Prosecutorial Discretion
Prosecutorial discretion
is an expansive term that covers all decisions regarding the nature and extent
of the prosecution and the Attorney General’s participation in it.
R.
v. Anderson, 2014 SCC 41 (CanLII), at
para. 44.
It includes, among many
other things, the Crown's decision to negotiate a plea agreement [FN], as well the Crown's election.
See Stuart O'Connell Law Blog, Crown Election,
Judicial non-interference
with prosecutorial discretion has been referred to as a matter of principle
based on the doctrine of separation of powers as well as a matter of policy
founded on the efficiency of the system of criminal justice which also
recognizes that prosecutorial discretion is especially ill-suited to judicial
review.
See
R. v. Anderson, 2014
SCC 41 (CanLII), at
para. 23.
Prosecutorial discretion
is reviewable solely for abuse of process.
Anderson, at
para. 51.
The Exercise of Prosecutorial
Discretion as an Abuse of Process
To succeed on an application for abuse of process, the accused
is obliged to demonstrate Crown conduct that was “egregious and seriously
compromise[d] trial fairness and/or the integrity of the justice system”.
Anderson,
at para. 50.
Only if an accused meets the threshold evidentiary burden of
establishing a proper evidentiary foundation for his/her abuse of process will
the court inquire into the reasons behind the exercise of prosecutorial
discretion.
R. v.
Delchev, 2015 ONCA 381, at para. 49;
R. v.
St. Amand, 2017 ONCA 913, at para. 31 (for a recent application of this principle).
[FN] R. v.
Anthony-Cook, 2016 SCC 43 (CanLII), at para. 34 sets out a particular legal
test as to when a court may depart from a joint submission by on sentence (that
is, the sentence is “…so unhinged from the circumstances…” that it would lead a
reasonable person to believe that the proper functioning of the justice system
had broken down. In my opinion, this
test is a context-specific elaboration of the abuse of process doctrine.
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