Evidence of meeting #3 for Justice and Human Rights in the 40th Parliament, 2nd session. (The original version is on Parliament’s site, as are the minutes.) The winning word was attorney.

A recording is available from Parliament.

On the agenda

MPs speaking

Also speaking

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

4 p.m.

Acting Director of Public Prosecutions, Public Prosecution Service of Canada, As an Individual

Brian J. Saunders

Let me begin by talking about the role of prosecutors in Canada. There are 11 prosecution services in Canada, and I think we all play the same role. We conduct prosecutions after an investigation has been conducted by the police. We provide pre-charge advice to the police. But in this country the principle is that the police are independent in the way they conduct their investigations. The pre-charge advice that prosecution services give the police is necessary, because the law is complicated and the police don't want to spend a lot of time investigating something if they've already run afoul of the law in gathering the evidence. But the point is, it is the police who decide who to investigate, how to investigate, and what charges to lay.

The role of the prosecutor comes to the fore after the charges have been laid. At this point, the prosecution service has a role in deciding whether the charges should proceed. This is seen as an important balance within the system. We allow the police to investigate, and they can lay charges if they have reasonable grounds to believe there has been a violation of the law. The prosecutor then comes in and conducts a detached and objective examination of the evidence. We look at the competence, the credibility, of the witnesses. We look to see whether there are any possible charter violations. We determine whether a prosecution should proceed, and this is seen as an important check in the system. The prosecutor bears a heavy responsibility. Police sometimes get accused of tunnel vision, and we tell our prosecutors to keep an open mind and evaluate all the evidence objectively.

In the United States, what we see on TV, and what we sometimes see associated with special prosecutors, is that the prosecutors have more of a role in the conduct of the investigation. This certainly wasn't the intent of the Director of Public Prosecutions Act, nor does it apply in other jurisdictions in Canada. British Columbia, in its statute, has a special prosecutor's provision that allows the Attorney General to appoint an agent, a private sector lawyer, to look into a case and to decide whether a prosecution should proceed. It is not an American-type example, in which the special prosecutor takes charge of the investigation as well.

I'll now move to what our role is to Canadians. Before we were established, there was within the Department of Justice a branch called the federal prosecution service. We took over their role. Our role varies from province to province and between territories. In the northern territories, we conduct all prosecutions of the Criminal Code and all federal laws. In the provinces, we conduct some Criminal Code prosecutions such as terrorism. We have concurrent jurisdictions with the provinces. We do some organized crime prosecutions, typically those linked with drugs. Our main line of business, if I can call it that, is the prosecution of offences under the Controlled Drug and Substances Act, and this would be familiar to most Canadians. Being Canada, we always have exceptions. In New Brunswick and Quebec, we conduct prosecutions only for those investigations carried out by the RCMP. Elsewhere in Canada, we conduct virtually all drug prosecutions.

We also conduct prosecutions of violations of all other federal laws. For example, if there's a charge from the Migratory Birds Convention Act, like the charge against Syncrude you might have read about in the papers a few days ago, it would be our lawyers who prosecute it. If there's a prosecution under the Fisheries Act or the Canadian Environmental Protection Act, it would be our lawyers. There are approximately 50 federal laws under which we conduct prosecutions. I forgot to mention the most prominent one, the Income Tax Act.

4:05 p.m.

Conservative

Rick Norlock Conservative Northumberland—Quinte West, ON

Thank you. I'll pass the next set of questions over to my friend Mr. Rathgeber.

4:05 p.m.

Conservative

The Chair Conservative Ed Fast

Actually, we have only one minute left, so it will have to be a short set.

4:05 p.m.

Conservative

Brent Rathgeber Conservative Edmonton—St. Albert, AB

Thank you.

I have a follow-up question with regard to the independence of your office. Prosecutions used to be held as a branch of the Department of Justice. Now, though, you're supposed to be independent of the Minister of Justice, but you report to Parliament through the Attorney General. In this government, the Attorney General and the Minister of Justice are the same individual, so I was wondering if you could provide some clarity on how this independence from government operates.

4:05 p.m.

Acting Director of Public Prosecutions, Public Prosecution Service of Canada, As an Individual

Brian J. Saunders

A good starting point is what we had before and what we have now. Before 2006 at the federal level we had what Mr. Stephen Owen, in a paper he prepared on prosecutions in 1990, described as a traditional model: the prosecution services are located within the department that is presided over by the Minister of Justice and Attorney General. There is a reporting hierarchy leading from the prosecutors to an assistant deputy attorney general in charge of prosecutions to the minister. Typically, there are policy guidelines.

With the establishment of the Public Prosecution Service of Canada, we have been moved out of the Department of Justice into a new organization. The prosecutors are appointed and receive delegations from the director, and only the director reports to the Attorney General. Then the director, to safeguard his independence, is insulated from any pressure from the Attorney General by, in part, this process here. In the statute there are a number of things.

Once he's appointed, it's a seven-year term. The salary can't be changed; he can only be removed from office by a resolution that is supported by the House of Commons. There can't be any pressure placed on the incumbent by virtue of those protections found in the law.

4:05 p.m.

Conservative

The Chair Conservative Ed Fast

Thank you.

I'll move on to the next questioner. Mr. Murphy, you have five minutes.

Brian Murphy Liberal Moncton—Riverview—Dieppe, NB

Thank you, Mr. Chair.

Thank you, Mr. Saunders, for coming here. I was on the accountability committee when this was all discussed in the past. The impression at that time, and this time, is that the Director of Public Prosecutions is independent. I think that's what the meat of the accountability provisions in respect of this was.

When I hear you say, and we read the law, that you're accountable to the Attorney General and the Minister of Justice, it leads me to believe there is a bit of debate that's going to be worked out over your first term as DPP between ministerial responsibility on one hand and the preservation of prosecutorial discretion on the other.

So far you've given evidence that you report to the Attorney General in cases of general interest, occasionally, perhaps frequently in some cases. There's no really clear idea here, to me, to the public, that you are anything but the de facto Attorney General unless you were to tell me in your answer that you are frequently communicating with Minister Nicholson, that you frequently tell him there are cases we find of interest, and that he is monitoring and doing his job as Attorney General. Either you are accountable to him and inform him fully on what's going on with respect to prosecutions in this country, or you're the guy who makes all the decisions; and as they say, heavy is the head that wears the crown. You would be the person all of us would be looking to, for instance, if a prosecution of a public office-holder didn't or did take place, depending on which side of the fence politics likes.

Could you flesh out how much reporting you're giving to the Attorney General, Mr. Nicholson, whether he's ever asked specifically to meet with you on a case, for instance?

4:10 p.m.

Acting Director of Public Prosecutions, Public Prosecution Service of Canada, As an Individual

Brian J. Saunders

You have to put that in context. The legislation attempts to protect or make transparent the principle of prosecutorial independence by putting in safeguards. If the Attorney General wishes to intervene, he has to do so in writing.

In terms of accountability--and this is found, I might say, in the Nova Scotia legislation and the Quebec legislation—this derives from the report of the Marshall commission of inquiry and the works of the late Professor Edwards, who wrote extensively on the role of the Attorney General in law to the crown. The recommendations made at that time, which have been adopted, were that there should be some ultimate accountability to the Attorney General, because there had to be some political accountability. At the same time, they said the vast majority of cases would be conducted by the prosecution service without any involvement of the Attorney General. They thought it necessary in these cases of general importance that the Attorney General be informed.

Brian Murphy Liberal Moncton—Riverview—Dieppe, NB

You've had this since February 2006?

4:10 p.m.

Acting Director of Public Prosecutions, Public Prosecution Service of Canada, As an Individual

Brian J. Saunders

We've had it since December 2006.

Brian Murphy Liberal Moncton—Riverview—Dieppe, NB

How many times has there been written communication from the Attorney General, requesting--

4:10 p.m.

Acting Director of Public Prosecutions, Public Prosecution Service of Canada, As an Individual

Brian Murphy Liberal Moncton—Riverview—Dieppe, NB

Yes, how many times? Just to lay the foundation for that, that would give the public an idea of how on top of things the Attorney General is with respect to prosecution matters in the country. You know, what is he accountable for if he's only intervening a few times? Or if you're telling me it's a hundred times, then we'll go on the other tack, that he's too interventionist.

4:10 p.m.

Acting Director of Public Prosecutions, Public Prosecution Service of Canada, As an Individual

Brian J. Saunders

I don't have the number before me, but let me give you an example.

British Columbia has had the crown attorney act since 1990. It has a provision in it, similar to our section 10, that allows the Attorney General to give directives to the head of the prosecution service of that province in respect of a case. If the Attorney General disagrees with the decision that the prosecution service has taken, the Attorney General can give a written directive that has to be published. In 18 years, I believe five or six directives have been issued.

Brian Murphy Liberal Moncton—Riverview—Dieppe, NB

But in your case--

4:10 p.m.

Acting Director of Public Prosecutions, Public Prosecution Service of Canada, As an Individual

Brian J. Saunders

In my case, there have been none so far.

Brian Murphy Liberal Moncton—Riverview—Dieppe, NB

Zero.

4:10 p.m.

Acting Director of Public Prosecutions, Public Prosecution Service of Canada, As an Individual

Brian Murphy Liberal Moncton—Riverview—Dieppe, NB

I thought you just said that you didn't know how many times the Attorney General--

4:10 p.m.

Acting Director of Public Prosecutions, Public Prosecution Service of Canada, As an Individual

Brian J. Saunders

No, I'm talking about how many directives have been issued.

Ujjal Dosanjh Liberal Vancouver South, BC

I think you're asking a different question.

Brian Murphy Liberal Moncton—Riverview—Dieppe, NB

I am asking a different question; thank you, Ujjal.

I am asking about the Attorney General asking you, in writing, about the status of a case or--

4:10 p.m.

Acting Director of Public Prosecutions, Public Prosecution Service of Canada, As an Individual

Brian J. Saunders

I can't give you the number of times we have sent a section 13 notice to the Attorney General.

Brian Murphy Liberal Moncton—Riverview—Dieppe, NB

How many times has the Attorney General asked you about cases that are going on?

4:10 p.m.

Acting Director of Public Prosecutions, Public Prosecution Service of Canada, As an Individual

Brian J. Saunders

I have briefed him four or five times on cases. We've discussed cases.