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Solomon Friedman: Few remedies available when prosecutors go rogue

(2012-07-05)

Few remedies available when prosecutors go rogue

Solomon Friedman, The Ottawa Citizen

July 5, 2012

OTTAWA — In our legal system, Crown prosecutors wield considerable power in the exercise of their discretion. Courts refer to them as “quasi-judicial” or judgelike, in terms of both their function and the manner in which they carry out their duties. Accordingly, much is expected of prosecutors in terms of fairness, impartiality and objectivity.

But what happens when Crowns go rogue? What remedies are available to individuals — be they accused persons or others — who have been wronged by impermissible Crown conduct or overzealous prosecutions?

Ordinarily, when a person believes that he or she has been wronged by a lawyer’s improper behaviour, the most straightforward course of action is to report that lawyer to his or her respective governing body.

In Ontario, the Law Society of Upper Canada is empowered by statute to govern lawyers, receive complaints about counsel’s conduct and engage in disciplinary hearings and proceedings when misconduct is identified.

Lawyers can be disciplined for a broad range of conduct, ranging from the most serious allegations of fraud and dishonesty to more subtle issues of incivility and unprofessional behaviour.

Earlier this week, Bay Street litigator Joe Groia was found guilty of professional misconduct for failing to meet the standard of civility expected of counsel during the Bre-X case. Although Groia claimed that his use of hyperbole and sarcasm was an expression of “zealous advocacy”, the Law Society disagreed and found his conduct to be abusive, offensive and unprofessional.

The Supreme Court of Canada, in a 2002 landmark decision, held that governing bodies, such as the provincial law societies, have no jurisdiction generally to sanction or penalize prosecutors for the exercise of their prosecutorial discretion. According to the court, law societies can engage in disciplinary proceedings only when prosecutorial misconduct rises to the level of “bad faith or dishonesty”.

It would appear, therefore, that barring flagrantly deceitful or fraudulent conduct, prosecutors are only subject to the internal disciplinary processes of their office, without the transparency and impartiality of Law Society hearings and disciplinary proceedings. Allegations of prosecutorial incivility or other lesser improprieties, it seems, are beyond the jurisdiction of governing bodies.

While civility ought to be a two-way street between both parties to litigation, that does not seem to be the case in criminal proceedings. The public ought to be concerned that the spectre of disciplinary proceedings may discourage defence counsel from fulfilling their mandate to zealously explore every issue and mount every defence, while at the same time doing nothing to dampen impermissible Crown excess and exuberance.

The other possible remedy for Crown misconduct is a civil action for “malicious prosecution.” Here too, the courts have set the bar almost impossibly high.

It should be noted at the outset that Canadians do not want a criminal justice system that can be subverted by wealthy defendants who can threaten prosecutors with civil law suits and thereby improperly discourage the laying of valid criminal charges.

In recognition of this fact, courts have repeatedly affirmed that a finding of malicious prosecution will be unavailable in all but the most extreme and egregious cases.

In seeking to establish such an action, the plaintiff must have been acquitted of the charges in question and must prove that the prosecutor did not personally believe that there were reasonable and probable grounds to proceed with the prosecution and moreover, that there was no objective grounds for prosecution.

That, in and of itself, is an extremely difficult proposition to prove. But even if the plaintiff can establish such a state of affairs, one more element is required for a finding of malicious prosecution.

The plaintiff will also have to demonstrate that the prosecutor was acting for a malicious or “improper purpose”. Negligence and incompetence are not sufficient. The court will need to be satisfied that the prosecutor’s actions were motivated by a deliberate intention to subvert or abuse the course of justice.

Needless to say, findings of malicious prosecution are rarely, if ever, made by the courts.

What remedies remain to control the misuse of the Crown’s prosecutorial authority?

Other countries, such as the United Kingdom, have taken concrete steps to prevent and address inappropriate exercises of prosecutorial discretion. In the UK and some other Commonwealth jurisdictions, courts are empowered to award costs, on a discretionary basis, to a defendant upon acquittal.

Remember, of course, that even in the event of a complete acquittal and absolute vindication, the accused person is often left destitute, drained emotionally and financially by the entire ordeal. In Canada, absent an action for malicious prosecution — which as explained above, is rare in the extreme — there is no direct financial remedy available to an individual who has been on the wrong side of Crown discretion.

Perhaps it is time for legislators to rethink this situation and acknowledge the grim reality that exists for some accused persons: while the vast majority of Crown prosecutors are honourable and fair-minded in the exercise of their quasi-judicial discretion, sometimes, albeit very rarely, Crowns do go rogue.

Solomon Friedman is a criminal defence lawyer with Edelson Clifford D’Angelo LLP. He can be reached at solomon@edelsonlaw.ca or 613-237-2290. Follow Solomon on Twitter at twitter.com/firearmslaw or at his website www.firearmslaw.ca.

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