Justice Committee on Nov. 29th, 2007

[Donald Piragoff]

I'll answer the question quickly.

With respect to the first question, Mr. Chairman, as you know, the Department of Justice was divided last year into the Department of Justice and the Director of Public Prosecutions. The responsibility for prosecutions now lies with the DPP, and I think Mr. Saunders is best placed to answer the first question of Madam Jennings.

With respect to the second question, as I indicated earlier, yes, we have started to do cost analysis with the provinces concerning the impact of new proposed federal legislation.

[The Chair, Conservative, Art Hanger]

Thank you very much, sir.

Thank you both for attending, Madam Merriam, Mr. Piragoff.

We will suspend for two minutes.

[The Chair, Conservative, Art Hanger]

I will call the meeting back to order.

I'd like to continue our study of the estimates with this next line-up of witnesses. From the Public Prosecution Service of Canada, we have Mr. Brian Saunders, acting director of public prosecutions; Mr. George Dolhai, acting deputy director of public prosecutions, headquarters; and Mr. Marc Fortin, acting general counsel and director, office of the general counsel and director.

Will Mr. Saunders be making the presentation?

[Brian Saunders, Acting Director of Public Prosecutions, Public Prosecution Service of Canada]

Yes.

Thank you, Mr. Chair. I'd like to thank the committee for the opportunity of being here today to discuss our supplementary spending estimates.

As you can see, there are only two elements in our Supplementary Estimates: first, funding related to the creation of our service in the amount of $9 million; second, funding in the order of $5 million to hire prosecutors. That's related to funding for new positions at the RCMP. In view of these new investigator positions, we expect to have more work.

Those were my opening comments. I'll turn it over to you for your questions.

[The Chair, Conservative, Art Hanger]

That's your presentation, sir?

[Brian Saunders]

There are just two elements in our supplementary estimates, and I think they're quite straightforward.

[The Chair, Conservative, Art Hanger]

Thank you.

I'm going to turn the floor over to Mr. Bagnell.

[Larry Bagnell, Liberal, Yukon, YT]

That was a long presentation.

Maybe you could just confirm.... I think you were here during the last session. On the same question related to the increased activity due to the increased legislation, from what I understand from the last witnesses, you have that well under hand. There's extensive study going on to estimate the additional cost for the additional laws we're passing through this committee.

[Brian Saunders]

Today's supplementary estimates are an example of that. Where there are initiatives that affect the prosecution service, we are typically consulted on them. We are asked whether the initiative will increase demand for prosecution services. As you can see with the increased number of RCMP officers, we are receiving additional funds to conduct the prosecutions we assume will result from having an additional 600 RCMP officers on the job.

We have developed a ratio, which has been accepted within the government, of one prosecutor for every five new police investigators. That ratio differs when the investigators are associated with a department other than the RCMP. For example, Environment Canada, or another department, might increase the number of its investigators, but we don't assume that would produce as many prosecutions as the police would. We have a different ratio for determining the number of prosecutors that should follow from that type of initiative.

So the answer to your question is yes, there is a process.

[Larry Bagnell, Liberal, Yukon, YT]

You were referring to the increase in police. Are you also referring to the increase in legislation that would lead to prosecutions?

[Brian Saunders]

That would be part of the consideration. We do an examination of the proposed legislation to see whether there would be an increase on the demands placed upon the prosecution services.

[Larry Bagnell, Liberal, Yukon, YT]

Shortly I'm going to turn it over to Mr. Lee for the rest of my time.

So you are analyzing the different pieces of legislation that are going through Parliament.

[Brian Saunders]

Yes. There is a process in place that allows us to have a say as to whether that will increase the demand for our services.

[Larry Bagnell, Liberal, Yukon, YT]

Thank you.

Mr. Lee.

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

I want to go back to Ms. Jennings' question related to prosecutions under the Immigration and Refugee Protection Act.

As I understood the question, the Attorney General of Canada has either explicit control or prosecutorial control over prosecutions. In the particular one Ms. Jennings referred to, I got the impression that the authority of the Attorney General had been left with, delegated to, or horizontally transferred to the Department of Public Prosecutions. Could you explain the procedure or modalities involved in that? I would have thought that statutory authority delegated to the Attorney General stays with the Attorney General and that it doesn't get delegated up the Rideau.

[Brian Saunders]

Under the Director of Public Prosecutions Act, the authority of the Attorney General is delegated to the Director of Public Prosecutions. We have, in effect, the Director of Public Prosecutions and the Deputy Attorney General of Canada for the purposes of conducting prosecutions under federal law. The Immigration and Refugee Protection Act would be an example of federal law under which we've been given that responsibility.

The Attorney General has also issued a directive under section 10 of our statute instructing us to make use of the Federal Prosecution Service Deskbook. That deskbook sets out the principles that guide our prosecutors in doing their work. It also has a chapter setting out delegations of authority because there are a number of statutes that provide the Attorney General with the responsibility of making decisions. In the case that Ms. Jennings raised, it's under section 117 of the Immigration and Refugee Protection Act, which calls upon the Attorney General to give his consent before any prosecution can be laid under that provision. Pursuant to the Director of Public Prosecutions Act, it is our office that takes that decision, pursuant to the deskbook I mentioned that has been delegated to regional directors within our organization.

When making that decision, like any decision of the prosecutor to start a process, the prosecutors have to look at two principles. These two principles are followed by every prosecution service in the land, and they are as follows. On the evidence before you at the time you make the decision, is there a reasonable prospect of conviction? If so, does the public interest favour a prosecution?

So the prosecutors involved examined the file they were presented with and the base of the evidence they had at that time, applied those principles, and consented to the institution of the prosecution.

Subsequently, additional evidence was brought to their attention. And prosecutors also have under the deskbook that I mentioned a continuing obligation to evaluate a case. In other words, if new evidence or new information comes forth, they are supposed to revisit their decision and apply those two guiding principles I mentioned. When this new information came forth, the prosecutors, pursuant to their obligation, considered it and determined that in light of this new information, there was no longer a reasonable prospect of conviction, and in effect they stayed the prosecution.

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

Are you saying that in every case where a Canadian statute refers to either the consent or approval or collaboration with the Attorney General of Canada in a prosecution or a criminal procedure, all of that authority has been delegated to the Director of Public Prosecutions under this new statute? I'm concerned.

I just want to make a sidebar reference to a real-case scenario in the Criminal Code. We now have these security procedures, under the Anti-terrorism Act, that require the consent of the Attorney General. Are you telling me Parliament's wish that the Attorney General--it could be an attorney general of a province--explicitly requires the consent of the politically elected Attorney General is now being interpreted as being delegated to a public servant? I'm getting the impression that's how you've interpreted this statute.

[Brian Saunders]

I'll turn over the question on terrorism to Mr. Dolhai, who's an expert in that area. If the legislation says that the consent of the Attorney General is required, it has always been the case that a decision of that nature can be delegated, and it is often taken, for example, by the Deputy Attorney General. Under the legislation, the Director of Public Prosecutions has a status of the Deputy Attorney General for criminal matters.

If legislation says the Attorney General should make the decision personally, then clearly that cannot be delegated. In cases where the legislation does not require the personal involvement of the Attorney General, it has long been the case, even before the establishment of the DPP, that this decision could be taken by officials other than the Attorney General.

[The Chair, Conservative, Art Hanger]

We'll go to Mr. Ménard.

[Réal Ménard, Bloc, Hochelaga, QC]

I feel we are going to learn something this morning. I get the impression that there is a professor emeritus in you and that he might come out.

We know that, in Bill C-2, the Conservative government has begun a quest for transparency and that a position of director of prosecutions was created. However, no one has yet been appointed to that position. I had every hope that it would be you. Well, we don't know the future, so we'll see.

Your services have assessed the possibility of prosecuting a person who has previously belonged to the political system. Let's take a random example, that of a former prime minister. Let's imagine that it appears from a public investigation that a former prime minister has, for reasons it is not for us to assess today, accepted funds from a businessman.

This is a pure fiction, but if it occurred, would you have complete flexibility in bringing charges or would you be accountable to some form of political hierarchy? You of course understand the fictitious nature of my example, but I'm counting on you to make it pedagogically interesting.

I am trying to understand how independent you are when it comes to instituting proceedings. In the case of charges under federal narcotics legislation, that would be fine, but, if a former prime minister were involved, would you have complete flexibility to institute proceedings?

[Brian Saunders]

First, I want to point out that the individual's status is not what is relevant when we make the decision to institute proceedings. It should also not be forgotten that it is the police who conduct investigations, not us.

[Réal Ménard, Bloc, Hochelaga, QC]

You stated two criteria. You assess whether there is a reasonable prospect of conviction and whether an offence has been committed. As a basic principle, it is established that the individual has committed offences for which it is possible to secure a conviction and it is determined where the public interest lies. Those are your criteria.

But if the case involves a person who has previously belonged to the political system, how independent are you? I'm talking about situations in which all conditions are met, of course.

[Brian Saunders]

I mentioned two conditions, but there is a third. If an individual is charged by the police, it must be seen whether the offence is within our jurisdiction. If it is a fraud case, for example, that's a prosecution that comes under the provincial government's jurisdiction.

Under our act, we have a right to make a final decision regarding prosecutions, except in cases where the Attorney General issues a directive to us under section 10 or section 14, I believe, which gives the Attorney General the right to take control of the prosecution.

[Réal Ménard, Bloc, Hochelaga, QC]

All right.

[Brian Saunders]

But in both cases, the Attorney General must publish the directive in The Canada Gazette.