Justice Committee on Feb. 25th, 2019

[Mary Condon]

I'll address the last aspect of your question first. I think this comes back to the question of parliamentary accountability, in the sense that one remedy for the Attorney General who finds himself or herself in that position is to seek to describe that circumstance in Parliament.

However, in the context in which this is all happening with respect to a decision to prosecute or not to prosecute the challenge is, I think, that most people in the position of Attorney General or DPP would need to wait until a matter had been concluded, so they were not influencing the procedure of the matter going through the criminal justice process before they would speak on those issues.

[The Chair, Liberal, Anthony Housefather]

Thank you.

Mr. Rankin.

[Murray Rankin, NDP, Victoria, BC]

Professor St-Hilaire, you said two things in the last intervention which I found to be very important.

The first is you said that what counts is if she made her own final decision. Of course she did here. There was a decision on September 4, and then it was clear that the Attorney General was not going to change it. Then you said about the deferred prosecution agreements that it was—I think I'm quoting you—“clear as black and white”, that you could not apply the national economic interest under that statute. It was clear that was not a factor that could be applied in that circumstance.

If the final decision was made by the DPP and the former attorney general, what possibly could be proper in conversation with the then attorney general after that time? Do you agree with Mr. Andrew Roman? He wrote:

The only reason for either [the Prime Minister or his senior staff] to discuss her...decision would be to encourage her to change it, without being seen to do so. This is damaging to the rule of law.

Do you agree with that?

[Maxime St-Hilaire]

I actually have a hard time seeing how the theory could apply, if a decision has already been made. If the decision has already been made, I have a hard time seeing how information that is useful to that decision can be obtained. If there are discussions in cabinet on a specific case and the decision has already been made, that is very dubious.

Does that answer your question?

[Murray Rankin, NDP, Victoria, BC]

Yes, it does. Thank you.

[The Chair, Liberal, Anthony Housefather]

Mr. Cooper.

[Michael Cooper]

Picking up on that, Professor St-Hilaire, you said that you would find it difficult to construe how any further information could be useful once the Attorney General had made her decision on the matter. I guess it would also be further problematic if the nature of those discussions related to matters that were expressly precluded, would it not? That could amount to some indication of some level of pressure, really.

[Maxime St-Hilaire]

It could.

[Michael Cooper]

Mr. McKinnon made the comment that people try to influence cabinet colleagues all the time, but clearly not in terms of the Attorney General exercising his or her prosecutorial discretion. Would you agree?

[Maxime St-Hilaire]

No one is supposed to exert pressure, but they can make useful information available.

I am not sure whether this is a good time to do this now, but I would like to clarify the recourse available for implementing the Shawcross theory. We have talked about responsibility to Parliament, but I would just like to emphasize something. A distinction has to be made between the government's responsibility before the House, which comes as a bloc, and the individual responsibility of ministers. Ministers are individually responsible for the normal operation of their departments.

Now, when a number of ministers hold discussions in cabinet and there are dissensions or disagreements, that is covered by secrecy. In other words, responsibility before the House is of very limited use in terms of knowing whether the Shawcross theory has been properly applied. It is very difficult because individual ministerial responsibility is largely limited to matters involving the daily operation of the department. In my opinion, it would be difficult to apply that to cabinet discussions where disagreements arose. If there are disagreements between members of cabinet, the individual responsibility would not allow those facts to be revealed to the public. In my opinion, the doctrine remains relatively arcane and difficult to put into practice.

[Michael Cooper]

Okay, thank you.

[The Chair, Liberal, Anthony Housefather]

Colleagues, Mr. Fortin is asking if he can have three minutes.

Is it okay?

[Some hon. members]

Agreed.

[The Chair, Liberal, Anthony Housefather]

Mr. Fortin, you have three minutes.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

Thank you, Mr. Chair.

Dean Condon, as I understand it, you said earlier that the Attorney General is supposed to make sure that they have the confidence of cabinet at all times. If that is not the case, the person should resign.

Am I to understand that, if the Attorney General no longer has that confidence, but does not resign, the Prime Minister can legitimately relieve them of their duties? In other words, what is that person open to if they do not resign when they no longer have the confidence of cabinet?

[Mary Condon]

I think what I would say about that is that the critically important role that the Attorney General has to administer justice and pay attention to the rule of law is the consideration that needs to be uppermost in the Attorney General's mind.

Again, without specific facts before us, it's hard to imagine a circumstance in which, if the Attorney General's independent decision-making were being somehow undermined and the confidence in her or his independent decision-making were being undermined by his or her colleagues, it would be possible to continue to execute this really difficult role that this individual has to play.

Having said that, as I said earlier, the decision should not be rendered in a context in which there might be an individual disagreement about a particular interpretation of the public interest. I think this does have to be a rather serious demonstration of lack of confidence before the Attorney General would take that very dramatic step.

I think I am not quite addressing the first part of your comment. Perhaps you could repeat it for me, because I think I've wandered somewhat away from it.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

I did not hear the end of the answer. The interpretation cut out beforehand.

[The Chair, Liberal, Anthony Housefather]

She asked you to repeat the first part of your comments.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

Okay.

As I understand your comments, the Attorney General must resign if he or she no longer has the confidence of cabinet.

My first question was whether the person should make sure to have the confidence of cabinet at all times in terms of the decisions they are making.

Second, inasmuch as that person no longer has that confidence, but does not resign, what is that person exposed to? Would a demotion by the Prime Minister be justified under those circumstances?

[Mary Condon]

Well, as I say, I think the reason for resignation is the inability to continue to discharge the role of Attorney General specifically.

Again, to reiterate, this is not something that should happen easily but needs to probably occur if there is some significant series of events that occur that make it difficult for the Attorney General to continue to discharge the role.

As to the question of the appropriate characteristics and qualities that are needed to fulfill the role, presumably there are opportunities for cabinet to determine that, in specific factual circumstances, it may be preferable for someone else to fulfill the role. But, again, the risk is, for a group of cabinet ministers as a whole, that they are also subject to public and political accountability for those kinds of determinations.

[Rhéal Fortin, Bloc, Rivière-du-Nord, QC]

Thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you very much.

Colleagues, we have exhausted our time on the first panel.

Before moving to the second panel, we have a budget in front of us for these meetings, and I would ask if everybody would be prepared to accept it. It's for $5,900.

Colleagues, is everybody agreed?

[Some hon. members]

Agreed.

[The Chair, Liberal, Anthony Housefather]

Thank you.

We'll just take a brief pause in the meeting and recess briefly to allow the second panel to be set up.

Thank you.

[The Chair, Liberal, Anthony Housefather]

Thank you, everyone.

We will now reconvene the meeting with our second panel of the day.

It is a great pleasure to be joined by Ms. Mary Ellen Turpel-Lafond, senior associate counsel, Woodward and Company, and professor at the University of British Columbia in the law school. Welcome, Ms. Turpel-Lafond. Thank you for joining us.

Here in the room, we have with us, Ms. Wendy Berman, who is a lawyer and partner at Cassels Brock and Blackwell LLP; and Mr. Kenneth Jull, lawyer and academic at Gardiner Roberts. Welcome.

As per our practice, we normally go with the person on video conference first in case anything happens to the connection.

Ms. Turpel-Lafond, the floors is yours. You have eight to 10 minutes.