Definition of Crown, Prosecutor and Attorney General

From Criminal Law Notebook
This page was last substantively updated or reviewed January 2023. (Rev. # 95366)

Crown

See also: Role of the Crown
See also: disclosure

The Crown includes victim services. However, disclosure obligations are not implicated in the records of victim services as the prosecutor does not have knowledge or control over those materials.[1]

  1. ↑ R v HT, 2008 NLTD 63 (CanLII), 850 APR 59, per Handrigan J

Prosecutor

Section 2 of the Code defines "prosecutor":

2
...
 “prosecutor” means the Attorney General or, where the Attorney General does not intervene, means the person who institutes proceedings to which this Act applies, and includes counsel acting on behalf of either of them;
...
 R.S., 1985, c. C-46, s. 2; R.S., 1985, c. 11 (1st Supp.), s. 2, c. 27 (1st Supp.), ss. 2, 203, c. 31 (1st Supp.), s. 61, c. 1 (2nd Supp.), s. 213, c. 27 (2nd Supp.), s. 10, c. 35 (2nd Supp.), s. 34, c. 32 (4th Supp.), s. 55, c. 40 (4th Supp.), s. 2; 1990, c. 17, s. 7; 1991, c. 1, s. 28, c. 40, s. 1, c. 43, ss. 1, 9; 1992, c. 20, s. 216, c. 51, s. 32; 1993, c. 28, s. 78, c. 34, s. 59; 1994, c. 44, s. 2; 1995, c. 29, ss. 39, 40, c. 39, s. 138; 1997, c. 23, s. 1; 1998, c. 30, s. 14; 1999, c. 3, s. 25, c. 5, s. 1, c. 25, s. 1(Preamble), c. 28, s. 155; 2000, c. 12, s. 91, c. 25, s. 1(F); 2001, c. 32, s. 1, c. 41, ss. 2, 131; 2002, c. 7, s. 137, c. 22, s. 324; 2003, c. 21, s. 1; 2004, c. 3, s. 1; 2005, c. 10, s. 34, c. 38, s. 58, c. 40, ss. 1, 7; 2006, c. 14, s. 1; 2007, c. 13, s. 1; 2012, c.1, s. 160, c. 19, s. 371; 2013, c. 13, s. 2; 2014, c. 17, s. 1, c. 23, s. 2, c. 25, s. 2; 2015, c. 3, s. 44, c. 13, s. 3, c. 20, s. 15; 2018, c. 21, s. 12; 2019, c. 13, s. 140; 2019, c. 25, s. 1; 2022, c. 17, s. 1.

– CCC (CanLII), (DOJ)

Note up: 2


Defined terms: "Attorney General" (s. 2)

Reference to prosecutor under Part XXVII (Summary Convictions):

785
...
 "prosecutor" means the Attorney General or, where the Attorney General does not intervene, the informant, and includes counsel or an agent acting on behalf of either of them;
...
 R.S., 1985, c. C-46, s. 785; R.S., 1985, c. 27 (1st Supp.), ss. 170, 203; 1992, c. 1, s. 58; 1995, c. 22, s. 7, c. 39, s. 156; 1996, c. 19, s. 76; 1999, c. 25, s. 23(Preamble); 2002, c. 13, s. 78; 2006, c. 14, s. 7; 2013, c. 11, s. 4.

– CCC (CanLII), (DOJ)

Note up: 785


Defined terms: "Attorney General" (s. 2)

Police Officer as Prosecutor

A police officer may not act as prosecutor of a straight indictable offences.[1] A police officer may however act as agent for the Attorney General in reporting the Crown's election, including an election to proceed by indictment.[2]

The prosecution of a summary offence by a police officer does not violate s. 11(d) of the Charter.[3]

  1. ↑ R v Edmunds, 1981 CanLII 173 (SCC), [1981] 1 SCR 233, per McIntyre J (4:1)
  2. ↑ R v Parsons, 1984 CanLII 3584 (NL CA), 14 CCC (3d) 490, per Mifflin JA (3:0)
  3. ↑ R v White, 1988 CanLII 7143 (NL CA), 41 CCC (3d) 236, per Marshall JA (5:0) ("...police may prosecute summary conviction offences since this practice is sanctioned by the Code and has been found not to offend the Charter.")

The Crown Attorney

The Crown Attorney is invested with the authority to conduct prosecutions on behalf of the Director of Public Prosecutions for the province or Federal government.[1]

The choice of who is to prosecute an accused person is part of the Attorney General's core prosecutorial discretion and is not reviewable short of an abuse of process. [2]

The Crown's role is to "assistant to the Court in the furtherance of justice, and not to act as counsel for any particular person or party."[3]

  1. ↑ BC: Crown Counsel Act, RSBC 1996, c 87
    MB: Crown Attorneys Act, CCSM c C330
    ONT: Crown Attorneys Act, RSO 1990, c C.49
    QC: An Act respecting the director of Criminal and Penal Prosecutions, RSQ, c D-9.1.1
    NB: An Act Respecting the Role of the Attorney General, RSNB 2011, c 116
    NS: Public Prosecutions Act, SNS 1990, c 21
    FED: Director of Public Prosecutions Act, SC 2006, c 9, s 121
  2. ↑ R v Hundert, 2010 ONSC 6759 (CanLII), OJ No 5300, per Kelly J, at paras 39 to 40
  3. ↑ R v Boucher, 1954 CanLII 3 (SCC), [1955] SCR 16, per Locke J, at p. 25

The Attorney General

The Attorney General's role is to represent the public interest in criminal prosecutions.[1]

The AG derives its power from its role as advisor to the Crown.[2]

Independence

Under the authority of the Constitution, the AG is expected to act independently from partisan concerns when exercising the authority over prosecutions.[3] One of their key roles is to start, manage and terminate prosecutions, which requires that they will act without political pressures.[4]

In the UK, the Attorney General never sits in cabinet, however, is Canada the AG will always be part of government. As a result, the independence of prosecutions is even more important than in the UK.[5]

Division of Prosecutions

Only Criminal charges under the Criminal Code may be prosecuted by the Attorney General of the provincial government. Violations of other federal acts, such as the food and drug act, may be prosecuted by the Attorney general of Canada.[6]

For the purposes of all federal acts involving criminal law except those in the Criminal Code, the "Attorney General" refers to the Attorney General of Canada and their agents. The provincial attorney general is excluded from having authority over such matters.[7]

The Attorney General of Canada may prosecute conspiracy charges under the Criminal Code. [8]

Where there is an absence of involvement of federal prosecutors, there can be authority for the provincial Attorney General to prosecute.[9]

2 In this Act,
...

Attorney General
(a) with respect to proceedings to which this Act applies, means the Attorney General or Solicitor General of the province in which those proceedings are taken and includes his or her lawful deputy or, if those proceedings are referred to in subsection 2.3(1), the Attorney General of Canada or the Attorney General or Solicitor General of the province in which those proceedings are taken and includes the lawful deputy of any of them,
(b) means the Attorney General of Canada and includes his or her lawful deputy with respect to
(i) Yukon, the Northwest Territories and Nunavut, or
(ii) proceedings commenced at the instance of the Government of Canada and conducted by or on behalf of that Government in respect of an offence under any Act of Parliament — other than this Act or the Canada Elections Act — or any regulation made under such an Act, and
(c) means the Director of Public Prosecutions appointed under subsection 3(1) of the Director of Public Prosecutions Act with respect to proceedings in relation to an offence under the Canada Elections Act; (procureur général)

...
 R.S., 1985, c. C-46, s. 2; R.S., 1985, c. 11 (1st Supp.), s. 2, c. 27 (1st Supp.), ss. 2, 203, c. 31 (1st Supp.), s. 61, c. 1 (2nd Supp.), s. 213, c. 27 (2nd Supp.), s. 10, c. 35 (2nd Supp.), s. 34, c. 32 (4th Supp.), s. 55, c. 40 (4th Supp.), s. 2; 1990, c. 17, s. 7; 1991, c. 1, s. 28, c. 40, s. 1, c. 43, ss. 1, 9; 1992, c. 20, s. 216, c. 51, s. 32; 1993, c. 28, s. 78, c. 34, s. 59; 1994, c. 44, s. 2; 1995, c. 29, ss. 39, 40, c. 39, s. 138; 1997, c. 23, s. 1; 1998, c. 30, s. 14; 1999, c. 3, s. 25, c. 5, s. 1, c. 25, s. 1(Preamble), c. 28, s. 155; 2000, c. 12, s. 91, c. 25, s. 1(F); 2001, c. 32, s. 1, c. 41, ss. 2, 131; 2002, c. 7, s. 137, c. 22, s. 324; 2003, c. 21, s. 1; 2004, c. 3, s. 1; 2005, c. 10, s. 34, c. 38, s. 58, c. 40, ss. 1, 7; 2006, c. 14, s. 1; 2007, c. 13, s. 1; 2012, c.1, s. 160, c. 19, s. 371; 2013, c. 13, s. 2; 2014, c. 17, s. 1, c. 23, s. 2, c. 25, s. 2; 2015, c. 3, s. 44, c. 13, s. 3, c. 20, s. 15; 2018, c. 21, s. 12; 2019, c. 13, s. 140; 2019, c. 25, s. 1; 2022, c. 17, s. 1.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 2

Concurrent jurisdiction

2.3 (1) The proceedings for the purposes of paragraph (a) of the definition Attorney General in section 2 are

(a) proceedings in relation to an offence under subsection 7(2.01) [extraterritorial offences in relation to cultural property], (2.3)[space station – Canadian crew members] or (2.31) [space station – crew members of partner states] or section 57 [forgery of or uttering forged passport], 58 [fraudulent use of certificate of citizenship], 83.12 [offences — freezing of property, disclosure or audit], 103 [importing or exporting firearms knowing it is unauthorized], 104 [unauthorized importing or exporting], 121.1 [selling, etc., of tobacco products and raw leaf tobacco], 380 [fraud], 382 [manipulating stock exchange], 382.1 [insider trading], 400 [false prospectus], 424.1 [threat against United Nations or associated personnel], 431.1 [attack on premises, accommodation or transport of United Nations or associated personnel], 467.11 [participation in activities of criminal organization] or 467.111 [recruitment of members by a criminal organization] or in relation to any terrorism offence;
(b) proceedings in relation to an offence against a member of United Nations personnel or associated personnel under section 235 [punishment for murder – max and min penalties], 236 [manslaughter], 266 to 269 [forms of assault], 269.1 [torture], 271 to 273 [sexual assault-related offences], 279 [kidnapping and forcible confinement] or 279.1 [hostage taking];
(c) proceedings in relation to an offence referred to in subsection 7(3.71) [extraterritorial offences re UN or associated personnel] or in relation to an offence referred to in paragraph (a) of the definition terrorist activity in subsection 83.01(1) [terrorism offences – definitions] if the act or omission constituting the offence was committed outside Canada and is deemed under any of subsections 7(2) [extraterritorial offences re aviation], (2.1) to (2.21), (3) , (3.1) , (3.72) [extraterritorial offences re explosives] and (3.73) [extraterritorial offences re financing of terrorism] to have been committed in Canada;
(d) proceedings in relation to an offence if the act or omission constituting the offence is a terrorist activity referred to in paragraph (b) of the definition terrorist activity in subsection 83.01(1) and was committed outside Canada and is deemed by virtue of subsection 7(3.74) [extraterritorial offences re party to terrorism] or (3.75) [extraterritorial offences re terrorist activities] to have been committed in Canada;
(e) a proceeding in relation to an offence under section 811 [breach of recognizance] that arises out of a breach of a recognizance made under section 810.01 [peace bond – organized crime] or 810.011 [terror peace bond], if he or she has given consent to the information referred to in those sections; and
(f) proceedings under section 83.13 [seizure and restraint of assets re terrorism offences], 83.14 [forfeiture of property re terrorism offences], 83.222 [counselling commission of terrorism offence – warrant of seizure], 83.223 or 83.3 [terrorism recognizance].
For greater certainty — Attorney General of Canada

(2) For greater certainty, the Attorney General of Canada or his or her lawful deputy may, in respect of an offence referred to in subsection (1) or an offence under any Act of Parliament — other than this Act or the Canada Elections Act — or any regulation made under such an Act, exercise all the powers and perform all the duties and functions assigned to the Attorney General by or under this Act, and those powers include the power to commence and to conduct

(a) a proceeding for conspiring or attempting to commit such an offence or for being an accessory after the fact or counselling a person to be a party to such an offence;
(b) a proceeding in relation to a criminal organization offence that arises out of conduct that relates, in whole or in part, to any offence for which he or she has the power to commence and to conduct a proceeding;
(c) a proceeding in relation to an offence referred to in section 354 [possession of stolen property], 355.2 [trafficking in property obtained by crime], 355.4 [possession of property obtained by crime — trafficking] or 462.31 [money laundering] that arises out of conduct that relates, in whole or in part, to any offence for which he or she has the power to commence and to conduct a proceeding or out of any act or omission that, if it had occurred in Canada, would have constituted such an offence;
(d) a proceeding for the breach of any court order made in the course of a proceeding commenced or conducted by him or her;
(e) a proceeding for the failure to comply with any condition associated with the release of a person by a peace officer or other competent authority — including a condition to appear at a specified time and place — in relation to any offence for which he or she has the power to commence and to conduct a proceeding; and
(f) any ancillary proceedings in relation to any offence for which he or she has the power to commence and to conduct a proceeding.
For greater certainty — Director of Public Prosecutions

(3) For greater certainty, in respect of an offence under the Canada Elections Act, the Director of Public Prosecutions, subject to the Director of Public Prosecutions Act, exercises the powers and performs the duties and functions of the Attorney General of Canada referred to in subsection (2).

2019, c. 25, s. 2; 2019, c. 25, s. 404.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 2.3(1), (2) and (3)

The Attorney General is obligated to make decisions regarding prosecutions in a "judicial manner."[10]

  1. ↑ R v Gabriel, 1999 CanLII 15050 (ON SC), 137 CCC (3d) 1, 26 CR (5th) 364 (Ont. S.C.), per Hill J ("The Attorney General represents the public interest in the prosecution of crime.")
  2. ↑ Krieger v Law Society of Alberta, 2002 SCC 65 (CanLII), [2002] 3 SCR 372, per Iacobucci and Major JJ, at para 25 ("This power finds its source in the Attorney General’s general role as the official legal advisor to the Crown.")
  3. ↑ Krieger, supra (“It is a constitutional principle that the Attorneys General of this country must act independently of partisan concerns when exercising their delegated sovereign authority to initiate, continue or terminate prosecutions.”)
  4. ↑ Kieger, ibid.(“The gravity of the power to bring, manage and terminate prosecutions which lies at the heart of the Attorney General’s role has given rise to an expectation that he or she will be in this respect fully independent from the political pressures of the government.”)
  5. ↑ Krieger v Law Society of Alberta, supra, at para 29 ("Membership in Cabinet makes the principle of independence in prosecutorial functions perhaps even more important in this country than in the U.K.")
  6. ↑ R v Wetmore, 1983 CanLII 29 (SCC), [1983] 2 SCR 284, per Laskin CJ
    A.G. (Can.) v Can. Nat. Transportation, Ltd., 1983 CanLII 36 (SCC), [1983] 2 SCR 206, per Laskin CJ - Federal Govt authority to prosecute under the Combines Investigation Act is constitutional
  7. ↑ R v Hauser, 1979 CanLII 13 (SCC), [1979] 1 SCR 984, per Pigeon J
  8. ↑ R v Pelletier, 1974 CanLII 596 (ON CA), 18 CCC (2d) 516, per Estey J
  9. ↑ Pelletier, ibid.
  10. ↑ R v Smythe, [1971] 2 OR 209(*no CanLII links) , at p. 216, affd. 1970 CanLII 29 (SCC), [1971] SCR 680, per Fauteux CJ
    Hauser, supra

Delegating Authority

Unless prohibited by statute, the Attorney General of Canada may delegate a prosecution the provincial Attorney General and vice versa.[1]

  1. ↑ R v Luz, 1988 CanLII 4529 (ON SC), OR (3d) 52, per Campbell J, at p. 59 ("The power to prosecute is that of the Attorney General... He or she may prosecute personally or by counsel or agent. Unless prohibited by statute he may delegate any of his powers to subordinate officers or to counsel instructed on his behalf. No statutory power is necessary for such delegation. The power to delegate to counsel or agent is a functional necessity of the office, requiring no statutory authority.")
    see also Gentles v Ontario (Attorney General), 1996 CanLII 8166 (ON SC), 39 CRR (2d) 319, per Hurley J, at paras 46 to 48

Attorney General of Canada

Powers of the Attorney General of Canada

467.2 (1) Notwithstanding the definition of “Attorney General” in section 2, the Attorney General of Canada may conduct proceedings in respect of

(a) an offence under section 467.11 [participation in criminal organization] or 467.111 [recruitment of members — criminal organization]; or
(b) another criminal organization offence where the alleged offence arises out of conduct that in whole or in part is in relation to an alleged contravention of an Act of Parliament or a regulation made under such an Act, other than this Act or a regulation made under this Act.

For those purposes, the Attorney General of Canada may exercise all the powers and perform all the duties and functions assigned to the Attorney General by or under this Act.

Powers of the Attorney General of a province

(2) Subsection (1) does not affect the authority of the Attorney General of a province to conduct proceedings in respect of an offence referred to in section 467.11 [participation in criminal organization], 467.111 [recruitment of members — criminal organization], 467.12 [commission of offence for criminal organization] or 467.13 [instructing commission of offence for criminal organization] or to exercise any of the powers or perform any of the duties and functions assigned to the Attorney General by or under this Act.
1997, c. 23, s. 11; 2001, c. 32, s. 28; 2014, c. 17, s. 11. [repealed 2019, c. 25, s. 185]

– CCC (CanLII), (DOJ)

Note up: 467.2

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