PPSC Survey of Investigative Agencies in the Provinces 2008: Report on Findings and Conclusions

1. Background and Purpose of the Survey

In 2008, the Public Prosecution Service of Canada (PPSC) conducted a national, in-house survey of the investigative agencies that initiate most of the cases that it prosecutes. It also committed to providing feedback to survey recipients once the analysis was complete. This report on survey findings and conclusions is intended to meet this commitment, and to serve as a springboard for further communication and exchange between the PPSC and investigative agencies in the provinces.^{Footnote 1}

The PPSC was created in December 2006, when the Director of Public Prosecutions Act came into force. It replaces the former Federal Prosecution Service (FPS), which was part of the Department of Justice Canada. The Director of Public Prosecutions is responsible for prosecuting offences under federal jurisdiction, and for providing prosecution-related legal advice to law enforcement agencies over the course of investigations that may lead to such prosecutions. As such, the PPSC works with investigative agencies across Canada. These include the RCMP, provincial and municipal police services, and the enforcement arms of federal departments and agencies.

The PPSC operates from 11 regional offices and five sub-offices across Canada. Its headquarters are located in Ottawa. The majority of its employees are prosecutors. The PPSC also retains the services of private-sector legal agents to conduct prosecutions on behalf of the federal Crown. The PPSC uses legal agents where it does not have a regional office or where it is impracticable or otherwise not cost-effective to handle cases with staff counsel.

The 2008 PPSC survey of investigative agencies represents the organization’s first attempt to seek feedback on its services. Its purpose was three-fold:

• to seek feedback from the police and federal investigative agencies that initiate most of the cases that the PPSC prosecutes;
• to understand the factors that positively or negatively impact investigator perceptions of PPSC services; and
• to identify possible strategies to strengthen PPSC services and the working relationship between the PPSC and investigative agencies.

Separate surveys were undertaken for the provinces and territories given the distinct characteristics of prosecutions in a northern context.

2. Survey Questionnaire

The survey questionnaire^{Footnote 2} addressed the full range of PPSC services, including drug, organized crime and regulatory prosecutions, as well as general legal advice, liaison and training. Using a five point scale, respondents were asked to qualify various aspects of these services as poor, acceptable, good, very good or excellent. These aspects include, but are not limited to the following:

• PPSC prosecutors’ understanding of investigative agency responsibilities as they impact on prosecutions;
• their guidance and assistance in the preparation of search warrants and in the collection of disclosure information;
• their notice to agencies when charges are varied or withdrawn;
• their preparation for court;
• the consistency and timeliness of their advice;
• the quality of interactions with PPSC personnel;
• the quality of liaison; and
• the relevance and usefulness of training activities and materials.

Respondents were also invited to provide written comments on the strengths of specific PPSC services in each of these areas, and to suggest possible strategies for improving them. In closing, respondents were invited to list any other prosecution-related activities that they thought the PPSC should be involved in but currently is not, as well as to provide any other comments that they felt were relevant.

3. Survey Respondents

The survey questionnaires were mailed to investigative agencies in the provinces over the course of February 2008. The survey packages were addressed to officers in charge and other investigative agency managers. The mailing list was drawn from the 2007 Canadian Police Information Centre (CPIC) manual. The list includes RCMP detachments, those of provincial and municipal police services, as well as specialized police units focusing on specific areas such as drugs and gangs, organized crime, major crimes and money laundering.

The questionnaire was also mailed to enforcement and investigation units within federal departments or agencies such as the Canada Border Services Agency (CBSA), the Canada Revenue Agency (CRA), the Department of National Defence (DND), Environment Canada (EC), Fisheries and Oceans Canada (FOC), Parks Canada (PC), Transport Canada (TC) as well as to members of the Competition Bureau at Industry Canada (IC).

The final survey pool in the provinces is comprised of 380 respondents, for a return rate of close to 35%. This is considerably higher than the generally expected 15% response rate for mail out surveys, indicating a high level of interest in providing feedback to the PPSC among investigators. There was an unequal distribution of respondents across the provinces. By far the most respondents were from Ontario, accounting for almost a quarter (24%) of the survey sample. Respondents in each of the Western provinces represented roughly 15% of the sample: Alberta (14%), Saskatchewan (16%) and British Columbia (16%). There were far fewer respondents from Manitoba, Quebec and the Atlantic region, each of these provinces accounting for 8% of respondents or less.

Four out of five respondents belonged to a police service, including the RCMP (58%), municipal police services (20%) and the Ontario Provincial Police (OPP) (9%).^{Footnote 3} Significantly fewer respondents (14%) were affiliated with the enforcement arms of federal departments and agencies. The 53 investigative agency respondents were distributed as follows: 20 for the CBSA, 12 for the DND, 7 for the Competition Bureau, 7 for the CRA, 2 for EC, 2 for Parks Canada, 2 for Transport Canada and 1 for CP Railway.

Respondents were almost equally split among three groups in terms of their frequency of contact with the PPSC, with roughly a third reporting daily (7%) or weekly (23%) contact, bi-weekly (14%) or monthly (23%) contact, or infrequent contacts with the PPSC, at less than once per month (33%).

As for the nature of their contacts with the PPSC, more than four out of five respondents (82%) reported that they had used drug prosecution services; fewer respondents reported that they had used regulatory prosecution services (32%) and organized crime prosecution services (14%). In addition, over two thirds of respondents (68%) reported that they had received general legal advice, compared to 37% who reported that they had been involved in liaison activities and 14% who reported that they had participated in training activities.^{Footnote 4}

4. Quantitative Analysis of Respondent Rankings of PPSC Service Aspects

Respondent rankings of PPSC service aspects were coded and entered into MS Excel and SPSS^{Footnote 5} data bases. Using SPSS, inferential statistical tests were performed to determine whether the rankings varied in a statistically significant manner according to the respondents’ province, the investigative agency to which they belonged, or the type of services that they were rating. The tests did not show any statistically significant differences within or between these groups. Therefore, from a statistical perspective, any variation in respondent perceptions of PPSC services can be equally attributed to chance as it can to differences based on the province in which respondents are located, the type of investigative agency they belong to, or the PPSC service(s) they used. This suggests, and the qualitative analysis will show that there are other factors at play.

Notwithstanding the above, an analysis of the frequency of respondent rankings of PPSC services indicates that certain aspects of PPSC drug, organized crime and regulatory prosecution services tend to be more positively ranked, while others tend to be ranked more negatively.^{Footnote 6}

• For instance, respondents most often rated PPSC prosecutors’ understanding of the legislation administered by police and federal investigative agencies, as well as the quality of their interactions with PPSC personnel as very good or excellent across prosecution fields.
• However, the provision of notice to investigators when charges are varied or withdrawn was most often rated as poor or acceptable across prosecution fields.
• Assistance with warrant preparation was the least frequently used aspect of drug, organized crime and regulatory prosecution services, and it was most often associated with poor or acceptable rankings where it was.

General legal advice, liaison and training received positive rankings overall.^{Footnote 7} For instance, respondents most frequently rated the consistency, usefulness and timeliness of general legal advice as very good or excellent. Similarly, respondents most frequently rated liaison meetings as very useful or extremely useful, and the relevance and usefulness of training activities and training materials as very good or excellent.

5. Qualitative Analysis of Respondent Comments on PPSC Services

Respondent comments varied in length, from a single word or sentence to a few paragraphs and, in some cases, a full page. All comments were transcribed onto a chart and analysed to identify the range of themes that were raised, the similarities and differences in their manifestations, as well as the resulting impact on respondent perceptions of PPSC services and suggested strategies for improving them.

Comments revealed a remarkable level of consistency in the considerations that contribute to more positive perceptions of PPSC services by their presence and to more negative perceptions by their absence. Further, this holds true across prosecution fields/services, investigative agencies and locations throughout the provinces. These factors include the following:

• the perceived quality and consistency of the legal knowledge and advice of the staff prosecutors and agents that the respondents had dealt with;
• the nature and extent of communication, liaison and training at the front line and management levels;
• various aspects of the PPSC’s case management process; and
• the operational pressures faced by the PPSC which may impact on service delivery.

There was also a high level of consistency in the strategies that respondents proposed to strengthen PPSC services, including:

• increased human and financial resources for the PPSC;
• increased communication, liaison and training; and
• improvements or changes to certain aspects of the case management process.

It is important to note that the purpose of the qualitative analysis is not to account for the frequency of various comments, or to ascertain whether the respondents’ interpretation or portrayal of events are wholly “accurate” or “true”. In any case, the data generated by the survey would not allow us to do so. Rather, it is to understand the array of factors that explain the perceptions that the comments describe. Thus, frequent comments or perceptions do not necessarily have more inherent value, in terms of generating knowledge or understanding, than infrequent or even unique ones.

As will be shown, respondent perceptions can be influenced by a range of factors, including their beliefs and attitudes on the seriousness of the offences being enforced and the type of legal response that is called for, their understanding of the prosecutor’ role in the criminal justice system, their actual interactions with PPSC staff prosecutors and legal agents, and the extent to which these interactions meet their needs and expectations. Hence, comments reveal more than one example of differing perceptions of the same services, based on these variations. This is to be expected, given the complex dynamics of any working relationship, and the range of individual, organizational and legal factors at play.

5.1 Perceived Quality and Consistency of PPSC Prosecutors’ Legal Knowledge and Advice

Respondents viewed PPSC prosecutors’ knowledge of the relevant laws, regulations, policies, legal precedents and Charter issues, as well as their understanding of the legal rules and procedures governing drug, organized crime and regulatory prosecutions as a solid basis for providing sound legal advice and practical assistance to investigators. Specifically:

• Respondents repeatedly noted that case-specific legal advice can support investigators in determining appropriate charges, identifying evidence to support those charges, drafting judicial authorizations, preparing for and testifying in court, and avoiding errors that can negatively impact on case outcomes.
• The benefits of case-specific legal advice can be cumulative, and enhance investigators’ overall understanding of the legal issues that they must take into consideration over the course of their work.
• However, respondent perceptions of the legal knowledge of the PPSC staff prosecutors and agents that they had dealt with varied. While many respondents lauded prosecutors’ knowledge levels, others found them to be lacking, variously citing differences between PPSC offices, staff prosecutors and agents, senior and junior personnel, subject matter experts and generalists.
• The dedication of a prosecutor or team of prosecutors to particular prosecution fields or files are seen as promoting knowledge acquisition and the preservation of prosecutorial expertise. Conversely, staff turnover and a lack of exposure to particular types of prosecutions, such as more complex drug and organized crime cases and more infrequent regulatory cases, are seen as precluding them.

5.2 Communication, Liaison and Training

Although respondent comments indicate that PPSC prosecutors’ legal knowledge and advice are central to positive perceptions of PPSC services, comments also show that such knowledge and advice are not sufficient. Ongoing communication, liaison and training are equally important, not only in terms of promoting optimal investigative practices, but also in terms of setting the foundation for effective working relationships between investigators and prosecutors. In particular:

• Respondent comments highlight the importance of PPSC prosecutors’ willingness to discuss specific cases and consider various prosecution approaches, their ability to provide feedback to investigators on the legal implications of their actions and, on a broader level, their interest in discussing mutual concerns and their capacity to work with investigators to achieve common goals.
• Comments also emphasize the importance of communication, liaison and training on matters of a more general nature to promote mutual understanding of the respective requirements, procedures and pressures of investigative agencies and the PPSC, as well as to identify and correct any deficiencies in operational practices.
• Effective communication and liaison at the management level does not necessarily guarantee effective liaison at the operational level, or vice versa. Further, while some respondents spoke of collaborative, respectful working relationships with PPSC prosecutors from both the agent and staff prosecutor groups, others alluded to more adversarial and ineffective ones.
• Finally, comments underscore the practical benefits of training in terms of enhancing investigators’ understanding of the legal issues and trends that can impact on their work, assist them in avoiding legal errors and, on a more interpersonal level, offer the opportunity for investigators and prosecutors to meet face to face, to establish more “personal contact” and to network.

5.3 Case Management Process

Respondent comments raise a number of issues pertaining to various aspects of the PPSC’s management of drug, organized crime and regulatory prosecutions. These include the timeliness of pre-charge screening and/or post-charge review processes, the perceived forcefulness of its prosecution approach, the efficacy of disclosure mechanisms, and the reliance on legal agents.

5.3.1 Pre- and Post-Charge Review Processes

Pre-charge screening or “charge approval” occurs in Quebec, New Brunswick and British Columbia. In these jurisdictions, charges can be laid only if Crown counsel reviews and approves them. Although pre-charge screening is not required in other jurisdictions, charges are subject to review after they are laid. Respondent comments highlight the importance of timely pre- and post-charge review processes.

• Some police and federal investigative agency members in jurisdictions with pre-charge screening suggested that the process could be streamlined or eliminated, arguing that it causes excessive delays in case processing and/or does not reflect local realities.
• Respondent across the provinces repeatedly highlighted the importance of timely post-charge reviews and early PPSC involvement in drug, organized crime or regulatory offence cases in order to allow for adequate trial preparation and avoid last-minute requests to investigators. This can allow investigators and prosecutors to meet and establish communication mechanisms, to identify and address additional investigative needs, to review witness lists to ensure that their testimony is required, and to clarify any relevant legal issues.

5.3.2 Prosecution Approach

PPSC prosecutors must consider two issues when deciding whether to proceed with a case: whether the evidence is sufficient to justify the institution or continuation of proceedings and, if it is, whether the public interest requires a prosecution to be pursued. Their role is not to win a conviction at any cost but to put before the court all available, relevant and admissible evidence necessary to enable the court to determine the guilt or innocence of the accused.

• Respondent comments indicate that their views on PPSC’s prosecution approach in particular drug, organized crime and regulatory offence cases are influenced by their beliefs and attitudes regarding the seriousness of the offences being enforced, the sentences that are called for, and what constitutes a “successful” outcome.
• While some respondents felt that the prosecution approach taken in the drug and organized crime cases that they had initiated was sufficiently forceful, others criticized a perceived reliance on plea agreements which, in turn, are perceived as resulting in reduced charges and more lenient sentences.
• Similarly, while some respondents supported the prosecution approach taken in regulatory offence cases, others questioned PPSC prosecutors’ understanding of regulatory mandates and the seriousness of the offences that they target.
• A lack of information on – or disagreement with – the rationale underlying the prosecution approach taken in a particular case, or of the general requirements for a case to proceed, can fuel investigators’ negative perceptions of PPSC prosecution services, as well as a sense of working at odds with prosecutors.
• Ongoing communication and liaison on case-specific and more general legal issues can enhance both investigators’ and prosecutors’ understanding of their respective operational guidelines and imperatives, and foster a sense of working towards the same goals.

5.3.3 Reliance on Legal Agents

The survey questionnaire did not distinguish between the services provided by staff prosecutors and those provided by legal agents. Distinctions between the two groups were made by respondents themselves, both in their survey comments on PPSC services – most strongly in the field of drug prosecutions – and in the inquiries they addressed to the PPSC prior to completing the survey.

• In commenting on the strengths of PPSC prosecution services, one group of respondents repeatedly referred to the benefits of legal agents’ proximity to investigators, allowing members of both groups to develop strong working relationships and a shared understanding of local issues.
• However, another group of respondents – mostly police members involved in drug prosecutions – questioned the reliance on legal agents as a matter of principle.^{Footnote 8} These respondents variously referred to Crown agents as “ad hoc Crowns”, “per diems”, “rent-a-Crowns” and, most tellingly, “contract defence attorneys”. These terms are less a reflection of agents' knowledge or skills than of the fact that agents are not permanent employees of the PPSC^{Footnote 9}, which these respondents viewed as negatively impacting on:
  • agents’ preparation, knowledge and confidence, compared to the PPSC staff prosecutors and, in some cases, the provincial prosecutors that these respondents have dealt with;
  • agents’ independence, in that they are allowed to act as defence counsel in non-drug cases.^{Footnote 10} Therefore, investigators can find themselves dealing with an agent as an ally in one case and as an opponent in another, creating in their view an actual or apparent conflict of interest;
  • agents’ commitment to the work and the communities they serve, due to their inability to devote their full attention to the prosecution of drug offences and, more generally, the fight against the harms that drugs can cause.
• Respondents acknowledged that, contrary to their counterparts in the staff prosecutor group, agents may not be able to gain sufficient exposure to drug, organized crime and regulatory prosecutions to allow them to maximize their potential. Such exposure is seen as particularly important in complex cases that require more resources and expertise.
• It was felt that the effects of limited exposure to certain types of cases can be mitigated by strong support from the regional PPSC office.

5.4 Operational Pressures

Various respondents attributed shortcomings in their working relationship with PPSC prosecutors to operational pressures within the PPSC, resulting in an obligation to “do more with less”.

• Respondents noted that the PPSC is facing increased workloads due to:
  • increasingly complex prosecutions, particularly in the drug and organized crime fields, leading to an enhanced demand for guidance and advice;
  • the failure of PPSC resources to keep up with substantial increases in police resources to combat drug-related and organized crime offences.
• Comments highlight the potentially negative impact of unmet resource needs on the PPSC’s capacity to provide timely legal advice on case-specific and general legal matters, to identify and address problem areas in a timely manner, as well as to consult on, communicate and explain prosecutorial decisions, all of which can negatively impact on case outcomes.
• RCMP and federal investigative agency respondents argued that the need for PPSC advice is enhanced by currently high retirement rates within their services, resulting in a higher proportion of new recruits and junior members than in the past and a need for capacity building.

6. Possible Strategies to Improve PPSC Prosecution Services

As for the considerations that influence respondent perceptions of the PPSC, there was a high level of consistency in the strategies that respondents proposed to strengthen PPSC services.

6.1 Increased Human and Financial Resources for the PPSC

In addition to more prosecutors overall, respondents called for the designation of more “full-time”, staff prosecutors to support particular geographic areas, specialized units, and/or locations now served by distant PPSC offices or agents; the assignment of specialised prosecutors to particular prosecution fields; and/or the dedication of a prosecutor or team of prosecutors to major cases in order to ensure the consistency and timeliness of services

Respondents also raised the need to promote the retention of experienced prosecutors, given the frequent need for specialized knowledge to effectively prosecute drug, organized crime and regulatory charges, and the time and training required to acquire it. However, they also acknowledged that the retention of experienced prosecutors can be compromised by non-competitive PPSC pay scales and working conditions, and argued for their enhancement. In addition, respondents suggested that the PPSC should deliver new services in areas such as bail hearings and detention orders, search warrant preparation and takedown planning.

6.2 Increased Communication, Liaison and Training

Respondents who had had little or no contact with the PPSC during its first year of existence requested more information on its mandate, the services that it provides, how it can assist investigators, and how to contact prosecutors.

However, by far the most frequently proposed strategy to promote a more effective rapport between investigators and PPSC prosecutors is to promote ongoing communication and liaison between the two groups, at both the front-line and management levels. In particular, respondents repeatedly called on prosecutors to inform them of the rationale for staying or reducing charges, or entering into sentencing agreements, and to provide constructive criticism of their investigative practices. They also called for regular interactions on more general legal matters to ensure that everyone is “on the same page”.

With respect to information sharing and training, respondents suggested that the PPSC produce and broadly circulate written materials on relevant legal matters to investigative agencies. It was also proposed that the Internet be used as a repository for the written information produced, thereby reducing the number of requests for legal advice directed to PPSC prosecutors.

Finally, respondents repeatedly called on the PPSC to expand its formal and informal training activities. In order to maximize benefits and reduce costs, they also proposed that the PPSC participate in joint training efforts with their agencies, and deliver the training at central locations. In addition, respondents requested that the PPSC broadly disseminate announcements of such activities.

6.3 More Effective Case Management Process

Respondents who questioned the forcefulness of PPSC’s prosecution approach called on prosecutors to be less risk averse, reduce their reliance on plea and sentencing agreements, and fight for harsher sentences (particularly in drug cases). Respondents who felt that sentences for drug offences are inconsistent or inappropriate, called for (more) research on sentencing trends and precedents in order to better support PPSC prosecutors in sentencing negotiations or arguments. While prosecutors must maintain their independence in determining the appropriate approach in a given case, comments show that it can be beneficial for them to at least acknowledge investigator concerns, and to maintain ongoing communication on case-specific and more general legal matters.

Respondents from jurisdictions with pre-charge screening or “charge approval” argued that the process could be streamlined or eliminated given that it can cause excessive delays in case processing, and may not reflect local realities or community expectations. Similarly, respondents across the provinces highlighted the importance of timely post-charge review in order to allow for adequate trial preparation, and avoid last-minute requests to investigators.

On a broader level, some respondents – particularly police involved in drug prosecutions – questioned the reliance on agents due to their “part-time” status, resulting in an actual or perceived conflict of interest when they act as defence counsel in matters that are unrelated to the statutes for which they are appointed. These respondents strongly expressed the view that PPSC prosecutors should be permanent employees of the organization.

7. Conclusions

The results of the 2008 PPSC survey of investigative agencies paint a remarkably consistent picture of the factors that contribute to more positive perceptions of PPSC services by their presence and to more negative perceptions by their absence. As both the quantitative and qualitative analyses show, respondent perceptions do not vary, in a systematic way, according to service delivery location, the investigative agencies involved or the services used. Rather, results indicate that respondent perceptions of PPSC services tend to vary based on their beliefs and attitudes regarding the enforcement and prosecution of criminal offences, as well as their individual experiences with the staff prosecutors and agents with whom they work. To some extent, this is not surprising, given the range of criminal offences that the organization prosecutes, the number of service delivery locations, many of which are rural or remote, the reliance on a large number of legal agents, as well as current operational pressures faced by the PPSC and investigative agencies, including staff recruitment and retention issues.

Nonetheless, the survey results suggest a number of areas in which to focus our efforts: PPSC prosecutors’ knowledge and legal advice, communication, liaison and training, and various aspects of the case management process. However, the results do not provide concrete measures of organizational performance in each or these areas, or the factors that can affect performance levels. As a result, there is a need to further document PPSC activities and outcomes, to implement additional strategies to improve organizational performance where required, and to enhance mechanisms to monitor improvements (or to explain a lack thereof). Possible next steps are summarized below. Clearly, many are underway or being considered, demonstrating their relevance to the PPSC’s current priorities as well as its planning and reporting requirements.

• Continue to focus efforts on the recruitment and retention of federal prosecutors (an organizational priority for 2009-2010 and 2010-2011) in order to maintain required service levels across service delivery locations.
• Develop possible strategies to better communicate and clarify the mandate of the PPSC, as well as the roles, responsibilities and legal constraints of PPSC prosecutors.
• Continue to document the nature and extent of current training activities delivered by PPSC prosecutors, including training modalities in order to identify best practices.
• Consider the concerns raised by some respondents in developing service standards to be followed by PPSC prosecutors, and develop performance measures to monitor implementation.
• Further examine the factors that impact on the nature and extent of services provided by legal agents, the particular challenges that they face, compared to staff prosecutors, and possible strategies to enhance and monitor their performance where required. Given the negative perceptions that may be associated with agents’ “part-time” status, there may also be a need to further communicate conflict of interest guidelines.
• Continue to monitor the social trends and government initiatives that are likely to have an impact on workloads and service needs – (e.g., retirement levels in the PPSC, RCMP and other investigative agencies due to demographic trends, legislative changes or changes in enforcement priorities).

Annex 1: Respondent Rankings of PPSC Services

Chart 1: Perception of Drug Prosecutions (Provinces) (N=313)

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Chart 2: Perception of Organized Crime Prosecutions (Provinces) (N=53)

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Chart 3: Perception of Regulatory Offence Prosecutions (Provinces) (N=121)

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Chart 4: Perception of General Legal Advice (Provinces) (N=258)

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Chart 5: Perception of Liaison Service (Provinces) (N=144)

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Chart 6: Perception of Training Service (Provinces) (N=62)

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