Décision

WARNING: Order restricting publication: On the Court of Quebec (the Honourable Joey Dubois), District of Beauharnois, made an order under s. 486.4(1) Cr.C. directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way.

1.                 The appellant was found guilty in the Court of Québec[1] of one charge of touching a person under the age of sixteen for a sexual purpose and one charge of exposing his genital organs to a person under the age of sixteen for a sexual purpose, in virtue of ss. 151(a) and 173 (2)(a), respectively, of the Criminal Code. He was acquitted of another charge of sexual interference. He advances five grounds in appeal against the findings of guilt and characterizes each of them as a question of law.
2.                 For the joint reasons of Schrager and Gagné, J.J.A., THE COURT:
3.                 DISMISSES the appeal;
4.                 For separate reasons, Healy, J.A. would allow the appeal, declare the prosecution a nullity and quash the findings of guilty. His dissenting opinion addresses the consent of the Attorney General required by s. 7(4.3) of the Criminal Code.
5.                 CANCELS the release of Scott Drummond pending determination of the appeal and ORDERS him to surrender to the carceral authorities within 72 hours of the present judgment.

6.                 The appellant was found guilty of one charge of touching a person under the age of sixteen for a sexual purpose[2] and one charge of exposing his genital organs to a person under the age of sixteen for a sexual purpose.[3] He was acquitted of another charge of sexual interference. He advances five grounds in appeal against the findings of guilt and characterizes each of them as a question of law, by submitting that the judge erred:

1.             (…) in accepting the version of the plaintiff and concluding evidence of guilt was made beyond a reasonable doubt by basing his finding on speculation.
2.             (…) by eluding the testimony of [E.P.], containing evidence which is significant and favorable to the accused. The judge at first instance did not consider the evidence as a whole when reaching his verdict of guilt.
3.             (…) in analyzing the credibility and reliability of the testimony of the plaintiff and that of the appellant. The judge at first instance did not submit the testimony of the plaintiff and that of the accused to the same level of scrutiny, which constitutes an error in law and renders the trial unfair.
4.             (…) by asking himself why would the plaintiff invent the facts leading to the accusation, displacing the presumption of innocence.
5.             (…) by rendering a verdict of guilt which cannot be based on the evidence, making it unreasonable.

[Numbering added; references omitted]

7.                 The first, second, fourth and fifth grounds variously claim that the verdicts were not based on the evidence and will be considered together under this heading. The third ground will be considered separately.
8.                 A preliminary procedural issue must be dealt with before reviewing the substantive grounds of appeal invoked by the appellant.

The consent of the Attorney General required by s. 7(4.3) Cr.C.

9.                 Prior to the hearing, the Court raised the question of whether the Attorney General had consented to the proceedings instituted against the appellant. Indeed, the offences, as charged, occurred in the United States, such that Canadian courts had jurisdiction in virtue of s. 7(4.1) Cr.C.:

10.            At the beginning of the trial, the judge asked counsel about the matter of jurisdiction, and they confirmed that s. 7 Cr.C. gives the court jurisdiction.
11.            However, neither the judge nor counsel addressed s. 7(4.3) Cr.C.:

12.            The parties confirmed to the Court that no express written consent to the laying of the charges was obtained from either the Attorney General of Canada or the Attorney General of Quebec. The appellant submits that the prior written consent of the former was required, such that the charges are a nullity as are the convictions.
13.            We disagree with the appellant for the reasons that follow, which reasons confirm the respondent’s submissions.
14.            Whatever territorial application the criminal law may have had under the common law has now been supplanted for present purposes by the following sections of the Criminal Code. Accordingly, the answer to the issue at hand is purely a function of statutory interpretation.
15.            Section 7(4.3) Cr.C. refers to the “Attorney General”, which is defined in s. 2 Cr.C. as follows:

16.            This general definition applies to the entire Criminal Code, barring something which limits or restricts its meaning.[4] Thus, absent wording requiring the Attorney General’s personal consent or absent an express limitation on deputies’ powers, the general definition applies.[5] For example, s. 577 Cr.C. requires the “personal consent in writing of the Attorney General or Deputy Attorney General” to prefer an indictment, as does s. 485.1 Cr.C. to recommence a prosecution. Such an interpretation was adopted by this Court in R. v. T.E.S. in 2003.[6]
17.            Accordingly, “Attorney General” in s. 7(4.3) Cr.C. means the Attorney General of Quebec and includes his or her “lawful deputy/substitut légitime”. As counsel for the respondent indicated, where Parliament means the Attorney General of Canada, it says so explicitly in the Criminal Code. For example, s. 7(2.33) Cr.C. provides for the prior consent of the “Attorney General of Canada” for the laying of a charge committed on a space station.
18.            Thus, the reference to the Attorney General in s. 7(4.3) Cr.C. means the Attorney General of Quebec and, as seen, the definition includes his or her lawful deputy. As the Supreme Court found in R. v. Harrison, this expression applies to anyone appointed to act on behalf of the Attorney General:

I do not find anything in the Criminal Code which derogates from the thought that the duties imposed upon the Attorneys General are to be exercised under their authority by responsible officials of their respective departments. “Attorney General”, according to an amendment to s. 2 of the Code made in 1968-69, includes “the lawful deputy” of the said Attorney General or in the French version «le substitut légitime».  I do not read “lawful deputy” as confined to “Deputy Attorney General”. The words comprehend all persons appointed to act on behalf of the Attorney General when acting within the scope of their authority.”[7]

19.            To determine who is a lawful deputy, one must turn to the Act respecting the Director of Criminal and Penal Prosecutions.[8] Section 1 provides that the Director of Criminal and Penal Prosecutions is the lawful deputy of the Attorney General of Québec as are the prosecutors under the Director’s control:

20.            As well, the criminal and penal prosecuting attorneys act under the Director’s authority:

21.            Section 16 of the DCPP Act[9] permits the Director to delegate one or more of his or her functions to others, with the proviso that the Director’s powers as Deputy Attorney General under the Criminal Code can only be delegated to a Deputy Director. Reading ss. 16 and 25 of the DCPP Act together, as we are required to do,[10] they are reconcilable: while the Director’s discretion to delegate is circumscribed by s. 16, the Director is represented, in the exercise of the functions of office, by the criminal and penal prosecuting attorneys. This is confirmed by s.1 of the DCPP Act, which provides that each prosecutor under the Director’s authority is the “lawful deputy of the Attorney General of Québec within the meaning of the Criminal Code”.
22.            Moreover, it is the “powers of the Deputy Attorney General under the Criminal Code” that the Director is restrained from delegating. The power discussed herein under s. 7(4.3) Cr.C. is that of the “Attorney General”. Accordingly, s.16 of the DCPP Act does not contradict its s. 1, which provides that the prosecutors are the lawful deputies of the Attorney General of Québec.
23.            Thus, in authorizing a prosecution pursuant to s.13 of the DCPP Act,[11] it is implicit that the Director – or any prosecutor authorized to act on his or her behalf – consents to such prosecution. Interpreting s. 7(4.3) Cr.C. as requiring that the Director – or the prosecutor authorized to act on his or her behalf – consent to a prosecution that such Director or prosecutor has already authorized is redundant. This implicit consent applies equally to each of the criminal and penal prosecuting attorneys in the Director’s office who, in virtue of sections 1 and 25 of the DCPP Act, are also the lawful deputies of the Attorney General.
24.            Direct or explicit consent of a provincial Attorney General or his or her lawful deputy may be required in provinces (other than Québec) where the practice is for charges to be laid by a police force independently of the Attorney General’s representative. The same could be said for a private prosecution.
25.            Given that, as previously indicated, a reading of the DCPP Act makes it clear that any of the prosecutors under the Director’s authority are lawful deputies of the Attorney General, the Director need not have personally and explicitly consented to the proceedings.
26.            Of course, in managing his or her department, the Director can instruct the prosecutors working there that, with respect to certain matters or provisions of the Cr.C. requiring the consent of the Attorney General, the Director’s specific personal consent or the consent of a chief prosecutor should be obtained. This is an internal administrative matter and does not change the interpretation of the Cr.C. or the DCPP Act.
27.            Need this consent be evidenced in writing? Section 7(4.3) Cr.C. does not say so. Moreover, looking to the Criminal Code as a whole, it appears that where Parliament requires consent in writing, it says so clearly. By way of example, s. 485.1 Cr.C. referred to above stipulates that the “personal consent in writing of the Attorney General” is required to lay a new information, where an indictment has been dismissed for want of prosecution. Similarly, s. 577 Cr.C. requires the “personal consent in writing of the Attorney General” to prefer an indictment. Thus, the consent envisaged by s. 7(4.3) need not be in writing.
28.            The appellant has not attacked the validity, constitutional or otherwise, of the provisions of the DCPP Act referred to herein, such that the courts must apply them as written, given the absence of ambiguity in the text.[12]
29.            We now turn to the substantive grounds of appeal.

Context

30.            At the time of the trial, the complainant was sixteen years old, but at the time of the event in issue she was about seven.
31.            The families of the complainant and the appellant were camping in a trailer park in Plattsburgh, New York. Each family had a trailer, and the two trailers were parked in adjoining spaces. The offences occurred in the appellant’s trailer. At the time of the event, the appellant’s spouse was not at the site. The complainant’s father was in his trailer, next door, though this is disputed by the appellant and left unclear in the father’s testimony.

A.    Testimony of the complainant

32.            The complainant testified that on the day of the event she had a rash on her stomach and other parts of her body. She spoke with her father about it. He sent her to the appellant’s trailer, where she began to play with the appellant’s children.
33.            The judge summarized the core of her testimony as follows:

[12] The accused then approached her and told her he needed to check her rash in the bathroom. He guided her there under the pretense to "check if the rash spread". The trailer's bathroom is very small. He closed the door and asked her to pull down her pants and to lean over the bath tub. She complied. She bent over, extended her arms. Her hands were on the far wall.

[13] She then heard him unbuckle his pants, heard his pants zipper go down, and felt what she thinks is his penis enter her vagina for about ten seconds before pulling it out. He penetrated her quickly, left it there for a few seconds, and took it out. lt hurt a bit but she did not scream.

[14] She pulled up her pants thinking the examination was over and turned around. The accused was facing her and she saw he was holding his penis with both hands. His penis was soft and floppy. He asked her if she wanted to see it. She didn't answer and left the bathroom to go back to the children's room. As she was leaving, she saw he was pulling up his pants.

[15] She heard the accused calling her sister to the bathroom, to check if she also had a rash and if it had spread on her.

[16] She does not recall any other event happening on that day or any other day. This was the only time she was alone in the trailer's bathroom with the accused.

B.    Testimony of the complainant’s father

34.            The judge summarized the testimony of the complainant’s father as follows:

[23] He recalls [the complainant] having a rash on one occasion when she was seven or eight years old. The rash was on her stomach. He did not know what to do about it. At that time, he was alone with the accused and their four children. Both their wives were working.

[24] The rash was spreading so he called his wife to get her opinion as to ·what to do. She requested a picture of the rash. Since he did not have a data plan, he asked the accused to take a picture of the rash to send it to his wife.

[25] He recalls being present when the accused took the picture of the rash on [the complainant's] stomach. He does not remember where they were when this happened, but believes he was inside one of their trailers, in the living room area.

[26] His wife looked at the picture and told him to give [the complainant] Benadryl and to keep an eye on the rash. He then went to the pharmacy and bought Benadryl. The accused was not with him when he went.

[27] He rubbed the Benadryl himself on [the complainant's] stomach, and the rash subsided shortly after.

[28] He was not drunk or hungover that day, although he did have a few beers.

[29] He does not recall X, the accused's daughter, having a rash that day. He states the accused did not take a picture of X while he was present.

[30] ln 2014, he found out the accused had taken odd pictures of his older daughter Y. Both he and his wife were angry with the accused. His wife texted the accused and ordered him to remove his trailer from the campground. The accused complied and left. Their friendship ended that year.

C.    Testimony of the appellant

35.            Finally, the judge summarized the appellant’s testimony as follows:

[34] He remembers an event concerning a rash. He was with [the complainant’s father – Mr. P.] and the four children. Their wives were not present.

[35] lt was around lunchtime, he was preparing lunch at his trailer for the two families. The kids came from their outing in the woods, and went to Mr. P.'s trailer. Shortly after, Mr. P. came over and told him both [the complainant] and X had rashes. Neither himself or Mr. P. knew what to do about it. He called his wife and Mr. P. did the same. Then, Mr. P. asked him if he could take pictures of the rash to send to his wife.

[36] He entered his trailer. The girls were in the back where their beds are. He took the girls one at a time to the bathroom and took a couple pictures.

[37] lt is a really small bathroom. He had each girl step in the little bath tub in turn, and entered the bathroom to take pictures of their front and back. They were in and out in "like 30 seconds".

[38] Mr. P. was inside the trailer, just outside the bathroom door, to make sure the other kids would not enter the bathroom.

[39] The bathroom has two doors. One that leads to the outside, and one that leads inside the trailer. The space is very limited. The door opens easily even when locked, and you can easily hear everything that is going on inside. There is no soundproofing.

[40] Pictures of the front and back torso of each girl were taken. He is the one who asked them to turn around.

[41] Then, he lent his phone to Mr. P. who sent the pictures to his wife.

[42] The kids went back to playing. He called his wife who told him to give the girls Benadryl and to keep an eye on the rash for an hour or two. He looked in his trailer and noticed he was out of Benadryl, so he drove into town with his son Z to get the Benadryl. He gave some to the girls and the rash receded.

[43] He kept seeing the P.'s that summer, and even helped them renovate their home. Then one day in 2014, he got a call and a text and understood something was wrong. He talked to Mr. P. at work about it. They had the following exchange:

Mr. P.: "you took pictures of Y".

Mr. Drummond: "you were there."

Mr. P.: "Yeah, but S… says, you know, you did more."

Mr. Drummond: "Dude that's impossible, you were there ."

[44] They told him to leave the campground, or they were going to tell the RV Park's owner about it, or call the police. He chose to leave the campground and had no other contact with the P. family.

[45] He remembers having had a conversation with Mr. P.'s wife a week prior to that ultimatum where she would have threatened him to stop being friends with her husband.

[46] He denies ever having asked the [complainant] to pull down her pants, ever having penetrated or touched her in any way, ever having unzipped his own pants and ever showing her his penis.

[Reference omitted]

Were the verdicts based on the evidence?

36.            This question covers the first, second, fourth and fifth grounds of appeal advanced by the appellant.
37.            The judge structured his reasons based on the model proposed in R. v. W.(D.).[13] He examined, in turn, the appellant’s testimony and the remaining evidence, before concluding that the appellant’s testimony does not raise a reasonable doubt, taken alone and in conjunction with the testimony of the other witnesses, and that the evidence as a whole proves the charges of sexual interference and exposure.
38.            The substance of the appellant’s testimony was a categorical denial of the two charges, but the judge carefully explained why that denial does not raise a reasonable doubt.
39.            A central question was whether the appellant had photographed the rash on two or three of the children in the two families at the camp. The judge demonstrated multiple flaws in the appellant’s testimony on this and other elements in the narrative.
40.            There are significant failings in the appellant’s ability to recall whether the photographs were taken in his trailer or the other one. He contradicted himself on whether he took photographs of a child in the complainant’s family other than the complainant herself.
41.            There are inconsistencies in his recollection of whether the complainant was, at all material times, clothed below the waist. He testified that he knew the complainant had a rash on her back and torso, but in a statement to investigators asserted that it also affected her vagina. He testified that he did not touch the complainant’s vagina in any way at any time, but in his statement to police acknowledged that he might have done so “by accident.”
42.            Finally, although the appellant did not testify at the voir dire concerning his statement to the police, he denied that statement in cross-examination at trial and asserted that the content of the statement was false because the police had failed to record it accurately and had not preserved it in its entirety. The judge rejected this assertion and concluded that the contradictions and inconsistencies revealed between the statement and the appellant’s testimony impugns his credibility and the reliability of his evidence.
43.            Having failed to find a reasonable doubt in the appellant’s testimony, the judge examined whether the remaining evidence proves the accused’s guilt. The prosecution’s case was that the offences occurred in the bathroom and that only the complainant and the appellant were present. The judge reviewed the complainant’s testimony in detail:

[83] She had a rash, the rash was concerning to her father. She was sent to the accused 's trailer. All this is basically confirmed by all the witnesses heard. [The complainant] is telling the truth about this.

[84] Other kids were in the trailer, but her father was not there. She thinks he was hung over at his trailer. Then she says the accused asked her to go to the bathroom in order to examine her rash. She recalls being led into the bathroom, a very tight space and describes the bathroom, even draws a plan of it. The evidence demonstrates the accused bought this trailer in 2013. He used it all summer, and used it again in the summer of 2014 up until he was told to leave the RV Park by [the complainant's] mother. Therefore, [the complainant] had access to this trailer for maybe a summer and a half. But her memory of the event is so clear that she can describe perfectly the bathroom and can even draw an accurate plan of it and what it contained, so many years later. This tells the Court her recollection is reliable.

[85] ln that bathroom, the accused asks her to pull down her pants, and she complies, thinking the accused will examine her rash. She has no reason to think he will do anything wrong. She recalls him asking her to bend over, remembers that her arms were outstretched and that her hands were against the back wall. Her memory of the events is very detailed and precise.

[86] She remembers feeling something enter her vagina for about ten seconds. She turns around and sees the accused is holding his limp penis with both hands. The fact that she says that it was his penis that entered her vagina can easily be explained by the circumstances. His penis is what he is holding when she turns around. The Court agrees with the prosecution that it does not mean it was, in fact, his penis that entered her vagina. But that is what she understood from her point of view, the point of view of an eight year old girl.

[87] If the only thing justifying these accusations was the fact that she was touched on her vagina from behind, during the examination of a rash, the Court would not have necessarily concluded an offense was committed. ln these circumstances, it is possible she would have misinterpreted an honest intent for an inappropriate behaviour.

[88] But she describes how the accused, at the same time, showed her his penis and asked her if she wanted to look at it. She describes him holding it in his hands. This clearly demonstrates the situation was not one of a simple examination involving the touching of her vagina, but one of a sexual nature.

[89] The event happened very quickly. The touching and the showing of the penis did not take many minutes. She describes it taking seconds. She does not mention any pictures being taken, but it is not impossible pictures were taken, while she was facing forward. That is not a reason not to believe her testimony. The pictures could also have been taken at another moment prior to the examination, in the living room area of the trailer, as stated by [the complainant’s] father. She would not necessarily recall it, because nothing out of the ordinary happened at that time. Either way, there is no doubt the event happened on that day, as the rash only lasted one day.

[90] There is also ample evidence to support the accused was alone with her in the bathroom. She admits it and the accused recognizes it.

44.            In these passages, the judge rightly noted that penetration of the complainant by the appellant’s penis is not an essential element of the offence of sexual interference. It is touching of a sexual nature for a sexual purpose. The question is thus not what touched the complainant but whether she was touched by the appellant in this way and in these circumstances.
45.            It is of no consequence what touched the complainant if the evidence proves purposeful sexual interference. What matters is whether the testimony of the complainant is credible and reliable as evidence that she was purposefully touched in a sexual manner. The judge concluded that it is and noted specifically that nothing in her examination or cross-examination, or any other evidence, supports doubting that evidence or her evidence relating to indecent exposure by the appellant. In this respect, the judge was entirely justified when he observed that any uncertainty in the evidence concerning the photographs does not affect the coherence or reliability of the evidence relating to the essential element of the two counts. For these reasons, four of the appellant’s five grounds of appeal must be dismissed.

* * *

46.            Regarding the first ground of appeal, there is no speculation attributable to the judge on the complainant’s direct evidence of sexual touching or exposure. Based on evidence he found credible and reliable, the judge had no doubt of what the complainant felt or saw in the circumstances.

* * *

47.            Regarding the second ground of appeal, the appellant wrongly argues that the judge discounted testimony given by the complainant’s father or that this testimony was significant and favourable to him. Said testimony was amply considered in relation to questions about the sequence of events, including the photographs, but much of it is peripheral and secondary to the complainant’s direct testimony as to what she felt and saw when she was alone in the bathroom with the appellant. The judge assessed the whole of the evidence, and for this reason it cannot be argued that he omitted or neglected to consider evidence that was favourable to the appellant.[14]
48.            The fourth ground of appeal is a reformulated claim that the judge speculated, but his reasons demonstrate the opposite:

[91] [The complainant] is now 16 years old. Although she did not disclose these events at the time they happened, she did tell her mother two years later. And when she disclosed these events to her mother, her family had not had any contacts with the accused for at least one year. Then, another couple of years after that, she experienced anxiety, and met with a therapist, and spoke of the events again. There is no reason to believe anything particular happened to prompt such an accusation, either when she told her mother, or when she discussed her anxiety with her therapist. That she had no reason to lie is not a reason to conclude in itself that she is telling the truth. On the other hand, if she had reason to lie, it would be necessary to assess these reasons in the evaluation of her credibility. There is simply nothing to report here.

49.            The appellant suggests that the judge relied upon the absence of a reason for the complainant to fabricate or embellish her account as a basis for inflating her credibility.
50.            The judge plainly affirmed that there was nothing to suggest that the complainant was not credible as a witness due to the manner in which the events in issue were disclosed. He said, “There is simply nothing to report here.” This cannot be construed in any manner as speculation; to the contrary, the judge refused to speculate. His reasoning is consistent with the principles stated in R. v. Gerrard, and there is nothing to suggest that he shifted the burden of proof or imposed the obligation on the appellant to prove that the complainant had a specific motive to lie.[15]

* * *

51.            The appellant’s fifth ground of appeal is a conclusory assertion that the verdict is unreasonable because it is unsupported by the evidence. It repeats the preceding grounds in different terms. This ground must be dismissed for the reasons already given and more generally because it is flatly contradicted by the judge’s exposition of the evidence. Moreover, one cannot claim that the judge’s findings of guilt had no evidentiary basis or that the evidence was subjected to untenable analysis.

* * *

52.            In short, there is no doubt that the judge’s findings of guilt were verdicts  that a properly instructed jury, acting judicially, could reasonably have rendered.[16] It is well settled that a judge sitting alone is not obliged to provide reasons that analyze every item of evidence or explain every element in the evidence that is relevant to the assessment of the credibility of witnesses and the reliability of their testimony.[17] In this case, it cannot be argued that the verdicts were unfounded in the evidence; nor can it be argued that the verdicts were logically untenable in light of the evidence the court received.[18] In the absence of any error, it is by definition impossible to sustain the suggestion that the verdicts were tainted by an error affecting the central issues of the trial rather than peripheral or secondary matters.[19]
53.            The judge provided a detailed assessment of the evidence on which he relied and explained his findings of credibility in a manner that excludes any suggestion of reversible error. Deference is due to a judge’s findings of fact and determinations of credibility.[20] His reasons exclude any suggestion of speculation. The judge unquestionably provided sufficient explanations for his assessment of the evidence and the basis of his conclusions.[21] Accordingly, this Court cannot conclude that the verdicts were unreasonable, tainted by error or in any other way identifiable as miscarriages of justice. The Court must therefore show deference to the factual determinations of the trial judge and refrain from substituting its own conclusions.[22]

Was the testimony of the complainant and the appellant assessed unevenly?

54.            It is appropriate to address the third ground of appeal separately.
55.            The appellant acknowledges that this ground of appeal is generally difficult to sustain[23] and, even assuming that it is a valid ground of appeal,[24] that difficulty is as apparent in this case as in others. Indeed, the appellant has not demonstrated a qualitative disparity between the standard applied to the evidence of the complainant and that of the appellant. It is self-evident that a qualitative disparity is not demonstrated by a quantitative comparison of the attention given to the testimony of these witnesses. There must be, in the quality of the judge’s assessment, a discrepancy that demonstrates an inconsistent consideration of the credibility and reliability of their testimony that ultimately leads to a distortion of the burden of proof and the standard of persuasion. The appellant has not been able to make that demonstration. In the case at bar, the judge enumerated multiple inconsistencies that diminish the probative value of the appellant’s testimony to a degree that does not permit a conclusion of reasonable doubt. By contrast, the judge reviewed the consistency and coherence of the complainant’s testimony. The result is a contrast between inconsistency and consistency, but that does not imply a qualitative discrepancy in the evaluation of the testimony provided by the two witnesses. Rather, it explains the qualitative discrepancy in the probative value of their evidence.

* * *

56.            For all the foregoing reasons, we propose that the appeal be dismissed.

57.            The appellant is a Canadian citizen who was found guilty in the Court of Québec[25] of offences under paragraph 151(a) and paragraph 173(2)(a) of the Criminal Code[26] that were allegedly committed in the United States against a Canadian under the age of sixteen. Such charges may be prosecuted in Canada under section 7 of the Code as an exception to the principle of territoriality that is found in subsection 6(2):

58.            Before this appeal was heard the Court informed the parties that it wished to hear representations on the requirement of consent in subsection 7(4.3).
59.            Compliance with subsection 7(4.3) is a condition precedent of jurisdiction to institute a prosecution in Canada. It is a restriction on prosecutorial authority and a limitation on the exercise of prosecutorial discretion. A prosecution that proceeds without the consent of the Attorney General is a nullity. The specific issue in this case is to decide who may consent to a criminal prosecution when the governing provision of a statute specifies that it must be the consent of the Attorney General.[27] This issue was not raised at trial, and was raised by this Court before the appeal was heard, but for the reasons given by Hoegg J.A. in Minot this does not establish a presumption of consent or jurisdiction in the respondent’s favour:

[39] Jurisdiction can be challenged on appeal. This is because if there was never jurisdiction in the court to entertain the proceedings, they cannot be said to be lawful.  If the proceedings are in fact a nullity, an affected person must be afforded an opportunity to have them declared so.[28] 

60.            In this case the respondent informed the Court that the prosecution was authorised and conducted by a prosecutor acting as counsel for the Attorney General without the intervention of the Attorney General, the deputy Attorney General or the Director of Criminal and Penal Prosecutions. It also means that the prosecution was conducted in accordance with the ordinary criteria for such proceedings, which are the apparent sufficiency of the evidence and the public interest.[29] The respondent’s position is that nothing further was required to institute, commence or continue the prosecution. In short, the respondent’s view is that the requirement of subsection 7(4.3) is satisfied by the authorisation of a prosecutor within the definition of section 2 of the Code.[30]
61.            I disagree.
62.            If the respondent’s position were correct, the words that stipulate the consent of the Attorney General in subsection 7(4.3) are surplusage and have no distinct meaning. This view cannot be reconciled with the evolution of the law relating to the conduct of criminal prosecutions,[31] the meaning of words and principles of legislative policy. Further, since the power to supervise the conduct of criminal prosecutions has been delegated by Parliament to the provinces,[32] only express legislative language would support the conclusion that that the consent of any prosecutor (or an articling student for that matter) will suffice where the Code specifically requires the consent of the Attorney General. This is not to be confused with the delegation discussed in Kyres.[33]
63.            In the long arc of the criminal law is a tectonic evolution from private action for redress of personal harm to a model of public prosecution in which law officers of the Crown act as trustees and guardians of general social security. In this evolution, and to this day, private and public prosecutions remain, but since the enactment of the Prosecution of Offences Act, 1879,[34] public prosecution has increasingly displaced private prosecution. In the simplest terms the evolution was from a model of private action in which public prosecution by law officers of the Crown was the exception to a modern paradigm of public order in which private prosecution is exceptional. The institution of public prosecutions was at first regarded with hesitation and not least because it appeared to trespass by degrees on the privilege of a private person to invoke the criminal law to redress alleged wrongdoing. The increasing dominance of public prosecutions was accompanied or followed by miscellaneous instances in which the fiat of a senior law officer of the Crown was necessary for the institution, commencement or continuation of a prosecution. This requirement reinforced the accruing hegemony of the state’s law officers in the administration of criminal justice but it also sought to reinforce public confidence and accountability in this domain of public administration.[35] 
64.            In short, criminal prosecutions are either public or private. The present case does not concern private prosecutions. Public prosecutions are conducted at the instance of the Crown by the Attorney General and persons authorised to act as agents of the Attorney General.[36] In a federated state such as Canada the authority of the Attorney General and his or her agents is divided (or shared) between the Attorney General of Canada and those who hold the authority of that office in the various provinces.[37] In some jurisdictions prosecutorial authority may be initiated by the police while in others, including Quebec, a prosecution begins with the authorisation of a prosecutor acting as counsel on behalf of the Attorney General.[38]
65.            As a general proposition, prosecutorial discretion to conduct a criminal prosecution is subject to two conditions: whether the evidence is apparently sufficient to sustain a conviction and whether prosecution is in the public interest.[39] The first requires a qualitative assessment of the strength of a proposed case and the second encompasses a cluster of factors within the discretion of authorised prosecutors. The two conditions are complementary because it is clearly not in the public interest to prosecute a case that is insufficient to sustain a finding of guilt. Further, the second embraces not only the competence to conduct a prosecution but the authority to stop one.
66.            There are many provisions in provincial and federal legislation of various kinds that specifically require the participation of a senior law officer of the Crown for the institution,[40] commencement[41] or continuation[42] of proceedings. There is no general principle that explains the legislature’s imposition of this type of requirement except that in all instances it reflects a concern to ensure that proceedings are conducted with heightened regard for the public interest and a desire for conspicuous responsibility and accountability among senior law officers. Instances of extraterritorial jurisdiction are typical of this requirement.[43] So too are instances of proceedings of notable sensitivity.[44] So too are instances that raise an expectation of immediate accountability of law officers at a senior level, including some requirements for the Attorney General’s intervention in decisions that are not directly related to the conduct of a prosecution. So too are instances that might be publicly delicate.  But again, apart from a generalised concern for ensuring due regard for the public interest, there is no axiom that explains the legislature’s decisions to require the intervention of a senior law officer in the conduct of proceedings.[45]
67.            There is also no consistent form for this type of requirement. In some instances the legislature might require the consent of the Attorney General,[46] the written consent of the Attorney General,[47] the personal written consent of the Attorney General,[48] the personal written consent of the Attorney General or Deputy Attorney General,[49] the consent of the Attorney General “or counsel instructed by him for that purpose,”[50] and so forth. The requirement in some instances specifies the consent of the Attorney General of Canada[51] or the Attorney General of the province[52] and in many instances it specifies neither; in others it specifies both. In some instances the requirement is imposed for the commencement, institution or continuation of proceedings.
68.            There have been occasions in which courts have considered the extent of the authority to conduct proceedings.  The issue, broadly put, is how far the authority extends beyond the direct intervention of a senior law officer of the Crown. The Supreme Court considered this matter in Harrison and concluded that ministerial authority could be delegated to a subordinate officer within a minister’s department if the substance of the decision could be characterised as administrative in nature.

Although there is a general rule of construction in law that a person endowed with a discretionary power should exercise it personally (delegatus non potest delegare) that rule can be displaced by the language, scope or object of a particular administrative scheme.  A power to delegate is often implicit in a scheme empowering a Minister to act.

[…]

Thus, where the exercise of a discretionary power is entrusted to a Minister of the Crown it may be presumed that the acts will be performed, not by the Minister in person but by responsible officials in his department:  Carltona, Ltd. v. Commissioners of Works, [1943] 2 All ER 560 (C.A.).  The tasks of a Minister of the Crown in modern times are so many and varied that it is unreasonable to expect them to be performed personally.  It is to be supposed that the Minister will select deputies and departmental officials of experience and competence, and that such appointees, for whose conduct the Minister is accountable to the Legislature, will act on behalf of the Minister, within the bounds of their respec­tive grants of authority, in the discharge of minis­terial responsibilities. Any other approach would but lead to administrative chaos and inefficiency.[53]

69.            This qualification of the principle against delegation is practical but its extent is not always obvious and its prescriptive value is perhaps uncertain. In criminal matters, where Parliament specifically requires the intervention of the Attorney General or another senior law officer, it would seem clear that the requirement demands the authorisation of a law officer more senior than counsel acting on behalf of the Attorney General.[54] Such a requirement is imposed most obviously where decision-making by a law officer concerns the conduct of proceedings that engage the jeopardy of a person or some other value of conspicuous public importance that could not be characterised as administrative.[55] The principle in Harrison acknowledges the necessity of flexibility and expansiveness in the scope of authority in the modern bureaucratic state. But it is also consistent with the proposition that the restriction of authorisation by consent of the Attorney General should be commensurate with the importance and sensitivity of the decision at hand.
70.            Falkenberg concerned a prosecution for giving contradictory evidence. Dubin J.A. made some general observations about the requirement for the Attorney General’s consent to institute proceedings:

On appeal, counsel for the appellant submitted that the proceedings before His Honour Judge Lyon were a nullity in that there was no consent by the Attorney-General to the prosecution of the offence alleged in the indictment. In my opinion, the consent of the Attorney-General, as is required for the institution of proceedings under s. 124, is not a mere formality. The Attorney-General is given a discretion of a quasi-judicial nature as to whether witnesses who have made contradictory statements in judicial proceedings should or should not be prosecuted.

[…]

Where an offence is such as requires the consent of the Attorney-General before it can be instituted, no amendment is permissible which alleges an offence other than the offence with respect to which the Attorney-General has consented to the institution of proceedings.[56]

71.            In R. v. Horne and Pitfield Foods Ltd. the Alberta Court of Appeal considered whether a prosecution was properly authorised by the “Attorney-General, or his lawful deputy,” if the consent was granted by a person designated as acting Attorney General in the absence of the acting Deputy Attorney General. The court decided that it was not:

[6] The governing rule, of course, is to give the expression “lawful deputy” its grammatical and ordinary sense but harmoniously with the object of the enactment. This, the Crown contends, means anyone deputized by the Attorney-General.

[7] The Shorter O.E.D. says that a deputy is “a person appointed to act for another or others … “. Black’s Law Dictionary offers a similar definition. The first position of the Crown is that Mr. Gamache has been so appointed, and lawfully so because The Public Service Act R.S.A. 1970 c.298 s.7(3) permits such an appointment by the Attorney-General. By this view, the Crown concedes, the provincial statute could permit the delegation literally to anybody of this important power to grant or withhold access to the courts.

[8] Such a view is not in harmony with the legislative object in creating the fiat power. That object was stated by Cockburn, C.J. in The Queen v. Bray (1862) 2 B & S 258.

“The sole object of the statute was to prevent the abuse of the right of prosecution, by proceedings instituted either vexatiously or from corrupt or sinister motives.”

[9] This statement was adopted by the Supreme Court of Canada in Abrahams v. The Queen (1881) 1881 CanLII 27 (SCC), 6 S.C.R. 10 at p.15-16; and then applied by it to this very section in Re The Criminal Code and Re The Lord’s Day Act (1910) 1910 CanLII 30 (SCC), 16 C.C.C. 459 at p.465. It follows that this protecting function was one which the Attorney-General, as Davies, J. said in Re: The Criminal Code at p.465, “… must personally discharge and which he cannot delegate …”. Anglin, J. in that case adds at p.481:

“This power is of such a nature - so personal and so discretionary - that nothing but specific legislation unmistakably applicable can justify its delegation.”

[10] In my view, the latter addition of the words “lawful deputy” cannot possibly meet the test put by Anglin, J. if the words are to be understood to permit the Attorney-General to delegate his power to anybody, or even anybody permitted by provincial legislation. I reject the first position of the Crown.

[11] I note that the Supreme Court recently has said that a delegation of administrative duties by a Minister is to be expected in this age. See R. v. Harrison 1976 CanLII 3 (SCC), 28 C.C.C. (2d) 279 at p.284-5. But the limits of that rule must be recognized. In Re Criminal Code at p.459 Anglin, J. described the fiat power (and the power to prefer a direct indictment) as quasi-judicial, not administrative. The decision to grant or withhold access to the courts is not a mere administrative act.

[12] I note also that a minister of the Crown may permit (and indeed without the need of statutory authority) the exercise in his name of some of his lesser powers by an official. As Widgery, L.J. said in R. v. Skinner [1968] 2 Q.B. 700 at p.707:

“… In matters such as those with which we are presently concerned the Minister is not expected personally to take every decision entrusted to him by parliament. If a decision is made on his behalf by one of his officials then that constitutionally is the Minister’s decision. It is not strictly a matter of delegation; it is that the official acts as the Minister himself and the official’s decision is the Minister’s decision.”

This distinction is important because it preserves the notion of ministerial responsibility. But such a means of exercise has never been blessed when the power in question is an important one. See: deSmith, Judicial Review of Administrative Action 3rd Edition p. 271-2.

[13] The second position of the Crown is that “lawful deputy” means the Deputy Attorney-General of Alberta, an office created by The Department of the Attorney-General Act R.S.A. 1980 c.D-13 s.3, and which is filled by provincial Order-in-Council. See The Public Service Act s.11(1) and s.18(3). In order to deal with this argument, I will assume such a delegation is possible. He is certainly a high official in the sense that he is the only departmental official so appointed.

[14] The Crown submits that Mr. Gamache was, on the day in question, the actual Deputy Attorney-General. This argument relies on s.7(3) of The Public Service Act, which provides:

“A department head may appoint an employee of his department as the acting deputy head of that department, and an acting deputy head so appointed has, during the absence of the deputy head or a vacancy in the office of the deputy head, the powers and duties of the deputy head.”

[15] It is common ground that, for our purposes, the Department head is the Attorney-General and that all the prerequisites for the operation of the sub-section are either proven or to be presumed on invocation of the rule omnia praesumuntur rita esse acta sunt.

[16] Nevertheless, this section does not meet the standard (specific legislation unmistakably applicable) set by the Supreme Court.[57]

72.            This decision was affirmed by the Supreme Court.[58]
73.            In Sunila the Nova Scotia Court of Appeal considered whether the consent of an “Assistant Attorney General of Canada” was sufficient instead of the consent of the Attorney General of Canada or the Deputy Attorney General. The court was divided on the form and timing of a required consent but it was unanimous that the requirement in that case of consent did not allow delegation of this authority beyond the Attorney General or the deputy Attorney General because the decision was ministerial or quasi-judicial and not purely administrative.[59] The court explicitly emphasised this limitation of the principle expressed in Harrison.
74.            The general proposition in Harrison allows the delegation of administrative decisions unless more particularised language specifies the requirement for the intervention of a senior law officer.[60] While that proposition affirms a degree of flexibility in the restriction of the authority to delegate decision-making to a subordinate or alternative officer, it does not imply an exception to express statutory language that requires decision-making by a specified officer. In the Criminal Code, apart from requirements of consent to prosecute, there are many instances in which Parliament has required the intervention of a law officer that is more senior than a prosecutor who acts as counsel for the Attorney General. Examples include interventions,[61] direct indictments,[62] stays,[63] the requirement of a jury trial,[64] and special applications.[65] In this regard appellate jurisprudence remains constant that the authority to consent to criminal proceedings cannot be delegated beyond the terms of “specific legislation unmistakably applicable”[66] and that the principle of implied delegation in Harrison is limited to decision-making of an administrative nature.  
75.            Section 2 of the Criminal Code provides a definition of “Attorney General:”

(a) with respect to proceedings to which this Act applies, means the Attorney General or Solicitor General of the province in which those proceedings are taken and includes his or her lawful deputy or, if those proceedings are referred to in subsection 2.3(1), the Attorney General of Canada or the Attorney General or Solicitor General of the province in which those proceedings are taken and includes the lawful deputy of any of them,

(b) means the Attorney General of Canada and includes his or her lawful deputy with respect to

(i) Yukon, the Northwest Territories and Nunavut, or

(ii) proceedings commenced at the instance of the Government of Canada and conducted by or on behalf of that Government in respect of an offence under any Act of Parliament — other than this Act or the Canada Elections Act — or any regulation made under such an Act, and

(c) means the Director of Public Prosecutions appointed under subsection 3(1) of the Director of Public Prosecutions Act with respect to proceedings in relation to an offence under the Canada Elections Act.

76.            The same section provides a definition of “prosecutor:”

prosecutor means the Attorney General or, where the Attorney General does not intervene, means the person who institutes proceedings to which this Act applies, and includes counsel acting on behalf of either of them.

77.            And so, in effect, every general is a soldier but not every soldier is a general. A general of the army is not an admiral, just as a foot soldier is not a sailor. These are markers of structure, rank, authority, responsibility and duty. The administration of the criminal law is no different.
78.            The same overlap appears in the definitions provided in the Criminal Code and elsewhere in the law. The Attorney General includes the Attorney General’s “lawful deputy” but does not include counsel acting on the Attorney General’s behalf. The prosecutor includes the Attorney General and does include counsel acting on the Attorney General’s behalf[67] (or an authorised private prosecutor). Counsel acting for the Attorney General are responsible for a wide range of functions in the performance of their duties, including whether and what to charge, whether to proceed by indictment or by summary procedure, and so on.  Prosecutorial authority extends from ministerial law officers to others who are so delegated[68] but it does not extend to others if legislative authority is expressly limited to specified persons for specified functions. Thus a prosecutor cannot exercise the function reserved to the Attorney General or another specified law officer.[69] Provincial legislation that vests prosecutorial authority in counsel does not modify the definitions of “Attorney General” or “prosecutor” in the Criminal Code. It does not modify the functions of each and it does not allow the substitution of a prosecutor for the Attorney General when the Code stipulates functions reserved to the Attorney General.[70]  If no distinction is made between the Attorney General and a prosecutor, as it plainly is in section 2 of the Code, every prosecutor would have the authority of the Attorney General and there would be no meaningful difference between them.
79.            Provincial and federal legislation are consistent in maintaining the distinction between the Attorney General and prosecutors and in delineating the extent to which the functions of the Attorney General may be delegated.[71]  Both those functions may be exercised by the lawful deputy of the Attorney General and by the director of public prosecutions but they may not be delegated further to a prosecutor except by express statutory authorisation or the appropriate instrument of delegation. In Quebec the authority to delegate is explicitly provided in section 16 of the Act:

16. The Director may delegate to one or more persons under the Director’s authority a function essential to the carrying out of the Director’s responsibilities; these persons act under the Director’s supervision.

However, the Director may not delegate the powers of the Deputy Attorney General under the Criminal Code, which powers may be exercised by a Deputy Director when replacing the Director.[72]

80.            In Quebec the authority of the Attorney General and the Deputy Attorney General may be exercised by delegation to the Director of Criminal and Penal Prosecutions (DPCP), or the deputy Director when replacing the Director, but it may not be delegated further by the DPCP. Delegated authority stops there in the absence of any other lawful authorisation. In short, not only are there limits on those to whom authority may be delegated but limits on who may delegate and what may be delegated. It follows that in Québec the consent of the Attorney General that is required by subsection 7(4.3) may be delegated pursuant to section 16 of the Act to prosecutors in a clear directive issued pursuant to section 18. At the federal level the authority to delegate is also specifically provided in section 9 of the Director of Public Prosecutions Act.[73]
81.            Notwithstanding variations in form and substance, a constant feature in the specific requirement of the Attorney General’s consent to prosecution is that some form of intervention or authorisation is required of a senior law officer and not any agent of that officer. In criminal matters the participation of such a person is a legislative mechanism to ensure the public interest in the conduct of prosecutions and other proceedings.
82.            In the present case the public interest in the requirement imposed by subsection 7(4.3) is obvious. Subsection 7(4.1) allows the prosecution of offences allegedly committed by Canadians in a foreign jurisdiction. Extra-territoriality is an exception to the principle of international comity by which Canada respects the sovereignty of another state, and it engages ramifications of a diplomatic or (non-political) partisan nature,[74] as do offences of terrorism.[75] The requirement in subsection 7(4.3) imposes a marked criterion of deliberate authorisation to demonstrate the extension of Canadian jurisdiction in compliance with international obligations contracted by treaty.[76] This is what distinguishes the public interest in a case such as the present prosecution from domestic proceedings and this is the element that warrants an expression of an authority more senior than an agent of the Attorney General. To suggest that the authorisation of an agent of the Attorney General is sufficient not only renders the words of subsection 7(4.3) otiose and nugatory but ignores the added quotient of the public interest in a prosecution such as this. The specific requirement for the consent of the Attorney General cannot be equated with the consent of the Attorney General’s agents. Otherwise the requirement is meaningless and every proceeding could be conducted by any agent of the Attorney General.
83.            In this case the question of jurisdiction was addressed in the following exchange:

BY THE COURT:

I forgot to address an issue. Are you both there?

BY THE CROWN

Yes.

BY THE DEFENCE

Yes.

BY THE COURT

So, as for the jurisdiction, there’s no issue for that, Article 7 of the Criminal Code gives me jurisdiction to hear this trial?

BY THE CROWN

Yes, it does, Your Honour.

BY THE COURT

Everybody admits that?

BY THE DEFENCE

Yes. This is Maître Lacombe speaking.

BY THE COURT

Okay. Good. Thank you.

84.            This exchange demonstrates that the jurisdiction of the court at trial was established in accordance with subsection 7(4.1). It does not demonstrate compliance with subsection 7(4.3). There is nothing in the record to establish that the prosecution in this case was instituted with the consent of the Attorney General. It is perhaps a matter for debate what form of consent is required to establish compliance with subsection 7(4.3), or when and how it must be established. Those matters need not be addressed in this appeal because in any event it is clear that the consent of Attorney General does not mean the consent of any agent of the Attorney General and, moreover, there was no indication of an express consent to the institution of the present case.
85.            In this case there was no authorisation by anyone other than a prosecutor acting as counsel on behalf of the Attorney General. This is not contested. A condition precedent to an authorised prosecution was therefore not met and the trial proceeded without jurisdiction.
86.            I add that if I were not of the view that the prosecution was a nullity I would agree with the reasons jointly adopted by my colleagues, as written.
87.            I propose to allow the appeal, declare the prosecution a nullity and quash the findings of guilt. This disposition raises no issue of double jeopardy.

[1]  R. v. Drummond, Court of Québec, District of Beauharnois, File no. 760-01-096018-194, May 25, 2021, the Honourable Joey Dubois, J.C.Q.

[2]  Criminal Code, R.S.C. 1985, c. C-46, s. 151(a).

[3]  Criminal Code, s. 173(2)(a).

[4]   R. v. Wilkes, 1979 CanLII 2864 (ON CA), applied in Robillard v. R., [1996] R.J.Q. 2886, 1996 CanLII 5978 (QC CA).

[5]   R. v. Light, 1993 CanLII 1023 (BC CA), paras. 109-112; R. v. Luis, 1989 CanLII 7135 (ON SC), pp. 400‑402.

[6]   R. v. T.E.S., [2003] R.J.Q. 1427, 2003 CanLII 4204 (QC CA), paras. 33 ff., application for leave to appeal to the Supreme Court dismissed, November 13, 2003, 29884 [T.E.S.].

[7]  The Queen v. Harrison, [1977] 1 S.C.R. 238, p. 246, applied in Bujold v. R., [1987] R.L. 197; 1987 CanLII 304, paras. 21-26 (C.A).

[8]  Act respecting the Director of Criminal and Penal Prosecutions, CQLR, c. D-9.1.1 [the “DCPP Act”] and see T.E.S., supra, note 6, para. 31; Ouellet v. R., 2021 QCCA 386, paras. 77-78.

[9]  

[10]  Section 41.1, Interpretation Act, CQLR, c. I-16.

[11]  

[12]  Côté, Pierre-André, Interprétation des lois, 5th ed, 2021, Les Éditions Thémis, Montreal, paras. 1036-1059; Sullivan, Ruth, The Construction of Statutes, 7th ed., LexisNexis, Toronto, 2022, paras. 2.02-2.03.

[13]  R. v. W.(D.), [1991] 1 S.C.R. 742.

[14]  See R. v. Stevens, 2019 QCCA 785, paras. 62-63.

[15]  R. v. Gerrard, 2022 SCC 13, para. 5. See also Foomani v. R., 2023 QCCA 232, paras. 88‑89.

[16]  See, e.g., R. v. Biniaris, 2000 SCC 15, para. 36; R. v. W.(R.), [1992] 2 S.C.R. 122, pp. 131-132. See also Gauthier v. R., 2020 QCCA 714, paras. 46-52, citing, at para. 52, this Court’s decision in Richard v. R., 2015 QCCA 1523, para. 25.

[17]  R. v. R.E.M., 2008 SCC 51, para. 20.

[18]  See R. v. Beaudry, 2007 SCC 5, paras. 96-97; R. v. Sinclair, 2011 SCC 40, paras. 4, 15-17. See also R. v. C.P., 2021 SCC 19, paras. 29-34.

[19]  R. v. Lohrer, 2004 SCC 80, paras. 2, 6-8; Levin v. R., 2019 QCCA 1607, paras. 22-25. See also R. v. J.M.H., 2011 SCC 45, paras. 31-32.

[20]  R. v. Gagnon, 2006 SCC 17, para. 10; R. v. Bérubé-Gagnon, 2020 QCCA 1389, para. 35.

[21]  As recently restated by the Supreme Court in R. v. G.F., 2021 SCC 20, paras. 68-70.

[22]  R. v. Gagnon, 2006 SCC 17, paras. 10-11.

[23]  D’Anjou-Delage v. R., 2021 QCCA 1199, paras. 24-25; Figaro v. R., 2019 QCCA 1557, para. 19.

[24]  This question was left open by the Supreme Court in R. v. Mehari, 2020 SCC 40. In R. v. G.F., 2021 SCC 20, paras. 99-100, Justice Karakatsanis reiterated that the Supreme Court has not opined on the subject, and she expressed serious reservations on whether such an argument is helpful.

[25]  R. v. Drummond, Court of Québec, District of Beauharnois, File no. 760-01-096018-194, May 25, 2021, the Honourable Joey Dubois, J.C.Q.

[26]  R.S.C. 1985, c. C-46.

[27]  The issue is therefore not the form, the timeliness or the manner of establishing such consent.

[28]  R. v. Minot, 2011 NLCA 7. See also R. v. Hoch, 2019 QCCA 2182 (leave to appeal denied, July 16, 2020, S.C.C. File No 39073).

[29]  See, in Québec, Directives et instructions du directeur des poursuites criminelles et pénales, Accusation – Décision d’intenter et de continuer une poursuite, ACC-3, Instruction No 10 et seqq.; see also INS-1, esp. Instruction No 2. Orientations et mesures du ministre de la Justice en matière d’affaires criminelles et pénales, C.Q.L.R., c. M-19, r. 1, section 2. See also, e.g., Public Prosecution Service of Canada Deskbook, Guideline 2.3 and R. v. Wetmore, [1983] 2 S.C.R. 284, 306.

[30]  See infra paragraph [74].

[31]  Edwards, The Law Officers of the Crown (1964), passim; Edwards, The Attorney General, Politics and the Public Interest (1984), passim; Stenning, Appearing for the Crown (1986); Law Reform Commission of Canada, Controlling Criminal Prosecutions: The Attorney General and the Crown Prosecutor, Working Paper 62 (1990).

[32]  A.-G. Canada v. Canadian National Transportation Ltd., [1983] 2 S.C.R. 206; R. v. Wetmore, [1983] 2 S.C.R. 284; R. v. S.(S.), [1990] 2 S.C.R. 254, 283.

[33]  R. v. Kyres, 2018 QCCS 4671.

[34]  42 & 43 Vict. c. 22 (U.K.).

[35]  The literature on the evolution of private and public prosecution that is summarised in this paragraph is authoritatively examined by Professor Edwards: see the studies in note 31 supra. Scholarly literature on this subject is extensive. See, e.g., Hay, Controlling the English Prosecutor (1983) 21 Osgoode Hall L.J. 165; Hay, The Criminal Prosecution in England and Its Historians (1984) 47 M.L.R. 1.

[36]  Criminal Code, section 2. See infra paragraph [73].

[37]  See, e.g., Criminal Code, sections 126, 127, 342(2), 479, 810.01, 810.011.

[38]  See the discussion in Attorney General’s Advisory Committee (Martin Committee), Charge Screening, Disclosure and Resolution Discussions (1993), ch. 2.

[39]  See the statement in the House of Commons by the Attorney General, Sir Hartley Shawcross, concerning the prosecutorial functions of the law officers of the Crown: Parliamentary Debates, Volume 483, col. 681 (29 January 1951).

[40]  As in the present case: see supra paragraph [56].

[41]  See, e.g., Criminal Code, sections 172, 174.

[42]  E.g., Criminal Code, subsection 7(7).

[43]  See, e.g., Criminal Code, sections 7, 477.2.

[44]  E.g., offences against the administration of justice, public nudity.

[45]  Apart from statutory requirements of consent by the Attorney General, policy directives compel provincial and federal prosecutors to inform the Attorney General of issues concerning general public interest that arise in criminal prosecutions.

[46]  E.g., Criminal Code, sections 136, 172(4), 810.2.

[47]  E.g., Criminal Code, section 119.

[48]  E.g., Criminal Code, sections 485.1, 577. On direct indictments see R. v. Tapaquon, [1993] 4 S.C.R. 535, para. 53.

[49]  E.g., Criminal Code, section 485.1.

[50]  E.g., Criminal Code, sections 283, 579.

[51]  E.g., Criminal Code, sections 119, 477.2. See R. v. Sunila (1987) 35 C.C.C. (3d) 289 (N.S.C.A.).

[52]  E.g., Criminal Code, sections 342(2), 810.01, 810.011, 810.22.

[53]  R. v. Harrison, [1977] 1 S.C.R. 238, 245-246. See also Interpretation Act, R.S.C. 1985, c. I-21, section 24.

[54]  The chain of authority to conduct prosecutions in Québec is established in An Act respecting the Director of Criminal and Penal Prosecutions, C.Q.L.R. c. D-9.1.1.  See in particular section 16.

[55]  E.g., a direct indictment or a dangerous-offender application.

[56]  R. v. Falkenberg (1974), 16 C.C.C. (2d) 525, 528, 529. The offence is now found in Criminal Code, section 136, and still requires the consent of the Attorney General to institute proceedings.

[57]  R. v. Horne and Pitfield Foods Ltd. (1982), 69 C.C.C. (2d) 240 (Alta. C.A.).

[58]  [1985] 1 S.C.R. 364.

[59]  R. v. Sunila (1987), 35 C.C.C. (3d) 289, 305-306, 307-308. See also R. v. Frisbee (1989), 48 C.C.C. (3d) 386 (B.C.C.A.); R. v. Eriksen, 2002 YKTC 65.

[60]  See Interpretation Act, R.S.C. 1985, c. I-21, section 3(1).

[61]  Criminal Code, section 579.1.

[62]  Criminal Code, section 577.

[63]  Criminal Code, sections 579, 579.1.

[64]  Criminal Code, sections 568, 569.

[65]  E.g., Criminal Code, sections 754, 810.01, 810.022.

[66]  Re Criminal Code (1910), 43 S.C.R. 434, 481, quoted in R. v. Horne and Pitfield Foods Ltd., supra paragraph [70]. Some decisions at first instance have allowed, anomalously, a consent to be given by a delegate of the Attorney General or the Deputy Attorney General: see, e.g., Attorney General of Saskatchewan v. Ballantyne, 2015 SKQB 393; R. v. Luis (1989), 50 C.C.C. (3d) 398 (Ont. H.C.J.). The premise of these decisions is that a reference to a “lawful deputy” the Attorney General is synonymous with counsel acting on behalf of the Attorney General.

[67]  Section 2 defines counsel to mean “a barrister or solicitor, in respect of the matters or things that barristers and solicitors, respectively, are authorized by the law of a province to do or perform in relation to legal proceedings.”

[68]  See, e.g., the definition of Attorney General in section 2 of the Contraventions Act, S.C. 1992, c. 47: “Attorney General means the Attorney General of Canada or the Attorney General of a province, and includes counsel or an agent exercising any of the powers or performing any of the duties and functions of the Attorney General for the purposes of the applicable laws of a province or this Act, as the case may be.”

[69]  There are various provisions in which the Criminal Code expressly authorises a “prosecutor” to consent to specified decision without the intervention of a more senior law officer.  See, e.g., section 536.

[70]  See also Criminal Code, section 2.3.

[71]  In Québec see Act respecting the Director of Criminal and Penal Prosecutions, CQLR, c. D-9.1.1, sections 1, 9, 13, 15, 16, 18, 25, 86, 87, 92. For the federal Attorney General, see Department of Justice Act, R.S.C. c. J-2, sections 2, 5; Director of Public Prosecutions Act, S.C. 2006, c. 9, sections 2, 3, 5, 6, 9, 10, 13.

[72]  Act respecting the Director of Criminal and Penal Prosecutions, CQLR, c. D-9.1.1, section 16.

[73]  The same structure and the same limitation on delegated authority is found in organisation of the federal prosecutorial functions. The Public Prosecution Service of Canada Deskbook, which is officially a binding directive that governs the PPSC, includes express instructions concerning the manner in which consent for the conduct of proceedings must be obtained from senior law officers. See also the delegation of the Director pursuant to section 9(1) of the Director of Public Prosecutions Act entitled “Delegation to Federal Prosecutors and Persons acting as Federal Prosecutors: https:www.ppsc-sppc.gc.ca/eng/dia-dia/del1.pdf (accessed 12 September 2023).

[74]  See R. v. Patel, 2016 ONCJ 172, paras. 21-27. See also Libman v. The Queen, [1985] 2 S.C.R. 178, 208-209: “[T]he territorial principle in criminal law was developed by the courts to respond to two practical considerations, first, that a country has generally little direct concern for the actions of malefactors abroad, and secondly, that other states may legitimately take umbrage if a country attempts to regulate matters taking place wholly or substantially within their territories.”

[75]  Criminal Code, Part II.1.

[76]  The Optional Protocol to the Convention on the Rights of the Child, on the Sale of Children, Child Prostitution and Child Pornography, 25 May 2000, 2171 U.N.T.S. 227.