2014 PPSC Survey of Investigative Agencies: Survey Results for Police Services
The Public Prosecution Service of Canada (PPSC) was created in December 2006, when the Director of Public Prosecutions Act came into force. It replaces the former Federal Prosecution Service, which was part of the Department of Justice Canada. The Director of Public Prosecutions is responsible for prosecuting offences under federal jurisdiction, and for providing prosecution-related legal advice to law enforcement agencies over the course of investigations that may lead to such prosecutions. As such, the PPSC works with investigative agencies across the provinces and territories. These include the RCMP, provincial and municipal police services, and regulatory agencies – the enforcement arms of federal departments and agencies.
To be effective and efficient as a national prosecution service, the PPSC must work closely with police services and regulatory agencies in both the provinces and territories while respecting the independence of these agencies and maintaining its own.
Working collaboratively with investigative agencies is one of the PPSC’s ongoing organizational priorities. As part of its plans to meet this priority, the PPSC made a commitment to follow up on its 2008 survey of investigative agenciesFootnote 1 by seeking updated feedback from its partners.
1.1 Purpose and Scope of the Survey
The purpose of the 2014 survey of investigative agencies was to obtain input regarding the PPSC’s legal advice and other prosecution-related activities from the police services and regulatory agencies that initiate most of the cases that the PPSC prosecutes. Its objectives were three-fold:
- to describe the possible impacts and results of these activities;
- to identify the factors that can contribute to more or less effective and efficient operational practices; and
- to identify strategies to strengthen the working relationship between the PPSC and investigative agencies.
The survey was national in scope. It was intended for investigators at all levels, and provided an opportunity for them to identify best practices or concerns based on their experiences. The survey questionnaire for police service members focused on PPSC legal advice and support in drug and organized crime and Criminal Code prosecutions, PPSC training activities and PPSC service commitments.
Survey respondents were asked to provide quantitative information on the nature and frequency of the various forms of legal advice and training that they had received over the year preceding the survey, as well as their awareness of PPSC service standards. They were also asked to rate the usefulness of that advice and training, and the extent to which the PPSC’s service standards were being met. Finally, survey respondents were invited to identify the strengths of PPSC prosecution-related activities and possible strategies for improvement, and to provide comments or questions on the service standards or their implementation.
The analysis of respondent ratings of PPSC prosecution-related activities is intended to identify any trends in the nature, frequency or results of those activities. It is important to note that the purpose of the quantitative analysis was not to rate the performance of PPSC prosecutors as a group, or to compare the performance of prosecutors in various regional offices. In fact, this would not have been possible given the non-representative nature of the sample. Hence, the data must be considered as exploratory and should not be considered to be representative of the police services concerned.
Respondent comments on PPSC prosecution-related activities varied in length, from a single word or sentence to a few paragraphs. All comments were analyzed to identify the range of themes, best practices and concerns that were raised, as well as any factors that may affect the results of PPSC activities. The purpose of the qualitative analysis was not to account for the frequency of various comments, or to ascertain whether the respondents’ interpretation or portrayal of events is
“true”. In any case, the data generated by the survey would not have allowed us to make that determination. Rather, the purpose of the analysis was to understand the array of factors that can contribute to more or less positive impacts and results. Thus, frequent comments do not necessarily have any more inherent value, in terms of generating knowledge or understanding, than infrequent or even unique ones.
As will be shown, respondent views on the impacts and results of PPSC prosecution-related activities can be influenced by a range of factors, including respondents’ beliefs regarding the seriousness of the offences being enforced and the legal responses that are called for, their understanding of the respective roles and responsibilities of investigators and prosecutors in the criminal justice process and, most importantly, the nature and frequency of their interactions with PPSC staff counsel and agents.
The key findings for the 2014 survey are presented in two separate reports: the present report for police services, and another for regulatory agencies.
2.0 Police Service Respondents
A link to the electronic survey questionnaire was distributed by e-mail to members of the Royal Canadian Mounted Police (RCMP), the Ontario Provincial Police (OPP), the Royal Newfoundland Constabulary (RNC) and municipal police services (MPS) across Canada. Given possible connectivity issues, RCMP members in the territories also received Word versions of the questionnaire.
The survey sample is comprised of 808Footnote 2 respondents, including 663 (82%) from the Royal Canadian Mounted Police (RCMP), 84 (10%) from municipal police services (MPS), 59 (7%) from the Ontario Provincial Police (OPP) and 2 (0%) from the Royal Newfoundland Constabulary (RNC). It was not possible to calculate response rates for the OPP, the RNC and MPS given that the number of survey recipients is unknown. However, where available, the distribution of respondents and response rates for RCMP Divisions is presented in Table 1 below.
|Jurisdiction||#/% of Survey Respondents||# of Survey Recipients||Response Rate|
|Total Provinces||563 (85%)||--|
|Total Territories||100 (15%)||--||--|
Table 1 shows that 88% of police service respondents worked in a province; the remaining 12% worked in one of the territories. Ontario (37%) and Quebec (17%) accounted for a total of 54% of respondents in the provinces, while the NWT accounted for 52% of respondents in the territories.
Table 2, which is annexed to this report, summarizes all quantitative findings on respondent characteristics and rankings.
Roughly two thirds of OPP (68%), MPS (67%) and RCMP (63%) respondents had been affiliated with their police service for over 10 years. More than half of RCMP (60%) and OPP (55%) respondents were commenting as investigators, compared (49%) of MPS respondents; 48% of MPS respondents were commenting as a manager of investigators, compared to 40% of OPP and 36% of RCMP respondents.
3.0 Drug and Organized Crime Prosecutions
Most OPP (92%) and MPS (81%) respondents reported that they had been involved in drug or organized crime prosecutions over the 12 months preceding the survey, compared to 64% of RCMP respondents. A total of 63% of MPS respondents reported that they had been involved in drug or organized crime investigations or prosecutions on a bi -weekly or weekly basis, compared to 49% of OPP and only 31% of RCMP respondents.
3.1 Legal Advice and Support
3.1.1 Frequency of Advice and Support
The reported frequency and usefulness of legal advice and support varied according to the type received. Pre- and post-charge advice was generally the most frequent type of support received by police service respondents, followed by cooperation in the preparation of disclosure materials. Guidance in the preparation of search warrants and preparation of witnesses for court were less frequently received forms of support.
3.1.2 Usefulness of Advice and Support
The reported usefulness of advice and support also varied depending on the type of support received
- Guidance in the preparation of search warrants was rated as useful or very useful by 76% of RCMP, 70% of OPP and 69% of MPS respondents.
- Cooperation in the preparation of disclosure materials was rated as useful or very useful by 77% of MPS respondents, compared to 67% of OPP and 62% of RCMP respondents).
- Pre- and post-charge advice was rated as useful or very useful by 75% of MPS respondents, compared to 68% of RCMP and 66% of OPP respondents.
- Preparation of witnesses for court was rated as useful or very useful by 64% of MPS, 59% of RCMP and 58% of OPP respondents.
3.2 Optimal Drug and Organized Crime Prosecution-Related Activities
Police respondent comments on the strengths of PPSC drug and organized crime prosecution- related activities and suggestions on how these activities might be improved revealed a striking level of consistency in the attributes of prosecutorial practices that respondents viewed as optimal by their presence, and as problematic by their absence. Furthermore, the following attributes hold true across police services and jurisdictions, and are similar to those that emerged from the PPSC’s 2008 survey of investigative agencies:
- timely and consistent legal advice and support;
- timely and consistent communication on operational requirements;
- support/guidance in preparing disclosure;
- consultation prior to staying/withdrawing charges or concluding plea agreements; and
3.2.1 Timely and Consistent Legal Advice and Support
Police service respondents agreed that the provision of legal advice and support can contribute to more optimal investigative practices and the avoidance of legal errors that can compromise an investigation or prosecution. However, the impacts of these services varied based on the competencies of particular PPSC prosecutorsFootnote 3.
- Respondents noted that PPSC prosecutors are part of a national network of legal professionals, allowing them to reach out to a broad range of subject matter experts if required. In an RCMP member’s experience,
“If prosecutors don’t know something, they immediately give you the name of someone who does.”
- While some respondents lauded the competencies of the prosecutors with whom they had dealt, others found them to be lacking, variously citing differences among and between staff counsel and agents, senior and junior personnel, as well as subject matter experts and generalists. In the words of an RCMP member,
“As in any organization, there are very good prosecutors and others who continue to make an effort to improve.”
- Police respondents alluded to the importance of obtaining consistent legal advice from the PPSC prosecutors involved in their investigations. An RCMP respondent recalled being
“subject to differing views, which only muddy the waters, as opposed to providing clarity and direction.”Another RCMP respondent called for more consistency across the country, given that
“There have been situations where the expectations of a Crown in one region differed significantly from the expectations and opinions of a Crown in another region. That generally results in confusion and frustration on the part of the investigator.”
- As a result, respondents repeatedly noted that the assignment of a specialized or senior prosecutor or team of prosecutors to drug and organized crime files enhances the quality and consistency of the legal advice and support that they can provide. As an RCMP respondent noted,
“PPSC has dedicated professionals who are operating in a niche area of law and have the required experience and skills to successfully prosecute cases.”
- Furthermore, respondents in all police services described the benefits of early and meaningful PPSC involvement in police investigations, particularly in complex drug and organized crime files. As explained by an RCMP respondent,
“Having a Crown agent embedded in a project from the outset is very helpful in contributing to strategic evidence gathering which withstands the later scrutiny of the courts.”
- Finally, RCMP and OPP comments indicate that it may be more problematic to obtain timely legal advice and support in routine drug investigations than in major or project cases. As reported by an OPP respondent,
“It is difficult to access counsel for timely advice on day- to- day drug investigations. E-mails and phone calls often go unanswered for days and sometimes months. Project Crowns are more accessible and willing to assist.”Similarly, an RCMP respondent reported that the PPSC only assists provincial drug units,
“In unit level drug investigations, the prosecutors will not assist with pre-trial issues.”
3.2.2 Timely and Consistent Communication on Operational Requirements
Although police respondent comments clearly demonstrate the benefits of PPSC prosecutors’ legal advice and support, comments also show that such advice and support are not sufficient. Ongoing and respectful communication is equally important, not only in terms of promoting optimal investigative practices, but also in terms of enhancing investigators’ and prosecutors’ understanding of their respective imperatives and challenges.
- Comments highlight the benefits of PPSC prosecutors’ approachability and availability to discuss the status of specific drug and organized crime files as well as matters of a more general nature. As an RCMP member recounted,
“In the short time that I have worked with the PPSC, there has been an open line of communication. This has contributed to a strong and collaborative work environment which has translated into success in the court room.”
- In addition, respondent comments illustrate the concrete benefits of clear direction and guidelines on matters of a more general or technical nature. For example, respondents who had faced differing requirements from the various PPSC prosecutors with whom they had dealt called for more guidance on issues such as the format to be used in drafting production orders, search warrants, reports to Crown counsel (RTCCs) or court briefs (CBs), as well as PPSC expectations with respect to disclosure and the presentation of evidence. Hence, an RCMP respondent suggested that PPSC prosecutors should provide examples on
“good and bad disclosure”,
“lessons learned”from past cases and, more generally,
“what not to do before, during, or/and after investigations”. As indicated by another RCMP member, uniformity is all the more important given that
“investigations cross provincial boundaries and PPSC needs to apply a consistent approach across the country.”
- By extension, respondents repeatedly described the mutual benefits of regular meetings between investigators and PPSC prosecutors to brief new officers, review legislative amendments, clarify operational guidelines, discuss problems and identify solutions. As a result, police respondents suggested that the PPSC identify a mechanism to communicate information on legal developments and best practices to investigators at both the front line and management levels. It was felt that this would promote more consistency in investigative practices and contribute to capacity building.
3.2.3 Support/Guidance in Preparing Disclosure
It is a fundamental element of the Canadian criminal justice system that an accused person has the right to the disclosure of all relevant information in the possession or control of the Crown, with the exception of privileged information. Disclosure, which increasingly involves massive amounts of information, must be jointly managed by the police and the Crown, as both are obliged to ensure that they can meet their legal obligations for proper and timely disclosure.
- RCMP, OPP and MPS members described the significant challenges they face in meeting disclosure requirements. RCMP members alluded to
“extreme and extensive demands of disclosure”. In order to stem the tide, police respondents suggested that the PPSC should oppose defense requests for the disclosure of irrelevant material more systematically. According to an MPS respondent,
“Some Crowns are willing to disclose everything, which may create a standard and a lot of hardship.”
- Respondents repeatedly commented on the need for PPSC prosecutors to provide clear and consistent direction on disclosure management to investigators so as to ensure that they understand what evidence is to be disclosed, and in what form. Respondents also felt that the PPSC could promote more consistency by establishing more uniform practices within and between regions. As noted by an RCMP respondent,
“differing requirements and formats across the country create compatibility problems when police conduct investigations across provincial jurisdictions.”
- Respondents also suggested that the PPSC designate more Crown counsel, paralegals and support staff to provide advice on any disclosure issues that may arise over the course of an investigation, and assistance with disclosure vetting and preparation. On a broader level, an RCMP member suggested that a committee be formed to identify ways to reduce the burdens of disclosure and the resulting delays in investigative and charge review processes.
- Police respondents in the provinces called on the PPSC to increase its use of electronic disclosure in order to save time and resources. However, they also mentioned current interoperability issues between PPSC and provincial systems. According to an RCMP respondent,
“The disclosure model used by the PPSC in this province is quite a departurefrom the
“National Disclosure Precedent”. As a national organization, the RCMP can reasonably expect to draw investigative material from a number of jurisdictions/provinces. The stark contrast in disclosure structure reduces system interoperability and can present investigative teams with the additional burden of marrying the information to present a single disclosure package. A single format, used nationally, would help to increase efficiency and consistency in producing investigative disclosure.”
- Police respondents in the territories also called for more electronic disclosure where the technology is available in order to
“save time and money”. According to one respondent,
“Most crown reports could be scanned and sent directly to the crown's office.”Another suggested that it would be beneficial for Probation Services to submit their own disclosure packages to the PPSC:
“Currently, the RCMP prepares probation services disclosure; this is a burden as it uses resources that could be allocated to proactive policing.”
3.2.4 Consultation Prior to Staying/Withdrawing Charges or Concluding Plea Agreements
Pre-charge screening or
“charge approval” occurs in Quebec, New Brunswick and British Columbia. In these jurisdictions, charges can be laid only if they are approved by Crown counsel beforehand. Although pre-charge screening is not required in other jurisdictions, charges are subject to review after they have been laid. PPSC counsel must consider two issues when deciding to prosecute or not prosecute a charge: whether the evidence is sufficient to justify the initiation or continuation of proceedings, and if it is, whether a prosecution best serves the public interest. Further, the evidential standard must continue to be met during the entirety of the proceedings – from the receipt of the investigative report to the exhaustion of all appeals. Respondent comments show that the importance of providing notice to investigators when charges are withdrawn or stayed cannot be understated.
- Respondent comments confirm the importance of timely review processes. As argued by an RCMP respondent,
“Speeding up the charge approval process keeps everyone invested and interested in the file. Significant delays cause a loss of momentum.”In addition, lengthy delays may entail additional work for investigators, as noted by another RCMP member,
“Charge approval is extremely slow, causing investigators more work by having to complete5.2 extensions.”
- Police respondents repeatedly reported that they were rarely if ever consulted or informed of PPSC decisions regarding the charges to be pursued in a particular case, or the rationale underlying those decisions. In fact, an RCMP member recalled that in his experience, the PPSC had not worked with his agency
“when it came time to lay charges”. Similarly, an MPS member stated that,
“I have never had PPSC contact me about staying, withdrawing, or accepting a plea to a lesser charge. Often times I find out after the fact and am not offered a clear reason as to why.”
- Failure to provide such notice, however infrequent, may have a negative impact on the quality of the working relationship between investigators and PPSC prosecutors. In the words of an MPS member commenting on how PPSC drug and organized prosecutions might be improved,
“My biggest complaint is charges being amended or withdrawn without reaching out to the investigator, who could have spent weeks or months on the investigation.”As pointed out by an OPP member,
“This results in wasted resources and officer frustration as they put forth the effort of completing a thorough Crown brief, only to have it all withdrawn.”
- Again, respondents repeatedly called for more consultation between investigators and prosecutors prior to determining the approach to be taken in a specific case, particularly with respect to staying or withdrawing charges. In an RCMP member’s view,
“It seems ineffective to have charge-approval decisions made without proper consultation.”Another RCMP member’s account demonstrates the potential benefits of such consultation in promoting mutual understanding:
“Generally, after discussion, they (PPSC) tend to move ahead with the prosecution. Having said that, there have been times where they have decided not to proceed with a case and after it was explained to us, we could not disagree with their logic.”
- The benefits of consultation can be cumulative, in that it can enhance investigators’ overall understanding of the legal issues to be considered as their files unfold. Hence, an RCMP member called on the PPSC to document why cases do not go forward:
“More written rationale should be provided (complete with supporting case law) to explain why cases did not pass charge approval. This would help to educate the investigators for the next time.”Another RCMP member suggested that the PPSC monitor the number of cases that particular prosecutors either drop or fail to take to trial.
- Finally, some police respondents argued that PPSC prosecutors should consider the differential impact of seemingly minor CDSA possession and trafficking offences in the context of smaller communities. Rather than staying, withdrawing or reducing charges, an RCMP member suggested that it may be in the public – and the police’s – interest to pursue them:
“Although not as massive as in a large center, they are very important to the fabric of the community and the reputation of the police there. PPSC does not have a visible presence in communities. When PPSC does not approve charges, it is the police agency that wears it.”
“Forceful” Prosecution Approach
In Canada, the prosecutor’s role is not to win convictions at any cost, but 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 based on the merits of the caseFootnote 4. Some respondents felt that the prosecution approach taken in the cases that they had initiated was sufficiently forceful. Others criticized a perceived reluctance to pursue drug, organized crime charges.
- As noted by an RCMP respondent,
“It seems that the only charges they prosecute in court are the slam dunk type. I have found them reluctant to proceed with charges which would require a fight to win.”In addition, RCMP members repeatedly reported that PPSC prosecutors did not favor utilizing the organized crime provisions of the Criminal Code.
“As a result, police are wasting time and resources in gathering evidence to establish such offences.”
- Similarly, although some police members reported that they had received valuable advice and support over the course of PPOC and ML investigations, others referred to
“a lack of willingness or capacity”to effectively pursue PPOC and ML charges. According to an RCMP respondent,
“Efforts typically go to the prosecution of the substantive charge. The proceeds prosecution is treated as secondary.”This can be a source of frustration for investigators given the considerable effort involved in obtaining the type of evidence required to support PPOC and ML charges.
- Hence, respondents suggested that PPSC prosecutors should
“take more risks”,
“not be afraid to proceed with charges”, and strive to
“create good case law”. Respondents also suggested that the PPSC needs to improve prosecutor training in the organized crime, PPOC and ML areasFootnote 5. Finally, given that the PPSC office in his region, to his knowledge, had not supported organized crime charges in the past, an RCMP respondent argued that the PPSC needs to
“develop an organized crime strategy and present it to the police so that they can understand and work within it.”
- Due to the nature, complexity and perceived value of PPOC and ML charges, police respondents called for more systematic and specialized legal advice and support in the preparation of judicial authorizations and subsequent forfeiture hearings. It was also suggested that investigators and/or prosecutors with first-hand knowledge and experience in dealing with PPOC and ML matters could deliver workshops to their peers in order to build capacity among members of both groups.
3.3 Reliance on Legal Agents
As of March 31, 2016, the PPSC had 970 employees, 488 of whom were lawyers. In addition to staff prosecutors, the PPSC retained the services of 186 private-sector law firms, or 409 individually appointed lawyers, as standing agents. The PPSC uses legal agents in areas where it does not have a regional office or where it is impracticable or otherwise not cost-effective to handle cases with staff counselFootnote 6.
The survey questionnaire did not distinguish between the services provided by staff prosecutors and those provided by legal agents. Distinctions between the two groups were made by respondents themselves. The attributes of optimal prosecution-related services described in the preceding section apply to both agents and in-house staff. While some police service respondents were complimentary of the prosecution-related activities performed by legal agents, others were more critical, depending on the agents with whom they had dealt.
- Respondents acknowledged that, due to their inability to devote their full attention to federal prosecutions, agents may not be able to gain sufficient exposure to drug and organized crime cases to maximize their knowledge and experience.
“It is hard to expect someone to develop expertise in an area when they are not dealing with it on a full time basis. Law in the area of search and seizure and drug investigations changes every day and you have to keep up on it.”However, it was felt that the effects of limited exposure to certain types of cases can be mitigated by strong support from PPSC regional offices.
- OPP and MPS members suggested that current agent pay rates may make it more difficult to recruit and retain the most knowledgeable and experienced candidates. Nonetheless, respondents suggested a range of measures to optimize the prosecution-related services provided by agents, including a more stringent vetting process, more training and support, and more monitoring of agent performance on the part of the PPSC. In addition, according to an RCMP member, there should be
“a way for police to file complaints or request oversight of investigations submitted.”
- Finally, there were respondents who questioned the independence of legal agents, inasmuch as they are allowed to act as defense counsel in non-CDSA related prosecutionsFootnote 7. Therefore, police members may find themselves dealing with an agent as a partner in one case and as an opponent in another, creating in their view an actual or apparent conflict of interest. In an RCMP member’s words,
“The line is too thin.”
4.0 Criminal Code Prosecutions
RCMP members in the territories were the only ones who were invited to respond to questions on Criminal Code prosecution-related activities. Their responses reflect the distinct characteristics of prosecutions in northern environments. Most notably, PPSC northern regional offices deliver most of their services within the context of circuit courts. The number and remoteness of circuit communities vary from territory to territory. The Yukon regional office covers 13 communities by circuit court, in addition to Whitehorse; all the communities are within a two- to five-hour drive, with the exception of Old Crow which is only accessible by air. In the Northwest Territories, the regional office covers 19 circuit communities, in addition to the city of Yellowknife; all but two of the communities are fly-in. Geography poses the greatest challenges in Nunavut, where all 26 communities are only accessible by air, with the exception of the home base in Iqaluit. In addition, court dockets include above average rates of domestic violence and sexual assault, particularly in Nunavut, followed by the Northwest Territories and Yukon. The PPSC has jurisdiction to prosecute domestic violence cases only in Canada’s three territories
Most (93%) RCMP respondents in the territories reported that they had been involved in Criminal Code investigations or prosecutions over the 12 months preceding the survey. A total of 60% of respondents reported that they had been involved in such investigations or prosecutions on a bi-weekly or weekly basis.
4.1 Legal Advice and Support
4.1.1 Frequency of Advice and Support
The reported frequency of legal advice and support varied according to the type received. Pre - and post-charge advice, and support in the preparation of witnesses for court were the most frequent, with 58% and 50% of RCMP respondents in the territories respectively reporting that they had received such advice and support over the 12 months preceding the survey. Fewer (43%) had benefited from cooperation in the preparation of disclosure material, and only 11% from guidance in the preparation search warrants.
4.1.2 Usefulness of Advice and Support
The reported usefulness of advice and support also varied according to the type received. Pre - and post-charge advice, and support in the preparation of witnesses for court were rated as useful or very useful by 61% and 60% of RCMP respondents in the territories. In comparison, cooperation in the preparation of disclosure material was rated as such by 51% of respondents, and guidance in the preparation search warrants by 38% of respondents.
4.2 Optimal Criminal Code Prosecution-Related Activities
As they had been for drug and organized crime prosecutions, RCMP members in the territories were asked to identify the strengths of PPSC Criminal Code prosecution-related activities as well as possible strategies for improvement. The attributes of prosecutorial practices that respondents viewed as optimal by their presence and as problematic by their absence a are similar to those which emerged from the PPSC’s 2008 survey of investigative agencies, that is:
- timely legal advice and support;
- consultation prior to staying/withdrawing charges or concluding plea agreements;
- preparation for court; and
“forceful”prosecution approach, particularly in domestic violence cases.
4.2.1 Timely Legal Advice and Support
RCMP respondents in the territories confirmed the benefits of the legal advice and support provided by PPSC prosecutors. Comments suggest that such advice and support is particularly important to investigators in isolated locations given that they frequently work in small detachments that may be staffed by fewer and more junior membersFootnote 8.
- While some respondents lauded the knowledge and experience of PPSC prosecutors, others noted that competency levels varied depending on the prosecutors with whom they had dealt. Similarly, while some respondents underscored PPSC prosecutors’ availability to discuss investigations by phone or email
“when required”, others noted that such advice was provided
“way too late”. For example, an RCMP respondent deplored that the prosecutors with whom he had dealt would only provide legal opinions upon full disclosure, which results in wasted police resources in the eventuality that charges are withdrawn or stayed. Hence, another RCMP respondent suggested that members should be able to submit a preliminary report to prosecutors to determine if further investigation is warranted.
- In addition, an RCMP manager suggested that prosecutors should provide investigators with more guidance in determining the criminal charges to be laid in a particular case since the PPSC is the organization responsible for prosecuting those charges. In his view,
“It should not be solely on the shoulders of police management to make these decisions.”Other members questioned the fact that RCMP members in the territories – contrary to their counterparts in the provinces – are responsible for laying charges stemming from a failure to comply with probation conditions. They suggested that the PPSC should instruct probation services in the territories on how to
“lay their own charges”.
- Finally, respondents supported the assignment of the same prosecutors to various court circuits, in that it is thought to minimize delays and contribute to a better understanding of the communities served. One respondent described the additional benefits that resident- prosecutors would bring:
“It takes time to learn about the communities, about the culture, about the way of life, about communicating styles, etc., etc. Once people learn the ropes, it is already time to transfer.”
4.2.2 Consultation Prior to Staying/Withdrawing Charges or Concluding Plea Agreements
Comments from RCMP members in the territories again show that a failure to consult with or provide notice to investigators when charges are stayed or withdrawn, however infrequent, will likely have a negative impact on the quality of the working relationship between investigators and PPSC prosecutors.
- In one respondent’s words,
“Consulting with investigating officers before staying charges is seen as a very professional approach.”Another respondent wrote that he
“very much appreciated”the fact that some prosecutors had sought his input regarding
“potential deals””. Yet another respondent called for consultation in all,
“not just major cases”.
- Like their counterparts in the provinces, police respondents in the territories repeatedly reported that they were rarely if ever consulted regarding the charges to be pursued in a particular case, or the rationale underlying plea agreements, stays or withdrawals. An RCMP member argued that
“Crown should try and take more time to explain why they are choosing to not proceed with a matter so we are on the same page.”In the same vein, another wrote:
“If the PPSC withdraws a single charge or drops a charge to a lesser offence, explain why to the lead investigator.”Another suggested that prosecutors should request investigator input on issues such as the reliability of witnesses and sentencing.
- Respondents also argued that PPSC prosecutors should meet or at least contact victims before deciding on plea agreements or sentencing proposals. Further, an RCMP member suggested that any plea agreements should be made
“before court instead of in court so that victims don’t need to be present and relive the incidents”.
4.2.3 Preparation for Court
RCMP respondents in the territories underscored the benefits of early PPSC involvement in Criminal Code files. Their comments indicate that timely file screening and preparation for court can support the early identification of any additional investigative needs; and the preparation of more accurate witness lists. In contrast, the absence of such review and preparation can result in unnecessary delays and wasted resourcesFootnote 9.
- Although some RCMP members in the territories reported that PPSC prosecutors
“can be counted on to be prepared for trials”, others reported that the prosecutors with whom they had dealt
“are very busy”and seem to only look at files shortly before court dates or, worse, when they arrive in circuit communities. As respondents explained, this can result in last-minute requests for additional statements or updates which may not allow sufficient time for police
“to correct any problems or deficiencies”before scheduled court appearances. One respondent recalled,
“We recently experienced an abundance of last minute requests that might have not been fulfilled had we experienced additional operational pressures.”Hence, another respondent argued that,
“There should be better dialogue well in advance of court dates on whether matters will go ahead and who is needed to testify.”
- Further, comments suggest that reviewing investigative files too close to trial does not allow prosecutors sufficient time to properly prepare witness lists, and can result in unnecessarily calling on police or community members whose testimony is not actually required. In fact, one respondent reported that,
“Crown does not review files prior to trials so assistants are assigned to notify the RCMP to subpoena any and all persons mentioned in police reports.”Unnecessarily calling police or community members to testify can result in wasted police resources and inconvenience to those involved. Therefore, respondents repeatedly called for earlier and more meaningful input from PPSC prosecutors.
- With respect to the preparation of witnesses, an RCMP respondent stated that,
“Much of the work seems to be falling on the RCMP’s shoulders”due to the fact that prosecutors spend a limited amount of time in circuit communities. Nonetheless, RCMP members called on the PPSC to invest additional resources in helping victims and witnesses prepare for testifying in court. In one respondent’s view, this would help maximize the value of their testimony given that most serious charges go to court years after the offence:
“If the victims and witnesses had more time to review the statement they made at the time of the offence to refresh their memory, and knew what to expect during their testimony and cross examination, they would be able to testify better.”
“Forceful” Prosecution Approach
While some RCMP respondents in the territories felt that the prosecution approach taken Criminal Code cases was sufficiently forceful, others argued that prosecutors should proceed with more charges, particularly in domestic violence cases.
- Some RCMP members in the territories wrote that they appreciated the
“willingness of circuit Crowns to hold accused persons to account”, to
“listen to members”and to
“push prosecutions ahead even if there are small issues”. However, others argued that prosecutors
“don't like taking investigations to trial”,
“are very quick to deal off charges”, or to
“file a stay of proceedings or withdraw charges that we as an agency feel are important to the community.”
- Respondents repeatedly deplored the fact that domestic violence charges were stayed or withdraw when victims were uncooperative or recanted, and called on PPSC prosecutors to use the other means at their disposal to present the evidence in such cases. For instance, an RCMP member argued that,
“There appears to be no weight given to witness testimony. I've seen cases stayed or withdrawn based solely on an uncooperative victim regardless of having a number of credible, cooperative, firsthand witnesses to the event. It is extremely frustrating to an investigator who has worked very hard to get statements from all the witnesses simply to have Crown ignore and disregard them without explanation.”For example, members called on the PPSC to
“use KGB statements when they are available, especially fordomestic violence as it is a major problem here in the north.”
- Respondents also argued that PPSC prosecutors should take a stronger stance on repeated defense motions for adjournments which may result in unnecessary delays, additional court costs and wasted police resources. One member argued that,
“The Court should be advised it appears to be a stalling tactic, in the hope that the police officer involved will have moved by the time the matter is actually dealt with, and that the matter will then be stayed as it is too costly to fly member back to community for trial.”Another argued that,
“Crown doesn't fight hard enough on trial dates. We rush to get a package ready and sometimes even don't go on leave or get pulled off courses to show up for a trial date then defense requests a 2nd or 3rd adjournment for no real reason and Crown simply lets this pass and we start over at square one having to find and re-subpoena people all over again.”
5.0 Training Activities
Only 18% of all police service respondents reported that they had participated in training activities offered by the PPSC over the year preceding the survey Roughly three out of four (72%) of all training recipients had participated in only one training activity.
5.1 Training Frequency and Training Topics
The most frequently reported training topics were the respective roles of investigators and prosecutors (28%), the preparation of search warrants (27%) and disclosure management (26%), followed by acts and regulations (18%) and the preparation of Crown briefs (15%). Only 3% of training recipients reported that they had received training on wiretap authorizations / applicationsFootnote 10. Other training topics included arrests and bail, the Canada Evidence Act, arrests and bail, forensic interviewing, note taking, searching electronic devices, testifying in court and human smuggling.
5.2 Trainer Knowledge and Training Results
Respondent ratings of trainer knowledge and training results varied according to the training topic. As indicated by the findings below, the impacts and results of training were the greatest for training on wiretap authorizations, disclosure management, the preparation of Crown briefs and the preparation of search warrants, and the lowest for training on acts and regulations and the respective roles of investigators and prosecutors. Depending on the training topic:
- A total of 91% to 100% of training recipients reported that PPSC trainers were knowledgeable or very knowledgeable, with the exception of counsel who delivered training on acts and regulations, who were rated as such by 78% of recipients.
- Between 84% and 94% of training recipients reported that the training was useful or very useful in enhancing their understanding of the legal issues that can have an impact on their work with the exception of training on acts and regulations as well as the respective roles of investigators and prosecutors, which were rated as such by 73% and 71% of respondents respectively(.
- Finally, between 74% and 80% of training recipients ranked the degree to which the training had contributed to modifying their investigative practices as 3 or 4 on a four-point scale, with 1 being not at all, and 4 being very much so, again with the exception of training on acts and regulations as well as the respective roles of investigators and prosecutors, which were rated as such by 65% and 53% of respondents respectively.
5.3 Optimal Training Approaches
Comments from police respondents in the provinces and territories highlight the concrete benefits of the PPSC training activities in which they had participated, both at an individual and an organizational level, as well as the training approaches that can maximize those benefits.
- indicated that training had served to increase, refresh or update their knowledge and understanding of various laws and legal dispositions, caselaw and other legal precedents and, more generally, of the legal requirements that must be met to support various criminal charges, such as those under the organized crime provisions of the Criminal Code. In addition to building investigator confidence that they are
“doing the right thing”, the resulting insight into
“what can help or hinder an investigation”can contribute to more optimal investigative practices, and reduce the likelihood of legal errors that can compromise an investigation or prosecution.
- On a more practical level, police respondents repeatedly reported that that raining had contributed to a better understanding of PPSC and court expectations with respect to the preparation of search warrants and other applications, RTCCs and disclosure, resulting in
“higher quality products”and
“fewer challenges at trial”. Such gains in effectiveness and efficiency were particularly evident in the area of disclosure, as noted by RCMP respondents who reported a much better understanding of
“what is required to streamline thedisclosure process”, and of
“what is/is not to be vetted and why.”
- Respondent comments illustrate that the benefits of training can be cumulative, inasmuch as they can extend beyond individual participants. For example, an RCMP member reported that in addition to improving his own performance, training had enhanced his ability to assist other officers in his unit by sharing the knowledge that he had acquired. In the same vein, an MPS member claimed that training had
“drastically changed, for the better”, how members of his agency conduct major drug investigations.
- More broadly, RCMP respondents noted that training had resulted in greater consistency in investigator practices within their units, their jurisdiction or across the country. As one member contended,
“The workshops and seminars that your department periodically provides are the only time we ever get exposed to the idea of standardization when it comes to preparing our projects for court.”
- On an interpersonal level, respondent comments show that training can contribute to creating or solidifying the working relationships between investigators and prosecutors. For instance, RCMP respondents variously reported that on-site training had allowed them to
“put a face to a name”,
“understand the challenges that PPSC prosecutors may face in court”. RCMP respondents also noted that training had helped to
“identify who is responsible for what at the PPSC”and
“the proper people to contact”, facilitating the completion of the tasks at hand.
- Respondent comments indicate that the benefits of training can be enhanced when it is delivered by subject matter experts, includes case studies and examples, brings together investigators and prosecutors, offers an opportunity for participants to engage in free and open discussion, and provides resource materials and contact persons that participants can refer to at a later date. In the case of training on laws and regulations, an RCMP member highlighted the importance of understanding underlying objectives, how they can be used and what if any further powers they provide.
“New acts should be more than just more charges to be added to an information. They should bring about change and new ways of operating.”
- Training should also be up-to-date and adapted to the participants’ knowledge and experience levels. In order to ensure that training is adapted to participant needs, RCMP members suggested that the PPSC discuss training needs in advance of training activities. Another RCMP member suggested that training activities should begin with a
“dialogue for police to bring concerns forward so that areas of misunderstanding may be identified and addressed.”
A number of police service respondents did not know that the PPSC was involved in training activities prior to completing the survey. Overall, respondents called for more regular training activities, on a broader range of topics, and for more information on training opportunities to be disseminated at all levels within their agencies.
6.0 PPSC Service Standards
In June 2012, the PPSC implemented service standards that establish what police and federal investigative agencies may expect from PPSC prosecutors regarding matters such as the PPSC’s normal business hours, timelines for responding to phone calls or e-mails, requests for legal opinions, document reviews or training, and when they can expect to be consulted by the PPSC.
- Only 16% of all police service respondents reported that they had been informed of the implementation of the standards; percentages for the RCMP, the OPP and MPS were similar.
- A total of 66% of police service respondents who were aware of the standards reported that they had received written information from their agency (45%) and/or that a colleague had mentioned the standards to them (21%). A total of 30% reported that they had received written information from the PPSC (13%) and/or had been told about the standards by a member of PPSC staff (17%).
- 62% of police service respondents who were aware of the standards reported that they had reviewed them.
Depending on the service standard in question, between 49% and 78% of all police service respondents reported that, in their experience, the standard was often or sometimes met. Results for each of the service standards explored are as follows:
“Responding to e-mails within three business days”and
“Responding to phone calls within one business day”were the most frequently met service standards overall, with totals of 78% and 74% of all police respondents respectively reporting that the standards were often or sometimes met.
- In comparison,
“Reviewing documents such as ITOs or affidavits within 15 business days”,
“Contacting the agency before staying, withdrawing or accepting a plea to a lesser charge”and
“Informing the agency if more time is required to review documents”were reported as being often or sometimes met by totals of only 53%, 52% and 49% of all police respondents respectively.
Respondent comments and questions on the service standards suggest that the PPSC’s ability to meet the standards may vary and be contingent, at least in part, on operational pressures faced by the PPSC.
- Some respondents made positive comments on PPSC prosecutors’ willingness and ability to adhere to the standards. For instance, an RCMP member went so far as to say,
“Our Crowns meet or exceed our expectations!”Another RCMP member reported that the prosecutor with whom he had dealt had been
“excellent at getting back to me with ITOs and affidavits”.
- However, other respondents had experienced variations in the degree to which PPSC prosecutors were able to meet the standards on a consistent and meaningful basis. In the words of an OPP member,
“they vary greatly, from being very responsive to not responsive at all.”An RCMP manager who reported that his communication requests were answered
“fairly quickly”also noted,
“I have had many subordinate members tell me of their frustration in making contact with PPSC personnel.”Another suggested that response times may vary
“depending on the counse l’s investment in our investigations”.
- Respondents aptly questioned the meaningfulness of the standards in terms of actually supporting investigators in their work. As indicated by an RCMP member, acknowledging receipt of a phone call or e-mail within a specified time does not entail a response to the underlying inquiry. Other respondents felt that the 15-day period for reviewing documents such as ITOs was excessive or, worse, exceeded current practice. In one RCMP member’s view, « Si la norme de service par rapport au mandat est de le faire dans 15 jours ouvrables, autant dire que nous le ferons sans eux. » Another RCMP member suggested that the 15- day standard is a very easy one to meet given that the local PPSC office was able to respond to requests for support within one to three days.
- However, police respondents unanimously emphasized the importance of communicating the reasons for staying or withdrawing charges to investigators, with some suggesting that this be done “in all, not just major projects. In the words of an RCMP member, “We need to understand why things are not going ahead so we can modify our practices if necessary.”
- In commenting on the implementation of the service standards, police respondents frequently mentioned that many PPSC prosecutors are carrying heavy workloads,
“like many others within their roles in the criminal justice system”, and are
“merely doing the best they can with their limited time”. Another acknowledged the fact that variations in staff competencies and strengths are to be expected,
“Like most government agencies, there are strong and conscientious performers and those that are not. Overall, I believe that PPSC is committed to high service standards. However, I have experienced individuals within the organization who are poor at returning phone calls and e-mails. This may be a combination of being overworked and having poor organizational skills.”
- Finally, a number of respondents wrote that they did not know that the PPSC had adopted service standards prior to completing the survey. An RCMP member’s questions demonstrate the importance of ensuring that the standards are communicated at all levels within police services.
“Did RCMP management receive information from the PPSC about their service standards and never disseminate it? Or was the information never received in the first place?”Hence, respondents suggested that the PPSC might redistribute and better publicize the standards to both investigators and managers.
7.1 Moving Forward
A central goal of the 2014 survey of investigative agencies was to identify strategies to promote more effective working relationships between the PPSC and investigative agencies. The analysis of the survey results points to four primary strategies for solidifying the relationship:
- More liaison and training at front-line/management levels
- More consultation prior to staying/withdrawing charges or concluding plea agreements
- Enhanced support in disclosure preparation
- Clarification and/or review of some PPSC service standards
All of these strategies involve more communication. As repeatedly illustrated by respondent comments, the benefits of communication for both IAs and PPSC include more optimal investigative and prosecutorial practices,
“higher quality products”,
“fewer challenges at trial”,
“savings in time and resources” and, ultimately, more collaborative working relationships.
A working group composed of Chief Federal Prosecutors and Headquarters staff has developed a Management Response and Action Plan (MRAP) which sets out PPSC policy and service commitments and concrete actions that both prosecutors and investigators can take to foster more collaborative working relationships. The plan has been endorsed by senior management and will be implemented over the course of FY 2016-17.
|Police Service Respondents||% RCMP||% OPP||% MPS|
|# / % of respondents by police service||82%
|% with more than 10 years at police service||63%||68%||67%|
|% commenting as investigator||60%||55%||49%|
|% commenting as manager of investigators||36%||40%||48%|
|Drug/Organized Crime Investigations or Prosecutions (D/OC)|
|% involved in D/OC in last 12 months||64%||92%||81%|
|% involved in D/OC weekly or bi-weekly||31%||49%||63%|
|% involved in D/OC no more than monthly||69%||51%||37%|
|% who had sometimes or often received legal advice or support overpast 12 months|
|Pre/post charge advice||59%||73%||68%|
|Cooperation in preparation of disclosure||56%||58%||69%|
|Guidance in preparation of search warrants||44%||55%||44%|
|Preparation of witnesses for court||39%||30%||40%|
|% who rated advice or support as useful or very useful|
|Pre/post charge advice||68%||66%||75%|
|Cooperation inpreparation of disclosure||62%||67%||77%|
|Guidance in preparation of search warrants||76%||70%||69%|
|Preparation of witnesses for court||59%||58%||64%|
|Criminal Code Investigations or Prosecutions (CC)Footnote 11|
|% involved in CC inlast 12 months||93%||n/a||n/a|
|% involved in CC weekly or bi-weekly||60%||n/a||n/a|
|% involved in CC no more than monthly||40%||n/a||n/a|
|% who had sometimes or often received legal advice overpast 12 months|
|Pre/post charge advice||58%||n/a||n/a|
|Cooperation in preparation of disclosure||43%||n/a||n/a|
|Guidance in preparation of search warrants||11%||n/a||n/a|
|Preparation of witnesses for court||50%||n/a||n/a|
|% who rated support as useful or very useful|
|Pre/post charge advice||61%||n/a||n/a|
|Cooperation in preparation of disclosure||51%||n/a||n/a|
|Guidance in preparationof search warrants||38%||n/a||n/a|
|Preparation of witnesses for court||60%||n/a||n/a|
|% who received training||19%||9%||21%|
|% informed of service standards||16%||15%||15%|
|% reporting that service standard was often or sometimes met|
|Responding to e-mails within 3 business days||81%||68%||81%|
|Responding to calls within 1 business day||79%||59%||79%|
|Contacting agency on charges/plea negotiations||54%||44%||54%|
|Reviewing documents within 15 business days||51%||64%||51%|
|Informing agency if more time required||53%||49%||53%|
- Date modified: