Notices to the Attorney General under Section 13 of the Director of Public Prosecutions Act

The Director of Public Prosecutions has a duty under section 13 of the Director of Public Prosecutions Act to inform the Attorney General in a timely manner of any prosecution, or intervention that the DPP intends to make, that raises important questions of general interest. This duty is essential to the relationship between the Attorney General and the DPP, since such information may be used by the Attorney General in deciding whether to issue a directive in the prosecution under section 10 of the Act or to assume conduct of the prosecution under section 15.

Section 13 notices are required in cases that raise “important questions” that are of “general interest”. “General interest” is considered to subsume “public interest”, and accords the DPP with a broader duty to inform the Attorney General of important matters.

Considerations

A directive of the Attorney General issued under section 10 of the Director of Public Prosecutions Act provides the DPP with guidance on the types of cases for which notice should typically be given (Part 1 of the PPSC Deskbook). The directive currently lists the following types of cases as ones that generally would require a section 13 notice:

• Cases giving rise to concerns regarding public confidence in the administration of justice, including the manner in which a prosecution is conducted insofar as the impartiality or independence of the PPSC is at issue;
• Cases that may have a significant impact on established jurisprudence;
• National security prosecutions;
• War crimes, crimes against humanity and genocide prosecutions;
• Official languages issues in prosecutions;
• Prosecutions that involve novel aboriginal rights issues;
• Criminal organization prosecutions that raise “important questions of general interest” by virtue of the significance or novelty of the issues being litigated, or any broader government concerns such as border security;
• Environmental prosecutions that raise issues of national importance;
• Capital markets fraud cases of national significance;
• Constitutional challenges (Canadian Charter of Rights and Freedoms (Charter) or division of powers) to legislation or to federal government programs that are novel (i.e. notices would not be required on routine or recurring constitutional challenges);
• Cases that give rise to sustained, significant and/or anticipated media interest and that also raise important questions, for example when a matter puts into question the public’s confidence in the administration of justice; and
• Cases with an international dimension.

Section 13 is a statutory guarantee that the DPP will inform the Attorney General of prosecutions so as to allow the Attorney General to properly execute his or her functions as chief law officer of the Crown. Section 13 notes issued by the DPP are intended for the Attorney General personally.

Section 13 requires that notice be given “in a timely manner.” By necessity, the timelines for providing a section 13 notice will vary from case to case in accordance with the particular facts, including any applicable time limitation periods. Notices are typically given at various milestone stages of the prosecution, notably before discontinuing or staying a prosecution, including a private prosecution, and prior to decisions to appeal or to intervene.

Where PPSC prosecutors are involved in providing advice in respect of an investigation, and the resulting prosecution, should it occur, is one that would raise important questions of general interest, the DPP informs the Attorney General only once charges have been laid. However, in situations where prior prosecutorial consent to initiate a prosecution is statutorily required, e.g., terrorism prosecutions, notice is typically given before the consent is provided.

Section 13 does not preclude oral notice, which may be given when it is necessary to do so in light of time constraints.

There are a number of proceedings to which section 13 does not apply, namely:

• prosecutions under the Canada Elections Act;
• proceedings conducted by the PPSC on behalf of the Attorney General under either the Extradition Act or the Mutual Legal Assistance in Criminal Matters Act (it should be noted that to date the PPSC has not conducted proceedings under the Extradition Act or the Mutual Legal Assistance in Criminal Matters Act as the Department of Justice conducts all proceedings under those statutes); or
• prosecutions of offences that fall under provincial jurisdiction and which the DPP prosecutes on behalf of a provincial prosecution service.