The Rule of Law and Prosecutorial Discretion

The SNC Lavalin controversy, and in particular the allegation that the former Attorney General was improperly pressured by the Prime Minister’s Office to resolve the prosecution in favour of the defendant, has raised widespread concern about to the state of the rule of law in Canada. This is remarkable, as the rule of law does not often attract this degree of public attention. Canada is generally highly respected in the global community for its legal order.

One of the precepts of the rule of law is that all citizens are subject to the same law administered without bias by an independent judiciary. In its proper application, the rule of law reduces the risk of corruption by those with power, influence or privilege.

The rule of law requires a well-marked division of powers between the legislative (Parliament), executive (Cabinet), and judicial (courts) branches of government. One of the critical aspects of the rule of law is the independence of the judiciary: neither Parliament nor Cabinet can interfere with cases that are before the courts. Those involved in the administration of justice, including judges and prosecutors, cannot be subject to political influence.

In Canada, the Department of Justice Act stipulates that the Attorney General is also the Minister of Justice. The role of the Minister of Justice involves developing public policy and legislation, which is inherently based on political considerations. The role of the Attorney General, however, involves responsibility for federal prosecutions, which must remain independent from politics. The Attorney General and Minister of Justice is also a member of Cabinet. This duality of roles is in stark contrast to the United Kingdom, where the Attorney General (known as the Lord Chancellor) and Minister of Justice (secretary of State for Justice) have always been separate positions.

The Supreme Court of Canada has described the responsibility for public prosecutions as a quasi-judicial function. Prosecutions are conducted in the public interest, independent of partisan political concerns. The Attorney General’s oversight function must also respect those principles. The Supreme Court observed in Law Society of Alberta v Krieger, 2002 SCC 65 that it is a constitutional principle that attorneys general act independently when exercising their prosecutorial authority. The Court stated that:

The gravity of the power to bring, manage and terminate prosecutions which lies at the heart of the Attorney General’s role has given rise to an expectation that he or she will be in this respect fully independent from the political pressures of the government.

The Director of Public Prosecutions Act was enacted by Parliament in 2006, in part to ensure the independence of the prosecutorial function of the Attorney General. It is intended to guard against the appearance of political interference in the prosecution service, given that the Attorney General is also Minister of Justice and a member of Cabinet. The Act created the Department of Public Prosecutions and authorizes the director of public prosecutions to initiate and conduct federal prosecutions on behalf of the Attorney General. The Attorney General retains the authority, however, to provide directions to the prosecution service. Pursuant to s. 10 of the Act, the Attorney General may issue directives with respect to specific prosecutions. Pursuant to s. 15, the Attorney General is authorized to assume conduct of a prosecution. In practice, the vast majority of prosecutions are conducted without intervention by the Attorney General. If the Attorney General were to issue directives or assume conduct of a prosecution, the Act requires that it be publicized in the Gazette, presumably so that the involvement of the government is clear and transparent.

The federal model may have been based to some degree on the British Columbia Crown Counsel Act, introduced in 1991 to ensure the independence of the prosecution service in this province. Under the Crown Counsel Act, the Criminal Justice Branch under the assistant-deputy Attorney General is responsible for prosecutions. The Act provides that the Attorney General may issue directives in writing to the assistant-deputy Attorney General, which can include directives regarding the conduct of particular cases. Past attorneys general of this province have on rare occasions issued directives in specific prosecutions involving matters of significant public interest. In the prosecutions arising from the Stanley Cup riot, for example, the then-acting Attorney General directed that the Crown apply for cameras to be allowed in the courtroom so that the proceedings could be broadcast to the public. In the vast majority of cases, however, the BC Attorney General does not become involved in the day-to-day exercise of prosecutorial discretion.

The ability to maintain prosecutorial independence is essential to the rule of law where ultimate prosecutorial authority lies with a member of Cabinet. The fact that the Attorney General retains the authority to direct or assume conduct of a prosecution requires strict adherence by other Cabinet members to the principle of prosecutorial independence. Because the role of Cabinet requires policy decisions that reflect political considerations, the principle of prosecutorial independence is sacrosanct.

The principle of prosecutorial independence is guided by what by known as the “Shawcross doctrine,” which sets out the proper relationship between the Attorney General and Cabinet in matters involving the Attorney General’s oversight of prosecutions. It is based on a historic statement of principles by Lord Shawcross, a former UK Attorney General. According to the Shawcross doctrine, the Attorney General has no obligation to consult with Cabinet in this role but may do so at his or her discretion. However, any involvement by other Cabinet members is limited to consultation and cannot involve direction or pressure. According to this doctrine, although the Attorney General is a Cabinet minister, responsibility for prosecutorial decisions resides solely with the Attorney General, and other members of Cabinet cannot interfere with the exercise of that discretion.

Prosecutions must not be tainted by political considerations. Countries without a robust rule of law are, however, at risk that prosecutions may be influenced for improper reasons, such as where those who oppose the government in power are prosecuted for political ends, or where prosecutions against allies of those in power are influenced for improper reasons. Even Canada is not immune from these threats to the rule of law. In the notorious 1959 Roncarelli v. Duplessis case, the premier of Quebec revoked the business license of a person who was believed to be acting against the government’s political agenda. In the 1964 Rivard affair, Quebec government officials were alleged to have offered bribes to affect the prosecution of a Liberal party supporter, which later led to the resignation of the Attorney General of Canada. History demonstrates that any appearance of political interference in legal proceedings is destructive to the rule of law and the integrity of the justice system.

The recent SNC Lavalin controversy has sparked debate about whether there is a conflict of interest in having one person occupy the posts of Attorney General and Minister of Justice. The government has commissioned a review of the proper role of the Justice Minister and the Attorney General in Cabinet, including whether any reform is needed. Whatever the outcome of the conflict surrounding the SNC Lavalin prosecution, clear recommendations with respect to the proper role of Cabinet in discussions with the Attorney General regarding matters of prosecutorial discretion would help to ensure public confidence in Canada’s elected officials, the prosecution service and the justice system.

Comments

  1. Until the fairly recent changes, 2007, made by Tony Blair’s government, there was in England, an Attorney General for England and Wales and a Lord Chancellor. The latter was never the former. Until 2007, the Lord Chancellor was a member of cabinet, the leader of the government in the House of Lords, as well as the senior judge there and the head of the judiciary and of the Chancery Division of the High Court. The Lord Chancellor has now lost any judicial role and has become the Secretary of State for Justice.

    It is a mistake to imagine that the decision whether to prosecute a person or not isn’t always a political decision. Brian Greenspan, a criminal lawyer for 45 years, said in The Globe & Mail, 17 April, 2019:

    “There is no question that the attorney-general must exercise her role objectively and independently. However, in a free and democratic society, the prosecutorial function does not operate in a vacuum, in isolation and immune from debate, discussion and, indeed, persuasion. Isolation breeds tyranny. Access to justice requires those who administer justice to be accessible, to be open to advocacy on behalf of clients and causes. Advocacy in the adversarial process does not undermine independence. In fact, the public interest is best served by ensuring that the decision-maker has meaningfully examined the conflicting positions and has been exposed to a comprehensive review of all relevant considerations”.

  2. I was troubled by Brian Greenspan’s piece in The Globe. He had every right to advocate for his clients, up to and including the political level, but in his comments, he seemed oblivious to what a rare privilege it is for an accused to have access to such advocacy: the teenager in a small town picked up for selling marijuana, for instance, would not have that privilege unless his parents were very well connected. More importantly, I have serious doubts about the propriety of an Attorney General allowing him- or herself to be lobbied about an individual prosecution in that way. In my own practice, I have had clients suggest that they would call Ministers’ offices about regulatory prosecutions and I have always recommended against it: I believed that both ministers and prosecutors would be offended and see it as a failure by my clients to take prosecutorial independence seriously. It was disturbing to see the opposite behaviour in the SNC-Lavalin affair.

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