney General seeks to provide instructions to the Assistant Deputy Attorney General – Criminal Law Division on the conduct of a particular criminal prosecution or appeal that direction must be given in writing and must be published in a publicly accessible electronic forum. The publication of any such direction may be delayed by the Assistant Deputy Attorney General – Criminal Law Division, if the publication of the direction would interfere with the interests of justice.

Where the Attorney General or Deputy Attorney General provides their personal consent to a prosecution-related matter as required under the Criminal Code, that consent will be filed with the relevant court or tribunal and will thereby be publicly accessible.

As with a particular prosecution or appeal, it is equally important that the development of criminal policy that relates to the prosecution of a category of cases or to specific prosecutorial issues also be free from political influence. Where the Attorney General seeks to provide specific direction to the Deputy Attorney General and the Criminal Law Division as it relates to the prosecution of a category of cases, specific prosecutorial issues or criminal policy that specific direction will be in writing. The applicable Directive will be revised (or newly posted) and the ‘new’ content will be clearly identified.

The publication of any such direction promotes the paramount goals of openness and transparency. Transparency avoids allegations of improper political influence that, even unfounded, can have significant adverse implications for the Attorney General, the government and public confidence in the criminal justice system.

The role of the Prosecutor

Prosecutors are appointed to act as ‘agents’ for the Attorney General and in turn, make the vast majority of prosecution-related decisions. Prosecutors have significant discretion to conduct cases in a way that ensures justice is done and is responsive to the particular circumstance of a case. When exercised fairly and impartially, prosecutorial discretion is an essential component of the criminal justice system.

The independence of the Attorney General advances the public interest by enabling Prosecutors to exercise considerable prosecutorial discretion and properly fulfill their quasi-judicial role as ministers of justice without fear of political influence.

The Prosecutor must act with objectivity, independence and fairness in each case to ensure timely and principled decision making based on the circumstances of the accused and the alleged offence and an appropriate use of legal principles without outside pressure or considerations. Decisions made by Prosecutors in the proper exercise of their discretion will be supported by the Attorney General.

The Prosecutor should not consider the personal feelings of any official involved in the prosecution about the alleged victim or the accused, the potential political advantage or disadvantage that might flow from the decision to undertake or stop a prosecution, or the possible effect on the personal or professional circumstances of anyone connected to the exercise of prosecutorial discretion.

Prosecutors are dedicated to enhancing public safety and to promoting public confidence in the administration of justice and the rule of law. As representatives of the Attorney General, Prosecutors act with integrity to protect the interests of all Ontarians through fair, effective and efficient prosecutions.

Acting as “advocate”

Public confidence in the administration of criminal justice is strengthened by a system where Prosecutors are not only strong and effective advocates for the prosecution but also Ministers of Justice with a duty to ensure that the criminal justice system operates fairly to all: the accused, victims of crime and the public. A Prosecutor’s role excludes any notion of winning or losing. A Prosecutor’s responsibilities are public in nature. As a Prosecutor and a public representative, demeanor and actions should be fair, dispassionate and moderate; show no signs of bias; and be open to the possibility of the innocence of the accused person.

Prosecutors have a responsibility to ensure that every prosecution is carried out in a manner consistent with the public interest. The Prosecutor must remain objective and be aware of the negative impact of stereotypes. In particular, stereotypes relating to race or ethnic origin, colour, religion, sex, sexual orientation, gender identity, gender expression, political association or beliefs of the accused or any person involved in the case must be rejected.

Relationship with the police

Police officers have a responsibility and discretion over the investigation of a criminal offence and the laying of criminal charges except where the consent of the Attorney General is required by statute. While both the police and the Prosecutors exercise discretion independently and objectively, the relationship between the investigative service and the prosecutorial service is one of cooperation and mutual reliance.

Relationship with victims

Prosecutors owe special duties of candour and respect to all victims. The Prosecutor is not, and can never, function as the victim’s lawyer. Prosecutors must display sensitivity, fairness and compassion in their dealings with victims. In circumstances where the fair and impartial exercise of prosecutorial discretion is at odds with the victim’s desires, the Prosecutor should be sensitive but realistic and candid with the victim.

Prosecutors must ensure that efforts are made that victims are provided with all relevant information that allows for full and fair participation in criminal proceedings. Prosecutors also have an important role to play in identifying victims who may require assistance to fully access the criminal justice system, or to communicate their evidence to the court.