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The Federal Prosecution Service DESKBOOK

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Part IX
DEPARTMENT CONSULTATION
Chapter 46

46 THE ROLE OF THE LITIGATION COMMITTEE

46.1 Introduction

The Litigation Committee has the ultimate, not the immediate, responsibility for supervising litigation carried out by the Department, by departmental counsel or agents. Its purpose is to make recommendations to the Deputy Attorney General about litigation matters in which the federal Crown is a party or there is a significant federal interest in intervening¹. The Committee does not, however, direct the day-to-day handling of individual prosecution files. Functional responsibility for the prosecution function rests with the Assistant Deputy Attorney General (Criminal Law)², and responsibility for decisions on individual files rests with Crown counsel. Counsel are in turn accountable to senior managers³.

The Committee's supervisory responsibilities cannot be properly exercised without the input of litigation counsel. Its ability to provide meaningful assistance to the Deputy Attorney General is facilitated by the diligence and creativity of counsel.

46.2 Membership

The Committee has eighteen “core” members -- generally, the senior litigation managers at Headquarters -- and several “invited” members who have a strong interest in specific areas covered in the Committee's agenda.

The core members are:

The invited members include:

The Director of the Ministerial Secretariat also attends as an observer. Distribution of material to committee members is co-ordinated by the legal assistant to the Charter Litigation Co-ordinator, or the legal assistant to the Criminal Appeals Co-ordinator.

46.3 Mandate

The Committee's general supervisory duties include:

1. monitoring “significant cases”⁴ to which the Attorney General of Canada is a party. Significant cases usually come to the Committee's attention through the appropriate senior authority (for example, the Assistant Deputy Attorney General (Criminal Law)) who has received information from a litigation manager, often in a Regional Office;
2. reviewing all recommendations to appeal or not to appeal significant cases;
3. reviewing all proposals for the Attorney General to intervene at any court level⁵. The Committee makes recommendations to the Attorney General through the Deputy Attorney General. Decisions not to intervene may be made in clear cases by Senior Regional Directors⁶. In cases of doubt, Senior Regional Directors should discuss decisions not to intervene with the Charter Litigation Coordinator or the Assistant Deputy Attorney General (Criminal Law);
4. in consultation with litigation managers, make recommendations to the Deputy Attorney General about the selection of counsel to appear on behalf of the Attorney General in the Supreme Court of Canada⁷ and in significant cases in all other courts;
5. reviewing all facta before they are filed in the Supreme Court of Canada⁸ or, in significant cases, before they are filed in provincial appellate courts. Facta sent to the Committee should already have been reviewed by the Prosecution Group Head and Senior Regional Director and by the Assistant Deputy Attorney General (Criminal Law). The Committee should not be provided with a first draft with the expectation that it, rather than counsel having conduct of the case, will do the necessary corrective surgery. This is not the Committee's role. Generally, the Committee's supervisory function is limited to a consideration of the substance of the argument proposed by counsel and litigation managers after full reflection, research, and consultation on the issues raised by the case. Facta not meeting this standard will be returned to counsel for reconsideration. However, in some cases, it may be appropriate to put preliminary questions or options to the Committee, before the factum is prepared, to obtain direction and instructions;
6. identify, in conformity with the policies concerning use of official languages in appeal proceedings, cases in which it would be in the public interest to prepare facta in both official languages;
7. reviewing important letters of opinion on the same basis as facta; and
8. reviewing important issues of litigation policy and their application.

46.4 Approval of the Assistant Deputy Attorney General (Criminal Law)

As noted above, criminal matters are referred to the Litigation Committee by the Assistant Deputy Attorney General (Criminal Law). Such matters, like facta, must be referred to the Assistant Deputy Attorney General in a timely fashion so that the Assistant Deputy Attorney General is given an adequate amount of time to consider whether to refer the matter. The Criminal Appeals Co-ordinator screens material for the Assistant Deputy Attorney General to ensure that it complies in form and substance with Committee requirements.

46.5 Communicating with the Committee

The Litigation Committee meets at 11:00 a.m. each Tuesday. Except for urgent matters, its agenda is finalized at 12:00 p.m. on the preceding Friday afternoon. Normally, items for consideration are referred to the Charter Litigation Coordinator by the Assistant Deputy Attorney General (Criminal Law)⁹. The Coordinator then decides whether to place the matter on the agenda and whether it should also be brought to the attention of others who may be directly interested. These representatives may then participate in the meeting with the consent of the Committee’s chair.

Sometimes the Coordinator will return the documents, through the Assistant Deputy Attorney General, to the originator. This usually happens if the matter has not been properly “processed” through the system to the Assistant Deputy Attorney General or if it is not otherwise appropriate for consideration by the Committee; for example, the material may be inadequate or the reference to the Committee premature.

Some cases may require urgent consideration, and cannot be left to work their way through the managerial system. These cases are the exception, not the rule. If an urgent situation arises, the Senior Regional Director or his or her delegate should contact the Criminal Appeals Co-ordinator to determine how instructions can be obtained. The Criminal Appeals Co-ordinator will brief the Assistant Deputy Attorney General (Criminal Law).

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Date Modified:

2008-12-24