Duhaime's Law Dictionary


Prosecutorial Discretion Definition:

Discretionary powers exercised by the government's prosecution service such as whether to prosecute charge recommended by police, to stay an ongoing proceeding, plea bargaining, or the taking over of a private prosecution.

Related Terms: Prosecute, Proprio Motu

Ontario Provincial Court judge David Vanek wrote in an article he published in the Canadian Criminal Law Quarterly entitled Prosecutorial Discretion:

"Prosecutorial discretion refers to the discretion exercised by the Attorney-General in matters within his authority in relation to the prosecution of criminal offences. The Attorney-General is the chief law officer of the Crown and a member of the Cabinet. He heads a ministry of the government that exercises the authority over the administration of justice and the constitution and the maintenance and organization of the courts that is conferred upon the provincial government by the constitution....

" (T)he Attorney-General is the prosecutor and hence, in effect, a
litigant in every criminal case except.... In practice, the Attorney-General acts in individual cases through the numerous Crown Attorneys and Assistant Crown Attorneys who are appointed as his agents to prosecute for criminal offences on his behalf."

In Krieger, Canada's Supreme Court wrote:

"In our theory of government, it is the sovereign who holds the power to prosecute his or her subjects. A decision of the Attorney General, or of his or her agents, within the authority delegated to him or her by the sovereign is not subject to interference by other arms of government. An exercise of prosecutorial discretion will, therefore, be treated with deference by the courts and by other members of the executive, as well as statutory bodies like provincial law societies.

"Without being exhaustive, we believe the core elements of prosecutorial discretion encompass the following: (a) the discretion whether to bring the prosecution of a charge laid by police; (b) the discretion to enter a stay of proceedings in either a private or public prosecution... (c) the discretion to accept a guilty plea to a lesser charge; (d) the discretion to withdraw from criminal proceedings altogether ... and (e) the discretion to take control of a private prosecution...

"Significantly, what is common to the various elements of prosecutorial discretion is that they involve the ultimate decisions as to whether a prosecution should be brought, continued or ceased, and what the prosecution ought to be for. Put differently, prosecutorial discretion refers to decisions regarding the nature and extent of the prosecution and the Attorney General’s participation in it. Decisions that do not go to the nature and extent of the prosecution, i.e., the decisions that govern a Crown prosecutor’s tactics or conduct before the court, do not fall within the scope of prosecutorial discretion.

"Within the core of prosecutorial discretion, the courts cannot interfere except in such circumstances of flagrant impropriety or in actions for malicious prosecution."

Justice Lewis Franklin Powell (1907-1998) of the United States Supreme Court, in Wayte, used these words in reference to prosecutorial discretion:

"This broad discretion rests largely on the recognition that the decision to prosecute is particularly ill-suited to judicial review. Such factors as the strength of the case, the prosecution's general deterrence value, the Government's enforcement priorities, and the case's relationship to the Government's overall enforcement plan are not readily susceptible to the kind of analysis the courts are competent to undertake. Judicial supervision in this area, moreover, entails systemic costs of particular concern. Examining the basis of a prosecution delays the criminal proceeding, threatens to chill law enforcement by subjecting the prosecutor's motives and decision-making to outside inquiry, and may undermine prosecutorial effectiveness by revealing the Government's enforcement policy. All these are substantial concerns that make the courts properly hesitant to examine the decision whether to prosecute."

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