1.1 Relationship between the Attorney General and the Director of Public Prosecutions

Public Prosecution Service of Canada Deskbook

Directive of the Attorney General Issued under Section 10(2) of the Director of Public Prosecutions Act

March 1, 2014

Table of Contents

1. Overview of the Relationship between the Attorney General and the Director of Public Prosecutions

1.1. Creation of the Office of the Director of Public Prosecutions

The Director of Public Prosecutions ActNote de bas de page 1 (DPP Act or the Act) established the Office of the Director of Public Prosecutions (ODPP). The DPP Act was designed to strengthen the twin goals of institutional independence and ultimate ministerial accountability.Note de bas de page 2 On one hand, it was intended to enhance integrity in government by statutorily ensuring independence of the prosecution decision-making function from inappropriate political control, direction and influence. It enshrines in legislation the quasi-constitutional principle of independence of the prosecution function from the partisan political process. In this sense, it evokes the oft-quoted 1924 aphorism of Lord Chief Justice Hewart that “Justice should not only be done but should manifestly and undoubtedly be seen to be done.”Note de bas de page 3

At the same time, the DPP Act does not speak of absolute ODPP independence. Because the Attorney General is fully accountable to Parliament for the prosecution function, the Act ensures a measure of oversight for the exercise of prosecutorial discretion.Note de bas de page 4 First, s. 3(3), which outlines the Director of Public Prosecutions’ (DPP) duties and functions, provides that the DPP acts “under and on behalf of the Attorney General”. Second, the Attorney General may issue directives in respect of specific prosecutionsNote de bas de page 5 or in respect of prosecutions more generally.Note de bas de page 6 Third, as discussed below, ss. 13–15 of the Act require the DPP to notify the Attorney General about important questions of general interest, and give the Attorney General the power to intervene in proceedings or to assume conduct of prosecutions. In turn, the DPP Act counterbalances the Attorney General’s oversight function and safeguards DPP independence from the Attorney General by requiring that the issuance of s. 10 directives and assuming conduct of a prosecution under s. 15 be in writing and made public.

1.2. Role of the Attorney General

The DPP Act has not changed the Attorney General’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 ActNote de bas de page 7) in the provinces and authority to prosecute both Criminal Code and non-Criminal Code offences in the three territories. Moreover, ss. 2(b.1)-(g) of the definition of “Attorney General” in the Criminal Code give concurrent jurisdiction to the Attorney General of Canada to prosecute certain Criminal Code offences including terrorism offences, organized crime offences, fraud, insider trading, and stock market fraud. However, under s. 3(3) of the 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, and subject to the Attorney General’s powers to intervene inNote de bas de page 8 or assume conduct ofNote de bas de page 9 criminal proceedings. Because the Attorney General may also defend the constitutionality of federal legislation, the Attorney General may exercise the powers to take charge of a prosecution or intervene and thereby become a party to proceedings as appellant, respondent or, in the case of provincial Criminal Code prosecutions, intervener where the constitutionality of federal legislation is challenged.

It is a core constitutional tenet that the Attorney General, and by extension the DPP, are bound by the principle of independence in respect of the prosecution function.Note de bas de page 10 As the Supreme Court stated in Law Society of Alberta v Krieger:Note de bas de page 11 “It is a constitutional principle in this country that the Attorney General must act independently of partisan concerns when supervising prosecutorial decisions.” However, it is quite appropriate for the Attorney General to consult with Cabinet colleagues before exercising his or her powers under the DPP Act in respect of any criminal proceedings. Indeed, sometimes it will be important to do so in order to be cognisant of pan-government perspectives. The Attorney General of England, Sir Hartley Shawcross (later Lord Shawcross) in 1951 best described the proper relationship between the Attorney General and Cabinet colleagues (and now, likewise, between the DPP, his or her designated agents and the departments that administer the statutes):

I think the true doctrine is that it is the duty of an Attorney-General, in deciding whether or not to authorize the prosecution, to acquaint himself with all the relevant facts, including, for instance, the effect which the prosecution, successful or unsuccessful as the case may be, would have upon public morale and order, and with any other considerations affecting public policy.

In order so to inform himself, he may, although I do not think he is obliged to, consult with any of his colleagues in the Government; and indeed, as Lord Simon once said, he would in some cases be a fool if he did not. On the other hand, the assistance of his colleagues is confined to informing him of particular considerations, which might affect his own decision, and does not consist, and must not consist in telling him what that decision ought to be. The responsibility for the eventual decision rests with the Attorney-General, and he is not to be put, and is not put, under pressure by his colleagues in the matter.

Nor, of course, can the Attorney-General shift his responsibility for making the decision on to the shoulders of his colleagues. If political considerations which, in the broad sense that I have indicated, affect government in the abstract arise, it is the Attorney-General, applying his judicial mind, who has to be the sole judge of those considerations.Note de bas de page 12

Since then, federal and provincial Attorneys General in Canada have adopted this statement, often referred to as the “Shawcross principle”.Note de bas de page 13 Similarly, the judiciary has supported these principles,Note de bas de page 14 as have leading authorities on the role of the Attorney General.Note de bas de page 15

1.3. Role of the Director of Public Prosecutions

The DPP has the power to make binding and final decisions to prosecute offences under federal statutes, stay proceedings or launch an appeal, unless otherwise instructed by the Attorney General under s. 10(1). The notion of DPP independence relates to the prosecutorial decision-making process – and all steps incidental to it.Note de bas de page 16 The DPP is regarded as an independent officer, exercising quasi-judicial responsibilities.Note de bas de page 17 Section 3(3) of the Act enumerates the duties and functions that are delegated to the DPP, which include the authority to:

  1. initiate and conduct federal prosecutions subject to the Attorney General’s s. 15 power;
  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 s. 14 power;
  3. issue general guidelines to prosecutors;Note de bas de page 18
  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; and
  6. exercise the Attorney General’s authority in respect of private prosecutions.

Section 3(3)(g) leaves open the possibility that the Attorney General may delegate additional functions to the DPP.Note de bas de page 19 It provides that the DPP may exercise any other power, duty or function assigned by the Attorney General that is compatible with the Office of the DPP. In relation to the matters set out in s. 3(3), the DPP is accountable to the Attorney General and is the Deputy Attorney General of Canada for the purpose of performing these duties and functions.Note de bas de page 20

In Canada, the investigation and prosecution functions are separate and independent. The courts have affirmed this principle repeatedly.Note de bas de page 21 Indeed, several commissions of inquiry into wrongful convictions, most notably the Royal Commission on the Donald Marshall Prosecution,Note de bas de page 22 have insisted that a clear line of demarcation be drawn between the two functions. The DPP Act upholds this principle and does not confer on the DPP any investigative powers.Note de bas de page 23 By the same token, the Attorney General cannot direct the DPP to work with the RCMP on a specific investigation. Police are independent from political control and from control by either the Attorney General or the DPP when investigating crime.Note de bas de page 24 In the same manner, the DPP is independent from police in the prosecution function. No investigative agency or investigating body within a government department may instruct the prosecution to pursue or discontinue a particular prosecution or to undertake a specific appeal. These decisions rest solely with the DPP (and his or her delegated agent), subject to the Attorney General’s powers under ss. 10 and 15. Although the investigation and prosecution functions are distinct, there is nevertheless a great deal of cooperation and consultation between police, investigative agencies and prosecutors even at the investigative stage.Note de bas de page 25

1.4. Guiding principles

Given their interconnected responsibilities, an effective relationship between the Attorney General and the DPP is of the utmost importance in ensuring that both can fulfill their important public duties while achieving the legislative goal of an independent, apolitical, and accountable prosecution service. The Attorney General is directly accountable to Parliament, while the DPP is indirectly accountable to Parliament. The DPP is required to report to Parliament annually on its activities through the Attorney General and the DPP may be called to appear before parliamentary committees. Thus, it is crucial that they work in a consultative way so their decisions are fully informed. To ensure prosecutorial independence and accountability, their relationship should be premised on the following principles:

  1. Respect for the independence of the prosecutorial function - By virtue of s. 3(3)(c) and s. 10(2), the Attorney General and the DPP are jointly responsible for establishing general prosecution policy, but the DPP is responsible for the exercises of prosecutorial discretion pursuant to that policy (subject to the Attorney General’s residual powers under ss. 10 and 15).
  2. Notification on matters of significant public interest - The vast majority of prosecutorial decision-making and policy development requires no prior notice. However, the DPP should inform the Attorney General when the exercise of his or her duties raises issues that pertain to the Attorney General’s functions. Notification in this regard comes within the DPP’s duty to inform under s. 13 of the DPP Act,Note de bas de page 26 which is designed to assist the Attorney General in deciding whether or not to issue a directive under s. 10(1), to exercise the authority under s. 14 to intervene in first instance or on appeal, or under s. 15 to assume carriage of a prosecution. Additionally, quite apart from the aforementioned DPP Act powers, the Attorney General must be adequately briefed on prosecutorial decisions that are expected to generate significant public interest in order to report to Parliament on the manner in which the prosecution function is exercised in his or her name.Note de bas de page 27
  3. In the same vein, the Attorney General consults with the DPP on policy, legislative or litigation matters which may have a significant impact on prosecutions or police powers. It is understood that consultations with prosecutors from both provincial and federal prosecution services can provide crucial practical perspective on criminal law policy issues.
  4. Periodic meetings and discussions -The Attorney General and the DPP are to meet on a regular basis to discuss prosecution-related issues. It is particularly important that this occur with respect to issues which may be the subject of policy directivesNote de bas de page 28 that have a broad operational impact. The DPP Act does not specify a frequency of meetings between the DPP and the Attorney General.Note de bas de page 29 This allows for flexibility to suit the particular working relationship of successive DPPs and the Attorneys General.

2. Powers, Duties and Functions under the Director of Public Prosecutions Act

2.1. The exercise of the Director’s duties and functions

Section 3(3) of the DPP Act sets out most of the duties and functions of the DPP.Note de bas de page 30 It provides that those duties and functions will be performed “under and on behalf of” the Attorney General, without further defining the words “under and on behalf of”. What this connotes is that the DPP is independent from influence in the decision-making process related to the prosecution function. However, the DPP has only the powers, duties and functions conferred by statute, he or she is accountable to the Attorney General, and, in turn, the Attorney General remains answerable to Parliament for the DPP’s activities.

2.2. The power of the Attorney General to issue directives

Prosecutorial decision-making must take place independently of the interests of the government of the day.Note de bas de page 31 The historical practice of successive Attorneys General of Canada has been to refrain from becoming involved in the day-to-day operational decision making of public prosecutions. In recognition of the Attorney General’s powers of superintendence, s. 10 of the DPP Act allows the Attorney General to issue directives on the initiation or conduct of any specific prosecution,Note de bas de page 32 and with respect to prosecutions generally.Note de bas de page 33

Section 10 is one of the hallmarks of independence of the prosecution function.Note de bas de page 34 To safeguard the DPP’s independence, s. 10 requires that directives respecting specific prosecutions and respecting prosecutions generally be in writing and published in the Canada Gazette. Mandatory publication of the directive assures transparency, and enables the Attorney General to be accountable for his or her decisions. Ultimately, this requirement for transparency serves as a strong deterrent against partisan political influence and pressure in prosecution-related decision-making. These directives are not intended to have the force of law and are exempt from review by Parliament’s Standing Joint Committee for the Scrutiny of Regulations.Note de bas de page 35

The power to issue directives has been exercised sparingly in other jurisdictions in which this power exists.Note de bas de page 36 Such a situation may arise, for example, where there is disagreement between the DPP and the Attorney General as to whether to proceed with certain types of prosecutions or whether to appeal in a particular case, based on divergent assessments of what the public interest demands in the particular circumstances of that case.

Section 11(1) authorizes both the Attorney General and the DPP to delay publication of a directive in a specific prosecution in the interests of the administration of justice. This measure of flexibility recognizes that occasionally the publication rule may have to yield to operational exigencies, for example, to ensure the integrity of an ongoing investigation or to avoid a negative impact on prosecutions or other proceedings that are still before the courts. This delay may not continue beyond the completion of the prosecution or any related prosecution.Note de bas de page 37

2.3. The duty to inform

Under s. 13 of the DPP Act, the DPP has a duty to “inform the Attorney General in a timely manner of any prosecution, or intervention that the DPP intends to make, that raises important questions of general interest.”Note de bas de page 38 This duty is fundamental to the relationship between the Attorney General and the DPP, since the Attorney General may use such information in deciding whether to issue a directive under s. 10, to intervene in proceedings under s. 14,Note de bas de page 39 or to assume conduct of a prosecution under s. 15.

Although the Act sets out no corresponding duty on the part of the Attorney General, it is essential to a properly functioning relationship that information flow in both directions. For example, many civil cases raise constitutional, evidentiary or privilege issues which can have an important impact on the prosecution practice of the DPP.

2.4. The power of the Attorney General to intervene in proceedings

As the chief legal advisor to Cabinet and to the Government of Canada, the Attorney General has a broad perspective concerning the development of all aspects of law including matters that fall under the Criminal Code and other federal penal statutes. The legal challenges facing the Government of Canada are complex and multi-dimensional in nature. Their resolution requires that they be viewed through many lenses – whether policy, aboriginal, strategic, division of powers, or the Canadian Charter of Rights and Freedoms (Charter), to name but a few. As a result, the Attorney General may seek to intervene in criminal litigation, particularly if there is a constitutional challenge to federal laws.Note de bas de page 40

Section 14 of the DPP Act gives the Attorney General the power, after notifying the DPP, to intervene in proceedings at first instance or on appeal that, in his or her opinion, raise questions of “public interest”.Note de bas de page 41 In theory, the Attorney General may intervene in prosecutions conducted by the DPP in order to present different views on an issue, for example proceedings that raise issues of informer privilege, broader issues of police conduct or cases that raise both Charter and division-of-powers issues. However, such interventions in federal prosecutions would be rare, in light of the power to take charge of a prosecution.Note de bas de page 42

The DPP, or the Attorney General, may wish to intervene in a provincial matter. Typically the DPP, or Attorney General of Canada, will intervene in a provincial matter to support the province, since such federal interventions often involve challenges to the constitutionality of Criminal Code provisions. Like the ODPP, provincial prosecution services prosecute matters only where the prosecution is considered to be in the “public interest”. On occasion, however, in view of the multifarious considerations that may come into play in a given case, the two levels of government may assess public interest considerations differently or the federal government may consider it important to advance a particular argument as intervener that may not be advanced by the provincial appellant.Note de bas de page 43

The Attorney General and the DPP cannot both intervene in a case prosecuted by a provincial Attorney General. Section 3(3)(b) of the DPP Act provides that the DPP can intervene unless the Attorney General has decided to intervene. Section 13 imposes a positive duty on the DPP to give advance notice, in a timely manner, of interventions that the DPP intends to make. Moreover, as a practical matter, most interventions at first instance or on appeal result from Notices of Constitutional Question (NCQ). By statute or by court rules,Note de bas de page 44 an applicant who intends to challenge the constitutional validity or applicability of a particular piece of federal legislation or regulation, a common law rule or to claim a remedy under s. 24(1) of the Charter in relation to an act or omission of a federal government institution, must serve a NCQ on the Attorney General.Note de bas de page 45 Thus, in effect, the Attorney General essentially has a “right of first refusal” in deciding whether or not to intervene in cases prosecuted by a provincial Attorney General.

2.5. The power of the Attorney General to assume conduct of proceedings

Section 15 of the DPP Act sets out the power of the Attorney General to take over a prosecution from the DPP. However, the Attorney General must first consult the DPP regarding his or her decision to assume conduct of a prosecution and must publish the notice in the Canada Gazette “without delay”,Note de bas de page 46 unless either the Attorney General or the DPP considers a delay in notice to be justified “in the interests of the administration of justice”.Note de bas de page 47 The DPP must turn over the prosecution file to the Attorney General, where the latter assumes conduct of the case, and must provide any information that the Attorney General requires within the time specified by the Attorney General (s. 15(2)).

Section 15 reflects the fact that the Attorney General retains his or her criminal law related powers under the DPP Act. The foregoing power, like the power to issue directives, is one which is to be exercised sparingly in order to preserve the independence of the DPP.Note de bas de page 48 Nevertheless, s. 15 recognizes that the Attorney General is ultimately accountable to Parliament for federal prosecutions. Accordingly, there must be a residual capacity in the Attorney General to ensure that decisions are taken in the public interest.

2.6. The duty to report

Section 16 of the DPP Act requires the DPP to provide the Attorney General with an annual report not later than June 30 of every year. The Attorney General is then required to table that report in the Houses of Parliament within the first 15 sitting days immediately following receipt of the report. The DPP’s annual report to Parliament is a key mechanism for ensuring transparency and public accountability for federal prosecutions. The report is required to provide a summary of the DPP’s activitiesNote de bas de page 49 of the year in review, and usually contains a review of the anticipated legal challenges and priorities for the future, and how public money was expended in carrying out the DPP’s duties and functions.

2.7. Delegated decision-making

Some offences in the Criminal Code and in other federal statutes can be prosecuted only with the prior consent of the Attorney General on whose behalf the prosecution will be conducted.Note de bas de page 50 By virtue of s. 3(4) of the DPP Act, the DPP is Deputy Attorney General for the purpose of exercising the bulk of prosecution-related duties, functions and powers, which are set out in s. 3(3).Note de bas de page 51 The principal significance of s. 3(4) is that it brings into play s. 2 of the Criminal Code which defines the Attorney General to include the Deputy Attorney General. Additionally, s. 3(3)(a) delegates to the DPP, as Deputy Attorney General, the Attorney General’s power to initiate and conduct prosecutions. Thus, ordinarily, decisions statutorily requiring the “personal consent in writing” of the Attorney General or Deputy Attorney General, will be made by the DPP, being the Deputy Attorney General for the functions set out in s. 3(3)(c) of the DPP Act.

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