Bill C-2 (39th Parliament, 1st Session) Committee on May 4th, 2006

[Benoît Sauvageau, Bloc, Repentigny, QC]

I'd like to introduce a notice of motion while the President of Treasury Board is here with us. The motion reads as follows:

That the Committee recommend that the government immediately enact Bill C-11, An Act to establish a procedure for the disclosure of wrongdoings in the public sector, including the protection of persons who disclose the wrongdoings.

I have this motion in both official languages and I am moving it knowing that Bill C-2 would override and make null and void last session's Bill C-11. We will discuss the issue in 24 hours.

[The Chair, Conservative, David Tilson]

Thank you, sir. We'll take it as notice.

It appears we've come to an end, Minister. I thank you and your colleagues for appearing before us and answering our questions. Thank you kindly.

On a point of order, Mr. Tonks.

[Alan Tonks, Liberal, York South—Weston, ON]

We're learning as we go along, Mr. Chairman. This is just an explorative question.

Mr. Chairman, you indicated that the minister brought two witnesses. If we had wanted to continue questioning the other two witnesses, would it have been your decision to extend the time?

[The Chair, Conservative, David Tilson]

We saw three people there, Mr. Tonks. Again, I'm going to do whatever this committee wishes me to do; it's as simple as that. I saw three people. That's all I'm saying.

[Alan Tonks, Liberal, York South—Weston, ON]

I guess the inference I draw from that is that if we also wished, we could have asked questions of substance to the other members. But at this point we're not prepared to do that.

[The Chair, Conservative, David Tilson]

It's up to the committee. The witnesses are still here in the room. If the committee wishes to ask.... One of them is gradually getting away--maybe not.

Ms. Jennings, does the committee wish to ask questions of Mr. Wild or Ms. Cartwright? The answer to that is yes. Is there any opposition to that?

We have two more witnesses. I'm going to introduce both of you. We have before us Susan M.W. Cartwright, Assistant Secretary, Accountability in Government, Treasury Board of Canada Secretariat. We have Joe Wild, Senior Counsel of Legal Services, Treasury Board portfolio, Department of Justice.

You are here before us. We may have taken you off guard on this. You may just make yourselves available for questions, or you may wish to make some introductory remarks. The floor is yours to tell us what you wish.

[Susan Cartwright, Assistant Secretary, Accountability in Government, Treasury Board of Canada Secretariat]

We have no introductory remarks to make, but we would be happy to take questions.

[The Chair, Conservative, David Tilson]

Thank you.

Mr. Owen.

[Stephen Owen, Liberal, Vancouver Quadra, BC]

Thank you for being here.

[The Chair, Conservative, David Tilson]

We will proceed with seven-minute rounds.

[Stephen Owen, Liberal, Vancouver Quadra, BC]

Thank you.

Mr. Wild, I'd like to explore a bit the reasons behind and the workings of the proposed Director of Public Prosecutions. I'm not sure if this is your legal field, but perhaps through your involvement in drafting you can shed some light on this.

I'm aware of only one Director of Public Prosecutions Office in the country, and that's in the province of Nova Scotia. In all other jurisdictions, including the federal jurisdiction, under constitutional practice and tradition, the Attorney General of the jurisdiction is the chief law officer of the Crown. That person is also the Minister of Justice, and is sometimes called under the dual role or sometimes just under the title of Attorney General. But there is both a political policy-based role as a member of cabinet and this quasi-judicial office of Chief Law Officer of the Crown. It is in that role, as Chief Law Officer, that this person takes responsibility to ensure that government acts within the law and that prosecutions are conducted in the appropriate way. And I think constitutionally--but I'd like your opinion on this--it's not actually possible for the Attorney General to divest himself of that responsibility and give it to another person.

We have in the federal government an Assistant Deputy Attorney General for criminal prosecutions. And I think, as the President of the Treasury Board said, there are about 640 employees in that branch of the Justice Department.

I'm wondering, first of all, if you are aware of any issue or problem with those prosecutions, with the role of the Assistant Deputy Attorney General, that would lead to containing in an accountability act provisions to separate that out from the direct responsibility of the Minister of Justice and Attorney General.

Second, I'm interested to know that in the wording in Bill C-2 we have something very similar to the Crown Counsel Act in British Columbia, which says that the Attorney General may intervene--which he may by convention in any event, as Chief Law Officer--with criminal justice policy or the conduct of a particular prosecution. But if he or she does, it must be done in writing, and gazetted perhaps, with a delay to make sure that an ongoing trial isn't affected.

That language is in the Crown Counsel Act of British Columbia. It's the same wording as here. But it doesn't require a separate department of a Director of Public Prosecutions. It simply states clearly what the role and process are for an Attorney General intervening in a prosecution.

Can you shed any light on why we would set up a whole separate department rather than just making explicit the language that is in Bill C-2, for the Attorney General and the Assistant Deputy Attorney General?

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

I'll do the best I can. Certainly part of your question I can't necessarily answer from an official's perspective, in that it's a question that goes very much to the heart of a political decision that was made.

What I would point out is that the Director of Public Prosecutions is not initiating prosecutions in his or her own name. They're very much still acting under and on behalf of the Attorney General of Canada. So nothing is changing in terms of the actual title of the person that carries out the prosecutions on behalf of the Crown. It is still the Attorney General of Canada. It just so happens that the Director of Public Prosecutions is being separated out from the Department of Justice so that the Minister of Justice functions are not in play in terms of what the Director of Public Prosecutions is doing. It's very much a policy choice.

As you correctly identified, there are other models in this country, as well as internationally, in which the public prosecution function has been separated from the broader Department of Justice function. That simply reflects the policy choice here, which in essence is to physically as much as symbolically show that the Director of Public Prosecutions is operating independently in a separate, distinct office from the Minister of Justice, functioning within transparency safeguards.

[Stephen Owen, Liberal, Vancouver Quadra, BC]

Perhaps I could intervene, Mr. Wild. Excuse me for interrupting, but I'm afraid the clock is going to run out here and our chair is quite vigorous in holding us to the time.

Other than the policy reason, are you aware of any practical difference that this would make to the conduct of either the Attorney General or the prosecutor responsible for leading prosecutions?

[Joe Wild]

It's always difficult, in terms of the word “practical”. From the perspective of the Department of Justice, this isn't changing the practice that's been in place of ensuring that decisions around prosecution are isolated from political influence. This is merely taking that a step further and putting it, if you will, out in the daylight, in that it's now a transparent separation of those functions, whereas before it was done within the walls of the Department of Justice and that separation was maintained as a result of practices that we had developed.

[Stephen Owen, Liberal, Vancouver Quadra, BC]

If it were under the Attorney General's act, or a legal instrument, or this act, would simply using the words instructing how an attorney general intervenes in a prosecution or a Justice policy have the same effect?

[Joe Wild]

Certainly, for a certain aspect it would. Obviously, as I mentioned before, there's a policy choice here as to whether or not you are going to have a separate function in the sense of physically separating the Department of Justice and the Director of Public Prosecutions. The choice was made to separate them; it simply reflects the policy decision to try to demonstrate independence as well as ensure that it's actually done.

[The Chair, Conservative, David Tilson]

Thank you.

Monsieur Sauvageau.

[Benoît Sauvageau, Bloc, Repentigny, QC]

Hello, ladies and gentlemen.

Earlier on, I did not fully understand the answer you gave regarding whether the trade tribunal's decisions may be subject to Bill C-2. Excuse my ignorance, but could you repeat the answer you gave?

[Joe Wild]

I'm going to answer in English just because it's very technical.

The proposals with respect to the procurement auditor do not take anything away from the jurisdiction of the CITT as it currently exists. Certainly, in our view, we did not do anything to impact upon the CITT's current jurisdiction; we have not changed it and, in our view, we have not affected it. The procurement auditor has a function that operates primarily with respect to contracts that are under the thresholds that would allow a matter to go to the CITT. It's a different type of function from what the CITT performs, and that is an investigative function to make recommendations to departments as to how they can ameliorate their contracting cases.

[Benoît Sauvageau, Bloc, Repentigny, QC]

I'll give you an example, and you can tell me if Bill C-2 will change anything or not. Let's assume there is a call for tenders to install carpeting in public service offices and that the conditions are so explicit that only one tenderer may bid. The call for tenders may, for instance, state that the bidder must have offices in all 10 provinces, 22 years of experience, a master's in marketing, etc. So the bid would clearly be tailored to one company. Competitors complain and prevail before the Canadian International Trade Tribunal, which rules that the call for tenders was indeed biased. There was therefore misconduct, the desire to commit a wrongdoing.

Once Bill C-2 is passed, will the International Trade Tribunal's decision that there was misconduct be reviewed by anyone else? Can you answer my question with a yes or no? Could things be that simple?

[Joe Wild]

There is nothing specifically in Bill C-2 that would address that.

[Benoît Sauvageau, Bloc, Repentigny, QC]

Thank you.

Could you tell me approximately how many bills will be amended once Bill C-2 is passed? Would it be 15, 20?

[Joe Wild]

I've not done the exact count. It's over 60.

[Benoît Sauvageau, Bloc, Repentigny, QC]

So, if last session's Bill C-11 were currently in force, C-2 would amend 61 acts rather than 60.

[Joe Wild]

Bill C-11 will be amended by Bill C-2. It's in the count of the 60. Because Bill C-11 has received--