Transition Book - 2023

Prosecution Activities Overview

In 2022-2023, the PPSC worked on 49,028 files. This figure includes 23,557 files opened during the year, as well as 25,451 files carried over from previous years^{Footnote 1}.

Overall, PPSC prosecutors, paralegals, legal support staff, and agents working on behalf of PPSC spent a total of 1,069,242 hours on prosecution files during the last fiscal year.

PPSC prosecutors and paralegals spent an additional 257,083 hours providing legal advice to investigative agencies, participating in various committees, both national and regional, and assisting with other important corporate work, as well as providing or receiving training.

Top 10 Federal Statutes

The PPSC regularly prosecutes offences under approximately 36 federal statutes. The following chart outlines the top ten statutes by charges laid by the federal investigative agencies, police of local jurisdiction and federal policing of the RCMP.

Outcomes of Charges

The chart below provides an overview of outcomes of charges for the 2022-2023 fiscal year summarized by accused and by charge.^{Footnote 2}

Types of Offences^{Footnote 4} The graphs below illustrate the proportional values of PPSC national case files based on offence type^{Footnote 5} for the fiscal year 2022-2023.

Stays of Proceedings Based on Delay

The Supreme Court of Canada decision in R v Jordan, established a new framework for the analysis of unreasonable delay pursuant to s 11(b) of the Charter of Rights and Freedoms. The judgment set presumptive delay ceilings of 18 months for cases being tried at the Provincial Court level, and 30 months for cases being tried at a Superior Court level.

This reform has since led to certain changes in practice in order to advance cases before the courts. The courts and the parties are more vigilant and effective in addressing questions of fact or law that can be resolved prior to the trial, and prosecutors must ensure, among other things, that evidence is disclosed in a timely manner and that the case is not made needlessly complicated. Additionally, PPSC prosecutors must coordinate their efforts with their provincial counterparts to prioritize the most important cases, when appropriate. All this preparation and coordination creates additional work for prosecutors to ensure that the accused is tried within the timeframes set out in Jordan.

While they stop short of interfering with the prosecutor's discretion, the courts are often more critical when choices relating to the number of charges or the presentation of evidence result in unnecessary delays.

Despite this reform and the difficulty eliminating institutional delay in certain judicial districts, particularly in t/he Toronto and Montréal regions, there has not been a wave of stays of proceedings across the country.

The PPSC has always placed a priority on ensuring that cases are prosecuted in a principled and timely manner, which includes building upon existing practices and policies relating to file management. The Lesage/Code Report and the recent Bouchard Report have highlighted the PPSC's role in the forefront of the efficient management of large, complex prosecutions.

Since the Jordan decision was issued, the PPSC formalized specific measures in the PPSC Deskbook, by adding a guideline, "Ensuring Timely Prosecutions". The guideline outlines steps to be taken by PPSC counsel and agents to anticipate time requirements and minimize delays in prosecutions.

A national PPSC working group meets regularly to keep up to date on the latest developments in the case law, review the impact of institutional delay and exchange best practices to ensure better case management as mentioned above, all with the goal of minimizing stays of proceedings. For example, direct indictments that shorten timeframes are now part of the landscape of adaptation and change sought by Jordan.

The following table presents cases closed, in the 2022-2023 fiscal year, that resulted in a judicial stay or the Crown directed a stay of proceedings due to Crown delay.

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

Under section13 of the Director of Public Prosecutions Act, the Director of Public Prosecution of Canada (DPP) must inform the Attorney General of any prosecution or intervention 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, to intervene in proceedings under section 14, 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.

The Attorney General issued a Directive in 2014 to identify the type of cases that should be reported and to provide direction on the timing and format of the notice. This 2014 Directive has been superseded by a 2023 Directive, implementing recommendations flowing from the McLellan Report.

Considerations

The McLellan Report

The Honourable A. Anne McLellan was asked to review the roles of the Minister of Justice and Attorney General of Canada. The McLellan Report, issued on August 14, 2019, reviewed the operating policies and practices across Cabinet regarding interactions with the Attorney General of Canada, including the potential for inappropriate partisan interests to be considered in the course of prosecutions. The report also reviewed the possibility of prosecution decisions being made without the benefit of appropriate and transparent consultations with those beyond the prosecution function.

While the McLellan Report concluded that the Canadian system benefits from the fusion of the roles of the Minister of Justice and Attorney General of Canada and that the current reporting mechanisms including section 13 notices function well, it also made recommendations to improve openness and transparency in this unique position and to reinforce prosecutorial independence.

On July 6, 2023, the Attorney General of Canada issued an updated directive regarding the DPP's duty to inform the Attorney General of Canada under section 13 of the Director of Public Prosecutions Act. Changes brought forward by this updated directive outline practices adopted relating to provide clarifications about communications between the DPP and the Attorney General of Canada and others about matters contained within section 13 notices. They also clarify the reasons why the Attorney General of Canada may decide to assume control over a prosecution.

The main changes made to the Attorney General Directive on section13 notices are:

• The addition of a preamble.
• The removal of a section on the format of the notice, which dealt mostly with internal PPSC processes.
• The addition of section 5 about the content of the notice, which will require that notices "include a contextual explanation setting out why the Attorney General is being informed of the matter, as well as details concerning relevant timelines, such as filing deadlines, hearing dates, and trial dates, and other information that would be relevant to inform any decision by the Attorney General."
• The addition of section 6 about the treatment of the notice.

Cases which may warrant a s. 13 notice

The directive provides the DPP with guidance on the types of cases for which notice should typically be given, such as the following:

• 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;
• Novel 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;
• Cases with an international dimension
• 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.

The s. 13 mechanism

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 also 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.

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.

Drug Prosecutions under the Controlled Drugs and Substances Act and Cannabis Act

The PPSC is responsible for the prosecution of all offences in the Controlled Drugs and Substances Act (CDSA) and Cannabis Act, except in Quebec and New Brunswick.^{Footnote 6} The PPSC prosecuted more than 44,000 files under the CDSA and Cannabis Act in 2022-2023. Drug prosecutions represent approximately 71% of PPSC's work.

There are currently two areas of focus pertaining to drug prosecutions that are given special consideration. First, in an effort to address large-scale importation, manufacture and importing of controlled substances, special consideration is given to the prosecution of offences tied to organized crime. Second, the opioid crisis is one of the most critical problems in Canadian society. With this in mind, special attention is given to prosecution strategies related to opioid offences, including alternative measures to prosecution for eligible offenders suffering from a substance use disorder and appropriately severe sentencing for those involved in significant fentanyl commercial trafficking.

Addressing the illicit supply of controlled substances in Canada

The quantity of cocaine, methamphetamines, heroin and fentanyl being imported is increasing. Shipments of cocaine over 100 kilograms, for example, are not unusual and at times, with couriers who have no knowledge of their role. Prosecution is more difficult as a result.

Investigative techniques are confronting technologies that are difficult for the police to overcome. The provisions of the Criminal Code relating to the authorization of such powers have not kept pace with the technologies. Trial procedures to justify the use of sensitive investigative techniques and the protection of information about them during trials are challenging and time consuming. Lengthy investigations rely upon multiple court orders that each can be challenged in protracted pre-tiral voir dires. There is an increasing number of prosecutions involving weapons being delegated to the PPSC by provincial prosecution services.

The increase in the complexity and sophistication of major drug cases is often due to the combination of telecommunications technology and evolving jurisprudence relating to expectations of privacy in public and quasi-public physical and virtual settings that has added to the complexity of cases. This has resulted in the need for more time and resources to effectively prosecute these major cases.

Appropriate sentences for commercial fentanyl trafficking

The PPSC has seen an increase in the number of fentanyl and synthetic opioids prosecution files over the past years. In response, a complete sentencing record relating to fentanyl was created for the courts, including expert medical evidence, in order to strenuously advocate for proportionate sentences that recognize the extreme danger posed by fentanyl trafficking and the devastating impact it has had on Canadian society. The PPSC is in the process of doing the same for new and emerging hazardous and toxic substances such as synthetic opioids and deadly contaminants like Xylazine.

To ensure consistency of practice across all regions, the PPSC created a network of federal prosecutors appointed as specialists on fentanyl and synthetic opioid issues in each region, coordinated from PPSC Headquarters. This working group shares information relating to relevant jurisprudence across the country, as well as emerging challenges and best practices. The PPSC has also created a fentanyl-sentencing database on its Knowledge Management intranet site that is regularly updated and accessible to all PPSC counsel. Fentanyl trafficking offences now attract the highest custodial sentences imposed by the courts in all regions in Canada.

Organized crime prosecutions

There are four specific criminal organization offences under the Criminal Code that may be considered in respect of serious predicate drug and other federal offences. The evidence gathered in organized crime investigations may establish the offences of participation in the activities of a criminal organization, recruiting persons to join the criminal organization, committing offences in association with the criminal organization and directing others to commit offences for the benefit of, at the direction of, or in association with the criminal organization. In each case, the Crown is required to lead evidence to prove that the group meets the Criminal Code definition of a criminal organization as a group of three or more persons which has, as one of its main purposes or activities, the facilitation or commission of indictable offences punishable by a maximum of five years or more imprisonment. The prosecutor may also introduce evidence that the offences were committed in relation to organized crime without charging the specific criminal organization offences. PPSC counsel receive guidance in relation to when it is most appropriate and effective to introduce criminal organization evidence as part of a prosecution charging the particular criminal organization offences or at the sentencing stage in relation to standard drug charges.

Most organized crime prosecutions are large, complex and transnational in scope.

• They generally involve the collection by the police of hundreds of thousands of pieces of electronic information which need to be assessed for purposes of disclosure to the defence. The dedication of significant police resources is required to gather and organize the fruits of the investigation and other peripheral disclosure materials, and to provide them to the Crown in a timely and organized manner. This may be further complicated by the impact of different legal regimes in respect to the admissibility of foreign acquired evidence. Prosecution plans and resourcing at the outset is also required for the Crown to discharge its duties in respect to the editing of disclosure materials to protect the identity of informers or other privileged information before disclosing them to the defence.
• Prosecutions often rely on the interception of communications. Most of the communications are now text-based. Accessing information, in many cases, will require the use of complicated technological tools to override security systems and break through complicated encryption. The volume of information gathered in these investigations and the sophistication of the technology used by investigators significantly add to the challenges of an investigation and prosecution.
• Other forms of investigation, such as undercover operations and civilian agents directed by the police, as well as the use of specialized investigative techniques, continue to form a significant part of investigations. All of these elements raise factual and legal issues that must be addressed by prosecutors with the police during an investigation and as part of the determination of the admissibility of evidence. The pretrial motions on these issues may take considerably more time and effort to resolve than the actual trial on the merits of the prosecution's case.
• In establishing the existence of the criminal organization, the prosecution will invariably draw upon the opinion evidence of a properly qualified expert concerning the structure, purposes and main activities of the criminal organization. This evidence may attract additional levels of complexity and its admission may raise particular scrutiny where the expertise is sought from multiple and international sources.

Special consideration in respect of opioids

Canada is facing a national opioid crisis, with a growing number of overdoses and deaths caused by the proliferation of a tainted supply of illicit drugs containing fentanyl.^{Footnote 7} Fentanyl has become the leading cause of opioid deaths in Canada and the rate continues to rise every year. Recent statistics illustrate that in 2022 (January - December), 7,328 Canadians lost their lives to opioid-related overdoses with 87% of all opioid toxicity deaths occurring in British Columbia, Alberta and Ontario.^{Footnote 8}

Non-commercial drug offences and more serious drug offences associated with substance use disorders

Simple possession prosecutions

The PPSC has developed a litigation approach which is intended to result in a limited and focused prosecutorial response to the possession of all controlled substances prohibited by section 4(1) of the CDSA. It was published on August 17, 2020, and is set out in Guideline 5.13 to the PPSC Deskbook.

The PPSC's approach reflects three realities: (i) substance use has a significant health component; (ii) in addition to the personal health component, substance use may be associated with conduct that poses separate serious public safety concerns requiring a criminal enforcement component; and, (iii) simple possession may result in a criminal record as well as a fine or a short period of incarceration which may have a disproportionate effect for an individual accused.

This approach resulted in significant reduction in simple possession prosecutions for all substances.

In January 2023, Canada's Minister of Mental Health and Addictions approved an exemption under s 56 of the CDSA that applies to offences under subsection 4(1) of the CDSA relating to possession of certain controlled substances in the Province of British Columbia. PPSC has been working with federal and provincial partners, and law enforcement agencies, to adjust to the impacts of decriminalization in
British Columbia for the three-year period when the exemption is in effect. Most important is the provision of advice to police about the impact of the exemption on the investigation of trafficking offences. Our PPSC counsel in the Ontario Regional Office and Headquarters are also working with police the Toronto Police Service on advice relating to potential impacts of a request by Toronto Public Health for a similar exemption in Toronto. That request has not yet been approved and we are not aware of any timeline for when a decision will be made by Health Canada.

Alternative measures and Drug Treatment Court programs

Prosecutors are required to consider the alternatives to prosecution that may address the public safety elements in those circumstances. At the same time, prosecutors are being trained to recognize and consider the potential effects of bias and systemic discrimination upon the assessment of these cases.

In more remote communities, such as communities in Canada's three northern territories outside of Whitehorse, Yellowknife and Iqaluit, the limited availability of alternative measures to prosecution has limited the ability to provide for treatment as part of a non-custodial sentence. Persons who would be eligible for treatment in the provinces through alternative measures or a drug treatment court program have no such options in the North.

The identification of partners and community involvement is a particular priority to attempt to address the over-representation of Indigenous accused in the criminal justice system.

For street level trafficking offences associated with substance use disorders, the PPSC has sought to expand the admissibility criteria to increase the availability of Drug Treatment Courts (DTCs) for these offenders. The DTCs are specialized courts that provide an alternative to incarceration by offering an opportunity to complete a drug treatment program under the supervision of designated justice system participants and treatment service providers. DTCs aim to reduce the frequency of crimes committed to support drug dependence and the harm people cause to themselves and others because of drug addiction. Offenders who meet specified criteria receive comprehensive substance use treatment, clinical case management and social services support. The number of DTCs continues to grow across the country with multiple new DTCs opening recently in Alberta and more anticipated to open soon in various regions across the country.

Some persons with substance use disorders are not ready or willing to participate in a DTC program but are amenable to medical assistance to address the aspects of their behaviour that raise public safety concerns. The PPSC is in the process of updating its Deskbook policies relating to drug treatment court programs to broaden the persons who may be eligible to participate in those programs.

These initiatives will continue based on the 2021 federal budget that has allocated approximately $40 million in new funding to DTCs over the subsequent 5 years.

The Cannabis Act

On October 17, 2018, the Cannabis Act came into force, fundamentally changing the manner in which cannabis is possessed and accessed, and how cannabis related offences are investigated and prosecuted in Canada. The PPSC is responsible for the prosecution of both criminal and regulatory offences under the Cannabis Act.

The Cannabis Act altered Canada's approach to cannabis, shifting from a blanket prohibition for non-medicinal marihuana to a regime in which possession, consumption and distribution can be lawful, subject to restrictions by amount, age and location. The more serious cannabis offences, previously prosecuted under the Controlled Drugs and Substances Act, such as sale, importation and exportation remain offences under the Cannabis Act.

The legalization of possession of cannabis pursuant to the Cannabis Act has not had a measurable impact on PPSC operations as the resources dedicated to the prosecution of simple possession cases under the CDSA were not significant.

The Cannabis Act contains provisions allowing the police to issue tickets for offences within specific ranges. However, these provisions, in practical terms, are not in force given the scheme's reliance on the provinces and territories (PTs) to produce and issue the actual tickets to the police. The Cannabis Act does allow prosecutors to elect to proceed as though a ticket had been issued. In order to make use of this discretion PPSC has worked with the PTs to put in place procedures to allow this election to be made in court, and has issued guidance to federal prosecutors on the procedures to follow in cases where the ticketing election is appropriate.

A number of legal challenges to the Cannabis Act by First Nations communities, and individuals, are expected or underway, primarily in Ontario. To date, these challenges appear to be based on an argument that the Cannabis Act does not apply on aboriginal lands through the assertion that these areas are sovereign. The PPSC's view is that the Act is constitutionally valid and, as a federal statute, applies across Canada. PPSC is working closely with the Department of Justice to address these challenges in the courts.

The introduction of a legal regime governing the sale of edible cannabis products and concentrates may pose additional evidentiary challenges for prosecutions given the complexity of the regime. The regulation of these new products is in large part based on the concentration of active ingredients. The science involved in establishing that a given sample falls outside of legal limits is considerably more complex than with cannabis in its natural form.

Proceeds of Crime and Money Laundering

The PPSC prosecutes the possession of proceeds of crime, as well as the laundering of proceeds of crime, across Canada. These prosecutions are usually related to money and property derived from drug offences.

Background

Offences of possession of property obtained by crime (possession) and laundering of proceeds of crime (laundering), criminal proceeds trafficking and possession of proceeds of crime for trafficking purpose can be found in the Criminal Code:

• s 354: Possession of property obtained by crime
• s 462.31: Laundering of proceeds of crime
• Art. 354.2 : Criminal proceeds trafficking
• Art. 354.4 : Possession of proceeds of crime for traficking purpose

The PPSC has the authority to prosecute these offences where the underlying offence which resulted in proceeds of crime is wholly or partly an offence for which the Attorney General of Canada has the power to commence. In the majority of cases, those charges are not required in order to obtain forfeiture of proceeds of crime directly associated with the drug offences for which the accused has been convicted.

Considerations

Investigations into laundering offences are long and complex. Over the years, launderers have significantly refined their techniques in order to mask the source of funds originating from criminal activities, particularly by using new technologies and virtual currencies.

Project Collecteur

Project Collecteur targeted a professional money-laundering network. Twenty-two individuals were charged in Montreal in 2019, including network participants and the clients using their services.

Montreal-based money launderers would receive money from criminal groups during illegal meetings held in public places such as commercial parking lots and would send the money, always in cash, to Toronto-based money launderers.

These Toronto-based money launderers operated out of an exchange office that served a primarily Persian clientele. They also had exchange offices in Tehran, Iran, and Dubai, United Arab Emirates. They used the cash received from criminal clients to fulfill money transfer orders placed by individuals based in Iran. There were many of these orders because of the international sanctions on the Iranian banking industry. Consequently, the amounts held in Tehran and Dubai were significant.

The Montreal-based money launderers did not have an exchange office; instead, they received money from various clients in the Montreal area and then sent it to the Toronto-based group. The head of the Montreal network used numbered companies to issue invoices of convenience. Their clients received these invoices and wrote cheques to the money launderers. The money launderers gave them cash in return, which came from their profits or informal transfer commissions. The money launderers also had two collaborators in Lebanon, who controlled more modest local cash assets than the Iranian-owned network.

While the case continued before the court, a vast majority of the defendants had already been sentenced from six months of imprisonment to be served in community up to 9 years in prison, depending on their role in both laundering and implicit drug trafficking. Fines and forfeitures of proceeds of crime over $15 million were imposed.

Virtual currencies in the spotlight

Virtual currencies, which know almost no borders and are barely regulated, have become the currency of choice in money laundering schemes because of the anonymity offered by transactions involving them.

Section 462.321, a new addition to Part XII.2 of the Criminal Code that will come into effect on September 20, will allow electronic searches to identify sources and seizures of virtual currency, a category of assets that is not properly defined in the Code as it stands. Such searches and seizures are aimed at confiscating virtual currencies that are the proceeds of crime; the restraint and management orders already provided for in Part XII.2 will apply as needed. Until now, law enforcement agencies have attempted to use other judicial authorizations, such as the general warrant under section 487.01, to do this, to limited effect.

PPSC recently set up a national working group to look at the challenges posed by the use of virtual currencies, be it in terms of the legal advice given in the course of investigations or prosecutions involving this type of asset.

National Security

The PPSC exercises primary responsibility for the carriage of cases relating to the national security of Canada. The PPSC has concurrent jurisdiction to prosecute terrorism offences under the Criminal Code and offences under the Security Offences Act and exclusive jurisdiction for offences under the Security of Information Act the Crimes against Humanity and War Crimes Act. The PPSC has delegated authority to consent on behalf of the Attorney General of Canada to the commencement of proceedings that relate to the national security of Canada. Functionally, one of the two Deputy DPPs has exercised this delegated authority.

The volume of national security investigations and prosecutions is significantly growing. Traditional ISIS inspired terrorism continues to generate significant cases and is augmented by returning high risk detainees returning from camps and prisons in Syria. Ideologically motivated violent extremist (IMVE) activities, from concerted recruitment, incitement and violence continue by adherents of Incel movements, accelerationists, neo-Nazis and targeted haters of members of the 2SLGBTQ+ community and Moslem Canadians. Prosecution of offences related to foreign-influenced activities, principally associated to the targeting of intellectual property and Chinese Canadians continue to arise. Finally, significant investigations and prosecutions involving unauthorized disclosure of national security information have also become prominent.

The PPSC's capacity to conduct terrorism offence prosecutions

The PPSC has established a practice of assigning terrorism files to a small group of senior prosecutors who are experienced in terrorism prosecutions. These prosecutors can be assigned to terrorism prosecutions anywhere in Canada. In addition, the PPSC has senior counsel at its headquarters who ensure that assigned prosecutors in the regions are provided the support they need to carry out their work.

PPSC counsel in the regional offices work at the investigative stage with the RCMP-led Integrated National Security Enforcement Teams. The PPSC has also established committees of regional terrorism prosecutors to address certain areas of focus such as foreign influenced activity, IMVE and issues related to section 38 of the Canada Evidence Act for the consideration of novel issues and for the dissemination of best practices.

Terrorism offence prosecutions and proceedings

Since the Anti-Terrorism Act came into force in 2001, 71 individuals have been prosecuted for terrorism-related offences, including those individuals still before the courts. Thirty-five individuals have been convicted, and life sentences were imposed on seven of these individuals. In addition to the life sentences, significant sentences of between 15 and 24 years have been imposed.

Furthermore, there have been a total of 45 applications pursuant to s 810.011 Criminal Code, i.e., the terrorism peace bond provision. Of these applications, 18 have resulted in the peace bond being entered into, one application was dismissed by the Court, and ten were withdrawn by the Crown at various stages.

The PPSC is currently prosecuting nine terrorism offence cases.

Ideologically Motivated Violent Extremism

Two of the current prosecutions are jointly handled with the Ministry of the Attorney General for Ontario: R. v. Veltman (London, Ontario) and R. O.S., a youth prosecution (Toronto). In both cases, it is alleged that in addition to being a planned and deliberate murders pursuant to s. 231(2) of the Criminal Code, they also constitute a terrorism offence pursuant to ss. 2 and 83.01(b) and deemed to be first degree murder pursuant to s. 231(6.01) of the Criminal Code.

In R. v. Veltman, the accused is alleged to have murdered a family because they are Moslem. The Crown alleges that the accused acted based upon his ideological beliefs concerning threats posed by Muslim Canadians. The trial is scheduled to begin in late 2023.

In the youth prosecution, the young person pleaded guilty in September 2022 to first degree murder under ss. 235(1) and 231(2) and attempted murder under s. 239(1)(b) of the Criminal Code. Prior to sentencing, the Crown brought an application to have the offences as falling within the definition of terrorism. The Ontario Superior, the Ontario Superior Court, sitting as a Youth Criminal Justice Act (YCJA), found that the young person had committed terrorist activity motivated by the Incel (involuntary celibate) ideology when he attacked two women at a spa. This is the first terrorism prosecution in Canada involving Incel ideology, which has been linked to numerous violent acts in Canada and internationally. Sentencing will occur on September 28, 2023.

Canadian Extremist Travelers

In 2013, offences specifically related to leaving or attempting to leave Canada for the purposes of committing certain terrorism offences were enacted in the Criminal Code. Since that time, a total of 17 have been charged with specific travel-related terrorism offences: seven have been convicted; three have been recently charged and are before court; two have been acquitted; four have outstanding warrants one has had charges withdrawn; and one saw her charges stayed.

In addition, charges have been laid in six other cases, involving nine individuals who are not currently in Canada's jurisdiction. Warrants for their arrest have been issued.

There is one outstanding case before the Ontario Court of Appeal involving one of the so-called Via Rail bombers (R. v. Jaser).His co-accused, Esseghaier, abandoned his appeal.

Other national security prosecutions 

The PPSC is currently prosecuting three cases involving charges under the SOIA.

In R v Cameron Jay Ortis, it was alleged that the accused, who was at the time of his arrest Director General of the RCMP - National Intelligence Coordination Center, was preparing to share sensitive information with a foreign entity, contrary to s. 22 of the SOIA (those charges were stayed due to s 38 Canada Evidence Act prohibitions on disclosure), and that he shared operational information in 2015, contrary to s 14 of the SOIA and misused a computer system to do so. The latter group of charges is scheduled for trial in September 2023.

In R v William Robert MAJCHER, a former RCMP inspector is alleged to have been obtaining, with the help of others, information for the purpose of helping the People's Republic of China to harm Canadian interests.

In R v Yuesheng Wang, a Hydro-Québec employee is accused of committing trade secrets related offences for the benefit of the People's Republic of China.

Prosecutions in the Northern Territories

Overview

The PPSC is responsible for the prosecution of all Criminal Code offences in the territories as well as offences under all other federal legislation, such as the Controlled Drugs and Substances Act, Cannabis Act, the Youth Criminal Justice Act, and the Fisheries Act.

Prosecuting in the northern territories presents unique challenges and opportunities. The high volume and complexity of territorial criminal prosecutions as well as the lasting and traumatic effects of colonization on the indigenous populations necessitates a diverse, culturally sensitive, and well-resourced workforce. The northern PPSC offices have responded to these challenges, as well as to calls to action on reconciliation and violence against indigenous women and girls, with innovative programs incorporating indigenous worldviews, specialized sexual violence expertise, and novel recruitment methods into their daily operations. Ongoing support and funding are needed for these initiatives to continue.

PPSC Operations in the North

The PPSC has regional offices in each of the territorial capitals (Whitehorse, Yellowknife, and Iqaluit), with a total staff complement of approximately 137 employees, 50 of whom are lawyers. As recruiting staff in the North is difficult, all three regional offices regularly need the services of fly-in counsel from other PPSC regional offices or prosecutors from provincial prosecution services to ensure adequate coverage of court commitments.

Crown Witness Coordinator Program

The unique cultural setting for prosecutions in the North led to the creation of the CWC Program in 1988. The Program provides a service to bridge the cultural gap between the court system and First Nations and Inuit victims and witnesses engaged in the court process.

Currently, the PPSC's northern regional offices employ 20 CWCs, in addition to three CWC Supervisors (one in each regional office). The CWC program is coordinated by a Crown Witness Program Coordinator.

The main role of CWCs is to help victims and witnesses understand the court process, the roles of the court participants and, for the victims, their rights and responsibilities under the Canadian Victims Bill of Rights. CWCs work closely with PPSC prosecutors and travel to communities during court circuits to assist victims and witnesses. They provide court updates, accompany witnesses to court, provide support during and after testimony, and assist with trial preparation. CWCs also act as liaisons between Crown counsel, victims, and witnesses to ensure that their concerns are considered during the justice process. As a large percentage of the workload of CWCs involves serious crimes of violence such as intimate partner violence, sexual assault and homicide, CWC responsibilities include identifying support needs of the victims and ensuring they are referred to appropriate territorial support agencies to address those needs.

Cultural Awareness

A significant percentage of the populations in the territories, particularly in communities other than the territorial capitals, is Indigenous. In the Yukon, approximately 25% of the population is Indigenous, while in the NWT, 50% is Indigenous. In Nunavut, 85% of the population is Inuit. Cumulatively, there are twenty Indigenous languages spoken in the territories.

Accordingly, cultural awareness training is of particular importance in the North. In 2022-2023, the PPSC developed a training curriculum for its prosecution teams that focuses on Crown-Indigenous relations, anti-racism, bias, trauma and Gladue reports. This curriculum is divided into four modules. The first module focuses on the historical relationship between the Crown and Indigenous peoples; the second, on cultural competency and current realities and aims to challenge stereotypes associated with Indigenous, First Nations, Inuit and Métis people; the third focuses on intergenerational trauma and trauma-informed practices; and the final module provides hands-on training on Gladue principles and the role of the Crown. The delivery of this training, including in the territories, will continue through the 2023-2024 fiscal year.

Specialized Treatment Courts in the North

Intimate Partner Violence Courts

A large proportion of offences in the North involve intimate partner violence (IPV). Each territory has specialized IPV treatment court programs to address IPV through a comprehensive multidisciplinary treatment-based approach aimed at ensuring IPV offenders receive therapy to eliminate or reduce recidivism. The Yukon's Domestic Violence Treatment Options (DVTO) Court is located in Whitehorse, while the NWT's DVTO Court covers the territory. Nunavut's IPV Court is located in Rankin Inlet.

To participate in these specialized courts, the accused must accept responsibility by entering a guilty plea. They are then eligible to receive treatment focused on IPV and substance use disorders. Upon completion of the process, the offender receives a sentence mitigated by his or her involvement in the process, which usually means a community-based sentence.

Wellness Courts

The PPSC has also been an active partner in therapeutic court programs known as Wellness Courts. Wellness Court programs aim to reduce recidivism by providing support to chronic offenders by helping them deal with the substance use disorders and/or mental health issues that contribute to their criminal behaviour. These programs involve judicially-supervised treatment providing multidisciplinary support for offenders with mental health issues, drug and alcohol use disorders or cognitive challenges. An offender who takes responsibility for the offence and then successfully undergoes the extensive treatment (generally over a year in length) associated with the program usually receives a community-based sentence.

Wellness courts were implemented in the Yukon in 2007 and in the NWT in 2014. In Nunavut, a therapeutic justice program pilot project, designed by Inuit for Inuit, began in April 2019 in Cambridge Bay and in 2021 in Arviat. PPSC prosecutors in the three northern regional offices actively support these therapeutic court programs.

Challenges Relating to Northern Prosecutions

Substance Abuse and Violence in the North

Abuse of alcohol in the North is rampant. The northern territories have the highest rate of hospital stays due to harm caused by alcohol and drugs in the country. In 2020-2021, the average number of standard drinks consumed per person aged 15 years and older in the Yukon and the NWT was almost double the national rate.

This abuse of alcohol contributes to high rates of violent crime. The territories have the highest rates of violent crime in the country, particularly as it relates to sexual abuse and intimate partner violence. There is also a high rate of homicide. The PPSC currently has a total of 23 active homicide prosecutions and 8 homicide appeals before the courts.

PPSC recognizes that most instances of prolonged high levels of consumption of alcohol relate to a health disorder. In the North, the abuse of alcohol in First Nation and Inuit communities can be traced back to intergenerational trauma resulting from colonization, including the residential school system and its legacy of dislocation. The intersection of alcohol substance use disorders and trauma contributes to the ongoing overrepresentation of indigenous persons in custody. The northern PPSC offices are cognizant of this context and have responded by seeking abstain conditions for offenders with alcohol additions only where necessary for public safety and by using judicial referral hearings to address bail abstain breaches where appropriate, instead of seeking convictions.

The primary obstacle to addressing alcohol-related substance use disorders is the insufficient availability of in-person programming for alcohol abuse in the northern territories. Although in-person residential alcohol abuse treatment programs are available in Whitehorse, such programming is inaccessible for residents of other Yukon communities unless they travel to Whitehorse. In the NWT and Nunavut, there are no in-person residential programs addressing alcohol abuse. This reality constrains the use of alternative measures to address alcohol-related offences in the North.

High-Risk Offenders

There is a coordinated high-risk offender flagging process in place in all the Northern offices, resulting from the high rate of violent crime involving offenders with significant rates of recidivism. In each regional office, paralegals assist in coordinating the flagging of high-risk offenders in the territory. This enables a more effective and organized preparation of prosecution files in order to conduct long-term offender and dangerous offender applications effectively. Given the implications for the person subject to these orders, the consent of a Deputy DPP is required before an application can be brought.

Accessibility

PPSC prosecutors and CWCs attend court in over 60 communities across the North. Court is held at varying but regular intervals in each community, most of which are accessible only by air. All of the communities in Nunavut are accessible only by air. Communities in the NWT are mainly accessible by air. All of the communities in Yukon but one are generally accessible by car.

Consequently, core mandate travel for prosecutors and CWCs is a substantial part of northern regional office budgets. Employee travel costs for prosecutions in the North are significant: approximately $2.4M for 2022/2023. For example, the cost of travel and accommodation for one person to a remote community in Nunavut for a trial is around $9,000.00. In addition, the PPSC has become responsible for all civilian witness travel in the three territories. Traditionally, these costs were paid by the territorial governments. However, in 2015, the territorial governments refused to continue the arrangement, and the PPSC now books and pays all the civilian witness travel costs without an increased source of funds.

PPSC's Response to the National Inquiry into MMIWG's Calls for Justice

The PPSC contributes to the federal government's response to the National Inquiry into Missing and Murdered Indigenous Women and Girls' (MMIWG) Calls for Justice. In 2021, the PPSC received $23.5 million over three years to implement initiatives that will increase support to victims of violence, promote culturally competent services to victims, incorporate Indigenous justice approaches and help address the overrepresentation of Indigenous persons in the criminal justice system.

MMIWG funding is being used to support four specific activities in three northern territories over the three-year term:

• Create and staff four Inuktut-speaking Inuit paralegal positions in Nunavut ($170,934 spent in 2022-2023).
• Improve the Inuit Justice training curriculum and develop new Justice training curriculums that reflect First Nations and Métis realities respectively ($122,530 spent in 2022-2023).
• Increase prosecutorial capacity, including Indigenous victim and witness support in the three territories ($7,727,448 spent in 2022-2023).
• Develop and pursue a one-time engagement strategy (no spending thus far in the fiscal year).

Additional prosecutorial capacity and increased representation by Inuit as decision makers in the criminal justice system assist the PPSC to establish trust with victims and properly prepare victims and witnesses of sexual and domestic violence for court proceedings. Supported and well-informed victims and witnesses are much more likely to engage in the court process, which in turn facilitates a timelier administration of justice.

In addition, engagement initiatives have been rolled out in the NWT and Nunavut, and the knowledge and lessons learned gathered from these activities will be shared with the Yukon Regional Office to assist them in developing an engagement strategy that is meaningful for their region.

Sexual Violence Prosecution Teams

Nunavut and NWT have the highest rates of sexual violence in the country. Sexual violence causes significant suffering and trauma to survivors. Additionally, offences involving sexual violence are legally complex and can be personally challenging for counsel to prosecute. In 2022, PPSC created the Specialized Sexual Violence Prosecution Team (SSVPT) in the NWT region in response to what we heard from the MMIWG about the experience of victims and witnesses during sexual offence prosecutions.

The SSVPT consists of two senior prosecutors, a paralegal, two CWCs, and a third prosecutor position which is filled on a rotating basis. The SSVPT's overarching goal is to create institutional change in the way sexual violence cases are understood and addressed, especially those involving Indigenous women, girls or 2SLGBTQ+ community. They aim to achieve this goal by reviewing every sexual violence file, providing strategic assistance, training and mentorship to prosecutors and police, providing improved and consistent support for victims, and engaging with external stakeholders on sexual violence.

The Nunavut region has also begun implementing a similar approach.

The Inuit Quajimajatuqangit Project

The Nunavut region is dedicating a team to work on implementing Inuit Qaujimajatuqangit (ᐃᓄᐃᑦ ᖃᐅᔨᒪᔭᑐᖃᖏᑦ) into prosecutorial decision-making. Inuit Qaujimajatuqangit is a difficult concept to define. It goes beyond "Inuit traditional knowledge" and instead provides a framework within which one can think about and approach life. Inuit Qaujimajatuqangit is a broad concept that changes between regions, communities, and even families. It is a fluid, organic system that relies on multiple sources of input (usually taking the form of Elders discussing an issue and coming to a common understanding). It remains adaptable as changes occur in society.

The goal of this project is for the PPSC to find a way to incorporate Inuit Qaujimajatuqangit into its Nunavut region's practice and the criminal justice system without compromising its essence as a set of living principles. The Inuit Qaujimajatuqangit project will allow PPSC prosecutors to consult with Inuit Elders, benefitting from their knowledge and wisdom, and to further consider Inuit Qaujimajatuqangit in their assessment of a reasonable prospect of conviction and public interest. This project is expected to be launched in two pilot communities, Pangnirtung and Baker Lake (Qamini'tuaq). The Nunavut region is hopeful that the project will be extended to more communities in 2024.

The Nunavut Courtworker program

The Nunavut Regional Office is also implementing the Inuit Courtworker program, a first of its kind in the country. The Inuit Courtworker Program includes an intensive training program with internal and external courses to train junior courtworkers to become paralegals able to act independently on behalf of the PPSC in the Nunavut Justice of the Peace Court and in summary conviction matters throughout Nunavut. One of the Inuit Courtworkers is already leading the Justice of the Peace Court in Iqaluit. One more courtworker is expected to start in August 2023 and another one later in the year.

Article 23 of the Nunavut Agreement

The Nunavut Act and the Nunavut Agreement created Nunavut, which became a territory on April 1, 1999. The Nunavut Agreement protects Inuit rights, including preferential employment opportunities, as set out in Article 23 of the Agreement. The legal obligation on the federal and territorial governments is to increase Inuit participation in government employment to a representative level of 85% of the population in all occupational groups and levels.

The Nunavut region is committed to increasing Inuit representation as decision-makers in the criminal justice system. The PPSC Inuit Employment Plan contains an employment strategy aimed at increasing the number of Inuit employees to a representative level. The Plan includes removing employment barriers, increasing Inuit representation on staffing panels, career laddering within the office and emphasizing the acquisition of leadership skills through formal and on-the-job training.

Recent measures have significantly improved Inuit employment levels in the Nunavut Regional Office. The PPSC has supported two Nunavut Regional employees enrolled in the Nunavut Law Program (NLP). Those employees successfully completed their law degree in April 2021 and returned to the Nunavut Regional Office as articling students. They were joined by two other Inuit articling students hired from the NLP graduates. One of them has graduated and the other three are scheduled to finish their articles and become lawyers within the next year. The PPSC has hired one other NLP graduate who has already been called to the bar as lawyer, to start in August 2023.

Regulatory Prosecutions

The PPSC prosecutes a variety of offences created by federal statutes in support of the mandates and policies of other federal organizations, such as Environment and Climate Change Canada, Fisheries and Oceans Canada, Canada Border Services Agency, Employment and Social Development Canada and Health Canada.

Regulatory prosecutions represent a fundamental part of the PPSC mandate and PPSC has dedicated regulatory prosecution teams across the country that have experience in prosecuting offences pursuant to over 75 regulatory statutes and regulations aimed at protecting the environment and the safety, health, economic security, general welfare of the Canadian public. These statutes include the Canadian Environmental Protection Act, 1999 (CEPA), the Fisheries Act, the Canada Wildlife Act, the Species at Risk Act, the Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act (WAPPRIITA), theImmigration and Refugee Protection Act (IRPA) and the Customs Act. In 2022-2023, Regulatory and Economic offences accounted for 9.7% of PPSC's files and accounted for 12.5% of PPSC's total hours.

Although many regulatory cases are routine, some are resource-intensive and complex and receive considerable media attention. Past examples include prosecutions under:

• the Fisheries Act for fishing a variety of species, including lobster and elvers, when the commercial season was closed or outside designated fishing areas;
• the Canada National Parks Act for the unlawful removal and trafficking of fossils from a Canadian UNESCO heritage site;
• the National Parks of Canada Aircraft Access Regulations for illegal drone use during an active wildfire in Jasper National Park when helicopters were providing air support to firefighting efforts; and
• The Quarantine Act for offences arising out of breaches by returning travelers of the mandatory isolation orders during the Covid-19 pandemic.

In prosecuting particularly complex regulatory offences, prosecutors are expected to have regard to the policy objectives of the investigative agencies and often provide advice and work closely with investigators at the investigative stage, prior to charges being laid. They also consult with counsel in the Department of Justice departmental legal service units who are the subject matter experts on the various statutes and regulations.

Of note, regulatory prosecutions often intersect with Indigenous rights and claims. These claims arise in prosecutions involving various subject matters, including production and distribution of cannabis, fishing for a variety of species, and collection and remission of federal taxes on reserve lands. Prosecutors must balance these rights and claims within PPSC's mandate as a federal prosecution service. The constitutional questions advanced have tended to focus on section 35 claims, but also have included Charter-based claims. These matters are actively before the courts, predominantly in the Atlantic provinces and in Ontario.

In addition to the regulatory regional prosecutions teams, the PPSC Headquarters Counsel Group also provides advice and support to regulatory enforcement agencies and their legal service units at the investigative stage and in developing policies to help the investigation and prosecution of regulatory offences.

In particular, and as part of this regulatory prosecutions mandate, PPSC HQ counsel were actively engaged from the onset of the COVID-19 pandemic with federal policy makers and enforcement partners to ensure that federal measures, such as those under the Quarantine Act, could be effectively enforced and prosecuted.

PPSC HQ counsel are also currently engaged in providing advice and support to its regulatory counsel involved in the constitutional litigation of regulatory examinations of electronic devices at the border pursuant to s.99(1)(a) of the Customs Act. The provision was declared unconstitutional by the Alberta Court of Appeal in R v Canfield 2020 ABCA 383 and will be re-examined by the Ontario Court of Appeal in the upcoming appeal of R v Pike, 2022 ONSC 2297. An amendment to the Customs Act to address the ABCA's concerns with the absence of limits on the searches of such devices at the border is currently before Parliament.

The PPSC uses cost recovery to cover most of its costs for prosecuting offences under regulatory statutes. In effecting cost recovery for its prosecution services, the PPSC looks to the government organization whose minister is responsible for the regulatory legislation creating the offence underlying the prosecution. More detailed information about cost recovery is provided in the "Departmental Financial Management Operations" section located at Tab 11.

Charges may, from time to time, be laid under federal regulatory statutes against government departments, Crown corporations or their employees. These typically arise in matters related to workplace safety and environmental protection and are commonly referred to as PPSC "R v R" prosecutions. As an independent prosecution service, the PPSC prosecutes such offences when they arise.

Economic Crime

The PPSC prosecutes cases involving economic crimes committed under the Criminal Code and other federal statutes. It has jurisdiction to initiate proceedings related to fraud offences pursuant to section 380 of the Criminal Code. Other than the Criminal Code, other federal statutes contain offences for economic crimes for which the PPSC has the jurisdiction to conduct prosecutions. The Income Tax Act, the Excise Tax Act, 2001, the Competition Act and the Bankrupcy and Insolvency Actare some of the legislation that generates the largest number of economic crime prosecutions initiated by the PPSC.

Non-Criminal Code Federal Legislation

Income Tax Act and Excise Tax Act, 2001

The PPSC prosecutes offences under the statutes enforced by the Canada Revenue Agency (CRA) and the Royal Canadian Mounted Police, notably those dealing with tax evasion and contraband tobacco and cannabis. Specialized PPSC prosecutors provide advice during the investigative stage, conduct prosecutions, and provide training to investigators. CRA investigations focus on complex tax evasion schemes, including cross-border crime and offences committed by organized groups.

Competition Act

PPSC is also responsible for prosecutions instituted under the legislation administered and enforced by the Competition Bureau, namely, the Competition Act, the Consumer Packaging and Labelling Act, the Textile Labelling Act and the Precious Metals Marking Act. It also provides general prosecution-related legal advice or more specific advice on Competition Bureau files.

The National Capital Regional Office of the PPSC handles most of this work nationally through its Competition Law Section (CLS). CLS counsel provide advice and work closely with investigators, usually from the outset of investigations, which are often legally and factually complex.

The Competition Bureau has an immunity and leniency program to encourage individuals or organizations who have information on anti-competitive business practices, such as collusion in bid submissions and price fixing, to report them to the Bureau. Decisions to grant immunity or leniency on recommendation of the Competition Bureau are within the exclusive purview of the Crown and are granted on behalf of the DPP.

Recently, the Competition Bureau recommended to PPSC that leniency be granted to Canada Bread Company for its guilty plea and its cooperation in the investigation into a price-fixing arrangement in the wholesale commercial fresh bread market. On June 21, 2023, the Superior Court of Ontario imposed a $50 million fine on Canada Bread. This is the maximum amount ($70 million) applicable under the Competition Act less the credit granted to Canada Bread Company ($30 million) for cooperating with the investigation.

Corruption of Foreign Public Officials Act

The Corruption of Foreign Public Officials Act was enacted in 1999 to implement the Organization for Economic Co-operation and Development (OECD) Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, which was signed by Canada in 1997.

The Act creates a criminal offence in Canada for anyone who pays, offers, or agrees to pay or offer a benefit of any kind to a foreign public official in order to obtain or retain an advantage in the course of business. The Act was amended in 2013 to, among other things, increase the maximum penalty to 14 years' imprisonment and expand Canadian jurisdiction over the offence based solely on the nationality of the accused.

Cases involving the corruption of foreign public officials require significant resources given their complexity. In the recent case of R. v. Ultra Electronics Forensic Technology Inc., the UEFTI and four of its executives faced charges of corruption and fraud for bribing officials of the Republic of Philippines in a scheme designed to secure the ongoing procurement of a ballistics identification system to the Philippine National Police. In February 2023, the Quebec Superior Court approved the remediation agreement between UEFTI and the PPSC. The prosecution of the four executives is ongoing.

Canadian Financial Crime Agency

The Department of the Public Safety Canada (PSC) is spearheading a project to set up a Canadian Financial Crimes Agency (CFCA). The PPSC is working with the RCMP and PS to assess the resource implications of options being considered.

Indian Act Bylaw Prosecutions

Overview

First Nations across the country are actively looking for mechanisms with which to enforce and prosecute their laws. Although the PPSC's jurisdiction in this area is constrained by statute, the PPSC is working with other federal, provincial and First Nations partners to contribute, within the scope of its mandate and resources, to addressing gaps in the prosecution of First Nation laws. During the COVID-19 pandemic, PPSC signed protocol agreements with 18 First Nations across the country to prosecute COVID-19 related Indian Act bylaw violations. While this initiative has largely ended, PPSC has since launched a pilot project for First Nation communities in Manitoba for prosecution of Indian Act bylaw violations more broadly. This pilot project is intended to inform the development of Canada's national Indigenous Justice Strategy, which is expected to address, among other things, the issue of enforcement of First Nations laws.

Ongoing challenges in this area include questions surrounding the responsibility for reviewing First Nation Indian Act bylaws for validity and Charter compliance, limited resources and funding for these initiatives, and the overarching need for viable policy solutions to this longstanding issue. These challenges are playing out against the backdrop of an increased awareness of and push towards indigenous self-determination and criminal justice-related innovations.

The Manitoba Keewatinowi Okimakanak (MKO) Pilot Project

The PPSC still has protocol agreements in place with seven communities in Manitoba who are represented by the MKO, a Manitoba-based First Nations advocacy organization. On June 30, 2023, the PPSC agreed to an implementation framework for an expanded Indian Act bylaw prosecution pilot project with the MKO. The pilot project allows any of the 26 First Nations represented by the MKO to sign further protocol agreements to have the PPSC prosecute violations of their Indian Act bylaws that do not have to be related to the COVID-19 pandemic. On August 11, 2023, the first protocol agreement under the MKO prosecution pilot project was signed. The protocol agreement provides the PPSC with jurisdiction to prosecute violations of the Manto Sipi Cree Nation's recently enacted Intoxicants Bylaw.

In addition to providing immediate benefits to the First Nations involved, this two-year pilot project will evaluate the benefits and challenges associated with prosecuting violations of a broad range of bylaws that First Nations are authorized to enact under the Indian Act, including those related to trespass and intoxicants. This information is necessary because the scale of the COVID-19 initiative was insufficient to assess the expected volume of work and the corollary impact on internal resources associated with a federal commitment to prosecute violations of First Nation laws.

The pilot project is taking place in the broader context of the work that the Department of Justice is doing to develop Canada's Indigenous Justice Strategy, which will be designed to address systemic discrimination and the overrepresentation of Indigenous people in the justice system. As part of its response to these issues, the Indigenous Justice Strategy is expected to speak to the challenges of enforcement of First Nation laws. The pilot project will gather information and practical lessons from its Indian Act bylaw prosecutions to assist in the generation and consideration of options and opportunities for the Indigenous Justice Strategy.

Considerations

Beyond the pilot project, until Canada has an overarching policy framework regarding the enforcement of First Nation laws that also considers provincial, territorial and First Nations roles and responsibilities, the PPSC will not enter into agreements to prosecute breaches of First Nation laws. However, the PPSC is willing to provide support in the form of prosecutorial capacity-building to First Nations (including private prosecutors they may retain) as opportunities and requests to do so arise. In terms of resources, the PPSC will absorb the costs of conducting the pilot project and providing capacity-building training.

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Outstanding Supreme Court of Canada Appeals

Outstanding Supreme Court of Canada (SCC) Appeals

George Zacharias v His Majesty the King (40117): This appeal as of right from the Court of Appeal of Alberta was heard on May 15, 2023, with judgment reserved. The central issue in this drug conviction appeal is the second branch of the Grant test, namely what conduct should be considered when assessing the impact of a Charter breach: the breach itself (here, a s.8 breach relating to the dog sniff and a s. 9 breach relating to the investigative detention caused by the dog sniff search) or all the conduct that followed (the arrest based on the sniffer dog's positive indications, the searches incident to arrest, transport to the station, etc.).

Dwayne Alexander Campbell v His Majesty the King (40465): This appeal, by leave, deals with the reasonable expectation of privacy of intercepted text messages. Police seized a cellphone during a search incident to arrest of a known drug dealer and impersonated the drug dealer by responding to the text messages to complete a fentanyl drug transaction with the appellant. His principal ground of appeal is that his s. 8 Charter rights were infringed by the police and the evidence should be excluded. The hearing is set for the week of December 11, 2023.

Daniel Hodgson v His Majesty the King (40498): This appeal, by leave, deals with the power of the Court of Appeal to order a new trial for second-degree murder after the accused was acquitted at trial. The appellant tried to neutralize the victim by using a chokehold technique causing his death. The Nunavut Court of Appeal concluded that the trial judge committed errors of law that had a material bearing on the acquittal, notably by failing to consider that a chokehold was an "inherently dangerous act". The appellant submits that the trial judge did not commit any errors of law warranting intervention by the Court of Appeal. No hearing date has been set yet.

Interventions

Andrei Bykovets v His Majesty the King (40269): This appeal as of right from the Alberta Court of Appeal addresses the question of whether a reasonable expectation of privacy attaches to an IP address. The appeal was heard on January 17, 2023, with judgment reserved.

Daniel Brunelle, et al v His Majesty the King (39917): This appeal by leave from the Quebec Court of Appeal concerns the issue of the standing required in order to seek a remedy for abuse of process based on the residual category under s. 24(1) of the Charter. The appeal was heard on February 8, 2023, with judgment reserved.

His Majesty the King, et al v Maxime Bertrand Marchand (39935): This Crown appeal, by leave, from the Quebec Court of Appeal deals with the constitutionality of mandatory minimum penalties for the crime of luring children and youth. The DPP intervened as of right to defend the legislation as well as in Attorney General of Quebec, et al v HV (40093), an appeal dealing with the same constitutional issue regarding the summary offence. These appeals were heard on February 15 & 16, 2023, with judgment reserved.

B.E.M. v His Majesty the King (40221): This appeal as of right concerns the appropriate remedy on appeal in cases of Crown improper trial conduct. During the closing jury address in a historical sexual assault trial, Crown counsel told a personal anecdote about memory to bolster the reliability of the complainant's testimony. The jury convicted. On appeal, the Court split with the majority upholding the conviction, finding that the anecdote did not affect trial fairness. The appellant argues that the decision of the Court of Appeal condones a culture of misconduct and proposes a new analysis focused on the seriousness of the Crown misconduct and its effect on the repute of the justice system. This appeal is scheduled to be heard on December 8, 2023.

Franck Yvan Tayo Tompouba v His Majesty the King (40332): This appeal by leave from
British Columbia deals with the appropriate remedy for non-compliance with s. 530(3) of the
Criminal Code. This provision requires the court to ensure that any accused person appearing for the first time is advised of his or her fundamental right to be tried in the official language of his or her choice, and of the time limits for exercising this right. The hearing is set for October 11, 2023.

Date modified:

2023-11-20