3.2 Designation of the Parties and the Prosecutors

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

1. Introduction
2. The Crown as Party to the Proceedings
3. The Director of Public Prosecutions as Party to the Proceedings
4. R v R Prosecutions: a Government Department as Defendant
5. Other Scenarios
- 5.1. Direct indictments with both provincial and federal charges
- 5.2. Federal prosecutor as agent of the Attorney General of Canada
Appendix A

1. Introduction

When counsel introduce themselves to a court, they also identify the party for whom they act.^{Footnote 1} The purpose of this guideline is to clarify who is the proper party and to explain how federal prosecutors and agents acting as federal prosecutors should identify themselves and whom they represent in all written pleadings^{Footnote 2} and in court.

The Public Prosecution Service of Canada (PPSC) is a federal government organization, created on December 12, 2006, when Part 3 of the Federal Accountability Act^{Footnote 3} received Royal Assent, bringing the Director of Public Prosecutions Act^{Footnote 4} (DPP Act) into force. The applied name of this federal government office under Treasury Board’s Federal Identity Program is the Public Prosecution Service of Canada, whereas its legal name is the Office of the Director of Public Prosecutions (ODPP).^{Footnote 5}

In criminal proceedings, the prosecuting party is Her Majesty the Queen,^{Footnote 6} or the Crown. This title emanates from the concept of state legal authority within a constitutional monarchy whereby the Queen, or “the Crown”, is the legal representative of the executive branch of government. Within the Canadian federation, the Queen, or the Crown, operates both at the federal level as “Her Majesty in Right of Canada” and at the provincial level as “Her Majesty in Right of” each province. The Crown may, in a given case, be an applicant, respondent, appellant or intervener, depending on the nature of the proceeding.

The Director of Public Prosecutions (DPP) is not a party to a prosecution. Rather, the DPP is the legal agent of the Crown, or counsel for the Crown. The DPP may, “under and on behalf of the Attorney General”, initiate and conduct prosecutions “on behalf of the Crown.” When exercising purely prosecutorial functions, federal prosecutors,^{Footnote 7} in turn, act as “delegated agents” for the DPP.^{Footnote 8}

2. The Crown as Party to the Proceedings

Whenever the Crown is the proper party named in the general heading of the court documents, which is the case for prosecutions and related proceedings,^{Footnote 9} federal prosecutors act as “agents of the DPP”, reflecting the language in s. 9(2) of the DPP Act, or “Counsel for Her Majesty the Queen”, or “Crown counsel”.

Thus, the proper description of counsel in documents which initiate a proceeding, or are a form of pleading, is “counsel for Her Majesty the Queen”, “counsel for the Crown” or “agent for the Director of Public Prosecutions”.^{Footnote 10} Unless the DPP is named as a party to a proceeding, written submissions and facta filed with the court should be signed with the identifier “counsel for Her Majesty the Queen”, “counsel for the Crown”, or “Crown counsel”, unless “counsel for the appellant” or “counsel for the respondent” is more appropriate and in keeping with the local practice of a particular court. In the same vein, unless the DPP is party to a proceeding, federal prosecutors should introduce themselves to the court as “counsel for the Crown”, “Crown counsel” or “counsel for the federal Crown”,^{Footnote 11} or words to the same effect. The cover page of written pleadings should identify counsel as being with the PPSC.

In all written pleadings, counsel should indicate the date and place of signature above or below the signature block. Some court rules require it.

In regulatory matters, some related proceedings are brought at the instance of the investigating agency.^{Footnote 12} Others are brought by persons attacking procedures instituted by the investigating agency. In those situations, where PPSC counsel are acting as advisory counsel to the regulatory agency, the general heading of the court documents will name the person identified by the relevant statute as the applicant. Counsel will identify themselves as “counsel for the applicant” (or respondent, as the case may be). However, the back page and other locations in the court documents requiring identification of the law firm and its address for service, counsel should indicate that they are from the ODPP, with their relevant branch or group and their own business address.

3. The Director of Public Prosecutions as Party to the Proceedings

Where the DPP is named as a party to a proceeding, federal prosecutors act as counsel for the DPP. In these circumstances, written submissions and facta should be signed “counsel for the Director of Public Prosecutions” and federal prosecutors should introduce themselves as “counsel for the Director of Public Prosecutions”. Examples of situations in which the DPP is a party to the proceedings are interventions in provincial prosecutions^{Footnote 13} and appeals made under s. 3(3)(b) of the DPP Act; extraordinary remedies sought against the DPP under Part XXVI of the Criminal Code (i.e., certiorari, habeas corpus, prohibition and mandamus); and judicial reviews of decisions made by the DPP.

4. R v R Prosecutions: a Government Department as Defendant

A government department or agency does not generally have distinct legal personality and therefore does not have the capacity to be a defendant in criminal proceedings.^{Footnote 14} All prosecutions either commenced by, or taken against, the federal Crown, are conducted in the name of Her Majesty the Queen. Thus, insofar as a statute binds Her Majesty in right of Canada,^{Footnote 15} Her Majesty can be prosecuted under that statute for the criminal conduct of her servants. In these situations the Queen finds herself on both sides of the prosecution. The Queen is represented by her Ministers for different purposes in a “R v R” prosecution. The Queen is represented for the prosecution by her Minister, the Attorney General of Canada, whose prosecution authority is delegated to the DPP by virtue of s. 3(3) of the DPP Act. In her defence, Her Majesty is represented by the Minister who is responsible for the defendant government institution. The defendant is “Her Majesty the Queen as represented by the Minister of [name of the department/agency]”.

Where a defendant in a federal prosecution or a respondent to a government application is a government department or agency whose legislation does not give it the capacity to sue or be sued or otherwise has no legal personality, the proper style of cause is “Her Majesty the Queen v Her Majesty the Queen”, “Regina v Regina”, or “R v R” for short. Similarly, the same practice applies in respect of certain other government entities that have no governing legislation and merely operate within the legislative mandate of another government department.^{Footnote 16}

5. Other Scenarios

5.1. Direct indictments with both provincial and federal charges

Any direct indictment containing provincial charges must have the consent of the respective provincial Attorney General, or Deputy Attorney General, even if the provincial counterpart delegates the prosecution of those charges to the federal prosecutor.

When filing a direct indictment containing both federal and provincial charges, counsel should sign the document as “agent for the Director of Public Prosecutions” with respect to the federal charges, and “agent for the Attorney General of [name of province]” with respect to the provincial charges. When jointly prosecuting federal and provincial charges, counsel should introduce themselves as appearing “for the Crown”, and so indicate in written submissions.^{Footnote 17}

5.2. Federal prosecutor as agent of the Attorney General of Canada

A federal prosecutor would almost never act as counsel or agent for the Attorney General, because this would suggest that the prosecutor could take directives directly from the Attorney General. This would go against the underlying purpose of the DPP Act which is to insulate the prosecution function from the Attorney General and the political process. Where the Attorney General intervenes in a prosecution or an appeal under s. 14 of the DPP Act, or assumes conduct of a prosecution under s. 15 of the DPP Act, normally counsel from the Department of Justice would act as agent of the Attorney General in that prosecution, intervention or appeal. The only rare situation where a federal prosecutor would be counsel for the Attorney General would be where the Attorney General appointed a federal prosecutor to act on behalf of the Attorney General in a s.14 intervention or a s. 15 prosecution.^{Footnote 18} This type of appointment would require prior approval of the DPP and, if approved, would involve certain administrative steps in order to formalize the fact that a federal prosecutor (who acts pursuant to s. 9 of the DPP Act) is no longer agent for the DPP when acting on behalf of the Attorney General of Canada in relation to a specific file.

Appendix A

Sample signature blocks

All of Which is Respectfully Submitted

Dated at [city, province/territory] this ____ day of __________, 20__.

At first instance

_____________________
[Name of counsel]
Counsel for Her Majesty the Queen

_____________________
[Name of counsel]
Crown Counsel

_____________________
[Name of counsel]
Agent of the Director of Public Prosecutions

On appeal

_____________________
[Name of counsel]
Counsel for the Appellant/Respondent

_____________________
[Name of co-counsel (if applicable)]
Counsel for the Appellant/Respondent

_____________________
[Name of counsel]
Counsel for Her Majesty the Queen

_____________________
[Name of co-counsel (if applicable)]
Counsel for Her Majesty the Queen

_____________________
[Name of counsel]
Agent of the Director of Public Prosecutions

_____________________
[Name of co-counsel (if applicable)]
Agent of the Director of Public Prosecutions

DPP as intervener

_____________________
[Name of counsel]
Counsel for the Intervener*

_____________________
[Name of co-counsel (if applicable)]
Counsel for the Intervener

_____________________
[Name of counsel]
Counsel for the Director of Public Prosecutions

_____________________
[Name of co-counsel (if applicable)]
Counsel for the Director of Public Prosecutions

Note that, in these interventions, counsel for the appellant or respondent Attorney General will be “counsel for Her Majesty the Queen”.

Footnotes

Footnote 1

Most court rules require court documents to have a “general heading” or “style of cause” which identify the parties before the court; they will often be identified as either applicant or respondent or intervener, or as appellant or respondent. This note is concerned with the proper use of names in the general heading as well as with how counsel identifies themselves in signature blocks and orally in court.

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Footnote 2

“Pleadings” is used expansively to include all types of material filed in courts, including, without limiting the generality of it, indictments, applications and motions, affidavits, facta and written submissions, and orders.

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Footnote 3

SC 2006, c 9.

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Footnote 4

Section 121 being Part 3 of the Federal Accountability Act, SC 2006, c 9.

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Footnote 5

An applied title is the approved name used in the signature to identify an institution, program or activity. This title should be used in all communications. By contrast, the legal title is the name that appears in the enabling legislation, proclamation, order in council, or other instrument used to create a branch of government.

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Footnote 6

Also referred to as “Regina”, hence the use of the abbreviation “R” in criminal styles of cause; e.g. R v John Doe.

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Footnote 7

This is the expression used by Parliament in ss 7 and 9 of the DPP Act to designate the prosecutors acting on behalf of the Federal Crown; the French version uses the term “procureurs de l’État”.

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Footnote 8

Section 9(1) of the DPP Act authorizes the DPP to delegate any of his or her powers, duties or functions (with the exception of the actual power to delegate), to employed federal prosecutors and to agents retained under s 7(2).

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Footnote 9

For example, an application for a management order pursuant to s 6 of the Seized Property Management Directorate Act, brought on consent of the Attorney General, is a step within the trial process and falls within the purview of s 3(3)(a) of the DPP Act (conducting prosecutions). Thus, a federal prosecutor applying for a management order, applies as agent of the DPP or counsel for the Crown because the Crown is the proper party, even though the law specifies that the Attorney General makes the application. Similarly, the Attorney General or the Deputy Attorney General (i.e., the DPP for this function) must authorize in writing a direct indictment under s 577 of the Criminal Code. Nevertheless, the proper party is the Crown and the federal prosecutor will sign the direct indictment as “agent of the Director of Public Prosecutions” and not as “agent of the Attorney General of Canada”.

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Footnote 10

Note that, while the term “agent of the DPP” is technically accurate in pleadings, prosecutors more commonly employ the term “Crown counsel” as it identifies the actual party to the proceeding, rather than the party’s counsel (i.e., DPP and his or her agent).

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Footnote 11

Note that, while there is no juridical party named the “federal Crown”, federal prosecutors commonly use this vernacular term to introduce themselves to the court, as distinct from their provincial counterparts, and it has been accepted.

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Footnote 12

See e.g. applications to a superior court by the Commissioner of Competition for search warrants or production orders under ss 15 and 11, respectively, of the Competition Act, RSC 1985, c C-34, as amended.

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Footnote 13

Counsel for the province in these matters represents the Crown, whereas the DPP becomes party to the proceedings as intervener.

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Footnote 14

Munro v Canada, (1992), 11 OR (3d) 1 (Gen Div) at 10–13. See also Conseil des ports nationaux v Langelier, [1969] SCR 60 at 71; Glaxo Canada Inc v Canada (1987), 11 FTR 121 at 125; Re Air India (1987), 62 OR (2d) 130 (HC); Robichaud v Canada (Attorney General) (1991), 44 FTR 172 at 177.

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Footnote 15

Section 17 of the Interpretation Act, RSC 1985, c I-21 provides that “No enactment is binding on Her Majesty or affects Her Majesty or Her Majesty’s rights or prerogatives in any manner, except as mentioned or referred to in the enactment.” For example, s 5 of the Canadian Environmental Protection Act, 1999, SC 1999, c 33 provides that “This Act is binding on Her Majesty in right of Canada or a province.”

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Footnote 16

For example, Service Canada operates within the legislative mandate and framework of the Department of Human Resources and Skills Development Act and the Department of Social Development Act. It has delegated authorities to execute its mandate and functions.

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Footnote 17

The authority of Crown counsel to prosecute a matter or institute an appeal need not be proved as part of the case at trial or on appeal. There is a presumption that when counsel attends to prosecute matters in a particular court and describes herself or himself as “Crown counsel” or “the Crown” or “agent for the DPP”, they are cloaked with the proper authority to do so. The court is entitled to rely on that presumption unless and until there is an objection taken. In the event of a technical challenge to jurisdiction, Crown counsel, as officer of the court, may confirm his or her authority and file any written documentation purporting to be signed by the relevant authorizing person that confirms that authority. See R v Chen (2006), 209 CCC (3d) 534, 205 Man R (2d) 157 at para 12, R v Lemay (No 2) (1951), 100 CCC 365 (BC CA), and R v Elliott (2003), 181 CCC (3d) 118 (ON CA).

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Footnote 18

In R v Marshall, 2002 NSSC 233, the Nova Scotia Supreme Court considered the right of the DPP to cross-appoint counsel from the provincial justice department to argue an appeal. The Court dismissed the application for judicial review. It found no conceptual difficulty with the cross-appointment but acknowledged that the situation may have been more difficult if the DPP had appointed counsel to conduct a trial.

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Date modified:: 2015-07-23

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