In Miazga v. Kvello Estate [2009] SCJ 51 the supreme court said this:
[46] The independence of the Attorney General is so fundamental to the integrity and efficiency of the criminal justice system that it is constitutionally entrenched. The principle of independence requires that the Attorney General act independently of political pressures from government and sets the Crown’s exercise of prosecutorial discretion beyond the reach of judicial review, subject only to the doctrine of abuse of process. The Court explained in Krieger how the principle of independence finds form as a constitutional value (at paras. 30-32):
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- 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, [Working Paper 62, Controlling Criminal Prosecutions: The Attorney General and the Crown Prosecutor. Ottawa: The Commission, (1990)], 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).
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- 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. …
Canada has always had, to one degree or another, prosecutorial independence. That is to say, although every prime minister before Trudeau was careful to appoint an attorney general who would at least give a passing glance to the political necessities, (For instance. MacDonald was so aware of his political necessities regarding political contributions from railroads, that he had the most understanding of ministers of justice – himself.), by and large, the attorney general has always been understood to stand independently.
In recent years Parliament and many provinces went the further step, by appointing an ‘independent public prosecutor’, the theory being that there are benefits to the strict independence from government.
What does reality say about such theory?
Not surprisingly, the American Law and Economics Review says that Independent Prosecutors strongly deter political corruption.
Aaken A. and Feld L (Do Independent Prosecutors Deter Political Corruption? An empirical evaluation across seventy eight countries, ALER v12. n.1 (2010) (pp.204-244) say that a de jure independent prosecutor is meaningless (p.226: table 3 coefficient is not significant) whereas a de facto independent prosecutor has strong negative effects upon corruption.
An interesting corollary result is that there is a strong negative correlation between GDP and corruption as we all knew – the poorer the country the more pervasive the corruption. (p226: table 2 negative coefficient on GDP is highly significant).
The fact that a place was a former British colony has a strong inverse relation to present corruption. In other words, if you had a proper British tradition, you’re less likely to have corruption – giving a nostalgic flavor to Winston’s Rule Britannia mantra.
