INTRODUCTION AND BRIEF DESCRIPTION

Consent of the Attorney General is required to proceed with proceedings regarding an act or omission deemed to have been committed in Canada under subsection (4.1) of the Criminal Code.

SECTION WORDING

7(4.3) Proceedings with respect to an act or omission deemed to have been committed in Canada under subsection (4.1) may only be instituted with the consent of the Attorney General.

EXPLANATION

Section 7(4.3) of the Criminal Code of Canada outlines a key aspect of the operation of the Canadian criminal justice system. Specifically, it states that any criminal proceedings related to an act or omission that has been deemed to have been committed within Canada (according to subsection 4.1 of the Code) may only be brought forward with the consent of the Attorney General. This provision is particularly important because it places significant control in the hands of the Attorney General with regard to which cases are pursued and which are not. This allows the government to tailor its approach to criminal justice, aligning it with its overall goals, and allows for a certain level of flexibility in the application of the law. Indeed, the requirement for the Attorney General's consent also reflects the broader principle of prosecutorial discretion, which has long been an important feature of common law criminal justice. This principle recognizes that prosecutors are best positioned to make decisions about which cases to pursue and which cases to drop, based on a variety of factors like the strength of the evidence, the public interest, and the resources available to the justice system. Overall, then, section 7(4.3) plays a crucial role in the Canadian criminal justice system, reflecting the importance of prosecutorial discretion, and providing a level of flexibility and control to the government and the Attorney General with respect to the prosecution of criminal offences.

COMMENTARY

Section 7(4.3) of the Criminal Code of Canada establishes an important safeguard for individuals against unjust criminal proceedings. The section restricts the ability to institute criminal proceedings with respect to an act or omission committed outside of Canada but deemed to have been committed within Canadian jurisdiction under subsection (4.1) of the same section. More specifically, under subsection (4.1), an act or omission committed outside of Canada but that is an offence under Canadian law, can be prosecuted in Canada as if it had been committed in Canada. The Attorney General's consent is therefore required for such proceedings to be initiated. This requirement serves to limit prosecutorial overreach and to ensure that only the most serious cases are pursued, in light of the potentially significant costs and logistical challenges associated with prosecuting crimes committed abroad. The requirement for consent reflects the principle of prosecutorial discretion, which gives prosecutors considerable influence over which cases are pursued and which are not. This discretion is especially important in cases where the alleged crime occurred outside of Canadian jurisdiction and, consequently, its consequences and implications may not be immediately clear. By requiring the consent of the Attorney General, Section 7(4.3) ensures that a more considered and nuanced approach is taken to these cases, where a multitude of factors need to be taken into account. These factors include considerations related to international relations, human rights, and the administration of justice. Further, the Attorney General may be called upon to assess whether prosecution in Canada would be in the public interest, whether there are reasonable prospects of conviction, whether there is sufficient evidence to sustain a conviction, and if the prosecution is consistent with Canada's international obligations and commitments. In practice, the requirement for consent is often a crucial barrier which requires prosecutors to bring forward evidence of high-calibre to justify their position. This provides an added layer of protection for individuals who may face extradition or rendition to Canada to face charges. It also provides an assurance to foreign jurisdictions that extra-territorial jurisdiction will only be asserted where it is merited. However, the requirement for the Attorney General's consent has been seen by some as imposing an unwarranted hurdle to foreign prosecution, particularly in cases where crimes have significant Canadian connections or where Canadian victims are implicated. Further, some have argued that it is problematic for prosecutorial discretion to be concentrated in one individual who is appointed by the government and political factors may influence their decisions. In conclusion, Section 7(4.3) serves as an important safeguard against potential overreach when it comes to the extra-territorial assertion of Canadian criminal jurisdiction. While some criticisms exist, ultimately this requirement allows for a more measured and deliberate approach when seeking to hold individuals criminally responsible for acts committed outside of Canada's borders.

STRATEGY

Section 7(4.3) of the Criminal Code of Canada is a provision that requires the Attorney General's consent before prosecuting a person for an act or omission deemed to have been committed in Canada under subsection (4.1). This provision is designed to ensure that the criminal justice system is not used for political or other non-criminal purposes. It provides a safeguard against abuse of the system and helps to maintain public confidence in the administration of justice. The provision, however, can create strategic considerations when dealing with criminal law proceedings. There are some important factors to consider when seeking the Attorney General's consent, such as the evidence available and the public interest considerations involved. One strategic consideration is to establish a strong case against the accused before seeking the Attorney General's consent. The Crown prosecutor must have sufficient evidence to prove guilt beyond a reasonable doubt. It is important to ensure that the evidence is reliable and admissible in court. A weak case can lead to the Attorney General withholding their consent, which may undermine the credibility of the justice system. Another strategic consideration is to ensure that the accused is aware of the charges against them. The accused has the right to a fair trial and access to legal counsel. Prosecutors must provide the accused with all relevant information concerning the case, including the requirements necessary to obtain the Attorney General's consent. The accused may also have the right to make submissions to the Attorney General, which must be taken into account before providing the consent. In some cases, the Attorney General may consider the public interest before granting their consent. The public interest is a broad concept that may vary depending on the case's specific circumstances. Strategic considerations may involve demonstrating to the Attorney General how the prosecution aligns with public interests such as deterring criminal behavior, protecting public safety, or preserving public confidence in the justice system. Strategies that could be employed to obtain the Attorney General's consent may include conducting a thorough investigation, gathering strong evidence, and submitting a persuasive argument outlining the importance of the prosecution to the public interest. The prosecution may also consider engaging in plea negotiations with the accused to resolve the matter outside of court. If the prosecution secures a conviction, it is important to ensure that the sentence passed aligns with the public interest and the severity of the crime committed. In conclusion, Section 7(4.3) of the Criminal Code of Canada creates strategic considerations when dealing with criminal law proceedings. Prosecutors must be mindful of the factors that the Attorney General considers before granting their consent. Strategies such as conducting a thorough investigation, gathering strong evidence, and engaging in negotiations may assist in obtaining the Attorney General's consent. Ensuring that the public interest is aligned with the prosecutor's case is essential when seeking the Attorney General's consent, as this provision is designed to safeguard the criminal justice system's integrity and maintain public confidence in it.

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