2.6 Consultation within the Public Prosecution Service of Canada

Public Prosecution Service of Canada Deskbook

Guideline of the Director Issued under Section 3(3)(c) of the Director of Public Prosecutions Act

March 1, 2014

Table of Contents

• 1. Introduction
• 2. Accountability for the Prosecution Function
• 3. The Purpose of Consultation between PPSC Regional Offices and Headquarters
• 4. The Role of the Headquarters Counsel Group
  • 4.1. Providing advice on prosecutions policy to the Director and Deputy Directors
• 5. Consultation with Headquarters
• 6. Consultation within and between Regional Offices

1. Introduction

This guideline describes the consultation process within the Public Prosecution Service of Canada (PPSC). More specifically, the guideline focuses on consultation between PPSC Regional Offices and Headquarters. Other guidelines describe the consultation process with other federal government departments that enforce federal statutes, with Department of Justice centres of expertise, and with investigative agencies.^{Footnote 1}

2. Accountability for the Prosecution Function

The independence of the Director of Public Prosecutions (DPP), and by extension Crown counsel, in exercising prosecutorial discretion free from partisan political influence is an important constitutional principle in Canada.^{Footnote 2} Crown counsel act independently of investigative agencies^{Footnote 3} and other government departments.^{Footnote 4} “Prosecutorial independence” is ultimately that of the DPP who is accountable to the courts and to the public for the federal prosecution function. Individual Crown counsel are, in turn, accountable to the DPP. Additionally, while the Director of Public Prosecutions Act^{Footnote 5} (DPP Act) creates the Office of the DPP (ODPP), the Attorney General of Canada remains the chief law officer of the Crown and is ultimately accountable to Parliament for the federal prosecution function. The DPP’s role is distinct from that of the Attorney General; it entails closer oversight and more frequent involvement in files.

In acting as public prosecutors, Crown counsel exercise a delegated function on behalf of the DPP.^{Footnote 6} The “independence” of the prosecutor is nothing more, but also nothing less, than the institutional independence of the Office of the DPP and ultimately of the Attorney General. Prosecutorial independence must be properly understood as flowing from the offices of the Attorney General and the DPP. For this reason, Crown counsel are accountable to the DPP and the DPP in turn to the Attorney General for their prosecutorial decision-making.^{Footnote 7}

Accountability in federal prosecutions is maintained through the hierarchical management structure within the PPSC. Crown counsel are directly accountable to their team leaders, Deputy Chief Federal Prosecutors (or General Counsel, Legal Operations) and Chief Federal Prosecutors (CFP), for the decisions which they make in prosecutions. The CFPs, in turn, are accountable to the Deputy DPPs who report to the DPP. The DPP is responsible for the manner in which the prosecution function is carried out on behalf of the Attorney General of Canada. The DPP performs the duties and functions set out in s. 3(3) of the DPP Act under and on behalf of the Attorney General.^{Footnote 8} Finally, the Attorney General is answerable to Parliament for the decisions made on his or her behalf.

3. The Purpose of Consultation between PPSC Regional Offices and Headquarters

In some instances, prosecutorial decision-making, including the determination of whether the prosecution threshold has been met,^{Footnote 9} whether or not charges should be stayed, or a particular position on sentence taken, requires consultation with those who can provide Crown counsel with additional relevant information and expertise.

For the purposes of this guideline, the term “consultation” is used to refer to (i) information briefings from a Regional Office to Headquarters regarding a particular matter, (ii) counsel in a Regional Office seeking advice or support from Headquarters counsel, (iii) Headquarters counsel consulting with Regional Offices regarding operational matters and matters of prosecution policy and (iv) informal consultation within regional offices.

Reciprocal consultation between PPSC Regional Offices and Headquarters counsel is essential for a number of reasons including the need to ensure:

• that the DPP, who is accountable for the prosecution function, is kept abreast of developments in PPSC prosecutions when appropriate (“briefing up”) and on cases that give rise to sustained, significant and/or anticipated media interest or public interest;
• that the Attorney General is briefed on cases of “general interest” requiring notice under s. 13 of the DPP Act;^{Footnote 10}
• coordinated and consistent national policy in discharging the DPP’s mandate;
• consistent positions in prosecutions across the country;
• effective legal risk management; and
• that CFPs and Crown counsel in the Regional Offices learn of cases of significant public interest, relevant legal precedents, and emerging legal issues or trends in other parts of the country and internationally.

Communicating a consistent and coordinated message to investigators and Crown counsel in respect of approaches to be applied in the interpretation of legislation, or to types of litigation, is a critical component of the DPP’s role. Achieving this consistency is a challenge that requires cooperation across the organization given that its services are delivered by hundreds of prosecutors across all regions of the country within a diversity of litigation environments.

4. The Role of the Headquarters Counsel Group

The Headquarters Counsel Group comprises counsel within both the Drug, National Security and Northern Prosecutions Branch and the Regulatory and Economic Prosecutions Branch. Headquarters counsel focus on operational issues arising from federal prosecutions.

The work of the Group can be categorized as falling within one of three major areas:

• strategic direction, litigation risk management and support to particular types of litigation or cases;
• general support to frontline prosecutors; and
• support to the DPP, the Deputy DPPs, and to concerned federal departments and agencies.

For the Drug, National Security and Northern Prosecutions Branch, the Group’s work includes issues related to the investigation and prosecution of offences under the Controlled Drugs and Substances Act,^{Footnote 11} proceeds of crime/money-laundering cases, national security matters and Criminal Code prosecutions in the North. The Regulatory and Economic Prosecutions Branch focuses on Criminal Code capital market fraud cases and on all other federal offences such as those under the Competition Act,^{Footnote 12} the Income Tax Act,^{Footnote 13} the Fisheries Act,^{Footnote 14} the Immigration and Refugee Protection Act,^{Footnote 15} the Canadian Environmental Protection Act,^{Footnote 16} and the Copyright Act.^{Footnote 17}

Headquarters counsel have responsibility for the coordination of legal advice and the development of prosecutions policy for the ODPP. Along with the National Prosecution Policy Committee (NPPC) and the Major Prosecutions Advisory Committee (MPAC), counsel in this group help ensure consistency in the positions being advanced in federal prosecutions.^{Footnote 18} They do this by tracking similar or related cases, coordinating positions, developing practice directives, collaborating with regional counsel in the development of facts to address evolving or novel areas of the law, and advising on implementation and interpretation of significant pieces of new legislation affecting federal prosecutors.

Their responsibilities, in ensuring DPP accountabilities and that Headquarters is a useful resource centre for Crown counsel in the regions, for investigative agencies and for senior management, include:

• Offering subject-matter expertise;
• Providing specific prosecution-related advice to Crown counsel, federal investigative agencies, and Department of Justice legal service units;
• Offering coordination and strategic direction, litigation risk management and litigation support to frontline prosecutors conducting litigation that is of national interest, by virtue of the significance of issues being litigated, the magnitude of a case, the emergence of a particular issue nationally, or because of a novel constitutional challenge;
• Ensuring that the DPP and Deputy DPPs are kept informed of cases of importance, which include, but are not limited to those:
  • with novel, complex and/or constitutional legal issues;
  • where there is a national or regional interest in the outcome;
  • where federal legislation is attacked;
  • where the investigative agency’s policies, practices or enforcement powers are challenged;
  • where there is significant public or media interest;^{Footnote 19}
  • where there is potential for a negative judicial ruling or comment against a Crown counsel personally or the PPSC generally, or a step by the prosecution;
• Developing policy with respect to prosecutorial operational issues;
• Liaising and facilitating communication with counsel in the Department of Justice, departmental enforcement officers and investigative agencies on non-case specific matters;^{Footnote 20}
• Providing prosecutorial perspective and advice on criminal law policy development;
• Providing input on legislative, enforcement and funding initiatives of other departments as these relate to and impact upon prosecutions; and
• Recommending direct indictments and other statutory consent matters.

4.1. Providing advice on prosecutions policy to the DPP and Deputy DPPs

As mentioned, the DPP is ultimately accountable to the public and to the courts for the conduct of Crown counsel who act in his or her name. Yet, because of the sheer volume of cases it would be impracticable for the DPP to be directly involved in all federal prosecutions. The DPP does not typically become involved in routine matters. However, the DPP may become involved in a prosecution matter because the nature of the matter requires closer monitoring of the exercise of prosecutorial discretion for which the DPP is accountable. Some examples of the types of cases that would warrant closer monitoring are listed in the bullets under heading 6.5. Additionally, the DPP may become involved in a prosecution matter because of a statutory consent requirement. For example, the DPP’s consent is required to prefer a direct indictment and to institute proceedings in respect of certain types of offences.^{Footnote 21}

When the DPP or a Deputy DPP is involved in the decision-making on a prosecution file, they rely on both regional counsel and Headquarters counsel for advice. In this capacity, Headquarters counsel add a national perspective to a legal issue and, because of their coordination role, in some cases they may be aware of particular interests of other government departments and agencies. Headquarters counsel normally respond to requests for advice from the DPP and Deputy DPPs. Requests for information from Headquarters counsel to the regions are in effect requests from the DPP or a Deputy DPP. Regional offices will normally prepare the materials outlining the nature of the case and key considerations, and may receive requests for additional information or, on occasion, be required to provide some of the original documents upon which their recommendation is made.

5. Consultation with Headquarters

Whether or not counsel in PPSC Regional Offices should consult with PPSC Headquarters respecting a particular prosecution will necessarily involve an exercise in judgment. When in doubt, counsel should seek the advice of their Associate or CFP at the earliest opportunity. On some occasions, consultation is mandatory; on others, while not mandatory, counsel may wish to consult PPSC Headquarters.

The following are examples of the types of files on which Crown counsel must consult with Headquarters counsel:

• Cases involving terrorism offences or that otherwise have a national security aspect;
• Cases having precedential value in terms of sentence or legal argument;
• Cases having novel legal arguments;
• Large scale complex prosecutions;^{Footnote 22}
• Cases that give rise to sustained, significant and/or anticipated media interest;
• Regulatory prosecutions of a large magnitude, that are complex or that raise issues of national importance or novel issues;
• International assistance requests in respect of proceeds of crime targeting property that, if seized/blocked/forfeited in Canada, would require an undertaking or the approval of the Deputy DPP; and
• Proposals to depart from the PPSC Deskbook.

The following are examples of the types of files on which Crown counsel may wish to consult with Headquarters counsel:

• Legal advice on non case-specific files;
• Proposed decisions respecting appeals to provincial and territorial courts of appeal;^{Footnote 23} and
• Proposed plea resolutions that are especially sensitive including homicide prosecutions wherein the Crown is agreeing to a plea on a lesser count than that which was charged or where there is to be a joint position on sentence;

Crown counsel should bring to the attention of Headquarters counsel all such cases at the earliest reasonable opportunity.^{Footnote 24} Crown counsel need not consult on more routine prosecutions unless they require advice or precedents.

Crown counsel may contact one of designated subject-matter experts in the Headquarters Counsel Group. Where there is no identified subject-matter expert, counsel in the PPSC Regional Offices should contact the Headquarters Counsel Regional Contact.

6. Consultation within and between Regional Offices

Consultation encompasses not only horizontal consultation within the PPSC and across government, but also includes consultation locally with one’s direct colleagues in a particular regional office and between regional offices. Crown counsel should consult regularly with their regional office colleagues. In fact, Crown counsel are not only entitled to consult on difficult questions, they are expected to consult with colleagues who have more experience or who may have grappled with similar issues in the past. Crown counsel should bear in mind that they are not alone, and that consultation does not mean abdication of prosecutorial independence. For example, divining the public interest in cases involving complex social issues can be a challenging task, particularly in the regulatory and economic field. The lone Crown counsel should consult colleagues on such matters.

CFPs are encouraged to develop policies for their offices regarding the types of matters that require consultation in their regional office and the appropriate consultation mechanisms for that office.