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

[Michel Bouchard]

Thank you. Mr. Lapointe can add to my answer, but I'll nevertheless begin, since we're talking about a federal bill.

It should be clearly understood that, with respect to the creation of a position of Director of Public Prosecutions, Bill C-2 does not change the ground rules as regards the jurisdictions of the provinces relating to criminal prosecutions. However, it does contain, in particular, certain clauses that will create new offences under the Federal Accountability Act, as well as amendments to the Criminal Code concerning fraud against the government. In that sense, Bill C-2 gives the federal Director of Public Prosecutions the power to institute proceedings in cases of fraud committed by government employees or against the government.

One important point to note is that, in order to institute his proceedings, the eventual Director of Public Prosecutions may, by virtue of the independence conferred on him by the bill as tabled, decide to enter into an agreement with the province concerning a given situation if he considers it preferable that either the province or the Director of Public Prosecutions institute a proceeding. He will have all the necessary authority to do so.

[Pierre Lapointe]

Indeed, the part of the bill concerning the DPP does not in any way reduce the Attorney General's power to prosecute. That power is provided for in section 2 of the Criminal Code and will not change.

However, Mr. Bouchard points out that another part of the act establishes a concurrent power of prosecution, and that it does not necessarily withdraw the Attorney General's power to prosecute. Furthermore, there are still reasons to establish agreements in similar circumstances, having regard to resources, interests and so on. That's the current state of the matter.

[Benoît Sauvageau, Bloc, Repentigny, QC]

Does that mean that neither the Director of Public Prosecutions nor the staff of his office in Quebec City will experience, in the performance of their duties, the slightest concern over the implementation of Bill C-2 if it is not amended?

[Pierre Lapointe]

I haven't examined Bill C-2 as a whole. It contains a lot of elements, but I can tell you that the part concerning the Director of Public Prosecutions changes nothing. Working with people who enjoy this kind of independence, and who appear to have it, is very positive.

Furthermore, as Mr. Bouchard mentioned, the image that the public perceives is very important. If people get the impression that there has been political intervention or that a decision has been made in a political manner, that may prove to be utterly paralyzing for the prosecutors. That perception lasts quite a long time in the public's mind or imagination.

In fact, the prospect of working on an equal footing with organizations of this kind makes us happy.

[Michel Bouchard]

The fact that Quebec is happy makes us happier.

[The Chair, Conservative, David Tilson]

Thank you.

Mr. Martin.

[Pat Martin, NDP, Winnipeg Centre, MB]

Thank you, Mr. Chair, and thank you to both witnesses for being here.

I see the creation of this new office as a natural extension of the spirit of this bill, in many ways. If we have, for instance, better access to information as a result of this bill, we want to have the information that may be unearthed by virtue of those new strengths dealt with promptly. Canadians not only have a right to know how their money is being spent and a right to be aware of any wrongdoing that may have occurred, but they also have a right to speedy prosecution of any maladministration or wrongdoing that may be unearthed.

So I am excited by this prospect, and I welcome this idea. I'm relieved to hear that we don't see it as being contradictory to any provincial jurisdiction, as I would have had to have found fault with that.

One of the criticisms I've heard, and it's almost a motif, a theme, of the criticism we get of the Conservative government, is that it kind of smacks of the American model. This isn't a prime concern of mine, but I would like you to clarify, perhaps, if you could. People have negative images of, I think his name was Starr, in the Clinton period. They felt they had a special office that was there to harass the government in a quasi-political way.

Could you differentiate for us how this new office is different from the similar prosecutor's office in the United States?

[Michel Bouchard]

As for the creation of the position of Director of Public Prosecutions, we examined everything that was being done outside Canada and even within Canada, in the case of certain provinces, during the drafting and writing of the bill. We looked into the situation in the United Kingdom and Wales, in a number of Australian states, in New Zealand and in Ireland.

In the United States, they have what's called a special prosecutor. He is appointed for specific purposes, in the context of a particular case that has previously been the subject of a priority review by the Attorney General. This special prosecutor's duties are limited to the specific circumstances in which he is asked to investigate. On the other hand, the Director of Public Prosecutions handles all cases that are subject to criminal investigation conducted by the police and that are followed by the laying of charges. So these are two quite different offices.

The Attorney General of Canada, as well as any provincial attorney general, may ask a special attorney to handle a case. That's not prohibited. In Quebec, this may happen in the context of an investigation in which the person concerned was too close to the institution of the Attorney General. The two entities must be separated.

The United States does not have a director of public prosecutions. We therefore drew on what has been done in Nova Scotia, Quebec and, to a certain degree, British Columbia, but especially on what exists in most of the Commonwealth countries.

[Pierre Lapointe]

Allow me to add one detail. The U.S. constitutional context is so different from our own that any similarity is impossible. Mr. Bouchard referred to occasions on which either a province or the Attorney General of Canada could appoint a special attorney. However, it could never be a prosecutor in the sense that is meant in the United States. In that country, the prosecutor has the power both to investigate and to prosecute. When a special attorney is appointed, it is generally a person who only has the power to prosecute. However, the decision may be made not to assign a specific investigation to an attorney general, in view of an existing conflict.

[Pat Martin, NDP, Winnipeg Centre, MB]

That's very interesting. Thank you.

[The Chair, Conservative, David Tilson]

Anyone? No?

Mr. Poilievre.

[Pierre Poilievre, Conservative, Nepean—Carleton, ON]

I just want to.... Okay. I'll wait.

[Daniel Petit, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

Good morning, Mr. Bouchard and Mr. Lapointe.

First, I'd like to draw the Chairman's attention to the fact that I personally know Mr. Lapointe and Mr. Bouchard. They come from the district of Quebec City, as I do. We practised at the same time, but not in the same place. In some cases, Mr. Lapointe represented the Crown, when I was counsel for the defence. The same was true of Mr. Bouchard.

First, I want to say that I'm very proud to see you here today. This proves that we have good attorneys in Quebec. I'd like to draw your attention to one aspect of the bill. I don't know whether you have considered it. It is provided that whistleblowers will have to go to the Labour Relations Board or to a tribunal. I know that administrative tribunal lawyers are quite particular compared to court lawyers. Furthermore, those who receive the complaints would be Superior Court judges.

I'd like to hear your comments on this subject, since you will have to face the situation and deal with these problems every day. Let's hope there aren't too many. Between the Labour Relations Board and the tribunal, which do you prefer? You already know these institutions, in view of the fact that you've previously practised in a tribunal, in the Superior Court, in criminal cases, or in other circumstances.

[Michel Bouchard]

I'll answer you by saying that I can't answer. I belong to a group of lawyers at the Ministry of Justice that examined Bill C-2 from the standpoint of the provisions on the Director of Public Prosecutions. I neither considered nor examined the other provisions of this bill. You could probably ask a question and get an answer at the clause-by-clause consideration stage.

One of the reasons why I have been in my position for all these years is that I'm very much aware of my limits when it comes to answering certain questions. This morning, I'm giving you one example of that. I don't know the answer to your question, and I don't want to make one up.

[Daniel Petit, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

Thank you very much.

Go ahead, sir.

[Pierre Poilievre, Conservative, Nepean—Carleton, ON]

I just want to return to the core purpose and origins of the Director of Public Prosecutions. The reason this was proposed in the last election--and I'm not afraid to say it--is that a lot of people were confused about the fact that a number of advertising agencies were pursued with legal action when one organization, which was clearly at the centre of the same scandal and benefited directly from it without any question whatsoever--this is beyond debate--was not. That organization was given the ability to decide how much of its stolen money it wanted to repay.

The purpose of the Director of Public Prosecutions demonstrates that there should be an independence in public federal prosecutions and that the public should know if there is political direction given to the Attorney General's office. In cases such as that one, where the partisan interest of the Attorney General himself seems to conflict with the public interest he is meant to serve, there should be as much space as possible between that Attorney General, who is a partisan elected official, and the prosecutorial component of the federal government. If the Attorney General, who is partisan, does want to direct the prosecutorial arm of his department, he has to do so in a way that is public, not secret, so that people know.

That is the real reason we want to have this separation. It doesn't create a new bureaucracy; in fact, it will be the same office. It just separates the powers and basically opens up the drapes so the sunshine can come in. We can see what's going on in there--to use an analogy that Mr. Martin has been fond of in the past.

That is the purpose of this office. I wanted to state that on the record to remind people of why we are doing this and where the idea was born.

I'll just move to the question. Do you believe that this will cause any major upheaval or problems, from an administrative standpoint, in the Department of Justice or in the Attorney General's office, or do you think these changes can be accommodated in a fairly efficient way?

[Michel Bouchard]

I have no contradictory comment to make on what I've just heard, sir. Thank you for your question. You summarized, among other things, the purposes of these amendments very well.

Your last question is very important, because it concerns the human component. The transfer of this unit, which consists of a number of employees, to a separate unit from the Department of Justice, will have a significant impact on interpersonal relations. These people are leaving a department for which they've worked, in some cases, for nearly 30 years. From a human standpoint, these people are sad to leave the Department of Justice in order to create this new institution, but happy as well because they know that they'll play a very important role which will have been confirmed in an independent manner by the act. So they'll be proud to create and introduce this new concept of Director of Public Prosecutions, but sad at the same time to leave the Department of Justice.

From a budgetary standpoint, under the act—and this is included in the transitional provisions—the some 600 employees who are currently part of the Federal Prosecution Service will become members of the Office of the Director of Public Prosecutions the day after the bill is passed. Four hundred and eleven lawyers work in the Federal Prosecution Service, along with 273 employees who are not lawyers, and we call on nearly 250 firms around the country, representing 800 lawyers, to conduct trials in regions where we don't have a permanent office.

So the budgetary impact shouldn't be enormous, but there will nevertheless be an impact. To guarantee the independence of the Federal Prosecution Service, which will become the Office of the Director of Public Prosecutions, it will have to have separate premises from those of the employees of the Department of Justice, which will perhaps entail a one-time expenditure for one year.

[The Chair, Conservative, David Tilson]

Both clocks have gone off, so we're out of time. I want to thank you both for coming.

[Michel Bouchard]

It was a pleasure for us.

[The Chair, Conservative, David Tilson]

We'll break for a minute.

Before we have our next delegation, just to get you all thinking, unless you have a brief comment--order, please, this is important--I need the committee's advice.

Ms. Jennings, Mr. Walsh is available tomorrow or on Monday to come at either 5 or 6 p.m. I think the motion said three hours. Does the committee want him to come at 5 or at 6 p.m.? You say 5 p.m. That's all I want to know.

We are going to proceed. We are completely out of control here with time, but we're going to do our best.

We have Yvette Aloïsi, I hope, who is the Associate Deputy Minister with the Department of Public Works and Government Services. We also have Emmy Verdun, who is the Director General, Policy Risk and a whole bunch of other things. Mr. Wild, who has been here before, is here from the Department of Justice in case there are some legal issues, I suppose.

We're really pressed, so could you make your opening comments very brief, please?

[Yvette Aloïsi, Associate Deputy Minister, Department of Public Works and Government Services]

Okay. I'm going to be very brief and cut down the statement that was distributed to all of you.

I think most of you know about Public Works and Government Services Canada, the number of transactions we do per year, and the amount of money we spend on behalf of the Government of Canada--in the order of $17 billion a year. Today I would like to focus on the parts of Bill C-2 that touch on the procurement auditor. I would also like to quickly talk about the code of conduct and the impact of what we're doing on SMEs.

As you know, the Federal Accountability Act will create a new position of procurement auditor, with a mandate to review procurement practices across the--

[The Chair, Conservative, David Tilson]

I'm going to interject and be rude. I'm very sorry, but since you're from the department we're going to take our leeway with you. We have your paper here. I know this is unusual, but we have a scheduling problem. So I'm going to ask that the committee jump right into questions.

Mr. Owen.

[Stephen Owen, Liberal, Vancouver Quadra, BC]

Thank you.

My question is to Mr. Wild in his capacity as senior counsel, legal services, for the Treasury Board portfolio.

Mr. Wild, I'm confident that no legislation is tabled in the House without the Attorney General or his delegates having reviewed it for constitutionality and general lawfulness, or non-contravention of other statutes. As a member of Parliament, I'm asking for any written opinion that may have been provided on Bill C-2 to the government.

As we know, the Attorney General of Canada is not only the chief legal adviser to cabinet and the executive, but as law officer of the crown, he is also the counsel for Parliament. In that capacity, and given our responsibilities here, it is very important for us to be assured by receiving a copy of that opinion.

[The Chair, Conservative, David Tilson]

I'm going to leave you on your own. There's an issue of privilege, but I've seen you work before and I'm sure you can look after yourself.

[Joe Wild, Senior Counsel, Legal Services, Treasury Board Portfolio, Department of Justice]

I appreciate your confidence, Mr. Chair.

It is certainly the regular practice of the department to review legislation, as well as any other matter on which the government wishes to receive advice, as to constitutionality or compliance with the charter.

In terms of a specific written opinion on this bill, when we get to clause-by-clause, the department will happily assist the committee in explaining the legal underpinnings of every clause in the bill. But as to providing some kind of overarching legal opinion to the committee, it's certainly the longstanding tradition that, generally speaking, legal advice to the government is not shared with committees. But we'll be happy to explain, from a technical perspective, the legal underpinnings of the clauses as we go through the clause-by-clause exercise.