Crown1. Meaning of the "Crown"
2. The Criminal "Crown"
3. Crown Counsel
4. Crown Immunity
1. Meaning of the "Crown". McAteer v. Canada (Attorney General)
In McAteer v. Canada (Attorney General) (Ont CA, 2014), in which a Charter challenge to the citizenship oath to the Queen was dismissed, the Court of Appeal clarified that such references in the oath (and apparently generally for legal matters) were not to the Queen of England as an individual person, but rather to "our form of government":
 For the reasons that follow I would dismiss the appeal and allow the cross-appeal. The appellants’ arguments are based on a literal “plain meaning” interpretation of the oath to the Queen in her personal capacity. Adopting the purposive approach to interpretation mandated by the Supreme Court of Canada, leads to the conclusion that their interpretation is incorrect because it is inconsistent with the history, purpose and intention behind the oath. The oath in the Act is remarkably similar to the oath required of members of Parliament and the Senate under The Constitution Act, 1867. In that oath, the reference to the Queen is symbolic of our form of government and the unwritten constitutional principle of democracy. The harmonization principle of interpretation leads to the conclusion that the oath in the Act should be given the same meaning.
2. The Criminal "Crown". R v Anderson
In R v Anderson (SCC, 2014) the Supreme Court of Canada took the oppourtunity to expound on judicial review available against the Crown with respect to prosecutorial discretion (and abuse of process, below). It held that while all Crown decisions are reviewable for abuse of process, prosecutorial decisions are only reviewable for abuse of process:
 All Crown decision making is reviewable for abuse of process. However, as I will explain, exercises of prosecutorial discretion are only reviewable for abuse of process. In contrast, tactics and conduct before the court are subject to a wider range of review. The court may exercise its inherent jurisdiction to control its own processes even in the absence of abuse of process.
(a) Prosecutorial Discretion
 This Court has repeatedly affirmed that prosecutorial discretion is a necessary part of a properly functioning criminal justice system: Beare, at p. 410; R. v. T. (V.), 1992 CanLII 88 (SCC),  1 S.C.R. 749, at pp. 758-62; R. v. Cook, 1997 CanLII 392 (SCC),  1 S.C.R. 1113, at para. 19. In Miazga v. Kvello Estate, 2009 SCC 51 (CanLII),  3 S.C.R. 339, at para. 47, the fundamental importance of prosecutorial discretion was said to lie, “not in protecting the interests of individual Crown attorneys, but in advancing the public interest by enabling prosecutors to make discretionary decisions in fulfilment of their professional obligations without fear of judicial or political interference, thus fulfilling their quasi-judicial role as ‘ministers of justice’”. More recently, in Sriskandarajah v. United States of America, 2012 SCC 70 (CanLII),  3 S.C.R. 609, at para. 27, this Court observed that “[n]ot only does prosecutorial discretion accord with the principles of fundamental justice — it constitutes an indispensable device for the effective enforcement of the criminal law”.
 Unfortunately, subsequent to this Court’s decision in Krieger v. Law Society of Alberta, 2002 SCC 65 (CanLII),  3 S.C.R. 372, confusion has arisen as to what is meant by “prosecutorial discretion” and the law has become cloudy. The present appeal provides an opportunity for clarification.
 In Krieger, this Court provided the following description of prosecutorial discretion:
“Prosecutorial discretion” is a term of art. It does not simply refer to any discretionary decision made by a Crown prosecutor. Prosecutorial discretion refers to the use of those powers that constitute the core of the Attorney General’s office and which are protected from the influence of improper political and other vitiating factors by the principle of independence. [para. 43] The Court went on to provide the following examples of prosecutorial discretion: whether to bring the prosecution of a charge laid by police; whether to enter a stay of proceedings in either a private or public prosecution; whether to accept a guilty plea to a lesser charge; whether to withdraw from criminal proceedings altogether; and whether to take control of a private prosecution (para. 46). The Court continued:
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. Rather, such decisions are governed by the inherent jurisdiction of the court to control its own processes once the Attorney General has elected to enter into that forum. [Emphasis added; emphasis in original deleted; para. 47.] Since Krieger, courts have struggled with the distinction between prosecutorial discretion, and tactics and conduct. The use of the word “core” in Krieger has led to a narrow definition of prosecutorial discretion, notwithstanding the expansive language used in Krieger to define the term, namely: “. . . decisions regarding the nature and extent of the prosecution and the Attorney General’s participation in it” (para. 47). Difficulty in defining the term has also led to confusion regarding the standard of review by which particular Crown decisions are to be assessed.
 The current appeal presents a good illustration of both problems. As noted earlier, the Newfoundland and Labrador Court of Appeal split on the issue of how to characterize the Crown’s decision to tender the Notice. Welsh J.A. held that it was a matter of “core” prosecutorial discretion, whereas Green C.J.N.L. and Rowe J.A. (following R. v. Gill, 2012 ONCA 607 (CanLII), 112 O.R. (3d) 423, at paras. 54-56), considered it to be a tactical decision and thus “outside [the] core” (para. 49).
 The court also diverged on the applicable standard of review. Welsh J.A. held that the distinction between core decisions and decisions falling outside the core was of no consequence as both types of decisions were reviewable on the same standard — the standard articulated in Gill, in which the Ontario Court of Appeal held that the decision to tender the Notice was reviewable if it (1) undermined the integrity of the administration of justice; (2) operated in a manner that rendered the sentencing proceedings fundamentally unfair; (3) was arbitrary; or (4) resulted in a limit on the accused’s liberty that was grossly disproportionate to the state interest in pursuing a particular course of action (Gill, at para. 59). Green C.J.N.L. and Rowe J.A. disagreed. In their view, tactical decisions (decisions “outside the core”) were reviewable according to the Gill standard, whereas “core” prosecutorial discretion was reviewable solely for abuse of process. The diverging views present in this case, and in many others, demonstrate the unsatisfactory state of the law.
 In an effort to clarify, I think we should start by recognizing that the term “prosecutorial discretion” is an expansive term that covers all “decisions regarding the nature and extent of the prosecution and the Attorney General’s participation in it” (Krieger, at para. 47). As this Court has repeatedly noted, “[p]rosecutorial discretion refers to the discretion exercised by the Attorney-General in matters within his authority in relation to the prosecution of criminal offences” (Krieger, at para. 44, citing Power, at p. 622, quoting D. Vanek, “Prosecutorial Discretion” (1988), 30 Crim. L.Q. 219, at p. 219 (emphasis added)). While it is likely impossible to create an exhaustive list of the decisions that fall within the nature and extent of a prosecution, further examples to those in Krieger include: the decision to repudiate a plea agreement (as in R. v. Nixon, 2011 SCC 34 (CanLII),  2 S.C.R. 566); the decision to pursue a dangerous offender application; the decision to prefer a direct indictment; the decision to charge multiple offences; the decision to negotiate a plea; the decision to proceed summarily or by indictment; and the decision to initiate an appeal. All pertain to the nature and extent of the prosecution. As can be seen, many stem from the provisions of the Code itself, including the decision in this case to tender the Notice.
 In sum, prosecutorial discretion applies to a wide range of prosecutorial decision making. That said, care must be taken to distinguish matters of prosecutorial discretion from constitutional obligations. The distinction between prosecutorial discretion and the constitutional obligations of the Crown was made in Krieger, where the prosecutor’s duty to disclose relevant evidence to the accused was at issue:
In Stinchcombe, supra, the Court held that the Crown has an obligation to disclose all relevant information to the defence. While the Crown Attorney retains the discretion not to disclose irrelevant information, disclosure of relevant evidence is not, therefore, a matter of prosecutorial discretion but, rather, is a prosecutorial duty. [Emphasis added; para. 54.]Manifestly, 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.
(i) The Standard of Review for Prosecutorial Discretion
 The many decisions that Crown prosecutors are called upon to make in the exercise of their prosecutorial discretion must not be subjected to routine second-guessing by the courts. The courts have long recognized that decisions involving prosecutorial discretion are unlike other decisions made by the executive: see M. Code, “Judicial Review of Prosecutorial Decisions: A Short History of Costs and Benefits, in Response to Justice Rosenberg” (2009), 34 Queen’s L.J. 863, at p. 867. Judicial non-interference with prosecutorial discretion has been referred to as a “matter of principle based on the doctrine of separation of powers as well as a matter of policy founded on the efficiency of the system of criminal justice” which also recognizes that prosecutorial discretion is “especially ill-suited to judicial review”: Power, at p. 623. In Krieger, the Court discussed the separation of powers doctrine as a basis for judicial deference to prosecutorial discretion:
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 . . . . [para. 45] The Court also noted the more practical problems associated with regular review of prosecutorial discretion:
The quasi-judicial function of the Attorney General cannot be subjected to interference from parties who are not as competent to consider the various factors involved in making a decision to prosecute. To subject such decisions to political interference, or to judicial supervision, could erode the integrity of our system of prosecution. [para. 32] Manifestly, prosecutorial discretion is entitled to considerable deference. It is not, however, immune from all judicial oversight. This Court has repeatedly affirmed that prosecutorial discretion is reviewable for abuse of process: Krieger, at para. 32; Nixon, at para. 31; Miazga, at para. 46.
 The jurisprudence pertaining to the review of prosecutorial discretion has employed a range of terminology to describe the type of prosecutorial conduct that constitutes abuse of process. In Krieger, this Court used the term “flagrant impropriety” (para. 49). In Nixon, the Court held that the abuse of process doctrine is available where there is evidence that the Crown’s decision “undermines the integrity of the judicial process” or “results in trial unfairness” (para. 64). The Court also referred to “improper motive[s]” and “bad faith” in its discussion (para. 68).
 Regardless of the precise language used, the key point is this: abuse of process refers to Crown conduct that is egregious and seriously compromises trial fairness and/or the integrity of the justice system. Crown decisions motivated by prejudice against Aboriginal persons would certainly meet this standard.
 In sum, prosecutorial discretion is reviewable solely for abuse of process. The Gill test applied by the Newfoundland and Labrador Court of Appeal was developed at a time when courts were struggling with the post-Krieger “core” versus “outside the core” dichotomy. To the extent the Gill test suggests that conduct falling short of abuse of process may form a basis for reviewing prosecutorial discretion, respectfully, it should not be followed.
(ii) The Threshold Evidentiary Burden
 The burden of proof for establishing abuse of process lies on the claimant, who must prove it on a balance of probabilities: Cook, at para. 62; R. v. O’Connor, 1995 CanLII 51 (SCC),  4 S.C.R. 411, at para. 69, per L’Heureux-Dubé J.; R. v. Jolivet, 2000 SCC 29 (CanLII),  1 S.C.R. 751, at para. 19. However, given the unique nature of prosecutorial discretion — specifically, the fact that the Crown will typically (if not always) be the only party who will know why a particular decision was made ― this Court in Nixon recognized that where prosecutorial discretion is challenged, the Crown may be required to provide reasons justifying its decision where the claimant establishes a proper evidentiary foundation: para. 60.
 In Nixon, this Court noted the following reasons as to why there must be a “proper evidentiary foundation” before the abuse of process claim should proceed:
. . . mandating a preliminary determination on the utility of a Charter-based inquiry is not new: R. v. Pires, 2005 SCC 66 (CanLII),  3 S.C.R. 343. Similar thresholds are also imposed in other areas of the criminal law, they are not an anomaly. Threshold requirements may be imposed for pragmatic reasons alone. As this Court observed in Pires (at para. 35): Nixon involved the Crown’s repudiation of a plea agreement. The Court held that the repudiation of a plea agreement was “a rare and exceptional event” that met the evidentiary threshold and justified an inquiry into the propriety of the Crown’s decision: Nixon, at para. 63. Indeed, the evidence in Nixon was that only two other plea agreements had been repudiated in Alberta’s history. As a result, the Court held that
For our justice system to operate, trial judges must have some ability to control the course of proceedings before them. One such mechanism is the power to decline to embark upon an evidentiary hearing at the request of one of the parties when that party is unable to show a reasonable likelihood that the hearing can assist in determining the issues before the court.Quite apart from any such pragmatic considerations, there is good reason to impose a threshold burden on the applicant who alleges that an act of prosecutorial discretion constitutes an abuse of process. Given that such decisions are generally beyond the reach of the court, it is not sufficient to launch an inquiry for an applicant to make a bare allegation of abuse of process. [Emphasis added; paras. 61-62.]
to the extent that the Crown is the only party who is privy to the information, the evidentiary burden shifts to the Crown to enlighten the court on the circumstances and reasons behind its decision to resile from the agreement. That is, the Crown must explain why and how it made the decision not to honour the plea agreement. The ultimate burden of proving abuse of process remains on the applicant and, as discussed earlier, the test is a stringent one. However, if the Crown provides little or no explanation to the court, this factor should weigh heavily in favour of the applicant in successfully making out an abuse of process claim. [para. 63] Requiring the claimant to establish a proper evidentiary foundation before embarking on an inquiry into the reasons behind the exercise of prosecutorial discretion respects the presumption that prosecutorial discretion is exercised in good faith: Application under s. 83.28 of the Criminal Code (Re), 2004 SCC 42 (CanLII),  2 S.C.R. 248, at para. 95. It also accords with this Court’s statement in Sriskandarajah, at para. 27, that “prosecutorial authorities are not bound to provide reasons for their decisions, absent evidence of bad faith or improper motives” (emphasis added).
 Finally, I note that the content of a Crown policy or guideline may be relevant when a court is considering a challenge to the exercise of prosecutorial discretion. Policy statements or guidelines are capable of informing the debate as to whether a Crown prosecutor’s conduct was appropriate in the particular circumstances. See R. J. Frater, Prosecutorial Misconduct (2009), at p. 259. For example, a decision by a Crown prosecutor that appears to contravene a Crown policy or guideline may provide some evidence that assists the claimant in establishing the threshold evidentiary foundation. However, as the intervener the Director of Public Prosecutions of Canada submits, Crown policies and guidelines do not have the force of law, and cannot themselves be subjected to Charter scrutiny in the abstract: see R. v. Beaudry, 2007 SCC 5 (CanLII),  1 S.C.R. 190, at para. 45 (discussing police practices manuals).
3. Crown Counsel. R v Fercan Developments Inc.
In R v Fercan Developments Inc. (Ont CA, 2016) the Court of Appeal comments as follows on the role of Crown counsel:
 When discharging their role, Crown counsel have an obligation to ensure that the power of the state is used only in pursuit of impartial justice: Oniel v. Marks (2001), 2001 CanLII 24091 (ON CA), 141 O.A.C. 201 (C.A.), at para. 67. Crown counsel must discharge their role with the utmost integrity and sound judgment, remaining open to the possibility of the innocence of the accused and avoiding “tunnel vision”: R. v. Delchev, 2015 ONCA 381 (CanLII), 126 O.R. (3d) 267, at paras. 64-65. Though these principles were articulated in the context of criminal prosecutions, they remain relevant in proceedings like this one.. R v Anderson
In R v Anderson (SCC, 2014) the Supreme Court of Canada took the oppourtunity to expound on judicial review available against the Crown with respect to tactics and conduct before the court:
(b) Tactics and Conduct Before the Court
 The second category in the framework for review of Crown activity was referred to in Krieger as “tactics or conduct before the court”: para. 47. As stated in Krieger, “such decisions are governed by the inherent jurisdiction of the court to control its own processes once the Attorney General has elected to enter into that forum” (para. 47).
 Superior courts possess inherent jurisdiction to ensure that the machinery of the court functions in an orderly and effective manner: R. v. Cunningham, 2010 SCC 10 (CanLII),  1 S.C.R. 331, at para. 18; Ontario v. Criminal Lawyers’ Association of Ontario, 2013 SCC 43 (CanLII),  3 S.C.R. 3, at para. 26. Similarly, in order to function as courts of law, statutory courts have implicit powers that derive from the court’s authority to control its own process: Cunningham, at para.18. This jurisdiction includes the power to penalize counsel for ignoring rulings or orders, or for inappropriate behaviour such as tardiness, incivility, abusive cross-examination, improper opening or closing addresses or inappropriate attire. Sanctions may include orders to comply, adjournments, extensions of time, warnings, cost awards, dismissals, and contempt proceedings.
 While deference is not owed to counsel who are behaving inappropriately in the courtroom, our adversarial system does accord a high degree of deference to the tactical decisions of counsel. In other words, while courts may sanction the conduct of the litigants, they should generally refrain from interfering with the conduct of the litigation itself. In R. v. S.G.T., 2010 SCC 20 (CanLII),  1 S.C.R. 688, at paras. 36-37, this Court explained why judges should be very cautious before interfering with tactical decisions:
In an adversarial system of criminal trials, trial judges must, barring exceptional circumstances, defer to the tactical decisions of counsel . . . . [C]ounsel will generally be in a better position to assess the wisdom, in light of their overall trial strategy, of a particular tactical decision than is the trial judge. By contrast, trial judges are expected to be impartial arbiters of the dispute before them; the more a trial judge second-guesses or overrides the decisions of counsel, the greater is the risk that the trial judge will, in either appearance or reality, cease being a neutral arbiter and instead become an advocate for one party. . . . Crown counsel is entitled to have a trial strategy and to modify it as the trial unfolds, provided that the modification does not result in unfairness to the accused: Jolivet, at para. 21. Likewise, as this Court recently held in R. v. Auclair, 2014 SCC 6 (CanLII),  1 S.C.R. 83, a judge may exceptionally override a Crown tactical decision in order to prevent a Charter violation.
The corollary of the preceding is that trial judges should seldom take it upon themselves, let alone be required, to second-guess the tactical decisions of counsel. Of course, trial judges are still required to “make sure that [the trial] remains fair and is conducted in accordance with the relevant laws and the principles of fundamental justice”: Lavallee, Rackel & Heintz v. Canada (Attorney General), 2002 SCC 61 (CanLII),  3 S.C.R. 209, at para. 68.
 Finally, as with all Crown decision making, courtroom tactics or conduct may amount to abuse of process, but abuse of process is not a precondition for judicial intervention as it is for matters of prosecutorial discretion.
4. Crown Immunity. Canada (Attorney General) v. Thouin (SCC, 2017)
In Canada (Attorney General) v. Thouin (SCC, 2017) the Supreme Court of Canada sets out the basics of when crown immunity may be overriden by statute (here the federal Crown Liability and Protection Act interpreted in acordance with the federal Interpretation Act), in the context of a party's attempt to examine for discovery the non-party chief investigator of the Competition Bureau within an otherwise private civil action. In this specific statutory context, the court denied the party the right to examine as sought, with the following broad comments:
 Crown immunity is deeply entrenched in our law. The Court has held that to override this immunity, which originated in the common law, requires clear and unequivocal legislative language. Over the years, both Parliament and the provincial legislatures have gradually placed limits on this immunity in order to draw the legal position of the Crown and its servants closer to that of other Canadian litigants. This is true in, among other areas, that of civil liability. Ultimately, it is up to the courts to give meaning to legislative provisions that narrow the limits of the immunity and to determine its scope, where necessary.------------------------------
A. Crown Immunity
 Crown immunity has evolved over time in English and Canadian legislation and case law. At common law, the Crown could in times past be sued in contract or on a proprietary claim (G. Morley, in K. Horsman and G. Morley, eds., Government Liability: Law and Practice (loose‑leaf), at p. 1‑40). However, it had “a number of prerogatives that rendered civil litigation against it very difficult” (ibid.). This was because the Crown was exempt from several obligations that applied to ordinary litigants, including the obligation to provide documentary or oral discovery (ibid.).
 Thus, because of its immunity, the Crown was historically exempt from the obligation to submit to discovery in proceedings in which it was a party. This was the case even though it could require the opposing party to be examined for discovery, and even where it was acting as plaintiff (Morley, at p. 1‑40; see also P. W. Hogg, P. J. Monahan and W. K. Wright, Liability of the Crown (4th ed. 2011), at p. 90). This particular immunity was recognized in Canadian court decisions that predated the statutory provisions on Crown liability. The Alberta Court of Appeal explained the immunity as follows in Canada Deposit Insurance Corp. v. Code (1988), 1988 ABCA 36 (CanLII), 49 D.L.R. (4th) 57:
In my view, the rule that the Crown and its agents are not subject to discovery does not arise from the assertion of a Crown prerogative but from an accident of history. Nevertheless, I am bound by precedent to require statutory authority, strictly construed, authorizing discovery of a Crown agent or officer. [p. 61] If this immunity meant that the Crown was not then required to submit to discovery in proceedings in which it was a party, it stands to reason that, at common law, the Crown was certainly not required to do so in proceedings in which it was not a party.
 That being said, there is a presumption that the common law remains unchanged absent a clear and unequivocal expression of legislative intent. In Lizotte v. Aviva Insurance Company of Canada, 2016 SCC 52 (CanLII),  2 S.C.R. 521, this Court summarized the case law on this point and noted “that it must be presumed that a legislature does not intend to change existing common law rules in the absence of a clear provision to that effect” (para. 56; see also Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42 (CanLII),  2 S.C.R. 157, at para. 39; Slaight Communications Inc. v. Davidson, 1989 CanLII 92 (SCC),  1 S.C.R. 1038, at p. 1077; and R. Sullivan, Sullivan on the Construction of Statutes (6th ed. 2014), at pp. 504‑5).
 In this regard, s. 17 of the Interpretation Act now serves as a starting point in each case in which the Crown might have immunity. It reads as follows: “No enactment is binding on Her Majesty or affects Her Majesty or Her Majesty’s rights or prerogatives in any manner, except as mentioned or referred to in the enactment.” In short, unless the immunity is clearly lifted, the Crown continues to have it. In Friends of the Oldman River Society v. Canada (Minister of Transport), 1992 CanLII 110 (SCC),  1 S.C.R. 3, the Court recognized that s. 17 is indeed the starting point for the analysis regarding immunity and that, as a result, where there are no express words in an Act to the effect that the Act applies to the Crown, “it . . . remains to be decided whether the Crown is bound by necessary implication” (p. 50).
 In the past, language similar to the words “except as mentioned or referred to” in s. 17 had been used in s. 16 of the Interpretation Act, R.S.C. 1970, c. I‑23, which provided that no enactment could bind the Crown, “except only as therein mentioned or referred to”. In Oldman River and in Alberta Government Telephones v. Canada (Canadian Radio‑television and Telecommunications Commission), 1989 CanLII 78 (SCC),  2 S.C.R. 225, the Court interpreted this wording and concluded that a legislature must use express language to lift Crown immunity unless it can be inferred that the purpose of the Act would be wholly frustrated if the Crown were not bound (see also H. Brun, G. Tremblay and E. Brouillet, Droit constitutionnel (6th ed. 2014), at para. IX. 90).
 With these principles in mind, it must therefore be determined whether, in the instant case, Parliament has lifted the common law Crown immunity from discovery and, if so, to what extent.
B. Limits on the Crown’s Immunity From Discovery
 In about 1950, Parliament, drawing on the Crown Proceedings Act, 1947 (U.K.), 10 & 11 Geo. 6, c. 44, that had been enacted in the United Kingdom, began to impose limits on the scope of the common law Crown immunity. In 1953, it passed the Crown Liability Act, S.C. 1952‑53, c. 30 (Morley, at p. 1‑41; Hogg, Monahan and Wright, at p. 9), which had the effect of expanding Crown liability and thus bringing the Crown’s legal position closer to that of ordinary litigants. That Crown Liability Act was the predecessor of the CLPA that is at issue in this appeal. Today, Crown immunity still exists at the federal level in the context of civil proceedings, but only within the limits set in the CLPA and the Federal Courts Act, R.S.C. 1985, c.F‑7, the scope of which Parliament remains free to change (Brun, Tremblay and Brouillet, at paras. IX. 72 to IX. 73). It follows that the Crown is not in exactly the same legal position as ordinary litigants, since it still retains certain residual privileges and immunities under the current legislation.