3.5 Delegated 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

Revised March 25, 2022

Table of Contents

1. Purpose

This guideline explains the procedure to obtain approval when a statute requires the consent of the Attorney General before initiating a prosecution or taking a particular step in a criminal proceeding.

2. Context

Prosecutors make the vast majority of prosecutorial decisions pursuant to authorities delegated by the Director of Public Prosecutions (DPP). The DPP's prosecutorial powers and functions are codified in the Director of Public Prosecutions Act (DPP Act).Footnote 1Pursuant to s. 3(3) of the DPP Act, the DPP exercises these general powers "under and on behalf of the Attorney General" independently, subject to directives issued by the Attorney General under s. 10.Footnote 2 Pursuant to s. 9(1) of the DPP Act, the DPP may authorize federal prosecutors and other employees to exercise the powers and perform the duties and functions related to prosecutions, such as the power to initiate and conduct prosecutions. The DPP has delegated many of these powers, duties, and functions to federal prosecutors, paralegals, and articling students.Footnote 3

Certain prosecutorial decisions require specific higher-level approval, however. Some offences in the Criminal Code and in other federal statutes require the consent of the Attorney General or the Deputy Attorney General before a prosecution can be initiated or before a certain step can be taken in a criminal proceeding. Statutes articulate this requirement in different ways. Some demand the Attorney General's "personal consent in writing".Footnote 4 Others require the Attorney General's "consent in writing"Footnote 5 or simply "the consent of the Attorney General".Footnote 6 Some of these go further and identify a need to obtain consent from a particular Attorney General, federalFootnote 7 or provincial.Footnote 8

The DPP has the authority to provide the required consent as the Deputy Attorney General. Indeed, s. 2 of the Criminal Code defines the Attorney General as including the Deputy Attorney General and s. 3(4) of the DPP Act confirms that the DPP is the Deputy Attorney General for the purpose of exercising the powers and performing the duties and functions set out in s. 3(3). In addition, paragraph 24(2)(c) of the Interpretation Act confirms that words directing or empowering a minister to do an act or thing also include the minister's deputy.Footnote 9

Deputy Directors of Public Prosecutions (DDPPs) also have the authority to provide consent. Subsection 6(3) of the DPP Act specifies that a DDPP may, under the DPP's supervision, exercise any of the powers and perform any of the duties or functions set out in s. 3(3) of the DPP Act, and for that purpose is a lawful deputy of the Attorney General.Footnote 10

Pursuant to s. 9 of the DPP Act, the DPP has also authorized Chief Federal Prosecutors (CFPs), Deputy Chief Federal Prosecutors (DCFPs), Team Leaders and prosecutors to provide consent for the purposes of certain statutory provisions. The decision maker remains accountable to the DPP for the decisions taken.Footnote 11 For statutory provisions that are not listed in the authorization, consent must be sought from:

  1. The DPP, if the provision requires the personal consent in writing of either the Attorney General or the Deputy Attorney General; or
  2. The DPP or a DDPP, in all other cases.

Prosecutors should identify cases requiring consent at the pre-charge or initial charge review stage, and seek consent from the appropriate decision maker as soon as possible. Where an offence requires the consent of the Attorney General to "institute", "commence", or "continue" a prosecution, the consent is an element of the offence that the Crown must be able to prove beyond a reasonable doubt.Footnote 12 It is a necessary precondition to the jurisdiction of the court and charges can be dismissed for lack of jurisdiction if the Crown cannot prove consent.Footnote 13 Where the statutory language requires consent to "institute" proceedings, consent must be obtained before laying the information, since a prosecution is instituted when a person lays an information before a justice, while a prosecution is commenced when a justice of the peace issues process compelling the attendance of the accused in court.Footnote 14

3. Procedure to obtain consent

In cases where a prosecutor must obtain the consent of a Team Leader, DCFP, CFP, DDPP, or the DPP, the prosecutors must:

  1. Prepare a memorandum containing:
    1. A concise statement of facts showing that there is a reasonable prospect of conviction and that the public interest is best served by a prosecution. If multiple accused are to be charged, the memorandum must demonstrate that there is sufficient evidence to implicate each accused individually. The statement of facts must also include:
      1. The name of the accused;
      2. Their citizenship, if the accused is not a Canadian;
      3. A list of the charges sought against the accused;
      4. A summary of the evidence; and
      5. The date by which the consent is required.
    2. A confirmation that the investigating department or agency has been consulted and a summary of its views about the proposed prosecution.Footnote 15
    3. A recommendation for each element requiring consent.
    4. An annex containing a draft consent form in the format reproduced at Appendix A.
  2. Provide the memorandum to the appropriate decision maker, if consent can be provided by a Team Leader, DCFP or CFP. If consent can only be provided by a DDPP or the DPP, the prosecutor must provide the memorandum to the CFP.

In cases requiring the personal consent of a DDPP or the DPP,

  1. The CFP will:
    1. Review the memorandum prepared by the prosecutor; and
    2. Endorse the recommendation and send it to the DDPP if the CFP is satisfied that the case meets the criteria set out in the DPP guideline "2.3 Decision to Prosecute".
  2. The DDPP will review the request and will
    1. Inform the CFP that the request for consent has been denied or will not be forwarded to the DPP, if the DDPP concludes that proceedings should not be instituted;
    2. Sign the consent form (Appendix A), for matters where the DDPP is authorized to provide consent; or
    3. Endorse the recommendation and forward it to the DPP, for matters that require the personal consent of the DPP.

4. Obligation to consult in consent-based prosecutions

In cases where consent to institute a prosecution was obtained, prosecutors must consult the decision maker before discontinuing a prosecution, making major changes to the charges, or accepting pleas to lesser charges than those for which consent had originally been granted. Prosecutors may consult the decision maker directly in cases where consent was provided by a Team Leader, DCFP, or CFP. In cases where consent was provided by a DDPP or the DPP, consultations should be routed via the CFP.

Appendix A – Consent form

Pursuant to (state section and statute requiring consent), I consent to the (institution, commencement, or continuation) of proceedings against (accused's name, address and, if not Canadian, citizenship) for an offence contrary to (state offence section and statute).

This consent is given in relation to the following allegation(s):

(provide draft charges and a brief description of primary facts alleged including date and location)

This consent is given at (City), Canada, this ___ day of ___________ , _______.

______________________________

(As the case may be, Director of Public Prosecutions of Canada and Deputy Attorney General of Canada; Deputy Director of Public Prosecutions and lawful deputy of the Attorney General of Canada pursuant to subsection 6(3) of the Director of Public Prosecutions Act; Chief Federal Prosecutor; Deputy Chief Federal Prosecutor; or Team Leader)

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