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Prosecutorial Independence and Accountability in Terrorism Prosecutions

Criminal Law Quarterly, Vol. 55, pp. 486-507, 2010

22 Pages Posted: 23 Jul 2010  

Kent Roach

University of Toronto - Faculty of Law

Date Written: 2010

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

Suggested Citation

Roach, Kent, Prosecutorial Independence and Accountability in Terrorism Prosecutions (2010). Criminal Law Quarterly, Vol. 55, pp. 486-507, 2010. Available at SSRN: https://ssrn.com/abstract=1646657

Kent Roach (Contact Author)

University of Toronto - Faculty of Law ( email )

Toronto, Ontario M5S 1A1
Canada
416-946-5645 (Phone)
416-978-2648 (Fax)

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