Critics say a memo from Alberta’s top two justice officials displays the sort of attitude toward the presumption of innocence that in the past has led to wrongful convictions.

“The ultimate goal of a Crown prosecutor is to see that the accused is convicted of any charges that are brought against him,” Alberta Justice deputy minister Tim Grant wrote in a July 22, 2014 memo signed on his behalf by deputy attorney general Kim Armstrong. “This, undoubtedly, is not the outcome the accused is hoping for.”

Grant is not a lawyer, but Armstrong is.

'If Crown prosecutors took this as their stated goal, it would certainly not lead to fair and just trials.' - Former Crown prosecutor Paul Moreau

CBC News obtained the internal memo and showed it to Paul Moreau, a former Crown prosecutor and lawyer for the association that represents Alberta prosecutors.

“I find that is just a stunningly wrong statement, particularly being a statement made by the deputy minister of justice,” Moreau said, adding later that, “if Crown prosecutors took this as their stated goal, it would certainly not lead to fair and just trials.

“It could lead to miscarriages of justice on a broad scale,” he said.

Both Moreau and D’Arcy DePoe, past president of the Criminal Lawyers’ Association of Alberta, cited a 1955 ruling of the Supreme Court of Canada. The ruling, they pointed out, is taught to all first-year law students.

‘It cannot be overemphasized that the purpose of a criminal prosecution is not to obtain a conviction,” the Supreme Court ruled in Boucher. “It is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime.

“The role of prosecutor excludes any notion of winning or losing,” the ruling further states.

Code of conduct

The lawyers also cited the Code of Conduct of the Law Society of Alberta.

“When engaged as a prosecutor, the lawyer’s primary duty is not to seek to convict, but to see that justice is done through a fair trial on the merits,” the code states.

Tim Grant

“The ultimate goal of a Crown prosecutor is to see that the accused is convicted of any charges that are brought against him,” Alberta Justice deputy minister Tim Grant wrote in a July 22, 2014 memo. (CBC)

Grant and Armstrong did not respond to interview requests made through Alberta Justice, but a justice department spokesperson provided a letter from them which served to retract and correct the memo.

The memo, however, was not retracted until nearly two months after its distribution. In the Sept. 15 retraction letter sent to the prosecution service, Grant and Armstrong apologize “for the inclusion of this incorrect statement” and say they “understand the significance of your concern in relation to this statement.

“We will ensure that any future correspondence and discussions that occur in relation to this memo will contain the correct reference to your duties and obligations,” the letter states.

Grant wrote the memo in relation to a dispute over whether the salaries, and names, of Crown prosecutors should be made public as part of a so-called sunshine list, a government transparency initiative advanced by former premier Alison Redford.

The Crown prosecutors believe releasing the information could reduce their safety. Grant argues in the memo that prosecutors face no greater risk than other front-line government workers who deal with the public in difficult situations.

Crown’s proper role

Moreau said the irony of the memo is that it reinforces the misconception that creates anger toward Crown prosecutors.

“Their role is sometimes misunderstood and everyday people, who don’t have a legal education, could easily believe that the role of the Crown is to seek a conviction and try and put them in jail.

“And people can become very angry with Crown prosecutors, just simply for doing their job,” he said.

DePoe said political pronouncements about getting tough on crime have caused many people to mistakenly believe the role of the prosecutor is to get convictions. If the public were properly educated about a prosecutor’s role, “that would lessen the pressure on prosecutors” from the public, he said.   

D’Arcy DePoe

Former Criminal Lawyers’ Association president D’Arcy DePoe said he is concerned by the biased attitude which seems to be revealed by the memo. (CBC)

DePoe said he is concerned by the biased attitude, or way of thinking, towards justice, which seems to be revealed by the memo.

“That (attitude) leads to a lack of of objectivity in assessing a case,” he said. “It leads to tunnel vision. It leads to prosecutions that are undertaken not in the public interest. It may lead to wrongful convictions.”

Despite the memo’s retraction, Moreau said the public should be concerned about the attitude it displayed “because the function of the criminal justice system is not only to prosecute the guilty; it is to protect the innocent.

“And ideas like the presumption of innocence, like the role of the Crown as a neutral minister of justice, are aspects of our criminal justice system that operate to prevent wrongful convictions and to protect the innocent.

“Because anybody can be the subject of a wrongful conviction. Ask David Milgaard.”

Milgaard spent 23 years in prison for a murder he did not commit.

Edmonton lawyer Peter Royal calls for resignations of Tim Grant, Kimberley Armstrong, Jonathan Denis