General Principles

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The Crown is entitled to argue its case forcefully but, “The role of the prosecutor excludes any notion of winning or losing; his function is a matter of public duty…. It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings”  R v John, 2016 ONCA 615 at para 77, quoting Boucher

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Crown Misconduct

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For a review of principles surrounding crown conduct in an opening and closing jury address, click here

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Cases involving improper Crown conduct/remarks/cross-examinations in jury trials: R v AT, 2015 ONCA 65; R v Khairi, 2015 ONCA 279; R v John, 2016 ONCA 615

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Courts have authority to award Charter damages against the Crown for prosecutorial discretion absent proof of malice. For example,  "a cause of action will lie where the Crown, in breach of its constitutional obligations, causes harm to the accused by intentionally withholding information when it knows, or would reasonably be expected to know, that the information is material to the defence and that the failure to disclose will likely impinge on the accused’s ability to make full answer and defence." Henry v BC (Attorney General), 2015 SCC 24​

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Prosecutorial discretion

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General Principles on prosecutorial discretion and the scope of judicial review: R v Delchev, 2015 ONCA 381 at paras 46-55

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The Crown has the power to enforce legislation and to decide whether or not to exercise these powers. This discretion is generally impervious to review and is derived from the Crown’s independence. However, where the Crown fails to exercise its discretion in a fair and objective manner, corrective action may be necessary to protect the integrity of the criminal justice system: R v Fercan Developments Inc., 2016 ONCA 269 at para 1

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Drawing a negative inference from the withdrawal of charges would require the court to engage in speculation, because the Crown is not obliged to give reasons for the exercise of its prosecutorial discretion. Such speculation cannot establish arbitrary or improper motives for which a s. 24 Charter remedy would lie: R v Thompson, 2015 ONCA 800 at para 50

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It is the Crown’s discretion to determine which witnesses it will call and will not call – provided the Crown does not abuse that discretion: R v HAK, 2015 ONCA 905 at para 13

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