p-27.1 - Act respecting the process for determining the remuneration of criminal and penal prosecuting attorneys and respecting their collective bargaining plan

Updated to 10 November 2004

This document has official status.

chapter S-35

Act respecting Attorney General’s prosecutors

DIVISION I GENERAL PROVISIONS

1993, c. 29, s. 1.

1. The Attorney General’s prosecutors shall be appointed by the Attorney General in accordance with this Act, from among advocates authorized by law to practise in Québec.

Except where inconsistent with the provisions of this Act, the Public Service Act (chapter F-3.1.1) applies to prosecutors with permanent tenure. The provisions of that Act relative to standards of ethics and discipline apply to temporary prosecutors and to casual prosecutors.

1969, c. 20, s. 1; 1993, c. 29, s. 2; 2002, c. 73, s. 1; 2004, c. 22, s. 1.

2. Every prosecutor must, before entering upon his duties, take the oath provided in the schedule.

1969, c. 20, s. 2; 1972, c. 13, s. 1.

3. The prosecutors shall represent the Attorney General before the courts of criminal or penal jurisdiction.

1969, c. 20, s. 3; 1992, c. 61, s. 595.

4. In addition to the duties and functions which the Attorney General determines, every prosecutor shall fulfil, under the authority of the former, the following duties and powers:

(a)  he shall examine the proceedings and documents relating to offences against the Criminal Code (Revised Statutes of Canada, 1985, chapter C-46) and, where necessary, authorize prosecutions against the offenders, cause the evidence submitted to be completed, and see to the summoning of witnesses and to the production of pertinent documents;

(b)  he shall participate in the inquiries held by any coroner or fire investigation commissioner and by any person vested with the powers of commissioners appointed under the Act respecting public inquiry commissions (chapter C-37) at the request of such coroner, investigation commissioner or person; he may also intervene therein of his own motion;

(c)  he shall act and plead before the courts of original jurisdiction or of appeal, in any prosecution instituted under the Criminal Code;

(d)  he shall supervise the cases conducted by private prosecutors and, if the interests of justice so require, conduct the prosecution;

(e)  he shall examine the written proceedings and the documents relating to the prosecution of offences under the Code of Penal Procedure (chapter C-25.1) or any other law of Québec, including a regulation made thereunder by the competent authority, in order to verify the validity and cogency of the charges to be brought;

(e.1)  he shall authorize the issue of a statement of offence or cause additional evidence of the offence to be collected;

(e.2)  he shall conduct the prosecution of such offences, and perform any act prior or accessory to the prosecution, whether in first instance, extraordinary remedy or appeal, except in the case of proceedings instituted by a municipality for an offence under a municipal by-law committed by a person 18 years of age or over;

(e.3)  he shall submit to the judge the representations he considers appropriate in the public interest when an application for the issue of a statement of offence is made by a private prosecutor, and he may conduct any prosecution thus instituted or act in an advisory capacity;

(e.4)  he may, in the name of the Attorney General, execute any proceeding provided for by law, in particular by the Code of Penal Procedure;

(f)  he shall bring in appeal any case in which he may act under this Act, when in his opinion the public interest so requires;

(g)  he shall inquire into the facts relating to any application for bail made by an accused and shall submit to the court the representations necessary in this respect;

(h)  in the cases where bail has been fixed, he shall satisfy himself as to the sufficiency of the sureties offered and shall see that the procedures required for the valid publication of such sureties are accomplished;

(i)  he shall advise peace officers and persons entrusted with law enforcement acting in the performance of their duties on any matter under the jurisdiction of the Criminal Code or of any penal provision of a law or regulation of Québec.

1969, c. 20, s. 4; 1990, c. 4, s. 841; 1992, c. 61, s. 596; 1999, c. 40, s. 311; 1999, c. 61, s. 1.

5. (Repealed).

1969, c. 20, s. 5; 1972, c. 13, s. 2; 1978, c. 15, s. 140; 1983, c. 55, s. 161; 1993, c. 29, s. 3; 2000, c. 8, s. 242; 2002, c. 73, s. 2.

6. The Attorney General may appoint from among the permanent prosecutors, one or more chief prosecutors and assistant chief prosecutors and he shall determine their duties and functions in addition to those which they must perform as permanent prosecutors.

The Government may, by an order made on the recommendation of the Attorney General, determine the rules, standards and scales applicable to the appointment, remuneration, employment benefits and other conditions of employment of chief prosecutors and assistant chief prosecutors.

1972, c. 13, s. 2; 2002, c. 73, s. 3.

7. Every prosecutor other than a prosecutor designated in accordance with section 9 shall devote his time exclusively to the work and duties of his office.

1969, c. 20, s. 6; 1993, c. 29, s. 5.

8. (Repealed).

1969, c. 20, s. 7; 1972, c. 13, s. 3; 1979, c. 32, s. 11; 1993, c. 29, s. 6.

9. The Attorney General may also specially appoint any advocate authorized by law to practise his profession in Québec to represent him before the courts of criminal or penal jurisdiction.

The persons appointed under the first paragraph shall also be Attorney General’s prosecutors but shall perform their duties as prosecutors only for the purposes of the mandate entrusted to them.

1969, c. 20, s. 8; 1992, c. 61, s. 597.

DIVISION II PROVISIONS RESPECTING THE CARRYING ON OF CERTAIN POLITICAL ACTIVITIES

1993, c. 29, s. 7.

9.1. No prosecutor other than a prosecutor appointed in accordance with section 9 may, while he has the status of prosecutor, be a candidate in a federal, provincial, municipal or school election.

In addition, no permanent prosecutor may be a member of a political party, pay a contribution to a political party, to a political party authority or to a candidate in such an election or engage in other partisan activity in favour of or against a political party or a candidate in such an election.

1993, c. 29, s. 7; 2004, c. 22, s. 2.

9.2. A prosecutor who exercises his right to vote in an election, is a candidate for elective public office other than an office referred to in section 9.1 or attends a public meeting of a political nature is not engaging in a partisan activity.

1993, c. 29, s. 7; 2004, c. 22, s. 3.

9.3. Any prosecutor who intends to engage in a political activity referred to in section 9.1 shall, without delay, inform the Deputy Attorney General.

1993, c. 29, s. 7; 2004, c. 22, s. 4.

9.4. The Deputy Attorney General shall reclassify the permanent or temporary prosecutor, according to his qualifications, to a class of positions in the public service for which the minimum conditions of eligibility are equivalent to those of the class to which he belongs and for which the salary level is substantially equivalent.

Reclassification shall take place after consultation with the prosecutor concerned.

1993, c. 29, s. 7; 2004, c. 22, s. 5.

9.5. Reclassification shall be granted as soon as possible, in time to enable the person reclassified to engage in any political activity referred to in section 9.1.

1993, c. 29, s. 7.

9.6. Upon reclassification, the person may, in accordance with the provisions of the Public Service Act (chapter F-3.1.1), engage in any political activity referred to in section 9.1.

1993, c. 29, s. 7.

9.7. Upon becoming aware that a permanent or temporary prosecutor has engaged in political activities referred to in section 9.1 without informing him, the Deputy Attorney General shall reclassify that prosecutor in accordance with the provisions of section 9.4.

1993, c. 29, s. 7; 2004, c. 22, s. 6.

9.8. Reclassification may be effected by a person authorized in writing by the Deputy Attorney General.

1993, c. 29, s. 7.

9.9. No reclassification under this division may entail a reduction in the regular salary or social benefits to which the permanent or temporary prosecutor was entitled prior to reclassification.

1993, c. 29, s. 7; 2004, c. 22, s. 7.

9.10. Nothing in this division shall preclude the application of the provisions of the Public Service Act (chapter F-3.1.1) relating to the standards of ethics and discipline applicable under that Act.

1993, c. 29, s. 7.

9.11. Nothing in this division shall prevent a person who has been reclassified in accordance with the provisions of section 9.4 or section 9.7 and who no longer engages in the political activities referred to in section 9.1 from applying for a position as Attorney General’s prosecutor.

1993, c. 29, s. 7.

DIVISION III PROVISIONS RESPECTING THE CONDITIONS OF EMPLOYMENT OF PROSECUTORS APPOINTED UNDER SECTION 1

2002, c. 73, s. 4.

10. The Attorney General shall recognize, as the exclusive representative of all prosecutors appointed under section 1, for labour relations purposes, an association comprising more than half of those prosecutors, except the chief prosecutors, the assistant chief prosecutors and the prosecutors the Attorney General considers appropriate to exclude owing to the confidential functions assigned to them and that are related to labour relations.

The Attorney General or an association of prosecutors may apply to the Commission des relations du travail for a verification of the representativeness of an association. The Commission may, for that purpose, require any information and the production of any document it considers necessary.

On report of the Commission, the Attorney General may revoke the recognition of an association that is no longer representative.

1982, c. 21, s. 1; U. K., 1982, c. 11, Sch. B, Part I, s. 33; 2002, c. 73, s. 4.

10.1. The association may not enter into a service agreement with a union organization or be affiliated with such an organization.

2004, c. 22, s. 8.

11. The association shall not act in bad faith or in an arbitrary or discriminatory manner or show serious negligence in respect of a prosecutor it represents, whether or not the prosecutor is a member of the association.

Sections 47.3 to 47.6 and the second paragraph of section 116 of the Labour Code (chapter C-27) apply, with the necessary modifications, in the event of a contravention of the first paragraph.

2002, c. 73, s. 4; 2004, c. 22, s. 9.

12. The Attorney General, in the name of the Government and with the authorization of the Conseil du trésor, shall negotiate for the purpose of entering into an agreement with the association regarding the rules, standards and scales applicable to the appointment, remuneration, employment benefits and other conditions of employment of the prosecutors represented by the association.

However, no provision of the agreement may limit the powers of the Minister of Justice, the Deputy Minister of Justice or the latter’s representative, or the powers of the Government or the Conseil du trésor with regard to any of the following matters :

(1)  the granting of permanent tenure to a prosecutor and the determination of the duration of the probationary period upon recruitment ;

(2)  the establishment of standards of ethics and discipline ;

(3)  the establishment of organization plans and staffing procedures.

2002, c. 73, s. 4.

12.1. The negotiation stage begins on the one hundred and eightieth day prior to the expiry of the agreement.

Negotiations must be begun and carried on diligently and in good faith.

2004, c. 22, s. 10.

12.2. At any time during the negotiations, either of the parties may request the Minister of Labour to designate a conciliation officer to assist them in reaching an agreement.

Notice of the request must be given to the other party on the same day.

Upon receiving the request, the Minister must designate a conciliation officer.

2004, c. 22, s. 10.

12.3. The parties are bound to attend any meeting to which they are convened by the conciliation officer.

2004, c. 22, s. 10.

12.4. The right to strike or to declare a lock-out is acquired on the expiry date of the agreement, unless a new agreement has been reached between the parties.

2004, c. 22, s. 10.

12.5. A party may declare a strike or a lock-out if it has acquired the right to strike or to declare a lock-out pursuant to section 12.4 and if an agreement or list determining essential services has been approved by the Conseil des services essentiels established by the Labour Code (chapter C-27).

For that purpose, the party must notify the other party in writing not less than seven clear juridical days prior to the time it intends to resort to a strike or a lock-out. A strike or lock-out notice may not be renewed until after the day indicated in the previous notice as the time the party intended to resort to a strike or a lock-out.

2004, c. 22, s. 10.

12.6. In the event of a strike or a lock-out, the parties must maintain the following essential services in the interest of justice:

(1)  introducing or continuing proceedings involving a person in custody, before a court of Québec, including a joint trial where one of the accused is not in custody;

(2)  examining and deciding whether or not to proceed on penal complaints to be prescribed within one month;

(3)  continuing proceedings before the criminal court when the jury has been selected; and

(4)  presenting requests for a postponement.

After consulting with the association, the chief prosecutors and the assistant chief prosecutors shall designate 50 prosecutors daily, making an effort to alternate among the prosecutors, and assign them to the provision of the services required under subparagraphs 1 to 4.

2004, c. 22, s. 10.

12.7. The parties must make an agreement on essential services that is consistent with the requirements of section 12.6 and submit it to the Conseil des services essentiels for approval. If no agreement is reached, the party that wants to declare a strike or a lock-out must submit a list of essential services to the council for approval.

2004, c. 22, s. 10.

12.8. Upon receiving an agreement or a list, the council shall determine whether or not the essential services provided for in the agreement or the list are sufficient in relation to the requirements of section 12.6. The council may make any recommendations it deems appropriate to the parties with a view to amending the agreement or the list, or it may approve it with amendments.

Even if an agreement or a list submitted for approval is consistent with the requirements of section 12.6, the council may increase or modify the services provided for in the agreement or the list if it considers that the circumstances warrant it.

The parties are bound to attend any meeting to which they are convened by the council.

2004, c. 22, s. 10.

12.9. An agreement or a list approved by the council may not be modified without its approval.

2004, c. 22, s. 10.

12.10. The employer and the association must comply with the provisions of an agreement or a list approved by the council.

2004, c. 22, s. 10.

12.11. The Conseil des services essentiels, on its own initiative or at the request of an interested person, may inquire into a lock-out, a strike, a slowdown or any other concerted action that is contrary to law or during which the essential services provided for in an agreement or a list are not provided.

The council may also attempt to bring the parties to an agreement, or designate a person to do so and report on the situation.

Sections 111.17 to 111.20 of the Labour Code (chapter C-27) apply, with the necessary modifications, to situations referred to in the first paragraph.

2004, c. 22, s. 10.

12.12. For the duration of a strike or a lock-out declared in accordance with this Act, the employer is prohibited from

(a)  utilizing the services of a person, hired between the beginning of the negotiation stage and the end of the strike or lock-out, to discharge the duties of a prosecutor represented by the association;

(b)  utilizing the services of a prosecutor represented by the association, except to the extent provided for in an agreement or a list approved by the Conseil des services essentiels.

2004, c. 22, s. 10.

12.13. If an agreement or a list determining essential services approved by the council is violated by the association or the prosecutors it represents, the employer is exempt from the application of section 12.12 to the extent necessary to ensure compliance with the agreement or the list.

2004, c. 22, s. 10.

13. The agreement on the conditions of employment of prosecutors may contain any provision that is not contrary to public policy, not prohibited by law and not inconsistent with the provisions of this Act.

2002, c. 73, s. 4; 2004, c. 22, s. 11.

14. The agreement is binding on all the prosecutors represented by the association.

2002, c. 73, s. 4.

15. The employer shall, according to the terms of the agreement, withhold from the salary of every prosecutor represented by the association, and remit to the association, an assessment in the amount specified by the association.

2002, c. 73, s. 4.

16. Any disagreement as to the interpretation or application of the agreement shall be submitted by the employer or the association to the Commission de la fonction publique in accordance with the provisions of the agreement.

Sections 116 to 119 and 123 of the Public Service Act (chapter F-3.1.1) apply to the matters submitted to the Commission under this section.

The Commission may, in disciplinary matters, confirm, amend or set aside the decision of the employer and, if appropriate, substitute therefor the decision it deems fair and reasonable, in view of all circumstances.

2002, c. 73, s. 4.

17. All prosecutors must perform their duties and functions without resorting to a concerted slowdown or reduction of normal work activities.

2002, c. 73, s. 4; 2004, c. 22, s. 12.

18. The Government may, by an order made on the recommendation of the Attorney General, determine the rules, standards and scales applicable to the appointment, remuneration, employment benefits and other conditions of employment of prosecutors excluded under section 10 from representation by the association.

2002, c. 73, s. 4.

19. The Commission des relations du travail shall hear and dispose of any complaint based on section 11, 12.1, 12.3, 12.12, 12.13 or 15 other than a penal complaint, to the exclusion of any other court or tribunal.

2004, c. 22, s. 13.

DIVISION IV PENAL PROVISIONS

2004, c. 22, s. 13.

20. Any person declaring, carrying on or taking part in a strike contrary to the provisions of this Act is guilty of an offence and is liable, for each day or part of a day during which the strike continues, to a fine of $50 to $125 in the case of a prosecutor, $1,000 to $10,000 in the case of a director or officer of the association, and $5,000 to $50,000 in the case of the association.

2004, c. 22, s. 13.

21. If the employer declares or carries on a lock-out contrary to the provisions of this Act, it is guilty of an offence and is liable, for each day or part of a day during which the lock-out continues, to a fine of $5,000 to $50,000.

2004, c. 22, s. 13.

22. Any person contravening section 12.10 is guilty of an offence and is liable to a fine of $1,000 to $10,000 for each day or part of a day during which the offence continues.

2004, c. 22, s. 13.

23. If the employer contravenes section 12.12, it is guilty of an offence and is liable to a fine of $1,000 to $5,000 for each day or part of a day during which the offence continues.

2004, c. 22, s. 13.

24. Any person contravening section 17 is guilty of an offence and is liable to a fine of $50 to $125 for each day or part of a day during which the offence continues.

2004, c. 22, s. 13.

25. Any person impeding the action of the Conseil des services essentiels or a person appointed by it or any person misleading them by concealment or misrepresentation is guilty of an offence and is liable to a fine of $50 to $125 in the case of a prosecutor, $1,000 to $10,000 in the case of a director or officer of the association, and $5,000 to $50,000 in the case of the association or the employer.

2004, c. 22, s. 13.

26. Any person aiding or abetting the commission of an offence is party to the offence and is liable to the same penalty as that prescribed for the offender, and, where the offence is committed by the association, any director or officer who in any manner approves the act constituting the offence or acquiesces to the commission of the offence is guilty of the offence.

2004, c. 22, s. 13.

27. If two or more persons conspire to commit an offence, each of them is guilty of each offence committed by any of them in carrying out the conspiracy.

2004, c. 22, s. 13.

28. Only the association, on a resolution of its board and in accordance with article 10 of the Code of Penal Procedure (chapter C-25.1), may institute penal proceedings for an offence under a provision of this Act committed by the employer.

2004, c. 22, s. 13.

SCHEDULE

(Section 2)

Oath

I, A. B., declare under oath that I shall be loyal and bear true allegiance to constituted authority and I shall fulfill my office of Attorney General’s prosecutor honestly, justly, objectively and impartially, and that I shall not receive an amount of money or consideration for what I have done or may do in the discharge of the duties of my office, to procure the purchase or exchange of anything by or with the Government, other than my salary or what may be allowed me according to law.

I further declare under oath that I will not reveal or disclose, unless duly authorized, anything that may come to my knowledge in the discharge of my duties.

1969, c. 20, Schedule; 1972, c. 13, s. 4; 1977, c. 5, s. 14; 1999, c. 40, s. 311.

REPEAL SCHEDULE

In accordance with section 17 of the Act respecting the consolidation of the statutes (chapter R-3), chapter 20 of the statutes of 1969, in force on 31 December 1977, is repealed, except sections 9 and 11, effective from the coming into force of chapter S-35 of the Revised Statutes.