Prosecuting the Crown
DATE: May 20, 2008
SUBJECT: PROCEDURES FOR MANAGING POTENTIAL CONFLICTS OF INTEREST IN PROSECUTIONS OF THE CROWN
As is also described in the guideline Regulatory Prosecutions, many statutes and accompanying regulations create offences directed to the prevention of future harm or loss through the enforcement of minimum standards of conduct, care, licensing and reporting. These offences are often referred to as regulatory or public welfare offences, although the alleged conduct may also violate provisions of the Criminal Code.
On occasion, it may be alleged that a government department, a Crown corporation, a Crown agency, or a government employee acting bona fides in the course of his or her employment has engage in proscribed conduct. In such circumstances, Alberta’s prosecution service, representing the Attorney General, would have to consider prosecuting a different arm of the government or an employee of that government arm.
Notwithstanding the conceptual difficulties in the government prosecuting itself, such a prosecution is entirely appropriate. The Nova Scotia Court of Appeal explained this as follows.
The respondents argued that the prosecution of Her Majesty in Right of Canada by Her Majesty in Right of Canada creates an absurdity. While there may be conceptual difficulties, these must yield to the principle that Her Majesty in Right of Canada or a Province is not above the law. When a statute that Parliament has made binding upon Her Majesty is violated in her name and on her behalf, the declarative effect of a finding of guilt is more important than the penalty imposed. This is particularly true when the statutory violation consists of an act destructive to the environment. Decoste J. dealt with a similar argument in the Environment Canada case [Department of the Environment, Canada v. Department of Public Works, Canada, (1992) 10 C.E.L.R. (N.S.) 135 (C.Q.)].
Moreover, even if it is subject to the Act, what justification is there for a charge, knowing full well that the Treasury Board would receive from one hand (Environment Canada) what is paid with the other (Public Works Canada)? ... we invited prosecuting counsel to explain the justification for these proceedings.
First, he submitted, the general deterrent aspect is very important. By this, he meant sending a clear message to our private sector of the seriousness of the objective adopted by Parliament: the protection of the environment, of human life and of the health of Canadians. They want to practise what they preach.
Second, they also want by doing this to make government employees and contractors take more responsibility. They must also be sensitized to this concept of the environment, and act in such a way that none of the many decisions which they must make involve the slightest risk to environmental protection.
In my opinion, these two reasons alone fully justify the initiation of criminal proceedings .
It must therefore be anticipated that there will be circumstances in which the Attorney General, acting through his or her agents, will consider initiating and will potentially conduct a prosecution of an arm of the government or a government employee.
Such circumstances will raise concerns respecting conflicts of interest. That is to say, there could be a perception of a conflict of interest if Crown prosecutors within the Criminal Justice Division of the Ministry of Justice were to make the decision to prosecute and/or were to conduct any ensuing prosecution in circumstances in which the accused is a government arm or a government employee. While adherence to the principles described in the Code of Conduct for Crown Prosecutors (particularly as regards the duties and responsibilities of the Attorney General) will be critical to addressing such concerns, this practice memorandum provides further guidance as regards the management of potential conflicts.
In particular, this practice memorandum has three objectives:
- affirm that governmental offenders will not receive preferential treatment;
- manage potential conflicts of interest that may arise in the provision of legal advice respecting potential prosecutions of the Crown; and
- create procedures for assessing and/or conducting prosecutions of the Crown.
During the investigation, Ministry of Justice counsel may be asked to advise both the investigative agency and also the department or employee under investigation. That is, a Crown prosecutor within the Criminal Justice Division may be asked by the investigators to provide pre-charge advice, and counsel within the Legal Services Division may be asked for legal advice by the department or employee under investigation.
Counsel within the Ministry of Justice cannot provide legal advice to both parties. As such, Crown prosecutors within the Criminal Justice Division may advise investigators in the normal course and may provide preliminary opinions respecting the merits of the prosecution by applying the guideline The Decision to Prosecute and, if the allegations involve a regulatory offence, the guideline Regulatory Prosecutions.
However, counsel within the Legal Service Division may only assist the department or employee under investigation in retaining private counsel.
The Decision to Prosecute
Whether or not the investigative agency seeks pre-charge advice, the Criminal Justice Division may eventually be required to consider whether a prosecution should be commenced. At the stage at which this issue arises, the responsible Chief Crown Prosecutor or Director obtain an opinion respecting this issue from private counsel or counsel for another provincial Attorney General who will apply the guideline The Decision to Prosecute and, if the allegations involve a regulatory offence, the guideline Regulatory Prosecutions.
This opinion will be forwarded to the Assistant Deputy Minister (Criminal Justice) for a determination as to whether a prosecution should occur.
The Deputy Attorney General is to be informed immediately after this process has been completed.Conduct of the Prosecution
Any prosecution will normally be conducted by outside counsel. In most cases, this will be the lawyer who provided the independent opinion referred to above.
The Code of Conduct for Crown Prosecutors, and the guidelines and practice memoranda that govern Crown prosecutors within the Criminal Justice Division will bind such counsel throughout.Appeals
Should outside counsel believe an appeal from an acquittal or sentence is justified:
- he or she will make a recommendation in accordance with the procedure set out in the practice memorandum Procedure for Initiating Appeals to the Court of Appeal of Alberta and the guideline Criteria for Appeals to the Court of Appeal of Alberta.
- a Crown prosecutor within the Appeals Branch of the Criminal Justice Division will, in consultation with the Director of Appeal, prepare an opinion respecting this issue by applying the guideline Criteria for Appeals to the Court of Appeal of Alberta.
Once the recommendation and the opinion are obtained, the matter is to be forwarded to the Assistant Deputy Minister (Criminal Justice) for a determination as to whether an appeal should be initiated.
The Deputy Attorney General is to be informed immediately after this process has been completed.
- Any appeal will normally be conducted by outside counsel. In most cases, this will be the lawyer who conducted the trial.
 R.. v. Canada (Minister of Defence) (1993), 125 NSR (2d) 208 at para. 21 (NSCA)