2.13 Allegations of Misconduct by Persons Involved in the Investigation of Charges

Public Prosecution Service of Canada Deskbook

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

August 12, 2021

Table of Contents

1. Context

The PPSC as an organization has no tolerance for any form of bias, racism or discrimination, or other practices that may deprive the public of its right of access to a fair and just system. The PPSC has a positive obligation to ensure that the cases it brings forward comply with the rule of law and accord with the fundamental principles of justice and equality and other rights before the law. A prosecution must be undertaken only when the requisite evidence exists and when it would best serve to advance the public interest. It would never be in the public interest to bring forward a case where a finding of guilt depends on evidence that is false, misleading or unreliable.

All PPSC employees must uphold the highest ethical and professional standards. The PPSC Code of Conduct requires all PPSC employees to immediately report allegations or evidence of misconduct by PPSC employees – even if the allegation is against themselves. Members of the public may also report any misconduct by filing a complaint in accordance with PPSC's Complaints Policy. Once misconduct is reported, the PPSC Code of Conduct requires PPSC management to ensure that known or suspected misconduct by PPSC employees is both investigated and addressed.Footnote 1

In some cases, prosecutors may also become aware of allegations of serious misconduct that relates to the credibility and reliability of those involved in the investigation of charges, such as those who collected evidence and those who may be called as witnesses in a prosecution. The allegation may relate to the actions of a single Crown witness, whether they are a police officer, an investigator, a civilian agent, or a civilian employee of a police, regulatory, investigative, or intelligence agency. The allegation may also relate to a systemic issue going beyond the actions of a single person. This information may have not yet resulted in a finding, conviction, charge, investigation, or formal complaint. Determining whether a particular type of misconduct qualifies as serious is a judgement call that takes into consideration all the circumstances of the misconduct, the date when it occurred, its impact on the reliability and credibility of the Crown witness, and whether it has a realistic bearing on the case the accused has to meet, having regard to the subject matter of the current charges against the accused.Footnote 2

A mere allegation does not trigger the same legal obligations as a finding, conviction, or charge.Footnote 3 This is because there has been no investigation into the merits of the allegation at this stage. Ordinarily, prosecutors do not know if the allegation is well founded, and PPSC does not have the mandate to investigate or adjudicate the merits of an allegation. There may, however, be instances where the nature of the allegations, the basis for the allegations or the manner in which the allegations are investigated may be relevant to the discharge of obligations by prosecutors.

Prosecutors cannot remain passive. Prosecutors have the duty to be fair, impartial, and objective and to make reasonable inquiries to ensure that the matter is dealt with. They must seek to protect the rights of individuals and the rule of law. They must maintain the confidence of the public in the administration of justice. And they know that they can commit or perpetuate an injustice by doing nothing.

This policy assists prosecutors in fulfilling their obligations by establishing a process for the documentation of serious misconduct information and the specific follow-up expected to occur. It assigns clear responsibilities upon those who become aware of such misconduct to report it to their superiors in the PPSC, as well as the roles and responsibilities of supervisors and managers in relation to follow-up with the appropriate investigatory bodies. It also indicates the steps to be taken to ensure that all prosecutors are able to consider such allegations and the results of the determination and investigation of such misconduct in all cases that may be impacted. These steps include compliance with disclosure obligations and consideration of such allegations or results in the assessment of the decision to prosecute in affected cases.

2. Statement of Policy

Prosecutors will document, report and track allegations of serious misconduct by persons involved in the investigation of charges when these allegations have not yet resulted in a finding, conviction, charge, investigation, or formal complaint.

3. Procedure

  1. Each Chief Federal Prosecutor (CFP) will designate a person who will be responsible for coordinating the implementation of this Guideline ("designated person").
  2. The prosecutor with conduct of the case or who otherwise becomes aware of an allegation of serious misconduct must:
    1. Inform their supervisor and the designated person of the allegation; and
    2. Document the allegation and record it in the prosecution file.Footnote 4 For this purpose, the prosecutor will:
      1. Request a description of the allegation in writing, if the allegation is made by the accused, defence counsel, or a third party;
      2. Write a note to file describing what the prosecutor observed, if the prosecutor personally witnessed the serious misconduct or discovered it through their review of the file; or
      3. Request a copy of the transcript or decision, if the allegation arose in the course of judicial proceedings.
  3. The designated person will:
    1. Identify outstanding cases that could be affected by the allegation and assign prosecutor(s) to assess the decision to prosecute test;
    2. Identify the appropriate body that has jurisdiction to investigate the allegation,Footnote 5 inform them of the allegation, and provide them with the relevant information and materials required for their investigation;
    3. Follow up with the body investigating the allegation to confirm the status and outcome of the investigation;
    4. Inform the prosecutor who reported the allegation, as well as prosecutors involved in outstanding cases affected by the allegation, of the status and outcome of the investigation; and
    5. Create and maintain a central repository for records relating to allegations of serious misconduct and a list of files affected by these allegations.
  4. If upon further investigation by the appropriate body or otherwise the allegations have been substantiated on credible and reliable information,Footnote 6 or result in a conviction, finding, charge or notice of hearing, the prosecutor with conduct of the case or assigned by the designated person must:
    1. Prepare a memorandum to the Deputy Director of Public Prosecutions (DDPP) in consultation with the designated person. The memorandum must:
      1. Describe the allegation(s);
      2. Identify the charges and status of the prosecution;
      3. Identify other prosecutions that may be affected; and,
      4. Describe the PPSC's actions in response to the allegation(s).
    2. Assess the reasonable prospect of conviction and the public interest test in the case and confirm with the designated person who will assess the decision to prosecute in other outstanding cases impacted by the misconduct, and
    3. Fulfill the requirements outlined in Chapter 2.2 Duties and Responsibilities of Crown Counsel, 2.3 Decision to Prosecute, Chapter 2.12 The Disclosure of Police Misconduct Information – R v McNeil, and 3.14 Testimony of Police Officers and Police Civilian Agents.
  5. The CFPs (or their delegate) will:
    1. Provide the memorandum to the DDPP, where one is required;
    2. Notify the concerned police or investigating agency in writing about the allegation, if the allegation is against one of their officers, investigators, civilian employees, or civilian agents;
    3. Provide regular status reports to the DDPP on the status of files affected by allegations of serious misconduct;
    4. Communicate with their counterparts in provincial prosecution services about the handling of files affected by allegations of serious misconduct; and
    5. Determine the course of action for completed files that could be impacted by the allegation of serious misconduct or the outcome of its investigation.

4. Conclusion

Prosecutors should consult their supervisors, the designated person, the CFP or their delegate if they have any question about the procedure described in this Guideline or about whether particular conduct amounts to serious misconduct that must be documented, reported, and tracked. Prosecutors who have concerns about the manner in which the allegation is being addressed may raise their concerns with the DDPP, or the Director of Public Prosecutions, if the allegation had already been raised with the DDPP.

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