Evidence of meeting #133 for Justice and Human Rights in the 42nd Parliament, 1st Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was rule.

A video is available from Parliament.

On the agenda

MPs speaking

Also speaking

Mary Condon  Interim Dean, Osgoode Hall Law School, As an Individual
Maxime St-Hilaire  Associate Professor, Faculty of Law, Université de Sherbrooke, As an Individual
Michael Cooper  St. Albert—Edmonton, CPC
Lisa Raitt  Milton, CPC
Mary Ellen Turpel-Lafond  Senior Associate Counsel, Woodward and Company LLP; and Professor, Peter Allard School of Law, University of British Columbia, As an Individual
Wendy Berman  Lawyer and Partner, Cassels Brock & Blackwell LLP, As an Individual
Kenneth Jull  Lawyer and Academic, Gardiner Roberts LLP, As an Individual

4:10 p.m.

Liberal

The Chair Liberal Anthony Housefather

Mr. Fraser.

4:10 p.m.

Liberal

Colin Fraser Liberal West Nova, NS

Thank you, Mr. Chair.

I just want to go through some other comments that have come up in relation to this case and get your reaction to them. I note that each case, obviously, has to be taken on its own merits and that these things are decided on a case-by-case basis with general principles. However, when asked about this matter, former B.C. attorney general Brian Smith, who now works at Gowlings, said:

I would say it’s quite legitimate for the prime minister to have a discussion with her about using that section, and quite legitimate for that to be a discussion in cabinet, and that’s something that she would take into account when she decided [to use] her discretion or not [to ask or direct that remediation be offered].

The interesting thing about that quote is that Mr. Smith resigned as the British Columbia attorney general in 1988 because he felt that he was improperly pressured by the premier's office on legal matters. He resigned his position due to what he deemed to be undue pressure.

An article in the Lawyer's Daily refers to law professor Andrew Flavelle Martin of the University of British Columbia and states:

In Martin’s view, it would be appropriate for the attorney general to consult with the PMO on remediation—“for example for the PMO to say: ‘We’re very concerned about the economic impact and the lost jobs that would occur—we think you should do this.’ That would be fine. To direct her to do something, or to pressure her to do something, or for example [to say] ‘Do it or you’re fired’—that would be inappropriate, and very, very serious.”

Mark Freiman of Toronto is a former deputy attorney general of Ontario and ex-chief counsel to the Air India inquiry. According to an article in the Lawyer's Daily:

Freiman noted, however, that the attorney general is obliged to consider the public interest in deciding whether to go to trial or offer remediation, and in assessing the public interest it is necessary and proper for her to consult and receive input, including from the government.

Again, these individuals, all with legal expertise, are publicly stating that it is appropriate for there to be these types of discussions, all, of course, on a case-by-case basis, and that the appropriateness will depend on each circumstance.

Do you agree with the formulation of those individuals as they've arrived at their conclusions?

4:10 p.m.

Interim Dean, Osgoode Hall Law School, As an Individual

Mary Condon

I think that I agree with them, to the extent that many of those formulations distinguish between the provision of advice, information and considerations of the public interest on the one hand and a sense of pressure on the other.

There is something that I think is interesting, and it is the reason why I mentioned the deferred prosecution agreement factors at the end of my remarks. My colleague from the Université de Sherbrooke made the same point. The way that the provisions with respect to DPAs are worded creates a list of factors that are not appropriate to be considered with respect to offences under the Corruption of Foreign Public Officials Act.

In a sense, there is a bit more direction provided in those provisions of the Criminal Code with respect to what the DPP can or cannot take into account than in a traditional decision to prosecute or not prosecute.

4:10 p.m.

Liberal

Colin Fraser Liberal West Nova, NS

With regard to remediation agreements, items, in this case dealing with SNC-Lavalin, on things short of national economic interest that may also impact on some of the reasons that a deferred prosecution agreement may be desirable in order to not impact on local economies or jobs or those sorts of things, don't you think it would be important for the Attorney General to have the full context and information surrounding those sorts of issues in making any determination on the prosecution?

4:10 p.m.

Interim Dean, Osgoode Hall Law School, As an Individual

Mary Condon

My colleague wants to jump in.

4:10 p.m.

Associate Professor, Faculty of Law, Université de Sherbrooke, As an Individual

Maxime St-Hilaire

No, please go ahead. I'll go after.

4:15 p.m.

Interim Dean, Osgoode Hall Law School, As an Individual

Mary Condon

Again, I think that certainly it is appropriate for individuals who are in a position to know what considerations or what the effect of various prosecutorial actions might be to bring those to the attention of the DPP.

All I'm saying is that there is now a different framework in which those considerations need to be assessed, and it's a framework that is set out in some detail in the DPA provisions in the code.

4:15 p.m.

Liberal

Colin Fraser Liberal West Nova, NS

Okay, thank you.

Professor St-Hilaire, you wanted to jump in.

4:15 p.m.

Associate Professor, Faculty of Law, Université de Sherbrooke, As an Individual

Maxime St-Hilaire

I just want to emphasize that the legislation clearly specifies that national economic interest is not supposed to enter into consideration in the decision on the case before us. The legislation states in black and white that the national economic interest is a factor not to consider. Here, that factor is excluded. It is included in the implementation of an international treaty.

I would also like to answer a question that was raised earlier about subjectivity or objectivity. I am not sure whether this interests you specifically, but the Shawcross doctrine has two dimensions: members of cabinet are required to not influence the Attorney General, but the Attorney General is also required to not be influenced and to make his own decisions.

So drawing a very clear line between subjectivity and objectivity becomes a little difficult. In the final analysis, what counts in the present case is knowing whether the Attorney General made her own decision. As for the weight that providing unsolicited information might have, it becomes very difficult to see anything clearly objective there. The theory remains very subjective.

4:15 p.m.

Liberal

Colin Fraser Liberal West Nova, NS

Thank you.

4:15 p.m.

Liberal

The Chair Liberal Anthony Housefather

Colleagues, that exhausts the first round. We have 15 minutes left.

There are five questions in the second round. Would everybody be agreeable to doing three minutes each on those five questions?

4:15 p.m.

Some hon. members

Agreed.

4:15 p.m.

Liberal

The Chair Liberal Anthony Housefather

That's agreed.

We'll go then Liberal, Conservative, Liberal, Conservative, NDP.

Mr. Ehsassi.

4:15 p.m.

Liberal

Ali Ehsassi Liberal Willowdale, ON

Thank you, Mr. Chair.

Thank you, Dean Condon.

As I understand your testimony, you are suggesting that the definition of public interest is very much contested.

I had the opportunity to go over one of your publications, and it says that there can be competing legitimate interpretations of public interest. This is a publication from 2010.

Would you still agree with that statement?

4:15 p.m.

Interim Dean, Osgoode Hall Law School, As an Individual

Mary Condon

Yes. I know it's an academic's prerogative to change his or her mind, but I still agree that there are a number of different considerations that could be legitimate to take into consideration. That's what makes it so difficult for someone in this role, such as an Attorney General or a DPP, to ultimately have to balance and come up with an action one way or another.

I agree that the public interest is not a singular thing. It has a number of different dimensions. We've seen cases where questions of national security become the dominant interpretation of the public interest, but we have also seen other older cases. There are English cases involving questions of prosecuting strikers, for example, in the context of labour relations strife. Those decisions about whether or not to prosecute in that context have also been seen as upholding a definition of the public interest.

4:15 p.m.

Liberal

Ali Ehsassi Liberal Willowdale, ON

Thank you.

Your co-panellist said that our DPP regime is not up to global standards. What is your view, having looked at the details, Dean Condon?

4:15 p.m.

Interim Dean, Osgoode Hall Law School, As an Individual

Mary Condon

I think my colleague was certainly putting a great deal of emphasis on the issue of the Attorney General at the federal level in Canada being a member of cabinet, whereas in the U.K. this is not the case.

That certainly is a puzzle because, as I think both Professor Edwards and Professor Stenning have noted, it's not really clear why, if the arrangement whereby the Attorney General is kept outside of cabinet is the appropriate thing to do in the U.K. itself, that wouldn't have been exported to other countries in the Commonwealth complex. Again, I think it is an issue that could well benefit from some serious consideration. I note that my other colleague, Adam Dodek, dean of the University of Ottawa law school, had a column in one of the newspapers this weekend that in part addressed this issue as well.

As I said in my opening remarks, the reason for having a DPP is to insulate the prosecutorial decision-making from overtly political considerations. That is another way to address the issue of how you render the assessment of the public interest somewhat more non-partisan.

4:20 p.m.

Liberal

The Chair Liberal Anthony Housefather

Thank you very much.

Ms. Raitt.

4:20 p.m.

Lisa Raitt Milton, CPC

Thank you, Dean Condon.

I'm sorry, but I'm going to be asking you questions on this matter, too, based upon your testimony. I really do appreciate what you gave us at the beginning.

This is not necessarily a hypothetical, but I'm trying to lay out the facts as a process. Maybe you can help me understand, based upon what you've said.

A decision to prosecute has been made. The criminal proceedings have a date for a preliminary inquiry six weeks on. The Attorney General has decided that they're not going to intervene and has said so, but the pressure continues on the Attorney General to change their mind. Where I'm going with this is that for me it was interesting for you to talk about the remedies. The Attorney General continues to get submissions, and what you said is that, parliamentarily, either they're accountable to Parliament for the decision they made—and I accept and agree—but then you said resign if she didn't think she had the confidence of cabinet.

If nobody told her that she didn't have the confidence of cabinet, how would she know whether or not to resign from the pressure it was putting on her? At what point does she become obliged to put up her hand as the Attorney General, given that nobody is saying, “You're in danger here, your job...we don't believe you, and you're not doing a great job”? If she still enjoys the cabinet's confidence, how would she know whether or not to resign?

4:20 p.m.

Interim Dean, Osgoode Hall Law School, As an Individual

Mary Condon

I do want to emphasize that the decision to resign is an extremely serious decision and should really only be taken, I think, by an Attorney General as a last resort. I don't think it's something that anybody would suggest be done lightly. I think it would only be done in a context in which the Attorney General really felt that her or his independent judgment about when and how to prosecute was not respected by colleagues.

As I say, I thank you for the opportunity to clarify that it is a really last-resort response, I think, by someone in this role.

4:20 p.m.

Milton, CPC

Lisa Raitt

Thank you. I appreciate that.

Mr. Chair, for the record, I wanted to correct something that the honourable member said with respect to the resignation of Mr. Smith in British Columbia. If you read the Hansard and his actual speech, what he indicated is that he resigned from cabinet because the Premier was removing him from cabinet. As the Attorney General, he felt that he needed to resign in order to be able to tell the truth about the fact that the Premier's office was undermining and eroding the independence of the Attorney General. That's the reason for his resignation.

I have no other questions, Dean Condon. Thank you very much for answering the one I had.

4:20 p.m.

Liberal

The Chair Liberal Anthony Housefather

Thank you very much. You hit exactly three minutes, so congratulations.

Now we'll go to Mr. McKinnon and then to the Conservatives and then to Mr. Rankin.

Mr. McKinnon.

4:20 p.m.

Liberal

Ron McKinnon Liberal Coquitlam—Port Coquitlam, BC

Thank you, Chair.

Professor Condon, you said that advice is one thing and pressure is another. The testimony of the Clerk of the Privy Council last week was that pressure is the name of the game for ministers—everything they do is subject to pressure—and the AG is no exception. I think what we're talking about is undue pressure or an inappropriate level of pressure. Would you agree?

4:25 p.m.

Interim Dean, Osgoode Hall Law School, As an Individual

Mary Condon

I'm not sure I can speak to this general concept of all cabinet ministers being placed under pressure, but I guess the reason we're all interested in this question about the Attorney General is that the Attorney General has an extremely specific and critical role within the governing principles of our democracy.

The Attorney General is not the only person responsible for maintaining the rule of law, but she or he clearly has a dominant concern for the maintenance, integrity and public confidence in the administration of justice, and in the pursuit of the rule of law. I think that's the reason particular attention is paid to the independence required for that particular role to discharge the responsibility appropriately.

4:25 p.m.

Liberal

Ron McKinnon Liberal Coquitlam—Port Coquitlam, BC

I certainly don't question that there needs to be independence, but I believe that in cabinet, with pretty much every decision they make there's a lot of pressure. People are trying to influence cabinet ministers all the time. That's one of the things they do. I'm submitting that what we have to consider here is whether an inappropriate level of pressure was applied.

If you can agree with that, what would constitute undue pressure in your view, and who would decide? What recourse would the Attorney General have in the event they felt they were being subjected to undue pressure?