The Power of Perspectives

The Canadian Bar Association

James A. Gumpert

Crown attorney independence and victims’ rights

October 25 2013 25 October 2013

Among the measures promised in last week’s throne speech is a new victims’ bill of rights. The impetus behind it is a desire to create minimum standards of rights for victims, which would be applicable across Canada.

Crown attorneys are very aware of the importance of giving proper respect to victims. Moreover, they strive to keep victims notified and informed about matters that affect their cases. They do this to the best of their ability, considering the limited resources that prosecution services have. Information is often provided to complainants/victims in conjunction with police and victims services divisions.

However, at least three areas must be remembered in the course of any discussion of a creation of a victim’s bill of rights:

1. The Crown and police cannot release information to victims regarding the investigation itself as this may taint a victim’s evidence; say, for example, the victim’s house is broken into and the victim catches a fleeting glance of the perpetrator running out the back door of the house. Another witness, further away from the victim’s house, obtains a better view of the perpetrator. If the victim learns of this other evidence, the victim will have more confidence than they should have in their own identification of the person responsible for the break and enter. The Court will use the tainting of this victim’s evidence to reduce its credibility. Therefore, a well-meaning Crown attorney, by giving a victim more information, may have this communication backfire by the case being thrown out.

2. Crown attorneys derive their discretionary powers from the attorney general of the province. The Supreme Court of Canada in Miazga [2009] 3 SCR 339 has ruled that the independence of the attorney general in making discretionary decisions is constitutionally enshrined. No victims’ bill of rights can attempt to have a victim or an outside agency review or veto the discretionary decisions of the Crown. The role of the Crown is to independently and impartially review evidence gathered by police and determine if there is enough evidence to show a realistic prospect of conviction. If the evidence is not sufficient, the Crown is required not to proceed with the charges. All the sympathy a Crown attorney may have for a victim does not create admissible evidence. While a Crown attorney does listen to victim’s views, he or she is required to review the strength of evidence in a case. A Crown attorney cannot always act on the wishes of a victim. In some cases victims want inadmissible evidence presented; for example, hearsay. We cannot do this. In spousal assault cases, victims often want the charges dropped. The Crown attorney will not do this because it is not in the public interest.

3.  If a Crown attorney pushes a weak case because of pressure from a victim and what turns out to be a wrongful conviction results, this totally undermines public confidence in the criminal justice system. As Crown attorneys we have to remember the lessons learned from the Marshall Inquiry. We especially have to remember the need for an independent public prosecution service to prevent external pressure from being put on prosecutors’ decisions. The ability of a Crown attorney to review the case as a whole, not be subject to external pressure and make a decision on whether a case should go forward based on sound principles is the proper recipe to prevent wrongful convictions.

 

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James A. Gumpert is a Senior Crown Counsel with the Nova Scotia Public Prosecution Service. He conducts appeals to the Nova Scotia Court of Appeal and the Supreme Court of Canada, and is an Executive member of the National Criminal Justice Section of the CBA.

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