Criminal prosecutions

One of the most publicly scrutinized aspects of the Attorney General's role is the responsibility for criminal prosecutions encompassed in section 5 (d) and s. 92 of the Constitution Act, 1867. Section 92 gives the provinces authority to legislate in matters related to the administration of criminal justice and thereby gives the provincial Attorney General authority to prosecute offences under the Criminal Code.

The Attorney General does not, however, direct or cause charges to be laid. While the Attorney General and the Attorney General's agents may provide legal advice to the police, the ultimate decision whether or not to lay charges is for the police. Once the charge is laid the decision as to whether the prosecution should proceed, and in what manner, is for the Attorney General and the Crown Attorney.

It is now an accepted and important constitutional principle that the Attorney General must carry out the Minister's criminal prosecution responsibilities independent of Cabinet and of any partisan political pressures. The Attorney General's responsibility for individual criminal prosecutions must be undertaken - and seen to be undertaken - on strictly objective and legal criteria, free of any political considerations. Whether to initiate or stay a criminal proceeding is not an issue of government policy. This responsibility has been characterized as a matter of the Attorney General acting as the Queen's Attorney - not as a Minister of the government of the day.

This is not to suggest that decisions regarding criminal prosecutions are made in a complete vacuum. A wide range of policy considerations may be weighed in executing this responsibility, and the Attorney General may choose to consult the Cabinet on some of these considerations. However any decisions relating to the conduct of individual prosecutions must be the Attorney General's alone and independent of the traditional Cabinet decision making process. In practice, in the vast majority of cases, these decisions are made by the Attorney General's agents, the Crown Attorneys.

An important part of the Crown's - and thus the Attorney General's - responsibility in conducting criminal prosecutions is associated with the responsibility to represent the public interest - which includes not only the community as a whole and the victim, but also the accused. The Crown has a distinct responsibility to the court to present all the credible evidence available.

The responsibility is to present the case fairly - not necessarily to convict. This is a fundamental precept of criminal law, even if it is not a particularly well-understood concept among the general public. One of the Attorney General's responsibilities in fostering public respect for the rule of law, is to assist the public in understanding the nature and limits of the prosecutorial function.

Ultimately the Attorney General is accountable to the people of the province, through the Legislature, for decisions relating to criminal prosecutions. Such accountability can only occur, of course, once the prosecution is completed or when a final decision has been made not to prosecute. The sub judicae rule bars any comment on a matter before the courts that is likely to influence the matter. The sub judicae rule strictly prohibits the Attorney General from commenting on prosecutions that are before the courts. Given the stature of the Attorney General's position, any public comment coming from the office would be seen as an attempt to influence the case.

Although the Attorney general can become involved in decision-making in relation to individual criminal cases, such a practice would leave the Minister vulnerable to accusations of political interference. Accordingly, it is traditional to leave the day-to-day decision-making in the hands of the Attorney General's agents, the Crown Attorneys, except in cases of exceptional importance where the public would expect the Attorney General to be briefed.