Krieger et al. v. Law Society of Alberta, (2002) 293 N.R. 201 (SCC)

• Judge: McLachlin, C.J.C., L'Heureux-Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel, JJ.
• Court: Supreme Court (Canada)
• Case Date: May 17, 2002
• Jurisdiction: Canada (Federal)
• Citations: (2002), 293 N.R. 201 (SCC);2002 SCC 65;312 AR 275;4 CR (6th) 255;JE 2002-1884;217 DLR (4th) 513;[2002] SCJ No 45 (QL);293 NR 201;117 ACWS (3d) 166;[2003] 1 WWR 193;7 Alta LR (4th) 1;168 CCC (3d) 97;43 Admin LR (3d) 167;54 WCB (2d) 603;[2002] 3 SCR 372

Krieger v. Alta. Law Soc. (2002), 293 N.R. 201 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2002] N.R. TBEd. OC.002

Law Society of Alberta (appellant) v. Craig Charles Krieger and the Minister of Justice and Attorney General for Alberta (respondents) and Attorney General of Canada, Attorney General for Ontario, Attorney General of Quebec, Attorney General of Manitoba, Attorney General of Nova Scotia, Attorney General of British Columbia, Attorney General for Saskatchewan, Attorney General of Newfoundland and Labrador, Federation of Law Societies of Canada, Ontario Crown Attorneys' Association and Criminal Trial Lawyers' Association (intervenors)

(28275; 2002 SCC 65; 2002 CSC 65)

Indexed As: Krieger et al. v. Law Society of Alberta

Supreme Court of Canada

McLachlin, C.J.C., L'Heureux-Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel, JJ.

May 17, 2002.

Summary:

A Crown prosecutor was reprimanded and removed from a murder trial by the Attorney General for failing to disclose evidence to the accused. The Attorney General con­sidered it an error in judgment. The accused filed a complaint with the Law Society. The Society investigated and referred the matter to the Conduct Committee, citing rule 28(d) of the Code of Professional Conduct (failure of prosecutor to make timely disclosure). The prosecutor sought an order that the Law Society lacked jurisdiction to review the exercise of prosecutorial discretion and that the rules of the Code of Professional Con­duct were of no force and effect.

The Alberta Court of Queen's Bench, in a judgment reported (1997), 205 A.R. 243, held that the Law Society had jurisdiction to review a prosecutor's conduct where bad faith or dishonesty (not matters of prosecu­torial discretion) were alleged. The jurisdic­tion did not encroach upon the federal con­stitutional power over the criminal law. The prosecu­tor appealed.

The Alberta Court of Appeal, in a judg­ment reported (2000), 277 A.R. 31; 242 W.A.C. 31, allowed the appeal. The Law Society had no jurisdiction to review the conduct of a prosecutor where the Attorney General determined that there was an error of judgment, but no bad faith or dishonesty. The Law Society appealed.

The Supreme Court of Canada allowed the appeal and restored the judgment of the trial judge. Prosecutorial decisions, as long as made honestly and in good faith, are pro­tected from review by provincial disciplinary bodies under the doctrine of prosecutorial discretion. However, the Law Society had jurisdiction to review an allegation that a prosecutor in bad faith failed to disclose relevant information. Disclosure was a legal duty, not a matter of prosecutorial discretion.

Barristers and Solicitors - Topic 1808

The prosecutor - Duty of disclosure - [See Barristers and Solicitors - Topic 5182 ].

Barristers and Solicitors - Topic 5182

Discipline - Disciplinary powers - Jurisdic­tion of disciplinary body - The prosecutor in a murder case failed to disclose relevant information - The accused filed a com­plaint with the Law Society - The prosecu­tor challenged the Society's jurisdiction - The Supreme Court of Canada held that the Law Society had jurisdiction to review an allegation that a prosecutor acted dis­honestly or in bad faith in failing to dis­close information - The province had jurisdiction to regulate the legal profession (Constitution Act, 1867, s. 92(13) (prop­erty and civil rights)) - Since prosecutors must be members of the Law Society, they were subject to the Society's Code of Professional Conduct - The court stated that "all conduct that is not protected by the doctrine of prosecutorial discretion is subject to the conduct review process. As the disclosure of relevant evidence is not a matter of prosecutorial discretion but, rather, is a legal duty, the Law Society possesses the jurisdiction to review an allegation that a Crown prosecutor acting dishonestly or in bad faith failed to dis­close relevant information" - See para­graphs 1 to 60.

Constitutional Law - Topic 6476.1

Federal jurisdiction (s. 91) - Criminal law -"Procedure in criminal matters" - Regula­tion of prosecutors - At issue was whether the Law Society of Alberta had jurisdiction to discipline a Crown prosecutor - Rule 28(d) of the Alberta Code of Professional Conduct obligated a prosecutor to make timely disclosure of relevant information - The commentary to the rule limited its application to nondisclosure involving dishonesty or bad faith, noting that there was no intention to interfere with prosecu­torial discretion - The Supreme Court of Canada stated that "provincial regulations establishing the proper conduct of a lawyer in a criminal trial are likely to impact procedure in a criminal trial. Nonetheless, it is our view that the rule is intra vires the province. Although the legislative compe­tence of the province to regulate the Law Society has been grounded in both ss. 92(13) [property and civil rights] and 92(14) [administration of justice], the weight of authority with which we agree finds greater comfort in s. 92(13)." - The court noted that the "pith and substance" of the rule was directed at professional disci­pline, and did not intrude into the area of criminal law and procedure - See para­graphs 33 to 39.

Constitutional Law - Topic 7284.2

Provincial jurisdiction (s. 92) - Property and civil rights - Regulatory statutes - Regulation of lawyers - [See Barristers and Solicitors - Topic 5182 and Constitu­tional Law - Topic 6476.1 ].

Criminal Law - Topic 22

General principles - Prosecution of crime -Function of the Crown prosecutor and Attorney General - The Supreme Court of Canada discussed the role of the Attorney General, and his or her agents, particularly respecting the prosecution of crime - The court noted, inter alia, that "the Attorney General must act independently of partisan concerns when supervising prosecutorial decisions. ... This side of the Attorney General's independence finds further form in the principle that courts will not inter­fere with his exercise of prosecutorial discretion, as reflected in the prosecutorial decision-making process. ... The quasi-judicial function of the Attorney General cannot be subjected to interference from parties who are not as competent to con­sider the various factors involved in making a decision to prosecute." - See paragraphs 23 to 32.

Criminal Law - Topic 26

General principles - Prosecution of crime -Prosecutorial discretion - [See Criminal Law - Topic 22 ].

Criminal Law - Topic 26

General principles - Prosecution of crime -Prosecutorial discretion - The Supreme Court of Canada stated that "the core elements of prosecutorial discretion encompass the following: (a) the discretion whether to bring the prosecution of a charge laid by police; (b) the discretion to enter a stay of proceedings in either a private or public prosecution, as codified in the Criminal Code, R.S.C. 1985, c. C-46, ss. 579 and 579.1; (c) the discretion to accept a guilty plea to a lesser charge; (d) the discretion to withdraw from criminal proceedings altogether: ...; and (e) the discretion to take control of a private prosecution: ... While there are other dis­cretionary decisions, these are the core of the delegated sovereign authority peculiar to the office of the Attorney General. Significantly, what is common to the vari­ous elements of prosecutorial discretion is that they involve the ultimate decisions as to whether a prosecution should be brought, continued or ceased, and what the prosecution ought to be for. Put different­ly, prosecutorial discretion refers to deci­sions regarding the nature and extent of the prosecution and the Attorney General's participation in it. Decisions that do not go to the nature and extent of the prosecution, i.e., the decisions that govern a Crown prosecutor's tactics or conduct before the court, do not fall within the scope of pros­ecutorial discretion. Rather, such decisions are governed by the inherent jurisdiction of the court to control its own processes once the Attorney General has elected to enter into that forum." - See paragraphs 46 to 47.

Cases Noticed:

Nelles v. Ontario et al., [1989] 2 S.C.R. 170; 98 N.R. 321; 35 O.A.C. 161, refd to. [para. 18].

R. v. Stinchcombe, [1991] 3 S.C.R. 326; 130 N.R. 277; 120 A.R. 161; 8 W.A.C. 161, refd to. [para. 18].

R. v. Chaplin (D.A.) et al., [1995] 1 S.C.R. 727; 178 N.R. 118; 162 A.R. 272; 83 W.A.C. 272, refd to. [para. 18].

Wilkes v. R. (1768), Wilm. 322; 97 E.R. 123, refd to. [para. 24].

R. v. Regan (G.A.) (2002), 282 N.R. 1; 210 N.S.R.(2d) 63; 629 A.P.R. 63 (S.C.C.), refd to. [para. 30].

R. v. Power (E.), [1994] 1 S.C.R. 601; 165 N.R. 241; 117 Nfld. & P.E.I.R. 269; 365 A.P.R. 269, refd to. [para. 31].

Hoem v. Law Society of British Columbia (1985), 20 C.C.C.(3d) 239 (B.C.C.A.), refd to. [para. 32].

Law Society of British Columbia v. Mangat, [2001] 3 S.C.R. 113; 276 N.R. 339; 157 B.C.A.C. 161; 256 W.A.C. 161, refd to. [para. 33].

Whitbread v. Walley et al., [1990] 3 S.C.R. 1273; 120 N.R. 109, refd to. [para. 34].

Global Securities Corp. v. British Colum­bia Securities Commission et al., [2001] 1 S.C.R. 494; 252 N.R. 290; 134 B.C.A.C. 207; 219 W.A.C. 207, refd to. [para. 35].

R. v. Osborne (1975), 11 N.B.R.(2d) 48; 7 A.P.R. 48; 25 C.C.C.(2d) 405 (C.A.), refd to. [para. 46].

Osiowy v. Lynn, P.C.J. (1989), 77 Sask.R. 1; 50 C.C.C.(3d) 189 (C.A.), refd to. [para. 46].

Campbell v. Ontario (Attorney General) (1987), 35 C.C.C.(3d) 480 (Ont. C.A.), refd to. [para. 49].

Chartrand v. Québec (Procureur général) et Machabée (1987), 14 Q.A.C. 81; 59 C.R.(3d) 388 (C.A.), refd to. [para. 49].

Statutes Noticed:

Constitution Act, 1867, sect. 91(27), sect. 92(13), sect. 92(14) [para. 15].

Government Organization Act, R.S.A. 2000, c. G-10, Schedule 9, sect. 2 [para. 28].

Legal Profession Act, S.A. 1990, c. L-9.1, sect. 6(1), sect. 47, sect. 103(1)(b) [para. 15].

Authors and Works Noticed:

Canada, Law Reform Commission, Con­trolling Criminal Prosecutions: The At­torney General and the Crown Prosecu­tor, Working Paper No. 62 (1990), pp. 9 to 11 [para. 30].

Edwards, J.L.J., The Law Officers of the Crown (1964), pp. 12 to 14 [para. 24]; 174 to 176 [para. 29].

Hogg, Peter W., Constitutional Law of Canada (1992) (2001 Looseleaf Ed.), vol. 1, p. 21-10 [para. 33].

Law Society of Alberta, Code of Pro­fessional Conduct, rule 28 [para. 15].

Proulx, M., and Layton, D., Ethics and Canadian Criminal Law (2001), p. 657 [para. 59].

Vanek, David, Prosecutorial Discretion (1987-88), 30 Crim. L.Q. 219, p. 219 [para. 44].

Counsel:

Lindsay MacDonald, Q.C., for the appel­lant, Law Society of Alberta;

Christopher D. Evans, Q.C., for the re­spondent, Krieger;

Richard F. Taylor, Q.C., for the respon­dent, Minister of Justice and Attorney General for Alberta;

Robert J. Frater, for the intervenor, Attor­ney General of Canada;

Kenneth L. Campbell, for the intervenor, Attorney General for Ontario;

Alain Gingras, for the intervenor, Attorney General of Quebec;

James A. Gumpert, Q.C., and Marc C. Chisholm, Q.C., for the intervenor, At­torney General of Nova Scotia;

Shawn Greenberg, for the intervenor, Attorney General of Manitoba;

George H. Copley, Q.C., and M. Joyce DeWitt-Van Oosten, for the intervenor, Attorney General of British Columbia;

Graeme G. Mitchell, Q.C., for the intervenor, Attorney General for Saskatchewan;

Kathleen Healey, for the intervenor, Attor­ney General of Newfoundland and Labrador;

Alan D. Gold, for the intervenor, Feder­ation of Law Societies of Canada;

Paul J.J. Cavalluzzo and Rosella Cornaviera, for the intervenor, Ontario Crown Attorneys' Association;

Donald W. MacLeod, Q.C., for the intervenor, Criminal Trial Lawyers' Association.

Solicitors of Record:

Law Society of Alberta, Calgary, Alberta, for the appellant, Law Society of Alberta;

Christopher D. Evans, Calgary, Alberta, for the respondent, Krieger;

Department of Justice, Edmonton, Alberta, for the respondent, Minister of Justice and Attorney General for Alberta;

Department of Justice, Ottawa, Ontario, for the intervenor, Attorney General of Canada;

Ministry of the Attorney General, Toronto, Ontario, for the intervenor, Attorney General for Ontario;

Department of Justice, Sainte-Foy, Quebec, for the intervenor, Attorney General of Quebec;

Public Prosecution Service, Halifax, N.S., for the intervenor, Attorney General of Nova Scotia;

Department of Justice, Winnipeg, Manitoba, for the intervenor, Attorney General of Manitoba;

Ministry of the Attorney General, Victoria, B.C., for the intervenor, Attorney Gen­eral of British Columbia;

Deputy Attorney General for Saskatchewan, Regina, Saskatchewan, for the intervenor, Attorney General for Saskatchewan;

Department of Justice, St. John's, Nfld., for the intervenor, Attorney General of Newfoundland and Labrador;

Gold & Fuerst, Toronto, Ontario, for the intervenor, Federation of Law Societies of Canada;

Cavalluzzo Hayes Shilton McIntyre & Cornish, Toronto, Ontario, for the intervenor, Ontario Crown Attorneys' Asso­ciation;

O'Brien Devlin Markey MacLeod, Calgary, Alberta, for the intervenor, Criminal Trial Lawyers' Association.

This appeal was heard on May 17, 2002, before McLachlin, C.J.C., L'Heureux-Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel, JJ., of the Supreme Court of Canada.

On May 17, 2002, the judgment of the Court was delivered orally by Iacobucci and Major, JJ., with joint written reasons delivered on October 10, 2002.