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The Federal Prosecution Service DESKBOOK
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Part III
PRINCIPLES GOVERNING CROWN COUNSEL’S CONDUCT
Chapter 8
Table of Contents
8 INDEPENDENCE AND ACCOUNTABILITY IN DECISION MAKING
8.1 Introduction
The principle of the independence of the Attorney General is firmly entrenched in our legal system, widely respected, and carefully safeguarded. The theory underlying the principle and the leading statements concerning it are dealt with in detail elsewhere1. Perhaps less well understood is the operation of the independence principle in the day-to-day decision-making of individual Crown counsel. Crown counsel exercise their independence as the representative of the Attorney General. As such, the “independence
” of Crown counsel is a delegated independence. Crown counsel are obliged to make decisions in accordance with the policies of the Attorney General in this deskbook, and they act under the direction of FPS Directors, Regional and Senior Regional Directors, who are in turn responsible to the Assistant Deputy Attorney General (Criminal Law). Crown counsel retain a significant degree of discretion in individual cases2.
Crown counsel, like the Attorney General, are accountable for their decisions. Since the Attorney General is accountable to Parliament and the public3 for decisions made in his or her name, this may mean that the Attorney General (either personally, or through the Assistant Deputy Attorney General (Criminal Law)), may provide Crown counsel with instructions in a particular case, though such situations would be relatively rare.4
The independence principle also does not mean that Crown counsel need not consult. Quite to the contrary, responsible prosecutorial decision-making often requires consultation with colleagues, superiors or investigators. Indeed prosecutorial discretion is not exercised in a vacuum. The principle of independence means that the Attorney General does not take instructions as to how to exercise discretion. Similarly, Crown counsel do not take instructions as to how to proceed, except from those in the line of authority leading to the Attorney General, namely, the FPS Director, the Regional and Senior Regional Director, the Assistant Deputy Attorney General (Criminal Law) and the Deputy Attorney General.
The interaction of the principles of independence, accountability and consultation mean that what is protected is a system of prosecutorial decision-making in which the prosecutor is an integral component. A large measure of independence is conferred on Crown counsel, but absolute discretion is not.
8.2 Statement of the Policy
Crown counsel are obliged to exercise independent judgment in making decisions. Because their decision-making powers are delegated to them by the Attorney General, Crown counsel are subject to the same constraints faced by the Attorney General personally: they are accountable for their decisions, and they must consult where required. Prosecutorial independence is not a license to do as one wishes, but to act as the Attorney General personally should act.
8.3 Accountability
The Attorney General of Canada is accountable to Parliament for decisions taken in his or her name. This form of public accountability is crucial to a system of open justice, and counsel for the Attorney General must be cognizant of this fact. This explains the need to ensure that the Attorney General is well-briefed to provide answers to questions that may be posed in Parliament. The principle of public accountability is most clear in situations where Parliament has required that some prosecutorial decisions be made by the Attorney General (or Deputy Attorney General) personally; an example is the decision to lay war crimes/crimes against humanity charges under s. 9(3) of the Crimes Against Humanity and War Crimes Act5.
An equally important form of accountability is internal accountability. All counsel for the Attorney General, whether employees within the Department of Justice, or standing or ad hoc agents, are accountable to their superiors for decisions taken.6 The Department of Justice is organized to foster principled, competent and responsible decision making7. One of the goals of the Federal Prosecution Service Deskbook is to assist counsel in making the numerous difficult decisions which arise in criminal litigation. In so doing, it sets objective standards against which prosecutorial conduct may be measured.
Individual prosecutors are also subject to a form of public accountability through their membership in provincial law societies8. Another form of public accountability occurs through judicial review of a prosecutor’s actions, for example through the abuse of process doctrine9, or judicial control of actions which may prejudice fair trial interests, such as inflammatory jury addresses10. Accountability is also enhanced because of the availability to the public of the Federal Prosecution Service Deskbook, since the public is able to assess the actions of Crown counsel against the standards set out in the policies. Finally, recognition of the importance of public accountability imposes a duty on Crown counsel in certain circumstances to communicate the reasons for certain decisions to the public through the media.11
8.4 Delegation of Decision-Making Power
As a practical matter, Crown counsel exercise most of the functions assigned by the Criminal Code to the Attorney General. The Attorney General delegates these powers to counsel, but retains a discretion to direct that a particular decision be made.
The power to direct actions to be taken in the name of the Attorney General has been statutorily recognized in British Columbia since 1991. Section 5 of the British Columbia Crown Counsel Act12 states:
If the Attorney General or Deputy Attorney General gives the A.D.A.G. [Assistant Deputy Attorney General] a direction with respect to the approval or conduct of any specific prosecution or appeal, that direction must be given in writing to the A.D.A.G. and be published in the Gazette.
The section recognizes both the power of an Attorney General to intervene in particular cases, and the desirability of safeguarding prosecutorial independence by making the Attorney General’s action a matter of public record13. Safeguards exist within the Federal Prosecution Service, and are dealt with in section 8.6.
8.5 Consultation
Just as the Attorney General is well-advised to consult with Cabinet colleagues on certain decisions, so too may prosecutors consult with others. Examples of persons with whom counsel can and should consult include police officers or other investigators, client departments, and senior departmental counsel.
The purpose of consultation is to ensure that counsel has access to a wide range of viewpoints and information ensuring that the decisions are made with full knowledge of all the circumstances. Cabinet colleagues do not dictate litigation positions to the Attorney General; in the same way, neither client departments nor police officers can dictate to prosecutors that a certain course of action be followed. This does not mean that their views are not entitled to appropriate weight in determining what the public interest demands in particular situations.
Consultation within the Department of Justice rests on a somewhat different footing14. As a practical matter, the Attorney General delegates considerable authority to responsible officials. Because those officials continue to act in the Attorney General’s name, it is important that consultation be undertaken to ensure that the Attorney General is made aware of potential problems, and, in some cases, to direct that a particular course of action be undertaken. This is necessary to ensure consistent decision-making, and that the Attorney General approve of decisions for which he or she is publicly accountable15. It also helps avoid the unfortunate situation in which appellate counsel must resile from a position taken by trial counsel.16
8.6 Safeguards
Because the independence principle protects a system of decision-making and not the absolute right of an individual prosecutor to do as he or she sees fit, it is important to briefly outline that system in order to show how it seeks to protect independence.
The prosecution function of the Attorney General of Canada is national in scope, with central and regional components. It is exercised in accordance with the following safeguards:
8.6.1 Functional authority
Through the Deputy Attorney General, the Assistant Deputy Attorney General (Criminal Law) has been assigned functional responsibility for the provision of federal prosecution services. The authority is then exercised by Crown counsel under the direction of the FPS Director and the Senior Regional Director who are responsible to the Assistant Deputy Attorney General (Criminal Law) for the exercise of prosecutorial discretion.
8.6.2 Delivery of prosecution services
The delivery of federal prosecution services is performed in accordance with public guidelines contained in the Federal Prosecution Service Deskbook, and approved by the Attorney General.
8.6.3 Access to the Deputy Attorney General
The Assistant Deputy Attorney General (Criminal Law) reports directly to the Deputy Attorney General.
8.6.4 Resource allocation
As part of his or her functional responsibility, and in partnership with Senior Regional Directors, and Portfolio Heads where appropriate, the Assistant Deputy Attorney General (Criminal Law) plays a lead role in the allocation of resources for the delivery of criminal litigation services.
1 See Part I, Chapter 4, “The Independence of the Attorney General
”.
2 Indeed some courts have indicated that policies that completely remove Crown counsel’s discretion are improper: see R. v. Catagas (1978), 38 C.C.C.(2d) 296 (Man.C.A.); R. v. Wood (1983), 31 C.R.(3d) 374 (N.S. Prov.Mag.Ct.).
3 The Attorney General may take steps to explain decisions to the public, in order to promote public confidence in the administration of justice: see Part III, Chapter 10, “Communications with the Media
”.
4 See the discussion in Controlling Criminal Prosecutions: The Attorney General and the Crown Prosecutor, Ottawa: Law Reform Commission of Canada, Working Paper 62 (l990) at pp. 16-17, 53-59. See also Vasta v. Clare (2002), 133 A Crim R. 114 (Qld.S.C.).
5 See Part V, Chapter 16, “Decisions Made by, and on Behalf of, the Attorney General
”.
6 See, generally the discussion in D. Stuart, “Prosecutorial Accountability in Canada
”, in P. Stenning, Accountability in Criminal Justice, Toronto: University of Toronto Press, 1995, at pp. 336-339
7 See Part II, Chapter 5, “The Federal Prosecution Service
”, and Chapter 6, “The Functional Responsibility of the Assistant Deputy Attorney General (Criminal Law)
”
8 Prosecutors are subject to the disciplinary rules of provincial and territorial law societies for matters of professional conduct: Krieger v. Law Society of Alberta, 2002 SCC 65, [2002] 3 S.C.R. 372.
9 See Part I, Chapter 3, “The Role of the Minister of Justice and the Attorney General in Developing and Enforcing the Criminal Law
”.
10 See Part III, Chapter 9, “Duties and Responsibilities of Crown Counsel
”.
11 See Part III, Chapter 10, “Communicating with the Media
”.
12 R.S.B.C., c. 10
13 The British Columbia statute was considered in the case of R. v. Stone (1997), 33 W.C.B.(2d) 488 (B.C.C.A. per Huddart J. in Chambers), in which a disagreement arose between the Attorney General and Assistant Deputy Attorney General over whether to pursue a sentence appeal. The judgment recognizes the right of the Attorney General to personally intervene in particular cases. As Huddart J. stated: “The public interest that it is the duty of the Attorney General to consider requires him to make an overall assessment of the combined weight of all factors for and against prosecution. This filtering is usually done by the Criminal Justice Branch. But the Attorney General bears ultimate responsibility for every decision to prosecute or not prosecute.
”
14 See generally, Part IX, Chapter 45, “Consultation with Responsibility Centres
”.
15 See Part V, Chapter 16, “Decisions Made by, and on Behalf of, the Attorney General.
”
16 See R. v. Barry, 2004 NSCA 145.
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