Procedure and House Affairs Committee on April 28th, 2014

[The Chair, Conservative, Joe Preston]

I'd like to call us to order, please.

This is a meeting of the Standing Committee on Procedure and House Affairs. I'll remind the members that we are televised and in public today.

We have a bit of committee business to finish. When we last left you—it seems so long ago that I left all of you, my friends—we were on the amendment by Madam Latendresse. Our speaking list included Mr. Lamoureux, who was still speaking to the motion, and I had others on the speaking list.

Mr. Lamoureux.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Chair, because we have limited time this morning, I would like to see us defer this discussion until after we've heard from the presenters, at the very least.

[Some hon. members]

Agreed.

[The Chair, Conservative, Joe Preston]

All right. I'll have to go down the list.

Mr. Lukiwski.

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

I have no problem with that.

[The Chair, Conservative, Joe Preston]

Mr. Christopherson, you're on the list also, but we'll defer that list the way it is, until such time as it gets brought up again.

Thank you very much.

Monsieur Saunders, it's good to have you here this morning.

You have an opening statement for us. Go ahead, please. Then we'll get to questions.

[Brian J. Saunders, Director of Public Prosecutions, Office of the Director of Public Prosecutions, Public Prosecution Service of Canada]

Thank you for the invitation to appear before you today as you continue your consideration of Bill C-23.

Through the clerk, I've provided all members of the committee a brief overview of the Office of the Director of Public Prosecutions. I do not propose to take up the committee's time by going over this background information now. I'll get right to the matter at hand.

The only proposal in Bill C-23 that affects the Public Prosecution Service of Canada is the transfer to the PPSC of the position of Commissioner of Canada Elections and of the commissioner's staff. While I have concerns in respect of certain aspects of the proposed transfer, I believe that it could be made without affecting the PPSC's ability to carry out its prosecution function independently of the investigative work carried out by the commissioner.

I say this for three reasons.

First, prosecutors are bound to respect the constitutional principle of prosecutorial independence. This means that we must make our decisions to initiate or continue a prosecution independently. This fundamental principle is ingrained in and followed by all prosecutors. It is part of the culture of prosecutors and will continue to be respected by prosecutors.

Second, Bill C-23 keeps the investigative and prosecutorial functions separate. The bill does not in any way give the DPP the authority to conduct investigations under the Canada Elections Act. In fact, the bill is clear that the commissioner alone has that authority and that he or she is to conduct the investigations independently of the DPP. Therefore, prosecutors would not be able to initiate or direct an investigation. While prosecutors would be able to provide advice to the commissioner during an investigation, they would do so only if the commissioner asks.

Third, although the commissioner would be housed in the PPSC and the employees who work for him would become PPSC employees, the commissioner and his employees would form a separate and autonomous unit within the PPSC. The commissioner, not the DPP, is identified as the deputy head of this unit for the purposes of hiring staff and of managing all human resources.

Let me now turn to the concerns I have with respect to two aspects of the proposed transfer. The concerns flow from provisions in the bill that might create the perception that the DPP is too close to the investigative function to conduct the prosecution function independently.

The bill proposes that the DPP have the authority to hire the commissioner and to dismiss him or her for cause. This authority could be seen as giving the DPP a degree of control over the investigative function. Another concern relates to the payment of investigative expenses. The bill provides that expenses incurred by the commissioner shall be paid out of the consolidated revenue fund on the certificate of the DPP. This authority may also give rise to a perception that the DPP has a degree of control over investigations.

These two concerns must be viewed, however, in the context of the safeguards of prosecutorial independence that I mentioned at the outset and against administrative measures that could be put in place to enhance the separation of the two functions. So viewed, I believe that the perception of prosecutorial independence would mirror the reality of that independence.

Finally, I should note that I also had a concern with respect to the original proposal in Bill C-23 regarding the annual report. The proposal was to amend the DPP Act and require the DPP to report on the activities of the commissioner. This may have created a perception problem similar to the ones I mentioned just now. Among the proposed changes to Bill C-23 announced last Friday is one that would address this concern. Under it, the Commissioner of Canada Elections would prepare his or her own report.

I have no comments on the other measures proposed in the bill, as they do not affect the PPSC's operations.

Thank you. I'd be pleased to answer your questions.

[The Chair, Conservative, Joe Preston]

Thank you very much.

We will go to our seven-minute round of questions.

Mr. Lukiwski, you're first, please.

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

Thank you very much.

Thank you, Mr. Saunders, for being here. Thank you for your opening statement.

Just to be clear—I want to make sure that we set the table here—under the proposed legislation, as was the case with the former legislation, only the commissioner of elections can determine whether or not he wishes to recommend to your office that prosecution be engaged in. Is that correct?

[Brian J. Saunders]

That is correct.

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

But you make the final decision? In other words, if a recommendation were forthcoming from the commissioner of elections, could your office examine the recommendation and then determine not to proceed?

[Brian J. Saunders]

That is correct.

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

That has always been the case, and that remains the case under the new legislation?

[Brian J. Saunders]

That's always been the case, and that is the case, I might add, for all investigations under any legislation.

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

The reason I wanted to clarify it is that you mentioned that you had some concerns in a couple of different areas about the perception.

[Brian J. Saunders]

Yes.

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

If, however, it is clear in the legislation, both the current legislation and the proposed legislation, that the authority and decision to proceed is yours and yours alone, would that not go a long way to clearing up any misconception about the independence of both your office and that of the commissioner of elections?

[Brian J. Saunders]

As I mentioned in the opening statement, I'm satisfied that on balance an informed person looking at the entire bill, and at the measures that are being introduced, realistically and practically would conclude that the perception is very low. However, the perception is important to me in that it's important to maintain the confidence of the public in the administration of justice. It's not only necessary that I act independently but that I also be seen as acting independently.

The hiring and firing provisions caused me some concern at the outset, because it might be perceived that if I'm hiring the person who is to be the commissioner, when it comes time for me to assess the results of that person's investigation in a fair, objective, and independent fashion, someone might say, well, you're going to favour someone whom you've hired. Likewise, when it comes to the firing power, there might be a perception among some that if I can fire for cause, which would include the ability to fire for incompetence, I have some power to, in a sense, oversee the type and quality of the investigations.

Now, when you take these considerations and measure them against the safeguards I mentioned at the outset, I believe this perception is not well founded. Nevertheless, I thought this committee should be aware that there is a possibility that some might have that perception.

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

I appreciate your candour, but again, let's be clear that it's only a perception, and you say the threshold of that perception is probably pretty low. Your appearance here today, I think, will go a long way to assuring Canadians who might have had that perception that there really, truly will be continued independence in both your office and the commissioner of elections.

Let me try to home in on something that you just mentioned, the ability to dismiss the commissioner of elections with cause. You mentioned incompetence. Obviously, I suppose in almost any job, if you were to dismiss someone on the basis of incompetence, that would be considered to be a fair and normal proceeding. But wouldn't the threshold to try to prove incompetence be extremely high in this case? The legislation proposes that the commissioner of elections be hired for a seven-year term and can only be dismissed with cause. The intent of the legislation is to assure Canadians, and to in fact give the commissioner of elections a solid measure of independence without interference from any government.

Could you explain exactly what in your mind the threshold of incompetence or cause for termination would be? How egregious would the actions of the commissioner of elections have to be before he could be dismissed?

[Brian J. Saunders]

Let me give you a bit of background to that.

“For cause” would include incompetence, conflict of interest, misconduct, misbehaviour, and things of that nature. The bill also proposes or states that the commissioner would conduct his investigations independently. So I won't have the ability to see what he's doing with respect to many investigations. I only get the investigations that he concludes include evidence to show reasonable grounds to believe an offence has been committed. They get referred to me. For a portion of his work, the portion that results in compliance agreements, the portion that results in no conclusion that it should be referred to me, I don't get to oversee that at all; I never see it unless one of our counsels provided advice during the course of the investigation.

So when can I exercise the power to dismiss for cause? It would have to be in relation to a case that had been brought to our attention where, for example, the investigation had not just gone totally off the rails but had been an improper investigation, in our estimation.

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

Wouldn't that even further strengthen the independence of the commissioner of elections? In other words, since you don't have the ability to see what he may be doing in his work that does not result in a recommendation to your office, would that not be even further assurance that he has complete independence in his own affairs?

[Brian J. Saunders]

Yes, it would, but I just want the committee to realize that in giving me the power to dismiss for cause, I will not have the ability at all to oversee the work the commissioner does in respect of his investigations.

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

But that's my point.

[Brian J. Saunders]

Yes.

[Tom Lukiwski, Conservative, Regina—Lumsden—Lake Centre, SK]

That's my point, that his office therefore is completely independent, because you do not see what he is doing in the investigations that don't result in a recommendation to prosecute. If you had the ability to observe or comment on all of his investigations, even those that don't result in a recommendation to prosecute, one perhaps could then say that you have your tentacles into his office. But because you are not seeing that, but only a small portion of what he does, that has to assure Canadians that he has complete independence, does it not?