Justice Committee on Feb. 25th, 2019

[The Chair, Liberal, Anthony Housefather]

With committee members here and witnesses ready, we are going to start in 30 seconds.

Please take your seats.

Good afternoon, everyone.

Pursuant to Standing Order 108(2), we are continuing our work on remediation agreements, the Shawcross doctrine and the discussions between the Office of the Attorney General and government colleagues.

This hour we have two witnesses on the Shawcross doctrine.

It's a pleasure to welcome Mary Condon. Ms. Condon is the interim dean at Osgoode Hall Law School. Welcome, Ms. Condon.

We also have with us Maxime St-Hilaire, associate professor, faculty of law, Université de Sherbrooke.

Welcome, Mr. St-Hilaire.

Colleagues, to recap what I mentioned at the previous meeting, I am going to hold strictly to time allocations more so than I normally do. I would ask everyone to let witnesses complete their answers, but witnesses to be brief so committee members can get in their questions during their allotted time.

I appreciate your both being here.

We will start with Ms. Condon.

[Mary Condon, Interim Dean, Osgoode Hall Law School, As an Individual]

Good afternoon, committee members. Thank you for the invitation to speak to you today and for your flexibility in allowing me to appear remotely.

My topic today is that of prosecutorial discretion and the Shawcross doctrine, and I would begin by saying that I was lucky enough to study this topic with two world-renowned Canadian experts, Professor John Edwards and Professor Philip Stenning. I will draw on their works in these remarks about the legal principles involved, for about eight to 10 minutes.

Speaking as an academic, I thought it would be important to start with some first principles to put the Shawcross doctrine into perspective.

As members of the committee know, an Attorney General is required to fulfill multiple roles. He or she is required to be a legal adviser to parliament and to the government, but he or she also exercises the prerogative power to prosecute criminal offences, and it is this power that is the focus of attention today.

It is now established by constitutional convention that the Attorney General will make an independent decision to prosecute or not to prosecute. This requires making a two-step determination about, first, the sufficiency of the evidence and, second, whether the prosecution is in the public interest. Because of the necessity to consider the public interest, commentators often say that the prosecutorial decisions made by an Attorney General are at the intersection of law and politics.

Because of this intersection, many jurisdictions have appointed a director of public prosecutions in order to insulate prosecutorial decision-making from the perception that political considerations are uppermost in the mind of the decision-maker. If a DPP is appointed, however, as has been the case in Canada, there are the same expectations that the DPP will exercise her or his prosecutorial power in the public interest.

So how is the Attorney General or DPP supposed to discern what is in the public interest in order to exercise their discretion? As Professor Edwards argues in his book, the task of the Attorney General or DPP is a difficult exercise of weighing a number of competing considerations. It's in this context that the Shawcross doctrine becomes relevant.

As members of the committee already know, this is a guideline that was first promulgated by Lord Shawcross, the Attorney General in the U.K. in the 1950s, and has since been relied upon in Canada. The doctrine says that the Attorney General must acquaint himself or herself with all the relevant facts and with the considerations that affect public policy. In doing so, he or she may consult with colleagues, and in some circumstances, as Shawcross noted, he or she would be foolish not to.

A good example of the need to consult in order to have a full appreciation of the issues is the well-known case in the U.K. from about 10 years ago, the BAE—or British Aerospace—case. Here, the issue was whether considerations of national security required that the Attorney General discontinue a prosecution. It was considered not reasonable to expect that the Attorney General himself would have a full understanding of what national security would require, so he would have to seek that advice in order to inform the decision.

In the case, the Attorney General consulted a wide range of informants, both inside and outside cabinet. The record shows that there were repeated meetings about the issue. The position taken by several of the Attorney General's parliamentary colleagues in the U.K., including the Prime Minister, was that national security did require that the prosecution be discontinued. I would also note in passing here that the Canadian DPP act explicitly says that the DPP is allowed to engage technical experts to provide advice.

However, the Shawcross doctrine is clear that the assistance and advice of colleagues is confined to informing the Attorney General of particular considerations which might affect her or his decision, and it “must not consist in telling him” or her “what the decision ought to be”. The Attorney General should not be put “under pressure” by colleagues and, in particular, should not be put under partisan political pressure.

Professor Edwards, for example, suggests in his book that the Attorney General should refuse to listen to arguments based on “political expediency”, but rather should apply his or her “judicial mind” to the circumstances at issue. This is necessary to maintain the integrity of the office and the integrity of the administration of justice.

Meanwhile, Professor Stenning and others have suggested that, leaving aside the problem of partisan advice, the most challenging issues arise when there are a number of competing legitimate interpretations of the public interest, so that the relative importance of each has to be assessed and balanced. Again, I would note that in the BAE case, other definitions of the public interest beyond national security were identified. Those included national commercial interests and harmonious relations between the U.K. and Saudi Arabia.

While the Attorney General in the BAE case indicated that he had not based his decision on these factors, it remains the case that where several legitimate public interest considerations are available, ultimate responsibility is placed on the Attorney General to interpret the advice given by parliamentary colleagues or others and to make an independent decision about how to assess them.

As I have said, in this process, considerations of the integrity of the administration of justice and the rule of law are repeatedly [Technical difficulty—Editor] No specific remedy is laid out in Shawcross's original account of his doctrine as to the consequences [Technical difficulty—Editor] if the principles he enumerated are breached.

Here, a key distinction should be made between parliamentary and legal accountability.

With respect to parliamentary accountability, having made an independent decision, the Attorney General can be rendered accountable to Parliament after a matter has been concluded by being asked to account for actions taken or not taken. Parliamentary accountability may also require that an Attorney General resign if he or she no longer has the confidence of cabinet.

Meanwhile, with respect to legal accountability for a prosecutorial decision, if the prosecution is proceeded with, there will ultimately be a judicial determination as to the appropriateness of the Attorney General's decision to prosecute, in terms of whether the charges result in acquittal or conviction.

On the other hand, where a prosecution is discontinued, as it was in the BAE case, for example, that decision was the subject of judicial review, with the House of Lords ultimately concluding that the rationale of national security was an appropriate one for the Attorney General to use to guide his decision. Another avenue of legal accountability that is available is the abuse of process doctrine.

Let me turn for my remaining couple of minutes to deferred prosecution agreements specifically, since the possibility of the DPP entering into one of these agreements was enacted into the Criminal Code in September 2018.

It's important to recognize that the provisions dealing with DPAs identify a long list of factors that the prosecutor is required to consider in order to determine if it's in the public interest to enter into a DPA, in addition to other conditions that must be met. There is also a list of factors identified that the prosecutor may not consider if the offence is alleged to have been committed under the Corruption of Foreign Public Officials Act. These factors are the national economic interest, the potential effect on relations with a state other than Canada or the identity of the organization or individual involved. It appears that these factors were drawn from the OECD's anti-bribery convention, which was also at issue in the BAE decision in the U.K., which I referred to earlier.

To conclude, then, the fact that the Criminal Code amendments about DPAs identify so many appropriate and inappropriate components of the public interest could make it more feasible for the DPP or Attorney General to ascertain what the public interest is in this context, although the ranking among the various considerations is still something that will need to be addressed on a case-by-case fact-specific basis.

Thank you for your attention. I'm happy to answer any questions.

[The Chair, Liberal, Anthony Housefather]

Thank you very much, Ms. Condon. It's much appreciated.

Mr. St-Hilaire, the floor is yours.

[Maxime St-Hilaire, Associate Professor, Faculty of Law, Université de Sherbrooke, As an Individual]

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.

[The Chair, Liberal, Anthony Housefather]

Thank you very much for your testimony.

We now start the first round of questions.

We'll see afterwards how much time we have for a second round and how to allocate it. The first round will be six minutes to the Conservatives, six to the Liberals, six to the NDP and six to the Liberals.

We'll start with Mr. Cooper.

[Michael Cooper, St. Albert—Edmonton, CPC]

Great. Thank you, Mr. Chair.

Thank you, Professor Condon and Professor St-Hilaire. I will direct my question to whichever of you wishes to reply.

I'm looking at Justice Rosenberg's summarization of the Shawcross doctrine, wherein he states the following: “Second, the Attorney General is not obliged to consult with cabinet colleagues but is entitled to do so.” That's pretty clear. The Attorney General can consult with cabinet colleagues, but what about the other way around? What if cabinet colleagues approach the Attorney General? Is that appropriate?

[Mary Condon]

As I mentioned in my remarks, I think one distinction we need to make is the one between partisan considerations and non-partisan considerations that might influence a discourse between cabinet colleagues and the Attorney General. As I mentioned, I think the better view is that the Attorney General should not pay attention to or be influenced by considerations that are expressed with respect to the interests of a particular political party and so on. On the other hand, if a member of cabinet has something to say to the Attorney General by way of advice about the definition of the public interest, I think it's for the Attorney General to make his or her own decision as to whether to listen and entertain that advice.

With respect to definitions of the public interest or aspects of the public interest that the Attorney General does not have personal knowledge of, it could be helpful to hear, but the key point is that it's for the Attorney General to make up her or his own mind about any unsolicited advice that is received.

[Michael Cooper]

Professor St-Hilaire, do you wish to add anything?

[Maxime St-Hilaire]

I will just repeat my point of view quickly. The institutional perspective that makes us depend solely on this doctrine is inadequate.

You can see that the standard has a byzantine side. We have an institutional situation in which it becomes very difficult to know the facts in detail. Institutionally, over a longer time and on a broader scale, the Shawcross doctrine is inadequate in determining the independence of the prosecutor's work, given that the Attorney General, as we understand the position in Canada, is likely to intervene directly in specific cases while still being a member of cabinet. It can be improved. Amendments need to be made and we need to stop depending on this constitutional convention alone.

[Michael Cooper]

Professor, thank you for that. I take your position on that, but perhaps you could respond to the question specifically. I understand your view that the Shawcross doctrine is insufficient and that there could be a more rigorous standard. For example, however, Andrew Roman, a lawyer from Toronto, states:

If the Attorney General asks for advice, a Prime Minister can respond. But offering unsolicited “advice” in secret about a particular, ongoing case is an intrusion.

Would you agree with that?

[Maxime St-Hilaire]

The Shawcross doctrine is not a legal rule. It was expounded in parliamentary debates in 1951. We have no caselaw, no strict interpretation.

The doctrine comes down to the fact that decisions are made by the Attorney General. So any discussion of information would be problematic if instructions were given, if pressure was exercised, or if there was any interference in a decision.

Normally, to my knowledge, any advice must be sought. Currently, however, I believe that no one can categorically and definitively state that the theory absolutely excludes the Attorney General being given information that has not been sought. Mr. Forsece, a colleague of mine from the University of Ottawa, suggested as much in a post.

What I am saying is that there is enormous speculation over a convention that basically comes from a parliamentary debate. There are learned theoretical debates, but no one can make the assumption that we are dealing with a rule that is extremely clear.

The essence of the convention is that discussions must not have prevented the AG from making the decisions himself, and that the AG is responsible for not allowing himself to be influenced. If that is the case, he should resign.

[The Chair, Liberal, Anthony Housefather]

Thank you. That time has expired.

Mr. Fraser.

[Colin Fraser, Liberal, West Nova, NS]

Thank you, Mr. Chair.

Thank you both for joining us today.

The committee heard last week from the current Attorney General, the deputy attorney general and the Clerk of the Privy Council. All three said that discussions between the Prime Minister, the PMO and the Attorney General and office are appropriate when discussing a matter like remediation agreements and particularly as it relates to the issue of SNC-Lavalin.

The Attorney General said that the Attorney General is “not an island. These are not easy decisions that face any Attorney General, and his or her ability to get the answer right on behalf of all Canadians is only improved through discussion and debate with the rest of cabinet....”

The Clerk of the Privy Council, who has served as a non-partisan public servant in Canada for decades, said, “I can tell you with complete assurance that my view of those conversations is that they were within the boundaries of what's lawful and appropriate.”

The deputy attorney general, Madame Drouin, who's also a non-partisan public servant, gave an example from the U.K., the same one Professor Condon alluded to. That's the BAE case. Madame Drouin, in referring to that U.K. case, said, “...the Prime Minister, saying that if the Attorney General continued the investigation and the prosecution, blood could be on the street. Finally, the director decided to stop the investigation and not to lay charges.” She stated that the case was the subject of a judicial review. She went on to say, “The House of Lords did say that this very difficult conversation didn't break the rule of law. That, I think, really illustrates how serious the conversation can be.”

Madame Drouin was alluding to the public safety considerations.

This question is for both of you. Do you share the assessment that it is appropriate for these kinds of difficult discussions between the Attorney General, the Prime Minister and offices about the potential use of, in this case, a remediation agreement?

[Mary Condon]

I would be happy to start off with my reaction, which is really to go back to the sense I expressed in my remarks. If the responsibility on the Attorney General is to exercise this really very significant power in the public interest, there needs to be some ability to determine what the content of that public interest is. I think it would be too much to expect an individual, even a very experienced lawyer in the position of an Attorney General or a DPP, to always know by himself or herself the right answer with respect to the public interest.

To me, it is important that there be sources of information and advice. As I say, they can come from inside cabinet or outside cabinet, if it's needed to obtain specialized advice, but I think in order to make the best decision possible in a world in which it is very hard to immediately know the right answer with respect to competing interpretations, it's necessary for inputs to be provided in some way to the Attorney General or the DPP to help make that decision.

[Colin Fraser, Liberal, West Nova, NS]

Okay.

Professor St-Hilaire, I'd like to hear you on the appropriateness of those discussions.

[Maxime St-Hilaire]

As I said earlier, from my point of view, there should be no discussion on specific cases within the executive. There should be none of that.

As to your question about applying the Shawcross doctrine, my colleague will be able to answer that much better than I can. In my opinion, we should no longer be depending on the theory. There should be no discussions with a member of the executive on a specific case in terms of whether to prosecute or not prosecute. That should not be allowed to happen in cabinet. It would be very easy to get to that point by amending the act or changing the structure of cabinet.

As an additional comment, I would still like to point out, as my colleague did earlier, that the provisions that have been included in the Criminal Code allowing this kind of agreement considerably reduce the degree of latitude over not only the criteria, the factors to be considered, but also over those that cannot be considered. Economic factors and the size of the company are also specified, according to the OECD treaty.

[Colin Fraser, Liberal, West Nova, NS]

Thank you.

Professor Condon, perhaps I could go back to you for a moment.

When the director of public prosecutions proceeds with a matter before the courts in a prosecution, what does it mean in terms of any discussions with the Attorney General by cabinet colleagues and others? Are they still appropriate after that point in time if there are still considerations to be made by the Attorney General?

[Mary Condon]

It's hard to answer that question definitively, I think. I guess my best answer would be that, in general terms, once a decision has been made to lay charges, all the rules of criminal procedure then come into play in terms of the requirement to disclose relevant evidence to the other side and so on and so forth. To me, the literature has all focused on that initial decision to prosecute or not to prosecute, or now, since 2018, to enter into a remediation agreement. I think once that decision has been made, then the normal processes of criminal procedure need to take effect.

[The Chair, Liberal, Anthony Housefather]

Mr. Rankin.

[Murray Rankin, NDP, Victoria, BC]

Thank you.

I'd like to thank both professors for being here. I appreciate it very much.

Professor Condon, you talked about how there were no specific remedies for principles being breached. Then you said, I think helpfully, that there's accountability to Parliament, for the Attorney General can talk about the decision that he or she made, and there are legal accountability mechanisms. You referred to the abuse of process doctrine, among other things.

There's an additional remedy that I'd like to ask you to comment on. It was described by criminal defence lawyer Joseph Neuberger, who said that if there was a genuine attempt by anyone in the Prime Minister's Office to speak with the Attorney General about ending an investigation or criminal prosecution of any type, that could amount to obstruction of justice and/or interference with a public official.

Do you accept that this could be the consequence for inappropriate interference with the exercise of independent prosecutorial discretion?

[Mary Condon]

I think that's a very interesting question, but I also think it's a novel question.

Certainly, with respect to the offence of obstruction of justice in the Criminal Code, my understanding is that it is a little bit more restricted than the ability to apply it generally to discussions about starting or stopping a prosecution.

Again, I would defer to my colleague or to others better versed in the detail of other Criminal Code provisions, but my understanding is that typically, those kinds of charges are brought in relation to tampering with evidence or tampering with juror independence and so on. So I—

[Murray Rankin, NDP, Victoria, BC]

I agree. That is the most common way in which they arise.

Let me ask you a question. We've had a lot of testimony, some from the deputy attorney general. There were questions about the nature of the Shawcross principle. Is it subjective? Is it objective? Let's assume that the facts are that the former attorney general felt subjectively pressured. Let's look at objective criteria that I'd like to ask you to consider. Let's say a decision was made by the director of public prosecutions of a final nature: “We are not going to proceed after September 4 with a remediation agreement, final decision.” Then there were subsequent meetings on September 17 with the Prime Minister; on December 5 with the former attorney general and his chief of staff; on December 18, two staffers in the Prime Minister's Office with the former attorney general's chief of staff. Then, on December 19, the Clerk of the Privy Council called to discuss this as well.

What criteria can we look at in applying the Shawcross principles? For example, would you agree that in addition to the subjective approach, like the feeling of pressure that, let's assume, occurred on the part of the former attorney genera, would these factors matter to you in determining whether the Shawcross line had been crossed? Who initiated the conversation? Did they raise it repeatedly? Was there a threat, direct or veiled? Did the former attorney general ever indicate that her decision was final? If we're trying to find principles here to know whether the line was crossed, we have the subjective, as I've described, and these are the kinds of criteria I was asking you, do you think would indicate, if they were made out on the facts, to have crossed that line.

[Mary Condon]

Again, there does need to be a process of fact-finding in order to determine all of the aspects of what occurred. In the British Aerospace case, in the context of the judicial review of the discontinuance of the prosecution, the witness statement that was provided by the Attorney General in that instance showed repeated meetings with the British ambassador to Saudi Arabia, various cabinet colleagues, the home secretary and so on. Yet, in light of that information, it was still available to the House of Lords to determine that the appropriate principles had been followed with respect to the decision to discontinue the prosecution.

[Murray Rankin, NDP, Victoria, BC]

Obviously, it's very fact dependent.

Professor John Whyte, former dean of Queen's University, formerly with the University of Saskatchewan, is one of our most eminent constitutional theorists. He has said that some conversations with the Attorney General in the Canadian system are, of course, legitimate. However he says, “The legitimacy of the conversation pretty much stops once you get past ‘explain to me,’ or ‘I'm going to tell you what I think, but I'm not telling you what to do.’...It's tricky, right, because people try to stay on the right side of their bosses.”

Would you agree with that formulation?

[Mary Condon]

I do agree with the formulation. I think it's very consistent with Edwards' formulation of this in his book, The Attorney-General, Politics and the Public Interest. Advice is one thing; pressure is something else. I think he is clear in saying that the responsibilities of the Attorney General are so important to the rule of law that pressure is inappropriate in that context.