Justice Committee on Feb. 11th, 2009

[Brian J. Saunders]

We would not give a notice under the Canada Elections Act. It's excluded from the definition of prosecution in our statute.

[Dominic LeBlanc, Liberal, Beauséjour, NB]

Okay. Give me an example, then, of another kind of case where you feel there would be general importance.

[Brian J. Saunders]

I mentioned the Project Colisée in Quebec, which is a major prosecution of members of the Montreal mafia that is in part terminated. There was a war crimes prosecution in Montreal, Munyaneza, which has gone on for some time. That would have been obviously a case of general importance.

[Dominic LeBlanc, Liberal, Beauséjour, NB]

Do you look to cases that would generate media attention or cases that...? When you look at your upcoming cases or potential prosecutions, what sorts of things do you look for to say there's one of which you should give notice to the minister?

[Brian J. Saunders]

There are cases of public interest, cases where the law has been challenged or an investigative technique has been challenged. For example, if in a case that we're prosecuting there is a challenge to the criminal organization provisions of the Criminal Code, we would give notice that this is an issue.

[The Chair, Conservative, Ed Fast]

Your time is up. Thank you.

Mr. Brown, you have five minutes.

[Patrick Brown, Conservative, Barrie, ON]

Thank you, Mr. Fast.

A few years ago I was on the justice committee when we first started talking about a Director of Public Prosecutions. I want to see whether you can share with us some of the things you view as having been successful in the last two years. Are there any successes that would illuminate the importance of the role you play within the justice system which you can highlight for the committee?

[Brian J. Saunders]

The work continued after we were formed as it had done before. Our prosecutors continued to prosecute cases in an efficient and professional manner after the establishment of our organization, as they had done before when they were members of the Public Prosecution Service. From our perspective, what has changed—and this, as I mentioned in my opening, is something I can see from having met with many of the prosecutors in visits to their offices—is a sense that they have an organization, for example in Quebec and Nova Scotia, that is focused on the prosecution arm of the criminal justice system; that in effect values the contribution they make on a daily basis to the criminal justice system; and that, as I mentioned as well, makes more transparent the principle of independence.

As for individual successes, that would require talking about some of the contributions our staff have made to the criminal justice system across Canada, and we've set these out a bit in our annual report. If there's any contribution I'd like to mention, I guess it is the contribution.... I don't want to offend any members who aren't mentioned by this, but I've always been impressed by the dedication of those prosecutors who work in the northern territories. For example, in Nunavut they service 25 communities scattered over two million square kilometres, and they do so by going on circuits. They can go away from the family for a week or two. Sometimes they are snowed in because of bad weather conditions. It's not an easy life; it's a very hard life for them. And they're dealing with a different culture. We try to give them training to deal with that. They usually try to meet with the local justice community to explain the system to them and obtain the local community's views on what is happening.

I would like to signal the contribution these prosecutors have made. It's a tremendous contribution they make to bringing justice to the northern part of Canada, where unfortunately the crime rate is a bit higher than elsewhere. They have to work under very difficult conditions.

[Patrick Brown, Conservative, Barrie, ON]

I understand you have an impressive academic and litigation background. Could you share your litigation and academic history with the committee?

[Brian J. Saunders]

I guess in my CV I put out some of it, but I mentioned in it, and at the outset, that I went to Cambridge. I obtained a master's in law and also did a thesis to get a second degree, a diploma in English studies.

After that, in joining Justice, I guess I was in Alberta during the time the economy was moving much like it is now. It was considered among many friends not to be the place to go to earn money, but in terms of getting a career, over the years I've been involved in some of the more interesting cases that have come forth. If you want me to mention a few cases, on the human rights side there were two cases involving women's rights that I'm particularly proud of. One was whether women should be involved in combat roles in the military, and the other was whether or not women should be able to serve as guards in male penitentiaries. The latter went to the Supreme Court of Canada. I think I mentioned it in my CV, where section 8 and section 15, equality rights, were involved.

I've litigated for 28 years, and I've done everything from environmental law to human rights, the charter. There isn't very much in the federal sphere that I have not been involved in litigating over the years. I've tried as well to keep a hand on the academic side. I publish an annual book on Federal Court rules, which I'm beginning to wonder if I might have to abandon should I receive this position. I'm getting a bit distant from the Federal Court rules. I was thinking of doing another book on the crown liability act, but I think I'll abandon that and redirect my energy to something more in the criminal sphere.

[The Chair, Conservative, Ed Fast]

Time is up. Thank you, Mr. Brown.

We'll move on to Mr. Moore, for five minutes.

[Rob Moore, Conservative, Fundy Royal, NB]

Thank you, Mr. Saunders, for being here today. It was a long time coming, but we do appreciate your testimony here.

We haven't talked a lot about the staff under your charge. How many full-time staff are there now in the federal prosecutor—

[Brian J. Saunders]

Eight hundred and fifty.

[Rob Moore, Conservative, Fundy Royal, NB]

In terms of agents who are out there, who are brought on to conduct prosecutions, in rough numbers how many would there be?

[Brian J. Saunders]

There are about 700, but they don't work on a full-time basis.

[Rob Moore, Conservative, Fundy Royal, NB]

On some of the cases we're hearing about, there are intense manpower needs--on some of these so-called megatrials, with the organized crime, gangs, terrorist prosecutions. Can you talk a bit about the demand of something that is not typical, is not day to day, that comes out and all of a sudden has to be dealt with? How do you deal with that with regard to staffing?

Also, on the relationship you have with provincial attorneys general and provincial prosecutors, when it comes to a case that unfolds, that may cross jurisdictional boundaries and may be a little grey as to who would have carriage of the case, how do you go about sorting that out with your provincial counterparts?

[Brian J. Saunders]

I'll deal with the second part of your question first.

We have very good relations with the provincial prosecution services. There is a committee, which the director of the Public Prosecutions Service co-chairs, called the Federal-Provincial-Territorial Heads of Prosecution Committee. We meet twice a year. It has a very collegial atmosphere, is very results-oriented, and tries to address our common problems. We enter into arrangements with provincial prosecution services that we refer to as “major-minors”, whereby if someone is accused of an offence that falls within our jurisdiction and an offence that falls within provincial jurisdiction, we sort out which prosecution service is to conduct the prosecution.

Typically, if the more serious offence is a federal prosecution, we will conduct the federal prosecution and the provincial prosecution. Conversely, if the provincial prosecution or provincial offence is more serious, they will conduct the prosecution of both offences, federal and provincial.

That said, we also enter into agreements with the provinces at times to conduct joint prosecutions. I mentioned the Norbourg case in Quebec. Our prosecution office in Manitoba recently conducted a major prosecution of Hells Angels with the Manitoba prosecution service. Our prosecutors led the prosecution and were assisted by some counsel. This is to address the very problem you have indicated; that is, cases are becoming longer and more resource-intensive. We estimate that we do about 1.5% to 2% of our cases in-house. These take up about 21% to 22% of the time of our counsel, to give you some indication of the demands placed on our service by these large cases.

The first part of your question dealt with how we plan for these things. We have offices in most provinces, and we encourage the heads of our regional offices, whom we call chief federal prosecutors, to meet with their counterparts at the provincial level, to meet with the municipal and provincial police forces—usually, except in Quebec and Ontario, it's the RCMP who are the contract police—so that we can do some planning as to demands we can anticipate being placed on our service in the future by changes in priorities.

That said, it can be difficult, because there are times when there could be a change of focus by a municipal police force and we don't receive additional resources. If, for example, the City of Vancouver--or Calgary or Montreal--decides to crack down on guns and gangs, typically gangs are involved in the sale of drugs, so they might crack down on that and there might be more prosecutions arising. Sometimes we're not as quick in getting the resources. It's their decision, provincially and municipally, to put more resources there, but they don't give any resources to us to conduct the prosecutions. That's something we have to adjust to.

We have a planning cycle wherein we attempt to take into account the future pressures we expect as an organization, taking into account past experience and the information our chief federal prosecutors can glean on a regional basis about what they'll be facing in the forthcoming year.

[The Chair, Conservative, Ed Fast]

Thank you.

We'll move to Mr. Rathgeber.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Thank you, Mr. Chair.

I'd like to ask a couple of questions about these contract agents who work under your auspices. I see you're a member of the Alberta Bar, as am I. As you probably know, in a city such as Fort McMurray there is a significant problem with controlled substances. Given the amount of money that's involved in that trade, individuals who defend suspects who are charged are very handsomely compensated. I'm curious as to how the Director of Public Prosecutions can find qualified agents to do battle with the defence lawyers in that type of setting.

[Brian J. Saunders]

We recently received approval from Treasury Board to increase the rates paid to our agents. You will see under our legislation that although the director has the power to retain agents, the fees that are paid the agents have to be approved by Treasury Board. Originally, the fees were set back in 1990 and remained the same from 1990 until just last year. They're still low, I guess, in respect of some agents, but they went up to a maximum of $120 an hour, recently adjusted to $121 or $122.

There is authority, however, that rests with the director to provide what we call enhanced fees. In other words, we can give an hourly rate greater than $120. In situations such as Fort McMurray, where we might have difficulty finding a qualified agent because the economy is...I don't know whether it's still booming, but the economy is largely booming, and the salaries are much higher than elsewhere in the country.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

As a supplementary to that, has there been any change in the appointment process for federal agents since they're no longer contracted to the Department of Justice and are now contracted to the Director of Public Prosecutions?

[Brian J. Saunders]

Yes, there have been a couple of changes. The agents are appointed by the office of the director. There is no involvement by the Department of Justice or by the Attorney General in the selection or the appointment of agents.

We have recently decided to change the term of the contracts awarded to agents. This was in line with increasing their rates. We thought in the past that agents were in effect appointed on an indeterminate basis but could be dismissed at will, and we thought it more appropriate to allow more firms to have the opportunity to compete for these jobs and make it a bit more transparent, so we're introducing a system of five-year contracts for our agents. That doesn't mean that an agent who has a contract won't have the contract after the five-year period. It's simply that the agents would have to compete and prove to us they are the most meritorious firm to handle the work for us.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Am I to assume from that answer that contracts will be awarded to firms, not to individuals?

[Brian J. Saunders]

I guess I misspoke myself. We have 700 agents representing 210 firms, but typically we appoint individual lawyers. They receive the delegation to act as agents.

[Brent Rathgeber, Conservative, Edmonton—St. Albert, AB]

Thank you, Mr. Chair.