Considerations for the Special Prosecutor Office

One of the campaign promises made by the Conservatives was that they would establish a special prosecutor's office which would deal with crime committed by government officials. Crime of that sort, as we have seen over the past 12 years of Liberal corruption and crime, is rarely if ever prosecuted. It would be a sign of maturity of our nation if we took active steps to put crooked politicians behind bars.

The first thing that is needed in establishing such an office is to understand the complex steps involved in prosecuting any crime. There are two stages - investigation, and then prosecution. Here is a summary of what is involved:

The Prosecution Process
1. Investigation

The investigation of crime involves a variety of techniques used by police or other investigators which include
- informants
- undercover agents
- surveillance, in person or by video
- wiretapping, which will involve prosecutors obtaining judicial permission
- room or vehicle audio or video bugs, also involving prosecutors obtaining judicial permission
- search and seizure of documents and other items
- examination of and seizure of bank accounts, business records and telephone records
- witness interviews
- forensic analysis of fingerprints, handwriting, hair and fiber and other evidence

During the investigation, there is often consultation with prosecutors for advice on what evidence is required and should be obtained. Specially authorized prosecutors make applications to judges for wiretaps, video surveillance and bugs. Investigators themselves normally apply for search warrants.

When the investigation is complete, the investigators prepare a brief for presentation to the prosecutors.

2. Prosecution

Prosecutors prepare to present the case to a court by taking steps which include

- full review of the investigation brief, with consultation with the investigators
- review of the law in all pertinent areas
- consideration of the charges that the evidence will support
- evaluation of the admissibility in court of all items of evidence
- evaluation of the reliability and value of all witnesses
- consideration of the chances of success in respect to all potential charges
- drafting and filing the indictment
- preparation of a trial plan, with the sequence of witnesses and presentation of evidence
- preparation of witnesses through interviews and instruction
- preparation of notes for the examination of each witness
- organization of all documentary evidence, through computerized databases
- organization of other evidence, including a plan for the introduction of each item in court
- preparation of argument for anticipated objections from the defence
- preparation for cross examination of the accused or defence witnesses
- preparation of material to be disclosed to the defence
- preparation of arguments to deal with interlocutory Charter or organizational applications by the prosecution
- consideration of any plea bargain offers from the defence
- preparation of an opening statement to the court

All of these actions will take place before the first day of the trial.

Once the trial starts, it is incumbent on the prosecutor to stick to the plan for presenting evidence as much as circumstances permit, and to stay light on his feet to deal with events without losing sight of his goal.

Examination and cross-examination of witnesses is an art, not a science or an administrative task, and it takes great experience to do it effectively, especially with difficult, dishonest or reluctant witnesses.

At the conclusion of the evidence, the prosecutor will make a closing address to the court. If there is a guilty verdict, the prosecutor will speak to the matter of appropriate sentence.

It is evident from the summary above that in the case of government prosecutions, an adequate staff of highly experienced people will be needed to follow paper trails, organize evidence, and deal with layers of lies. The Conservatives must establish an office capable of dealing with highly experienced crooks.

Some of the questions which will need to be settled in setting up the special prosecutor office include:

Will the special prosecutor’s office use its own independent investigators (probably retired commercial crime police) or the RCMP?

How large will the office be? It will require experienced support staff and lawyers as well as computer equipment and operators.

Will the Accountability Act create crimes, or just impose duties without penalties?

Will the Accountability Act provide for suspension or dismissal of bureaucrats or elected officials when evidence of wrongdoing is found?

Will the Accountability Act override the Privacy Act and other statutes which provide a cloak for wrongdoing?

Will the Accountability Act provide for authorized surveillance and wiretaps to investigate crimes against the Act?

How will the special prosecutor’s office initiate cases? Referral from the government or Auditor General? From information received?

Will it have exclusive jurisdiction of any kind? Will it have the power to assume jurisdiction over police investigations?

Will it look forward only, or will it also deal with the Chretien/Martin criminality?

Over time, many more questions will have to be raised and answered. It will be a challenge to the new Conservative government to give the right answers.