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3. Chapter 32

The Federal Prosecution Service DESKBOOK

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Part VI
POLICY IN CERTAIN TYPES OF LITIGATION
Chapter 32

32 R. V. R.: PROSECUTIONS BY THE CROWN AGAINST THE CROWN

32.1 Introduction

Many federal statutes and their accompanying regulations create offences aimed at deterring conduct that is capable of “inflict[ing] serious harm on large segments of society”¹. Such offences are usually referred to as “regulatory” or “public welfare” offences, and deal with such important subject-matter as workplace safety and environmental protection.

On occasion, government departments, Crown corporations or their employees engage in the proscribed conduct. As a result of this, the prosecuting arm of the government (as represented by the Attorney General), may have to consider prosecuting a different arm of the government, a scenario commonly referred to as “R. v. R.”.

Notwithstanding the unusual appearance of the government prosecuting itself, Courts have recognized that such action may be entirely appropriate. As the Nova Scotia Court of Appeal has stated²:

More recently, the Supreme Court of Canada has held³:

32.2 Purpose of the Policy

This policy has three objectives:

• to affirm the principle that governmental offenders of regulatory legislation will be treated similarly to private individuals;
• to manage potential conflicts of interest that may arise from the roles departmental counsel in the provision of legal advice; and
• to outline the procedures to be followed in commencing and conducting R. v. R. prosecutions.

32.3 The Investigative Stage

During the investigative stage, Department of Justice counsel may be called upon to advise not only the investigative agency, but also the department⁴ which is under investigation. For example, Crown counsel may be called upon by investigators prior to the obtaining of a search warrant, and legal services counsel may be contacted by the department being searched during the execution of that warrant.

The Department of Justice cannot provide legal advice to both the investigating agency and the department under investigation in such circumstances. Accordingly, the role of departmental counsel advising the department under investigation will be limited to assisting that department in obtaining counsel from the private sector.

32.4 The Decision to Prosecute

Crown counsel may be called upon to assess whether a prosecution should occur in one of two ways. The investigative agency may simply lay charges, and refer the matter for prosecution; or, the investigative agency may provide a prosecution brief for pre-charge screening with a recommendation that proceedings be instituted.

In both circumstances, Crown counsel will assess the proposed prosecution by applying the policy on “The Decision to Prosecute”⁵. This will be done in consultation with the Prosecution Group Head and the Senior General Counsel (Criminal Law) in Ottawa.

In all such cases, an opinion will also be sought from counsel from the private bar (“outside counsel”) or counsel for a provincial attorney general who will be asked to apply the “Decision to Prosecute” criteria. Once opinions from both Crown counsel and outside counsel are obtained, the matter will be forwarded to the Assistant Deputy Attorney General (Criminal Law) for a final decision. The outside counsel's opinion regarding the appropriate charges will be considered along with departmental counsel's in deciding which charges to proceed with.

The Deputy Attorney General is informed immediately after the “Decision to Prosecute” exercise is complete. If charges are authorized, Crown counsel, in consultation with the Environmental Prosecutions Co-ordinator in the Criminal Law Branch, should ensure that appropriate officials in the Privy Council Office, and the legal service units for both the investigative agency and the defendant department are advised.

32.5 Conduct of the Prosecution

The prosecution will normally be conducted by outside counsel. In most cases, this will be the lawyer who provided the independent legal advice as to whether the case should proceed.

The outside counsel will exercise all the usual discretionary powers of Crown counsel. He or she will be bound by the prosecution policies in the Federal Prosecution Service Deskbook.

32.6 Appeals

Should outside counsel believe an appeal from an acquittal or sentence is required, a recommendation will be made according to the procedure set out in Part V, Chapter 22, “The Decision to Appeal”. The appeal may be conducted by Departmental counsel or outside counsel, depending on the circumstances.

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Date Modified:

2008-12-24