2019 FC 282, 2019 FC 282

T-1843-18 2019 FC 282 SNC-Lavalin Group Inc., SNC-Lavalin International Inc. and SNC-Lavalin Construction Inc. ( Applicants ) v. The Director of Public Prosecutions ( Respondent ) Indexed as: SNC-Lavalin Group Inc. v. Canada (Public Prosecution Service) Federal Court, Kane J.—Montréal, February 1; Ottawa, March 8, 2019.

Criminal Justice — Prosecutorial discretion — Motion pursuant to Federal Courts Rules , r. 359 seeking order to strike applicants’ application for judicial review without leave to amend — Application involving determination made by respondent (respondent or DPP) in context of respondent’s prosecution of applicants on charges pursuant to Criminal Code , Corruption of Foreign Public Officials Act — Decision for which applicants seeking judicial review was DPP’s determination not to offer (or invite) applicants to engage in negotiating remediation agreement in accordance with Criminal Code, s. 715.32 — In application, applicants seeking: order declaring that DPP’s decision at issue unlawful; order setting decision aside; mandamus directing DPP to issue invitation, to negotiate remediation agreement in good faith — Respondent, moving party herein, arguing in particular that DPP’s determination purely exercise of prosecutorial discretion in context of criminal proceeding — Main issue whether application should be struck because not having reasonable prospect of success — Related issues whether, how exercise of prosecutorial discretion subject to judicial review; whether decision at issue exercise of prosecutorial discretion or administrative decision; whether, in context of decision at issue, DPP is “federal board, commission or other tribunal” within meaning of Federal Courts Act , s. 2 ; whether applicants could seek mandamus on judicial review — Case law clearly establishing broad scope of prosecutorial discretion; that prosecutorial discretion not subject to review by Court; that role of prosecutor quasi-judicial — DPP’s decision whether to invite organization to enter into negotiations for remediation agreement clearly exercise of prosecutorial discretion — Nature of decision, case law confirming that decision at issue falling squarely within prosecutor’s discretion — Public interest always consideration in exercise of prosecutorial discretion — Given finding that respondent’s decision constituting exercise of prosecutorial discretion, only conclusion that could be reached is that DPP in present context not “federal board, commission or other tribunal” within Federal Courts Act , s. 2 definition; that Federal Court not having jurisdiction herein — Prosecutor not exercising powers conferred by DPP Act or Criminal Code but exercising prosecutorial discretion which is derived from common law, Constitution — Not necessary to address question of whether mandamus available as remedy to applicants on judicial review — Prosecutorial discretion not subject to judicial review except for abuse of process — Motion granted.

Practice — Pleadings — Motion to Strike — Motion to strike applicants’ application for judicial review without leave to amend — Underlying application involving respondent’s determination not to offer or invite applicants to engage in negotiating remediation agreement in accordance with Criminal Code, s. 715.32 — Whether application should proceed because raising novel claims, debatable issues, therefore, should not be found to have no reasonable prospect of success — Test for striking application for judicial review examined — Essential character of application in present case not revealing novel claim — Application having no reasonable prospect of success in context of law, governing case law, when taking realistic view.

This was a motion pursuant to rule 359 of the Federal Courts Rules seeking an order to strike the applicants’ application for judicial review without leave to amend. The application at issue involved a determination made by the respondent (respondent or DPP) in the context of the respondent’s prosecution of the applicants on charges pursuant to the Criminal Code and the Corruption of Foreign Public Officials Act .

The decision for which the applicants were seeking judicial review was the DPP’s determination not to offer (or invite) the applicants to engage in negotiating a remediation agreement (a voluntary agreement between a prosecutor and an organization accused of certain economic crimes) in accordance with

section 715.32 of the Criminal Code . Remediation agreements are governed by

Part XXII.1 of the Criminal Code . The applicants were charged in February 2015 with two offences: bribing a foreign public official pursuant to paragraph 3(1) (

b) of the Corruption of Foreign Public Officials Act and fraud pursuant to subsection 380(1) of the Criminal Code . The offences related to conduct occurring between 2001 and 2011. The respondent was prosecuting both charges. Further to the issue of the DPP’s decision in October 2018, the applicants, in their application for judicial review, sought an order declaring that the DPP’s decision not to issue an invitation to negotiate a remediation agreement was unlawful and setting the decision aside.

They also sought an order by way of mandamus to direct the DPP to issue an invitation and to negotiate a remediation agreement in good faith.

The respondent, the moving party on this motion, argued, among other things, that the DPP’s determination not to invite the applicants to enter into negotiations for a remediation agreement was purely an exercise of prosecutorial discretion in the context of a criminal proceeding; that the law is clear that prosecutorial discretion is not subject to judicial review except where there is an abuse of process; and that the Federal Court did not have the jurisdiction to determine this application because the DPP is not a federal board, commission or tribunal within the meaning of

section 2 of the Federal Courts Act . The applicants responded that the DPP’s decision was an administrative decision based on administrative law principles and was therefore subject to judicial review and argued that the DPP’s decision was unlawful because it was unreasonable on several grounds. The main issue was whether the application should be struck because it had no reasonable prospect of success.

The related issues were whether and how the exercise of prosecutorial discretion was subject to judicial review; whether the decision at issue—the DPP’s decision to not invite the applicants to enter into negotiations for a remediation agreement—was an exercise of prosecutorial discretion or an administrative decision; whether, in the context of the decision at issue, the DPP is a “federal board, commission or other tribunal” within the meaning of

section 2 of the Federal Courts Act ; whether the applicants could seek mandamus on judicial review; and whether the application should proceed because it raised novel claims and debatable issues and therefore should not be found to have no

reasonable prospect of success. Held , the motion should be granted. The test for striking an application for judicial review was examined. As for prosecutorial discretion, several cases were examined. Case law has clearly established: that prosecutorial discretion is not subject to review by the Court; the broad scope of prosecutorial discretion; and that the role of the prosecutor is quasi-judicial. The prosecutor conducts the prosecution and all that is included with independence and without political or judicial interference.

The Court does not act as a supervising prosecutor given the division of powers and the origins of prosecutorial discretion and because the Court would not be as competent as the prosecutor to consider the various factors involved in the specific decision. With respect to the characterization of the DPP’s decision at issue, the DPP’s decision whether to invite an organization to enter into negotiations for a remediation agreement was clearly an exercise of prosecutorial discretion. The statutory language of

Part XXII.1 of the Criminal Code , and in particular

section 715.32 , read in the context of the

Part XXII.1 regime, supported the conclusion that the decision was purely discretionary. The nature of the decision and the case law, which has identified many other decisions as exercises of prosecutorial discretion, confirmed that this decision fell squarely within the prosecutor’s discretion. The requirement to consider the public interest and the factors included in subsection 715.32(2) of the Criminal Code to guide the consideration of the public interest was not an indication that this was an administrative decision and subject to administrative law principles.

The public interest is always a consideration in the exercise of prosecutorial discretion. Therefore, the decision for which the applicants sought judicial review was an exercise of prosecutorial discretion that fell within the prosecutor’s role in bringing and continuing the prosecution and all that it entailed. The definition of “federal board, commission or other tribunal” found in

section 2 of the Federal Courts Act was examined. Given the Court’s finding that the respondent’s decision whether to invite an organization to enter into negotiations for a remediation agreement was an exercise of prosecutorial discretion, the only conclusion that could be reached is that—with respect to this decision—the DPP is not a “federal board, commission or other tribunal” within the

section 2 definition and that the Federal Court did not have jurisdiction. The prosecutor is not exercising powers conferred by the DPP Act or the Criminal Code but is exercising prosecutorial discretion which is derived from the common law and the Constitution. In the present case,

Part XXII.1 of the Criminal Code “imports and clothes” the Attorney General—i.e. the prosecutor—with powers that are derived from the common law. It was not necessary to address the question of whether mandamus would be available as a remedy for the applicants on judicial review given the finding that the decision whether to invite an organization to enter into negotiations for a remediation agreement is an exercise of prosecutorial discretion. Concerning the final issue of whether the application should proceed, the essential character of the application did not reveal a novel claim.

The application had no reasonable prospect of success in the context of the law and the governing case law and when a realistic view was taken. The law is clear that prosecutorial discretion is not subject to judicial review except for abuse of process. The respondent’s decision to not invite the applicants to enter into negotiations for a remediation agreement clearly fell within the ambit of prosecutorial discretion. STATUTES AND REGULATIONS CITED Budget Implementation Act, 2018, No. 1 , S.C. 2018, c. 12 . Code of Civil Procedure , C.Q.L.R., c. C-25.01 . Consumer Protection Act, 2002 , S.O. 2002, c. 30, Sch.

A . Criminal Code , R.S.C., 1985, c. C-46, ss. 380(1) , 579 , 715.3 –715.4, 715.31, 715.32, 715.33, 715.34, 715.36, 715.37, 715.38–715.41, 715.42, 717. Corruption of Foreign Public Officials Act , S.C. 1998, c. 34, s. 3(1) (b). Director of Public Prosecutions Act , S.C. 2006, c. 9, ss. 3 , 121 . Federal Accountability Act , S.C. 2006, c. 9 . Federal Courts Act , R.S.C., 1985, c. F-7, s. 2 “federal board, commission or other tribunal”. Federal Courts Rules , SOR/98-106, r. 359 .

Interpretation Act , R.S.C., 1985, c. I-21, s. 11 . Parliament of Canada Act , R.S.C., 1985, c. P-1 . Royal Canadian Mounted Police Act , R.S.C., 1985, c. R-10 . Young Offenders Act , R.S.C., 1985, c. Y-1 , , (rep. by S.C. 2002, c. 1, s. 199 ). Youth Criminal Justice Act , S.C. 2002, c. 1 . CASES CITED APPLIED:

Okimow v. Saskatchewan (Attorney General), 2000 SKQB 311, [2000] S.J. No. 499 (QL), [2001] 1 W.W.R. 662; Ochapowace FirstNation v. Canada (Attorney General), 2007 FC 920, [2008] 3 F.C.R. 571; Anisman v. Canada (Border Services Agency), 2010 FCA 52,400 N.R. 137, [2010] F.C.J. No. 221 (QL); Southam Inc. v. Canada (Attorney General), (FCA), [1990] 3 F.C. 465,(1990), 73 D.L.R. (4th) 289, [1990] F.C.J. No. 712 (QL) (T.D.); George v. Canada (Attorney General), 2007 FC 564, sub nom. Canada(Deputy Commissioner, Royal Canadian Mounted Police) v.

Canada (Commissioner, Royal Canadian Mounted Police), [2008] 1 F.C.R.752, [2007] F.C.J. No. 752 (QL); Apotex Inc. v. Canada (Attorney General), (FCA), [1994] 1 F.C. 742, [1993] F.C.J.No. 1098 (QL) (C.A.), affd (SCC), [1994] 3 S.C.R. 1100, [1994] S.C.J. No. 113 (QL). CONSIDERED: R. v. Anderson, 2014 SCC 41, [2014] 2 S.C.R. 167; JP Morgan Asset Management (Canada) Inc. v. Canada (National Revenue), 2013FCA 250, [2014] 2 F.C.R. 557; Canada v. Chiasson, 2003 FCA 155, 226 D.L.R. (4th) 351, [2003] F.C.J. No. 477 (QL); Cannon v.Funds for Canada Foundation, 2012 ONSC 399, 13 C.P.C. (7th) 250, [2012] O.J.

No. 168 (QL); Paradis Honey Ltd. v. Canada(Attorney General), 2015 FCA 89, [2016] 1 F.C.R. 446, [2015] F.C.J. No. 399 (QL); David Bull Laboratories Canada (AttorneyGeneral) Inc. v. Pharmacia Inc., (FCA), [1995] 1 F.C. 588, (1994), 58 C.P.R. (3d) 209, [1994] F.C.J. No. 1629 (QL)(C.A.); R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45; Teva Canada Limited v. Gilead Sciences Inc., 2016 FCA176, 140 C.P.R. (4th) 309, [2016] F.C.J. No. 605 (QL); Wright v. United Parcel Service Canada Ltd., 2011 ONSC 5044, [2011] O.J. No.3936 (QL); Krieger v.

Law Society of Alberta, 2002 SCC 65, [2002] 3 S.C.R. 372; Miazga v. Kvello Estate, 2009 SCC 51, [2009] 3S.C.R. 339; R. v. Nixon, 2011 SCC 34, [2011] 2 S.C.R. 566; R. v. Cawthorne, 2016 SCC 32, [2016] 1 S.C.R. 983; R. v. Power, (SCC), [1994] 1 S.C.R. 601, [1994] S.C.J. No. 29 (QL); R. v. Baptiste, [2000] O.J. No. 528 (QL), (2000), (ON SC), 74 C.R.R. (2d) 333 (Sup. Ct.); R. v. C. (E.J.), 2013 ABPC 28, [2013] A.J. No. 247 (QL); R. v. T. (V.), (SCC), [1992] 1 S.C.R. 749; R. v. Saikaly, (ON CA), [1979] O.J. No. 94 (QL), (1979), 48 C.C.C. (2d) 192, 1979CarswellOnt 1336 (C.A.); Gouriet v.

Union of Post Office Workers, [1978] A.C. 435, [1977] 3 W.L.R. 300; Zhang v. Canada (AttorneyGeneral), 2006 FC 276, 42 Admin. L.R. (4th) 300, [2006] F.C.J. No. 361 (QL); Nelles v. Ontario, (SCC), [1989] 2S.C.R. 170, [1989] S.C.J. No. 86 (QL); R. v. Lavigne, 2006 SCC 10, [2006] 1 S.C.R. 392; Southam Inc. v. Canada (Attorney General), (FCA), [1990] 3 F.C. 465, (1990), 73 D.L.R. (4th) 289, [1990] F.C.J. No. 712 (QL) (T.D.); Douglas v. Canada(Attorney General), 2014 FC 299, [2015] 2 F.C.R. 911. REFERRED TO: R. v. Basi, 2009 BCSC 1685, [2009] B.C.J. No. 2436 (QL); R. v.

DeSousa, (SCC), [1992] 2 S.C.R. 944, (1992), 9 O.R.(3d) 544, [1992] S.C.J. No. 77 (QL). AUTHORS CITED Garant, Patrice. Droit Administratif, 7th ed. Cowansville, Qc: Éditions Yvon Blais, 2017. Public Prosecution Service of Canada Deskbook, 2014, online: www.ppsc.sppc.gc.ca. Sullivan, Ruth. Sullivan on the

Interpretation of Statutes, 6th ed. (Markham, ON: LexisNexis, 2004). MOTION seeking an order striking the applicants’ application for judicial review without leave to amend of the respondent’sdetermination not to offer or invite the applicants to engage in negotiating a remediation agreement in accordance with

section 715.32 ofthe Criminal Code after charges were brought against them. Motion granted. APPEARANCES William McNamara, W. Grant Worden and Emma Loignon-Giroux for applicants. David Migicovsky and Andrew J. F. Lenz for respondent. SOLICITORS OF RECORD Torys LLP, Toronto, for applicants. Perley-Robertson, Hill & McDougall LLP/s.r.l., Ottawa, for respondent.

The following are the reasons for order and order rendered in English by [1] Kane J.: The respondent brings this motion pursuant to rule 359 of the Federal Courts Rules, SOR/98-106, seeking an order tostrike the applicants’ application for judicial review (application) without leave to amend. [2] The application at issue involves a determination made by the Director of Public Prosecutions (DPP) in the context of the DPP’sprosecution of the applicants on charges pursuant to the Criminal Code, R.S.C., 1985, c.

C-46 (Criminal Code) and the Corruption ofForeign Public Officials Act, S.C. 1998, c. 34 (Corruption of Foreign Public Officials Act). The decision for which the applicants seekjudicial review is the DPP’s determination not to offer (or invite) the applicants to engage in negotiating a remediation agreement, inaccordance with

section 715.32 of the Criminal Code. [3]

Part XXII.1 of the Criminal Code (sections 715.3–715.4) governs remediation agreements, which are also referred to,particularly in other jurisdictions, as deferred prosecution agreements. A remediation agreement would be an alternative to pursuing thecriminal prosecution and possible conviction of an organization accused of a criminal offence. The provisions were enacted as part of the

Budget Implementation Act, 2018, No. 1 , S.C. 2018, c. 12 (BIA 2018) and were proclaimed into force on September 21, 2018. [ 4 ] The respondent, the moving party on this motion, argues, among other things, that the DPP’s determination not to invite the applicants to enter into negotiations for a remediation agreement is purely an exercise of prosecutorial discretion in the context of a criminal proceeding. The respondent submits that the law is clear; prosecutorial discretion is not subject to judicial review, except where there is an abuse of process.

The respondent adds that the prosecutor’s discretion is derived from the common law and not from a federal statute, and as a result, the DPP is not a “federal board, commission or other tribunal” within the meaning of the Federal Courts Act , R.S.C., 1985, c. F-7 ( Federal Courts Act [

section 2 ]), and this Court does not have jurisdiction to review the DPP’s decision in any event. As such, the application has no chance of success and should be struck. [ 5 ] The applicants respond that the DPP’s decision is an administrative decision based on administrative law principles and is, therefore, subject to judicial review. On this motion, the applicants argue that the DPP’s decision bears the hallmarks of an administrative decision.

They submit that the decision differs from other decisions that a prosecutor may make regarding the conduct of a prosecution, which would be within their prosecutorial discretion, because the decision to invite an organization to enter into negotiations is made while the prosecution continues and requires the prosecutor to consider a series of factors set out in

section 715.32 , which if satisfied requires the invitation to be made. [ 6 ] The applicants allege in their notice of application for judicial review that the DPP unlawfully exercised her discretion in refusing to invite the applicants to enter into negotiations for a remediation agreement.

The applicants assert that they met all the conditions and criteria set out in the relevant Criminal Code provisions to permit the negotiation of such an agreement and that there was no reason for the DPP not to invite the applicants to enter into negotiations for a remediation agreement. [ 7 ] The issue on this motion is whether the application for judicial review of the DPP’s decision not to invite the applicants to enter into negotiations for a remediation agreement should be struck or should proceed. This depends on whether the application has a reasonable prospect of success.

In the present circumstances, this requires the Court to first determine whether the DPP’s decision is an exercise of prosecutorial discretion, which is not subject to judicial review except where there is an abuse of process, or whether the DPP’s decision is an administrative decision and, if so, whether it is subject to judicial review by this Court. [ 8 ] For the reasons that follow, I find that the application shall be struck as it has no reasonable prospect of success in the context of the law and the governing jurisprudence and taking a realistic view.

The well-crafted arguments of the applicants have been carefully considered, as the reasons below will demonstrate. However, the law is clear that prosecutorial discretion is not subject to judicial review, except for abuse of process. The decision at issue—whether to invite an organization to enter into negotiations for a remediation agreement—clearly falls within the ambit of prosecutorial discretion and the nature of decisions that prosecutors are regularly called to make in criminal proceedings.

The jurisprudence provides many examples of decisions found to be squarely within the prosecutor’s discretion and the decision at issue is analogous. The other issues raised in this motion follow from the finding that the decision is one of prosecutorial discretion. I. The Background A. The Applicants and the Charges [ 9 ] The applicants describe SNC-Lavalin as a global fully integrated professional services and project management company.

SNC- Lavalin employs over 50 000 employees around the world, including many in Canada, who provide, among other things, capital investment, consulting, design, engineering, construction management and operations and maintenance services to clients in the oil and gas, mining and metallurgy, infrastructure, clean power, and nuclear energy sectors, as well as engineering design and project management. [ 10 ] The applicants were charged in February 2015 with two offences; pursuant to paragraph 3(1) (

b) of the Corruption of Foreign Public Officials Act , with bribing a foreign public official and pursuant to subsection 380(1) of the Criminal Code , with fraud. The offences relate to conduct occurring between 2001 and 2011. The DPP is prosecuting both charges. The preliminary inquiry began in the Superior Court of Quebec in October 2018 and was expected to resume in February 2019 (with a view to being completed at that time). Subject to the outcome of the preliminary inquiry, the trial is expected to proceed later in 2019 or in 2020. B.

The Development of the Remediation Agreement Regime [ 11 ] The Government engaged in a public consultation process in November and December 2017 to seek the input of interested stakeholders regarding the advantages, disadvantages and other implications of a Canadian model for deferred prosecution agreements. Amendments to the Criminal Code were introduced in March 2018 as part of the BIA 2018. The BIA 2018 was passed on June 21, 2018 and the Criminal Code amendments, now contained in

Part XXII.1, were proclaimed in force on September 21, 2018. C. The Applicants’ Provision of Information [ 12 ] The applicants note that they made overtures to the DPP regarding their interest in and suitability for a remediation agreement based on the proposed legislation as early as April 2018. The applicants provided extensive information to the DPP regarding how they met the relevant criteria. The applicants continued to make submissions to the DPP following the enactment of

Part XXII.1, including following receipt of an indication from the DPP on September 4, 2018 that she would not invite the applicants to negotiate a remediation agreement. [ 13 ] The applicants note that they provided an extensive amount of information by way of letters and meetings to demonstrate how their actions reflected the objectives and criteria for a remediation agreement.

This included information about efforts made since 2012 to implement, monitor and independently evaluate an ethics and compliance program; anti-corruption training for all employees; the turn-over of senior management and the Board of Directors; the dismissal or severance of senior officers associated with the questionable

activities; and the serious impact of a continuing prosecution, a lengthy trial and the possible conviction on employees, pensioners, and other stakeholders, including that SNC-Lavalin could be barred from bidding on contracts. The applicants also note that they advised the DPP of their willingness to provide further information, if they were invited to negotiate a remediation agreement, regarding how they would meet the objectives of a remediation agreement, for example, through the negotiations of reparations to victims, proportionate penalties and measures to denounce the alleged wrongdoing.

The information was provided on the understanding that it was confidential and protected by privilege. The applicants submit that this evidence should be considered on the application for judicial review. D. The Remediation Agreement Regime [ 14 ]

Part XXII.1 of the Criminal Code is a complete regime for the determination of whether to engage in negotiations for a remediation agreement and, if negotiations are pursued and an agreement is reached, for the approval, conditions, enforcement and consequences, including for non-compliance with the remediation agreement, among other details. [ 15 ] The applicants and the respondent describe the provisions in a similar manner, although they differ in how certain provisions should be interpreted and whether the initial decision of the prosecutor to invite an organization to enter into negotiations is an administrative decision or an exercise of prosecutorial discretion.

The parties note that remediation agreement regimes have existed in other jurisdictions under other names, such as a deferred prosecution agreement. [ 16 ] In a nutshell, a remediation agreement is a voluntary agreement between a prosecutor and an organization accused of certain economic crimes. It is an alternative to the traditional prosecution of criminal offences against an organization. It is premised on the prosecutor being of the opinion that there is a reasonable prospect of conviction and on the organization accepting responsibility for the alleged conduct, among other conditions.

It is defined in subsection 715.3(1) as “an agreement, between an organization accused of having committed an offence and a prosecutor, to stay any proceedings related to that offence if the organization complies with the terms of the agreement.( accord de réparation )”. [ 17 ] The purpose of a remediation agreement and the conditions for inviting an organization to enter into negotiations for a remediation agreement are set out at sections 715.31–715.32. The purpose, as described in

section 715.31, includes denouncing wrongdoing, holding organizations accountable and reducing the negative consequences of the wrongdoing on other persons, including employees, who were not responsible. [ 18 ]

Section 715.32 sets out the conditions for a prosecutor to enter into negotiations for a remediation agreement, including that the prosecutor is of the opinion that there is a reasonable prospect of conviction and that negotiating the remediation agreement is in the public interest and appropriate. A non-exhaustive list of factors is set out for the prosecutor to consider with respect to the public interest and appropriateness of negotiating the agreement. [ 19 ]

Section 715.33 addresses the contents of an offer to negotiate and how the information shared is used and protected.

Section 715.34 lists the elements of the remediation agreement, including what must be specifically included and what may optionally be included.

Section 715.36 requires that the prosecutor take reasonable steps to advise any victim that a remediation agreement may be entered into.

Section 715.37 governs the approval by the Court (which means the Court of criminal jurisdiction in which the prosecution is proceeding) of any remediation agreement that has been negotiated and provides factors for the Court to consider in determining whether to approve the agreement. Where the agreement is approved, subsection 715.37(7) provides that the prosecutor must direct the clerk of the court to enter on the record that the proceedings are stayed.

Sections 715.38–715.41 address other aspects of a remediation agreement, including variations of an agreement, termination of an agreement and the recommencement of proceedings where an agreement is not complied with. Of note, where the Court orders that the agreement has been complied with, the proceedings are deemed never to have been commenced.

Section 715.42 requires the Court to publish a remediation agreement approved by the Court, and certain other orders, including an order to stay the proceedings, unless non-publication is necessary for the proper administration of justice. [ 20 ] The key provisions at issue in this motion are set out below and

Part XXII.1 is set out in its entirety at Appendix A. Purpose 715.31 The purpose of this

Part is to establish a remediation agreement regime that is applicable to organizations alleged to have committed an offence and that has the following objectives: (

a) to denounce an organization’s wrongdoing and the harm that the wrongdoing has caused to victims or to the community; (

b) to hold the organization accountable for its wrongdoing through effective, proportionate and dissuasive penalties; (

c) to contribute to respect for the law by imposing an obligation on the organization to put in place corrective measures and promote a compliance culture; (

d) to encourage voluntary disclosure of the wrongdoing; (

e) to provide reparations for harm done to victims or to the community; and (

f) to reduce the negative consequences of the wrongdoing for persons — employees, customers, pensioners and others — who did not engage in the wrongdoing, while holding responsible those individuals who did engage in that wrongdoing. Conditions for remediation agreement

715.32

(1) The prosecutor may enter into negotiations for a remediation agreement with an organization alleged to have committed an offence if the following conditions are met: (

a) the prosecutor is of the opinion that there is a reasonable prospect of conviction with respect to the offence; (

b) the prosecutor is of the opinion that the act or omission that forms the basis of the offence did not cause and was not likely to have caused serious bodily harm or death, or injury to national defence or national security, and was not committed for the benefit of, at the direction of, or in association with, a criminal organization or terrorist group; (

c) the prosecutor is of the opinion that negotiating the agreement is in the public interest and appropriate in the circumstances; and (

d) the Attorney General has consented to the negotiation of the agreement. Factors to consider

(2) For the purposes of paragraph (1)(c), the prosecutor must consider the following factors: (

a) the circumstances in which the act or omission that forms the basis of the offence was brought to the attention of investigative authorities; (

b) the nature and gravity of the act or omission and its impact on any victim; (

c) the degree of involvement of senior officers of the organization in the act or omission; (

d) whether the organization has taken disciplinary action, including termination of employment, against any person who was involved in the act or omission; (

e) whether the organization has made reparations or taken other measures to remedy the harm caused by the act or omission and to prevent the commission of similar acts or omissions; (

f) whether the organization has identified or expressed a willingness to identify any person involved in wrongdoing related to the act or omission; (

g) whether the organization — or any of its representatives — was convicted of an offence or sanctioned by a regulatory body, or whether it entered into a previous remediation agreement or other settlement, in Canada or elsewhere, for similar acts or omissions; (

h) whether the organization — or any of its representatives — is alleged to have committed any other offences, including those not listed in the

schedule to this Part; and (

i) any other factor that the prosecutor considers relevant. Factors not to consider

(3) Despite paragraph (2)(i), if the organization is alleged to have committed an offence under

section 3 or 4 of the Corruption of Foreign Public Officials Act , the prosecutor must not consider the national economic interest, the potential effect on relations with a state other than Canada or the identity of the organization or individual involved. Notice to organization ― invitation to negotiate 715.33

(1) If the prosecutor wishes to negotiate a remediation agreement, they must give the organization written notice of the offer to enter into negotiations and the notice must include (

a) a

summary description of the offence to which the agreement would apply; (

b) an indication of the voluntary nature of the negotiation process; (

c) an indication of the legal effects of the agreement; (

d) an indication that, by agreeing to the terms of this notice, the organization explicitly waives the inclusion of the negotiation period and the period during which the agreement is in force in any assessment of the reasonableness of the delay between the day on which the charge is laid and the end of trial; (

e) an indication that negotiations must be carried out in good faith and that the organization must provide all information requested by the prosecutor that the organization is aware of or can obtain through reasonable efforts, including information enabling the identification of any person involved in the act or omission that forms the basis of the offence or any wrongdoing related to that act or omission; (

f) an indication of how the information disclosed by the organization during the negotiations may be used, subject to subsection (2); (

g) a warning that knowingly making false or misleading statements or knowingly providing false or misleading information during the negotiations may lead to the recommencement of proceedings or prosecution for obstruction of justice;

(

h) an indication that either party may withdraw from the negotiations by providing written notice to the other party; (

i) an indication that reasonable efforts must be made by both parties to identify any victim as soon as practicable; and (

j) a deadline to accept the offer to negotiate according to the terms of the notice. Admissions not admissible in evidence

(2) No admission, confession or statement accepting responsibility for a given act or omission made by the organization during the negotiations is admissible in evidence against that organization in any civil or criminal proceedings related to that act or omission, except those contained in the statement of facts or admission of responsibility referred to in paragraphs 715.34(1)(

a) and (b), if the parties reach an agreement and it is approved by the court. II. The Underlying Application for Judicial Review A. The Decision at Issue [ 21 ] The decision of the DPP is set out in a letter dated October 9, 2018, which indicates that the DPP had conducted a detailed review of the documents submitted by the Applicants, including the submissions made following the DPP’s previous indication, communicated on September 4, 2018, that it would not issue an invitation to negotiate a remediation agreement.

The letter indicates that the DPP “continues to be of the view that an invitation to negotiate a remediation agreement is not appropriate in this case. Therefore no invitation to negotiate a remediation agreement will be issued and as a result crown counsel shall continue with the prosecution of this case in the normal course”. B. The Applicants’ Notice of Application [ 22 ] The applicants seek judicial review of the DPP’s October 9, 2018 decision. The applicants seek an order to declare that the DPP’s decision not to issue an invitation to negotiate a remediation agreement is unlawful and to set it aside.

The applicants also seek an order by way of mandamus to direct the DPP to issue an invitation and to negotiate a remediation agreement in good faith. [ 23 ] In their notice of application, the applicants acknowledge that whether to issue an invitation to negotiate a remediation agreement is a matter of discretion, but submit that this discretion is fettered and must be exercised reasonably and in accordance with the statutory objectives and factors. [ 24 ] The applicants, characterizing the decision as an administrative decision, allege that the DPP’s decision is unlawful because it is unreasonable on several grounds.

The applicants allege that the DPP did not weigh and consider the submissions and extensive information they provided in light of the objectives of a remediation agreement. The applicants also allege that the DPP’s decision indicates only that the invitation to negotiate would not be appropriate in this case, rather than that it would not be “in the public interest and appropriate in the circumstances”, which suggests that the DPP had concluded that negotiating a remediation agreement was otherwise in the public interest.

The applicants further allege that the DPP does not provide reasons to justify her decision that negotiating a remediation agreement would not be appropriate. III. The Respondent’s (the Moving Party) Overall Position [ 25 ] The respondent submits that this application is bereft of any possibility of success for several reasons and should, therefore, be struck.

The respondent submits that the applicants seek to compel the DPP to exercise her prosecutorial discretion to invite the applicants to negotiate a remediation agreement with a view to having the criminal charges against them stayed. [ 26 ] First, the respondent submits that the determination of the DPP not to invite the applicants to engage in negotiations for a remediation agreement is clearly an exercise of prosecutorial discretion just like many other determinations made in the course of conducting a prosecution.

The determination is not based on administrative law principles. [ 27 ] The respondent submits that the law is well settled; prosecutorial discretion is not subject to judicial review by the courts, except for abuse of process, which is not alleged by the applicants. [ 28 ] Second, the respondent argues that this Court does not have the jurisdiction to determine this application because the DPP is not a federal board, commission or tribunal within the meaning of

section 2 of the Federal Courts Act . The respondent submits that the prosecutorial discretion exercised by the DPP is derived from the common law, not from

an Act of Parliament as required for this Court to have jurisdiction pursuant to

section 2 . [ 29 ] Third, the respondent submits that even if this Court has jurisdiction to determine the application, it should decline to do so and defer to the jurisdiction of the Quebec Superior Court given its expertise in criminal law matters. [ 30 ] Fourth, the respondent argues that the relief sought by the applicants in the application cannot succeed. The test for mandamus is not met; the Court cannot compel the exercise of the prosecutor’s discretion in a particular way. IV.

The Applicants’ Overall Position [ 31 ] The applicants describe remediation agreements as an unprecedented and revolutionary change in the criminal law. The applicants submit that the intention of Parliament in establishing the remediation agreement regime is to provide a way to secure all the elements of a conviction except for the finding of guilt, which reflects the statutory objective of holding organizations responsible for their wrongdoing while at the same time reducing the negative consequences on innocent stakeholders.

The applicants highlight the grave implications of a continuing prosecution and possible conviction, including being barred from bidding on future Government contracts, which will have a significant impact on their employees, pensioners and other stakeholders and on “innocent bystanders”.

[ 32 ] The applicants point to the Debate in the Senate on the BIA 2018 that noted the benefits of remediation agreements, including reparations to victims, stimulating change in corporate culture and allowing companies to continue to operate, thereby sparing jobs and protecting investments. [ 33 ] On this motion, the applicants acknowledge that the exercise of prosecutorial discretion is not subject to judicial review.

The applicants argue that the DPP’s role with respect to offering or inviting an organization to negotiate a remediation agreement does not fall within the ambit of unfettered prosecutorial discretion. Rather, it is an administrative decision which is required to be made with regard to several factors.

Therefore, the decision is reviewable for reasonableness and the application should proceed. [ 34 ] The applicants submit that the DPP’s decision is not typical of other decisions that fall within prosecutorial discretion, including because the decision to invite negotiations for a remediation agreement is made in parallel to the ongoing criminal prosecution. The applicants also submit that the

interpretation of the statutory provisions in the context of the stated objectives and the intention of Parliament support finding that this is an administrative decision and that it is not immune from judicial review. [ 35 ] The applicants argue that the DPP’s decision should not be immune from judicial review, as this would thwart the goal of Parliament.

Without judicial review there is no way to ensure that prosecutors have considered and applied the criteria and invited organizations to negotiate a remediation agreement where the criteria are met. [ 36 ] The applicants submit that this Court has jurisdiction to determine their application because the DPP derives its authority from the Director of Public Prosecutions Act , S.C. 2006, c. 9 ( DPP Act ), s. 121 and the Criminal Code , which places the DPP within

section 2 of the Federal Courts Act as a federal board or tribunal. [ 37 ] The applicants further submit that mandamus would be available to them on judicial review because the DPP had a duty to invite them to enter into negotiations once the conditions and criteria were satisfied. [ 38 ] The applicants argue that the respondent’s motion to strike for the convenience of the respondent to avoid defending the application is “shocking”. The applicants submit that their application raises novel and complex legal issues, including whether the decision is an exercise of prosecutorial discretion or an administrative decision; the

interpretation of

Part XXII.1, in particular

section 715.32; whether the DPP is a federal board for the purpose of

section 2 of the Federal Courts Act (i.e., whether the Federal Court has the jurisdiction to review the DPP’s decision) which depends on the source of the DPP’s authority; whether the DPP should be immune from judicial review; and whether mandamus is available as a remedy. The applicants submit that these issues demonstrate that it is, at least, debatable whether the application has a reasonable prospect of success. As a result, the respondent has not delivered the “knockout punch” to permit the Court to strike the application.

The applicants argue that the application should be determined by the applications Judge with the full record, which is needed to interpret the statute and to determine whether the DPP acted reasonably—i.e., to determine what she did and did not consider. V. The Issues [ 39 ] The issue on this motion is whether the application should be struck because it has no reasonable prospect of success. This requires consideration and application of the jurisprudence regarding motions to strike an application for judicial review.

This also requires consideration of several related issues and arguments advanced by the parties, including: • Whether and how the exercise of prosecutorial discretion is subject to judicial review; • Whether the decision at issue—the DPP’s decision to not invite the applicants to enter into negotiations for a remediation agreement—is an exercise of prosecutorial discretion or an administrative decision; • Whether, in the context of the decision at issue, the DPP is a “federal board, commission or other tribunal” within the meaning of

section 2 of the Federal Courts Act ; • Whether the applicants can seek mandamus on judicial review; and • Whether the application should proceed because it raises novel claims and debatable issues and, as a result, should not be found to have no reasonable prospect of success. VI. The Test for Striking an Application for Judicial Review A.

The Respondent’s Submissions [ 40 ] The respondent submits that the Court can strike a notice of application where it fails to state a cognizable administrative law claim which may be brought to the Federal Court, or where the Federal Court is not able to deal with the claim under the Federal Courts Act or some legal principle, or cannot grant the relief. [ 41 ] The respondent submits that the high threshold to strike the applicants’ notice of application is met.

The legal principles regarding the exercise of prosecutorial discretion are well established; prosecutorial discretion is not subject to judicial review except in narrow circumstances which do not apply in this case. [ 42 ] The respondent acknowledges that novel legal issues should generally be allowed to develop, but argues that the issue is whether prosecutorial discretion can be judicially reviewed, which is not a novel issue. [ 43 ] The respondent submits that the fact that the DPP did not provide reasons for declining to invite the applicants to enter into negotiations for a remediation agreement does not prevent the Court from striking the notice of application.

The exercise of the prosecutor’s discretion does not need to be justified and reasons are not required ( R. v. Anderson , 2014 SCC 41 , [2014] 2 S.C.R. 167 ( Anderson ), at paragraphs 54–55 ).

[44] The respondent notes that the Criminal Code includes many examples where a prosecutor exercises their discretion and there isno requirement for the prosecutor to justify each decision. Courts have recognised that such a requirement would bring the administrationof justice to a standstill. [45] The respondent submits that the applicants’ argument—that the application should proceed on a complete record, which theyhave not yet obtained—overlooks that the obligation to produce a record is tied to what is relevant to the grounds pleaded in the notice ofapplication.

The Court must first gain a realistic appreciation of the grounds pleaded (JP Morgan Asset Management (Canada) Inc. v.Canada (National Revenue), 2013 FCA 250, [2014] 2 F.C.R. 557 (JP Morgan), at paragraph 50). B. The Applicants’ Submissions [46] The applicants argue that the DPP has failed to identify the “knockout punch” to justify striking out the application at thispreliminary stage. The applicants argue that motions to strike are best left to the hearing of the application except in the rarest of cases(Canada v. Chiasson, 2003 FCA 155, [2003] F.C.J.

No. 477 (QL) (Chiasson), at paragraph 6). [47] The applicants note that courts have been cautioned against determining the

interpretation and the application of a new law onpreliminary motions (Cannon v. Funds for Canada Foundation, 2012 ONSC 399, [2012] O.J. No. 168 (QL) (Cannon), at paragraphs234 and 237). [48] The applicants also rely on Paradis Honey Ltd. v. Canada, 2015 FCA 89, [2016] 1 F.C.R. 446 (Paradis Honey), at paragraph116, where the Federal Court of Appeal noted that a novel claim should not be struck because it is novel and found that a claim formonetary relief based on public law principles was novel and should be allowed to proceed. [49] The applicants submit that the remediation regime raises several novel issues, including statutory

interpretation, whether thedecision is an administrative decision and whether the DPP is a federal board or tribunal, all of which should be explored by theapplications judge given that this is a matter of judicial first impression (i.e., there is no binding authority given that the remediationregime has not been addressed by the Court). C.

The Principles from the Jurisprudence [50] In JP Morgan, the Federal Court of Appeal confirmed that the threshold to strike out a notice of application for judicial review ishigh, noting at paragraph 47: The Court will strike a notice of application for judicial review only where it is “so clearly improper as to be bereft of any possibility ofsuccess” (footnote omitted): David Bull Laboratories (Canada) Inc. v. Pharmacia Inc., (FCA), [1995] 1 F.C. 588(C.A.), at page 600.

There must be a “show stopper” or a “knockout punch” ― an obvious, fatal flaw striking at the root of this Court’spower to entertain the application: Rahman v. Public Service Labour Relations Board, 2013 FCA 117, at paragraph 7; Donaldson v.Western Grain Storage By-Products, 2012 FCA 286, at paragraph 6; Hunt v. Carey Canada Inc., (SCC), [1990] 2 S.C.R.959. [51] The Court of Appeal explained, at paragraph 48, that this high threshold is required to reflect that applications for judicial reviewshould proceed in a

summary way and that unmeritorious motions frustrate that objective. [52] The Court of Appeal cautioned, at paragraph 49, that courts determining a motion to strike should read the notice of application“with a view to understanding the real essence of the application”, noting that “skilful pleaders can make Tax Court matters sound likeadministrative law matters when they are nothing of the sort.” The Court of Appeal added at paragraph 50 that “[t]he Court must gain “arealistic appreciation” of the application’s “essential character” by reading it holistically and practically without fastening onto matters ofform” (internal citations omitted).

In other words, the Court should look at the whole application and beyond skillful pleading to find theessential character of the allegations. [53] In David Bull Laboratories (Canada) Inc. v. Pharmacia Inc., (FCA), [1995] 1 F.C. 588 [at page 600], [1994]F.C.J. No. 1629 (QL) (C.A.) (David Bull), at paragraph 15, the Court of Appeal noted that a finding that the application is bereft of anypossibility of success is “very exceptional and cannot include cases ... where there is simply a debatable issue as to the adequacy of theallegations in the notice of motion.” [54] In R. v.

Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45 (Imperial Tobacco), the Supreme Court of Canadaaddressed the test for striking out a statement of claim. The Supreme Court noted that the power to strike out a claim is a usefulhousekeeping tool as it weeds out hopeless claims and this promotes litigation efficiency (at paragraphs 17, 19 and 20). The sameprinciples which govern striking out claims apply to striking out a notice of application, as confirmed in JP Morgan. [55] The Supreme Court cautioned, however, that a motion to strike should be used with care.

The Supreme Court explained that indetermining whether there is a reasonable prospect that the claim will succeed, courts should bear in mind that new developments in thelaw may arise in preliminary motions or motions to strike.

The Supreme Court noted at paragraph 21, therefore, that “[t]he approachmust be generous and err on the side of permitting a novel but arguable claim to proceed to trial” (emphasis added). [56] The Supreme Court provided additional guidance at paragraph 25, noting that in determining whether the claim has a reasonablechance of success, “[t]he question is whether, considered in the context of the law and the litigation process, the claim has no reasonablechance of succeeding” (emphasis in original). [57] More recently, in Teva Canada Limited v. Gilead Sciences Inc., 2016 FCA 176, [2016] F.C.J.

No. 605 (QL), the Federal Court of

Appeal found that the reasonable prospect of success test applied equally to a motion to grant leave to amend pleadings. The Court ofAppeal cited Imperial Tobacco regarding the meaning of the test, noting at paragraph 30: The standard of “reasonable prospect of success” is more than just assessing whether there is just a mathematical chance of success.

Indeciding whether an amendment has a reasonable prospect of success, its chances of success must be examined in the context of the lawand the litigation process, and a realistic view must be taken: Imperial Tobacco, above at para. 25. [Emphasis added.] [58] The applicants point to Chiasson in support of the proposition that motions to strike are best left to the hearing of the application.However, when read in context, the principle stated is consistent with that in Imperial Tobacco and JP Morgan.

In Chiasson, the FederalCourt of Appeal stated at paragraph 6: It is important to keep in mind that on a motion to strike on the basis that a proceeding raises no cause of action, it is not for theProthonotary who hears the motion, nor for the Motions Judge on appeal, nor for this Court on appeal from him, to determine finally theissue of whether a reasonable cause of action is raised.

Instead, such a motion to strike should be rejected unless it is plain and obviousthat the proceeding has no possibility of success. [Emphasis added] [59] The applicants also rely on Cannon, at paragraphs 234 and 237, where the Ontario Superior Court of Justice noted that it shouldbe reluctant to define the scope of new legislation on a pleadings motion. In that case, the Court was dealing with a charitable tax creditscheme in the context of Ontario’s Consumer Protection Act, 2002, S.O. 2002, c. 30, Sch. A (Consumer Protection Act). The Court citedWright v.

United Parcel Service Canada Ltd., 2011 ONSC 5044, [2011] O.J. No. 3936 (QL), at paragraph 134, where the Court hadfound that the jurisprudence on the causes of action in the Consumer Protection Act were non-existent or unsettled. I do not agree withthe applicants that Cannon supports the proposition that all new legislation raises a novel issue and that this dictates against a motion tostrike. The considerations are broader on a motion to strike. [60] In Paradis Honey, the Federal Court of Appeal reiterated that the law continues to evolve.

The Court found that the claim raisedwas novel and that it was a “responsible, incremental change to the common law founded upon legal doctrine and achieved throughaccepted pathways of legal reasoning” and should not be struck (at paragraph 118). The Court explained, at paragraph 116: A claim for monetary relief in public law is novel. In assessing whether a novel claim can survive a motion to strike, we must rememberthat the common law is in a continual state of responsible, incremental evolution: R. v. Salituro, (SCC), [1991] 3 S.C.R.654, at pages 665–670.

While our Constitution is a “living tree capable of growth and expansion within its natural limits” (see Edwards,Henrietta Muir v. Attorney-General of Canada, (UK JCPC), [1929] UKPC 86 (BAILII), [1930] A.C. 124), thecommon law―and particularly public law―is not a petrified forest. A novel claim should not be struck just because it is novel. SeeImperial Tobacco, above, at paragraph 21, Hunt, above, at pages 979–980 and Operation Dismantle, above, at pages 486–487. However,as was said in Salituro, above, and Fraser River Pile & Dredge Ltd. v.

Can-Dive Services Ltd., (SCC), [1999] 3 S.C.R.108, at paragraph 42, judge-made reform to judge-made law has its limits. [61] In my view, Paradis Honey conveys that a broader analysis of the claim is required, particularly of a novel claim, to determinewhether it should proceed. [62] The key principles from the jurisprudence which are relevant to the current motion and have been applied are: • A notice of application must be read holistically to determine the essential character of the allegations; • A motion to strike a notice of application should only be granted where it has no reasonable prospect of success; • A debatable issue would not constitute an “obvious fatal flaw” regarding the adequacy of the allegations; • The Court should err on the side of permitting novel but arguable cases to proceed; and • A “reasonable prospect of success” should be determined in the context of the law and the litigation process and a realistic viewshould be taken.

VII. Whether and How is Prosecutorial Discretion Subject to Judicial Review? A. The Respondent’s Submissions [63] The respondent submits that the decision of the DPP whether to invite an organization to enter into negotiations for a remediationagreement is a classic example of prosecutorial discretion. The respondent notes that the law is well established that the exercise ofprosecutorial discretion is not subject to judicial review (Krieger v. Law Society of Alberta, 2002 SCC 65, [2002] 3 S.C.R. 372 (Krieger),at paragraph 47; Miazga v.

Kvello Estate, 2009 SCC 51, [2009] 3 S.C.R. 339 (Miazga), at paragraphs 46–47; Anderson, at paragraph 37;R. v. Nixon, 2011 SCC 34, [2011] 2 S.C.R. 566 (Nixon), at paragraphs 52 and 62; R. v. Cawthorne, 2016 SCC 32, [2016] 1 S.C.R. 983(Cawthorne), at paragraph 47). The respondent emphasizes that the quasi-judicial role of the Attorney General as prosecutor cannot besubject to interference.

The respondent submits that the same jurisprudence supports the proposition that the DPP’s decision falls withinthe exercise of prosecutorial discretion. [64] The respondent notes that although prosecutorial discretion may be reviewed for abuse of process or flagrant impropriety by theprosecutor, this is not alleged by the applicants. [65] The respondent adds that the rationale for prosecutorial discretion being immune from judicial review, except for abuse ofprocess, has been explained in the jurisprudence and that the rationale sheds light on the nature of the decisions that fall withinprosecutorial discretion. [66] The respondent points to Anderson, at paragraph 37, noting the Court’s emphasis on the long standing principle that prosecutorial

discretion is essential to the proper functioning of the criminal justice system. Moreover, prosecutorial discretion advances the publicinterest by permitting prosecutors to make decisions without judicial or political interference and fulfils a quasi-judicial role. [67] The respondent points to Krieger, at paragraphs 31–32, where the Supreme Court cited R. v. Power, (SCC),[1994] 1 S.C.R. 601, at pages 621–623, [1994] S.C.J. No. 29 (QL) (Power), stating that Courts should not interfere with prosecutorialdiscretion, which is derived from the royal prerogative or granted under common law.

The Supreme Court noted in Power that “[i]f thecourt is to review the prosecutor’s exercise of his discretion the court becomes a supervising prosecutor. It ceases to be an independenttribunal” (emphasis in original). [68] The respondent also notes that in Nixon, the Supreme Court of Canada found that it is a fundamental error to assess a decisionmade in the exercise of prosecutorial discretion on a reasonableness standard, as this places the Court in the role of supervisingprosecutor.

The Court noted, at paragraph 52, the “constitutionally separate role of the Attorney General in the initiation and pursuit ofcriminal prosecutions”. [69] The respondent submits that these principles have been consistently applied by trial and appellate courts. For example, in R. v.Baptiste, [2000] O.J. No. 528 (QL), (2000), (ON SC), 74 C.R.R. (2d) 333 (Sup.

Ct.) (Baptiste), at paragraphs 29–30,the Court noted that the administration of criminal law would be paralyzed if preliminary decisions of prosecutors were subject tojudicial review. [70] The respondent also points to jurisprudence where the courts have found that analogous decisions to that of the DPP are exercisesof prosecutorial discretion. For example, in R. v. C. (E.J.), 2013 ABPC 28, [2013] A.J. No. 247 (QL) (R. v. C. (E.J.)), at paragraphs 10–11, the prosecutor’s decision whether to pursue extrajudicial sanctions for a young offender was found to be within prosecutorialdiscretion. In Okimow v.

Saskatchewan (Attorney General), 2000 SKQB 311, [2000] S.J. No. 499 (QL) (Okimow), the Court found thatthe prosecutor’s decision whether to pursue alternative measures was within prosecutorial discretion. In R. v. T. (V.), (SCC), [1992] 1 S.C.R. 749 (R. v. T. (V.)), the Supreme Court of Canada found that it was inconsistent with prosecutorial discretion topermit a judge to decide whether the prosecutor should have charged a young offender or pursued alternative measures. In these cases,the Court also noted that it was not the Court’s role to supervise the exercise of the prosecutor’s discretion. B.

The Applicants’ Submissions [71] The applicants do not dispute that the jurisprudence has established that prosecutorial discretion is not subject to judicial review,except for abuse of process. The applicants emphasize that the decision at issue is not an exercise of prosecutorial discretion. TheApplicants also submit that the jurisprudence has established only that unfettered prosecutorial discretion is not reviewable. This isunlike the discretion exercised pursuant to

section 715.32, which is fettered. The applicants also submit that the jurisprudence which hasaddressed the scope of prosecutorial discretion and provided the rationale for why the Court should not supervise the exercise ofprosecutorial discretion did not consider the issues now raised. Rather, the courts considered prosecutorial discretion as opposed to tacticsor ethical issues and not prosecutorial discretion as opposed to decisions fettered by many criteria. The applicants submit that thedecision at issue is akin to administrative decision making. C.

Prosecutorial Discretion is Not Subject to Judicial Review [72] The jurisprudence firmly establishes that the independence of the Attorney General is essential and fundamental to the criminaljustice system and that the decisions made by and on behalf of the Attorney General in the exercise of prosecutorial discretion are notsubject to judicial review.

The jurisprudence provides the rationale and also provides many examples of what is encompassed withinprosecutorial discretion. [73] In Krieger, the Supreme Court of Canada described prosecutorial discretion at paragraph 43, stating: “Prosecutorial discretion” is a term of art.

It does not simply refer to any discretionary decision made by a Crown prosecutor.Prosecutorial discretion refers to the use of those powers that constitute the core of the Attorney General’s office and which are protectedfrom the influence of improper political and other vitiating factors by the principle of independence. [74] The Court also provided examples of “core” prosecutorial discretion at paragraph 46, including whether to bring the prosecutionof a charge, whether to enter a stay of proceedings, whether to accept a plea to a lesser charge and whether to withdraw the criminalproceedings. [75] The Court explained in Krieger, at paragraph 30: It is a constitutional principle in this country that the Attorney General must act independently of partisan concerns when supervisingprosecutorial decisions.

Support for this view can be found in: Law Reform Commission of Canada [Working Paper 62, ControllingCriminal Prosecutions: The Attorney General and the Crown Prosecutor (1990)], at pp. 9-11. See also Binnie J. in R. v. Regan, [2002] 1S.C.R. 297, 2002 SCC 12, at paras. 157-58 (dissenting on another point). [76] In Miazga, the Supreme Court of Canada highlighted that the independence of the Attorney General as prosecutor isconstitutionally entrenched.

The Court noted, at paragraph 46: The independence of the Attorney General is so fundamental to the integrity and efficiency of the criminal justice system that it isconstitutionally entrenched. The principle of independence requires that the Attorney General act independently of political pressuresfrom government and sets the Crown’s exercise of prosecutorial discretion beyond the reach of judicial review, subject only to thedoctrine of abuse of process. The Court explained in Krieger how the principle of independence finds form as a constitutional value (atparas. 30-32): …

The court’s acknowledgment of the Attorney General’s independence from judicial review in the sphere of prosecutorial discretion hasits strongest source in the fundamental principle of the rule of law under our Constitution. Subject to the abuse of process doctrine,supervising one litigant’s decision-making process — rather than the conduct of litigants before the court — is beyond the legitimatereach of the court…. The quasi-judicial function of the Attorney General cannot be subjected to interference from parties who are not ascompetent to consider the various factors involved in making a decision to prosecute.

To subject such decisions to political interference,or to judicial supervision, could erode the integrity of our system of prosecution. Clearly drawn constitutional lines are necessary in areassubject to such grave potential conflict. [Emphasis added.] [77] In Miazga, the Court also highlighted that prosecutors have a quasi-judicial role and make their decisions free of judicial orpolitical interference, explaining at paragraph 47: In exercising their discretion to prosecute, Crown prosecutors perform a function inherent in the office of the Attorney General thatbrings the principle of independence into play.

Its fundamental importance lies, not in protecting the interests of individual Crownattorneys, but in advancing the public interest by enabling prosecutors to make discretionary decisions in fulfilment of their professionalobligations without fear of judicial or political interference, thus fulfilling their quasi-judicial role as “ministers of justice”: Boucher v.The Queen, (SCC), [1955] S.C.R. 16, at p. 25, per Locke J. In R. v.

Power, (SCC), [1994] 1 S.C.R. 601,at p. 616, L’Heureux-Dubé J. acknowledged the importance of limiting judicial oversight of Crown decisions in furtherance of the publicinterest: [T]he Attorney General is a member of the executive and as such reflects, through his or her prosecutorial function, the interest of thecommunity to see that justice is properly done. The Attorney General’s role in this regard is not only to protect the public, but also tohonour and express the community’s sense of justice.

Accordingly, courts should be careful before they attempt to “second-guess” theprosecutor’s motives when he or she makes a decision. [Emphasis added {by Charron J. in Miazga}.] Thus, the public good is clearly served by the maintenance of a sphere of unfettered discretion within which Crown attorneys canproperly pursue their professional goals. [78] In Anderson, the Supreme Court of Canada clarified some confusion that had arisen in the lower Court’s

interpretation of Kriegerregarding what is encompassed within “core” prosecutorial discretion. The Court abandoned the term “core” and reiterated at paragraph37 the principles noted above, including that prosecutorial discretion is a necessary part of a properly functioning criminal justice systemand that prosecutors require discretion to fulfill their professional obligations and quasi-judicial role without fear of judicial or politicalinterference. [79] In Anderson, the Court noted that a narrow

interpretation of prosecutorial discretion was not appropriate and clarified the term,providing several examples, at paragraph 44: In an effort to clarify, I think we should start by recognizing that the term “prosecutorial discretion” is an expansive term that covers all“decisions regarding the nature and extent of the prosecution and the Attorney General’s participation in it” (Krieger, at para. 47).

Asthis Court has repeatedly noted, “[p]rosecutorial discretion refers to the discretion exercised by the Attorney-General in matters withinhis authority in relation to the prosecution of criminal offences” (Krieger, at para. 44, citing Power, at p. 622, quoting D. Vanek,“Prosecutorial Discretion” (1988), 30 Crim. L.Q. 219, at p. 219 (emphasis added)). While it is likely impossible to create an exhaustivelist of the decisions that fall within the nature and extent of a prosecution, further examples to those in Krieger include: the decision torepudiate a plea agreement (as in R. v.

Nixon, 2011 SCC 34, [2011] 2 S.C.R. 566); the decision to pursue a dangerous offenderapplication; the decision to prefer a direct indictment; the decision to charge multiple offences; the decision to negotiate a plea; thedecision to proceed summarily or by indictment; and the decision to initiate an appeal. All pertain to the nature and extent of theprosecution.

As can be seen, many stem from the provisions of the Code itself, including the decision in this case to tender the Notice. [80] More recently, in Cawthorne, at paragraph 28, the Supreme Court of Canada again noted that “[i]t is not open to a court toscrutinize this exercise of discretion, or to question a prosecutor’s particular conception of the public interest.” [81] The principles enunciated by the Supreme Court have been consistently applied and reiterated by trial and appellate courts. [82] The Court noted the implications for the criminal justice system of importing administrative law principles in Baptiste.

The Courtfound that the importation of administrative law principles would open the floodgates to the review of countless decisions which areconsidered to fall within prosecutorial discretion and that this would result in the paralysis of the criminal process. The Court noted, atparagraphs 29–30: To permit the importation of administrative law principles into the prosecutorial environment of the criminal law deserves reflectionupon the potential impact of such a policy.

There would be no end to decisions which would be reviewable, including the decision toprosecute or not prosecute an individual; the decision to appeal or not appeal a particular case; the decision to direct further investigationor not direct further investigation in any particular case; the decision to withdraw or not withdraw a particular charge; the decision to stayor not stay a prosecution; the decision to proceed by way of indictment or by

summary conviction; the decision to divert a particular caseoutside the criminal law or not to divert that case outside the criminal law. It is immediately apparent that to import administrative law principles and apply them to the everyday decision-making functions of theprosecution would effectively result in the complete paralysis of the administration of the criminal law. These decisions are made withobvious frequency in every Crown law office and in every courtroom in the common law world from minute to minute, hour to hour, andday to day.

The nature of the workings of prosecutorial discretion make it singularly inappropriate to judicial review. [83] Similar concerns had been previously noted by the Ontario Court of Appeal in R. v. Saikaly, (ON CA), [1979]O.J. No. 94 (QL), 1979 CarswellOnt 1336 (C.A.) (Saikaly), at paragraph 17, where the Court stated that “[i]f the Attorney General mustgive a hearing to anyone who might be affected every time he proposes to exercise the discretion conferred upon him by virtue of hisoffice the administration of criminal justice would come to a standstill.” The Court cited Gouriet v.

Union of Post Office Workers, [1978]A.C. 435, [1977] 3 W.L.R. 300, at pages 319–320, where the U.K. Court noted the many powers of an Attorney General, including the

power to stop any prosecution, without the need to provide reasons; to institute a prosecution; or to direct the DPP to take over theconduct of a prosecution, noting that the powers were not subject to the control and supervision of the courts. [84] In Zhang v. Canada (Attorney General), 2006 FC 276, [2006] F.C.J. No. 361 (QL) (Zhang), this Court considered an applicationfor judicial review of the Attorney General’s decision not to consent to a private prosecution.

The Court noted at paragraph 9, that thejurisprudence has “consistently and repeatedly stressed that an exercise of prosecutorial discretion is largely beyond the legitimate reachof the court” (emphasis in original). The Court cited, as an example of the established principle, Nelles v. Ontario, (SCC), [1989] 2 S.C.R. 170, [1989] S.C.J.

No. 86 (QL), where the Supreme Court of Canada explained [at paragraph 76] that theAttorney General, in exercising the role of prosecutor “enjoys an absolute and total immunity on the basis that he is performing a judicialfunction.” [85] In Zhang, the Court also cited Saikaly, noting at paragraph 23 that the administration of justice would come to a standstill if theAttorney General had to give a hearing to anyone who was affected every time discretion was exercised, adding at paragraph 24: In Krieger, above, the Supreme Court of Canada reaffirmed the concept that the “quasi-judicial function of the Attorney General cannotbe subjected to interference from parties who are not as competent to consider the various factors involved in making a decision toprosecute […].” (at para. 32).

In my view, to accept the applicant’s contention that he should have been given an opportunity to respondwould compromise the independence of the Attorney General in the sphere of prosecutorial discretion. [86] The jurisprudence noted above is merely a sample of a long line of cases that have clearly established that prosecutorial discretionis not subject to review by the Court and have established the broad scope of prosecutorial discretion, including providing examples ofwhat is encompassed and noting that the examples are not an exhaustive list.

The jurisprudence has also established that the role of theprosecutor is quasi-judicial. The prosecutor conducts the prosecution and all that is included with independence and without political orjudicial interference. The Court does not act as a supervising prosecutor given the division of powers and the origins of prosecutorialdiscretion and because, as noted in Krieger, the Court would not be as competent as the prosecutor to consider the various factorsinvolved in the specific decision. VIII.

Is the DPP’s decision whether to invite an organization to enter into negotiations for a remediation agreement an exercise ofprosecutorial discretion or is it an administrative decision? A. The Respondent’s Submissions [87] The respondent disputes the applicants’ position that the DPP must exercise her discretion to invite an organization to negotiatereasonably and in accordance with the statutory regime, noting that this is based on their mischaracterization of the decision asadministrative. [88] The respondent submits that

Part XXII.1 and in particular,

section 715.32, which permits the prosecutor to invite an organizationto enter into negotiations for a remediation agreement, is a “classic example” of prosecutorial discretion. [89] The respondent notes that a remediation agreement, which if successfully negotiated and approved would result in a stay ofproceedings, is clearly within prosecutorial discretion, as would be any decision to continue or stay a prosecution. The respondent notesthat a stay of proceedings is not a novel concept. A stay of proceedings, which would be entered where an agreement is reached andwhere it is complied with, is governed by

section 579 of the Criminal Code, which also governs a stay of proceedings entered in othercircumstances. The respondent notes that a decision to stay a criminal proceeding is clearly an exercise of prosecutorial discretion. [90] The respondent again notes the jurisprudence which establishes that the courts are not to be placed in the role of supervisingprosecutors. The respondent submits that the application asks this Court to become a supervising prosecutor of the DPP’s decisionwhether to invite negotiations for a remediation agreement.

The respondent notes that if this initial decision were reviewable, then everysubsequent step would also be reviewable. If that were so, then the Court would also need to supervise the circumstances where thenegotiations do not result in an agreement. The wording of the provisions is clear that this is not the case; once negotiations for aremediation agreement begin, the prosecutor may decide to end the negotiation at any time before any agreement is reached.

The onlyrole for the criminal court (not this Court) is to approve a remediation agreement if one is successfully negotiated and, if so, to supervisethe agreement. There is no role for the Court before that stage. [91] The respondent notes that the jurisprudence has provided many examples of analogous decisions made in the course of aprosecution that fall clearly within prosecutorial discretion.

The respondent also points to the permissive and discretionary wording of thestatutory provisions. [92] The respondent submits that an organization accused of an offence has no statutory right to be invited to negotiate a remediationagreement. The decision rests with the prosecutor.

Section 715.32 sets out the conditions for entering negotiations, but provides theprosecutor with complete discretion whether to extend the offer to negotiate. While guiding factors are set out, they are open-ended andall refer to the prosecutor’s opinion.

The consent of the Attorney General is also required to extend an offer to negotiate and that consentis not guided by any factors. [93] Where the prosecutor does not invite an organization to negotiate or having invited the organization to negotiate, fails to reach anagreement, or where an agreement is not approved by the Court, the criminal proceedings continue.

In the present case, the DPP advisedthe applicants that it would not invite them to negotiate a remediation agreement; therefore, the prosecution continues. [94] The respondent points to Anderson, at paragraph 40, where the Supreme Court of Canada clarified the meaning of prosecutorialdiscretion and provided examples. In Anderson, the Supreme Court of Canada found that the prosecutor’s decision whether to give noticeto the accused of the intention to seek a higher penalty in an impaired driving prosecution was an exercise of discretion.

The Courtclarified the expansive scope of prosecutorial discretion and provided several examples, including whether to bring a prosecution,continue a prosecution, accept a plea to a lesser offence, or to enter a stay of proceedings.

[ 95 ] The respondent also notes the jurisprudence where the courts have found that analogous decisions, including whether to pursue alternative measures ( Okimow ), whether to pursue a charge rather than divert a young person ( R. v. T. (V.) ), and whether to pursue extrajudicial sanctions for a young offender ( R. v. C. (E.J.) ) are exercises of prosecutorial discretion. [ 96 ] The respondent disputes the applicants’

interpretation of

section 715.32 as requiring the prosecutor to invite an organization to enter into negotiations if the conditions for a remediation agreement are established. The respondent submits that

section 715.32, which uses the permissive language, “may” and “the prosecutor is of the opinion”, does not support the applicants’ view that the prosecutor is obliged to offer to negotiate. Rather, whether to offer to negotiate is entirely within the prosecutor’s discretion. [ 97 ] The respondent adds that even if the language were considered mandatory (which is disputed), all a prosecutor would need to find is that he or she is not “of the opinion” and no offer to negotiate would be made. [ 98 ] In addition,

section 715.32 and the related provisions in

Part XXII.1 do not provide any mechanism to address a failed negotiation. The respondent notes that if there was an obligation, as the applicants submit, to extend an offer to negotiate a remediation agreement, there would need to be a mechanism to address how to resolve an unsuccessful negotiation. [ 99 ] The respondent also notes that the language used throughout

Part XXII.1

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