2.3 Decision to Prosecute

Public Prosecution Service of Canada Deskbook

Guideline of the Director Issued under Section 3(3)(c) Of The Director Of Public Prosecutions Act

Revised March 7, 2023

Table of Contents

• 1. Overview
• 2. Prevention of Wrongful Convictions
• 3. Duty to present a fair, clear, and comprehensible case
• 4. The Decision to Prosecute
  • 4.1 Reasonable Prospect of Conviction
    • 4.1.1 Application of the Standard
    • 4.1.2 Irrelevant Factors
    • 4.1.3 Duty to Protect Privileged Information
  • 4.2 Public Interest
    • 4.2.1 Factors to Consider
      • a) Nature and Gravity of the Alleged Offence
      • b) Circumstances of the Accused
      • c) Circumstances and Views of the Victim
      • d) Confidence in the Administration of Justice
      • e) Harm to the Community
      • f) Alternatives to Prosecution
    • 4.2.2 Irrelevant Factors
    • 4.2.3 Duty to Protect Private or Privileged Information
• 5. Consultation
• 6. Documenting and Communicating Decision-Making
• 7. Providing Advice to Investigative Agencies on the Decision to Prosecute
• 8. Delegated Provincial / Territorial Prosecutions

1. Overview

Crown counsel must only proceed with prosecutions^{Footnote 1} where two conditions are met:

1. There is a reasonable prospect of conviction; and
2. The prosecution is in the public interest.

The decision to prosecute is among the most important exercises of prosecutorial discretion undertaken by Crown counsel. The decision can be a difficult one to make, and must be made on a principled basis. Crown counsel must carefully balance the interests of the public, the victim(s) (if any), and the accused. Communities also rely upon and expect Crown counsel to make decisions in a manner that promotes confidence in the administration of justice.

Crown counsel hold a quasi-judicial role as a minister of justice.^{Footnote 2} This means that the Crown does not win or lose, nor does the Crown seek a conviction at all costs. At the same time, Crown counsel must be strong and effective advocates. The adversarial process is an important part of the Canadian judicial system. Therefore, it is permissible for Crown counsel to vigorously pursue a legitimate result to the best of their ability. Public confidence in the administration of justice is bolstered when Crown counsel effectively lay before a trier of fact credible evidence relevant to an alleged crime, firmly and to its legitimate strength, but fairly. At all times, Crown counsel must act fairly, independently, objectively, and without negative or positive animus towards the accused or victim(s).^{Footnote 3}

Crown counsel must also be diligent in all decision-making activities to recognize existing personal conscious and unconscious biases, institutional biases, and stereotypes. Both becoming aware of these biases, and taking active steps to set them aside, are necessary to ensure that the decision to prosecute analysis does not perpetuate any form of systemic discrimination or racism.

Crown counsel must ensure that their assessment of the evidence gathered by the investigating authority, the credibility of the witnesses, the defences brought forth by the accused, or any other relevant fact, is free from bias.

For example, Crown counsel must be aware of the existence of different perspectives. Crown counsel should make reasonable efforts to consult with colleagues who have different backgrounds or life experiences to obtain another perspective in assessing the decision to prosecute.

2. Prevention of Wrongful Convictions

Wrongful convictions result in a miscarriage of justice, and significant harm to the convicted person. When the criminal justice system fails, the human cost can be substantial, and public confidence in the justice system is lost. Therefore, Crown counsel must always be scrupulous in their role as ministers of justice to prevent wrongful convictions and to zealously guard against it.

Crown counsel must be mindful of the "environmental" or "predisposing circumstances" that have been identified as fostering wrongful convictions. These circumstances include:

• Tunnel vision (potentially caused by unconscious bias or close contact between Crown counsel, investigative agencies, or victims);^{Footnote 4}
• Decisions influenced by biases, including racial bias, stereotypes, or prejudices of any kind;
• Public pressure to convict in high-profile cases;
• Inadequate or misinterpreted evidence;
• Eyewitness identification error;
• False confessions;
• An unpopular accused;
• A legal environment or culture which focuses on winning; and
• The presence of what has been labelled "noble cause corruption," or the belief that the end justifies the means.

3. Duty to present a fair, clear, and comprehensible case

Crown counsel should be mindful of the principle of moderation in the use of criminal enforcement powers, the accused's constitutional right to have a trial within a reasonable time, and the appropriate use of state resources. This means that Crown counsel must structure their case in a manner that allows the trier of fact to understand and digest the evidence effectively and efficiently.

The practice of overcharging is not appropriate, whether it is through the duplication of counts, the laying of additional or heightened charges that are marginal, or laying charges where the evidence barely meets the directed verdict threshold. Overcharging unduly lengthens and complicates a trial.^{Footnote 5} Charges must always be tailored to focus on the key evidence and the key issues relevant in the context of the individual case.

Crown counsel must carefully consider whether the public interest would be better served by declining to prosecute marginal charges or deciding not to pursue them once the evidence at trial is complete.

4. The Decision to Prosecute

As noted earlier, a prosecution should not be undertaken unless there is a reasonable prospect of conviction and the prosecution would best serve the public interest.^{Footnote 6} The test applies to each individual accused, and every charge on the information or indictment.

If the available evidence does not meet the reasonable prospect of conviction standard, the decision to prosecute threshold is not met, and the prosecution should not proceed.^{Footnote 7} If charges have been laid, those charges should be withdrawn or a stay of proceedings entered. Crown counsel must continue to consider the decision to prosecute criteria throughout all stages of the prosecution, until the exhaustion of all appeals. It is particularly important for Crown counsel to reconsider the criteria when new and credible information comes to light, including from the accused.

4.1 Reasonable Prospect of Conviction

A reasonable prospect of conviction is a standard higher than a bare prima facie case. It requires more than sufficient evidence whereby a reasonable jury, properly instructed, could return a verdict of guilty.^{Footnote 8} However, a reasonable prospect of conviction does not require a probability of conviction in order to proceed.^{Footnote 9}

Crown counsel must assess the reasonable prospect of conviction standard objectively, and on the assumption that the trial will unfold before an impartial trier of fact acting in accordance with the law.

4.1.1 Application of the Standard

In applying the standard, Crown counsel must make a limited assessment of witness credibility based on the admissibility of evidence, and all available defences. In doing so, Crown counsel must be cautious about making any decision that may have the effect of usurping the ultimate role of the trier of fact.^{Footnote 10}

It bears repeating that Crown counsel must set aside their own personal or unconscious biases in assessing the credibility of witnesses, and assessing the impact of any Charter breaches. In particular, Crown counsel must consider the evidence from the perspective of the accused, imbued with the background and experiences that accompany their particular circumstances.

With this in mind, Crown counsel must consider the following:

• The evidence likely to be admissible and available at trial;
• The availability, competence, credibility, and reliability of witnesses;
• Credible evidence that may favour the accused, including evidence that supports a defence, whether apparent on the face of the Crown's case, raised by the accused, or otherwise brought to the attention of Crown counsel; and
• The impact of potential Charter breaches. This includes Charter issues that are apparent from the facts of the case or have been identified by the accused.

Crown counsel must assess whether there is a reasonable prospect of conviction as soon as practicable, following charge referral by the investigative agency or the laying of charges. As the prosecution progresses, new evidentiary information or legal issues often emerge. Crown counsel must continually assess the reasonable prospect of conviction at every stage of the proceeding.

4.1.2 Irrelevant Factors

The decision to prosecute must not be influenced by any of the following:

1. Bias or discrimination based on race, national or ethnic origin, colour, religion, age, sex, sexual orientation, gender identity or expression, marital status, family status, genetic characteristics, disability, socio-economic status, or political association;^{Footnote 11}
2. Crown counsel's personal views or feelings about the accused, victim(s), or witness(es); or
3. The possible effect of the decision on the personal or professional circumstances of Crown counsel, the investigative agencies, or its members, including personal or institutional gain.^{Footnote 12}

4.1.3 Duty to Protect Privileged Information^{Footnote 13}

In assessing reasonable prospect of conviction, Crown counsel must consider whether there is evidence protected by a privilege, and assess the consequences of the Crown's inability to disclose that evidence. This includes evidence that may:

1. Reveal the identity of a confidential informant;
2. Breach solicitor/client privilege;
3. Be injurious to national security, international relations, or national defence^{Footnote 14}; or
4. Breach investigative privilege.^{Footnote 15}

A prosecution cannot proceed if the privileged information is essential to the case, and the reasonable prospect of conviction standard is not met without it. Similarly, if Crown counsel is required to disclose this type of information (for example, as a result of a court order), the prosecution cannot proceed in the absence of a waiver or the lifting of caveats. Therefore, Crown counsel must canvass the possibility of a waiver of the privilege or the lifting of caveats that would authorize the disclosure. If this is not possible, Crown counsel must refer the matter to their Chief Federal Prosecutor (CFP). The CFP may consult with the Deputy Director of Public Prosecutions (DDPP) to determine if the appropriate persons have been consulted, and whether further steps need to be taken. The DDPP may also consult with the Attorney General of Canada (or their designate) if required.

4.2 Public Interest

Where there is a reasonable prospect of conviction, Crown counsel must determine whether it is in the public interest to continue with the prosecution. "No public interest, however compelling, can warrant the prosecution of an individual if there is no prospect of conviction."^{Footnote 16} Crown counsel must continuously consider the public interest in light of relevant and emerging developments. There must be a reassessment of the public interest at each stage of the prosecution.

If Crown counsel determines that the reasonable prospect of conviction threshold is barely reached, other public interest criteria may weigh in favour of not proceeding with the prosecution. For example, where the case against an accused is not very strong and they have personal circumstances that are mitigating, Crown counsel should consider not proceeding. These circumstances may include an accused who has been subject to systemic discrimination, has mental health challenges, or has committed the offence(s) because of a substance-use disorder.

The approach set out in this guideline directs Crown counsel to focus on the most serious cases. A serious case is one that involves violence or raises issues of public safety. In cases that are not considered serious, Crown counsel should turn their mind to the availability of alternative measures. For example, diversion must be considered in cases where a person is charged with simple possession of a controlled substance.^{Footnote 17}

4.2.1 Factors to Consider

When deciding whether to prosecute or discontinue a prosecution, Crown counsel must consider a number of public interest factors. No one factor is determinative. The significance and influence of each consideration vary from case to case, keeping in mind that the application to the public interest analysis is intended to be flexible and contextually driven.

The non-exhaustive factors are set out below.

a) Nature and Gravity of the Alleged Offence

Aggravating and mitigating circumstances will influence the public interest assessment. Generally speaking, the more serious an alleged offence is, the more likely it is that public interest considerations will weigh in favour of a prosecution. Conversely, the less serious an alleged offence is, the more likely public interest will weigh in favour of discontinuing the prosecution, or pursing an alternative measure.^{Footnote 18}

There are many factors that influence the nature and gravity of the alleged offence. For example:

• The harm, such as serious personal injury, or risk of harm caused by the offence.^{Footnote 19} The public interest generally weighs in favour of proceeding with cases involving serious offences such as terrorism, the trafficking or importation of large amounts of controlled substances, the trafficking of harmful opioids such as fentanyl or carfentanyl, or personal injury offences;
• The amount and nature of the controlled substance, including the prevalence of that controlled substance in the community;
• Any other impact of the alleged offence on communities or individuals, including harm to the environment, a protected species, or the economy;
• The amount of fraud;
• The accused's alleged degree of responsibility;
• Whether the alleged offence is committed by a person acting in a position of authority, trust, or dependence;
• Whether the accused is alleged to be part of a criminal organization or a terrorist group;
• Whether the alleged offence is motivated by racism, bias, prejudice, or hate;
• Whether children or other vulnerable persons are victimized;
• The prevalence and impact of the alleged offence in the community. For example, prosecutors must consider the over-representation of Indigenous women and girls as victims of crime; and
• Whether the offence targeted a particular individual or group of individuals such as a "justice system participant" as defined in section 2 of the Criminal Code.

Crown counsel must consider that the routine prosecution of certain non-serious offences may have a disproportionate impact on over-represented groups. One example is administration of justice offences. Administration of justice offences include failure to appear in court, failure to comply with a bail condition, or failure to comply with a probation order.^{Footnote 20} These prosecutions may contribute to a "revolving door" in the justice system. Therefore, if the offence relates to underlying social conditions such as systemic discrimination, homelessness, a substance-use disorder, or mental health challenges, Crown counsel must consider not proceeding.

However, the public interest weighs in favour of proceeding with the prosecution where the administration of justice offence is alleged to be a serious one. For example, where the offence results in harm to a victim, or the accused is charged with failure to comply with a firearm prohibition order. Other circumstances may cause Crown counsel to conclude the alleged offence is serious.

In cases that are not considered serious, Crown counsel must consider resorting to the judicial hearing regime.^{Footnote 21} Judicial referral hearings are a means of dealing with administration of justice offences as an alternative to charging the accused with a new offence. Judicial referral hearings are available if the offence has not caused harm to a victim. Harm includes physical or emotional harm, property damage, or economic loss. For more on judicial referral hearings, see Guideline 3.20.

b) Circumstances of the Accused

The background and personal circumstances of an accused are relevant to determine whether it is in the public interest to prosecute.

Factors that may influence the public interest analysis include, but are not limited to, the following:

• Indigenous Identity: Crown counsel must consider the ongoing impacts of colonialism, residential schools, over-representation, and systemic discrimination in the criminal justice system when the accused is First Nations, Métis, or Inuit.^{Footnote 22} These factors may shed light on the accused's moral culpability, and may weigh against a prosecution when considered with the totality of the relevant factors.^{Footnote 23}
• Systemic and background factors: Crown counsel must consider the impact of systemic racism and the over-representation of certain groups in the justice system, such as members of Black, racialized, or marginalized communities. Crown counsel must also consider any relevant systemic or background factors that may have played a role in bringing the particular accused before the court.
• Underlying issues: Alternatives to prosecution must be considered when the accused's offending behaviour or prior criminal record relates to underlying issues such as homelessness, poverty, or a substance-use disorder.
• Mental health of the accused: Alternatives to prosecution must be considered when the accused's alleged criminal behaviour relates to any significant mental health illness or low cognitive ability.
• Treatment or rehabilitation: Alternatives to criminal prosecution should be considered when the accused has taken significant steps towards treatment or rehabilitation, either before or following the alleged offence.
• Age: The public interest in a prosecution may be diminished when the accused is at an advanced age or is youthful.
• Disability: The public interest in a prosecution may be diminished when the accused is living with a significant disability.
• Criminal Record: When assessing any pre-existing criminal record, Crown counsel must consider the gravity of any prior convictions, the date of those convictions, and the identity of the victim of the prior offence. The existence of a previous criminal record for recent, substantial offences supports the decision to prosecute, while a first-time offender or an offender with a very dated or less serious record invites consideration of alternatives to criminal prosecution.
• Consequences for the accused: The public interest in a prosecution is diminished when the consequences of a prosecution or conviction will be disproportionately harsh or oppressive for the accused.

c) Circumstances and Views of the Victim^{Footnote 24}

The Canadian Charter of Rights and Freedoms, the Canadian Victims Bill of Rights^{Footnote 25} and the public interest require Crown counsel to consider victims' rights in the decision to prosecute analysis and throughout Crown counsel's conduct of criminal justice matters.

Accordingly, Crown counsel must make diligent efforts to determine and incorporate the views of the victim and/or the victim's family members, where appropriate. In all discretionary decisions involving a victim, Crown counsel must consider the following factors:

• Any serious or adverse impact upon the victim's physical well-being, or mental health.
• The personal circumstances of the victim, including age, cognitive ability, vulnerability, disability, dependence, physical health and mental health;
• An expression or strong interest in holding an accused accountable, either through a prosecution or through alternative measures; and
• A victim's choice to be involved in a prosecution, despite the hardships in doing so, as a useful process to allow the truth to be told in court and to hold the accused accountable .

If the victim is not willing to testify, Crown counsel must consider the underlying reasons along with the victim's particular circumstances. In cases of domestic or sexual violence, a victim's unwillingness to testify weighs in favour of not proceeding with a prosecution, unless there is a reasonable belief that the victim may change their mind.^{Footnote 26}

Crown counsel must also assess whether there is other admissible evidence sufficient to prosecute the accused in the absence of the victim's testimony. If Crown counsel determines that a material witness warrant is appropriate, they must consult with, and seek the approval of, their CFP.

Where the alleged offence impacts a vulnerable victim, the public interest will weigh in favour of prosecution. For example, there is a strong public interest in the prosecution of cases where the victim is an Indigenous woman or girl. The Criminal Code specifically recognizes the disproportionate harm suffered by Indigenous women or girls as victims of crime.^{Footnote 27} The Criminal Code also includes specific recognition of the impact of crime on victims who are over-represented in the criminal justice system by virtue of their vulnerability on account of race, age, gender identity, poverty, substance-use disorder, mental illness, or any other similar factors.

Some victims may be fearful of the litigation process, in particular testifying. Crown counsel must consider the applicability of procedural tools in the Criminal Code that may diminish any potential negative impacts on victims and witnesses.^{Footnote 28} The applicability of these procedures may influence the public interest assessment in appropriate cases.

There may be other factors that contribute to a victim's reluctance to participate in the justice process. Those factors may include the community's perception of the justice system, fear of being ostracized in the community, fear of family reprisal, or fear of losing an income-provider or family hunter. Crown prosecutors should discuss these factors with the victim and should consider them in the assessment of the public interest criteria.

While it is important to take into account the views of the victim, Crown counsel must never lose sight of the fact that, like other justice system participants, the victim's views are not determinative with respect to the decision to prosecute. Crown counsel must always remember that prosecutorial independence is a cornerstone of our system of criminal justice and the Crown has a duty to make its decisions dispassionately, without regard to either public sentiment or political pressures.

d) Confidence in the Administration of Justice

Crown counsel must assess whether a prosecution would maintain public confidence in the courts and the administration of justice. For example, prosecuting a case where there is serious state misconduct may lower public confidence in the administration of justice. Examples of serious state misconduct include overt racial profiling, pretext stops, discrimination, abuse by police, or serious Charter breaches.^{Footnote 29}

Evidence of misconduct may not be readily apparent. However, when considered in all the circumstances, after gathering all the relevant information, patterns may emerge showing that over-represented groups, including First Nations, Inuit, Métis, or Black individuals are disproportionately targeted because of racial profiling or systemic discrimination. Despite the challenges in identifying police misconduct, Crown counsel should be on the lookout for evidence at all stages of a prosecution.

If additional evidence is required to make this determination, Crown counsel should make requests to the investigative agency and potentially the accused.

The CFP or their designate will provide guidance to the assigned Crown and may communicate with the police or investigative agency at the appropriate level to address the evidence of serious state misconduct. The CFP, in consultation with the assigned Crown, must decide independently of the police or investigative agency whether a prosecution properly serves the public interest.

Where Crown Counsel identifies serious state misconduct on a balance of probabilities, the prosecution should not proceed.

Where the charges are serious or a victim is involved, Crown counsel must weigh the evidence of the state misconduct with any impact the discontinuation of the prosecution may have on the administration of justice and the victim. In serious cases, or where there is a victim involved, Crown counsel must consult with the CFP or their designate before making a final determination.

In addition to serious state misconduct, there may be circumstances where the conduct of the investigation may reduce the public interest in carrying out the prosecution. For example, Crown counsel must consider that delay between the commission of the alleged offence and the time of the charging decision may negatively impact the confidence in the administration of justice. Crown counsel should consider the investigative agency's reasons for the delay, the accused's responsibility for the delay, and the complexity and length of the investigation.

e) Harm to the Community

Crown Counsel should take steps to gain knowledge and understanding of the communities in which they prosecute. This includes an understanding of communities that may be under-policed or over-policed. Prosecutors can learn more about their communities by consulting public documents. For example, they can consult reports from commissions of inquiries, reports prepared by police review agencies, or civil lawsuits filed against investigatory agencies or attorneys general.

The public interest analysis must include consideration of the impact of the alleged offence and prosecution on the local community. Potential harms include any loss or injury caused by the alleged offence, and the impact of the alleged offence on public safety, public health, public welfare, the environment, natural resources, and other economic, cultural or societal public interests. The public interest may favour a prosecution if the offence is so serious that not proceeding with the prosecution would have an impact on the local community's confidence in the administration of justice.

Where the impact of the alleged offence contributes to the ongoing trauma and disproportionate victimization already experienced by Indigenous persons and communities because of historic and systemic factors, the public interest will weigh in favour of prosecution.^{Footnote 30}

Crown counsel should consider whether the prosecution of an offence would maintain public confidence in a regulatory regime or have the opposite effect.

f) Alternatives to Prosecution

Crown counsel must consider the factors below in determining whether the public interest can be satisfied without a prosecution:

• The consequences of a prosecution or conviction would be disproportionately harsh or oppressive;
• The effect on the administration of justice of committing resources to conduct the proceedings when considered in relation to the seriousness or triviality of the alleged offence, the likely sentence that would result from a conviction, and the attendant public benefit(s); and
• The likelihood of achieving the desired result and requisite level of specific and general deterrence and denunciation without a prosecution.

Alternatives to prosecution are designed to serve the public interest by promoting accountability and rehabilitation for the accused while avoiding both the stigma of a criminal conviction and criminal procedures that consume time and resources. There are a variety of alternatives to prosecution. They include alternative measures pursuant to s. 716 of the Criminal Code, such as the referral of the investigation or charges to a restorative justice program.^{Footnote 31} In many First Nations, Inuit, and Métis communities, alternative measures include culturally appropriate restorative justice programs inspired by legal traditions aimed at rehabilitation and community reintegration.

In addition to alternative measures, other alternatives to prosecution may be appropriate to respond to the specific needs of the accused. For example, Crown counsel must consider:

• Extrajudicial sanctions for young persons;^{Footnote 32} and
• Referral to mental health courts or drug treatment courts,^{Footnote 33} where available, for accused with mental health challenges or a substance-use disorder.

Alternatives to prosecutions may be appropriate in light of the nature and seriousness of the offence and the availability of appropriate parallel processes such as:

• Prosecution by a provincial or territorial prosecution service pursuant to another legislation;
• Administrative sanctions; or
• Compliance programs.

4.2.2 Irrelevant Factors

A determination of whether it is in the public interest to prosecute an accused must not be influenced by any of the following:

1. Bias or discrimination based on race, national or ethnic origin, colour, religion, age, sex, sexual orientation, gender identity or expression, marital status, family status, genetic characteristics, disability, socio-economic status, or political association;^{Footnote 34}
2. Conviction for an offence where a pardon has been granted or where a record of suspension has been ordered; or
3. Possible political or any other advantage or disadvantage to the government or any other political group or party.

4.2.3 Duty to Protect Private or Privileged Information

In assessing whether it is in the public interest to proceed with a prosecution, Crown counsel must consider their duty to protect sensitive or privileged information, as well as the harm that can result from its disclosure.^{Footnote 35} This includes information that may:

1. Reveal the nature and extent of an ongoing investigation;
2. Be injurious to national security, international relations, or national defence;
3. Negatively impact the privacy interests or safety of a third party or victim; or
4. Disclose an investigative technique, thereby compromising future investigations.

While this duty to protect exists, the disclosure of sensitive or privileged information may be justified depending on the nature and seriousness of the case. In these circumstances, Crown counsel must determine if it is possible to obtain consent to disclose the protected information or seek a waiver of the privilege. Even with consent or a waiver, Crown counsel must weigh the seriousness of the case with the harm that may result in disclosure. In doing so, Crown counsel must consult with the appropriate individuals (including representatives of the investigative agency) and their CFP. The CFP may consider it appropriate to consult with the DDPP.

5. Consultation^{Footnote 36}

In some cases, it will be appropriate for Crown counsel to obtain the views of the investigative agency or the victim before making the decision to prosecute. Crown counsel are encouraged to consult to gain knowledge about how the prosecution, or the discontinuation of the prosecution, may impact the victim or the particular community where the alleged offence took place.

The CFP or Deputy Chief Federal Prosecutor (DCFP) must consult with their assigned DDPP when a decision may have a significant impact on other prosecution decisions regarding a class of cases, the enforcement practices or policies of investigative agencies, a regulatory enforcement/compliance regime, or a provincial, territorial, or national practice.^{Footnote 37}

Consultation between counsel within the federal government may also be warranted, particularly with a Department of Justice Legal Services Unit that advises a federal department or agency with an enforcement mandate.^{Footnote 38} Those federal agencies may be particularly attuned to the nature, philosophy, objectives of the enforcement regime, and its remedial options. In prosecutions relevant to regulatory statutes, investigative agencies often have views about the enforcement of their regulatory schemes and should be consulted in the event that the public interest factors weigh against a prosecution.

In the event that the investigative agency disagrees with a decision to not prosecute a charge that has been laid or referred, Crown counsel must advise the CFP or their designate. The CFP, or their designate, may communicate with the police or investigative agency at the appropriate level. In cases of national importance, the CFP must consult with the assigned DDPP.

6. Documenting and Communicating Decision-Making

Where a decision is made to not institute proceedings or to discontinue an existing prosecution, Crown counsel must document the reasons for that decision to a level of detail appropriate in the circumstances. In sensitive, serious, or complex cases, any consultations made in reaching that decision must also be documented.

Crown counsel must also make reasonable efforts to explain their decision to the police or investigative agency.

Where a decision is made to not prosecute on the basis of racial profiling, any other apparently illegitimate investigative pretext, excessive use of force, or other similar reasons, Crown counsel must record the details of their decision in the file and advise their CFP. The details must include a summary of the facts and the rationale for arriving at the conclusion that the investigation was a result of any of these circumstances.

Crown counsel must know and follow the requirements of the Canadian Victims Bill of Rights. This includes a victim's right to request information about the progress and outcome of proceedings in relation to an offence.^{Footnote 39}

Finally, in some circumstances, the need to maintain public confidence in the administration of justice may also necessitate public communication of the reasons for not prosecuting.^{Footnote 40} This communication may occur through a statement in court at the time charges are discontinued or a news release. In providing reasons, Crown counsel should consider the privacy interests of victims, witnesses, accused persons, and the need to protect privileged information.

7. Providing Advice to Investigative Agencies on the Decision to Prosecute

Public safety and effective prosecutions are promoted when Crown counsel maintain a cooperative relationship with investigative agencies.

Crown counsel should provide timely legal advice to investigating agencies when reasonable and necessary to do so. Upon request, Crown counsel may provide a preliminary confidential legal opinion addressing whether the decision to prosecute analysis would be met on the available evidence. Such requests may be made prior to charges being laid or referred for approval. Generally speaking, it is advisable that such legal advice be given when all the available evidence has been gathered by the investigative agency, after a thorough and complete investigation. Crown counsel should ensure they have all the relevant information to arrive at an informed opinion.

It is Crown counsel, not the investigative agency, who are ultimately responsible for making the decision to prosecute, except where the consent of the Attorney General is required. Crown counsel must make this decision objectively and independently from the investigative agency.^{Footnote 41} When Crown counsel decides not to proceed with a prosecution, the reasons for this decision should be communicated to the investigative agency, in a timely manner. If the investigative agency has acted contrary to the law, Crown counsel should provide an explanation, along with legal advice, that will assist in conducting investigations moving forward.

8. Delegated Provincial / Territorial Prosecutions

Where a charge has been delegated from a provincial Attorney General to the DPP for prosecution, Crown counsel makes the decision to prosecute in accordance with the applicable provincial decision to prosecute policies.

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Date modified:

2023-03-07