NOTES
The Prosecutor as a Minister of Justice:
a Critical Appraisal
Introduction
Neither a pragmatist, nor an idealist will find much comfort
in an analysis of the process glibly referred to as the administration
of justice; for it is through analysis that the dissonance between
the concept and the realty, the myth and the truth, becomes mani-
fest. The divergence exists not because of lack of revelation, but
rather because the very idea of efficient administration in the eyes
of the Administrators requires that the ideal be mitigated and com-
promised within certain fundamental norms to become the expe-
dient.
When, as in the field of the administration of criminal justice,
conflict exists between co-existent norms of equivalent strength the
compromise of principle becomes greater, there being less polarization
toward either norm.
In concrete terms,
two operationally oriented norms, which
Packer has termed “crime control” and “due process”, dominate the
administration of the criminal law.’ The first, tainted with an au-
thoritarian connotation, values the preservation of order as a para-
mount objective: the manner of achieving that end is necessarily
secondary. The latter view holds that the end attained must justify
the means used and that a fair trial of an accused is more important
than the conviction of the guilty.
Those charged with the day-to-day administration of the system
would probably claim that the two values are not inimical, but the
practice and the history tend to show that due process receives more
lip-service than real respect.
The present paper is an inquiry into one small area of the
the prosecutor.2 It is an at-
administration of criminal justice –
‘ Packer, H.L., Two Models of the Criminal Process, (1964-65), 113 U. of Pa.
L. Rev. 1.
2For a complete outline for a comprehensive investigation far beyond the
scope of this paper, see: The Administration of Criminal Justice in the United
States – Plan for a Survey to be Conducted under the Auspices of the American
Bar Foundation, American Bar Foundation, (Chicago, 1955).
No. 1]
NOTES
tempt to reveal what compromises have been accepted, what sacri-
fices have been made, and what has been ultimately achieved.
The Conceptual Framework
Lord Wright, a jurist of eminence, has written categorically:
I am most firmly convinced by all my experience and study of and reflection
upon law that its primary purpose is the quest of justice.3
“Justice”, it is taken to mean, is merely a state in which no man’s
rights are adversely affected unless and until the courts, in applying
the proper positive law to the relevant facts in issue, determine
that they should be.
It follows that “justice” is the result, in part, of fact finding
and that no “justice” may be had where the court is not seized of
all the relevant facts upon which it may properly adjudicate.
The rules attending a criminal prosecution are supposedly sophis-
ticated procedures devised to ensure that only those guilty in the
eyes of the law will be convicted. The issue then becomes, are these
procedures compatible with what Lord Wright saw as their pur-
poses; or was he myopic in his reflection and misinformed in his
study, even perhaps, forced to tell an embarrassed lie ?
The role and function of the prosecution at a criminal trial, as
expressed in general theory at least, is not really subject to dispute.
The classic statement of Riddle, J.A., in R. v. Chamandy4 would
seem to sum up the Canadian position:
to convict and the accused endeavouring
It cannot be made too clear, that in our law, a criminal prosecution is
not a contest between individuals, nor is it a contest between the Crown
endeavouring
to be acquitted;
but it
is an investigation that should be conducted without feeling or
animus on the part of the prosecution, with the single view of determining
the truth. 5
With specific reference to the prosecution, Taschereau, C.J.,
(dissenting on other matters) states what appears to be the accepted
position in Boucher v. The Queen:6
La situation qu’occupe l’avocat de la Couronne n’est pas celle de l’avocat
en mati~re civile. Ses fonctions sont quasi-judiciaires. Ii ne doit pas tant
chercher A obtenir un verdict de culpabilit6 qu’A assister le juge et le jury
pour que la justice la plus complete soit rendue. La moderation et l’impar-
3 Lord Wright, “Natural Law and International Law” in Interpretations of
Modern Legal Philosophies, (New York, 1947), at p. 794.
4 (1934), 61 C.C.C. 224.
5 Ibid., at p. 227.
6 [1955] S.C.R. 16.
McGILL LAW JOURNAL
[Vol. 15
les caract~ristiques de sa conduite devant
tialit6 doivent toujours 6tre
le tribunal. 7
The prosecutor is therefore, as it seems, a non-partisan fact-
presenter. He is part of the court and has been regarded as a
Minister of Justice rather than counsel representing any special
interest.8 The American position is substantially the same:
The United States Attorney is the representative … of a sovereignty whose
obligation to govern impartially is as compelling as its obligation to govern
at all; and whose interest, therefore, in a criminal prosecution is not that
it shall win a case, but that justice shall be done. 9
From these statements it must be concluded that the officially de-
termined norms as stated would demand that the criminal trial from
the prosecution’s standpoint be an unending, uncompromising search
for truth; its purpose being as much the acquittal of the innocent
as it is the conviction of the guilty. 1 It remains now to determine
how much of this is sophistic rhetoric; where and to what extent
the gap exists between espoused principle and the actual, condoned
operation of the criminal process.
The Accusatorial System
Fundamental to the Anglo-American trial process is the Adver-
sary system. It has been heralded as a glorious rejection of the
practices of the notorious Star Chamber by its supporters.” It has
been equally criticized as having its origin in and merely being an
extension of out-of-court brawls.’ 2
The system is based on two major premises; that society must
prove its charge against the accused, and not the accused, his inno-
cence; that through argument and counter argument, examination
and cross-examination will truth emerge. In Hegelian terms, the
clash of thesis and antithesis yields the synthesis, discovered by the
objective Trier. The system, of necessity, presupposes that all rele-
vant considerations will be objectively and dispassionately analysed.
The idea of “adversaries” in the criminal trial is, at least in theory,
repudiated. As Rand, J., in Boucher v. The Queen ‘3 has put it:
7 Ibid., at p. 21.
s Regina v. Puddick, (1885), 4 F. & F. 497, at p. 498; 176 E.R. 662, at p. 662-6G3.
9 Berger v. U.S., (1939), 295 U.S. 78, at p. 88.
10Per Palmieri, J., Application of Thomas Kapatos, (1962), 208 Fed. Supp.
883, at p. 888.
“1 Honsherger, J., “The Power of Arrest and the Duties and Rights of Citizens
and Police” in Law Society of Upper Canada: Special Lectures on Arrest,
(Toronto, 1963), 1, at p. 7.
12 Frank, Jerome, Courts on Trial, (Princeton, 1950), p. 80.
13 Supra, n. 6.
No. 1]
NOTES
(T)he purpose of a criminal prosecution is not to obtain a conviction, it
is to lay before a jury what the Crown considers to be credible evidence
relevant to what is alleged to be a crime. Counsel have a duty to see that
… The role of the
all available legal proof of the facts is presented
prosecution excludes any notion of winning or losing. 14
A realistic appraisal of what actually transpires at trial affords
a rather different picture. Judge Botein has written:
During the trial the accused is opposed by a prosecutor who is obliged by
oath and impelled by persuasion or ambition or vanity or adversary ardour
to use all the skill and resources at his disposal to convict. When a
criminal case reaches the point of trial, the prosecutor is then the advocate
for the community seeking to bring the criminal to justice, with all the
psychological spur and stimulus of an attorney in an adversary proceeding. 1 5
One need not develop a cynic’s view of human nature to under-
stand the phenomenon that Botein has described. Apart from the
“crime control” mentality that Packer has suggested dominates
those who are charged with the enforcement of the criminal justice
system, there remains the obvious fact that prosecutors are merely
lawyers who have been appointed to a special position. Their
training and technique is fundamentally the same as other attor-
neys. Not that Swift was correct when he defined lawyers as “a
society of men.., bred up from their youth in the art of proving
by words, multiplied for the purpose, in a jargon of their own,
that no other mortal can understand, that white is black, and black
is white, according as they are paid”; but it is not unreasonable
to expect that the skilled prosecutor will use the same techniques
in cross-examination as will the skilled defence counsel. For ex-
ample, examine one bit of advice which is the keystone of a suc-
cessful cross-examination. When a witness has been caught in an
inconsistency during cross-examination, the normal immediate re-
sponse would be to request an explanation. This urge should be
suppressed. The witness is left dangling; his credibility demolished
in the eyes of the jury. If on redirect examination, the witness does
explain the apparent inconsistency, it will be at the guidance of
counsel who calls him. It will therefore have a diminished significance
for the jury.
Essentially, these tactics have as their object, preventing the
trial judge or jury “from correctly evaluating the trustworthiness
of witnesses and shutting out evidence the trial court ought to
receive, in order to approximate the truth”. 6 Frank has compared
14 Ibid., at p. 23.
15 Botein & Gordon, The Trial of the Future, (New York, 1963), p. 71.
IGFrank, op. cit., p. 85.
McGILL LAW JOURNAL
[Vol. 15
our present trial method to “the equivalent of throwing pepper in
the eyes of a surgeon when he is performing an operation”.17 Thus
the “fight system”, or “sporting event”, as the adversary system
has been characterized, does not appear entirely compatible with
its alleged objective, the quest for truth.
Plea-Bargaining
Not all accused choose to allow themselves to become the prize
of the courtroom contest; instead they opt for another game, where
rules are much less formal –
a game the accused plays with a
definite handicap. Again theory and fact are at loggerheads. Rives,
J., has stated, “Justice and liberty are not the subjects of bargain-
ing and barter”.’ s Yet as Newman’ 9 and Packer 20 point out, the
widespread reliance on guilty plea “bargaining” is essential to the
operation of our present system of criminal prosecutions. As the
term would imply, plea negotiation involves an exchange between
the Crown and the defendant of benefits and concessions. In return
for a plea of guilty, the defendant is promised less severe treat-
ment than he would be subjected to if convicted of the maximum
offence and given the most severe sentence. At the same time he
waives his right to stand trial under the protection of the existing
procedural safeguards, and thereby loses his chance for an out-
right acquittal. It is this area where a preponderance of power and
inherent administrative biases work to circumvent and negative
what Viscount Sankey proudly referred to as the whole policy of
English Law, that is “to see that as against the prisoner every
rule in his favour is observed and that no rule is broken so as to
prejudice the chance of the jury fairly trying the true issues”.2 1
Despite the primary burden of proof upon the Crown to prove
all the elements of the charge against the accused beyond a rea-
sonable doubt, there would seem to be a tendency of police and
prosecution to institute proceedings on the basis of indices evi-
dencing more only probable guilt. The accused, too often unrepre-
sented by counsel, unaware of the higher degree of proof required
by a court to convict, by entering into the bargaining process may
be sacrificing liberty to which the law entitles him. Fear of a harsh
‘7 Id.
‘8 Shelton v. U.S., (1957), 242 F. 2d 101, at p. 113.
19 See Newton, D.J., Conviction, The Determination of Guilt or Innocence
without TW41, (Boston, 1966).
20 See Packer, op. cit.
21 Maxwell v. D.P.P., [1935] A.C. 309, at p. 323.
No. 1]
NOTES
sentence or damaging publicity, intimidation ranging from the subtle
to the blatant, and ignorance of the rules which would exclude
inadmissible evidence may be sufficient to convince the innocent
defendant to plead guilty. 22 Thus, the quest for truth and the words
of the late Mr. Justice Frankfurter that, “this history of liberty
has largely been the history of the observance of procedural safe-
guards,” have been lost and forgotten in the scramble that is the
hallmark of assembly-line justice.
The Conduct of the Prosecution: Disclosure
I do not agree that the state may be excused from its duty to disclose
material facts known to it prior to trial solely because of a conclusion that
it would not be admissable at trial. The state’s obligation is not to convict,
but to see that, as far as possible, truth emerges. This is also the ultimate
statement of the responsibility to provide a fair trial … No respectable
interest of the State can be advanced by its concealment of information
which is material, generously conceived, to the case including all possible
defences … A criminal trial is not a game in which the State’s function
is to outwit and entrap its quarry. The State’s pursuit is justice, not a
victim. If it has in its exclusive possession specific, concrete evidence…
which may exonerate the defendant or be of material importance to the
regardless of whether it relates to testimony which the State
defense –
the State is obliged to bring it to
has caused to be given at the trial –
the attention of the court and the defense. 23
In this long statement Mr. Justice Fortas is unequivocal in
requiring complete disclosure as an essential to any conception of
a fair trial.
Canon 1(2) of the Canadian Bar Association’s statement of
Legal Ethics requires that
When engaged as a public prosecutor, his [the lawyer’s] primary duty
is not to convict but to see that justice is done: to that end, he should
withhold no facts tending to prove either the guilt or innocence of the
accused. 24
As Orkin2 5 points out, Canon 5 of the American Bar Association
is an even more explicit admonition: “The suppression of facts or
the security of witnesses capable of establishing the innocence of
the accused is highly reprehensible.”
22 See The President’s Commission on Law Enforcement. The Courts and
the Administration of Justice, (Washington, 1967), U.S. Gov. Printing Off.
23 Giles V. Maryland, (1967), 87 S.Ct. 793, at p. 809.
24 See the Honourable Mr. Justice Schroeder, “Some Ethical Problems in
Criminal Law” in Law Society of Upper Canada: Special Lectures on Arrest,
(Toronto, 1963), 87; at p. 112.
25 Orkin, M. M., Legal Ethics, (Toronto, 1957), p. 118.
McGILL LAW JOURNAL
[Vol. 15
However high sounding pronouncements are hardly satisfactory
surrogates for a positive requirement for a comprehensive disclo-
sure. The extent to which the positive law complies with its ethical
norms will be the present object of consideration.
The Calling of Witnesses
At common law, the entire task of producing evidence and
witnesses was borne by the prosecution alone.20 With the develop-
ment of considerations which afforded protection to the defendant,
the trial took on a more adversarial character and the prosecutor
was allowed greater selectivity in presenting his case.
The tendency of the jurisprudence in the matter of disclosure
through the calling of witnesses has been to give the prosecutor
discretion; although admittedly, a discretion slightly qualified by
abstruse, general rules regarding fair play and justice.
The extent of the duty on the prosecutor to call witnesses whose
testimony could shed light on the case is not entirely clear. Devlin
claims that in England the prosecutor is expected to call all “ob-
vious” witnesses, that is, those who have some knowledge of the
events under consideration, whether they fully support the prose-
cution’s case or not. But he states, “there is no formal rule of
practice to that effect”. 7 The jurisprudence is not completely con-
sistent.
In Seneviratne v. R., 28 Lord Roche, speaking for the Judicial
Committee of the Privy Council, tended to equivocate as to the
extent of the required disclosure through the calling of witness:
Their Lordships do not desire to lay down any rules to fetter discretion on
a matter such as this which is so dependent on the particular circumstances
of each case. Still less do they desire to discourage the utmost candour and
fairness on the part of those conducting prosecutions; but at the same time
they cannot, speaking generally, approve of an idea that a prosecution
must call witnesses irrespective of considerations of number and reliability,
or that a prosecution ought to discharge the functions both of prosecution
and defense… Witnesses essential to the unfolding of the narratives on
which the prosecution is based, must, of course, be called by the prosecution,
whether in the result the effect of their testimony is for or against the
case for the prosecution. (emphasis added)29
In essence, it appears that the prosecutor must call all material
witnesses but it appears to be within his discretion to determine
20 Wigmore, vol. 6, para. 847.
27 See Lord Devlin, The Criminal Prosecution in England, (New Haven, 1958).
28 [1936] 3 All E.R. 36 (P.C.).
29 Ibid., at pp. 48-49.
No. 1]
NOTES
what is material; nevertheless, it is a discretion subject to scrutiny
by the court.
This judgment did not meet with complete approval in what is
the leading Canadian case on the subject, Lemay v. The King.20
The issue was whether the Crown was obliged to call eyewitnesses,
one of whom was a paid informant of the R.C.M.P., in a prosecution
for trafficking under the Opium and Narcotic Drug Act.31
Kerwin, J., was not prepared to accept completely the holding
in the Seneviratne case, but rather adopted the rule expressed in
the later judgment of the Judicial Committee in Adel Muhammed
El Dabbah v. A.-G. for Palestine.32
It was held that no rule of law exists which requires the Crown
to call to the witness stand alleged eyewitnesses to the transaction
on which the charge is founded, or who are alleged to be able to
give relevant and material evidence on the guilt or innocence of
the accused. The Palestine case was quoted to the effect that:
(T)he prosecution has a discretion as to what witnesses should be called
for the prosecution, and the court will not interfere with the exercise of
that unless, perhaps, it can be shown that the prosecutor has been influenced
by some oblique motive. 33 (emphasis added)
In Rex V. Sing,34 the issue, in part, was whether in a criminal
prosecution, the Crown counsel is bound to call the witnessess whose
names are on the back of the indictment. In the British Columbia
Court of Appeal, MacDonald, J., cited with approval the opinion
expressed in the case of Regina v. Cassidy,35 that the prosecutor
should always be allowed to take his own course in such circum-
stances, without compulsion to call the witness if he did not think
it fit to do so.
It is obscure how the ends of justice and truth are best served
by sanctifying such administrative discretion, apparently for its
own sake, especially in the light of the vast disparity in investiga-
tion techniques and resources between the Crown and the accused.
The burden of having to prove an “oblique motive” for concealment
before the Crown can “perhaps” be compelled to call a witness would
seem to afford little solace to the individual accused whose liberty
hangs in the balance.
30 (1951), 102 C.C.C. 1.
3119-20 Geo. V, S.C. 1929, c. 49; now R.S.C. 1952, c. 201.
32 [1944] A.C. 156.
33 Ibid., at p. 168.
34 [1936] 1 D.L.R. 36.
35 (1858), 1 F. & F. 79; 175 E.R. 634.
McGILL LAW JOURNAL
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It is likewise to be noted that there exists no rule that entitles
the accused to information of who will testify against him at his
trial. In Rex v. Bohozuk,36 where the issue was the right to such
a disclosure, Mackay, J., stated:
After reviewing the authorities… I am of the opinion that there is no
rule directing that the names of witnesses which the Crown may call, should
be given to the accused or the counsel for the defence… I am further of
opinion that the Crown is under no obligation to divulge the names of such
witnesses. The matter is discretionary… In the opinion of the Court,
it is neither necessary nor desirable that such names be made available
to the defence. (Emphasized) 37
The learned judge did not elaborate on why the Court should find
disclosure of this sort undesirable. He did, however, state that
it was the interests of the “proper administration of justice” that
must be and remain paramount over the interests of the accused.38
In apparently finding the two interests inimical, his Lordship, it
seems, was not prepared to endorse the fundamental premise of
our criminal law that the accused is clothed with the presumption
of innocence until the Crown proves him guilty. The only rationale
for the judgment would appear to be that the disclosure of the
names of Crown witnessess, would, by in some way benefitting the
defence, weaken its chance of securing a conviction and thereby
hamper the efficacious administration of justice.
In the case of Rex v. Cunningham,39 there is an obiter dictum
to the effect that a positive duty to disclose the names of Crown
witnesses does exist. In that case Richards, C.J., concluded:
It is a duty on the part of the presiding judge to see that an accused has
a fair trial –
that justice is done; and that means that he should have
the knowledge of the witnesses who are to be called against him and the
general character of the evidence they are to give. It is the function of the
Crown to provide the information, but the trial judge has a duty to see that
it is done. (Emphasis added)40
In the i&tant case, obviously no conflict between “justice” and
disclosure was feared or found. The case, however, stands isolated.
It is not without interest to note that both the Bohozuk and Cun-
ningham cases are antidated by the decision in Rex v. M’Clain.41
It was therein held that:
As a measure of fairness and justice, the Crown ought to furnish the
accused in some form with the names of the witnesses intended to be called
36 (1947), 87 C.C.C. 125.
37Ibid., at p. 1,26.
3s bid, at p. 127.
39 (1952), 30 M.P.R. 34.
40 Ibid., at p. 43.
41 (1914-15), 23 C.C.C. 488.
No. 1]
NOTE)S
in chief support of the Crown’s case… But there is no law laying down
any definite rule in this manner, which must be left to the presiding judge
to deal with in such a way as to give all necessary protection to the
accused and to give him a fair opportunity to defend himself against the
charge. 4 2
The M’Clain case was cited in R. v. Bohozuk as an authority referred
to. Yet the learned judge there found that the protection offered
by disclosure would not only be “unnecessary” protection for the
accused but as well “undesirable” protection.
However, in Regina v. Torrens,43 it was held that the Crown
ought to make known to the accused “at a reasonably early time,
the names of any witness which it did not examine at preliminary
inquiry who it proposed to call at trial”.
The accused is therefore at the mercy of the whims of the trial
judge and prosecutor. If he is so fortunate to have the means to
appeal his case, his only remedy is to prove that within the meaning
of sec. 592 (1) (a) (iii) of the Criminal Code, a miscarriage of justice
occurred. The possibility of such proof, in the absence of a positive
duty of disclosure, can hardly be the subject of anything more than
fanciful speculation.
It appears quite evident from the foregoing, that Canadian
criminal procedure favours in general a sporting theory as the
means of effectuating a finding based on truth. The rules it has
developed, however, seem to indicate that the outcome of the game
is in a large matter determined by the skill of the opponents.
There does exist in favour of the accused, a duty on the Crown
to disclose the general nature of the evidence that it intends to
produce at trial.” Left in the abstract, however, this statement is
quite misleading, as it indicates nothing of the scope of the duty.
The word “disclose” is equally inappropriate as, in fact, the vast
majority of this evidence will only come under scrutiny before trial
by the persistent probing of the defence attorney. The depth of the
probing is in turn limited by the procedural facilities available and
the discretionary power of the prosecution.
As has been indicated above, the decision of which witnesses
to call is one entirely within the discretion of the prosecutor. As
well, as G. Arthur Martin points out, there is no case which directly
imposes any duty on the part of the Crown counsel to disclose or
adduce any more evidence at preliminary inquiry than is necessary
42 Ibid., at p. 495.
43 [19631 1 C.C.C. 383.
44 See Rex V. Bohozuk, supra, n. 36.
McGILL LAW JOURNAL
[Vol. 15
to demonstrate a prima facie case against the accused.45 Balancing
this discretion is the requirement that the prosecutor must not
withhold any evidence favourable to the accused.
What then of witnesses not called by the Crown who have
material information relevant to the case? It was stated in the
Palestine case that:
It is consistent with the discretion of counsel for the prosecution, which is
thus recognized, that it should be the general practice of prosecuting counsels,
if they find no sufficient reason to the contrary, to tender such witnesses
for cross-examination by the defense, and this practice has probably become
even more general in recent years, and rightly so, but it remains a matter
for the discretion of the prosecutor. 4 6
In Rex v. Tilford,47 it was held that the Crown is not obliged
to call all the witnesses whose names appear enclosed on the back
of the indictment; they must, however, be present in court so that
the defence may call them if it wishes. By compelling the defence
to call these witnesses as their own, this practice may tend to hinder
the revelation of the truth by subjecting the defense to the restric-
tions and prohibitions concerning leading questions and impeaching
credibility.
When the witness’ name is not on the back of the indictment,
the problem becomes more complicated. It has been suggested that
it would be a “grave dereliction of duty” not to notify the defence
of any material witness who is not called at preliminary hearing
or whose name is not on the indictment.48
If the Crown should decide to call such a witness without notice,
it has been held in Rex v. Gallant 49 that such evidence is admissable
but that the accused can ask for postponement to analyze the new
evidence, if prejudiced by the surprise. How effective such a remedy
would be in the midst of a trial is left to the opinion of the reader.
In the instance where a material witness is not called, but present
at trial, the onus of calling him definitely appears to rest with the
defence. In Rex v. Mandryk,50 where an accessory to the crime
charged was not called by the Crown, the cases which suggested
a duty upon the prosecutor to present to the jury evidence of all
those present at the occurrence of the event alleged to constitute
a crime, even if they are likely to give different accounts of what
45 Martin, G.A., “Preliminary Hearings” in Law Society of Upper Canada:
Special Lectures on Evidence, (Toronto, 1955), 1, at p. 2.
46 [1944] A.C. 156, at p. 169.
47 [1936] O.R. 35.
4 8 M artin, G.A., Problems in Litigation, (1953), 31 Can. Bar Rev. 501, at p. 510.
49 (1945), 83 C.C.C. 48.
50 (1934), 72 C.C.C. 84.
No. 1]
NOTES
took place, were distinguished or disregarded. It was held that the
trial does not necessarily become a mistrial because some witness
was not called. The governing factor in the decision appears to be
that the defence was fully aware of the accessory’s presence. The
rules of the “game” are strict; the penalty for not wishing to fully
participate, indeed severe.
Discovery
It now remains to be seen to what extent provisions for “dis-
covery” introduce an element of equality to offset the imbalance
in the relative strength of one side over the other.
It is to be noted that disclosure and discovery are in form very
different procedures. The former is a positive duty upon the Crown
to act of its own volition without any pressure or request from the
defence to make available to the accused all the evidence which
might tend to establish his guilt or innocence and to call all wit-
nesses who can shed any light on the case. Discovery, however, is
less an obligation of the Crown and more a right of the accused
to demand access to evidence before the trial. As it is more in
keeping with the adversary nature of the proceeding, it tends to
be favoured as a form of protection for the accused over the con-
cept of disclosure.
It would appear to be axiomatic that for the conduct of a fair
trial, it is prerequisite that the accused will from the outset be fully
made aware of the charges laid against him and of the issues which
are to be determined, and that he should not be required to present
his case to a court while being denied access to all reasonable and
relevant information. If this realization has been accepted it may
be said that criminal procedure has advanced immeasurably since
Lord Kenyon, C.J., in Rex v. Holland,51 stated that a pre-trial
examination of evidence by the accused would “subvert the whole
system of criminal law” 2
There presently exists in Canada no comprehensive “discovery”
facilities; the rights of the accused being both defined and limited
by statute and case law.
The preliminary inquiry is the closest approximation
to an
examination on discovery that Canadian criminal procedure has
51 (17904792), 4 Durn. & E. 691 (K.B.). But note: ninety years later in
Rex v. Harris, (1882), C.C.C. Sess. Pap. xcv, 525, it -was stated that “zmodern
practice concedes to every accused person the right to know, before his trial,
what evidence will be given against him”.
52 Ibid., at p. 692.
McGILL LAW JOURNAL
[Vol. 15
developed.53 It is to be noted that it is of value only insofar as the
accused is represented by astute counsel at that time. Personal
observation leads this author to believe that this is not the case
in a great number of instances.
The effective use of cross-examination is the most important
tool the defence has of compelling disclosure of the Crown’s case
to any stage beyond mere prima facie proof. Considering the fact
that the Crown need not confine the evidence adduced at trial to
that revealed at the preliminary inquiry, failure to do so may have
drastic consequences for the accused.
For example, in Rex v. Grigoreshenko and Stupka,5 4 it was held
that:
To be prepared to rebut any additional evidence which might be elicited
from the Crown witnesses at the trial, counsel should have cross-examined
them at the preliminary inquiry in order to obtain the fullest disclosure
and so provide against any possible surprise. If there were any omissions
in this respect, the responsibility therefore must rest upon the prisoners
and their counsel.55
Moreover, the accused may call witnesses which the Crown has
not, in order to get a more complete picture of the evidence against
hint This was the technique in R. v. Mishko. 5 In that case, the
defence counsel, through cross-examination of one Crown witness
was able to elicit the names of six other witnesses to the alleged
crime. When the Crown objected to his calling of these witnesses
as his own, Mr. Justice Hogg held that the defense was entirely
within its rights to do so even though it was tantamount to con-
ducting an examination on discovery.
A limited statutory right of “discovery” of a type is to be found
in Section 512 of the Criminal Code:
An accused is entitled, after he has been committed for trial or at his trial,
to inspect without charge the indictment, his own statement, the evidence
a)
and the exhibits, if any; and
b) to receive, upon payment of a reasonable fee not to exceed ten cents
per folio of one hundred words, a copy
(i) of the evidence
(ii) of his own statement, if any, and
(iii) of the indictment,
but the trial shall not be postponed to enable the accused to secure copies
unless the court is satisfied that the failure of the accused to secure them
53 See Martin, G.A., “Preliminary Hearings”, loc. cit., supra, n. 45.
54 (1946), 85 C.C.C. 129.
55 Ibid., at p. 182.
56 (1946), 85 C.C.C. 410.
No. 13
NOTES
before the trial is not attributable to a lack of diligence on the part of the
accused.
Supplementing section 512 is section 514 which allows for the
release of any exhibit “for the purpose of a scientific or other test
or examination”. 57
The majority of the jurisprudence surrounding section 512 has
been on the question of what constitutes “evidence” within the
meaning of paragraph
(a) and specifically whether out-of-court
statements by potential witnesses may be examined by the defence.
The Judicial Committee of the Privy Council held in Mahadeo
v. The King,55
the leading Commonwealth case on the subject,
that the defence may request and should be granted statements of
a witness, charged as an accomplice, for the purpose of cross-ex-
amination.
With the enactment of Section 512, Canadian cases appear to
have disregarded or at least confined within narrow limits the
scope of the holding in Mahadeo, relying more on interpretation
of the statute.
In R. v. Finland,’9 this attitude was expressed by Wilson, J.,
who stated:
The Criminal Code is the governing authority and insofar as its provisions
conflict with the common law in substance and procedure, it must govern. 60
It was therein held that the accused had no right to examine
statements signed by possible witnesses taken before the prelimi-
nary hearing, during the course of the Crown’s investigation. The
learned judge added:
In this case, if there are written signed statements of witnesses who are
to be called, the prosecutor might well, although it is for him to decide,
reveal them to the defense before trial in order to help counsel for the
accused decide on his defense. (Emphasis added) 61
Similarly, in R. v. Silvester and Trapp,62 Verch~res, J., stated that:
57 The latter is unquestionably a valuable provision in the light of modern
scientific detection methods. For an extreme example of possible abuses where
no such statutory safeguard exists see: People V. Miller, 148 N.E. 2d 455; Miller
v. Pate, (1967), 87 S.Ct. 785.
58 [1936] 2 All E.R. 813.
59 (1960), 125 C.C.C. 186. See also R. v. Bryant, (1946), 31 Cr. App. R. 146,
where it was held that the prosecutor need not disclose to the defense statements
from interviews of witnesses not called at the trial. The duty goes no farther
than to make available witnesses known to be able to give “material” evidence.
60 Ibid., at p. 188.
61 Ibid., at p. 190.
62 (1960), 125 C.C.C. 190.
McGILL LAW JOURNAL1
(Vol. 15
(T)he asserted proposition that the accused has a right to have produced
to him before the trial all statements taken from witnesses during the
course of the investigation seems untenable. 63
The rationale for these decisions appears to be that such state-
ments are not “evidence” within the meaning of section 512 Cr. Code.
In Regina v. Lantos,64 “evidence” was held to mean “testimony
given at a judicial hearing relating to the subject matter of the
charge against the accused”. 65 It was not intended to embrace state-
ments taken from prospective witnesses.
With respect, it is submitted that such a narrow interpretation
is
of the word is both unwarranted and undesirable. “Evidence”
defined by Bouvier’s Law Dictionary, 1946, as follow:
That which tends to prove or disprove any matter in question or to influence
the belief respecting to it.
“Evidence” as defined in Phipson is:
(T)he means apart from argument and inference, whereby a court
is
informed as to the issues of fact ascertained by the pleading [in criminal
cases, the charge]; secondly, the subject matter of such means.06
Such documents as signed statements, if properly introduced before
the court, cannot logically be excluded from falling within the above
definitions.
As a matter of interpretation, section 512 is a provision which
acts as a safeguard to the rights of the accused. It should therefore
be construed in a wide sense in line with what Viscount Sankey
said was the whole policy of the English Law –
that every rule
in the prisoner’s favour be observed so that the jury may fairly
try the true issue (cited supra). To deny access to the fruits of the
Crown’s investigation is to disregard and negative the supposition
that the criminal trial is the search for truth. Mr. Justice Brennan
of the United States Supreme Court has asked rhetorically:
Is not such denial blind to the superlatively important public
interest
in the acquittal of the innocent? To shackle counsel so that he cannot
effectively seek out the truth and afford the accused the representation
which is not his privilege but his absolute right seems seriously to imperil
the bedrock presumption of innocence.67
Section 10(1) of the Canada Evidence Act, R.S.C. 1952, c. 307,06
which grants to the judge the discretion to order the production
63Ibid., at p. 163.
64 [1064] 2 C.C.C. 52.
05 Ibid., at p. 165.
66Phipson on Evidence, 10th ed., p. 2.
67 Brennan, W.J. Jr., The Criminal Prosecution: Sporting Event or Quest for
Truth, (1963), Wash. U.L.Q. 287.
68Considered inter alia in: Regina v. Weigett, (1961), 128 C.C.C. 217 and
Regina v. Torrens, [1963] 1 C.C.C. 383.
No. 1]
NOTES
of such statements, during the trial, for whatever use he sees fit
should not have any application in limiting the accused’s personal
rights under section 512 of the Criminal Code.
Forensic Conduct
“The right of an accused to have his guilt or innocence decided
on sworn evidence alone”, is in the words of Maxwell v. D.P.P.
“one of the most deeply rooted and jealously guarded principles of
our criminal law”.6 9 The issues must be decided on fact and reason,
independent of extraneous considerations, facts not in the record,
and emotional appeals. It is an elementary proposition that the
Crown counsel must behave in an absolutely impartial manner and
conduct his prosecution without feeling or animus, as he has no
interest other than seeing justice done. Such imperatives, however,
although honestly expressed, tend to disregard human nature. The
individual does not exist in a vacuum; his behavior is conditioned
by the environment and circumstances in which he participates.
The trial is by its very nature a battle. To the individual accused
it is a matter of liberty; to the Crown it is a holy war to protect
the integrity of its rule. In the heat of such a contest, principles
of fair play are easily cast aside if the achievement of the desired
end is seen as jeopardized. As a result, the substantive issues become
obfuscated by passion and the truth becomes harder to find.
It is difficult to define beyond generalities, except by example,
exactly what amounts to forensic misconduct that causes a mis-
carriage of justice. One extreme American cause cglbre may be
useful in illustrating this difficulty.
In State v. Beal,70 in his summation to the jury, the prosecutor
knelt before the widow of the deceased, grasped his bullet-riddled
clothing and characterized the defendants, on trial for murder, as
(D)evils with hoofs and horns who threw away their pitchforks, foreign
communists, fiends incarnate, who came sweeping like a cyclone, like a
tornado to sink their fangs into the heart and life-blood of my community…
Do you believe in the flag, do you believe in good roads… Men, do your
duty and in the name of God and Justice render a verdict that will be
emblazoned across the sky of America as an eternal sign that justice
has been done! 71
It was held in appeal that the trial judge’s admonition to the
prosecutor for such behavior was sufficient to remedy any preju-
69 Boueher v. The Queen, [1955] S.C.R. 16, at p. 28.
70 (1930), 154 S.E. 604.
71 Cited in (1930-31), 44 Harv. L. Rev. 1118, at p. 1123, n. 29.
McGILL LAW JOURNAL
[Vol. 15
dice that might have been caused to the defendants, (who were
found guilty).
By comparison, in Boucher v. The Queen, the prosecutor had
expressed an opinion that the accused was guilty of a vicious mur-
der and had added:
Et si vous rapportez un verdict de coupable, pour une fois ga me ferait
presque plaisir de demander la peine de mort contre lui.
Mr. Justice Cartwright, in allowing the appeal, held:
The making of such a statement to the jury was clearly unlawful and its
damaging effect would, in my view, be even greater than the admission
of illegal evidence or a statement by Crown counsel to the jury either
in his opening address or his closing address of facts as to which there
was no evidence. 72
As a general rule then, expressions of personal opinions of guilt,
inflammatory, acrimonious or vindictive language and prejudicial
references
to race, nationality, and religion are unquestionably
forbidden by the concept of a non-partisan prosecution whose im-
mediate and ultimate objective is truth, not conviction. How much
attention will be paid to such prohibitions, in practice, will depend
on the individual prosecutor; his administrative biases necessarily
tempering his conception of the nature of his office.
Conclusion
A drastic, comprehensive re-evaluation of the administration of
criminal justice, with specific reference to the prosecutor’s office,
is of the utmost priority. Vague moral imperatives given judicial
lip-service can never be sufficient for an accused when the stakes
of the game are so high. Scattered ditcta embracing philosophical
conceptions of “justice” are entirely unsatisfactory substitutes for
positive texts of law.
Undue reverence paid in the name of efficiency to historical
institutions has caused us to lose sight of what must be the para-
mount objective of a free society. Prosecutional discretion, subject
to subtle abuses, and preserved for its own sake is incompatable
with the search for ultimate truth. The fundamental question
is
whether the individual can afford to rely on the good intentions of
an administration, whose size, powers and facilities reduce his
own ability for self-protection to virtual impotence. Is it not con-
trary to all conceptions of a fair trial to leave to the prosecutor
the determination of what evidence is material or exculpatory, or of
72 [1955] S.C.R. 16, at p. 31. See also Pursey v. The Queen, (1957), 116
C.C.C. 82.
No. 11
NOTES
which witnesses should be called ? Does it not seem reasonable that
the products of the massive investigatory resources of the Crown,
its manpower, technological capabilities, and hardly least of all,
its treasury, be made accessible to the accused to enable him to
prepare the best possible defense ?
The potential sacrifice of efficiency is no rebuttal. If the validity
of the proposition that “it is often better that one guilty man should
escape than that the general rules evolved by the dictates of justice
for the conduct of criminal prosecutions should be disregarded and
discredited”, 73 is accepted, then there can be no justification for
the toleration of a system which might allow the innocent to become
the sacrificial lambs of expediency.
One would need to be very naive indeed to believe that any
system can be so perfected to warrant against the occasional con-
viction of the innocent. However, one would be equally naive to
complacently accept the premise that the present system is the best
way of minimizing this possibility.
Howard SHAPRAY ‘
73 Maxwell v. D.P.P., supra, n. 21.
* Articles Editor, McGill Law Journal.
