Part I UNDERSTANDING CRIMINAL LAW IN CANADA Chapter 3

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Table of Contents


3 THE ROLE OF THE MINISTER OF JUSTICE AND THE ATTORNEY GENERAL IN DEVELOPING AND ENFORCING CRIMINAL LAW

3.1 Introduction

This chapter discusses several aspects of the duties of the Minister of Justice and the Attorney General of Canada.

3.2 The Department of Justice Act

Subsection 2(1) of the Department of Justice Act (the Act) states that the Minister of Justice presides over the Department of Justice. Subsection 2(2) provides that the Minister is ex officio Her Majesty's Attorney General, and has the management and direction of the Department.

3.3 Duties and Responsibilities

3.3.1 Minister of Justice

Section 4 of the Act outlines the duties and responsibilities of the Minister of Justice. The Minister is the official legal advisor of the Governor General and a member of the Queen's Privy Council for Canada. The Minister is responsible for ensuring the administration of public affairs is in accordance with the law, and superintends the administration of justice in Canada in matters not within the jurisdiction of the provinces. The Minister is also responsible for advising the Crown on all matters of law referred to the Minister by the Crown.

In addition, the Minister of Justice must examine every regulation submitted to the Clerk of the Privy Council for registration pursuant to the Statutory Instruments Act and every Bill introduced in or presented to the House of Commons by a minister of the Crown to determine if any of their provisions are inconsistent with the Canadian Bill of Rights and the Charter of Rights and Freedoms. The Minister must report any inconsistency to the House of Commons.

3.3.2 Attorney General of Canada

Section 5 of the Act sets out the duties and responsibilities of the Attorney General. The powers and duties that belong to the office of the Attorney General of England are entrusted to the Attorney General of Canada, in so far as those powers and duties are applicable to Canada. The powers and duties that belonged to the office of the Attorney General of each province up to the time when the Constitution Act, 1867 came into effect are also entrusted to the Attorney General of Canada, in so far as those laws are to be administered and carried into effect by the Government of Canada.

The Attorney General of Canada provides legal advice to the heads of the Government departments. Further, the Attorney General carries out all litigation for or against the Crown or any department of the Government of Canada.

Many federal statutes give the Attorney General additional powers and duties relating to prosecutions. These are conferred both directly on the Attorney General personally, and indirectly on the Attorney General through the many responsibilities placed on “the prosecutor” in the Criminal Code.

3.4 The Role of the Minister of Justice

3.4.1 In Developing and Amending the Criminal Law

The Minister of Justice has lead responsibility in developing the criminal law, particularly in such areas as criminal justice, evidence, and extradition. This responsibility ranges from policy development to the preparation of legislative proposals to be tabled in the House of Commons. The Minister is also responsible for reviewing and amending the Criminal Code, the Canada Evidence Act, the Extradition Act, the Mutual Legal Assistance in Criminal Matters Act, the Young Offenders Act and approximately 40 other federal statutesFootnote 1.

To support the policy development function of the Minister, the Department conducts extensive legal and social science research, consults regularly with provincial and territorial governments and various non-government organizations, and participates actively in international criminal justice matters. The Minister also develops policy proposals on aboriginal criminal justice in consultation with the Solicitor General and the Minister of Indian Affairs and Northern Development.

3.4.2 In ExtraditionFootnote 2

Extradition is the surrender by one state, at the request of another, of a person who is wanted for prosecution for, or has been convicted of, a crime committed within the jurisdiction of the requesting state. When extradition is sought by Canada, the Minister's participation is generally limited to making the extradition request.

On the other hand, when extradition is sought from Canada by a foreign state, the process involves two phases. The first phase requires an extradition judge to consider if the crime is one for which extradition may be granted according to the Extradition Act or the arrangement (treaty or other agreement) between Canada and the foreign state. The judge considers if there is sufficient evidence to put the fugitive on trial. If there is, the judge informs the Minister and commits the fugitive to prison to await surrender.

The second phase involves the Minister's decision to surrender the fugitive to the foreign state under the Extradition Act. This decision is political in natureFootnote 3. The circumstances under which the Minister may refuse to surrender a fugitive can be determined from the terms of the Extradition Act, the applicable extradition treaty and the Charter. The Minister may, for example, refuse to surrender when the fugitive is subject to a proceeding or serving a sentence in Canada, is charged with a political offence in the foreign state, or where specific assurances the Minister asks for are not provided by the requesting state.

3.4.3 In International MattersFootnote 4

The Department takes part in negotiating extradition and mutual legal assistance treaties on behalf of the Minister. The Minister approves the treaties and is responsible for implementing Canada's responsibilities in accordance with them. For both types of treaties, the Minister is the “central authority” who receives requests from and makes requests to foreign states.

In addition, the Government of Canada, in accordance with extradition treaties and the Mutual Legal Assistance in Criminal Matters Act, is obliged to provide counsel to assist foreign states before Canadian courts in both extradition and mutual legal assistance matters. The Attorney General of Canada provides these counsel.

The Department also participates in the criminal justice policy activities of the United Nations, the Commonwealth, the Council of Europe and the Organization of American States. These activities often result in international agreements and conventions, such as the United Nations Convention against Illicit Traffic in Drugs and Psychotropic Substances.

3.5 The Role of the Attorney General

3.5.1 Regarding the Provision of Legal Advice, Investigations and ProsecutionsFootnote 5

The Attorney General, through the Department, provides legal advice to investigative agencies on the criminal law implications of investigations and prosecutions. Legal advice given by the Department to government departments, investigative agencies and the police is protected by solicitor-client privilege. In general, the Department refrains from releasing legal advice, referring to it, or describing it in any fashion unless the privilege has been waived by the recipient of the advice. The concept of solicitor-client privilege, with supporting authorities, is discussed in greater detail in Part III, Chapter 9, “Duties and Responsibilities of Crown Counsel”. Where access to legal advice given by the Attorney General is sought by defence counsel, Crown counsel must bring the matter to the attention of the Assistant Deputy Attorney General (Criminal Law) via the Regional Director or Senior Regional Director.

On occasion, the Attorney General receives information about federal criminal investigations of considerable public interest. The Attorney General may be questioned by the media, committees of the House of Commons, or individual members of the House of Commons about these investigations. It is a long standing practice that the Attorney General not publicly discuss these investigations or disclose the findings and reports stemming from such matters. The Attorney General may, however, privately share knowledge of an investigation with appropriate authorities. For example, the A.G. would advise the Prime Minister about an investigation if the subject matter affected the integrity of government, such as where a member of Cabinet is under investigation.

There are two reasons for the practice of non-disclosure. First, ongoing criminal investigations conducted by the RCMP are generally considered to be the responsibility of the Solicitor General. Second, criminal investigations often involve considering untested allegations, speculation, and conjecture. These may, and often do, appear in investigation reports prepared by the police.

In addition, the Attorney General refrains from inappropriate public discussion of cases that are before the courtsFootnote 6. There are several reasons for this:

3.5.2 In Instituting, Continuing or Terminating Criminal Proceedings

The decision to institute, continue or terminate criminal proceedings is an important exercise of the Attorney General's discretion. Not every alleged breach of the criminal law will result in a criminal prosecution. In determining which cases to prosecute, the Attorney General (usually through Crown counsel) exercises a broad discretion in the public interest.

Several factors are considered when deciding whether to prosecute. In addition to assessing the sufficiency of the evidence, the Attorney General considers broader issues, such as the effect of the prosecution on the public interest. The Attorney General must exclude any consideration based upon narrow, partisan views, or the political consequences to the Attorney General or Cabinet colleagues. The decision to prosecute is discussed in greater detail elsewhere in this deskbookFootnote 7.

3.5.3 As ProsecutorFootnote 8

Section 2 of the Criminal Code defines “prosecutor” to include the Attorney General. “Attorney General” is defined in the same section as:

Attorney General...

  1. with respect to
    1. the Yukon Territory, the Northwest Territories and Nunavut, or
    2. proceedings commenced at the instance of the Government of Canada and conducted by or on behalf of that Government in respect of a contravention of, a conspiracy or attempt to contravene or counselling the contravention of any Act of Parliament other than this Act or any regulation made under any such act, means the Attorney General of Canada and includes his lawful deputy.

For the Attorney General of Canada to prosecute offences outside the Yukon Territory, the Northwest Territories, and Nunavut, this section requires that three conditions be met:

  1. The proceedings must have been commenced at the instance of the Government of Canada;
  2. The proceedings must be conducted by or on behalf of the Government of Canada; and
  3. There must be a contravention of, or a conspiracy or an attempt to contravene, or a counselling of the contravention of, a federal statute or regulation other than the Criminal Code.

It should be noted however, that on occasion the Attorney General of Canada does prosecute Criminal Code offences outside the Yukon Territory, the Northwest Territories, and Nunavut. This will occur, for example, where an individual facing several drug charges is also charged with a Criminal Code offence. In such circumstances, provincial Attorneys General may choose to confer authority on the Attorney General of Canada to conduct the Criminal Code prosecution.

Certain Criminal Code offences, such as war crimes and crimes against humanity (s. 7(3.75)), provide specific statutory exceptions to the definition of “Attorney General” in s. 2 of the Criminal Code. Another example is found in s. 467.2 of the Criminal Code, which was brought into effect by An Act to amend the Criminal Code (criminal organizations) and to amend other Acts in consequence, S.C. 1997, c. 23 (Bill C-95). Section 467.2 permits the Attorney General of Canada to conduct proceedings in respect of a “criminal organization offence”, a term defined in s. 2 of the Criminal Code.

Attorney General” is also defined in s. 2 of the Controlled Drugs and Substances Act as follows:

Attorney General” means

  1. the Attorney General of Canada, and includes their lawful deputy, or
  2. with respect to proceedings commenced at the instance of the government of a province and conducted by or on behalf of that government, the Attorney General of that province, and includes their lawful deputy;

The section makes it clear that authority to prosecute under that Act is vested in the Attorney General of Canada unless proceedings are commenced at the instance of the government of a province and conducted by or on behalf of that province.

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