Information & Ethics Committee on Aug. 14th, 2008

[The Chair, Liberal, Paul Szabo]

We have one more vote. The amendment has carried. We now have the motion as amended, which is basically the same vote, that Mr. Goldstein be heard after the committee has completed its agenda items for the day.

(Motion as amended agreed to: yeas 6; nays 5)

[The Chair, Liberal, Paul Szabo]

That has carried, so we will hear Mr. Goldstein today as soon as possible after completing our other scheduled business for the day.

We'll move back to our witnesses. I apologize for the delay. The committee has agreed to allow you to make your opening statement. I invite you now to address the committee.

Please proceed.

[Chantal Proulx, Acting Deputy Director of Public Prosecutions, Public Prosecution Service of Canada]

Thank you, Mr. Chair and honourable members.

We have been asked by this committee to explain the role of the Public Prosecution Service of Canada, the PPSC, in general terms and specifically in relation to the Canada Elections Act.

Joining me from the PPSC is Don Beardall, who's a senior counsel with the headquarters counsel group.

The PPSC was created on December 12, 2006, with the coming into force of the Director of Public Prosecutions Act, which forms part 3 of the Federal Accountability Act. Essentially, the branch of the Department of Justice responsible for criminal prosecutions, then known as the Federal Prosecution Service, became a separate organization. The PPSC's core duties and responsibilities are largely the same as those of the branch of the Department of Justice that it replaced.

Our enabling legislation, the Director of Public Prosecutions Act, outlines our powers, duties, and responsibilities. We are responsible for initiating and conducting prosecutions within the jurisdiction of the Attorney General of Canada on behalf of the crown, and for advising law enforcement agencies in respect of investigations that may lead to prosecutions within our jurisdiction.

The establishment of the PPSC as a distinct organization did not change the way we operate. Prosecutors continue to prosecute across the country, and police and other investigative agencies continue to seek the advice of our prosecutors as they make decisions about their investigations. Prosecutors' decisions continue to be made free of improper or undue influence, unaffected by partisan or political considerations.

Our role as legal adviser to law enforcement agencies is distinct from the investigative role performed by the agencies themselves. The PPSC is not an investigative agency, and our prosecutors are not investigators. Prosecutors and investigators exercise separate and independent roles in Canada. Prosecutors do not initiate, direct, or supervise investigations. That is the role of the police or investigative agency. They are the ones who decide whether to commence an investigation, whom to investigate, how to investigate, and whether, at the end of an investigation, to lay charges. This separation between investigative and prosecutorial authority is well entrenched in Canadian law.

Once charges are laid by the police or an investigative agency, the prosecutor must decide whether to proceed with a prosecution or not. The test we use is as follows. The prosecutor examines the evidence to see whether there is a reasonable prospect of conviction. If there is, then he or she decides whether, in light of the whole of the surrounding circumstances, the public interest requires a prosecution to be pursued. If the prosecutor is not satisfied that the prosecution should proceed, he or she is required to put an end to it by withdrawing or staying the charges.

Committee members may know that in some territories and provinces of Canada there is a mechanism for prior approval before laying charges, which means that the prosecutor exercises discretion when the investigation is completed, but before charges are laid. The test is the same, except that we must be satisfied that it is met even before the police or investigative agency lays charges.

Although the investigative agencies and prosecution services perform separate and independent roles, they work in collaboration. For example, it is common for police and investigative agencies to seek the advice of prosecutors during an investigation. However, this does not mean that prosecutors assume any responsibility for the investigators' work: the investigation is still their responsibility. They are the ones who decide whom to investigate, how to investigate, and ultimately they decide whether a case will be submitted to a prosecutor.

A general point I wish to make is one that may be well known but is nevertheless worth repeating. Prosecutors in Canada act independently in the exercise of their prosecutorial discretion. The principle of prosecutorial independence is well established in Canada and, indeed, has been recognized by the Supreme Court of Canada as a constitutional principle.

Federal prosecutions and, I might add, those conducted by provincial prosecution services are conducted or ended as a result of decisions taken independently by crown prosecutors. These decisions must be grounded in an independent assessment of the evidence in conformity with the jurisprudence developed by the courts and subject to the publicly available guidelines contained in prosecutors' policy manuals. These guidelines clearly state what considerations are appropriate and which are inappropriate when making a decision about a prosecution.

I mentioned earlier that our core duties are largely the same as those of the branch of the Department of Justice that we replaced. One area, however, where we have jurisdiction to prosecute that the Department of Justice did not is in relation to Canada Elections Act offences. Until 2006, the prosecution of elections under the Canada Elections Act was the responsibility of the Commissioner of Canada Elections. The passage of the Federal Accountability Act changed all that. The Director of Public Prosecutions has been given jurisdiction in this area by provisions in our enabling legislation, the DPP Act, as well as by amendments to the Canada Elections Act.

With respect to Canada Elections Act offences, the DPP Act states that the director initiates and conducts prosecutions on behalf of the crown with respect to any offences under the Canada Elections Act as well as any appeal or other proceeding related to such prosecutions. These prosecutions are not under the jurisdiction of the Attorney General of Canada. This has important consequences. First, unlike all other prosecutions, the Attorney General cannot issue directives to the director in respect of Elections Act prosecutions, nor can the Attorney General assume conduct of such prosecutions. Second, the director is not required to report to the Attorney General on Elections Act prosecutions.

The Canada Elections Act maintains the separation between investigative and prosecutorial responsibility that characterizes our criminal justice system. Investigations are conducted by the Commissioner of Canada Elections, and the Director of Public Prosecutions decides whether to initiate prosecutions under the act. At the conclusion of the investigation, if the commissioner believes on reasonable grounds that an offence under the act has been committed, he may refer the matter to the director, who shall decide whether to initiate a prosecution. If the matter is referred to the director, the director applies the same decision-to-prosecute test as is applied in all other cases. If the director decides the test is met, the director shall request the commissioner to cause charges to be laid.

As with investigations in other areas, if requested, the PPSC may provide legal advice and assistance to Elections Canada during the course of its investigations to assist it in complying with the rule of law. The provision of advice and assistance during the investigative stage is not determinative of whether a prosecution will be proceeded with at the end of the investigation.

I'm pleased to have the opportunity today to explain the role of the PPSC in general terms and in Canada Elections Act matters. However, before concluding, I do wish to advise the members of this committee that I am unable to comment in any fashion about any investigation that may currently be under way. In addition, the PPSC has provided advice to Elections Canada and continues to do so, but I cannot discuss what advice may have been sought by investigators or what advice may have been provided by the PPSC to investigators. Solicitor-client privilege applies in these circumstances.

That concludes my remarks. Mr. Beardall and I would be pleased to answer any questions. Thank you.

[The Chair, Liberal, Paul Szabo]

Merci, Madame Proulx.

Mr. Lemieux has a point of order.

[Pierre Lemieux, Conservative, Glengarry—Prescott—Russell, ON]

Thank you very much, Chair.

I just wanted to comment and thank Madame Proulx for her opening statement. Her last sentence, though, raised a question in my mind. She said she could not respond—

[The Chair, Liberal, Paul Szabo]

Order, please.

[Pierre Lemieux, Conservative, Glengarry—Prescott—Russell, ON]

No, I'd like to finish my point of order. She—

[The Chair, Liberal, Paul Szabo]

Order, sir. Order, sir.

[Pierre Lemieux, Conservative, Glengarry—Prescott—Russell, ON]

Is there a separate side deal for these witnesses as well?

[The Chair, Liberal, Paul Szabo]

When the chair says “order”, this gentlemen here turns your mike off so that you will listen to what I have to say. I know you can turn it on, but sir, if you want to—

[Pierre Lemieux, Conservative, Glengarry—Prescott—Russell, ON]

Chair, you consistently cut people off and then you don't allow us to respond after you comment, so you never hear the full point of order.

[The Chair, Liberal, Paul Szabo]

Sir, you called the point of order, and it is not a point of order. You were giving opinion. It is debate. It is out of order. I'm moving on to the questioners.

Mr. Proulx.

[Pierre Lemieux, Conservative, Glengarry—Prescott—Russell, ON]

It has to do with procedure, Chair.

[The Chair, Liberal, Paul Szabo]

You did not say that. You said you wanted to comment on her last sentence and then you went on, “I want to ask you a question.” You cannot do that under a point of order, sir.

[Pierre Lemieux, Conservative, Glengarry—Prescott—Russell, ON]

I have a point of order on procedure. It has to do with this sub judice argument, in that you have afforded certain witnesses the ability to use the sub judice argument to not answer questions, but you have not afforded it to others. So far you've only said that Monsieur Mayrand had that privilege. I'm hearing today that there's another witness or group of witnesses that has the same privilege.

On procedure, have you afforded that privilege to witnesses other than Monsieur Mayrand?

[The Chair, Liberal, Paul Szabo]

Mr. Lemieux, are you finished? Tell me when you're finished, and then I'll speak.

[Pierre Lemieux, Conservative, Glengarry—Prescott—Russell, ON]

I'm finished. I'd just like an answer.

[The Chair, Liberal, Paul Szabo]

Your point of order is not a point of order. You're asking a question. You can't ask a question on a point of order. You know that.

I've already addressed this fully with the committee. Mr. Walsh, the law clerk of the House of Commons, has issued his opinion on this. It was circulated in both official languages to all honourable members, including you. You have the answer. You asked a question to which you already have the answer. Please don't do that, sir.

I want to move now to Mr. Proulx for questions.

[Marcel Proulx, Liberal, Hull—Aylmer, QC]

Thank you, Mr. Chair.

I want to welcome the witnesses this morning.

Mrs. Proulx, I enjoyed your comments on your role. Tell me if I'm understanding correctly that you are very independent, in the sense that you don't respond to a minister, the government, or a committee; you make your decisions and don't have to justify your decisions, except ultimately to the courts. Is that right?

[Chantal Proulx]

The Director of Public Prosecutions Act sets out that the Director of Public Prosecutions conducts prosecutions under and on behalf of the Attorney General. The decisions made by the DPP are independent and free of any partisan or political influence, but the DPP reports to the Attorney General in an annual report on the activities of his office. An exception is made within the DPP Act and the Canada Elections Act, the result of which is that the Elections Act prosecutions are removed from the area that the DPP reports to the Attorney General.

The DPP, in the area of Elections Act prosecutions, does not report to the Attorney General, nor can the Attorney General direct the DPP or assume conduct of an Elections Act prosecution.

[Marcel Proulx, Liberal, Hull—Aylmer, QC]

Thank you.

Because we're talking about an election, I assumed that my sentence included the words “Elections Act”. So as far as the Elections Act is concerned, you do not answer to a minister, the Attorney General, the government, or anybody except ultimately the courts.

[Chantal Proulx]

That's correct.

[Marcel Proulx, Liberal, Hull—Aylmer, QC]

Thank you.

I'm very tempted to ask what your involvement is in this particular case, but in view of the fact that you have a client-privilege relationship, I'm not going to ask you that.

If any wrongdoing is clearly established by this committee or other courts, what could be the potential—I'm not going to call them charges—results?

[Chantal Proulx]

To be clear on the process, the Elections Act investigations are conducted by the Commissioner of Canada Elections. At the conclusion of the investigation, should the commissioner feel that on reasonable grounds an offence has been committed, he would refer a prosecution brief to the Director of Public Prosecutions. That person would apply the two-pronged test, namely whether there's a reasonable prospect of conviction and whether it's in the public interest that a prosecution proceed.

If the director answers both of those questions in the affirmative, he will cause the commissioner to lay charges.

[Marcel Proulx, Liberal, Hull—Aylmer, QC]

Do you feel free to tell me if there's been any consultation between him and you, or your office, at this time?