Justice Committee on May 17th, 2007

[The Chair, Conservative, Art Hanger]

Order, please.

I call the Standing Committee on Justice and Human Rights to order. It is Thursday, May 17, 2007. Today we have our discussion on the main estimates for 2007-2008 and vote 35, under justice, for the Office of the Director of Public Prosecutions. The estimates were referred to the committee on Tuesday, February 27, 2007.

With us this morning we have several members from the Office of the Director of Public Prosecutions: Mr. Brian Saunders, acting director for public prosecutions; Ms. Chantal Proulx, deputy director of public prosecutions; and Mr. Marc Fortin, general counsel and director, corporate services division.

I understand, Mr. Saunders, you will be the person presenting this morning. The floor is yours, then, sir.

[Brian Saunders, Acting Director of Public Prosecutions, Office of the Director of Public Prosecutions]

I would like to thank you for inviting us, Ms. Proulx, Mr. Fortin and myself, a second time in order to explain our main estimates for 2007-08.

I'm hopeful we'll be able to answer all your questions this morning.

With that, I'll leave the floor open to you to ask your questions.

[The Chair, Conservative, Art Hanger]

That was short and sweet.

Let's begin with Mr. Ménard.

[Réal Ménard, Bloc, Hochelaga, QC]

Thank you, Mr. Chairman.

I asked that you appear this morning for three reasons in addition to your budgets. I read the documents that the clerk sent us.

I understand that, usually, when there is an offence in the Criminal Code, without exception, it is the provinces that lay the charges. The federal government lays charges for certain acts, when there has been a violation of the regulations. In your documents, you give the example of natural resources, fisheries, the Controlled Drugs and Substances Act and criminal offences. In some provinces where the RCMP has responsibility, the federal government may lay charges.

I'm trying to understand why it is desirable to have a Director of Public Prosecutions and a specialized service and how that will change things. According to the minister's explanation, some $100 million is being taken from the department's budget in order to set up a separate service. I even learned that a letter had been sent to the party leaders asking them to delegate someone to select the new Director of Public Prosecutions. I would like you to explain to us why it is desirable to create such a branch and have a director. How will that change the way things operate and how we administer justice in the area of federal government prosecution?

[Brian Saunders]

I will begin by telling you what we do. You mentioned that we prosecute under the Controlled Drugs and Substances Act. Section 2 of the Criminal Code, in addition to defining the role of the Attorney General, indicates the sections where we are the Attorney General. In a case of fraud, for example, we are competent to hear proceedings under sections 380 and 382. We can also do this for the financial market. We can do this in other instances as well. In northern Canada, in the territories, we are responsible for criminal prosecution.

Nevertheless, you are right in saying that under all other laws, with the exception of the Criminal Code, we institute criminal proceedings. There are about 50 federal laws where we act as the Attorney General.

[Réal Ménard, Bloc, Hochelaga, QC]

I know, after reading the documents, but there has always been a prosecution branch. I do understand that it is the federal government that has to institute proceedings. However, since the government wants to appoint a Director of Public Prosecutions, and given that it wants to take more than $100 million from the budget in order to set up something separate, I am trying to understand what the operational benefits will be. What will that change in the federal government's role as a prosecutor? We are in a situation where things have improved. How will having a Director of Public Prosecutions change things? I do not know who this person will be: we have not yet selected the person who will be in this position. I am trying to understand what more this will give us.

[Brian Saunders]

We are doing the same work as the former Federal Prosecution Services. Nova Scotia and, just recently, Quebec, established a Director of Public Prosecutions position. This is a decision that the legislative assemblies of these two provinces made. Here, in Canada, it is important that criminal prosecutions be transparent. When Minister Toews and Minister Nicholson appeared here, they said that the bill was not presented in order to remedy an existing problem but rather to ensure that there will be no problems in the future. That is the purpose of the act.

[Réal Ménard, Bloc, Hochelaga, QC]

But what problem do we want to remedy? Could you give us any examples of political meddling in prosecutions?

[Brian Saunders]

No, not at the federal level. I think that in Nova Scotia, it was decided in 1990, following the Marshall case, to set up the office of the Director of Public Prosecutions. In Quebec, I don't think that the same problem occurred, but this decision was made all the same. This is a practice one finds just about everywhere throughout the world, for example in England, Australia, Ireland and in all of the States—

[Réal Ménard, Bloc, Hochelaga, QC]

But what will its role be?

[Brian Saunders]

The director is the Attorney General's delegate. The director will make the decision, among other things, whether or not to institute or uphold prosecutions and to appeal.

[Réal Ménard, Bloc, Hochelaga, QC]

Who is making these decisions right now?

[Brian Saunders]

The Assistant Deputy Attorney General or, in some instances, the attorneys themselves used to make such decisions.

[Réal Ménard, Bloc, Hochelaga, QC]

It would seem to me that the provinces, as the prosecutors, have to deal with a much higher volume of offences than does the federal government.

[Brian Saunders]

Our workload is quite significant nevertheless. For the year 2005-06, our attorneys were working on just under 50,000 cases. For Canada, that is quite a high figure.

[Réal Ménard, Bloc, Hochelaga, QC]

I find it reassuring to know that this is what is done in other countries. I confess to not really understanding the logic behind this at first glance. Regardless of what the case may be, this is why we invited you here this morning.

Is it ultimately the responsibility of the Attorney General of Canada to institute legal proceedings or order proceedings to be halted?

[Brian Saunders]

Ultimately, yes, but according to the legislation, this responsibility now lies with the director. Should the director want to intervene in a case, he must express his intent in a written notice, which must then be published in the Canada Gazette.

[Réal Ménard, Bloc, Hochelaga, QC]

Let's suppose that the Attorney General, namely the Minister of Justice, wants to intervene in a particular file. I do not want to bring up any bad memories whatsoever, but let's use the example of the sponsorship scandal. If there had been a director of prosecutions and he had not wanted to lay charges against Mr. Lafleur or any other individuals, whereas the Minister of Justice had wanted to intervene, would he have had to prepare a notice and had it published in the Canada Gazette?

[Brian Saunders]

Yes.

[Réal Ménard, Bloc, Hochelaga, QC]

My colleagues may be able to confirm this, but I was told that the Prime Minister had written the party leaders in order to advise them that a committee would be struck and delegates would be responsible for hiring the new director of prosecutions. Are you aware of that?

[Brian Saunders]

No, our service is not involved in choosing the director. The Department of Justice is managing this process.

[Réal Ménard, Bloc, Hochelaga, QC]

Would you like to be the director of prosecutions? My good fellow, tell me if this is the case—

Mr. Chairman, I find that he has many resources.

Perhaps I will not stop myself from voting for you, however, I will be asking you questions in committee.

Thank you, Mr. Chairman.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Ménard.

Mr. Moore.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you, Mr. Saunders, for being here today.

When you talk about provincial and federal jurisdictions, I think there's always confusion. Certainly when you're talking to constituents, they sometimes blur the lines between what's a provincial and what's a federal responsibility. Can you speak a bit to the distinct role that the federal prosecution plays compared to the provincial, if you were describing that to, say, a constituent of mine?

Also, in some of the more complicated cases that can blur the jurisdictional lines of what you would traditionally handle and what a provincial criminal prosecution might be, with some of these larger trials that are cross-jurisdictional and involving many different offences under maybe multiple acts, how do you sort that out and what kind of relationship do you have with the various provincial authorities?

[Brian Saunders]

Let me start with the last part of your question first, on what kind of a relationship we have.

We have a very good relationship with the provincial attorneys general. I just came back from a meeting in Moncton, of what we call the federal-provincial-territorial heads of prosecution committee. This meeting joins all the provinces and territories. They send their representatives there to discuss matters of mutual interest. We discuss ways of improving the system. We discuss ways of helping each other.

You asked how we divide the line between what we do and what the provinces do. As I mentioned in my answer to Mr. Ménard, the Criminal Code sets out a definition of “Attorney General”. Typically, you start off by saying the provinces generally have jurisdiction for all Criminal Code prosecutions, except in the north of Canada, in the territories, where we do all the Criminal Code prosecutions. If you move on to federal statutes apart from the Criminal Code, into what we call our regulatory world—Income Tax Act, Fisheries Act, Environmental Protection Act—we do all those prosecutions.

In the Criminal Code, there are some provisions over which we have jurisdiction. It's usually concurrent jurisdiction with the provinces when it comes to prosecuting. I mentioned fraud. There's also the area of terrorism. in which we have jurisdiction. War crimes are an area where we do the prosecutions; in fact, there's a prosecution going on right now in Montreal.

We do work with the provinces, because, as you mentioned, sometimes it's confusing, such as in the gang prosecutions. In Toronto, there are the famous guns-and-gangs prosecutions that go on. For a lot of these criminal organizations, the reason they're involved in crime is that there's money to be made from drugs. That brings our prosecutors in, so what we often do is have joint prosecutions. We just did one in Manitoba, where we had two of our prosecutors working with two prosecutors from the province of Manitoba to conduct that prosecution.

We also have a system of what we call major/minor agreements with the provinces. What this means is that people often get arrested for an assault and they find drugs on those people, or they get arrested for some other crime and drugs are found on them. What we do with the province is look at the accusations against the individuals and ask which is the major crime, which is the most important crime. If it's a provincial offence, an offence that's under provincial jurisdiction—say it's an assault and just a small amount of marijuana is involved—we'll ask the province to do the prosecution for the drugs as well.

On the other hand, if it's a small Criminal Code offence yet a large quantity of drugs is found and it's determined that the drug charge is the more important of the charges laid against the individual, we will do both the drug charge and the Criminal Code charge. That's a way of trying to be efficient in the allocation of resources between the provincial AGs and the Public Prosecution Service. Our statute effectively allows us to do those major/minor agreements.