The Federal Prosecution Service
DESKBOOK

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Part I
UNDERSTANDING CRIMINAL LAW IN CANADA
Chapter 4

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4 THE INDEPENDENCE OF THE ATTORNEY GENERAL

4 THE INDEPENDENCE OF THE ATTORNEY GENERAL

Decisions to prosecute, stay proceedings or launch an appeal must be made in accordance with legal criteria. Two important principles flow from this proposition. First, prosecution decisions may take into account the public interest,¹ but must not include any consideration of the political implications of the decision. Second, no investigative agency, department of government or Minister of the Crown may instruct pursuing or discontinuing a particular prosecution or undertaking a specific appeal. These decisions rest solely with the Attorney General (and his or her counsel). The Attorney General must for these purposes be regarded as an independent officer, exercising responsibilities in a manner similar to that of a judge.

The absolute independence of the Attorney General in deciding whether to prosecute and in making prosecution policy is an important constitutional principle in England and Canada. As the Supreme Court stated in Law Society of Alberta v. Krieger²: “It is a constitutional principle in this country that the Attorney General must act independently of partisan concerns when supervising prosecutorial decisions.” In 1925, Viscount Simon, Attorney General of England, made this oft-quoted statement:

I understand the duty of the Attorney-General to be this. He should absolutely decline to receive orders from the Prime Minister, or Cabinet or anybody else that he shall prosecute. His first duty is to see that no one is prosecuted with all the majesty of the law unless the Attorney-General, as head of the Bar, is satisfied that the case for prosecution lies against him. He should receive orders from nobody.³

However, it is quite appropriate for the Attorney General to consult with Cabinet colleagues before making significant decisions in criminal cases. Indeed, sometimes it will be important to do so. The proper relationship between the Attorney General and Cabinet colleagues (and, thus, between Crown counsel and client departments) was best described by the Attorney General of England, Sir Hartley Shawcross (later Lord Shawcross) in 1951:

I think the true doctrine is that it is the duty of an Attorney-General, in deciding whether or not to authorize the prosecution, to acquaint himself with all the relevant facts, including, for instance, the effect which the prosecution, successful or unsuccessful as the case may be, would have upon public morale and order, and with any other considerations affecting public policy.

In order so to inform himself, he may, although I do not think he is obliged to, consult with any of his colleagues in the Government; and indeed, as Lord Simon once said, he would in some cases be a fool if he did not. On the other hand, the assistance of his colleagues is confined to informing him of particular considerations, which might affect his own decision, and does not consist, and must not consist in telling him what that decision ought to be. The responsibility for the eventual decision rests with the Attorney-General, and he is not to be put, and is not put, under pressure by his colleagues in the matter.

Nor, of course, can the Attorney-General shift his responsibility for making the decision on to the shoulders of his colleagues. If political considerations which, in the broad sense that I have indicated, affect government in the abstract arise, it is the Attorney-General, applying his judicial mind, who has to be the sole judge of those considerations.⁴

This statement, often referred to as the “Shawcross principle”, has been adopted by federal and provincial Attorneys General in Canada. In 1978, while explaining to the House of Commons a decision concerning a prosecution under the Official Secrets Act, the Attorney General of Canada, the Hon. Ron Basford, said the following:

What I have had to face, and resolve to my satisfaction, is whether and under what circumstances to authorize prosecutions under the Official Secrets Act. I have been guided by those parliamentary, constitutional, and legal principles which should be taken into account by the Attorney General in the discharge of this particular responsibility. Mr. Speaker, it might be useful to set some of those out.

In arriving at these I have been guided by recognized authorities such as Lord Shawcross, Edwards, Erskine, May and Bournot, and more recently and very helpfully, my valuable discussions with Commonwealth attorneys general in Winnipeg last summer on the office of attorney general, and more particularly my personal conversations at that time with the Attorney General of England and Wales and the Lord Chancellor.

The first principle, in my view, is that there must be excluded any consideration based upon narrow, partisan views, or based upon the political consequences to me or others.

In arriving at a decision on such a sensitive issue as this, the Attorney General is entitled to seek information and advice from others but in no way is he directed by his colleagues in the government or by Parliament itself. That is not to say that the Attorney General is not accountable to parliament for his decisions, which he obviously is.

Clearly, I am entitled to seek and obtain information from others, including my colleague, the Solicitor General (Mr. Blais), and the Commissioner of the Royal Canadian Mounted Police on the security implications of recent disclosures. This I have done.

In my view, the special position of the Attorney General in this regard is clearly entrenched in our parliamentary practice. Based on the authorities and on my own experience as a member of the government for ten years, which has included my three immediate predecessors, this special position has been diligently protected in theory and in practice.⁵ (emphasis added)

One year later, in 1979, Senator Jacques Flynn, then Attorney General of Canada, made the following statement about a proposed prosecution under the Combines Investigation Act:

In dealing with a case which has been referred to him the Attorney General is unquestionably entitled to obtain information and advice from whatever source he sees fit including his colleagues in Cabinet. The course of action which he adopts in particular cases must, however, in the last analysis be his decision. The Attorney General does not act on directions from his colleagues, other members of Parliament or anyone else in discharging his duties in the enforcement of the law. On the other hand he must, of course, be prepared to answer in Parliament for what he does. These principles are well known and established not only in Canada, but in the United Kingdom and elsewhere where the system of Parliamentary democracy exists.⁶

Senator Flynn also quoted the following passage by Professor S.A. de Smith:

As regards the decision whether or not to institute public prosecutions the Attorney General acts in a quasi-judicial capacity, and does not take orders from the government that he should or should not prosecute in particular cases. In political cases, e.g., sedition, he may seek the views of the appropriate ministers, but he should not receive instructions.⁷

Similar views have been expressed by the Hon. Mark MacGuigan in 1983⁸, the Hon. John Crosbie in 1988⁹ and, in Ontario, by the Hon. Roy McMurtry in 1978¹⁰ and the Hon. Ian Scott in 1987.¹¹

Expressions of these principles have not, however, been confined to Attorneys General. The judiciary has supported them¹², as have leading authorities on the role of the Attorney General.¹³

1 See Part V, Chapter 15, “The Decision to Prosecute”, respecting the test to be applied when deciding to institute or continue criminal proceedings.

2 2002 SCC 65.

3 L.L1.J. Edwards, The Law Officers of the Crown (London: Sweet and Maxwell, 1964) at 215.

4 U.K., H.C. Debates, vol. 483, cols. 683-84, (29 January 1951).

5 Canada, H.C. Debates, vol. 4 at 3881 (17 March 1978).

6 The statement was attached as an appendix to Canada, Senate Debates, 28 Elizabeth II at 126 (18 October 1979). See also 110-115.

7 Canada, Senate Debates, 28 Elizabeth II at 113 (18 October 1979).

8 “The Position of the Attorney General of Canada on Certain Recommendations of the McDonald Commission” (unpublished, August 1983) at 6-9.

9 Canada, H.C. Debates, at 18437-38 (17 August 1988).

10 Ontario Legislature Debates (23 December 1978).

11 “The Role of the Attorney General and the Charter”, (1986-87) 29 Crim. L.Q. 187.

12 R. v. Smythe (1971), 3 C.C.C. (2d) 98 at 110 and 112, aff’d at 122, further aff’d by the Supreme Court of Canada at 3 CCC (2d) 366, esp. at 370; Gouriet v. Union of Post Office Workers, [1977] 3 All E.R. 70 (H.L.); Re Saikaly and the Queen (1979), 48 CCC (2d) 192 at 196 (Ont. C.A.); Re M and The Queen (1983), 1 CCC (3d) 465 at 468 (Ont H.C.); R. v. Harrigan and Graham (1976), 33 C.R.N.S. 60 at 69 (Ont. C.A.); The Royal Commission on Civil Rights in the Province of Ontario (Chief Justice McRuer, Chairman) (1968) Report No. 1 at 933-4; Commission of Inquiry concerning certain activities of the Royal Canadian Mounted Policy (Mr. Justice D.C. McDonald, Chairman) (1981) at 509.

13 J. Ll.J. Edwards, Law Officers of the Crown, supra, note 2; J. Ll.J. Edwards, The Attorney General, Politics and the Public Interest (London: Sweet and Maxwell), 1984); P.C. Stenning, Appearing for the Crown (Cowansville: Brown Legal Publications, 1986), esp. at 290-300; Royal Commission on the Donald Marshall, Jr. Prosecution, vol V., “Walking the Tightrope of Justice: An Examination of the Office of the Attorney General”, a series of opinion papers prepared by J.Ll.J. Edwards (1989), esp. at 128-146; Law Reform Commission of Canada, Working Paper 62, Controlling Criminal Prosecutions: The Attorney General and the Crown Prosecutor (1990), esp. 8-14.

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