Definition of Crown, Prosecutor and Attorney General

From Criminal Law Notebook

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), 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; ... 2013, c. 13, s. 2; 2014, c. 17, s. 1, c. 25, s. 2; 2015, c. 3, s. 44.


– CCC

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

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] 1 SCR 233, 1981 CanLII 173 (SCC), per McIntyre J (4:1)
  2. ↑ R v Parsons, 1984 CanLII 3584 (NL CA), per Mifflin JA (3:0)
  3. ↑ R v White, 1988 CanLII 7143 (NL CA), 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), 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
...
“Attorney General”

(a) subject to paragraphs (b.1) to (g), 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,
(b) with respect to Yukon, the Northwest Territories and Nunavut, or with respect to proceedings commenced at the instance of the Government of Canada and conducted by or on behalf of that Government in respect of a contravention of, a conspiracy or attempt to contravene, or counselling the contravention of, any Act of Parliament other than this Act or any regulation made under such an Act, means the Attorney General of Canada and includes his or her lawful deputy,
(b.1) with respect to proceedings in relation to an offence under subsection 7(2.01), means either 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,
(c) with respect to proceedings in relation to a terrorism offence or to an offence under section 57, 58, 83.12, 424.1 or 431.1 or in relation to an offence against a member of United Nations personnel or associated personnel under section 235, 236, 266, 267, 268, 269, 269.1, 271, 272, 273, 279 or 279.1, means either 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,
(d) with respect to proceedings in relation to
(i) an offence referred to in subsection 7(3.71), or
(ii) an offence referred to in paragraph (a) of the definition “terrorist activity” in subsection 83.01(1), where the act or omission was committed outside Canada but is deemed by virtue of subsection 7(2), (2.1), (2.2), (3), (3.1), (3.4), (3.6), (3.72) or (3.73) to have been committed in Canada,

means either 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,

(e) with respect to proceedings in relation to an offence where the act or omission constituting the offence
(i) constitutes a terrorist activity referred to in paragraph (b) of the definition “terrorist activity” in subsection 83.01(1), and
(ii) was committed outside Canada but is deemed by virtue of subsection 7(3.74) or (3.75) to have been committed in Canada,

means either 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,

(f) with respect to proceedings under section 83.13, 83.14, 83.28, 83.29 or 83.3, means either 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, and
(g) with respect to proceedings in relation to an offence referred to in sections 380, 382, 382.1 and 400, means either 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;

...
R.S., 1985, c. C-46, s. 2; ... 2012, c.1, s. 160, c. 19, s. 371; 2013, c. 13, s. 2; 2014, c. 17, s. 1, c. 25, s. 2; 2015, c. 3, s. 44.


– CCC

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

  1. ↑ R v Gabriel, 1999 CanLII 15050 (ON SC), (1999), 137 CCC (3d) 1, 26 C.R. (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), (1974), 18 CCC (2d) 516 (Ont. C.A.), per Estey J
  9. ↑ Pelletier, ibid.
  10. ↑ R v Smythe, [1971] 2 O.R. 209, at p. 216, affd. 1970 CanLII 29 (SCC), [1971] SCR 680, per Fauteux CJ
    Hauser, supra

Pending Definition (Sept 19, 2019)

s. 2
...
"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)

...


Pending Sept 19, 2019 Bill C-75 [1]

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), (1988), 5 O.R. (3d) 52 (H.C.J.), 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), 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 or 467.111; 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, 467.111, 467.12 or 467.13 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.


– CCC

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