Navigation Links

Skip to main content
Skip to primary navigation

Common menu bar

Breadcrumb

Home >
The Federal Prosecution Service DESKBOOK >
Chapter 45

The Federal Prosecution Service DESKBOOK

[ Previous | Table of Contents | Next ]

Part IX
DEPARTMENT CONSULTATION
Chapter 45

45 CONSULTATION WITH RESPONSIBILITY CENTRES

45 CONSULTATION WITH RESPONSIBILITY CENTRES

45.1 Introduction

The independence of the Attorney General, and by extension Crown counsel, in deciding whether to prosecute is an important constitutional principle in Canada¹. “Independence”, however, does not mean isolation and does not exclude the notions of cooperation and consultation². In some instances the determination of whether or not a prosecution is in the public interest³ requires consultations with those who can provide Crown counsel with relevant information, including the appropriate investigating authority⁴.

Consultation between Regional Office and Headquarters counsel is essential for three reasons:

to ensure consistent national policy in enforcing federal law;
to ensure that senior managers at Regional Offices and Headquarters learn of cases of significant public interest so that the Attorney General of Canada may be briefed where appropriate; and
to ensure that counsel consider the views and policies of client departments and other sectors within the Department of Justice.

Crown counsel require an effective consultation process. This chapter describes the consultation process within the Department of Justice and with departments of the Government of Canada that are involved in the investigation and institution of criminal litigation. The chapter focuses on two types of consultations: that between Regional Offices and Headquarters, and that between Crown counsel and investigating authorities⁵. It also identifies situations where consultation is particularly important -for example, aboriginal litigation, equality issues, appeals to the Supreme Court of Canada, environmental prosecutions and constitutional interventions.

45.2 Consultation Generally

45.2.1 Consulting with Investigators

Consultation is important because of the shared responsibilities among government departments for enforcing federal laws. Specific ministers and departments are responsible for administering and enforcing specific legislation. For example, the Minister of National Revenue is primarily responsible for administering and enforcing the Income Tax Act; the Minister of Transport administers and enforces the Aeronautics Act. This type of responsibility was recognized as necessary by Spence, J. in R. v. Hauser:⁶

Much of the legislation in such [federal legislative] fields is in essence regulatory and concerns such typically federal matters as trade and commerce, importation and exportation and other like matters. The administration of such fields require decisions of policy and certainly would include the establishment of a policy as to the means of and methods of enforcement.

Many prosecutions are undertaken as a result of investigations conducted by federal investigators. In some situations, Crown counsel will be aware of the case at the investigative stage because of a request for legal advice. In others, Crown counsel will not learn of the case until after charges have been laid and the prosecution brief has been sent to the Regional Office. In either situation, decisions about the charges to pursue, the evidence to call, the legal arguments to make, the recommendations to make on sentence and the decision to appeal may have to be made. In making these decisions, Crown counsel should, where appropriate, consult with the investigating officers.

45.2.2 Consulting with Investigating Authorities and Legal Services Units

Especially in the prosecution of offences under specialized statutes (for example, the Canadian Environmental Protection Act and the Aeronautics Act), Crown counsel should review the prosecution manuals⁷ developed by the Departmental Legal Services Units and examine the compliance and enforcement policies contained in the manuals. Counsel may communicate directly with the appropriate investigating authority. However, there may be cases where special instructions are required from senior managers of a government department, where that department's policies or practices are challenged, where the department's legislation is attacked, or where specialized assistance is needed. Crown counsel should then seek the assistance through the appropriate Departmental Legal Services Unit because it has direct access to the relevant department's senior management. This consultative process will ensure that the policies and procedures of the relevant department are fully considered in the development of the Attorney General's position.⁸ Ultimately however, section 5 of the Department of Justice Act gives the Attorney General responsibility for the conduct of litigation⁹.

45.2.3 Internal Dispute Resolution

If Crown counsel and an investigator or other member of another government department disagree on an issue, counsel should advise the Prosecution Group Head, Regional Director or Senior Regional Director, who may wish to discuss the matter with regional managers of the other department. Most issues will be settled at the regional level. However, if the issue is not settled, the Senior Regional Director may refer the matter to the Senior General Counsel at Headquarters¹⁰. If further consultations are needed, the case may be referred to the Assistant Deputy Attorney General (Criminal Law). On rare occasions, the Deputy Minister may need to become involved.¹¹

45.3 Consultation with Other Sections/Sectors in the Department

45.3.1 The Human Rights Law Section

Crown counsel conducting prosecutions which raise humans rights issues involving the Charter of Rights and Freedoms, the Canadian Human Rights Act or international law may require assistance from the Human Rights Law Section (HRLS).¹² The HRLS provides litigation support, day-to-day advice to government departments, agencies and other sections within the Department and develops position papers on certain important Charter/human rights issues. In criminal cases, litigation support may be provided at any stage of a prosecution. For example, support may consist of providing opinions and developing legal arguments for Crown counsel. The HRLS should be consulted when prosecutions raise new human rights or Charter issues. HRLS lawyers will review legal arguments and factums prepared by Crown counsel, and assist in defining issues, developing arguments and improving arguments or facta. The Section will also review the factum or argument of the accused and assist Crown counsel in defining and responding to the issues and arguments raised by the accused. Crown counsel should consult with the HRLS at the earliest possible stage in the proceedings to allow the HRLS to be as useful as possible.

45.3.2 The Criminal Law Policy Section

Counsel may also receive assistance from the Criminal Law Policy Section. This Section develops and implements policies related to the Criminal Code and other federal statutes involving the criminal law. It also provides advice on criminal law issues. In cases involving a Charter challenge to a provision of the Criminal Code or other federal legislation, the Section can explain why the provision was adopted in its current form and assist in identifying material, such as transcripts of hearings before Parliamentary Committees, that will assist in defending the legislation. Successful defences of legislation often require a close working relationship between litigators and counsel in the Section. The Section may also be consulted about the merits of federal intervention in specific Charter cases. Headquarters counsel frequently consult the Section on matters of operational policy relating to legislation for which the Department is responsible, such as proceeds of crime and mutual legal assistance. The Section can assist with interpretations and other implementation matters.

45.3.3 The Diversity and Gender Equality Office (DAGE)

In 1999, the Diversity, Equality and Access to Justice Division merged with the Gender Equality Initiative of the Department of Justice to form the Diversity and Gender Equality Office (DAGE). The mandate of the DAGE is to assist all sectors of the Department of Justice by integrating diversity and gender equality into the programs and policy development, legal operations and management practices of the Department. The DAGE office provides litigation support, day to day advice to other sectors within the Department, and develops papers on key issues to assist them in building a more equitable and accessible justice system.

Diversity analysis, like gender analysis, flows from the rights accorded to vulnerable groups under both the Charter and the various human rights codes. Diversity analysis involves an assessment of a position in terms of how it might impact on a range of groups that have historically experienced disadvantage when in contact with the Canadian justice system.

The Department developed, with provincial and territorial Attorneys General officials, an Integrated Diversity and Equality Analysis Screen (IDEAS) for Federal/Provincial/Territorial Deputy Ministers of Justice, in order to respond to the request in 1996 by Ministers Responsible for Justice that all justice proposals brought before them routinely incorporate diversity and equality considerations. This Screen applies a few focusing questions to elicit information that might otherwise not come to the attention of decision-makers. The completion of the assessment of the potential impact for disadvantaged groups will enable a determination of how next to proceed. The range of groups covered by the tool includes persons who are members of one or more of the following: women; racialized minorities; Aboriginal people; religious groups; persons with disabilities; refugees; recent immigrants; youth and children; the elderly; social assistance recipients and the poor; gays, lesbians and bisexual persons; transgendered persons; and persons with literacy problems.

In 1998, the Department of Justice adopted its policy on gender equality requiring all Justice staff to assess the relative impact of legislation, policies and programs on women and men. Pursuant to this policy, gender equality analysis is an integral part of the work of the Department, including that of litigators. The policy was elaborated in a very detailed guide called “Diversity and Justice: Gender Perspectives” which provides a step-by-step process to assist litigators in their work.

To assist in ensuring that the goals of the policy are met, Gender Equality Specialists have been identified in every Regional Office. Counsel should consult the Specialist, both to assist in identifying gender issues in litigation, and to get advice on potential approaches to those issues. Further advice may be obtained from the Office of the Senior Adviser on Diversity and Gender Equality, including assistance in the development of legal argument, assistance in defining issues and assistance in assessing social context information.

45.3.4 Other Responsibility Centres

While Crown counsel may consult most frequently with the foregoing three sections, there may be a need to consult other responsibility centres within the Department. Counsel are encouraged to look at the Department's Intranet site, which contains valuable information on whom to contact.

45.4 Cases Requiring More Formal Consultation between Regional Offices and Headquarters

A more formal consultation will be required in cases which attract considerable public attention. These include cases in the Supreme Court of Canada, environmental prosecutions, and cases involving extradition, proceeds of crime, native law, constitutional interventions, national security, language rights or significant public interest. Crown counsel are expected to follow the consultation process set out below for these types of cases.

However, even if a case is not specifically mentioned below, Crown counsel should make an effort to determine whether consultation with Headquarters is necessary. In deciding whether or not to consult with Headquarters on a case where no formal consultation process is required, Counsel should consider a number of factors including:

whether there are other responsibility centres within the Department likely to have information that could be useful;
whether the decision to be made or the case itself is likely to have impact on the broader interests of the Department or government as a whole; and
whether the decision or submission to be made is consistent with other advice or submissions the Department has given or is likely to give.

45.4.1 Supreme Court of Canada cases

The Supreme Court Coordinator¹³ at Headquarters organizes and tracks the Department's criminal cases in the Supreme Court. The Coordinator advises Crown counsel on Supreme Court practice and acts as counsel's agent when necessary.

Counsel should advise the Coordinator of all applications, motions, and appeals in the Supreme Court, and send the Coordinator a copy of all briefing notes and memos concerning these cases. Counsel should also advise the Coordinator of any other criminal matters of potential interest to the Attorney General of Canada that are on their way to the Supreme Court. In addition, counsel should provide the Coordinator with any other information that will help the Coordinator track cases and ensure that all necessary procedures are followed.

For further information about practice before the Supreme Court, including the appointment of counsel, see Part V, Chapter 23, “Appeals in the Supreme Court of Canada”.

45.4.2 Environmental prosecutions

The Environmental Prosecutions Coordinator at Headquarters can help counsel prosecuting “environmentally-based” cases, including those under the Canadian Environmental Protection Act, 1999 and the Fisheries Act. The Coordinator is responsible for facilitating communication between Crown counsel and departmental legal services and communicates information on environmental matters to the regions. The Coordinator also assists counsel by distributing information on environmental matters and prosecutions, including cases, articles and seminar materials on legal issues. The Coordinator also provides research assistance and opinions on specific issues of law, and offers policy advice and consultation in difficult or sensitive cases.

In addition, the Coordinator monitors all prosecutions under the Canadian Environmental Protection Act, 1999 and similar provisions under the Fisheries Act, significant provincial environmental prosecutions, and all environmental prosecutions against federal or provincial government departments. Crown counsel should therefore advise the Coordinator in writing of these types of cases.

Specific counsel have been named in each Regional Office to act as primary contact points for environment prosecutions. These counsel work closely with the Environmental Prosecutions Coordinator and can assist Crown counsel with environmental prosecutions. Counsel may also receive assistance from Legal Services Units such as those at Environment Canada and Fisheries and Oceans. Counsel may contact these units directly or through the Coordinator, who maintains regular contact with them.

45.4.3 Extradition and Mutual Legal Assistance (MLAT) cases

The International Assistance Group (IAG) at Headquarters handles all contact with foreign officials on extradition and MLAT matters. The IAG also provides legal opinions and precedents (cases, articles and documents) to counsel involved in extradition and MLAT cases, and monitors all extradition cases. Counsel should keep the IAG briefed on the progress of all such cases.

The policies on extradition, mutual legal assistance and related matters may be found in Part VIII of the Deskbook. The Department has also prepared a manual on mutual legal assistance to assist counsel with such cases. Each Regional Office has a copy.

45.4.4 Cases involving proceeds of crime, money laundering, asset management issues

The Strategic Prosecution Policy Section (SPPS)¹⁴ provides functional direction, advice and support in respect of all issues arising in proceeds of crime and money laundering investigations and prosecutions. The Section also manages the process of approval of undertakings necessary in order to seize or restrain property for forfeiture. As well, the Section is responsible for developing and implementing a plan for the Department's long term involvement in these areas, and is involved in interdepartmental initiatives such as asset sharing, and the creation of an asset management regime.

Counsel conducting proceeds of crime or money laundering cases and counsel from the Integrated Proceeds of Crime Units may receive assistance from the Section in the form of precedents, including cases, articles, and seminar materials, as well as information concerning similar cases handled by the Department. Counsel should inform the Section about the progress of proceeds of crime and money laundering investigations and prosecutions in accordance with the reporting requirements established by the Section¹⁵.

For further information on cases involving proceeds of crime, money laundering or asset management, see Part VI, Chapter 24, “Proceeds of Crime”.

45.4.5 Aboriginal law cases

Aboriginal law issues handled by the Department are coordinated through the Aboriginal Litigation Manager¹⁶ who maintains contact with counsel conducting aboriginal law cases. The Manager also promotes internal communication on native law issues by maintaining an inventory of aboriginal law cases and providing related support.

The Manager can assist counsel handling prosecutions involving native law issues by providing advice on Departmental legal and policy positions and by using the existing processes within the Department to try to resolve differences. Crown counsel must inform the Manager of prosecutions involving significant aboriginal law issues, as well as current and anticipated developments in these cases.

In addition, specific counsel have been named in each Regional Office to act as primary contact points for native law prosecutions. They work closely with the Aboriginal Litigation Manager and can assist Crown counsel conducting prosecutions involving aboriginal law issues. Counsel may also receive assistance from the Legal Services Unit of the Department of Indian Affairs and Northern Development, and the Aboriginal Litigation Co-ordinator.

For further information, see Part VI, Chapter 25, “Aboriginal Law Issues”.

45.4.6 Constitutional interventions¹⁷

The Attorney General, on the advice of the Litigation Committee¹⁸ and the Deputy Minister, decides whether to intervene in constitutional cases. A request for instructions to intervene must be in the form of a briefing note¹⁹ and must be approved by the Regional Director. The latter refers the request to the Assistant Deputy Attorney General (Criminal Law), through the Supreme Court Co-ordinator.

When the Department receives notice of a constitutional question in a routine case, the Regional Director may make the decision not to intervene. If in doubt, however, the Regional Director should contact the Supreme Court Coordinator.

When a proposed intervention involves an aboriginal law issue, the Regional Director must notify the Aboriginal Litigation Manager by providing a copy of the Notice, related materials, and a recommendation for action, even if recommending no intervention. The Manager will consult with interested parties, including the Assistant Deputy Attorney General (Criminal Law), process the Notice as directed, and advise the Regional Director of any decisions²⁰.

45.4.7 Cases involving national security issues

Crown counsel must be particularly sensitive to the need to protect information the disclosure of which would be injurious to national security²¹. Any prosecution which involves the possible disclosure of such information requires a special consultative process. For example, as a matter of practice, Crown counsel does not disclose information emanating from a CSIS investigation without the consent of the CSIS. This approval is sought through the head of CSIS Legal Services, who can obtain the proper clearance from the executive level of CSIS, and additional instructions, if required.

When a national security interest arises, Crown counsel must advise the Prosecution Group Head or Regional Director who, in turn, will advise the Senior Counsel, National Security Group (Strategic Prosecution Policy Section). The latter will contact the head of the appropriate Legal Services Unit (for example, CSIS, CSE, or the RCMP), and the Privy Council Office. If necessary, the Senior Counsel, (National Security Group) will also consult with the Senior General Counsel (Strategic Prosecution Policy Section), and the Assistant Deputy Attorney General (Criminal Law).

45.4.8 Cases involving prosecution of the Crown (“R v. R”)

Federal investigators sometimes recommend the laying of charges against another federal government department or agency. Due to the sensitivity of these situations, and due to perceptions of a conflict of interest within the Department of Justice, a specialized procedure has been developed in the charge approval process for these matters. This process is the subject of Part VI, Chapter 32, “R. v. R.: Prosecutions Against the Crown”.

45.4.9 Cases of significant public interest

Cases of significant public interest, besides those mentioned above, include those involving the investigation and prosecution of public figures or the proposed interception of their private communications. They could also involve minority language rights,²² religious rights, challenges to government programs, and federal-provincial or international relations.

Counsel conducting cases of significant public interest shall inform and consult with senior managers. In the regions, this means the Prosecution Group Head, the Regional Director, and the Senior Regional Director. At Headquarters, this means the Senior General Counsel (Criminal Law) or the Senior General Counsel (Strategic Prosecution Policy Section). The Assistant Deputy Attorney General (Criminal Law) should also be kept informed of such cases.

1 For a more detailed discussion of this principle, see Part I, Chapter 4, “The Independence of the Attorney General”.

2 See Part III, Chapter 8, “Independence and Accountability in Decision Making”.

3 See Part V, Chapter 15, “The Decision to Prosecute”, for a discussion about the public interest criteria to be considered when deciding whether to prosecute.

4 This term includes departments of the Government of Canada responsible for the regulation and enforcement of federal laws, such as the Canada Customs and Revenue Agency.

5 See also, Part III, Chapter 11, “The Relationship Between Crown Counsel and the Police”, and Part IV, Chapter 13, “Management of Criminal Litigation”.

6 (1979), 46 C.C.C. (2d) 481 at 488 (S.C.C.).

7 See Part XI, Chapter 52, “Other Departmental Publications”, for a list of available prosecution manuals.

8 For example, consultation is important in determining whether a prosecution is in the public interest: see Part V, Chapter 15, “The Decision to Prosecute.”

9 See Part I, Chapter 4, “The Independence of the Attorney General”.

10 In drug, proceeds of crime or national security cases, this would be the Senior General Counsel (Strategic Prosecution Policy Section). In other cases, it would be the Senior General Counsel (Criminal Law).

11 See Part III, Chapter 11, “The Relationship between Crown Counsel and the Police” for a more detailed consideration of this “review” process.

12 For cases raising minority language rights issues, the Official Languages Law Group should be consulted. Formerly part of the HRLS, the Group became part of the Civil Law and Corporate Management Sector on October 1, 2000.

13 See Part V, Chapter 23, “Appeals in the Supreme Court of Canada”, for a more detailed explanation of the role and responsibilities of the Coordinator.

14 See Part II, Chapter 5, “The Federal Prosecution Service”, on the role and responsibilities of the Section.

15 See Part VI, Chapter 24, “Proceeds of Crime” for information regarding the reporting requirements established by the SPPS.

16 The Manager is a lawyer within the Aboriginal affairs portfolio who reports to the Assistant Deputy Attorney General (Aboriginal Affairs). For further information on the role and responsibilities of the Manager, see Part VI, Chapter 25, “Aboriginal Law Issues”.

17 Also see Part IX, Chapter 47, “Considerations Governing Intervention”.

18 See Part IX, Chapter 46, “The Role of the Litigation Committee”.

19 See Part IX, Chapter 48, “Ministerial Briefing Material”.

20 See Part VI, Chapter 25, “Aboriginal Law Issues”.

21 In Solicitor General of Canada v. Royal Commission Re Health Records (1981), 62 C.C.C. (2d) 193 at 225, the Supreme Court of Canada said:

The rule of law which protects against the disclosure of informants in the police investigation of crime has even greater justification in relation to the protection of national security against violence and terrorism.

To the same effect, see R. v. Kevork (1986), 27 C.C.C. (3d) 271 (Ont. H.C.). For a more complete discussion of this issue, see Part VII, Chapter 37, “Protecting Confidential Information under the Canada Evidence Act”.

22 The Official Languages Group of the Civil Law and Corporate Management Sector is responsible for coordinating and developing legal advice in relation to language litigation. The Group should be notified at the earliest opportunity of impending cases in which language rights issues are raised under the Charter, the Official Languages Act or related legislation. See also Part VI, Chapter 34, “Official Languages in Prosecutions”.