D. 6: Contact with Media
Type of document: Prosecution Directive
Effective date: November 14, 2017
Public confidence in the administration of criminal justice is enhanced by the availability of appropriate and timely information about cases before the courts and the criminal process. Prosecutors have an important role to play as “Ministers of Justice” and have a responsibility to relate to the media and the public in a manner consistent with that role. Comments must be fair, factual, dispassionate and moderate and must be respectful of the court and all participants in the proceedings.
All communication with the media must be open and transparent and never “off the record”. The Prosecutor must not express personal opinions.
Prosecutors may confirm or provide factual information that is already in the public domain. They should also provide general information or explanations about the criminal process. Prosecutors must not provide information to the media prior to its presentation as evidence in court. Prosecutors must not initiate contact with the media without having obtained prior approval of the Crown Attorney or designate.
This policy applies to all methods of communication including traditional media, electronic news outlets, websites and social media.
Public discussions
Any public discussions which could prejudice ongoing proceedings are prohibited and this prohibition applies until the end of the appeal process. In all their dealings with the media, Prosecutors must bear in mind the presumption of innocence and the need to protect the integrity of the court process and the rights of all the participants in the court process. Prosecutors must not comment on:
- the possibility of charges being laid
- cases under review or investigations that are ongoing
- speculation as to what may happen during any stage of ongoing proceedings
- discussions held with colleagues or members of an investigative agency, whether or not such advice or discussions are privileged
- any information the disclosure of which is prohibited by law or by a court-imposed publication ban
- policies, procedures or decisions of investigative agencies (such inquiries should be directed to the investigative agency)
- the wisdom or efficacy of federal or provincial policies, programs or legislation
- the existence of any plea negotiations or possibility of a plea of guilty or other disposition
- the strength or weakness of the prosecution or defence case including undisclosed elements of the prosecution’s case or strategy
- the appropriateness of a judge's charge to the jury, particular rulings, the verdict of a jury, the sentence or any comments made by the judge
- whether a decision will be appealed or whether an appeal has been requested or not (however, the procedure for considering whether or not to appeal may be explained) or
- the guilt or innocence of an accused or anything that could jeopardize the accused’s right to a fair trial.
Prosecutors should refrain from publicly elaborating on the reasons for the exercise of prosecutorial discretion beyond what was placed on the court record. When the Prosecutor is unsure how to respond to a media inquiry, Prosecutors should refer the media to the Ministry’s media spokesperson at the Ministry of the Attorney General.
Publication bans and court exhibits
If a member of the media inquiries about a restriction on publication, the Prosecutor should advise the media member about the existence of a publication ban. A Prosecutor must avoid providing legal advice to members of the media or the public respecting the propriety of publication or the breadth of any publication ban.
Judicial documents and court exhibits, including Victim Impact Statements, are generally accessible to the public. The Prosecutor should seek to restrict access in any case where public access to court exhibits may undermine the right to a fair trial, violate privacy interests or interfere with the administration of justice.
Reference should be made to the Publication Bans and Sealing Orders Directive.
Communicating with the media in a personal capacity
Public statements by Prosecutors must not compromise their ability to function effectively as public servants nor diminish the public perception of impartiality necessary to fulfill a Prosecutor’s quasi-judicial responsibilities. Prosecutors must also be mindful of their oath of loyalty and confidentiality and statutory restrictions on political comment by public servants. In their personal capacity Prosecutors must not make public statements that would:
- compromise their ability to function as a minister of justice by commenting publicly on the wisdom of a particular offence or specific law, a government policy, position or proposal
- discourage public respect for the administration of justice or weaken the public’s confidence in legal institutions
- contravene professional codes of conduct or
- lecture on matters of public interest where their opinion is sought because they are a representative of the Crown.
If participating in external professional events, the Prosecutor must make it clear the oral or written views being expressed are personal views that do not necessarily represent the position of the Ministry.
This directive applies to Prosecutors who write, blog, participate in virtual communities or social networking sites outside of the scope of their employment. Prosecutors should also consider their safety and security when posting or providing information online.
Reference should also be made to the Publication Bans and Sealing Orders and Professionalism Directives.