This article was published in Volume 43(2) of Queen's Law Journal, p. 813-862 (Queen's University, Kingston, 2009). Published here, with the kind permission of the Queen's Law Journal and author. Copyright restrictions still apply for republication elsewhere.
The Attorney General and the Prosecution Function on the Twenty-First Century*
The Honourable Marc Rosenberg**
Since the 1980s, our understanding of the role of the Attorney General in the administration of criminal justice has evolved dramatically. The independence of this role has been eroded by the fact that courts and law societies have taken a more active role in scrutinizing the decisions of Attorneys General, and the public has demanded greater transparency and accountability. What has emerged is an expectation that the office of the Attorney General be protected from improper political influences and that prosecutions be conducted in accordance with fairness and respect for the law.
The author argues that while the most important factor in the impartial administration of justice may be the personal character and integrity of the Attorney General, our system of checks and balances also protects the prosecutorial functions. This system involves four separate safeguards: constitutional conventions, institutional safeguards, and the roles of the law societies and the courts in supervising prosecutorial functions. Despite these safeguards, the author argues that there remain concerns regarding the proper role of the Attorney General, including the Attorney General acting as counsel, the publication of prosecutorial guidelines, the practice of giving reasons of decisions regarding whether to proceed with a prosecution and the practical costs of increased judicial scrutiny of prosecutorial functions. Finally, the author comments on the continued mistreatment of people detained before trial — that is, people who have possibly been denied certain Charter rights, and he argues that the Attorney General needs to take leadership over this issue.
I.The Checks and Balances
A. Constitutional Conventions
B. Institutional Safeguards
C. Role of the Law Society
D. Role of the Court
II. Some Concerns
A. Strengthening the Commitment to Ethical Conduct
B. The Attorney General as Counsel
D. Publication of Prosecutorial Guidelines
E. Reasons for Decisions
F. The Costs of Greater Judicial Scrutiny
G. Some Special Problems
Two events occurred in the 1980s that profoundly changed the way we think about the role of the Attorney General in the administration of criminal justice. The first was the 1985 Supreme Court of Canada decision in Operation Dismantle Inc. v. R., where the Court held that “cabinet decisions fall under s. 32(1)(a) of the Charter and are therefore reviewable in the courts.” Despite the Attorney General’s special constitutional status, there is no doubt that decisions by the Attorney General in the exercise of the prosecution function are similarly subject to judicial review.
The second event was the release of the Report of the Royal
Commission on the Donald Marshall, Jr., Prosecution in
of the work of the Commission, the Canadian criminal justice
system had to deal with the fact that the conviction of an innocent
person was not a mere aberration of an otherwise fair and just
system. The Report demonstrated profound systemic failures in
the way that justice was administered in our criminal courts.
The miscarriage of justice in Donald Marshall, Jr.’s case
was not, as the
Those systemic problems reached to the highest levels in the
Ministry of the Attorney General in
The Marshall Inquiry dealt with events in
As part of his work for the Commission, Professor Edwards reviewed models of responsibility for the prosecution function throughout the Commonwealth (and elsewhere). Such models ranged from that of apparently full independence from the political sphere, where the Attorney General is a public servant — neither an elected representative nor a member of cabinet — to one where the Attorney General has a more political role. In the end, Edwards became less convinced that “the formal structures of government guarantee the fulfillment of an impartial and independent administration of justice.” Instead, he concluded with “deep seated conviction” that “no matter how entrenched constitutional safeguards may be, in the final analysis it is the strength of character and personal integrity of the holder of the [office] of Attorney General . . . which is of paramount importance.”
In this paper, I want to explore whether the administration
of criminal justice in
If Operation Dismantle and the Marshall Inquiry were the catalysts for the change in the way that we think about the role of the Attorney General, the concrete manifestations of that change were two developments that Attorneys General have not embraced with any great enthusiasm in the past. First, there has been a gradual erosion of independence of the office of the Attorney General because of greater scrutiny of prosecutorial discretion and decision-making by the courts and other institutions (such as the law societies). This erosion of independence has led to greater accountability by the prosecution system for its decisions. At the same time, greater judicial scrutiny of the prosecution function has strengthened the constitutional and institutional structures which protect that function from improper political interference.
Second, there is more openness in the operation of the prosecution system. The public has become progressively less tolerant of secrecy in public affairs. Demands for greater transparency and accountability have put pressure on all of our public institutions to be more open. The public and the press no longer blindly trust in decisions that were formerly not only made in secret, but which were, remarkably, encouraged to be made in secret by the courts.
Nothing can guarantee that the powers of the Attorney General will always be exercised in the public interest, and no system can be fully insulated from the impact of outright corruption. But the combination of many factors now offer considerable security against the abuse of the Attorney General’s powers in the exercise of the prosecution function. Among those factors are the now established constitutional conventions surrounding the office of the Attorney General in the exercise of the prosecution function, conventions that are progressively coming to be recognized as embodying legal principles with legal remedies: the presence of well-embedded institutional safeguards and concepts of professionalism in the ministries of the Attorneys General; the recognition of the role of the provincial law societies; and greater vigilance by courts through an increasingly robust application of the Canadian Charter of Rights and Freedoms.
In this paper, I will review the system of checks and balances that protect the prosecution function. I will also comment on some continuing concerns with the proper role of the Attorney General. Finally, I will briefly comment on problems in our criminal justice system relating to pre-trial procedures, for which the Attorney General needs to take ownership and exercise a leadership role.
I. The Checks and Balances
A. Constitutional Conventions
While the constitutional role of the Attorney General in civil litigation and as advisor to Parliament, the legislature and the cabinet may still not be entirely clear, the proper role of the Attorney General in the exercise of the prosecution function is well settled. Until the 1960s, descriptions of this role were to be found only in the speeches of various Attorneys General and other officials, and in some isolated writings. That changed in 1964 with the publication of Professor Edwards’ treatise, The Law Officers of the Crown, followed in 1984 by his The Attorney General, Politics and the Public Interest. Philip Stenning’s text Appearing for the Crown followed in 1986. Since then there have been other works, most notably Professor Edwards’ 1986 Viscount Bennett Memorial Lecture, “The Charter, Government and the Machinery of Justice,” and the 1990 report from the Law Reform Commission of Canada, Controlling Criminal Prosecutions: The Attorney General and the Crown Prosecutor.
These works have made the constitutional conventions surrounding the office of the Attorney General in the prosecution function more accessible, and have generated a broad consensus about the proper role of the Attorney General. This can be seen in the speeches of various Attorneys General when called upon to explain their positions in the House and in their published works, including several influential papers by Ian Scott. These works have described a number of constitutional conventions that relate to the prosecution function.
The most important of these constitutional conventions is that although the Attorney General is a cabinet minister, he or she acts independently of the cabinet in the exercise of the prosecution function. This convention is now so firmly entrenched in the Canadian political system that any deviation would likely lead to the resignation of the Attorney General or would, at the very least, spark a constitutional crisis.  The resignation of the Attorney General would expose any attempted interference by the premier or the cabinet both to the public and especially to the press, and would further entrench the convention of institutional independence. As Edwards said:
[I]t must be emphasised that to recognise the inevitability of dismissal or resignation in these circumstances in no sense represents a weakening of the Attorney General’s constitutional position. What it entails is the removal of the issue from the confidential environment of Cabinet deliberations and its exposure to the full glare of public attention.
It could be argued that the very fact that it would take a resignation to uncover possible interference with the independence of the Attorney General reinforces Edwards’ contention that all depends on the strength of character and personal integrity of the Attorney General — a person of lesser worth would simply cave in to the cabinet directive or the demands of the premier, and the matter would never see the light of day. It may appear so when viewed solely from the perspective of the Attorney General, sitting in his or her office, pondering how to respond. But the Attorney General does not operate in splendid isolation. The Attorney General and the ministry he or she superintends are constantly in the public spotlight, and he or she is surrounded by officials who understand and accept the independence of the Attorney General as a fundamental principle of the rule of law. In my view, it would be extremely difficult for an Attorney General in our system to take direction from the cabinet on a prosecution function without the matter becoming known and leading to some kind of crisis within the government.
The parameters of independence in the prosecution function
are also firmly established, and have achieved the status of
a constitutional convention. In
Canadian governments have been somewhat late in recognizing
this convention. Edwards points out that it was not until 1978
that an Attorney General publicly adopted the Shawcross doctrine
and stated as a “first principle” that the Attorney
General is not entitled to make prosecution decisions on the
basis of narrow, partisan views. Edwards also points to pre-1978 examples where the Prime Minister
had claimed that in sensitive cases, the decision to prosecute
would be taken by the government, albeit acting on the advice
of the Attorney General. Since
1978, however, there has been no serious challenge to the Shawcross
I mentioned in the Introduction that the constitutional conventions surrounding the role of the Attorney General have come to be recognized as embodying legal principles. The traditional view of constitutional conventions is that unlike the elements of the written constitution, the unwritten constitutional conventions, being neither statutory commands nor judge-made common law, are not enforced by the courts. In the 1981 Patriation Reference, the Supreme Court went so far as to quote one author who said that “the idea of a court enforcing a mere convention is so strange that the question hardly arises.” Since then, however, there has been some blurring of the distinction between law and convention, most notably in the 1998 Reference Re Secession of Quebec, where the Supreme Court, relying in part on the dissent in the earlier Patriation Reference, said:
Underlying constitutional principles may in certain circumstances give rise to substantive legal obligations ([having] “full legal force” . . . ), which constitute substantive limitations upon government action. These principles may give rise to very abstract and general obligations, or they may be more specific and precise in nature. The principles are not merely descriptive, but are also invested with a powerful normative force, and are binding upon both courts and governments.
The convention concerning the independence of the Attorney General in the exercise of the prosecution function has this powerful normative force and can give rise to binding legal obligations. In Krieger v. Law Society of Alberta, the Supreme Court first said that, “[i]t is a constitutional principle that the Attorneys General of this country must act independently of partisan concerns when exercising their delegated sovereign authority to initiate, continue or terminate prosecutions.” The Court then acknowledged that the Attorney General’s independence extends to immunity from judicial review “in the sphere of prosecutorial discretion . . . . To subject such decisions to political interference, or to judicial supervision, could erode the integrity of our system of prosecution.” Regardless, a decision made under circumstances of “flagrant impropriety” remains subject to judicial review, and I think it could be argued that a decision by the Attorney General that was tainted by partisan political considerations would fall within this category. Nothing could bring greater disrepute to the administration of criminal justice than if the government or the premier were directing prosecution decisions for narrow partisan political purposes. Suspicion that “politics” played a part in the handling of criminal prosecutions would undermine the impartiality of an entire proceeding.
In Krieger, the Court referred with approval to an excerpt from the dissenting reasons of Binnie J. in the R. v. Regan case that “[w]here objectivity is shown to be lacking, corrective action may be necessary . . . to protect . . . ‘the integrity’ of the criminal justice system.” The corrective action referred to by Binnie J. in Regan is the abuse of process doctrine, which permits a court to interfere with a prosecution decision by, for example, staying the proceedings or granting some other appropriate remedy under section 24(1) of the Charter.
As I said, I will return to the question of the role of the
courts in supervising the conduct of the Attorney General; however,
I want to briefly discuss another expression of the independence
doctrine. In a thoughtful article, Bruce MacFarlane, Deputy
Attorney General for
But if in fact the Attorney General is solely responsible to the Queen for all prosecutions, there is no accountability. The Queen and her Canadian representatives, the Governor General and the Lieutenant Governors, occupy largely ceremonial positions as heads of state, and so to say that the Attorney General is responsible to the Queen is to say that the Attorney General is responsible to no one. Today, we are far removed from the English origins of the office where the Attorney General was, in fact, the Queen’s attorney. Expressing the principle as accountability to the monarch also fails to take into account that the Attorney General is always subject to dismissal if the prime minister or premier finds the Attorney’s judgment to be of questionable quality.
There is, however, another more satisfactory way to construe
MacFarlane’s statement: the Attorney General is responsible
to the Queen in the sense that the Queen represents the rule
of law, and the Attorney General must make prosecution decisions
in accordance with the law.
Related to the Attorney General’s independence from government is the convention that in the exercise of the prosecution function, the Attorney General is independent of Parliament and the legislature. As Professor Edwards said, “it is now well recognised that any practice savouring of political pressure, either by the executive or Parliament, being brought to bear upon the Law Officers when engaged in reaching a decision in any particular case, is unconstitutional and is to be avoided at all costs.” As always, Professor Edwards was careful in choosing his words; it is political pressure on the Attorney General when he or she is engaged in “reaching a decision” that is forbidden by the constitutional convention. Professor Edwards believed that the Attorney General was accountable to Parliament or the legislature after the decision was made. This accountability has been frequently affirmed by the courts, but usually as a reason for refraining from judicial review.
One of the expressions of this form of accountability to Parliament can be found in the 1971 pre-Charter prosecution of Stafford Smythe. Chief Justice Wells, quoting from a 19th century English decision, stated that only the “great tribunal of this country, the High Court of Parliament” could make the Attorney General answer for any abuse of power or injustice. Alternatively, as the Supreme Court of Canada said in the same case, “the manner in which the Attorney General of the day exercises his statutory discretion may be questioned or censured by the legislative body to which he is answerable . . . . ”
As to the form this accountability takes, it seems that the only practical implication is that the Attorney General can be required to answer questions in the House after the case has finally been dealt with. Thus, the doctrine of collective responsibility, whereby the cabinet accepts responsibility for decisions made by any of the ministers, does not apply to decisions made by the Attorney General in the exercise of the prosecution function — the Attorney General, like any other minister, can only be required to answer questions in the House.
It has to be said that in practical terms, independence from Parliament means that the Attorneys General are virtually unaccountable in the political sphere for their decisions. Legislators are unlikely to demand an accounting for the Attorney General’s actions except in the most extreme and high-visibility cases, such as the decision by the Crown to accept a manslaughter plea from Karla Homolka in exchange for her testimony.
That being said, the opportunity of the Attorney General to make a statement in the House following a decision to terminate a prosecution can have an important educative function. One classic example is the statement in 1978 by Attorney General McMurtry explaining why the police, in consultation with the Crown law officers, decided not to lay a charge against Francis Fox for having forged the signature of a woman’s husband on a consent form so that the woman, with whom Fox had a brief affair, could obtain a therapeutic abortion. Mr. Fox was at the time the federal Solicitor General, and there was obviously a concern that whatever decision was made would have been made for political reasons. In his very careful statement, the Attorney General described the basis for the decision and took the opportunity to explain the nature of the discretion exercised by police and the Crown. As he said:
A prosecution is not automatically launched in every case where there is some evidence to support the laying of criminal charges. Police officers and the Crown law officers who advise them have broad powers to decide whether or not to launch a prosecution, taking into account all the circumstances surrounding the case.
The Attorney General went on to explain the various factors which made it clear that the public interest would not be served by a prosecution in that case. He concluded with this very important statement of the application of the rule of law:
Every day police officers and Crown attorneys decide not to prosecute potential accused. On many occasions charges are not laid, even though the police and the Crown would be fully justified in proceeding to prosecute. It is not, therefore, a question of whether the individual is rich or poor, prominent or not. Rather, it is a question of whether proceedings are appropriate, taking into account the public interest and the fair administration of justice.
Given the general absence of any effective accountability in the political sphere, it is even more important that the parameters of judicial review of the Attorney General’s actions be spelled out with some clarity. I will try to do that later after dealing with some of the other constitutional conventions.
(iii) The Attorney General and the Police
The constitutional conventions respecting the relationship
between the Attorney General and the police are perhaps not
as clearly drawn as the Shawcross doctrine and its related principles.
The Attorney General’s relationship with the police relies
on two complementary principles of independence. The police
enjoy independence from political control or control by the
Attorney General in the investigation of individual cases, and the Attorney General enjoys
independence from the police in the prosecution function. Simply
put, the police investigate and the Attorney General prosecutes;
the police lay charges and the Crown decides whether to continue
the prosecution. The
Marshall Inquiry showed how this system broke down in
Ian Scott and others have described one of the best examples
of the proper functioning of the relationship between the Attorney
General and the police: the Morgentaler prosecution.
Pending Dr. Morgentaler’s appeal to the Supreme Court
of Canada from the decision of the Ontario Court of Appeal setting
aside his acquittal and ordering a new trial, he and his co-accused
continued to perform therapeutic abortions in
More recently, the highly publicized prosecution of Gerald Regan, the former Premier of Nova Scotia, shows the problems that arise when lines between police and prosecution responsibilities become blurred. In that case, the conduct of a senior prosecutor came under very close scrutiny by the courts as she strayed over into the investigative phase of the case. It is unnecessary to detail the problems that arose in that case; I refer to it only because in it the Supreme Court affirmed the importance of the independence of the police and the prosecutor. The Court further accepted that there must be a flexible approach to the police-prosecutor relationship. A rigid rule would not necessarily further the policy goals that the independence of police and prosecution functions are designed to protect; namely, preserving the independence of the police in deciding which charges to lay, and preserving the objectivity of the Crown in assessing whether to proceed with the charges laid by police. The broader goals are to protect the system from improper influence and to ensure that only proper charges are prosecuted.
In Regan there was no question of the independence of the police in laying charges. The police not only understood that it was ultimately for them to decide whether to lay charges, but they also disregarded advice from the Crown. The concern in Regan was whether the necessary objectivity on the part of the Crown had been compromised, and whether the Crown’s decision to proceed with all of the charges laid by the police was made in the public interest.
The Regan case serves as a reminder of the dangers
to the proper functioning of the system when Crown counsel appear
to have become too closely aligned with the police. In 1989,
Douglas Hunt, Assistant Attorney General for Criminal Law in
While most prosecutors take care to separate their role from that of the police, a combination of police advocacy and the high level of police commitment can lead prosecutors to accept police information without appropriate confirmation and to turn to the police for guidance in exercising their professional judgment.
Hunt’s comments emphasize the policy basis for the independence of the police and prosecution functions. The purpose of the various constitutional conventions is to ensure that only prosecutions which are in the public interest are pursued. Confidence in the criminal justice system is shaken as much by the suppression of a prosecution for improper motives as by the ill-advised pursuit of a prosecution, especially of an innocent person. The role of the Attorney General is not simply to ensure that the guilty are prosecuted but that the innocent are protected. In Regan, the Supreme Court recognized this danger by referring to the Report of the Morin Inquiry, where Kaufman J. concluded that “at the root of the problems in the Morin case there had been a failure by the Crown prosecutor to assess objectively the reliability of evidence, before charges were laid . . . .” The Court then quoted at length from the Report’s findings on the experienced prosecutors’ decision to lead highly suspect and unreliable evidence:
The prosecutors showed little or no introspection about these contaminating influences upon witnesses for two reasons: one, the evidence favoured the prosecution; this coloured their objectivity; two, their relationship with the police which, at times, blinded them, and prevented them from objectively and accurately assessing the reliability of the police officers who testified for the prosecution.
Regan is therefore important not because the Court accepted a flexible approach to the police-prosecutor relationship but because it drew attention to the constitutional convention of independence of the police and the Attorney General and the reasons for that convention. Moreover, like the convention relating to the independence of the Attorney General from the government, the convention on police-prosecutor independence received direct judicial recognition. The dissenting judges in Regan explicitly recognized this constitutional principle as a legal one:
I agree with the trial judge as a matter of law that the Crown prosecutors must retain objectivity in their review of charges laid by the police, or their pre-charge involvement, and retain both the substance and appearance of even-handed independence from the police investigative role. This is the Crown Attorney’s “Minister of Justice” function and its high standards are amply supported in the cases . . . .
While the majority did not put it so explicitly as a legal principle, a fair reading of their reasons supports that characterization. For example, they recognized that “objectivity and fairness is an ongoing responsibility of the Crown, at every stage of the process.” The difference between the majority and dissenting judges was over whether the principle had been violated and whether there had been any abuse of process in the Crown’s conduct of the case. Admittedly, to say that this principle has achieved legal recognition does not mean its breach will in every case lead to some remedy for the victim of the misconduct. I think it can, however, be confidently said that the courts will now enforce the principle by granting a remedy in appropriate cases. In the most egregious cases, such as in R. v. Morin, the remedy will lie in damages for wrongful prosecution. Such payments may be made ex gratia, as in Morin, or under the rubric of the expanded malicious prosecution doctrine now recognized in Nelles v. Ontario.
In other cases, the accused may be entitled to a stay of proceedings on the basis of the abuse of process doctrine where the breach of the Crown’s obligations has interfered with trial fairness, or in those rare cases where the conduct prejudices the integrity of the justice system. Lesser remedies may be appropriate in other cases.
In the end, the appellate courts in Regan refused to intervene in the prosecution; they were reluctant to interfere with the Crown’s decision as to which charges to pursue. Nevertheless, the courts’ willingness to fully examine the circumstances of the case, and in doing so, to explain the constitutional and legal principles at play, supported the protection afforded by the independence doctrine.
To summarize, these three constitutional conventions centred on the independence of the Attorney General have become “invested with powerful normative force,” to use the language of the Secession Reference, through practice, example and judicial recognition. In some contexts, this will give rise to substantive legal obligations enforceable by the courts.
B. Institutional Safeguards
(i) Delegated Authority
The writing about the role of the Attorney General tends to
focus on the legal and constitutional framework. However, some
recent articles by senior lawyers in various ministries across
In this paper I only intend to highlight a few critical components
of the modern office of the Attorney General. Perhaps the most
important of these is the delegation of authority by the Attorneys
General to their agents. Although the Attorney General stands,
as Edwards would say, at the apex of the administration of justice
in the province, the broad discretionary powers are exercised
daily by the several hundred mostly full-time Crown counsel.
This arrangement, which until recently was quite different from
the way prosecutions were carried out in
An Attorney General or a member of the Attorney General’s political staff, interested in trying to influence a prosecution, would find serious practical difficulties in doing so because of the need to go through various levels of the professional Crown staff. Alternatively, an attempt by the Attorney General or a political staff member to directly contact Crown counsel would be such an unusual and significant event that it would be reported to counsel’s superiors and would inevitably find its way back up the chain of command. In other words, there is little opportunity for the Attorney General to secretly and corruptly influence a prosecution, either personally or through political staff.
For all practical purposes, the person who is really at the
apex of the administration of criminal justice on the prosecution
side is the Assistant Deputy Attorney General (ADAG) Criminal
Law or a person occupying a comparable position, such as the
Director of Public Prosecutions in
In his article, Code went on to outline more of the practical realities of the prosecution service, pointing out that the ADAG Criminal Law would feel the need to brief the minister only on that small subset of cases raising some very important point of principle or policy, or those likely to attract sufficient publicity that the minister might be asked about the case in the House. This latter class of cases may pose some difficulty: the mere fact that a case is of some notoriety does not mean that it is one the Attorney General should be briefed on. Code related his experience as follows:
Some Ministers are comfortable not being briefed in advance in these cases and they will simply respond to the questioner by stating that they have not been briefed on the case, that they will request a briefing from officials and that they will get back to the questioner in a day or two with a response or that they have “no comment”. Others prefer to institute a system by which they are alerted in advance to such cases so that they have an answer ready when the question arises. Most prosecutors, in my experience, strongly resist the latter approach because those cases that attract publicity often do not involve any important question of principle or policy. The case may simply involve sensational factual allegations which is not a proper reason for briefing the Minister. If a Minister was to insist on being briefed in advance on all such cases it would be regarded as improper political interference in prosecutorial decisions and would lead to serious tensions between the prosecutions branch and the Minister’s office.
That said, these institutional arrangements must also take into account that the Deputy Attorney General and the Attorney General dislike surprises. Thus, part of the job of the senior staff on the civil service side (rather than the political side) must be to anticipate those cases on which the minister should be briefed. It was Code’s experience that these briefings, especially those concerning pending prosecutions, would take place in the absence of political staff.
(ii) The Relationship of the Attorney General and Crown Counsel
Another important component of these institutional arrangements is the relationship between the Crown prosecutor and the Attorney General, and particularly the steps taken within the higher levels of the ministry to shield prosecutors from interference from the Attorney General or the political staff. In his article, Code referred to Professor Phillip Stenning’s observation that “the ‘administrative convention’ of protecting individual prosecutors from excessive intervention by the Attorney General may be a peculiarly Canadian response to the fact that the Attorney General in this country sits in Cabinet, unlike the English Attorney General.” In practical terms, this administrative convention may be as important as any constitutional convention on the independence of prosecutions from improper partisan influences.
In a provocative article entitled “The Right to an Independent Prosecutor,” two experienced Ontario Crown counsel argued that an accused had something akin to a constitutional right to an independent prosecutor.  Since the Attorney General was a politician and a member of cabinet, he or she could not fill the role of independent prosecutor. Only the local Crown Attorney could do so, and he or she could not be under the supervision of a political Attorney General. The authors’ argument was not legally or historically compelling, but the article is nevertheless important in demonstrating how zealously the Crown Attorney system cherishes its independence from improper political influence.
So, while Crown counsel are subject to direction by the Attorney General, the culture within the system acts as a further check against improper intervention by the Attorney General in the prosecution of even very serious and high profile cases. This culture has in fact been adopted by the legal community, as was demonstrated most recently by the criticism flowing from defence counsel’s disclosure that Quebec Attorney General Marc Bellemare allegedly took a personal interest in some of the plea negotiations in one of the Hell’s Angels prosecutions.
(iii) The Sub Judice Rule
A third component of the institutional arrangement is manifested in the sub judice rule. The operation of this rule reduces the practical need for the minister to be informed about pending prosecutions, and thus reduces the risk of improper influence by the minister or his or her political staff. The almost invariable position of the minister when asked about an ongoing prosecution in the House is that it would be improper to comment on a case before the courts until it is concluded. It is virtually unheard of for an Attorney General to make any kind of substantive comment about a prosecution until it is concluded. The sub judice rule not only protects the integrity of the prosecution but also provides a safe harbour for an Attorney General, as the opposition has usually lost interest in the matter by the time the case is resolved. Where a prosecution has been concluded but some issue of policy or principle still remains, as in the Homolka plea negotiations, the minister will, of course, be fully briefed.
The danger of the Attorney General or any minister commenting on a pending prosecution is well illustrated by the tortured proceedings arising out of the R. v. Vermette prosecution. There, the Premier of Quebec took the bait during opposition questioning, and made comments in the House about some of the evidence given at the trial of R.C.M.P. officers for alleged illegal activity in the course of investigating terrorist acts. In that case, the Supreme Court of Canada was satisfied that the prosecution should be allowed to proceed despite the violation of the sub judice rule. Speaking for the majority, La Forest J. held that “judicial abdication is not the remedy for an infringement of the sub judice rule,” and he could not accept that “reckless remarks of politicians can thus frustrate the whole judicial process.” He was, however, careful to also point out that there was nothing in the evidence to show that the Attorney General was implicated in the alleged abuse of process. This, of course, merely underscores the need for the Attorney General to scrupulously observe the sub judice rule both inside and outside the House.
To summarize, these various institutional arrangements not only protect the prosecution system from improper interference, but also protect the Attorney General from accusations of improper interference. Such interference would be so devastating to the prosecution of a case, and to the career of the minister, that it is in the interest of the Attorney General to ensure that relatively formal procedures are put in place. Three components — delegation, protection of Crown counsel from political interference and the sub judice rule — provide the basis for institutional safeguards against improper interference in the prosecution function. As Code noted, the concrete manifestations of these safeguards are at least threefold. First, “[t]he Attorney General’s normal role and responsibility in ordinary criminal cases is to establish broad policy guidelines for Crown counsel, in writing, and then leave it to counsel to apply [them] . . . . ” Second, the Attorney General, with the help of the Assistant Deputy Minister, must take steps to ensure that political staff understand that they cannot contact individual prosecutors. Third, when the Attorney General is briefed on a pending prosecution, political staff should not be present.
C. Role of the Law Society
Until very recently, there was some doubt about whether the provincial law societies had any role in supervising the exercise of the prosecution function. The Attorneys General had resisted attempts by the provincial law societies to regulate or supervise Crown counsel in that role. They took the view that any Crown misconduct was a matter for discipline within the ministry structure.
In Krieger, however, the Supreme Court confirmed that the law societies do indeed have a role in monitoring prosecutorial conduct. The Court found that law societies have jurisdiction, delegated to them by the legislatures, to regulate the conduct of Crown counsel as members of the law society. Still, the Court held that the law society’s power to regulate and discipline must respect the constitutional conventions referred to above and the constitutional division of powers. Thus, the law societies have no jurisdiction over the direct regulation of the core of prosecutorial discretion. The Court, however, narrowly defined that excluded area. While it expressly stated that it was not purporting to be exhaustive, the Court found that the core elements of prosecutorial discretion encompass decisions about whether a prosecution should be brought. Outside this core area, as in the conduct of a case before the court or in the application of legal rules (such as disclosure rules), the law societies have jurisdiction to discipline Crown counsel for ethical violations. Even the core area of protected prosecutorial discretion was constrained, since a decision to prosecute or to refrain from prosecution could fall outside that area if the discretion was exercised in bad faith or dishonestly. The Court agreed with the view of the motions judge, MacKenzie J., that “conduct amounting to bad faith or dishonesty is beyond the pale of prosecutorial discretion.”
D. Role of the Court
(i) Judicial Review
The relationship between the Attorney General and the courts has been an evolving one. As I have said earlier, the traditional position was that the exercise of discretion by the Attorney General was not subject to judicial review, even where the decision could be considered an abuse of power or could lead to an injustice. This position no longer represents the law. The area over which the Attorneys General and their agents enjoy unfettered and unreviewable discretion is narrow, hemmed in by the abuse of process doctrine, the Operation Dismantle doctrine and the tort of malicious prosecution. In the result, the courts are now a key element of the checks and balances against abuse by Attorneys General and their agents. The courts exercise this jurisdiction not just in the interests of the individual who claims to be the target of the abusive conduct but also in the public interest to ensure that cases are properly instituted and prosecuted.
Professor Kent Roach is sceptical of the courts’ willingness to monitor prosecutorial discretion. He sees a “judicial reluctance to examine the substantiveor procedural fairness of the Attorneys General exercise of discretion” and suggests that little has changed since the 1971 decision in Smythe. I take a slightly different view. I have mentioned the decision in Krieger, where the Supreme Court had to deal with an allegation that Crown counsel were not subject to the jurisdiction of the Law Society in the exercise of the prosecution function. The Court in Krieger held:
We agree that there are certain decisions of Crown prosecutors that cannot be reviewed by the Law Society. It is a constitutional principle that the Attorneys General of this country must act independently of partisan concerns when exercising their delegated sovereign authority to initiate, continue or terminate prosecutions. So long as they are made honestly and in good faith, prosecutorial decisions related to this authority are protected by the doctrine of prosecutorial discretion.
There are two important points to draw from this passage. First, as noted above, the Supreme Court has recognized the Shawcross doctrine as a constitutional convention. Second, although Krieger is foremost a case about the law society jurisdiction, the Court’s comments can apply to the scope of legitimate judicial review. In fact, the Court went on to hold that decisions made in the exercise of prosecutorial discretion are insulated from judicial review only if made honestly and in good faith. And even more far-reaching, the Supreme Court tightly defined the limits of prosecution discretion, holding in particular that “decisions that govern a Crown prosecutor’s tactics or conduct before the court, do not fall within the scope of prosecutorial discretion.”
In Krieger the Supreme Court also distinguished between prosecutorial discretion and legal duties. Many of the decisions made by the Attorney General or the Attorney General’s agents are discretionary, whether in exercise of common law powers or prerogatives or statutory powers, and thus do not operate according to any strict legal criteria but rather in accordance with established practices and guidelines. Since practices and guidelines do not have the force of law, the limits of judicial review are those identified by the Court in Krieger: honesty and good faith. Where the decision is not purely a matter of prosecutorial discretion but is a legal duty, the courts will exercise the full scope of judicial review. In Krieger, the allegation against Crown counsel concerned the failure to make proper disclosure to the defence. Since the Supreme Court’s decision in R. v. Stinchcombe, the Crown’s obligation of disclosure has been identified as a legal duty backed up by the Charter guarantees of fundamental justice and the right to a fair trial. As disclosure is not a matter of prosecutorial discretion but a legal duty, the Court held in Krieger that the prosecutor’s decision was subject to review by the Law Society for ethical violations in that it was an “intentional departure from the fundamental duty to act in fairness.” It is beyond dispute that the prosecutor’s failure to make proper disclosure would also have been subject to even closer scrutiny by the courts in a criminal prosecution, since the courts have a panoply of powers at their disposal to regulate the prosecutor’s action. The remedies that a court can grant do not depend on a finding of dishonesty or bad faith, and can range from an order to make the necessary disclosure, to an award of costs, or in the most extreme example, a stay of the proceedings.
Further, the highly deferential approach to the review of prosecution decisions, evident less than a decade ago in Power and so vigorously criticized by Professor Roach, has given way to a more interventionist tone in Krieger. Power, a leading decision on the scope of abuse of process, was filled with warnings against the dangers of judicial review of the Attorney General’s discretion. On two different occasions, for example, L’Heureux-Dubé J. quoted the same well-known passage from Director of Public Prosecutions v. Humphrys:
A judge must keep out of the arena. He should not have or appear to have any responsibility for the institution of a prosecution. The functions of prosecutors and of judges must not be blurred. If a judge has power to decline to hear a case because he does not think it should be brought, then it soon may be thought that the cases he allows to proceed are cases brought with his consent or approval.
Justice L’Heureux-Dubé also made the broad statement that “the Crown cannot function as a prosecutor before the court while also serving under its general supervision.” Compare that to the subsequent statement in Krieger:
Decisions that do not go to the nature and extent of the prosecution, i.e., the decisions that govern a Crown prosecutor’s tactics or conduct before the court, do not fall within the scope of prosecutorial discretion. Rather, such decisions are governed by the inherent jurisdiction of the court to control its own processes once the Attorney General has elected to enter into that forum.
Further, Iacobucci and Major JJ., speaking for the Court in Krieger, referred with approval to the dissenting reasons of Binnie J. in Regan, who opined that decisions of the Attorney General and his or her agents must be made in a fair and objective way. Where that “objectivity is shown to be lacking, corrective action may be necessary (as here) to protect . . . ‘the integrity’ of the criminal justice system.”
Thus, while Krieger continued to affirm the traditional view that judicial review of the Attorney General’s decisions in the exercise of prosecutorial discretion can only be conducted on the basis of flagrant impropriety, only a relatively small number of decisions seem to come within the constitutionally protected sphere of prosecutorial discretion — those broadly speaking having to do with whether or not to continue a prosecution. Even this narrow band of decisions is itself not immune from review where the decision was made with flagrant impropriety. This leaves a myriad of prosecutorial decisions open for judicial review on a more relaxed standard.
(ii) Malicious Prosecution
In Nelles, the Supreme Court of Canada recognized for the first time that Crown counsel, as an agent of the Attorney General, could be sued for malicious prosecution for actions undertaken in the course of a public prosecution. Speaking for the majority, Lamer J. rationalized the decision in this way:
It is said by those in favour of absolute immunity that the rule encourages public trust and confidence in the impartiality of prosecutors. However, it seems to me that public confidence in the office of a public prosecutor suffers greatly when the person who is in a position of knowledge in respect of the constitutional and legal impact of his conduct is shielded from civil liability when he abuses the process through a malicious prosecution. The existence of an absolute immunity strikes at the very principle of equality under the law and is especially alarming when the wrong has been committed by a person who should be held to the highest standards of conduct in exercising a public trust . . . . 
Justice Lamer was well aware that stripping the Attorney General and his or her agents of absolute immunity for such actions could undermine the independence of the Attorney General and thus the protections safeguarded by such independence. He summarized the arguments in favour of retaining the rule of absolute immunity as follows:
First, the rule encourages public trust in the fairness and impartiality of those who act and exercise discretion in bringing and conducting criminal prosecution; the rule is designed for the benefit of the public, not the individual prosecutor. Second, the threat of personal liability for tortious conduct would have a chilling effect on the prosecutor’s exercise of discretion and third, to permit civil suits against prosecutors would invite a flood of litigation which would deflect a prosecutor’s energies from the discharge of his public duties. In short, the absence of absolute immunity would open the door to unmeritorious claims and would be a threat to prosecutorial independence.
Nevertheless, Lamer J. predicted that removing the Attorney General’s absolute immunity would have little practical effect.
The elements of malicious prosecution, as applied to the Attorney General when acting in the prosecution function, closely mirror the standard of flagrant impropriety for judicial review. The burden on the plaintiff is to show that the Attorney General or Crown counsel perpetrated what amounts to “a fraud on the process of criminal justice and in doing so has perverted or abused his office and the process of criminal justice.” Because the bar has been set so high, Lamer J.’s prediction that removing absolute immunity from civil suits would have little practical impact on Crown counsel and the Attorney General in the exercise of their duties has proved correct. While many actions have been initiated since Nelles by disgruntled accused, very few have survived a summary judgment motion.
The decision in Nelles, however, added another safeguard against abuse of the prosecution function by the Attorney General. Like the later decision in Krieger, Nelles represented a further erosion of the autonomy of the Attorney General and a strengthening of the court’s supervisory powers. More fundamentally, the decision represented the clash between autonomy and independence on the one hand and accountability on the other. In the end, accountability through the judicial process was seen as a more reliable safeguard. As the majority of the Supreme Court said in Proulx v. Quebec (A.G.), where a plaintiff did successfully sue the Attorney General for malicious prosecution:
Against these vital considerations is the principle that the Ministry of the Attorney General and its Prosecutors are not above the law and must be held accountable. Individuals caught up in the justice system must be protected from abuses of power. In part, this accountability is achieved through the availability of a civil action for malicious prosecution.
II. Some Concerns
Despite the many checks and balances, there remain some potential for problems and/or abuse in our current system. In this section, I discuss some grounds of concern.
A. Strengthening the Commitment to Ethical Conduct
As a result of the Krieger decision, a law society can enforce the ethical obligations of Crown counsel. Of course, most decisions made by Crown counsel never come to the attention of the law society, not simply because of the various structural and institutional safeguards referred to above, but also because prosecutors, like other lawyers, have a strong sense of the importance of ethical practice. This commitment to ethical practice is reflected in Canadian ethical codes and has been repeatedly affirmed by the courts; it is part of every prosecutor’s manual. The Attorney General has an important role in fostering an atmosphere of ethical conduct. He or she should be at the forefront of encouraging impartiality in handling cases and of encouraging a commitment to equality and fairness. As Roy McMurtry said in the House, the authorities “must be scrupulous to treat all members of the community equally without any regard to their position.” The Attorney General can enhance this commitment to impartiality and fairness in Crown counsel’s decision-making through personal adherence to these values.
While prosecutors may adhere to the ideology of the minister of justice, the worth of that ideology depends on whether the prosecutor is empowered to put it into practice. Excessive zeal and its companion, tunnel vision, and the overly aggressive pursuit of the accused have no place in the prosecution of cases by agents of the Attorney General. Control of this conduct is not only a matter for trial judges to contend with, but must also be of continuing concern for the Attorney General.
B. The Attorney General as Counsel
The Attorney General can have an important role in encouraging
adherence to the ideology of fairness and impartiality in practice,
especially on those rare occasions when he or she appears as
counsel. But as Gordon Gregory, Deputy Attorney General for
Mr. Smith justified his personal intervention in those criminal prosecutions on the basis that they involved matters of “important public interest.” He said that he was accountable for the decision to the “court of public opinion,” but he offered the view that his personal appearance was necessary to emphasize “the importance of the matter to the province” and to subject “all aspects of the case to intense public scrutiny.” It is the latter comment that I think raises the question of the value of his intervention, and opens him up to the criticism that it was for partisan political reasons rather than for reasons connected to the administration of criminal justice. An Attorney General should be careful about intervening in a case simply to make a cause célèbre of it. The public, the courts and the bar might well think that the Attorney General is using the court process to push a personal or political agenda. He or she risks compromising the independence of the office by aligning a personal appearance in an ordinary criminal prosecution with the strongly held views of certain segments of the public. In cases that engage matters of broad public interest, the personal intervention of the Attorney General before the Supreme Court of Canada may be very important for the administration of justice. But where the Attorney General appears in a criminal case, especially one that does not engage a significant public interest, the accused may well wonder about the fairness of his or her treatment at the hands of the chief law officer. It may appear unjust that the Attorney General has personally invoked the power of his or her office against an individual.
I also think an Attorney General should consider what a personal
intervention can usefully bring to the presentation and determination
of the case. What perspective or dimension does the Attorney
General’s own appearance add? In his article, Mr. Smith
referred to the “long ingrained tradition for the English
Attorney General to lead in some major prosecutions.” However, there are three very important
differences between the historical English tradition and the
modern provincial Ministry of the Attorney General in
I should not be taken as advocating that the Attorney General should never appear before the courts. To the contrary, I expect that the interventions of Attorneys General McMurtry and Scott in important constitutional cases were very well received by the Court. I express these reservations because of the impact that such interventions in lesser cases might have on the appearance of independence and impartiality of the office. As Professor Edwards said in his Viscount Bennett lecture, politics, when invoked in association with the handling of criminal prosecutions, inevitably generate suspicion: “Perhaps this should not be, but the public mind is often governed by irrational emotions coupled with a deep-seated desire to see higher ideals prevail among those invested with enormous power over the lives of its citizens.”
Until relatively recently, the jealously guarded independence
of the Attorney General has been seen as the best protection
against abuse of the prosecution function. Protecting the Attorney
General from influence or supervision by the government, the
legislature and even the courts was seen as the mechanism for
keeping improper considerations out of prosecution decision-making
and for respecting the division of powers among the executive,
the legislature and the judiciary. One of
The wise use of independence provides certain advantages which are not easily procurable by any other expedient. In the first place, it commands a confidence in the work done, not the part of those who do it, but those who are intimately concerned with its performance — in most instances, the people . . . . In the second place, the condition of independence has the incidental result of producing a certain permanence, which in many offices is an immense advantage . . . . Finally, independence is a security against corruption . . . . By slackening the political responsibility, the official is less apt to be corrupted from the political side; while by increasing his moral consciousness and providing him with the proper stimuli, he may be trusted to resist temptation either from within the government or from without.
But for all that, independence comes at a price. Practically
speaking, an independent Attorney General is not accountable
for his or her decisions.
D. Publication of Prosecutorial Guidelines
One trend in the direction toward more transparency and accountability is in the publication of prosecutorial guidelines. As Professor Roach pointed out, this move toward more openness was made despite the majority’s views expressed by Justice L'Heureux-Dubé in the Power decision, which indicated that such publication was not only unnecessary but also undesirable, because it would promote inflexible and static policies. Professor Roach, a proponent of robust judicial review of the exercise of prosecutorial discretion, said that “guidelines are constitutionally encouraged as a valuable means to make the exercise of prosecutorial discretion more transparent and accountable and to ensure that the promise of fundamental justice is realized.” He found the Supreme Court’s performance in Power “disappointing” because the secrecy encouraged in that case undermined the goal of making “the exercise of prosecutorial discretion more transparent and accountable and [ensuring] that the promise of fundamental justice is realized.”
As mentioned, most Ministries of the Attorney General now make public many of their guidelines. Nevertheless, it must be recognized that the formulation and publication of prosecution charging policies is a mixed blessing. On the one hand, making the policies more transparent can help avoid abuses caused by idiosyncratic decision-making where discretion is exercised on the basis of stereotypes and prejudice. Decisions made on the basis of clear and fair guidelines promote equality within the criminal justice system. On the other hand, some of the desirable flexibility has left the system, leaving prosecutors uncertain about the degree to which they can exercise discretion in accordance with compassion and the particular needs of the particular case. Highly publicized zero-tolerance policies can have unforeseen and potentially disastrous consequences, not only for individuals, but also for the public interest as complainants flee the criminal justice system for fear that it will overreact to their complaints.
In Power, L'Heureux-Dubé J. advanced another reason for secrecy. She suggested that the goal of increasing general deterrence could be met “only by preventing the public from knowing which crimes will be given emphasis in enforcement.” There are two concerns with this reasoning. First, it prevents the public from being able to monitor the enforcement of criminal and quasi-criminal law. The selective or complete dispensation with enforcement of the law should be a matter of public concern. Secrecy also promotes inequality and undermines the Charter promises of equal protection and equal benefit of the law. It has been noted that unfettered discretion and deliberate concealment of the inconsistent application of the law promotes arbitrary behaviour that is both unfair and unequal. Because of this secrecy, “the less knowledgeable or more naïve may adhere to the black letter law with the result that they are penalized compared with those who follow the de facto norm [of how the law is actually administered].” In the result, law-abiding prosecutors are penalized because of the potentially greater costs of compliance with the black letter law. A more serious problem has been noted where there is no discernable pattern to the application of the law. In that case, “there is a virtual certainty that equal protection will not, indeed cannot, be afforded to those subject to the law.” While governments by habit or instinct favour greater secrecy and less openness, they have little to fear from greater public access if those decisions and guidelines can be justified. If they cannot, then those decisions and guidelines need to be reconsidered.
E. Reasons for Decisions
Along with more openness through the publication of guidelines, Attorneys General should be encouraged to provide reasons for important decisions in individual cases. Without reasons, decisions are virtually immune from judicial review. I expect that there will be a consensus favouring greater disclosure of reasons for the exercise of discretion. This increased disclosure will occur not only because courts may demand it as a matter of fundamental justice, but because the Attorneys General will recognize that providing reasons is in the public interest. The forum for presenting those reasons will usually be the courtroom. We have already seen this development in high-profile cases where Crown counsel will invariably make a statement in open court explaining why a prosecution is being discontinued. For example, in 1986, Crown counsel provided an extensive explanation to the Court for the Attorney General’s decision to stay abortion charges that had been laid against Dr. Morgentaler and others. When a citizen attempted to review that decision in the courts, Craig J. referred to those reasons in dismissing the claim:
Here there can be no suggestion that the Attorney-General is failing to uphold the law or that he is acting out of improper motives or for an improper purpose. As indicated earlier, he had given long and anxious consideration to the circumstances. The reasons for directing the stay were quoted earlier herein; there was uncertainty in the law and any charge against the doctors would not be tried until after the decision of the Supreme Court of Canada.
This is a far more satisfactory state of affairs than what
occurred in R. v. Taylor, where
Crown counsel, when asked by the judge for the reasons for preferring
a direct indictment, replied that he did not know and therefore
could not communicate the reasons. In the face of an allegation
by defence counsel that the Attorney General had preferred the
indictment for improper motives, the judge simply said “there
is no evidence before me as to the reason or reasons for the
Honourable Allan Williams’ decision to sign and to be
presented these four indictments. Therefore, it would be sheer
speculation on my part to hold that the Attorney General has
acted with impropriety.” In
providing reasons, the Attorney General in the Morgentaler prosecution
did credit to the administration of justice. However, the kind
of position taken by Crown counsel in
The trend toward giving reasons is consistent with a broader movement in the courts requiring decision makers to provide reasons in both administrative and criminal contexts. As L’Heureux-Dubé J. said in aker v. Canada (Minister of Citizenship and Immigration), while the traditional common law position has been that reasons need not be provided for administrative decisions, they do ensure fair and transparent decision-making. Providing reasons reduces “to a considerable degree the chances of arbitrary or capricious decisions” and “reinforces public confidence in the judgment” and in the fairness of the process. And of course, as L'Heureux-Dubé J. pointed out, reasons are “invaluable if a decision is to be . . . considered on judicial review.” The characterization of their role, to which the Attorneys General and their agents are so attached — that of ministers of justice performing quasi-judicial functions — is incompatible with the Crown’s refusal to provide reasons for pivotal decisions.
To conclude, it seems to me that in what Ian Scott described as an increasingly pluralistic and “rights-oriented” society, citizens are demanding greater transparency and accountability not only for its own sake but as a prelude to challenging the decisions that affect them. In the 21st century, that challenge is not always made in the courts, but also through the media, which has been made increasingly accessible by developments such as the Internet.
F. The Costs of Greater Judicial Scrutiny
Despite the advantages of greater openness and accountability, the courts and other actors within the system should be aware of the costs. Even decisions made in the core area of the Attorney General’s discretion — decisions whether or not to proceed with a prosecution — are reviewable only on the basis of flagrant impropriety. Only by looking behind the decision can the reviewing body determine whether the decision falls inside the protected area. As the Supreme Court put it in Krieger, “an official action which is undertaken in bad faith or for improper motives is not within the scope of the powers of the Attorney General.” In that same case, the Court referred to the concurring reasons of McIntyre J. in Nelles, which held that “public officers are entitled to no special immunities or privileges when they act beyond the powers which are accorded to them by law in their official capacities.”
In Power, L’Heureux-Dubé J. foresaw the practical problems associated with judicial review of discretionary decisions, pointing out that reluctance to interfere is not based solely on the doctrine of separation of powers. It is also grounded in concerns with the efficiency of the criminal justice system and “the fact that prosecutorial discretion is especially ill-suited to judicial review.” Some criminal trials have been occupied by motions directed not to the admissibility of evidence or other trial fairness matters, but to the conduct of the prosecutors in the discharge of their duties. Some of these motions are the inevitable consequence of greater supervision dictated by the Charter over matters such as disclosure. Others are concerned almost exclusively with the charging function. Attempting to ferret out the basis for a prosecutorial decision is a time-consuming business and a diversion from the determination of guilt or innocence.
The costs of this greater oversight are found not just in the efficiency of the court process but also in the nature of the dialogue in the courtroom. Because the standard of review of prosecutorial decisions is flagrant impropriety, the rhetoric has become increasingly excessive and unrestrained. In some cases, this has poisoned the trial atmosphere and put terrible demands upon the judiciary as it attempts to mediate these claims.
Finally, in Power, L’Heureux-Dubé J.
drew attention to the inherent problem that arises when prosecutorial
and judicial roles become blurred. She wrote that a court “cannot
both supervise the exercise of prosecutorial discretion and
act as an impartial arbitrator of the case presented to it.” This is not just a theoretical concern.
The doctrine of Attorney General independence serves important
institutional goals. We know that some elements of the public
are uncomfortable with judicial review of legislative action
through the Charter. However, in the disposition of
individual cases, courts still enjoy a high degree of confidence,
despite the very serious errors illustrated by R. v. Marshall, R. v. Morin, R.
v. Sophonow and Reference
Re Milgaard (
The courts cannot afford to ignore the problems posed by straying too easily from an adjudicative to an investigative role, and the toll this can exact on their legitimacy and appearance of impartiality. I think James Ramsay, an experienced Crown Attorney, somewhat overstates the case when he writes: “If the court is to review the prosecutor’s exercise of his discretion the court becomes a supervising prosecutor. It ceases to be an independent tribunal.” However, this perception, which may be held by many involved in the administration of criminal justice, should be taken into account. Mr. Ramsay also overstates the case against judicial supervision by asserting that the Ministry “exercises careful supervision of prosecutions for which it is responsible.” If the Ministry does so, it is only on the basis of the information supplied by the players within its own system. It is in the nature of any institution to discount the views of outsiders and especially those opposed to it. The one thing courts do bring to the table is the ability to adjudicate with an open mind based on the information supplied by all interested parties, not just those aligned with the prosecution. Used appropriately and with restraint, judicial scrutiny of prosecutorial discretion can improve confidence in the administration of criminal justice and the role of the Attorney General.
G. Some Special Problems
In an address he gave to the Criminal Lawyers Association in 1986, Ian Scott said, “[t]he right of an accused to a fair trial is the cornerstone of our system. Anglo-Canadian society is founded upon the principle that a person charged with a crime must be accorded all of the protections and immunities of the common law and the Charter of Rights.”
In the 1960s, Professor Martin Friedland conducted a study
of the bail system in
In their role as guardians of the public interest, it may sometimes fall upon the Attorneys General to champion causes that do not enjoy widespread popular support. Sometimes the Attorney General is called upon to protect the interests of the disadvantaged and the vulnerable because they are unable to fully realize their own rights, including their constitutional rights. Few groups are as powerless, vulnerable and disadvantaged as prison inmates. But consider the status of inmates who are simply awaiting trial: there is no other group of inmates for whom there is such a dissonance between their actual conditions within prison and their constitutional rights.
The Ombudsman and the courts have repeatedly drawn attention
to the state of our holding jails. Prisoners
awaiting trial — people who enjoy the presumption of innocence
and the right to fundamental justice — are often
housed in overcrowded, medieval conditions with little access
to exercise or programming. They
are treated not as if they are presumed innocent, but as if
they have already been convicted. They are subjected to treatment
that some would argue is inhumane and degrading. This is inconsistent
with their Charter rights and with
To escape the conditions of the local holding jails, prisoners are offered the choice of a transfer to one of the newer jails — but of course, this removes them from their family and from convenient access to counsel to prepare for their trial. In exchange for better treatment, prisoners are hampered in their ability to defend themselves — a right guaranteed by section 11 of the Charter. In one recent case, Crown counsel argued that accused ought to be denied so-called “enhanced credit” for pre-trial custody due to the conditions at the Don Jail, because the accused were the authors of their own misfortune for refusing to take advantage of the chance to be transferred to an out-of-town holding facility. Justice Watt said this of Crown counsel’s submission:
[This submission] would extract a price from the exercise of a principle of fundamental justice, the right to make full answer and defence, if carried very far. It is simply unhelpful to suggest that an accused has a choice: give up trial preparation and consultation with counsel, however difficult that may be in today’s correctional world, or forget about enhanced credit based on facility inadequacy. Scarcely a fair, or necessary exchange.
So how does this relate to the role of the Attorney General? When he was Attorney General, Ian Scott spoke of the special obligation arising from the fact that “the Attorney General is by statute and tradition the guardian of the public interest in constitutional and legal matters.” He saw the Attorney General as “defender of the Constitution,” who not only must enforce the law, but also uphold the constitution.
The conditions in which accused persons are held, coupled with
increasing concerns over trial delays, threaten the constitutional
rights of this vulnerable group. These threats to the rights
of accused to make full answer and defence, and to be treated
with humanity and fairness, jeopardize the system of administration
of criminal justice in
It should not be forgotten that over twenty years ago, it was the Attorney General of Ontario, Roy McMurtry, who was one of the key proponents of embedding a charter of fundamental rights and freedoms into our constitution — a Charter that includes guarantees to reasonable bail and the presumption of innocence. That was hardly a popular position among many segments of the population. But it was the right position to take, and it was the position that accords with the Attorney General’s broad responsibilities for the administration of justice and the public interest.
In 1986, Attorney General Scott, in his address to the Canadian Bar Association, raised for debate the possibility that an Attorney General might have to use legal proceedings against a cabinet colleague to stop activity that would contravene the Charter. He referred to Professor Edwards’ view that an Attorney General “would be in serious dereliction of his larger constitutional duty to ensure that the wider public interest is adequately represented” if he did not “in his own person if that is necessary, . . . argue the case on behalf of the public interest” against government action that contravened the Charter. There are many steps short of a direct confrontation with a cabinet colleague that the Attorney General can take to deal with this problem, but I am concerned that this is a matter of which, in the public interest, the Attorney General needs to take ownership.
I would conclude this part of my paper with this note. The pre-trial custody of accused persons is a difficult and complex issue that should concern everyone involved with the administration of justice. It is not just the Attorney General who ought to pay attention to this issue. Thus, in her 1995 report on Certain Events at the Prison for Women, Justice Arbour called attention to the importance of judges to be more conscious of the need to “maintain some ownership of the integrity of their sentence after it is imposed.” To that end, she drew attention to the fact that federal legislation gives federally appointed judges the right to enter any penitentiary. So far as I am aware, provincial legislation does not give the same rights to judges, although the legislation does give that right to all members of the Legislative Assembly. But I doubt very much that any judge wishing to visit our holding jails and to inquire into the conditions under which we keep our prisoners awaiting trial would be turned away.
As the Supreme Court said in Krieger:
The court’s acknowledgment of the Attorney General’s independence from judicial review in the sphere of prosecutorial discretion has its strongest source in the fundamental principle of the rule of law under our Constitution. Subject to the abuse of process doctrine, supervising one litigant’s decision-making process — rather than the conduct of litigants before the court — is beyond the legitimate reach of the court.
The independence enjoyed by the Attorney General in decision-making, by convention and by law, is not an end in itself, but is part of a system for ensuring that criminal justice is enforced fairly and impartially, in accordance with the rule of law and with due regard to the rights of all those involved in the system, including the accused.
In this paper, I have described the checks and balances that protect the system of criminal justice from improper political influence and that encourage fair and impartial decision-making. I see this system of safeguards around the office of the Attorney General as evolving toward greater openness, transparency and accountability to the public and in the courts. However, I have also raised some concerns that the Attorney General will face in the 21st century. These concerns will grow out of greater scrutiny by the public and courts of prosecutorial decision-making, and increasing demands that Crown counsel maintain the highest standards of fairness in the conduct of prosecutions. The courts, the law societies and the media are increasingly claiming a right to supervise prosecutorial conduct. But in the end, the duty lies with the Attorney General to maintain a system that is faithful to the best and the highest traditions of that office.
article derives from a paper presented at The Attorney General in the 21st
Century: A Symposium in Honour of Ian Scott, Queen’s University Faculty
** Justice, Court of Appeal for
.  1 S.C.R. 441 [Operation Dismantle].
. Ibid. at 455.
. J. Ll. J. Edwards, “The Charter, Government and the Machinery of Justice” (1987) 36 U.N.B.L.J. 41 at 56-57 [Edwards, “The Charter”].
. Ibid. at 193.
. Ibid. at 193-94.
. Ibid. at 194.
. Nova Scotia, Royal Commission on the Donald Marshall, Jr., Prosecution, Walking the Tightrope of Justice: An Examination of the Office of the Attorney General in Canada with Particular Regard to its Relationships with the Police and Prosecutors and the Arguments for Establishing a Statutorily Independent Director of Public Prosecutions: A Series of Opinion Papers, vol. 5 by J. Ll. J. Edwards (Halifax: Queen’s Printer, 1989) [Marshall Inquiry, vol. 5].
. Ibid. at 86.
. Ibid. at 133.
. Kent Roach, “The Attorney General and the Charter Revisited” (2000) 50 U.T.L.J. 1 at 29-30 referring to R. v. Power,  1 S.C.R. 601, 89 C.C.C. (3d) 1 [Power cited to C.C.C.].
. Part I
of the Constitution Act, 1982, being Schedule B to the
. J. Ll. J. Edwards, The Law Officers of the Crown (London: Sweet & Maxwell, 1964) [Edwards, Law Officers of the Crown].
. J. Ll. J. Edwards, The Attorney General, Politics and the Public Interest (London: Sweet & Maxwell, 1984) [Edwards, Politics].
C. Stenning, Appearing for the Crown: A Legal and Historical Review of
Criminal Prosecutorial Authority in
. Edwards, “The Charter”, supra note 3.
Reform Commission of
. See e.g. Roy McMurtry, “The Office of the Attorney General” in D. Mendes da Costa, ed., The Cambridge Lectures (Toronto: Butterworths, 1981); Ian G. Scott, “The Role of the Attorney General and the Charter of Rights” (1987) 29 Crim. L. Q. 187 [Scott, “Role”]; Hon. Ian Scott, “Law, Policy, and the Role of the Attorney General: Constancy and Change in the 1980s” (1989) 39 U.T.L.J. 109 [Scott, “Law”].
. See e.g. Sankey v. Whitlam,  H.C.A. 43, an Australian prosecution involving the resignation of Attorney General Robert Ellicott in 1975; Edwards, Politics, supra note 14 at 379-88. See also the resignation of British Columbia Attorney General Brian Smith from the Vander Zalm government in 1988. However, in fairness, the reasons for Smith’s resignation continue to be somewhat obscure and there exists a body of opinion that his resignation was driven as much by politics as by concern for the Premier’s interference in the Attorney General’s office: see Gary Mason, Keith Baldrey & Kim Bolan, “Vander Zalm charges back: ‘No basis’ for Smith’s action, Premier says” The Vancouver Sun (29 June 1988) A1.
. Edwards, Politics, ibid. at 379.
. I will explain my reasons for this view when I discuss some of the institutional safeguards: see Part I.B, below.
. See e.g. the statement by Attorney General McMurtry to the Legislature of Ontario in 1978 concerning the Francis Fox affair: Ontario, Legislative Assembly, Official Report of Debates (Hansard), No. 3 (23 February 1978) at 50-52. I have set out parts of that statement below in Part I.A.(ii) when dealing with the relationship between the Attorney General and Parliament.
. The Shawcross statement is reproduced in Edwards, Law Officers of the Crown, supra note 13.
. This statement was made by Attorney General Basford to the House of Commons concerning the Tom Cossitt/Toronto Sun affair: see Edwards, Politics, supra note 14 at 360. In that statement, Minister Basford stated:
The first principle, in my view, is that there must be excluded any consideration based upon narrow, partisan views, or based upon the political consequences to me or to others.
In arriving at a decision on such a sensitive issue as this, the Attorney General is entitled to seek information and advice from others but in no way is he directed by his colleagues in the government or by parliament itself.
House of Commons Debates, No. 121 (17 March 1978) at 3881 (Hon. Ron Basford). This point — that in making prosecution decisions, any consideration based upon narrow, partisan views or the political consequences to the Attorney General or the ruling party must be excluded — needs some elaboration. As Edwards has explained, partisan political considerations are those “designed to protect or advance the retention of constitutional power by the incumbent government and its political supporters.” J. Ll. J. Edwards, Ministerial Responsibility for National Security as it Relates to the Offices of Prime Minister, Attorney General and Solicitor General of Canada (Ottawa: Minister of Supply and Services Canada, 1980) at 70 [Edwards, Ministerial Responsibility]. The Attorney General can take into account non-partisan political considerations such as “maintenance of harmonious international relations between states, the reduction of strife between ethnic groups, the maintenance of industrial peace and generally the interests of the public at large . . . .” Ibid. The Attorney General may, of course, incur criticism where the non-partisan political considerations happen, by good fortune, to coincide with the partisan interests of the government. This may also occur with respect to labour relations. For example, following a bitter industrial dispute, it may be very much in a labour-oriented government’s interest to have any charges laid during the dispute stayed by the Crown in order to retain the support of the unions in a future election. The Attorney General, for quite different reasons, may conclude that the charges should be stayed in the interests of maintenance of industrial peace. In such situations, the class of considerations that may be considered “improper” will be broadened if the premier or the minister of labour suggests during the negotiations that the charges will be dropped, therefore leading to the end of the strike, or where the government unwisely purports to include promises to drop the charges as part of the dispute settlement.
. Edwards, Ministerial Responsibility, ibid. at 66-67.
. Colin Munro, “Laws and Conventions Distinguished” (1975) 91 Law Q. Rev. 218 at 228, cited in Manitoba (A.G.) v. Canada (A.G.),  1 S.C.R. 753 (sub nom. Reference Re Resolution to Amend the Constitution) at 783 [Patriation Reference].
. Patriation Reference, ibid.
. Reference Re Secession of Quebec,  2 S.C.R. 217 at para. 54 [Secession Reference].
. 2002 SCC 65,  3 S.C.R. 372 at para. 3 [Krieger].
. Ibid. at para. 32.
. Edwards, “The Charter”, supra note 3 at 47. This issue will be explored in greater detail below.
. Krieger, supra note 29 at para. 48, citing R. v. Regan, 2002 SCC 12,  1 S.C.R. 297 at para. 168 [Regan].
A. MacFarlane, “Sunlight and Disinfectants: Prosecutorial Accountability
3 C.C.C. (2d) 97 at 107 (Ont.
. Re Hoem
and Law Society of
. Edwards, Law Officers of the Crown, supra note 13 at 224.
. Smythe (
. R. v. Smythe,  S.C.R. 680 at 686 [Smythe (S.C.C.)].
. Edwards, Marshall Inquiry, vol. 5, supra note 8 at 149-51.
. Supra note 22.
. Ibid. at 51.
. Ibid. at 52.
. See especially Michael Code, “Crown Counsel’s Responsibilities When Advising the Police at the Pre-Charge Stage” (1998) 40 Crim. L.Q. 326 at 328-38.
arrangement is not universally respected. In some provinces, such as
. See Marshall Inquiry, vol. 1, supra note 4 at 193-221.
. Cf. Campbell
. Regan, supra note 32.
. Douglas C. Hunt, “The Relationship between the Crown and the Police” (Paper presented to the Society for the Reform of the Criminal Law, 19 March 1989) [unpublished].
. Ontario, Commission on Proceedings Involving Guy Paul Morin, Report, vol. 2 by Hon. Fred Kaufman (Toronto: Ministry of the Attorney General, 1998) [Report of the Morin Inquiry].
. Regan, supra note 32 at para. 69.
. Ibid., citing the Report of the Morin Inquiry, supra note 50 at 911.
. Ibid. at para. 137.
. Ibid. at para. 89.
.  2 S.C.R. 345 [Morin].
.  2 S.C.R. 170, 60 D.L.R. (4th) 609 [Nelles cited to D.L.R.].
. A stay will be the appropriate remedy only in those rare cases where two criteria are met:
1. The prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; and
2. No other remedy is reasonably capable of removing that prejudice.
See Regan, supra note32 at para. 215, citing
. Secession Reference, supra note 28.
. Edwards, Marshall Inquiry, vol. 5, supra note 8 at 123.
. Supra note 43.
.  1 S.C.R. 238.
. Code, supra note 43 at 350.
. Ibid. at 351.
. Ibid. at 352.
. Ibid. at 355, citing Stenning, supra note 15 at 310.
. Frank Armstrong & Kenneth L. Chasse, “The Right to an Independent Prosecutor” (1975) 28 C.R. (N.S.) 160 at 180-82.
. This argument has been discredited by scholars and especially in an address given by Lloyd Graburn J., who had been a Crown counsel for many years before his appointment to the County Court: see Lloyd Graburn, “The Relationship of the Crown Attorney to the Attorney General” (1976) 35 C.R. (N.S.) 259.
. The rule that a case cannot be spoken about while it is before the court or judge for determination. See Black’s Law Dictionary, 7th ed., s.v. “sub judice”.
.  1 S.C.R. 985.
. Ibid. at para. 23.
. Ibid. at para. 25.
. Code, supra note 43 at 352.
. Ibid. at 352-53.
. Ibid. at 352.
. Krieger, supra note 29.
. Ibid. at para. 47.
. Ibid. at para. 51, citing Krieger v. Law Society of Alberta (1997), 205 A.R. 243 (Q.B.) at para. 55, MacKenzie J.
. Smythe (
. Supra note 1.
. Roach, supra note 11 at 15.
. Krieger, supra note 29 at para. 3.
. See ibid.
. Ibid. at para. 47.
.  3 S.C.R. 326 [Stinchcombe].
supra note 29 at para. 59, citing Michel Proulx & David Layton, Ethics
and Canadian Criminal Law (
. The most recent example of an appellate court’s examination of judicial review of Crown conduct in the notion of disclosure can be found in R. v. Leduc (2003), 176 C.C.C. (3d) 321 (Ont. C.A.) at para. 99 [Leduc], where the court reaffirmed that:
[T]he Crown’s breach of its obligation to disclose does not automatically entitle an accused to a stay of proceedings under s. 24(1) of the Charter. A stay is a drastic remedy, a remedy of last resort, to be granted only in the “clearest of cases”. It should be granted only in the rare cases where compelling an accused to stand trial would violate those fundamental principles of justice that underlie the community’s sense of fair play and decency. Or, in the words of L’Heureux-Dubé J. in R. v. O’Connor,  4 S.C.R. 411 at 468 . . . : a stay should be granted only “where the prejudice to the accused’s right to make full answer and defence cannot be remedied or where irreparable prejudice would be caused to the integrity of the judicial system if the prosecution were continued.”
. Power, supra note 11.
. Ibid. at 17, 18-19, citing Director of Public Prosecutions v. Humphrys,  2 All E.R. 497 (H.L.) at 511.
. Power, ibid. at 18.
. Krieger, supra note 29 at para. 47.
. Ibid. at para. 48, citing Regan, supra note 32 at para. 168.
. Examples include decisions about disclosure, as in Krieger, supra note 29 and Stinchcombe, supra note 85, as well as more mundane decisions about the conduct of the case once it reaches the court. Courts have generally been reluctant to interfere with discretionary decisions, such as those on the manner of election in hybrid offences and on consent to re-election. It remains to be seen whether these decisions are now open to review on the relaxed standard of fairness and objectivity rather than flagrant impropriety. Moreover, any decision by a Crown prosecutor made in the exercise of a legal duty, such as the duty to disclose all relevant information to the defence, is reviewable by the courts on a correctness standard.
. Supra note 56.
. Ibid. at 641.
. Ibid. at 628-29. For her part, L’Heureux-Dubé J. fully subscribed to those policy considerations in her dissenting opinion taking the view that:
Attorneys-General and Crown Attorneys are often faced with difficult decisions as to whether to proceed in matters which come before them. It is unfortunate that, like all human beings, they cannot be immune from error. However, the holders of such offices can and should be immune from prosecution for any such errors which occur in the course of the exercise of their functions. The freedom of action of Attorneys-General and Crown Attorneys is vital to the effective functioning of our criminal justice system. In my view, the greater public interest is best served by giving absolute immunity to these agents.
Ibid. at 648.
. Ibid. at 640.
. See Roach, supra note 11 at 12-14.
. Proulx v. Quebec (A.G.), 2001 SCC 66,  3 S.C.R. 9 at para. 4.
. Supra note 4 at 224.
. William C. Gourlie, “Role of the Prosecutor: Fair Minister of Justice with Firm Convictions” (1982) 16 U.B.C. L. Rev. 295 at 298-99.
. See e.g. R.
v. Henderson (1999), 44 O.R. (3d) 628 (
. Gordon F. Gregory, “The Attorney-General in Government” (1987) 36 U.N.B.L.J. 59 at 63.
. Supra note 26.
. Re Anti-Inflation Act,  2 S.C.R. 373.
. Reference Re Bill 30, an Act to Amend the Education Act (Ont.),  1 S.C.R. 1148.
. Brian Smith, “The Role of the Attorney General — or Walking the Tightrope” (1988) 46 The Advocate 255 at 260.
. Ibid. at 259.
. Edwards, “The Charter”, supra note 3 at 47.
MacGregor Dawson, The Principle of Official Independence, with
Particular Reference to the Political History of
. Roach, supra note 11.
. Ibid. at 30.
. Power, supra note 11 at 17.
. See R. v. Catagas (1977), 38 C.C.C. (2d) 296 (Man. C.A.), where Freedman C.J.M. thought complete dispensation with the application of the law in favour of a particular group was unconstitutional.
. Peter Finkle & Duncan Cameron, “Equal Protection in Enforcement: Towards More Structured Discretion” (1989) 12 Dal. L.J. 34 at 37.
. Ibid. at 301.
. (1983),  8 C.R.R. 29 (B.C.S.C.).
. See Roach, supra note 11 at 122.
.  2 S.C.R. 817 at para. 37-38.
. Ibid. at para. 38.
. Ibid. at para. 39.
. Scott, “Law”, supra note 18.
. Krieger, supra note 29 at para. 51.
. Ibid., citing Nelles, supra note 56 at 211.
. Power, supra note 11 at 15.
. See e.g. Leduc, supra note 87.
. Power, supra note 11 at 18.
.  3 S.C.R. 456.
. Supra note 55.
.  2 S.C.R. 524.
.  1 S.C.R. 875.
. J.A. Ramsay, “Prosecutorial Discretion: A Reply to David Vanek” (1988) 30 Crim. L.Q. 378 at 380 referred to in Power, supra note 11.
. Ian Scott, “Text of Remarks to the Association’s Annual Spring Meeting” (1986) 7:6 Criminal Lawyer’s Association 24 at 24-25 [Scott, “Remarks”].
L. Friedland, Detention Before Trial: A Study of Cases Tried in the
. Ibid. at 110. See also the discussion of this issue in G.T. Trotter, The Law of Bail in Canada, 2d ed. (Toronto: Carswell, 1999).
. R.S.C. 1970 (2d Supp.), c. 2.
Ombudsman Ontario 2002-2003 Annual Report, Working to Ensure
head of security at the Don Jail has testified at a number of sentencing
proceedings in the
Covenant on Civil and Political Rights, 19 December 1966, 999 U.N.T.S.
171, arts. 9-14, Can. T.S. 1976 No. 47, 6 I.L.M. 368 (entered into force
23 March 1976, accession by
. Ibid., art. 10.
v. Jabbour,  O.J. No. 3820 (Sup.
. Scott, “Remarks”, supra note 140.
. Supra note 85.
. Scott, “Role”, supra note 18 at 197.
. Ibid. at 197-98.
of Inquiry into Certain Events at The Prison for Women in
. Ministry of Correctional Services Act, R.S.O. 1990, c. M.22, s. 59.
. Krieger, supra note 29 at para. 32.