Jun 20, 2014

Defining Prosecutorial Discretion (With an Invitation to the Court to Re-define Abuse of Process)

R. v. Anderson, 2014 SCC 41 (CanLII)
Colin Lachance commented
This post was cited by the Court of Queen's Bench of Manitoba: 2014 MBQB 179, at paragraph 30: [30] There is no doubt that, from time to time, innocent people will be charged with criminal offences. However, it behooves us all to bear in mind the serious and lifelong implications of when that occurs. Whereas this stark reality does not justify an order for costs against the Crown in this case, it does raise the question posed by Professor Alice Woolley in an article she recently posted on the Internet in response to the Supreme Court’s decision in Anderson, (“Defining Prosecutorial Discretion (With an Invitation to the Court to Re-define Abuse of Process),” (June 20, 2014), ABlawg.ca (blog), online: http://ablawg.ca/2014/06/20/defining-prosecutorial-discretion-with-an-invitation-to-the-court-to-re-define-abuse-of-process/). In it, she questions the wisdom of assessing the propriety of Crown conduct through the motivations and intentions of the actor. In my view, this should apply equally to the Crown’s strategy and tactics. As she put it: There is, however, some reason to be concerned with the Court’s continued linking of abuse of process to a demonstration that the Crown has acted with improper motive or bad faith…. it assesses the propriety of conduct through the motivations or intentions of the actor. While the personal motivations or attitude of a Crown prosecutor may be relevant for a disciplinary hearing, it is hard to see its relevance to the determination of whether conduct undermines the administration of justice. .... [31] I agree that decisions that undermine the integrity of the trial process or result in trial unfairness, however well intentioned, should be as concerning to the court as malicious decisions and that this point of view is deserving of future consideration by the court.