Shaving the Constitutional Tiger: Attorney General 101

February 8, 2019

Michael Bryant
Executive Director and General Counsel
mbryant@ccla.org

 

 

 

 

As the SNC-Lavalin prosecution controversy unfolds, Canadians are digging into a part of our constitution that operates everyday, in hundreds of courtrooms across Canada. Every five minutes in this country, somewhere, in some court, Crown Attorneys (lawyers who are considered agents of the Attorney General) announce their decisions, without any fanfare, often in a code-speak that is comprehensible only to the bar and bench, about how the Crown intends to proceed with a prosecution. They will elect to proceed by way of indictment (more serious) or summary (less serious) offence, depending on the particular charge. They will ask that the “information be withdrawn,” or say something like: the Crown is dropping the charges. Almost always those decisions are simply an expression of the particular prosecutors’ views. Sometimes the Crown Attorney (synonymous with prosecutor or Crown) is stating a decision of her superior.

But mostly prosecutors will make submissions, arguments, make their case, on behalf of the Crown. Again, these submissions may be driven from decisions made by superiors, pursuant to the Crown policy manual (published online in Ontario). In some provinces, including Ontario and BC, there is a protocol for the review of a Crown’s proposed position by his or her higher ups.  With the withdrawal of a very serious charge in a controversial matter, in Ontario, a panel of several Crown Attorneys will sit, as if a court of law.  For they are, in a way, a court of law.

Prosecutors or Crown Attorneys are deemed quasi-judicial officers, under our constitutional system. We inherited that system from the UK. Most commonwealth countries share the outlines of it. The US in many way is very different, and in other ways is not that different. The greatest difference in the US, is that their state judicial and quasi-judicial officers are elected to their specific office or District Attorney or Attorney General. In Canada, the term ‘quasi-judicial’ implies all the independence that we expect from judges here. Our judges and our prosecutors are not accountable to an electorate. They need not be popular and indeed we don’t want them to base their decisions on what pleases the masses. They are there to exact justice, without regard to political considerations.

That’s the judicial part. The ‘quasi-’ part refers to the fact that they are advocates too. This is to say, some of what they do is judicial, and some of what they do is not judicial, but rather adversarial. Accordingly, they withdraw charges where there is no reasonable prospect of conviction: that’s a judicial function. In fact, judges cannot withdraw charges;  only the Crown can do that. The system is designed to avoid miscarriages of justice, to avoid convicting the innocent, rather than being designed to punish the guilty. It’s designed that way because of the civil liberties built into our system, wherein there is a presumption of innocence.

This quasi-judicial function occurs every day, as charges laid by police are dropped by prosecutors, while others remain (eg, the Crown drops a serious charge of trafficking and the defendant pleads guilty to possession) and in some cases, after some evidence is found to be inadmissible, the case appears to have collapsed, requiring the Crown to drop the charges.  Similarly, the decision to proceed by way of indictment, requires independent judgement. Otherwise, there would be no point in giving the Crown that discretion. Beyond those (and a few other) quasi-judicial duties, the Crown then gets to argue its case, present the evidence, in such a fashion that would point the judge or jury towards a finding of guilt. But Crowns aren’t said to win or lose a case. They’re just supposed to put the case forward and let the court decide.

All that sounds like BS no doubt.  It’s the ideal, you might say, not the reality. I personally have a perspective on this based on experience, and some knowledge of the law.  Whether the system works as it should is obviously a big political question, in the eyes of the beholder. My own view has evolved over the years.

Leaving aside the critique or editorial commentary on the justice system, this much is true, about the law. Prosecutors have special legal powers that other lawyers do not have; just as police have special powers that nobody else has in Canada.  The power to investigate, search people and property, and seize property too; the power to use force legally, even lethal force; the power to lay a criminal charge against someone.  All those police powers bring with them special responsibilities, and in turn police get different treatment in the criminal law. If you assault me, you get charged with a less serious crime than if you assault a police officer. Similarly, if you try to mislead me, it is of no legal consequence, because I have no power. But if you mislead a police officer undertaking an investigation, that’s a crime: obstruction of justice.

Criminal defence lawyers often have to advise their clients to be very careful when being questioned by the police.  There are rights to to avoid self-incrimination, but there is no right to interfere with an investigation. I’ve had clients who were arrested and charged with obstruction of justice by answering “I dunno” to a police officer asking where her boyfriend was. “I dunno” can equal obstruction of justice. There are flimsy, wasteful, stupid charges like this littering our justice system today.

The point remains, however, when dealing with a police officer, that one should be on guard that you don’t do something that will give rise to criminal liability. Police officers are also sometimes called quasi-judicial officers, as such, because their decision to charge someone is supposed to be independent, not based on their personal opinion of you, but their professional assessment of the evidence.

The same is true of Crown Attorneys. There are specific criminal charges that arise when one messes with a prosecution. Obstruction of justice, breach of trust, abuse of process, to name three Criminal Code offences. Defence lawyers are rightly permitted to make their best case to a Crown. No doubt SNC-Lavalin sent many of their criminal defence counsel to make presentations to the Crown Attorneys on their matter. But if you or I approached those same Crown Attorneys, with the intention of getting special treatment for them, in a fashion that would interfere with the justice system: well, that there is a crime.

I know of a provincial member of parliament who made the grave error of speaking with her local Crown Attorney about the prosecution of her family member, cajoling the prosecutor with a sob story and some humour and neighbourly charm. That was the end of her political career. She was thrown out of caucus after pleading guilty, and receiving an absolute discharge, for obstruction of justice, contrary to the Criminal Code.

The same special powers apply to the Attorney General, who is also a quasi-judicial officer. The A.G. is just like a prosecutor, formally, because back when we became the Dominion of Canada, he was the main prosecutor. Then eventually he appointed agents to do his work. These agents were called Crown Attorneys. Today, there are thousands of federal Crown Attorneys and about a thousand provincial Crown Attorneys in Ontario, for instance. Today, the Attorney General is 90% politician, 10% quasi-judicial officer, although that’s an arbitrary number. For some, the split is more even. For very few, in the contemporary era, they are both leading barristers and politicians.  

The reality today, therefore, is the opposite of the formal legal structure. The AG today is mostly a political policy-maker and a spokesperson for what the Crown Attorneys do, even though they are formally the agents of the Attorney.  

But it remains the case that the Attorney General, by law, has special legal powers. Some of them are actually in operation, such as the need to consent (or not) to Dangerous Offender Applications by prosecutors. Some of these powers are delegated to criminal law experts, such as the Chief Prosecutor or the Deputy Attorney General, to proceed with a direct indictment, for example.  

Or, thanks to a change to the Criminal Code made in a budget bill (a vote against being a vote of non-confidence in the government, as Joe Clark learned), a ‘remediation agreement’ could be entered into by a corporation, at the election of the Attorney General of Canada. It’s an odious option that lends itself to a two-tier justice system (but that’s for another day). The point is that the AG today has very few practical powers to change the direction of a prosecution, but there are a few obscure powers nonetheless left in the Code.

Jody Wilson-Raybould had just such a power to affect the prosecution of SNC-Lavalin. What she could or could not have done doesn’t matter: the point is that she had that power and her successor still does today. The allegation made by the Globe & Mail is that someone in the PMO did what the aforementioned provincial MP did: interfere with a prosecution.  

Just to state the obvious: the Prime Minister has the ultimate power determinative to the Attorney General’s privilege of holding that office. The PM has the power to appoint, shuffle or fire an Attorney General. So in fact, efforts by the PMO to effect the prosecution by accessing the Attorney General herself is a far more culpable circumstance than if a local politician tried to nudge a Crown Attorney. The local politician has no actual power to hire or fire the prosecutor. But the Prime Minister has more than formal powers over his Cabinet. The PM has de facto power over Jody Wilson-Raybould. In fact, he exercised it when he removed her from one Cabinet post and placed her into an another one. The question is whether one of his officials attempted to wield that power by talking to her about what to do with the prosecution of SNC-Lavalin.  

Such a conversation may not have happened. Thus far, we just don’t know. But the very fact that the conversation happened, if it happened, could trigger a police investigation. It may be that no line was crossed, but one has to ask: why on earth would someone in the PMO walk up to that line, or even enter the room on the first place, when one false move could give rise to criminal liability and the fall of a government?  

I have a theory. My theory is that these allegations, if true, arise from the de-lawyering of the political class in Canada. That is a very good thing, in that non-legal perspectives better reflect that of the electorate. No longer do lawyers dominate the elected House of Commons, nor the political staff for Cabinet Ministers, the PMO included. Trudeau himself is the second ever PM who is not a lawyer. To repeat, this has enormous benefits to the public interest.

You can see, however, another consequence. It used to be that Hospital Presidents were expected to be physicians, until it become obvious that financial, fundraising and managerial experience was more important than medical experience, when it came to running a multi-million dollar operation. But there can be a disconnect, sometimes, between the two professions and perspectives.

If the Globe story is right, then there was clearly a disconnect over the SNC-Lavalin prosecution. If that PMO staffer or staffers were not lawyers, then they hadn’t gained the knowledge and experience akin to a surgeon running a hospital. The problem is that this PMO official may have unwittingly stumbled into open heart surgery and just killed some careers, and maybe a government. Maybe the PMO was simply ignorant or reckless, and the elements of the offence of obstruction of justice are not made out. That is actually quite likely.  

But there may be a reason that the PM is currently bobbing and weaving around this very question. He has now been shown that a crime may have been committed, enough so that a criminal investigation may happen, and someone may get charged. Or, it may turn out, that there is simply no evidence that would necessitate the laying of a criminal charge. But I would be surprised if the police aren’t investigating as we speak, as much as I never wish a criminal charge upon anyone, and mindful that we are all innocent until proven guilty.

All of which brings me to one of the reasons why CCLA has entered the fray on this matter. We know that this government has been no booster of civil liberties; we are regularly fighting them in court directly through applications or via interventions before appellate courts, or through advocacy before legislative and Senate committees. This government has been particularly punitive on due process and punishments. The legislative record speaks for itself, and is indistinguishable from their Conservative predecessors, who made no bones about being ‘tough on crime.” So now that a Liberal PMO may face the wrath of the criminal justice system, they are facing a reckoning.  (Yes, I have personally had such a reckoning, and it changed my perspective, turning night into day).

The PM and PMO are feeling the juggernaut that gets inflicted upon people with far less power and privilege than they have. They ought to consider, in this moment, what it would feel like, if they didn’t have access to the best and brightest lawyers; and, if like most criminal defendants, what it would be like if they were mentally ill, or addicts or otherwise disabled, poor, downtrodden, ashamed, utterly alone. One can hope that this government might reconsider its ignorant and merciless perspective on the criminal justice system, accordingly.