Thank you, Mr. Chair.
I will really try to be brief. Today, I want to focus on and reproduce the essence of the post that I and my colleague Martine Valois from the Université de Montréal published on the blog called Advocates for the Rule of Law. I want to situate the Shawcross theory and the constitutional convention that applies here in a little wider perspective of a general framework. But I also want to analyze it in the light of what we can call global best practices for the independence of the public prosecutor, or, as we call it, the Attorney General.
I will go straight to the point and state my thesis right away; I will argue the case thereafter. I think that matter that has our attention at the moment gives us the opportunity to focus on how well the rule of law is implemented in Canada. I believe we can do better. My principal source for the global best practices in this area is the second report on the independence of the justice system produced by the Venice Commission, with its specific emphasis on the prosecution service.
Let me quickly explain what the Venice Commission is. The commission is made up of independent experts in constitutional law. It is an advisory body to the Council of Europe, which is now governed with an expanded agreement. The Venice Commission is made up of members from 47 countries that are part of the Council of Europe and 14 other countries that are not part of the council, including the United States. Canada has had observer status at the commission for a long time.
The global standards identified by the Venice Commission are not rules of international law. Rather, they are expert opinions on best practices, when it is possible to provide them.
The commission therefore specifically focused on the matter of an independent prosecution service. It notes at the outset that the institution of an independent public prosecutor is unknown in original common law. The institution comes instead from the European tradition of civil law. The commission notes that most common law countries have adopted the European model and have created positions such as director of public prosecutions, for example. Other ways of adopting the global standards include the solution used by the United Kingdom, where the independence of the Attorney General as a prosecutor is preserved by no longer being a member of the cabinet.
So what are the best practices for the independence of public prosecutions? The commission recognizes that it is normal for the executive to have policies for crimes and to have a kind of general influence over the prosecutor. However, the recognized global standards acknowledge that it should not be possible for the executive to give instructions on specific cases or to substitute itself for the prosecutor in deciding whether to prosecute or not. Those are the best practices.
In Canada, federally, the Director of Public Prosecutions Act, 2006, created the position of an independent director of public prosecutions. Subsection 10(1) and section 15 of the act allow the Attorney General to give instructions on specific cases or to substitute him or herself for the director of public prosecutions after publishing a notice in the Canada Gazette. The problem arises from the fact that the Attorney General remains a member of the executive. As a result, the act currently in effect in Canada does not meet global standards, in my opinion.
If the Attorney General were not a member of cabinet, as is the case in the United Kingdom, subsection 10(1) and section 15 of the act could be kept. However, since the Attorney General is still part of the executive, it is relatively clear, in my opinion, that it does not comply with the best practices, and that there should be a way to do better.
To my knowledge, the Shawcross theory goes back to 1951. I am not an expert in the doctrine to the extent my colleague is. But the existence of this constitutional convention changes none of the facts in Canada. We have created the position of an independent director of public prosecutions, while the Attorney General remains a member of cabinet, with all the power to become directly involved, even on specific cases, over and above the simple policy for prosecutions.
I would like to remind you that, although my colleague was talking about legal principles in her introduction, it became clear as her presentation proceeded, that we are actually talking about the Shawcross theory. This is a constitutional convention. It is not a legal standard; it is a standard that forms part of our political constitution.
With all its wisdom and finesse, the Shawcross theory, as a constitutional convention, is still limited in its effectiveness. This is because it remains difficult to know whether or not it has been applied or not in given cases, because of the secrecy of executive deliberations. It is a logical consequence of cabinet solidarity and of the solidarity of a government that receives its confidence from a bloc in the House. So the theory is limited in its effectiveness.
Besides, the theory took root in the United Kingdom where they did not have an independent prosecutor system such as the one we have tried to create here in Canada, albeit imperfectly. The theory also goes back to a time when they had not yet decided to align themselves with the European model a little more by excluding the Attorney General, as a prosecutor, from the executive.
In general, Canada should not try to become more conservatively British than the British themselves. We should be able to see how the United Kingdom has embraced the global standards borrowed from the European tradition. Then, two practical solutions present themselves: either exclude the Attorney General from the executive and create a distinct position of Minister of Justice, or, leave the Attorney General as a member of the executive, but repeal subsection 10(1) and section 15 of the Director of Public Prosecutions Act.
That is all I had to say.
Thank you.