Protocol for the Conduct of Ministerial Public Interest Consultation by the Attorney General of Canada in the Exercise of the Attorney General of Canada’s Authority under the Director of Public Prosecutions Act

Purpose of this Protocol

As chief law officer of the Crown, the Attorney General of Canada oversees federal prosecutions within the framework of the Director of Public Prosecutions Act1. The Director of Public Prosecutions Act has structured the Attorney General of Canada’s role in federal prosecutions by giving primary authority for the initiation and conduct of prosecutions to the Director of Public Prosecutions under and on behalf of the Attorney General of Canada.

The Attorney General of Canada receives requests for information on prosecutions conducted by the Director of Public Prosecutions, most often in high-profile matters. Information requests are common and necessary to assist departments in understanding the proceedings. In exceptional circumstances, Ministers or officials within the public service may seek to raise public interest concerns about the conduct of ongoing or potential prosecutions. Because the raising of such concerns could relate to the Attorney General of Canada’s exercise of authority under the Director of Public Prosecutions Act, it is important to provide clear guidance as to how the Attorney General of Canada should deal with these situations. In practice, any consultation to determine the public interest in an individual prosecution is conducted by the Director of Public Prosecutions. Although rare for the Attorney General of Canada to conduct such public interest consultation, the Shawcross doctrine permits it.

This protocol seeks to maintain the Attorney General of Canada’s independence. Specifically, it seeks to ensure that consultations concerning specific prosecutions and interventions pursuant to the Director of Public Prosecutions Act, respect the important constitutional principle of prosecutorial independence, while ensuring that the Attorney General of Canada is able to receive appropriate input from actors within government on relevant public interest considerations. It is for this reason the protocol applies to ministers personally, including the Prime Minister, the Office of the Clerk of the Privy Council and the public service.

The protocol addresses:

• who determines the process for such consultations;
• who is entitled to initiate consultations;
• when, where and how the consultations take place;
• who is entitled to be part of the consultation discussions;
• what the scope of the discussion should be; and
• the Attorney General of Canada’s options and obligations in response to such consultations.

The Director of Public Prosecutions Act authorizes the Attorney General of Canada to participate in prosecutions in three ways:

• the Attorney General of Canada can issue a directive to the Director of Public Prosecutions with respect to the initiation or conduct of any specific prosecution (subsection 10(1)) or, after consulting the Director of Public Prosecutions, a directive on prosecutions generally (subsection 10(2)), both of which must be written and published in the Canada Gazette;
• where the proceeding raises questions of public interest, and after notifying the Director of Public Prosecutions, the Attorney General of Canada can intervene in a prosecution at first instance or on appeal (section 14); or
• the Attorney General of Canada can assume conduct of a prosecution after consulting the Director of Public Prosecutions and giving the Director of Public Prosecutions a notice of intent to assume conduct of a prosecution and publishing it in the Canada Gazette (section 15).

The Attorney General of Canada’s decision about prosecutions, including whether and how to participate in a prosecution as authorized by the Director of Public Prosecutions Act, must be made in light of public interest considerations and independently of partisan considerations. This is typically referred to as the “Shawcross doctrine” and has been recognized by the Supreme Court of Canada (Krieger v. Law Society of Alberta (2002) 3 SCR 372).2

Reduced to its core, the “Shawcross doctrine” means that: (a) the Attorney General of Canada does not take instructions in criminal prosecutions; (b) partisan considerations are irrelevant to the Attorney General of Canada’s decision-making in criminal prosecutions; and (c) consultation on the public interest component of prosecutorial decision-making may properly include consultation with members of Cabinet.

Initiation of Ministerial Public Interest Consultation

• The Attorney General of Canada may consult with Ministers with respect to how a specific prosecution or intervention affects the public interest although such consultations will be rare.
• Ministers may also request to consult the Attorney General of Canada on how a specific prosecution or intervention affects the public interest.
• It is the Attorney General of Canada who decides whether to agree to be consulted by a Minister.
• Requests for consultation should be made in writing by a Minister, not by their political staff. They should include a description of the representations and relevant information in support of the request but shall not include partisan considerations.
• The Attorney General of Canada may ask the requesting Minister or another Minister to provide additional written representations and relevant information.
• Where a Ministerial public interest consultation has been requested by a Minister, the Attorney General of Canada shall communicate his or her decision in writing to the requesting Minister.
• Where the Attorney General of Canada has decided against conducting a Ministerial public interest consultation requested by a Minister, the requesting Minister may not make another request to the Attorney General of Canada for a public interest consultation unless the requesting Minister can provide written information demonstrating a significant and relevant change in circumstances or new facts since the original request was made.

Public Interest Consultation Process

Where the Attorney General of Canada decides to consult with Ministers with respect to how a specific prosecution or intervention affects the public interest or agrees to be consulted by a Minister, the Attorney General of Canada shall determine the process to be followed, having regard to the following principles:

• Format:
  • The consultation shall be conducted primarily through written representations;
  • written representations may include relevant, supporting information;
  • the Attorney General of Canada may determine that written representations should be supplemented by in-person discussions between the Attorney General of Canada and the requesting Minister or Ministers, each of whom may be accompanied, subject to the discretion of the Attorney General, by their respective Deputy Minister or other individuals, although any individuals attending the discussion will not normally include political staff.
  • any in-person discussions shall not occur during a meeting of Cabinet or any of its Committees. Discussions involving more than one other minister may be permitted at the discretion of the Attorney General of Canada;
  • any in-person discussions should be documented, for example, identifying the date and duration of the discussion; identifying the participants; and summarizing the discussion and any written materials shared at the in-person discussion.
• Scope: written representations and any in-person discussions shall be confined to the effect of the prosecution or intervention on the public interest. Specifically, written representations and any in-person discussions shall not:
  • include partisan considerations. Partisan considerations include: the potential impact of a decision on the prosecution in question on the electoral future of a political party, an individual Member of Parliament, a Minister or the Attorney General of Canada;
  • include the potential professional or personal impact of such a decision on the Attorney General of Canada; and
  • subject the Attorney General of Canada to direction or pressure.
• Classification: written and in-person representations, and any record made of these representations and supporting documents, shall be classified based on applicable privileges and immunities and maintained by the Attorney General of Canada in accordance with relevant rules and policies.
• The Attorney General of Canada may discuss the representations and any information received during the Ministerial public interest consultation with the Director of Public Prosecutions, the Deputy Minister of Justice, and/or the Attorney General’s Chief of Staff.
• The Attorney General of Canada will make the final decision on the soundness of the representations and their implications for the public interest.

Attorney General of Canada Decision Following Ministerial Public Interest Consultation

Once the Attorney General of Canada makes his or her decision to take no action, issue a specific direction, intervene, or assume conduct of the prosecution in question, the Attorney General of Canada shall communicate the decision taken in writing to the Minister or Ministers who were part of the consultation. The Attorney General of Canada is not required to provide reasons for his or her decision, though there may be public policy reasons for providing such reasons. Thereafter, there shall be no further communication with the Attorney General of Canada on the prosecution or intervention in question.

The only exception to the bar against further communications with the Attorney General of Canada on the prosecution in question is if there is a significant and relevant change in circumstances or new facts come to light after the Attorney General of Canada’s decision was taken and communicated. Where this occurs, the requesting Minister may submit a new written request for further Ministerial public interest consultation that explains the significant and new circumstances or facts: the Attorney General of Canada alone is responsible for deciding whether a further Ministerial public interest consultation is needed. If so, the process described above will apply.

David Lametti, P.C., M.P.
Attorney General of Canada

Date:

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