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3. Chapter 7

The Federal Prosecution Service DESKBOOK

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Part II
THE FEDERAL PROSECUTION SERVICE – ORGANIZATION AND MANDATE
Chapter 7

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7 THE ROLE OF AGENTS IN THE DELIVERY OF PROSECUTION SERVICES

7.1 Introduction

Section 5 of the Department of Justice Act (the Act) provides that the Attorney General of Canada:

The Act is the source of the mandate of the Criminal Law Branch. To carry out this mandate, the department employs not only its own counsel, but also requires the use of legal agents from the private sector.¹

Effective and efficient delivery of prosecution services requires a decision as to what work can, or should be performed by agents, and also managing those agents to ensure a consistent quality of work.

The process of deciding which work is given to private sector agents has become known as “profiling”. This chapter provides guidelines for profiling the work of the Federal Prosecution Service supervision, and remuneration.

7.2 Statement of Policy

7.2.1 Generally

The Government of Canada is entitled to receive a high quality of legal service and advice, and to have that service provided in a cost effective manner. Work that is essential to the Department’s litigation mandate should, absent extraordinary circumstances, be done by in house counsel. Other work may be assigned to private sector agents bearing in mind both cost effectiveness and the quality of service.

Assignment of work to private sector agents may require consultation with client departments. Where this is the case, bilateral agreements between the Department of Justice and the client department will govern.

Effective management of work performed by agents requires a system of training and supervision. To that end, the Department has established the National Agent Supervision Program, discussed at section 7.4.

7.2.2 Case Profiling

Cases handled by the Federal Prosecution Service can be divided into two broad classes. The first (“Class One” cases) involves cases which are to be handled by departmental counsel only, unless exceptional circumstances, including clear lack of resources, are present. The second (“Class Two” cases) involves cases which may be assigned to private sector agents depending on the factors listed in s. 2.3, “General Profiling”.

7.2.2.1 “Class One” cases

These cases shall be conducted by departmental counsel. (Under exceptional circumstances, a private sector agent may assume responsibility for them. However, where this occurs, counsel from the supervising office shall closely monitor the case and instruct the private sector agent on important strategic, policy and evidentiary issues). Class One cases involve:

• appeals before provincial or territorial courts of appeal, especially those involving significant Charter issues, and all appeals in the Supreme Court of Canada;
• aboriginal treaty rights;
• extradition and mutual legal assistance;
• constitutional challenges to legislation;
• complex cases, such as proceeds of crime matters, or applications under Part VI of the Criminal Code (“Invasion of Privacy”);
• challenges to the authority or discretion of the Attorney General or an agent of the Attorney General (for example, preferred indictments, consent to the initiation of prosecutions, etc.);
• prosecutions under new legislative initiatives, at least until the jurisprudence has been established;
• fisheries offences involving foreign nationals;
• prosecutions under the Security Offences Act and the Official Secrets Act;
• proceedings relating to the protection of the environment; and
• war crimes and crimes against humanity.

7.2.2.2 “Class Two” cases

These cases may be assigned to private sector agents in accordance with agreements between the Department and client departments, and depending on the application of the criteria set out in “General Profiling”, infra. However, enough of these cases should be retained by the Department to provide training to new departmental counsel and to retain departmental expertise in developing areas of the law. Class Two cases involve:

• routine drug prosecutions (e.g., possession, trafficking, possession for the purpose of trafficking, including non-complex proceeds of crime cases which do not arise out of a specific proceeds of crime investigation but are incidental to other drug charges, and conspiracy to commit any of these offences);
• routine regulatory offences;
• proceedings undertaken by virtue of the Contraventions Act;²
• major drug prosecutions (for example, “mothership” cases, international drug conspiracies, and major proceeds of crime cases once the jurisprudence has been established);
• tax evasion;
• smuggling;
• rogatory commissions (particularly where the investigation is conducted by the RCMP or where the case will be handled by departmental counsel);
• applications for a prerogative remedy such as mandamus, certiorari or habeas corpus;
• significant regulatory prosecutions, or those with a notable regional or national profile; and
• cases involving prosecution of the Crown³.

7.2.3 General Profiling Criteria

The following factors shall be considered when deciding whether to assign a case to an agent in the private sector:

• the nature of the case;
• current workloads of departmental counsel and their resultant availability (the heavier the departmental workload, the more likely it is that agents will be used);
• the complexity and length of proceedings (depending on the type of prosecution and the issues raised, either departmental counsel or agents may be appropriate);
• investigative department or agency concerns over conduct of the case (if such concerns exist, departmental counsel will likely be used);
• the cost and location of the proceedings, including the travel costs of departmental counsel (cases outside the normal “reach” of Regional Offices will usually be assigned to agents);
• availability of departmental counsel with membership in the appropriate law society or equivalent professional association;
• international obligations and foreign interest in the case (departmental counsel will normally be used);
• local or national profile of the case (departmental counsel will normally be used in cases raising a substantial public interest);
• level of court (departmental counsel almost always handle litigation in the Supreme Court of Canada and provincial or territorial courts of appeal; agents may be used for lower courts);
• importance of the issues to the administration of justice and to the core mandate of the Federal Prosecution Service (departmental counsel will normally litigate significant Charter and other constitutional cases requiring an understanding of the policy background);
• importance and relevance of the issues to current government priorities (the more important and relevant the issue, the more likely that departmental counsel will be used);
• the level of expertise or knowledge available in the Department (if expertise is not available in the Department, experienced agents may be retained);
• the importance of investing in future expertise, i.e., if the case represents a type of litigation for which it would be beneficial for the Department to develop expertise, it ought to be kept in house;
• the level of expertise in the local private sector;
• the need to provide ongoing training to new departmental counsel (sufficient numbers of routine cases should be kept for departmental counsel to acquire proficiency);
• the appearance of a conflict of interest or other circumstance making it inappropriate for departmental counsel to appear on the case; and
• whether issues of confidentiality or Crown privilege are expected to arise.

7.3 Appointing and terminating private sector agents

7.3.1 Appointment

Private sector agents, whether standing or ad hoc⁴, are selected and appointed by the Minister. In the selection and appointment of agents, the Minister must, above all, have confidence in the capability and integrity of the agent.

Departmental counsel can assist the Minister in two ways: by suggesting for appointment lawyers who are members of the private bar⁵ and, when consideration is being given to the appointment of a person not put forward by departmental counsel, by advising as to the qualifications of that person. Standing Agents are to be appointed by judicial district, not electoral district.

When assessing the qualifications of a prospective private sector agent, counsel should be guided by several criteria. Specifically, a prospective agent should:

• be a member in good standing of a provincial or territorial bar;
• have the requisite professional knowledge and skills in the subject area concerned;
• exhibit integrity, good judgment, and discretion;
• be willing and able to work with and be supervised by departmental counsel, to ensure compliance with the policies and standards of the Attorney General;
• be willing to participate in training programs established by the Department of Justice;
• be willing to meet departmental reporting and other administrative requirements;
• be willing and able to comply with departmental conflict of interest guidelines; and
• be able to maintain the confidence of the departments or agencies on whose behalf the agent prosecutes.

In addition, Standing Agents and ad hoc agents are subject to special Terms and Conditions of Appointment which govern their actions for the duration of their mandate. Prospective standing agents are required to indicate their willingness to comply with these terms and conditions prior to their appointment. Some of the subjects covered by the Terms and Conditions of Appointment include:

• The Role of the Agent Supervisor;
• Training;
• Conflict of Interest;
• Reporting Obligations;
• Performance Review;
• Confidentiality of Justice files;
• Media Relations;
• Administrative Issues, including billing and taxation of accounts; and,
• Non-compliance and Sanctions.

Of particular importance are the provisions in the Terms and Conditions of Appointment dealing with conflict of interest. (In addition, see infra: s.7.5.1, “Conflict of Interest”)⁶.

7.3.2 Termination

Only the Minister can terminate agency appointments. Departmental counsel should assist the Minister in monitoring the conduct of private sector agents. Serious concerns⁷ about an agent's conduct should be reported by the Agent Supervisor (described below) to the Prosecution Group Head or the Regional Director, who shall raise the matter with the agent. If the matter cannot be resolved at the Regional level, the Executive Director of the Agent Affairs Unit will consult the ADAG (Criminal Law) and recommend action to the Minister.

7.4 The National Agent Supervision Program

7.4.1 Generally

In order to ensure that the quality and cost effectiveness of individual agents is adequately monitored, a national agent supervision program administered regionally, has been developed. This has meant the creation and resourcing of agent supervision units in regional offices. Each is staffed with at least one Agent Supervisor and support staff.

7.4.2 The Role of the Agent Affairs Unit

Under the direction of the Senior General Counsel, Strategic Prosecution Policy Section, the Agent Affairs Unit (AAU) provides legal, administrative, and management services to all regional offices, senior departmental management and the office of the Minister of Justice. The AAU serves a co-ordinating function for the appointment, management and supervision of agents.

The Executive Director of the Agent Affairs Unit acts as principal point of contact on all issues related to agents and, more particularly, on questions of practice management, conflict of interest, departmental policies, and performance assessment. The Unit is responsible for maintaining and monitoring national service quality standards. These responsibilities include development of operational policy respecting agent work.

The Unit is also responsible for administration of the Drug Prosecution Fund⁸ in cooperation with Regional Offices. The Fund was transferred from the Department of Health and Welfare to the Department of Justice on April 1, 1996.

The Unit also plays an important role in the training and development of agents in cooperation with the Agent Supervisors.

7.4.3 The Role of Agent Supervisors

Primary responsibility for supervising private sector agents rests with the Regional Office. With regard to Standing Agents, an Agent Supervisor will be assigned the responsibility for instructing and for monitoring the agent's work and helping to keep the agent informed of departmental policy and significant developments in the law in the agent's area(s) of responsibility. The Supervisor can also provide the agent with advice concerning the exercise of discretionary powers and in resolving difficult tactical and legal issues. The Supervisor will be the agent's primary contact point with the Department of Justice with respect to policy or legal issues which may arise in the course of a prosecution.

With respect to ad hoc agents, the Regional Office should, where appropriate, provide assistance to the agent and take measures necessary to support the agency process. Such measures, which also apply to Standing Agents, include the following:

• where Crown counsel think that it is warranted, instructing agents on law, procedure, policy issues, and the approach of the Regional Office to particular types of cases;
• monitoring and assessing the agents' work;
• requiring agents to report significant issues promptly before any further steps are taken;
• provide support to agents by supplying opinions and research memoranda;
• establishing and enforcing reporting requirements on the conduct and disposition of cases handled by agents;
• analyzing trends in the law and sentencing ranges, based on reports by agents, and measuring sentences against the standards set by the court of appeal; and
• reviewing accounts for certification by looking for anomalies in fees charged, services rendered, or other matters which should be brought to the attention of the Executive Director of the Agent Affairs Unit and the LCSS.

Regional Offices may ask police agencies and client departments to help monitor an agent's case load and performance. These agencies and departments can help by reporting undue delays, performance problems, and excessive claims for fees and disbursements.

7.4.3.1 Transfer of Files

Occasionally, for operational reasons, a Regional Office may want to reassign a file given to an agent to another lawyer. In such cases, the FPS Director must advise the Minister’s office through the Appointments Co-ordinator. The FPS Director must also inform the agent, who in turn is expected to provide full support in the transition.

7.4.3.2 Fees

Agent fees are based on a schedule set by the Minister in consultation with departmental officials⁹. Agents may discuss requests for higher rates with the Prosecution Group Head or Regional Director; however enhanced fees are reserved for exceptional cases, and approval must be obtained before the work is performed. If the Prosecution Group Head or Regional Director thinks an increase is justified, a proposal in writing should be sent to the Assistant Deputy Attorney General (Criminal Law) via the Executive Director of the Agent Affairs Unit. The proposal should cover such issues as the following:

• the experience of the agent or potential agent, including year of call;
• expertise in the specific area of prosecution;
• the complexity and urgency of the case;
• the prevailing rates in the local community for comparable work; and
• the extent of the disruption to the agent's normal practice if the work is accepted.

7.4.3.3 Audits

Both the Agent Affairs Unit and Agent Supervisors must ensure that drug prosecution services are delivered at a reasonable cost. To enable the Department to account for the cost of drug prosecution services and report to Treasury Board, Agent Supervisors must have access to such information concerning billing in the possession of agents as will enable the Supervisor to fulfil this important task. To this end, agents must comply promptly with all reasonable requests for information.

7.5 Other Policy Matters

7.5.1 Conflict of Interest

7.5.1.1 Standing Agents

The policy regarding conflicts of interest and Standing Agents is set out in the Terms and Conditions of Appointment. The guiding principle is expressed in the Terms and Conditions of Appointment as follows:

7.5.1.2 Ad Hoc Agents

With respect to ad hoc agents, government conflict of interest guidelines seek to ensure that contracting with private sector agents meets the highest ethical standards. These guidelines are outlined in the Terms and Conditions of Appointment sent to agents. If an agent cannot comply with the guidelines, the agent shall immediately notify the Agent Supervisor, who in turn will notify the Executive Director of the Agents Affairs Unit, the Assistant Deputy Attorney General (Criminal Law) and the Senior General Counsel (Criminal Law). The Department will then request another appointment from the Minister through the AAU.

7.5.1.3 Generally

An agent may not prosecute offences under federal legislation if the agent or members of the agent's firm are currently defending persons charged with offences under the same legislation which the agent was appointed to prosecute.

If an agent prosecutes federal offences and the agent or members of the agent's firm are currently defending persons charged with offences whose prosecution is a provincial responsibility, the agent should inform the Agent Supervisor in writing. The Agent Supervisor will then assess whether a conflict of interest, or the appearance of a conflict, exists or if the continued use of the agent may be inappropriate. In assessing this question, the following factors may be considered:

• whether the cases being defended involve an attack on the conduct or policies of an investigative agency;
• whether the cases being defended involve a constitutional challenge to federal legislation;
• whether the agent or members of the agent's firm may use confidential information or documents obtained while acting as an agent;
• whether the investigating officers involved in the cases being defended are employed by an investigative agency with whom the agent has had regular contact while working as an agent; and
• generally, whether there is some reason to believe that it would be inappropriate for the agent to continue to conduct prosecutions on behalf of the Attorney General of Canada.

If the Agent Supervisor believes that a conflict, or the appearance of a conflict, exists or that it may be inappropriate for the agent to continue to act on behalf of the Attorney General, the Assistant Deputy Attorney General (Criminal Law) and the Executive Director (AAU) shall be notified in writing. The issue will then be reviewed with the Minister's office. The Minister will make a final decision on whether the agent will continue to act.

When defending present or future criminal cases or advising clients, agents shall not use confidential information obtained during employment as an agent without the written consent of the Assistant Deputy Attorney General (Criminal Law).

7.5.2 Allegations of Malicious Prosecution by Private Sector Agents¹⁰

Allegations of malicious prosecution may be raised against a private sector agent. Private sector agents should immediately notify the Agent Supervisor of such claims. The latter shall notify the Executive Director of the AAU. Representation and indemnification will be decided on a case by case basis and in accordance with current Treasury Board policy.

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Date Modified:

2008-12-24