Justice Committee on Feb. 21st, 2019

[Ali Ehsassi, Liberal, Willowdale, ON]

Thank you for confirming that.

Another thing you alluded to is the fact that remediation agreements are legal tools. Why do you call them legal tools? Is it correct that courts would be very much involved in ratifying such agreements?

[Nathalie Drouin]

Yes, you're right.

The agreement has to be accepted by the judge. The agreement has to be public too. This is an important aspect. And before a remediation agreement is concluded, victims must be consulted.

[Ali Ehsassi, Liberal, Willowdale, ON]

Would you care to add anything to that?

[David Lametti]

That answers it perfectly.

[Ali Ehsassi, Liberal, Willowdale, ON]

Thank you for that, and thank you for confirming that the courts would be involved.

Another issue that is of concern to many, given what we have heard, is an issue to which you have alluded. I'm speaking about the Shawcross doctrine. Next week, we will have the opportunity to hear from experts. As you know, the Shawcross doctrine fuses together various principles. Can you unpack those principles, the ones which, in your opinion, are relevant?

[David Lametti]

As I said in my opening remarks, the Shawcross principle protects the unique role of the Attorney General to make decisions which are his or her responsibility. It also recognizes that the Attorney General is not an island, and that there are various kinds of considerations that an Attorney General would be wise to take into account. Lord Simon said in the famous quote on Shawcross that an Attorney General might be a fool not to take those into account. It recognizes that there will be conversations that need to happen on a variety of different issues. Once you take that into account, it is a question that will always have to be answered on the facts. Speculating further on what is appropriate or inappropriate would be impossible for me to do.

[Ali Ehsassi, Liberal, Willowdale, ON]

As I understand it, can there be many discussions, but ultimately or eventually, the decision is the Attorney General's?

[David Lametti]

That's right. As Lord Shawcross said, it's his to make, and I would say it's his or hers to make.

[Ali Ehsassi, Liberal, Willowdale, ON]

You have said that you will refrain from speculating, but in your opinion, is the Shawcross doctrine and the principles objective or subjective?

[David Lametti]

The answer is somewhere in between, because the facts will always be, in a sense, subjective in the eyes of the beholder. There's no clear answer to that question. Any good lawyer will be able to spin objectivity into subjectivity and vice versa, so I'm not going to do that. I'm going to say that it's a difficult question in each and every case and must be resolved on various facts by the parties who are involved in it.

[Ali Ehsassi, Liberal, Willowdale, ON]

On several occasions today you said that the Attorney General is not an island. This is something that I understand you brought up with the Canadian Bar Association last week, as well.

We know there are complex issues involved, but there are also various responsibilities that you have. Could you tell us what those distinct obligations are?

[David Lametti]

What I said to the Canadian Bar Association is quite in line with what I'm saying here today. I am open to conversations as Attorney General and a member of cabinet. When I put on my hat as Attorney General to make a decision, as Attorney General that decision is mine alone.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Ms. Raitt.

[Lisa Raitt, Conservative, Milton, ON]

Thank you very much.

Ms. Drouin, I have a very quick question.

I want you to confirm for me that the directive you spoke about that would be published in the Canada Gazette does not need to be published until after the matter is concluded, meaning after the court has agreed to the remediation agreement and everything is final. Is that correct? That's section 11 of the act. Is it not?

[Nathalie Drouin]

I just want to make sure. Are you talking about the directive that was—

[Lisa Raitt, Conservative, Milton, ON]

A directive from the Attorney General to reverse the decision of the director of public prosecutions that's supposed to be published in the Canada Gazette does not need to be published until after the court proceeding has concluded, meaning the court has accepted the remediation agreement. Is that not true?

[Nathalie Drouin]

You have many kinds of possibilities. It depends on the nature of the—

[Lisa Raitt, Conservative, Milton, ON]

Is it true what I stated, that it doesn't have to be published until after—

[Nathalie Drouin]

It depends on the nature of the directive. The first thing is, when an Attorney General decides to issue a directive, he has to consult with the DPP.

[Lisa Raitt, Conservative, Milton, ON]

I understand the process, Madam. What I want to know, is it not possible that a directive would not be published in the Canada Gazette until after the court had concluded the matter? Is that not possible according to the act?

[Nathalie Drouin]

I don't provide legal advice to the committee.

[Lisa Raitt, Conservative, Milton, ON]

Sure, okay.

[Nathalie Drouin]

It's so fact dependent, but I think what is important is to understand the steps and also to understand that any directive has to be published in the Canada Gazette.

[Lisa Raitt, Conservative, Milton, ON]

I understand, and what I'm trying to tell you, Madam, is the fact that this notice does not have to be published until well after a federal election in 2019.

[Nathalie Drouin]

I'm not sure you can conclude that, because it's really fact dependent—