As has been widely reported, the PMO has been embroiled in a scandal over the last two weeks for allegedly exerting pressure upon its former Attorney General, Jody Wilson-Raybould, regarding the prosecution of SNC Lavalin. Precisely what occurred remains unknown, and contrary to many social media commentators, we are not going to give our opinion on what may or may not have occurred. We will, however, take the opportunity given by l’affaire SNC to reflect on the applicable Canadian law in light of the global standards.
Applicable Canadian law
SNC-Lavalin is charged with criminal offences under the Corruption of Foreign Public Officials Act, which was enacted by Parliament under s. 91(27) of the Constitution Act, 1867. From a constitutional standpoint, in the absence of any delegation, it is the federal government, as opposed to those of the provinces, that has jurisdiction to prosecute these offences: PG (Can) c Transports Nationaux du Can, Ltée, at 223 (Laskin CJ); R c Wetmore, at 287 (Laskin, CJ); Criminal Code, para 2(b).
In Canada, the Attorney General is a minister, responsible for the Ministry of Justice, and thus a member of Government, whom she also serves as its first legal adviser. At the same time, she has also historically been in charge of public prosecutions. The jurisprudence states that there exists not only a (political, non-legal) “constitutional convention,” but a full legal-constitutional principle that, as prosecutor, the Attorney General is relatively independent from the executive branch and should therefore be immune to its pressures. In Krieger v Law Society of Alberta, the Court said unanimously that “[t]he 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 [para 29],” so that “[i]t is a constitutional principle in this country that the Attorney General must act independently of partisan concerns when supervising prosecutorial decisions [para 30].”
Under s.3(a) of the (federal) Director of Public Prosecutions Act, which aims at implementing foregoing constitutional principle, “[t]he Director, under and on behalf of the Attorney General, initiates and conducts prosecutions on behalf of the Crown, except where the Attorney General has assumed conduct of a prosecution under section 15.” Section 15(1) further provides that
[t]he Attorney General may only assume conduct of a prosecution after first consulting the Director. The Attorney General must then give to the Director a notice of intent to assume conduct of the prosecution and publish it in the Canada Gazette without delay.”
It must be stressed that this provision is about the conduct of a prosecution. Short of taking over a prosecution from her, the Attorney General may also, pursuant to section 10(1), give directives to the Director of public prosecutions “with respect to the initiation or conduct of any specific prosecution,” but these “must be in writing and be published in the Canada Gazette.”
Part XII.1 of the Criminal Code, which was added in 2018, empowers the prosecutor to forego prosecution and enter into negotiations for a “remediation agreement” with an organization alleged to have committed an offence, if specific conditions are met, including consent by the Attorney General and being of the opinion that the agreement is in the public interest (s. 715.32 (1)).
Regarding the latter condition, section 715.32(2) sets out the factors to consider:
(a) the circumstances in which the act or omission that forms the basis of the offence was brought to the attention of investigative authorities;
(b) the nature and gravity of the act or omission and its impact on any victim;
(c) the degree of involvement of senior officers of the organization in the act or omission;
(d) whether the organization has taken disciplinary action, including termination of employment, against any person who was involved in the act or omission;
(e) whether the organization has made reparations or taken other measures to remedy the harm caused by the act or omission and to prevent the commission of similar acts or omissions;
(f) whether the organization has identified or expressed a willingness to identify any person involved in wrongdoing related to the act or omission;
(g) whether the organization — or any of its representatives — was convicted of an offence or sanctioned by a regulatory body, or whether it entered into a previous remediation agreement or other settlement, in Canada or elsewhere, for similar acts or omissions;
(h) whether the organization — or any of its representatives — is alleged to have committed any other offences, including those not listed in the schedule to this Part; and
(i) any other factor that the prosecutor considers relevant.
It is worth noting that s.715.32(3) of the Criminal Code, in keeping with article 5 of the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions,also sets out factors the prosecutor must not consider:
Despite paragraph (2)(i), if the organization is alleged to have committed an offence under section 3 or 4 of the Corruption of Foreign Public Officials Act, the prosecutor must not consider the national economic interest, the potential effect on relations with a state other than Canada or the identity of the organization or individual involved.
In other words, while the prosecutor must consider whether a remediation agreement is in the public interest, in doing so he or she may not consider whether prosecuting the company would harm the economy or international relations.
Canadian law falls short of best practices
Canada has rightly recognized the indispensable role that prosecutorial independence plays in safeguarding the rule of law. But, in our view, the statutory regime in Canada fails to give proper effect to this constitutional principle. This defect can best be understood by having regard to global best practices, as identified in the Venice Commission’s report on the issue.
An advisory body of the Council of Europe, the was tasked, as of 1990, with offering constitutional assistance to Central European nations. This mission was expanded to the new republics of Eastern Europe the following year, with the fall of the USSR. Since then, the Commission’s work has expanded into new substantive areas. It now also advises on subjects having to do with the judiciary, elections, referenda, and political parties. It was originally set up by a partial agreement among 18 member-states of the Council. Since 2002, however, its membership has expanded to include all 47 of the Council’s member states and 14 other nations, including the United States of America. Unfortunately, Canada, which used to be quite an active observer to the Commission, has still not joined it as a member in good standing.
For our purposes here, the Commission’s report most relevant passages are the following:
The public prosecutor itself as an institution was unknown to the common law but today has been taken into every common law system to such an extent that its civil law origin is usually forgotten by common lawyers. It is probably true to say that this borrowing across systems has led to a degree of convergence that is not always acknowledged [para 9].
There are two different but related abuses, which can be related to political interference or erroneous prosecutorial decisions. The first is the bringing of prosecutions which ought not to be brought, either because there is no evidence or because a case is based on corrupt or false evidence. A second, more insidious, and probably commoner, is where the prosecutor does not bring a prosecution which ought to be brought. This problem is frequently associated with corruption but may also be encountered where governments have behaved in a criminal or corrupt manner or when powerful interests bring political pressure to bear. In principle a wrong instruction not to prosecute may be more difficult to counter because it may not be easily made subject to judicial control. [para 21][…] only a few of the countries belonging to the Council of Europe have a prosecutor’s office forming part of the executive authority and subordinate to the Ministry of Justice (e.g. Austria, Denmark, Germany, the Netherlands). The Commission notes that there is a widespread tendency to allow for a more independent prosecutor’s office, rather than one subordinated or linked to the executive. For example, in Poland recent amendments to the Law on the Prosecutor’s Office separated the role of the Ministry of Justice from that of the Prosecutor General. Also, it is important to note that in some countries, subordination of the prosecution service to the executive authority is more a question of principle than reality in the sense that the executive is in fact particularly careful not to intervene in individual cases. Even in such systems, however, the fundamental problem remains as there may be no formal safeguards against such intervention. The appearance of intervention can be as damaging as real interference, as can be seen in the current Austrian debate on the power of the executive to give instructions to the prosecutors. [para 26]
The tendency described above is visible not only among the civil law member states of the Council of Europe but also in the common law world. The federal prosecution service in Canada recently moved from the model of a service as an integral part of the Attorney General/Ministry of Justice to the model of an independent Director of Public Prosecutions (DPP). Northern Ireland has now also established its DPP’s Office as independent. England and Wales and Ireland have also all seen the gradual elimination of police powers to prosecute, which was a traditional feature of common law systems, in favour of a public prosecutor. [para 27]
Apart from those tendencies, there is an essential difference as to how the concept of independence or autonomy is perceived when applied to judges as opposed to the prosecutor’s office. Even when it is part of the judicial system, the prosecutor’s office is not a court. The independence of the judiciary and its separation from the executive authority is a cornerstone of the rule of law, from which there can be no exceptions. Judicial independence has two facets, an institutional one where the judiciary as a whole is independent as well as the independence of individual judges in decision making (including their independence from influence by other judges). However, the independence or autonomy of the prosecutor’s office is not as categorical in nature as that of the courts. Even where the prosecutor’s office as an institution is independent there may be a hierarchical control of the decisions and activities of prosecutors other than the prosecutor general. [para 28]
Any ‘independence’ of the prosecutor’s office by its very essence differs in scope from that of judges. The main element of such “external” independence of the prosecutor’s office, or for that of the Prosecutor General, resides in the impermissibility of the executive to give instructions in individual cases to the Prosecutor General (and of course directly to any other prosecutor). General instructions, for example to prosecute certain types of crimes more severely or speedily, seem less problematic. Such instructions may be regarded as an aspect of policy which may appropriately be decided by parliament or government. [para 30]
It is important to be clear about what aspects of the prosecutor’s work do or do not require to be carried out independently. The crucial element seems to be that the decision whether to prosecute or not should be for the prosecution office alone and not for the executive or the legislature. However, the making of prosecution policy (for example giving priority to certain types of cases, time limits, closer cooperation with other agencies etc.) seems to be an issue where the Legislature and the Ministry of Justice or Government can properly have a decisive role. [para 43, bold in the original]
In essence, the problem in Canada is “that the decision whether to prosecute or not” is not “for the prosecution office alone,” and that it is far from clear that the executive cannot give instructions to the latter in individual cases.
The purpose of the Director of Public Prosecutions Act was to separate the prosecuting role of the Attorney General from her political and administrative roles as a minister and internal legal adviser to the Government, and to assign the former to an independent prosecutor. This approach to the issue is different from that of the United Kingdom, where, as Craig Forcese recently observed, the independence of the Attorney General as prosecutor is preserved by leaving her out of the Cabinet. In Canada, the Attorney General remains in the “Cabinet”, so that, as discussed above, the Director of Public Prosecution acts “under and on behalf” of her. But if the Attorney General is still empowered to give instructions and even substitute herself as prosecutor in a given case, then there is no guarantee that she will not be acting as a member of, and at the behest of, the executive when she does so.
Publishing the intent to assume a prosecution in the Canada Gazette, while providing transparency, does not remedy this defect. If the Attorney General steps in, then the independence of prosecutions will only rely on the so-called “Shawcross doctrine” –which, at best, is a “constitutional convention,” but may rather be a mere practice– according to which the Attorney General, as public prosecutor, may consult with any of her colleagues in the Government, provided that “the assistance of [her] colleagues [be] confined to informing [her] of particular considerations, which might affect [her] own decision, and does not consist, and must not consist in telling [her] what that decision ought to be.” Granting that it is a “convention,” in our view, it falls short of global standards. As noted above, the Venice Commission has stated that the “main element” of the public prosecutor’s external independence “resides in the impermissibility of the executive to give instructions in individual cases,” so that “the crucial element seems to be that the decision whether to prosecute or not should be for the prosecution office.”
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Prosecutorial independence is a recognized constitutional principle in Canada. But its implementation leaves much to be desired. In our respectful view, Canada should bring its practice into better harmony with global standards by repealing ss. 10(1) and 15 of the Director of Public Prosecutions Act. Doing so would return the Attorney General to her proper role as a legal advisor to the government and a minister of the Crown and would establish a bright line between those who counsel the government on legal matters and those who conduct criminal prosecutions. The principle of prosecutorial independence, and, indeed, the rule of law itself demand that these roles remain more clearly separate and distinct.
Maxime St-Hilaire is a doctor of laws and an associate professor at Université de Sherbrooke.
Martine Valois is a doctor of laws and an associate professor at Université de Montréal