Mr. Speaker, before I begin, I would like to inform you that I will be splitting my time with the member for Spadina—Fort York.
I would like to address the House on the important aspect of this debate, one that our government takes very seriously: the independence of the Public Prosecution Service of Canada and the integrity of Canada's rule of law.
The Public Prosecution Service of Canada, or PPSC, is a federal government organization that was created on December 12, 2006. The Director of Public Prosecutions Act sets out the roles and responsibilities of the director of public prosecutions and the prosecutors that are authorized to act on the director's behalf. The PPSC fulfills the responsibilities of the Attorney General of Canada in the discharge of his criminal law mandate by prosecuting criminal offences under federal jurisdiction and by contributing to strengthening the criminal justice system.
The creation of the PPSC reflected the decision to make transparent the principle of prosecutorial independence, free from any improper influence. Under the Department of Justice Act, the Attorney General is responsible for the regulation and conduct of all litigation for or against the Crown or any department.
With respect to the conduct of civil matters, the Attorney General does not have exclusive decision-making authority over litigation positions. When it comes to civil litigation, there is often a high degree of policy involved in determining what position, among the available and viable legal arguments, should be taken in a particular case. Civil litigation differs sharply, in this respect, from criminal prosecutions.
The Attorney General's role in prosecutions must be independent, and he or she must receive orders from nobody, as an attorney general of England said in 1925. Specifically, he or she must act independently. The Supreme Court has found this to be a foundational constitutional principle of our democratic form of government.
The determination of who should be prosecuted for which crimes, which prosecutions should continue and which should not and what sentences or penalties ought to be sought must all be made solely on the basis of evidence and with regard to the fair and effective administration of criminal law and the criminal justice system. It remains, nevertheless, advisable for the Attorney General to inform him or herself of the relevant context, including the potential consequences of any given prosecution. The PPSC reports to Parliament through the Attorney General of Canada. The Director of Public Prosecutions Act states that the director of public prosecutions acts “under and on behalf of the Attorney General”.
The relationship between the Attorney General and the director is premised on the principles of respect for the independence of the prosecution function and the need to consult on important matters of general interest.
In 2006, the Director of Public Prosecutions Act created the independent Public Prosecution Service of Canada. The act formalized the Attorney General's role in federal prosecutions by giving authority for the initiation and conduct of prosecutions to the director of public prosecutions, the DPP. The director acts as the deputy attorney general of Canada in initiating and conducting federal prosecutions on behalf of the Attorney General.
In most cases, the Attorney General him or herself will not be involved in prosecutorial decision-making, although the director of public prosecutions requires the director to inform the Attorney General of any prosecution that raises important questions of general interest. That is found at section 13 of the relevant legislation. Thus, the statutory framework ensures that the Attorney General will be advised of important criminal cases.
As we know, the Attorney General may issue directives to the director of public prosecutions, which may be general or about specific prosecutions. This is set out in section 10 of the act. When a directive is issued, it is issued through a fully transparent process. It is published in the Canada Gazette, where every Canadian can review it.
As well, a general directive must be preceded by consultation with the director of public prosecutions. The Attorney General may also, after consulting the director of public prosecutions, assume the conduct of a prosecution. This too is done through a transparent process where the Attorney General must publish notice of the intent to assume conduct of a prosecution in the Canada Gazette.
The notion of the director of public prosecutions' independence relates to the prosecutorial decision-making process and all step incidental to it. The director of criminal prosecutions is regarded as an independent officer, exercising quasi-judicial responsibilities.
Safeguarding the director's independence is the requirement that all instructions from the attorney general must be in writing and be published in the Canada Gazette, as I have mentioned. Additionally, the PPSC must provide the attorney general with an annual report for tabling in Parliament.
Prosecutorial independence is a cornerstone of our democracy, reflected in the relationship between the Attorney General of Canada and the director of public prosecutions. It reinforces confidence in the judicial system by ensuring that prosecutions are not seen to be improperly influenced by politics. Instead, prosecutions of federal offences are carried out by experienced and skilled prosecutors right across this country, many of whom I know as Parliamentary Secretary to the Minister of Justice and also in my former capacity as a former Crown counsel to the Attorney General of Ontario, where I had the opportunity to work with many distinguished legal minds and lawyers who prosecuted cases on behalf of the Department of Justice federally.
As confirmed in a statement published on February 12 of this year, the director of public prosecutions, Ms. Kathleen Roussel, stated that “I am confident that our prosecutors, in this and every other case, exercise their discretion independently and free from any political or partisan consideration.”
Canada is a nation governed by the rule of law. This basic premise is not only written into our Constitution, but is also found in the actions of our political actors and in the structure of our executive, legislative and judicial institutions, as well as how they relate to one another. Upholding the Constitution requires not only respect for the supreme law of the land, as set out in the provisions of our Constitution, but also the rules and practices that reflect and support constitutional values.
In our parliamentary system, we strive to adhere to and respect well-established constitutional principles and conventions. Foremost among them is the principle of the separation of powers, which our Supreme Court has emphasized is a principle that is fundamental to the working of our Parliament and our courts.
Justice McLachlin, while a judge before the court in 1993, in a case called “New Brunswick Broadcasting Co. v. Nova Scotia”, said that:
It is fundamental to the working of government as a whole that all these parts play their proper role. It is equally fundamental that no one of them overstep its bounds, that each show proper deference for the legitimate sphere of activity of the other.
Our government is unwavering in its commitment to maintaining public confidence in the administration of justice, as well as the independence of the judiciary. Our government will always stand up for the rule of law, and the evidence before the judiciary committee earlier this year confirmed that the rule of law is indeed intact.
Let me refer to some of that evidence. The evidence from the former attorney general, the member for Vancouver Granville, before the justice committee was that:
I do not want members of this committee or Canadians to think that the integrity of our institutions has somehow evaporated. The integrity of our justice system, the integrity of the director of public prosecutions and prosecutors, is intact.
The evidence continued from a different witness, who said:
I think Canadians should feel assured that they work in a democracy under the rule of law....
The witness continued:
I think Canadians need to be assured that their police and investigators, with the powers of the state, operate independently, and that the prosecution service, the state charging people with offences, is completely independent. There is a legislative and statutory shield around that, which demonstrably is working
That is the evidence of the former clerk of the Privy Council. It is important that there was complete alignment in the testimony from those two key witnesses before the justice committee on the important point raised today in this motion.
As a government, we will always strive to provide Canadians with the transparency they deserve in a way that preserves, rather than undermines, solicitor-client privilege, the right to a fair hearing in cases that are currently active, the integrity of the position of the director of public prosecutions and the rule of law in our country. It is fundamental to our democracy and fundamental to our legal system, and it is something that all parliamentarians would strive to uphold.