Madam Speaker, I would like to start by reiterating our respect for all of the men and women of the Canadian Forces, whether they are veterans or still serving today.
The Public Prosecution Service of Canada, 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 his behalf.
The PPSC fulfills the responsibilities of the Attorney General of Canada in the discharge of his criminal law mandate by prosecuting criminal offences that fall within federal jurisdiction and by contributing to strengthening the criminal justice system. In this regard, the PPSC assumed the role played within the Department of Justice Canada by the former Federal Prosecution Service, FPS. Unlike the FPS, which was part of the Department of Justice, the PPSC is an independent organization, reporting to Parliament through the Attorney General of Canada.
The creation of the PPSC reflected the decision to make transparent the principle of prosecutorial independence. 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.
When it comes to his role in prosecutions, the Attorney General must act independently, receiving orders from nobody, as an attorney general of England said in 1925. Specifically, he 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 to seek must all be made solely on the basis of the evidence and with regard to the fair and effective administration of the criminal law. It is, however, still advisable for the Attorney General to inform himself or herself of the relevant context, including the potential consequences of a given prosecution.
The Director of Public Prosecutions Act mandates the Public Prosecution Service of Canada, PPSC, to provide prosecutorial advice to law enforcement agencies and to act as a prosecutor in matters prosecuted by the Attorney General of Canada on behalf of the Crown. In fulfilling this important mandate, the PPSC benefits Canadians in numerous ways: by promoting effective investigations, the rule of law and respect for the rights of Canadians by providing pre-charge legal advice to investigative agencies. It also helps to uphold federal laws through principled and independent decisions by prosecutors and it instills confidence in the administration of justice by conducting prosecutions that result in a judicial determination on the merits of the case. The PPSC reports to Parliament through the Attorney General of Canada.
The Director of Public Prosecutions Act states that the director of public prosecutions, the DPP, 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, there was a change in the landscape. The Director of Public Prosecutions Act created the independent Public Prosecution Service of Canada, the PPSC, as I have mentioned, and 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 director acts as the deputy attorney general of Canada in this regard in initiating and conducting federal prosecutions on behalf of the attorney general. In most cases, the Attorney General himself or herself will not be involved in prosecutorial decision-making, although the Director of Public Prosecutions Act requires the director to inform the Attorney General of any prosecution that raises important questions of general interest. Thus, the legislation 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. When a directive is issued, it is issued through a fully transparent process where it is published in the Canada Gazette and made publicly available to all Canadians. 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.
In terms of seeking the input of others when exercising his directive powers or the power to assume a prosecution under the DPP Act, it is appropriate for the Attorney General to consult with cabinet colleagues before exercising these powers. Often consultations are important in order for the Attorney General to be aware of perspectives that go beyond any particular case.
If he decides to either issue a directive or take over the prosecution, however, the Attorney General must make the final decision himself. Paramount in all of this is that, while an Attorney General may consult his cabinet colleagues about prosecutorial matters, the Attorney General does not take instructions in criminal matters from cabinet colleagues or from anyone else.
The Supreme Court has observed that, when exercising the prosecution function, the Attorney General acts in the public interest. The Minister of Justice and Attorney General of Canada is the chief law officer of the Crown, with a responsibility to act in the public interest. He takes that responsibility very seriously. The notion of the director of public prosecutions’ independence relates to the prosecutorial decision-making process and all steps incidental to it. The director of public 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 be in writing and be published in the Canada Gazette, which I have mentioned.
In turn, the director must inform the Attorney General of any prosecution or planned intervention that may raise important questions of general interest, allowing the Attorney General the opportunity to intervene in, or assume the conduct of, a case. 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. Prosecutions of federal offences are carried out by experienced and skilled prosecutors across the country.
Given prosecutorial independence and the sub judice rule, which we have heard of already in this morning's debate, this government will not comment specifically on the matter of the charges laid against Vice-Admiral Mark Norman, which is an active prosecution currently ongoing before the Ontario Court of Justice. The criminal trial itself will take place in due course, under the timelines and the deadlines determined by an honourable judge of the Ontario court.
The independence and the impartiality of that trial process must be respected—I cannot underscore that enough—and it must run its course without comment in the House in accord with the sub judice rule and the right of an accused to a fair and expeditious hearing.
A third party records application, which for the lawyers in the chamber is also known as an O'Connor application, was commenced by Vice-Admiral Norman's defence counsel in October of last year.
That application is what we call a preliminary proceeding in a criminal hearing. By that application, the Vice-Admiral's defence counsel team was seeking to obtain documents and records of various types from seven government departments or entities where those departments or entities are in possession of such documents. The seven departments or entities are the Prime Minister's Office, the Privy Council Office, the Treasury Board Secretariat, the Department of National Defence, the Canadian Armed Forces, Public Services and Procurement Canada, the Atlantic Canada Opportunities Agency and the Department of Justice. All seven departments and entities were served with subpoenas requiring the production of the relevant documents or records to the Ontario Court of Justice.
In the course of such third party records applications, parties may call, or what is called subpoena, the witnesses to give evidence about the documents being sought. A witness may confirm potentially relevant documents exist or do not exist. They may provide evidence regarding efforts to locate relevant documents, including why such efforts are or are not successful. This is routine in any proceeding.
Other evidence can also be presented before the court including documents that are already in the possession of the parties to the application. This is something that is fundamental in both civil and criminal proceedings. In a criminal proceeding it goes to the issue of full answer and defence.
Once the evidence is presented to the court and all parties have made their submissions and arguments, it is then the role of the court, in this case the Ontario Court of Justice, to assess the evidence and argument that comes before it. If the court deems it appropriate or necessary, it may issue an order requiring a party to produce further documents or other evidence. The court may then assess the documents or records produced in response to the third party records application and order relevant records to be disclosed to the defence.
Where parties are responding to a third party records application argue that documents or records produced should not be disclosed either in whole or in part due some privilege claim on their contents, it is again for the court to decide whether such privilege claims should or should not be upheld.
Witnesses, whom I have mentioned, who are called to give evidence in the third party records application are sworn to answer the questions put them by counsel truthfully and to the best of their knowledge. That is a fundamental aspect of how our judicial system and court proceedings operate in this country.
Counsel may raise suggestions or allegations in questions that they put to such witnesses. Such allegations are just that; they are allegations. They have not been proven in court. It is for the court to ultimately decide what evidence to rely on, informing its decision at the appropriate stages of that very proceeding.
Again, there is a third party records application that has been brought, in this very case that is ongoing right now as we speak, by Vice-Admiral Norman's defence counsel. It is currently being deliberated by an honourable judge of the Ontario Court of Justice. That application is subject to the sub judice rule as much as the criminal proceeding itself and any other related proceeding that may arise.
It is a matter of public record that in the third party records application, the Vice-Admiral's defence team, counsel for the Attorney General of Canada at the Department of Justice, and the Public Prosecution Service of Canada prosecutors have made their arguments and their submissions before the court. The honourable judge is now assessing those arguments and submissions and will issue a decision in due course. The government is currently providing documents to the judge for her review and will continue to do so as directed by the judge.
The document identification review and production is a thorough one. Overall, the process aims to balance the public interest in disclosing documents with appropriately protecting information that is a cabinet confidence, with privacy concerns and with public interest immunity, and the concept of solicitor-client privilege. To be clear, claiming privilege over documents that discuss strategy is a standard practice in prosecutions as is protecting cabinet confidences.
The government and the Department of Justice counsel are acutely conscious of the interests of the defendant in an expeditious resolution of their criminal trial. This is an important point. The innocence or guilt of an accused is not decided in the course of a third party records application. That is a preliminary matter that takes place before the trial on the merits of the charge.
However, all involved continue to work to ensure that the application is concluded as expeditiously as possible, given the potentially high number of responsive documents to the request.
These efforts, which are ongoing, include searches of government systems and records, and where appropriate, individual's personal accounts and personal devices. Documents are reviewed for likely relevance and potential privilege claims, and provided to the court for its review and decision. Where the court determines a document to be relevant, it will also rule on whether any privilege claims should be upheld.