Criminal Code of Canada - section 119(2) - Consent of Attorney General

section 119(2)

INTRODUCTION AND BRIEF DESCRIPTION

Judges cannot be prosecuted under this section of the Criminal Code without the written consent of the Attorney General of Canada.

SECTION WORDING

119(2) No proceedings against a person who holds a judicial office shall be instituted under this section without the consent in writing of the Attorney General of Canada.

EXPLANATION

Section 119(2) of the Criminal Code of Canada constitutes a key provision that governs the initiation of criminal proceedings against individuals holding judicial offices in Canada. Specifically, this section requires that any such proceedings must be carried out with the written consent of the Attorney General of Canada. The purpose of this provision is to instill a measure of protection for judges and other judicial officials, who occupy positions of significant power within the Canadian legal system. Because of their authority and influence, judges are considered to be vulnerable to malicious or frivolous accusations of wrongdoing, which could negatively impact their reputation, job security, and even personal safety. By requiring the Attorney General to give written consent before any criminal proceedings can be initiated against a judicial official, Section 119(2) helps filter out unfounded accusations and ensures that only credible or serious allegations are pursued. Moreover, Section 119(2) underscores the significance of the role of the Attorney General in the Canadian justice system. The Attorney General is a government-appointed official responsible for overseeing the legal affairs of the country, such as its prosecution and litigation strategies. As such, their decision to grant or withhold consent for a criminal proceeding against a judicial official is a reflection of their judgment and assessment of the situation. This provision also reflects Canada's respect for the independence of the judiciary, as the Attorney General's role in granting consent acts as a buffer against unfounded accusations or political interference in the justice system.

COMMENTARY

Section 119(2) of the Criminal Code of Canada is a provision that stipulates that no proceedings can be instituted against a person who holds a judicial office without the written consent of the Attorney General of Canada. The section is part of a broader legal framework that ensures the independence and integrity of the Canadian judiciary. The Canadian judicial system operates on the premise that judges are independent and impartial, and that their decisions are based solely on the facts and the law. This independence is essential to the functioning of the justice system, as it ensures that justice is seen to be done and that individuals are treated fairly before the law. A key part of maintaining this independence is ensuring that judges are protected from outside interference and that they are free to make decisions without fear of retribution. Section 119(2) is one way of protecting the independence and integrity of the judiciary. By requiring the written consent of the Attorney General of Canada before proceedings can be initiated against a judge, the section ensures that such proceedings are not pursued frivolously or for improper reasons. The Attorney General, who is a member of the government but is also responsible for upholding the rule of law and protecting the public interest, is in a position to assess whether there are legitimate grounds for proceeding against a judge. The requirement for the Attorney General's consent also ensures that the decision to prosecute a judge is not influenced by political considerations or pressures from other outside sources. However, while the section serves an important purpose in protecting the independence of the judiciary, it is not without its drawbacks. One potential concern is that the requirement for the Attorney General's consent may make it more difficult to hold judges accountable for misconduct or criminal behavior. If the Attorney General is reluctant to give consent, for example, because of political considerations or a desire to protect the reputation of the judiciary, it may be difficult to launch proceedings against a judge even if there are good grounds for doing so. Another concern is that the section may give rise to perceptions of favoritism or special treatment for judges. If members of the public are aware that judges are protected from prosecution without the Attorney General's consent, they may perceive this as giving judges an unfair advantage over ordinary citizens. This perception could undermine public confidence in the judicial system and erode trust in the rule of law. In conclusion, Section 119(2) of the Criminal Code of Canada serves an important purpose in protecting the independence and integrity of the judiciary. However, it is not without its drawbacks, and there is a delicate balance to be struck between protecting judges from frivolous or politically motivated prosecutions and ensuring that judges are held accountable for any misconduct or criminal behavior. Ultimately, the effectiveness of the section will depend on how it is applied in practice and how the public perceives its impact on the integrity and fairness of the justice system.

STRATEGY

Section 119(2) of the Criminal Code of Canada is a provision that requires the consent of the Attorney General of Canada before proceedings against a person holding a judicial office can be instituted under this section. This section is significant as it imposes a legal requirement that must be strictly complied with when instituting proceedings against a judicial officer. In this context, the strategic considerations when dealing with Section 119(2) are numerous. The first strategic consideration is to understand the rationale behind the provision. Section 119(2) aims to protect the independence of the judiciary and ensure that the legal process is not used against judges in an attempt to intimidate, harass, or silence them. As such, there must be a compelling reason to institute proceedings against a judicial officer. This provision also aims to ensure that frivolous or vexatious complaints are not brought against judges, as this would undermine their ability to perform their duties effectively and independently. The second strategic consideration is to determine the appropriate forum to seek consent from the Attorney General of Canada. The decision to seek consent may be influenced by factors such as the timing of the proceedings and the nature of the allegations. In some cases, it may be appropriate to approach the Attorney General directly, while in other instances, it may be advisable to seek the guidance of a lawyer or legal expert when submitting the request. Moreover, it could be essential to evaluate the Attorney General's position regarding judicial independence and assess potential grounds for challenging any refusal or delay in giving consent. The third strategic consideration is to understand the potential consequences of seeking consent and the impact it could have on the judicial officer. Seeking consent from the Attorney General could lead to unnecessary press coverage, negative public perception, and adverse effects on the judicial officer's mental health and career. Hence, one should balance the potential risks of seeking consent against the benefits of instituting proceedings. The fourth and the most critical strategic consideration is to construct a strong and compelling case against the judicial officer. Since obtaining consent from the Attorney General could be a challenging and time-consuming process, it is crucial to have a strong evidentiary basis, a credible witness testimony, and sound legal arguments to support the allegations. The case must be thoroughly investigated, and the evidence must be presented in a manner that can withstand scrutiny in court. This will also ensure that the proceedings are not only legitimate but also successful. The fifth strategic consideration is to be cognizant of possible legal challenges that may arise during the course of the proceedings. As Section 119(2) is a specific statutory provision, a Defendant can challenge the legality of the proceedings by arguing that the Attorney General's consent was not obtained in accordance with the law or that due process was not followed. Moreover, there could be a challenge on the constitutional validity of the provision itself, arguing that it violates the principles of judicial independence and the rule of law. In conclusion, dealing with Section 119(2) of the Criminal Code of Canada requires strategic considerations when instituting proceedings against judicial officers. Some of the critical strategies include understanding the rationale behind the provision, seeking consent from the appropriate forum, understanding the possible consequences, constructing a strong case, and being cognizant of possible legal challenges. By adopting these strategies, one can ensure that the proceedings are legitimate, effective, and in adherence to the principles of judicial independence.