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Standing Committee on Justice and Human Rights


NUMBER 005 
l
1st SESSION 
l
42nd PARLIAMENT 

EVIDENCE

Thursday, March 10, 2016

[Recorded by Electronic Apparatus]

  (0850)  

[English]

     Ladies and gentlemen, I'd like to welcome you to this meeting of the Standing Committee on Justice and Human Rights. The purpose of this part of the meeting is to review the supplementary estimates (C) 2015-16.
    We are very pleased to welcome some witnesses from the Department of Justice. I'd like to welcome William Pentney, the deputy minister of justice and deputy attorney general of Canada; Monsieur Pierre Legault, the associate deputy minister; Donald K. Piragoff, the senior assistant deputy minister of the public sector; and Marie-Josée Thivierge, the assistant deputy minister and chief financial officer.
    I would like to turn it over to you. Welcome to our committee.
    Mr. Chairman and committee members, thank you for giving us the opportunity to appear before you this morning. As you know, the minister will be appearing in a couple of weeks to speak about her priorities and the department's main estimates. I won't speak to any of that, with your permission. Since this is our first appearance before the new committee, and we will be back before you many times, I think, on important and complex matters, with your permission what I'd like to do, in addition to speaking briefly to the items in supplementary estimates (C), is to talk a little bit about who we are, what we do, and how we serve the Government of Canada and Canadians.
    The Department of Justice has a mandate to support the dual roles of the Minister of Justice and the Attorney General of Canada. We are a department with a long and proud history. The first minister of justice was Sir John A. Macdonald. The department was formally created in 1868, so we've been around for a long time. Since lawyers and the fear of lawyers drives so much public policy, we're involved in most of what government does one way or the other. We're a legal department, a program and policy department, and we support government activities from coast to coast to coast.
    Under Canada's federal system, the administration of justice is an area of shared responsibility between the federal government and the provinces and territories. In addition to all of the work we do with the federal government—I'll speak a little bit more about that—we have a very close and ongoing relationship with the provinces and territories in respect of program and policy and delivery and in respect of law reform, to try to ensure that Canada's justice system provides the security, the fairness, and the access to justice that meets the expectations of Canadians in terms of the very high standards they rightly expect our justice system to meet.
    We support the Minister of Justice in responsibilities for 52 statutes in areas of federal law, with a particular focus on ensuring a bilingual and bijural national legal framework. Our principal areas of focus, and what you'll hear most from us in the coming years, are in criminal justice, including justice for victims of crime and youth criminal justice. We're also responsible for family justice, especially the Divorce Act; access to justice; aboriginal justice; matters of public law; constitutional, administrative, and international law; and private international law.
    We also support the Attorney General as the chief law officer of the crown, both in terms of the ongoing operations of government and the development of new policies, programs, and services. We have the joy and privilege of working with ministers and departments throughout government through some of their best and worst days—days when they are delivering things that are important for Canadians and are difficult and complex, and days when they are facing ongoing legal challenges, or new legal crises that emerge—and helping them work through all of that.
    We provide legal advice to the government and federal government departments and agencies. We represent the crown in civil litigation before administrative tribunals. We also draft all government laws and regulations. Today we're responsible for approximately 45,000 pieces of litigation which are going on from coast to coast to coast. Those involve individual car accidents involving RCMP members, constitutional issues of the highest importance, individual tax filers who are challenging, employment insurance challenges, and things like that. We represent the government in all civil litigation and administrative matters. We're responsible for hiring agents. I can come back and talk more about the hiring of agents. The truth is that the justice department represents the government in the vast majority of litigation that's now done.
    We're comprised of our headquarters and legal service units in the national capital and six regional offices. We have a presence in 15 cities across Canada. Canadians get to sue the Government of Canada where they live. Our regional offices mainly handle litigation. Canadians get to sue the federal government in tribunals and in courts, provincial superior courts and in the Federal Court. We appear in virtually all courts and federal tribunals across the country.
    As of now, we have about 4,400 employees and a budget of approximately $1 billion, give or take. That budget is divided into a few main areas. We have a program budget of about $358 million. That supports programs in the areas of legal aid, youth justice, supporting families, victims of crime, aboriginal justice and aboriginal court workers, access to justice dans les deux langues officielles, and the Contraventions Act.
     We have an operating budget of about $570 million, which pays mainly for employees. That budget is divided into two parts. Some of it comes as a direct appropriation from Parliament to the department—that's about $274 million—but we're fairly unique as a federal department in that we bill clients for legal work we do for them, so we have about $296 million in what's called net vote authority.
    Our counsel and other employees who provide legal services are partly paid for by money that comes directly to us, and they are partly paid for by money that we get from clients for legal work. That's all approved by Treasury Board and governed by Treasury Board rules.
    In these supplementary estimates we requested $8.07 million in voted and statutory authorities. That's divided into a few significant pots. The first is about $2.4 million for the Canadian Victims Bill of Rights, to ensure that victims have access to the resources needed to exercise the rights that were provided to them for information, protection, participation, and seeking restitution. In the last Parliament, a bill was passed creating a new consolidation of victims' rights at the federal level. This money is to allow us to help implement that law.
    There is $2.014 million to combat online crime by supporting investigative powers for the 21st century and ratification of the Council of Europe Convention on Cybercrime. This allows Canada to enhance its ability to fight cybercrime at home and to co-operate internationally, because cybercrime is a growing problem that does not respect international borders.
    Also, $3.6 million of the supplementary estimates (C) is for division 9 of the Immigration and Refugee Protection Act, which is mainly for security certificate and related proceedings, especially involving security dimensions of immigration.
    Finally, we're transferring a small amount of money to Status of Women to help support a national aboriginal circle against family violence in connection with the ongoing tragedy of the violence that's inflicted on aboriginal women and girls.
    The Department of Justice has a long tradition of excellence, one we work very hard to maintain. We've been successful in delivering on government priorities while supporting client departments to deliver on their own priorities. As I said, we are in many ways not just a department that supports the minister, but we are department like some others, a central agency that supports all of government, because law and lawyers and the fear of lawyers drives so much public policy.
    We're continually working to innovate and drive changes in the way we practise law so that we're keeping up with trends in the world and in Canada. We're trying to provide leadership on how we can be most efficient, and we're continuing to drive improvement and innovation in how we address the challenges we face today and the challenges we see coming in the future.
     I'd now like to address some recent media reports alleging that the department's lawyers and others were overpaid. I'd like to take a moment to put on the record that this is simply not true. I can explain in more detail if the committee would like and I'd be pleased to come back to the committee to provide even more information. The reports indicated that the department, through some payroll error, had received $50 million in pay that wasn't owed.
    What happened was this: We have an official pay system and we have another system that allows us...because we bill clients for almost $300 million in work, we have to keep track of how much legal work we do. We asked our people who were doing that to keep all of their time in that system. Unfortunately, we didn't connect the two systems. If they were entering leave in one system, it didn't automatically flow into the other. We also didn't apply the same rules to the two systems.
    Starting in 2007, people dutifully started to enter their time in the timekeeping system, just as many of you enter your time in a personal calendar somewhere. I bet if you went back three or four years, you could find a day in your calendar that said you were away, and you'd say that no, you were supposed to be away but you actually did some work on that day; you were called in to do something. That's fundamentally a part of what explains what happened here.
    The iCase system, the timekeeping system, was completed. We asked people to fill in 37.5 hours of their time. Some people who only work three days a week put in two days and said they were away on leave. They were getting paid three days a week. They're getting leave three days a week. That discrepancy is not an overpayment. Some of them entered leave in iCase and they said, “I'm going to be away on leave”, and it shouldn't have been entered into PeopleSoft because in fact they came into work. Some people entered leave in iCase and they were loaned to us from other departments and they entered it in PeopleSoft.

  (0855)  

    The original estimate, when we discovered it, showed that there could have been a significant number of differences between the two systems. I wasn't prepared to have the department accused of having defrauded Canadians of $50 million, so we launched a fairly significant exercise to try to reconcile the two systems.
    Very quickly into that, about half of those discrepancies went away. They were easily explained by the kinds of examples I've given. Since then we've been working through the other changes so that very quickly it became clear that most of those discrepancies, about half of them, had no implications whatsoever. Some others did and we've worked through those now so that by a few months into this exercise, it was clear that some people had to go back and correct their leave, and sick leave or vacation leave had to be adjusted. For existing employees that's been done.
    Where it hasn't been done is where employees are away on long-term sick leave or disability leave. I'm not going to hound employees who are away on long-term leave. However, as those employees come back from leave, we ask them to do the reconciliation, and that process carries on.
    We are now on an operating budget of about $500 million. After we'd done the initial review, it became clear that we thought for existing employees we were talking about a discrepancy of around $2 million or $3 million. That number continues to come down as employees come back and they tidy up their records.
    Why didn't they tidy up their iCase records? When you came into work, did you feel it important to go back and change your calendar? No, you just came in and you did whatever it is you needed to do and the calendar wasn't your official leave recording system, so why fix it?
    Some of this was employees believing that the two systems had been connected at the back end and that by entering leave in one place, they thought it would be entered in the other place.
    For some, the changes are simply a reflection that they're for different purposes, but I do want to affirm there was never a case of overpayment and that we have been very diligent. I advised the comptroller general. As soon as this came to my attention, I advised the external department audit committee. We've kept both up to date as we've unfolded this. We have worked diligently to try to ensure that the employees can hold their heads high and understand that the record-keeping problems that were found have been fixed and that nobody got anything they weren't deserving.
    I wanted to put that on the record and I'd be happy to provide more information if you'd like.
    With that, I will close my remarks and say we look forward as a department to supporting the minister and working with you, because there are important and pressing and complex issues that we'll be working through together over the coming years.
    We welcome your questions, Mr. Chairman.
    Thank you.

  (0900)  

    Let me start by thanking you, Mr. Pentney, for your remarks. I very much appreciate your explanation of what occurred with the two different systems in the department.
    Given that today there's a limited amount of time and we're going to be asking about the supplementaries, we probably would like to have you back at a future date to have a more general conversation, but I very much appreciated that explanation and I'm glad you were able to get that on the record.
    What we've agreed to, at least at the outset, is that we're just going to take six minutes from each party, but in the event that people have questions after, I'll be very flexible to just go back and ask if people still have more time that they want to take.
    We're going to start with the Conservatives. Mr. Nicholson.
    Thank you very much.
    I'd like to welcome the members of the Department of Justice. Thank you for all that you do.
    As you indicated, Mr. Pentney, there's a long and proud history at the Department of Justice and you are there to support the Government of Canada on its best and worst days. That is a considerable challenge for any department, but I know it's most appreciated.
    One of the issues, and you may or may not have the information on this, but I'll just flag it with you.... By the way thank you for your explanation, and I agree with the chair and I think it was important to have that on the record and I think it's appreciated by all the members of the committee. Something that has always been of particular interest to me, which you mentioned in your opening remarks with respect to support for victims and victims of crime, is the child advocacy centres.
    My colleague Chris Bittle will know about the child advocacy centre in St. Catharines; it was one of the pioneers, one of the very first ones in Canada.
    For those who are unfamiliar with child advocacy centres, they are a one-stop centre to assist children who have been abused and have been the victims of crime. Law enforcement, medical attention, all are brought to the same location to assist children. The Government of Canada has been in the business for a number of years of contributing to that.
    Does that continue to be a part of the estimates that you have here, or is it something that might be seen in the main estimates?
    Again, I was looking over some of the documentation. It's a little difficult to locate, but I want at least to ask you about that and at least flag it for you. Any information you have on that I think would be appreciated by the committee.
     Thank you for the question.
    The easy answer is that it will be reflected in the main estimates. The victims fund has been enhanced over time and was made permanent. What's asked for here was some additional money that was associated in particular with the implementation of the Canadian Victims Bill of Rights.
     The child advocacy centres continue to be funded by the department. As Mr. Nicholson would know, there was a significant expansion of those. They are a good idea that has worked and has spread across the country. Funding for those will be reflected in the main estimates, which would be a topic for the minister when she appears.
    Thank you very much for that.
    You touched on that briefly with respect to online crime in co-operation with our international partners. The notes that were given to us said there was a $11.4-million request and the Department of Justice would receive $1.7 million. Perhaps you could also look into that. That's a hugely important area. As you pointed out, crime knows no boundaries. There has been greater international co-operation on all different types of crime. It is one of the success stories, I believe, that countries throughout the world can take some credit for.
    Does the $11 million requested mean there is only going to be $1.7 million, or are there other government departments that are involved with getting that?

  (0905)  

    Mr. Chairman, I'll ask Mr. Piragoff to speak to that. He is one of the reasons we have a Council of Europe convention.
    Out of the $11 million, $2 million will be allocated to the Department of Justice. The other $9 million is going to other departments, such as the RCMP, to actually do policing, for example.
    The money that's going to the Department of Justice will be used for training purposes, also for increased mutual legal assistance requests. As members may recall, this money was tied to a piece of legislation that was enacted by Parliament a couple of years ago. It came into force in 2015, the Protecting Canadians from Online Crime Act. That act included a number of measures, the most prominent being the creation of a new offence of cyber-bullying. It also had a number of other provisions giving police new tools to basically acquire electronic data off the Internet to fight things such as child pornography, cyber fraud, and anti-terrorist propaganda on the Internet. The money will be used basically to protect Canadians regarding their online activities on the Internet.
    Thank you very much.
    I think there's a bit of time. My colleague Michael Cooper has a question.
    Thank you to the witnesses.
    I was wondering if you might be able to comment on the area of the Canadian Victims Bill of Rights. In particular, what steps have been taken and are being taken to ensure that victims have the ability to access information that they're entitled to pursuant to that act?
    Thank you for the question.
    The first thing that should be said is that over time, Parliament had adopted a number of measures to enhance the capacity of victims to know about what was happening in regard to their case, and to have some rights to participate, but that was spread through the Criminal Code and some other statutes. One of the things that the Canadian Victims Bill of Rights did was to consolidate that. It also, if you like, underlined the importance of, for example, information sharing, which is what the question has focused on.
    We are in the early stages of implementing the Canadian Victims Bill of Rights. The truth is that most of that implementation will roll out through provincial police forces and prosecution services and in provincial courts, which is where the vast majority of criminal matters are handled. There has been extensive training and information sharing with all of the jurisdictions to ensure that they're aware of what is in the Victims Bill of Rights, and we have an ongoing relationship with the provinces and territories to be able to continue to support them as questions arise around it.
    I would say that, subject to comments from my colleagues, it's early for us to be able to assess the impact right now, because it is simply in the early days of rolling out. We do know that provinces and territories, through their prosecution services in particular, are giving effect to it, and it applies in respect of federal prosecutions as well. The way the division of workload works here, the vast majority of criminal matters are handled through provinces and territories. It is early days but we're confident that the measures are being implemented.
    The last thing I would say is that there is a victims ombudsman. There are victims ombudsman types of offices in many provinces and territories, and there's a federal victims ombudsman. So there are outlets for individuals who don't feel that their rights have been respected, and we'll look to those ombudsmen, not just the federal one. At some point we'll hear, no doubt, from the federal victims ombudsman. It's an important and powerful office. That office and provincial offices do give victims who feel that their rights haven't been respected an outlet to raise concerns. We'll be monitoring those very carefully as well.
     Thank you very much.
    Mr. Fraser.

[Translation]

    I would like to thank all the witnesses for being here today and for their presentations.

  (0910)  

[English]

    My first question is in relation to a study that was completed by the justice committee and tabled about a year ago, in May 2015, regarding fetal alcohol spectrum disorder. I have practised law in the criminal field and have had clients who have fetal alcohol syndrome. I know how that impacts on their abilities. I know that those circumstances are taken into account often on sentencing. In that justice committee report, it indicated that the criminal justice system was ill-equipped to identify and respond to people suffering from FASD.
    I'm wondering if there's any money allocated in the supplementary estimates (C) to address this important issue.
    It's a very important issue and it's a subset of a much broader set of issues. The criminal justice system, from policing to prosecutions to courts, has become, if you like, the catcher's mitt for many other issues in society that are not being dealt with, many of them involving mental health, addictions, other things with which the justice system is, as with fetal alcohol spectrum disorder, very ill-equipped.
    You'll hear from police and you'll hear from others over the course of your mandate about the extent to which much of their time is taken up trying to deal with issues for which the criminal justice system.... It's not in that sense a legal problem that lawyers, judges, or police are equipped or enabled to deal with.
    There is no particular money in these supplementary estimates that address this issue. There is ongoing work. This has been an ongoing topic of discussion with the provinces and territories. For example, Yukon, Saskatchewan, and other jurisdictions have been real leaders in trying to work through the issues associated with what happens when someone with FASD comes into contact with the justice system, as to what is the best response and how do we prevent them from coming into contact with the justice system.
    That work demonstrates what an intractable problem this is. It is not something where a pill or a treatment is easy to identify. It represents a range of issues. A part of what the justice system asks of people is to show up to court on time and then follow the rules that are set if they're released. All of those things cause a collision with the system as it's structured now.
    There is ongoing FPT work through some of our programming. Don Piragoff can speak more about it if you would like.
    We are trying to help work through some of those issues, and find more restorative and alternative ways of addressing them, but this is an area like others where the health system and the difficulties associated with all of the choices that are made in the health system are reflected in an abundance of cases and difficulties that now are reflected in the criminal justice system. This is one. Addictions, mental health issues, and other kinds of issues are not ones that lawyers, judges, or police officers were ever or are ever going to be equipped to fix.
    I wish to add that out of our regular budget, the main estimates, we do allocate some of our regular funding to research projects. For example, we have a funding project in Yukon where we're doing a prevalence study to determine the actual extent of persons in custody who may be suffering from FASD in order to get a better snapshot of the environment that we're dealing with in Yukon.
    I want to turn to leave reconciliation and the Department of Justice. I appreciate your raising that today and the explanation. I think that's very helpful.
    On that issue though, one of the criticisms, as I understand it, was that a discrepancy of this size should have been reported to Parliament. Do you have an opinion on that?
     First, I'm an accounting officer under the Federal Accountability Act. I take very seriously my obligations to this committee and to Parliament to be accountable for the financial management of the department and management issues and to be transparent and open about that. If there had been a $50-million problem, Parliament would have heard about it. We're operating a $1-billion budget, give or take; about $570 million of that is operating, and about 80% of that at least is salaries.
    When it became a $2-million problem heading toward a $1-million problem, heading toward a $500,000 problem, it was viewed as not material. Let me be clear. The comptroller general says that sets the rules in terms of materiality. What's material in reporting to Parliament is a completely different question of whether or not people who have leave discrepancies that really need to be fixed should fix them. It was always our intention, and continues to be our intention, to ensure that as much of that as possible will be done.
    At that stage, it was not viewed as an important matter to bring to Parliament. The unfortunate part is that what's been reported is an initial estimate based on an initial set of discrepancies that we knew didn't at all represent the truth. Through extensive work by lots of people throughout the department, to some grief I might say, I show up and say to the employees who do this that they're going to go back to 2007 and look through their old calendars and their old files and their old records and try to figure out all this. They don't thank us very much, and say that's a wonderful bit of news. They go through all that effort. They reconcile what's required one way or the other, and it comes down to less than $2 million.
     Perhaps I should have brought more information to Parliament at the time, but when we got to filing the report officially, the advice that we had and our judgment was it had become such a small amount that we should note there had been an issue, but it wasn't necessary to go into the full explanation.
    In some ways now, I wonder whether I should have had the full explanation so it was on the record and wasn't susceptible to being reported. As I say, the moment it came to my attention, I wasn't willing to take the chance that Justice employees would be accused of having somehow defrauded Canadians of $45 million of pay. That's why we did the exercise, notwithstanding the exercise, that seems to have been the impression that was left. There was a notation on our financial records, admittedly an opaque notation, that indicated it. We had worked with the comptroller general throughout this to make sure that we were complying with the rules as the system understands it.
    Today we have a certain number of unfilled positions, and therefore, we will not likely spend all the salary dollars that were appropriated to us. From year to year in a $570-million budget, there will always be some slippage in how much of our salary dollars we're spending. We're allowed to carry forward some of that money. When we got to an amount of $2 million or less, it's really in that zone that I have people on maternity leave or hiring replacements. There will be a two-month gap. I won't spend all that salary dollar. We'll carry it forward to next year.
    I wouldn't want to give you that figure today, because it's a very hard thing to capture on a day-to-day basis, but at any one time, there's a certain amount of flexibility on how we're spending our money. But I would assure you that had there been a significant amount, I would have been reporting it.

  (0915)  

[Translation]

    Thank you very much.
    We only have eight minutes left. I will turn things over to Mr. Rankin of the NDP.

[English]

    Thank you, Chair. I would like to welcome the witnesses here today. As my colleague Mr. Nicholson did, I'd like to join him in saluting the Department of Justice for its proud history. As Canadians, we owe you a debt of gratitude.
    There's so much to do in so little time. I want to build on one of the questions Mr. Nicholson asked about in the context of the Protecting Canadians from Online Crime Act. There's a specific reference in the supplementary estimates to the $1.7 million that the Department of Justice is receiving for this initiative. It says, “This funding will support the purchase of specialized equipment enabling interception of communications (pursuant to a warrant or judicial order)...”.
     What is this equipment? Who will use it and against whom?
    That's a good question.
    That money is allocated to the RCMP, not the Department of Justice.
    Mr. Nicholson asked what the $11 million is being used for. I said that $2 million is going to the Department of Justice, but another $9 million is going to other departments, including, for example, the RCMP and Public Safety. They are the ones who, of course, are involved in operational issues such as interception.
    Part of the whole issue in terms of policing the Internet is that you need to have the tools. You need to have the legal and technical tools. The Protecting Canadians from Online Crime Act which, as I mentioned, Parliament enacted in 2015, gave police the legal tools to be able to acquire electronic evidence on the Internet.
    The other part of the funding goes to various agencies to give them the physical electronic tools to actually intercept communications on the Internet and to trace the communications of child pornographers or fraud artists to see who they are sending the communications to and who is sending the communication, in order to trace and identify the perpetrators of these crimes. That's what the money is going for.

  (0920)  

    I understand that. That $1.7 million in funding that comes to the justice department is not for purchasing specialized equipment. That's in the context of RCMP or others.
    That's right.
    That's okay. I understand.
    The next question is about the office of the commissioner for federal judicial affairs. From 2014 to 2015, the estimates show an increase from $517 million up to $555.2 million. I'm wondering if you could explain why this increase occurred.
    The Minister of Justice is responsible for a portfolio of entities. The commissioner for federal judicial affairs is appointed by statute as a separate deputy head, and I am loath to speak....
    Again, for the committee's knowledge, you will hear from the director of public prosecutions, the commissioner for federal judicial affairs, the registrar of the Supreme Court of Canada, the chief administrator of the courts administration service, the Human Rights Commission, and others. They will come and appear before you to answer those questions.
     I'm honestly not trying to be evasive, but it's neither appropriate nor wise for me to answer questions on behalf of others.
    Just to head you off on this, then, I was going to ask questions about the administrative tribunals support service. Is that another area where you are not able to answer?
    Yes, and in future, if the committee wants to hear from others, we're happy to facilitate, or the clerk can help facilitate the invitations that are appropriate.
     Mr. Nicholson will recall previous appearances where very fair questions were asked, but it's just not for me as deputy head of the department to answer them, unfortunately.
    Then perhaps I could ask another question that may be beyond your mandate. It didn't come up in the context of your general opening remarks, but you did talk about the general theme of access to justice, of course.
     I'm hearing from many colleagues at the provincial level that one of the main difficulties in or barriers to access to justice is the decrease in legal aid funding. I wonder if you're able to speak at all to that and to your role as a department in the social transfer to the provinces.
    Thank you for the question.
    Yes, we can speak to it, and the minister will speak more to it, because it's not reflected in the supplementary estimates but will be reflected in the main estimates.
    The federal government supports especially criminal legal aid through transfers to provinces. Those transfers have not decreased for many years; it's also true that they haven't increased for many years. Those transfers are a kind of core transfer for criminal legal aid, an additional transfer in respect of some public safety and anti-terrorism matters involving legal aid, and an additional transfer in respect of immigration and refugee matters where legal aid is required. There's about $108 million, or $112 million, I guess, in fairness, that's transferred to provinces and territories in respect of core criminal legal aid.
    Civil legal aid, especially for matters involving family law, is transferred through the Canada social transfer, the bulk transfer that goes to provinces. Those transfers have increased by virtue of an escalator that is built into that transfer year over year.
     Having said that, this system has faced, and provinces and territories have faced, an ongoing set of challenges. We've worked actively to address criminal legal aid through some efficiency measures by trying to find ways of ensuring that there's not needless delay in bringing cases to trial. We continue to work on that. We also work on family justice by trying to support people in finding ways to address their issues other than going back to court.
    We've also been involved in the major studies. We provided important support to the study on access to justice in civil and family law that was spearheaded by the Chief Justice and particularly led by Justice Cromwell of the Supreme Court of Canada. We were actively and deeply involved in that, and we continue to be involved with provinces and territories in trying to find ways of achieving more efficiencies and effectiveness in the system to ensure the widest access to justice.
    Then there's the last thing you mentioned, the administrative tribunals support service. That's a story about the ways in which administrative justice can become more effective, in part by consolidating back offices to allow them to take advantage of technology in ways that small tribunals and agencies would never be able to do if they were left on their own. The effort to consolidate administrative services to allow them to share technology, hearing rooms, and otherwise was an effort to look at ways within the existing resource envelope of providing more people more access to more justice more often.

  (0925)  

     I wish we had time to explore that, because I know the provinces have done that as well with varying degrees of success. I also know that we have a crisis at the Social Security Tribunal with a huge backlog of disability cases, which the Auditor General has noted is causing real harm to real people. I hope someone can talk to us about that.
    Do I have time for one more question?
    You're extended, but I'll allow one more question, because I'm going to go back and ask everybody if they have any short questions that they still need to ask.
    Go ahead, Mr. Rankin.
    The report on plans and priorities shows a large decline in planned spending on justice system support, from $370 million next year to $332 million the following year, and $330 million in 2018-19. That's about an 11% drop or cut. I'm wondering what accounts for that.
    Given the way that spending is appropriated and reported to Parliament, part of what would account for that would be the sunsetting of programs that are subject to renewal, which will be reported through supplementary estimates and otherwise. I would say that there were some reductions that were imposed, but since then, the Department of Justice's overall budget has remained relatively steady. Within that, as you will learn over time and have seen already, there is coming and going through things that are reported and approved through main estimates, and other matters that are subject to the approval processes and then eventually show up in things like supplementary estimates (A), (B), and (C). It would be a mix of both of those things.
    There have been some reductions in our budget, and we continue to manage those, but the vast majority of that would be reflected in matters which are subject to renewal and will be coming forward in supplementary estimates.
    Thank you very much.
    Thank you very much.
    I really appreciate the discussion.
    I'm going to ask the Conservatives or Liberals if they have any questions on the supplementary estimates. We can always bring the department back to talk about the main estimates or other issues, but if there are any questions on the supplementary estimates, please—
    What about the minister?
    Well, the minister is definitely going to be coming.
    Okay. I'm just checking.
    I believe the clerk has been able to line up a date, March 24.
    Are there any other questions for the department on the supplementary estimates?
    Mr. Fraser, do you have a short question?
    Yes, just a very short question.
    There are $2.4 million in the supplementary estimates (C) for the Canadian Victims Bill of Rights. Is any of that allocated to the provinces? I know you're talking about the provinces having to carry out the administrative functions of that program. I'm just wondering if any of that money is going to the provinces.
    Yes. We'll get you the specifics, but a significant amount of those resources will in fact be transferred to the provinces.
    I can give you some examples. Manitoba is receiving about $80,000 to train prosecutors, judges, and police officers, with respect to their Victims' Bill of Rights Act. The Alberta Ministry of Justice is getting $142,000 to improve their victims restitution services. That comes from the federal Department of Justice through this fund.
    Thank you.
    I believe Ms. Khalid had one quick question.
    Ms. Khalid.
     You mentioned that there was a glitch in your system which meant carrying two separate systems and the whole reconciliation of the matter. I'm wondering if that glitch has been fixed.
    Yes, we have taken a number of corrective measures. First, we continue to audit and review the utilization. Second, each year we ask all employees and managers to sign an attestation form so that we force them through a process of making sure they've looked at their leave, Third, we record the leave where it should be recorded.
    In part, the reason for having the timekeeping system record at all was that it somehow made it easier for managers to look at the full picture. Leave will be recorded where it should be. Time will be recorded against legal files, where it should be.
    We continue to monitor, but yes, we think we've fixed the problem.
    Thank you.
    I'd like to thank you all for coming in. It's much appreciated.

[Translation]

    I would like to thank you. We will suspend the meeting for a few moments so that a new group of witnesses can get settled in.

  (0925)  


  (0930)  

[English]

     All right, we've reconvened.
    I would like to welcome the Public Prosecution Service of Canada. We're welcoming Brian Saunders, who is the director of public prosecutions, and George Dolhai, who is the deputy director of public prosecutions. Gentlemen, welcome, it's a pleasure to have you with us.
    You have the floor.
     Good morning, Mr. Chair, and honourable members. Thank you for inviting us here today.
     I've provided the chair with a copy of the opening statement with a focus on the supplementary estimates (C). With your permission, Mr. Chair, I'll provide you, as Mr. Pentney did, with a brief summary of what we do as an organization before getting into supplementary estimates (C).
    We were established as a separate organization in December 2006. Before then, the federal prosecution services was part of the Department of Justice. We were established in order to give greater transparency to the principle of prosecutorial independence and thereby enhance public confidence in the administration of justice. Our mandate is much more straightforward than that of the Department of Justice. It is set out in our enabling legislation, the Director of Public Prosecutions Act. It consists principally of providing advice to investigative agencies where requested and conducting prosecutions of offences within federal jurisdiction. By federal jurisdiction I'm referring generally to drug offences, national security offences, economic and regulatory offences under federal law, all Criminal Code offences in the three northern territories, as well as certain code offences in the provinces. You will know of course that prosecutions are shared jurisdictions in Canada. The provinces do most of the prosecutions under the Criminal Code pursuant to the definition of “Attorney General” in the Criminal Code.
    We are composed of a headquarters here in Ottawa and offices in every province, with the exception of Prince Edward Island, which we service from our Moncton office through the use of agents. We have approximately 1,000 employees of whom 530 are lawyers, 80 are paralegals, and 150 to 160 are legal assistants who work with the lawyers and paralegals in preparing cases for court. We also retain the services of private sector lawyers across the country. As you can understand, we have to appear in every court across this country, and often it's not economical to have a full-time employee in a small community in a northern part of Ontario or Manitoba to do one case a week. We have approximately 550 private sector lawyers under retainer who act as federal prosecutors. Our budget is $185.7 million a year. That's what we're seeking in the main estimates this year. We also, as is the case with Justice, have the authority to recover costs of certain services from other government organizations, basically investigative agencies, and we can recover up to $22.7 million a year.
    The position of the commissioner of Canada elections has been part of our organization since October 2014. As you know, he is responsible for conducting investigations under the Canada Elections Act and the federal Referendum Act, and for ensuring compliance with those statutes. His budget forms part of our budget, but by law he's to conduct his investigations independently of our organization. He's also a deputy head for purposes of staffing and labour relations within his organization. None of these supplementary estimates (C) requests concern the office of the commissioner of Canada Elections.
    I'll now turn to the two requests we have under supplementary estimates (C). They amount to $4.6 million and are for, as I say, two initiatives. Four million dollars is to cover an anticipated increase in prosecution labour work resulting from the coming into force of the Protecting Canadians from Online Crime Act. The act amended the Criminal Code to provide investigators with new investigative tools. It is expected that prosecutors will be called upon to provide advice on the use of these tools and whether they've been used appropriately. The remaining $0.6 million is the result of the enactment of the Canadian Victims Bill of Rights. The act places new responsibilities on prosecutors in respect of victims. The funds will be used to cover the salary costs of four additional crown witness coordinators in the north. The coordinators provide crucial support to complainants and victims as witnesses as they navigate their way through the criminal justice system.
    With that, I'll conclude my opening remarks. We welcome any questions.

  (0935)  

    Thank you very much.
    We are starting with Mr. Falk.
    Thank you, Mr. Chairman.
    Thank you, witnesses, for coming to committee this morning.
    Thank you for that brief explanation of what your department does and the very important work that you do. I want to ask a few more questions further to the $3.4 million that you're asking for in the supplementary estimates in regard to online crime and also to international investigations. Can you expand a little further on the disposition of those funds and also the reason for the request? Was it an increase in the frequency of these particular crimes, or what?
     As Mr. Piragoff explained when he was before you a moment ago, the act does provide for new tools to allow investigators to obtain electronic data. For example, they can get preservation orders to require Internet companies to preserve documents, or production orders to require them to produce documents. The money that we seek is to fund approximately 20 positions, because we anticipate that these new demands of these new tools will require additional advice to be given by prosecutors to investigative agencies. They will lead to new challenges in the court with respect to whether information has been gathered properly and in accordance with the provisions, and whether the provisions are constitutional or not. We expect challenges of that nature, so these additional positions will cover the work that we anticipate flowing from these new investigative tools.
    Mr. Dolhai can correct me on this, but we didn't seek any additional funds for the new crimes that were introduced. We would only prosecute the crimes that he referred to, the stalking crimes, I believe, in the north. In the south and in the provinces, they would be prosecuted by provincial prosecution services.

  (0940)  

    The amount also refers to co-operating with our international partners. Is there money abroad that is anticipated to be spent, or is the money all being left here?
     The money, with respect to co-operation with international partners, relates to any efforts that we have as far as training with them and our overall operational co-operation are concerned.
    We have a number of relationships, for example, with the United States departments of justice and homeland security. The Department of Justice is also part of that here in Canada. That's to ensure we have vehicles to ongoing communication if there's any issue, but also to provide training to them about our laws, and receive training from them, which of course we don't pay for.
    In addition, there's an evaluation amount that's built in.
    Thank you.
    Mr. Chair, I'll be sharing my time with Mr. Nicholson.
    Mr. Nicholson.
    Thank you very much, and thank you, Mr. Saunders and Mr. Dolhai, for your appearance here today. Thank you for all the work you do on behalf of Canadians.
    I'm sure, Mr. Saunders, you get a fair amount of feedback from your prosecutors across this country as to the state of the law and the atmosphere in this country.
    The Government of Canada has proposed that it's going to be legalizing marijuana in the near future. Have you heard any change in attitude from your prosecutors? As an MP, I'm hearing of more instances of people either growing marijuana, or there seems to be an expansion of that. Are you hearing anything in that regard? Have there been any changes in the number or the level of prosecutions related to marijuana?
    In terms of hearing from our prosecutors, we hear occasionally that the courts are questioning why we're proceeding with these cases, given that the government has announced its intention to decriminalize or legalize the possession of marijuana in the future.
    The position we have taken is quite simply that until Parliament has enacted a new law, the current law remains in force. If cases are referred to us, we will conduct our usual assessment of the cases. If they meet the threshold test for prosecuting, we will continue to prosecute the case.
    Some of your prosecutors are starting to hear from judges who question why these matters are still before the courts?
    It has been raised. In a few cases, we've heard that prosecutors were asked why they were proceeding with the case.
    Interesting.
    You mentioned in your opening remarks that you do recover some of your legal costs from other investigative agencies, or that you lend support to.... You said there's a limit of $22.7 million. Is that a percentage? Why and how is that ceiling calculated?
    When we were established by the Department of Justice, we inherited its budgetary model, which was a hybrid model. Most of our budget in the prosecution service was A-based, as we used to call it. It came from the main estimates.
    However, there was a certain percentage of the money in the area of regulatory prosecutions, for example, prosecution of the Labour Code or the Competition Act, that the federal prosecution service, our predecessor, recovered from the investigative agencies. We've continued with that.
    As far as we could tell, there was no rhyme nor reason to the amount. I shouldn't say that so quickly. We didn't ever recover for work done for police forces, so we never recovered for work for the RCMP, for example.

  (0945)  

     Is it locked in at $22.7 million?
    I think it's gone up.
    Is there an increase incrementally each year?
    When we started, I believe it was about $18 million or $19 million, so it's gone up in line with the increases in lawyers' salaries.
    Are you keeping up to date with lawyer salaries? I know it's always a bit of an issue as to what we're paying at the federal level as opposed to the provincial or private sector lawyers.
    At this stage, as you know, or maybe you don't know, there are negotiations ongoing between the Association of Justice Counsel representing lawyers at Justice and at our organization. Until now, in our view, we've fairly well achieved a certain degree of parity with the major prosecution services in the provinces.
    Great. Thank you very much.
    Mr. Dolhai.
    I'll just add very quickly that with respect to cost recovery, as Mr. Saunders said, it's on the regulatory side. We don't recover from the police. On the regulatory side, as well as in all our prosecutions, we apply our standards. With reasonable prospect of conviction, it is in the best-served interest of the community to go ahead, and we have not had a situation where money has determined any of those decisions. Once the matter is referred to us, it proceeds independent of considerations with respect to whether or not there is that funding. We see it through and we've never had an issue.
    That's good to hear. Thank you.
    Thank you very much, gentlemen.
    We're going to move to Mr. Fraser for the Liberals, but I want to take the latitude to ask the first Liberal question. To follow up on Mr. Nicholson's question, I understand you said there are some judges who are actually questioning why you're bringing cases. Have you found any judges who have actually refused to enforce the existing law? Have you had any difference in the actual outcome of a case?
    We have one case right now.
    This is Mr. Dolhai's program so I'll ask him to answer.
    It's my side of the house, and we do have one case right now where the judge has indicated concern that may amount to not proceeding. It's the only one that I'm aware of, however.
    What province is that in?
    I don't recall. I'd have to provide that to you.
    Thank you very much, sir.
    Mr. Fraser.
    Is he going to provide that to us?
    Yes, that's what I asked him.
    Is he going to get that information to this committee?
    That's what he just undertook, yes.
    I will do it.
    Thank you.
    Mr. Fraser.
    Thank you very much.
    Thank you for your presentation and for being here today.
     Getting back to the supplementary estimates (C), you mentioned the crown witness support program, which is part of the funding that's being appropriated in the supplementary estimates. I'm wondering if you can explain how exactly that program works, how useful it is, and if it is across the country evenly. I think you mentioned that those ones that are being hired with this money are going up north. Can you expand on that, please?
    I'll start and then I'll ask Mr. Dolhai to fill in any details that I might miss. The program is only in the north of Canada. We have 16 crown witness coordinators spread among our three offices. We have an office in Iqaluit, one in Whitehorse, and one in Yellowknife. As I indicated, they work with victims trying to help them understand the system and putting them in touch with territorial social services if they require that type of assistance.
    They're invaluable, particularly in all three jurisdictions, but in Nunavut, as you're aware, 85% of the population is Innu. The crown witness coordinators there speak Inuktitut, so they're able to communicate with the witnesses and the victims in their native language, and that is a great assistance in helping these people better understand the criminal justice system.
    We found the program to be very effective in allowing us to bridge the gap between prosecutors who generally are from the south of Canada and deal with the population that lives up there.
    Mr. Dolhai can add to that.
    To be clear, it is just in the north, but we have 20 CWCs, crown witness coordinators. They're spread evenly among the three territories in the north, except for Nunavut, which has an additional one who was provided for in relation to the funds that are before you in the supplementary (C)s because of the particular dynamic there. They are not the counsel for or assistant to the victim per se. What they are there to do is to assist witnesses with the criminal process so that they're familiar with it, and so that they can deliver their evidence in an effective way before a court. For example, we have developed a tool which has magnets that move around on a mock-up of a court. This helps to explain, especially to a child, what's going to actually happen. For many people, this will be their only time in court. It's very important that they feel comfortable with the process and feel that they are supported as witnesses in the process. That's where our crown witness coordinators come in. It really is an invaluable tool.

  (0950)  

     I have one quick follow-up question.
    You say that the program is effective. I'm wondering how you know it's working. If the witnesses are more comfortable, better prepared, and able to give better evidence, is there an increase in the rate of convictions? How do you measure it?
    We measure it by determining whether the witnesses are more comfortable and whether they are able to deliver their evidence. The feedback we have received has been consistently positive with respect to it. In some areas, for example, you may have a situation where you're in a small community and virtually everyone in that community for one reason or another is on the side of the accused. The CWC is sometimes the only person on the other side of that courtroom who is there to help the witness get through their testimony. That's the feedback we get from them.
    Mr. Saunders mentioned being able to communicate in Inuktitut, which is critical in Nunavut. In the other jurisdictions as well, we have access to those services if required.

[Translation]

    Thank you, Mr. Chair. My colleagues have more questions.
    Do any other Liberal MPs want to ask any questions?

[English]

    Thank you.
    You mentioned something in the very good presentation you made today about 550 prosecutors you have on retainer. Could you please expand on that?
    You mean the 530 prosecutors that we have?
    Yes. You mentioned that you have prosecutors you maintain on retainer so that you can use them throughout the country.
    No, we have 530 prosecutors and they are spread around the country. For example, in the office in Toronto, we have 120 prosecutors there and they would be responsible for conducting prosecutions in Toronto and in southwestern Ontario.
    In addition to the staff prosecutors, we also retain the services of private sector lawyers to act as agents. They would cover areas where we don't have a regional office, and sometimes they would assist us in cases where a regional office might find itself overworked and we could hire a private sector lawyer to help take some of the overload in those circumstances.
    I don't know if that answers your question.
    It does. I was just seeking clarification on the prosecutors.
    Do you find that the number of prosecutors currently in the system is enough to cover the demand?
    Yes. We keep track of our caseload. We also keep track of the time.
    You heard from Mr. Pentney, before me, that lawyers within the Department of Justice keep track of all their time, and we do that as well. All our prosecutors have to record the time they spend on files and the time they spend at work, essentially.
    We're able to keep track of the number of files, the complexity of the files, and the time. Using those metrics—and speaking to our local managers, because figures sometimes can be misleading—we take those factors into account in determining just what the workload is. If demand is going up in one area, we're able to shift resources, not quickly sometimes, but we're able to shift resources to meet increasing demand.
    We also have a group of the most senior litigators, senior general counsel, across the country. They are expected to be prepared to assist in a case in another jurisdiction either through providing advice, doing part of the case, or doing a whole case. Doing that ensures cross-pollination among our folks.
    Thank you very much.
    Mr. Rankin.
    Thank you, Mr. Saunders and Mr. Dolhai, for your presentations here today.
    I'm going to ask a question, building on Ms. Khalid's question.
     I think you emphasized, Mr. Saunders, the need for prosecutorial independence; hence, the creation of the DPP Act.
    When you are dealing with private sector lawyers as agents, what steps do you take to ensure that the choice of those agents is totally apolitical, so you get the best and the brightest and not those who are perhaps politically aligned?
    As I mentioned, the day we were established in December 2006, we informed the minister's office that from then on, agents would be appointed by our office, because under the statute it says that agents are retained by the director of public prosecutions, so we took that to mean that we don't consult with the attorney general when it comes to appointment of agents. Instead, we run a competition. Agents are appointed on a five-year term, and when the term is up, we have a competition, advertise it, and we evaluate the firms on the basis of their ability. We get references, but in effect, they go through almost the same process a prosecutor working as a staff lawyer would. They have to write a test to show their knowledge of the law. They're evaluated on that test, and then we go to the references. We do a check on their criminal record, and we check with Revenue Canada to make sure there are no outstanding taxes.
    We think we do a fairly good job in ensuring that the people we hire as agents are qualified. We know we do a good job in ensuring that hiring is based on their qualifications and not on the basis of any political affiliation.

  (0955)  

     Thank you.
    The question I want to drill into is the amount of $4.6 million in the supplementary estimates. Do you have data on spending on legal advice and litigation support specifically for prosecuting drug charges, broken down by the type of drug and type of charge? What I'm trying to understand is whether there are ways we can find out, for example, how much you plan on spending on prosecuting possession of marijuana cases next year. Are these data available? Could one obtain these facts?
    I believe last time I appeared before this committee I was asked that question and I gave a number, for simple possession, of $3 million to $4 million, but we can—
    Four million dollars?
    Yes, that's for prosecuting simple possession cases.
    Is that the amount you spend annually across the country?
    Yes. Most of the money, most of the prosecution of simple possession cases are done by private sector lawyers, our agents.
    But you still track that cost.
    We track it.
    The legal advice that Mr. Dolhai talked about, your people in head office provide that advice. I assume you'd want to track their hours as well, as part of that calculation.
    Yes.
    So the global figure, you're suggesting, is around $3 million.
    Three to four.
    Three to four?
    It varies from year to year.
    This you spend on going after people for simple possession?
    Recall that we don't go after people.
    But these are the charges being laid in respect of simple possession.
    We don't charge people either. Charges are laid by police forces.
    This is to prosecute charges brought by police forces.
    That's a more accurate way of saying it.
    Nevertheless, those are the facts.
    Yes.
     You've alluded to the charging standard, Mr. Dolhai. I wasn't quite clear on what you said. In British Columbia, there's a fairly stringent standard. There has to be a substantial likelihood of conviction as well as the public interest part.
    How does it work at the DPP level? What charging standard do you apply?
    We use a reasonable prospect of conviction and that the prosecution serves the public interest. There are variations, slight variations, between jurisdictions, but all of the prosecuting authorities across the country do the two-step model: is there enough admissible evidence to meet a threshold, and would a conviction be in the public interest? British Columbia does have a different standard. As well, all of them have a public interest component.
    Is it for you to decide under the DPP Act what standard you are going to use for charging? That would be province by province, would it not? How does that work?
    No, the standard is not set by statute.
    No?
     All prosecution services have what is called a decision to prosecute standard. It's part of our role as prosecutors. We're supposed to exercise our role independently of the police forces, and review files and decide whether a file is worth proceeding with before the courts.
    In the province of British Columbia where I live, we have the DPP standard, which is reasonable prospect, and we have the provincial AG standard, which is a substantial likelihood of conviction, which is a substantially higher standard. I wonder if that gives rise to any issues.
    In British Columbia you have two standards. You have the substantial likelihood of conviction, but I think in cases where that standard is not met but the public interest is high, they will go down to a reasonable prospect of conviction. Provincial people use a double standard, and I'm not using that in a pejorative sense.
    No, I know.
    Yes, and we have not encountered in any jurisdiction an issue with respect to any nuance between—and really they are nuances—between the prosecution tests. In fact, we have arrangements with all of the provinces—we call them major or minor—whereby whoever has the major case will do the case and the minor charges they'll do as well, as the agent for the other jurisdiction, and vice versa.

  (1000)  

    Right. Thank you.
    I have to change the topic because of the short amount of time I have.
    In October 2014, the so-called Fair Elections Act transferred the office of the commissioner of Canada Elections from Elections Canada to the office of the DPP. In the 2016-17 estimates, do they provide for increased resources as a result of the transfer? How has that transfer of jurisdiction affected your office, if at all?
    It resulted in a transfer of 20 full-time equivalents, 20 employees of the commissioner's office to our organization. The commissioner's budget was transferred to our organization, and that's in the range of $4 million a year. The law provided that the DPP has the right to appoint or dismiss the commissioner for cause. It also provided that the commissioner is a deputy head, in other words, the same rank as me when it comes to labour relations and staffing within his office. It didn't cost us any additional money.
    One change was that the commissioner moved from being co-located with the Chief Electoral Officer to a different office in Hull, but apart from that, the operation has proceeded as it did before.
     Has there been any study of increased efficiencies or lack thereof as a consequence?
    No, there has not, to date. The transfer occurred in October 2014.
    We run the finances for the commissioner's office. In essence, our chief financial officer set up their financial systems. Also, his office would be subject to an audit by our internal audit section at some time in the future.
    Thank you very much.
    Let me ask for a precision on Mr. Rankin's first question. You mentioned the sum of $3 million to $4 million for marijuana prosecutions. Is that for all drugs or simply for marijuana?
    That's for simple possession of marijuana.
    It's simple possession of marijuana, so it doesn't include possession of any drugs; it's just marijuana.
    That's right.
    Let me add that none of the monies that are sought here are anticipated to be spent on those sorts of prosecutions.
    In estimating what the requirement was, we focused on our highest complexity cases, because they generally have all of the elements, such as wiretap, production orders, tracking orders, and on a certain percentage of our medium complexity cases. Simple possession would be in our far low category, and that's not included in these figures.
    Thank you very much.
    Again I'm going around to Liberals and Conservatives. Do you have any other questions for this panel?
    No.
    I'd like to thank you, gentlemen, for coming to speak with us today. It is much appreciated. I'm sure we'll be having you back on other matters in the future.
    Thank you, Mr. Chair.
    Ladies and gentlemen, I would like to move to the votes related to the supplementary estimates, if that's okay with everyone.
JUSTICE
ç Vote 1c—Operating expenditures..........$5,089,448
ç Vote 5c—Grants and contributions..........$2,300,000
    (Votes 1c and 5c agreed to)
OFFICE OF THE DIRECTOR OF PUBLIC PROSECUTIONS
ç Vote 1c—Program expenditures..........$3,972,030
    (Vote 1c agreed to)
    The Chair: Shall I report the supplementary estimates (C) 2015-16 to the House?
    Some hon. members: Agreed.
    The Chair: Thank you very much, gentlemen and ladies. This direction is much appreciated.
    I think the business of the standing committee is closed.
    May I have a motion to go in camera for a moment, please.
    It is moved by Mr. Rankin.
    (Motion agreed to)
    [Proceedings continue in camera]
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