Schrager, Healy, Gagné

Appeal from a conviction. Dismissed, with dissenting reasons.

The appellant was convicted on charges of sexual interference and exposing his genital organs to a seven-year-old child. Because the incident occurred in the United States, the appeal must determine whether the Attorney General of Canada consented to the proceedings instituted against the appellant in accordance with s. 7(4.3) of the Criminal Code (R.S.C., c. C‑46) (Cr. C.). The appellant argues that the Attorney General’s prior written consent was required, such that the charges are a nullity, as are the convictions.

This provision refers to the “Attorney General”, which is defined in s. 2 Cr. C. This general definition applies to the entire Criminal Code, barring something which limits or restricts its meaning. Thus, absent wording requiring the Attorney General’s personal consent or absent an express limitation on deputies’ powers, the general definition applies. The “Attorney General” in s. 7(4.3) Cr. C. means the Attorney General of Quebec (AGQ) and includes his or her “lawful deputy”.

To determine who is a lawful deputy, one must turn to the Act respecting the Director of Criminal and Penal Prosecutions.  Section 1 provides that the Director of Criminal and Penal Prosecutions is the lawful deputy of the Attorney General of Quebec as are the prosecutors under the Director’s control. Section 16 of the Act 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.  The power discussed herein under s. 7(4.3) Cr.C. is that of the “Attorney General”. Accordingly, s. 16 of the Act does not contradict its s. 1, which provides that the prosecutors are the lawful deputies of the Attorney General of Quebec.

Thus, when the Director or any prosecutor authorized to act on his or her behalf authorizes a prosecution, it is implicit that he or she consents to it.  Given that a reading of the 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. This implicit consent applies equally to each of the criminal and penal prosecuting attorneys in the Director’s office who, in virtue of ss. 1 and 25 of the Act, are also the lawful deputies of the Attorney General.  Last, s. 7(4.3) Cr. C. does not state that the consent must be evidenced in writing.

With respect to the substantive grounds of the appeal, there is no speculation attributable to the judge on the complainant’s direct evidence of sexual touching or exposure. He provided sufficient explanations for his assessment of the evidence and the basis of his conclusions. Accordingly, this Court cannot conclude that the verdicts were unreasonable, tainted by error or in any other way identifiable as miscarriages of justice.

Healy J.A. would have allowed the appeal because, according to him, if the authorization of an agent of the Attorney General were sufficient to meet the requirement in s. 7(4.3) Cr.C., the words in it that require the AGQ’s consent would be otiose. Moreover, this view cannot be reconciled with the evolution of the law relating to the conduct of criminal prosecutions, the meaning of words – in particular, the difference between the definitions of “Attorney General” and “prosecutor” (s. 2 Cr. C.) – and the principles of legislative policy. Furthermore, only express statutory language could support the conclusion that any prosecutor’s consent is sufficient when the Criminal Code expressly requires the consent of the AGQ. Thus, a condition precedent to an authorized prosecution was therefore not met and the trial proceeded without jurisdiction.

Legislation interpreted: s. 7(4.3) Cr. C.

Text of the decision: http://citoyens.soquij.qc.ca