Roles of the Attorney General and the Director of Public Prosecutions
The Attorney General of Canada
The Minister of Justice is, by statute, also the Attorney General of Canada. As the Chief Law Officer of the Crown, the Attorney General is responsible for providing legal advice to all government departments and for regulating and conducting all litigation for and against the Crown or any department of the Government of Canada.
Many federal statutes give the Attorney General additional powers and duties relating to prosecutions. These are conferred both directly on the Attorney General personally and indirectly through the many responsibilities placed on “the prosecutor” in the Criminal Code.
The Attorney General of Canada has ultimate authority to prosecute all non-Criminal Code federal offences in the provinces initiated on behalf of the Government of Canada and authority to prosecute both Criminal Code and non-Criminal Code offences in the three territories. This authority does not extend to Canada Elections Act offences. The Attorney General of Canada also has concurrent authority with provincial colleagues to prosecute certain Criminal Code offences such as the terrorism and organized crime provisions. As well, the Attorney General of Canada may prosecute Criminal Code offences with the consent and on behalf of a provincial Attorney General. Similarly, provincial Attorneys General may prosecute federal offences with the consent and on behalf of the Attorney General of Canada.
Duties of a Prosecutor
The duties of a prosecutor are to be carried out in an objective, independent, and non-partisan manner. The Attorney General is similarly bound when carrying out any prosecutorial duties.
In the leading case of Alberta v. Krieger, 2002 SCC 65, the Supreme Court of Canada held that “It is a constitutional principle in this country that the Attorney General must act independently of partisan concerns when supervising prosecutorial decisions.” While a prosecutor may consult with others in exercising prosecutorial discretion, he or she cannot be dictated to by others.
Prosecutorial discretion covers decisions to institute, continue or terminate criminal proceedings. In making these decisions, the prosecutor must consider whether the evidence demonstrates that there is a reasonable prospect of conviction and, if so, whether a prosecution best serves the public interest. In general, these decisions are made by prosecutors, and it is only in very rare cases that the Attorney General becomes personally involved in a case.
As is described below, it is also a well-established principle that prosecutors do not conduct investigations or direct investigators. While a prosecutor may provide advice to an investigator during an investigation, the prosecutor must be careful that the provision of such advice does not undermine their capacity to provide an independent review of whether charges should be instituted or continued.
The Director of Public Prosecutions Act
On December 12, 2006, the Office of Director of Public Prosecutions (ODPP) was created with the coming into force of the Director of Public Prosecutions Act (the DPP Act). The Act makes the Director of Public Prosecutions (DPP) responsible for the prosecution of federal offences. The ODPP was created to ensure that the mechanisms to protect prosecutorial independence from improper influences, including improper political influence, are statutory and transparent.
The legal name of the organization is the Office of the Director of Public Prosecutions whereas its applied, or common name, is the Public Prosecution Service of Canada.
A copy of the DPP Act is included herewith as Appendix A.
Role of the Director of Public Prosecutions
Under section 3(3) of the Director of Public Prosecutions Act, the DPP has been delegated the Attorney General’s authority to initiate and conduct federal prosecutions, to intervene in proceedings that raise a question of public interest that may affect the conduct of prosecutions or related investigations, to issue guidelines to federal prosecutors, and to advise law enforcement agencies on matters related to prosecutions generally and particular investigations that may lead to a prosecution. In respect of these matters, the DPP is the Deputy Attorney General of Canada.
In fulfilling the above duties, the DPP acts “under and on behalf of the Attorney General”. As a result, given their respective responsibilities, the relationship between the Attorney General and the DPP is of the utmost importance in ensuring that both can fulfill their duties while achieving the legislative goal of an independent, apolitical, and accountable prosecution service.
The DPP has the power to make binding and final decisions to prosecute offences under federal jurisdiction, unless otherwise directed by the Attorney General under section 10(1) of the DPP Act, or unless the Attorney General assumes conduct of the prosecution under section 15 of the Act. In respect of the Canada Elections Act, the DPP has sole authority to decide whether to conduct a prosecution on behalf of the Crown, as well as any appeal or proceeding related to such a prosecution.Note 1
The Director of Public Prosecutions Act does not accord the DPP any investigative powers. This stems from the fact that the Office of the Attorney General does not have any such powers. Accordingly, neither the Attorney General nor the DPP has the power to order, direct or supervise a police investigation. The benefits of the respective independence of the investigative and prosecutorial functions have been recognized by the courts, including the Supreme Court of Canada in the cases of Krieger v Law Society of Alberta,  3 SCR 372; R v Regan,  1 SCR 297; and R v Beaudry,  1 SCR 190. In addition, several commissions of inquiry into wrongful convictions, most notably the Royal Commission on the Donald Marshall Prosecution, have insisted that a line of demarcation be drawn between the two functions.
The DPP has a duty under section 13 of the DPP Act to inform the Attorney General in a timely fashion of any prosecution or intervention that the DPP intends to make that raises important questions of general interest. This information is normally provided by way of a written memorandum addressed to the Attorney General. There is no requirement in the Act that the Attorney General and the DPP meet to discuss prosecution-related issues. More detailed information with respect to this duty is found at Tab 13 – “Notices under Section 13 of the Director of Public Prosecutions Act”.
Although not required by the Director of Public Prosecutions Act, the Attorney General can consult with the DPP to seek advice on the potential operational effects on prosecutions of policy, legislative or litigation matters.
The DPP must provide an Annual Report on the activities of the PPSC to the Attorney General for tabling in Parliament. A copy of the PPSC’s most recent available Annual Report is attached as Appendix B.
Power of the Attorney General to Assume Conduct of Prosecutions and to Issue Directives and Assignments
Section 15 of the Director of Public Prosecution Act provides the Attorney General with the power to assume conduct of a prosecution, except for prosecutions initiated under the Canada Elections Act. Before assuming conduct of a prosecution, the Attorney General must first consult the DPP. To safeguard the DPP’s independence, any directive from the Attorney General to the DPP, including any decision to assume conduct, must be in writing and published in the Canada Gazette.
Section 10 of the DPP Act allows the Attorney General to issue directives with respect to cases generally, or to individual cases. Section 3(3)(g) of the Act enables the Attorney General to assign any other power, duty or function to the DPP that is compatible with the ODPP. Such directives and assignments must be published in the Canada Gazette. While the Director of Public Prosecutions Act does not require the Attorney General to consult the DPP prior to issuing a specific directive under section 10(1) or an assignment under s. 3(3)(g), it is advisable that such consultation take place in order for the Attorney General to benefit from the knowledge of the DPP in relation to individual prosecutions where applicable and in the conduct of prosecutions in general. Consultation of this kind has taken place in relation to past assignments and serves to ensure that any future specific directive or assignment is compatible with the DPP Act.
Directives Issued by the Attorney General
To date, the Attorney General has not issued any directives in respect of specific cases nor assumed conduct of a prosecution.
On June 16, 2014, the Attorney General issued a directive instructing that all federal prosecutors and Crown agents acting as federal prosecutors respect the 12 directives issued by the Attorney General set out in the PPSC DeskbookNote 2. These directives together with guidelines issued by the DPP that are also found in the PPSC Deskbook provide guidance to federal prosecutors on the exercise of their discretion. Amended chapters 2.11 Official Languages in Prosecutions and 5.6 Victims of Crime were subsequently incorporated into the PPSC Deskbook by a directive issued by the Attorney General on January 15, 2017.
Following the coming into force of the Anti-Terrorism Act, 2015, the Attorney General issued a directive confirming the PPSC’s role in the conduct and initiation of terror-related prosecutions. The directive was published in the Canada Gazette on June 27, 2015. Additional information regarding this directive is provided in the Transition Note on “National Security and War Crimes” found at Tab 18.
On November 30, 2018, the Attorney General issued a directive with respect to prosecutions for non-disclosure of HIV status in specific circumstances.
Assignments Issued by the Attorney General
Since the coming into force of the DPP Act in 2006, the Attorney General has issued four assignments of responsibility to the DPP for:
- developing a set of best practices for prosecuting frauds against governments;
- conducting prosecutions that the Attorney General may undertake pursuant to agreements with the provincial Attorneys General;
- administering the National Fine Recovery Program and conducting proceedings to enforce the collection of outstanding federal fines, including the bringing of civil proceedings; and
- exercising the authorities of the Attorney General in the Criminal Code and the Controlled Drugs and Substances Act subject to a list of exclusions for items that are more appropriately dealt with through the Department of Justice (DOJ).
The last assignment was issued by the Attorney General on July 20, 2015, and published in the Canada Gazette on August 1, 2015, to provide clarity and to address the potential uncertainty that was raised by a 2014 decision of the Yukon Territorial CourtNote 3 with respect to which authorities under the Criminal Code may be exercised by the DPP.Note 4
There are a number of provisions in the Criminal Code and other federal statutes that require the consent of the Attorney General before steps may be taken or require the designation of an individual by the Attorney General. The definition of Attorney General in the Criminal Code allows these authorities to be exercised by a lawful deputy of the Attorney General. The long-standing practice has been for a deputy to exercise these authorities rather than the Attorney General personally. As subsection 3(4) of the Director of Public Prosecutions Act makes the DPP a lawful deputy of the Attorney General on all matters set out in s. 3 of the Act, the DPP has exercised most of these authorities. The assignment recognizes these authorities without expanding the role of the DPP and without encroaching on the DPP’s independence in any way.
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