B. Jurisdiction
| Author | Steve Coughlan |
| Profession | Professor of Law. Dalhousie University |
| Pages | 42-58 |
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Jurisdiction is a word used variously to mean power, authority, competence, or geographical space. It is used to describe the functions of police officers, judges, courts, legislative bodies, and others. It is also used to describe limitations upon them. In criminal procedure all of these various meanings are used in different contexts and, given the importance attached to several, this chapter introduces elementary notions of jurisdiction in criminal procedure.
Almost all criminal cases in Canada are public prosecutions conducted by agents of the attorney general. In principle, however, anyone may commence a prosecution by laying an information. If the information
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is sworn, a private prosecution may proceed unless the case is taken over by the attorney general.
The attorney general is the principal law officer of the Crown, which means that she is the chief barrister and solicitor for the government.28
There is an attorney general in the federal government and in each of the provincial governments.
Prosecutions are almost never conducted personally by the attorney general, but by persons who are legally authorized to act in his name.29Section 2 of the Code specifies that the attorney general may be represented by his deputy.30With regard to public prosecutions, the definition of "prosecutor" in section 2 includes counsel appearing for the attorney general with regard to indictable offences. Some provinces have adopted a model in which routine responsibility for the conduct of criminal prosecutions is confided to a senior person called the director of public prosecutions. This model does not change the constitutional position of the attorney general as chief law officer of the Crown, but it does ensure a measure of professional independence for purposes of prosecution. It also helps guarantee greater openness and accountability around decisions to lay or withdraw charges, at least where the attorney general is directly involved. Counsel may include not only professional prosecutors but also private counsel whom are appointed ad hoc to act on behalf of the attorney general.31With regard to summary conviction matters, the definition of prosecutor in section 785 allows prosecution by the attorney general, counsel appearing for her, or an "agent." In some instances, a summary conviction prosecution may also be conducted by a peace officer.32Apart from general principles governing the authority to prosecute, Parliament occasionally imposes a requirement that a prosecution cannot proceed without the consent of the attorney general. This requirement is found in section 7 of the Code in the case of some offences over
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which Canada exerts extraterritorial jurisdiction, or in the provision that creates the offence in other cases.33In most instances where consent is required it refers to the attorney general of the province, but there are numerous exceptions where the consent of the Attorney General of Canada is required.34In most cases proof of consent need not be proven unless the issue of jurisdiction to prosecute on this ground is raised by the accused, though there are some exceptions.35Where this requirement exists, it virtually guarantees that a private prosecution could not be commenced because the likelihood that the attorney general would give consent in such cases is theoretically real but practically nil.
The requirement for the consent of the attorney general is presumably intended to ensure a critical examination of cases before charges are laid. The requirement arguably exists in relation to offences that are likely to be highly sensitive to the public or that otherwise require rigorous consideration of the public interest in prosecution. However, the Law Reform Commission of Canada suggests that there is no obvious unifying factor among offences where consent is required.36The Commission was also critical of the non-public nature of the decision and the fact that an attorney general was not required to give reasons for either granting or refusing consent to a prosecution: in their view no offences should have a consent requirement.37
There are several ways in which the requirement for consent is expressed in the Criminal Code and other statutes.38Despite these variations, the essential distinction to retain is between cases in which the personal consent of the attorney general is required39and the majority of instances in which the statute demands only the "consent of the attorney general." In the latter case, there is some scope for ambigu-
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ity as to precisely what is required. Something less than the personal consent of the attorney general would be sufficient, but anything less than the consent of prosecuting counsel in the instant case might be inadequate. Accordingly, such authorization might be sought from senior prosecuting counsel within the territorial jurisdiction in which the case arises: broadly speaking, the consent should be given by someone senior enough to be commensurate with the seriousness of the prosecution.40This might include senior counsel responsible for the direction of prosecutions in a province or region. In any case, where some form of consent is required, it should be given in writing and placed before the court.
The attorney general and her agents have a large measure of discretion in the conduct of prosecutions. The requirement of consent is one among many, and many of the others have a much greater importance in the routine practice of criminal law. The prosecutor exercises various statutory powers, such as deciding whether an accused must have a jury trial, whether to proceed by direct indictment, whether to assume carriage of a private prosecution, or, in any case, whether to enter a stay of proceedings.41The prosecution also exercises discretion over many other decisions, such as whether to proceed by indictable or summary conviction procedure in the case of a hybrid offence, whether to withdraw a charge, and whether to consent to an adjournment, launch an appeal, and so on.42In some provinces the prosecution has a role in charging decisions and therefore has input into whether to charge an offence and, if so, what charges.43
As the prosecution’s discretion is derived from the royal prerogative, the courts will rarely interfere with the manner in which it is exercised. "Prosecutorial discretion", as a term of art, refers to the core prosecutorial functions such as whether to: pursue a charge laid by police; stay proceedings; accept a guilty plea to a lesser charge; withdraw from criminal proceedings altogether; or take control of a private prosecution.44The common feature of those functions is that they relate to whether a prosecution should be brought at all, and, if so, on what charge. Accordingly a decision to repudiate a plea agreement would
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also fall within "prosecutorial discretion."45Failing a showing of abuse of process, courts will not review exercises of prosecutorial discretion.46However, decisions not forming part of the core prosecutorial functions, and which instead simply form part of a Crown prosecutor’s tactics or conduct before the court, are not insulated from review in the same way and instead are governed by the inherent jurisdiction of a court to control its own processes.47
As previously noted, any person may commence a criminal prosecution by swearing an information before a competent judicial authority. The concept of a private prosecution is ancient in the common law and it reflects the right of every person subject to the sovereign to invoke the protection of the law by making a complaint of a breach of the King’s Peace. In modern terms, a private prosecutor is any prosecutor under the Code who is not an agent of the attorney general. It should not be thought, however, that a private prosecution of alleged crime is in any way a private action between the parties. The private prosecutor is not a plaintiff but is allowed under the criminal law to prosecute in the place of the attorney general.
Although the right to commence a private prosecution is ancient, the growth and development of the role of the attorney general as the public prosecutor has diminished the frequency and the significance of private prosecutions. Indeed, virtually the only reason that motivates people today to commence a private prosecution is that a public prosecutor has decided not to proceed, either because there is insufficient evidence to sustain the case or because prosecution of the alleged of-fence is otherwise not in the public interest. Thus private prosecutions now tend to occur only when the attorney general or his agent has refused to lay charges.
The formal procedure for the commencement of a private prosecution is the same whether the offence alleged is indictable or summary, but the position is not the same for purposes of trial. Assuming that a judge receives and endorses the information, the informant becomes the prosecutor. The prosecutor has carriage of the case from that point and must conform to all of the obligations that prosecutors are obliged to fulfil. A private prosecutor, for example, would be no less bound by
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the obligation to make full disclosure to the defence than an agent of the attorney general.
A private prosecutor may appear personally or be represented by counsel.48If the offence is indictable and the accused is entitled to a preliminary inquiry, a private prosecution may proceed to the conclusion of the preliminary inquiry. At this point, however, the Criminal Code erects barriers to the continuation of the prosecution at trial. If the accused is ordered...
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