Type of document: Prosecution Directive
Effective date: November 14, 2017

Public safety and effective prosecution are best achieved by a close working relationship between Prosecutors and police that recognizes the independence of each organization. Police officers have sole responsibility and discretion over the investigation of a criminal offence and the laying of criminal charges except where the consent of the Attorney General is required by statute. Prosecutors have sole responsibility and discretion over the prosecution of criminal offences, including deciding whether to continue with criminal proceedings.

While independence is of fundamental importance, there is also a need for co-operation at all stages of an investigation and court proceedings. Prosecutors should encourage the police to seek advice concerning legal issues or the sufficiency of evidence relating to a criminal offence. Prosecutors may require the assistance of police in conducting further investigations.

This cooperative relationship of mutual respect and professionalism recognizes the distinct functions of the police and the Prosecutor. Both parties exercise discretion independently and objectively. This independence and objectivity are essential elements of the Prosecutor’s role as “Minister of Justice” which is fundamental to the proper administration of justice.

Advice to the police

General legal advice

Police often seek legal advice from Prosecutors in relation to general police investigative practices that could impact upon the admissibility of evidence in future prosecutions. In order to ensure consistence of advice, where the police seek a legal opinion on an issue that may have general application, the request for advice must be forwarded to the Crown Attorney, who may direct the request to the Director.

Case specific legal advice

Police often seek legal advice from Prosecutors concerning a specific investigation or an ongoing prosecution. It is appropriate for Prosecutors to provide this legal advice. Prosecutors should ensure they have received sufficient information before providing advice. Prosecutors should take care not to dictate to the police or purport to direct the police investigation. Generally speaking, legal advice provided to the police is not binding.

Prosecutors should avoid any conduct that blurs the distinction between the investigative and prosecutorial functions of the Prosecutor and the police, such as direct involvement in statement taking or attending a crime scene, in order to supervise the gathering of evidence. Prosecutors should avoid attending a crime scene until the investigation is complete.

Disclosure of advice provided to the police

As a general rule, the Prosecutor has an obligation to disclose all information in its possession or control unless that information is irrelevant or privileged. This rule includes communications between the Prosecutor and the police.

Legal advice provided by the Prosecutor to the police may not be disclosed based on a public interest privilege, solicitor-client privilege or other privilege. Therefore, care should be taken in vetting disclosure to ensure that privileged information is not inadvertently disclosed.

Any request or application to obtain disclosure of privileged information should be brought to the attention of the Crown Attorney.

Police as witness

Allegations of dishonesty

It is critical to the administration of justice that police officers’ statements made under oath be truthful. The vast majority of police officers testify in an honest and straightforward manner and it is rare for judges to make negative comments about the truthfulness of a police officer’s testimony. However, where concerns about the truthfulness of a police officer’s statement arise, the Prosecutor has a responsibility to take action.

Where the Prosecutor becomes aware of credible and reliable information that an officer has been deliberately untruthful under oath, the Prosecutor must direct the matter to the Crown Attorney. Additionally, the Prosecutor must alert the Crown Attorney where there is a judicial finding or comment that an officer has been deliberately untruthful under oath.

The Crown Attorney must forward all cases where there has been a judicial finding or comment that an officer has been deliberately untruthful under oath to the Director within 30 days, unless the issue is under appeal. In circumstances where the Prosecutor has advised the Crown Attorney of credible and reliable information to believe an officer has been deliberately dishonest under oath, in cases other than those involving judicial comments, the Crown Attorney must assess the circumstances to determine if there are grounds to believe the officer has been deliberately untruthful under oath. If so, the matter should be forwarded to the Director.

The Director must consider all the circumstances in reviewing the information and decide whether the matter should be forwarded to the police. In that case, a copy of relevant transcripts and materials relied upon must be forwarded to the Chief of Police for the relevant police service. The Director may delegate to the Crown Attorney the ability to refer the matter directly to the police. The Crown Attorney must advise the Director prior to referring the matter to a police service. Whether or not a referral has been made to the police, the Director must advise the Assistant Deputy Attorney General - Criminal Law Division who will track the number of referrals and non-referrals.

Allegations of other police misconduct

The above reporting regime also applies where the Prosecutor becomes aware of credible and reliable information that the officer has engaged in criminal misconduct, such as excessive use of force or there has been a judicial finding or comment that an officer has engaged in criminal misconduct.

The Prosecutor must not herself conduct an investigation but may engage an independent officer to investigate the criminal misconduct. In some circumstances it will be appropriate for the Director to refer or have the file referred to the Special Investigations Unit (SIU) for investigation.

Disclosure of police disciplinary records

The police have an obligation to provide and the Prosecutor has a duty to disclose:

  • findings or allegations of police misconduct that relates to the subject matter of the offence for which the accused is charged, and/or
  • findings or allegations of serious police misconduct that could reasonably bear on the case against the accused.

Serious police misconduct that is not related to the incident for which the accused is charged or has no bearing on the case against the accused should be reviewed by the Prosecutor to determine whether it should be disclosed.

Police training

The involvement of Prosecutors in police training can best assist the police in their efforts to produce high quality investigations, to lay appropriate charges and to prepare thorough briefs. Prosecutors are encouraged to assist the police in their training on investigative procedures and emerging issues and developing areas of the law. Providing this guidance and training is beneficial to the administration of justice as a whole.

Prosecutors who receive requests to assist in police education and training should advise the Crown Attorney or Director of the request.