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Background: From the Origin of the Office of the Attorney General in England to the Creation of the Office of Director of Criminal and Penal Prosecutions in Quebec (Canada).

The coming into force of the Act respecting the Director of Criminal and Penal Prosecutions (ADCPP) (1) on March 15, 2007, marked a major turning point in the evolution of the justice system in Quebec. Since that date, the Director of Criminal and Penal Prosecutions (DCPP) directs criminal and penal prosecutions in Quebec on behalf of the State, under the general authority of the Minister of Justice and Attorney General. Since the functions and powers exercised by the DCPP, as public prosecutor, were originally the responsibility of the office of the Attorney General, (2) it seems relevant to look into the history of this office.

THE ORIGINS

The origins of the office of Attorney General are controversial and its evolution is no less complex, with some authors even suggesting that its exact origin is actually unknown. (3) A Supreme Court of Canada judge wrote that the origins of the principal powers traditionally vested in the Attorney General, primarily that of prosecuting or terminating proceedings, "are lost in history." (4) In fact, it appears that the Attorney General's assumption of a role in the administration of justice in England dates back to the end of medieval times. (5)

In the 13th century, penal prosecutions in England were mainly conducted by citizens. However, the Crown could take the initiative, especially where the crimes being prosecuted were detrimental to the peace and order of society. The sovereign was then represented by prosecutors who acted individually, and whose functions were limited to handling the criminal prosecutions on his behalf and to see to the respect of his rights and prerogatives before the courts of justice. These prosecutors' mandates were generally restricted, as were their powers. At that time, the judicial system was decentralized and the courts were locally constituted.

However, it was increasingly common for a single Crown prosecutor to be appointed to defend the sovereign's interests before the royal courts. This prosecutor had the power to appoint assistants.

In 1461, the title of" attorney general" officially appeared for the first time in a Writ of Attendance ordering the attorney general to run for parliament to play a role as legal advisor to the Upper House (House of Lords).

In the 16th century, the King's Attorney (attorney general) was the advocate responsible for overseeing the sovereign's legal interests throughout the kingdom. He was assisted in doing so by a deputy, the King's Sollicitor (the predecessor of the Sollicitor General). He was then called the King's Attorney, since, in accordance with British constitutional law, the king was empowered by the constitution and vested the attorney general with his powers, powers that the latter exercised in the king's name. (6)

With the development of the parliamentary system and the principle of responsible government, the predominant role that the attorney general was called on to play within parliament and the government, notably with respect to law-making, caused him to have to abandon his functions as Crown representative before criminal courts. These functions were assigned to advocates designated to represent him, who were later considered "Crown prosecutors."

The functioning of the English criminal prosecution system however long remained founded on prosecutions undertaken by individuals, the so-called "private" prosecutors, and on prosecutions undertaken by the police, themselves considered private prosecutors, who gave advocates mandates to represent them. It went unchanged, despite the creation of the office of Director of Public Prosecutions (DPP) in 1879. The DPP was an indirect predecessor of the different directors of criminal and public prosecutions through common law jurisdictions, but its beginnings were full of obstacles. First, the position of DPP had few resources; it was established by a conservative government mindful of limiting public spending. (7) At that time, it was said that the DPP's role was not to supplant but only to supplement the system in place in England and in Wales. That system still relied primarily on private prosecutors or on the police, acting in that capacity, represented by advocates. Furthermore, the cases in which the DPP could intervene were limited, being able to intervene and conduct a prosecution only if the proceeding's degree of complexity or difficulty justified doing so, or if specific circumstances so dictated. (8)

In 1985, the functioning of the British system became founded, in principle, on State prosecutors acting as public prosecutors. (9) It was in that year that the Crown Prosecution Service (CPS) was established, a structured prosecution service acting under the supervision of the DPP and present throughout the territory of England and Wales to conduct the majority of criminal prosecutions.

Since the office of the attorney general was created, the attorney general has exercised two fundamental powers traditionally vested in that office: the power to institute penal proceedings and the power to terminate proceedings. (10)

IN CANADA

The British colonies established in Canada essentially replicated the British judicial system with, however, some adaptations. One such adaptation consisted in the Attorney General of Canada holding a more important role in judicial proceedings, taking part in prosecutions that, in England, would have been private. (11)

In 1857, the County Crown Attorneys Act was passed in Upper Canada. This legislation, which drew on the public prosecution system then in effect in Scotland, instituted a publicly funded Crown attorney (local Crown attorney) in each county. The attorney was responsible for all criminal matters as well as supervising the prosecutions of private prosecutors within the county. This distanced it from the British system of prosecution which was still largely founded on private prosecutors. The law established a hybrid system of prosecutions, that is, a system of public prosecutions in which the citizen's right to initiate a private prosecution was conserved. (12)

After Confederation, the Act respecting the Department of Justice was passed in 1868, establishing the Department of Justice. The Act stated that the Minister of Justice was ex officio Attorney General of Canada, thereby significantly distinguishing it from the British model, where the equivalent functions of Minister of Justice and Attorney General were exercised by different position holders. (13)

IN QUEBEC

Prior to 1962, the advocates who represented the Attorney General in criminal prosecutions came from private practice. They exercised their functions on a part-time basis and were remunerated by the government on a per-file or contract basis. Any changes in government were thus likely to affect whether their services were retained. Beginning in 1962, the political parties agreed to respect a list of permanent prosecutors in order to depoliticize the function. The practice of nominating part-time prosecutors continues, but in parallel. (14)

In 1965, the ministry of the Attorney General was replaced by the Department of Justice. (15)

In 1969, the Act respecting Attorney General's prosecutors (16) was passed, establishing the permanency of the function of attorney general's prosecutors, as they were thereafter appointed under the Public Service Act. (17) In doing so, the sustainability of the public prosecutions service was ensured and the development of expertise within the institution promoted. (18) The law introduced certain fundamental principles related to the exercise of the office of attorney, namely, the exclusivity of the function and the need to be politically neutral. (19) It stipulates the primary powers that prosecutors exercise under the authority of the Attorney General. These powers, including that of authorizing the initiation of a prosecution, today remain essentially the same. (20) This law can be seen to have legislatively laid the foundation for the independence of the institution that was to become the DCPP.

In 1972, the Act respecting Attorney General's prosecutors was amended. (21) It allowed, in particular, the Attorney General to appoint "chief prosecutors" and "assistant chief prosecutors" from among the permanent prosecutors and to determine their duties and functions. (22) It also changed the oath to be taken by attorney general's prosecutors when entering upon their duties, adding the duties of objectivity and impartiality. (23) It also added to the permanent prosecutor's duty of political neutrality by prohibiting them from voting in a federal, provincial, municipal or school election. (24) However, in 1979, the right of vote was re-established. (25)

In 1993, the Act respecting Attorney General's prosecutors was again amended, prohibiting prosecutors from being a member of a political party or paying a contribution to one. (26) The prosecutors continue to be subjected to these restrictions.

In 2002, a further amendment was made to the Act respecting Attorney General's prosecutors, mainly to establish a special labour relations plan for the prosecutors, but also to provide that their appointment would thereafter be the responsibility of the Attorney General. (27) Previously, the prosecutors were, in principle, government-appointed (according to the law of 1969, by the "lieutenant governor in council").

In 2005, the ADCPP was adopted in the context of implementing a governmental plan which aimed at modernizing the Quebec's State. (28) It created the office of Director of Criminal and Penal Prosecutions, for the purpose of distinguishing the functions of the Attorney General, assumed by the Minister of Justice, from those tied to public prosecutions in criminal and penal matters.

The ADCPP contains a number of measures aimed at ensuring that the principle of the public prosecutor's independence is respected, in particular the irremovability of the office of the director, the appointment of prosecutors by the director him or herself and the publication of the general directions of the Minister of Justice and instructions of the Attorney General concerning the conduct of a particular case.

The then Minister of justice, Mtre.Yvon Marcoux, described the objectives of the Act during the parliamentary debates that led to its adoption:
[Translation]
The office of the Director of Public Prosecutions should better meet
the fundamental imperatives of justice, in particular by ensuring the
independence of the prosecution in criminal and penal matters and by
ensuring the transparency of the prosecution process. [...] Also, the
office of the Director of Public Prosecutions should strengthen public
confidence in the Quebec criminal and penal judicial system and thus
eliminate the possibility of citizens perceiving that such prosecutions
could be influenced by considerations that would not serve the best
interests of justice. (29)

The challenge that the creation of the office of a Director of Public
Prosecutions represented, Mister President, was that of striking a fair
balance between the director's independence and accountability toward
the government. The Attorney General's accountability with regard to
the National Assembly and the general public must be preserved. I
believe that the bill achieves this balance and even enhances the
accountability of the Attorney General by ensuring the transparency of
any potential intervention with the director. (30)


The ADPCP was recently amended, making the appointment of the director subject to approval by a two thirds vote of the members of the Legislative Assembly. (31)

By the adoption of the ADCPP, Quebec joined a community of countries, including England, (32) Ireland (33) and Australia, (34) that have institutions providing an autonomous prosecutions service, independent of political institutions. In Canada, Nova Scotia (35) and British Columbia (36) also enacted laws to create an independent prosecutions service. At the federal level, since December 12, 2006, there has been a Public Prosecution Service of Canada headed by a director of public prosecutions. (37)

By MTRE. PATRICK MICHEL, Chief Prosecutor, Director of Criminal and Penal Prosecutions and MTRE. JOELLE HUOT, Criminal and Penal Prosecutor, Director of Criminal and Penal Prosecutions

(1) Act respecting the Director of Criminal and Penal Prosecutions, COLR, c. D-9.1.1, hereinafter "ADCPP".

(2) Nelles v. Ontario, [1989] 2 S.C.R, 170. pp. 191-192.

(3) John. Ll. J. Edwards, The Law Officers of the Crown (London: Sweet & Maxwell, 1964) pp. 12-13.

(4) R. v. Hauser, [1979] 1 S.C.R. 984, 1028.

(5) J. Ll. J. Edwards, supra note 3; Rapport du comite d'etude sur la remuneration des substituts du procureur general du Quebec, September 1985 (hereinafter, the Rapport Rouleau, named after its chairperson, Alfred Rouleau), pp. 4-6, 11-13; Andre Buteau, Les fonctions de poursuivant, de gardien de l'interet public, de representant de l'Etat devant les tribunaux et de conseiller juridique exercees par le ministre de la Justice el Procureur general du Quebec, Conference des juristes de l'Etat, January 2002, p. 245; Law Reform Commission of Canada, Working Paper 62, Controlling Criminal Prosecutions: The Attorney General and Crown Prosecutor (1990) p. 3; R. c. Smythe, (1970) 3 C.C.C. (2d) 97, 70 D.T.C. 6382; Nelles v. Ontario, supra note 2, pp. 191-192; Krieger v. Law Society of Alberta, 2002 SCC 65, paras. 24-26.

(6) See R. v. Smythe, supra note 5. It was in this same case that the Supreme Court upheld the public prosecutor's discretion to elect to proceed by summary conviction or indictment, Smythe v. The Queen, [1971] S.C.R, 680.

(7) James Taylor, Boardroom Scandal: The Criminalization of Company Fraud in Nineteenth-Century Britain (Oxford University Press: 2013) p. 191.

(8) Idem J. Ll. J. Edwards, supra note 3, chapter 16: Evolution of the Office of Director of Public Prosecution and chapter 17: The Modern Development of the Office of Director of Public Prosecutions.

(9) J. Ll. J. Edwards, supra note 3, chapter 16: Evolution of the Office of Director of Public Prosecution and chapter 17: The Modern Development of the Office of Director of Public Prosecutions;The Crown Prosecution Services, The History of the Crown Prosecution Service.

(10) R. v. Hauser, supra note 4, pp. 1029-1030 (J. Dickson).

(11) Law Reform Commission of Canada, supra note 5, p. 5; Lori Sterling and Heather Mackay, Constitutional Recognition of the Role of the Attorney General in Criminal Prosecution: Krieger v. Law Society of Alberta, (2003) 20 S.C.L.R. (2d) 169, p. 171.

(12) Marvin R. Bloos, The Public Prosecutions Model From Upper Canada, 1990 32 C.L.Q. 69.

(13) A. Buteau, supra note 5, p. 254; Rapport Rouleau, supra note 5, p. 6-7; John Ll. J. Edwards, Ministerial responsibility for national security as it relates to the Offices of Prime Minister, Attorney General and Solicitor General of Canada, Commission of Inquiry Concerning Certain Activities of the Royal Canadian Mounted Police (Ottawa, 1980) pp. 8, 35.

(14) Rapport Rouleau, supra note 5, p. 34; Comite de la remuneration des procureurs aux poursuites criminelles et penales, Rapport sur la remuneration et certaines conditions de travail des procureurs aux poursuites criminelles et penales, September 25, 2015, p. 8.

(15) A. Buteau, supra note 5, p. 261.

(16) Act respecting Attorney General's prosecutors, S.Q. 1969, c. 20, hereinafter the Act respecting Attorney General's prosecutors (1969).

(17) Ibid., s. 9.

(18) Frank Armstrong and Kenneth L. Chasse, The Right to an Independent Prosecutor, (1975) 28 C.N.R.S. 160, pp. 181-182.

(19) Act respecting Attorney General's prosecutors (1969), supra note 16, s. 7.

(20) Ibid., s 4.

(21) An Act to amend the Act respecting Attorney General's prosecutors, S.Q. 1972, c. 13, hereinafter the Act to amend the Act respecting Attorney General's prosecutors (1972).

(22) Ibid., s. 5.

(23) Ibid., s. 2.

(24) Ibid., s. 7.

(25) Lot modiftant ou abrogeant certaines dispositions legislatives, S.Q. 1979, c. 32, s. 11.

(26) Act to amend the Act respecting Attorney General's prosecutors, S.Q. 1993, c. 29, hereinafter the Act to amend the Act respecting Attorney General's prosecutors (1993).

(27) Act to amend the Act respecting Attorney General's prosecutors, S.Q. 2002, c. 73.

(28) Moderniser l'Etat--Pour des services de qualite aux citoyeus--Plan de modernisation 2004-2007 (Quebec, Secretariat du conseil du Tresor: May 2004) p. 53.

(29) Bill 109 (Act respecting Attorney General's prosecutors), Debate concerning the passage in principle of the bill, journal des debats de l' Assemblee nationale, 37th Legislature, 1st session, Vol. 38, No. 158, May 31, 2005.

(30) Bill 109 (Act respecting Attorney General's prosecutors), Debate concerning the consideration of the report of the Commission des institutions. Journal des debats de l'Assemblee nationale, 37th Legislature, 1st session, Vol. 38, No. 191, November 30, 2005.

(31) Act to amend the rules governing the appointment and dismissal of the Anti-Corruption Commissioner, the Director General of the Surete du Quebec and the Director of Criminal and Penal Prosecutions, S.Q. 2019, c. 6 (Bill 1).

(32) England, Prosecution of Offences Act, 1985, c. 23.

(33) Ireland, Prosecution of Offences Act, 1974, No. 22.

(34) Australia, Director of Public Prosecutions Act, 1983 No. 113.

(35) Public Prosecutions Act, 1990, c. 21 of the Acts of 1990 am. 1999 (2nd Sess.), c. 16.

(36) Crown Counsel Act, RSBC 1996, c. 87.

(37) An Act respecting the office of the Director of Public Prosecutions, S.C. 2006, c. 9, s. 121.
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Author:Michel, Patrick
Publication:Prosecutor, Journal of the National District Attorneys Association
Date:Jul 1, 2019
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