2014 PPSC Survey of Investigative Agencies: Survey Results for Regulatory Agencies

Background

The Public Prosecution Service of Canada (PPSC) was created in December 2006, when the Director of Public Prosecutions Act came into force. It replaces the former Federal Prosecution Service, which was part of the Department of Justice Canada. The Director of Public Prosecutions is responsible for prosecuting offences under federal jurisdiction, and for providing prosecution-related legal advice to law enforcement agencies over the course of investigations that may lead to such prosecutions. As such, the PPSC works with investigative agencies across the provinces and territories. These include the RCMP, provincial and municipal police services, and regulatory agencies – the enforcement arms of federal departments and agencies.

To be effective and efficient as a national prosecution service, the PPSC must work closely with police and federal regulatory agencies in both the provinces and territories while respecting the independence of these agencies and maintaining its own.

Working collaboratively with investigative agencies is one of the PPSC’s ongoing organizational priorities. As part of its plans to meet this priority, the PPSC made a commitment to follow up on its 2008 survey of investigative agenciesFootnote 1 by seeking updated feedback from its partners.

1.1 Purpose and Scope of the Survey

The purpose of the 2014 Survey of Investigative Agencies was to obtain input regarding the PPSC’s legal advice and other prosecution-related activities from the police services and regulatory agencies that initiate most of the cases that the PPSC prosecutes. Its objectives were three-fold:

The survey was national in scope. It was intended for investigators at all levels, and provided an opportunity for them to identify best practices or concerns based on their experiences. The survey questionnaire for regulatory agency members focused on PPSC legal advice and support, PPSC training activities and PPSC service commitments.

Survey respondents were asked to provide quantitative information on the nature and frequency of the various forms of legal advice and training that they had received over the year preceding the survey, as well as their awareness of PPSC service standards. They were also asked to rate the usefulness of that advice and training, and the extent to which the PPSC’s service standards were known and being met. Finally, survey respondents were invited to identify the strengths of PPSC prosecution-related activities and possible strategies for improvement, and to provide comments or questions on the service standards or their implementation.

The analysis of respondent ratings of PPSC prosecution-related activities is intended to identify any trends in the nature, frequency or results of those activities.Footnote 2 It is important to note that the purpose of the quantitative analysis was not to rate the performance of PPSC prosecutors as a group, or to compare the performance of prosecutors in various regional offices. In fact, this would not have been possible given the non-representative nature of the sample. Hence, the data must be considered as exploratory and should not be considered to be representative of the police services concerned.

Respondent comments on PPSC prosecution-related activities varied in length, from a single word or sentence to a few paragraphs. All comments were analyzed to identify the range of themes, best practices and concerns that were raised, as well as any factors that may affect the results of PPSC activities. The purpose of the qualitative analysis was not to account for the frequency of various comments, or to ascertain whether the respondents’ interpretation or portrayal of events is “accurate” or “true”. In any case, the data generated by the survey would not have allowed us to make that determination. Rather, the purpose of the analysis was to understand the array of factors that can contribute to more or less positive impacts and results. Thus, frequent comments do not necessarily have any more inherent value, in terms of generating knowledge or understanding, than infrequent or even unique ones.

As will be shown, respondent views on the impacts and results of PPSC prosecution-related activities can be influenced by a range of factors, including respondents’ beliefs regarding the seriousness of the offences being enforced and the legal responses that are called for, their understanding of the respective roles and responsibilities of investigators and prosecutors in the criminal justice process and, most importantly, the nature and frequency of their interactions with PPSC staff counsel and agents.

The key findings for the 2014 survey are presented in two separate reports: the present report for regulatory agencies, and another for police services.

2.0 Regulatory Agency Respondents

A link to the electronic survey questionnaire was distributed by e-mail to members of enforcement and investigation units within the Canada Border Services Agency (CBSA), the Canada Revenue Agency (CRA), the Competition Bureau (CB), Elections Canada (EL), Environment Canada (EC), Fisheries and Oceans Canada (FO), Employment and Skills Development Canada (EDSC) and the Office of the Superintendent of Bankruptcy (SB).

The survey sample is comprised of 498 respondents. The distribution of respondents and response rates by agency are outlined in Table 1.

Table 1 - Respondents and Response Rates by Agency
Regulatory Agency #/% of Survey RespondentsFootnote 3 #/% of Survey Recipients Response Rate
Total 498
(100%)
1163
(100%)
43%
CB 47
(9.4)
67
(5.8)
70%
CBSA 71
(14.3)
126
(10.8)
56%
CRA 26
(5.2)
38
(3.3)
68%
EC 129
(25.9)
293
(25.2)
44%
El 4
(0.8)
10
(0.9)
40%
EDSC 23
(4.6)
28
(2.4)
82%
FO 195
(39.2)
595
(51.2)
33%
SB 3
(0.6)
6
(0.5)
50%

Response rates exceeded 50% in all regulatory agencies except FO (33%), EL (40%) and EC (44%). A total of 65% of all regulatory agency respondents were affiliated with FO (39%) or EC (26%).

All quantitative findings on respondent characteristics and rankings are presented in Table 2, which is annexed to this report.

Close to half (45%) of all regulatory agency respondents had worked in their agency for more than 10 years, compared to 62% of CRA respondents, but only 27% of CBSA respondents and 29% of EC respondents. In addition, more than three quarters (77%) of all regulatory agency respondents were investigators.

3.0 Regulatory Prosecutions

Most (81%) regulatory agency respondents reported that they had worked on regulatory investigations or prosecutions involving the PPSC over the 12 months preceding the survey, compared to 96% of CB respondentsFootnote 4.

However, only 25% of all respondents had been involved in regulatory investigations or prosecutions on a bi-weekly or weekly basis, compared to 66% of CB. Most (73%) respondents had been involved in regulatory investigations or prosecutions no more than monthly over the 12 months preceding the survey, compared to 86% of FO respondents; however, only 33% of CB fell into this category.

3.1 Legal Advice and Support

3.1.1 Frequency of Advice and Support

Depending on the type of support received, between 35% and 68% of all regulatory agency respondents reported that they had sometimes or often received support from the PPSC over the 12 months preceding the survey.

3.1.2 Usefulness of Advice and Support

Depending on the type of support received, between 60% and 72% of all regulatory agency respondents reported that the support was useful or very useful.

3.2 Optimal Regulatory Prosecution-Related Activities

In addition to responding to closed-ended questions on the nature, frequency and results of PPSC prosecution-related activities, regulatory agency members were asked to identify the strengths of these activities and possible strategies for improvement. Their comments revealed a striking level of consistency in the attributes of prosecutorial practices that respondents viewed as optimal by their presence, and as problematic by their absence. Furthermore, the following attributes hold true across regulatory agencies and jurisdictions, and are similar to those that emerged from the PPSC’s 2008 survey of investigative agencies:

3.2.1 Timely and Consistent Legal Advice and Support

Regulatory agency respondents agreed that the provision of legal advice and support can contribute to more optimal investigative practices and the avoidance of legal errors that can compromise an investigation or prosecution. However, the impacts of these services varied based on the competencies of particular PPSC prosecutorsFootnote 5.

3.2.2 Timely and Consistent Communication on Operational Requirements

Although the comments of regulatory agency respondents clearly demonstrate the benefits of PPSC prosecutors’ legal advice and support, comments also show that such knowledge and advice are not sufficient. Ongoing and respectful communication are equally important, not only in terms of promoting optimal investigative practices, but also in terms of enhancing investigators’ and prosecutors’ understanding of their respective imperatives and challenges.

3.2.3 Timely Pre- and Post-charge Review Processes

Pre-charge screening or “charge approval” occurs in Quebec, New Brunswick and British Columbia. In these jurisdictions, charges can be laid only if they are approved by Crown counsel beforehand. Although pre-charge screening is not required in other jurisdictions, charges are subject to review after they have been laid. EC and FO respondents highlighted the importance of timely review processes, namely to maintain the deterrent effect of charges.

3.2.4 Consultation Prior to Staying/Withdrawing Charges or Concluding Plea Agreements

Pre-charge screening or “charge approval” occurs in Quebec, New Brunswick and British Columbia. In these jurisdictions, charges can be laid only if they are approved by Crown counsel beforehand. Although pre-charge screening is not required in other jurisdictions, charges are subject to review after they have been laid. PPSC counsel must consider two issues when deciding to prosecute or not to prosecute a charge: whether the evidence is sufficient to justify the initiation or continuation of proceedings, and if it is, whether a prosecution best serves the public interest. Further, the evidential standard must continue to be met during the entirety of the proceedings – from the receipt of the investigative report to the exhaustion of all appeals. Respondent comments show that the importance of providing notice to investigators when charges are withdrawn or stayed cannot be understated.

3.2.5 “Forceful” Prosecution Approach

In Canada, the prosecutor’s role is not to win convictions at any cost, but to put before the court all available, relevant, and admissible evidence necessary to enable the court to determine the guilt or innocence of the accused based on the merits of the case.Footnote 9 While some respondents felt that the prosecution approach taken in the cases that they had initiated was sufficiently forceful, others criticized a perceived reliance on plea agreements which, in turn, was perceived as resulting in lesser charges and more lenient sentences.

3.3 Reliance on Legal Agents

As of March 31, 2016, the PPSC had 970 employees, 488 of whom were lawyers. In addition to staff prosecutors, the PPSC retained the services of 186 private-sector law firms, or 409 individually appointed lawyers, as standing agents. The PPSC uses legal agents in areas where it does not have a regional office or where it is impracticable or otherwise not cost-effective to handle cases with staff counsel.

The survey questionnaire did not distinguish between the services provided by staff prosecutors and those provided by legal agents. Distinctions between the two groups were made by respondents themselves. While some regulatory agency respondents were complimentary of the prosecution-related activities performed by legal agents, others – mostly from the CBSA and FO – were more critical, depending on the agents with whom they had dealt.

4.0 Training Activities

4.1 Training Frequency and Topics

Only 26% of all regulatory agency respondents had participated in PPSC training activities over the 12 months preceding the survey, compared to 51% of CBSA and 44% of EC respondents; only 12% of FO and 14% of EDSC respondents fell into this category. None of the CB respondents reported that they had received training. Almost three quarters (71%) of training recipients had participated in only one training activity.

The most frequently reported training topics, in order of importance, were disclosure management (41%), the respective roles of investigators and prosecutors (36%), and the preparation of search warrants (30%)Footnote 10; only 4 training recipients reported that they had received training on wiretap authorizations / applications.

4.2 Trainer Knowledge and Training Results

Depending on the training topicFootnote 11, a total of 86% to 95% of training recipients reported that PPSC trainers were knowledgeable or very knowledgeable. Similarly, between 82% and 93% of training recipients reported that the training was useful or very useful in enhancing their understanding of the legal issues that can have an impact on their work.

Between 53% and 77% of training recipients ranked the degree to which the training had contributed to modifying their investigative practices as 3 or 4 on a four-point scale, with 1 being not at all, and 4 being very much soFootnote 12. Results for each of the training topic listed are as follows, in order of importance:

4.3 Optimal Training Approaches

In addition to responding to closed-ended questions on training, regulatory agency respondents were asked to identify the strengths of PPSC training activities as well as possible strategies for improvement. Their comments highlight the concrete benefits of the PPSC training activities in which they had participated, both at an individual and an organizational level , as well as the training modalities that can maximize these benefits.

5.0 PPSC Service Standards

In June 2012, the PPSC implemented service standards that establish what police and federal investigative agencies may expect from PPSC prosecutors regarding matters such as the PPSC’s normal business hours, timelines for responding to phone calls or e-mails, requests for legal opinions, document reviews or training, and when they can expect to be consulted by the PPSC.

Respondent comments or questions on the service standards suggest that the PPSC’s ability to meet the standards may vary and be contingent, at least in part, on operational pressures faced by both the PPSC.

6.1 Moving Forward

A central goal of the 2014 survey of investigative agencies was to identify strategies to promote more effective working relationships between the PPSC and investigative agencies. The analysis of the survey results points to four primary strategies for solidifying the relationship:

  1. More liaison and training at front-line/management levels
  2. More consultation prior to staying/withdrawing charges or concluding plea agreements
  3. Enhanced support in disclosure preparation
  4. Clarification and/or review of some PPSC service standards

All of these strategies involve more communication. As repeatedly illustrated by respondent comments, the benefits of communication for both IAs and PPSC include more optimal investigative and prosecutorial practices, “higher quality products”, “fewer challenges at trial”, “savings in time and valuable resources” and, ultimately, more collaborative working relationships.

A working group composed of Chief Federal Prosecutors and Headquarters staff has developed a Management Response and Action Plan (MRAP) which sets out PPSC policy and service commitments and concrete actions that both prosecutors and investigators can take to foster more collaborative working relationships. The plan has been endorsed by senior management and will be implemented over the course of FY 2016-17.

Table 2 – Summary of Quantitative Data for Regulatory Agencies
Regulatory Agency Respondents All CB CBSA CRA EC El EDSC FO SB
% / # by regulatory agency (RA) 100%
(498)
9.4%
(47)
14.3%
(71)
5.2%
(26)
25.9%
(129)
0.8%
(4)
4.6%
(23)
39.2%
(195)
0.6%
(3)
% with more than ten years at RA 45% 41% 27% 62% 29% 0% 39% 62% 0%
% commenting as investigator 77% 76% 88% 60% 72% 100% 54% 63% 75%
% commenting as manager of investigators 28%Footnote 14 18% 9% 40% 22% 0% 19% 29% 25%
Regulatory Investigations or Prosecutions
% involved in regulatory invest/prosec. in last twelve months 81% 96% 87% 81% 79% 100% 74% 75% 100%
% involved in regulatory invest/prosec. weekly/bi-weekly 25% 66% 27% 33% 22% 33% 6% 14% 67%
% involved in regulatory invest/prosec. monthly or less 73% 33% 72% 67% 78% 66% 94% 86% 33%
% who had sometimes or often received legal advice or support over past twelve months
Pre/post chargeadvice 68% 63% 63% 81% 72% 75% 64% 68% 33%
Cooperation in preparation of disclosure materials 59% 56% 53% 77% 65% 50% 65% 55% 67%
Guidance in preparation of search warrants 40% 39% 40% 40% 60% 25% 24% 32% 0%
Preparation of witnesses for court 35% 27% 33% 45% 36% 50% 41% 35% 67%
% who rated support as usefulor very useful
Pre/post charge advice 72% 51% 71% 94% 80% 100% 53% 71% 100%
Cooperation in preparation of disclosure materials 68% 50% 70% 78% 72% 100% 80% 66% 50%
Guidance in preparation of search warrants 68% 50% 69% 72% 76% 0% 40% 67% 50%
Preparation of witnesses for court 60% 36% 60% 76% 67% 100% 88% 56% 100%
Training Activities
% who received training 26% 0% 51% 24% 44% 25% 14% 12% 33%
Service Standards
% informed of service standards 20% 9% 14% 12% 21% 0% 5% 28% 0%
% reporting that service standard was often or sometimes met
Responding to e-mails within three business days 76% 87% 87% 88% 76% 67% 66% 69% 67%
Responding to calls within one business day 70% 75% 82% 88% 68% 33% 67% 62% 67%
Contacting agency before stay/withdrawal/plea 57% 38% 54% 56% 58% 33% 62% 62% 66%
Reviewing documents within fifteen business days 54% 43% 53% 60% 61% 33% 57% 52% 0%
Informing agency if more time needed to review documents 49% 38% 40% 60% 54% 33% 62% 49% 33%
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