Thank you, Mr. Chairman.
Madame Merriam is probably caught up in the security downstairs. She'll be along shortly.
I'll start now, Mr. Chairman, since the committee is ready.
I'd like to start with a brief introductory comment, which will be provided to the committee in bilingual format.
I'd like to try to explain how legal aid is funded through the budget system. As you know, it's quite complex. One has to look at both the main estimates and the supplementary estimates to understand. Before we get into questions, I thought it might be useful to at least try to explain the funding. I know in the past we've often been confused as to exactly what the total numbers are and what the numbers represent.
Members of the Justice Committee, it is my pleasure to appear before you to answer questions regarding funding of Legal Aid.
Joining me today is Barbara Merriam, acting Director General, Programs Branch from the department. Ms. Merriam has direct responsibility for a series of funding programs and policy initiatives including Legal Aid.
Mr. Chairman, I would now like to speak to you about the federal government’s role in funding Legal Aid.
In Canada, legal aid is a shared responsibility between the federal government—under its authority in matters of criminal law—and the provincial governments—under their authority for the administration of justice and for property and civil rights.
The Canadian model is that the provinces deliver legal aid services and the federal government contributes to the costs with the provinces and territories. Legal aid is delivered by thirteen legal aid plans, one in each province and territory, created under the statutory authority of the province or territory.
For the past 35 years, the federal government has been contributing to the costs of criminal legal aid through contribution agreements with the provinces and territories. Contributions to the provinces support legal aid in matters of criminal law, youth criminal justice and, since 2001, immigration and refugee matters in six provinces, that is Alberta, Quebec, Manitoba, British Columbia, Ontario and Newfoundland and Labrador. In the territories, the federal government contributes to both criminal and civil legal aid through Access to Justice Service agreements.
Last year, in 2006-07, the federal contribution for criminal legal aid to the provinces and both criminal and civil legal aid for the territories totalled $112,385,463, or $112.38 million. The document that will be distributed has an actual breakdown of that distribution per province and territory. I won't read that.
For the current fiscal year, the department has requested $81.9 million in main estimates, and it is now requesting $44.31 million in the supplementary estimates. These resources will allow for the maintenance of the existing federal contributions toward the cost of providing legal aid.
For the past six years, increased funding to the provinces and territories has been provided only on an interim basis, over and above the $81.9 million already provided in the department's reference levels. Budget 2007 provides for the stabilization of resources for criminal aid at 2006-07 funding levels.
In absolute terms, the funding for legal aid has remained unchanged. However, there is an important distinction to be drawn when comparing previous years' funding to this year's funding, namely the stabilization of a portion of the funding in the amount of $30 million that was about to sunset in March 2007. More specifically, budget 2007 allows for the interim legal aid resources to be renewed, with $30 million of the $44.31 million being added to the existing departmental base of $81.9 million, thereby increasing, permanently, the legal aid base to $101.9 million from the previous permanent level of $81.9 million. The remaining resources of $14.315 million will be continued on an annual basis for five years.
In order to get a complete picture of the funding situation for Legal Aid, we must consider both the Main Estimates and the Supplementary Estimates for 2007-2008. The funding levels shown in the 2007-2008 Main Estimates represent funding in support of legal aid at $81.913 million. The funding levels shown in the 2007 Supplementary Estimates represent $43.150 million and $1.165 million in Vote 1 in support of legal aid.
Accordingly, the total vote 5 funding for legal aid for 2007-08 is $125.063 million. In the material I'll provide, there's a breakdown as to how much is in supplementary estimates, how much is for main estimates, how much goes to the provinces and territories, how much goes to legal aid for immigration refugees, and how much goes to court ordered counsels.
Essentially, $111.9 million base funding will now be available for the provinces, plus the $30 million from the supplementary estimates. There is $11.5 million available for immigration and refugee legal aid, which is identified in the supplementary estimates; and $1.65 million is for court ordered counsel in federal prosecutions. That's also identified in the supplementary estimates. That's vote 5.
The total vote 1 funding for legal aid for 2007-08 is $1.163 million, and that's also identified in the supplementary estimates.
By stabilizing funding, this approach will provide predictable funding that will permit jurisdictions to develop long-term strategies to support the delivery for criminal legal aid in the provinces and for both criminal and civil legal aid in the territories.
It should be noted that while Budget 2007 provided for stabilization of the criminal legal aid base, provinces and territories continue to seek further federal funding for criminal legal aid. The department remains committed to working closely with our provincial and territorial counterparts to explore suitable funding options for legal aid funding under the auspices of the Federal-Provincial-Territorial Permanent Working Group on Legal Aid.
Mr. Chairman, now that I've briefly described the program, and I've tried to clarify the numbers and not confuse you more, we'd be pleased to answer any questions the committee may have.
The federal government, in particular the Department of Justice, has been in consultation with the provinces and territories through the permanent working group I mentioned.
Federal, provincial, and territorial ministers of justice discussed this issue both last year and this year. They have agreed to continue to examine the costs, including the costs as the result of new legislation, and that the provinces would submit those to the federal government before the halfway mark of the current five-year period of this budget announcement to consider whether there should be any change in the allocation.
The short answer is that there is an exercise, right now, between the Department of Justice and the provincial and territorial governments to calculate the cumulative impact of new reforms on the criminal justice system. That includes legal aid, police costs, all those kinds of costs. With respect to legal aid, the intention is that this would be brought to the attention of the federal government before the halfway mark so that the whole structure of legal aid could be reconsidered.
Thank you, Mr. Chairman.
Sometimes this kind of work is about as exciting as chewing on the bark of a tree. I appreciate that the officials have gone the extra mile to help us chew on the bark.
I recall that in Ontario recently there was some public controversy over the size of one particular legal aid bill in a public trial. That occurred partly as a result of the trial judge ordering that the person shall have legal aid, shall have a court-paid or province-paid lawyer. That was a murder charge trial. In those scenarios we have this potential unanticipated explosion in legal aid expenditures. I'm sure the judge didn't take the time to think about whether it was in the budget or not.
Who picks up the tab for that type of judicial decision? Is it the province, or is it shared with the federal government? Is there any discussion of modalities between the feds and the provinces, to try to manage what I'll call that one-off judicial explosion, which in that case, from my recollection, produced a legal aid bill that was over $1 million? It might have been $2 million.
The case you're referring to was a provincial prosecution, and provincial legal aid was responsible. So it was an issue between the Attorney General of Ontario and the legal aid plan of Ontario. It did not involve the federal government.
But I think the broad issue you're referring to is the phenomenon of court-ordered counsel for prosecutions, whether they are federal prosecutions or provincial prosecutions. Some individuals may not meet the provincial criteria for legal aid. Each province has their own criteria for funding level: certain salary limits, income levels, and other criteria as to whether or not a person qualifies for legal aid. Certain individuals may not qualify for legal aid, but due to the complexity and consequences of the case, the judge may be of the opinion that without the benefit of legal counsel the accused person could not have a fair trial with the benefit of full answer and defence. Therefore, the judge essentially looks at the Attorney General and says, “If you want to prosecute this individual, you'd better ensure that this individual has appropriate legal counsel. So Mr. Attorney General or Madam Attorney General, pay for it.”
Where it comes out of the provincial budget, I don't know. Some of it may come out of legal aid; some of it may come directly out of the provincial budget of the Attorney General. It's a purely provincial matter, but that's how the situation arises.
But it seems to me that preparing bilingual documents before appearing before us shouldn't be too complicated for the Department of Justice. It seems to me that's a reasonable requirement. I'm somewhat surprised by this amateurism.
That said, you mentioned two amounts to us, $81.913 million and $43.150 million. I'd like you to state the exact amount that each of the provinces will receive. These amounts will become additional funding, which is good news, of course, even though it's largely inadequate. How much will Quebec receive?
I'd like to know whether, once the funding is available, use of those funds will be subject to conditions for the provinces, such as use reserved for defence or for criminal or criminal-related offences, or whether it can be used for the overall operation of their system.
Let me address the three issues.
We apologize for not having full copies in both official languages. There were some changes made to the document this morning to ensure that it was accurate and clarified the situation. Accordingly, we were not able to have both an English version and a French version. What we presented was essentially a bilingual version, with part in English and part in French. I apologize for that.
On whether we can provide what each province will receive in this fiscal year, we are not able to do that because we are still in discussions with the provinces as to the exact amounts. We can, however, provide you with a list of what was allocated last year province by province, territory by territory, as well as the percentage of the federal allocation, as opposed to the total shareable expenditure between the province and the federal government, province by province, territory by territory.
It's very short. I can basically describe it very briefly.
In terms of the third question you asked, whether there are conditions to this money, no, there are no conditions to the money except that the money has to be used for legal aid.
How is it expended by the province? That is according to the province. There is some legal aid money that is conditional, and that's the money that is provided for immigration and refugees. That has to be provided for that purpose. But the general amount that's provided for criminal legal aid is disbursed by the provinces according to the provincial criteria.
With respect to the question as to the criteria that go into the negotiations and the formula, it's quite a complex formula, but I'll just describe the criteria.
The working group looks at the previous contributions by the federal government. It looks at the population of the province or territory--let me just stick with the province--and the number of rural communities in the province, the number of persons charged under the Criminal Code and the Controlled Drugs and Substances Act, and the provincial contributions toward criminal legal aid expenditures. There's a mathematical formula that looks at these and comes up with a different allocation for each province.
I appreciate your appearing before the committee today. It's been a great discussion so far on legal aid, but I would like to change the channel for a second, if you don't mind.
In my constituency, obviously, there are some issues involving youth crime, and I'd like to ask some questions along that line.
In the House of Commons right now, the government has tabled Bill , which will amend the Youth Criminal Justice Act. Parts of the bill deal with deterrence and denunciation and some of the principles involved in sentencing. The bill strengthens provisions relating to pre-trial detention, as well. I'm just wondering if you can explain, for the benefit of this committee, what's been done in the department, as far as financing or budget allocations are concerned, to help prevent youth violent crime.
Thank you, Mr. Chairman.
I don't have any figures with me with respect to crime prevention, because we were requested to come to the committee today to talk about legal aid. There are a number of figures. I don't have them.
I know that the minister had them with him on Tuesday when he testified on supplementaries as to how much money is spent by the Department of Justice with respect to crime prevention--for guns and gangs, in particular.
I have a figure in the back of my mind, but I don't want to say it, because it could be wrong. So I don't want to mislead the committee by putting out a figure. But if Mr. Calkins would like, we could provide the exact figure for what the department provides in crime prevention. There's also crime prevention moneys provided by Public Safety Canada.
Thank you very much for your presentations.
Given that my Conservative colleague went a bit off topic, I'm going to go a bit off topic too. But like him, I will come back to the estimates.
Janet Hinshaw-Thomas was arrested and charged under the Immigration and Refugee Protection Act, section 117, for allegedly aiding and abetting human trafficking into Canada. Under that section the Attorney General of Canada has to specifically authorize laying of charges and a prosecution. It was denounced all across Canada and in parts of the United States as well. She is a well-known human rights advocate. Finally, under the pressure of all of this advocacy and public outcry, the Attorney General decided to drop the charges.
I'd like to know exactly what the process is within the Department of Justice on the Attorney General side. Does the Attorney General, when he or she is named Attorney General, simply sign off a delegation of authority that works its way down the line so that the little prosecutor at the border station can decide on their own because they've been delegated the authority? Or does it actually require that such a prosecution move its way, before charges can be laid, all the way up the line in federal justice, and at some point either you, a senior assistant deputy minister, the deputy minister, or the Attorney General himself actually has to sign off on it?
If you can't answer the question now, I'd like it in writing through the chair to me. Thank you.
Now I'll come back to the estimates.
Now my question goes specifically to estimates and supplementary estimates.
Given all of the new justice legislation that this government has brought out to create minimum mandatory sentencing, changes in the determination of sentences for youth, etc., has the department begun to estimate on its own--for the drug cases that are federally prosecuted--and with the provincial and territorial governments the increased cost that this will mean to the administration of justice--the actual prosecution, the trial, the cost to public corrections services? Has that been costed out? If these pieces of legislation, whether it's on controlled substances, or on the Youth Criminal Justice Act, are actually implemented as they were tabled, what will the cost be?
If so, please bring it to us through the chair.
Under the Director of Public Prosecutions Act, the authority of the Attorney General is delegated to the Director of Public Prosecutions. We have, in effect, the Director of Public Prosecutions and the Deputy Attorney General of Canada for the purposes of conducting prosecutions under federal law. The Immigration and Refugee Protection Act would be an example of federal law under which we've been given that responsibility.
The Attorney General has also issued a directive under section 10 of our statute instructing us to make use of the Federal Prosecution Service Deskbook. That deskbook sets out the principles that guide our prosecutors in doing their work. It also has a chapter setting out delegations of authority because there are a number of statutes that provide the Attorney General with the responsibility of making decisions. In the case that Ms. Jennings raised, it's under section 117 of the Immigration and Refugee Protection Act, which calls upon the Attorney General to give his consent before any prosecution can be laid under that provision. Pursuant to the Director of Public Prosecutions Act, it is our office that takes that decision, pursuant to the deskbook I mentioned that has been delegated to regional directors within our organization.
When making that decision, like any decision of the prosecutor to start a process, the prosecutors have to look at two principles. These two principles are followed by every prosecution service in the land, and they are as follows. On the evidence before you at the time you make the decision, is there a reasonable prospect of conviction? If so, does the public interest favour a prosecution?
So the prosecutors involved examined the file they were presented with and the base of the evidence they had at that time, applied those principles, and consented to the institution of the prosecution.
Subsequently, additional evidence was brought to their attention. And prosecutors also have under the deskbook that I mentioned a continuing obligation to evaluate a case. In other words, if new evidence or new information comes forth, they are supposed to revisit their decision and apply those two guiding principles I mentioned. When this new information came forth, the prosecutors, pursuant to their obligation, considered it and determined that in light of this new information, there was no longer a reasonable prospect of conviction, and in effect they stayed the prosecution.
I feel we are going to learn something this morning. I get the impression that there is a professor emeritus in you and that he might come out.
We know that, in Bill , the Conservative government has begun a quest for transparency and that a position of director of prosecutions was created. However, no one has yet been appointed to that position. I had every hope that it would be you. Well, we don't know the future, so we'll see.
Your services have assessed the possibility of prosecuting a person who has previously belonged to the political system. Let's take a random example, that of a former prime minister. Let's imagine that it appears from a public investigation that a former prime minister has, for reasons it is not for us to assess today, accepted funds from a businessman.
This is a pure fiction, but if it occurred, would you have complete flexibility in bringing charges or would you be accountable to some form of political hierarchy? You of course understand the fictitious nature of my example, but I'm counting on you to make it pedagogically interesting.
I am trying to understand how independent you are when it comes to instituting proceedings. In the case of charges under federal narcotics legislation, that would be fine, but, if a former prime minister were involved, would you have complete flexibility to institute proceedings?
Thank you, Mr. Chair, and thank you to the witnesses for being here.
I want to pursue the same issue, but I won't be as subtle as Mr. Ménard, who rarely is.
On the setting up the Mulroney-Schreiber inquiry, I guess I was under the same misapprehension that it would have been the Director of Public Prosecutions who normally would be giving advice as to the mandate of that inquiry. I understand from your evidence that this is not the case.
Mr. Saunders, as you are from that department, who in the department would normally have given advice to the minister as to the mandate of a public inquiry of that nature?
I think it can be explained quite simply, Mr. Comartin.
First, the budget of the former Federal Prosecution Service—which was part of the Department of Justice—was transferred to our organization. In addition, we were provided in budget 2006 with $15 million in one-time transition costs to pay for accommodations, given that some of our office had to move out of shared space with the Department of Justice, and also for informatics, or information technology.
A lot of that money, as you note, has been reprofiled. In this supplementary estimate, we're asking for $2 million for this year. In a sense, we could not reasonably spend the $15 million for relocation and informatics this year. We were waiting to develop a national accommodations plan and in effect to hire a chief information officer. We wanted to spend it in a rational fashion, so we reprofiled it so we can have access to those one-time funds in future years.
The second element in budget 2006 given to us to help us create this new organization was $7.8 million, which is part of the $9 million. After you subtract employee benefits, it comes out to $7.1 million, which will allow us to hire our management staff. For example, when we were with the Department of Justice, there was a director general of human resources, who did our work and that of the rest of the department. As a new organization, we have to hire our own human resources individual, our own chief information officer, and others, whom we call the senior management.
If you look at the costs that Parliament has given to us to establish a new organization, it is composed of three elements: the money transferred, representing the budget of the former FPS; the $15 million in one-time transition costs; and the $7.8 million, including the employee benefit plans, in order to allow us to set up our management structure.
We can do a cost per case, but averages are very misleading. We do a sorting or analysis of our caseload, and we categorize them by level of complexity. We have low, moderate, high, and what we call mega-cases. A low case, for example, is a simple possession case. It doesn't take too much time and is done relatively inexpensively.
On the agent side, we have benchmarks that we have developed over the years, which tell us how much time an average case of that nature should take. If an agent takes more time than the benchmark, we contact the agent and say, “Is there a problem here? You're taking more time than normal.” If they're spending too little time, we also contact them and say, “Are you spending enough time? We want to make sure we're getting a quality product here.” So we use that on that side.
With respect to the work we do, as Mr. Dolhai pointed out, we do the more complex files. We keep those for ourselves. It's very hard to come up with an average cost of those cases, because they differ so much in the requirements they have. Some of them will have teams of four or five lawyers working full-time for a period of time. As you can well understand, that would skew any figure if you were to add that into the mix with a simple possession case, which takes a couple of hours.
And thank you very much. I apologize for not being here when you made your presentation.
I missed your assurances that the Public Prosecution Service of Canada has been delegated all the AG's authority when the AG has to authorize an actual prosecution, regardless of which law it is under. It's all been delegated to the Public Prosecution Service by law, in which case, I then have this question. Janet Hinshaw-Thomas was prosecuted. Charges were brought against her under section 117 of the Immigration and Refugee Protection Act on the basis that she had aided and abetted illegal entry into Canada. That particular section requires the specific authorization or the express authorization of the AG. If that power, that authority, has been delegated to the Public Prosecution Service, then I would like to know why the Public Prosecution Service authorized the laying of such charges.
Second, the charges have now been dropped. So I would like to know why the Public Prosecution Service decided to drop the charges and what interpretation you are giving to section 117. Is it in conformity with the assurances that had been given by then Minister of Citizenship and Immigration Elinor Caplan to the Standing Committee on Citizenship and Immigration that good Samaritan human rights activists would never be prosecuted under that, and that's why it requires the express authority of the AG?
I answered this questioned a few minutes ago, but I'll answer it again.
I mentioned that under subsection 117(3), there is a requirement for the Attorney General's consent, and that authority has been delegated to the Director of Public Prosecutions. We have a deskbook called the Federal Prosecution Service Deskbook that we have been directed by the Attorney General of Canada, pursuant to a directive under section 10 of our act, to use. That deskbook contains a chapter on delegation that sets out the levels of delegation for cases in which the Attorney General's involvement or consent is required.
In the case of subsection 117(3) of the Immigration and Refugee Protection Act, it's been delegated down to the regional director of an office.
In the case you've mentioned, our prosecutors, including the regional director, were presented with a crown brief prepared by investigators, as is the case with any case, which they were asked to consider for the purpose of consent. They looked at it with these two guiding principles in mind, and these are principles that are applied by all prosecution services in respect of any case that comes before them: Was there a reasonable prospect of conviction on the basis of the evidence they were presented with, and if so, was the public interest favouring the prosecution?
Our deskbook contains principles or considered relevant factors that must be taken into account in the application of both those principles. They applied those principles and made their decision to consent to the prosecution.
Subsequently, additional information was brought to their attention. Under the principles that guide their work, they are required to apply those principles on a continuing basis. So they examined this new information, and given this new information, they decided that there was no longer a reasonable prospect of conviction, and they introduced a stay of proceedings.
Now I'll go to the issue of the actual interpretation of subsection 117(3), I believe it is, and its conformity with the assurances the former Minister of Immigration, Elinor Caplan--at that time it was Citizenship and Immigration--made to Parliament through the Standing Committee on Citizenship and Immigration, that, in fact, that section would not capture human rights activists or good Samaritans who were doing a human rights duty in assisting people in need. First, has the Director of Public Prosecutions issued a directive interpreting that act in conformity with that?
Second--you may not be in a position to answer this second question, but I still would like it on the record--now that criminal charges have been laid against Ms. Janet Hinshaw-Thomas and have been dropped, will she have any difficulty entering Canada? Will our border services stop her because there were criminal charges laid against her at one point?
I have two questions. I think they could be put shortly and answered quickly. Again, they relate to this issue raised by Ms. Jennings and others.
In many cases I know that Parliament has wanted the Attorney General to take political responsibility for certain decisions. What you've indicated here today is that in many cases, with a view to ensuring independence in much of what happens judicially or in terms of criminal procedure, these consents and approvals have all been delegated by a statute of Parliament. Now, as a legislator I'm becoming somewhat concerned in that what we appear to have delegated--by your interpretation--is now removing the Attorney General's responsibility for many of these decisions. I'm wondering if the deskbook purports to address that in any way, or have we possibly missed this issue as legislators?
This is my second question. In the Mulroney-Schreiber relationship issue going back many years, the department at one point in time would have initiated an investigation in suspected criminality. I don't think they found any, so no charges were ever laid. Then later on that became a civil matter; there was a civil lawsuit.
My question is which branch of your department would have provided the advice to government in relation to settlement or defence of the civil suit that was brought by the former Prime Minister? Which branch of your department provides that advice, if it's not your department?
They keep very much to themselves when they conduct investigations.
You also asked who in the Department of Justice would have been involved in providing advice. There would have been civil litigators. I recall that a number of outside counsel were retained by the Department of Justice to provide advice to the government on that issue.
On your first question, about the responsibility of the Attorney General, under our legislation it's very clear that everything the office of the director does is under and on behalf of the Attorney General of Canada.
Our mandate is set out in subsection 3(3) of the legislation. The opening words are: “ The Director, under and on behalf of the Attorney General...initiates and conducts prosecutions on behalf of the Crown”. So we are accountable, or I am accountable, to the Attorney General.
The purpose of the legislation is to make it clear that the prosecution function is independent, and if the Attorney General wants to intervene in any way in a case, he must do so in a manner that is seen by the public.
Shall I report the supplementary estimates (A), 2007-2008, to the House?
Some hon. members: Agreed.
The Chair: That has been carried.
Thank you, committee.
We have an issue on some witnesses. The issue, of course, is that some of the previous witnesses who were submitted were unable to attend, one of them, of course, being the automobile manufacturers, dealing with Bill C-343. They will submit a written submission. There has been a request from the dealers association, and it would be good. Since the manufacturers were unable to attend, I would suggest that the dealers association take their place.
Is there agreement?
Some hon. members: Agreed.
The Chair: And also the National Association of Fleet Administrators.