2.1 Independence and Accountability in Decision-Making

Public Prosecution Service of Canada Deskbook

Guideline of the Director Issued under Section 3(3)(c) of the Director of Public Prosecutions Act

March 1, 2014

Table of Contents

1. Introduction

The principle of the independence of the Attorney General is firmly entrenched in our legal system, widely respected, and carefully safeguarded. Perhaps less well understood is the operation of the independence principle in the day-to-day decision-making of individual Crown counsel. Crown counselFootnote 1 exercise their independence as the representative of the Director of Public Prosecutions (DPP). As such, their “independence” is a delegated independence. This independence is institutional, rather than personal, and is aimed at safeguarding the independence of the Public Prosecution Service of Canada (PPSC). Crown counsel are obliged to make decisions in accordance with the directives of the Attorney General and the guidelines of the DPP,Footnote 2 and they act under the direction of Chief Federal Prosecutors (CFP), who are in turn responsible to the DPP and his or her Deputy DPPs.Footnote 3 That said, Crown counsel also retain a degree of discretion in individual cases.Footnote 4

Crown counsel, like the Attorney General and the DPP, are accountable for their decisions. Since the Attorney General is accountable to Parliament, the courts and the publicFootnote 5 for decisions made on his or her behalf, this means that the Attorney General may issue a directive to the DPP in a particular case,Footnote 6 though such situations would be relatively rare and any such directives must be published in the Canada Gazette in order to maintain transparency.Footnote 7

The independence principle also does not mean that Crown counsel need not consult. Quite to the contrary, responsible prosecutorial decision-making often requires consultation with colleagues, superiors or investigators.Footnote 8 Indeed prosecutorial discretion is not exercised in a vacuum. The principle of independence means that, subject to s. 10(1) of the Director of Public Prosecutions Act (DPP Act), the DPP does not take instructions as to how to exercise discretion in prosecution matters. Similarly, Crown counsel do not take instructions as to how to proceed, except from those in the line of authority leading ultimately to the Attorney General, including, the CFP, the Deputy DPPs, and the DPP who, for the purpose of performing the powers, duties and functions under s. 3(3) of the DPP Act, is the Deputy Attorney General.Footnote 9

The interaction of the principles of independence, accountability and consultation mean that what is protected is a system of prosecutorial decision-making in which the prosecutor is an integral component. A large measure of independence is conferred on Crown counsel, but absolute discretion is not.

2. Statement of Policy

Crown counsel are obliged to exercise independent judgment in making decisions. Because their decision-making powers are delegated to them by the DPP, whose own powers, duties and functions to act under and on behalf of the Attorney General are delegated under the DPP Act,Footnote 10 Crown counsel are accountable for their decisions, and they must consult where required. Prosecutorial independence is not a license to do as one wishes, but to act as the Attorney General and the DPP should act.Footnote 11

3. Accountability

“Prosecutorial independence” is that of the DPP who is accountable to the courts and to the public for the federal prosecution function as explained below. Individual prosecutors are, in turn, accountable to their CFP, the Deputy DPPs and the DPP. Additionally, while the DPP Act creates the Office of the DPP,Footnote 12 the Attorney General of Canada remains the chief law officer of the Crown and is ultimately accountable to Parliament, the courts and the public for the federal prosecution function. The DPP’s role is distinct from that of the Attorney General; it entails closer oversight and more frequent involvement in files.

This form of public accountability is crucial to a system of open justice, and Crown counsel must be cognizant of this fact. This explains the need to ensure that the DPP is well-briefed in order to fulfill his or her statutory responsibility to inform the Attorney General of prosecutions and interventions that raise important questions of general interest. This duty to inform also allows the Attorney General to provide answers to questions that may be posed in Parliament. The principle of public accountability is clearest in situations where Parliament has required that some prosecutorial decisions be made by the Attorney General (or Deputy Attorney General) personally; an example is the decision to lay war crimes/crimes against humanity charges under s. 9(3) of the Crimes against Humanity and War Crimes Act.Footnote 13

An equally important form of accountability is internal accountability. All Crown counsel are accountable to their superiors for decisions taken.Footnote 14 The PPSC is organized to foster principled, competent and responsible decision-making. One of the goals of the DPP’s guidelines is to assist counsel in making the numerous difficult decisions which arise in criminal litigation. In so doing, they set objective standards against which prosecutorial conduct may be measured.

Individual prosecutors are also subject to a form of public accountability through their membership in provincial law societies.Footnote 15 Another form of public accountability occurs through judicial review of a prosecutor’s actions, for example, through the abuse of process doctrine, or judicial control of actions which may prejudice fair trial interests, such as inflammatory jury addresses. Accountability is also enhanced because of the availability to the public of the Attorney General’s directives and the DPP’s guidelines, since the public is able to assess the actions of Crown counsel against the standards set out in the directives and guidelines. Finally, recognition of the importance of public accountability imposes a duty on Crown counsel in certain circumstances to communicate the reasons for certain decisions to the public through the media.Footnote 16

4. Delegation of Decision-Making Power

As a practical matter, Crown counsel exercise most of the functions assigned by the Criminal Code to the Attorney General. The DPP exercises delegated powers, duties and functions on behalf of the Attorney General by virtue of the DPP Act and, in turn, has delegated many of these powersFootnote 17 to Crown counsel, but retains a discretion to direct that a particular decision be made. Likewise, the Attorney General may direct that a particular decision be made in a specific prosecution under s. 10(1) of the DPP Act. Transparency is assured by making the Attorney General’s action a matter of public record for such a directive must be in writing and published in the Canada Gazette.Footnote 18

Sections 14 and 15 of the DPP Act recognize the power of the Attorney General both to intervene in criminal proceedings and to assume conduct of particular prosecutions. Where the Attorney General gives notice to the DPP that he or she intends to assume conduct of a prosecution, prosecutorial independence is safeguarded by the DPP Act which requires publication of the notice of intent in the Canada Gazette, making the Attorney General’s action a matter of public record.Footnote 19

5. ConsultationFootnote 20

Independence of the prosecution service from government does not mean that Crown counsel cannot consult others. They may, and in some cases shall, consult others for the purpose of determining whether it is in the public interest to prosecute a case. Examples of persons with whom counsel can, and in some circumstance should, consult include police officers or other investigators,Footnote 21 victims of crime,Footnote 22 and government departments or agenciesFootnote 23.

Consultation ensures that Crown counsel have access to a wide range of viewpoints and information so that their decisions are made with full knowledge of all the circumstances. This is particularly useful in regulatory prosecutions. However, prosecutorial independence means that government departments and police officers cannot dictate to Crown counsel that a certain course of action be followed.

Consultation within the PPSC rests on a somewhat different footing. The DPP exercises delegated powers, duties and functions on behalf of the Attorney General.Footnote 24 In turn, the DPP has delegated authority to Crown counsel under s. 9 of the DPP Act. Because Crown counsel, as a practical matter, act in the DPP’s name, it is important that consultation be undertaken internally to ensure that the DPP is made aware of potential problems, and, in some cases, to direct that a particular course of action be undertaken. This is necessary to ensure consistent decision-making, and that the DPP approve of decisions for which he or she is publicly accountable.Footnote 25 This also allows the DPP to fulfill his statutory obligation under s. 13 of the DPP ActFootnote 26 to inform the Attorney General of prosecutions and interventions that raise important questions of general interest.Footnote 27

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