Justice Committee on May 17th, 2007

[Brian Saunders]

More information about our role is an important one. We certainly hope to increase our visibility, so people know that we exist and what our role is.

[Myron Thompson, Conservative, Wild Rose, AB]

The last question I have is on your form that I got this morning. It says your operating budget is $28,972,000, less revenues credited to the vote. I have no idea what that means. What the devil does that mean?

[Brian Saunders]

I will let Mr. Fortin explain that to you.

[Dr. Marc Fortin]

The net voted revenues you are referring to, to the tune of $11.3 million, if I remember correctly—

[Myron Thompson, Conservative, Wild Rose, AB]

Yes, $11.342 million.

[Dr. Marc Fortin]

That is an authority that we need. It's not only to recover some of the costs of our prosecutions that we do in the name of or on behalf of our regulatory agencies. It is to give us the authority to spend it.

We need to recover some of the costs that we incur, especially in regulatory prosecutions, but we need to have the legal authority to spend these recoveries toward salaries, hence it is called “net voted”. It's a technical term, and we can recover up to that limit.

[Myron Thompson, Conservative, Wild Rose, AB]

I guess it's why I appreciate your being here more than anything.

In most things that you pick up in this government, you'll read something like “less revenues credited to the vote”. I can guarantee you that 99.9% of us don't know what the hell it means. I would like to start picking up documents that clearly explain what the figure pertains to.

I think we could do a lot better in a lot of departments on clarifying some of these things.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Thompson.

Mr. Petit.

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

Mr. Chairman, if I may, I would like to go back to the question I asked earlier.

You said two things between the time when I asked you a question and when you responded to a committee member. You said—I will repeat what you said in my own words—that according to your structure, when you have well-documented evidence and the public interest is at stake, discretion is required in the interest of the public. You said that these were notions that we could find on the website explaining how you operate.

I'm very pleased with this attitude. Naturally, I'm speaking from the federal perspective. I know that you consider what we call public interest. You had in your hands—I am not necessarily asking you to answer, I do not want you to compromise yourself, I simply want to understand—Justice Gomery's inquiry into the sponsorship scandal, which lasted quite a long time and which contains well-documented evidence. He took on an enormous task. His conclusions regarding certain situations led to regular charges of fraud, which is the most frequent case we see in our courts.

I am very pleased that the position of Director of Public Prosecutions has been created. I am pleased because it embodies a notion of non-interference. In my opinion, it is fantastic that we can shield the prosecutor from any perception of political interference. Beforehand, you had all of that. The position of Director of Public Prosecutions is, however, quite new. Another structure had been in place, but I dare not discuss it because I am not adequately familiar with it. But I do know this one. Will the new director appointed to this position feel obliged, for example, when examining the conclusions of the inquiry conducted by Justice Gomery, who is an experienced judge, to institute legal proceedings because the public expects you to administer justice properly and you do not want the perception of justice to be brought into disrepute? Could the director do that? If you are uncomfortable answering this question, don't answer.

[Brian Saunders]

We do not lay charges, the investigators do. In the case of the sponsorship inquiry, I believe that it was the RCMP and the Sûreté du Québec who conducted the investigation. It was the Attorney General of Quebec who instituted legal proceedings against the individuals involved in the sponsorship scandal. We did not act as an attorney in this case.

You asked whether or not the attorney could rely on Justice Gomery's report. The answer is no. The investigators tried to dismiss the evidence presented to Justice Gomery and the evidence on which they had based their charges. That is a principle of law. When someone is compelled to testify against his own interest, we cannot rely on this evidence for the purposes of a charge.

[Chantal Proulx]

I would briefly add that the Canadian justice system is structured in the following manner. The police, the investigators have their role to play and they play it. It is up to them to determine whether or not charges should be laid, against whom and under what circumstances. At the federal level, the Crown attorney, the Director of Public Prosecutions must then establish, further to the laying of charges, if legal action should be continued. This manner of operating existed before the Office of the Director of Public Prosecutions was established and it continues today. The establishment of the Office of the Director of Public Prosecutions has not changed it.

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

Do I have time to ask another question, Mr. Chairman?

[The Chair, Conservative, Art Hanger]

No, you don't.

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

All right.

[The Chair, Conservative, Art Hanger]

I'm going now to turn the questioning over to Mr. Lee.

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

Thank you, Mr. Chairman.

This is a question that's a little bit off the wall, and I forgive you if you don't have an immediate answer. But I would like an answer, which you can provide in writing, when it's obtained, through the clerk.

Under parliamentary law, which is part of our constitutional law in Canada, Parliament has long had the ability to request that the Attorney General, who normally sits in the House, undertake a prosecution. An example would be in relation to a perjury. Parliament itself, of course, has the ability to address prevarication, perjury, and other things with its witnesses, but on occasion Parliament may be of the view that it is in the public interest for Parliament not to take these steps, but rather to have the Attorney General, on behalf of the Crown in the public interest, take those measures.

Given that we have now created a department of public prosecutions and separated, in theory, the decision about who prosecutes, and when and where, from the Attorney General and delegated it to the Director of Public Prosecutions, if that's the right term, could you advise on the public record—because this may come up in the future, since we're reorganizing the flowchart, if I can put it that way—to whom Parliament would direct its directive, in the event it wished a public prosecution of a perjury to take place outside Parliament? Should it be to the Director of Public Prosecutions, with whom Parliament has no direct connection, or should it be to or through the Attorney General, where Parliament does have a very real connection and where the law is already established?

[Brian Saunders]

As you might imagine, it's not a question I've given any thought to until now. The Attorney General still has a role to play as the chief law officer of the crown, and I assume the request could be directed to him or her as a member of Parliament. Apart from that, it's something I'd have to consider.

Even if it were directed to us—that is, the public prosecution service—our prosecutor, I assume, unless directed by the Attorney General, would still have to apply the test we've been talking about: is there sufficient evidence to establish a reasonable prospect of conviction, and does the public interest favour the prosecution? That test is applied in every case we do.

But your question is to whom you go at first instance. My off-the-cuff reaction is that the Attorney General could be contacted, but I'd have to think about it.

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

Parliament would expect a robust, engaged response, not simply a “we're thinking about it” response. If the administrative response is “we'll think about it”, that is not traditionally what has occurred. When Parliament sends a message, it would expect perhaps that there is some allowance for consideration of the overall case, but not really the issue of whether you might want to do it or not want to do it, or whether it might or might not be in the public interest, because Parliament would have already made that decision.

[Brian Saunders]

There is scope under the act for the Attorney General to assume conduct of a prosecution—there's still that power—or to issue a directive in respect of a particular prosecution. If Parliament established itself as being independent, it would be ironic if Parliament were to direct the DPP to conduct a prosecution and tell the DPP not to apply the test that's applied in every other prosecution in the country.

[Derek Lee, Liberal, Scarborough—Rouge River, ON]

I think you've answered it. If the Attorney General retains the ability to conduct a prosecution still, that would resolve the problem completely. I thank you for that.

[The Chair, Conservative, Art Hanger]

Thank you, Mr. Lee.

I don't believe there are any other questions. I do have one final one.

Again, going back to the broad statements that were made, which I assume will guide your office, you are responsible for “addressing criminal issues, in the context of prosecutions to contribute to a safer world for Canada”. And of course the next point—and there's $5.1 million, I should say, allotted for these initiatives—is that you are responsible for “promoting a fair and effective justice system that reflects Canadian values within a prosecutorial context”.

Now, not too long ago, in the B.C. courts, all federal prosecutions of a number of drug cases were thrown out with one swipe of the brush because they had become backlogged in the courts, and nothing was pursued after that point. This goes back a few years ago—not too many—but that was not an uncommon affair. That was what the court decided, and those were drug cases.

Now, I know this is a new office, but I would assume that something like this would never happen again, now that your office is struck.

[Brian Saunders]

I would hope it wouldn't happen again.

I don't know the cases you're talking about. I assume it's something that happened after the Supreme Court decision in Askov, when cases across the country were thrown out because of delay.

We try to ensure that our cases are handled promptly and don't run afoul of Askov. This doesn't mean that even today, at the provincial level, cases don't occasionally get dismissed, or stayed, because of prosecutor delay; and it doesn't mean it might not happen with us. But I would hope it wouldn't happen, as you say, for a large volume of cases.

[Chantal Proulx]

I would just briefly add that what ultimately led to those cases' demise was a judicial finding of a charter violation. We litigate alleged charter violations regularly and diligently before the courts. Findings that charter rights have been violated do occur, and cases get stayed as a result of that.

[The Chair, Conservative, Art Hanger]

One of the problems that I personally know existed when it came to issues of drug prosecutions was that there were a number of part-time prosecutors who came out of various law firms. To me there's a certain element of conflict there, but these part-time prosecutors were juggling two balls and sometimes it just didn't fit into the court scenario. As a result, due maybe to inadequate resources on the federal side, cases were not dealt with effectively.

Are things going to change in that regard, in reference to federal prosecutions, and are these part-time prosecutors going to be things of the past?

[Brian Saunders]

We rely heavily on part-time prosecutors. We have to cover courts across this country, and the agents, as we call them, are essential, because we just can't have a staff prosecutor in every small community in Canada. It's just—