Health Protection Branch

Crown prosecutors. Although the administration of justice and thus prosecution of provincial offences and federal crimes is generally entrusted to the provinces by section 92(14) of the British North America Act, all drug cases are prosecuted by federally-appointed prosecutors, operating under instructions from the Attorney-General of Canada. Until 1977, the provinces tacitly agreed to this arrangement, presumably because the drug prosecutors were paid by the federal government, and it reduced the work of the provincial Crowns who already had onerous caseloads. Recently, however, the federal government’s constitutional authority to prosecute drug cases without the written consent of the provincial Attorney-General has been judicially challenged. (Re Hauser v. The Queen (1977), 80 D.L.R. (3d) 161 (Alta. C.A.)) The issue is presently before the Supreme Court of Canada, but regardless of its decision the prosecution of drug cases is likely to remain in federal hands subject only to the necessity of obtaining the written consent of the provincial Attorney-General. It does not appear that the provinces wish to assume the financial costs and administrative responsibilities of prosecuting these cases.

The federal Department of Justice hires full-time prosecutors in cities which have a sufficiently large drug caseload. In smaller centres, lawyers are appointed part-time and are paid on a fee-for-service basis according to a fixed tariff. These positions are financially attractive, and the applicants are generally well qualified. The applicant's political affiliations also appear to be a significant factor in the selection process. Once appointed, the lawyer and members of his firm cannot act as defence counsel in drug cases.

During the early 1970s, the Department of Justice issued detailed instructions to its drug prosecutors and required them to check with the Department's Regional Offices in stipulated situations. This close supervision was intended to ensure a measure of uniformity. These instructions have since been replaced by more general guidelines, and there is now little contact between the drug prosecutor and the regional office, except for appeals.

The prosecution of drug cases likely varies considerably from jurisdiction to jurisdiction and thus the following discussion of practices in the city of London, Ontario, are not necessarily applicable to the rest of the country. While London may provide a model for the smaller cities, the heavier caseloads in larger cities may place greater administrative pressures on the process. The federal Crowns in London have a good working relationship with the police, provincial Crowns, and other members of the legal community. Most drug cases are straightforward and the police rarely consult with the prosecutor before laying a charge. The RCMP have established confidential guidelines for its officers which are referred to by other forces. These guidelines probably reduce the potential for laying inappropriate charges or producing highly disparate dispositions. If an inappropriate charge is laid, the prosecutor will not hesitate to withdraw or correct it.

Defence counsel usually initiate discussions regarding plea-bargaining with either the arresting officer or the federal prosecutor. The prosecutors consider the sufficiency of the evidence as the major factor in deciding whether to reduce a charge to a lesser offence in return for a guilty plea. The prosecutor seeks background information on the suspect from the arresting officer before making this decision. Defence counsel may also approach the federal prosecutor for a favourable submission as to sentence in exchange for a guilty plea. Occasionally, the arresting officer requests that the prosecutor reduce the charge because the suspect was "cooperative" or because subsequent investigation revealed the limited nature of the accused's involvement. In these situations, and others involving young first offenders, the prosecutors may reduce the charge despite evidence establishing a more serious offence.

The federal prosecutors regard their function in speaking to sentence as bringing all the relevant facts to the Court's attention. They rarely propose a specific sentence, unless they feel that the sentence sought by defence counsel is inappropriate. In speaking to sentence they generally introduce the defendant's prior drug-related criminal record, if any.

It appears that the individual prosecutor's sense of fairness is the single most important factor shaping his exercise of discretion. This does result in irreconcilable discrepancies in the prosecution of cannabis cases, but unlike the situation with the police, the drug prosecutor’s exercise of discretion is acknowledged and is a matter of record.