The prosecutor’s role in seeking justice

Par Yves Faguy mai 8, 20188 mai 2018

The prosecutor’s role in seeking justice

 

What is a prosecutor’s role in seeking justice in criminal matters? And what does that mean from an ethical perspective? As Professor Alice Woolley writes in her latest article for the Canadian Bar Review, the duty to seek justice “is inherently vague.” The problem, she argues is that Canadian courts tend to rely on the seek justice ethic in assessing prosecutorial conduct. This is problematic in a system in which prosecutors are also expected to perform an adversarial function in court for a number of reasons:

It is vague, contradictory, improperly incorporates undefined moral concepts into legal duties and does not reflect the work that prosecutors do. It does not provide prosecutors with meaningful guidance, and instead risks contributing to prosecutorial arrogance. It may tip the playing field of a criminal trial in the prosecutor’s favour, which directly opposes the principles of criminal law where the benefit of the doubt ought to run to the accused.

A better approach requires identifying the norms that underlie the two functions that prosecutors play in a criminal trial—the exercise of prosecutorial discretion and the conduct of a matter—and articulating the obligations for prosecutors that flow from those norms. Doing so does not create as eloquent or evocative statement of the prosecutor’s duties as the seek justice ethic, but it does permit a more careful and nuanced analysis of the prosecutor’s duties, and of the difference between proper and improper prosecutorial conduct. And even if less eloquent and evocative, a mandate of respecting substantive law and procedural fairness to ensure the rule of law is a mandate of honour and importance, which any prosecutor ought to feel proud to discharge.

What is a prosecutor’s role in seeking justice in criminal matters? And what does that mean from an ethical perspective? As Professor Alice Woolley writes in her latest article for the Canadian Bar Review, the duty to seek justice “is inherently vague.” The problem, she argues is that Canadian courts tend to rely on the seek justice ethic in assessing prosecutorial conduct. This is problematic in a system in which prosecutors are also expected to perform an adversarial function in court for a number of reasons:

It is vague, contradictory, improperly incorporates undefined moral concepts into legal duties and does not reflect the work that prosecutors do. It does not provide prosecutors with meaningful guidance, and instead risks contributing to prosecutorial arrogance. It may tip the playing field of a criminal trial in the prosecutor’s favour, which directly opposes the principles of criminal law where the benefit of the doubt ought to run to the accused.

A better approach requires identifying the norms that underlie the two functions that prosecutors play in a criminal trial—the exercise of prosecutorial discretion and the conduct of a matter—and articulating the obligations for prosecutors that flow from those norms. Doing so does not create as eloquent or evocative statement of the prosecutor’s duties as the seek justice ethic, but it does permit a more careful and nuanced analysis of the prosecutor’s duties, and of the difference between proper and improper prosecutorial conduct. And even if less eloquent and evocative, a mandate of respecting substantive law and procedural fairness to ensure the rule of law is a mandate of honour and importance, which any prosecutor ought to feel proud to discharge.

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