The Federal Prosecution Service
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Part V
PROCEEDINGS AT TRIAL AND ON APPEAL
Chapter 16

Table of Contents

16 DECISIONS MADE BY, AND ON BEHALF OF, THE ATTORNEY GENERAL

16.1 INTRODUCTION

16.2 BACKGROUND: THE DELEGATION OF POWERS PRINCIPLE

16.3 STATEMENT OF THE POLICY

16.4 OPERATION OF THE POLICY
16.4.1 Identification of the Decision-Maker
16.4.2 Procedure for Obtaining the Personal Consent of the Attorney General or Deputy Attorney General
16.4.2.1 Consent Documentation
16.4.3 Section 7(7) of the Criminal Code
16.4.4 Procedure for Obtaining the Consent of the Senior Regional Director or Senior General Counsel
16.4.5 Requests by Private Citizens for the Consent of the Attorney General to Prosecute
16.4.6 Applications for Prohibition or Prescriptive Orders under the Competition Act
16.4.6.1 Statement of Policy
16.4.6.2 Procedure

16.5 APPENDIX A

16.6 APPENDIX B

16.7 APPENDIX C

16.8 APPENDIX D

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16 DECISIONS MADE BY, AND ON BEHALF OF, THE ATTORNEY GENERAL

16.1 Introduction

The vast majority of decisions made in prosecutions are made on behalf of the Attorney General by individual Crown counsel. Such decisions include the decisions to prosecute, to seek an accused person’s pre-trial detention, to stay proceedings and to seek particular sentences following convictions. However, certain decisions require specific approval. For example, some offences in the Criminal Code and in other federal statutes can be prosecuted only with the consent of the Attorney General on whose behalf the prosecution will be conducted. In addition, some provisions of federal statutes require directions or instructions from the Attorney General before action can be taken.

Statutory provisions which require the consent of the Attorney General ensure that there is pre-charge screening by a legal officer¹. The necessity of obtaining consent is said to be aimed at two potential harms, namely: a) the specific harm that may result from the prosecution of an innocent person; b) the general harm that results from the institution of proceedings that are not in the public interest².

16.2 Background: The Delegation of Powers Principle

It is a general principle of administrative law that a statutory power should be exercised by the authority on whom it is conferred. In the absence of express statutory permission, it normally cannot be delegated to another person or body.³ However, Ministers of the Crown present a special case. Because a Minister is not expected to perform all of the many and varied powers conferred on him or her, it is recognized that responsible officials of the Minister’s Department may act for the Minister.

This principle, known popularly as the “Carltona doctrine”⁴ has been accepted by the Supreme Court of Canada:

The tasks of a Minister of the Crown in modern times are so many and varied that it is unreasonable to expect them to be performed personally. It is to be supposed that the Minister will select deputies and departmental officials of experience and competence, and that such appointees, for whose conduct the Minister is accountable to the legislature, will act on behalf of the Minister, within the bounds of their respective grants of authority, in the discharge of ministerial responsibilities.5

The Carltona principle has been legislatively affirmed and expanded through changes introduced to the Interpretation Act in February, 1992. Section 24 states:

2. (2) Words directing or empowering a minister of the Crown⁶ to do an act or thing, regardless of whether the act or thing is administrative, legislative or judicial, or otherwise applying to that minister as the holder of the office, include
   
   …
   3. his or their deputy⁷; and
       
   4. notwithstanding paragraph (c), a person appointed to serve, in the department or ministry of state over which the minister presides, in a capacity appropriate to the doing of the act or thing, or to the words so applying.

Federal statutes, including the Criminal Code, employ an array of phrases in describing actions to be taken by the Attorney General. Some demand his or her “personal consent in writing”⁸. Others require the Attorney General’s “consent in writing”⁹ or simply “the consent of the Attorney General”¹⁰. Some of these go further and identify a need to obtain consent from a particular Attorney General, federal¹¹ or provincial¹².

16.3 Statement of the Policy

The purpose of this policy is to assist in identifying who should be the effective decision-maker for the various statutory provisions requiring a decision to be made by the Attorney General.

Except for the decisions identified in this policy, prosecutorial decisions are made by individual Crown counsel¹³. The policy takes as its starting point the principle embodied in s. 24(2)(d) of the Interpretation Act that statutory powers of the Attorney General may be carried out by responsible officials, that is, by one whose position, duties, experience or express authorization to exercise the power in question identifies that official as “appropriate” in relation to the particular power in issue.

While the Attorney General and Deputy Attorney General retain the power to personally make any decision required to be made in their names, some of those decisions will be made by officials such as the Assistant Deputy Attorney General (Criminal Law), who has been given functional responsibility over the manner in which the prosecution function is carried out on behalf of the Attorney General¹⁴. The appendices to this policy set out a scheme in which particular types of decisions are delegated to officials whom experience has shown are the appropriate decision-maker. The decision-maker remains accountable to the Attorney General for actions taken in his or her name¹⁵.

No delegation will occur where either the nature of the subject matter or the particular statutory wording indicates that the decision ought to be made at the highest level. Thus, decisions in relation to matters affecting national security or international relations, or decisions requiring the “personal consent in writing” of the Attorney General or Deputy Attorney General, will be made by one or other of those individuals. In all other situations, delegation will be the rule.

16.4 Operation of the Policy

16.4.1 Identification of the Decision-Maker

The Appendices to this policy set out a hierarchy of decision-making. Appendix “A” describes decisions that will be made by the Attorney General or Deputy Attorney General. Appendix “B” sets out decisions to be made by the Assistant Deputy Attorney General (Criminal Law), and so on. Decisions referred to in each successive appendix can be made by the more senior officials referred to in each of the preceeding appendices, but are not, except in unusual circumstances.

Appendix A - This consists primarily of legislative provisions relating to the institution of prosecutions. The effective decision-maker is the Attorney General or Deputy Attorney General.

Appendix B - This consists of any provisions relating to the institution of prosecutions not covered in Appendix A, and certain other statutory and non-statutory responsibilities. The effective decision-maker is the Assistant Deputy Attorney General (Criminal Law).

Appendix C - This list contains legislative provisions that require consent of the Attorney General, but for which the effective decision-maker is the Senior Regional Director¹⁶, or in Ottawa, the Senior General Counsel¹⁷. These decisions generally consist of matters that are either primarily of local concern, or are of lesser consequence than the decision to institute proceedings.

Appendix D - This list refers to decisions made by FPS Directors.

16.4.2 Procedure for Obtaining the Personal Consent of the Attorney General or Deputy Attorney General

The Senior Regional Director must ensure preparation of the following:

1. a concise statement of facts sufficient to conclude that there is a reasonable prospect of conviction at trial and that the public interest requires a prosecution. The statement must include the name (and citizenship, if not Canadian) of the accused, the charges, the evidence and the date by which the consent is required. If several accused are to be charged, the statement must demonstrate that there is sufficient evidence to implicate each individually;
    
2. a statement indicating that the client department (if there is one) has been consulted, and an outline of its position on the proposed prosecution;
    
3. two original consent documents in the following form:

16.4.2.1 Consent Documentation

Pursuant to (state section and statute requiring consent), I consent to the institution 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 brief description of primary facts alleged including date and location)

This consent is given at Ottawa, Canada, this ___day of , ___.

Attorney General of Canada

(or Deputy Attorney General or Assistant Deputy Attorney General (CriminalLaw), as the case may be)

The Senior Regional Director shall review each recommendation and, if satisfied that the case meets the criteria set out in Part V, Chapter 15, "The Decision to Prosecute", send it to the Senior General Counsel (Criminal Law).

The Senior General Counsel will review the request and prepare a recommendation for the Assistant Deputy Attorney General (Criminal Law). If the recommendation is to consent to prosecute and the Assistant Deputy Attorney General agrees, the recommendation will be forwarded to the Attorney General or Deputy Attorney General, as appropriate. If the Attorney General or Deputy Attorney General signs the consent documents, one signed document will be sent to the Regional Office. The second will be filed in the office of the Senior General Counsel. Once the trial is over, the Senior Regional Director must report the outcome to the Senior General Counsel. If the Assistant Deputy Attorney General decides that proceedings should not be instituted, the request for consent goes no further. The Senior Regional Director is then advised that no request for consent will be made.

16.4.3 Section 7(7) of the Criminal Code

Statutory provisions requiring the consent of the Attorney General to institute proceedings might appear to require that such consent be given before any charge is laid. Indeed, older case law has suggested that this is the case¹⁸.

The older cases referred to above should now be read in light of the principles found in s. 24(2) of the Interpretation Act and the Supreme Court of Canada decisions in R. v. Harrison and Comeau’s Sea Foods Ltd, above.

Statutory provisions that require the consent of the Attorney General to institute proceedings may require a rapid response. Such a situation may arise, for example, where an offence is committed on an aircraft and consent is required under s. 7(7) of the Criminal Code to institute proceedings by indictment against a foreign citizen. These persons often wish to appear in court, plead guilty, and, assuming incarceration is not imposed, leave the country as soon as possible.

Pursuant to Appendix “D” of this policy, the consent for institution of these proceedings has been delegated to the FPS Director. Although these matters tend to be relatively minor, there are occasions where the identity of the foreign citizen or the seriousness of the offence make it advisable that the FPS Director bring the matter to the attention of the Assistant Deputy Attorney General (Criminal Law) as soon as possible.

In addition, it is important to bear in mind the provisions of the Vienna Convention on Consular Authorities. Article 36 of that Convention, to which Canada is a signatory, requires that the “competent authorities” in the receiving state:

1. give immediate notice to a detained person of his/her right to see and communicate with a consular office of his/her government;
    
2. forward any communication from the detained foreign national to the consular officer of the foreign national “so requests”; and
    
3. allow visits and other communication between the detained foreign national and the consular official of the foreign national so requests.

In considering the request for consent, the Prosecution FPS Director should ascertain whether the detained person has been advised of these rights.

16.4.4 Procedure for Obtaining the Consent of the Senior Regional Director or Senior General Counsel

For situations mentioned in Appendix “C”, Crown counsel should prepare the documentation referred to in s. 16.4.2.1, and submit it to the FPS Director. The FPS Director will then review the documentation and pass it to the Senior Regional Director for approval. In the National Capital Region, the FPS Director will refer the matter to the Senior General Counsel (Criminal Law).

16.4.5 Requests by Private Citizens for the Consent of the Attorney General to Prosecute

The criminal law recognizes anyone's right to institute and conduct a prosecution¹⁹. However, this right is not absolute. Some prosecutions require the prior consent of the Attorney General. A private citizen may therefore need to request the Attorney General's consent.

If the police have investigated the alleged offence, the Senior Regional Director, in consultation with the Assistant Deputy Attorney General, shall review the request and determine if the criteria set out in Part V, Chapter 15, "The Decision to Prosecute", have been met. If it is decided that the criteria have not been met, the Senior Regional Director shall advise the citizen that no consent will be given. If the criteria for prosecuting have been met, the Senior General Counsel (Criminal Law) will prepare advice on the case for the Attorney General or the Deputy Attorney General, as appropriate. If the Attorney General or Deputy Attorney General signs the consent document, one signed document will be sent to the Regional Office. The second will be filed in the office of the Senior General Counsel.

Where consent is given, the matter will generally be referred to the appropriate investigative agency to allow it to consider laying charges. If charges are laid, Crown counsel in the Regional Office will generally be assigned to prosecute. The Regional Office will advise the citizen that the Attorney General of Canada has taken over the prosecution.

If the police have not investigated the alleged offence that a citizen wants prosecuted, it may be difficult to decide whether there is sufficient evidence to justify criminal proceedings. Generally, the Senior Regional Director will refer the matter to the appropriate investigative agency. Once the investigation is complete, the criteria and procedure set out above should be followed. If there is too little time to complete an investigation, perhaps due to a limitation period, the Senior Regional Director may decide not to refer the case to investigators. The citizen's request shall then be reviewed and the criteria for deciding whether to prosecute applied to the known facts.

16.4.6 Applications for Prohibition or Prescriptive Orders under the Competition Act

Subsection 34(2) of the Competition Act permits a superior court of criminal jurisdiction to prohibit or prevent the commission of an offence under Part VI of that Act. The court may prohibit the "commission of the offence or the doing or continuation of any act or thing by that person or any other person constituting or directed toward the commission of the offence". Before the prohibition order can be made, however, the Attorney General of Canada or a provincial Attorney General must have commenced proceedings. The use of these orders is an important compliance mechanism, and thus consultation with the Director, Competition Law Division of Industry Canada Legal Services, is important.

16.4.6.1 Statement of Policy

The Attorney General of Canada should consider the following factors, among others, when deciding whether a case is suitable for a prohibition order, a prosecution or a more informal action:

1. any history of anti-competitive or other relevant behaviour by the respondent company, its principals or any associated company;
    
2. the seriousness of the conduct, including:
    
   1. whether a prior order or undertaking has been contravened;
       
   2. the apparent effect of the conduct on consumers, competitors, etc.;
       
   3. whether the conduct violates corporate policy (and, if so, how effectively that policy is policed, and how quickly the conduct was terminated when senior officials became aware of it);
       
3. any remedial steps by the respondent; and
    
4. compliance policies of the Competition Bureau.

16.4.6.2 Procedure

Under the direction of the Director, Competition Law Division, Industry Canada Legal Services, Crown counsel may make the decision, on behalf of the Attorney General of Canada, to seek a prohibition order under section 34. The Director may also sign the application for prohibition.

In marketing practice cases, a Regional Director of the Department of Justice or the Director of the Competition Law Division may also make the decision and sign the application. The Regional Director should sign the application "for the Attorney General of Canada". A copy of the material should be sent to the Director of Legal Services at Industry Canada.

In cases of significant public interest, the Deputy Attorney General should sign the information in support of the prohibition order. Requests for the Deputy Attorney General's signature must be made to the Director of Legal Services, who will then forward them to the Assistant Deputy Attorney General (Criminal Law). A memorandum must accompany the request, outlining the background of the matter and the reasons for the recommendation. A draft order, information and claim, notice of application, consent, and an agreed statement of facts or affidavit must also be included.

16.5 Appendix A

Matters requiring the consent of the Attorney General where consent must be obtained from the Attorney General or Deputy Attorney General personally.

The Deputy Attorney General’s authority to act for the Attorney General is recognized in three ways: 1) specifically, in some statutory provisions (such as 577 of the Criminal Code); 2)generally, in the Criminal Code, through the definition of “Attorney General” in s. 2; and 3) more generally, for all federal legislation, by virtue of s. 24(2)(c) of the Interpretation Act.

(1) Consent to the Institution of a Prosecution

Coastal Fisheries Protection Act

Offences under ss. 5.2 (prohibited fishing by foreign vessel), 17(d) (obstruction of a protection officer in the execution of the officer’s duty), 18.1 (acts that would be offences if committed in Canada)

- requires personal consent in writing of A.G. or Deputy A.G.

Crimes Against Humanity and War Crimes Act

Section 9(3)

- genocide, crimes against humanity, war crimes, breach of responsibility by military commander, possession of property obtained by commission of genocide, crimes against humanity or war crimes, laundering proceeds of genocide, crimes against humanity or war crimes

- requires personal consent in writing of A.G. or Deputy A.G.

Section 9(4)

- bribery of judges and officials of the International Criminal Court

Criminal Code

Subsection 119(2)

- bribery of judicial officers

- requires consent in writing of A.G.

Subsection 251(3)

- offences involving unseaworthy vessels and unsafe aircraft

Subsection 477.2(2)

- proceedings for offences under federal law where jurisdiction of court is obtained because the offence was committed within Canada’s exclusive economic zone or above the continental shelf

Subsection 477.2(3)

- proceedings for offences under federal law where jurisdiction of court is obtained because the offence was committed outside Canada in the course of hot pursuit or outside the territory of any state by a Canadian citizen

Section 485.1

- recommencement where indictment is dismissed for want of prosecution

- requires personal consent in writing of A.G. or Deputy A.G.

Section 577

- direct indictment

- requires personal consent in writing of A.G. or Deputy A.G.

- see Part V, Chapter 17, “Direct Indictments”, for the policy in this regard

Foreign Extraterritorial Measures Act

Subsection 7(3)

- offences under this Act, such as producing prohibited records to foreign tribunals, or failing to give notice of the A.G. of foreign measures affecting international trade

Foreign Missions and International Organizations Act

Section 9

- misrepresenting premises as a diplomatic mission or consular post

Geneva Conventions Act

Subsection 3(4)

- offences under s. 3(1) of the Act, including wilful killing, torture, and inhuman treatment

- requires personal consent in writing of A.G. or Deputy A.G.

Security of Information Act

Section 24

- offences under the Act, such as spying and wrongful communication of information

Special Economic Measures Act

Section 12

- offences under the Act, such as failure to comply with an order respecting economic measures

(2) Consent to Other Measures

Security Offences Act

Section 4

- fiat establishing the exclusive authority of the Attorney General of Canada to prosecute an offence under section 2 of the Act

Additional Criteria

Under section 2 of the Act, the Attorney General of Canada may take over conduct of a proceeding where the alleged offence arises out of conduct constituting a threat to the security of Canada within the meaning of the CSIS Act, or where the victim is an internationally protected person within the meaning of section 2 of the Criminal Code.

In general, the Attorney General of Canada will take over cases in accordance with section 4 of the Act only in rare and compelling circumstances and after consultation with the provincial Attorney General. For example, where the alleged conduct involves a matter of particular national or international importance, or where the alleged victim was in the direct protection of the RCMP, the Attorney General may consider exercising the fiat.

Canada Evidence Act

Section 38.18(1)

- issuance of certificate prohibiting disclosure of information obtained from, or in relation to, a foreign entity for the purpose of protecting national defence or security

Section 38.15(1)

- issuance of fiat to assume control of prosecution involving sensitve or potentially injurious information

(3) Approvals by the Minister of Justice

Extradition Act

Section 40

- signing of surrender orders

- see Part VIII, Chapter 40, “The Role of the Minister in the Extradition Process”.

(4) Approvals by other Ministers of the Crown

Canada Labour Code

Section 149

- requires consent of the Minister of Labour to commence prosecutions for offences under this Act.

16.6 Appendix B

Matters requiring the approval of the Assistant Deputy Attorney General (Criminal Law)

(1) Consent to the Institution of a Prosecution

Canadian Human Rights Act

Subsection 60(4)

- offences under s. 60 (eg. obstructing a member or panel or investigator, threatening a complainant)

Criminal Code

Subsection 7(2.33)

- offences committed during a space flight

Section 54

- assisting a deserter

Section 83.24

- terrorism offences

Subsection 141(2)(a)

- consent to prove that the offence under s. 141(1), compounding a criminal offence, was not committed

Section 810.01(1)

- application for recognizance in relation to prevention of criminal organization or terrorist offence (applications in relation to criminal organization offences may also be made to the Senior Regional Director)

Subsection 7(4.3)

- sexual offences deemed to have been committed in Canada pursuant to s. 7(4.1)

Subsection 136(3)

- witness giving contradictory evidence

Subsection 164(7)

- corrupting morals under section 163

Subsection 172(4)

- corrupting children

Subsection 174(3)

- public nudity

Subsection 283(2)

- abduction of child where no custody order

Subsection 318(3)

- advocating genocide

Subsection 319(6)

- public incitement of hatred

Subsection 347(7)

- criminal interest rate

Subsection 385(2)

- fraudulent concealment of title documents

Subsection 422(3)

- criminal breach of contract

Subsection 477.2(1)

- indictable offences in or on territorial sea committed by an accused who is not a Canadian citizen

Subsection 754(1)

- application to have person declared dangerous offender or long-term offender

Subsection 803(3)

- consent to institution of proceedings under section 145 (failure to appear following an adjournment)

Northern Pipeline Act

Subsection 38(5)

- offences under the Act, such as failure to comply with an order of the National Energy Board

Special Import Measures Act

Subsection 77.26(3)

- offences under subsection 77.26(1) (such as failure to comply with a disclosure undertaking under subsection 77.21(2))

(2) Consent to Other Measures

Canada Evidence Act

Section 38.03(1) and (3)

authorizing disclosure of information pursuant to s. 38.02(1) of the Act

communication of the authorization may be done by counsel for the National Security Group

Criminal Code

Section 83.28

- application to obtain a “gathering of information” order

Section 83.3(1)

- application for order to lay information in relation to prevention of terrorist activity

Section 254(1)

- designation of blood analysts, qualified breathalyzer technicians and qualified blood technicians

Section 462.48(2)

- designation of persons who may make applications to obtain income tax information

Section 568

- Attorney General to require an accused to be tried by judge and jury

- See also Part V, Chapter 19, “Elections and Re-Elections” for criteria to be employed.

Part XII.2

- application for restraint of property alleged to be the proceeds of crime, where the property is estimated to be worth more than $ 2 million

- for the policy in this regard, see Part VI, Chapter 24, “Proceeds of Crime”.

Canadian Environmental Protection Act, 1999

- approval of alternative measures programs

(3) Non-Statutory approvals

“R. v. R.” prosecutions

- where a government department or agency is to be prosecuted

- for the policy in this regard, see Part VI, Chapter 32, “R. v. R.: Prosecutions Against the Crown”

Appointment of Crown counsel

- upon hiring, each Crown counsel is provided with a “letter of appointment”, certifying their ability to undertake prosecutorial duties in the name of the Attorney General.

16.7 Appendix C

Matters requiring the consent of the Attorney General where consent should be obtained from the Senior Regional Director or Senior General Counsel (Criminal Law)

Part I – Statutory Provisions

Because many of these matters are largely administrative in character, the Senior Regional Director or Senior General Counsel may further delegate the decision-making power to the Regional Director or the Prosecution FPS Director, except where a decision-maker is specifically identified.

(1) Provisions for which the A.G.’s consent is required to give a court jurisdiction to deal with a matter

Criminal Code

Subsection 342(2)

- prosecution for theft in a province other than one in which the offence is committed

Paragraph 672.86(1)(b) and (2)

- transfer of accused detained in custody

Subsection 733(1.1)

- prosecution for breach of probation order in province other than that in which order imposed

Subsection 742.6(3.2)

- hearing regarding breach of conditional sentence order in province other than that in which order imposed

Subsection 753.3(2)

- prosecution for breach of long-term supervision order in province other than that in which order imposed

- note that the Attorney General may receive a recommendation in this regard from the National Parole Board, pursuant to s. 136.1(7) of the Corrections and Conditional Release Act

National Defence Act

Paragraph 226(3)(a) and (b)

- transfer of prisoners

(consent should be sought from the Senior General Counsel (Criminal Law))

(2) Disposal of Material

Criminal Code

Subsection 164(4)

- disposal of obscene or crime comic

Subsection 192(1)

- disposal of any electro-magnetic, acoustic or mechanical device

Subsection 320(4)

- disposal of hate propaganda

Subsection 490(9)

- disposal of things seized

(3) Investigative Steps

Criminal Code

Subsection 320(7)

- application for warrant of seizure for the hate propaganda

Subsection 477.3(3)

- execution of powers of arrest and search on ships outside Canada

(consent to be given by Senior General Counsel (Criminal Law))

Oceans Act

Subsection 12(2)

- powers of arrest on ship registered outside Canada

(consent to be given by Senior General Counsel (Criminal Law))

(4) Special Recognizances

Criminal Code

Subsection 810.01(1)

- laying of information by person who fears another person will commit a criminal organization offence

Subsection 810.2(1)

- laying of information by person who fears another person will commit a serious personal injury offence

(5) Excusing Liability

Criminal Code

Paragraph 141(2)(a)

- entering compensation/restitution agreements which remove liability for offence of “compounding an indictable offence”

(6) Proceeds of Crime Undertakings

Criminal Code, Part XII.2

- application for restraint of property alleged to be the Proceeds of Crime

- where the property is estimated to be worth $1 million or less, approval should be sought from the Senior Regional Director

- where the property is estimated to be worth $1 million - $2 million, approval should be sought from the Senior General Counsel (SPPS)

-for the policy in this regard, see Part VI, Chapter 24, "Proceeds of Crime"

Controlled Drugs and Substances Act (CDSA)

- where restraint of offence-related property is sought under the CDSA, Approval should be sought from the Senior Regional Director

- for the policy in this regard, see Part VI, Chapter 24, "Proceeds of Crime"

Part II - Non-statutory approvals

(1) Appointment of Legal Agents

- "letters of instruction" issued to agents to conduct prosecutions

- for the policy in this regard, see Part II, Chapter 7, "The Role of Agents in the Delivery of Prosecution Services"

(2) Appeals from sentences that trial counsel agreed to

- see Part V, Chapter 20, "Plea and Sentence Discussions and Issue Resolution"

16.8 Appendix D

Matters requiring the approval of Federal Prosecution Service FPS Directors

- As noted in Appendix “C”, many of the matters referred to in that Appendix may be delegated to FPS Directors

(1) Consent to institution of proceedings

Criminal Code

- Subsection 7(7)

- offences under section 7 committed by an accused who is not a Canadian citizen

- such offences describe offences committed upon Canadian aircraft and certain other offences committed beyond Canada’s borders

- where such consent is given, the Group Head must report the matter immediately to the Senior General Counsel (Criminal Law) who will in turn report the matter to the Assistant Deputy Attorney General (Criminal Law); in addition, where the serious nature of the offence or the identity of the offender is such as to be likely attract public attention, consultation should take place with the Senior General Counsel (Criminal Law) before charges are laid.

Immigration and Refugee Protection Act

Section 117

- knowingly organize, induce, aid or abet the coming into Canada without proper travel documents

- where such consent is given, the FPS Director must report the matter immediately to the Senior General Counsel (Criminal Law) who will in turn report the matter to the Assistant Deputy Attorney General (Criminal Law); in addition, where the serious nature of the offence or the identity of the offender is such as to be likely attract public attention, consultation should take place with the Senior General Counsel (Criminal Law) before charges are laid.

(2) Provisions for which the A.G.’s consent is required to give a court jurisdiction to deal with a matter

Criminal Code

Subsection 320(7)

- obtaining a warrant of seizure for hate propaganda

Subsection 478(3) and Section 479

- waiver of charges between provinces / within a province

-reference should also be made to Part V, Chapter 21, “Waiver of Charges”

Paragraph 733(1)(b)

- transfer of probation order

Paragraph 742.5(1.1)(b)

- transfer of conditional sentence order

Youth Criminal Justice Act

Subsection 58(3)

-sentencing in another jurisdiction

(3) Elections to Proceed by way of indictment

Income Tax Act

- section 239(2)

Excise Tax Act

- section 327(2)

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1 It has been suggested that the primary rationale for such provision is to limit the right of private citizens to invoke the criminal process. See: Law Commission of England and Wales, Consents to Prosecution (Consultation Paper #149, October, 1998), at s. 6.17.

2 Consents to Prosecution, note 1, at s. 6.16.

3 See generally P. Lordon, Crown Law (Toronto: Butterworths, 1990) at 39-40; Reference Re Regulations Re Chemicals, [1943] 1 D.L.R. 248 (S.C.C.); Kelly v. Watson (1985), 64 Aust. L.R. 113 at 125-26 (Fed. Ct.).

4 After Carltona Ltd. v. Commissioners of Works, [1943] 2 All E.R. 560 (C.A.).

5 R. v. Harrison, [1977] 1 S.C.R. 238 at 245. See also, Comeau’s Sea Foods Ltd. v. Canada (Minister of Fisheries and Oceans), [1997] 1 S.C.R. 12 at 22.

6 The Attorney General may be regarded as a “Minister of the Crown” for the purposes of the Carltona doctrine, as recognized in R. v. Harrison.

7 Note as well that in s. 2 of the Criminal Code, the definition of “Attorney General” includes or her his lawful deputy.

8 For example, s. 7 (3.75) of the Criminal Code, s. 3(4) of the Geneva Conventions Act.

9 For example, s. 119(2) of the Criminal Code, s. 77.034(3) of the Special Import Measur

10 For example, ss. 7(7) and 172(4) of the Criminal Code.

11 For example, s. 251(3) of the Criminal Code.

12 For example, s. 342(2) of the Criminal Code.

13 Upon appointment, Crown counsel are given a letter by the Assistant Deputy Attorney General (Criminal Law) setting out the scope of their authority.

14 See Part II, Chapter 6, “The Functional Responsibility of the Assistant Deputy Attorney General (Criminal Law)”.

15 See, in this regard, Part III, Chapter 8, “Independence and Accountability in Decision Making”.

16 For a more detailed description of senior management, see Part II, Chapter 5, “The Federal Prosecution Service”.

17 If the decision is in a case concerning controlled substances, proceeds of crime or national security, the Senior General will be the Senior General Counsel (SPPS); in all other cases, it will be the Senior General Counsel (Criminal Law).

18 R. v. Foreman (1955), 111 C.C.C. 297 at 302 (B.C. Co. Ct.); R.. v. Ford; R.. v. Gilkey (1956), 115 C.C.C. 113 at 118 (B.C.C.A.).

19 See section 504 of the Criminal Code. See also Part VI, Chapter 26, "Private Prosecutions".

 

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