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

July 6, 2023

Table of Contents

1. Introduction

Section 13 of the Director of Public Prosecutions ActFootnote 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 section 13 in deciding whether to issue directives to the DPP under subsection 10(1), to intervene in proceedings under section 14,Footnote 2 or to assume conduct of a prosecution under section 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, section 13 is intended as a statutory guarantee that the DPP will inform the Attorney General to enable the Attorney General to properly execute their 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 the Attorney General's powers, duties and functions under the Extradition ActFootnote 4 and the Mutual Legal Assistance in Criminal Matters ActFootnote 5 pursuant to subsection 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 section 13 notice include prosecutions, appeals and interventions as set out below.

2.1. Prosecutions

2.2. Appeals

2.3. Interventions

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

The section 13 notice requirement is limited to "prosecutions and interventions". Under section 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 the Attorney General's jurisdiction. Generally, the DPP does not provide section 13 notices in respect of investigations, in recognition of the independent investigative function.Footnote 10 However, the section 2 reference to "prospective prosecutions" indicates that the section 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 (special search warrants, restraint orders and management orders). That said, it is anticipated that section 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 subsection 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 section 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 section 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. Content of Notice

Section 13 notices should include a contextual explanation setting out why the Attorney General is being informed of the matter, as well as details concerning relevant timelines, such as filing deadlines, hearing dates, and trial dates, and other information that would be relevant to inform any decision by the Attorney General.

6. Treatment of Notice

Insofar as they contain legal advice and other privileged information, section 13 notices are to be treated as privileged. They are also confidential insofar as they relate to the exercise of prosecutorial discretion. The Attorney General may share section 13 notices with the Deputy Minister of Justice or others for the purpose of obtaining advice as to whether they should exercise their authority to issue a directive or take over a prosecution. The Attorney General may seek additional information from the DPP upon receiving a section 13 notice. As noted above, the Attorney General relies on the information contained in section 13 notices in deciding whether to issue specific directives, intervene in proceedings or take over a prosecution. The Attorney General may issue specific directives or take over a prosecution on public interest grounds or because they are of the view that there is, or is not, a reasonable prospect of conviction.

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