Justice Committee on Feb. 11th, 2009

[The Chair, Conservative, Ed Fast]

I'd like to call the Standing Committee on Justice and Human Rights to order. Today is Wednesday, February 11, 2009, and this is meeting three.

You have before you the agenda for today. Please note that we're going to reserve approximately 30 minutes at the end of our meeting to discuss our committee work plan and other business going forward.

In accordance with the order of reference dated February 4, 2009, appearing before us today is the acting Director of Public Prosecutions, Mr. Brian J. Saunders. Mr. Saunders is the proposed appointee to the position of Director of Public Prosecutions, and he is available to answer questions you may have regarding his qualifications.

Mr. Saunders, welcome to our committee. You will have 10 minutes to introduce yourself to our committee, and then members will have an opportunity to ask questions of you.

I would ask that committee members restrict their questions to Mr. Saunders' qualifications for the position of Director of Public Prosecutions.

There is a point of order from Mr. Murphy.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

You would ask us to restrict our questions to the qualifications of Mr. Saunders for the job, but not about the job itself?

[The Chair, Conservative, Ed Fast]

I don't believe Mr. Saunders is in a position where he should be discussing the process that led to his appointment.

[Brian Murphy, Liberal, Moncton—Riverview—Dieppe, NB]

No, that's not what I said. What I asked is this. Are we not allowed to ask Mr. Saunders how he envisions the job of DPP being done or how he observes it being done in other countries?

[The Chair, Conservative, Ed Fast]

No, Mr. Murphy, I didn't imply that. You'll certainly have an opportunity to ask him those questions as well, but we want to focus in on the qualifications and anything related to the job that he's already been undertaking for some two years.

Mr. Saunders, you have 10 minutes and then we'll move to questions.

[Brian J. Saunders, Acting Director of Public Prosecutions, Public Prosecution Service of Canada, As an Individual]

Thank you, Mr. Chairman.

It is an honour for me to have been nominated for the post of Director of Public Prosecutions. I am pleased to be here today to discuss my nomination.

This is an important and challenging post that was created in December 2006 with the coming into force of the Director of Public Prosecutions Act, which is part 3 of the Federal Accountability Act. The Director of Public Prosecutions Act makes transparent the constitutional principle of prosecutorial independence.

I have been the acting director since December 2006, and over the past two years I've witnessed the dedication and professionalism of the prosecutors and employees who make up the Public Prosecution Service of Canada.

I have submitted my curriculum vitae. Let me add a few details that are not mentioned in it and elaborate on a few that are.

I was born in Brandon, Manitoba. My father was in the military at the time and, like most military families, we moved every few years. I lived in five provinces before my family finally settled down in Edmonton, Alberta where I attended high school. I obtained a BA and an LLB from the University of Alberta and then undertook two years of post-graduate studies at Cambridge University where I obtained an LLM and a diploma in legal studies.

I then returned to Edmonton where I articled with the federal Department of Justice. After being called to the Bar in 1978, I remained with the department for the next 28 years. From 1978 to 1985, I worked in the Edmonton regional office, and from 1985 to 2006 in Ottawa. In December of 2006 I joined the PPSC.

While in Edmonton, I worked as both a prosecutor and a civil litigator.

When I transferred to Ottawa in September 1985, I moved into the civil litigation section, where I focused primarily on human rights, the Charter of Rights and Freedoms, and public law cases. I did not conduct any prosecutions while with that section. However, I was from time to time involved in cases and issues that brought me into contact with the criminal law. For example, among the cases I handled were ones involving section 8 of the charter on the right to be secure against unreasonable search or seizure.

In 2000, I was promoted to the position of director general of the civil litigation section in Ottawa. The section had approximately 35 lawyers, many of whom conducted a national practice. I continued to conduct litigation while in the position. I also served on the department’s national litigation committee, which, among other matters, has the mandate of reviewing all factums, in both criminal and civil appeals, that are to be filed with the Supreme Court of Canada.

In February 2006, I was appointed Assistant Deputy Attorney General of Canada in charge of the citizenship, immigration, and public safety portfolio. I had direct authority over the Justice lawyers working in the crimes against humanity and war crimes section as well as those assigned to work in the legal service units at the RCMP, CSIS, Canada Border Services Agency, Immigration, Correctional Services, National Parole Board, and Public Safety. I also had functional responsibility over those Justice lawyers conducting immigration litigation for the government throughout Canada.

And finally, as I mentioned at the outset, on December 12, 2006, I assumed the position of Acting Director of Public Prosecutions. On the same day, most of the employees of the Federal Prosecution Service of the Department of Justice were transferred to the Public Prosecution Service of Canada. This was a significant change, as many of them had spent their entire careers in the Department of Justice. Some questioned the need for the transfer. This hesitation has long since passed.

Employees see the value in the creation of the Public Prosecution Service. They now have an organization that is focused solely on its work, and more importantly, one that makes transparent the very principle that is central to the work, which is the principle of prosecutorial independence.

Over the past two years the Public Prosecution Service has made the transition from being a part of the Department of Justice to being an independent governmental organization. We've put in place a government structure and established our own capacity in such areas as communications, corporate services, access to information and privacy, and strategic planning.

Prosecutors play a key role in our criminal justice system. The system places a heavy responsibility on their shoulders. In every case they handle, they are called upon to decide whether a person should be subject to prosecution and placed in jeopardy of being fined or imprisoned. In prosecuting a case, they must represent the public interest and the community at large and must act fairly but firmly, guided by principle in the law. The PPSC was established to help ensure that there would be no improper influences in their decision-making.

If my nomination is confirmed, I will work to ensure that the constitutional principle of prosecutorial independence is respected, that prosecutors have the support they need to do their important work, and that we are accountable both for our work and for how we handle our resources.

Thank you. I'll be pleased to answer any questions you might have.

[The Chair, Conservative, Ed Fast]

Thank you, Mr. Saunders.

As agreed, we'll move forward with a questioner from the Liberal Party, Mr. Dosanjh.

[Ujjal Dosanjh, Liberal, Vancouver South, BC]

Thank you, Mr. Saunders, and thank you for being here.

You've been at this work now for a couple of years. You said that the creation of this particular model was to make transparent the principle of prosecutorial independence, so that there's no improper influence. From your knowledge of the department, was there ever any improper influence on the prosecutors before?

[Brian J. Saunders]

No, there was not. And I think that was made very clear in the debates that led up to the enactment of the Director of Public Prosecutions Act. I believe it was Minister Toews at the time who appeared before a parliamentary committee and stated that the legislation was not being introduced to address a problem; it was being introduced to prevent problems from possibly occurring in the future.

[Ujjal Dosanjh, Liberal, Vancouver South, BC]

I have not looked at the legislation, I must confess, but I'm assuming that this is modelled after something like the DPP in Britain.

[Brian J. Saunders]

It's closer to the legislation one finds in Nova Scotia and Quebec. But certainly, there were influences from England as well.

[Ujjal Dosanjh, Liberal, Vancouver South, BC]

Yes.

Who are you accountable to, sir, in your capacity?

[Brian J. Saunders]

Under the legislation, the director is accountable to the Attorney General. The legislation does say that the director, under the authority and on behalf of the Attorney General, has the following roles and, it goes on to say, conducts prosecutions, gives advice, things of that nature.

[Ujjal Dosanjh, Liberal, Vancouver South, BC]

So what are you accountable for? I recognize the prosecutorial independence, that you decide who to prosecute and who not to prosecute, what to submit to court or not submit, whether to charge or not charge; you make those kinds of decisions independent of the minister. But what are you accountable to the minister for?

[Brian J. Saunders]

The legislation sets out the nature of the accountability. In section 13 it states that we have to inform the Attorney General of cases of a general importance. So we are accountable to the Attorney General to keep him informed of cases of a general importance. That is there because under the legislation he has the authority to issue directives in respect of a particular case or in respect of general cases.

[Ujjal Dosanjh, Liberal, Vancouver South, BC]

Are those directives made public?

[Brian J. Saunders]

They are made public, and that is the transparency that helps protect independence.

[Ujjal Dosanjh, Liberal, Vancouver South, BC]

Which is, I believe, part of the British Columbia model of how it's done in-house.

[Brian J. Saunders]

That's right, yes.

[Ujjal Dosanjh, Liberal, Vancouver South, BC]

But from my perspective as a former Attorney General, where actually you do many more prosecutions than the federal government ever does, I always believed that if you had the in-house prosecutions you were more accountable, because the minister could be asked questions about any prosecutions whatsoever in the house at any time, whereas this way, that accountability is removed by putting you under a separate act.

[Brian J. Saunders]

It comes down to a policy choice that is made, and I guess that in Canada the starting point for the adoption of this model, as opposed to the traditional model or the B.C. model, was the Marshall commission report, which said there should be a director of public prosecutions—in that case, for Nova Scotia—and that there should be some accountability. But they saw the accountability only being in respect of these important cases. They didn't see an Attorney General having to be informed or become involved in the vast number of cases.

[Ujjal Dosanjh, Liberal, Vancouver South, BC]

Let me ask you, how many times have you met with the Attorney General since you took over?

[Brian J. Saunders]

Let me put it this way: we have an obligation under section 13 of our legislation to keep him informed of cases of a general importance. We do that in writing typically, and we send it up to the Attorney General.

In terms of meeting with the Attorney General, we met initially on a regular basis but have agreed to try to meet every two to three months, and I think we've met on that basis three times now.

[Ujjal Dosanjh, Liberal, Vancouver South, BC]

And initially you met more regularly?

[Brian J. Saunders]

No, initially we met to discuss a directive. You will recall that there was a directive issued at the beginning, in March, telling us to use the federal service guidebook, a policy manual. So we met with the Attorney General—Mr. Toews, at that time—to discuss that.