The Ontario Government has decided to put major case crowns in police stations in order to provide pre-charge advice to police. This is a reasonable idea in that it will allow the police access to early advice with respect to investigations and prosecutions. Based upon this advice they will be able to allocate resources to prosecutions in the most effective manner and, hopefully, will be able to avoid steps which may hinder the prosecution at a later date.
These prosecutors will be major case Crowns with experience in these matters. Once they start giving advice with respect to the investigation it is likely that they will be excluded from the prosecution if the defense puts the conduct of the investigation into issue. As soon as the defense alleges improper conduct by the police it is likely that the advice given by the Crowns will come into evidence as the police officers attempt to establish the bona fides of their investigation.
Will the fact that these Crowns have given advice with respect to the conduct of the investigation disqualify their other colleagues from the Major Case Unit from acting as Crowns in a hearing into the propriety of an investigation? There is a long line of authority that says a lawyer cannot act as counsel in a matter in which another lawyer in his firm will give evidence. I wonder whether it would have been a good idea to create an entirely separate unit called investigative support and attach the Crowns officially to that unit so that it can be argued that there is an effective wall between the investigation and prosecution of a major case.
