Transition Book - 2021 - Operations

In 2020-2021, the PPSC worked on 58,216 files. This figure includes 31,411 files opened during the year, as well as 26,805 files carried over from previous years^{Footnote 1}.

Overall, PPSC prosecutors, paralegals, legal support staff, and agents working on behalf of PPSC spent a total of 1,073,912 hours on prosecution files during the last fiscal year.

PPSC prosecutors and paralegals spent an additional 264,821 hours providing legal advice to investigative agencies, participating in various committees, both national and regional, and assisting with other important corporate work, as well as providing or receiving training.

File Complexity at the National Level

The PPSC classifies all files as low, medium, or high complexity. The illustration below represents the total number of files in each of these categories worked on by PPSC prosecutors, paralegals, legal support staff, and agents in the 2020-2021 fiscal year.

Top 10 Federal Statutes

The PPSC regularly prosecutes offences under approximately 36 federal statutes. The following chart outlines the top ten statutes.

Outcomes of Charges

The chart below provides an overview of outcomes of charges for the 2020-2021 fiscal year summarized by accused and by charge.^{Footnote 2}

Types of Offences^{Footnote 3}

The graphs below illustrate the proportional values of PPSC national case files based on offence type^{Footnote 4} for the fiscal year 2020-2021.

Stays of Proceedings Based on Delay

The Supreme Court of Canada decision in R v Jordan, established a new framework for the analysis of unreasonable delay pursuant to s 11(b) of the Charter of Rights and Freedoms. The judgment set presumptive delay ceilings of 18 months for cases being tried at the Provincial Court level, and 30 months for cases being tried at a Superior Court level.

The PPSC has always placed a priority on ensuring that cases are prosecuted in a principled and timely manner, which includes building upon existing practices and policies relating to file management. The Lesage/Code Report and the recent Bouchard Report have highlighted the PPSC's role in the forefront of the efficient management of large, complex prosecutions.

Since the Jordan decision was issued, the PPSC formalized specific measures in the PPSC Deskbook, by adding Chapter 3.17, "Ensuring Timely Prosecutions". This chapter outlines steps to be taken by PPSC counsel and agents to anticipate time requirements and minimize delays in prosecutions.

The following table presents cases closed, broken down by region, in the 2020-21 fiscal year, that resulted in a judicial stay or the crown directed a stay of proceedings due to Crown delay.

The Director of Public Prosecutions has a duty under section 13 of the Director of Public Prosecutions Act to inform the Attorney General in a timely manner of any prosecution, or intervention that the DPP intends to make, that raises important questions of general interest. This duty is essential to the relationship between the Attorney General and the DPP, since such information may be used by the Attorney General in deciding whether to issue a directive in the prosecution under section 10 of the Act or to assume conduct of the prosecution under section 15.

Section 13 notices are required in cases that raise "important questions" that are of "general interest". "General interest" is considered to subsume "public interest", and accords the DPP with a broader duty to inform the Attorney General of important matters.

Considerations

A directive of the Attorney General issued under section 10 of the Director of Public Prosecutions Act provides the DPP with guidance on the types of cases for which notice should typically be given (Part 1 of the PPSC Deskbook). The directive currently lists the following types of cases as ones that generally would require a section 13 notice:

• Cases giving rise to concerns regarding public confidence in the administration of justice, including the manner in which a prosecution is conducted insofar as the impartiality or independence of the PPSC is at issue;
• Cases that may have a significant impact on established jurisprudence;
• National security prosecutions;
• War crimes, crimes against humanity and genocide prosecutions;
• Official languages issues in prosecutions;
• Prosecutions that involve novel aboriginal rights issues;
• Criminal organization prosecutions that raise "important questions of general interest" by virtue of the significance or novelty of the issues being litigated, or any broader government concerns such as border security;
• Environmental prosecutions that raise issues of national importance;
• Capital markets fraud cases of national significance;
• Constitutional challenges (Canadian Charter of Rights and Freedoms (Charter) or division of powers) to legislation or to federal government programs that are novel (i.e. notices would not be required on routine or recurring constitutional challenges);
• Cases that give rise to sustained, significant and/or anticipated media interest and that also raise important questions, for example when a matter puts into question the public's confidence in the administration of justice; and
• Cases with an international dimension.

Section 13 is a statutory guarantee that the DPP will inform the Attorney General of prosecutions so as to allow the Attorney General to properly execute his or her functions as chief law officer of the Crown. Section 13 notes issued by the DPP are intended for the Attorney General personally.

Section 13 requires that notice be given "in a timely manner." By necessity, the timelines for providing a section 13 notice will vary from case to case in accordance with the particular facts, including any applicable time limitation periods. Notices are typically given at various milestone stages of the prosecution, notably before discontinuing or staying a prosecution, including a private prosecution, and prior to decisions to appeal or to intervene.

Where PPSC prosecutors are involved in providing advice in respect of an investigation, and the resulting prosecution, should it occur, is one that would raise important questions of general interest, the DPP informs the Attorney General only once charges have been laid. However, in situations where prior prosecutorial consent to initiate a prosecution is statutorily required, e.g., terrorism prosecutions, notice is typically given before the consent is provided.

Section 13 does not preclude oral notice, which may be given when it is necessary to do so in light of time constraints.

There are a number of proceedings to which section 13 does not apply, namely:

• prosecutions under the Canada Elections Act;
• proceedings conducted by the PPSC on behalf of the Attorney General under either the Extradition Act or the Mutual Legal Assistance in Criminal Matters Act (it should be noted that to date the PPSC has not conducted proceedings under the Extradition Act or the Mutual Legal Assistance in Criminal Matters Act as the Department of Justice conducts all proceedings under those statutes); or
• prosecutions of offences that fall under provincial jurisdiction and which the DPP prosecutes on behalf of a provincial prosecution service.

The PPSC is responsible for the prosecution of all offences in the Controlled Drugs and Substances Act (CDSA) and Cannabis Act, except in Quebec and New Brunswick.^{Footnote 5} The PPSC prosecuted approximately 44,000 charges under the CDSA and Cannabis Act in 2020-2021. Drug prosecutions represent approximately 70% of PPSC's work.

There are currently three areas of focus pertaining to drug prosecutions that are given special consideration. First, the opioid crisis is one of the most critical problems in Canadian society. With this in mind, special attention is given to prosecution strategies related to opioid offences, including alternative measures to prosecution for eligible offenders suffering from a substance use disorder and appropriately severe sentencing for those involved in significant fentanyl commercial trafficking. Second, in an effort to address large-scale importation, manufacture and importing of controlled substances, special consideration is also given to the prosecution of offences tied to organized crime. Third, we continue to develop prosecution strategies for offences under the Cannabis Act that came into force in 2018.

Special consideration in respect of opioids

Canada is facing a national opioid crisis, with a growing number of overdoses and deaths caused by the proliferation of a tainted supply of illicit drugs containing fentanyl.^{Footnote 6} Fentanyl has become the leading cause of opioid deaths in Canada and the rate continues to rise every year. Recent statistics illustrate that in 2020, 6,214 Canadians lost their lives to opioid-related overdoses with 85% of all opioid toxicity deaths occurring in British Columbia, Alberta and Ontario.^{Footnote 7}

Non-commercial drug offences and more serious drug offences associated with substance use disorders

The PPSC has taken important steps in response to the opioid crisis to recognize health dimensions related to drug offences. After consulting with health officials and the police community, the PPSC issued a prosecution guideline in August 2020 requiring prosecutors to confine the use of prosecutions for simple possession to situations raising a public safety component. Prosecutors are required to consider the alternatives to prosecution that may address the public safety elements in those circumstances. At the same time, prosecutors are being trained to recognize and consider the potential effects of bias and systemic discrimination upon the assessment of these cases.

In more remote communities such as Canada's three northern territories, the limited availability of alternative measures to prosecution has created challenges from a treatment perspective. The PPSC is seeking to identify new partners and programs that could serve as less formal alternatives to prosecutions where public safety concerns indicate a prosecution should be considered.

The identification of partners and community involvement is a particular priority to attempt to address the over-representation of Indigenous accused in the criminal justice system.

In furtherance of combatting the opioid crisis, the PPSC contributes to the Canadian Drugs and Substances Strategy as a member of an interdepartmental working group tackling the opioid death and overdose crisis. The PPSC also provides advice to organizations like the Canadian Association of Chiefs of Police as a member of its Drug Advisory Committee.

Participation in Drug Treatment Court

For street level trafficking offences associated with substance use disorders, the PPSC has sought to expand the admissibility criteria to increase the availability of Drug Treatment Courts (DTCs) for these offenders. The DTCs are specialized courts that provide an alternative to incarceration by offering an opportunity to complete a drug treatment program under the supervision of designated justice system participants and treatment service providers. DTCs aim to reduce the frequency of crimes committed to support drug dependence and the harm people cause to themselves and others because of drug addiction. Offenders who meet specified criteria receive comprehensive substance use treatment, clinical case management and social services support. The number of DTCs continues to grow across the country with new DTCs opening recently in Alberta.

Some persons with substance use disorders are not ready or willing to participate in a DTC program but are amenable to medical assistance to address the aspects of their behaviour that raise public safety concerns. The PPSC is partnering with Vancouver Coastal Health and the police to provide direct on-site assistance at the courthouse and, in appropriate circumstances, to reflect the alternative medical supervision available as part of the consideration of how to manage the interaction between those persons and the criminal justice system.

These initiatives will continue based on the 2021 federal budget that has allocated approximately $40 million in new funding to DTCs over the next 5 years.

Appropriate sentences for commercial fentanyl trafficking

The PPSC has seen an increase in the number of fentanyl prosecution files over the past years. In response, we have created a complete sentencing record for the courts, including expert medical evidence, as we strenuously advocate for proportionate sentences that recognize the extreme danger posed by fentanyl trafficking and the devastating impact it has had on Canadian society. To ensure consistency of practice across all regions, the PPSC created a network of federal prosecutors appointed as specialists on fentanyl issues in each region, coordinated from PPSC Headquarters. This working group shares information relating to relevant jurisprudence across the country, as well as emerging challenges and best practices. The PPSC has also created a fentanyl-sentencing database on its Knowledge Management intranet site that is regularly updated and accessible to all PPSC counsel. Fentanyl trafficking offences now attract the highest custodial sentences imposed by the courts in all regions in Canada.

While recognizing the grave harm caused by the trafficking of substances containing fentanyl and its derivatives, the PPSC has also advocated for reduced sentences in some cases for traffickers suffering from substance use disorders who have demonstrated that they are addressing their addiction and its consequences through drug treatment. In such circumstances, offenders may be presented with options that may include participation in Drug Treatment Court (DTC) or, in exceptional circumstances, a suspended sentence with probation.

Special consideration in respect of organized crime

Cutting off supply chains is an important pillar of the Canadian Drugs and Substances Strategy. Effectively prosecuting criminal organizations and the persons promoting their operations continues to be a priority for PPSC. A complicating and aggravating consideration remains the use by criminal organizations at all levels of vulnerable persons to conduct the street level trafficking and act as couriers to import or export drugs. Any diversion or sentencing approach must try to avoid making these vulnerable persons even more desirable as the arms and legs of the criminal organizations that exploit them. This requires focused efforts to address the prosecution challenges posed by these criminal organizations.

At the investigatory stage, PPSC counsel advise the police about the lawfulness of certain investigative techniques, generally and in relation to particularly complex investigations, and the effect of using them upon a prosecution. Police continue to determine the volume and type of drug charges to be pursued, based on their independent discretion to choose their investigation focus and priorities. Prosecutors then exercise an independent prosecutorial discretion to determine if the prosecution threshold is met. The public interest assessment has taken on a more significant role as part of the efforts to address the opioid crisis, the over-representation of Indigenous accused and systemic discrimination.

Organized crime prosecutions

There are four specific criminal organization offences under the Criminal Code that may be considered and made out in respect of serious predicate drug and other federal offences. The evidence gathered in organized crime investigations may establish the offences of participation in the activities of a criminal organization, recruiting persons to join the criminal organization, committing offences in association with the criminal organization and directing others to commit offences for the benefit of, at the direction of, or in association with the criminal organization. In each case, the Crown is required to lead evidence to prove that the group meets the Criminal Code definition of a criminal organization as a group of three or more persons which has, as one of its main purposes or activities, the facilitation or commission of indictable offences punishable by a maximum of five years or more imprisonment. The prosecutor may also introduce evidence that the offences were committed in relation to organized crime without charging the specific criminal organization offences. PPSC counsel receive guidance in relation to when it is most appropriate and effective to introduce criminal organization evidence as part of a prosecution charging the particular criminal organization offences or at the sentencing stage in relation to standard drug charges.

Most organized crime prosecutions are large, complex and transnational in scope.

• They generally involve the collection by the police of hundreds of thousands of pieces of electronic information which need to be assessed for purposes of disclosure to the defence. The dedication of significant police resources is required to gather and organize the fruits of the investigation and other peripheral disclosure materials, and to provide them to the Crown in a timely and organized manner. This may be further complicated by the impact of different legal regimes in respect to the admissibility of foreign acquired evidence. Prosecution plans and resourcing at the outset is also required for the Crown to discharge its duties in respect to the editing of disclosure materials to protect the identity of informers or other privileged information before disclosing them to the defence.
• Prosecutions often rely on the interception of communications. Most of the communications are now text-based. Accessing information, in many cases, will require the use of complicated technological tools to override security systems and break through complicated encryption. The volume of information gathered in these investigations and the sophistication of the technology used by investigators significantly add to the challenges of an investigation and prosecution.
• Other forms of investigation, such as undercover operations and civilian agents directed by the police, as well as the use of specialized investigative techniques, continue to form a significant part of investigations. All of these elements raise factual and legal issues that must be addressed by prosecutors with the police during an investigation and as part of the determination of the admissibility of evidence. The pretrial motions on these issues may take considerably more time and effort to resolve than the actual trial on the merits of the prosecution's case.
• In establishing the existence of the criminal organization, the prosecution will invariably draw upon the opinion evidence of a properly qualified expert concerning the structure, purposes and main activities of the criminal organization. This evidence may attract additional levels of complexity and its admission may raise particular scrutiny where the expertise is sought from multiple and international sources.

The increase in the complexity and sophistication of major drug cases is often due to the combination of telecommunications technology and evolving jurisprudence relating to expectations of privacy in public and quasi-public physical and virtual settings that has added to the complexity of cases. What used to be considered an unusually large criminal importation or a more involved investigation has now become more of the norm. This has resulted in the need for more time and resources to effectively prosecute these major cases.

The Cannabis Act

On October 17, 2018, the Cannabis Act came into force, fundamentally changing the manner in which cannabis is possessed and accessed, and how cannabis related offences are investigated and prosecuted in Canada. The PPSC is responsible for the prosecution of both criminal and regulatory offences under the Cannabis Act.

The Cannabis Act altered Canada's approach to cannabis, shifting from a blanket prohibition for non-medicinal marihuana to a regime in which possession, consumption and distribution can be lawful, subject to restrictions by amount, age and location. The more serious cannabis offences, previously prosecuted under the Controlled Drugs and Substances Act, such as sale, importation and exportation remain offences under the Cannabis Act.

During the first year, the Cannabis Act was in force, legal sales were limited to fresh or dried cannabis in its natural form. However, as of October 17, 2019, regulations have been in place authorizing the legal production and sale of edible cannabis products, extracts and topicals.

In order to prepare for and implement this significant change to the law in relation to cannabis prosecutions, the PPSC established an implementation committee to identify legal and operational issues, develop policies and procedures and provide training to police and prosecutors. This committee, with representatives from all PPSC regional offices, has transitioned into a litigation support role and continues to monitor prosecutions under the Act and develop PPSC positions to address issues as they arise.

The legalization of possession of cannabis pursuant to the Cannabis Act has not had a measurable impact on PPSC operations as the resources dedicated to the prosecution of simple possession cases under the CDSA were not significant. In contrast, significant resources were, and continue to be, devoted to prosecutions in relation to so-called cannabis "dispensaries" which continue to operate illegally across the country.

PPSC has taken the position that the Cannabis Act does not change the common law in relation to appropriate sentences for the criminal offences that are contained in the Cannabis Act and were carried over from the CDSA. On January 9, 2019, the Ontario Court of Appeal in R v Strong endorsed this approach by finding that a three-year sentence for trafficking under the CDSA should not be reduced in light of the Cannabis Act, since the unauthorized sale of cannabis continues to be treated as a serious criminal offence.

The Cannabis Act contains provisions allowing the police to issue tickets for offences within specific ranges. However, these provisions, in practical terms, are not in force given the scheme's reliance on the provinces and territories (PTs) to produce and issue the actual tickets to the police. The Cannabis Act does allow prosecutors to elect to proceed as though a ticket had been issued. In order to make use of this discretion PPSC has worked with the PTs to put in place procedures to allow this election to be made in court, and has issued guidance to federal prosecutors on the procedures to follow in cases where the ticketing election is appropriate.

A number of legal challenges to the Cannabis Act by First Nations communities, and individuals, are expected or underway, primarily in Ontario. To date, these challenges appear to be based on an argument that the Cannabis Act does not apply on aboriginal lands through the assertion that these areas are sovereign. The PPSC's view is that the Act is constitutionally valid and, as a federal statute, applies across Canada. PPSC is working closely with the Department of Justice to address these challenges in the courts.

The introduction of a legal regime governing the sale of edible cannabis products and concentrates may pose additional evidentiary challenges for prosecutions given the complexity of the regime. The regulation of these new products is in large part based on the concentration of active ingredients. The science involved in establishing that a given sample falls outside of legal limits is considerably more complex than with cannabis in its natural form.

A mandatory review of the Cannabis Act and its administration and operation by Canada's Minister of Health must begin by October 17, 2021. This review will look at the impact of the Cannabis Act on public health and, in particular, on the health and consumption habits of young persons in respect of cannabis use, the impact of cannabis on Indigenous persons and communities, and the impact of the cultivation of cannabis plants in a dwelling-house. PPSC will participate in the review by providing critical feedback to the operation of the offence and enforcement provisions in the Act.

The PPSC prosecutes the possession of proceeds of crime, as well as the laundering of proceeds of crime, across Canada. These prosecutions are usually related to money and property derived from drug offences.

Background

Offences of possession of property obtained by crime (possession) and laundering of proceeds of crime (laundering) can be found in the Criminal Code:

• s 354: Possession of property obtained by crime
• s 462.31: Laundering of proceeds of crime

The PPSC has the authority to prosecute these offences where the underlying offence which resulted in proceeds of crime is wholly or partly an offence for which the Attorney General of Canada has the power to commence. This does not necessarily mean that there will always be charges for the underlying offence that accompanies the possession or laundering offence. This will depend on the facts of the case, the evidence, as well as public interest in adding charges for the offence underlying the possession or laundering offence.

Considerations

Investigations into laundering offences are long and complex. Over the years, launderers have significantly refined their techniques in order to mask the source of funds originating from criminal activities, particularly by using new technologies and virtual currencies.

Project Collecteur

Project Collecteur targeted a professional money-laundering network. Twenty-two individuals were charged in Montreal in 2019, including network participants and the clients using their services.

Montreal-based money launderers would receive money from criminal groups during illegal meetings held in public places such as commercial parking lots and would send the money, always in cash, to Toronto-based money launderers.

These Toronto-based money launderers operated out of an exchange office that served a primarily Persian clientele. They also had exchange offices in Tehran, Iran, and Dubai, United Arab Emirates. They used the cash received from criminal clients to fulfill money transfer orders placed by individuals based in Iran. There were many of these orders because of the international sanctions on the Iranian banking industry. Consequently, the amounts held in Tehran and Dubai were significant.

The Montreal-based money launderers did not have an exchange office; instead, they received money from various clients in the Montreal area and then sent it to the Toronto-based group. The head of the Montreal network used numbered companies to issue invoices of convenience. Their clients received these invoices and wrote cheques to the money launderers. The money launderers gave them cash in return, which came from their profits or informal transfer commissions. The money launderers also had two collaborators in Lebanon, who controlled more modest local cash assets than the Iranian-owned network.

While some of the clients who were charged have already been sentenced to prison terms ranging from six months to two years minus one day to be served in community, the case is still ongoing before the courts.

Financial Action Task Force's evaluation of Canada's regime

In September 2016 the Financial Action Task Force (FATF) released its evaluation of Canada's anti-money laundering and anti-terrorist financing regime. FATF is an inter-governmental body established in 1986 by the Ministers of its Member jurisdictions, including Canada. The objectives of the FATF are to set standards and promote effective implementation of legal, regulatory, and operational measures for combatting money laundering, terrorist financing, and other related threats to the integrity of the international financial system.

Overall, the report indicates that Canada has a strong framework to fight money laundering and terrorism financing and that its investigative agencies have adequate powers to undertake large and complex financial investigations. That being said, investigations seem to be focused on the predicate offences rather than the laundering offence. In addition, the report notes that there are few investigations or prosecutions and convictions related to money laundering.

In November 2018, following a statutory review of the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, the House of Commons Standing Committee on Finance released its report titled "Confronting Money Laundering and Terrorist Financing: Moving Canada Forward". As one of the report's 32 recommendations, the Committee recommends that "[…] necessary resources be made available [by the Government of Canada] to law enforcement and prosecutors to pursue money-laundering and terrorism financing activities". ^{Footnote 8}

In March 2018, Peter German released his report on the allegations of money laundering at "Lower Mainland" casinos. This report followed an audit that revealed approximately $13.5M in $20 bills had been accepted by the Great Canadian's River Rock casino in July of 2015. Forty-eight recommendations can be found in the report, which target the problems discovered in a review of the policies and practices related to laundering in the gambling industry in British Columbia.

A working group chaired by the Department of Finance was set up to respond to various concerns and recommendations raised by both the FATF report and the Committee report. This working group ultimately reports to the Anti-Money Laundering and Anti-Terrorist Financing (AML/ATF) Deputy Ministers' Committee, of which the Director of Public Prosecutions is a member.

Similarly, the PPSC has formed a working group of experienced prosecutors from across the country to address issues related to investigative advice and laundering prosecutions.

The PPSC conducts prosecutions in national security-related proceedings, including terrorism prosecutions, applications for terrorism peace bonds, and prosecutions under the Security of Information Act (SOIA). The PPSC has exclusive jurisdiction to initiate and conduct prosecutions of offences under the Crimes Against Humanity and War Crimes Act. There are no such prosecutions at this time. A new chapter in the PPSC Deskbook covering National Security was recently published.

Terrorism Offences

The PPSC has concurrent jurisdiction with the provincial prosecution services to prosecute terrorism offences in the Criminal Code.

Consent of the Attorney General

In order to commence terrorism proceedings (whether a prosecution or an application for a terrorism peace bond pursuant to s 810.011 of the Criminal Code), the investigating law enforcement agency must obtain the prior consent of the Attorney General of Canada. The decision as to whether to consent is statutorily delegated to the Director of Public Prosecutions and the Deputy Directors of Public Prosecutions. The PPSC responds to requests for consent in a manner that is sensitive to operational needs and priorities.

The PPSC's capacity to conduct terrorism offence prosecutions

The PPSC has established a practice of assigning terrorism files to a small group of senior prosecutors who are experienced in terrorism prosecutions. These prosecutors can be assigned to terrorism prosecutions anywhere in Canada. In addition, the PPSC has senior counsel at its headquarters who ensure that assigned prosecutors in the regions are provided the support they need to carry out their work.

PPSC counsel in the regional offices work at the investigative stage with the RCMP-led Integrated National Security Enforcement Teams. The PPSC has also established a committee of regional terrorism prosecution coordinators for the consideration of novel issues and for the dissemination of best practices.

Terrorism offence prosecutions and proceedings

The PPSC is currently prosecuting six terrorism cases. Two of the current prosecutions are jointly handled with the Ministry of the Attorney General for Ontario. In both cases, it is notably alleged that in addition to being a planned and deliberate murders pursuant to s. 231(2) of the Criminal Code, they also constitute a terrorism offence pursuant to ss. 2, 83.01(b), and 231(6.01) of the Criminal Code In this respect, the Crown will need to establish, beyond a reasonable doubt, that the offences were committed, in whole or in part, for an ideological purpose objective or cause. They fall in a category, which is scholarly described as Ideologically Motivated Violent Extremism (IMVE).

In addition, charges have been laid in six other cases, involving nine individuals who are not currently in Canada's jurisdiction. Warrants for their arrest have been issued. Some of the individuals are presumed dead. It remains, however, unconfirmed.

Finally, there is one outstanding case before the Ontario Court of Appeal involving two accused (Jaser and Esseghaier).

Since the Anti-Terrorism Act came into force in 2001, 63 individuals have been prosecuted for terrorism-related offences, including those individuals still before the courts. Thirty-three individuals have been convicted, and life sentences were imposed on seven of these individuals. In addition to the life sentences, significant sentences of between 15 and 24 years have been imposed.

Furthermore, there have been a total of 29 applications pursuant to s 810.011 Criminal Code, i.e., the terrorism peace bond provision. Of these applications, 18 have resulted in the peace bond being entered into, one application was dismissed by the Court, ten were withdrawn by the Crown at various stages.

Canadian Extremist Travelers

In 2013, offences specifically related to leaving or attempting to leave Canada for the purposes of committing certain terrorism offences were enacted in the Criminal Code. Since that time, a total of 16 individuals have been charged with specific travel-related terrorism offences: six have been convicted; two have been recently charged and are before court; two have been acquitted; four have outstanding warrants; one has had charges withdrawn; and one saw her charges stayed. Note that these are included within the total of 63 individuals prosecuted for terrorism-related offences referenced above.

Other national security prosecutions

The PPSC is currently prosecuting two cases involving charges under the SOIA. In R v Cameron Jay Ortis, it is alleged that the accused, who was at the time of his arrest Director General of the RCMP - National Intelligence Coordination Center, was preparing to share sensitive information with a foreign entity, contrary to s. 22 of the SOIA, and that he shared operational information in 2015, contrary to s. 14 of the SOIA.

In R v Qing Huang, the accused was an employee of Lloyd's Register Canada, which provided services to the shipping industry, governments and military, including the Government of Canada and the Royal Canadian Navy. He allegedly contacted the Chinese government and offered to disclose highly confidential military information, contrary to s 16 of the SOIA.

Case summaries of all ongoing national security and terrorism-related prosecutions, except for the ones with outstanding warrants, are provided in the attached

Annex 1: National Security Prosecutions Case Summaries

Ongoing Terrorism-related Prosecutions

R v Peshdary (Project Servant – Ottawa)

Mr. Peshdary was charged on February 2, 2015, with four terrorism-related offences. He is alleged to have conspired with Mr. Maguire, Mr. Khalib and others to travel and to assist others to travel to Syria to join ISIS, a listed terrorist entity. Mr. Peshdary has been in custody since his arrest. The judge alone trial began in June 2018. Defence counsel made O'Connor applications. Crown case was closed on June 12, 2019. Mr. Peshdary will not be calling evidence. All of the evidence has been tendered at trial.

Final submissions were, however, suspended pending the completion of the accused's ongoing applications pursuant to s. 38.14 of the Canada Evidence Act, and s. 7 of the Canadian Charter of Rights and Freedoms through which he is seeking a stay of the proceeding. Mr. Peshdary requested and obtained an adjournment of the completion of final submissions regarding those applications as well as the ones concerning the trial proper until after the completion of an application in which he is involved in the Federal Court, wherein he is challenging the validity of a Canadian Security Intelligence Service Act (CSIS Act) warrant relating to a CSIS investigation of him. Although the Crown opposed the adjournment application the trial Court granted his request. The next court date before the Ontario Superior Court of Justice is December 10, 2021.

Young person (Project Salento – Kingston)

On July 28, 2020, the young person pleaded guilty to the following four counts: (1) facilitating a terrorist activity, contrary to s. 83.19 of the Criminal Code, (2) having in his possession an explosive substance with the intent to endanger life or cause serious damage to property, contrary to s. 81(1)(d) of the Criminal Code, (3) doing anything with the intent to cause an explosion of an explosive substance that was likely to cause serious bodily harm or death, contrary to s. 81(1)(a) of the Criminal Code, and (4) counselling someone to detonate an explosive device in a public place to cause serious injury or death, contrary to ss. 464(a) and 431.2 of the Criminal Code The sentencing process is ongoing. The next court date is November 17, 2021.

Young person

On May 14, 2020, the Deputy Director of the PPSC gave consent pursuant to s. 83.24 of the Criminal Code, on behalf of the Attorney General of Canada, to the commencement of terrorism proceedings against a young person. The young person is charged with first degree murder pursuant to s. 235(1) of the Criminal Code, which in addition to being a planned and deliberate murder pursuant to s. 231(2) of the Criminal Code, also constitutes a terrorism offence pursuant to ss. 2, 83.01(b), and 231(6.01) of the Criminal Code. The young person is also charged with attempted murder contrary to s. 239(1) of the Criminal Code, which in addition to be an attempted murder also constitutes a terrorism offence pursuant to ss. 2, 83.01(b), and 83.27 of the Criminal Code It is alleged that the terrorism offences were committed in the name of Incel. Two weeks of pretrial motions have been set to start on May 16, 2022, and 3-5 weeks of trial commencing September 12, 2022. This is a joint prosecution with the Ministry of the Attorney General for Ontario.

R v Hussein Sobhe Borhot (Project SaddleII - Calgary)

On July 22, 2020, Hussein Sobhe Borhot of Calgary was charged with participating in the activities of terrorist group contrary to section 83.18 of the Criminal Code (3 counts), and committing an indictable offence for the benefit of, at the direction of or in association with a terrorist group contrary to section 83.2 of the Criminal Code (1 count). A direct indictment was signed on January 27, 2021. Trial dates have been set for November 21, 2022 through December 16, 2022. Jury selection will occur on November 17, 2022.

R v Jamal Taan Borhot (Project SaddleII - Calgary)

On September 25, 2020, Jamal Taan Borhot of Calgary was charged with participating in the activities of terrorist group contrary to section 83.18 of the Criminal Code (3 counts). A direct indictment was signed on February 4, 2021. Trial dates have been set for October 3 through October 28, 2022. Jury selection will occur on September 29, 2022.

R. v. Nathaniel Veltman

On June 9, 2020, the Deputy Director of the PPSC gave consent pursuant to s. 83.24 of the Criminal Code, on behalf of the Attorney General of Canada, to the commencement of terrorism proceedings against Nathaniel Veltman. In this respect, he is charged with four first degree murders pursuant to s. 235(1) of the Criminal Code, which in addition to being planned and deliberate murders pursuant to s. 231(2) of the Criminal Code, also constitute terrorism offences pursuant to ss. 2, 83.01(b), and 231(6.01) of the Criminal Code. He is also charged with attempted murder contrary to s. 239(1) of the Criminal Code, which in addition to be an attempted murder also constitutes a terrorism offence pursuant to ss. 2, 83.01(b), and 83.27 of the Criminal Code. This is a joint prosecution with the Ministry of the Attorney General for Ontario. The next court date is November 17, 2021.

National Security Prosecutions – Appeals

R v Esseghaier and Jaser (Project Smooth—Toronto)

Two adults were charged with conspiracy to commit murder and five other terrorism-related offences in connection with a plot to derail a VIA train and other terrorist activity. On March 20, 2015, a jury found Esseghaier guilty of all five counts he was charged with, and found Jaser guilty of three of the four counts he was charged with. The jury could not reach a verdict on one count against Jaser. Both Jaser and Esseghaier were sentenced to life in prison on September 23, 2015. Esseghaier and Jaser both filed appeals against conviction and sentence. Following a bifurcated appeal, the Ontario Court of Appeal granted their appeal and ordered a new trial on August 27, 2019. The PPSC was granted leave to appeal before the Supreme Court of Canada and on October 7, 2020, the Supreme Court of Canada allowed the Crown appeals and restored the convictions, with reasons to follow. The appeals were remitted to the Court of Appeal for consideration of the remaining bifurcated grounds of appeal. The remaining appeals have yet to be set down for a hearing in the Ontario Court of Appeal.

Security of Information Act Prosecutions

R v Huang (Toronto)

Mr. Huang is charged that he attempted to communicate information that was safeguarded to a foreign entity, namely China, contrary to s 16 of the SOIA. Mr. Huang was an employee of Lloyd's Register Canada, which provided services to the shipping industry, governments and military, including the Government of Canada and the Royal Canadian Navy. He is alleged to have contacted the Chinese government and offered to disclose highly confidential military information. A s. 11(b) Charter application will be heard on November 19, 2021.

R. v. Cameron Ortis (Project Ace – Ottawa)

Mr. Ortis was, at the time of his arrest, Director General of the RCMP National Intelligence Coordination Center. It is alleged that he was taking preparatory steps for the purpose of communicating sensitive information with a foreign entity, contrary to s. 22 of the SOIA, and that he shared operational information in 2015, contrary to s. 14 of the SOIA. The charges arise from activities alleged to have occurred during his tenure as an RCMP employee. Mr. Ortis is presently detained pending trial. The next court dates are as follows: s. 37 of the Canada Evidence Act application, January 10-18, 2022, trial readiness filing August 8, 2022, and an eight-week trial starting on September 6, 2022. There is also a s. 38 of the Canada Evidence Act application before the Federal Court with next court dates in September, October and November of 2021.

PPSC Operations in the North

The PPSC of Canada is responsible for the prosecution of all Criminal Code offences in the territories as well as offences under all other federal legislation, such as the Controlled Drugs and Substances Act, Cannabis Act, the Youth Criminal Justice Act, and the Fisheries Act. The PPSC also prosecutes most territorial offences in Nunavut and the Northwest Territories (NWT), but not in the Yukon.

The PPSC has regional offices in each of the territorial capitals, Whitehorse, Yellowknife, and Iqaluit, with a total staff complement of approximately 132 employees, 53 of whom are lawyers. All three regional offices occasionally need the services of fly-in counsel from other regional offices or prosecutors from provincial prosecution services.

Challenges Relating to Northern Prosecutions

Cultural Awareness

A significant percentage of the population, particularly in communities other than the territorial capitals, is Indigenous. In the Yukon, approximately 25% of the population is Indigenous; while in the NWT, 50% is Indigenous. In Nunavut, 85% of the population is Inuit. Cumulatively, there are twenty Indigenous languages spoken in the territories. Cultural awareness training is a priority for non-Indigenous employees within the PPSC, and is of particular importance in the North.

High Rates of Violent Crime

The territories have among the highest rates of violent crime in the country, particularly as it relates to sexual abuse (including historical sexual abuse cases) and domestic violence. There is also a high rate of homicide. The PPSC currently has a total of 34 active homicide prosecutions and 6 appeals before the courts.

High-Risk and Long-Term Offenders

There is a coordinated high-risk offender flagging process in place in all the Northern offices, resulting from the high rate of violent crime involving offenders with significant rates of recidivism. In each regional office, paralegals assist in coordinating the flagging of high-risk offenders in the territory. This enables a more effective and organized preparation of prosecution files in order to conduct long-term offender and dangerous offender applications effectively. Given the implications for the person subject to these orders, the consent of a Deputy DPP is required before an application can be brought.

Accessibility

PPSC prosecutors and Crown Witness Coordinators (CWCs) attend court in over 60 communities across the North. Court is held at varying but regular intervals in each community, most of which are accessible only by air. All of the communities in Nunavut are accessible only by air. Those in the NWT are mainly accessible by air. The communities in Yukon are generally accessible by car.

Travel Costs

Core mandate travel for prosecutors and CWCs is a substantial part of the regional office budget. Employee travel costs for prosecutions in the North are significant, approximately $1.2M annually. For example, travel and accommodation for one person to a remote community in Nunavut for a trial is around $9,000.00. In addition, the PPSC has become responsible for all civilian witness travel in the three territories. Traditionally, these costs were paid by the territorial governments. However, in 2015, the territorial governments refused to continue the arrangement, and the PPSC now books and pays all the civilian witness travel costs without an increased source of funds.

Crown Witness Coordinator Program

The unique cultural setting for prosecutions in the North led to the creation of the Crown Witness Coordinators Program in 1988. The Program provides a service to bridge the cultural gap between the court system and First Nations and Inuit victims and witnesses engaged in the court process.

Currently, the PPSC's northern regional offices employ 20 Crown Witness Coordinators, in addition to three CWC Supervisors, one in each regional office. CWCs work closely with PPSC prosecutors and travel to communities during court circuits to assist victims and witnesses. A large percentage of the workload of CWCs involves domestic violence cases and other crimes of violence such as sexual assault and homicide.

The main role of Crown Witness Coordinators is to help victims and witnesses understand the court process, the roles of the court participants and, for the victims, their rights and responsibilities under the Canadian Victims Bill of Rights. Crown Witness Coordinators provide court updates, accompany witnesses to court, provide support during and after testimony, and assist with trial preparation. CWCs also act as liaisons between Crown counsel, victims, and witnesses, to ensure that their concerns are considered during the justice process. Their responsibilities include identifying support needs of the victims and ensuring they are referred to appropriate territorial support agencies to address those needs. The CWC program is coordinated by a Crown Witness Program Coordinator (CWPC). The CWPC liaises with CWC Supervisors and CWCs in the territories, with prosecutors, and with senior management in the regional offices and at headquarters in Ottawa.

Specialized Treatment Courts in the North

A large proportion of offences in the North involve spousal violence. Each territory has specialized spousal abuse treatment court programs to address domestic violence through a comprehensive multidisciplinary treatment-based approach aimed at ensuring domestic violence offenders receive therapy to eliminate or reduce recidivism. To participate, the accused must accept responsibility by entering a guilty plea. They are then eligible to receive treatment focused on spousal violence and addictions. Upon completion of the process, the offender receives a sentence mitigated by his or her involvement in the process, which usually means a community-based sentence. PPSC prosecutors in the three northern regional offices actively support these therapeutic court programs.

Community Wellness Court

The PPSC has also been an active partner in the therapeutic court programs known as the Community Wellness Court. Wellness Court programs aim to reduce recidivism by providing support to chronic offenders by helping them deal with the addictions and/or mental health issues that contribute to their criminal behaviour. These programs constitute judicially supervised alternatives providing multidisciplinary support for offenders with mental health issues, drug and alcohol addictions or cognitive challenges. An offender who successfully undergoes the extensive treatment, generally over a year in length, associated with this program usually receives a community-based sentence.

Wellness courts were implemented in the Yukon in 2007, in the NWT in 2014 and in Nunavut a therapeutic justice program pilot project, designed by Inuit for Inuit, began in April 2019 in Cambridge Bay, Nunavut.

Article 23 of the Nunavut Agreement

The Nunavut Act and the Nunavut Agreement created Nunavut, which became a territory on April 1, 1999. The Nunavut Agreement protects Inuit rights, including employment as set out in Article 23 of the Agreement. The legal obligation on the federal and territorial governments is to increase Inuit participation in government employment to a representative level of 85% of the population in all occupational groups and levels.

The PPSC Inuit Employment Plan contains the employment strategy aimed at increasing the number of Inuit employees to a representative level. For the PPSC, this poses a particular challenge given the current insufficient pool of Inuit who meet the essential requirements to be hired as lawyers. Accordingly, the PPSC is working with the federal sector to develop education strategies to increase the number of Inuit lawyers and, in particular, supported two Nunavut Regional employees enrolled in the Nunavut Law Program (NLP). Those employees successfully completed their law degree in April 2021 and have returned to the Nunavut Regional Office as articling students. They are joined by two other Inuit articling students hired from the NLP graduates. Other measures in place to address meeting the representative levels in other occupational groups, include strategies to remove employment barriers, all-Inuit staffing panels, career laddering within the office and an emphasis on acquiring leadership skills through formal and on the job training. These measures have significantly improved Inuit employment in the Nunavut Regional Office.

PPSC's Response to the National Inquiry into MMIWG's Calls for Justice

The PPSC contributes to the federal government's response to the National Inquiry into Missing and Murdered Indigenous Women and Girls' Calls for Justice. In 2021, the PPSC received $23.5 million over three (3) years to implement initiatives that will increase the support to victims of violence, promote culturally competent services to victims, incorporate Indigenous justice approaches and help address the overrepresentation of Indigenous persons in the criminal justice system.

In the next three years, the PPSC will a) increase the capacity to engage with Indigenous victims, witnesses, and communities b) create and staff four (4) Inuktitut-speaking Inuit paralegal positions in Nunavut; c) develop and pursue a one-time engagement strategy with victims, Elders and community leaders of First nations, Métis and Inuit communities currently served by the PPSC; and d) improve the Inuit Justice training curriculum and develop national training on Indigenous justice-related issues that reflect First nations and Métis realities.

The PPSC prosecutes a variety of offences created by federal statutes in support of the mandates and policies of other federal organizations, such as Environment and Climate Change Canada, Fisheries and Oceans Canada, Canada Border Services Agency, Employment and Social Development Canada and Health Canada.

Regulatory prosecutions represent a fundamental part of the PPSC mandate and PPSC has dedicated regulatory prosecution teams across the country that have experience in prosecuting offences pursuant to over 75 regulatory statutes and regulations aimed at protecting the environment and the safety, health, economic security, general welfare of the Canadian public. These statutes include the Canadian Environmental Protection Act, 1999 (CEPA), the Fisheries Act, the Canada Wildlife Act, Species at Risk Act, Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act (WAPPRIITA) as well as, the Immigration and Refugee Protection Act (IRPA) and the Customs Act.

Although many regulatory cases are routine, some are resource-intensive and complex and receive considerable media attention. Past examples include prosecutions under:

• the Railway Safety Act and Fisheries Act for offences arising out of the tragic train derailment in Lac Mégantic;
• the Immigration and Refugee Protection Act of individuals on migrant ships who arrived off the coast of British Columbia in 2009 and 2010;
• the Fisheries Act of Mi'kmaq fishermen for fishing lobster when the commercial season was closed;
• the Canadian Environmental Protection Act, 1999, for unlawfully importing into Canada vehicles that do not conform to prescribed vehicle emissions standards. In this case, Volkswagen AG was sentenced to pay environmental fines totaling $196.5 million following a guilty plea; and
• The Quarantine Act for offences arising out of breaches by returning travelers of the mandatory isolation orders during the Covid-19 pandemic. So far, 32 prosecutions have been instituted under the Quarantine Act.

In prosecuting particularly complex regulatory offences, prosecutors are expected to have regard to the policy objectives of the investigative agencies and often provide advice and work closely with investigators prior to charges being laid. They also consult with counsel in the Department of Justice departmental legal service units who are the subject matter experts on the various statutes and regulations.

In addition to the regulatory regional prosecutions teams, the PPSC Headquarters (HQ) Counsel Group also provides advice and support to regulatory enforcement agencies and their legal service units at the investigative stage and in developing policies to help the investigation and prosecution of regulatory offences.

In particular, and as part of this regulatory prosecutions mandate, PPSC HQ counsel have been actively engaged since the onset of the COVID-19 pandemic with federal policy makers and enforcement partners to ensure that federal measures, such as those under the Quarantine Act, can be effectively enforced and prosecuted. Counsel in each PPSC regional office have been identified to deal with pre-charge advice and prosecutions arising out of these measures with their efforts coordinated by HQ counsel.

The PPSC uses cost recovery to cover most of its costs for prosecuting offences under regulatory statutes. In effecting cost recovery for its prosecution services, the PPSC looks to the government organization whose minister is responsible for the regulatory legislation creating the offence underlying the prosecution. More detailed information about cost recovery is provided in the "Departmental Financial Management Operations" section located at Tab 1.

Finally, charges may, from time to time be laid under federal regulatory statutes against government departments, Crown corporations or their employees. These typically arise in matters related to workplace safety and environmental protection and are commonly referred to as PPSC "R v R" prosecutions. As an independent prosecution service, the PPSC prosecutes such offences when they arise.

The PPSC leads cases involving economic crimes committed under the Criminal Code and other federal statutes. It has jurisdiction to initiate proceedings related to fraud offences pursuant to section 380 of the Criminal Code. Other than the Criminal Code, other federal statutes contain offences for economic crimes for which the PPSC has the jurisdiction to conduct prosecutions. The Income Tax Act, the Excise Tax Act, 2001, the Competition Act and the Corruption of Foreign Public Officials Actare some of the legislation that generates the largest number of criminal prosecutions initiated by the PPSC.

Federal Legislation

Income Tax Act and Excise Tax Act, 2001

The PPSC prosecutes offences under the statutes enforced by the Canada Revenue Agency (CRA) and the Royal Canadian Mounted Police, notably those dealing with tax evasion and contraband tobacco and cannabis. Specialized PPSC prosecutors provide advice during the investigative stage, conduct prosecutions, and provide training to investigators. CRA investigations focus on complex tax evasion schemes, including cross-border crime and offences committed by organized groups.

Competition Act

The PPSC provides legal advice to the Competition Bureau on criminal investigations conducted by the Bureau with respect to the statutes administered and enforced by it—such as the Competition Act, the Consumer Packaging and Labelling Act, the Textile Labelling Act and the Precious Metals Marking Act—and conducts prosecutions under those statutes.

The National Capital Regional Office of the PPSC handles most of this work nationally through its Competition Law Section (CLS). CLS counsel provide advice and work closely with investigators, usually from the outset of investigations, which are often legally and factually complex.

Corruption of Foreign Public Officials Act

The Corruption of Foreign Public Officials Act was enacted in 1999 to implement the Organization for Economic Co-operation and Development (OECD) Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, which was signed by Canada in 1997.

The Act creates a criminal offence in Canada for anyone who pays, offers, or agrees to pay or offer a benefit of any kind to a foreign public official in order to obtain or retain an advantage in the course of business. The Act was amended in 2013 to, among other things, increase the maximum penalty to 14 years' imprisonment and expand Canadian jurisdiction over the offence based solely on the nationality of the accused.

Fraud against the federal government

The Federal Accountability Act enacted amendments to the Financial Administration Act, which came into effect on March 1, 2007, creating new indictable offences. These offences deal specifically with acts of fraud against the federal government committed by those having access to funds or other valuable public assets by virtue of their employment within a federal organization or as a result of a contractual relationship with the government for the provision of goods or services. Both the PPSC and provincial prosecution services have jurisdiction to prosecute these offences.

Integrated Market Enforcement Teams (IMETs)

The IMET initiative was established in 2002, following the collapse of large corporate organizations in the United States and consequent criminal investigations and prosecutions, to strengthen the capacity to investigate serious corporate fraud offences in Canada. IMETs are multidisciplinary teams comprised of RCMP investigators and prosecutors from the PPSC.

Following amendments to the Criminal Code in 2003, both the federal and provincial Attorneys General have authority to prosecute capital market offences. Agreements between the provinces and the PPSC provide a right of first refusal in IMET cases to the provincial prosecution services of British Columbia, Alberta, Ontario and Quebec. The PPSC will prosecute cases when a provincial Attorney General declines to prosecute or when a province invites the PPSC to join the prosecution team.

On 19 September, 2018, Part XXII.1 of the Criminal Code came into force creating a new regime called "remediation agreements", also known as deferred prosecution agreements, which will suspend the prosecution of a corporation for certain listed offences in order to implement the terms of the agreement.

Considerations

The remediation agreement regime allows the prosecutor, with the consent of the Attorney General (at the federal level, the DPP) and under certain conditions, including whether it is in the public interest, to invite the corporation to negotiate a remediation agreement that is ultimately submitted for court approval. The aim of the regime is to foster early self-disclosure by corporations and requires admission of wrongdoing and cooperation with the authorities to bring individuals to justice, as well as to pay penalties and restitution to victims. The regime allows corporations to avoid the negative impact that a prosecution and conviction of the corporation might have on innocent stakeholders, such as, for example, loss of employment. Another important feature of these agreements, where appropriate, is the independent monitoring of the corporation to satisfy the prosecutor and the court that measures are put in place to prevent the corporation from re-offending. If no agreement is reached or the court finds that the corporation has breached a term of the agreement, the prosecution is recommenced.

PPSC prosecutors examine the appropriateness of a remediation agreement for corporations charged with listed offences (mostly corruption and fraud) and make a recommendation to the DPP when satisfied that the statutory conditions are met for sending an invitation to negotiate. As the regime is new and selective, the PPSC anticipates no more than a handful of these agreements being negotiated and reached each year going forward, with a possible increase once the regime gains momentum and recognition through implementation and early self-disclosures.

To date, no remediation agreement has been entered into by the PPSC. ███████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████

Moreover, the PPSC has incorporated guidelines in the PPSC Deskbook for the administration of the remediation agreement regime. It is also deploying efforts to educate stakeholders on the features of the regime to incentivize interest and early self-disclosure of offences, which may otherwise go undetected.

PPSC is taking exceptional steps to prosecute infractions of Indian Act bylaws aimed at controlling the spread of COVID-19.

Background

For more than three decades, a gap has existed with respect to the prosecution of Indigenous Community laws (ICL). PPSC has implemented an interim measure targeted at specifically addressing the prosecution of bylaws passed pursuant to the Indian Act and directly related to the pandemic.

In order for PPSC to assume jurisdiction to prosecute Indian Act bylaws, an operational protocol agreement between PPSC, the community and the police of jurisdiction is required to make clear that any charges PPSC will consider prosecuting have been initiated on behalf of the government of Canada and will be prosecuted on behalf of that government not on behalf of the community itself.

To date, 11 such protocols have been finalized nationally and discussions are ongoing with a number of other communities.

Considerations

As a result of PPSC's statutory mandate to conduct prosecutions on behalf of the Attorney General of Canada, the definition of Attorney General in the Criminal Code and the wording of the legislation under which ICL are enacted, PPSC has taken the position, ████████████████████████████████████████ that PPSC's jurisdiction to prosecute ICL is limited to bylaws passed under the Indian Act. As a result, the many communities that enact bylaws pursuant to the First Nations Land Management Act and self-government agreements are not included in this interim measure.

Before PPSC can prosecute individual bylaws they need to be reviewed to ensure their validity both under the Indian Act and the Charter of Rights and Freedoms. ICL present a unique challenge since they cannot be presumed valid as they are regulations made pursuant to a federal statute but without undergoing the same legal review as other federal regulations. ████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████████

Since January of 2021, ISC will review draft bylaws submitted by a community for validity as part of the current limited COVID-19 initiative. Bylaws passed prior to 2015 were reviewed as part of the former Ministerial disallowance power that has been removed from the Indian Act. This leaves a gap with no means of review for those bylaws passed since 2015 but before ISC agreed to conduct draft bylaw reviews commencing in January of this year. Both ISC and DOJ take the view that it is inappropriate for them to review bylaws in this latter category.

Beyond this function not falling within its mandate, the PPSC does not have the resources and expertise with respect to statutory review in general or the limits of the law-making authority under the Indian Act in particular to be able to undertake the kind of review that is required. As a result, PPSC is taking the position that we cannot agree to prosecute bylaws that have not be subject to review leaving a significant gap for some communities.

In terms of resources, PPSC will continue to absorb the costs of conducting these prosecutions during the course of the current crisis. Should the long-term solution to this issue involve PPSC prosecuting a range of ICL on an ongoing basis, a new source of funding will have to be identified.

This initiative is not a substitute for the long-term examination of this issue but it may serve as a valuable exercise to inform broader future discussions while at the same time contributing to current urgent needs.

Outstanding Supreme Court of Canada (SCC) Appeals

Yasin Mahad Ali v. Her Majesty the Queen (39590) – This appeal, as of right, focuses on the legal basis for undertaking a strip search established in R v Golden, 2001 SCC 83. The appellant was convicted of possession of cocaine for the purpose of trafficking after trial. The primary evidence against him was found during a strip search. At the Alberta Court of Appeal, the central issue concerned whether the police had reasonable and probable grounds to conduct the strip search. In dismissing the appeal, the majority of the Court of Appeal found that the police had those grounds in consideration of the overall context of the investigation, the execution of the search warrant and the observed movements of the appellant. The dissent disagreed. Given the serious implications of strip searches on the personal freedom and dignity of individuals, Veldhuis JA opined that a better evidentiary foundation should be laid and concluded that there was no legal basis to conduct that search here. A hearing date has not been scheduled.

Matthew Stairs v. Her Majesty the Queen (39416) – This appeal, as of right, is centered on a search incident to an arrest for a domestic violence offence following a lawful warrantless entry into a dwelling. Police arrested the appellant in the basement of the dwelling for assault. A search of the living room area of the basement incident to the arrest led to the discovery of over 90 grams of methamphetamine in plain view. The appellant was charged and subsequently convicted of assault, breach of probation, and possession of drugs for the purpose of trafficking. The appellant appealed his conviction of possession for the purpose of trafficking. A majority of the Court of Appeal for Ontario dismissed the appeal. It held that the trial judge was right to conclude that the police had sufficient grounds to make the arrest and that a Feeney warrant was not required to make the arrest inside the home. The majority also held that the trial judge correctly decided that the discovery and seizure of the methamphetamine did not breach the appellant's rights protected by s. 8 of the Charter. The dissenting judge agreed with the majority's analysis and conclusion concerning the police entry into the residence, the validity of the grounds to arrest the appellant, and that the police did not require a Feeney warrant. He disagreed, however, with the majority's s. 8 breach analysis. In his view, the officers did not have sufficient objective reasonable grounds to conduct a safety search incident to arrest of the basement living area. Given his conclusion, he would have allowed the appeal and entered an acquittal. The Attorney General of Ontario and the Canadian Civil Liberties Association have intervened in this appeal. The hearing is November 2, 2021.

Her Majesty the Queen in Right of Canada v. Cheyenne Sharma (39346) – This Crown sentence appeal, by leave, from the Ontario Court of Appeal deals with the constitutionality of ss. 742.1(c) and 742.1(e) (ii) of the Criminal Code which remove the availability of a conditional sentence for importation of drugs. The majority of the Ontario Court of Appeal agreed that the impugned provisions contravene both ss. 7 and 15 and could not be saved by s. 1 of the Charter. The Court of Appeal thus allowed the appeal, struck down the two provisions, set aside Ms. Sharma's custodial sentence, and would have imposed a custodial sentence of 24 months less a day to be served conditionally but, as Ms. Sharma had served her custodial sentence, substituted a sentence of time served. The Crown filed an application for leave to appeal, which was granted on January 14, 2021. Bill C-22 was tabled in Parliament three days after the filing of the notice of appeal and notice of constitutional questions. Bill C-22, among other things, would have repealed the restrictions on conditional sentences found unconstitutional by the Ontario Court of Appeal. The Crown filed a motion to adjourn the hearing and vacate the timelines, pending the outcome of the Bill. That motion was granted on April 23, 2021. When the election was called on August 15, 2021, Bill C-22 died on the Order Paper. The Crown will continue with this appeal to defend the constitutionality of ss. 742.1(c) and 742.1(e) (ii) and will file her factum on November 15. The Attorneys General of Ontario and Saskatchewan have filed notices of intervention; the Attorneys General of Quebec, Alberta and British-Columbia have indicated their interest in doing the same. It is expected that other interveners will file intervention motions once the Crown appellant factum is filed. The Court has not scheduled a hearing date, but it is expected that the appeal will be heard next winter or early spring of 2022.

Cameron O'Lynn Parranto, et al. v. Her Majesty the Queen, et al. (39227) – At issue in this sentence appeal, by leave, is the 7-year starting-point established by the Alberta Court of Appeal for sentences for commercial trafficking in fentanyl. The appellants were sophisticated wholesale fentanyl traffickers. Both plead guilty to a number of drug charges. Parranto was found in possession of half-million doses of fentanyl and a handgun within three months of his release on charges of possession of a significant quantity of fentanyl and a loaded handgun. He was sentenced to 11 years in jail. Felix, also a cocaine trafficker, was sentenced to 7 years in jail. The Crown appealed both sentences and asked the Alberta Court of Appeal to establish a starting point sentence for wholesale fentanyl trafficking. A special 5-judge panel was convened for that purpose and the sentence appeals were heard together. The Court noted that the sentencing judge improperly reduced the appellants' sentences for unsupported mitigating factors, provided multiple reductions for totality, misapprehended the starting points of other hard drugs cited in support of the parity analysis, and ultimately imposed demonstrably unfit sentences. The Court of Appeal established a 9-year starting point for wholesale fentanyl trafficking and increased the sentence of Parranto to 14 years, and the sentence of Felix to 10 years. Both successfully applied for leave to appeal their sentences to the Supreme Court of Canada on the basis that the Court of Appeal erred in fixing a starting point for wholesale fentanyl trafficking and further erred in substituting its own sentence for that of the sentencing judge. The Attorney General of Alberta, Attorney General of Manitoba, Criminal Trial Lawyers' Association, Canadian Civil Liberties Association, Aboriginal Legal Services, Legal Aid Society of Alberta, and the Association québécoise des avocats et des avocates de la défense intervened in this appeal. The hearing was held via Zoom on May 18, 2021 with judgment being reserved.

Interventions

Jesse Dallas Hills v. Her Majesty the Queen (39338) and Her Majesty the Queen v. Ocean William Storm Hilbach, et al. (39348) – These two appeals on leave raise the question of the constitutionality of mandatory minimum penalties for intentionally discharging a firearm at a place one knows to be occupied, contrary to s. 244.2(3)(b), and for robbery with a firearm, contrary to ss. 344(1)(a) and (1)(a.1) of the Criminal Code. This question is identical to that raised in our own cases, R v Itturiligaq, 2020 NUCA 6 and R v Ookowt, 2020 NUCA 5, for which leave to appeal has been sought by the accused and have been held in abeyance pending the Court's decision in Hills and Hilbach. On April 22, 2021, the DPP filed notices of intervention based on the constitutional questions. The Attorneys General of Ontario, Saskatchewan, and Nova Scotia have also filed notices of intervention. In addition, the British Columbia Civil Liberties Association, Criminal Lawyers' Association (Ontario), Canadian Bar Association, and Canadian Civil Liberties Association were granted leave to intervene. A hearing date has not been scheduled.

Date modified:

2022-02-16