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3. Chapter 2

The Federal Prosecution Service DESKBOOK

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Part I
UNDERSTANDING CRIMINAL LAW IN CANADA
Chapter 2

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2 THE CONSTITUTIONAL FRAMEWORK

2.1 Introduction

Until 1969, the Criminal Code definition of “Attorney General” was largely silent on the role of the Attorney General of Canada in criminal prosecutions. It stated only that the Attorney General of Canada was designated as the Attorney General with respect to the Northwest Territories and the Yukon Territory.

In l969, an amendment to the Code gave the Attorney General of Canada jurisdiction over proceedings commenced at the instance of the Government of Canada for offences created by Acts of Parliament other than the Criminal Code. This amendment gave jurisdiction to federal prosecutors to prosecute offences such as drug trafficking and tax evasion. The amendment was challenged in the courts by the provinces as unconstitutional, on the basis that the provinces had been given exclusive legislative jurisdiction over prosecutions by subsection 92(14) of the Constitution Act, 1867.

In 1976, the Supreme Court of Canada examined whether the definition of “Attorney General” in the Criminal Code was intra vires Parliament in relation to a prosecution under the Narcotic Control Act conducted by federal prosecutors¹. The Court held that the Narcotic Control Act did not depend for its constitutional validity on subsection 91(27) of the Constitution Act, 1867; therefore, Parliament was competent to give the Attorney General of Canada this prosecutorial role.

The Court did not decide whether Parliament could assign to the Attorney General of Canada responsibility for prosecuting offences created by statutes which depended on subsection 91(27) for their constitutional validity. The Court addressed this latter issue in two 1983 cases. One involved a prosecution under the Combines Investigation Act² and the other a prosecution under the Food and Drugs Act³. In both cases, the prosecution was conducted on behalf of the Attorney General of Canada.

In these cases, the Court recognized a federal legislative competence to provide for the prosecution of federal offences, whether the offence provision depended for its constitutional validity on subsection 91(27) or some other head of power found in section 91 of the Constitution Act, 1867.

2.2 Jurisdiction of the Attorney General under Section 2 of the Criminal Code

Section 2 of the Criminal Code reads:

“Attorney General”

1. with respect to proceedings to which this Act applies, means the Attorney General or Solicitor General of the province in which those proceedings are taken and includes his lawful deputy, and
2. with respect to
   1. the Yukon Territory, the Northwest Territories and Nunavut, or
   2. proceedings commenced at the instance of the Government of Canada and conducted by or on behalf of that Government in respect of a contravention of, a conspiracy or attempt to contravene or counselling the contravention of any Act of Parliament other than this Act or any regulation made under any such Act, means the Attorney General of Canada and includes his lawful deputy.

Generally, the authority to prosecute offences under the Criminal Code is given to provincial Attorneys General. Specific exceptions are created for prosecutions for disobeying a statute under section 126 of the Code⁴, prosecutions for war crimes and crimes against humanity (subsection 7(3.75) of the Code) and for prosecution of criminal organization offences under s.467.1 of the Code⁵. Furthermore, some Code prosecutions require the consent of the Attorney General of Canada before proceedings can be instituted⁶ or continued.

One difficulty facing the courts to date in interpreting the Criminal Code definition of “Attorney General” has been the interpretation of “commenced at the instance of the Government of Canada”. In R. v. Pelletier,⁷ without explaining further what was meant by those words, the Ontario Court of Appeal stated:

This passage was quoted with approval by the Supreme Court of Canada in A.G. Can. v. C.N. Transportation Ltd.⁸

When confronted again with the issue some 13 years later⁹, the Ontario Court of Appeal was satisfied to decide the issue on narrow grounds. The court concluded that the proceedings in question had been commenced at the instance of the Government of Canada since “a system of general procedure was established under which officers of the Metropolitan Toronto Police Force were authorized by the Government of Canada to institute on its behalf proceedings for violations of the Narcotic Control Act”. The court added:

The court referred to its ruling in Pelletier and, in particular, to the passage already quoted¹¹. It left undecided whether proceedings could be commenced at the instance of the Government of Canada where no general procedure exists --for example, if the Attorney General of Canada simply took over the conduct of a prosecution immediately after the information was laid and summons issued.¹²

Offences under federal statutes other than the Criminal Code may also be prosecuted by provincial Attorneys General¹³. The authority of provincial Attorneys General to prosecute non-Code offences was discussed in R. v. Sacobie and Paul¹⁴, R. v. Schriver¹⁵ and R. v. Stevenson¹⁶. The judgment of the New Brunswick Court of Appeal in all three cases was endorsed by the Supreme Court of Canada on the appeal of R. v. Sacobie and Paul¹⁷.

In Sacobie and Paul, a federal fisheries officer had laid an information for a Fisheries Act offence. A provincial Crown Attorney attempted to prosecute the case, but the trial judge dismissed the information on the grounds that the provincial Crown Attorney had no jurisdiction to conduct the prosecution. In Schriver and Stevenson, municipal police officers had laid informations under the Narcotic Control Act. Both cases were to be prosecuted by a provincial Crown Attorney. The trial judge in Schriver quashed the indictment on the grounds that a provincial Crown Attorney had no jurisdiction to conduct the prosecution. The trial judge in Stevenson quashed the information on the grounds that a municipal police officer had no authority to lay the information and that a provincial Crown Attorney had no jurisdiction to conduct the prosecution. The provincial Attorney General appealed all three cases.

The appeal in Sacobie and Paul came before the Court of Appeal first. However, the court recognized that Schriver and Stevenson involved essentially the same issues, so the three cases were heard together. The Court of Appeal faced two issues: the right of persons, other than the Government of Canada, to lay an information charging a violation of a federal statute other than one dealing with criminal law enacted under the authority of subsection 91(27) of the Constitution Act, 1867 and the right of the provincial Attorney General to conduct the prosecution of such an offence¹⁸.

The Court concluded that, unless a federal Act states otherwise, anyone may lay an information for indictable and summary conviction offences. It also concluded that the provincial Attorney General had jurisdiction to prosecute federal non-Criminal Code offences. In arriving at these conclusions, the Court relied on (what was then) subsection 27(2) of the Interpretation Act¹⁹. Therefore, provincial Attorneys General can prosecute federal non-Criminal Code offences, except when the proceedings have been commenced at the instance of and are conducted by or on behalf of the Government of Canada; in that case, the Attorney General of Canada has exclusive jurisdiction. Pursuant to s. 579.1 of the Criminal Code, the Attorney General of Canada may also intervene in proceedings under federal acts other than the Criminal Code where those proceedings have not been instituted by a provincial Attorney General²⁰. The Attorney General of Canada may also prosecute Criminal Code offences where authority to prosecute a specific charge has been conferred by a provincial Attorney General²¹. In those circumstances, representations to the Court by Crown counsel that such authority has been given should constitute sufficient proof.²²

2.3 Jurisdiction of the Attorney General under Section 2 of the Controlled Drugs and Substances Act

Section 2 of the Controlled Drugs and Substances Act defines “Attorney General” as follows:

“Attorney General” means

1. the Attorney General of Canada, and includes their lawful deputy, or
2. with respect to proceedings commenced at the instance of the government of a province and conducted by or on behalf of that government, the Attorney General of that province, and includes their lawful deputy.

This provision recognizes that primary responsibility for the conduct of prosecutions under that Act rests with the Attorney General of Canada. However, pursuant to federal-provincial working arrangements in some provinces (such as Quebec and New Brunswick), prosecutions may be conducted by the provincial attorney general.

2.4 Conclusion

It is clear that the Attorney General of Canada has authority to prosecute in the following situations:

1. under all federal statutes, where the prosecution takes place in the Yukon Territory, the Northwest Territories or Nunavut;
2. where a prosecution is conducted pursuant to the Controlled Drugs and Substances Act;
3. where federal officials lay an information for a non-Criminal Code offence and a federal prosecutor conducts the proceedings;
4. where persons other than federal officials lay an information which is then by arrangement or practice referred to a federal prosecutor to conduct the proceeding;
5. where a provincial Attorney General has conferred authority to prosecute a specific charge; and
6. where the Criminal Code provides specific authority to the Attorney General of Canada to conduct a prosecution.

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Date Modified:

2008-12-24