Legal Ethics for Crown Attorneys on Appeal

While there is extensive legal literature and case law addressing the role and ethical responsibilities of Crown attorneys, questions about that role and those responsibilities at the appellate stage are largely absent from the literature and somewhat scattered across the case law. In this article, the authors seek to address this gap by answering four key questions. The first is whether the ethical obligations of the Crown, as expressed in R. v. Boucher, apply at the appellate stage. Against the backdrop of this first question, the authors discuss when an appellate Crown may bring an appeal from an acquittal or from a sentence, when an appellate Crown may make concessions or abandon an appeal, and when an appellate Crown may take a different position than the Crown attorney at trial or upon sentence. The answers to these questions are important, though not especially surprising. The authors argue that both Boucher and prosecutorial discretion require appellate Crowns to resolutely — but fairly — seek justice on appeal, as at trial, even when this means taking a different position than the trial Crown or conceding an error by the trial Crown or the trial judge.