Contact counts for counsel

Contrary to the saying, mounties do not always get their man. But when they do, responsibility for prosecution passes to Canada's provincial attorney generals. In British Columbia, prosecutors are termed crown counsel and are civil servants in the attorney general's department.

Unlike English Crown Prosecution Service lawyers, crown counsel have full rights of audience in all courts and some go on to become judges. And although employed as civil servants, they regard themselves first and foremost as barristers.

Crown counsel apply the same two tests as CPS lawyers in deciding whether a prosecution should proceed: is there a substantial likelihood of conviction and does the public interest require a prosecution?

But although the tests are the same, the way they are applied is fundamentally different.

First, it is crown counsel not the police who decide the charge. So if crown counsel and the police disagree about the appropriate charge or whether a prosecution is in the public interest, the matter has to be resolved before a defendant is charged rather than afterwards as happens in the UK.

Because of this system and because the Crown not the defence can choose summary trial or trial on indictment, there is less scope for accusations that charges have been improperly reduced or dropped.

English prosecutors are wholly dependant on witness statements prepared by the police. In certain cases, particularly rape and child abuse, the lawyers would benefit from interviewing witnesses and victims to make a better assessment of their testimony.

But in Canada, if a case proceeds to trial or crown counsel have doubts about whether a prosecution should be brought, victims and witnesses are interviewed by the prosecutors. This means crown counsel are not forced to make decisions solely on the basis of witness statements prepared by police.

Canadian prosecutors regard speaking to witnesses as crucial in deciding whether a case should proceed. It means they can talk to witnesses whose evidence seems weak on paper but who may turn out to be believable when questioned. On the other hand, meeting witnesses may confirm the first view that the case should not proceed. And because crown counsel meet witnesses face-to-face, police are more inclined to accept a case should not proceed. If there is disagreement, a formal procedure exists for a decision to be reviewed by a higher ranking crown counsel.

Unlike the CPS, it is the task of the prosecutor (not police) to explain to a victim if a case is not proceeding and the victim has a right to have the decision reviewed. If a victim dies, the next of kin are seen as victims and have the same right to an explanation and appeal.

In terms of qualifications or skills, crown counsel lawyers are no better than their CPS counterparts. The main difference is that the Canadian system allows its prosecutors to make more informed decisions. Says one crown counsel: “The general public are our clients and they deserve the best client care we can give them.” Not a bad motto for a public service.