Judicial
interference with decisions about what submissions a party to litigation should
make will occur only rarely, to prevent an abuse of process: R v Anderson, 2014
SCC 41 (6 June 2014).
Here the
issue was whether the court should review a prosecutor’s decision to seek a
minimum penalty for a repeat offender on sentence for an alcohol related
driving offence.The Supreme Court of Canada, in a judgment delivered by
Moldaver J, recognised that the legislation made this a matter within the
prosecutor’s discretion, and held [31]-[32], [35] that judicial review of the
exercise of a prosecutor’s discretion is generally undesirable and would only
be appropriate to prevent an abuse of process.
Prosecutorial
discretion must be exercised independently of political or judicial
interference [37]. Examples of discretionary matters are: whether to bring the
prosecution of a charge laid by police, whether to enter a stay of proceedings
in either a private or public prosecution, whether to accept a guilty plea to a
lesser charge, whether to withdraw from criminal proceedings altogether, whether
to take control of a private prosecution [40], whether to repudiate a plea
agreement, whether to pursue a dangerous offender application, whether to
charge multiple offences, whether to negotiate a plea, and whether to initiate
an appeal [44].
These are
only reviewable if there would be an abuse of process, that is, where there had
been a flagrant impropriety, improper motives or bad faith, where the decision
undermined the integrity of the judicial process, or where it would result in
an unfair trial [49]-[51].
Judicial
intervention can occur in the absence of abuse of process, where the conduct of
a party interferes with the orderly and effective functioning of the court [58],
but the conduct of litigants or counsel is to be distinguished from the conduct
of litigation [59]. Tactical decisions about how a party will present its case
will be deferred to by judges unless the situation is exceptional or trial
fairness requires intervention.
Where
official guidelines for prosecutors have been issued, although they may not
have the force of law, a breach can indicate when the court should give weight
to a defendant’s claim that a prosecutorial decision would give rise to an
abuse of process [56].
See also: New
Zealand Law Commission, Criminal
Prosecution (NZLC
R66, 2000) at [61]-[66], A v R [2012] EWCA Crim
434 at [83], R v DPP ex parte
Kebilene [2000]
2 AC 326 at 371, Likiardopoulos v R
[2012] HCA 37 per French CJ at [1]-[5].
A
particularly important prosecutorial decision is, especially in cases of high
public interest, a decision not to
prosecute. Judicial review has a role here, especially where there is no
practical means of private prosecution. But again, a plaintiff would have to
demonstrate that the prosecutor, in deciding not to prosecute, considered an
irrelevant matter, or failed to consider a relevant matter, or was wrong in
law, or was plainly wrong. And even if the plaintiff could show that the
prosecutor had failed to consider a relevant matter, or had considered an
irrelevant matter, or had made an error of law (for example by being wrong
about the legal elements of the alleged offence), the plaintiff will further
have to satisfy the court that if the error had not been made the prosecutor
could have decided to prosecute. Even then, the reviewing court could simply
refer the issue back to the prosecutor for reconsideration.
The trial
process provides protection against wrong decisions to prosecute, but there is little real and practical protection
against decisions not to prosecute.
