CRIMINAL JUSTICE
Judicial review of Attorney General’s decision to stay prosecutions commenced by private informant, Russell, Labrador Métis Nation (LMN) member—Case arose over Trans-Labrador Highway, to be on lands traditionally used by LMN—Phase II studies revealed culverts hindered fish movement, contributed to habitat destruction—Paradise River Bridge, built in Phase II as was bridge, causeway over St. Lewis River—Both rivers are “Salmon Rivers” under Fisheries Act, provincial Regulations—Applicant alleging Paradise River Bridge disrupted or destroyed fish habitat, contrary to Fisheries Act, s. 35, due to unauthorized use of rock infilling directly or riverbed during temporary bridge construction—Also says bridges restricted over 2/3 of water flow, contrary to Act, s. 26—Applicant swore private informations against Province, contractor—Attorney General eventually decided not to intervene and to stay prosecutions under Criminal Code, s. 579.1—Attorney General’s position: considering evidence, public interest, inappropriate prosecutions proceed—Letter on behalf of Attorney General signed by Paul Adams, counsel for Attorney General before this Court—Administrative tribunal may not defend decision upon judicial review—Individual who signed decision should not be allowed to make written, oral submissions—As to St. Lewis Bridge, Attorney General says s. 26 prosecution should be stayed as sufficient migrational access maintained—As for Paradise, permanent construction done under s. 35(2) exemption (fish habitat destruction allowed if loss minimized, Compensation Agreement entered into)—First issue: whether Attorney General had duty of consultation, accommodation in view of applicant’s Aboriginal rights, Constitution Act, s. 35, Fisheries Management Agreement or legitimate expectations—R. v. Beare, [1988] 2 S.C.R. 387 authority for proposition mere exercise of Attorney General’s discretion not offending natural judice as discretion essential feature of criminal justice system and law enforcement depends on exercise of discretion—Wording of Fisheries Management Agreement not requiring Attorney General to consult before exercising prosecutorial discretion—Indeed, such interpretation would mean Attorney General impliedly delegating discretion only that officer possesses—Haida Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511, Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), [2004] 3 S.C.R. 550, inapplicable to case where Attorney General exercising discretion to stay criminal charge—While honour of Crown not to be interpreted narrowly, technically, Attorney General’s decision herein not adversely affecting Aboriginal rights, title of LMN—When it comes to prosecutorial discretion, anyone or anything should not be able to exert pressure to sway Attorney General’s decision making as that would undermine Attorney General’s independence—As written of Attorney General by author Donna C. Morgan, quoted with approval in R. v. Power, [1994] 1 S.C.R. 601, at p. 622, when “exercising his ‘grave’ discretion in prosecutorial matters . . . he must stand alone, acting independently of political or other external influences. He is to be neither instructed or restrained, save by his final accountability to Parliaments”—In R. v. Saikaly (1979), 48 C.C.C. (2d) 192, Ontario Court of Appeal remarked that if Attorney General had to hear anyone who might be affected whenever he has to exercise his discretion, criminal justice administration would come to standstill—Attorney General not erring in failing to formally consult with LMN before issuing stay—Attorney General’s discretion to decide unilaterally any issue relating to criminal prosecutions matter in which accountable only to Parliament and not to court of law: Ex parte Newton, [1855] 119 E.R. 323; London City Council v. Attorney General, [1902] A.C. 165 (H.L.)—This over-century-old case law frequently reaffirmed, as by S.C.C. in Krieger v. Law Society of Alberta, [2002] 3 S.C.R. 372, at paragraphs 30-31: “Attorney General must act independently of partisan concerns when supervising prosecutorial decisions . . . courts will not interfere with this exercise of executive authority . . . . This appears clearly to stem from the respect of separation of powers and the rule of law”—Time and again, courts have held decisions not to prosecute “particularly ill-suited to judicial review”—In R. v. Power, at p. 624, L’Heureux-Dubé J., for majority, cited with approval opinion of Monnin C.J. in Re Balderstone and The Queen (1983), 8 C.C.C. (3d) 532 (Man. C.A.): “If a judge should attempt to review the actions or conduct of the Attorney-General— barring flagrant impropriety—he could be falling into a field which is not his and interfering with the administrative and accusatorial function of the Attorney-General or his officers. That a Judge must not do”—It was said by Viscount Dilhorne in Director of Public Prosecutions v. Humphrys, [1976] 2 All E.R. 497 (H.L.), “A judge must keep out of the arena. He should not have or appear to have any responsibility for the institution of a prosecution. The functions of prosecutors and of judges must not be blurred”—No indicia of flagrant impropriety herein which could justify Court in exercising judicial review powers—Question before Court not whether construction done within parameters of law, regulations but whether Attorney General properly exercised discretion to stay—Application denied but, in particular circumstances, without costs—Fisheries Act, R.S.C., 1985, c. F-14, ss. 26 (as am. by S.C. 1991, c. 1, s. 7), 35—Newfoundland and Labrador Fishery Regulations, SOR/78-443—Criminal Code, R.S.C., 1985, c. C-46, s. 579.1 (as enacted by S.C. 1994, c. 44, s. 60)—Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 35.
Labrador Métis Nation v. Canada (Attorney General) (T-1281-04, 2005 FC 939, Blais J., order dated 8/7/05, 22 pp.)