Originally presented at the OBA’s Ontario Legal Conference: Municipal, Planning and Environmental Law - Feb 9-10, 2023

Introduction

There are important distinctions between the role played by municipal prosecutors and the other, various roles that lawyers employed or retained by municipalities have. This paper reviews the duties of a prosecutor, with a special emphasis on prosecutorial independence, and then looks more closely at the duty of disclosure of information.

1.Duty of a Prosecutor

A good starting point for understanding prosecutorial independence and other obligations specific to municipal prosecutors is the Law Society of Ontario’s Rules of Professional Conduct. The applicable Rule reads as follows:

Duty as Prosecutor - 5.1-3: When acting as a prosecutor, a lawyer shall act for the public and the administration of justice resolutely and honourably within the limits of the law while treating the tribunal with candour, fairness, courtesy, and respect.

Duty means a legal obligation that is owed or due to another and that needs to be satisfied; an obligation for which somebody else has a corresponding right. The words, duty and obligation, will be used interchangeably in this paper.

In very general terms, the Rule brings home that a prosecutor’s primary duty is not to its municipal client but to the public and to the administration of justice. The commentary that accompanies the Rule goes on to note that “The prosecutor exercises a public function involving much discretion and power and must act fairly and dispassionately.”

This duty applies to municipal prosecutors just as it does to Crown Attorneys dealing with charges under the Criminal Code or government lawyers prosecuting offences under the Provincial Offences Act for their ministry. It is inextricably linked to what the Supreme Court of Canada has described as a basic tenet of our legal system, namely prosecutorial independence.

a. Prosecutorial Independence

The most important distinction that municipal prosecutors must remember, whether employed in-house or retained as outside counsel, is that in exercising their discretion, both they and the municipality are bound by the principles of prosecutorial independence.

Looking at these principles first in a more general context, in the case of R v. Cawthorne, the Supreme Court of Canada held that a prosecutor, be it an Attorney General, a Crown Prosecutor, or some other public official exercising a prosecutorial function, has a constitutional obligation to act independently of partisan concerns and other improper motives. Thus, it may be necessary from time to time to remind municipal clients that political or other considerations cannot bind a prosecutor’s discretion.

Once a charge is laid, the prosecutor’s role is to review all the relevant facts. If there is no reasonable prospect of conviction, in keeping with the prosecutor’s duty of fairness to the public and to the administration of justice, the charge should be withdrawn.

In some cases, such as instances where the only witness has died or the only evidence of an offence is otherwise no longer available, the decision that there is no reasonable prospect of conviction is obvious. In many cases, however, determining the likelihood of conviction relies on the prosecutor’s professional judgment, and an exercise of discretion becomes necessary. It is fundamental to the prosecutor’s duty that such discretion be exercised fairly and independently.

Although municipal prosecutions were not specifically mentioned in Cawthorne, the application of this important principle to municipal prosecutions is clearly supported by the jurisprudence.

In Oshawa (City) v. 536813 Ontario Limited, the Court confirmed that “prosecuting in accordance with Part X of the Provincial Offences Act and the Memorandum of Understanding mandates a prosecutorial standard that includes prosecutorial independence, fairness, impartiality, competence and integrity.” That decision arose in the context of a prosecution under a provincial statute (the Building Code Act) and, therefore, pursuant to the Memorandum of Understanding under which municipalities now prosecute such provincial offences. The standard for a prosecutor of municipal by-laws is the same.

In the City of Oshawa case, the appeal court overturned a costs award against the city that had been based on an assumption in the trial court that the prosecutors (who were hired by the city) were acting on behalf of the city’s interests. In disallowing the costs award against the city, the appeal court affirmed the independence of the prosecutors and noted that if there was evidence that their prosecutorial independence had been compromised, it would “inflict enormous damage to the public proper administration of justice.” In the absence of any evidence that their prosecutorial independence had been compromised, the appeal court assumed that the prosecuting legal professionals adhered to their professional obligations.

For municipal prosecutors, in practice the principles of prosecutorial independence mean that once a charge alleging breach of a by-law or of a statute they are tasked with prosecuting is laid, it is their duty to determine whether or not the charge should go to trial. As noted above, this means that in cases where there is no reasonable prospect of conviction, the prosecutor’s duty is to withdraw the charge, whether or not their employer or client wishes the charge to proceed. Similarly, where a stay or withdrawal of a charge might be preferred by the municipality for policy or other reasons, the decision to continue with the prosecution must be exercised in accordance with the prosecutor’s obligation to act resolutely for the administration of justice. In either case, the prosecutor’s decision may require an independent exercise of professional judgment, which cannot be compromised by the imposition of a municipality’s self-interest.

That being said, even after charges have been laid, a prosecutor can and should discuss with staff responsible for the charge being laid (such as the by-law enforcement officer who swore the information or their supervisor) matters relating to a prosecution, including potential penalties or resolutions. However, while it is permissible for the prosecutor to seek input from the municipality, the municipality cannot impose its wishes on the prosecution and should not seek to exert pressure on the prosecutor by advocating its views on whether continuing or withdrawing the prosecution is in the public interest.

It should also be noted that the municipality does have an important role to play prior to charges being laid. It is not necessary or appropriate that every breach of a by-law, or violation of a statute or regulation such as the Planning Act or the Building Code, be met with charges. For example, staff have the discretion to determine whether a charge should be laid. They can properly consider whether deterrence or compliance can be achieved some other way, such as by a warning or diversion. Council can appropriately request that staff investigate circumstances to determine whether charges be laid. The municipality can, if it has jurisdiction from the province, pass by-laws to address concerns about conduct it considers inappropriate or broader policy interests.

b. The duty to act fairly

Beyond prosecutorial independence, there are other aspects of their special duties of which a prosecutor must be mindful. Further commentary that accompanies the Rule earlier referenced notes that when engaged as a prosecutor, the lawyer’s prime duty is not to seek to convict but to see that justice is done through a fair trial on the merits. The Supreme Court of Canada, in Krieger v. Law Society of Alberta, held that the prosecutor exercises a public function involving much discretion and power and must act fairly and dispassionately. This principle was reiterated by the court in Ontario (Attorney General) v. Clark, where it held that the principle of independence is tied to the prosecutor’s obligation to make objective and fair decisions.

The prosecutor’s duty is to assist the court to arrive at the truth and to do justice between the community and the accused, according to law and the principle of fairness. The Charter recognizes that an accused is entitled to a fair trial. The prosecutor should help ensure that the trial process is one devoid of prejudice, misfeasance or emotional attack on the accused.

c.The duty to disclose

It is a cardinal principle of criminal law that the prosecutor must provide to the accused all information in their client’s possession or control relating to the charges against an accused person.

In the leading case of R. v. Stinchcombe, the Supreme Court of Canada confirmed that the Crown has a duty to disclose all relevant information to the defence. The Court held that this duty arises under section 7 of the Charter which includes, as a principle of fundamental justice, the right to make full answer and defence. Among other things, the duty to disclose all relevant information in a timely way helps to ensure that the accused is capable of making full answer and defence.

With respect to what should be disclosed, the general principle is that all relevant information must be disclosed subject to the reviewable discretion of the Crown. Although not absolute, there are few exceptions to this principle, some of which are discussed below. The material must include not only that which the Crown intends to introduce into evidence but also that which it does not. No distinction should be made between inculpatory and exculpatory evidence.

The Supreme Court of Canada reiterated this duty in R. v McNeil, holding that the Crown’s obligation to disclose all relevant information in its possession relating to the investigation against an accused is well established. “The Crown”, for disclosure purposes, refers specifically to the prosecuting Crown entity.

The application of this obligation in a municipal context is sometimes less clear than it should be because of what the client sometimes perceives as a conflicting duty of confidentiality. This topic is explored in the next section.

2.Where Stinchcombe and Freedom of Information Meet

Municipalities are generally very meticulous about their obligations to maintain confidentiality in accordance with their obligations under freedom of Information legislation. Protection of confidential information tends to be a default reaction to all requests for information. However, in municipal prosecutions, that instinctive protection of confidentiality will often conflict with disclosure obligations under the Charter. As a municipal prosecutor, it is vital to remember that Stinchcombe disclosure obligations trump the confidentiality protections under the provincial freedom of information legislation.

A broad outline of disclosure obligations of the Crown, which apply to municipal prosecutors, was provided in the previous section. At the same time, Ontario has enacted freedom of information laws which have prompted additional information disclosure rules: the Freedom of Information and Protection of Privacy Act (“FIPPA”) and the Municipal Freedom of Information and Protection of Privacy Act (“MFIPPA”). These laws are geared primarily towards promoting transparency and accountability of government and public institutions, balanced with protecting privacy interests. Staff pursuit of the latter goal - protecting confidentiality - sometimes collides with the prosecutor’s obligation to disclose.

The disclosure rules under the Charter and FIPPA/MFIPPA usually apply separately and in different situations. The Charter disclosure obligations typically apply in ongoing prosecutions. By contrast, FIPPA and MFIPPA apply to a fairly broad range of materials and not just in the context of legal proceedings, although there are exceptions.

If a requested record falls within the scope of both sets of rules, Stinchcombe will take priority. FIPPA and MFIPPA, like all other laws, must be consistent with the Charter. As the Divisional Court put it in R. v. Big Canoe, “Nothing in FIPPA affects the Stinchcombe obligations of the Crown to make timely disclosure of all relevant material in its possession to the accused person prior to the trial. The decision as to that disclosure lies with the Crown counsel.”

Neither FIPPA nor MFIPPA compel disclosure of records relating to an ongoing prosecution. Among other things, this exclusion exists to maintain the integrity of the criminal justice system, to protect the rights of the affected parties to a fair trial, to protect the integrity of legal privileges, and to control the distribution of documents relating to ongoing prosecutions.

Given that the purpose of disclosure is to allow a defendant the opportunity to make full answer and defence, disclosure should be provided at the earliest reasonable opportunity, and staff (such as by-law enforcement officers) should be provided guidance on what should be included and how it should be organized so disclosure is received by the prosecutor early in the proceeding. It is not uncommon in more complex cases (or where self-represented litigants are involved) for there to be requests for further disclosure. Sometimes these requests can be very broad indeed, as illustrated in the next section of the paper.

3.Limitations on Disclosure Obligations

Although the above discussion emphasizes the very broad duty of municipalities to disclose all relevant information within their possession and control in accordance with Stinchcombe, the duty to disclose is not absolute. This section of the paper gives an overview of when the prosecution may properly refuse to disclose and explores some caselaw that may be relevant to overbroad requests.

Generally speaking, the prosecutor is not obliged to disclose information that is irrelevant, protected by privilege or that is recognized at common law or by statute as an exception to the duty to disclose. It should be noted that privilege includes not only solicitor-client or work-product privilege with which most municipal lawyers are familiar, but can also extend to the identity of confidential informants where information has been provided in response to an explicit or implicit offer of confidentiality. In such cases, the prosecutor must not disclose the information without a court order. Discussing all these exceptions is too broad a topic for this paper, but it may be helpful to review the analysis one should apply when a defendant makes what may be an overbroad request for further disclosure.

Stinchcombe is clear that anything that is relevant in a criminal investigation should be disclosed, unless it is subject to privilege or another evidentiary rule that supports non-disclosure of same. However, at paragraph 12 of Stinchcombe, the Court references the ‘fruits of the investigation’ evidence that has been collected as part of the case that is either inculpatory or exculpatory. This characterization of the subject matter of disclosure was further explored in R. v. Darwish, which reviews the Crown’s duty to investigate and the accused’s right (or lack thereof) to direct the way in which an investigation is performed. Among other things, Darwish recognizes that an accused does not have a constitutional right to direct the conduct of an investigation of which they are the target. Furthermore, it specifically holds that “[t]he accused is entitled to the product of that investigation, but is not entitled to dictate the nature or scope of that investigation.”

The Darwish approach arguably also applies to requests to create evidence. In a recent case where the defence asked how many prosecutions over the previous ten years there had been under a particular by-law, there were no staff that had been employed in by-law enforcement at the client municipality for more than four years. The response therefore was to produce the requested numbers from the existing records that current staff could supply, but no further investigation into previous prosecutions was undertaken. As another example, a request by the defendant for an aerial photograph illustrating the site map that the municipality had provided with disclosure can be refused. The law in this area is, however, very fact specific and all disclosure requests should be given careful consideration. If a further disclosure request cannot be reasonably complied with, the basis for the refusal should be provided in writing with supporting analysis.

Conclusion

All municipal prosecutors, and the municipalities that employ or retain them, must be aware that prosecutors are obliged to independently exercise their professional discretion. A prosecutor can seek input from a municipal client but a municipality cannot instruct its prosecutor on how to exercise his, her or their discretion. The client’s policy considerations can inform the exercise of the prosecutor’s discretion (for example in determining a fine that will be sought upon conviction or a plea bargaining position), but ultimately the duty of a municipal prosecutor is to the public and the administration of justice, not to the municipality.

Similarly, the duty of municipal prosecutors to provide full disclosure is not constrained by freedom of information legislation. The ability of defendants to make full answer and defence cannot be limited by the considerations that otherwise would apply to the release by a municipality of confidential information such as the names of complainants.

That being said, although the constitutional right to disclosure, as clearly articulated in Stinchcombe and the cases that have followed it, includes the fruits of an investigation, in accordance with Darwish and the cases following it, Stinchcombe does not, with limited exceptions, require a municipality to undertake further investigations or create documents to satisfy overbroad disclosure requests.

The original paper with citations is available upon request to ecassar@barristonlaw.com.

We also acknowledge the contributions to this paper made by Ugo Osakwe, Nicole Murphy and Alex Cockburn.