INTRODUCTION AND BRIEF DESCRIPTION
The Attorney General of Canadas consent is required for proceedings related to certain offenses.
SECTION WORDING
7.(2.33) No proceedings in relation to an offence referred to in subsection (2.3) or (2.31) may be instituted without the consent of the Attorney General of Canada.
EXPLANATION
Section 7(2.33) of the Criminal Code of Canada sets out a requirement for the Attorney General of Canada to give their consent before anyone can pursue criminal proceedings for certain types of offences. Specifically, this consent is required for offences referred to in subsections (2.3) or (2.31) of the Code. Subsection (2.3) deals with offences related to the Criminal Intelligence Service Canada Act, which gives powers to law enforcement agencies to investigate and prevent organized crime. These offences include things like disclosing confidential information or obstructing an investigation. Subsection (2.31) deals with offences related to the Security of Information Act, which concerns sensitive government information and activities that could threaten national security. Examples of crimes under this section include espionage, sabotage, and communicating information that might harm national security. The purpose of requiring the Attorney General's consent for these types of offences is to ensure that the prosecution of such crimes is in the public interest and aligns with the priorities and policies of the government. It allows the Attorney General to exercise a measure of control over the use of these laws and prevent them from being applied in an unjust or selective manner. It also means that resources are not wasted pursuing cases that are unlikely to succeed or do not serve a broader public interest. Overall, Section 7(2.33) serves as an important safeguard against misuse of powers and ensures that prosecutions related to national security and organized crime are conducted in a responsible and transparent manner.
COMMENTARY
Section 7(2.33) of the Criminal Code of Canada is a provision that emphasizes the importance of the role of the Attorney General in controlling the prosecution process. It states that in relation to certain offences, proceedings cannot be initiated or continued without the consent of the Attorney General of Canada. This provision appoints the Attorney General of Canada as the sole decision-maker in cases involving these offences. This section applies to offences referred to in subsections 2.3 and 2.31 of the Criminal Code of Canada. These subsections concern offenses with national security implications, such as espionage and compromising the security of Canada. The intent behind this provision is to ensure that prosecutions related to national security are handled in a careful and considered manner involving the highest levels of the Canadian government. The provision provides a significant safeguard against frivolous prosecutions or prosecutions motivated by political or other extraneous considerations. It ensures that the decision to prosecute is not made at a lower level and is not influenced by political or other external pressures. It also acts as a deterrent to politically motivated prosecutions, as it requires the Attorney General to apply a rigorous standard of evidence and legal precedent before providing consent for a prosecution. However, the provision has been the subject of criticism and controversy. Critics argue that it is a sweeping measure that grants significant power to the Attorney General of Canada, limiting the ability of the judiciary to intervene in cases that are deemed not to be in the public interest. The section's critics note that it can be used to shield those responsible for national security violations from prosecution. The provision grants significant leeway for a decision of the Attorney General to interfere with the independence of the judiciary, and its parameters are not always obvious. Another criticism of the provision is that it can have a chilling effect on the freedom of the press and may serve to limit the accountability of the government. The requirement for the Attorney General's consent before proceedings can be instituted can make it more challenging for journalists and others to expose national security violations, as the threat of prosecution can create a deterrent to whistleblowers and other sources of information. In conclusion, section 7(2.33) of the Criminal Code of Canada is a crucial provision that is intended to safeguard national security prosecutions from political interference. It recognizes the critical role of the Attorney General of Canada as a decision-maker in such cases. However, its critics argue that it grants too much power to the Attorney General and that it can have a chilling effect on the freedom of the press. Further dialogue may be needed to address these concerns and more carefully define the parameters of the provision.
STRATEGY
Section 7(2.33) of the Criminal Code of Canada is a critical provision as it vests the power to prosecute certain offences solely in the hands of the Attorney General of Canada. This provision gives the Attorney General the privilege to decide whether charges should be laid or not in particular cases, depending on the circumstances and the nature of the offence. The offences covered by this section are those referred to in subsections (2.3) and (2.31) of the Criminal Code of Canada. These include offences involving national security, terrorism, and espionage. Strategic considerations when dealing with Section 7(2.33) include the nature of the offence, the evidence available, and the political implications of proceeding or not proceeding with a prosecution. The first consideration is the nature of the offence. While certain offences might appear to be prosecutable, some sensitive cases might be difficult to prosecute because gathering the necessary evidence can be challenging. In such cases, making a decision to proceed with a prosecution may result in unfavorable outcomes, including the possibility of losing a case in court. Therefore, before proceeding, the Attorney General must critically examine the available evidence to determine whether there is a reasonable prospect of conviction. The second consideration is the availability of sufficient admissible evidence. The requirement for the Attorney General's consent protects an accused person from being charged without a proper evaluation of the evidence. The prosecutor must satisfy the Attorney General that the evidence obtained is admissible before proceeding with a prosecution. The prosecutor must ensure that the evidence complies with the Canadian Charter of Rights and Freedoms and other relevant laws, including the rules of evidence. In some cases, delays in obtaining evidence can pose challenges for the prosecutor. The third consideration is the political implications of the decision. The decision to proceed with a particular case may have significant political implications, either boosting or undermining the government's reputation. Therefore, the Attorney General's decision should prioritize the public interest, considering the legal, social, and political consequences of the outcome. This balancing act could be challenging in cases involving political figures or sensitive national security matters. In light of the strategic considerations mentioned above, there are different strategies that could be employed when dealing with Section 7(2.33). One strategy is to establish specialized units that can focus on handling national security, terrorism, and espionage cases. These units will have access to the necessary resources that would enable them to gather evidence effectively and evaluate the evidence for admissibility. Additionally, they can provide the Attorney General with the necessary legal advice on the implications of proceeding or not proceeding with a prosecution. Another strategy involves investing in technology and other investigative tools to aid prosecutors in gathering admissible evidence. This strategy will require training prosecutors on how to use these technological tools and complying with privacy laws while collecting information. The third strategy is to establish a prosecutorial framework that ensures consistency in decision making regarding Section 7(2.33) offences. This framework could provide guidance on factors to consider when deciding whether to prosecute or not, such as balancing the public interest against the nature and strength of the evidence. Finally, another possible strategy is to establish a high-level review panel to scrutinize the evidence, provide legal advice, and evaluate the implications of proceeding or not proceeding with certain cases. Such a panel could assist the Attorney General in making informed decisions while providing an additional layer of accountability and transparency to the prosecution process. In conclusion, Section 7(2.33) of the Criminal Code of Canada is a critical provision that requires careful consideration of various strategic factors when making the decision to prosecute these offences. Prosecuting these offences could be challenging, and strategic considerations have to be weighed carefully to avoid potential pitfalls, including losing a case in court or damaging the government's reputation. Different strategies such as specialized units, technology, prosecutorial framework, and high-level review panels could provide the necessary guidance, resources, and information to make informed decisions.