184 V O L . 7 5 P A R T 2 M A R C H 2 0 1 7 THE ADVOCATE Branch. The Branch decided not to lay criminal charges. A crisis of confidence in government arose because of public concern and suggestions that elected politicians may have improperly influenced the decision to not prosecute one of their own. As a result, in April 1990 a public inquiry was established to review the process that was followed in making the decision on whether charges should have been laid. Out of this, the Act was born. THE INQUIRY FINDINGS—THE OWEN REPORT Commissioner Stephen Owen, Q.C., concluded that the decision not to initiate a prosecution against Mr. Reid was made “without any political or other improper influence or interference at any stage.”3 However, he noted “widespread public suspicion that this was not so” and identified the lack of public confidence as a concern that should be addressed.4 The “public suspicion” was fostered, at least in part, by the “dual role” of the provincial Attorney General. On one hand, the Attorney General was, and still is, a member of Cabinet with a direct connection to the province’s political decision makers. On the other, the Attorney General is also Chief Law Officer of the province with responsibility for prosecutions. As a general rule, Attorneys General in Canada do not consult with Cabinet colleagues on prosecution matters, but are entitled to do so; these colleagues may give advice, but not directions; and the ultimate responsibility for prosecution decisions is that of the Attorney General, not Cabinet. Independence from Cabinet is essential to the fair administration of justice. As noted by the Supreme Court of Canada, “Prosecutors including the Attorney General must be able to act independently of any political pressure from the government”.5 Because of the Attorney General’s relationship to government, public concern may arise that there is political influence over prosecutorial decisions, or there may be a perception of such influence. Therefore, Canadian Attorneys General typically do not engage in the day-to-day operations of their prosecution services. Instead, they largely restrict themselves to broad policy matters and leave the decision making on individual files to their agents, Crown counsel.6 Limiting an Attorney General’s involvement in prosecutions this way safeguards the decision making of individual prosecutors from partisan concerns, including political ones. THE RESPONSE TO THE INQUIRY—THE ACT Commissioner Owen recommended several changes that were intended to foster greater public confidence in the prosecution service.
March Pages 2017
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