The Politics of Prosecutorial Discretion: Institutional Structures and Tensions Between Punitive and Restorative Paradigms of Justice

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Prosecutorial Discretion, Politics, Restorative Justice Paradigms, Criminal Justice, Nova Scotia


The exercise of prosecutorial discretion is a matter of politics in the broadest sense. The traditional model for the exercise of control over the criminal justice system was a hierarchical one in the hands of the attorney general. Most Canadian jurisdictions have moved to a more decentralized model of checks and balances invoking the actions of various ministries. Nova Scotia, like the Commonwealth of Australia, has adopted a variant of the decentralized model which balances statutorily reinforced operational independence for the Director of Public Prosecutions with democratic accountability for prosecutions policy to the Legislature through the provincial attorney general.

The exercise of prosecutorial discretion has become more politically difficult as restorative justice paradigms are advanced to challenge the traditional punitive approach to criminal justice. The punitive adversarial model, with its heavy reliance on costly incarceration, is being increasingly criticized by advocates of a less costly victim centred, non-adversarial restorative justice model relying on the victim-offender reconciliation and offender reintegration into the community. However, neither approach is likely to oust the other completely, and both are now validated by the provisions of the Criminal Code and the Young Offenders Act.

Thought must be given to creation of the best institutional structures within which to exercise prosecutorial discretion. Such arrangements must take into account the political dimensions of the tensions between currently competing paradigms of justice. The Nova Scotia system is presented as a helpful approach.