I'd like to call the Standing Committee on Justice and Human Rights to order. Today is Wednesday, February 11, 2009, and this is meeting three.
You have before you the agenda for today. Please note that we're going to reserve approximately 30 minutes at the end of our meeting to discuss our committee work plan and other business going forward.
In accordance with the order of reference dated February 4, 2009, appearing before us today is the acting Director of Public Prosecutions, Mr. Brian J. Saunders. Mr. Saunders is the proposed appointee to the position of Director of Public Prosecutions, and he is available to answer questions you may have regarding his qualifications.
Mr. Saunders, welcome to our committee. You will have 10 minutes to introduce yourself to our committee, and then members will have an opportunity to ask questions of you.
I would ask that committee members restrict their questions to Mr. Saunders' qualifications for the position of Director of Public Prosecutions.
There is a point of order from Mr. Murphy.
Thank you, Mr. Chairman.
It is an honour for me to have been nominated for the post of Director of Public Prosecutions. I am pleased to be here today to discuss my nomination.
This is an important and challenging post that was created in December 2006 with the coming into force of the Director of Public Prosecutions Act, which is part 3 of the Federal Accountability Act. The Director of Public Prosecutions Act makes transparent the constitutional principle of prosecutorial independence.
I have been the acting director since December 2006, and over the past two years I've witnessed the dedication and professionalism of the prosecutors and employees who make up the Public Prosecution Service of Canada.
I have submitted my curriculum vitae. Let me add a few details that are not mentioned in it and elaborate on a few that are.
I was born in Brandon, Manitoba. My father was in the military at the time and, like most military families, we moved every few years. I lived in five provinces before my family finally settled down in Edmonton, Alberta where I attended high school. I obtained a BA and an LLB from the University of Alberta and then undertook two years of post-graduate studies at Cambridge University where I obtained an LLM and a diploma in legal studies.
I then returned to Edmonton where I articled with the federal Department of Justice. After being called to the Bar in 1978, I remained with the department for the next 28 years. From 1978 to 1985, I worked in the Edmonton regional office, and from 1985 to 2006 in Ottawa. In December of 2006 I joined the PPSC.
While in Edmonton, I worked as both a prosecutor and a civil litigator.
When I transferred to Ottawa in September 1985, I moved into the civil litigation section, where I focused primarily on human rights, the Charter of Rights and Freedoms, and public law cases. I did not conduct any prosecutions while with that section. However, I was from time to time involved in cases and issues that brought me into contact with the criminal law. For example, among the cases I handled were ones involving section 8 of the charter on the right to be secure against unreasonable search or seizure.
In 2000, I was promoted to the position of director general of the civil litigation section in Ottawa. The section had approximately 35 lawyers, many of whom conducted a national practice. I continued to conduct litigation while in the position. I also served on the department’s national litigation committee, which, among other matters, has the mandate of reviewing all factums, in both criminal and civil appeals, that are to be filed with the Supreme Court of Canada.
In February 2006, I was appointed Assistant Deputy Attorney General of Canada in charge of the citizenship, immigration, and public safety portfolio. I had direct authority over the Justice lawyers working in the crimes against humanity and war crimes section as well as those assigned to work in the legal service units at the RCMP, CSIS, Canada Border Services Agency, Immigration, Correctional Services, National Parole Board, and Public Safety. I also had functional responsibility over those Justice lawyers conducting immigration litigation for the government throughout Canada.
And finally, as I mentioned at the outset, on December 12, 2006, I assumed the position of Acting Director of Public Prosecutions. On the same day, most of the employees of the Federal Prosecution Service of the Department of Justice were transferred to the Public Prosecution Service of Canada. This was a significant change, as many of them had spent their entire careers in the Department of Justice. Some questioned the need for the transfer. This hesitation has long since passed.
Employees see the value in the creation of the Public Prosecution Service. They now have an organization that is focused solely on its work, and more importantly, one that makes transparent the very principle that is central to the work, which is the principle of prosecutorial independence.
Over the past two years the Public Prosecution Service has made the transition from being a part of the Department of Justice to being an independent governmental organization. We've put in place a government structure and established our own capacity in such areas as communications, corporate services, access to information and privacy, and strategic planning.
Prosecutors play a key role in our criminal justice system. The system places a heavy responsibility on their shoulders. In every case they handle, they are called upon to decide whether a person should be subject to prosecution and placed in jeopardy of being fined or imprisoned. In prosecuting a case, they must represent the public interest and the community at large and must act fairly but firmly, guided by principle in the law. The PPSC was established to help ensure that there would be no improper influences in their decision-making.
If my nomination is confirmed, I will work to ensure that the constitutional principle of prosecutorial independence is respected, that prosecutors have the support they need to do their important work, and that we are accountable both for our work and for how we handle our resources.
Thank you. I'll be pleased to answer any questions you might have.
Thank you, Mr. Chairman.
I would like to welcome Mr. Saunders, whom we have already had the pleasure of meeting.
I am quite in favour of the idea of having a relatively independent public prosecutor's office. Indeed, Quebec has had a great deal of success operating in this manner. There is, at the same time, this idea of reconciling public interest through the election mechanisms found in Parliament.
I would like some clarifications on the following issue. As you already mentioned, you are obligated to inform the minister of important matters pertaining to the public interest. One might think, for example, that the issue of organized crime is an important matter, but I would like to know what would happen if ever there were a divergence of opinion.
I will give you a fictional example. Any links to something real would be the work of an imagination that I do not have. Let's say that a former prime minister was being sued and that, on the basis of your expertise, you felt that legal proceedings of this type were in order but the did not agree. Under such circumstances, how would the arbitration mechanism work and who would make the final decision?
Thank you very much, Mr. Saunders, for coming here today.
This may be going somewhat down the same road as Mr. Comartin, but on a much more general basis. The reason I'm going to ask you this is very simple. To those in Ottawa who are in this bubble here, it may be seem to be pretty simple, but for the average person, when your job was being proposed, etc.--and this relates to some of the questions Mr. Comartin went through--the people who talked to me assumed that we were talking about a special prosecutor and the office of a special prosecutor, much like they have in the U.S. Of course, the job of the public prosecutor in Canada, your job, is not the same thing, at least from my perspective.
My question is more for people who will be watching these proceedings, so that they know exactly what your job is as it relates to their communities, because I think it filters down to federal crown prosecutors. What's your job? How does it differ?
For those good folks who watch parliamentary procedure, how does it differ from the way district attorneys investigate? We all watch CSI and those programs and we see how involved district attorneys are in investigations. Coming from the law enforcement field, I know that the crown is not generally as involved in this country, so could you describe what your job is and how it relates to the average person, the average Canadian, who would be watching this? Could you then describe how it's different from some of the things that happen south of the border, things that we're influenced by and sometimes confused by?
Let me begin by talking about the role of prosecutors in Canada. There are 11 prosecution services in Canada, and I think we all play the same role. We conduct prosecutions after an investigation has been conducted by the police. We provide pre-charge advice to the police. But in this country the principle is that the police are independent in the way they conduct their investigations. The pre-charge advice that prosecution services give the police is necessary, because the law is complicated and the police don't want to spend a lot of time investigating something if they've already run afoul of the law in gathering the evidence. But the point is, it is the police who decide who to investigate, how to investigate, and what charges to lay.
The role of the prosecutor comes to the fore after the charges have been laid. At this point, the prosecution service has a role in deciding whether the charges should proceed. This is seen as an important balance within the system. We allow the police to investigate, and they can lay charges if they have reasonable grounds to believe there has been a violation of the law. The prosecutor then comes in and conducts a detached and objective examination of the evidence. We look at the competence, the credibility, of the witnesses. We look to see whether there are any possible charter violations. We determine whether a prosecution should proceed, and this is seen as an important check in the system. The prosecutor bears a heavy responsibility. Police sometimes get accused of tunnel vision, and we tell our prosecutors to keep an open mind and evaluate all the evidence objectively.
In the United States, what we see on TV, and what we sometimes see associated with special prosecutors, is that the prosecutors have more of a role in the conduct of the investigation. This certainly wasn't the intent of the Director of Public Prosecutions Act, nor does it apply in other jurisdictions in Canada. British Columbia, in its statute, has a special prosecutor's provision that allows the Attorney General to appoint an agent, a private sector lawyer, to look into a case and to decide whether a prosecution should proceed. It is not an American-type example, in which the special prosecutor takes charge of the investigation as well.
I'll now move to what our role is to Canadians. Before we were established, there was within the Department of Justice a branch called the federal prosecution service. We took over their role. Our role varies from province to province and between territories. In the northern territories, we conduct all prosecutions of the Criminal Code and all federal laws. In the provinces, we conduct some Criminal Code prosecutions such as terrorism. We have concurrent jurisdictions with the provinces. We do some organized crime prosecutions, typically those linked with drugs. Our main line of business, if I can call it that, is the prosecution of offences under the Controlled Drug and Substances Act, and this would be familiar to most Canadians. Being Canada, we always have exceptions. In New Brunswick and Quebec, we conduct prosecutions only for those investigations carried out by the RCMP. Elsewhere in Canada, we conduct virtually all drug prosecutions.
We also conduct prosecutions of violations of all other federal laws. For example, if there's a charge from the Migratory Birds Convention Act, like the charge against Syncrude you might have read about in the papers a few days ago, it would be our lawyers who prosecute it. If there's a prosecution under the Fisheries Act or the Canadian Environmental Protection Act, it would be our lawyers. There are approximately 50 federal laws under which we conduct prosecutions. I forgot to mention the most prominent one, the Income Tax Act.
A good starting point is what we had before and what we have now. Before 2006 at the federal level we had what Mr. Stephen Owen, in a paper he prepared on prosecutions in 1990, described as a traditional model: the prosecution services are located within the department that is presided over by the Minister of Justice and Attorney General. There is a reporting hierarchy leading from the prosecutors to an assistant deputy attorney general in charge of prosecutions to the minister. Typically, there are policy guidelines.
With the establishment of the Public Prosecution Service of Canada, we have been moved out of the Department of Justice into a new organization. The prosecutors are appointed and receive delegations from the director, and only the director reports to the Attorney General. Then the director, to safeguard his independence, is insulated from any pressure from the Attorney General by, in part, this process here. In the statute there are a number of things.
Once he's appointed, it's a seven-year term. The salary can't be changed; he can only be removed from office by a resolution that is supported by the House of Commons. There can't be any pressure placed on the incumbent by virtue of those protections found in the law.
Thank you, Mr. Saunders, for coming here. I was on the accountability committee when this was all discussed in the past. The impression at that time, and this time, is that the Director of Public Prosecutions is independent. I think that's what the meat of the accountability provisions in respect of this was.
When I hear you say, and we read the law, that you're accountable to the Attorney General and the Minister of Justice, it leads me to believe there is a bit of debate that's going to be worked out over your first term as DPP between ministerial responsibility on one hand and the preservation of prosecutorial discretion on the other.
So far you've given evidence that you report to the Attorney General in cases of general interest, occasionally, perhaps frequently in some cases. There's no really clear idea here, to me, to the public, that you are anything but the de facto Attorney General unless you were to tell me in your answer that you are frequently communicating with , that you frequently tell him there are cases we find of interest, and that he is monitoring and doing his job as Attorney General. Either you are accountable to him and inform him fully on what's going on with respect to prosecutions in this country, or you're the guy who makes all the decisions; and as they say, heavy is the head that wears the crown. You would be the person all of us would be looking to, for instance, if a prosecution of a public office-holder didn't or did take place, depending on which side of the fence politics likes.
Could you flesh out how much reporting you're giving to the , whether he's ever asked specifically to meet with you on a case, for instance?
Thank you, Mr. Chairman. I will continue on the same topic.
Good afternoon, Mr. Saunders. I am pleased to see you testifying before us. For about the past eight months or so, we have been waiting for your testimony. Meanwhile, a few incidents have occurred.
I would like to discuss the following issue, which I will try to summarize briefly. I come from the province of Quebec. As you said, the way that the Criminal Code is administered is sometimes different. For example, the police conducts investigations in Quebec, but it is the attorney assigned to the file who authorizes the prosecution. The procedure is a bit different in Ontario.
As far as drugs are concerned, the federal government has delegated power to the provinces. In some instances, private attorneys conduct drug prosecutions. In certain provinces, this does not happen. It is the provincial attorneys who do this.
I would like to ask a very specific question and I would ask that you answer it only if you can. Your attorneys are supposed to accompany ours or those individuals in charge of administering the Criminal Code in the case of economic crimes. For example, you know what happened in the case of Vincent Lacroix. In Quebec, this was a serious economic crime.
How do your lawyers intervene and provide advice? The crime may occur in several provinces. Are you able to explain what your role is? I am under the impression that the criminal prosecution service did not intervene in this file.
Very well, I didn't understand that.
I would like to raise one final issue, if I still have some time remaining, and I would like you to answer me quickly.
Mr. Lemay raised a matter of interest to me. You seem to be the last intervener at the Supreme Court level. For example, a case is prepared in a province, and this could be British Columbia, Quebec or somewhere else, and it goes through the various levels such as the Superior Court or the Supreme Court, depending on what these courts are called in the various provinces, the Court of Appeal and, finally, the Supreme Court. You told my colleague that this was in fact when you stepped in, namely, at the Supreme Court, and that you decide to represent the interests of the provincial crown with respect to the interests of the federal crown.
Thank you, Mr. Chairman.
Thank you, Mr. Saunders, for coming today. I think you were ready to appear before this committee at some previous meeting, but the meeting ended in a bizarre way and you weren't able to appear, so we're glad to see you here today.
Perhaps, Mr. Chairman, I could follow up on the questions my colleague Brian Murphy was getting at, and perhaps it wasn't clear.
Mr. Saunders, I think what Brian was asking you was not how many times your office would have sent a section 13 briefing to the minister, or not how many times you would have met face to face with him or his staff to discuss those briefings, presumably, or the notes you were sending. How many times would the minister or his staff, unprompted by you--in other words, not as a result of a notice or a memo you've sent--have asked you for information on a particular prosecution?
The work continued after we were formed as it had done before. Our prosecutors continued to prosecute cases in an efficient and professional manner after the establishment of our organization, as they had done before when they were members of the Public Prosecution Service. From our perspective, what has changed—and this, as I mentioned in my opening, is something I can see from having met with many of the prosecutors in visits to their offices—is a sense that they have an organization, for example in Quebec and Nova Scotia, that is focused on the prosecution arm of the criminal justice system; that in effect values the contribution they make on a daily basis to the criminal justice system; and that, as I mentioned as well, makes more transparent the principle of independence.
As for individual successes, that would require talking about some of the contributions our staff have made to the criminal justice system across Canada, and we've set these out a bit in our annual report. If there's any contribution I'd like to mention, I guess it is the contribution.... I don't want to offend any members who aren't mentioned by this, but I've always been impressed by the dedication of those prosecutors who work in the northern territories. For example, in Nunavut they service 25 communities scattered over two million square kilometres, and they do so by going on circuits. They can go away from the family for a week or two. Sometimes they are snowed in because of bad weather conditions. It's not an easy life; it's a very hard life for them. And they're dealing with a different culture. We try to give them training to deal with that. They usually try to meet with the local justice community to explain the system to them and obtain the local community's views on what is happening.
I would like to signal the contribution these prosecutors have made. It's a tremendous contribution they make to bringing justice to the northern part of Canada, where unfortunately the crime rate is a bit higher than elsewhere. They have to work under very difficult conditions.
I guess in my CV I put out some of it, but I mentioned in it, and at the outset, that I went to Cambridge. I obtained a master's in law and also did a thesis to get a second degree, a diploma in English studies.
After that, in joining Justice, I guess I was in Alberta during the time the economy was moving much like it is now. It was considered among many friends not to be the place to go to earn money, but in terms of getting a career, over the years I've been involved in some of the more interesting cases that have come forth. If you want me to mention a few cases, on the human rights side there were two cases involving women's rights that I'm particularly proud of. One was whether women should be involved in combat roles in the military, and the other was whether or not women should be able to serve as guards in male penitentiaries. The latter went to the Supreme Court of Canada. I think I mentioned it in my CV, where section 8 and section 15, equality rights, were involved.
I've litigated for 28 years, and I've done everything from environmental law to human rights, the charter. There isn't very much in the federal sphere that I have not been involved in litigating over the years. I've tried as well to keep a hand on the academic side. I publish an annual book on Federal Court rules, which I'm beginning to wonder if I might have to abandon should I receive this position. I'm getting a bit distant from the Federal Court rules. I was thinking of doing another book on the crown liability act, but I think I'll abandon that and redirect my energy to something more in the criminal sphere.
I'll deal with the second part of your question first.
We have very good relations with the provincial prosecution services. There is a committee, which the director of the Public Prosecutions Service co-chairs, called the Federal-Provincial-Territorial Heads of Prosecution Committee. We meet twice a year. It has a very collegial atmosphere, is very results-oriented, and tries to address our common problems. We enter into arrangements with provincial prosecution services that we refer to as “major-minors”, whereby if someone is accused of an offence that falls within our jurisdiction and an offence that falls within provincial jurisdiction, we sort out which prosecution service is to conduct the prosecution.
Typically, if the more serious offence is a federal prosecution, we will conduct the federal prosecution and the provincial prosecution. Conversely, if the provincial prosecution or provincial offence is more serious, they will conduct the prosecution of both offences, federal and provincial.
That said, we also enter into agreements with the provinces at times to conduct joint prosecutions. I mentioned the Norbourg case in Quebec. Our prosecution office in Manitoba recently conducted a major prosecution of Hells Angels with the Manitoba prosecution service. Our prosecutors led the prosecution and were assisted by some counsel. This is to address the very problem you have indicated; that is, cases are becoming longer and more resource-intensive. We estimate that we do about 1.5% to 2% of our cases in-house. These take up about 21% to 22% of the time of our counsel, to give you some indication of the demands placed on our service by these large cases.
The first part of your question dealt with how we plan for these things. We have offices in most provinces, and we encourage the heads of our regional offices, whom we call chief federal prosecutors, to meet with their counterparts at the provincial level, to meet with the municipal and provincial police forces—usually, except in Quebec and Ontario, it's the RCMP who are the contract police—so that we can do some planning as to demands we can anticipate being placed on our service in the future by changes in priorities.
That said, it can be difficult, because there are times when there could be a change of focus by a municipal police force and we don't receive additional resources. If, for example, the City of Vancouver--or Calgary or Montreal--decides to crack down on guns and gangs, typically gangs are involved in the sale of drugs, so they might crack down on that and there might be more prosecutions arising. Sometimes we're not as quick in getting the resources. It's their decision, provincially and municipally, to put more resources there, but they don't give any resources to us to conduct the prosecutions. That's something we have to adjust to.
We have a planning cycle wherein we attempt to take into account the future pressures we expect as an organization, taking into account past experience and the information our chief federal prosecutors can glean on a regional basis about what they'll be facing in the forthcoming year.
The reason is, I guess, that it is an extraordinary situation. We're talking in subsection 15(3) about a case where the Attorney General decides to assume conduct of a prosecution—in other words, take over a prosecution that is being held by the Public Prosecution Service—and not only that, wishes to delay public notice of the fact that he or she has taken over that prosecution. We looked at our priorities and thought this event is very unlikely to occur. As a result, we didn't think it was a priority.
We have decided to rewrite The Federal Prosecution Service Deskbook to reflect the fact that we are now a separate organization, and this is one of the things that will be looked at. We had hoped to start the rewriting last year, but we were unable to do so. We have a competition ongoing to retain a senior lawyer whose task will be to address all of the policies in the deskbook that touch upon our practice. It will also be that person's responsibility to deal with items in the act that we have to deal with.
For example, we've been talking about when section 13 notices should be given. We know generally when they should be given, and I think there's an understanding of what a case of general importance is, but we want to devise guidelines in that area as well, so that our people who work in the regions will have some indication of what is meant by “a case of general importance” from our perspective, so that there can be no misunderstanding. But that is a project we have not yet launched.
From my years of experience, that's right.
Mr. Saunders, you did mention one thing that I found interesting, and it's specific to New Brunswick. Whether it's an RCMP or municipal force bringing a charge, that determines in some cases--it could be perhaps an identical facts scenario--whether your group or a provincial body prosecutes the case. It's kind of an interesting scenario, and I'm wondering if you can give me a bit of the history on it.
I'm thinking of areas near where I live, let's say Kings County. We have some municipal forces and we have an RCMP force as well. Criminals know no boundaries, and there is certainly an overlap there of prosecutorial responsibility for agents who are on the ground there. I'm wondering how that plays out. We do have RCMP policing in New Brunswick as well as several municipal forces. Why that unique situation, and how does it work in practice?