Justice Committee on Feb. 11th, 2009

[Brian J. Saunders]

—but had there been any case where that occurred, the response is simple: if he wishes to give direction in respect of a particular case, the Attorney General knows that it has to be in writing and published in the Canada Gazette.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

So that would have been your response, had you been asked—

[Brian J. Saunders]

Had I ever been asked to do something, yes, that's my response.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Okay.

I go back to the question I asked earlier about subsection 15(3). You said you had no policy in place as to how to deal with the situation of delaying publishing in the Gazette. I have to question, Mr. Saunders, why not. It would seem to me—you've been in the position for over two years now—that it would be appropriate for some policy to be in place concerning how to deal with that situation, extraordinary as it may be.

[Brian J. Saunders]

The reason is, I guess, that it is an extraordinary situation. We're talking in subsection 15(3) about a case where the Attorney General decides to assume conduct of a prosecution—in other words, take over a prosecution that is being held by the Public Prosecution Service—and not only that, wishes to delay public notice of the fact that he or she has taken over that prosecution. We looked at our priorities and thought this event is very unlikely to occur. As a result, we didn't think it was a priority.

We have decided to rewrite The Federal Prosecution Service Deskbook to reflect the fact that we are now a separate organization, and this is one of the things that will be looked at. We had hoped to start the rewriting last year, but we were unable to do so. We have a competition ongoing to retain a senior lawyer whose task will be to address all of the policies in the deskbook that touch upon our practice. It will also be that person's responsibility to deal with items in the act that we have to deal with.

For example, we've been talking about when section 13 notices should be given. We know generally when they should be given, and I think there's an understanding of what a case of general importance is, but we want to devise guidelines in that area as well, so that our people who work in the regions will have some indication of what is meant by “a case of general importance” from our perspective, so that there can be no misunderstanding. But that is a project we have not yet launched.

[The Chair, Conservative, Ed Fast]

Mr. Comartin, you can have one very short question; you have half a minute.

[Joe Comartin, NDP, Windsor—Tecumseh, ON]

Okay. I'll switch, then.

You've been asked this in various ways today.

Coming away today, I have no sense of how many files have been referred to the minister by way of information because of their general interest, under section 13. Can you give us a ballpark figure for how many files—not how many times you reported, because there may be ten times on one file, but how many files—have been sent to the minister for his information?

[Brian J. Saunders]

I see them on a fairly regular basis: 20 to 30. That's from December 2006. It could be as high as 40.

[The Chair, Conservative, Ed Fast]

Okay, thank you.

We'll move on to Mr. Murphy and then to Mr. Moore.

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

I just want to get this straight. When you speak to the Attorney General, is much, or all—that's a question—of what you discuss covered by solicitor-client privilege?

[Brian J. Saunders]

We discussion prosecutions, yes.

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

Leaving any discussion you have about favourite hockey teams aside, the work plan of your meetings is the discussion of prosecutions across the country, and you feel that solicitor-client privilege prevails.

[Brian J. Saunders]

Yes.

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

Would that not imply that your client is the Government of Canada, represented by the Attorney General?

[Brian J. Saunders]

No, it implies, under the statute, that the Director of Public Prosecutions works under and on behalf of the Attorney General and that there is a common privilege. That we should not be discussing prosecutorial decisions in public is what I'm saying.

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

That applies to any discussion you might have with prospective prosecutions. You can't discuss prospective prosecutions for the reasons you set out---the property of the investigation, and the ongoing aspect--but in terms of prosecutions under way, you're saying that you can't discuss them at all because you have a duty to the Attorney General not to.

[Brian J. Saunders]

When we discuss prosecution, we're discussing perhaps what steps to take in a prosecution. It's not simply a question of saying there's a prosecution. It could be we're going to take a step.

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

That's a better answer, frankly. I inferred from the previous answer--

[Brian J. Saunders]

Yes, I'm sorry.

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

--that when you talked to the Attorney General, what you discussed was covered by solicitor-client privilege, as if it was some blanket. But if you discussed with him the fact that you might have a better way of streamlining outside hirings for prosecution services, that's not part of solicitor-client privilege.

[Brian J. Saunders]

No, I agree with you. Typically when I meet with the Attorney General we meet to discuss cases, and that's what we discuss--just cases.

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

Solicitor-client privilege relates to cases ongoing or prospective.

[Brian J. Saunders]

Yes.

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

All of your other discussions are not covered by solicitor-client privilege. There's no solicitor-client relationship between you and the Attorney General.

[Brian J. Saunders]

No, but you were asking me if, when we discuss cases, I can tell you what is discussed, and I am saying no. But when we discuss our budgetary requirements for the Attorney General and his staff, then yes, because I don't see that as--