1.2 Duty to Inform the Attorney General under Section 13 of the Director of Public Prosecutions Act

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. Introduction
• 2. Types of Cases that Should be Reported under Section 13
  • 2.1. Prosecutions
  • 2.2. Appeals
  • 2.3. Interventions
• 3. Notice at the Pre-charge Stage and Regarding Decisions not to Prosecute
• 4. Timing of Notice
• 5. Format of Notice

1. Introduction

Section 13 of the Director of Public Prosecutions Act^{Footnote 1} (DPP Act) provides that the Director of Public Prosecutions (DPP) has a duty “to inform the Attorney General in a timely manner of any prosecution, or intervention that the Director intends to make, that raises important questions of general interest.” This duty arises from the relationship between the Attorney General and the DPP, since the Attorney General may rely upon information provided under s. 13 in deciding whether to issue directives to the DPP under s. 10(1), to intervene in proceedings under s. 14,^{Footnote 2} or to assume conduct of a prosecution under s. 15.^{Footnote 3}

Section 13 is not intended to be the exclusive mechanism for information flow between the DPP and the Attorney General in respect of prosecution matters. Rather, s. 13 is intended as a statutory guarantee that the DPP will inform the Attorney General to enable the Attorney General to properly execute his or her functions as chief law officer of the Crown. Section 13 notes are issued by the DPP and are intended for the Attorney General personally.

Section 13 does not apply to proceedings conducted by the Public Prosecution Service of Canada (PPSC) on behalf of the Attorney General in relation to his or her powers, duties and functions under the Extradition Act^{Footnote 4} and the Mutual Legal Assistance in Criminal Matters Act^{Footnote 5} pursuant to s. 3(9) of the DPP Act,^{Footnote 6} nor does it apply to prosecutions under the Canada Elections Act.^{Footnote 7}

2. Types of Cases that Should be Reported under Section 13

Section 13 notices are required in cases that raise “important questions” that are of “general interest”. The framers opted for the term “general interest” which is broader than “public interest”. As the legislative summary of Bill C-2, An Act providing for conflict of interest rules, restrictions on election financing and measures respecting administrative transparency, oversight and accountability, explained:

A distinction is made between the term “public interest” and the broader term “general interest” (considered to subsume “public interest”) so that the DPP will have a broader duty to inform the Attorney General of important matters. The House Committee removed the need for questions of general or public interest to be “beyond the scope of those usually raised in prosecutions,” as it was considered to be unnecessary and unduly limit the ability of the Attorney General to intervene.^{Footnote 8}

The qualifier “important questions” acts as an additional threshold to distinguish matters of significance from more routine or recurring matters.

Examples of cases that may involve important questions of general interest and thus generally would be subject to a s. 13 notice include:

2.1. Prosecutions

• Cases giving rise to concerns regarding public confidence in the administration of justice, including the manner in which a prosecution is conducted insofar as the impartiality or independence of the PPSC is at issue;
• Cases that may have a significant impact on established jurisprudence;
• National security prosecutions;
• War crimes, crimes against humanity and genocide prosecutions;
• Official languages issues in prosecutions;
• Prosecutions that involve novel aboriginal rights issues;
• Criminal organization prosecutions that raise “important questions of general interest” by virtue of the significance or novelty of the issues being litigated, or any broader government concerns such as border security;
• Environmental prosecutions that raise issues of national importance;
• Capital markets fraud cases of national significance;
• Cases with an international dimension;
• Constitutional challenges (Canadian Charter of Rights and Freedoms (Charter) or division of powers) to legislation or to federal government programs that are novel (i.e. notices would not be required on routine or recurring constitutional challenges); and
• Cases that give rise to sustained, significant and/or anticipated media interest and that also raise important questions, for example when a matter puts into question the public’s confidence in the administration of justice.

2.2. Appeals

• Supreme Court of Canada appeals, whether on leave or as of right; and
• Other appeals, to provincial and territorial courts of appeal and summary conviction appeals, which raise “important questions of general interest”. They would include:
  • Cases involving constitutional challenges to legislation (Charter, division of powers, Aboriginal rights), official languages rights;
  • Cases that may have a significant impact on police and prosecutorial functions, duties and powers;
  • Cases that raise a significant impact on rules of procedure and evidence; and
  • Cases that raise other significant Charter issues.

2.3. Interventions

• Interventions to be made on behalf of the DPP or the Attorney General,^{Footnote 9} whether in the Supreme Court of Canada, in any court of appeal or at trial.

3. Notice at the Pre-charge Stage and Regarding Decisions not to Prosecute

The s. 13 notice requirement is limited to “prosecutions and interventions”. Under s. 2 of the DPP Act, the term “prosecutions” is defined to include, not only a prosecution under the Attorney General’s jurisdiction, but also “a proceeding respecting any offence where the prosecution or prospective prosecution” comes within his or her jurisdiction. Generally, the DPP does not provide s. 13 notices in respect of investigations, in recognition of the independent investigative function.^{Footnote 10} However, the s. 2 reference to “prospective prosecutions” indicates that the s. 13 notice requirement extends to pre-charge “proceedings”. This would include various ex parte Crown applications to obtain judicial authorization to use investigative or enforcement techniques (wiretap authorizations, special search warrants, restraint orders and management orders). That said, it is anticipated that s. 13 notices in respect of ex parte Crown applications would be exceedingly rare at the pre-charge stage in large part because the fundamental principle of police independence at the investigative stage must inform what is an important question of general interest.

In most Canadian jurisdictions, decisions to decline prosecution are made post-charge and dealt with by way of a stay of proceedings or withdrawal of charges. Proceedings to stay or withdraw charges are subject to s. 13. However, by virtue of the s. 2 definition of “prosecutions” which is limited to “proceedings”, s.13 would not extend to prosecutorial decisions not to prosecute in pre-charge approval jurisdictions (Quebec, British Columbia and New Brunswick) because the prosecutorial decision-making is not a “proceedings”. For the same reason, s. 13 would not apply to decisions of the DPP not to consent to institute criminal proceedings.^{Footnote 11} That said, while such decisions to decline prosecution would not constitute “proceedings” and thus would fall outside the scope of s. 13, the DPP will apply the spirit of s. 13 and notify the Attorney General of such pre-charge decisions if they raise important questions of general interest so that the Attorney General may decide whether or not to issue a directive under s. 10(1) or to assume conduct of a prosecution under s. 15 where the DPP has declined to prosecute. It is conceivable, for example, that the Attorney General could reach a different conclusion in applying the “public interest” criteria of the decision to prosecute test.^{Footnote 12}

4. Timing of Notice

Section 13 requires that notice be given “in a timely manner”. By necessity, the timelines for providing a s. 13 notice will vary from case-to-case in accordance with the particular facts, including any applicable time limitation periods.^{Footnote 13} That said, the s. 13 timeliness requirement must be interpreted to uphold the overarching principle that, to the extent possible, the Attorney General must be given sufficient opportunity to react.

Notices should be given in respect of prosecutions that raise important questions of general interest at various milestone stages of the prosecution, notably prior to initiating prosecutions, discontinuing proceedings, staying a prosecution, including a private prosecution, and prior to decisions to appeal or to intervene. The decision of whether to issue a notice (or a follow-up notice) should be made to give effect to the Attorney General’s role as chief law officer of the Crown, including the powers that the Attorney General may exercise pursuant to the DPP Act regarding directions given to the DPP (s. 10), assuming conduct of a prosecution (s. 15), and interventions by the Attorney General (s. 14).

5. Format of Notice

Normally, counsel of record in the Regional Office will initiate the process and will prepare a draft s. 13 memorandum in accordance with the existing s. 13 notice templates available on the PPSC Intranet. The Chief Federal Prosecutor or his/her delegate, and a Deputy Director will approve the memorandum. The DPP will then sign the memorandum. The Ministerial and External Relations Section coordinates the transmission of s. 13 notices to the Attorney General’s Office.

Although the customary practice is for the Regional Office to commence the s. 13 process, Headquarters may request a s. 13 notice when a matter comes to the attention of the DPP or Deputy DPP.

The DPP Act does not preclude oral notices followed by written notices, and these may be given where it is appropriate or necessary to do so in light of time constraints.