Prosecutorial Independence and Accountability in Terrorism Prosecutions

Abstract

The convention that the Attorney General should be independent from Cabinet when making prosecutorial decisions is particularly strong in Canada and has in recent years been recognized by the Supreme Court of Canada as a constitutional principle. Some of the important issues and dilemmas of prosecutorial independence and accountability will be explored in this article by focusing on the roles of prosecutors, Directors of Public Prosecution (DPPs), Attorneys General (AGs) and a range of Ministers in terrorism prosecutions. I will focus on the Canadian situation with respect to terrorism prosecution and suggest that the 2006 enactment of the Director of Public Prosecutions Act has added unforeseen and unfortunate complexities to terrorism prosecutions by interjecting an independent DPP into most terrorism prosecutions. I will argue that it would be wrong, contrary to constitutional convention and unnecessary to allow governments or the Cabinet to assume direct responsibility for the exercise of prosecutorial discretion in terrorism cases. In my view, the traditional position associated with Lord Shawcross's famous statement about the ability of AGs to consult with but not be bound by government colleagues, coupled with the reality that the AG can lose the confidence of the Prime Minister, still provides an adequate means to reconcile the demands of independence with political accountability in terrorism prosecutions.

Keywords: constitutional convention, Attorney General, Director of Public Prosecutions, independence, terrorism prosecution