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The Federal Prosecution Service DESKBOOK
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MEMORANDUM OF UNDERSTANDING BETWEEN THE CANADA REVENUE AGENCY AND THE FEDERAL PROSECUTION SERVICE
Respecting The Conduct Of Investigations
And Prosecutions Of Offences Under
Canada's Revenue Statutes
Table of Contents
PREAMBLE
WHEREAS the Canada Revenue Agency (CRA), represented by the Investigations Directorate, and the Department of Justice, represented by the Federal Prosecution Service (FPS), (the parties), recognize the need for an effective partnership in the pursuit of their respective mandates;
WHEREAS the parties recognize that the public interest requires that they work together in supporting each other's mandate;
WHEREAS it is recognized that effective cooperation is built on trust and a clear understanding of each other's role and responsibilities;
WHEREAS cooperation must be based on respect for the independence of each of the parties in the performance of their responsibilities;
WHEREAS this memorandum provides a basic framework for cooperation that can be supplemented by local arrangements reflecting local practices that are consistent with the operational policies of the parties;
THEREFORE the parties agree as follows:
1. Purpose
The purpose of this Memorandum is:
- to provide a clear understanding of each party's roles and responsibilities at the investigative and prosecution stages of a revenue case;
- to improve the efficiency of revenue prosecutions by identifying the key goals of regulatory programs, and implementing strategies to enhance the quality of investigations and cases presented at trial.
2. Roles and Responsibilities
In the exercise of their respective mandates, the parties respect each other's independence while recognizing the need to work together toward common goals. Generally, the CRA is responsible for the investigation of suspected offences of non-compliance with the various Acts1 being administered, and the laying of charges, if warranted, for willful non compliance with these Acts. Generally, the FPS is responsible for the pre-screening of cases, the recommendation of charges and persons to be charged, and the prosecution of charges laid. The CRA plays an important role at the prosecution stage. The FPS plays an important role at the investigative stage.
2.1 Roles and Responsibilities of the CRA
2.1.1 The primary mandate of CRA Investigations is to deliver fair, responsible, and effective enforcement measures that safeguard the integrity of Canadian social programs, deter fraudulent behavior, contribute to the public trust and confidence in the self-assessment system, and enhance voluntary compliance while respecting the integrity of the criminal justice system.
(A) At the Investigative Stage
2.1.2 The CRA exercises discretion with respect to investigations. The CRA opens, conducts, directs, and controls investigations, and determines the structure, scope, length, and means used to carry them out. Upon referral of a case to the FPS with a recommendation regarding charges, the FPS and the CRA consult to ensure that decisions about whom to charge and what charges to lay meet FPS Deskbook requirements.
2.1.3 The CRA preserves and organizes information and evidence collected in the course of an investigation in contemplation of litigation and, more particularly, the Crown's obligation to disclose.
2.1.4 The FPS will be involved at the investigative stage if statutory obligations, legal questions, or reviews of cases prior to referral require the involvement of a prosecutor. Legal advice will be provided to both investigators and supervisors.
(B) At the Prosecution Stage
The CRA's role continues beyond the referral of a case to the FPS to include assisting the prosecutor until the prosecution is completed.
2.1.5 The CRA carries out additional investigative steps that are reasonably required by prosecutors to ensure the effective presentation of a case and fulfillment of duties.
2.1.6 The CRA preserves evidence and relevant information both for and against the accused, and maintains continuity and security of all physical evidence.
2.1.7 When required, the CRA attends and participates in interviews of prospective witnesses by a prosecutor, and maintains notes of such interviews for disclosure purposes.
2.1.8 CRA investigators make themselves available to review with prosecutors the facts of a case and disclosure issues after referral and prior to preliminary hearing or trial.
Proceedings
2.1.9 The CRA provides prosecutors with complete court briefs in a timely way. The obligation to provide all relevant reports and briefs continues throughout the prosecution phase.
2.1.10 CRA investigators, when called as witnesses, bring with them all notes and evidence in their possession relevant to their anticipated testimony.
2.1.11 The CRA is responsible for making arrangements for the attendance of all witnesses in court, and the payment of all litigation costs including expert reports, witness fees, and expenses, according to Treasury Board guidelines.
2.2 Roles and Responsibilities of the FPS
2.2.1 The Minister of Justice and Attorney General of Canada is responsible for carrying out many varied duties which either involve or are related to the prosecution of offences. Broadly speaking, the FPS carries out the criminal litigation responsibilities of the Attorney General of Canada and the Minister of Justice, namely, the prosecution of charges and all prosecution-related functions. The FPS acts as prosecutor in all matters prosecuted by the Attorney General of Canada on behalf of the Crown. The FPS ensures that a consistent national approach is taken to issues arising in revenue prosecutions.
2.2.2 Prosecutors are responsible for the pre-charge screening of cases* and the prosecution of charges in court. They represent the Attorney General of Canada, and are bound by duties imposed by Acts of Parliament, the Canadian Charter of Rights and Freedoms, jurisprudence, and the rules of the relevant provincial law societies. The manner in which these duties are carried out and independent prosecutorial discretion is exercised are governed by the guidelines contained in the FPS Deskbook. The most important guideline is the “Decision to Prosecute
” policy.
The prosecutor is obliged to consult and inform the investigator of decisions made.
2.2.3 The prosecutor's role is not to obtain a conviction but to lay before a trier of fact credible evidence relevant to an alleged offence. This must be done fairly, excluding any notion of winning or losing. However, if a prosecutor elects to pursue a prosecution, it is done vigorously and to the best of his or her ability, with due regard to the law, legal ethics, and the overriding obligation to act objectively and fairly in the public interest.
* The FPS pre-screens all tax cases and recommends the charges to be sworn and the persons to be charged.
(A) At the Investigative Stage
2.2.4 The CRA is responsible for investigation. A prosecutor's role is to provide assistance and legal advice during the course of an investigation conducted by the CRA. At this stage, the role of the FPS can be statutory, or a matter of administrative arrangement or good practice.
2.2.5 Prosecutors may apply for access to any special investigative procedure requested by the CRA. Prosecutors consider all such requests in a timely way and, when asked to do so, provide reasons to the CRA if a request is not recommended.
2.2.6 If a recommendation is made against charges or further investigation, reasons will be provided.
(B) At the Prosecution Stage
2.2.7 Prosecutors will review completed investigations and provide recommendations for charges or further investigation in a timely way.
Prosecutors conduct prosecutions according to the guidelines of the Attorney General of Canada contained in the FPS Deskbook.
2.2.8 Prosecutors review evidence and the circumstances of a case in accordance with the “Decision to Prosecute
” policy. This review is a crucial component of the exercise of independent prosecutorial discretion. It is an ongoing process that continues throughout the prosecution.
2.2.9 Prosecutors will consult with the CRA before deciding to stay or withdraw charges, not proceed with charges recommended by the CRA, or not appeal a dismissal of charges. The CRA will be informed of decisions made.
Issues of Common Concern
3 Operational Issues
The parties recognize the need for a clear understanding of responsibilities in addressing operational issues.
3.1 Joint Implementation Committees
3.1.1 The parties will establish a National Joint Implementation Committee (NJIC) to:
- implement the provisions of this MOU;
- consider and make recommendations about matters requiring action by the parties;
- ensure that a consistent national approach is taken to issues arising in revenue prosecutions.
The NJIC will be co-chaired by the Director General, Investigations, CRA, and the Senior General Counsel, FPS, or their designates.
3.1.2 Regional Joint Implementation Committees (RJIC) and regional MOUs may be established to facilitate regional input, and to implement recommendations and decisions of the NJIC.
3.1.3 Each party shall designate one or more members to the National and Regional Joint Implementation Committees respectively. Members of the RJIC may participate in meetings of the NJIC, as required, by video or audio connection. The committees will determine the frequency of their meetings.
3.2 Major Case Management
The objective of this section is to improve the management of complex cases by:
- early identification of cases;
- early development of a team approach;
- development of a plan that structures the investigation in contemplation of a prosecution;
- procurement of adequate resources;
- better management of disclosure;
- enhanced support for the prosecution; and
- provision for the wellness and security of investigators and prosecutors.
3.2.1 The CRA will bring to the attention of the NJIC cases requiring major case* management early in their development.
3.2.2 The NJIC will assess such cases and make recommendations to the parties about:
- adequate resourcing of the investigation and prosecution;
- early establishment of an investigation/prosecution team;
- electronic case management: scanning capacity, disclosure, software training, trial preparation, and electronic presentation of evidence;
- the security and wellness needs of investigators and prosecutors; and
- a disclosure protocol.
* A “major case
” may be identified by three features: a lengthy and complicated investigation, a joint enterprise of several accused each facing serious charges, and voluminous evidence. For further particulars about the FPS policy on major case management, see the FPS Deskbook, “Megacase Management Policy
”.
3.3 Disclosure Protocol
[T]here is a general duty on the part of the Crown to disclose all material it proposes to use at trial and especially all evidence which may assist the accused even if the Crown does not propose to adduce it.
[R. v. Stinchcombe (SCC)]
The objective of this section is to develop a protocol to assist CRA investigators in meeting the Crown's responsibilities for disclosure, particularly in major cases.
3.3.1 In all investigations, the lead CRA investigator will manage disclosure from the beginning of the investigation until all disclosure requirements are met. The investigator will:
- ensure that full disclosure is available to each accused at the time of first appearance, if there is no arrest, or as soon thereafter as practicable;
- provide additional disclosure as soon as reasonably practicable if additional relevant material which could assist the defence is acquired by the CRA;
- identify to the FPS any disclosable material which appears to raise questions of privilege.
3.3.2 In major cases, where appropriate, a disclosure team comprised of FPS counsel, the lead investigator, and paralegal support will be established.
All records and notes will be collected and organized in one central location on a daily or weekly basis. Recommendations for the editing of reports and notes will be made by investigators, and reviewed by the lead investigator and FPS counsel. The lead investigator summarizes all information, makes all reports, and prepares the Crown brief and material for the bail hearing, if there is an arrest.
Consideration will be given to the appropriateness of electronic disclosure.
3.3.3 The FPS will assist the CRA in training investigators on disclosure obligations.
3.3.4 The CRA is responsible for the costs of disclosure.
4 Organizational Issues
The parties recognize the need to work together to improve the overall organization of investigations and prosecutions.
4.1 Joint Planning
(A) Joint National Planning
4.1.1 The CRA will consult the FPS through the NJIC when the CRA sets its future investigative objectives. The CRA will identify the cases to be given priority treatment for investigation and prosecution.
4.1.2 The FPS will estimate, according to each region, the prosecution resources needed to assist investigations and prosecute cases, and identify any shortfall in prosecutorial resources.
4.1.3 The CRA and the FPS will meet regularly to adjust priorities, expectations, and resources needed to meet demand (and to develop a national plan for investigations and prosecutions.)
4.1.4 The CRA will make the FPS aware of any new fraudulent schemes or trends that become apparent through investigations.
(B) Joint Regional Planning
4.1.5 The RJIC in each region may develop a regional plan in accordance with the national plan. The regional plan will match regional resources to investigations, and identify any shortfall in investigative or prosecutorial resources.
4.1.6 The CRA and the FPS will meet locally to make adjustments to regional plans, and will provide the regional plans to the NJIC.
4.2 Joint Communications Strategy
The parties agree to consult on public statements, and to develop a joint communications strategy when issues of mutual concern arise.
4.3 Training
4.3.1 The parties agree to develop a national training and development plan for investigators and prosecutors.
4.3.2 The parties agree to jointly fund basic training for investigators and prosecutors in financial accounting, tax law, Charter problems, and criminal law and procedure.
4.4 Legislative and Policy Developments
4.4.1 The FPS will make recommendations to the CRA about changes in investigative policy or practices required as a result of judicial decisions or similar contingencies.
4.4.2 The NJIC will consider and recommend:
- changes to legislation in order to ensure that investigators have the legal tools necessary to conduct investigations, or which would otherwise enhance the investigation and prosecution of revenue cases;
- changes to policies required as a result of judicial decisions; and
- changes to practices necessary to ensure effective investigations and prosecutions.
5 Coming into Force
This MOU comes into force upon signature.
SIGNED AT OTTAWA
On
E. Routledge
Assistant Commissioner
Compliance Programs Branch
Canada Revenue Agency
D.A. Bellemare, Q.C.
Assistant Deputy Attorney General
(Criminal Law)
Federal Prosecution Service
1 The Acts being administered are the Income Tax Act and the Excise Tax Act.
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