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Sunlight and Disinfectants: Prosecutorial Accountability and Independence Through Public Transparency 


Prosecution Services often have to make decisions which, while required in the public interest, almost certainly will be controversial if not publicly unpopular. A seemingly endless variety of circumstances illustrate the point. Some involve tragedy and heartbreak, such as whether a wife ought to be charged with assisting in the suicide of her terminally ill, and long suffering husband.

There is, however, one category of cases that engages notions of public confidence and the need for a public perception that proper prosecution decisions have been or will be made. This arises, most commonly, by virtue of the players that are involved in the case – as accused, victim or witness – rather than the nature of the crime itself. For instance, where following a police investigation, where it is proposed that criminal charges be laid against someone directly involved in the criminal justice system – prosecutors, judges and defense lawyers are good examples – there exists the need to assure the public that proper decisions will be made.

 In some jurisdictions, statutory structures such as the Director of Public Prosecutions have been established to ensure that prosecution decisions are insulated from political considerations. In this paper, the author argues that there are many paths to prosecutorial independence and that the legal, social and political environment in each jurisdiction will help shape the model best suited for its purposes. Building on

Justice Brandeis’ statement that “Sunlight is the Most Powerful of Disinfectants”, this paper argues that in the Canadian context non-statutory mechanisms that promote openness and an element of independence have served prosecution services well in ensuring that political considerations are not taken into account in the decision-making process.