Justice Committee on Feb. 11th, 2009

[Brian J. Saunders]

I would like to add a third aspect. If the offence pertaining to the RCMP investigation comes under our purview, our prosecutors would proceed as they do in any other case, namely, they would assess the evidence to determine whether or not, in this case, there would be a reasonable probability of conviction. If that is the case, they would ask a second question, namely whether or not public interest demands a prosecution. If the answer to these two questions is yes, we would conduct a prosecution. At the same time, we would provide the Attorney General of Canada with a notice under section 13. If he says that he does not want us to conduct a prosecution, there are two options.

[Réal Ménard, Bloc, Hochelaga, QC]

Very well.

[Brian J. Saunders]

He can provide us with directives, but they must be published in the Canada Gazette, or he can take charge of the prosecution under section 14 of our act. However, if he makes such a decision, this too must be published.

[Réal Ménard, Bloc, Hochelaga, QC]

That is interesting. You have answered the question perfectly. If this were an exam, you would get 10 out of 10.

So, if we were to proceed under section 14, it would be the Attorney General of Canada who would be taking charge of the prosecution by right of his special powers.

[Brian J. Saunders]

Pardon me, this would be under section 15.

[Réal Ménard, Bloc, Hochelaga, QC]

So it would be section 15.

[Brian J. Saunders]

That's a detail.

[Réal Ménard, Bloc, Hochelaga, QC]

I won't dock you any marks.

How would this prosecution go through the judicial courts?

[Brian J. Saunders]

We are talking about a hypothetical case now, but I would imagine that the Attorney General of Canada would apply the same test as we would. Indeed, the test pertaining to reasonable probability of conviction and public interest is applied by nearly every prosecution service in Canada—in Canada, that is for sure—and elsewhere in the world.

[Réal Ménard, Bloc, Hochelaga, QC]

I understand. So, in the case of disagreement—and that can happen—it is reassuring to know that an elected official will ultimately have the final word. In addition, a special legislative provision enables this elected official to steer the prosecution through the court system. Who will prepare the file? Will it be someone from the Department of Justice just the same? And how will this prosecution be steered through the courts? This is a precedent. According to what you have said, this has never been done.

[Brian J. Saunders]

The Department of Justice must have lawyers capable of conducting such a prosecution. Or the minister can hire an authorized agent who will take on this responsibility.

[Réal Ménard, Bloc, Hochelaga, QC]

All right.

[The Chair, Conservative, Ed Fast]

Thank you.

[Réal Ménard, Bloc, Hochelaga, QC]

That was a very good answer. Thank you very much.

[The Chair, Conservative, Ed Fast]

Mr. Comartin, you have seven minutes.

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

Thank you, Mr. Chair.

Thank you, Mr. Saunders, for being here.

I want to pursue the points that Mr. Dosanjh was raising. Would the prosecutions we've had under the anti-terrorism legislation, here in Ottawa and in Toronto, be the types of cases you would have reported as being of general interest to the minister?

[Brian J. Saunders]

If they were cases of general importance, the answer is yes.

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

Were those specific ones of enough general importance to--

[Brian J. Saunders]

Yes.

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

Would the decision in the Toronto case to bypass the preliminary inquiry and go directly to trial have been an issue that would have been reported to the minister?

[Brian J. Saunders]

That was a decision that I took. Under the section of the Criminal Code, it says that the Attorney General or the Deputy Attorney General can make that decision. Under the law I'm deemed to be the Deputy Attorney General, so I took that decision.

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

The question was--

[Brian J. Saunders]

I don't recall whether we gave notice or not. The question becomes, under section 13, when you have a long-running case, do you give notice of every step you take in the conduct of the case? I think with respect to major steps in the case, we do give notice under section 13, but I can't recall if on that particular step we gave notice.

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

Just so we're clear, in one that is as large and significant as that one, there are periodic reports going in to the minister?

[Brian J. Saunders]

If major steps were to occur in the case, then before a major step was taken, we would likely give notice, depending on what the step was.