Evidence of meeting #2 for Bill C-2 (39th Parliament, 1st Session) in the 39th Parliament, 1st session. (The original version is on Parliament’s site, as are the minutes.) The winning word was public.
Conservative
Tom Lukiwski Conservative Regina—Lumsden—Lake Centre, SK
Quite frankly, Mr. Chair, I'm just trying to get the technical--
Conservative
The Chair Conservative David Tilson
I know.
I'm going to make the same comment as I made to Mr. Martin.
But, Mr. Wild, it's up to you.
Senior Counsel, Legal Services, Treasury Board Portfolio, Department of Justice
From a technical perspective, the distinctions between the Information Commissioner's position and what's in the Federal Accountability Act is that the Federal Accountability Act builds in specific forms of exemptions or exclusions to protect information related either to the core operations of commercial crown corporations or the sensitive information gathered during an investigation, examination, or audit being carried out by agents of Parliament.
The Information Commissioner took a different approach in terms of those exemptions and exclusions. Some he would eliminate altogether, in particular around crown corporations; others he would limit to a narrow cast of information, such as for agents of Parliament. The Information Commissioner proposed that it would only be the information they obtained from a government institution, whereas Bill C-2 proposes it would be information obtained and created by the agents of Parliament in the course of their investigation, examination, or audit.
In addition, Bill C-2 proposes a specific exemption for internal audit working papers and draft reports, which the Information Commissioner does not support. If you look specifically at the internal audit exemption, again the idea behind it is to ensure that there is sufficient protection in place to give an appropriate level of comfort to public officials, so they are free to voice opinions and have discussions with internal auditors without the draft of those discussions being publicly available before the final report. That's the last point I will make: the final report is always going to be publicly available.
Liberal
Brian Murphy Liberal Moncton—Riverview—Dieppe, NB
Thank you, Mr. Chairman.
I'm going to ask more questions about the Director of Public Prosecutions. Before I do, I think it might be a great idea, from a research point of view, for us to have available either some of the acts or articles, or a workup of some of the items mentioned today, such as the Crown Counsel Act of British Columbia, the example of how it works--or not--in Nova Scotia, and anything else that's been reviewed by the department or independently in Australia or the U.K., and I'm sure that'll be forthcoming.
We started out with the idea of the Director of Public Prosecutions having a separate name and a separate office, which sounds to me like the public expects that he or she will have independent powers and be a beacon of independence, power, ethics, and credibility. I think that's our intent, and I think that's great.
However, in the details and in your testimony, Mr. Wild, it becomes clear that the DPP has the power to make binding and final decisions as to whether to prosecute—unless the Attorney General directs otherwise. In your comments, you said that perhaps the DPP will be physically separate from the Department of Justice, but it seems that he or she would be under the Attorney General's umbrella.
The public might say this would be like the Auditor General, who is independent, having a separate office but becoming part of the Ministry of Finance, which of course is not what we expect.
My question is, to make sure that this DPP role is necessary—and we'll get into that in the weeks to come, I'm sure—but also has that public credibility.... You're probably going to say this is political, but do you not think the DPP should have separate powers? It should not be under the aegis of the AG for the laying of charges and should not be seen as.... I'll use a genetic allusion, because it's been brought up here twice: the DNA is the same for the Attorney General and DPP. In fact, they're part of the same being; one is an arm of the other.
That's not the impression the public got when a man I respect very much, Peter MacKay, made some announcements during the election that the DPP would have independent powers. I think we were all dreaming of Rumpole and that there was going to be a great independence. The point is that in this document so far, there doesn't seem to be that independence—or I've got your comments wrong, Mr. Wild, or I'm reading the précis of the act wrongly. How much independence does the DPP, as it is, have?
Senior Counsel, Legal Services, Treasury Board Portfolio, Department of Justice
The Director of Public Prosecutions has independence in the sense that the Attorney General cannot give a direction, whether it is a broad policy direction or a specific direction on any given case, without that direction being in writing and gazetted. That's the form of independence that has been given. The DPP makes decisions, and if the Attorney General wishes, I guess, to adjust that decision in some manner, the Attorney General has to do so in writing and publicly so that it is transparent.
Liberal
Brian Murphy Liberal Moncton—Riverview—Dieppe, NB
I'm looking at my time, Mr. Chairman, and have about a minute left.
If I can follow up on your comments, you also said there is no political interference.... You said it didn't change the practice of avoiding political interference in the laying of charges; that's what exists now. I'm wondering if by putting up the DPP we are leading people, the public out there, to have the impression that there is now. What is the difference? Is it the initiating part that's different?
Senior Counsel, Legal Services, Treasury Board Portfolio, Department of Justice
The difference is that what was once a practice occurring within the Department of Justice is now codified in statute; there is now codified in statute a requirement that if the Attorney General seeks to give any form of direction, the Attorney General by law is required to do so in writing, and by law the Attorney General is required to gazette it.
Conservative
Pierre Poilievre Conservative Nepean—Carleton, ON
Could we get unanimous consent just to finish our round?
Conservative
Conservative
Pierre Poilievre Conservative Nepean—Carleton, ON
All right.
To further clarify Mr. Murphy's questioning, the additional independence that exists here is that the public can see the independence.
Right now, Mr. Wild, you have affirmed the overall independence of the prosecutorial function of the Attorney General's office, but we operate on a take-our-word-for-it basis. There is no way for Joe Citizen living in Halifax or Red Deer or Nepean to really know 100% what involvement the Attorney General has had in adjusting the behaviour or decisions of the prosecution within that department, whereas if we bring in the changes that sever the two offices and create the Director of Public Prosecutions, any direction that the Attorney General would want to give to the Director of Public Prosecutions would have to be done in writing and be made public, so that any involvement or political interference whatsoever would have to be known by Joe and Jane Public.
Is that not an accurate description of the distinction between the status quo and the DPP?
Senior Counsel, Legal Services, Treasury Board Portfolio, Department of Justice
Yes, I would agree with that. This is transparent in the sense that the mechanism is set out in law, available for anyone to see, and the directions would have to be gazetted.
Conservative
Pierre Poilievre Conservative Nepean—Carleton, ON
So right now, as a member of Parliament, I personally don't know to what extent an Attorney General is directing the decisions of the federal prosecutor and I have no way of knowing that. Conceivably, I guess I could file an ATI request to see if there is any written correspondence, but I really don't have any way of knowing, as a member of the public. But if we create a Director of Public Prosecutions, who takes the same staff and the same expertise, and we just separate it, we are ensuring that any political tampering whatsoever or any attempt by the executive branch of government to influence the decisions of the federal prosecutor will have to be made known to the public and be done in writing in a transparent fashion.
In this sense, independence comes from transparency. As Pat Martin has often said, transparency is the sunlight that acts as the detergent. We agree with him on that. That is the reason that we on this side believe there ought to be that transparency in every step of federal prosecution.
Those are some comments and technical clarifications that I wanted to make.
Is there anyone else on the Conservative side who would like to conclude our time? I see none, so that would be all from our side.
Conservative
NDP
Pat Martin NDP Winnipeg Centre, MB
Thank you, Chair.
I would like to come at a previous question from a different angle. I firmly believe that the single most important thing we can be doing here to improve transparency and accountability is the access to information reform component of this bill. It's no secret I was disappointed when I found that it was far less than we expected.
When you first began the task of putting Bill C-2 together, was there more in the access to information reform section?
NDP
Conservative
The Chair Conservative David Tilson
Well, it may be a fair question, but I've already commented that I get concerned about the asking of policy and technical questions. It may be a stretch to say that's a technical question. Mr. Wild has been doing very well—everybody's been at this, it seems—so we'll leave it up to him. But I take the position that that's a policy question.
Conservative
The Chair Conservative David Tilson
It is my ruling, but if Mr. Wild doesn't wish to answer it, he doesn't have to.
Senior Counsel, Legal Services, Treasury Board Portfolio, Department of Justice
The response I can give is that the Federal Accountability Act has measures in it pertaining to access to information reform. Other measures in the platform have been reflected in the action plan of the government. Those measures have been referred to the access to information, ethics, and privacy committee.
NDP
Pat Martin NDP Winnipeg Centre, MB
Thank you. Those of us in the trade call that “death by committee”.
My other line of questioning then is on the new powers for the Auditor General--the strengthening of the powers of the Auditor General. I'm particularly concerned that you're contemplating including any First Nation that doesn't have a self-governance agreement in place. There's only a handful of those, as you know. Technically, how does the government—