Justice Committee on May 17th, 2007

[Brian Saunders]

I'll start the answer and I'll let Mr. Fortin give the rest of it.

Yes, we have, but we have to be mindful that there are certain areas in which it might be difficult for us to share, and access is one. For example, if you start sharing that, it means another government department has control over your document. That's an area where we want to ensure our independence and ensure there's no conflict of interest.

In areas such as human resources, at present we will have an infrastructure whereby we have a director of human resources and we'll have the corporate cadre, but we might use justice department employees to do the transactional work, which is what we do now. We have to determine how far down we go.

I might add that Quebec is going through the same exercise right now. I met with their new director of public prosecutions. They have decided to buy some common services, but they have to determine which ones they can buy, for the sake of their independence and so that there's no conflict.

Those two factors are the ruling factors in deciding what we can buy and how far we go down in the level.

[The Chair, Conservative, Art Hanger]

Thank you, Ms. Jennings.

Mr. Petit.

[Daniel Petit, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

Thank you.

Good morning gentlemen, Mr. Saunders and Ms. Proulx.

The new Director of Public Prosecutions testified following the adoption of Bill C-2, the Federal Accountability Act. The party I represent saw the need to set up a system in order to guarantee the independence of the director and prevent any political interference. That is what Mr. Lemay believes as well. We get the feeling that this is the objective sought by the new director.

I fully understand that you will be given a budget so that you can institute various proceedings and maintain relations with the provinces, etc. Mr. Ménard raised a very interesting point. Had the Office of the Director of Public Prosecutions existed at the time of the sponsorship scandal, would we have had to wait for two years to elapse and for a Gomery inquiry to have taken place in order to file complaints?

Usually, one a director is independent, he is independent from political power. If he is independent from political power today, perhaps he was less available beforehand. I don't know because I wasn't there. For two years, we saw individuals appearing on television in conjunction with the sponsorship scandal. It took a Gomery inquiry to finally be able to file an ordinary complaint of fraud, something that government attorneys are used to doing.

Why did we have to wait so long? Will this new system of having a Director of Public Prosecutions enable us to resolve this problem so that we can proceed more quickly in similar cases instead of having to wait two or three years?

[Brian Saunders]

I do not know whether or not the delay that occurred with the sponsorship case was linked to the attorneys, because this inquiry did last quite some time. It was the Attorney General of Quebec who instituted legal proceedings. We did not participate in this process. The Accountability Act revised the act on—

[Daniel Petit, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

The Federal Accountability Act.

[Brian Saunders]

Section 80 did exist, but it was not used. It was revised. There is now an offence for cases where an agent of the Crown commits fraud. It is not up to us to determine whether or not charges should be laid under the Federal Accountability Act or the Criminal Code. Investigators make this decision. We institute legal proceedings, but we do not conduct the inquiry. It is difficult to know whether or not, in the future, investigators will be filing complaints of fraud under the Criminal Code or under the Federal Accountability Act.

[Daniel Petit, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

The sponsorship scandal made a lot of noise in my province and in that of Mr. Ménard and Mr. Lemay, who are specialists in this field.

Do you think that the Director of Public Prosecutions will be sufficiently independent from the government? I participated in the study on Bill C-2 and I think he will be. However, I would like to know whether or not the Director of Public Prosecutions will be sufficiently independent from political parties in power in order to pursue issues that the public does not like. In addition, do you have the financial resources required to do this?

[Brian Saunders]

I think that we will have the requisite independence. However, I do not like the expression you used: “Pursue matters that the public doesn't like”. Whether or not the public likes something is not a factor we consider when we institute legal proceedings.

[Daniel Petit, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

I withdraw my words. I am talking of what we know today to be fraud. As far as I know, the public does not like fraud.

[Brian Saunders]

Yes, I know.

[Réal Ménard, Bloc, Hochelaga, QC]

Something that brings discredit upon the administration of justice.

[Daniel Petit, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

That's right. Something that brings discredit upon the administration of justice.

[Brian Saunders]

That's better. I prefer that.

Your second question was about whether or not we have enough money.

[Daniel Petit, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

Say yes, say yes!

[Brian Saunders]

The budget of the former Director of Public Prosecutions was also subject to pressure. We are dealing with the same pressures and we have to conduct studies and analyses to determine whether or not we have enough money. We thought about asking for money, but it was too early to do so. Further to consultation, we decided that it would be better to do the studies and the business plans for regions before deciding on how much money we will need. For the time being, we have enough money to enable us to fulfil our responsibilities.

[Daniel Petit, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

I will wait a bit.

[The Chair, Conservative, Art Hanger]

We'll go around again, Mr. Petit.

I have one question I would like to ask, given the fact that there's a good, but brief evaluation or summary of the reason for your existence. You use the words “independent of any improper influence and respects the public interest”.

There have been several cases in our nation under fisheries—and I know you're responsible for overseeing that type of prosecution—where fisheries enforcement has not been equal. In other words, there seem to be two laws. There's enforcement on one side, sometimes within the native fishery area, and it's different for those outside that area.

Are you going to play a role there?

[Brian Saunders]

We are not investigators. We rely upon the police and other investigative agencies to commence investigations. We take the case over once the police decide to lay charges.

[The Chair, Conservative, Art Hanger]

But you're going to be part of an integrated team.

[Brian Saunders]

“Integrated team“ doesn't mean that the police don't remain in charge of the investigation. That was made clear in a recent decision in the Supreme Court of Canada called Beaudry. It recognized that the police have an independent function to play in conducting their investigations, and prosecutors have an independent function to play in deciding whether to prosecute.

The court went on to say that even in cases, as in Quebec, where you have pre-charge approval of cases, it doesn't take away from the police independence.

[The Chair, Conservative, Art Hanger]

No, I respect that, but to prosecute, you're going to make an evaluation still, are you not, to see if it falls within the law and falls equally within the law?

[Brian Saunders]

Like all prosecutors, we are guided by two principles in deciding whether to prosecute. The first is whether there's sufficient evidence that there's a reasonable prospect of conviction. The second is whether the public interest favours a prosecution. That latter category is a fairly discretionary one; however, that discretion has been limited by jurisprudence, and we have a desk book which sets out the principles upon which we'll exercise the discretion in the area of the public interest. That desk book is public; it's on the Internet, so that everyone can see.

[The Chair, Conservative, Art Hanger]

So when it comes to this term “improper influence”, there could be some political influence coming to bear on a matter?

[Brian Saunders]

No.

[The Chair, Conservative, Art Hanger]

None whatsoever? You're totally devoid of any political influence?