Law360 Canada (August 11, 2026, 9:21 AM EDT) --

Faisal Kutty

Prosecutorial independence matters precisely because the power to prosecute is among the most consequential powers the state possesses.

That independence should not be thought of as a special privilege for prosecutors. It exists because the public has an interest in ensuring that criminal law is not used as a political instrument.

A prosecution system in which officials can be pressured to pursue political opponents, spare political allies or satisfy the demands of a particular constituency is incompatible with the rule of law. Crown counsel are not there to advance a government’s political agenda. Their task is to assess the evidence, apply the law fairly and act in the public interest.

The courts have therefore been reluctant to second-guess core prosecutorial decisions.

In R. v. Nixon, 2011 SCC 34, the Supreme Court reaffirmed that decisions about whether a prosecution should proceed, continue or cease lie at the heart of prosecutorial discretion and are reviewable only through the demanding abuse-of-process doctrine. The court was concerned not only with improper judicial interference, but with protecting the integrity of prosecutorial decision-making from influences that do not properly belong there.

That does not put prosecutors beyond accountability. Bad faith, improper motive and abuse of process remain subject to review. But the standard is deliberately high. Courts are not there simply to substitute their preferred prosecutorial judgment for that of the Crown.

Miazga v. Kvello Estate, 2009 SCC 51 makes much the same point from another direction. In dealing with malicious prosecution, the court warned against turning civil liability into a mechanism for retrospectively second-guessing Crown judgment. Malice requires an improper purpose. Poor judgment, negligence or even recklessness does not automatically amount to malicious prosecution. The court recognized that the decision to initiate or continue criminal proceedings lies close to the core of prosecutorial independence.

The other side of the equation is political independence.

The Shawcross principle reflects the peculiar position of the attorney general. The officeholder is a member of government, yet in prosecutorial matters must remain independent of partisan direction. Consultation about legitimate public-interest considerations may be appropriate. Pressure to reach a particular result for political reasons is not.

That distinction is easy enough to state and much harder to maintain in practice.

An attorney general considering a sensitive terrorism prosecution may need to understand issues relating to public safety, national security or broader public policy. There is nothing inherently improper about being informed. The constitutional concern arises when information becomes pressure and consultation becomes an expectation that a particular prosecutorial result must follow.

Canadians received a very public lesson in that distinction during the SNC-Lavalin affair. Whatever one’s view of the personalities or politics involved, the controversy reminded the country that an attorney general may at times be required to resist the political interests of the very government in which he or she serves.

At the federal level, Parliament has tried to reinforce that separation institutionally through the Director of Public Prosecutions Act. The Public Prosecution Service of Canada describes prosecutorial duties as objective, independent and non-partisan, and explains that the creation of the Director of Public Prosecutions was intended to make protections against improper influence, including political influence, statutory and transparent.

The transparency provisions are worth noting. If the federal attorney general directs the Director of Public Prosecutions concerning a specific prosecution, the direction must be in writing and published in the Canada Gazette. If the attorney general assumes conduct of a prosecution, notice must similarly be given and published.

That is not accidental. Transparency is part of how independence is protected.

The same is true of attorney general consent requirements. They are sometimes treated as procedural formalities, but they serve a deeper purpose. Parliament has decided that certain offences are sufficiently sensitive that an additional level of scrutiny should occur before the criminal process is set in motion.

Terrorism offences are one example. Advocating genocide and wilfully promoting hatred are others.

The most obvious purpose is to guard against an inappropriate prosecution. Terrorism and hate-propaganda charges carry consequences that extend well beyond the possibility of conviction. They can affect employment, immigration status, reputation and community standing long before a case is resolved.

But there is another function that deserves more attention. Consent requirements can also help protect the prosecution system from demands that someone must be charged.

We usually imagine political interference as a politician trying to make a difficult prosecution disappear. But the opposite pressure can be just as dangerous. Governments may face demands to characterize speech as terrorism, invoke hate laws or lay the most serious available charge to demonstrate that they are responding forcefully to public outrage.

Neither pressure should dictate the criminal law.

This becomes especially important where expression is involved. Canadian law does not make offensive political speech synonymous with criminality. Section 319 draws distinctions between public incitement and wilful promotion of hatred, and Parliament has provided statutory defences in relation to the latter. Terrorism offences involve still different elements. Section 83.18, for example, requires knowing participation in or contribution to the activity of a terrorist group for the purpose of enhancing its ability to facilitate or carry out terrorist activity.

Those distinctions matter most when the political temperature is highest.

This is the second instalment of a three-part series. Part one: Prosecutorial independence in an age of polarization: When politics surrounds the criminal process.

Faisal Kutty is a lawyer, law professor and writer focusing on constitutional law, international law, Islamic law, national security, and law and religion. His work appears regularly in Newsweek, the Toronto Star, Lawfare and other publications.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

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