Justice Committee on May 8th, 2014

[Sean Casey, Liberal, Charlottetown, PE]

The last time you came before committee, we were talking about Bill C-13. You and your officials were either reluctant or outright refused to talk about the interaction between Bill C-13 and Bill S-4. I trust that you've had an opportunity to review the testimony of a fellow Nova Scotian, David Fraser, on this topic.

Is it still your position, Mr. Minister, that there is no relationship between the bill that's presently before the Senate with respect to online privacy and Bill C-13, the so-called cyberbullying legislation?

[Peter MacKay, Conservative, Central Nova, NS]

My position is the consistent one, which is that I can only speak to legislation for which I have responsibility, particularly a bill like Bill S-4 that has not passed into law. But is there an interaction? Is there a causal connection? By all means.

[The Chair, Conservative, Mike Wallace]

Thank you very much.

Thank you for coming back, Minister. Thank you for those answers.

Again, colleagues, members of the committee, if you have specific questions that you didn't get time to ask because of the voting situation in the House, send them through our office and we'll give them to the minister's office and you'll get a response.

I'm going to suspend for a minute while the minister and his staff leave.

[Peter MacKay, Conservative, Central Nova, NS]

Chair, thank you very much, and to committee members, I realize that you have a very busy justice agenda with more legislation in the pipeline. I commend you and the good work of this committee, for your work and your cooperation. I look forward to appearing before you again.

[The Chair, Conservative, Mike Wallace]

I'm sure you will. Thank you, Minister.

I want to welcome everyone to the Standing Committee on Justice and Human Rights. We were tight on time, so I didn't announce the meeting properly at the beginning because we wanted to get to questions of the minister and his statement as soon as possible.

This is meeting number 23 and it is televised. The orders of the day are regarding the main estimates of the Canadian Human Rights Commission, the Canadian Human Rights Tribunal, the Commissioner for Federal Judicial Affairs, the Courts Administration Service, the Justice department itself, the Director of Public Prosecutions, and the Supreme Court of Canada.

We've had the minister for, unfortunately, a broken-up first hour, but the second hour we're treating as a second panel. It is the officials—I'm getting it right now instead of calling them staff—the officials from the department coming to answer any questions. We're going to start the process all over again as if it's a new panel.

Do you have any opening statements? Do you want to introduce anybody, Mr. Pentney?

[William F. Pentney, Deputy Minister of Justice and Deputy Attorney General of Canada, Department of Justice]

I'm William Pentney, deputy minister of justice. I'm here with Marie-Josée Thivierge, who is our assistant deputy minister responsible for the management sector and chief financial officer; Carole Morency, senior general counsel and director general of criminal law policy; and Barbara Merriam, director general of our programs branch.

[The Chair, Conservative, Mike Wallace]

Mr. Saunders.

[Brian J. Saunders, Director of Public Prosecutions, Office of the Director of Public Prosecutions, Public Prosecution Service of Canada]

I'm Brian Saunders, Director of Public Prosecutions. I'm here with George Dolhai, who is one of our two deputy directors.

[The Chair, Conservative, Mike Wallace]

Thank you all for joining us. I know there's potential for other staff to join us if required.

With that, Madame Boivin, the time is yours.

[Françoise Boivin, NDP, Gatineau, QC]

My thanks to all the witnesses for being with us today.

Clearly, as the chair of the committee said, we are here to look at the main estimates a little. As I was saying to the minister just now, this exercise is sort of phoney to some degree because of the short time we have and the amounts you have in your budgets, whether at the Department of Justice or the Office of the Director of Public Prosecutions.

I am going to look at some items that are of interest to me regardless of the numbers. The figures will probably be readjusted three times over the year anyway. That is what I was told about the legal aid.

My first question will be a bit more general and it is for the officials from the Department of Justice. That is part of your role.

I was looking at the main estimates 2014-15 and each of your categories that are being studied. When I look at what the Department of Justice needs to do, a large part of its role is to provide legal advice to the minister in terms of his responsibilities to ensure legislation is consistent with the Charter and constitutional, and so on. It also has a role to play for other departments.

We know that the issue of appointments to the Supreme Court of Canada is making the headlines a lot. Legal opinions from outside have also been requested. However, Mr. Pentney, have your services also been used by the department to issue specific legal opinions on eligibility?

My second question is for the Director of Public Prosecutions. A particular matter has caused a stir in the House of Commons. It has to do with the rather large sum of money paid by an employee from the Prime Minister's Office to reimburse the perhaps questionable expenses incurred by a senator. An investigation was conducted on the issue.

One of the roles of the Office of the Director of Public Prosecutions is to advise investigators of what is happening. Let me read what it says in the document attached to the main estimates:Where required, the ODPP also provides prosecution-related advice to investigators for all types of prosecutions. Such advice continues to be crucial to ensure that investigative techniques and procedures are consistent with evolving rules of evidence and protections under the Canadian Charter of Rights and Freedoms. The advantage of early prosecutorial advice is that it reduces the risk that operational decisions, such as those about methods of obtaining evidence, will detrimentally affect the admissibility of evidence at trial or the constitutional rights of Canadians.

In short, that is what we usually see with crown prosecutors in trials other than yours. In those cases, the police is in constant contact to see if there are grounds for prosecutions.

Is it safe to say that your services have not been contacted at all so that you can express an opinion on the matter of laying charges in a given context, such as Mr. Wright's case?

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

I have a point of order, Mr. Chair.

[Françoise Boivin, NDP, Gatineau, QC]

Have you been contacted?

[The Chair, Conservative, Mike Wallace]

Mr. Dechert.

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

The other part of my point of order, Mr. Chair, is that I didn't hear at least thus far any question regarding the estimates.

[The Chair, Conservative, Mike Wallace]

She's reading from the document that refers to the plans and priorities of that department, which relates to their activity and the question and the plans and priorities documents are part of the estimates process, so it is in order. The question was whether those plans and priorities had anything to do with the recent investigation and did they have any involvement. I think it's a yes or no answer myself, but it's up to them to answer.

[Brian J. Saunders]

My answer has two parts.

First, the RCMP, or any other investigation agency, is not required to consult us during an investigation. It is up to them to decide whether they need a legal opinion or not.

Second, we do not give confirmation on whether an investigation agency communicated with us during an investigation. We consider that to be an issue of solicitor-client privilege.

[Françoise Boivin, NDP, Gatineau, QC]

In other words, if you are asked, you cannot say whether, yes or no, you were contacted to—

[Brian J. Saunders]

No. We cannot confirm or deny that.

[Françoise Boivin, NDP, Gatineau, QC]

Wow.

What about the Department of Justice?

[William F. Pentney]

For obvious reasons I can't speak to advice that is or is not given to the minister. I can say that in terms of judicial appointments, the Office of the Commissioner for Federal Judicial Affairs was established in part to administer the process for application and consideration, and it supports the process that has now been established for dealing with the Supreme Court of Canada nominations. Within the department, within our policy sector, we do look at policy questions and legal questions associated with the Judges Act, the framework and process. But I can't speak to, for obvious reasons, whether advice was given or not.

[The Chair, Conservative, Mike Wallace]

One last question, Madame....

[Françoise Boivin, NDP, Gatineau, QC]

I'm just trying to understand. I'm not asking you to give me the content of the so-called legal advice. We could argue till death do us part on if it breached some professional secrecy or whatever. But was there anything? Were your services approached to furnish...or it just went outside because you often, at your service, instead of doing it in-house, can hire somebody outside? So was it hiring outside so that the service inside didn't do it, or it was done also and something else happened at that...?

[William F. Pentney]

I believe statements have been made by either the minister or the Prime Minister indicating that advice was sought both inside and from outside experts.

[Françoise Boivin, NDP, Gatineau, QC]

Thank you.

[The Chair, Conservative, Mike Wallace]

Thank you.

Thank you for those questions.

Our next organization is the Conservative Party. Does somebody want to take the slot, or do you want me to take the slot?