Statement on prosecuting prostitution-related charges in Alberta

Statement from Kim Armstrong, Deputy Attorney General of Alberta, on the issuing of a practice protocol for prostitution-related charges.

On February 4, 2014, the Deputy Attorney General issued a Practice Protocol (R. v. Bedford Practice Protocol) to the Alberta Crown Prosecution Service (ACPS) and its Crown Prosecutors.  For the Deputy Attorney General to issue such a protocol is a permissible exercise of the authority of that office, but it is a rare step that merits an explanation.

By law, the Attorney General is charged with responsibility for the administration of justice in Alberta, including the prosecution of those alleged to have offended the Criminal Code of Canada and other statutes.  As such, the authority to conduct prosecutions, including all of the discretionary decisions that must be made in every case, originates with the office of the Attorney General. With this role also comes the duty to remain independent.  That is to say, as the law officer of the Crown, the Attorney General must exercise his or her prosecutorial discretion as an independent officer, independent of external influences. Prosecutorial discretion refers to the decision-making exercised by the Attorney General in relation to the prosecution of alleged offences.  It is because Attorneys General exercise such discretion that they are often described as acting quasi-judicially.  As the lawful deputy of the Attorney General, the office of Deputy Attorney General is delegated many of these same responsibilities and powers.

Now as a practical matter the Attorney General obviously cannot attend all courts and conduct all prosecutions throughout the province.  For this reason, agents (i.e., Crown Prosecutors) are appointed to act for the Attorney General and administer justice at a local level.  Through these appointments, the Attorney General empowers agents to perform his or her prosecutorial duties.  Crown Prosecutors enjoy the same level of independence and are authorized to exercise the same discretionary powers as the Attorney General.  Their discretion, however, is not absolute. It is circumscribed by the constitution, legislation, judicial decisions, and by very general guidelines created by Attorneys General. In Alberta, the Attorney General’s guidelines are described in a Code of Conduct for Crown Prosecutors and are collected in the Crown Prosecutors’ Manual.  In one such guideline – The Decision to Prosecute – the Attorney General has directed that a “prosecution may only be commenced or continued if it is in the public interest to do so.”

By convention, decisions by Crown Prosecutors regarding the application of any of the Attorney General’s guidelines to individual cases or classes of cases have always been made exclusively by those within the ACPS, and not by the Attorney General or the Deputy Attorney General.  Moreover, any specific directions to Crown Prosecutors – such as the R. v. Bedford Practice Protocol – are, by convention, normally issued by the Head of the ACPS, not by the Attorney General or the Deputy Attorney General.  As such, in Alberta, the Prosecution Service is described as independent.

In this instance, however, the decision to issue the R. v. Bedford Practice Protocol was made by the Deputy Attorney General, not by the Head of the ACPS.  As stated, while this was a rare step, it was a permissible exercise of the authority of that office and it is the duty of every Crown Prosecutor to follow the protocol.

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