2.9 Communications with the Media

Public Prosecution Service of Canada Deskbook

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

March 1, 2014

Table of Contents

• 1. Introduction
• 2. Statement of Policy
• 3. Handling Media Enquiries
• 4. Explaining Prosecutorial Decision-Making
• 5. Types of Communication
  • 5.1. Contacts initiated by the media
  • 5.2. Contacts initiated by Crown counsel
  • 5.3. Media requests requiring consultation
  • 5.4. Social media
  • 5.5. Communications before charges are laid
  • 5.6. Investigative agency news releases
  • 5.7. Communicating with the media in one’s personal capacity
• 6. Guiding Principles
• 7. Specific Direction
  • 7.1. Provision of factual information
  • 7.2. Information which cannot be provided

1. Introduction

An informed public is an essential element of a transparent, fair and equitable justice system. By providing accurate and timely information on behalf of the Director of Public Prosecutions (DPP), Crown counsel can help ensure that citizens have a fair opportunity to determine whether the justice system is functioning effectively. Access to full and accurate information on court proceedings, in effect, enhances public confidence in the administration of justice.

As set out in s. 3(3)(e) of the Director of Public Prosecutions Act^{Footnote 1} (DPP Act), the DPP may communicate with the media and the public on all matters that involve the initiation and conduct of prosecutions. This authority is delegated to Crown counsel, who are accountable for the cases and proceedings in which they are involved.^{Footnote 2} Crown counsel should be accessible and responsive to the media and the public regarding the cases they prosecute. They are the Public Prosecution Service of Canada’s (PPSC) spokespersons and the first point of contact in respect of specific prosecutions assigned to them. Crown counsel are considered to be “authorized spokespersons” within the meaning of s. 8.17 of the PPSC Code of Conduct “on cases for which they are responsible”.^{Footnote 3}

This guideline applies to contacts initiated by the media and to contacts initiated by Crown counsel.

2. Statement of Policy

The PPSC’s media communications policy is founded upon three cornerstone principles: accessibility, transparency and responsiveness. The PPSC strives to enhance public understanding of, and confidence in, the administration of justice by providing accurate and relevant information in a timely manner. Subject to the overriding duty to the administration of justice to ensure that trials are fair, Crown counsel shall provide the media with timely, complete and accurate information on matters relating to the administration of criminal justice in which they are involved.

It must be recognized, however, that in their role as “ministers of justice”,^{Footnote 4} Crown counsel have a responsibility to relate to the media and the public in a manner that is courteous, dispassionate, free from provocative rhetoric. In making a public statement, Crown counsel must ensure that the privacy interest of third parties are protected, that common law and statutory confidentiality obligations are respected, including publication bans, and that the fair trial rights of an accused are not jeopardized.

3. Handling Media Enquiries

Crown counsel should, on cases for which they are responsible, make reasonable efforts to respond directly to media enquiries relating to court proceedings in relation to routine matters (i.e. scheduling), questions relating to the status of a prosecution or appeal and matters of criminal procedure.

When in doubt about any aspect of a media inquiry, including the reasonableness of the request or how to handle a particular media inquiry, Crown counsel should seek the advice of the Communications Group and consult with their Chief Federal Prosecutor (CFP). Crown counsel may also simply refer calls to the Communications Group, which has a coordinating role in these matters. Referring the inquiry to the Communications Group will often be advisable when for example: a) the matter is particularly controversial; b) a PPSC spokesperson has already handled media inquiries regarding the same subject; c) Crown counsel is under time constraints, or d) there are security concerns in the case, for example, for the personal safety of Crown counsel.

4. Explaining Prosecutorial Decision-Making

There is no “freestanding principle of fundamental justice” requiring Crown counsel to justify and explain the exercise of prosecutorial discretion to the court and indirectly to the public.^{Footnote 5} The principle of prosecutorial independence is firmly entrenched in our legal system. Nonetheless, while the Crown is not legally required to give reasons for its core decision-making, it may be advisable in certain circumstances to offer an explanation for decisions in order to help maintain public confidence in the administration of justice. As Doherty, J.A. stated in R v Gill:^{Footnote 6} “By offering an explanation, the prosecutor clearly enhances the transparency of his or her decision-making process and, hence, the fairness of the proceeding.”

Crown counsel should provide an explanation for a particular decision when it is public interest to do so, for example where (i) the basis is not self-evident and (ii) it is reasonably foreseeable that the lack of an explanation would lead the court or members of the public to draw conclusions that attribute erroneous and improper motives to the Crown’s exercise of prosecutorial discretion. Prior to giving reasons in respect of these decisions, Crown counsel must consult with and seek prior approval of their CFP or supervisors.

5. Types of Communication

5.1. Contacts initiated by the media

Media representatives may seek information in various ways, including questioning counsel outside the courtroom. When this occurs, Crown counsel may not have the opportunity to consult before responding. Crown counsel should provide the media with accurate and factual information in a timely manner. When information is not readily available, Crown counsel should make reasonable efforts to gather the required information and answer questions directly, or refer questions to the Communications Group.

5.2. Contacts initiated by Crown counsel

The PPSC may, on occasion, identify a need to correct inaccuracies or to provide information without being contacted by the media. This might be done, for example, by a simple call or message, through a letter to the editor of a media outlet (print, radio, TV or social media) by a handout, or a fact sheet. Depending on the circumstances, it may be appropriate to distribute information more broadly. In those situations, Crown counsel must consult with their CFP, their supervisors, or with the Communications Group with respect to the appropriate means of communication and its content.

5.3. Media requests requiring consultation

From time to time, Crown counsel may be invited to participate in a more lengthy or detailed interview regarding a prominent case or issue. Some of these cases may also be the subject of multiple requests for PPSC comment. Crown counsel must therefore consult with their CFP on these matters. The CFP must bring these requests to the attention of the Communications Group and to the appropriate Deputy DPP, to ensure the matter is appropriately resolved.

Such cases include those in which:

• the prosecution involves significant constitutional questions, federal-provincial or international relations, government operations, or national security;
• the accused is a public figure; or
• the issues raised have previously generated public debate.

5.4. Social media

Social media^{Footnote 7} has added a new dimension to the way information is disseminated to the public. It is important to note that anything Crown counsel says should be considered “on the record” and may end up in the public domain. A comment to a local blogger may be picked up by a national broadcast media outlet. Therefore, Crown counsel must exercise the same care and attention when dealing with anyone seeking information, and not just traditional media outlets.

5.5. Communications before charges are laid

Before charges are laid, the media may seek to confirm that a specific matter or person is under investigation or that charges are imminent. The PPSC does not comment on such matters.

To deny the existence of an investigation at one time, and to decline to comment later, says as much as an affirmation. It is best not to comment so as to not prejudice a potential or ongoing investigation, or any possible proceedings. The proper response is to state as a matter of policy that the PPSC does not and will not discuss such matters.

5.6. Investigative agency news releases

Some investigative agencies issue news releases at the time that charges are laid or at a particular stage in the proceedings such as a guilty plea or finding of guilt after trial. Unless they relate specifically to elements of a prosecution or are subject to a general agreement between agencies, these news releases are issued independently of the PPSC and Crown counsel cannot dictate to an investigative agency the content the of its announcements.^{Footnote 8}

5.7. Communicating with the media in one’s personal capacity

Crown counsel, like all government employees, are subject to certain limitations when communicating with the media in their personal capacity.^{Footnote 9} This is especially true for those who perform their duties in the public eye. In this respect, Crown counsel must familiarize themselves with ss. 8.16 and 8.17 of the PPSC Code of Conduct. Crown counsel must not make statements that would:

• compromise their ability to do their job in the future by commenting publicly and critically on the wisdom of a particular offence or specific law, a federal government policy, position or proposal;
• discourage public respect for the administration of justice or weaken the public’s confidence in legal institutions, for example, by publicly commenting on or criticizing a judge’s decision in another case in a manner that could bring about either of these results;
• contravene professional codes of conduct; or
• constitute opinions on matters of public interest where the opinion is sought or is relevant because of the nature of a person’s position as Crown counsel.

6. Guiding Principles

The following general principles must govern Crown counsel’s approach to communications with the media:

• Give facts, not opinions - Crown counsel should provide information, and they should explain. They should not offer personal opinions about court decisions, or laws or governmental policies. The goal is to foster understanding, not to create sensation.
• Speak for attribution - All communications with the media should be considered “on the record”. Crown counsel must assume that any comments they make to journalists can be attributed to them in their names.
• Respect journalists’ needs - It is important to recognize that journalists have a job to do, whether or not you assist them. Because they will pursue the story, it is usually better to respond to their questions. It is also necessary to bear in mind journalists’ deadlines in attempting to respond.
• Be responsive - “No comment” is not an acceptable response to a request for information. If the particular question posed cannot be answered because it calls for an opinion, invites comment on matters under judicial consideration, or attempts to confirm the existence of a police investigation, explain to the questioner why it would be inappropriate to comment.
• Do not express satisfaction or dissatisfaction with an outcome – In response to questions such as “Are you happy with the outcome?” or “How do you feel about the acquittal?”, Crown counsel should respond that the Crown does not express satisfaction or dissatisfaction with particular trial outcomes, our role is 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.^{Footnote 10}
• Educate the public - The media, and the public generally, may not understand the complexities of the justice system. Crown counsel should explain aspects of the system such as the role of the prosecutor or the appeal process, in a clear, concise and comprehensible way.
• Be timely - Misinformation, left uncorrected, can be harmful to people and institutions. Seek to prevent an inaccurate public record by providing information in a timely way, respecting where possible journalists’ needs to meet deadlines. Where comment is to be made after the appearance of a misleading or inaccurate story, a representative of the PPSC should set the record straight as soon as possible.
• Protect the integrity of the trial - Any comment that prejudices the right of an accused to a fair trial must be avoided.

7. Specific Direction

The following sections are intended to provide, in a non-exhaustive way, guidance to Crown counsel as to how to apply the foregoing general principles.

7.1. Provision of factual information

Crown counsel may provide factual information, not opinions, concerning:

• cases before the courts;
• documents filed in open court and otherwise available to the public;
• the prosecution policies in the PPSC Deskbook (for example, explaining the “reasonable prospect of conviction” standard in the PPSC Deskbook guideline “2.3 Decision to Prosecute”);
• the process or procedures of the criminal justice system and how they apply to specific proceedings;
• the role of prosecutors at the PPSC. Crown counsel may also refer to the PPSC Annual Report or www.ppsc-sppc.gc.ca for more detailed explanations;
• the meaning of a court decision, without commenting on whether it is “right”, “wrong”, “good” or “bad”;
• the role and responsibilities of the DPP.

7.2. Information which cannot be provided

Crown counsel should not comment on:

• the possibility of charges being laid;
• cases under review or ongoing investigations;
• speculation as to what may happen during any stage of ongoing proceedings;
• privileged information, such as advice given to, or discussions held with, the PPSC, colleagues, foreign officials, or members of an investigative agency, whether or not such advice or discussions are privileged;
• any information the disclosure of which is prohibited by law (e.g. by virtue of the Privacy Act,^{Footnote 11} Youth Criminal Justice Act^{Footnote 12}) or by a court-imposed publication ban;
• policies, procedures or decisions of investigative agencies (such inquiries should be directed to the investigative agency);
• the wisdom or efficacy of federal or provincial policies, programs or legislation;
• the strength or weakness of the Crown or defence case during a trial;
• the appropriateness of a judge's charge to the jury, particular rulings, the verdict of a jury, the sentence or any comments made by the judge;
• whether a decision will be appealed or not (however, the procedure for considering whether or not to appeal may be explained); or
• the guilt or innocence of an accused.