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News and Views — The David Rose Criminal Law Advisor

The Supreme Court considers the scope of prosecutorial discretion when considering mandatory minimum sentences.


By: David Rose

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The Respondent, an aboriginal man, was charged with Drive Over 80 — his fourth such offence. The Crown tendered a Notice to Seek an Increased Penalty, but the trial judge found this to be a violation of the rights of the Accused under s. 7 of the Charter because it deprived an aboriginal offender with the opportunity to seek a non-custodial sentence. This argument was upheld in the Newfoundland Court of Appeal. The Supreme Court of Canada allowed the appeal and substituted the minimum mandatory sentence of 120 days custody. While judges must consider the aboriginal background of an offender, prosecutors do not. Nor is it a principle of fundamental justice under s. 7 of the Charter that Crown prosecutors must do so. This would greatly expand the role of judicial review in scrutinizing the actions of Crown prosecutors, and it remains part of core prosecutorial discretion. There is a long standing reluctance to permit judicial review of that discretion. The Court took an opportunity to clarify the nature of core prosecutorial discretion.

 Moldaver J. explains:

[44] In an effort to clarify, I think we should start by recognizing that the term "prosecutorial discretion" is an expansive term that covers all "decisions regarding the nature and extent of the prosecution and the Attorney General's participation in it" (Krieger, at para. 47). As this Court has repeatedly noted, "[p]rosecutorial discretion refers to the discretion exercised by the Attorney-General in matters within his authority in relation to the prosecution of criminal offences" (Krieger, at para. 44, citing Power, at p. 622, quoting D. Vanek, "Prosecutorial Discretion" (1988), 30 Crim. L.Q. 219, at p. 219 (emphasis added)). While it is likely impossible to create an exhaustive list of the decisions that fall within the nature and extent of a prosecution, further examples to those in Krieger include: the decision to repudiate a plea agreement (as in R. v. Nixon, 2011 SCC 34, [2011] 2 S.C.R. 566); the decision to pursue a dangerous offender application; the decision to prefer a direct indictment; the decision to charge multiple offences; the decision to negotiate a plea; the decision to proceed summarily or by indictment; and the decision to initiate an appeal. All pertain to the nature and extent of the prosecution. As can be seen, many stem from the provisions of the Code itself, including the decision in this case to tender the Notice.

[45] In sum, prosecutorial discretion applies to a wide range of prosecutorial decision making. That said, care must be taken to distinguish matters of prosecutorial discretion from constitutional obligations. The distinction between prosecutorial discretion and the constitutional obligations of the Crown was made in Krieger, where the prosecutor's duty to disclose relevant evidence to the accused was at issue:

In Stinchcombe, supra, the Court held that the Crown has an obligation to disclose all relevant information to the defence. While the Crown Attorney retains the discretion not to disclose irrelevant information, disclosure of relevant evidence is not, therefore, a matter of prosecutorial discretion but, rather, is a prosecutorial duty. [Emphasis added; para. 54.]

Manifestly, the Crown possesses no discretion to breach the Charter rights of an accused. In other words, prosecutorial discretion provides no shield to a Crown prosecutor who has failed to fulfill his or her constitutional obligations such as the duty to provide proper disclosure to the defence.
Accordingly, a sentence of 120 days incarceration was substituted, but at the request of the Crown, the balance of the sentence was stayed.

R. v. Anderson (2014), 2014 CarswellNfld 166, 2014 CarswellNfld 167, 60 M.V.R. (6th) 1, 2014 SCC 41, 2014 CSC 41 (S.C.C.)

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