Procedure and House Affairs Committee on April 28th, 2014

[Brian J. Saunders]

My point in raising this is that someone could look at the statute and say that the DPP has the authority to hire and dismiss the commissioner for cause. That would suggest to many, or to some at least, that I have some power of oversight over how investigations are conducted. Other provisions of the statute make it clear that I do not have authority over the investigations. Those are to be conducted independently of me.

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

How much time do I have, Chair?

[The Chair, Conservative, Joe Preston]

You are done. Thank you, Mr. Lukiwski.

We'll go to Mr. Scott, please, for seven minutes.

[Craig Scott, NDP, Toronto—Danforth, ON]

Thank you, Mr. Chair.

Thank you, Mr. Saunders, for coming. I hope we can make my first few questions, and answers, fairly short.

First, is it usual for an investigative unit like the commissioner's to actually be physically and organizationally located in the ambit of the Office of the Director of Public Prosecutions? Is it a normal thing to have an investigative unit, and how many are there?

[Brian J. Saunders]

This will be the first time, in our experience, that this is here.

[Craig Scott, NDP, Toronto—Danforth, ON]

Okay. Thank you.

This being the first time this has happened, were you consulted or involved in the decision-making on how that move should be structured?

[Brian J. Saunders]

No, I wasn't consulted.

[Craig Scott, NDP, Toronto—Danforth, ON]

Thank you.

Are you aware of any report or ongoing discussion in sort of justice or enforcement circles where there were active recommendations from some quarter to move the Commissioner of Canada Elections to the Office of the DPP?

[Brian J. Saunders]

No, I'm not.

[Craig Scott, NDP, Toronto—Danforth, ON]

Okay. Thank you.

In your 2012-13 annual report, you write with regard to the Public Prosecution Service of Canada the following:

The PPSC prosecutes charges of violating federal law laid following an investigation by a law enforcement agency. The PPSC is not an investigative agency and does not conduct investigations.

This relates to what we just talked about, that it's unusual or unheard of to have a unit within your office. You continue:

The separation of law enforcement from the prosecution function is a well-established principle of the Canadian criminal justice system.

I realize that's a functional statement. It doesn't necessarily mean you have to be physically on the other side of the city. I'm not getting at that. But the functional separation is stated very clearly in your report. Given this statement, it would seem—to me, anyway—that the movement of the commissioner to your office and subsequent DPPs' offices would need to have some kind of a special rationale or justification.

I want to start with the first one: necessity. Is there anything about how you understand how the commissioner has worked, including working with the office of the officer of Parliament, the Chief Electoral Officer, or anything that you know of that necessitates the move of the commissioner to your office? Is it a necessary move?

[Brian J. Saunders]

I'm not in a position to answer that. It's a policy choice of the government, and ultimately of Parliament, to decide where to place the commissioner of elections. My role in coming here today was to describe to you what operational impacts that move might have on the organization that I head.

[Craig Scott, NDP, Toronto—Danforth, ON]

Then I presume you'd probably not be able to help me with the next question, either, on another rationale, which would be whether or not the move is a positive benefit to investigations.

[Brian J. Saunders]

Again, that's a policy choice.

I'd also point out that in terms of the investigations, we keep some distance from investigations. That is the responsibility and will remain the responsibility of the Commissioner of Canada Elections.

[Craig Scott, NDP, Toronto—Danforth, ON]

I appreciate the position you're in with regard to answering questions along these lines.

I'd just remind the committee that the previous commissioner, Mr. Corbett, and current Commissioner Côté gave quite detailed testimony on what would be lost by virtue of the separation, the organic separation.

Subsequent questions will probably go into those, but I'm not sure you'll feel all that qualified to help on the answer. It's important to know that just because you're doing your best, or will be able to accommodate the move, it in no way is evidence that it's a necessary move.

Here's something that I think you probably can answer. You know that of course cooperation between investigators and prosecutors is essential even though the functions are separate. Has the kind of cooperation that has occurred between the commissioner and the DPP's office been hindered in any relevant way by the fact that the commissioner's office is not within your office? Has it ever been hindered?

[Brian J. Saunders]

We have provided the same type of pre-charge advice to the commissioner of elections, and we provide it to other regulatory agencies.

[Craig Scott, NDP, Toronto—Danforth, ON]

So the short answer is that it sounds as though it is at least nothing different from your relationship with any other law enforcement agency.

Let me take you through three provisions, one of which you did mention. I'll just ask whether this isn't going to be some kind of a hindrance on your relationship with the commissioner.

First of all, Bill C-23 expressly prohibits you from consulting with the Chief Electoral Officer with respect to an appointment of the commissioner. So any knowledge the Chief Electoral Officer may have with respect to either criteria or candidates would be blocked from your view. Are you willing or able to answer on whether such a ban is helpful to your ability to appoint the DPP?

[Brian J. Saunders]

Again that's a policy choice being made by the government and ultimately by Parliament.

[Craig Scott, NDP, Toronto—Danforth, ON]

Well, Parliament hasn't yet made that choice—

[Brian J. Saunders]

I can say that it will have to be made by Parliament.

[Craig Scott, NDP, Toronto—Danforth, ON]

—but the government certainly has.

With regard to firing for cause, you've already indicated and you've been very articulate as to why perceptions matter in the administration of justice. Former Auditor General Fraser specifically talked about the perception problem as being real. It has nothing to do with either you or future DPPs actually not being independent. The dismissal procedure does allow for you to fire with cause. Would there be any problem if a policy choice were made providing for the same dismissal procedure for the commissioner as, for example, now exists for the Chief Electoral Officer, which is carried out by the Governor General at the joint request of the House and the Senate?

[Brian J. Saunders]

Again you're asking me policy questions that are just beyond what I can comment on.

[Craig Scott, NDP, Toronto—Danforth, ON]

But you would have no problem if that power were taken away from you?

[Brian J. Saunders]

I'll live with whatever powers Parliament decides to give me.

[Craig Scott, NDP, Toronto—Danforth, ON]

Great.

Here's one thing, though. You would be concerned about the quality of the pool that you would have to draw from. The fact of the matter is that you would be prohibited from appointing to the position of commissioner anybody who has ever temporarily or permanently worked for Elections Canada. Would you say that would narrow the pool?

[Brian J. Saunders]

In terms of how this would take place, I indicated that we couldn't put in place administrative measures to address that. In terms of hiring, I think we would consider adopting a procedure so that it would be very transparent. It would be open. It would be a position that would be available for all Canadians to apply for. Presumably there would be Canadians who worked for other enforcement agencies or for provincial election agencies who might express an interest in obtaining the position.