Background: From the Origin of the Office of the Attorney General in England to the Creation of the Office of Director of Criminal and Penal Prosecutions in Quebec (Canada).

Author:Michel, Patrick
 
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The coming into force of the Act respecting the Director of Criminal and Penal Prosecutions (ADCPP) (1) on March 15, 2007, marked a major turning point in the evolution of the justice system in Quebec. Since that date, the Director of Criminal and Penal Prosecutions (DCPP) directs criminal and penal prosecutions in Quebec on behalf of the State, under the general authority of the Minister of Justice and Attorney General. Since the functions and powers exercised by the DCPP, as public prosecutor, were originally the responsibility of the office of the Attorney General, (2) it seems relevant to look into the history of this office.

THE ORIGINS

The origins of the office of Attorney General are controversial and its evolution is no less complex, with some authors even suggesting that its exact origin is actually unknown. (3) A Supreme Court of Canada judge wrote that the origins of the principal powers traditionally vested in the Attorney General, primarily that of prosecuting or terminating proceedings, "are lost in history." (4) In fact, it appears that the Attorney General's assumption of a role in the administration of justice in England dates back to the end of medieval times. (5)

In the 13th century, penal prosecutions in England were mainly conducted by citizens. However, the Crown could take the initiative, especially where the crimes being prosecuted were detrimental to the peace and order of society. The sovereign was then represented by prosecutors who acted individually, and whose functions were limited to handling the criminal prosecutions on his behalf and to see to the respect of his rights and prerogatives before the courts of justice. These prosecutors' mandates were generally restricted, as were their powers. At that time, the judicial system was decentralized and the courts were locally constituted.

However, it was increasingly common for a single Crown prosecutor to be appointed to defend the sovereign's interests before the royal courts. This prosecutor had the power to appoint assistants.

In 1461, the title of" attorney general" officially appeared for the first time in a Writ of Attendance ordering the attorney general to run for parliament to play a role as legal advisor to the Upper House (House of Lords).

In the 16th century, the King's Attorney (attorney general) was the advocate responsible for overseeing the sovereign's legal interests throughout the kingdom. He was assisted in doing so by a deputy, the King's Sollicitor (the predecessor of the Sollicitor General). He was then called the King's Attorney, since, in accordance with British constitutional law, the king was empowered by the constitution and vested the attorney general with his powers, powers that the latter exercised in the king's name. (6)

With the development of the parliamentary system and the principle of responsible government, the predominant role that the attorney general was called on to play within parliament and the government, notably with respect to law-making, caused him to have to abandon his functions as Crown representative before criminal courts. These functions were assigned to advocates designated to represent him, who were later considered "Crown prosecutors."

The functioning of the English criminal prosecution system however long remained founded on prosecutions undertaken by individuals, the so-called "private" prosecutors, and on prosecutions undertaken by the police, themselves considered private prosecutors, who gave advocates mandates to represent them. It went unchanged, despite the creation of the office of Director of Public Prosecutions (DPP) in 1879. The DPP was an indirect predecessor of the different directors of criminal and public prosecutions through common law jurisdictions, but its beginnings were full of...

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