Justice Committee on March 23rd, 2010

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

You just said we shouldn't study the case of Mr. Jaffer, and that's exactly what the motion says. So how can you support it based on what you said?

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

I guess if I wanted to bring an amendment, I would have brought it. I can support that.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

So we should disregard what you said, because this motion requires this committee to study the specific case of Mr. Jaffer?

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

And frankly, I'll be quite interested in what the federal Director of Public Prosecutions and any provincial representatives have to say about it.

[The Chair, Conservative, Ed Fast]

Does anyone else have a comment?

Mr. Dosanjh, then Monsieur Ménard, and then Mr. Rathgeber.

[Ujjal Dosanjh, Liberal, Vancouver South, BC]

I'm not familiar with the situation in Ontario. I understand that the Ontario prosecutors also are responsible for prosecuting federal drug offences. Am I correct, Mr. Comartin? That's a delegation of responsibility, but it's still, in essence, constitutionally a federal responsibility.

Disregarding the personal elements of this case, I would be interested in how and why the drug charges were not proceeded with. That is a federal responsibility and not strictly a provincial responsibility, although in Ontario's case it's delegated.

[The Chair, Conservative, Ed Fast]

Monsieur Ménard.

[Serge Ménard, Bloc, Marc-Aurèle-Fortin, QC]

I totally agree with many of the things that were said regarding the importance of the credibility of our justice system. Indeed, incidents such as these can undermine it. But that is not the issue. In any case, it is important to understand that, over the years, this credibility may be thrown into question by some, sometimes rightly so and other times, not. That is not the issue concerning us today.

We live in a federal system where there are indeed elements that are very connected, especially in terms of criminal law. That law comes under the federal Parliament, but the administration of criminal justice is the responsibility of the provinces. It is true that certain aspects of the administration of the criminal justice system can come under federal jurisdiction, and that can change from time to time. But it is important to understand that both levels of government are sovereign in their activities.

Basically, this motion asks us to call on an Ontario government official to appear in order to explain, and I would even say defend, his position. We are members of a federal parliamentary committee. Personally, I can tell you that if I had been the justice minister and one of my employees was asked to come and justify a decision that he made before a House of Commons committee, I would not have allowed that employee to do it. I think we have a great deal of authority, but when a provincial government exercises its jurisdiction by administering the criminal justice system, the province is sovereign, even if the jurisdiction can be shared.

It is a fact that certain drug prosecution cases are handled by the federal government and others by the provincial government. As a former crown prosecutor at both levels of government, I prosecuted such cases for both. But when someone does so within their own jurisdiction, that person is sovereign in that area and does not have to be accountable to a House of Commons committee.

I respect the reasons for which this motion was moved, and I understand them. I agree with everything that the person who moved the motion said, except for one thing. In my opinion, a provincial official should not have to defend a position of theirs before a House of Commons committee.

That is why we will vote against this motion.

[The Chair, Conservative, Ed Fast]

Thank you.

We'll move on to Mr. Rathgeber.

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

Thank you, Mr. Chair.

I'm certainly struggling with this motion. I have great respect for Mr. Comartin and for what he stands for, normally. But I can't help thinking, after having assessed this motion, that this motion has very little to do with policy and quite a bit to do with politics.

I'm saddened, quite frankly, Mr. Chair, that the members of this committee saw fit to overrule your ruling that this motion was out of order. The mandate of this committee is set out, and it appears to me that this proposed study doesn't fit with any of the five provisions of what this committee is mandated to do.

I said I'm torn because as much as I think all members of this committee, and certainly myself, want to see the administration of justice not brought into disrepute--and I have every confidence that if this motion is successful and if we go down this road, at the end of the day we will come to that determination--nothing untoward occurred that would bring, to use the words of the preamble, the “loss of faith in the integrity of the criminal justice system”. I'm confident that if we go down this road, my and the public's confidence in the administration of justice will be maintained.

But I do have one concern that I want to share with the members of this committee before they cast their votes, and that's the convention of sub judice. With this specific case, I don't know the exact date of the disposition, but I know it was in the month of March. I'm not a practising lawyer in Ontario, but if the appeal rules are anything similar to Alberta, there would be a 30-day appeal period, and I would think this committee would want to exercise caution in assessing a matter that is still before the courts of Ontario.

Those are my comments, Mr. Chair.

[The Chair, Conservative, Ed Fast]

Thank you.

We'll move on to Mr. Dechert.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

Thank you, Mr. Chair.

Mr. Chair, I have to say that I'm shocked and saddened that Mr. Comartin, who I understand is an esteemed counsel with the bar of Ontario, would bring forward this motion. He well knows that it is inappropriate to compel a prosecutor to reveal the facts of a case like this. He knows that, and he is doing it for partisan political reasons, and everyone in Canada knows that's the reason this motion is being debated here. Every member of the opposition knows that too. They're all trained lawyers, I believe, and they all understand that the presumption of innocence applies to everyone who stands before the criminal justice system in Canada. If I were a cynical person, I'd ask Mr. Comartin to add the words that the committee conduct two days of hearings on the “cases of Mr. Rahim Jaffer and Mr. Svend Robinson”. We could maybe examine that. Perhaps we could throw in—if I were a cynical person—a few dozen other former members of Parliament in all parties. Maybe we could do that, but I'm not asking to, because I don't think that's what we ought to be doing here.

The Attorney General of Ontario gave a very clear answer on this case. He said:

In this case, the Crown stated the basis for the withdrawal of charges in Court; namely, that there was no reasonable prospect of conviction because there were issues relating to the admissibility of evidence that was available.

That is what was put before the judge in the presence of defence counsel when the charges were withdrawn. The prosecuting crown has the duty to make such assessments and is in the best position to do so based on all the facts available. Where there is no reasonable prospect of conviction, the presumption of innocence and basic considerations to the accused limit the ability to comment on the case. As a matter of justice, it is important that this principle apply to all accused, regardless of their name or office. The chief crown prosecutor for the province has reviewed the case and is entirely confident that the crown acted properly and in keeping with the proper administration of justice.

In my view, that should be the end of this matter. Everyone is entitled to the right of presumption of innocence. It is the basic fundamental tenet of our criminal justice system. If this committee chooses to go forward with this study, in my view it's simply saying to the people of Canada that the presumption of innocence does not apply to everyone and that we will do anything we wish for partisan political gain.

As I said earlier, once the crown prosecutor has decided that there isn't sufficient evidence to convict, that's the end of the matter; it's as if the criminal charges never existed. It's the crown prosecutor's job to decide if there's a reasonable prospect of conviction. They do that every day, as you know. Every day they put to the courts--

[The Chair, Conservative, Ed Fast]

Order.

I'm hearing a lot of discussion here at the table. I've recognized Mr. Dechert. When he has finished we'll recognize the other people who have asked to be recognized, but we need some decorum here. Thank you.

Mr. Dechert, please proceed.

[Bob Dechert, Conservative, Mississauga—Erindale, ON]

Thank you, Mr. Chair.

Every day, crime prosecutors across this country examine the evidence in the cases before them where charges are laid by police officers. It's the duty of the police officer to lay a charge where he or she thinks an offence might have occurred, and it's the duty of the prosecutor to decide whether there's a reasonable chance of conviction.

In this case, they did that job. We don't know what the reasons were, and we shouldn't know what the reasons were. If the crown of this country has determined that there is no sufficient evidence to support the charge, there is no charge and that person is presumed to be innocent, and we should not derogate from that.

For those reasons, I don't believe this committee should adopt this motion.

[The Chair, Conservative, Ed Fast]

Thank you.

Monsieur Petit.

[Daniel Petit, Conservative, Charlesbourg—Haute-Saint-Charles, QC]

Thank you, Mr. Chair.

Serge Ménard made a point that I, too, agree with. From a legal perspective, and under the constitution, criminal law applies to Canada as a whole, but the administration of that criminal law in each province is the inalienable right of every province and territory.

I will explain what that means. Let's say that Serge Ménard is my former justice minister. He has worked on major cases, and it is indeed his department, his prosecutors who laid the charges in all organized crime cases. Let's say that, at the time, I was here in Ottawa as a member. I would think that my Quebec justice minister did not do his job—just as we have said here. I would make him appear before me and explain all of his decisions to determine whether the person was properly sentenced.

We are setting ourselves up as a court of appeal. We do not have that right; it is not allowed. There is a jurisdiction for that: the provincial criminal justice court, the superior court in some cases, the court of appeal, all the way up to the Supreme Court. But we, as lawmakers, cannot act as substitutes for judges. And that is what we are doing.

What Mr. Comartin is doing or trying to make us do is to act as substitutes for judges because he is introducing a very specific idea. He says he wants to know what happened in the case of Rahim Jaffer. Let's not mince words: it is a partisan decision. That surprises me coming from Mr. Comartin, who I usually never see take... Perhaps his party forced him into it, I am not sure. But it is strictly a partisan decision.

We would have to take the case of Rahim Jaffer, we would have to bring in all the representatives, including Ontario's attorney general, and we would have to—because that is what the motion says—ask questions about Rahim Jaffer's case, to determine whether there was interference. Initially, he said there may have been political interference in the legal system. That is what he does not want to say.

In the end, he would accuse us of political interference. So let's call it what it is. It is not true, that never happened, and Serge Ménard is indeed right: we cannot interfere with a province's administration of justice. If we did, all the provinces would revolt tomorrow, because we would be taking away one of their constitutional rights. Section 91 or 92 sets out a division of powers. With this motion, we would be requiring the province to appear before us and to be accountable to us, as if we were its older brother. That is the message we are sending.

The motion is partisan, exclusive and dangerous. We cannot accept that sort of motion.

[The Chair, Conservative, Ed Fast]

Mr. Dosanjh.

[Ujjal Dosanjh, Liberal, Vancouver South, BC]

I think I will just let my colleague...

[The Chair, Conservative, Ed Fast]

All right, we'll move on to Ms. Mendes.

Go ahead.

[Alexandra Mendes, Liberal, Brossard—La Prairie, QC]

Thank you, Mr. Chair.

I find it particularly ironic that right now we have all these champions of the presumption of innocence and of prosecutorial independence. Last year in the citizenship and immigration committee it was very easy to accuse one of our colleagues, a courageous colleague, about something she was never, ever formally accused of.

[A hon. member]

Has she been charged?

[Alexandra Mendes, Liberal, Brossard—La Prairie, QC]

Precisely. She was never charged. Is it better to be charged then?

[A hon. member]

Is anybody suggesting we do a study?

[Alexandra Mendes, Liberal, Brossard—La Prairie, QC]

No, but she came in front of a committee yesterday.

[The Chair, Conservative, Ed Fast]

Order, order.

Ms. Mendes has the floor.