Updates

UPDATE OCTOBER 2005

To: Distribution

From: Robert Frater

Senior General Counsel, FPS

Re: Changes to FPS Deskbook, October 2005

The following changes have been made to the FPS Deskbook to reflect developments up to October 31,2005. The effective operational date for the changes is March 1,2006.

1) Major Changes

a) Chapter 56—Regulatory Prosecutions

A new chapter has been added on “Regulatory Prosecutions”. The chapter further articulates the “decision to prosecute” test in the regulatory context, and discusses the respective roles and responsibilities of FPS and Legal Services counsel in dealing with prosecution issues.

b) Chapter 57—Fine Recovery

The other new policy is called “Fine Recovery.” The policy describes the various practices we have adopted to attempt to ensure the fines imposed by courts are actually paid.

c) Chapter 24—Proceeds of Crime

This chapter has been extensively updated to ensure consistency with our present practice.

2) Minor Changes

A series of small changes have been made to numerous policies to implement the Report of the Working Group on the Prevention of Miscarriages of Justice, which was issued by the FPT Heads of Prosecution Committee in January 2005. The most significant changes are to Chapter 9, “The Duties and Responsibilities of Crown Counsel,” including a new section on “Prevention of Wrongful Convictions.” Other chapters affected by this report are: Chapter 11, “The Relationship with the Police”; Chapter 15, “The Decision to Prosecute”; Chapter 35, “Immunity Agreements”; and Chapter 51, “Professional Development”. A major concern in the Report and in the changes to these chapters in the Deskbook is the avoidance of “tunnel vision” by prosecutors.

Changes have also been made to Chapter 44, which has been renamed “Authorization to Travel and Work Abroad.” The changes primarily address the procedure for seeking authorization to take a work assignment abroad for a specified term.

The preface and the index have been updated to incorporate the foregoing changes.

UPDATE MARCH 2005

To: Distribution

From: Robert Frater

Senior General Counsel, FPS

Re: Changes to FPS Deskbook, March 2005

The following changes have been made to the FPS Deskbook effective March 31, 2005:

1) Major Changes

a) Legal Risk Management

The new Chapter 55 is our policy on Legal Risk Management. The policy is the FPS response to government-wide, and DOJ, initiatives in the area. The policy has 3 main objectives:

• Enhancing the accountability of the FPS to the Attorney General, Government and to the public;
• Providing guidance as to how to identify and manage risks; and
• Identifying the roles and responsibilities of the members of FPS in the overall LRM project.

As we are still in the early days of the initiative, we will have to work with the policy to see if any improvements are necessary.

b) Analytical Index

An analytical index has been prepared to increase the user-friendliness of the Deskbook. The index is not only a guide to subject matter covered in the Deskbook, but contains two guides to identify areas where specific consultation or approvals are required. Because the document is a new one, I would encourage you to contact me with suggestions for its improvement.

c) Chapter 11 Relations with the Police

This chapter has been expanded to describe in greater detail the areas in which we can provide assistance to the police and other investigative agencies. The changes are meant to complement the addition to the Deskbook last year of the policy on Megacase Management. That policy contemplates a greater level of cooperation between the police and prosecutors at the investigative stage than has been the case historically.

d) Citation of the Deskbook

A new appendix has been added to the Deskbook to record citation of the Deskbook by judges and others. I would ask that you advise me of any judgments in which the Deskbook is referred to.

e) Other new Appendices

The Memorandum of Understanding with the Canada Revenue Agency has been added, as has the F/P/T Heads of Prosecution Protocol on Interprovincial Issues. Part of that Protocol has been added as well to Chapter 21.

2) Minor Changes

Preface – This document has been updated.

Table of Contents – Please note that the last year in which any changes were made to individual chapters are now noted.

Chapter 2 – A reference to a recent decision has been added at footnote 22 and the accompanying text.

Chapter 8– References to recent cases have been added at footnotes 4 and 16, as well as some general clean-up of terminology.

Chapter 9 – References to recent cases on inflammatory jury addresses have been added.

Chapter 14 – Corrections to the title of the chapter have been made in both language versions, but particularly the French version where the former title of the chapter was still being used.

Chapter 16 – The appendices have been updated and minor errors corrected.

Chapter 20 – A new bullet has been added to s.20.3.3.2 concerning sentencing discussions where a fine may be the disposition.

Chapter 21 – The F/P/T Protocol on interprovincial transfer of charges is now an appendix to the chapter, along with some changes in the text to refer to the protocol.

UPDATE APRIL 2004

To: Distribution

From: Robert Frater

Senior General Counsel, FPS

Re: Deskbook Updates, April 2004

The purpose of this memo is to update you on the changes to the FPS Deskbook that came into effect on April 26, 2004, with their posting on the version of the Deskbook appearing on the DOJ website.

Hard copies of the changes should be distributed in the near future.

Major Changes

The most significant changes to the Deskbook are with respect to three chapters:

1) Spousal Violence (Chapter 28)

This replaces the former “Spousal Assault Prosecutions” policy. It is a much more detailed consideration of the subject, without departing from the principle that spousal violence must be treated as a crime.

2) Civil Liability of Crown Counsel (Chapter 49)

The changes to this policy, more commonly known as the “Indemnification” policy, involve a more careful articulation of the procedure to follow when Crown counsel may be subject to a malicious prosecution suit;

3) Alternative and Extrajudicial Measures (Chapter 14)

This replaces the Alternative Measures (Diversion) policy. The changes to this policy are largely directed at taking into account the provisions of the Youth Criminal Justice Act

Minor Changes

Numerous minor changes have been made to the following chapters:

1) Chapter 16 - Decisions Made by, and on behalf of, the Attorney General

This policy deals primarily with the necessary level of approval when the “consent of the Attorney General” is required by statute. The changes made are to the appendices, which state which official in the line of authority leading to the Attorney General/Minister of Justice is the responsible decision maker for certain types of decision.

Appendix A (Attorney General/Deputy Attorney General)

We have added s. 251(3) of the Criminal Code (consent in writing re institution of proceedings for offences concerning unseaworthy vessels and unsafe aircraft).

Appendix B (ADAG (Criminal Law))

We have added approval authority with respect to: s.754(1) of the Criminal Code (designation of long-term offenders); institution of proceedings under s.7(2.33) of the Code (offences occurring during a space flight), and 141(2)(a) (compounding a criminal offence). We have added a note under s. 810.01(1) to make it clear that Senior Regional Directors have concurrent authority to approve recognizances with respect to criminal organization offences (but not terrorist offences).

Appendix D

We have added responsibility for: s. 742.5(1.1) of the Code (transfer of conditional sentence orders); s. 117 of the Immigration and Refugee Protection Act (institution of proceedings involving aiding people to come into Canada without proper travel documents); s. 320(7) of the Code (obtaining warrants for seizure of hate propaganda); elections to proceed by indictment under the Income Tax Act and the Excise Tax Act.

There is some correction of section numbers and deletions of repealed provisions in this chapter.

2) Corruption of Foreign Officials

We have added a paragraph to note that when a decision is made not to lay charges under this Act, it may be advisable to keep a record of the reasons and a have noted that the FPS may be involved in collecting information relating to prosecutions under this act.

3) Decision to Prosecute

We have added a paragraph at the end of s.15.3.2. to clarify that a decision not to prosecute may be communicated publicly in appropriate circumstances, and after consultation.

4) Direct Indictments

In our statement of policy, s. 17.2, we have removed the modifying word “exceptional” in describing the circumstances in which direct indictments may be sought. This change serves to focus the decision on the satisfaction of the enumerated criteria, which have not been changed.

5) Victims of Crime

Some very minor housekeeping changes have been made to reflect the change from the Spousal Assault Prosecution policy to the Spousal Violence policy.

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