Prosecution ethics: independent decisions and a fair process

Overview

A prosecutor exercises public power over an accused person and must use it fairly. The role permits firm advocacy, careful preparation and a persuasive request for conviction where the evidence warrants it. It also requires reconsidering a weak case, disclosing information that assists the defence and correcting a misleading presentation.

Section 112 of Quebec's Code of Professional Conduct of Lawyers, called the Lawyers' Code below, expressly connects criminal and penal prosecution with the public interest, the administration of justice and a fair judicial process. Other professional duties apply alongside that obligation. The Director of Criminal and Penal Prosecutions, or DPCP, also issues directives governing its prosecutors. A directive explains the service's decision-making framework; its breach does not automatically establish a constitutional violation or a right to acquittal.

This lesson follows the decisions through which fairness becomes practical: authorizing a charge, sharing information, preparing witnesses, negotiating a resolution and presenting the case. JurisClasseur Québec, Preuve et procédure pénales, fascicule 26, supplies the doctrinal discussion of those responsibilities. The DPCP directives identify the Quebec prosecutorial practices discussed below.

Learning Objectives

• Apply the evidence and public-interest assessments without confusing them with the trial burden.
• Identify disclosure, witness-preparation and advocacy duties that continue throughout a prosecution.
• Distinguish professional misconduct, review of a prosecutorial decision and a remedy in the criminal proceeding.

Identify whose interests the prosecutor serves

Public responsibility and professional independence

The public interest (intérêt public) includes fair treatment of the accused, protection of the public and confidence in a lawful justice system. It cannot be reduced to a conviction rate, the wishes of one participant or the popularity of an allegation. Prosecutorial independence (indépendance du poursuivant) requires judgment free of improper partisan, personal or other external influence.

Police provide investigative material, but their conclusion that someone should be charged does not relieve the prosecutor of an independent assessment. The prosecutor may seek further investigation and identify defects in the evidence. Similarly, defence representations can expose a factual or legal difficulty that deserves examination. Treating every challenge as an attempt to obstruct justice would prevent objective reassessment.

A complainant or victim deserves respectful communication and appropriate information. The prosecutor nevertheless does not act as that person's private lawyer. DPCP directive VIC-1, paragraphs 1–6, requires clear explanation of that relationship and attention to the person's circumstances and understanding. The person may favour a result that the prosecutor cannot lawfully or fairly pursue. Explaining the reasons, within the applicable confidentiality limits, is part of professional communication.

Independence also coexists with institutional responsibility. A prosecutor must follow applicable directives and consultation requirements and be able to explain decisions. Those requirements support consistent, justified public decision-making. They do not permit an improper outside interest to dictate the outcome of a case.

Objectivity when the case becomes difficult

Objectivity (objectivité) requires examining evidence that contradicts the prosecution theory with the same seriousness as evidence that supports it. A witness's confidence, the seriousness of the allegation and the resources already spent on the file do not resolve weaknesses in identification or admissibility. Neither anger at the accused nor sympathy for a witness supplies missing proof.

The prosecutor may maintain a contested position supported by law and evidence. Fairness does not require accepting every defence submission or presenting the defence's strongest possible case. It does require an honest account of the evidence, respect for procedural rights and a willingness to change position when the basis for the prosecution changes. JurisClasseur addresses that combination of vigorous advocacy and restraint at nos 227–234.

Reassess the basis for prosecution

Evidence and public interest are separate inquiries

DPCP directive ACC-3, paragraphs 5–14, separates the assessment of evidence from the assessment of public interest. The evidentiary question is whether there is a reasonable prospect of conviction (perspective raisonnable de condamnation), assessed objectively. The prosecutor considers the anticipated evidence, its admissibility and reliability, reasonably available defences and relevant constitutional problems.

This threshold is more demanding than reasonable and probable grounds to believe the suspect committed an offence. It does not require the prosecutor personally to be convinced of guilt beyond reasonable doubt. At trial, the prosecution bears the burden of proof (fardeau de preuve) and must establish guilt beyond reasonable doubt through admissible evidence before the court. The preliminary assessment and the court's ultimate determination serve different functions.

Public interest is a further assessment. Under ACC-3, sufficient evidence ordinarily leads to prosecution unless the public-interest assessment or an applicable alternative justifies another course. Relevant factors must be considered in context; no single factor automatically decides every case. The seriousness of an allegation may strongly favour prosecution, but it cannot substitute for a sufficient evidentiary basis.

For adult criminal files, section 715.48 of the Criminal Code adds a qualified duty to consider a warning or, with the person's consent, a referral to community assistance or an alternative measure before starting or continuing proceedings. The inquiry applies where appropriate and without a risk to public safety, taking account of the victim's, society's and the person's interests and the purpose and principles in sections 715.45–715.46. Failure to conduct it does not invalidate the proceedings. This provision has applied since July 18, 2026, including to matters already ongoing then under section 111(2) of the Protecting Victims Act. The charges and pleas lesson explains the separate conditions for using an alternative measure; consideration does not guarantee that outcome.

These assessments continue as the file develops. A new recording, a changed witness account or an admissibility ruling may require reconsideration. Paragraphs 9 and 14 of ACC-3 expressly address continuing assessment. Before authorizing a prosecution, paragraph 16 also requires consideration of relevant and credible information submitted in writing by the defence that is not already in the file. Review should identify what changed and how it affects the legal basis for proceeding.

Youth proceedings require a further statutory inquiry. Section 6.1 of the Youth Criminal Justice Act requires the prosecutor, before starting or continuing proceedings, to consider whether a warning, a caution under an established section 8 program or a community referral with the young person's consent would suffice under sections 4 and 4.1. Failure to consider those options does not invalidate the proceedings. This duty has applied since July 18, 2026, including to matters already ongoing then under section 134 of the Protecting Victims Act. The duty is distinct from the police assessment and does not guarantee a particular measure. The youth criminal procedure lesson explains that separate regime.

Worked example: the identifying witness loses the supporting basis

Factual Scenario

In this hypothetical, an adult is charged after a witness identifies them as the person who damaged a shop window. The identification is the only evidence connecting the accused to the incident. Before trial, a newly obtained recording establishes that the witness could not have observed the person's face from the location described. No other identification evidence has been found. The shop owner wants the prosecutor to obtain a guilty plea to a reduced charge because repairs were expensive.

Treat disclosure as a continuing legal duty

Relevance, control and lawful restrictions

Disclosure (communication de la preuve) enables the accused to know and answer the case. DPCP directive PRE-1, paragraphs 2–8, requires disclosure of relevant information within the prosecution's possession or control, including the relevant fruits of the investigating police service's investigation. The obligation includes information that weakens the prosecution or assists an available defence. Doubt about relevance must be resolved in favour of disclosure, subject to a separate lawful restriction.

The duty is not satisfied by handing over the material counsel intends to introduce at trial. A statement from a witness the prosecution will not call can still matter. Information may assist in investigating a defence, testing credibility, making an evidentiary application or deciding how to conduct the case. Its significance cannot be assessed solely against the prosecutor's preferred theory.

Lawful limits remain. Clearly irrelevant information, privileged material and information governed by a distinct legal regime require separate treatment. Records held by an independent third party do not all become prosecution records merely because they might help the defence. The lesson on disclosure and third-party records explains those boundaries and the applicable procedures.

Privacy and safety concerns require an appropriate legal response. PRE-1, paragraphs 10–14, provides for measures suited to the information, including redaction, controlled access, undertakings or judicial orders where justified. A restriction should protect the legitimate interest while impairing the defence as little as possible. The prosecutor must provide enough information to indicate that material has been withheld and be able to justify withholding it, without revealing the protected substance.

Disclosure cannot be used as bargaining pressure. Information that must be provided does not become optional because the accused rejected an offer or contested a charge. The obligation is active and continuing: relevant new material must be disclosed promptly, including during deliberations or an appeal, subject to the applicable legal rules. A reasonable response includes obtaining missing investigative material when the circumstances engage the duty to inquire; it does not require every additional investigation requested without a reasonable basis.

Under PRE-1, paragraph 9, the prosecutor must inform an unrepresented accused of the right to disclosure at the first appearance in criminal proceedings, or at the latest before the hearing begins in penal proceedings. A concluded file also calls for action when new potentially disclosable information or an earlier disclosure omission comes to light. Paragraph 7 requires immediate notification of the chief prosecutor and measures to preserve the prosecution and investigation files. Closure of the file is not a reason to ignore evidence of a possible wrongful conviction.

Worked example: a witness changes a material detail during preparation

Factual Scenario

In this hypothetical, a witness initially told police that they saw the accused carry a sealed package into a building. At a preparation meeting, the witness explains that they actually saw only a similar coat and learned the supposed identity from another person. The prosecutor has not yet called the witness. The witness asks that the correction remain private because they fear looking unreliable.

Prepare witnesses without shaping their evidence

Explain the process and protect independent memory

Witness preparation (préparation des témoins) may explain the courtroom, the sequence of questioning and the need to distinguish direct observation from inference. Counsel may review an earlier statement and ask about omissions or apparent inconsistencies. The witness should be able to say that they do not remember, did not observe something or need a question clarified.

Preparation becomes improper when counsel supplies the desired facts, suppresses a material uncertainty or encourages an account the witness does not accept as true. A carefully rehearsed story can distort evidence even without an explicit instruction to lie. Keep the witness's own account distinct from the prosecutor's theory and from information supplied by other witnesses.

Section 120 of the Lawyers' Code restricts contact with a person known to be represented in the matter: counsel's presence or consent, or legal authorization, is required. When seeking information from a potential witness, the prosecutor must also identify the interests represented. Section 122 prohibits knowingly allowing a false or misleading presentation of a witness or party. Under section 123, compensation or another benefit conditional on testimony's content or the outcome is prohibited. The permitted payments are reasonable attendance or testimony expenses, reasonable compensation for the associated loss of time, and reasonable expert fees. Any benefit relevant to credibility also requires an appropriate disclosure assessment.

A potential prosecution witness is not the prosecution's property. PRE-1, paragraph 15, recognizes the person's choice to accept or decline a voluntary defence interview. Counsel should not improperly obstruct lawful contact or suggest that cooperation with defence counsel is disloyal. A subpoena or court order raises different duties from an informal request for an interview.

The prosecutor need not call every available witness. Selection may legitimately reflect relevance, duplication and a fair presentation of the case. The separate disclosure obligation remains. Likewise, a contradiction does not automatically prove that a witness is lying or make all testimony inadmissible. The prosecutor must assess the difficulty candidly and must not knowingly mislead the court about it.

Negotiate and advocate within the public role

Agreements, informed pleas and self-represented accused

Plea negotiations (négociations sur le plaidoyer) can resolve a case fairly when the agreement rests on a proper evidentiary basis, an informed accused and a lawful disposition. DPCP directive PEI-3, paragraphs 4–7, addresses the conduct of negotiations, the public interest and respect for agreements. The prosecutor must honour an agreement, including on appeal, subject to the directive's exceptions. Deception during negotiations, omitted essential facts or later discovery of decisive evidence can justify repudiation, with reasons and the required supervisory process. Exceptional repudiation in the public interest requires its own safeguards, including consideration of prejudice to the accused.

Under PEI-3, where the accused has counsel, the prosecutor must negotiate with that lawyer. For an adult without counsel, the prosecutor must explain the right to representation and, in criminal proceedings, available legal-aid services. The explanation must cover the nature of a guilty plea, the court's freedom from the agreement and the existence of mandatory orders. The prosecutor must not negotiate if the accused cannot understand that information or give informed consent. Where circumstances permit, the prosecutor must arrange to be accompanied by another prosecutor or the investigator unless negotiations take place in writing. The directive separately prohibits negotiating with an unrepresented accused under 18 in criminal proceedings; the adult approach must not simply be transferred to youth cases.

Section 606(1.1) of the Criminal Code governs judicial acceptance of a guilty plea. The accused must plead voluntarily, understand the nature and consequences of the plea and the essential elements admitted, and understand that the court is not bound by an agreement; the facts must support the charge. The prosecutor should not exploit detention, confusion or an unexplained consequence to obtain an uninformed admission.

Victim information and consultation requirements must also be respected where applicable. Consultation permits the prosecutor to understand the effects of the proposed resolution and explain the decision. It does not transfer the public decision to the victim or establish an unrestricted veto. The court retains its own role concerning the plea and the sentence.

The responsibilities toward an unrepresented accused also extend to the hearing. In R. v. Kahsai, 2023 SCC 20, paragraphs 53–57, the Court emphasized the prosecutor's duty to cooperate with the judge in preserving a fair process. Counsel must frankly alert the court when they suspect that the accused is failing to present available legal proof of the facts. These responsibilities supplement the disclosure duty; they do not make the prosecutor the accused's lawyer or guarantee that assistance from the court and prosecution will suffice in every case. The trial fairness lesson distinguishes judicial assistance, defence representation and assistance to the court.

Evidence-based submissions and correction of mistakes

Fair advocacy (plaidoirie équitable) connects a requested conclusion to admissible evidence and the applicable law. Counsel may argue that a witness is reliable and identify the reasons. Personal assurances of honesty, facts known only outside the record and appeals to fear or hostility cannot replace proof. The prosecutor's standing as a public officer must not be used to add supposed evidence to the case.

Cross-examination may be firm and searching while remaining relevant, honest and respectful. Sections 112, 116 and 117 of the Lawyers' Code require respectful conduct and prohibit misleading the court and improper handling of evidence. Questions should not assume facts known to be false or evade an exclusion ruling by putting the excluded allegation into the question. The accused's exercise of procedural rights does not itself justify an adverse inference; any proposed use of silence or prior testimony requires its specific legal analysis.

If counsel misstates the record or learns that a material premise was wrong, the response should address the actual error promptly. Correct the assertion, provide any required disclosure and assist the court in deciding whether further measures are needed. JurisClasseur discusses advocacy and its limits at nos 261–291. Retaliating against improper defence advocacy with similar misconduct compounds the problem.

Distinguish accountability from the remedy sought

Classify the decision before selecting a review route

Prosecutorial discretion (pouvoir discrétionnaire du poursuivant) covers different kinds of decisions. In R. v. Varennes, 2025 SCC 22, paragraphs 39–62, the majority distinguished core decisions about the nature and extent of prosecution from other decisions governing how proceedings are conducted. Under a superior court's inherent jurisdiction, interference with the former requires abuse of process. Other decisions can attract a less demanding standard, with appropriate deference; the standard depends on the decision and its context.

Charter remedies provide a distinct route when the relevant conditions are established. It would therefore be wrong to classify every disclosure failure, objection or statutory consent decision as insulated from review unless bad faith is proved. It would equally be wrong to treat disagreement with a charge as an ordinary appeal from the prosecutor's assessment. The challenged act, the court's jurisdiction and the requested order must each be identified.

A professional complaint, an internal service review and an application in the criminal proceeding address different questions. A breach may require correction without justifying termination of the prosecution. An accused seeking a particular remedy must establish its legal conditions; disciplinary criticism alone does not establish entitlement to a stay or a new trial. The lessons on Charter remedies and criminal appeals develop those remedial requirements.

Practice Checklist

• Identify the prosecution service, applicable directives and any distinct statutory regime.
• Assess the evidentiary basis and public interest separately, then reassess material changes.
• Consider reliable defence representations without shifting the burden of proof.
• Disclose relevant favourable and unfavourable information and justify lawful restrictions.
• Record material changes in witness accounts without coaching or promising unjustified secrecy.
• Negotiate through counsel where required and protect the understanding of a self-represented accused.
• Ground submissions in admissible evidence, correct mistakes and preserve fair treatment.
• Identify the decision, legal duty, review route and remedy instead of assuming an automatic outcome.