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Standing Committee on Justice and Human Rights



Thursday, May 17, 2007

[Recorded by Electronic Apparatus]



    I call the Standing Committee on Justice and Human Rights to order. It is Thursday, May 17, 2007. Today we have our discussion on the main estimates for 2007-2008 and vote 35, under justice, for the Office of the Director of Public Prosecutions. The estimates were referred to the committee on Tuesday, February 27, 2007.
    With us this morning we have several members from the Office of the Director of Public Prosecutions: Mr. Brian Saunders, acting director for public prosecutions; Ms. Chantal Proulx, deputy director of public prosecutions; and Mr. Marc Fortin, general counsel and director, corporate services division.
    I understand, Mr. Saunders, you will be the person presenting this morning. The floor is yours, then, sir.


    I would like to thank you for inviting us, Ms. Proulx, Mr. Fortin and myself, a second time in order to explain our main estimates for 2007-08.


    I'm hopeful we'll be able to answer all your questions this morning.
    With that, I'll leave the floor open to you to ask your questions.
    That was short and sweet.
    Let's begin with Mr. Ménard.


    Thank you, Mr. Chairman.
    I asked that you appear this morning for three reasons in addition to your budgets. I read the documents that the clerk sent us.
    I understand that, usually, when there is an offence in the Criminal Code, without exception, it is the provinces that lay the charges. The federal government lays charges for certain acts, when there has been a violation of the regulations. In your documents, you give the example of natural resources, fisheries, the Controlled Drugs and Substances Act and criminal offences. In some provinces where the RCMP has responsibility, the federal government may lay charges.
    I'm trying to understand why it is desirable to have a Director of Public Prosecutions and a specialized service and how that will change things. According to the minister's explanation, some $100 million is being taken from the department's budget in order to set up a separate service. I even learned that a letter had been sent to the party leaders asking them to delegate someone to select the new Director of Public Prosecutions. I would like you to explain to us why it is desirable to create such a branch and have a director. How will that change the way things operate and how we administer justice in the area of federal government prosecution?
    I will begin by telling you what we do. You mentioned that we prosecute under the Controlled Drugs and Substances Act. Section 2 of the Criminal Code, in addition to defining the role of the Attorney General, indicates the sections where we are the Attorney General. In a case of fraud, for example, we are competent to hear proceedings under sections 380 and 382. We can also do this for the financial market. We can do this in other instances as well. In northern Canada, in the territories, we are responsible for criminal prosecution.
    Nevertheless, you are right in saying that under all other laws, with the exception of the Criminal Code, we institute criminal proceedings. There are about 50 federal laws where we act as the Attorney General.
    I know, after reading the documents, but there has always been a prosecution branch. I do understand that it is the federal government that has to institute proceedings. However, since the government wants to appoint a Director of Public Prosecutions, and given that it wants to take more than $100 million from the budget in order to set up something separate, I am trying to understand what the operational benefits will be. What will that change in the federal government's role as a prosecutor? We are in a situation where things have improved. How will having a Director of Public Prosecutions change things? I do not know who this person will be: we have not yet selected the person who will be in this position. I am trying to understand what more this will give us.


    We are doing the same work as the former Federal Prosecution Services. Nova Scotia and, just recently, Quebec, established a Director of Public Prosecutions position. This is a decision that the legislative assemblies of these two provinces made. Here, in Canada, it is important that criminal prosecutions be transparent. When Minister Toews and Minister Nicholson appeared here, they said that the bill was not presented in order to remedy an existing problem but rather to ensure that there will be no problems in the future. That is the purpose of the act.
    But what problem do we want to remedy? Could you give us any examples of political meddling in prosecutions?
    No, not at the federal level. I think that in Nova Scotia, it was decided in 1990, following the Marshall case, to set up the office of the Director of Public Prosecutions. In Quebec, I don't think that the same problem occurred, but this decision was made all the same. This is a practice one finds just about everywhere throughout the world, for example in England, Australia, Ireland and in all of the States—
    But what will its role be?
    The director is the Attorney General's delegate. The director will make the decision, among other things, whether or not to institute or uphold prosecutions and to appeal.
    Who is making these decisions right now?
    The Assistant Deputy Attorney General or, in some instances, the attorneys themselves used to make such decisions.
    It would seem to me that the provinces, as the prosecutors, have to deal with a much higher volume of offences than does the federal government.
    Our workload is quite significant nevertheless. For the year 2005-06, our attorneys were working on just under 50,000 cases. For Canada, that is quite a high figure.
    I find it reassuring to know that this is what is done in other countries. I confess to not really understanding the logic behind this at first glance. Regardless of what the case may be, this is why we invited you here this morning.
    Is it ultimately the responsibility of the Attorney General of Canada to institute legal proceedings or order proceedings to be halted?
    Ultimately, yes, but according to the legislation, this responsibility now lies with the director. Should the director want to intervene in a case, he must express his intent in a written notice, which must then be published in the Canada Gazette.
    Let's suppose that the Attorney General, namely the Minister of Justice, wants to intervene in a particular file. I do not want to bring up any bad memories whatsoever, but let's use the example of the sponsorship scandal. If there had been a director of prosecutions and he had not wanted to lay charges against Mr. Lafleur or any other individuals, whereas the Minister of Justice had wanted to intervene, would he have had to prepare a notice and had it published in the Canada Gazette?
    My colleagues may be able to confirm this, but I was told that the Prime Minister had written the party leaders in order to advise them that a committee would be struck and delegates would be responsible for hiring the new director of prosecutions. Are you aware of that?
    No, our service is not involved in choosing the director. The Department of Justice is managing this process.
    Would you like to be the director of prosecutions? My good fellow, tell me if this is the case—
    Mr. Chairman, I find that he has many resources.
    Perhaps I will not stop myself from voting for you, however, I will be asking you questions in committee.
    Thank you, Mr. Chairman.


     Thank you, Mr. Ménard.
    Mr. Moore.
    Thank you, Mr. Saunders, for being here today.
    When you talk about provincial and federal jurisdictions, I think there's always confusion. Certainly when you're talking to constituents, they sometimes blur the lines between what's a provincial and what's a federal responsibility. Can you speak a bit to the distinct role that the federal prosecution plays compared to the provincial, if you were describing that to, say, a constituent of mine?
    Also, in some of the more complicated cases that can blur the jurisdictional lines of what you would traditionally handle and what a provincial criminal prosecution might be, with some of these larger trials that are cross-jurisdictional and involving many different offences under maybe multiple acts, how do you sort that out and what kind of relationship do you have with the various provincial authorities?


     Let me start with the last part of your question first, on what kind of a relationship we have.
    We have a very good relationship with the provincial attorneys general. I just came back from a meeting in Moncton, of what we call the federal-provincial-territorial heads of prosecution committee. This meeting joins all the provinces and territories. They send their representatives there to discuss matters of mutual interest. We discuss ways of improving the system. We discuss ways of helping each other.
    You asked how we divide the line between what we do and what the provinces do. As I mentioned in my answer to Mr. Ménard, the Criminal Code sets out a definition of “Attorney General”. Typically, you start off by saying the provinces generally have jurisdiction for all Criminal Code prosecutions, except in the north of Canada, in the territories, where we do all the Criminal Code prosecutions. If you move on to federal statutes apart from the Criminal Code, into what we call our regulatory world—Income Tax Act, Fisheries Act, Environmental Protection Act—we do all those prosecutions.
    In the Criminal Code, there are some provisions over which we have jurisdiction. It's usually concurrent jurisdiction with the provinces when it comes to prosecuting. I mentioned fraud. There's also the area of terrorism. in which we have jurisdiction. War crimes are an area where we do the prosecutions; in fact, there's a prosecution going on right now in Montreal.
    We do work with the provinces, because, as you mentioned, sometimes it's confusing, such as in the gang prosecutions. In Toronto, there are the famous guns-and-gangs prosecutions that go on. For a lot of these criminal organizations, the reason they're involved in crime is that there's money to be made from drugs. That brings our prosecutors in, so what we often do is have joint prosecutions. We just did one in Manitoba, where we had two of our prosecutors working with two prosecutors from the province of Manitoba to conduct that prosecution.
    We also have a system of what we call major/minor agreements with the provinces. What this means is that people often get arrested for an assault and they find drugs on those people, or they get arrested for some other crime and drugs are found on them. What we do with the province is look at the accusations against the individuals and ask which is the major crime, which is the most important crime. If it's a provincial offence, an offence that's under provincial jurisdiction—say it's an assault and just a small amount of marijuana is involved—we'll ask the province to do the prosecution for the drugs as well.
    On the other hand, if it's a small Criminal Code offence yet a large quantity of drugs is found and it's determined that the drug charge is the more important of the charges laid against the individual, we will do both the drug charge and the Criminal Code charge. That's a way of trying to be efficient in the allocation of resources between the provincial AGs and the Public Prosecution Service. Our statute effectively allows us to do those major/minor agreements.
    You mentioned a war crimes prosecution. To me it seems like that would be so rare, yet so specialized. How do you handle the requirement for a degree of expertise on issues that may only come along so often? You're allocating your resources or looking at how to maintain the best service for all of Canada, but then you have something come along that's really rare, but you need to be up to the task in that regard.
    When we do these prosecutions, we're assisted by the modern war crimes unit of the Department of Justice. This is also true of what I'll call regulatory offences. For example, Fisheries and Oceans has a unit at Justice, with lawyers experienced in that area. Perhaps Fisheries and Oceans is a bad example, because our prosecutors tend to be experienced in that area, but in the war crimes, we work with the modern war crimes unit lawyers. They provide advice. They don't have any influence on our prosecutorial decision, because that's where we draw the line and that's our independence. We can't have anyone influence that decision, but they help to provide the expertise.
    When you get down to it, prosecutors are used to looking at a law, a provision of the Criminal Code, a provision of another statute, and determining the essential elements to prove. That's not too difficult to do. What becomes difficult is marshalling the evidence, and we hope our prosecutors are experts at that. That's what you become an expert at doing when you're a litigator: determining what evidence you have to call to meet the elements of the offence.
    Thank you.
    Thank you, Mr. Moore.
    Madam Jennings.


    Thank you very much for being here this morning.
    I have the page from the estimates and the budgets that are being projected for the Office of the Director of Public Prosecutions for 2007-08. Given that we already had a process in place that existed for decades and decades, it means that the work you're going to be doing was ultimately already being done at Justice. Is this budget simply pulling out the money that normally is spent anyway and just putting it under the heading of “Office of the Director of Public Prosecutions”? Or does the creation of the Public Prosecution Service not only mean the budget, not only the money that got spent anyway in paying the staff, administrative and legal, etc., but additional costs for creation, setting up, or whatever? If there are additional costs, what are they? Break them out for us.
     Do you have in front of you the reports on plans and priorities? Is that the only document you have? What you have there is the money that was transferred from Justice. It shows $86.3 million, and there's also $12.2 million that represents employee benefit plans. That $12.2 million is not money that sits within our budget. It's Treasury Board money to pay for pensions and other benefits that are paid to employees.
    I don't have anything here that says $12.2 million.
    Okay, so the $12.2 million doesn't show up in that. In any event, that money is not part of our budget. It's money that sits with Treasury Board.
    Yes, I know. But it's designated for the cost—
    It was designated before we were staffed.
    That's what I wanted to know.
    In terms of additional money in budget 2006, as part of the accountability action plan—
    Is that 2006-07?
    Yes, 2006. There was $15 million in one-time transition costs over two years, and there was $7.8 million in permanent, ongoing costs that were allowed to us. We have to make a submission to Treasury Board to access those funds.
    You said $15 million was attributed in 2006-07 to cover two years' worth of transitional costs, which means that part of that $15 million is found in what we have here.
    No, because it's not part of the main estimates. It's money we have to access by going to supplementaries.
    And the $7.8 million, annually recurrent, does not show up in this $109,868,000?
    No, it doesn't. Again, that is money we have to access through the supplementary estimates, following a submission to Treasury Board.
    I can possibly understand.... Are you in a position to provide us with an actual breakdown of what the $15-million transitional cost has been used for and continues to be scheduled to be used for until March 31, 2008?
    We haven't used any of that money yet. As I mentioned, we have to make a submission to Treasury Board.
    Will you be making a submission?
    We plan on making a submission.
    Then you are in a position to say you will, in the future, have to cover x costs as part of the transition.
     I'll ask Mr. Fortin to give more detail, but the $15 million was intended to cover moving costs, some infrastructure costs in terms of IMIT—information management and information technology—and things of that nature. For example, right now our headquarters is co-located with Justice. Our intention is to move out of the Justice headquarters and have our own premises.
    That then means you are in a position—
    We're working on the details. We want to do this prudently. We don't want to just go in and ask for $15 million and say—
    I understand.
    When you are in a position, when your request has pretty much been finalized so that you have the breakdown of what the costs are and you need to dip into some of that $15 million that was designated, I'm assuming you will be able to forward it, through the proper channels, to the chair, through the clerk of this committee.
    We'd first have to go to Treasury Board, before ministers. We go to ministers first.
    Will you let us know when you make your request to Treasury Board? Can we get a little letter just saying the request has gone through?


    It goes before supplementary estimates. That's actually where it will have to show up, so you'll have an opportunity at that stage.
    I understand that, but that's not what I'm asking. When you file your official request with Treasury Board to tap into the $15-million transitional costs, is it possible, is it allowable, for you simply to send a letter to the chair of the committee to inform him that a formal request has been tabled with Treasury Board, period, end stop?
    I always thought the agenda of Treasury Board was considered a cabinet confidence. That's why I'm hesitating to agree.
    Can you verify that and get back to us on whether or not you would be able to do that without violating Treasury Board confidence?
    I can do that.
     I believe it is a cabinet confidence.
    That's my understanding.
    He'll check and get back to us.
    On the $7.8 million recurrent, do you have the breakdown as to what that's for?
    No, that's in the same situation. As I say, we're doing this prudently. We were just established a few months ago.
    Okay, then if you're not in a position to give us the actual breakdown on what the $7.8 million is going to be used for and what the $15 million is going to be used for, how did you arrive at the figure of $15 million? How did the government or whoever it was arrive at $7.8 million?
     What I'm saying is that we don't have the breakdown to the penny. We have an idea of what we're going to be spending it on. As I mentioned, the $15 million is to cover moving, to cover IMIT, and things of that nature.
    So you have the broad lines.
    Is it a violation of cabinet confidence to share those broad lines with this committee?
    No. I just gave you the broad lines of the $15 million. I'll tell you that the $7.8 million is designed to establish a corporate infrastructure within our new organization.
    What does “corporate infrastructure” mean?
    When we were part of Justice, as the old Federal Prosecution Service, at that stage, access to information, planning, human resources, finance, and those types of activities were covered by the units within Justice that did those. When we leave, we have to establish our own access to information, ministerial secretariat, human resources, finance,etc. That money is designed to cover those aspects of our operation.
    How much time do I have left?
    You have none.
    Mr. Dykstra.
    Thank you, Mr. Chair.
    One of the things I noticed as I was running through the profile in the estimates—you won't need the book, I can assure you all—was the inordinate percentage of staff and focus that you need to take with respect to organized crime. Whereas organized crime only makes up 2% of your overall prosecutions, it makes up 24% of your litigation time, the time you expend on it. Could you just expand on that in terms of why it's so difficult to prosecute and why so much time has to be spent on it?
    Organized crime cases usually involve a number of accused. They usually follow a lengthy investigation. They usually entail a lengthy trial. There's also an incredible amount of documentation associated with them by way of wiretaps. We often have to be involved in the pre-charge aspect, giving advice to the investigators so that they can ensure that the investigation runs smoothly and they can meet their disclosure obligations under the charter. If they're applying for warrants or wiretaps, we assist them in doing so. That takes resources.
    Once the case is ongoing, if you get multiple accused and a trial that is going to last several months, you just can't put one prosecutor on the case. You end up putting two or three prosecutors on the case, working full-time. Ten years ago, perhaps it was rare to have one prosecutor dedicated full-time to a file for a period of several months, but now we'll have sometimes two or three prosecutors dedicated to a trial for a lengthy period of time.
    I know it's not about nailing down percentages, but have you had successful prosecutions in terms of getting convictions?
    We never look at whether we win or lose a case. It goes back to the famous dictum in the Supreme Court of Canada case called Boucher. We're not there to win or lose a case; we're there to put the case fairly before the courts.
    You'll see in our report that we talk about a measure of success being whether we got a decision on the merits. We think we're successful if we get a case that goes before the court and the court makes the decision, whether it's an acquittal or a conviction. That's what our job is: to make sure it gets before the court.


    That's interesting, Mr. Saunders. In other words, statistics don't play a role in terms of where you need to go. You deal with each case on its merits and present it that way.
    I wouldn't say statistics don't play a role. As you notice, we do keep track of how many cases we run, and we do keep time, so that we can allocate our resources in a rational way. But when it comes to what the won-lost record is, that is not a factor whatsoever in our thinking.
    I noticed something from a financial perspective. It was interesting that in 2007-08, this fiscal year, the financial resources would be about $125 million. It goes up to about $128 million for the next year, and it comes back down again to $125 million in 2009-10. Could you detail the reasons for that? For the period of 2008-09, I see there will actually be an additional fifteen employees. Could you just expand on that a little bit to explain to us why there's the bump, and then what will happen once it comes back down?
    I'll start off the answer, and then Mr. Fortin will complete it.
    It's my understanding that it goes down a bit because some of the money that we receive to do what are called IMETs—integrated market enforcement teams—sunsets. This was an initiative that was for three or four years, and I believe that money ends this year. As a result, our budget goes down.
    Maybe Mr. Fortin can assist.
     Some of the funding base we have we refer to as sunsetted initiatives; i.e., we receive funding for three or four years subject to an evaluation and a renewal. When an initiative ends, let's say, in 2008-2009, we cannot, of course, include the same level by way of indication, even, for 2009-2010, because we don't have the authority to have these resources; they're subject to renewal, either though an MC or other means. That explains the variations from year to year; we have to take the sunsetted initiatives into consideration.
    The other question I have relates to the funding levels, and it gets back to my original point. Do you actually link, or can you link, the funding levels and the amount of prosecuting you can actually perform? Do you tie those two things together?
    Yes, we do.
    To give you an example, we have a system that's been in place for a few years, where additional funding is given for policing initiatives. You'll see in our report that we refer to some additional moneys related to a federal policing initiative that we have to get by way of supplementary estimates. That initiative allows the RCMP to hire additional officers. When that occurs, we try to get involved as well at the submission stage to ensure that additional prosecutors are also hired; it makes no sense hiring additional police officers, if you don't hire prosecutors. Otherwise, at the end of the day, if they lay charges, there'll be no one there to prosecute them.
    As part of that initiative, and other initiatives as well, we tag on and say.... We have a formula that we use, saying that if you have 100 additional police officers, there should be 20 new prosecutors to ensure there's someone to prosecute any charges laid by these officers.
    So there's a little bit of ebb and flow to the budget, in the sense that you try to outline in your budget at the beginning of the year what you're going to need, but obviously the purpose of supplementary requests to the Treasury Board.... Do you do that on a regular basis? You did that last year, and you did it the year before.
    We didn't do it, because we were part of the Department of Justice before.
    Okay, so that's how Justice moved through that in the past. When you identified a particular number you might have needed, it was set out in the budget. At the same time, if you didn't need it, you wouldn't go to Treasury Board; and when you did actually need the funding, you obviously had to make your case to Treasury Board as to exactly what the money was going to be spent on.
    Well, we had to make our case with Justice first, is my understanding of the past.
    If I could just add, there's one area where we do find it difficult, and that is when the provinces decide to increase their resources. If Ontario decides to increase its police resources, or the City of Toronto decides to increase its police resources, or they change their priorities and decide to focus on drugs, we don't receive money for that; yet it will increase our workload. That's always been a problem.
    Thank you, Mr. Dykstra.
    Mr. Lemay.


    Good morning. Thank you for coming here today.
    I am pleased to be able to associate a face with an organization that I know well, given that I've practised criminal law for 25 years. I have pleaded against some excellent attorneys. I would like to congratulate you. I hope that my colleagues opposite will retain what I am saying to you. I sincerely believe that some of your attorneys are the best in Canada. They arrive prepared and, most of the time, they are dealing with some very complex files.
    In the area of international crime, you have some accredited attorneys who are truly excellent. I am one of those who, 25 years ago, recommended to the Quebec Bar that it request the federal Department of Justice to set up an Office of the Director of Public Prosecutions and for one reason alone. This reason is summarized by the words written in the document handed to us, namely: "independent of any improper influence and respects the public interest".
    That means that the Office of the Director of Public Prosecutions will be an offshoot of the Department of Justice, meaning that it will be a place that deals specifically, as is the case in Quebec, with those individuals that I would call the federal Crown attorneys.


    Indeed, but I would like to provide you with some clarification. Here, in Ottawa, our headquarters is located in the same building as the Department of Justice, but we intend to move as soon as possible. However, we have to wait until the space is available.
    Look over there, you should be telling this to them.
    All right.
    It is important to ensure neutrality.
    Thank you Mr. Lemay. In how many years?
    No, no, in a few months.
    I repeat that there has been no improper interference. There are 16 regional offices. Our regional offices are often located in the same building as Department of Justice offices, because the Federal Prosecution Services also deals with justice. We decided to install different doors, develop different ID cards, but we are not going to break our lease simply to demonstrate transparency.
    I do understand; I said that because image is important.
    Let's talk about your integrated teams. I do have some doubts, because I heard something. I think that one of the better things that the federal government has done—that was even imitated by Quebec—took place in a fight against organized crime. Here I'm referring to the Wolverine squad, etc. Just imagine, I am a defence lawyer. So I am not talking in my best interest. Do you intend, regardless of who is the Director of Public Prosecutions, to keep these integrated team which work in an effective fashion? If not, why? If so, how?
    We do intend to keep them because we find that such teams are effective.
    Pardon me, I must interrupt you. Could you provide us with some more details? I am not sure that all of my colleagues around the table know what we are talking about. What are integrated teams? You may then answer my first question.
    I will let Ms. Proulx answer.
    We have various types of integrated teams in different sectors. We have integrated teams for proceeds of crime, counterfeiting, borders and financial market fraud. So there are four different types, the most recent team being the ones dealing with counterfeiting which was, I believe, announced just this week. This is a model that we are applying on the wider-scale because we found that it worked well and enabled us to better prepare our prosecution files once charges were laid. We like this model and we are using it in more than one sector. When the teams are approved by Cabinet, they are, obviously, subject to ministerial evaluations. The money allocated for these teams has been renewed.
    Excuse me, but this is important. What is the composition of these teams?
    The teams include Crown attorneys, police officers and other experts specialized in a particular sector. In the integrated teams that look after proceeds of crime, there are accountants and tax investigators assigned by Revenue Canada. In the integrated teams that deal with counterfeiting, there are other experts in this field. These are multidisciplinary teams comprised of experts that can contribute to the work of the team.


    Will you keep them?
    We will request Cabinet ministers to keep them when they examine the renewal of the budgets.
    Do I have any time left, Mr. Chairman?


     No, your time is up.


    You should be happy telling me that.


    I was intent on the answers, because your questions were so good.
    Mr. Bagnell.


    So I can continue!


    Can you tell me if there are any new costs to the government? You're just taking a person from one office and putting them in another office. In fact, sometimes you're not even moving, but you're just making a new card. So are there any new costs to the government; and if so, how much?
    I'd indicated to Ms. Jennings—
    I'll skip that question, if you've already answered it. I have another question.
    Do you do studies of projected business?
    We do.
    When you're doing your estimates and everything, such as projections for the future about things that are going to affect your office, the amount of workload, and everything, I assume you do projections of those into the future in determining your budget.
     We do some of that. Each of our regional offices does a business plan in which we ask them to look at their workload and look at the environment to see whether there are any new initiatives locally that might affect the workload they'll face in the future. For example, in Ontario they can look to see whether the City of Toronto has announced a new priority on cracking down on drugs.
    We have one of the most aggressive agendas in the justice committee in a long time. A number of the witnesses have said this is going to lead to a lot more trials, etc. Have you taken this into account and put in increased costs for it?
    Yes. When an initiative is being proposed, we are involved in the planning of the initiative. If it's an initiative that will result in an increase in the number of investigations, we'll argue that because of that, money has to be set aside to hire additional prosecutors.
    That's what happened with the federal policing initiative. You'll see in our report on plans and priorities that we're getting, I believe, $9 million this fiscal year to hire additional prosecutors.
    I have one more question, and then I'll share with Ms. Jennings.
    Did you put in—for instance, on bills such as Bill C-10, where fewer people will plea bargain, because there are stiffer penalties—more money for the longer court time that is anticipated?
    After consulting with the expert on this one, the answer generally is yes. If it's going to affect the amount of drug work we do, we will typically seek additional financing.
    Is there any time left, chair?
    You can have one short question.
    My short question is coming back to the corporate infrastructure, which will require additional recurring costs. There was a move on in successive previous governments to attempt to encourage independent federal agencies to look at the possibility of shared services, whether in HR, finance, access to Information. Have you done the study to determine the feasibility of doing that?
    I'll start the answer and I'll let Mr. Fortin give the rest of it.
    Yes, we have, but we have to be mindful that there are certain areas in which it might be difficult for us to share, and access is one. For example, if you start sharing that, it means another government department has control over your document. That's an area where we want to ensure our independence and ensure there's no conflict of interest.
    In areas such as human resources, at present we will have an infrastructure whereby we have a director of human resources and we'll have the corporate cadre, but we might use justice department employees to do the transactional work, which is what we do now. We have to determine how far down we go.
    I might add that Quebec is going through the same exercise right now. I met with their new director of public prosecutions. They have decided to buy some common services, but they have to determine which ones they can buy, for the sake of their independence and so that there's no conflict.
    Those two factors are the ruling factors in deciding what we can buy and how far we go down in the level.


    Thank you, Ms. Jennings.
    Mr. Petit.


    Thank you.
    Good morning gentlemen, Mr. Saunders and Ms. Proulx.
    The new Director of Public Prosecutions testified following the adoption of Bill C-2, the Federal Accountability Act. The party I represent saw the need to set up a system in order to guarantee the independence of the director and prevent any political interference. That is what Mr. Lemay believes as well. We get the feeling that this is the objective sought by the new director.
    I fully understand that you will be given a budget so that you can institute various proceedings and maintain relations with the provinces, etc. Mr. Ménard raised a very interesting point. Had the Office of the Director of Public Prosecutions existed at the time of the sponsorship scandal, would we have had to wait for two years to elapse and for a Gomery inquiry to have taken place in order to file complaints?
    Usually, one a director is independent, he is independent from political power. If he is independent from political power today, perhaps he was less available beforehand. I don't know because I wasn't there. For two years, we saw individuals appearing on television in conjunction with the sponsorship scandal. It took a Gomery inquiry to finally be able to file an ordinary complaint of fraud, something that government attorneys are used to doing.
    Why did we have to wait so long? Will this new system of having a Director of Public Prosecutions enable us to resolve this problem so that we can proceed more quickly in similar cases instead of having to wait two or three years?
    I do not know whether or not the delay that occurred with the sponsorship case was linked to the attorneys, because this inquiry did last quite some time. It was the Attorney General of Quebec who instituted legal proceedings. We did not participate in this process. The Accountability Act revised the act on—
    The Federal Accountability Act.
    Section 80 did exist, but it was not used. It was revised. There is now an offence for cases where an agent of the Crown commits fraud. It is not up to us to determine whether or not charges should be laid under the Federal Accountability Act or the Criminal Code. Investigators make this decision. We institute legal proceedings, but we do not conduct the inquiry. It is difficult to know whether or not, in the future, investigators will be filing complaints of fraud under the Criminal Code or under the Federal Accountability Act.
    The sponsorship scandal made a lot of noise in my province and in that of Mr. Ménard and Mr. Lemay, who are specialists in this field.
    Do you think that the Director of Public Prosecutions will be sufficiently independent from the government? I participated in the study on Bill C-2 and I think he will be. However, I would like to know whether or not the Director of Public Prosecutions will be sufficiently independent from political parties in power in order to pursue issues that the public does not like. In addition, do you have the financial resources required to do this?
    I think that we will have the requisite independence. However, I do not like the expression you used: “Pursue matters that the public doesn't like”. Whether or not the public likes something is not a factor we consider when we institute legal proceedings.
    I withdraw my words. I am talking of what we know today to be fraud. As far as I know, the public does not like fraud.
    Yes, I know.


    Something that brings discredit upon the administration of justice.
    That's right. Something that brings discredit upon the administration of justice.
    That's better. I prefer that.
    Your second question was about whether or not we have enough money.
    Say yes, say yes!
    The budget of the former Director of Public Prosecutions was also subject to pressure. We are dealing with the same pressures and we have to conduct studies and analyses to determine whether or not we have enough money. We thought about asking for money, but it was too early to do so. Further to consultation, we decided that it would be better to do the studies and the business plans for regions before deciding on how much money we will need. For the time being, we have enough money to enable us to fulfil our responsibilities.
    I will wait a bit.


     We'll go around again, Mr. Petit.
    I have one question I would like to ask, given the fact that there's a good, but brief evaluation or summary of the reason for your existence. You use the words “independent of any improper influence and respects the public interest”.
     There have been several cases in our nation under fisheries—and I know you're responsible for overseeing that type of prosecution—where fisheries enforcement has not been equal. In other words, there seem to be two laws. There's enforcement on one side, sometimes within the native fishery area, and it's different for those outside that area.
    Are you going to play a role there?
    We are not investigators. We rely upon the police and other investigative agencies to commence investigations. We take the case over once the police decide to lay charges.
     But you're going to be part of an integrated team.
    “Integrated team“ doesn't mean that the police don't remain in charge of the investigation. That was made clear in a recent decision in the Supreme Court of Canada called Beaudry. It recognized that the police have an independent function to play in conducting their investigations, and prosecutors have an independent function to play in deciding whether to prosecute.
    The court went on to say that even in cases, as in Quebec, where you have pre-charge approval of cases, it doesn't take away from the police independence.
    No, I respect that, but to prosecute, you're going to make an evaluation still, are you not, to see if it falls within the law and falls equally within the law?
    Like all prosecutors, we are guided by two principles in deciding whether to prosecute. The first is whether there's sufficient evidence that there's a reasonable prospect of conviction. The second is whether the public interest favours a prosecution. That latter category is a fairly discretionary one; however, that discretion has been limited by jurisprudence, and we have a desk book which sets out the principles upon which we'll exercise the discretion in the area of the public interest. That desk book is public; it's on the Internet, so that everyone can see.
    So when it comes to this term “improper influence”, there could be some political influence coming to bear on a matter?
    None whatsoever? You're totally devoid of any political influence?
    We can consult—I mean, one of my colleagues always says “Independence doesn't mean isolation”. It's always been recognized in the jurisprudence that a DPP or an attorney general, in those jurisdictions where the attorney general is responsible for prosecutions, can consult with whomever, but the decision to start the prosecution, to continue the prosecution, to go on appeal, must be exercised independent of any partisan influence.
    Finally, take the Air India debacle, going from investigation, through prosecution, through everything. Do you see yourselves in a role that would avoid such a thing in the future?
    We weren't involved. That was a provincial prosecution conducted by the AG of British Columbia.
    Would you be involved in the future?
    It depends what the charges were laid under. Those were, as I recall, Criminal Code prosecutions for murder.


    If there were a terrorism charge laid against someone, we would be involved. For example, right now our prosecutors are working on two terrorism cases, one in Toronto and one here in Ottawa.
    Good. Thank you.
    Mr. LeBlanc, do you have a question?
    Ms. Ratansi, do you have a question?
    Mr. Thompson.
    The chairman hit pretty well on the topic I wanted to talk about—fisheries—but I'd like to carry it just a little further.
    First of all, the document I have says, “the prosecution of federal offences to protect the environment, natural resources, economic and social health”. I'm not sure what all that entails. I don't quite understand. What would your involvement be, for example, with natural resources?
    We conduct prosecutions under the Canadian Environmental Protection Act.
    In my riding there have been several charges brought against people that I thought were pretty silly, to say the least, and some that made sense. For example, a lake once existed in an area called Exshaw. The lake dried because of dry years, and drought settled in. The bottom of the lake has a certain amount of sediment on it, and when the winds start blowing, it starts moving, when it dries up. It became a dust problem to the town, so a group of people came together, went in, and tore up the bottom of that lake and seeded it to grass, to try to hold down the dust. But they got no permission to do so, so charges were brought forward by Fisheries and Oceans against this group of people for taking up a cause: to stop a problem that they couldn't seem to get action going on, because Fisheries and Oceans wouldn't authorize any action.
    Are you involved in that kind of silliness?
    If there were a charge under the Fisheries Act, our prosecutors would be responsible for conducting the prosecution. Again, we wouldn't be responsible for the investigation leading to the prosecution. That would be done by fisheries investigators or by the RCMP, I assume.
     But while you're prosecuting, you are certainly taking the evidence of the investigators. I'm really trying to understand why I have so many problems in my riding under the laws of natural resources, where people put in a culvert in order to prevent a flood situation and yet they are charged under the Natural Resources Act or some part of it for doing so without permission.
    I know of a farmer, for example, who put a burlap bag in at an area called Pine Creek. If you held your glass at a little bit of an angle to get a flow of water, that's about how much water would run down this creek. He laid this little bag in there to dam it up, to back it up, so his cattle could have a drink. He would fall over that and go on. The authorities came and laid a charge against him under the Fisheries Act for having put that in there, so prosecution has to take place. Do you deal with that kind of thing?
    What I'm talking about is the number of silly little things. What the people are doing makes sense, yet charges always come out of these things.
    It would be inappropriate for me to comment on individual cases, but in terms of whether our prosecutors conduct cases under the Fisheries Act, the answer is yes. From what you've described, you could be talking as well about charges under provincial legislation, and we wouldn't be doing those.
    Then that's part of my question. In terms of your statement in here on prosecutions related to natural resources, where does that differ? When does it become provincial, and when is it yours?
    The dividing line here is quite simple. If charges are laid under a federal statute, then it is our prosecutors who conduct the prosecution. If charges are laid under provincial legislation, it would be the provincial Attorney General's office.
    But if streams and rivers and creeks are all under the authority of Fisheries and Oceans, would they not all be federal charges?
    Yes, but a province could have certain legislation as well, such as on land use planning, that could lead to charges. But insofar as the charge is laid under federal legislation—the Fisheries Act is one such piece of legislation—our prosecutors would be responsible.
    In the past when I tried to get information, it seemed like I would be tossed from one place to another, and I was getting nowhere.
    Who's laying the charge? The federal government. Who's the lawyer representing my constituent? Does he have to get his own lawyer? Yes, he does. Who's he fighting against? It doesn't seem to be very clear.
    As an MP, these issues are brought to your attention on a regular basis. I'll be honest with you by saying that most of the time, I'm not too sure where to go with them. If you go provincial on them, they turn out to be federal. If you go federal.... You get tossed around all over the place. Is setting up your establishment going to make that any better?


    We have an Internet site that we're going to populate with information, to use the expression of the techies. We will have information about what our areas of responsibility are, so that people can go there and see it.
    That's the best I can do in terms of telling individuals what course they should take when they face a prosecution. They, themselves, should read the information. Whatever document is given to them will tell them clearly under what legislation the charges are laid, and that's the starting point in determining which provincial or federal jurisdiction is involved.
    It seems like these numbers of issues crop up quite often, particularly in areas that may be subject to flooding and drought and all of that. I hope we can get some clarity on that. I have a hard time dealing with these things, because the constituents come to me.
    More information about our role is an important one. We certainly hope to increase our visibility, so people know that we exist and what our role is.
    The last question I have is on your form that I got this morning. It says your operating budget is $28,972,000, less revenues credited to the vote. I have no idea what that means. What the devil does that mean?
    I will let Mr. Fortin explain that to you.
    The net voted revenues you are referring to, to the tune of $11.3 million, if I remember correctly—
    Yes, $11.342 million.
    That is an authority that we need. It's not only to recover some of the costs of our prosecutions that we do in the name of or on behalf of our regulatory agencies. It is to give us the authority to spend it.
     We need to recover some of the costs that we incur, especially in regulatory prosecutions, but we need to have the legal authority to spend these recoveries toward salaries, hence it is called “net voted”. It's a technical term, and we can recover up to that limit.
     I guess it's why I appreciate your being here more than anything.
     In most things that you pick up in this government, you'll read something like “less revenues credited to the vote”. I can guarantee you that 99.9% of us don't know what the hell it means. I would like to start picking up documents that clearly explain what the figure pertains to.
     I think we could do a lot better in a lot of departments on clarifying some of these things.
    Thank you, Mr. Thompson.
    Mr. Petit.


    Mr. Chairman, if I may, I would like to go back to the question I asked earlier.
    You said two things between the time when I asked you a question and when you responded to a committee member. You said—I will repeat what you said in my own words—that according to your structure, when you have well-documented evidence and the public interest is at stake, discretion is required in the interest of the public. You said that these were notions that we could find on the website explaining how you operate.
    I'm very pleased with this attitude. Naturally, I'm speaking from the federal perspective. I know that you consider what we call public interest. You had in your hands—I am not necessarily asking you to answer, I do not want you to compromise yourself, I simply want to understand—Justice Gomery's inquiry into the sponsorship scandal, which lasted quite a long time and which contains well-documented evidence. He took on an enormous task. His conclusions regarding certain situations led to regular charges of fraud, which is the most frequent case we see in our courts.
    I am very pleased that the position of Director of Public Prosecutions has been created. I am pleased because it embodies a notion of non-interference. In my opinion, it is fantastic that we can shield the prosecutor from any perception of political interference. Beforehand, you had all of that. The position of Director of Public Prosecutions is, however, quite new. Another structure had been in place, but I dare not discuss it because I am not adequately familiar with it. But I do know this one. Will the new director appointed to this position feel obliged, for example, when examining the conclusions of the inquiry conducted by Justice Gomery, who is an experienced judge, to institute legal proceedings because the public expects you to administer justice properly and you do not want the perception of justice to be brought into disrepute? Could the director do that? If you are uncomfortable answering this question, don't answer.


    We do not lay charges, the investigators do. In the case of the sponsorship inquiry, I believe that it was the RCMP and the Sûreté du Québec who conducted the investigation. It was the Attorney General of Quebec who instituted legal proceedings against the individuals involved in the sponsorship scandal. We did not act as an attorney in this case.
    You asked whether or not the attorney could rely on Justice Gomery's report. The answer is no. The investigators tried to dismiss the evidence presented to Justice Gomery and the evidence on which they had based their charges. That is a principle of law. When someone is compelled to testify against his own interest, we cannot rely on this evidence for the purposes of a charge.
    I would briefly add that the Canadian justice system is structured in the following manner. The police, the investigators have their role to play and they play it. It is up to them to determine whether or not charges should be laid, against whom and under what circumstances. At the federal level, the Crown attorney, the Director of Public Prosecutions must then establish, further to the laying of charges, if legal action should be continued. This manner of operating existed before the Office of the Director of Public Prosecutions was established and it continues today. The establishment of the Office of the Director of Public Prosecutions has not changed it.
    Do I have time to ask another question, Mr. Chairman?


     No, you don't.


    All right.


    I'm going now to turn the questioning over to Mr. Lee.
    Thank you, Mr. Chairman.
    This is a question that's a little bit off the wall, and I forgive you if you don't have an immediate answer. But I would like an answer, which you can provide in writing, when it's obtained, through the clerk.
    Under parliamentary law, which is part of our constitutional law in Canada, Parliament has long had the ability to request that the Attorney General, who normally sits in the House, undertake a prosecution. An example would be in relation to a perjury. Parliament itself, of course, has the ability to address prevarication, perjury, and other things with its witnesses, but on occasion Parliament may be of the view that it is in the public interest for Parliament not to take these steps, but rather to have the Attorney General, on behalf of the Crown in the public interest, take those measures.
    Given that we have now created a department of public prosecutions and separated, in theory, the decision about who prosecutes, and when and where, from the Attorney General and delegated it to the Director of Public Prosecutions, if that's the right term, could you advise on the public record—because this may come up in the future, since we're reorganizing the flowchart, if I can put it that way—to whom Parliament would direct its directive, in the event it wished a public prosecution of a perjury to take place outside Parliament? Should it be to the Director of Public Prosecutions, with whom Parliament has no direct connection, or should it be to or through the Attorney General, where Parliament does have a very real connection and where the law is already established?


    As you might imagine, it's not a question I've given any thought to until now. The Attorney General still has a role to play as the chief law officer of the crown, and I assume the request could be directed to him or her as a member of Parliament. Apart from that, it's something I'd have to consider.
    Even if it were directed to us—that is, the public prosecution service—our prosecutor, I assume, unless directed by the Attorney General, would still have to apply the test we've been talking about: is there sufficient evidence to establish a reasonable prospect of conviction, and does the public interest favour the prosecution? That test is applied in every case we do.
    But your question is to whom you go at first instance. My off-the-cuff reaction is that the Attorney General could be contacted, but I'd have to think about it.
    Parliament would expect a robust, engaged response, not simply a “we're thinking about it” response. If the administrative response is “we'll think about it”, that is not traditionally what has occurred. When Parliament sends a message, it would expect perhaps that there is some allowance for consideration of the overall case, but not really the issue of whether you might want to do it or not want to do it, or whether it might or might not be in the public interest, because Parliament would have already made that decision.
    There is scope under the act for the Attorney General to assume conduct of a prosecution—there's still that power—or to issue a directive in respect of a particular prosecution. If Parliament established itself as being independent, it would be ironic if Parliament were to direct the DPP to conduct a prosecution and tell the DPP not to apply the test that's applied in every other prosecution in the country.
    I think you've answered it. If the Attorney General retains the ability to conduct a prosecution still, that would resolve the problem completely. I thank you for that.
     Thank you, Mr. Lee.
    I don't believe there are any other questions. I do have one final one.
    Again, going back to the broad statements that were made, which I assume will guide your office, you are responsible for “addressing criminal issues, in the context of prosecutions to contribute to a safer world for Canada”. And of course the next point—and there's $5.1 million, I should say, allotted for these initiatives—is that you are responsible for “promoting a fair and effective justice system that reflects Canadian values within a prosecutorial context”.
    Now, not too long ago, in the B.C. courts, all federal prosecutions of a number of drug cases were thrown out with one swipe of the brush because they had become backlogged in the courts, and nothing was pursued after that point. This goes back a few years ago—not too many—but that was not an uncommon affair. That was what the court decided, and those were drug cases.
    Now, I know this is a new office, but I would assume that something like this would never happen again, now that your office is struck.
    I would hope it wouldn't happen again.
    I don't know the cases you're talking about. I assume it's something that happened after the Supreme Court decision in Askov, when cases across the country were thrown out because of delay.
    We try to ensure that our cases are handled promptly and don't run afoul of Askov. This doesn't mean that even today, at the provincial level, cases don't occasionally get dismissed, or stayed, because of prosecutor delay; and it doesn't mean it might not happen with us. But I would hope it wouldn't happen, as you say, for a large volume of cases.


    I would just briefly add that what ultimately led to those cases' demise was a judicial finding of a charter violation. We litigate alleged charter violations regularly and diligently before the courts. Findings that charter rights have been violated do occur, and cases get stayed as a result of that.
    One of the problems that I personally know existed when it came to issues of drug prosecutions was that there were a number of part-time prosecutors who came out of various law firms. To me there's a certain element of conflict there, but these part-time prosecutors were juggling two balls and sometimes it just didn't fit into the court scenario. As a result, due maybe to inadequate resources on the federal side, cases were not dealt with effectively.
    Are things going to change in that regard, in reference to federal prosecutions, and are these part-time prosecutors going to be things of the past?
    We rely heavily on part-time prosecutors. We have to cover courts across this country, and the agents, as we call them, are essential, because we just can't have a staff prosecutor in every small community in Canada. It's just—
    I'm talking about cities like Vancouver, Calgary, Edmonton.
    We have regional offices in those places, but we're talking about northern Alberta, northern Saskatchewan.
    Sussex, New Brunswick?
    In New Brunswick, we don't have a regional office, but we have agents in New Brunswick.
    We do have a system of agent supervisors overseeing the agents and trying to ensure that these types of problems don't occur. If they do occur, we do take measures to address them. We can't guarantee there won't be problems in the future, but we do our best to have a system in place so that the problems are identified and are addressed.
    Well, I certainly know of some pending initiatives or charges on the federal side that are coming up, and undoubtedly your office will play a role in them. I'm really interested in seeing how all of this is going to work itself out, if it's in the interests of the public or greater good. Obviously, there are going to be some decisions made on your part to make sure that happens.
    Thank you.
    I don't see any other questions.
    I would like to thank the members of the Office of the Director of Public Prosecutions for your attendance here. We appreciate it. I think there have been some good questions and we very much appreciate the information given.
    Thank you very much.
    We'll suspend for one minute.




     I call the committee back to order.
    Our next order of business is a notice of motion by Marlene Jennings.
    Ms. Jennings, you have the floor.
    I'd like to move the following motion:
Whereas public concerns have been raised with regard to section 462.34(4) of the Criminal Code (Application for review of special warrants and restraint orders);
Whereas section 462.34 can by judicial order allow alleged criminals to pay their lawyers out of money seized from them by police;
Whereas this practice is not regulated by clear criteria;
Whereas there has been little public scrutiny of this practice;
It is therefore proposed that:
1. The House of Commons Standing Committee on Justice and Human Rights study section 462.34 of the Criminal Code and its application, this after its study of Bill C-23 comes to a close;
2. That the Committee dedicate a minimum of 2 sessions to this study;
3. That the Chair of the Committee report its findings to the House.
    I have an amendment.
    Is it a friendly one?
    It is a friendly one proposed by Mr. Rob Moore, Parliamentary Secretary to the Minister of Justice. It would amend point 2 to read:
That the committee dedicate at least one (1) session to this study.
    That's it? That's the amendment?
    That's it.
    Mr. Moore.
    That's fine.
    An hon. member: Call the question.
    Mr. Rob Moore: Considering it was my idea to amend it, I guess I have to agree.


    Can we ask a question, Mr. Chairman?


    I'm trying to get along and make this move forward.


    I would like to ask just a brief question, Mr. Chairman.
    Does Ms. Jennings want—


    Mr. Ménard, it is a friendly amendment.
    It is a friendly committee, and you are a friendly chair, Mr. Speaker.
    Some hon. members: Oh, oh!


    Mr.Réal Ménard: Ms. Jennings, do you wish to do a study between now and the summer break or do you think it could be done in the fall rather?
    I will leave this decision up to the discretion of the steering committee. Obviously, if it were possible to hold the meeting before the summer break, I would be delighted. Moreover, should the Subcommittee on Agenda and Procedure feel that this would be difficult, I would be prepared to agree to hold the meeting in the fall.
    All right.


    Well, we appreciate the fact that you're so flexible on this, Madam Jennings. I can see that our calendar is definitely filled through the 12th, 14th, and possibly the 19th of June. Since you are flexible enough to put it into the fall, I think that is when it would be more likely to occur.
    (Motion agreed to)


    The meeting is adjourned.