Guide to FOIP-Chapter 4

Office of the Saskatchewan Information and Privacy Commissioner. Guide to FOIP, Chapter 4, Exemptions from the Right of Access. Updated 8 April 2024. 83 a decision to prosecute. To subject such decisions to political interference, or to judicial supervision, could erode the integrity of our system of prosecution…309 The following three-part test can be applied:310 1. Was the prosecutorial discretion exercised in matters within the prosecutor’s authority concerning the prosecution of offences? Exercise of prosecutorial discretion is not defined in FOIP. However, where a legislative instrument [such as FOIP] uses a legal term of art, it is generally presumed that the term is used in its correct legal sense.311 Prosecutorial discretion was defined in Krieger v. Law Society of Alberta (2002) as follows: Without being exhaustive, we believe the core elements of prosecutorial discretion encompass the following: (a) the discretion whether to bring the prosecution of a charge laid by police; (b) the discretion to enter a stay of proceedings in either a private or public prosecution, as codified in the [Criminal Code], ss. 579 and 579.1; (c) the discretion to accept a guilty plea to a lesser charge; (d) the discretion to withdraw from criminal proceedings altogether: [R. v. Osborne (1975)]; and (e) the discretion to take control of a private prosecution: [R. v. Osiowy (1989)]. While there are other discretionary decisions, these are the core of the delegated sovereign authority peculiar to the office of the Attorney General.312 Exercise means to make use of; to put into action; to execute.313 Subsection 2(u) of The Summary Offences Procedure Act, 1990, SS 1990-91, c S-63.1 defines “prosecutor” as follows: 2 In this Act: ... (u) “prosecutor” means: (i) the Attorney General or, where the Attorney General does not intervene, the informant or the person who issued the ticket, and includes counsel or the agent 309 Krieger v. Law Society of Alberta, [2002] 3 SCR 372, 2002 SCC 65 (CanLII) at [3] and [32]. 310 SK OIPC Review Report 004-2020 at [43]. 311 Sullivan, R. Sullivan and Driedger on the Construction of Statutes 4th Edition (Markham: Butterworths, 2002) at p. 47. 312 Krieger v. Law Society of Alberta, [2002] 3 SCR 372, 2002 SCC 65 (CanLII) at [66]. 313 Garner, Bryan A., 2019. Black’s Law Dictionary, 11th Edition. St. Paul, Minn.: West Group at p. 718.