Krieger v. Law Society of Alberta

Krieger v. Law Society of Alberta
Collection
Supreme Court Judgments
Date
2002-10-10
Neutral citation
2002 SCC 65
Report
[2002] 3 SCR 372
Case number
28275
Judges
McLachlin, Beverley; L'Heureux-Dubé, Claire; Gonthier, Charles Doherty; Iacobucci, Frank; Major, John C.; Bastarache, Michel; Binnie, William Ian Corneil; Arbour, Louise; LeBel, Louis
On appeal from
Alberta
Subjects
Constitutional law
Professional law
Notes
SCC Case Information: 28275
Decision Content
Krieger v. Law Society of Alberta, [2002] 3 S.C.R. 372, 2002 SCC 65
Law Society of Alberta Appellant
v.
Craig Charles Krieger and
the Minister of Justice and Attorney General for Alberta Respondents
and
The Attorney General of Canada,
the Attorney General for Ontario,
the Attorney General of Quebec,
the Attorney General of Nova Scotia,
the Attorney General of Manitoba,
the Attorney General of British Columbia,
the Attorney General for Saskatchewan,
the Attorney General of Newfoundland and Labrador,
the Federation of Law Societies of Canada,
the Ontario Crown Attorneys’ Association and
the Criminal Trial Lawyers’ Association Interveners
Indexed as: Krieger v. Law Society of Alberta
Neutral citation: 2002 SCC 65.
File No.: 28275.
Hearing and judgment: May 17, 2002.
Reasons delivered: October 10, 2002.
Present: McLachlin C.J. and L’Heureux‑Dubé, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ.
on appeal from the court of appeal for alberta
Constitutional law – Division of powers – Criminal law – Administration of justice – Rule adopted under provincial Law Society legislation requiring lawyers engaged as prosecutors to make timely disclosure of evidence to accused – Whether rule intra vires province – Constitution Act, 1867, ss. 91(27) , 92(14) – Alberta Code of Professional Conduct, Rule 28(d).
Barristers and solicitors – Crown prosecutors – Breach of ethics – Law Society’s jurisdiction – Law Society rule requiring lawyers engaged as prosecutors to make timely disclosure of evidence to accused – Whether Law Society has jurisdiction to review allegation Crown prosecutor acting dishonestly or in bad faith failed to disclose relevant information – Whether rule interfering with prosecutorial discretion – Alberta Code of Professional Conduct, Rule 28(d).
K was assigned to prosecute an accused charged with murder. Prior to the commencement of the preliminary inquiry, he received the results of DNA and biological tests conducted on blood found at the scene of the crime which implicated a different person than the accused. Ten days later, he advised the accused’s counsel that the results of the testing would not be available in time for the preliminary inquiry. The defence counsel only learned of the testing results at the preliminary hearing, and complained to the Deputy Attorney General that there had been a lack of timely and adequate disclosure. K was reprimanded and removed from the case after a finding that the delay was unjustified. Six months later, the accused complained to the appellant Law Society about K’s conduct. K sought an order that the Law Society had no jurisdiction to review the exercise of prosecutorial discretion by a Crown prosecutor and an order that the Rule of the Code of Professional Conduct requiring a prosecutor to make timely disclosure to the accused or defence counsel was of no force and effect. K’s application was dismissed by the Court of Queen’s Bench, but that decision was overturned by the Court of Appeal.
Held: The appeal should be allowed and the trial judgment restored.
The legislature of Alberta has the power to regulate the legal profession, which it has duly conferred upon the Law Society under the Legal Profession Act. Since the federal government has jurisdiction over criminal law and procedure and the province has jurisdiction over the administration of justice, including the regulation of lawyers and reviews of alleged breaches of ethics, there is a strong possibility of overlap between the provincial and federal spheres. Regard must be had to the pith and substance of the impugned rule to determine if it is an unconstitutional regulation by the province of criminal law and procedure. Here, the Rule requiring timely disclosure is directed at governing the ethical conduct of lawyers, is authorized by the Legal Profession Act, is limited to circumstances in which the lawyer acted dishonestly or in bad faith, and is not intended to interfere with the proper exercise of prosecutorial discretion. Accordingly, the Rule applies only to matters of professional discipline and does not intrude into the area of criminal law and procedure.
A decision of the Attorney General within the authority delegated by the sovereign is not subject to interference by other arms of government. An exercise of prosecutorial discretion will, therefore, be treated with deference by the courts and by other members of the executive, as well as statutory bodies like provincial law societies. Prosecutorial discretion will not be reviewable except in cases of flagrant impropriety. Decisions that do not go to the nature and extent of the prosecution, such as the decisions that govern a Crown prosecutor’s tactics or conduct before the court, do not fall within the scope of prosecutorial discretion, however, but are governed by the inherent jurisdiction of the court to control its own processes once the Attorney General has elected to enter into that forum.
Because Crown prosecutors must be members of the Law Society, they are subject to the Law Society’s code of professional conduct, and all conduct that is not protected by the doctrine of prosecutorial discretion is subject to the conduct review process. As the disclosure of relevant evidence is not a matter of prosecutorial discretion but rather a legal duty, the Law Society possesses the jurisdiction to review an allegation that a Crown prosecutor acting dishonestly or in bad faith failed to disclose relevant information, notwithstanding that the Attorney General had reviewed it from the perspective of an employer. A clear distinction exists between prosecutorial discretion and professional conduct, and only the latter can be regulated by the Law Society. The Attorney General’s office has the ability to discipline a prosecutor for failing to meet the standards set by that office, but that is a different function from the ability to discipline the same prosecutor in his or her capacity as a member of the Law Society. The Act gives the Law Society jurisdiction over a very broad range of conduct including prosecutorial decisions made dishonestly or in bad faith. Disclosure of relevant evidence is a matter of prosecutorial duty, and transgressions related to this duty constitute a very serious breach of legal ethics. Here, it appears that K failed to disclose relevant information, a violation of his duty, but later offered an explanation which would help to determine if he had acted dishonestly or in bad faith. If so, this would be an ethical breach falling within the Law Society’s jurisdiction. The Law Society’s jurisdiction to review K’s failure to disclose relevant evidence to the accused is limited to examining whether it was an ethical violation.
Cases Cited
Applied: Nelles v. Ontario, [1989] 2 S.C.R. 170; R. v. Stinchcombe, [1991] 3 S.C.R. 326; R. v. Regan, [2002] 1 S.C.R. 297, 2002 SCC 12; Global Securities Corp. v. British Columbia (Securities Commission), [2000] 1 S.C.R. 494, 2000 SCC 21; approved: Re Hoem and Law Society of British Columbia (1985), 20 C.C.C. (3d) 239; referred to: R. v. Chaplin, [1995] 1 S.C.R. 727; Wilkes v. The King (1768), Wilm. 322, 97 E.R. 123; R. v. Power, [1994] 1 S.C.R. 601; Law Society of British Columbia v. Mangat, [2001] 3 S.C.R. 113, 2001 SCC 67; Whitbread v. Walley, [1990] 3 S.C.R. 1273; R. v. Osborne (1975), 25 C.C.C. (2d) 405; R. v. Osiowy (1989), 50 C.C.C. (3d) 189; Campbell v. Attorney-General of Ontario (1987), 35 C.C.C. (3d) 480; Chartrand v. Quebec (Minister of Justice) (1987), 59 C.R. (3d) 388.
Statutes and Regulations Cited
Alberta Act, S.C. 1905, c. 3 [reprinted in R.S.C. 1985, App. II, No. 20], s. 16(1).
Alberta Code of Professional Conduct, Rule 28.
Constitution Act, 1867, ss. 63 , 91(27) , 92(13) , (14) , 135 .
Criminal Code, R.S.C. 1985, c. C-46, ss. 579 , 579.1 [ad. 1994, c. 44, s. 60].
Department of Justice Act, R.S.C. 1985, c. J-2, s. 5 .
Government Organization Act, R.S.A. 2000, c. G-10, Sch. 9, s. 2.
Legal Profession Act, S.A. 1990, c. L‑9.1 [now R.S.A. 2000, c. L-8], ss. 6(l), 47(1), 103(1).
Ministry of the Attorney General Act, R.S.O. 1990, c. M.17, s. 5.
Authors Cited
Canada. Law Reform Commission. Working Paper 62. Controlling Criminal Prosecutions: The Attorney General and the Crown Prosecutor. Ottawa: The Commission, 1990.
Edwards, J. L. J. The Law Officers of the Crown: A study of the offices of Attorney‑General and Solicitor‑General of England with an account of the office of the Director of Public Prosecutions of England. London: Sweet & Maxwell, 1964.
Hogg, Peter W. Constitutional Law of Canada, loose-leaf ed., vol. 1. Scarborough, Ont.: Carswell, 1992 (updated 2001, release 1).
Proulx, Michel, and David Layton. Ethics and Canadian Criminal Law. Toronto: Irwin Law, 2001.
APPEAL from a judgment of the Alberta Court of Appeal (2000), 191 D.L.R. (4th) 600, 277 A.R. 31, 242 W.A.C. 31, [2001] 2 W.W.R. 102, 86 Alta. L.R. (3d) 195, 25 Admin. L.R. (3d) 161, 3 C.P.C. (5th) 212, [2000] A.J. No. 1129 (QL), 2000 ABCA 255, setting aside a judgment of the Court of Queen’s Bench (1997), 149 D.L.R. (4th) 92, 51 Alta. L.R. (3d) 363, 205 A.R. 243, 47 Admin. L.R. (2d) 55, [1997] 8 W.W.R. 221, [1997] A.J. No. 689 (QL). Appeal allowed.
Lindsay MacDonald, Q.C., for the appellant.
Christopher D. Evans, Q.C., for the respondent Krieger.
Richard F. Taylor, Q.C., for the respondent the Minister of Justice and Attorney General for Alberta.
Robert J. Frater, for the intervener the Attorney General of Canada.
Kenneth L. Campbell, for the intervener the Attorney General for Ontario.
Alain Gingras, for the intervener the Attorney General of Quebec.
James A. Gumpert, Q.C., and Marc C. Chisholm, Q.C., for the intervener the Attorney General of Nova Scotia.
Shawn Greenberg, for the intervener the Attorney General of Manitoba.
George H. Copley, Q.C., and M. Joyce DeWitt‑Van Oosten, for the intervener the Attorney General of British Columbia.
Graeme G. Mitchell, Q.C., for the intervener the Attorney General for Saskatchewan.
Kathleen Healey, for the intervener the Attorney General of Newfoundland and Labrador.
Alan D. Gold, for the intervener the Federation of Law Societies of Canada.
Paul J. J. Cavalluzzo and Rosella Cornaviera, for the intervener the Ontario Crown Attorneys’ Association.
Donald W. MacLeod, Q.C., for the intervener the Criminal Trial Lawyers’ Association.
The judgment of the Court was delivered by
Iacobucci and Major JJ. —
I. Introduction
1 These are the reasons following the decision of the Court on May 17, 2002 to allow the appeal. The appellant Law Society of Alberta claimed the jurisdiction to apply the standards for the practice of law in the province to all members of the profession including those employed by the Attorney General of Alberta.
2 The respondents Attorney General and Craig Charles Krieger (“Krieger”), its employee, a Crown prosecutor, submitted that the Law Society does not have the jurisdiction to review the exercise of prosecutorial discretion by an agent of the Attorney General in the conduct of a prosecution. The respondents submitted on this basis that the appellant does not have the jurisdiction to investigate an allegation of bad faith or dishonesty against a Crown prosecutor in connection with a failure to disclose relevant information to the accused as required by law.
3 We agree that there are certain decisions of Crown prosecutors that cannot be reviewed by the Law Society. It is a constitutional principle that the Attorneys General of this country must act independently of partisan concerns when exercising their delegated sovereign authority to initiate, continue or terminate prosecutions. So long as they are made honestly and in good faith, prosecutorial decisions related to this authority are protected by the doctrine of prosecutorial discretion.
4 However, we do not agree that the Law Society lacks the jurisdiction to review an allegation that a Crown prosecutor in bad faith failed to disclose relevant information. As a consequence of its exclusive jurisdiction over property and civil rights in the province, under s. 92(13) of the Constitution Act, 1867 , the Legislature of Alberta has the power to regulate the legal profession, which it has duly conferred upon the Law Society under the Legal Profession Act. Because Crown prosecutors must be members of the Law Society, it thereby follows Crown prosecutors are subject to the Law Society’s code of professional conduct. All conduct that is not protected by the doctrine of prosecutorial discretion is subject to the conduct review process.
5 As the disclosure of relevant evidence is not a matter of prosecutorial discretion but, rather, is a legal duty, the Law Society possesses the jurisdiction to review an allegation that a Crown prosecutor acting dishonestly or in bad faith failed to disclose relevant information.
II. Facts
6 In 1993, Douglas Ward (“Ward”) was charged with murder. In 1994, Ward was prosecuted for that murder. The prosecutor was the respondent Krieger, a member of the Law Society of Alberta employed by the Attorney General of that province. The Crown theory was that the deceased attacked and wounded the accused with a knife. Later, out of revenge, the accused stabbed the deceased to death while he lay on his bed.
7 On June 1, 1994, the respondent Krieger telephoned Ward’s lawyer, Thomas Engel, and advised Engel that the results of DNA and biological testing conducted by the Crown of the blood found at the crime scene would not be available for the preliminary inquiry which commenced on June 6, 1994.
8 After the first day of the inquiry, Engel learned that there were preliminary results from the blood tests that implicated a different person and were accordingly favourable to the accused. Those results were known by Krieger on May 20, 1994, prior to the June 1 telephone call and the commencement of the preliminary inquiry.
9 Engel complained in writing to the Deputy Attorney General that there had been a lack of timely and adequate disclosure of the blood tests. It was his position that the test results had been deliberately withheld from him. The Attorney General’s office investigated the complaint. Krieger’s position was that he had no intention of withholding the results of the blood tests but had delayed disclosure while awaiting confirmation and full results.
10 The internal investigation of the Attorney General’s office concluded that the delay was unjustified and that Krieger had made an error of judgment. He was disciplined by a letter of reprimand and was removed from the case. Engel was advised of this resolution and also about the drafting of a new guideline requiring Crown prosecutors to consult with the chief Crown prosecutor before delaying disclosure for investigative purposes. In addition, every Crown prosecutor was reminded of the accused’s right to disclosure.
11 Six months later the accused himself complained in writing to the appellant Law Society, repeating Engel’s allegations and saying he was not satisfied with the chief Crown prosecutor’s response. The Law Society’s complaints officer sent the matter to the Deputy Secretary of that Society, who declined to dismiss the complaint. He referred it to the Conduct Committee Panel for a recommendation on how to proceed.
12 The Deputy Secretary’s memo cited Rule 28(d) of the Alberta Code of Professional Conduct, which requires a prosecutor to “make timely disclosure to the accused or defence counsel . . . of all known relevant facts and witnesses, whether tending towards guilt or innocence”.
13 The Rule is followed by a commentary which explains that it “is not intended to establish policy nor to interfere with the proper exercise of prosecutorial discretion” and that “the Law Society’s scrutiny of conduct involving an exercise of discretion will be limited to circumstances in which the discretion was exercised dishonestly or in bad faith”.
14 Before the Conduct Committee acted, Krieger sought an order from the Alberta Court of Queen’s Bench that the Law Society had no jurisdiction to review the exercise of prosecutorial discretion by a Crown prosecutor or to discipline him or her therefor, and that the rules of the Code of Professional Conduct of the Law Society of Alberta were of no force and effect.
III. Relevant Statutory and Constitutional Provisions
15 Legal Profession Act, S.A. 1990, c. L‑9.1 (now R.S.A. 2000, c. L-8)
6 The Benchers may by resolution
. . .
(l) authorize or establish a code of ethical standards for members and students‑at‑law and provide for its publication;
47(1) For the purposes of this Act, any conduct of a member, arising from incompetence or otherwise, that
(a) is incompatible with the best interests of the public or of the members of the Society, or
(b) tends to harm the standing of the legal profession generally,
is conduct deserving of sanction, whether or not that conduct relates to the member’s practice as a barrister and solicitor and whether or not that conduct occurs in Alberta.
103(1) No person shall, unless he is an active member of the Society,
. . .
(b) act as a barrister or as a solicitor in any court of civil or criminal jurisdiction,
Alberta Code of Professional Conduct
chapter 10
The Lawyer as Advocate
. . .
rules
. . .
28. When engaged as a prosecutor, a lawyer exercises a public function involving much discretion and power. Accordingly:
(a) a lawyer’s prime duty is not to seek to convict, but to see that justice is done through a fair trial on the merits;
(b) a lawyer must act fairly and dispassionately;
(c) a lawyer must not do anything that might prevent an accused from being represented by or communicating with counsel;
(d) a lawyer must make timely disclosure to the accused or defence counsel (or to the court if the accused is not represented) of all known relevant facts and witnesses, whether tending towards guilt or innocence.
commentary
. . .
Rule #28: The terms “prosecutor” and “prosecution” have reference not only to proceedings under the Criminal Code , but to criminal, quasi‑criminal and other proceedings instituted pursuant to legislation (including rules and regulations) that involve a public interest and potential for the imposition of a penalty. For example, counsel engaged in disciplinary proceedings on behalf of a professional body would be considered a prosecutor for the purposes of this rule. Examples and terminology deriving from prosecutions conducted on behalf of the Attorney‑General should therefore be read with the necessary changes in reference as appropriate.
The application of Rule #28 to Crown prosecutors is not intended to establish policy nor to interfere with the proper exercise of prosecutorial discretion. Rather, the Law Society’s scrutiny of conduct involving an exercise of discretion will be limited to circumstances in which the discretion was exercised dishonestly or in bad faith. Examples are:
‑ an exercise of discretion intended to obstruct, pervert or defeat the course of justice;
‑ an exercise of discretion undertaken for the personal advantage of the Crown prosecutor;
‑ an exercise of discretion intended to deprive an individual of equality before and under the law by reason of discrimination on the basis of race, creed, colour, national or ethnic origin, gender, religion, marital status, sexual orientation, age, mental or physical disability or any similar personal attribute.
Constitution Act, 1867
91. It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make Laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces; and for greater Certainty, but not so as to restrict the Generality of the foregoing Terms of this Section, it is hereby declared that (notwithstanding anything in this Act) the exclusive Legislative Authority of the Parliament of Canada extends to all Matters coming within the Classes of Subjects next herein-after enumerated; that is to say, __
. . .
27. The Criminal Law, except the Constitution of Courts of Criminal Jurisdiction, but including the Procedure in Criminal Matters.
92. In each Province the Legislature may exclusively make Laws in relation to Matters coming within the Classes of Subjects next herein-after enumerated; that is to say, —
. . .
13. Property and Civil Rights in the Province.
14. The Administration of Justice in the Province, including the Constitution, Maintenance, and Organization of Provincial Courts, both of Civil and of Criminal Jurisdiction, and including Procedure in Civil Matters in those Courts.
IV. Judicial History
A. Alberta Court of Queen’s Bench (1997), 205 A.R. 243
16 In dismissing the respondent Krieger’s application, the motions judge considered whether or not the Rule is ultra vires the Province of Alberta. He found that the Rule and commentary, as read together, apply only to matters of professional discipline, i.e. bad faith or dishonest conduct by a lawyer, and that the Rule is not, in pith and substance, a rule of criminal procedure and did not encroach upon Parliament’s constitutional power.
17 The motions judge held that since the birth of Alberta, by convention and by statute, the Law Society has been charged with maintaining the discipline and integrity of the bar. The executive branch is responsible for the discipline of lawyers and has charged the Law Society with that function by means of the Act. The Law Society, accordingly, had the jurisdiction to review the conduct of a Crown prosecutor in the exercise of prosecutorial discretion where there was an allegation of bad faith or dishonesty.
18 The motions judge held that conduct amounting to bad faith or dishonesty is beyond the pale of prosecutorial discretion. He noted that the professional disciplinary machinery as a remedy against abuses of prosecutorial discretion is treated as a part of the legal system by the Supreme Court in such decisions as Nelles v. Ontario, [1989] 2 S.C.R. 170, at p. 198; R. v. Stinchcombe, [1991] 3 S.C.R. 326, at pp. 339-40; and R. v. Chaplin, [1995] 1 S.C.R. 727, at para. 21.
19 He rejected the argument that Crown prosecutors, as agents of the Attorney General, should be disciplined only by the Attorney General. The Attorney General does not have the same duties to the public as does the Law Society which is charged with protecting the public from dishonest and unsavoury lawyers and preserving a free and independent bar.
20 The motions judge also rejected the argument that because the Act does not specifically state that it is binding on agents of the Crown, that it is of no force and effect as regards Crown prosecutors. Regulation of all lawyers, he said, meant the regulation of all lawyers.
B. Alberta Court of Appeal (2000), 277 A.R. 31
21 The Court of Appeal allowed the appeal and held that it could be determined on the limited issue of whether the Rule permits the Law Society to review the conduct of a Crown prosecutor when the Attorney General’s office has found no bad faith or dishonesty. Sulatycky J.A., for the court, acknowledged that the provincial legislature has made Crown prosecutors, as barristers, subject to the Law Society. However, he held that the Law Society lacked the jurisdiction to review the Attorney General’s decision that there was no bad faith or dishonesty involved in Krieger’s conduct. He held that any review by the Law Society of the conduct of Krieger would necessarily be a review of the conclusion of the Attorney General’s office.
V. Issues
22 1. Is the Rule and Commentary thereto intra vires the Act and the Legislature of Alberta?
2. If so, what is the scope of the Law Society’s jurisdiction to review the conduct of a Crown prosecutor?
3. Does the Law Society have the jurisdiction to review the prosecutor’s conduct after the Attorney General has already reviewed the prosecutor’s conduct?
VI. Analysis
A. The Role of the Attorney General
23 Prior to considering the specific questions raised by this appeal, we believe it is useful to discuss the nature and development of the Attorney General’s office in Canada. Although we ultimately conclude that the Law Society retains jurisdiction over the alleged misconduct at the bottom of this dispute, the respondents rightly observed the unique and important role of the Attorney General and his agents as distinct from private lawyers.
24 The office of Attorney General started in England as early as the thirteenth century as the King’s Attorney. In essence, the Attorney General exercised on the King’s behalf the prerogative to bring and terminate prosecutions. See J. L. J. Edwards, The Law Officers of the Crown (1964), at pp. 12-14; Law Reform Commission of Canada, Working Paper 62, Controlling Criminal Prosecutions: The Attorney General and the Crown Prosecutor (1990). Although there are great differences between the constitution of the Canadian and English offices of Attorney General, the power to manage prosecutions of individuals for criminal acts has changed little since these early times and between these countries. The words of Wilmot C.J. in Wilkes v. The King (1768), Wilm. 322, 97 E.R. 123, at p. 125, remain apt:
As indictments and informations, granted by the King’s Bench, are the King’s suits, and under his control; informations, filed by his Attorney General, are most emphatically his suits, because they are the immediate emanations of his will and pleasure.
25 Although prosecutions were predominantly brought privately in England until 1879, the original power of the Attorney General was and is of initiating, managing and terminating both private and public prosecutions. This power finds its source in the Attorney General’s general role as the official legal advisor to the Crown.
26 In Canada, the office of the Attorney General is one with constitutional dimensions recognized in the Constitution Act, 1867 . Although the specific duties conventionally exercised by the Attorney General are not enumerated, s. 135 of that Act provides for the extension of the authority and duties of that office as existing prior to Confederation. A similar provision applicable to the Attorney General of Alberta is found in the Alberta Act, S.C. 1905, c. 3 (reprinted in R.S.C. 1985, App. II, No. 20), at s. 16(1). Furthermore, s. 63 of the Constitution Act, 1867 requires that the Cabinets of Quebec and Ontario include in their membership the Attorneys General.
27 Attorneys General in this country are, of course, charged with duties beyond the management of prosecutions. As in England, they serve as Law Officers to their respective legislatures, and are responsible for providing legal advice to the various government departments. Unlike England, the Attorney General is also the Minister of Justice and is generally responsible for drafting the legislation tabled by the government of the day. The numerous other duties of the provincial and federal Attorneys General are broadly outlined in the various Acts establishing the Departments of Justice in each jurisdiction.
28 The present respondent’s duties are outlined in the Government Organization Act, R.S.A. 2000, c. G-10, Sch. 9. This Schedule to the Act provides, at s. 2, that:
2 The Minister
(a) is the official legal advisor of the Lieutenant Governor;
(b) shall ensure that public affairs are administered according to law;
(c) shall superintend all matters relating to the administration of justice in Alberta that are within the powers or jurisdiction of the Legislature or the Government;
(d) shall advise on legislative acts and proceedings of the Legislature and generally advise the Crown on matters of law referred to the Minister by the Crown;
(e) shall exercise the powers and is charged with the duties attached to the office of the Attorney General of England and the Solicitor General of England by law or usage insofar as those powers and duties are applicable to Alberta;
. . .
(j) is responsible for the conduct of the following matters, the enumeration of which shall not be taken to restrict the general nature of any provision of this Schedule:
. . .
(iii) the consideration and argument of appeals from convictions and acquittals of persons charged with indictable offences;
. . .
(vi) the appointment of counsel for the conduct of criminalbusiness;
See also, e.g., the Department of Justice Act, R.S.C. 1985, c. J-2, s. 5 ; the Ministry of the Attorney General Act, R.S.O. 1990, c. M.17, s. 5.
29 The gravity of the power to bring, manage and terminate prosecutions which lies at the heart of the Attorney General’s role has given rise to an expectation that he or she will be in this respect fully independent from the political pressures of the government. In the U.K., this concern has resulted in the long tradition that the Attorney General not sit as a member of Cabinet. See Edwards, supra, at pp. 174-76. Unlike the U.K., Cabinet membership prevails in this country. However, the concern remains the same, and is amplified by the fact that the Attorney General is not only a member of Cabinet but also Minister of Justice, and in that role holds a position with partisan political aspects. Membership in Cabinet makes the principle of independence in prosecutorial functions perhaps even more important in this country than in the U.K.
30 It is a constitutional principle in this country that the Attorney General must act independently of partisan concerns when supervising prosecutorial decisions. Support for this view can be found in: Law Reform Commission of Canada, supra, at pp. 9-11. See also Binnie J. in R. v. Regan, [2002] 1 S.C.R. 297, 2002 SCC 12, at paras. 157-58 (dissenting on another point).
31 This side of the Attorney General’s independence finds further form in the principle that courts will not interfere with his exercise of executive authority, as reflected in the prosecutorial decision-making process. In R. v. Power, [1994] 1 S.C.R. 601, L’Heureux-Dubé J. said, at pp. 621-23:
It is manifest that, as a matter of principle and policy, courts should not interfere with prosecutorial discretion. This appears clearly to stem from the respect of separation of powers and the rule of law. Under the doctrine of separation of powers, criminal law is in the domain of the executive . . . .
Donna C. Morgan in “Controlling Prosecutorial Powers — Judicial Review, Abuse of Process and Section 7 of The Charter” (1986-87), 29 Crim. L.Q. 15, at pp. 20-21, probes the origins of prosecutorial powers:
Most [prosecutorial powers] derive . . . from the royal prerogative, defined by Dicey as the residue of discretionary or arbitrary authority residing in the hands of the Crown at any given time. Prerogative powers are essentially those granted by the common law to the Crown that are not shared by the Crown’s subjects. While executive action carried out under their aegis conforms with the rule of law, prerogative powers are subject to the supremacy of Parliament, since they may be curtailed or abolished by statute.
. . .
In “Prosecutorial Discretion: A Reply to David Vanek” (1987-88), 30 Crim. L.Q. 378, at pp. 378-80, J. A. Ramsay expands on the rationale underlying judicial deference to prosecutorial discretion:
. . .
It is fundamental to our system of justice that criminal proceedings be conducted in public before an independent and impartial tribunal. If the court is to review the prosecutor’s exercise of his discretion the court becomes a supervising prosecutor. It ceases to be an independent tribunal. [Emphasis in original.]
32 The court’s acknowledgment of the Attorney General’s independence from judicial review in the sphere of prosecutorial discretion has its 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 legitimate reach of the court. In Re Hoem and Law Society of British Columbia (1985), 20 C.C.C. (3d) 239 (B.C.C.A.), Esson J.A. for the court observed, at p. 254, that:
The independence of the Attorney-General, in deciding fairly who should be prosecuted, is also a hallmark of a free society. Just as the independence of the bar within its proper sphere must be respected, so must the independence of the Attorney-General.
We agree with these comments. The quasi-judicial function of the Attorney General cannot be subjected to interference from parties who are not as competent 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 areas subject to such grave potential conflict.
B. Is the Rule Intra Vires the Act and the Legislature of Alberta?
33 Section 91(27) of the Constitution Act, 1867 grants jurisdiction over criminal law and criminal procedure to the Federal Government. Federal jurisdiction over criminal law and criminal procedure includes the authority to determine the procedures that govern criminal trials. Sections 92(13) and (14) grant jurisdiction over property and civil rights and the administration of justice, both criminal and civil, to the Provinces. Provincial jurisdiction over property and civil rights and the administration of justice includes licensing and regulation of lawyers, including reviews of alleged breaches of ethics. See P. W. Hogg, Constitutional Law of Canada (loose-leaf ed.), vol. 1, at p. 21-10; and Law Society of British Columbia v. Mangat, [2001] 3 S.C.R. 113, 2001 SCC 67, at paras. 38-43 and para. 46. It would thus appear that there is a strong possibility of overlap between the provincial and federal spheres. Provincial regulations establishing the proper conduct of a lawyer in a criminal trial are likely to impact procedure in a criminal trial. Nonetheless, it is our view that the Rule is intra vires the province. Although the legislative competence of the province to regulate the Law Society has been grounded in both ss. 92(13) and (14) , the weight of authority with which we agree finds greater comfort in s. 92(13) .
34 To determine whether the Rule is an unconstitutional regulation by the province of criminal law and procedure or a constitutional regulation with respect to property and civil rights and the administration of justice, we look to the “pith and substance” of the Rule: Whitbread v. Walley, [1990] 3 S.C.R. 1273, at p. 1286.
35 In Global Securities Corp. v. British Columbia (Securities Commission), [2000] 1 S.C.R. 494, 2000 SCC 21, the Court held at para. 19:
Federalism cases, like many other areas of legal interpretation, greatly involve the proper characterization of the law under attack. In General Motors of Canada Ltd. v. City National Leasing, [1989] 1 S.C.R. 641 (hereinafter “GM Canada”), at pp. 666‑69, Dickson C.J. offered a useful three‑step structure for analyzing a claim that a law is ultra vires. . . . With respect to the first step, Dickson C.J. said the following (at pp. 666‑67):
The first step should be to consider whether and to what extent the impugned provision can be characterized as intruding into provincial powers. If it cannot be characterized as intruding at all, i.e., if in its pith and substance the provision is federal law, and if the act to which it is attached is constitutionally valid (or if the provision is severable or if it is attached to a severable and constitutionally valid part of the act) then the investigation need go no further.
If, on the other hand, the legislation is not in pith and substance within the constitutional powers of the enacting legislature, then the court must ask if the impugned provision is nonetheless a part of a valid legislative scheme. If it is, at the third stage the impugned provision should be upheld if it is sufficiently integrated into the valid legislative scheme.
36 The respondents argued that the Rule invades the core of federal power to make laws with respect to criminal law and procedure and is thus ultra vires. They argued that the purpose of the Rule is to regulate Crown disclosure during the course of a prosecution by establishing more onerous obligations to disclose information than exists at law.
37 The appellant argued that the Rule, when read together with the commentary, limits the Law Society’s review of an allegation that a Crown prosecutor failed to disclose information to those circumstances that involve bad faith or dishonesty. Owing to this limitation, the Rule is directed towards a Crown prosecutor’s ethical obligation as a lawyer rather than criminal law or procedure. They dismissed the argument that the Rule imposes more onerous obligations than those that exist in law and argued that the absence of the modifier “to the extent required by law and accepted practice” is irrelevant __ the effect of the Rule, when read with the commentary, is the same as if the modifier were included.
38 To determine whether the Rule is directed at professional discipline or criminal law and procedure, we note that:
(1) the Rule is situated within the Alberta Code of Professional Conduct, which is directed at governing the ethical conduct of lawyers;
(2) the Rule is authorized by s. 6(l) of the Act, which permits the Benchers to “authorize or establish a code of ethical standards for members”;
(3) the commentary to the Rule limits the application of the Rule to circumstances in which the lawyer acted dishonestly or in bad faith;
(4) the commentary to the Rule states that “[t]he application of Rule #28 to Crown prosecutors is not intended to establish policy nor to interfere with the proper exercise of prosecutorial discretion”; and
(5) the examples contained in the commentary demonstrate that the Rule is not intended to alter or interfere with this Court’s ruling in Stinchcombe.
39 As such, the motions judge found that the Rule, as interpreted in accordance with the commentary, applies only to matters of professional discipline and, therefore, does not intrude, at all, into the area of criminal law and procedure. We agree. The analysis need not go beyond the first step. In pith and substance, the Rule is intra vires the Legislature of Alberta and falls within the broad enabling language of the Act.
C. The Law Society’s Jurisdiction
40 We agree with the Court of Appeal that the Law Society has the jurisdiction to regulate the conduct of all Alberta lawyers. The Act, s. 6(l) states: “The Benchers may by resolution . . . authorize or establish a code of ethical standards for members and students-at-law and provide for its publication”. Further, s. 103(1)(b) states: “No person shall, unless he is an active member of the Society . . . act as a barrister or as a solicitor in any court of civil or criminal jurisdiction”.
41 To be a Crown prosecutor in Alberta, there are two requirements: (1) employment as such by the Attorney General’s office and (2) membership in the Law Society of Alberta. To keep his or her job, a Crown prosecutor must perform to the standards of the employer, the Attorney General’s office, and must remain in good standing by complying with the ethical requirements of the Law Society. All Alberta lawyers are subject to the rules of the Law Society — Crown prosecutors are no exception.
D. Prosecutorial Discretion
42 In making independent