DATE: May 20, 2008
SUBJECT: THE PROCEDURE AND CRITERIA GOVERNING IMMUNITY AGREEMENTS AND THE PROVISION OF OTHER CONSIDERATION FOR WITNESSES AND INFORMANTS
Those who violate the law should be held accountable for their actions. However, some crimes can only be proven by the testimony of those who are implicated in the same crime or in some other criminal activity, and who seek immunity from prosecution in exchange for their testimony and/or their cooperation with the police. While it has been recognized for centuries that the cooperation of these individuals is a very powerful tool in the battle against crime, it brings with it the very real risk that individuals will falsely accuse others and/or minimize their own culpability in the hope of securing immunity.
Only the Attorney General, through Crown Prosecutors, is entitled to confer immunity from prosecution. Because this exercise of discretion is a sensitive one and given that, improperly or hastily granted, immunity from prosecution can not only jeopardize public safety, but will most certainly erode public confidence in the administration of justice, it is critical that Crown Prosecutors have the benefit of guidelines that outline both the process to be followed and the substantive criteria to be applied when considering whether to grant a potential Crown witness immunity from prosecution, and when arriving at and implementing any such agreement.
In particular, this guideline seeks to:
- establish a procedure to follow in the event a potential Crown witness seeks immunity from prosecution; and
- set out the criteria governing the determination as to whether the Crown should enter into an immunity agreement with a potential Crown witness, and on what terms.
While the focus of this guideline is on immunity agreements with potential Crown witnesses, the principles, procedures and criteria described herein apply, with the necessary adaptations, when the Crown is contemplating granting other forms of consideration (including use immunity) in exchange for the provision of testimony, information, assistance or other forms of cooperation with the Crown and/or police.
This guideline must be read and applied in conjunction with the guidelines respecting informer privilege (Confidential Police Informants (Privilege)) and in-custody informants (In-Custody Informant Evidence).
THE DEFINITION OF AN IMMUNITY AGREEMENT:
In this guideline, immunity agreement refers to any agreement by the Crown to refrain from fully prosecuting someone for a crime in exchange for the provision of testimony, information, assistance or other forms of cooperation. To be clear, an immunity agreement means more than just an agreement not to commence a prosecution for crime(s) committed. It includes, for example, an agreement to take a particular position in pre-trial proceedings (e.g., judicial interim release, Crown election), to cease an ongoing prosecution (including an appeal), to accept a guilty plea to a lesser offence, or to take a particular position post-conviction (e.g., to seek a lesser sentence than would otherwise be sought).
In this guideline, immunity agreements also include an agreement to limit the use that will be made of information received from an immunity-seeker during an investigation. For example, a person who is willing to be interviewed by an investigating agency regarding his or her knowledge of a crime may wish to receive assurance that the information provided will not be used against that person in any subsequent prosecution. This is sometimes referred to as use immunity. While this form of an immunity agreement focuses only on the uses that may or may not be made of the information provided (including whether it could be used to impeach the person’s credibility at any subsequent proceeding) and will require the Crown Prosecutor to engage in detailed discussions with the investigating agency, the procedures and criteria outlined in this guideline still apply.
Because the Attorney General’s authority does not include the power to control prosecutions that are within the jurisdiction of other prosecuting agencies (e.g., those that are conducted by the Federal Department of Justice or by other provincial attorneys general), the immunity agreements that are governed by this guideline cannot include immunity from prosecutions that are within the jurisdiction of any of these other agencies. If the person wishes to receive immunity in respect of criminal activity that would be prosecuted by another agency, an immunity-seeker should be referred to this other agency. In this respect, Crown Prosecutors may consult with a representative of the agency from which immunity is sought.
PROCEDURE TO BE FOLLOWED:
When a Crown Prosecutor first learns that a person wishes to enter into an immunity agreement with the Crown and if the Crown Prosecutor believes that an immunity agreement is justified, the Crown Prosecutor shall advise his or her Chief Crown Prosecutor or Director of all of the circumstances that will inform the ultimate determination at to whether to enter into the immunity agreement and of the Crown Prosecutor’s recommendation.
The ensuing responsibilities of the Chief Crown Prosecutor or Director are as follows.
- If the Chief Crown Prosecutor or Director agrees with the Crown Prosecutor’s recommendation to enter into an immunity agreement with the person, he or she shall seek the approval of the Assistant Deputy Minister (Criminal Justice) to commence negotiations respecting an immunity agreement. The Assistant Deputy Minister shall seek the approval of the Deputy Minister.
- If negotiations are authorized and proceed, the Chief Crown Prosecutor or Director shall review the immunity agreement that is eventually negotiated and, if it is acceptable, shall seek the approval of the Assistant Deputy Minister (Criminal Justice) to enter into this immunity agreement. The Assistant Deputy Minister shall seek the approval of the Deputy Minister.
- If the terms of the immunity agreement are approved by the Assistant Deputy Minister (Criminal Justice) and the Deputy Minister, the Chief Crown Prosecutor or Director shall sign the written immunity agreement and provide a copy to the Crown Prosecutor assigned to the prosecution to which the testimony, information, assistance or cooperation will apply.
- After the completion of an immunity agreement, the Chief Crown Prosecutor or Director shall provide a copy to the agency investigating the criminal activity to which the testimony, information, assistance or cooperation is relevant and shall ask to be advised of any alleged breaches of the agreement.
CRITERIA TO BE APPLIED:
The overriding principle governing this issue is as follows: Immunity agreements will be the exception rather than the norm and will only be justified in circumstances in which the testimony, information, assistance or cooperation is of such value that it is clearly in the public interest not to hold a person fully accountable for his or her criminal activity. Informing a consideration of this principle are the following inter-related criteria.
The Seriousness of the Offence
Generally, immunity agreement should be considered only when the testimony, information, assistance or cooperation relates to the commission of a serious offence, or when the prosecution is otherwise important to achieving effective enforcement of the law. Such agreements should not be entered in respect of relatively minor cases.
The significance of the testimony, information, assistance or cooperation to the particular prosecution
The Crown must assess the significance of the testimony, information, assistance or cooperation in relation to the Crown’s case. This, of course, depends on an assessment of the relative strength of the Crown’s case with and without the immunity-seeker’s evidence. In some cases, the evidence might be significant, which militates in favour of entering into an immunity agreement, while in others it is superfluous, which militates against any such agreement. To be clear, this does not detract from the direction that “a prosecution based substantially upon the unconfirmed evidence of an in-custody informer will rarely meet the criteria for prosecution.” (See guideline In-Custody Informant Evidence)
There is another component to this factor. In close consultation with the agency investigating the criminal activity to which the testimony, information, assistance or cooperation is relevant, the Crown must determine whether the same evidence can be obtained from a source not requiring an assurance of immunity. If such is the case, then the Crown must assess whether the corroborative value of the immunity-seeker’s evidence justifies the immunity agreement under consideration.
The Reliability of the Immunity-Seeker’s Testimony, Information, Assistance or Cooperation
Given the Crown’s duty to only lay before the trier of fact what the Crown considers to be the credible evidence relevant to what is alleged to be a crime, it is critical that, before offering immunity, the Crown assess the reliability of the immunity-seeker. That is to say, as it must be anticipated that the person will testify, the Crown must be satisfied that a trier of fact would likely view this person as a reliable witness. There are several components to this factor.
The reliability of the anticipated evidence itself
In considering this component, the Crown must critically assess all material pertaining to the immunity-seeker’s testimony, information, assistance or cooperation. This material would include, for example, all interviews of the immunity-seeker conducted during the investigation of the criminal activity.
The Crown must also determine the extent to which the immunity-seeker’s testimony or information can be corroborated. Such other evidence will, of course, increase the reliability of the testimony or information. The presence or absence of corroboration will often be a critical factor in assessing whether the Crown should enter into an immunity agreement.
Decreasing, and perhaps fatally so, the reliability of the testimony or information is evidence that the immunity-seeker was exposed to facts or material about the prosecution to which this testimony or information will apply. Given the significance of this concern, the Crown must critically review all of the circumstances by which the immunity-seeker became a potential Crown witness (e.g., who approached whom, the numbers of interviews and the parties attending, the content of the interviews, the notes of all investigators who came into contact with the immunity-seeker). Concerns will arise when investigators, for example, give the immunity-seeker anything designed to prompt his or her memory respecting the circumstances of the criminal activity.
Full and candid disclosure
The Crown must be satisfied that the immunity-seeker has made full and candid disclosure of all information pertaining to the activity in question or likely to affect his or her credibility as a witness. Such disclosure will include, of course, his or her complete history of criminal activity and his or her involvement in the criminal activity that is the subject of the prosecution, but will also include any history of cooperating with policing and/or prosecution agencies in exchange for immunity or other consideration.
The background of the immunity-seeker
The Crown must be provided with and assess all background information about the immunity-seeker. This information will include his or her age and personal history, any criminal record, any history of uncharged criminal activity, his or her past co-operation with law enforcement authorities, whether the person has previously given or offered to give evidence in court, and whether the person has entered into agreements in the past with law enforcement authorities.
Generally, the Crown should not enter into an immunity agreement with someone who has entered into or has sought to enter into such agreements previously. The consideration of this component is not only significant to the Crown’s duty to present to the trier of fact credible evidence, but it must be anticipated that the accused who is implicated by the testimony of the immunity-seeker will fully investigate the immunity-seeker’s background. See, for example, R. v. Antinello (1995) 97 C.C.C. (3d) 126 (Alta CA).
The Nature and Extent of the Immunity-Seeker’s Involvement in the Criminal Activity
It is important that the Crown compare the degree of the immunity-seeker’s culpability, if any, in the criminal activity in respect of which the testimony, information, assistance or cooperation is being offered, with the culpability of the other(s) who are being prosecuted. In the absence of unusual circumstances, it is generally not in the public interest to rely on the testimony of a highly culpable person to convict someone who was only a minor participant in the same criminal activity.
The Criminal Activity of the Immunity-Seeker
The nature of the activity for which immunity is sought and the strength of the evidence implicating the immunity-seeker is a significant factor that informs the Crown’s assessment of the public interest in entering into the immunity agreement.
The public interest may not be served by providing immunity against prosecution to a person who has committed a serious offence (relative to the criminal activity for which the testimony, information, assistance or cooperation relates) in respect of which there is significant evidence. Not only should such a person generally be held accountable for his or her actions, but this person’s credibility is suspect by reason of having a clear motivation to fabricate his or her testimony. In such cases, partial immunity (e.g., an agreement by the Crown to seek a lesser sentence than would otherwise be sought) should be considered.
Where the prospect of convicting the immunity-seeker of his crimes is less certain, immunity may be more appropriate.
Protection of the Public and the Public’s Confidence in the Administration of Justice
Crown counsel must assess whether the protection of the public would be better served through prosecution of the immunity-seeker or by relying on that person as a witness in the prosecution of the accused.
If the value of the testimony, information, assistance or cooperation outweighs any risk to public safety or lessening of public confidence in the administration of justice that may result from the immunity agreement, then this factor militates in favour of entering into the agreement.
CONDUCT OF NEGOTIATIONS:
If it is decided that the Crown will attempt to enter into an agreement with an immunity-seeker, a Crown Prosecutor other than the Crown Prosecutor who has conduct of the prosecution to which the testimony, information, assistance or cooperation will apply shall conduct all negotiations.
This Crown Prosecutor has the following responsibilities and duties.
- Make every effort to ensure that the immunity-seeker has the assistance of legal counsel before entering into any immunity agreement and negotiate through this lawyer.
- Take all steps to limit his or her contact with the immunity-seeker and never meet this person alone (i.e., the investigating officer should always be in attendance.).
- Make detailed notes of all meetings with the immunity-seeker and his or her lawyer.
- Be diligent not to expose the immunity-seeker to facts or evidence about the prosecution to which his or her testimony, information, assistance or cooperation will apply.
- Make it clear that he or she is not authorized to approve any immunity agreement that is negotiated; rather any such agreement must be approved in accordance with the procedures outlined in this guideline.
- Reduce to writing any immunity agreement that is negotiated and ensure that the written agreement is signed by the immunity-seeker and, if applicable, his or her lawyer.
- Avoid agreeing to complete immunity from criminal responsibility unless it is absolutely necessary in order to obtain the required testimony, information, assistance or cooperation. The granting of a limited form of immunity is generally preferred.
- Explore the following potential, and non-inclusive, terms of any immunity agreement:
- dropping charges;
- reducing charges;
- dropping or reducing the charges of others, such as family members or friends;
- agreeing to a lesser sentence;
- the timing of dealing with outstanding charges;
- provision of a new identity;
- all payments of money;
- assistance in securing employment;
- the resolution of pending applications for the return of offence-related property or proceeds of crime;
- special privileges while in jail or under the control of the police pursuant to subsection 527(7) of the Criminal Code; and
- the circumstances under which the agreement could be terminated.
THE IMMUNITY AGREEMENT:
- The Crown must not agree to an immunity agreement in exchange for the provision of testimony unless the immunity-seeker has first provided a video taped statement that will satisfy the admissibility criteria established by the Supreme Court of Canada in R. v. K.G.B. (1993) 79 C.C.C. (3d) 257.
- Each immunity agreement shall include, among other things, the following information, statements, or terms:
- the names of all of the parties to the agreement
- the names of any other person intended to benefit from the agreement
- the criminal activity in respect of which immunity is provided
- the agreement does not extend to: other prosecuting agencies; or to criminal activity that is undisclosed or undiscovered; or to any future criminal activity.
E.g., Immunity from prosecution under this agreement is confined to the criminal activity described above. It does not extend to criminal activity not disclosed in writing by [name of immunity-seeker] to [name of Crown Prosecutor] before entering into this agreement. Nor does it extend to offences that [name of immunity-seeker] may commit after this agreement is signed, or to any offence that may be prosecuted by another prosecuting agency.
- the form that the immunity will take (e.g., staying existing charges, an agreement respecting the sentence to be sought by the Crown, an undertaking not to proceed on potential charges)
- the agreement is not conditional upon the conviction of the accused in the prosecution to which the immunity-seeker’s testimony, information, assistance or cooperation will apply
- the immunity-seeker shall expect no further benefits than those documented in the agreement
- if the immunity agreement pertains to information, assistance or other forms of cooperation, the immunity-seeker will provide a truthful video taped statement respecting his or her complete knowledge of the circumstances of the criminal activity for which the Crown has sought his or her testimony, information, assistance or cooperation, including a complete and truthful description of any involvement that he or she had in the criminal activity
- the immunity-seeker will attend court and testify as required
- at all times any testimony provided by the immunity-seeker under the agreement will be truthful and complete
E.g., The failure of [name of immunity-seeker] to attend court as required and provide truthful and complete evidence at the proceedings relating to the accused will terminate this agreement, and may lead to the prosecution of [name of immunity-seeker] for failure to attend court, perjury, the giving of contradictory evidence, obstructing justice, public mischief, or some related offence.
- a description of what else will amount to a breach of the agreement
- the consequences of any breach of the agreement (e.g. future criminal activity may disentitle the witness to any benefits previously agreed to but not yet conferred.)
- In respect of the Crown’s disclosure obligations,
- The Crown Prosecutor assigned to the prosecution to which the testimony, information, assistance or cooperation will apply must consider whether to disclose the immunity agreement in accordance with the guideline respecting disclosure (Disclosure by the Prosecution).
- If it is intended that the person with whom an immunity agreement was entered testify in court, then the immunity agreement must be disclosed. In such cases, the Crown Prosecutor must also disclose:
- any information in the Crown’s possession or control respecting the circumstances in which the person may have previously testified as a Crown witness, including, at a minimum, the date, location and court where the previous testimony was given;
- any information in the Crown’s possession or control respecting the circumstances in which the informer may have requested that the Crown refrain from fully prosecuting him or her in exchange for the provision of testimony, information, assistance or other forms of cooperation.
- Where an immunity agreement has been reached, any requests for additional consideration, either during or after the immunity-seeker’s testimony should be refused, save and except for those that are incidental to consideration already promised or conferred. Any incidental changes to the original agreement should also be reduced to writing.
- If the immunity-seeker testifies in court, the Crown should tender as exhibits, the immunity agreement and the Crown witness’ criminal record, if any.
POST-IMMUNITY AGREEMENT ISSUES:
It may become necessary to seek a remedy against a person previously granted immunity where that person, for example, withdraws promised co-operation with the Crown; fails to be truthful when testifying; has misled the investigating agency or Crown counsel about material facts concerning the case including factors relevant to that person’s reliability and credibility as a witness; or has sought immunity by conduct amounting to a fraud or an obstruction of justice.
Whether such a person should be charged if this occurs, either for the offence for which he or she sought immunity or for some other offence, will depend on the circumstances of each case. However, the terms of the immunity agreement and the nature of the breach will be critical considerations. In some circumstances, the laying of charges against the person (or the recommencement of proceedings under subsection 579(2) of the Criminal Code) will amount to an abuse of the court’s process.
Where the immunity-seeker is charged with any additional criminal offences prior to the completion of his or her testimony, the Crown must reassess the use of the immunity-seeker as a witness, whether or not the person seeks any new consideration. The commission of additional criminal offences may, in fact, disentitle the person to any consideration previously agreed upon but not yet conferred.
If, in the course of proceedings relating to any new criminal charges, the person seeks additional consideration from the Court for past co-operation, the Crown Prosecutor should advise the Court that the person was made aware that he or she could not expect additional consideration in relation to future or undiscovered criminality when the immunity agreement was reached. The Crown Prosecutor should also advise the Court that the person should not be entitled to any credit for past cooperation.