3.5 Delegated Decision-Making

Public Prosecution Service of Canada Deskbook

Guideline of the Director Issued under Section 3(3)(c) of the Director of Public Prosecutions Act

March 1, 2014

Table of Contents

1. Introduction

This guideline’s purpose is to explain the delegation of powers under the Director of Public Prosecutions ActFootnote 1 (DPP Act).

The vast majority of prosecutorial decisions are made by federal prosecutors acting on behalf of the DPP, who in turn, acts under and on behalf of the Attorney General of Canada.Footnote 2 These include the decisions to prosecute, to seek an accused person’s pre-trial detention, to stay proceedings and to seek particular sentences following convictions. However, certain decisions require specific higher level approval. Some offences in the Criminal Code (Code) and in other federal statutes can be prosecuted only with the prior consent of the Attorney General or the Deputy Attorney General. In addition, the Attorney General’s or Deputy Attorney General’s consent is a precondition to certain steps being taken in criminal proceedings. This includes, for example, preferring an indictment; recommencing proceedings where jurisdiction has been lost; and initiating dangerous offender and long-term offender applications.

Certain offences require the consent of the Attorney General or the Deputy Attorney General prior to the institution of prosecutions as a control mechanism. This ensures that there is pre-charge screening by a legal officer. The consent requirement is said to be aimed centrally at two potential harms, namely (a) the specific harm that may result from the prosecution of an innocent person and (b) the general harm that results from the institution of proceedings that are not in the public interest. While, there is no clear unifying factor for the offences requiring consent to prosecute,Footnote 3 consent is typically required for offences that have an extraterritorial reach or that have the added dimension of interstate relations and competing jurisdictions, such as torture committed by a foreign citizen, sexual offences against children committed by a Canadian citizen in a foreign state, or war crimes and crimes against humanity.

2. The Director of Public Prosecutions Act

It is a general principle of administrative law that a statutory power should be exercised by the authority on whom it is conferred. In the absence of express statutory permission, it normally cannot be delegated to another person or body. Read with the Criminal Code, the DPP Act provides express statutory delegation for specific prosecutorial duties.

The DPP Act has not changed the Attorney General of Canada’s historical role as chief law officer of the Crown. The Attorney General retains jurisdiction to prosecute all non-Criminal Code federal offences (except those under the Canada Elections ActFootnote 4) and certain Criminal Code offencesFootnote 5 in the provinces and authority to prosecute both Criminal Code and non-Criminal Code federal offences in the three territories. However, under s. 3(3) of the DPP Act, these powers have been delegated to the DPP, who exercises these general powers “under and on behalf of the Attorney General” independently, subject to directives issued by the Attorney General under s. 10.Footnote 6 The DPP’s authority under s. 3(3) includes the authority to:

  1. initiate and conduct federal prosecutions, subject to the Attorney General’s power under s. 15 of the DPP Act;
  2. intervene in proceedings that raise a question of public interest that may affect the conduct of prosecutions or related investigations, subject to the Attorney General’s power under s. 14 of the DPP Act;
  3. issue general guidelines to prosecutors;Footnote 7
  4. advise law enforcement agencies on matters related to prosecutions generally and particular investigations that may lead to a prosecution;
  5. communicate with the media and the public on prosecution matters;
  6. exercise the Attorney General’s authority in respect of private prosecutions; and
  7. exercise any other duty that the Attorney General delegated to the DPP.

By virtue of s. 3(4) of the DPP Act, the DPP is the Deputy Attorney General for the purpose of exercising the powers and performing the duties and functions set out in s. 3(3). The principal significance of s. 3(4) is that it brings into play s. 2 of the Code which defines the Attorney General to include the Deputy Attorney General. The DPP’s decisions to prosecute offences under federal statutes, stay proceedings or launch an appeal are binding and final unless otherwise instructed by the Attorney General under s. 10(1).

2.1. Delegated authority of Deputy Directors

Section 6 of the DPP Act provides for the appointment of one or more Deputy Directors of Public Prosecutions (Deputy DPP’s). Section 6(3) specifies that, under the DPP’s supervision, the Deputy DPP may exercise any of the powers and perform any of the duties or functions set out in s. 3(3) of the DPP Act and for that purpose is a lawful deputy of the Attorney General. As such, a Deputy DPP is authorized to exercise any function or duty of the Attorney General that has been delegated to the DPP, under the DPP’s supervision.Footnote 8

2.2. Delegations for federal prosecutors, agents and non-prosecution staff

The DPP is authorized to employ federal prosecutors (s. 7(1) of the DPP Act) and retain agents, also known as “non-employed federal prosecutors” (s. 7(2) of the DPP Act), as are necessary to enable the DPP to perform any of the duties or functions of the DPP.Footnote 9

The DPP may also hire employees other than federal prosecutors to carry out the work of his or her office (s. 8(1) of the DPP Act). This includes, for example, in-house paralegals, finance and human resources personnel, and administrative support staff. Further, the DPP may retain other persons with special expertise or technical knowledge of any matter related to the DPP’s work (s. 8(2) of the DPP Act). This includes, for example, retired judges, forensic accountants, computer experts, and management consultants.

Section 9(1) of the DPP Act is quite specific about who the DPP may delegate to act on his or her behalf. It expressly authorizes the DPP to delegate any of his or her powers, duties or functions (with the exception of the actual power to delegate), to employed federal prosecutors, to agents retained under s. 7(2), and to employees appointed pursuant to s. 8(1). Individuals in the last group receive s. 9 delegations as “other employees of the ODPP. As employees of the PSSC, articling students may be designated under s. 9 to act as federal prosecutors. However, s. 9 does not permit the DPP to delegate powers to students and paralegals working in agents’ law offices.Footnote 10 This delegated authority may be subject to restrictions or limitations.Footnote 11 As a general rule, all employees of the Public Prosecution Service of Canada (PPSC), with the exception of Deputy DPP’s, operate in accordance with written s. 9 delegations. These persons are identified as “delegated agents” of the DPP.Footnote 12

2.3. Designations for the purposes of Part VI of the Criminal Code

Section 9(3) of the DPP Act permits the DPP, a Deputy DPP, any federal prosecutor or agent to be designated as an agent of the Minister of Public Safety and Emergency Preparedness under s. 185 of the Code. This enabling provision permits federal prosecutors and agents to be designated as agents of the Minister of Public Safety and Emergency Preparedness for the purpose of making applications for authorizations to intercept private communications under Part VI of the Criminal Code. Federal prosecutors and agents who receive s. 185 designations act in that capacity as agents of the Minister of Public Safety and Emergency Preparedness.

3. Consent of the Attorney General

Generally, individual Crown counsel make prosecutorial decisions.Footnote 13 As mentioned, s. 3(3)(a) of the DPP Act delegates to the DPP, the Attorney General’s power to initiate and conduct prosecutions. Under section 9(1) of the DPP Act, the DPP has authorized federal prosecutors to act on his behalf to fulfill this responsibility. The DPP retains the power to make personally any decision required to be made in his or her name.

As noted above, in some federal statutes, including the Criminal Code, the consent of the Attorney General is required either to initiate the prosecution of a particular offence or to take a particular step in a criminal proceeding. The statutes employ an array of phrases in describing actions to be taken by the Attorney General. Some demand his or her “personal consent in writing”.Footnote 14 Others require the Attorney General’s “consent in writing”Footnote 15 or simply “the consent of the Attorney General”.Footnote 16 Some of these go further and identify a need to obtain consent from a particular Attorney General, federalFootnote 17 or provincial.Footnote 18 Except where the statutory provision requires the decision to be taken personally in writing by the Attorney General only, the DPP, as the Deputy Attorney General, has the authority to provide the required consent.

Pursuant to section 9 of the DPPA Act, the DPP has authorized the Chief Federal Prosecutors, Deputy CFPs and General Counsel, Legal Operations (GCLOs) and Crown counsel to provide consent on his behalf under certain of these statutory provisions. Appendix A to this guideline lists the statutory consents covered by this authorization. The decision-maker remains accountable to the DPP and the DPP to the Attorney General for the decisions taken.

For statutory provisions requiring consent that are not listed in the authorization, and the Appendix, consent must be sought from:

  1. the Attorney General if the provision contemplates only the Attorney General’s personal consent in writing;
  2. the DPP if the provision contemplates the personal consent in writing of the Attorney General or of the Deputy Attorney General;
  3. the DPP or the Deputy DPP in all other cases.

Where an offence requires the consent of the Attorney General to “institute”, “commence” or “continue” a prosecution, the consent is an element of the offence which the Crown must be capable of proving beyond a reasonable doubt.Footnote 19 It is a necessary pre-condition to the jurisdiction of the court.Footnote 20 Failure to prove consent to the prosecution will result in charges being dismissed for lack of jurisdiction. Accordingly, consent should be obtained in writing from the appropriate decision-maker to provide evidence of the existence of the requisite consent. Decisions regarding whether or not to consent are reviewable only in cases involving exceptional circumstances such as dishonesty, flagrant impropriety or bad faith.Footnote 21

3.1. Procedure for obtaining the personal consent of the Attorney General or the DPP

It is important to identify, at the pre-charge or initial charge-review stage, cases that require consent to institute a prosecution or to undertake other measures. Consent should be obtained from the appropriate decision-maker at the earliest reasonable opportunity. The wording varies from one provision to the next; some requiring consent to “institute” a prosecution, others to “commence” a prosecution and still others to “continue” a prosecution that already has been commenced. A prosecution is instituted once a person lays an information before a justice. In contrast, a prosecution commences only once a justice of the peace issues process compelling attendance of the accused in court.Footnote 22 Thus, where the statutory language requires consent to “institute” proceedings, such consent must be obtained prior to laying the information.

The CFP must ensure preparation of the following:

  1. a concise statement of facts sufficient to conclude that there is a reasonable prospect of conviction at trial and that the public interest is best served by a prosecution. The statement must include the name (and citizenship, if not Canadian) of the accused, the charges, the evidence and the date by which the consent is required. If multiple accused are to be charged, the statement must demonstrate that there is sufficient evidence to implicate each individually;
  2. a statement indicating that the associated department (if there is one) has been consulted, and an outline of its views on the proposed prosecution;
  3. two original consent documents in the following form.

3.2. Consent documentation

Pursuant to (state section and statute requiring consent), I consent to the institution of proceedings against (accused's name, address and, if not Canadian, citizenship) for an offence contrary to (state offence section and statute).

This consent is given in relation to the following allegation(s):

(provide draft charges and a brief description of primary facts alleged including date and location)

This consent is given at Ottawa, Canada, this ___ day of ___ , ___.

______________________________

Attorney General of Canada

(or, as the case may be,

Director of Public Prosecutions of Canada and Deputy Attorney General of Canada

or

Deputy Director of Public Prosecutions and lawful deputy of the Attorney General of Canada pursuant to section 6(3) of the Director of Public Prosecutions Act )

The CFP shall review each recommendation and, if satisfied that the case meets the criteria set out in the PPSC Deskbook guideline 2.3 Decision to Prosecute, send it to the Deputy DPP. For matters that require the consent of the Attorney General or the DPP, the Deputy DPP will review the request and prepare a recommendation and forward it to the Attorney General or DPP as appropriate for approval. If the Attorney General or DPP signs the consent documents, one signed document will be sent to the Regional Office. The second will be filed in the office of the Deputy DPP. Upon completion of the trial, the CFP must report the outcome to the Deputy DPP. If the Deputy DPP decides that proceedings should not be instituted, the request for consent goes no further. The CFP is then advised that no request for consent will be made.

For situations mentioned in Appendix “A”, except where Crown counsel has authority to consent, he or she should prepare the same documentation, and submit it to the CFP for approval.

3.3. Obligation to consult in consent-based prosecutions

In respect of offences where consent to institute the prosecution was obtained, Crown counsel must consult the decision-maker (i.e., the DPP, Deputy DPP, CFP, Deputy CFP or General Counsel Legal Operations) where it is proposed: (i) to discontinue the prosecution, (ii) to make major changes to the charges, or (iii) to accept pleas to lesser charges than those for which consent had originally been granted. Where the consent of the DPP or Deputy DPP was obtained, consultations should be routed via the CFP.

4. Appendix A

Delegation to Federal Prosecutors and Persons Acting as Federal Prosecutors

  1. Pursuant to subsection 9(1) of the Director of Public Prosecutions Act (the Act), I hereby authorize federal prosecutors, as referred to in subsection 7(1) and persons acting as federal prosecutors as referred to in subsection 7(2) of the Act, to act for or on my behalf in the exercise of any of the powers or the performance of any of the duties or functions in relation to prosecutions that the Director of Public Prosecutions is authorized to exercise or perform under paragraphs 3(3)(a), (b), (d), (e), (f), and (g), subsections 3(8) and 3(9) of the Act or under any other Act of Parliament.
  2. In addition to the authorization set out in paragraph 1, Federal prosecutors holding the position of Chief Federal Prosecutor are also authorized to act for or on my behalf in relation to subsection 3(7) of the Act.
  3. Notwithstanding paragraph 1 above, where a provision of the Criminal Code or of any other Act of Parliament requires the express consent of the Attorney General of Canada or the Director of Public Prosecutions in order to initiate a prosecution or to take a specified step in a prosecution, as that term is defined in the Act:
    1. only those federal prosecutors mentioned in paragraph 4 below can consent and only in respect of the provisions specifically listed; and
    2. in respect of provisions that are not listed in paragraph 4 below, only the Director of Public Prosecutions or a Deputy Director of Public Prosecutions can consent.
  4. The power to consent on behalf of the Attorney General of Canada may only be exercised by:
    1. a federal prosecutor as referred to in subsection 7(1) and holding the position of Chief Federal Prosecutor with respect to the following statutory provisions:
      • Criminal Code
        • s. 54
        • s. 136(3)
        • s. 141
        • s. 174(3)
        • s. 342(2)
        • s. 347(7)
        • s. 385(2)
        • s. 402
        • s. 422(3)
        • s. 462.34
        • s. 477.2
        • s. 477.3
        • s. 478(3)
        • s. 479
        • s. 672.81
        • s. 672.86(1)(b) & (2)
        • s. 672.88
        • s. 672.89
        • s. 720(2)
        • s. 725
        • s. 733
        • s. 733.1
        • s. 742.5(1.1)
        • s. 742.6(3.2)
        • s. 753.3(2)
        • s. 803(3)
        • s. 810.01
        • s. 810.2

      • Immigration and Refugee Protection Act
        • s. 117(4)

      • Migratory Birds Convention Act
        • s. 18.3(6)

      • National Defence Act
        • s. 226(3)(a) & (b)

      • Youth Criminal Justice Act
        • s. 58(3)

    2. a federal prosecutor as referred to in subsection 7(1) and holding the position of Deputy Chief Federal Prosecutor or the position of General Counsel-Legal Operations with respect to the following statutory provisions of the Criminal Code:
      • s. 141
      • s. 462.34
      • s. 477.2
      • s. 477.3
      • s. 479
      • s. 672.81
      • s. 672.88
      • s. 672.89
      • s. 720(2)
      • s. 725
      • s. 733
      • s. 733.1
      • s. 742.5(1.1)

    3. a federal prosecutor as referred to in subsection 7(1) with respect to sections to the following statutory provisions of the Criminal Code:
      • s. 141
      • s. 462.34
      • s. 479
      • s. 672.81
      • s. 720(2)
      • s. 725

    4. a person acting as a federal prosecutor as referred to in subsection 7(2) with respect to sections to the following statutory provisions of the Criminal Code:
      • s. 462.34
      • s. 720(2)
      • s. 725

  5. Notwithstanding paragraph 1, the authority to enter into undertakings on behalf of the Attorney General pursuant to subsections 462.32(6) and 462.33(7) of the Criminal Code may only be exercised by a federal prosecutor holding the position of Chief Federal Prosecutor or a federal prosecutor holding the position of Deputy Chief Federal Prosecutor or the position of General Counsel-Legal Operations.
  6. When acting pursuant to this delegation, federal prosecutors and persons acting as federal prosecutors must comply with all applicable guidelines and directives.

Signed in Ottawa, in the Province of Ontario, this 20 day of September 2016.



_______________________________________
Brian Saunders
Director of Public Prosecutions and
Deputy Attorney General of Canada

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