2014 PPSC Survey of Investigative Agencies: Survey Results for Police Services

Background

The Public Prosecution Service of Canada (PPSC) was created in December 2006, when the Director of Public Prosecutions Act came into force. It replaces the former Federal Prosecution Service, which was part of the Department of Justice Canada. The Director of Public Prosecutions is responsible for prosecuting offences under federal jurisdiction, and for providing prosecution-related legal advice to law enforcement agencies over the course of investigations that may lead to such prosecutions. As such, the PPSC works with investigative agencies across the provinces and territories. These include the RCMP, provincial and municipal police services, and regulatory agencies – the enforcement arms of federal departments and agencies.

To be effective and efficient as a national prosecution service, the PPSC must work closely with police services and regulatory agencies in both the provinces and territories while respecting the independence of these agencies and maintaining its own.

Working collaboratively with investigative agencies is one of the PPSC’s ongoing organizational priorities. As part of its plans to meet this priority, the PPSC made a commitment to follow up on its 2008 survey of investigative agenciesFootnote 1 by seeking updated feedback from its partners.

1.1 Purpose and Scope of the Survey

The purpose of the 2014 survey of investigative agencies was to obtain input regarding the PPSC’s legal advice and other prosecution-related activities from the police services and regulatory agencies that initiate most of the cases that the PPSC prosecutes. Its objectives were three-fold:

The survey was national in scope. It was intended for investigators at all levels, and provided an opportunity for them to identify best practices or concerns based on their experiences. The survey questionnaire for police service members focused on PPSC legal advice and support in drug and organized crime and Criminal Code prosecutions, PPSC training activities and PPSC service commitments.

Survey respondents were asked to provide quantitative information on the nature and frequency of the various forms of legal advice and training that they had received over the year preceding the survey, as well as their awareness of PPSC service standards. They were also asked to rate the usefulness of that advice and training, and the extent to which the PPSC’s service standards were being met. Finally, survey respondents were invited to identify the strengths of PPSC prosecution-related activities and possible strategies for improvement, and to provide comments or questions on the service standards or their implementation.

The analysis of respondent ratings of PPSC prosecution-related activities is intended to identify any trends in the nature, frequency or results of those activities. It is important to note that the purpose of the quantitative analysis was not to rate the performance of PPSC prosecutors as a group, or to compare the performance of prosecutors in various regional offices. In fact, this would not have been possible given the non-representative nature of the sample. Hence, the data must be considered as exploratory and should not be considered to be representative of the police services concerned.

Respondent comments on PPSC prosecution-related activities varied in length, from a single word or sentence to a few paragraphs. All comments were analyzed to identify the range of themes, best practices and concerns that were raised, as well as any factors that may affect the results of PPSC activities. The purpose of the qualitative analysis was not to account for the frequency of various comments, or to ascertain whether the respondents’ interpretation or portrayal of events is “accurate” or “true”. In any case, the data generated by the survey would not have allowed us to make that determination. Rather, the purpose of the analysis was to understand the array of factors that can contribute to more or less positive impacts and results. Thus, frequent comments do not necessarily have any more inherent value, in terms of generating knowledge or understanding, than infrequent or even unique ones.

As will be shown, respondent views on the impacts and results of PPSC prosecution-related activities can be influenced by a range of factors, including respondents’ beliefs regarding the seriousness of the offences being enforced and the legal responses that are called for, their understanding of the respective roles and responsibilities of investigators and prosecutors in the criminal justice process and, most importantly, the nature and frequency of their interactions with PPSC staff counsel and agents.

The key findings for the 2014 survey are presented in two separate reports: the present report for police services, and another for regulatory agencies.

2.0 Police Service Respondents

A link to the electronic survey questionnaire was distributed by e-mail to members of the Royal Canadian Mounted Police (RCMP), the Ontario Provincial Police (OPP), the Royal Newfoundland Constabulary (RNC) and municipal police services (MPS) across Canada. Given possible connectivity issues, RCMP members in the territories also received Word versions of the questionnaire.

The survey sample is comprised of 808Footnote 2 respondents, including 663 (82%) from the Royal Canadian Mounted Police (RCMP), 84 (10%) from municipal police services (MPS), 59 (7%) from the Ontario Provincial Police (OPP) and 2 (0%) from the Royal Newfoundland Constabulary (RNC). It was not possible to calculate response rates for the OPP, the RNC and MPS given that the number of survey recipients is unknown. However, where available, the distribution of respondents and response rates for RCMP Divisions is presented in Table 1 below.

Table 1 - RCMP Respondents and Response Rates by RCMP Jurisdictions
Jurisdiction #/% of Survey Respondents # of Survey Recipients Response Rate
Survey Total 663 Unknown --
BC 38 (5.7%) -- --
AB 30 (4.5%) 144 24%
SK 36 (5.4%) 50 78%
MB 37 (5.6%) -- --
ON 182 (27.5%) -- --
QC 62 (9.4%) -- --
NB 20 (3.0%) 119 18%
NS 108 (16.3%) -- --
PEI 17(2.6%) 40 42.5%
NL 33(5.0%) 42 78.6%
Total Provinces 563 (85%) --  
YK 14(2.1%) -- --
NWT 50 (7.6%) 188 29%
NU 36 (5.4%) 123 28%
Total Territories 100 (15%) -- --

Table 1 shows that 88% of police service respondents worked in a province; the remaining 12% worked in one of the territories. Ontario (37%) and Quebec (17%) accounted for a total of 54% of respondents in the provinces, while the NWT accounted for 52% of respondents in the territories.

Table 2, which is annexed to this report, summarizes all quantitative findings on respondent characteristics and rankings.

Roughly two thirds of OPP (68%), MPS (67%) and RCMP (63%) respondents had been affiliated with their police service for over 10 years. More than half of RCMP (60%) and OPP (55%) respondents were commenting as investigators, compared (49%) of MPS respondents; 48% of MPS respondents were commenting as a manager of investigators, compared to 40% of OPP and 36% of RCMP respondents.

3.0 Drug and Organized Crime Prosecutions

Most OPP (92%) and MPS (81%) respondents reported that they had been involved in drug or organized crime prosecutions over the 12 months preceding the survey, compared to 64% of RCMP respondents. A total of 63% of MPS respondents reported that they had been involved in drug or organized crime investigations or prosecutions on a bi -weekly or weekly basis, compared to 49% of OPP and only 31% of RCMP respondents.

3.1 Legal Advice and Support

3.1.1 Frequency of Advice and Support

The reported frequency and usefulness of legal advice and support varied according to the type received. Pre- and post-charge advice was generally the most frequent type of support received by police service respondents, followed by cooperation in the preparation of disclosure materials. Guidance in the preparation of search warrants and preparation of witnesses for court were less frequently received forms of support.

3.1.2 Usefulness of Advice and Support

The reported usefulness of advice and support also varied depending on the type of support received

3.2 Optimal Drug and Organized Crime Prosecution-Related Activities

Police respondent comments on the strengths of PPSC drug and organized crime prosecution- related activities and suggestions on how these activities might be improved revealed a striking level of consistency in the attributes of prosecutorial practices that respondents viewed as optimal by their presence, and as problematic by their absence. Furthermore, the following attributes hold true across police services and jurisdictions, and are similar to those that emerged from the PPSC’s 2008 survey of investigative agencies:

3.2.1 Timely and Consistent Legal Advice and Support

Police service respondents agreed that the provision of legal advice and support can contribute to more optimal investigative practices and the avoidance of legal errors that can compromise an investigation or prosecution. However, the impacts of these services varied based on the competencies of particular PPSC prosecutorsFootnote 3.

3.2.2 Timely and Consistent Communication on Operational Requirements

Although police respondent comments clearly demonstrate the benefits of PPSC prosecutors’ legal advice and support, comments also show that such advice and support are not sufficient. Ongoing and respectful communication is equally important, not only in terms of promoting optimal investigative practices, but also in terms of enhancing investigators’ and prosecutors’ understanding of their respective imperatives and challenges.

3.2.3 Support/Guidance in Preparing Disclosure

It is a fundamental element of the Canadian criminal justice system that an accused person has the right to the disclosure of all relevant information in the possession or control of the Crown, with the exception of privileged information. Disclosure, which increasingly involves massive amounts of information, must be jointly managed by the police and the Crown, as both are obliged to ensure that they can meet their legal obligations for proper and timely disclosure.

3.2.4 Consultation Prior to Staying/Withdrawing Charges or Concluding Plea Agreements

Pre-charge screening or “charge approval” occurs in Quebec, New Brunswick and British Columbia. In these jurisdictions, charges can be laid only if they are approved by Crown counsel beforehand. Although pre-charge screening is not required in other jurisdictions, charges are subject to review after they have been laid. PPSC counsel must consider two issues when deciding to prosecute or not prosecute a charge: whether the evidence is sufficient to justify the initiation or continuation of proceedings, and if it is, whether a prosecution best serves the public interest. Further, the evidential standard must continue to be met during the entirety of the proceedings – from the receipt of the investigative report to the exhaustion of all appeals. Respondent comments show that the importance of providing notice to investigators when charges are withdrawn or stayed cannot be understated.

3.2.5 “Forceful” Prosecution Approach

In Canada, the prosecutor’s role is not to win convictions at any cost, but to put before the court all available, relevant, and admissible evidence necessary to enable the court to determine the guilt or innocence of the accused based on the merits of the caseFootnote 4. Some respondents felt that the prosecution approach taken in the cases that they had initiated was sufficiently forceful. Others criticized a perceived reluctance to pursue drug, organized crime charges.

3.3 Reliance on Legal Agents

As of March 31, 2016, the PPSC had 970 employees, 488 of whom were lawyers. In addition to staff prosecutors, the PPSC retained the services of 186 private-sector law firms, or 409 individually appointed lawyers, as standing agents. The PPSC uses legal agents in areas where it does not have a regional office or where it is impracticable or otherwise not cost-effective to handle cases with staff counselFootnote 6.

The survey questionnaire did not distinguish between the services provided by staff prosecutors and those provided by legal agents. Distinctions between the two groups were made by respondents themselves. The attributes of optimal prosecution-related services described in the preceding section apply to both agents and in-house staff. While some police service respondents were complimentary of the prosecution-related activities performed by legal agents, others were more critical, depending on the agents with whom they had dealt.

4.0 Criminal Code Prosecutions

RCMP members in the territories were the only ones who were invited to respond to questions on Criminal Code prosecution-related activities. Their responses reflect the distinct characteristics of prosecutions in northern environments. Most notably, PPSC northern regional offices deliver most of their services within the context of circuit courts. The number and remoteness of circuit communities vary from territory to territory. The Yukon regional office covers 13 communities by circuit court, in addition to Whitehorse; all the communities are within a two- to five-hour drive, with the exception of Old Crow which is only accessible by air. In the Northwest Territories, the regional office covers 19 circuit communities, in addition to the city of Yellowknife; all but two of the communities are fly-in. Geography poses the greatest challenges in Nunavut, where all 26 communities are only accessible by air, with the exception of the home base in Iqaluit. In addition, court dockets include above average rates of domestic violence and sexual assault, particularly in Nunavut, followed by the Northwest Territories and Yukon. The PPSC has jurisdiction to prosecute domestic violence cases only in Canada’s three territories

Most (93%) RCMP respondents in the territories reported that they had been involved in Criminal Code investigations or prosecutions over the 12 months preceding the survey. A total of 60% of respondents reported that they had been involved in such investigations or prosecutions on a bi-weekly or weekly basis.

4.1 Legal Advice and Support

4.1.1 Frequency of Advice and Support

The reported frequency of legal advice and support varied according to the type received. Pre - and post-charge advice, and support in the preparation of witnesses for court were the most frequent, with 58% and 50% of RCMP respondents in the territories respectively reporting that they had received such advice and support over the 12 months preceding the survey. Fewer (43%) had benefited from cooperation in the preparation of disclosure material, and only 11% from guidance in the preparation search warrants.

4.1.2 Usefulness of Advice and Support

The reported usefulness of advice and support also varied according to the type received. Pre - and post-charge advice, and support in the preparation of witnesses for court were rated as useful or very useful by 61% and 60% of RCMP respondents in the territories. In comparison, cooperation in the preparation of disclosure material was rated as such by 51% of respondents, and guidance in the preparation search warrants by 38% of respondents.

4.2 Optimal Criminal Code Prosecution-Related Activities

As they had been for drug and organized crime prosecutions, RCMP members in the territories were asked to identify the strengths of PPSC Criminal Code prosecution-related activities as well as possible strategies for improvement. The attributes of prosecutorial practices that respondents viewed as optimal by their presence and as problematic by their absence a are similar to those which emerged from the PPSC’s 2008 survey of investigative agencies, that is:

4.2.1 Timely Legal Advice and Support

RCMP respondents in the territories confirmed the benefits of the legal advice and support provided by PPSC prosecutors. Comments suggest that such advice and support is particularly important to investigators in isolated locations given that they frequently work in small detachments that may be staffed by fewer and more junior membersFootnote 8.

4.2.2 Consultation Prior to Staying/Withdrawing Charges or Concluding Plea Agreements

Comments from RCMP members in the territories again show that a failure to consult with or provide notice to investigators when charges are stayed or withdrawn, however infrequent, will likely have a negative impact on the quality of the working relationship between investigators and PPSC prosecutors.

4.2.3 Preparation for Court

RCMP respondents in the territories underscored the benefits of early PPSC involvement in Criminal Code files. Their comments indicate that timely file screening and preparation for court can support the early identification of any additional investigative needs; and the preparation of more accurate witness lists. In contrast, the absence of such review and preparation can result in unnecessary delays and wasted resourcesFootnote 9.

4.2.4 “Forceful” Prosecution Approach

While some RCMP respondents in the territories felt that the prosecution approach taken Criminal Code cases was sufficiently forceful, others argued that prosecutors should proceed with more charges, particularly in domestic violence cases.

5.0 Training Activities

Only 18% of all police service respondents reported that they had participated in training activities offered by the PPSC over the year preceding the survey Roughly three out of four (72%) of all training recipients had participated in only one training activity.

5.1 Training Frequency and Training Topics

The most frequently reported training topics were the respective roles of investigators and prosecutors (28%), the preparation of search warrants (27%) and disclosure management (26%), followed by acts and regulations (18%) and the preparation of Crown briefs (15%). Only 3% of training recipients reported that they had received training on wiretap authorizations / applicationsFootnote 10. Other training topics included arrests and bail, the Canada Evidence Act, arrests and bail, forensic interviewing, note taking, searching electronic devices, testifying in court and human smuggling.

5.2 Trainer Knowledge and Training Results

Respondent ratings of trainer knowledge and training results varied according to the training topic. As indicated by the findings below, the impacts and results of training were the greatest for training on wiretap authorizations, disclosure management, the preparation of Crown briefs and the preparation of search warrants, and the lowest for training on acts and regulations and the respective roles of investigators and prosecutors. Depending on the training topic:

5.3 Optimal Training Approaches

Comments from police respondents in the provinces and territories highlight the concrete benefits of the PPSC training activities in which they had participated, both at an individual and an organizational level, as well as the training approaches that can maximize those benefits.

A number of police service respondents did not know that the PPSC was involved in training activities prior to completing the survey. Overall, respondents called for more regular training activities, on a broader range of topics, and for more information on training opportunities to be disseminated at all levels within their agencies.

6.0 PPSC Service Standards

In June 2012, the PPSC implemented service standards that establish what police and federal investigative agencies may expect from PPSC prosecutors regarding matters such as the PPSC’s normal business hours, timelines for responding to phone calls or e-mails, requests for legal opinions, document reviews or training, and when they can expect to be consulted by the PPSC.

Depending on the service standard in question, between 49% and 78% of all police service respondents reported that, in their experience, the standard was often or sometimes met. Results for each of the service standards explored are as follows:

Respondent comments and questions on the service standards suggest that the PPSC’s ability to meet the standards may vary and be contingent, at least in part, on operational pressures faced by the PPSC.

7.1 Moving Forward

A central goal of the 2014 survey of investigative agencies was to identify strategies to promote more effective working relationships between the PPSC and investigative agencies. The analysis of the survey results points to four primary strategies for solidifying the relationship:

  1. More liaison and training at front-line/management levels
  2. More consultation prior to staying/withdrawing charges or concluding plea agreements
  3. Enhanced support in disclosure preparation
  4. Clarification and/or review of some PPSC service standards

All of these strategies involve more communication. As repeatedly illustrated by respondent comments, the benefits of communication for both IAs and PPSC include more optimal investigative and prosecutorial practices, “higher quality products”, “fewer challenges at trial”, “savings in time and resources” and, ultimately, more collaborative working relationships.

A working group composed of Chief Federal Prosecutors and Headquarters staff has developed a Management Response and Action Plan (MRAP) which sets out PPSC policy and service commitments and concrete actions that both prosecutors and investigators can take to foster more collaborative working relationships. The plan has been endorsed by senior management and will be implemented over the course of FY 2016-17.

Tableau 2 – Summary of Quantitative Data for Police Services
Police Service Respondents % RCMP % OPP % MPS
# / % of respondents by police service 82%
(663)
7%
(59)
10%
(84)
% with more than 10 years at police service 63% 68% 67%
% commenting as investigator 60% 55% 49%
% commenting as manager of investigators 36% 40% 48%
Drug/Organized Crime Investigations or Prosecutions (D/OC)
% involved in D/OC in last 12 months 64% 92% 81%
% involved in D/OC weekly or bi-weekly 31% 49% 63%
% involved in D/OC no more than monthly 69% 51% 37%
% who had sometimes or often received legal advice or support overpast 12 months
Pre/post charge advice 59% 73% 68%
Cooperation in preparation of disclosure 56% 58% 69%
Guidance in preparation of search warrants 44% 55% 44%
Preparation of witnesses for court 39% 30% 40%
% who rated advice or support as useful or very useful
Pre/post charge advice 68% 66% 75%
Cooperation inpreparation of disclosure 62% 67% 77%
Guidance in preparation of search warrants 76% 70% 69%
Preparation of witnesses for court 59% 58% 64%
Criminal Code Investigations or Prosecutions (CC)Footnote 11
% involved in CC inlast 12 months 93% n/a n/a
% involved in CC weekly or bi-weekly 60% n/a n/a
% involved in CC no more than monthly 40% n/a n/a
% who had sometimes or often received legal advice overpast 12 months
Pre/post charge advice 58% n/a n/a
Cooperation in preparation of disclosure 43% n/a n/a
Guidance in preparation of search warrants 11% n/a n/a
Preparation of witnesses for court 50% n/a n/a
% who rated support as useful or very useful
Pre/post charge advice 61% n/a n/a
Cooperation in preparation of disclosure 51% n/a n/a
Guidance in preparationof search warrants 38% n/a n/a
Preparation of witnesses for court 60% n/a n/a
Training
% who received training 19% 9% 21%
Service Standards
% informed of service standards 16% 15% 15%
% reporting that service standard was often or sometimes met
Responding to e-mails within 3 business days 81% 68% 81%
Responding to calls within 1 business day 79% 59% 79%
Contacting agency on charges/plea negotiations 54% 44% 54%
Reviewing documents within 15 business days 51% 64% 51%
Informing agency if more time required 53% 49% 53%
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