The exercise of prosecutorial discretion refers to all Crown decision-making “regarding the nature and extent of the prosecution and the Attorney General's participation in it" (Krieger v. Law Society of Alberta, 2002 SCC 65 at para. 47).
By way of example, the Supreme Court of Canada has affirmed that the following decisions constitute exercises of prosecutorial discretion, whether to:
- “bring the prosecution of a charge laid by police” (Krieger at para, 46);
- “enter a stay of proceedings in either a private or public prosecution, as codified in the Criminal Code … ss. 579 and 579.1” (Krieger at para, 46);
- “accept a guilty plea to a lesser charge” (Krieger at para, 46);
- “withdraw from criminal proceedings altogether: R. v. Osborne (1975), 25 C.C.C. (2d) 405 (N.B.C.A.)” (Krieger at para, 46);
- “take control of a private prosecution: R. v. Osiowy (1989), 50 C.C.C. (3d) 189 (Sask. C.A.)” (Krieger at para, 46);
- “repudiate a plea agreement (as in R. v. Nixon, 2011 SCC 34)” (R. v. Anderson, 2014 SCC 41 at para. 44);
- “pursue a dangerous offender application” (Anderson at para. 44);
- “prefer a direct indictment” (Anderson at para. 44);
- “charge multiple offences” (Anderson at para. 44);
- “negotiate a plea” (Anderson at para. 44);
- “proceed summarily or by indictment” (Anderson at para. 44); and
- “ initiate an appeal” (Anderson at para. 44).
By way of contrast, a Crown Attorney’s constitutional duties are not a matter of prosecutorial discretion. As Justice Moldaver states in Anderson at para. 45:
… the Crown possesses no discretion to breach the Charter rights of an accused. In other words, prosecutorial discretion provides no shield to a Crown prosecutor who has failed to fulfill his or her constitutional obligations such as the duty to provide proper disclosure to the defence.
Crown Attorneys also possess no discretion to breach their duties of professional conduct. As Justices Iacobuci and Major state in Krieger at para. 50:
There is a clear distinction between prosecutorial discretion and professional conduct. It is only the latter that can be regulated by the Law Society. The Law Society has the jurisdiction to investigate any alleged breach of its ethical standards, even those committed by Crown prosecutors in connection with their prosecutory discretion. This is important as the interests of the Attorney General in promoting the administration of justice may differ from those of the Law Society in regulating the legal profession and maintaining public confidence.