The Federal Prosecution Service
DESKBOOK

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Part II
THE FEDERAL PROSECUTION SERVICE- ORGANIZATION AND MANDATE
Chapter 5

Table of Contents

5 THE FEDERAL PROSECUTION SERVICE

5.1 INTRODUCTION

5.2 ORGANIZATION
5.2.1 The Central Component: The Criminal Law Branch
5.2.1.1 The Criminal Law Section
5.2.1.2 Strategic Prosecution Policy Section
5.2.2 Regional Component
5.2.3 Industry Canada - Departmental Legal Services Unit

5.3 MANDATE

5.4 RESPONSIBILITIES
5.4.1 Prosecution Function
5.4.1.1 In-house Prosecutors
5.4.1.2 Agents
5.4.2 Prosecution-related Functions
5.4.2.1 General
5.4.2.2 Integrated Proceeds of Crime (IPOC) Units

5.5 MANAGEMENT

5.6 TRAINING
5.6.1 In-house Prosecutors
5.6.2 Agents

5.7 APPENDIX
5.7.1 Addresses for the Federal Prosecution Service components

5 THE FEDERAL PROSECUTION SERVICE

5.1 Introduction

The purpose of this policy is to provide an overview of the role and mandate of the Federal Prosecution Service, which is responsible for the delivery of prosecution services in Canada at the federal level. Although the function has existed for several decades, the expression “Federal Prosecution Service” was officially coined by the Deputy Minister of Justice and Deputy Attorney General of Canada on October 21, 1996¹, in which he stated as follows:

Let me take as an example the criminal litigation function. One of the reasons I am very impressed with the work being done to develop a long-term plan for what is being called the Federal Prosecution Service, is because it signals a number of ways in which we can be a major leader in the criminal justice system, that extend beyond simply maintaining our strong prosecutorial role. Over the next five years, this means, for example, being a leader in implementing an innovative litigation strategy that deals more effectively and efficiently with minor criminal matters, thereby leaving the time and resources for most serious cases; it means promoting procedural reform; in the North, it means being a leader in supporting innovative restorative justice approaches for aboriginal people; it means implementing an aggressive approach to proceeds of crime; it means implementing a strong agents supervision program to ensure our agents are effectively implementing our prosecution policies; it means being an active participant in identifying and resolving (with Policy and others) the complex policy issues that arise within our criminal litigation, such as equality issues or difficult policy questions relating to jury challenges; it means being a strong voice on key policy issues like extradition, reforming the Official Secrets Act and drug law reform; it means being proactive in identifying with others how we deal with crime that crosses borders or is organized on a global level.

I think this kind of leadership role is important for each of our core centrally funded activities.

The prosecutorial discretion of the Attorney General of Canada must be exercised independently and in an objective and consistent fashion. The independence required to exercise the prosecution function has been protected through a number of safeguards. The consistency required in the exercise of discretion is controlled through public guidelines contained in the Federal Prosecution Service Deskbook.

5.2 Organization²

The Federal Prosecution Service (FPS) is a national entity which constitutes an integral part of the Department of Justice. It is comprised of a central component, the Criminal Law Branch, and has components throughout the country in each of the Regional Offices of the Department.

5.2.1 The Central Component: The Criminal Law Branch

The Criminal Law Branch, which is headed by the Assistant Deputy Attorney General (ADAG) (Criminal Law), is located at Justice Headquarters in Ottawa and is comprised of two sections: the Criminal Law Section and the Strategic Prosecution Policy Section.

5.2.1.1 The Criminal Law Section

A Senior General Counsel (Criminal Law) manages this Section under the general direction of the ADAG (Criminal Law). It consists of the Ottawa/Hull Prosecution Group, the International Assistance Group (IAG), and a group of criminal law specialists, including the Supreme Court of Canada Criminal Appeals Coordinator and Environmental Prosecutions Coordinator.

This Section assists in the exercise of functional responsibility for federal criminal litigation except for drugs, proceeds of crime and national security matters. This includes all tax and environmental prosecutions, and prosecutions under the Immigration Act and the Fisheries Act.

The Supreme Court of Canada Criminal Appeals Coordinator coordinates with the Litigation Committee any criminal cases before the Supreme Court of Canada in which the Queen in right of Canada is a party or intervener. The Section advises on criminal law and federal enforcement policy and programs and is also responsible for the ongoing review and updating of the Federal Prosecution Service Deskbook. Finally, the Section provides direction, assistance and support to the northern offices and sub-offices.

The International Assistance Group handles mutual assistance and extradition requests, develops extradition and mutual assistance policies and negotiates treaties. It discharges the Minister's duties under the Extradition Act, the Mutual Legal Assistance in Criminal Matters Act, and related treaties or international agreements.

The Ottawa/Hull Prosecution Group is responsible for all prosecutions in the National Capital Region and supervises prosecution agents in eastern and northern Ontario and in western Quebec.

5.2.1.2 Strategic Prosecution Policy Section

A Senior General Counsel manages this section under the general direction of the ADAG (Criminal Law). It has the primary Headquarters responsibility for providing assistance and direction on all drug, money laundering and proceeds of crime investigations, wiretap issues and prosecutions; on national security issues; and with respect to the management of the law relating to these and other specified areas. Its main task is to support regional office counsel in the development of strategic approaches to the drug, proceeds of crime and national security prosecution work of the Department, and to develop prosecution policies in these areas. It also acts in a liaison capacity with government agencies in relation to drug proceeds and national security prosecutions and provides input on policy issues from prosecutors to those responsible for the development of legislation on substantive criminal law and procedure.

As mentioned above, the Strategic Prosecution Policy Section also includes a national security component which is responsible for advising the ADAG (Criminal Law) on legal matters arising under the Canadian Security Intelligence Service Act, the Official Secrets Act, the Security Offences Act and national security and intelligence matters generally.

Finally, the Director of the section has the overall responsibility, through the Agent Affairs Unit, for the agent supervision program within the Department.

5.2.2 Regional Component

The regional component of the FPS is made up of in-house prosecutors working in the various regional offices of the Department. These regional offices and sub-offices have been organized in five administrative regions, each headed by a Senior Regional Director. A region may contain more than one regional office:

• The Atlantic Region covers the four Atlantic provinces. The Atlantic Regional Office is located in Halifax;
   
• The Quebec Region covers the Province of Quebec (with the exception of what is called “Western Quebec,” which is covered by the Ottawa/Hull prosecution group located in Ottawa). The Quebec Regional Office is located in Montreal;
   
• The Ontario Region covers the south-western part of the Province of Ontario. The Ontario Regional Office is located in Toronto. The eastern and northern parts of the province are covered by the Ottawa/Hull Prosecutions Group, located in Ottawa;
   
• The Prairies and Arctic Region, which covers the three prairie provinces, the NWT, and Nunavut, comprises several offices. The main Regional Office is in Edmonton, with a sub-office in Calgary; other Regional Offices are located in Saskatoon, Winnipeg, Yellowknife and Iqaluit. The Yellowknife Regional Office is also responsible for a sub-office located in Inuvik;
   
• The British Columbia and Yukon Region covers the Province of British Columbia and the Yukon. The main Regional Office is in Vancouver; the other Regional Office is in Whitehorse.
   
• The regional component of the FPS also includes a number of standing and ad hoc agents who operate under the supervision of the Regional Offices and the support of the Agents Affairs Unit.

5.2.3 Industry Canada - Departmental Legal Services Unit

Since the early 1980s, the Competition Law Division of the Departmental Legal Services Unit (DLSU) at Industry Canada, in addition to providing the usual array of legal advisory services, has conducted prosecutions on behalf of the Attorney General of Canada under the Competition Act. Prosecutors in that unit work in close cooperation with regional offices and are also subject to the prosecution policies contained in the Federal Prosecution Service Deskbook.

5.3 Mandate

The statutory responsibilities of the Minister of Justice and the Attorney General of Canada are set out in over 40 federal statutes³. Those responsibilities which form the mandate of the Federal Prosecution Service, can be found, inter alia, in the Controlled Drugs and Substances Act, the Criminal Code, the Department of Justice Act, the Extradition Act, the Mutual Legal Assistance in Criminal Matters Act and the common law.

The Criminal Code defines the prosecution mandate of the Attorney General of Canada as follows (in s. 2):

“Attorney General,”

2. with respect to
    
   1. the Yukon Territory, the Northwest Territories and Nunavut, or
       
   2. 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 any such Act, means the Attorney General of Canada and includes his lawful deputy;

Accordingly, with respect to the Yukon Territory, the Northwest Territories and Nunavut, the Attorney General of Canada prosecutes all offences under the Criminal Code and other federal statutes.

Elsewhere in Canada, violations of the Criminal Code are prosecuted by the provincial attorneys general, and the Attorney General of Canada prosecutes violations of federal statutes other than the Criminal Code (e.g., the Competition Act, the Environmental Protection Act) and conspiracies and attempts to violate these statutes⁴. In all provinces except Québec and New Brunswick, the Attorney General of Canada prosecutes all violations of drug laws (the Controlled Drugs and Substances Act) whether the charges originate from the RCMP or from any other police force. In Québec and New Brunswick, the Attorney General of Canada only prosecutes drug cases investigated by the RCMP. In 1980, the Supreme Court of Canada, in the case of R. v. Hauser, [1979] 1 S.C.R. 984, recognized that both the federal and provincial governments had prosecutorial jurisdiction with respect to drug offences. In Québec and New Brunswick, the provincial Attorneys General have exercised their jurisdiction and prosecute drug offences investigated by provincial and municipal police forces.

The Department of Justice Act sets out the duties and responsibilities of the Minister of Justice and the Attorney General of Canada. Section 4 assigns a legal advisory role to the Minister of Justice for the Governor General and the Privy Council. The Minister is also responsible for advising on all matters referred by the Crown. Under s. 5, the Attorney General provides legal advice to all government departments and has the conduct of all litigation, for and against the Crown.

Many federal statutes give the Attorney General additional powers and duties both directly and through the role of the prosecutor under the Criminal Code. The Attorney General, through the Department of Justice, provides legal advice to investigative agencies and government departments on the criminal law implications of investigations and prosecutions.

In mutual legal assistance and extradition, the Minister of Justice is required to act as central authority for the making and receiving of requests for assistance involving a foreign state, and to provide counsel to assist with the implementation of requests in Canada. Regional Office counsel normally are assigned to act for the foreign state. In addition, the Minister must personally authorize the surrender of any fugitive to a foreign country.

5.4 Responsibilities

The Minister of Justice and Attorney General of Canada is responsible for carrying out many varied duties which either involve or are related to the prosecution of offences. Broadly speaking, the FPS performs the criminal litigation responsibilities of the Attorney General of Canada and the Minister of Justice, that is, the prosecution function and prosecution-related functions.

The FPS acts as prosecutor in all matters prosecuted by the Attorney General of Canada on behalf of the Crown. It provides legal advice to all law enforcement agencies and government departments with federal law enforcement responsibilities. It provides litigation counsel to act for foreign states in extradition and mutual assistance matters. It assists with the development of amendments to federal statutes with a law enforcement component. It acts as a centre of expertise for criminal law, national security and federal law enforcement matters.

5.4.1 Prosecution Function

As its name indicates, this function refers to the actual prosecution of offences. This function is carried out by approximately 200 “in-house” or staff prosecutors⁵ and by over 300 standing agents.⁶ Ad hoc agents may also be appointed on a case-by-case basis where required.

5.4.1.1 In-house Prosecutors

“In-house” prosecutors are full time employees of the Department of Justice located in the regional offices and sub-offices. The Ottawa/Hull Prosecution Group, which is part of the Criminal Law Branch in Ottawa, and the prosecutors of the Competition Law Division of the DLSU at Industry Canada, are also part of the central component of the FPS.

Prosecutors assigned elsewhere within the Department may be called upon to supplement the work of Crown counsel in the northern offices and sub-offices. They are known as the “Northern Flying Squad”. There are approximately 20 flying squad members (experienced prosecutors from regional offices and Headquarters) for the Yukon Territory, the Northwest Territories, and Nunavut. The Flying Squad is comprised of lawyers from southern offices and Headquarters who have had Criminal Code prosecution experience.

Regional prosecutors conduct criminal litigation on behalf of the Attorney General of Canada in the regions. To ensure consistency, the prosecution function is exercised in accordance with policies contained in the Federal Prosecution Service Deskbook which is the main document governing the conduct of criminal litigation at the federal level.

In addition, a number of prosecutors have also been designated by the Solicitor General of Canada as agents for the purpose of wiretap applications.

5.4.1.2 Agents

Private sector lawyers are also hired as agents of the Attorney General of Canada, both standing and ad hoc. They are supervised by Agent Supervisors located in regional offices⁷, are appointed on the basis of competence, and are subject to certain terms and conditions of employment. Agents represent the Attorney General of Canada and, for that reason, they, like “in-house” prosecutors, must apply the prosecution policies contained in the Federal Prosecution Service Deskbook.

5.4.2 Prosecution-related Functions

5.4.2.1 General

Prosecution-related functions include all the various functions performed by the FPS other than the actual prosecution of offences. These functions range from administrative functions performed to support the Minister or the Deputy Minister in the exercise of their respective responsibilities, to policy-oriented functions performed in support of litigation or legislation.

Prosecution-related functions will include activities such as the provision of advice to the Minister of Justice, investigative agencies or other government departments; assistance in the development of policies by investigative agencies; implementation of mutual legal assistance requests; litigation in extradition cases; supervision and coordination of the work of agents; the development of policy and consistent arguments in federal prosecutions; negotiations to ensure adequate funding; management of the federal prosecution function; and liaison with the Criminal Law Policy Section in the development of legislative amendments to the Criminal Code and other federal statutes.

Although these prosecution-related functions have been traditionally carried out in Headquarters by the Criminal Law Branch, they are increasingly carried out in the regions.

5.4.2.2 Integrated Proceeds of Crime (IPOC) Units

Integrated Proceeds of Crime (IPOC) units are staffed by Justice counsel, police investigators, forensic accountants and administrative support staff. Operating under a Memorandum of Understanding, IPOC counsel report directly to the Prosecution Group Head in the local regional office. There are IPOC Units in Montreal, Toronto, Vancouver, Edmonton, Calgary, Regina, Winnipeg, Ottawa, London, Quebec City, Halifax, Fredericton and St. John's. As a rule, these units are housed in RCMP premises in each of these cities.

The primary goal of the IPOC initiative is to ensure the effectiveness of the investigation and prosecution of major organized crime groups operating in Canada. This innovative program reflects the necessity of a multi-disciplinary approach to law enforcement.

Investigators and prosecutors in these units are working as teams on proceeds of crime and money laundering investigations. In addition to providing an on-call advisory service to the police and other members of the units on a wide variety of issues related to the conduct of their investigations, IPOC counsel also supervise the initial drafting of court applications for special search warrants and restraining orders, attend at court to obtain the special search warrants and restraining orders, and draft charges relating to any submissions needed to obtain the approval of the Attorney General for the giving of undertakings.

5.5 Management

Management of the Federal Prosecution Service is dealt with in Part II, Chapter 6, “The Functional Responsibility of the Assistant Deputy Attorney General (Criminal Law)”.

5.6 Training⁸

5.6.1 In-house Prosecutors

The quality of federal prosecution services across the country is dependent upon the existence of effective training. The FPS has implemented a strategic training program that addresses the basic needs of new prosecutors as well as the development needs of more experienced prosecutors.

Training programs, which must meet national standards, are delivered primarily at the regional level to reflect local circumstances. The local program is supplemented by national training activities, such as the program for young prosecutors, held in Ottawa in late summer, and the annual prosecutors' conference.

5.6.2 Agents

Since 1994, every standing agent has received, upon appointment, mandatory training. Subsequently, the agent supervisors in each administrative region monitor the quality of prosecution services provided by agents and may recommend specific additional training. In addition, to ensure that agents are kept current on recent legal developments of interest, new communication vehicles have been developed.

5.7 Appendix

5.7.1 Addresses for the Federal Prosecution Service components.

1 George Thomson, Speech to the first Annual Conference of the Legal Operations Sector, Ottawa Congress Centre, October 21, 1996, p. 6.

2 See list of addresses in the appendix.

3 A complete list of these statutes can be found on the Department's Intranet site under the Office of Corporate Counsel, Civil Law and Corporate Management.

4 In certain circumstances, the provincial attorney general may authorize the A.G. Canada to conduct a prosecution, as discussed in Part I, Chapter 2, “The Constitutional Framework for Federal Prosecutions”, and Part I, Chapter 3, “The Role of the Minister of Justice and Attorney General of Canada in Developing and Enforcing the Criminal Law”.

5 A large number of support staff and paralegals (approximately 100) also contribute to the prosecution effort.

6 Standing agents are members of the private bar who have been appointed to act on behalf of the Attorney General of Canada.

7 A national Agents Affairs Unit, located in Ottawa, supports the efforts of local agent supervisors and coordinates the overall elements of the supervision structure.

8 This subject is covered more extensively in Part X, Chapter 51, “Professional Development”.

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