Bill C-2 (39th Parliament, 1st Session) Committee on June 1st, 2006

[Stephen Owen, Liberal, Vancouver Quadra, BC]

Thank you.

I'll be very brief, and then Ms. Jennings has a comment as well.

We talked about the law clerk's report, which we all received last evening. From your experience on the executive side of government, has it been invariable that before legislation is presented to the House, there is a constitutional review done under the auspices of the Attorney General, as the chief law officer of the crown and legal adviser to cabinet, to ensure that that legislation is not only charter-proof, but in accordance with the Constitution?

[David Zussman]

Yes.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

Thank you very much for your presentation, Dr. Zussman.

I wanted to ask you about the Public Appointments Commission. You correctly underlined the fact that there is no formal system in place with a whole infrastructure at this time at the federal level, while in some provinces they do have an infrastructure in place for those kinds of appointments. So do you think that having some form of formal infrastructure, with clearly defined mandate, rules, authorities, etc., is a good thing?

Now, given the Prime Minister's reaction when his personally picked choice for appointment as chair was not supported by a committee...he decided he's not going to implement a formal system. Many of us believe this is a good thing. Since I came in, in 1997, I tried to convince the previous government, and now I'm trying to convince the current government, to put it in place.

We already have a similar system in place for the public service. Under the Public Service Employment Act, the Public Service Commission has that authority, which it normally delegates out to the various departments, and then exercises the oversight mechanism and audit function.

What would you think if, through Bill C-2, the Public Service Employment Act was amended to provide that the chair and the vice-chairs of the Public Service Commission also have the responsibility and duty to set this system in place, so that, for instance, the IRB would develop its criteria selection? A public, transparent selection process, etc., would identify the qualified candidates, and the Public Service Commission would then conduct audits to ensure that the appointments process was open, transparent, fair, and based on merit. What would you think if that was done through amendments to the act?

[David Zussman]

As I mentioned earlier, I am a part-time commissioner. I hope it doesn't appear that I'm in any way conflicted. But this would make a whole lot of sense. There's already an existing institution that has been testing merit-based appointments for 50 years under a regime, and it is now implementing a new one. It would be, frankly, very little additional work to ensure that the processes by which order in council appointments are made....

By the way, members of Parliament would know that in the life of a four-year government, they might make over 3,000 such appointments through the process we're talking about. So this is not a trivial exercise by any means.

It does take an infrastructure. Already a group in the Privy Council Office has been created, in fact, as part of this commission to begin the process of figuring out how we are going to make 3,000 appointments in the course of a four-year period. We already have an infrastructure. I would look at that.

The other thing I would say is that the United Kingdom, for instance, has been running a public appointments commission for at least, if I can recall, eight to ten years, with enormous success. So there are lots of good success stories out there that we can easily model.

I really applaud the government's efforts to set up the commission. Where you place it, of course, is your own choice, but there are lots of different vehicles that are possible. I'll leave it at that.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

There are lots of different existing vehicles, such as the Public Service Commission.

[David Zussman]

Yes. That's one option, indeed.

[Marlene Jennings, Liberal, Notre-Dame-de-Grâce—Lachine, QC]

Thank you.

[The Chair, Conservative, David Tilson]

We have time for a couple of questions.

Anyone from the Bloc? Madame Guay? No one?

Conservatives, we're back to you. Anyone?

Then we appear to have exhausted our questions, unless you have some final statements you want to make, Professor.

[David Zussman]

No, other than to say thank you very much for the opportunity of being here this afternoon. I'm going to follow your work with great interest in the coming weeks.

[The Chair, Conservative, David Tilson]

We're glad you came, and thank you for your contribution.

We will break for a couple of minutes.

[The Chair, Conservative, David Tilson]

We are going to reconvene.

From the Department of Justice we have the Associate Deputy Minister, Michel Bouchard, and I believe the Chief Prosecutor for the Attorney General of Québec from the Department of Justice, Québec, Pierre Lapointe. I understand he'll be here shortly.

Mr. Bouchard, you could make some preliminary comments if you wish, and then members of the committee....

Good morning, Monsieur Lapointe. I was just going to say that the two of you could make some preliminary comments. Hopefully, they'll be brief. And then members of the committee will have some questions for you.

I thank both of you for coming.

We'll start with Monsieur Bouchard.

[Michel Bouchard, Associate Deputy Minister, Department of Justice]

Thank you, Mr. Chairman.

Ladies and gentlemen members of the committee, my name is Michel Bouchard, and I am the Associate Deputy Minister responsible, at the Department of Justice, for matters pertaining to criminal prosecutions.

As the Chairman has just told you, I am here with Pierre Lapointe, who had just been assigned responsibility for examining the institution of the director of public prosecutions for Quebec when I left my duties as Deputy Minister of Justice in Quebec, more than two years ago now. Mr. Lapointe has thus spent a good part of the past two years constructing and drafting the bill passed by the Quebec National Assembly a few months ago, introducing the institution of the director of public prosecutions in Quebec.

My comments this morning will focus more particularly on the proposal to create a position of Director of Public Prosecutions at the federal level. The relevant clauses appear in Part 3 of Bill C-2.

Mr. Chairman, this proposal is based on one of the most important principles of our legal system, that prosecutions must be free of all partisan political interference or pressure. This principle is already reflected in our constitutional law, and there can be no doubt that all members subscribe to it. By this bill, the government is proposing a new institutional structure entrenched in the act that will provide greater protection for this principle of non-intervention.

Mr. Chairman, the ministers of Justice, the men and women who make up the Federal Prosecution Service have proven to be faithful guardians of the prosecutor's independence. However, it is the present government's view that it is time to go one step further. It is time to go beyond mere confidence and tradition.

There is a different approach. Two Canadian provinces have already adopted it, Nova Scotia and Quebec, as well as British Columbia, to a certain degree. The former Law Reform Commission of Canada had approved it. A number of countries have adopted it, including the United Kingdom, Australia and Ireland.

This different approach requires the establishment of an independent organization called the Office of the Director of Public Prosecutions, an organization operating independently from government. This is precisely what has been contemplated in the proposed law.

This bill proposes that the Office of Public Prosecutions be created. The acronym DPP is used to designate the office and the person who heads it. The DPP will conduct all prosecutions currently under the jurisdiction of the Federal Prosecution Service. It will also be responsible for prosecutions conducted under the Canada Elections Act. It'll be responsible as well for prosecuting the new fraud offences proposed by the present government under the Financial Administration Act.

Unlike the Federal Prosecution Service, the Office of the Director of Public Prosecutions will not be part of the Department of Justice. Instead it will constitute an independent organization that will be accountable to Parliament, through the Attorney General of Canada.

The government is proposing that the director be appointed in much the same manner as the most recent addition to the Supreme Court of Canada.

To ensure the appointee's independence, the DPP will have security of tenure, a seven-year, non-renewable term of office, and guaranteed salary and pension benefits.

The DPP will be removable from office at any time by the Governor in Council, but only for cause.

Most important of all, the director will have the power to make binding and final decisions related to prosecutions, unless the Attorney General instructs the DPP to do otherwise by means of a public written notice.

The Attorney General retains the power to intervene in proceedings, rising issues of general public interest, issues that go beyond the scope of those usually raised in prosecutions.

The bill also permits the Attorney General to take over a prosecution, but only where the Attorney General gives the DPP a notice of intention to do so. The notice must be published in the Canada Gazette. We have retained this discretion, which we anticipate will be used sparingly, because the Attorney General is ultimately accountable to this House for the actions of the DPP. Some residual capacity must exist to ensure decisions are taken in the public interest. This is a feature of other DPP schemes, and as I said, history has shown that it is a seldom exercised power.

[The Chair, Conservative, David Tilson]

Monsieur Bouchard, I wonder if you could wind up. I want to give Monsieur Lapointe a chance to speak.

[Michel Bouchard]

I have finished, Mr. Chairman. I'll be able to answer any questions you may have.

Thank you.

[The Chair, Conservative, David Tilson]

Thank you.

Monsieur Lapointe, go ahead, please.

[Pierre Lapointe, Chief Prosecutor for the Attorney General of Québec, Department of Justice (Quebec)]

As Mr. Bouchard told you, I have been responsible for the DPP project at the Government of Quebec since July 24, a project that resulted in passage of Bill 109 on December 1 last, creating the position of what, in Quebec, is called the Director of Criminal and Penal Prosecutions, but who is in fact a DPP, a Director of Public Prosecutions.

I'll make some very general comments on the act and two or three more specific comments.

First, by way of a general comment on this act, I would say that, in reading the part of Bill C-2 concerning the Director of Public Prosecutions, one can't avoid seeing a DPP model that is very similar to the one adopted in Quebec. So you won't be surprised if I tell you that, in our opinion, this is an ideal model for achieving the two objectives that essentially must be achieved when you establish a DPP: first, to provide institutional, functional and operational guarantees of independence for the director—that's the purpose of the exercise—and, second, to maintain a reasonable and necessary measure of accountability to government.

In our view, the introduction of a DPP based on this model will necessarily have beneficial effects on the office of the prosecutor itself, as well as on the credibility of the prosecution system in the public's eyes. We know to what extent public confidence is essential to the proper operation of the judicial system.

There is no legal or constitutional obligation to establish a director of public prosecutions, but we think—and, in view of the tabling of Bill C-2, it appears the government thought the same thing — that this was an important and necessary measure in the context of the process of improving and modernizing our judicial institutions. That's the general comment that we wanted to make on Bill C-2.

As to specific comments, there are two that concern very specific provisions. These are about differences that can be seen between the bill that was passed by the National Assembly and the government's proposal in Bill C-2. That doesn't mean, and I don't want to be understood as meaning that these differences are disadvantageous or advantageous. I am pointing them out because, in our view, these issues were very important and were the subject of debate, because they go to the very heart of the matter of the functional independence of the DPP and because they concern the question of the image of independence and apolitical operation that emerges from this bill.

The first of these comments concerns the DPP appointment process. The process favoured here is obviously very similar to the one that we adopted, subject to certain differences that are not important here. The only comment that forms the subject of major discussions in Quebec and which made our act slightly different—here my sole purpose is to point this out to you—is the absence from the bill of any legal obligation to trigger the process of appointing a DPP.

The bill provides that the DPP is appointed for seven years, that his term is not renewable and that the DPP remains in office until he is replaced, which is perfectly normal and necessary. However, the bill provides that the Attorney General may hold a competition, but it does not provide for an obligation to do so within a certain period of time after the position becomes vacant.

Following this debate, we chose to provide that the Attorney General or the Minister of Justice shall start the competition process in the year preceding the year when the position becomes vacant. That was my first comment.

The second concerns a question that goes to the heart of all these acts, and that is the obligation for the Attorney General to make public any intervention that he must make in respect of the DPP. The primary purpose of this act is to create the functional independence of the DPP in the performance of his duties. However, as a result of constitutional necessities, the Attorney General remains in his traditional institutional form and thus holds ultimate powers of prosecution. Those fall to him. He may therefore intervene with the DPP, both to establish general standards and to intervene specifically in prosecutions that are the DPP's responsibility.

The situation is identical under our act. As a result, the desired objective, which is to establish functional independence, is one that can never be completely achieved, since there will always be an Attorney General who can intervene.

In general, in all acts, whether it be this one, ours, or those of Australia, Nova Scotia, British Columbia or England—in fact, I know nothing about England; I was talking through my hat—we're replacing this absence of functional independence with a transparency measure. It states that, if there is an intervention, it must be made public. In fact, we're ensuring that the Attorney General's interventions will be effective. They must always be made in the public interest, not for a public purpose. The object of this act is to prevent political intervention in the prosecutor's decisions, while preserving the Attorney General's power.

Now this power of publication...

[The Chair, Conservative, David Tilson]

If you could conclude, I would appreciate it. I want to give time to the members to ask you both some questions.

[Pierre Lapointe]

We still recognize that there is a limit on the power of publication, that is to say that it is sometimes in the interests of justice to delay it. Publishing interventions could undermine the judicial process.

Here you have chosen a model in which the Attorney General and the DPP can both delay publication. That's similar to what you have in British Columbia. Upon lengthy debate, we chose a model like that of Nova Scotia, under which the DPP can delay publication since it's considered that giving the power... In any case, I'll come back to that if you have any questions.

The last thing I wanted to mention concerns language. I was a bit surprised by the wording of subsection 3(3) of the Director of Public Prosecutions Act. It states, and I quote:

(3) Il exerce, sous l’autorité et pour le compte du procureur général, les attributions suivantes : a) engager et mener les poursuites pour le compte de l’État;

I find that ambiguous. On the one hand, we want to describe the fact that he is subordinated to the Attorney General, but, on the other hand, it states that he works under and on behalf of... You're using the same word. Moreover, I see the English version has the same effect. Perhaps that's not ambiguous in your mind, but it is for me with regard to the fundamental aspect of his duties. I'm sorry.

[The Chair, Conservative, David Tilson]

We're going to have to move on. I'm sorry.

Mr. Owen, go ahead, please.

[Stephen Owen, Liberal, Vancouver Quadra, BC]

Thank you, gentlemen, for coming before us and bringing your consolidated expertise in these matters.

I have two questions. The first is for Mr. Bouchard.

I am curious as to what problem we are trying to fix here with respect to the Director of Public Prosecutions, so my first question, Mr. Bouchard, is whether there is, to your knowledge, any recent history of challenges to the image--I think Mr. Lapointe used that word translated--or the appearance of independence in the federal prosecution.

I put this in this context, because of course the Attorney General, in that part of his dual role, is the chief law officer of the crown. He or she has a quasi-judicial responsibility in criminal prosecutions to do the very things this act sets out, except for putting direction in writing.

I am wondering if there is some great distrust in the public, related to past practice of improper interference, that we're trying to solve here. How would setting up another independent office for this DPP be different from simply the situation in British Columbia? There, the Crown Counsel Act--from where I suspect the wording for this was taken--simply requires of the prosecution service that it can take from the Attorney General direction on prosecution policy or a specific case if it's in writing and is gazetted, as you say, at the appropriate time. That's my first question.

Could that simply, without taking apart the prosecution service and putting it somewhere else, be handled sufficiently, as it has been in British Columbia, without having a new so-called independent office? I think in reality it is not much more independent than our criminal justice systems across the country.

The second point is that in his role as chief law officer of the crown, the Attorney General is not only the chief lawyer for the executive branch but also the chief legal adviser to cabinet, to Parliament, and in fact to the Governor General.

So I am interested to know that with respect to this bill, it is invariable that the Attorney General, through the Department of Justice, provides legal advice to the government on the legality, particularly the constitutional legality, of the legislation before it's tabled in the House. I see that as a firm responsibility of an Attorney General in that person's independent and even quasi-judicial role as chief law officer.

I am wondering if that was done in this case. I am assuming it was. As members of Parliament who represent one of the clients of the Attorney General of Canada, we'd be very interested in having a copy of that legal opinion.

[Michel Bouchard]

Thank you for your question, sir.

With regard to your first point, at the origin of the bill, there's no response to a specific problem that would have made this government feel obliged to intervene quickly with regard to the creation of a DPP, as might have occurred in other jurisdictions, where the establishment of the institution of the DPP was the result of a commission of inquiry. Among other things, I'm referring to Nova Scotia and, to a certain degree, perhaps as well to a case in British Columbia with which you are very familiar. As a result, in preparing this legislation, we had occasion to refer to the work and recommendations that you prepared in the early 1990s.

That said, you know as well as I do, sir, that, in the administration of justice, appearances are at times as important as, if not more important than, reality. During my nearly 33-year career of prosecuting criminal cases in government, both Quebec and federal, I have never been involved in a situation in which a political intervention occurred in the prosecution of a case. However, I was faced with situations in which the public perception, fortunately not in many cases, was that a political intervention might have occurred, which was incorrect. It is extremely difficult, once a perception is rooted among the public, to eliminate that concern and prove that no political intervention occurred.

So what emerges from this bill with regard to the Director of Public Prosecutions is that you want to create a climate of independence and transparency with regard to public prosecutions. You want the public to get the impression, as a result of the way in which the individual has been appointed to perform that office, that the decisions he makes, which are final, are made independently of any political intervention. The public's perception of a prosecution or a decision is extremely important. A number of parameters are associated with the independence of the person who holds the position: the fact that he occupies a position from which he cannot be removed, except for misconduct; the job security he enjoys; the fact that the Attorney General, although he does not lose his powers of prosecution, must, if he wishes to prosecute instead of the Director of Public Prosecutions, state his intention in writing and make the proceeding public. Why wait for a scandal, when the public wants the assurance that criminal prosecutions are instituted by someone who is completely independent of all political intervention? From the start of my remarks, I have emphasized that, over the years, the attorneys general who have preceded the one who currently occupies the position and all those currently working in the Federal Prosecution Service for a number of years have performed their duties with complete independence, free of all political intervention. However, what is important, and I want to point this out again, is knowing whether the public perceives every day that all decisions are made completely independently. It is this situation that the bill addresses.

[The Chair, Conservative, David Tilson]

We're over time.

Mr. Sauvageau.

[Benoît Sauvageau, Bloc, Repentigny, QC]

Good morning, Messrs. Lapointe and Bouchard.

During the last election campaign, the Conservatives outlined the idea of creating a position of director of public prosecutions. A spokesperson for the Quebec Ministry of Justice said that it was the Attorney General of Quebec, not the federal Attorney General, who usually instituted proceedings in fraud cases. “In fraud cases, it's the Quebec Attorney who institutes proceedings,” the spokesperson said. “A memorandum of understanding with Quebec should be necessary to do that.”

To your knowledge, have negotiations been started? Has something been started between the announcement of the table of Bill C-2 during the election campaign and today?

Second, what elements did the Government of Quebec want to include in it?

Lastly, what powers and prerogatives do you want to protect with relation to Bill C-2?

[Pierre Lapointe]

As to whether negotiations have been started, I can't give you an answer. I haven't looked into those questions. However, I can tell you that both Quebec's bill and Bill C-2 specifically provide for the possibility of an agreement in cases of interprovincial or intergovernmental prosecutions. They contain specific provisions respecting those agreements. Agreements are always necessary during prosecutions, even beyond the context of the Director of Public Prosecutions. Where necessary, for example, when a case concerns the proceeds of crime, fraud or organized crime, the provinces enter into these kinds of agreements among themselves. Those are specific cases.

[Benoît Sauvageau, Bloc, Repentigny, QC]

When the idea of creating a position of Director of Public Prosecutions was introduced, the present Prime Minister and Peter MacKay, a former Crown prosecutor of Nova Scotia, did not agree on the powers related to that position. Mr. Harper said that the Director of Public Prosecutions could intervene in cases like the sponsorship case. However, we know that proceedings were instituted by the Attorney General of Quebec in that matter.

From a reading of Bill C-2, do you feel it offers the necessary guarantees to preserve Quebec's responsibilities? Do you think it enables the federal government to institute proceedings that are currently the responsibility of Quebec's director of public prosecutions?