Bill C-2 (39th Parliament, 1st Session) Committee on June 13th, 2006

[The Chair, Conservative, David Tilson]

Thank you, Mr. Wild.

Ms. Proulx.

[Chantal Proulx, Senior Counsel, Legal Services and Training, Office of the Commissioner of Review Tribunals Canada Pension Plan/Old Age Security]

The proposed amendment would essentially do two things. In the first instance, it would introduce the concept of the DPP informing the Attorney General on interventions. As previously drafted, the requirement on the part of the DPP to inform was limited to prosecution, so it broadens it in that fashion.

It also introduces the concept of important questions of general interest, again, the intent being to provide for broad and general duty on the part of the director to inform the Attorney General of important issues.

[The Chair, Conservative, David Tilson]

Mr. Owen and then Ms. Jennings.

Mr. Owen.

[Stephen Owen, Liberal, Vancouver Quadra, BC]

Thank you, through you, to our experts.

I'm just curious. I support the obvious intent of the amendment, but I'm wondering if you could describe to me the difference between “general” and “public” when applied to interest, and why, if we're putting in the title “GENERAL OR PUBLIC INTEREST”, that amendment is not also included in the body, so that it would be of “general or public interest”.

[Chantal Proulx]

Proposed section 14 deals with interventions by the Attorney General and refers to a “public interest” test. That test is currently in the common law as the basis for an intervention. In fact, the amendment merely codifies the existing practice.

Proposed section 13 was meant to craft, as broadly as possible, a definition of what the DPP ought to inform the Attorney General about. It was felt that the term “general interest” at least included public interest.

[Stephen Owen, Liberal, Vancouver Quadra, BC]

Okay, I would like to continue with that. I understand the meaning of public interest, as you've described it. I don't understand what general interest would include beyond that. So if this proposed section on the Director of Public Prosecutions goes through, might it not introduce some uncertainty into when a report was required or when it wasn't?

[Chantal Proulx]

As the honourable member points out, the public interest test is one that is known in our Canadian jurisprudence. General interest is a somewhat less common expression. In terms of statutory interpretation, I think we would attach its plain and ordinary meaning. It was felt that this expression was to be construed as least as broadly as public interest, if not more broadly. If one were to introduce the notion, for instance, of the DPP having his or her own private interest.... The intent of the section was to craft a broad and general duty to inform, and that's the reason the choice was made.

[Stephen Owen, Liberal, Vancouver Quadra, BC]

I'm trying to get a little more precision on this. The National Post has an editorial raising, in a very public way, a concern with respect to a prosecution policy that the director is meaning to implement. Would that be of general interest?

[Chantal Proulx]

I would think so.

[Stephen Owen, Liberal, Vancouver Quadra, BC]

I suppose the Attorney General would already know about it if he had read the The National Post.

Thank you.

[The Chair, Conservative, David Tilson]

Ms. Jennings.

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

The original text of Bill C-2, at line 14, page 104, states: "Issues of General Public Interest", whereas line 16 of the English version states:

“that raises questions of general interest”.

Since these are two different concepts, am I to understand that the purpose of part of the government amendment is to correct the different use in the English text and the French text of the words "general interest"?

[Chantal Proulx]

The proposed amendment adds the word "important" to the English version and is designed to correct what might be interpreted as a lack of concordance between the English and French versions.

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

Notwithstanding the explanation you've just provided to my colleague Mr. Owen on the difference between "general interest" and "public interest", the words "raises important questions of general interest" in the English version become "soulevant d'importantes questions d'intérêt général" in the French version.

Does the case law define the expression "important questions of general interest"? Otherwise, are there any case law tests for determining what is an important question of general interest?

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

Personally, I don't know of any case law that would help us distinguish the terminology used here. It's more a matter of semantics.

It must be understood that the purpose of these amendments is to enable the Attorney General of Canada, under the provisions of Bill C-2, to transmit or give power to the Director of Criminal Prosecutions to undertake criminal prosecutions under federal jurisdiction. At the same time, the Attorney General of Canada remains responsible for those prosecutions.

So there are two entities that have the same power. There's the Director of Criminal Prosecutions, who uses it every day in the vast majority of cases, and the Attorney General, who uses it sometimes, if he wishes, to give written instructions or as an intervener himself. These interventions or written instructions must be published in the Canada Gazette. So there are two interests.

The purpose of the clause is to ensure complete communication between the two entities that have the same powers, to avoid situations of conflict in prosecutions, if, for example, the Attorney General is not informed of a specific problem that he would deem to be of public interest, while the Director of Criminal Prosecutions would maintain the perception that it is not a problem of public interest. We want to avoid situations in which prosecutions would be stopped or conducted when the Attorney General would have liked to be informed in order to intervene publicly and to publish that intervention in the Canada Gazette.

Examples may be numerous or scarce. My experience as a prosecutor leads me to believe that the prosecutor doesn't always—and this isn't a criticism—have a political sensibility in certain cases. The Attorney General would like to be informed so as to be able to tell the House of Commons and the public what has happened. The idea is thus to ensure this communication between the two entities.

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

I understand very well. However, how will the director know whether it is a question that he can raise with the Attorney General if he has nothing to guide him?

[Michel Bouchard]

I'm quite confident that this assembly of parliamentarians can ratify the appointment of someone who has good judgment. That individual will subsequently be well informed by the various attorneys who assist him in his duties. There are approximately 400 attorneys in the country who work for him and who will have to examine police reports every day to determine whether there are grounds to institute a prosecution following events that have occurred. These people are professionals, they have good judgment and they are able to bring a case of general interest to the attention of the Director of Criminal Prosecutions. The director will analyze the situation and determine whether, under these clauses, he should inform the Attorney General of it.

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

Thank you very much.

[The Chair, Conservative, David Tilson]

All those in favour of G-40.3.

(Amendment agreed to [See Minutes of Proceedings])

[The Chair, Conservative, David Tilson]

We're going to move to amendment G-40.4, which is page 115.3, and 115.2 of course was the French version. It's a government amendment.

Mr. Poilievre.

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

I move amendment G-40.4.

Members will note that on clause 123, government amendment 40.4 replaces lines 21 and 22 on page 104, with the following:

interest, the Attorney General may, after

So to put it into context, if you go to lines 21 and 22:

14. When, in the opinion of the Attorney General, proceedings raise questions of public interest, the Attorney General may, after notifying the Director, intervene in first instance or on appeal.

I invite some commentary from our panel of experts.

[Chantal Proulx]

The intent of this amendment is to remove the words “beyond the scope of those usually raised in prosecutions” from the English, and from the French,

"of general interest beyond the scope of those usually raised in prosecutions".

In response to a question from honourable member Owen, I advised the committee that the current test for interventions is a public interest test. It was felt that these words were unnecessary and could unduly limit the ability to intervene that is currently enjoyed by the Attorney General.

[The Chair, Conservative, David Tilson]

All those in favour of amendment G-40.4, please signify.

(Amendment agreed to)

[The Chair, Conservative, David Tilson]

We now move to clause 139 and an amendment that is on page 118. That is a Liberal amendment.

Mr. Owen, you could move that, please.

It is on page 118; it is amendment L-14.

[Stephen Owen, Liberal, Vancouver Quadra, BC]

There's a lot of paper here. Between the page numbers in the bill and page numbers here and numbers....

Mr. Chair, the purpose of this amendment—