2.3 Decision to Prosecute
Guideline of the Director Issued under Section 3(3)(C) Of The Director Of Public Prosecutions Act May 14, 2019
The decision whether to prosecute is among the most important decisions that will be made by Crown counsel. Considerable care must be taken in each case to ensure that the correct decision is made. A wrong decision to prosecute and, conversely, a wrong decision not to prosecute tend to undermine confidence of the community in the criminal justice system.
The Director of Public Prosecutions (DPP) under the authority of s 3(3)(a) of the Director of Public Prosecutions ActFootnote 1 (DPP Act) initiates and conducts prosecutions on behalf of the federal Crown.Footnote 2 The DPP delegates this power and function to federal prosecutors who are appointed or retained for this purpose and act as the DPP’s agentsFootnote 3 when making a decision to prosecute.Footnote 4
As part of their quasi-judicial role as
“ministers of justice,”Footnote 5 Crown counsel ensure that prosecutionsFootnote 6 based on sufficient evidence and which best serve the public interest are brought before the courts. In the exercise of this power, Crown counsel have a high ethical duty to act independently, fairly and objectively without either negative or positive animus towards the accused.Footnote 7
At the same time, Crown counsel must recognize the independent functions of the police and investigative agencies, which decide what charges to recommend or lay in light of evidence gathered during an investigation, and of the courts, which determine the admissibility and weight of the evidence at trial and determine the guilt or innocence of an accused person.Footnote 8
2. The Decision to Prosecute Test
When deciding whether to initiate and conduct a prosecution on behalf of the federal Crown, Crown counsel must consider two issues:
- Is there is a reasonable prospect of conviction based on evidence that is likely to be available at trial? If there is,
- Would a prosecution best serve the public interest?
If the answer to either question is no, the test is not met,Footnote 9 and the prosecution should not proceed.
If charges have been laid, the charges should be withdrawn or a stay of proceedings entered.
3. Application of the Test
The test must be applied to each charge against each accused. This should take place in a timely manner following the laying of charges, or in pre-charge approval provinces, upon the referral of charges by the police or the investigative agency.
If requested by the police or investigative agency, Crown counsel may provide a preliminary assessment on whether the test would be met prior to charges being laid or referred for approval. However, it is preferable that the advice be given once the investigation has been completed.
3.1. Reasonable prospect of conviction
Crown counsel must objectively assess the whole of the evidence likely to be available at trial, including any credible evidence that would favour the accused, to determine whether there is a reasonable prospect of conviction. This assessment should be made on the assumption that the trial will unfold before an impartial trier of fact acting in accordance with the law.
A reasonable prospect of conviction requires that there be more than a bare prima facie case, or in other words, it requires more than evidence that is capable of making out each of the necessary elements of the alleged offence against an accused.Footnote 10However, the test does not require a probability of conviction, that is, it does not require a conclusion that a conviction is more likely than not
So, did Det. Goobie and his 3 co-workers have MORE evidence than a bare prima facie case?
NO, they had not enough evidence for prima facie.
“Term #6” which us cited as the breach, is NOT UNDERSTANDABLE, CLEAR, or UNAMBIGUOUS./
Jistceo Dawe, with MANY years as a lawyer and justice could NOT say what Term #6 meant.
Det. Goobie did not and could not understand it with his lesser understanding of there law.
His boss, DS Bentham ALSO does NOT have experience enough to understand term #6 and therefore should NOT have approved assigning ANY detectives to the complaint by X.
DS Bentham should instead have used the Term #6 wording as a train exercise for her men. They should have been taught how no one can be asked to follow wording which a Superior Court Justice could not understand.
No one should be out own bail on terms they cannot understand and cannot POSSIBLY follow. Police can legally write in ANY bail term they want at the time of arrest. There is NOTJIING to stop them from telling me “Do not communicate in any fashion with ANYONE who does work for the Town of Aurora.”
That was illegal. Polic can write ANY illegal term. Then YOU have to pay a lawyer $500 an hour to get it made legal.
Yes, the Crown accepts charges with totally ILL:EGAL terms of bail every day. HOW? The Crown NEVER refuses a charge made by police, they accept every one. Just ask them.
WHY? Because a breach conviction counts the same as a murder conviction at salary increase time.
Prosecutor A – prosecutes 5 murders, wins 4, gets credit for 4 “wins”
Prosecutor B – prosecutes 10 breaches, wins 10 and gets credit for 10 wins.
If justice were “commercial” B gets a bigger raise.
Because this is civil service, both get the same raise as does C who lost every case.
So, what do lawyers say about “In The Public Interest?” This is a 13 minute podcast.
We will be talking about the first Court of Appeal decision on what “in the public interest” means in deciding whether a person makes a disclosure that gives them whistle-blower protection.“
Is it in the public interest to prevent a person from seeing their own name in print?
Or, is it for the opposite effect, a “Special Interest” of just one person.
How does ANYONE except X benefit from putting me in prison?
Why would ANY justice consider a case where the charges are so uniquely aimed at protecting just one “friend of the court” or “officer of the court”.
Why do paralegals get such special cionsdierations form police AND Crown AND the judiciary.
Is there an historical bias of the Crown to prosecuting those who “make fun” of the law? Or those who speak their opinions out loud and often?
Of course there is. Every famous person and large company uses the law to silence those who criticize them. Usually with a lawsuit not a criminal arrest. But when a paralegal has friends in the evolve department, they get special attention.
I had an ex-cop assault me, she admitted it and the judge identified her behaviour to me. I RPTE out a complaint next day and it went nowhere.
X, a paralegal, went 19 days AFTER observing 11 alleged breaches without lifting a finger.
Then, Det Goobie was told to call her up and get 11 counts into the courts QUICK. Even he did not have the stomach to get behind 8 of the lies, but he agreed on 3 charges that I must go to prison.
Did he assess “public interest”? NO. How do we know?
No one could find any interest BEYOND X herself.
And since that means there is NO public interest, he should have sent her home with her 11 counts.
When I “blew the whistle on Bylaws” for losing $300,000 EVERY year, I was shunned. Councillors, the two mayors and every Director simply stopped replying to me.
Now, losing $300K EVERY year is in the public interest.
Unless Lepp is the whistle blower. Then, we do nothing for him.