Information & Ethics Committee on Aug. 14th, 2008

[The Chair, Liberal, Paul Szabo]

Thank you. That's not a point of order, it's a matter of debate.

I would like to remind the committee members that these witnesses were requested by the committee, and the committee list was approved. That's why they're here. They also fully understand and explained in their opening statement, which was approved to be made by this committee, that solicitor-client matters may arise and they would certainly invoke that, and it must happen.

With regard to whether or not they refuse to answer a question on the basis that it may compromise or prejudice some other issue, they will advise us and be specific as to the nature of why they can't do that, and the committee will have to decide whether or not they want to force the question. But I think we understand where this is going.

That said, it is the committee's decision, whether or not.... The sub judice convention is a voluntarily imposed convention by them.

Mr. Goodyear, again, just as Mr. Tilson was doing yesterday in pleading the case for the witness not to answer a question, as I referenced under Marleau and Montpetit yesterday, actually is interference with witnesses. I think the witnesses are perfectly capable of dealing with issues that come up that may cause them some concern. They will raise it themselves. They're in the business; I'm sure they know what to do.

That said, our next speaker is Madame Lavallée.

[David Tilson, Conservative, Dufferin—Caledon, ON]

Mr. Chairman, I have a question.

[The Chair, Liberal, Paul Szabo]

Madame Lavallée.

[Carole Lavallée, Bloc, Saint-Bruno—Saint-Hubert, QC]

Thank you, Mr. Chair.

Welcome to this sitting of the Ethics Committee. As you can see, the Conservatives have very elastic ethics. They are not very polite to our witnesses, and we apologize.

Mrs. Proulx, you gave us a long presentation in English and I noticed that you have a document in front of you. Could you give it to the clerk so he can distribute it to us?

You will understand that your presentation was very specialized, and while the translation service in the House is excellent, there were bits I missed. So I would like to review the document, when it has been translated.

I will tell you that I am not a lawyer, so my questions may seem naive to you, but I would ask that you indulge me a little.

For example, Mr. Goodyear said that you were legal counsel to Elections Canada. Is that correct?

[Chantal Proulx]

To answer your first question, a copy of my opening remarks was given to the clerk earlier for distribution to committee members, if they wish.

I think it is not correct to describe us as counsel for Elections Canada in the traditional sense of the word, as it is understood in the solicitor-client context. Let me explain. The mandate of the Public Prosecution Service of Canada is governed by the principle of independence. In the course of an investigation, it is our job to provide advice to the investigative agencies, but that advice is in no way intended to steer the investigation in one direction or another, or even to recommend particular steps in the investigation. Our job is to assist the investigators. I can give you an example.

An investigator may come to see one of our Crown counsel to request assistance in preparing a search warrant, for example. There are various search warrants in the Criminal Code, and each section of the Criminal Code prescribes certain obligations that must be met when an application for a warrant is made to a judge. As well, section 8 of the Canadian Charter of Rights and Freedoms guarantees protection against unreasonable search or seizure. There is extensive case law under section 8 of the Charter dealing with the definition of an unreasonable search.

Our role in that context would be to help an investigator present all of the facts that are relevant to the application. That might include facts that do not support the warrant application. Then they have to be set out in a document so the judge can make an independent decision, as to whether or not the warrant should be granted.

So the role involves providing assistance, which may include legal advice on aspects that may not be entirely consistent with the case law. But it is not a solicitor-client relationship in the traditional sense, which consists more in a lawyer receiving instructions from the client and acting on those instructions.

[Carole Lavallée, Bloc, Saint-Bruno—Saint-Hubert, QC]

Do you only give advice, or do you take action in some regards?

[Chantal Proulx]

Some sections of the Criminal Code call for active participation. I would offer the example of wiretap applications. the application has to be made by Crown counsel. So in some cases there is an overt act, yes.

[Carole Lavallée, Bloc, Saint-Bruno—Saint-Hubert, QC]

If I understand correctly, Elections Canada is responsible for administering the Act, the Elections Commissioner may conduct investigations, and when he has completed his investigation, he submits it to you so you can help him prosecute. Is that it?

[Chantal Proulx]

It isn't helping to prosecute. Rather, when the Commissioner of Elections Canada has completed his investigation, he submits the investigation file to us with a request that the director initiate a prosecution.

[Carole Lavallée, Bloc, Saint-Bruno—Saint-Hubert, QC]

The Chief Electoral Officer initiates a prosecution.

[Chantal Proulx]

The Director of Public Prosecutions of Canada initiates a prosecution. At that point, the Director reviews the file and if he decides that the test for prosecuting has been met, he asks the Commissioner of Elections Canada to have charges laid. From that point on, the prosecution is handled entirely by the Director of the Public Prosecution Service of Canada.

[Carole Lavallée, Bloc, Saint-Bruno—Saint-Hubert, QC]

Do you get a lot of requests of this nature from the Chief Electoral Officer in a year, for prosecutions?

[Chantal Proulx]

We were assigned the task of prosecuting under the Elections Act a little over 18 months ago, in December 2006. Since December 2006, we have received a few cases.

[Carole Lavallée, Bloc, Saint-Bruno—Saint-Hubert, QC]

How many is "a few"?

[Chantal Proulx]

Charges were laid in one previous case by the Director of Public Prosecutions.

[Carole Lavallée, Bloc, Saint-Bruno—Saint-Hubert, QC]

There has been one case. Is that case known? Do we know what it is about? Can I ask you which one it is?

[Chantal Proulx]

It is a case that came from Toronto last year. It involved an MP. I'm sorry, his name escapes me at the moment.

[Carole Lavallée, Bloc, Saint-Bruno—Saint-Hubert, QC]

Can you provide it for us later?

[Chantal Proulx]

Certainly.

[Carole Lavallée, Bloc, Saint-Bruno—Saint-Hubert, QC]

Can I also ask you...

That's it?

[The Chair, Liberal, Paul Szabo]

That was la dernière question, and you asked it.

Mr. Tilson.

Oh, I apologize; I've skipped over. It's Mr. Martin, and then Mr. Tilson.

[Pat Martin, NDP, Winnipeg Centre, MB]

Thank you, Mr. Chair.

And thank you, witnesses. What you've told us today reinforces in my mind the importance of the study that our committee has undertaken, if we're going to get to the truth about this election financing arrangement prior to the next federal election.

As I understand you, we're about three quantum leaps away from this matter ever being resolved in the courts. The only action currently before the courts is the one filed by the Conservative Party asking for clarification or challenging Elections Canada's interpretation of the Elections Act.

At this point, from what you've said, the Commissioner of Elections has yet to decide whether, on reasonable grounds, an offence against the act has in fact been committed. He's not finished his determination of that point. Is that correct?

[Chantal Proulx]

All I can speak to is whether something has been delivered to our office, and I can tell you that it hasn't.

[Pat Martin, NDP, Winnipeg Centre, MB]

I think we can assume, then, that he has yet to decide whether an offence is yet to be committed. That's one hurdle we have to get past.

Second, if he does believe that, then the commissioner “may” refer the matter to the Director of Public Prosecutions, because he goes through his own test, I presume, whereby if he has no idea that this could ever be successfully prosecuted or that it's in the best interests of Canadians, he may decide that in his own opinion an offence has occurred but he's not going to submit it to your office.

And then third, you have to decide, through those same tests, I suppose, whether it warrants prosecution.

We're still three fundamental steps away from trying the Conservative Party for election finance violations. My worry is that we're only now convicting and prosecuting and putting in jail Liberals who were involved with the sponsorship scandal, and this is three or four years later.

My question is about timeframes. With a complex case like this, what would be a realistic timeframe, once you get it into your hands and decide that yes, it's worthy of prosecution? Given the court agendas today, could it be a year before it's heard, or eighteen months, or two years?

We've seen the way witnesses disappear too. It could be that you'll have a very uncooperative group of witnesses, as in those Hells Angels trials where witnesses are disappearing all the time. Those 11 principal actors of the Conservative Party who snubbed their noses at our summonses may in fact snub their noses at summonses issued by the federal courts too.

Could you give me, in your professional opinion, a realistic timeframe for a complex prosecution like the one you may be asked to undertake?

[Don Beardall, Senior Counsel, Public Prosecution Service of Canada]

Perhaps I can answer that, Mr. Martin.

The reality is that, no, I can't give you a single realistic timeframe.