1.3 Consultation within Government

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

The independence of the Attorney General of Canada, the Director of Public Prosecutions (DPP), and by extension Crown counsel, in deciding whether to prosecute is an important constitutional principle in Canada.Footnote 1 “Prosecutorial independence”, however, does not mean regional or institutional isolation and does not exclude the notions of cooperation and consultation. Under the Director of Public Prosecutions ActFootnote 2 (DPP Act), the independence is that of the DPP who is ultimately accountable to the Attorney General,Footnote 3 to the public and to the courts for the prosecution function, and not of individual prosecutors. In some instances prosecutorial decision-making, including the determination of whether a prosecution best serves the public interest,Footnote 4 whether charges should be stayed, or a particular position on sentence taken, may warrant consultation with those who can provide Crown counsel with relevant information and expertise.

The Public Prosecution Service of Canada (PPSC) is responsible for prosecuting offences under numerous federal statutes and for providing prosecution-related legal advice to law enforcement agencies in relation to these statutes. Cases prosecuted by the PPSC include those involving drugs, organized crime, terrorism, tax law, money laundering and proceeds of crime, crimes against humanity and war crimes, all Criminal Code offences in the territories, and a vast array of other offences under federal statutes. With such wide-ranging prosecutorial responsibilities, PPSC counsel require an effective consultation process.

Interdepartmental consultation is important because of the shared responsibilities among government departments for enforcing federal laws. Specific ministers and departments are responsible for administering and enforcing specific legislation that also contain offence provisions prosecuted by the PPSC. For example, the Minister of National Revenue is primarily responsible for administering and enforcing the Income Tax Act; the Minister of Transport administers and enforces the Aeronautics Act.

This directive describes the consultation process with other departments of the Government of Canada that are involved in the enforcement of federal statutes, and with Department of Justice centres of expertise. Other guidelines describe the consultation process within the PPSC, between PPSC Regional Offices and Headquarters, and with investigative agencies.Footnote 5

2. Cases where Consultation is Highly Recommended

Formal consultation may be warranted in cases that are of significant public interest, which raise legal issues of national importance or which involve certain specialized areas of the law. These include, but are not limited to: cases before the Supreme Court of Canada; larger scale environmental prosecutions; challenges to the constitutionality of federal legislation; war crimes, crimes against humanity and genocide prosecutions; and cases involving official language rights, aboriginal law or national security issues.

However, even if a case does not fall into one of the above categories, Crown counsel should consider whether consultation with the Department of Justice and/or other federal departments and agencies is necessary. In deciding whether to consult outside the PPSC on a case, counsel should consider a number of factors including:

Where consultation is required, Crown counsel are expected to adhere to the process set out in the following paragraphs.Footnote 6 

2.1. Cases involving official languages issues

Crown counsel must contact the Chief Federal Prosecutor (CFP) at the earliest opportunity of impending cases in which language rights issues are raised under the Canadian Charter of Rights and Freedoms, the Official Languages Act or any related legislation.

If warranted, the champion or co-champion of official languages will then consult with the Official Languages Law Section of the Department of Justice. That Section helps ensure government wide consistency and accuracy in positions being advanced respecting official languages.

For further information on the consultation process respecting official languages issues, see the PPSC Deskbook directive 2.11 Official Languages in Prosecutions.

2.2. Aboriginal law cases

When Aboriginal law issues that are complex or novel arise in the course of a prosecution, Crown counsel must contact PPSC Headquarters counsel responsible for Aboriginal law issues in litigation.

If warranted, the Headquarters counsel will consult with the Aboriginal Law Portfolio in the Department of Justice. That Section provides legal advice on complex and emerging issues in the area of Aboriginal law.

2.3. Cases involving national security issues

Crown counsel must be particularly sensitive to the need to protect information the disclosure of which would be injurious to national security. Any prosecution which involves the possible disclosure of such information requires a special consultative process.

When a national security interest arises, Crown counsel must advise at the earliest opportunity the CFP who, in turn, will advise the Headquarters Senior Counsel, National Security Issues. The latter will contact the head of the appropriate Legal Services Unit (for example, CSIS, CSE, or the RCMP), and the Department of Justice National Security Group, and the Privy Council Office as needed. The Senior Counsel, National Security Issues will also consult with the Deputy DPP.

For further information on the consultation process respecting national security issues, see the PPSC Deskbook guideline 5.1 National Security and the PPSC Deskbook directive 4.2 Protecting Confidential Information under section 38 of the Canada Evidence Act.

3. Consultation with Enforcement Authorities

Most federal prosecutions stem from investigations conducted by federal department investigators or by the police. In some situations, Crown counsel will be aware of a case at the investigative stage because of a request for legal advice. Sometimes, Crown counsel will not learn of a case until after investigators have laid charges and sent the Report to Crown Counsel/Crown Brief to the Regional Office. In either situation, decisions will have to be made regarding the charges to pursue, the evidence to call, the legal arguments to make, the recommendations to make on sentence and the decision to appeal. In making these decisions, Crown counsel should consult, where appropriate, with the investigating officers where the investigative agency’s interests are engaged substantively.

Especially in the prosecution of offences under specialized statutes (for example, the Canadian Environmental Protection Act, 1999, Immigration and Refugee Protection Act, Proceeds of Crime (Money Laundering) and Terrorist Financing Act (PCMLTFA), Aeronautics Act and the Migratory Birds Convention Act, etc.), Crown counsel should review the compliance and enforcement policies developed by the department or agency responsible for the underlying legislation.

Counsel may communicate directly with the appropriate investigating authority.Footnote 7 In cases where consultation is warranted with senior managers of a government department or agency, as for example, where that department's or agency’s policies or practices are challenged, where legislation is attacked or on the more technical aspects of regulatory statutes, Crown counsel may ask the Department of Justice Legal Services Unit for that department or agency to arrange the consultation. Ultimately however, the DPP is responsible for the conduct of litigation subject to any directives the Attorney General may issue under s. 10(1) of the DPP Act.

4. Consultation with Department of Justice Generally

In respect of criminal or regulatory offence proceedings, in addition to consulting with police officers and other investigators, it may be important for Crown counsel to consult with other centres of expertise within government, in order to:

This type of consultation gives Crown counsel access to a wide range of viewpoints and expertise and helps ensure that prosecutorial decisions are made with knowledge of all relevant information. It is appropriate where circumstances warrant for Crown counsel to consult with Department of Justice counsel where specialized advice is required. Crown counsel should initiate the consultation process at the earliest possible stage in the proceedings to allow the consultation to be useful.

4.1. Consultation process

All consultation with the Department of Justice Headquarters normally should be routed, at least initially, through PPSC Headquarters counsel, who provide assistance on complex or novel prosecution issues. Crown counsel can identify the appropriate PPSC Headquarters counsel contact by reviewing the subject-matter experts on the PPSC intranet. If no subject-matter expert exists for the issue at hand, Crown counsel should contact their PPSC Headquarters counsel regional contact. PPSC Headquarters counsel will then contact subject-matter experts within the Department of Justice as needed.

4.2. The Human Rights Law Section

Crown counsel conducting prosecutions which raise human rights issues involving the Canadian Charter of Rights and Freedoms, the Canadian Human Rights Act, the Canadian Bill of Rights, or international human rights law may receive assistance from the Human Rights Law Section (HRLS).

4.3. The Constitutional, Administrative and International Law Section

When prosecutions raise legal issues in the areas of constitutional law and the law relating to federal government institutions, such as the extent and level of delegation of authority and due process, Constitutional, Administrative and International Law Section (CAILS) counsel may assist Crown counsel.

4.4. The Information Law and Privacy Section

Crown counsel may wish to consult the Information Law and Privacy Section (ILAP) when litigation questions arise regarding disclosure of personal information in the Crown’s possession that may be restricted under the Privacy Act or when other issues relating to the Access to Information Act and the protection of privacy under Privacy Act arise.Footnote 8

4.5. The Criminal Law Policy Section

The Criminal Law Policy Section (CLPS) develops and implements policies related to the Criminal Code and other federal statutes involving the criminal law. In cases involving a constitutional challenge to a provision of the Criminal Code or other federal legislation, the CLPS can explain why the provision was adopted in its current form and assist in identifying material, such as transcripts of hearings before Parliamentary Committees that will assist in defending the legislation.

4.6. The National Security Group

The National Security Group (NSG) is the central coordinating office within the Department of Justice for s. 38 of the Canada Evidence Act, providing advice, receiving s. 38 CEA notices, and making recommendations to the Attorney General of Canada as to whether to consent to the disclosure of sensitive information in criminal proceedings. NSG counsel also provide legal advice on security and information-related issues under the Security of Information Act, the Security Offences Act, and the Anti-terrorism Act in general. The NSG must be consulted on issues relating to s. 38 notices.Footnote 9

4.7. The Criminal Litigation Division

The Criminal Litigation Division within the Department of Justice’s Litigation Branch conducts criminal litigation on behalf of the Attorney General of Canada. One of its primary functions is the conduct of extradition and mutual legal assistance proceedings.Footnote 10 Additionally, because the Attorney General defends the constitutionality of federal legislation, either the Attorney General or the DPP may seek to intervene in provincial Criminal Code prosecutions.

4.8. The Department of Justice Legal Service Units

Counsel in the Department’s Legal Service Units have specialized subject-matter expertise and can assist PPSC counsel on technical or interpretation issues regarding the regulation or statutes in their respective areas of expertise.

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