3.1 Major Case Management

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. Purpose of the Guideline
• 3. The Management of a Major Case
  • 3.1. The relationship with the investigative agency
  • 3.2. Provision of legal assistance to the investigative agency
  • 3.3. Input into the formation of the investigative agency's operational plan
  • 3.4. Disclosure management
  • 3.5. Charge management
  • 3.6. Composition of the prosecution team
• 4. The Crown's Prosecution Plan
  • 4.1. Early warning
  • 4.2. Development of the prosecution plan
• 5. Major Case Advisory Committee
  • 5.1. Recommendation to the Deputy Director of Public Prosecutions
  • 5.2. The MCAC’s litigation monitoring function
  • 5.3. Post-case assessment

1. Introduction

The administration of justice may be severely strained by trials that stretch over an extended period of time and involve many accused facing several charges. As the Ontario Court of Appeal has observed, “[u]ntil relatively recently a long trial lasted for one week, possibly two. Now, it is not unusual for trials to last for many months, if not years.”^{Footnote 1}

While major cases can arise for various reasons and have various characteristics, three features in particular commonly exist. First, they result from lengthy investigations, often involving wiretapping. Second, they generally concern joint enterprises. This usually means that there will be more than one accused, each facing many serious charges. Third, the cases are characterized by voluminous evidence. Because they deal with serious crime committed by persons who use sophisticated methods of avoiding detection and/or are engaged in extensive criminality, proof of the Crown's case may involve production of thousands of pages of wiretap transcripts, surveillance reports, business documents, witness statements and other documentary evidence. Because the Crown’s disclosure obligations extend beyond the evidence the Crown intends to lead in proof of its case, the volume of disclosable material will be even greater.

For the purpose of the application of this guideline, all cases rated as “High Complexity” are to be considered a major case. At the discretion of the CFP, the components of this guideline may be applied to cases other than those rated as “High Complexity”.

2. Purpose of the Guideline

The purpose of this guideline is primarily to function as a legal risk management tool to address the legal, financial and strategic risks associated with major cases. In so doing it will ensure a consistent approach is taken, one that serves to support the Director of Public Prosecutions (DPP) in respect of his or her responsibility for prosecutions by generating specific recommendations as to how particular major cases should be managed. The special challenges posed by these cases must be identified at an early point and a plan of action created and approved to ensure that key strategic choices are made throughout the investigative process in a timely way.

3. The Management of a Major Case

3.1. The relationship with the investigative agency^{Footnote 2}

The principle of the investigative independence of the police is firmly entrenched in this country.^{Footnote 3} That principle seeks to ensure that investigative decisions will not be subject to improper political control. The Supreme Court of Canada has also recognized that both investigative and prosecutorial functions should be exercised independently, but the same court has refused to dictate how the relationship between investigators and prosecutors should be structured.^{Footnote 4}

While prosecutors and investigators continue to be independent when discharging their respective functions, a sense of partnership must permeate the relationship. This is particularly true in major cases. Accordingly, the Public Prosecution Service of Canada’s (PPSC) involvement in major cases should be characterized by early, continuous and close involvement with the investigative agency.

3.2. Provision of legal assistance to the investigative agency

As early as possible in the investigation, the Chief Federal Prosecutor (CFP) should discuss with the investigative agency the need to assign the services of one or more counsel on an ongoing basis to provide advice. These counsel should have the experience necessary to ensure that any advice given is in accordance with best prosecutorial practices. It is important that these advisory counsel be experienced, and that they consult with CFPs, team leaders, or senior colleagues (particularly those who may be assigned to conduct the prosecution down the road) on potentially problematic issues, in order to ensure consistency in positions taken throughout the duration of the case.

Crown counsel's assistance to investigators should be offered on several fronts,^{Footnote 5} such as:

• providing advice on the legality of investigative measures;
• assisting in the development of a strategic plan that will result in a manageable prosecution or prosecutions;
• drafting immunity agreements with co-operating witnesses, where necessary;^{Footnote 6}
• reviewing or assisting in the drafting of search warrants or other applications, where appropriate; and
• disclosure.

It should be emphasized that Crown counsel's role is to provide appropriate legal and strategic advice. This will include advising investigative agencies as to how investigative choices will impact on any future prosecution, and may also involve asking hard questions designed to ensuring the investigation remains focused.

3.3. Input into the formation of the investigative agency's operational plan

The formation and structure of an operational plan is the exclusive responsibility of the investigating agency. Involvement from the very outset of the investigation by Crown counsel can, however, assist the investigators in achieving the ultimate objective of the plan, which will often be to debilitate a criminal organization. Crown counsel can offer insight as to how the choice of particular instruments (e.g. the number of accused, the type of charges, measures other than prosecution) may affect fulfillment of the plan.

Where prosecutions are to proceed, they must be financially and legally manageable.^{Footnote 7} Crown counsel can assist the investigators by, for example,: a) identifying aspects of the operational plan that may present difficult problems of proof, particular disclosure obligations, or lead to unwieldy prosecutions; and b) analyzing whether the operational plan takes account of significant resourcing issues.^{Footnote 8} While Crown counsel can offer advice to focus the investigation, it is not the role of counsel to make choices such as who should be investigated, and what techniques should be used. It is crucial that the PPSC be alerted to the likelihood that significant human and financial resources may need to be allocated to the case. The need to seek additional resources has to be identified as early as possible in order to make sure the projected resource requirement is properly addressed; if the resources will not be available, the investigative agency must be advised.

3.4. Disclosure management

The most effective way of satisfying Crown counsel's ethical obligation to make full disclosure of the Crown's case^{Footnote 9} is to be involved at an early stage and continue to be involved throughout the investigation.^{Footnote 10}

The responsibility for the preparation of disclosure materials should be viewed as a joint one between Crown counsel and the investigative agency. Crown counsel must give the investigative agency advice and direction to ensure that the investigators produce a well-organized package that is as complete as possible and in a user-friendly format before charges are laid.^{Footnote 11} The assistance provided should seek to enable the police to produce both excellent Crown briefs and complete disclosure packages for the defence.

Crown counsel can assist the investigative agency in numerous ways,^{Footnote 12} for example, by:

• providing legal advice as to what material is privileged or non-disclosable for any other reason;
• ensuring that the disclosure package contains a summary of the case against each individual (which will be particularly important for charge screening);
• assisting with the preparation of separate disclosure packages to be used for bail hearings; and
• ensuring the investigative agency prepares the package in a user-friendly way by, for example, cataloguing wiretap material according to its relevance to common issues such as investigative necessity, knowns/unknowns.

3.5. Charge management

Effective charge management assumes an ongoing level of cooperation with the investigative agency such that the agency will not be seeking to proceed on a prosecution or prosecutions that are unwieldy in terms of the number of accused or the number of charges. Crown counsel and investigators should work at developing a common understanding at as early a stage as the circumstances of the investigation permit as to what charges against which subjects are likely to go forward, so as to permit both parties to work on issues such as disclosure and the preparation of the Crown brief in a meaningful way, as early as possible. The investigative agency has the final say, however, as to all strategic choices on the structure of the investigation itself.

Crown counsel are required, on an ongoing basis, to assess every case according to the reasonable prospect of conviction/public interest test set out in the guideline “2.3 Decision to Prosecute.”^{Footnote 13} Charge review in the major case context requires strict attention to the difficult choices that must be made, and Crown counsel must objectively review the case to determine whether a prosecution would best serve the public interest, as the “2.3 Decision to Prosecute” guideline demands.

First, to the extent possible, charge review should be done before charges are laid. This assumes that there has been co-operation with the investigative agency, particularly with respect to the preparation of a package for Crown counsel that gives a comprehensive overview of the investigation and a detailed summary of the evidence against each individual. Meaningful charge review cannot take place without receiving such information, and prosecutions cannot proceed where a high standard of disclosure is not met.

Second, the consideration of the “public interest” factor in the “2.3 Decision to Prosecute” guideline must take into account what will be practically feasible. The fact that many charges meet the “reasonable prospect of conviction” test does not necessarily mean that all criminal acts by all accused must be prosecuted; difficult choices must be made. Counsel must bear in mind the potential number of accused and the evidence available in deciding what combination of accused and charges will give rise to a prosecution or prosecutions that can be successfully mounted and will be most likely to advance the strategic goals of the investigation and prosecution.

The charge review process will also necessitate paying close attention to the desirability of encouraging early resolution discussions, and using other appropriate measures short of prosecution. Crown counsel should have a comprehensive view of appropriate dispositions for each accused, in order to encourage early resolution and reduce the number of accused as appropriate. As set out in other policies,^{Footnote 14} Crown counsel should make, as soon as practicable, a time-limited offer. This offer should reflect that generally a plea of guilty is a mitigating factor on sentence, especially where the accused pleads guilty at the earliest opportunity. Absent a significant change in circumstances, this offer should not be repeated at subsequent stages in the trial process (e.g., after a preliminary hearing, on the day of trial). Due to the substantial public resources typically at stake in major case prosecutions, it is particularly important in such cases that Crown counsel make reasonable efforts to resolve cases at an early stage, in a manner consistent with the public interest.

3.6. Composition of the prosecution team

A major case will sometimes require deployment of a multidisciplinary team to address the numerous challenges that will arise. Managers must pay attention to a wide variety of factors in considering the composition of the prosecution team, including the personal compatibility of the individuals selected. Depending on the needs of the particular case, the various parts of the team will include:

• advisory counsel, to work closely with the investigative agency; and
• lead and assisting counsel, to perform the charge screening and conduct preliminary hearings and trials;

And also may include any or all of the following:^{Footnote 15}

• bail counsel, to deal specifically with initial bail hearings and subsequent bail reviews;
• counsel with specific expertise, to deal with specific issues such as Canadian Charter of Rights and Freedoms motions, claims of prosecutorial misconduct, or funding of the defence, for example;
• paralegals and other administrative support personnel to assist counsel with all of the foregoing functions;
• a project manager to handle matters like the scheduling and attendance of witnesses, materiel requirements, accommodation, and other logistical issues;
• communications persons, who can assist prosecuting counsel with the demands for information, or provide media training to prosecuting counsel;
• information management experts, to ensure that systems are in place to properly manage electronically-stored information;
• non-departmental personnel, should contracting out of photocopying be necessary, for example.

4. The Crown's Prosecution Plan

Development of a prosecution plan should be seen as an essential part of the prosecution function in major cases. It is incumbent on CFP’s to identify potential major cases as early as possible, and ensure that a prosecution plan is developed and approved by the CFP. As noted in section 1, “major cases” include all prosecutions rated as “High Complexity”. At the CFP’s discretion, prosecution plans may be required in cases not rated as “High Complexity”. A prosecution plan helps to focus counsel’s and management’s attention on potential issues and ensure an understanding of the theory of the case at an early stage, and also to provide a roadmap for the subsequent conduct of the case.

In addition to review by the CFP, prosecution plans must be referred to the Major Case Advisory Committee (MCAC – see below) in all cases involving national significance, exceptional complexity, or very substantial resource implications. Other cases may be referred to the MCAC for its review at the discretion of the CFP.

4.1. Early warning

In the early stages of the investigation, while it would be unreasonable to expect a detailed prosecution plan, it is nonetheless important for the CFP to provide the relevant Deputy Director of Public Prosecutions (Deputy DPP), as soon as practicable, with a “heads up” when it becomes clear that the investigation will likely develop into a major case involving national significance, exceptional complexity, or very substantial resource implications. This may involve, for example, an assessment of the investigative agency's operational plan and its potential impact on the PPSC. As well, the note should describe what steps the PPSC is taking, or should take, to manage the potential risk.

4.2. Development of the prosecution plan

It is up to the CFP, or the Deputy DPPs, to decide at what stage a prosecution plan should be prepared. As a general rule however, the prosecution plan should be developed within a time frame that will permit the plan to be reviewed effectively by the CFP and/or the MCAC, and the resource requirements to be addressed properly. Accordingly, the prosecution plan should be developed as soon as the unfolding investigation permits a strategy to be defined.

The prosecution plan must be sufficiently descriptive of the nature of the investigation so that it can be objectively reviewed. It must address issues such as:

• the nature of the investigation and the key evidence in the case to the extent known;
• the likely resource demands of the case, including an analysis of whether those demands can be satisfied by the regional office in question;
• the general contours of the prosecution, including the number of potential accused and charges, and the number of prosecutions
• particular legal challenges likely to arise;
• an assessment of how effectively information is being managed, so that disclosure will be able to be made as soon as practicable after arrest.

5. Major Case Advisory Committee

The DPP has responsibility for prosecutions and needs to be satisfied that resources are being effectively used.

To support the DPP and the Deputy DPPs in this responsibility, the PPSC has created the Major Case Advisory Committee (MCAC), composed of senior prosecutors from across the country with extensive trial and appellate experience and expertise relevant to the key cases. Members are chosen by the Deputy DPPs after consultation with CFPs. The MCAC exercises a review and challenge function in regard to major cases involving national significance, exceptional complexity, or very substantial resource implications. In addition, the MCAC will provide that review and challenge function in regard to other cases referred to it by a CFP or Deputy DPP.

5.1. Recommendation to the Deputy Director of Public Prosecutions

A matter must be submitted in time to allow for meaningful review and ultimate approval by the responsible Deputy DPP. The MCAC exercises a challenge function with respect to strategic planning on major cases; it does not “approve” plans. The MCAC provides advice to the major case team and to the CFP based on its objective assessment of the case, and provides recommendations to the relevant Deputy DPP. As a result of the challenge, the CFP may choose to make modifications to the plan before the committee makes its recommendations to the Deputy DPP.

The lead prosecutor on any major case submitted to the MCAC, and his or her CFP, should present the plan to the Committee. It should be viewed by the prosecution team and the CFP as an opportunity to get advice on the overall approach to the case, or any particularly troublesome aspects of the case. The co-chairs of the MCAC and the CFP will provide written recommendations to the appropriate Deputy DPP with respect to the latest version of the prosecution plan. If the plan is approved, the CFP remains responsible for ensuring the execution of the plan.

Counsel may use the MCAC as a source of advice, for example, in assessing the legal strategy and any significant legal risks as they arise. Requests for assistance may also encompass seeking the advice of the MCAC on particular legal issues. It is up to counsel's CFP to determine when an issue should be referred to the Committee. The MCAC may also provide advice on revisions to the prosecution plan.

5.2. The MCAC’s litigation monitoring function

Apart from the specific mandate of the Committee with respect to major cases, the Committee may exercise additional functions in support of the DPPs’ responsibility for the prosecution function, and in cooperation with CFP’s and HQ Counsel Group, including:

• monitoring emerging trends in federal prosecution practice and making recommendations as to how the PPSC should adjust to such trends;
• ensuring consistency of approaches by the PPSC throughout the country, including in respect of work done by agents;
• identifying regional practices or approaches that may be of national interest and make recommendations for their broader diffusion.

5.3. Post-case assessment

Upon the conclusion of any prosecution arising out of projects which have been reviewed by the MCAC, a debriefing exercise should be conducted. The purpose of this exercise is to assist the Major Case Advisory Committee in assessing the utility of its recommendations, developing a better understanding of the challenges and best practices involved in the conduct of large and complex prosecutions, and providing advice and assistance on future cases.

The report should be completed by the lead prosecutor upon the completion of the prosecution and forwarded to the co-chairs of the MCAC. Upon receipt of the completed report, a teleconference may be scheduled to further discuss counsel’s experience with the case and any observations they may have on what worked or didn’t work and their suggestions for future cases.

In other cases in which the CFP thinks it is advisable, or in addition to the debriefing referred to above, a “lessons learned” exercise may be conducted after the completion of the prosecution. These post-case assessments should be conducted in cooperation or consultation with the investigative agency.

The CFP, who has the responsibility for ensuring these exercises take place, should consult with the head of the local investigative agency so that they can jointly determine how to conduct an effective post-case assessment.

Questions that should be addressed include: the adequacy of the resources deployed, the effectiveness of the cooperation with the investigative agency before and during the prosecution; the ability of the prosecution team to identify and effectively manage the legal risks presented by the case; the use of the MCAC and support by other areas of the PPSC.