Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 3 -Evidence for June 29, 2006
OTTAWA, Thursday, June 29, 2006
The Standing Senate Committee on Legal and Constitutional Affairs, to which was referred Bill C-2, providing for conflict of interest rules, restrictions on election financing and measures respecting administrative transparency, oversight and accountability, met this day at 10:05 a.m. to give consideration to the bill.
Senator Donald H. Oliver (Chairman) in the chair.
[English]
The Chairman: Honourable senators, we are continuing our study on Bill C-2. The bill, more commonly known as the federal accountability act, reflects a central portion of the new government's agenda and is a significant piece of legislation in the Parliament.
I know that this committee will give the bill the careful study that the bill deserves.
[Translation]
We have already heard from the President of the Treasury Board Secretariat, officials from various departments and two former renowned officials. During our future meetings, we will hear other witnesses before undertaking an in-depth review of this legislation and deciding whether we want to recommend changes to the Senate.
[English]
Today, I am pleased to welcome to the committee the Minister of Justice and Attorney General of Canada, the Honourable Vic Toews. As honourable senators know, this bill received careful study in the other place. There were 70-plus witnesses called, 70 clauses were amended, one new heading was added, a schedule was amended, the bill was debated for 61.6 hours and at report stage 24 other amendments were adopted. We are getting a piece of legislation that has been well versed.
Mr. Toews is a Member of Parliament for the riding of Provencher in Manitoba. He was first elected to the House of Commons in the year 2000. Prior to that, he served as provincial Minister of Labour and as Manitoba's Attorney General and Minister of Justice.
Mr. Toews is accompanied today by a number of officials and we extend a welcome to Chantal Proulx, Senior General Counsel, Criminal Law Section; Robert Frater, Senior General Counsel, Criminal Law Section; and Joe Wild, Senior Counsel, Legal Services with Treasury Board Portfolio.
Thank you very much for being here today. After your presentation, we will invite honourable senators to pose certain questions to you. We will try to keep both the questions and the answers short so all honourable senators have an opportunity to pose questions to you.
Hon. Vic Toews, P.C., Q.C., M.P., Minister of Justice and Attorney General of Canada: Thank you, Mr. Chairman, and thank you honourable senators for your kind invitation to be here with you today.
I am pleased to speak today before this committee studying Bill C-2, the federal accountability act. As Attorney General of Canada, my officials and I have worked closely with our counterparts across government on the proposed act. This bill, we believe, will strengthen accountability and increase transparency and oversight in government operations and in so doing, the bill will help rebuild Canadians' confidence in the integrity of their public institutions.
Bill C-2 makes significant changes to the federal access to information regime. Since the Access to Information Act became law in 1983 much has changed in the federal government, in Canada and indeed around the world. Accordingly, there have been numerous calls for reform of the Access to Information Act.
Our government believes it must enhance the public trust and respect the public interest by encouraging the greatest degree of openness and transparency. At the same time, we must take legitimate concerns into account, such as personal privacy, commercial confidentiality, and the protection of national security and the government's relationship with international allies.
Before turning to the specific aspects of Bill C-2 that relate to access to information reform, I think it is important to set the context of the government's approach to overall reform to the Access to Information Act.
To move ahead with meaningful and balanced reform, the government has proceeded on two tracks. In addition to the reforms contained in the federal accountability act now before this committee, the government produced a discussion paper and a draft of what a bill would look like should the reforms suggested last year by the Information Commissioner be implemented. The discussion paper and draft bill were tabled with the House of Commons Standing Committee on Access to Information, Privacy and Ethics in April of this year. Last week, on June 19, I appeared before that committee to speak to the issue of access reform. I urged the committee to study the discussion paper that was tabled on April 11 and to consider not only the proposals tabled by the Information Commissioner but some of the approaches that I discussed in the discussion paper.
I also invited the committee to consider carefully the possible costs of reform and to hold complete and inclusive consultations with a broad range of stakeholders.
As I told the committee, the task to balance competing public interests is difficult as we proceed with access reform. It must be done carefully and thoroughly. That is why we proceeded with reform in a two-stage process — the reforms we were able to include in Bill C-2 and the reforms deferred in the discussion paper, for which we need the committee's input and involvement.
Let me now focus on what is in Bill C-2. The federal accountability act includes a number of reforms to the Access to Information Act. Before going through them, it is important to note that the access to information aspects of Bill C-2 that are now before you reflect the efforts of all parties represented in the House of Commons. I want to thank my colleagues from the other place for their thoughtful proposals in this area, many of which have found their way into the bill.
Bill C-2 will expand the coverage to access to information and the Privacy Act to include seven agents of Parliament — the Auditor General, the Information Commissioner, the Privacy Commissioner, the Commissioner of Official Languages, the Chief Electoral Officer, the public sector integrity commissioner and the commissioner of lobbying. The bill also includes all parent Crown corporations and their wholly-owned subsidiaries, the Canadian Wheat Board and five foundations.
In bringing these institutions under the Access to Information Act, the government has acted responsibly by ensuring that appropriate exemptions are also placed in the act to protect sensitive information — for example, the journalistic sources of the CBC and the identities of whistle-blowers and the falsely accused.
Some amendments proposed and adopted during the committee's consideration of Bill C-2 pave the way for what may come out of the Standing Committee on Access to Information, Privacy and Ethics. For example, a new regulatory authority is proposed under Bill C-2 that allows the Governor-in-Council to establish regulations setting out the criteria that determine whether institutions should be brought under the Access to Information Act and the Privacy Act.
As well, Bill C-2 requires ministers to publish a report on an annual basis on all expenses incurred by their offices that are paid out of public funds. Both these amendments touch on issues that are currently before the other committee.
In addition, Bill C-2 provides a duty for institutions to assist all requesters regardless of their identity, and clarifies the time limit for making a complaint under the Access to Information Act. The bill also increases the number of investigators the Information Commissioner may use for investigations concerning information related to defence or national security.
I intend to focus the balance of my remarks on the proposal to create a new director of public prosecutions. More specifically, I want to discuss the notion of prosecutorial independence, which lies at the heart of this initiative.
Perhaps the best way to begin is to quote one of the most famous aphorisms in legal history. It was written in 1924 by Lord Hewitt, then Lord Chief Justice of England and Wales. Its full version reads:
Justice should not only be done but should manifestly and undoubtedly be seen to be done.
As I mentioned, the justice issue now before this committee is prosecutorial independence. The notion is that prosecutions must be free of political partisan interference or pressure. The Supreme Court of Canada put it this way in a case called Krieger v. Law Society of Alberta:
It is a constitutional principle in this country that the Attorney General must act independently of partisan concerns when supervising prosecutorial decisions.
The idea behind this bill is to bring those two principles together, to ensure not only that prosecutorial decisions are untainted by partisan concerns, but to ensure that they are manifestly and undoubtedly seen to be untainted.
We do not suggest that prosecutorial independence at the federal level has been violated. The men and women who constitute the Federal Prosecution Service have been faithful guardians of prosecutorial independence. We are not here to correct a problem that has already occurred; we are here to prevent problems from arising in the future. That course of action seems to be more prudent, and we are here to assure Canadians that the Federal Prosecution Service is independent.
Before I deal with the specifics of the bill, I want to say a few more words about this notion of professional independence and prosecutorial independence.
At present, decisions relating to federal prosecutions rest ultimately in the hands of the Attorney General of Canada. I remind the house that federal prosecutors currently prosecute drug offences and other federal offences. They also handle organized crime and regulatory cases, and they prosecute Criminal Code offences in the three territories. In all cases under federal jurisdiction, the Attorney General has the ultimate authority to make prosecutorial decisions — to decide whether a prosecution proceeds, whether the proceedings will be stayed and whether court decisions are appealed.
In reality, the vast majority of these decisions are made on behalf of the Attorney General by federal prosecutors. Comprehensive guidelines and policies have been put in place, especially in recent years, to ensure that prosecutors act in a principled fashion, not on the basis of partisan political pressure. In particular, I refer members to the Federal Prosecution Service Deskbook; for those efforts senior officials within the Federal Prosecution Service should be commended.
Among other things, prosecutors are not allowed, under a constitutional convention, to consider the political implications of a prosecutorial decision; nor does the Attorney General take instruction on these matters from anyone else, including cabinet colleagues.
A few moments ago, I mentioned the Federal Prosecution Service Deskbook. It includes its summary of the issue with these words:
The Attorney General must, for these purposes, be regarded as an independent officer, exercising responsibilities in a manner similar to that of a judge.
There is no suggestion from this quarter that this principle has been violated. Nevertheless, attorneys general are elected politicians. Attorneys general are members of political parties. In the Government of Canada, the Attorney General is appointed by and serves at the pleasure of the Prime Minister. Senators and members of Parliament know this fact but, more importantly, members of the public know this.
As the saying goes, it is not good enough that justice is done, it must also be seen to be done. Those people within the system can testify to its integrity, but those outside the system might, from time to time, have their doubts, and that is why the government proposes this change.
I now turn to the specifics of the bill before your committee. Bill C-2 proposes the creation of a separate and independent office of the director of public prosecutions. Both the office and the person who heads it are commonly referred to as the DPP.
The DPP will conduct all prosecutions currently carried out by the Federal Prosecution Service. In addition, the DPP will be responsible for prosecutions under the Canada Elections Act, and the DPP will prosecute new fraud offences this government has proposed under the Financial Administration Act. Those offences cover fraudulent acts committed by employees of the federal government and Crown corporations involved in the collection, disbursement or management of public money against their employer.
The offences were created to ensure that the criminal mismanagement of taxpayers' money can be prosecuted by a federal prosecutor. The DPP will have the necessary independence to ensure that the initiation of proceedings are not subjected to any political interference.
Unlike the current Federal Prosecution Service, the office of the DPP will not be a part of the Department of Justice. Rather, the DPP will be an independent agency that reports to Parliament through the Attorney General of Canada.
The government proposes that the director be selected from among qualified candidates recommended by a selection committee. That committee will include, among others, a representative of the Federation of Law Societies of Canada, and one representative from each recognized political party in the House of Commons. Once a nominee has been selected, the Attorney General will refer the matter to a parliamentary committee for its approval. The candidate approved by the committee will then be appointed by the Governor-in-Council.
To ensure the appointee's independence, the DPP has a security of tenure — a seven-year non-renewable term of office and guaranteed salary and pension benefits. The DPP is removable from office at any time by the Governor-in-Council but only for cause and with the support of a resolution of the House of Commons. Most important, the director has the power to make binding and final decisions related to prosecutions unless the Attorney General instructs the DPP to do otherwise by means of a public written notice. The Attorney General retains the power to intervene in proceedings raising important issues of general interest. The bill also permits the Attorney General to take over a prosecution, but only where the Attorney General gives the DPP a notice of intent to do so. The notice must be published in the Canada Gazette. We have retained this discretion, which we anticipate will be used sparingly because the Attorney General is ultimately accountable to Parliament for the actions of the DPP. Therefore, some residual capacity must exist to ensure that decisions are taken in the public interest. This feature has been included in other DPP schemes and, as I said, history has shown that the power is seldom exercised.
Mr. Chairman, the government believes that the provisions of this bill strike an appropriate balance between independence and accountability in federal prosecutions. It ensures independence from unwanted control, direction and influence. At the same time, it ensures a substantial measure of accountability for the exercise of prosecutorial discretion.
That brings my formal comments to an end. I would be pleased to answer any questions.
The Chairman: Minister, thank you for that opening series of remarks. We are lucky to have you here today because you have had experience provincially as the Minister of Justice and now you are the federal Minister of Justice so, constitutionally, you know about prosecuting in both provincial and federal arenas. Last evening in this committee, we had two distinguished presenters: Mr. Arthur Kroeger, a former Deputy Minister, and Mr. David Zussman, a Professor of Public Sector Management. When asked questions about the office of the director of public prosecutions they scratched their heads and said that they have some doubt about it and wonder why it is truly necessary and what evil it is designed to cure. Mr. Toews, you said that nothing has occurred in the past that would indicate there has been any kind of problem but, why would you choose this area as the place to bring in a brand new mechanism? What do you think might happen in the future that prompts you to include it in this important piece of proposed legislation?
Mr. Toews: Often, Mr. Chairman, legislation not only deals with the nuts and bolts of a prosecution, for example, but also sends out a clear statement of values or of a principle that must be protected. One example I often go back to is the issue of hate crimes in this country. People have argued from time to time that hate crime laws are redundant because such crimes are covered by other laws. Generally speaking, that is correct. Yet, in respect of the hate crimes legislation, Parliament wants a clear principle — a clear statement of values — set out in legislation. I see this as a similar kind of statement in that we want to make absolutely sure that there never is any improper partisan interference. Not only do we want to say that in the general policy books established in the department but also we want to say it in legislation so that prosecutors know that the word of Parliament stands behind them when they exercise these important decisions.
During the 30 years since I was called to the bar, I have heard only once of a minister interfering in a prosecution. It occurred in Manitoba by a minister of labour many years ago. There was outrage when it happened. I believe that the minister did it with best intentions as he wondered why the particular prosecution had been undertaken. Yet, there was a media outcry and the like. I do not suggest that it happens on a regular basis. In fact, I know of only the one incident but a fundamental principle of our democracy needs to be clear in a statute: that prosecutions are conducted in independent fashion and there is statutory protection for those exercising that discretion.
The Chairman: Minister, thank you. As you know, I am from the province of Nova Scotia where we have an independent prosecutor system. The independent prosecutor annually presents a report to the House of Assembly, not to the minister. In Bill C-2, the report goes to the minister first before it can be tabled. Do you see that as potentially compromising?
Mr. Toews: I do not think so. A necessary point is still that the report has to go to the minister because the minister ultimately is accountable for the DPP. The request is not unreasonable that the report go through the Attorney General. With other officers who do not report directly through a minister, I can see why you would not want to have that ministerial step. However, in this particular case I do not think it compromises the integrity but rather it ensures that the minister knows what is going on in the department for which the minister is ultimately responsible.
Senator Baker: In welcoming the guests, Mr. Chairman, I must say that we respect their expertise on Bill C-2, in particular that of Minister Toews, not as a minister of justice of a province but as a former Crown prosecutor of some success. I could not find a case that he has ever tried and lost; and that is remarkable. Just as remarkable is the record of the person to his right who has prosecuted many cases under federal jurisdiction and, I believe, has lost only one case. On that expertise, we call on the minister to answer a basic question, which could well be on the minds of many people.
The minister talked about prosecutorial independence and quoted Lord Hewitt. In recommending a DPP under federal statute with the powers of the DPP as outlined in Bill C-2 and as explained by the minister on occasion, words such "the director initiates and conducts prosecutions on behalf of the Crown except where the Attorney General has assumed conduct of the prosecution." The words "initiates prosecutions" runs contrary to established principles of law in Canada as outlined by the Supreme Court of Canada in many cases. I refer to the Nova Scotia case of R. v. Regan in which the Supreme Court of Canada stated that the separation of the Crown from police functions is a well-established principle of our criminal justice system and one which must be safeguarded.
The Court of Appeal talked about a demarcation line — a protection in our system. The phrase, "initiates prosecutions," was condemned roundly by the trial judge, by the Court of Appeal and by the Supreme Court of Canada. The phrase has been visited in the Marshall inquiry, in the Martin report and, recently, in the Lamer inquiry on three wrongful convictions of first-degree murder in Newfoundland. Each concluded that there should be a separation to meet the requirements of Canadian law and the basis of our Charter as explained under section 7 of fundamental justice.
In describing this new function, which appears to have been taken from the U.S. standard, I ask the minister about having a DPP determined in open Parliamentary forum and the Parliament of Canada under this bill has the final say. I do not know whether the minister agrees with that.
Mr. Toews: I think it is a good issue. I want to take issue with the fact that I have never lost a case.
Senator Baker: It is an unreported case, minister.
Mr. Toews: I must have had friends involved in the reports, because I have lost many cases. We all learn through our losses as well as our victories. I have no doubt that in the case of my colleague, Ms. Proulx, she has probably lost only one. I can assure you that I have lost many more than one.
The point you raise, though, is a good one. I do not think the drafters here in any way suggest that we now bring forward some kind of Crown charge approval system. This system does exist in some provinces in this country, and I have concerns about that. British Columbia, for one, has the charge approval system, where the police bring all charges to the Crown to approve before they are laid.
I do not know the history, but frankly, it is not illegal or improper, but it certainly runs counter to our general practice, that is, the police lay the charge or initiate the charge. Then the case comes to the prosecutors, who can stay the charge or instruct that additional charges be laid: in that sense the prosecutors initiate charges.
Generally speaking, you are absolutely right; the difference between the police role and the Crown role is clear in this country. I note, however, the exception of the charge approval.
We are not asking for an American-like power that has a policing or an investigative power on behalf of the DPP. I think the word was chosen, but certainly not in a sense that runs counter to those principles that you have identified, and principles that I agree with, that we keep the police function and the prosecutorial function separate from the state.
Senator Baker: The powers of the DPP are outlined in the legislation. Let me read for you one section:
The Director initiates and conducts prosecutions on behalf of the Crown with respect to any offences under the Canada Elections Act...
What is your interpretation of the word "initiates" in that particular case, sir?
Mr. Toews: I do not think that in any way detracts from what I have said. We are not stating that the DPP actually investigates or polices. Those things would still be done in the manner in which they are done today, by the Elections Canada officials, who make the decision, lay the charge, and then refer the file to the DPP for prosecutions. At that point, the prosecution is initiated.
Technically, I think the point you make is whether prosecution is not initiated at the laying of the charge, perhaps. Some might say it is initiated much earlier than that. I understand your concern. I want to reassure you that we are not giving the DPP powers in respect of initiating charges that the DPP does not already have.
Senator Baker: Mr. Minister, I wonder if you can comment specifically on whether the DPP would, as this legislation says, carry out prosecutions: It says "initiate" as well, in every case — initiate and carry out prosecutions that come under federal jurisdiction, federal act or federal law. I presume the Controlled Drugs and Substances Act would be a particular case there.
Mr. Toews: Yes.
Senator Baker: Ms. Proulx is a recognized expert and is quoted often in our courts as far as definitions of words are concerned under the Controlled Drugs and Substances Act. She has written extensively on this matter, according to these judgments.
I am wondering how Ms. Proulx would see matters change, as far as this legislation is concerned, in the normal prosecution of someone who has violated the Controlled Drugs and Substances Act and in the preparation of warrants pertaining to private conversations as they relate to agents of the DPP.
Chantal Proulx, Senior General Counsel, Criminal Law Section, Department of Justice Canada: So I am clear, honourable senator, by "agents of the DPP," are you referring to staff prosecutors?
Senator Baker: Yes: For every single warrant that is obtained to listen to private conversations, in the presence of the police, there must be an agent of the Solicitor General. I presume, after this bill, there will have to be an agent with a piece of paper that says, "I am appointed by the minister to represent the minister in the application of this warrant." In that sense, I am asking about the agent. What will be the difference after the passage of this bill from what is presently the case? Is there anything that will be different?
Ms. Proulx: Honourable senator, I do not expect that existing practices would change. In this respect, I refer you to subclause 9(3) of the bill, which specifies the deputy director or any person referred to in subclause 7(3). Subclause 7(3) refers to staff prosecutors or legal agents, that they may be designated as an agent of the Minister of Public Safety and Emergency Preparedness under section 185 of the Criminal Code. That section is the section under which applications for wiretaps are made.
Subclause 9(3), in effect, permits prosecutors, who are now designated as wiretap agents, to be similarly designated following the adoption of the bill.
Senator Baker: Nothing different happens after the passage of this bill than what happens presently as far as prosecutions under federal acts are concerned?
Ms. Proulx: Nothing different happens in the sense that existing practices and best practices are expected to continue, yes.
The jurisdiction of the DPP is broader than the present jurisdiction of the Federal Prosecution Service insofar as it includes Elections Act prosecutions and prosecutions for the new fraud offences.
Senator Baker: Will you be able to take part in initiating a charge? Will you be able to take part more so than you do now? Now, as the minister has pointed out, the situation differs from province to province in that Crown prosecutors could be asked their opinion by the police on certain aspects of an indictment. Will this bill give the DPP prosecutor, in this case, more powers than the prosecutor presently has, that is, in the sense that they can become a part of the initiation of charges?
Ms. Proulx: Investigative agencies and police forces operate independently of prosecutors, and that will continue.
In an increasing number of investigations, and certainly in all large-scale investigations, prosecutors are consulted, at early stages of the investigations and throughout the investigations, by the police, who ask their opinions on various things related to, as you have pointed out, interceptions of private communications, disclosure issues, and the manner and timing of the laying of charges.
In many areas across Canada, Federal Prosecution Service prosecutors are part of integrated teams, in particular, relating to proceeds of crime. All those practices are expected to continue. The prosecutors are not, by the DPP bill, given authority to direct the police or to approve the laying of charges in any fashion different than what is the practice today.
Senator Baker: I can understand the hesitation of the witness not to address this case specifically. Perhaps she would prefer to leave the interpretation of the word "initiate" to the courts when the cases arise.
Ms. Proulx: Honourable senator, the crown does initiate cases in which consent is required prior to the laying of charges. In most cases, consent of the Attorney General is not required prior to laying charges and charges are laid by the police. The brief is referred to a prosecutor, who must then assess whether the case goes forward on the basis of criteria contained in the prosecution deskbook. These criteria are applied on an ongoing basis; that is to say, whether there is a reasonable prospect of conviction and whether it is in the public interest. That will continue.
Senator Baker: In other words, you cannot answer the question of whether anything will change.
Ms. Proulx: It is not expected that anything will change.
Senator Baker: It is not expected.
Ms. Proulx: Nothing will change.
Senator Cools: It is hoped.
Senator Andreychuk: Thank you, minister, for coming. I know how difficult it is to find flights to and from Manitoba these days. I appreciate that this is a priority for you.
I want to go back to Ms. Proulx. You say you do not anticipate any changes to the prosecutions. One thing the court can assess is intent. I do not know whether you or the minister will answer. Your intent was not to change the relationship between the prosecutors and the police.
Ms. Proulx: That is correct.
Senator Andreychuk: You have stated that.
Ms. Proulx: That is correct. That is not our intention.
Senator Andreychuk: I want to ask the minister a few broad questions.
With all legislation that comes forward, the Canadian Charter of Rights and Freedoms is extremely important. A process is in place that before legislation can go forward at cabinet level a certificate is filed indicating that it complies with the Canandian Charter of Rights and Freedoms. It is your responsibility to ensure that legislation complies with, and meets the expectations of, the Charter.
The certificate, I understand, was filed. Are you satisfied that Bill C-2, to the extent that any Minister of Justice can assess, meets the standards of the Canadian Charter of Rights and Freedoms?
Did your government, in taking office, change the policy that was in place?
Mr. Toews: Perhaps, to answer the second question, I am not aware of any change in policy. I would have been directly involved in any change to that policy in the interpretation of section 4.1 of the Department of Justice Act, which requires me to examine government bills to determine whether any of their provisions are inconsistent with the Charter of Rights and Freedoms.
In this particular case, obviously we filed the certificate. There is no report indicating that I have any concern.
One always must bear in mind the role of the Minister of Justice. We need to remember that our opinion on these matters is not conclusive, nor should we stand in the way of legitimate policy initiatives of government: that governments must bring forward legislation that appears to be constitutional and that legislation, to the best of our knowledge, is constitutional.
We should not shy away from controversial issues simply because somebody will raise a constitutional argument. I have not yet met a lawyer who is not prepared to raise a constitutional argument on every aspect of every bill we brought forward. The standard should not be that there might be a constitutional challenge. Constitutional challenges will always be brought forward.
We look at the issue of constitutionality. We also look at the issue of what policy we are advancing. Then we say to the various departments involved and the government lawyers involved, please marshal the evidence necessary to defend this particular policy initiative. I am confident in this area that there is sufficient evidence to protect the initiatives we are taking, on a constitutional basis.
Senator Andreychuk: Let us follow up on that. That was certainly one of the expectations of the assessment the minister would make in filing a certificate.
I have been sitting on this committee for many years. Whatever government is in power has the right, on behalf of citizens, to introduce the policy directions and changes that they deem appropriate. We, in this committee, are mindful of that. We often look at a bill and find that its flaws, even with regard to the Charter, come in the drafting stage.
This is what the government intended, but we find that the bill itself does not do what the minister intended. The disparity there sometimes is in the assessment of the Charter, not that it be ironclad, et cetera, but that what is intended is in fact delivered in the bill and that it meets the Charter challenge to the extent it can. That is what I thought the certificate was. There seemed to be a disconnect with the actual wording sometimes and the Charter.
Mr. Toews: In this case, I am not concerned that there is a disconnect between the intentions of the government and the wording of the bill.
Senator Andreychuk: I want to go back to the DPP, perhaps less from a legal point of view than from a practical and political one. The critics were quick to jump on this as being American-style.
The briefings we have received indicated that the Law Reform Commission in 1990, a long time before the debate we are having now, actually recommended that an independent post be created. In part, their reasons, as I recall, were for the evolution of a system to meet modern times, that there was ever more scrutiny, ever more understanding by the public, of the prosecution process. There was the ability, perhaps, to have political difficulties.
England and Australia have initiatives. Australia's initiative has been in place for some time.
In drafting the position of director of public prosecutions, who were you more mindful of? The English or Australia example, the provincial or the American? I am sure you took all of them into account.
Mr. Toews: We did. We had lengthy discussions on exactly what form the office of the director of public prosecutions would take.
We considered closely the Nova Scotia situation. The initiative in that province arose out of certain cases and concerns that occurred there. We took a close look at the British Columbia model. We also concerned ourselves with the English system.
As you know, in England the Attorney General sits outside of cabinet. It is a different situation there, because in Canada the Attorney General sits inside cabinet, which makes statutory protection for the prosecutions even more important. In Britain, where the Attorney General sits outside of cabinet, the perception of possible political interference is not as great as in Canada. Therefore, there is a greater imperative in Canada than in Great Britain to have a statutorily set up office.
The American system simply did not lend itself to our situation, because of the different system that they have, where, for example, state attorneys general do not prosecute their criminal law. It is done by independent, elected prosecutors. It is a different system. We are mindful of the American experience, but constitutionally, it does not lend itself to a closer examination than simply understanding the principles.
I can tell you we examined the Nova Scotia, British Columbia and Quebec models very closely.
Senator Andreychuk: I am intrigued with Senator Baker's interpretation of "initiate." I have great respect for his abilities, honed over many years on a practical basis. I will give it due regard. He also has, I think, a team that helps him.
Senator Joyal: He is self-made.
Senator Andreychuk: He is not self-made. He has some excellent lawyers in his family now that he has been working with, so I respect what he has said.
I read the act, having been a prosecutor, a defence counsel and a judge, and I took "initiate" to mean initiating a proceeding or a stage.
Mr. Toews: That is, initiating the actual information or laying of the charge.
Senator Andreychuk: It would have been initiating in the DPP's own right or investigating in the DPP's own right. I took "initiating" as initiating a step or a process as opposed to the content.
Mr. Toews: Each of these words has to be seen in the context of the legislation. I can understand the concerns that others may have expressed about the use of that word in another context.
As I stated earlier, we are not attempting to create an initiative by a prosecutor where the prosecutor controls all the commencement of the actual criminal investigation.
Senator Cools: I have a comment on that very point. It is my initial comment, but it follows on from what Senator Andreychuk said.
I would like to say to honourable colleagues, this human being is a special fellow, known to be decent and kind. I wanted to say that we are honoured.
Mr. Toews: I do not know what this is leading up to.
Senator Cools: Nothing. There are no "buts" or "howevers."
I want to follow up on the point Senator Andreychuk made about the phenomenon of the word "initiate" in this bill because it is used again. I want to flag that to you. It is used in the same section.
Senator Baker raised clause 3(8). If you look at clause 3(3)(a), you see the same thing. It is under the clause about the duties and functions of the director of public prosecutions and says, "The Director, under and on behalf of the Attorney General, (a) initiates and conducts prosecutions on behalf of the Crown," except where the Attorney General has assumed conduct of the prosecution.
There could be a mistake in drafting in the use of a word, but if for any person in any courtroom the duplication of this word shows careful intention — I am sympathetic to the view of Senator Baker — huge alarms go off when you think of a self-made, self-contained prosecutor free to initiate prosecutions, maybe because the prosecutor felt like it that day. I want to make that point and to be clear that the term is recurring in the bill.
The Chairman: Minister, do you want to respond to that?
Mr. Toews: I note the point. However, the DPP initiates a prosecution. The bill does not say, for example, that the DPP initiates a police investigation. The bill needs to be seen in that context.
The Quebec legislation, for example, uses the words, "authorizing a prosecution," which, in my opinion, has even greater concerns than simply initiating.
In that context, they do charge approval in Quebec. They can authorize a prosecution.
Senator Cools: It is different, but we will return that.
Senator Andreychuk: On this point, Canada has taken a lead in working with other countries in the judiciary and the prosecutions in criminal systems. We have invested a lot of time and expertise in helping developing democracies and others.
It seems to me that this independence of a prosecutor is a helpful tool. In my case, when I do workshops elsewhere, I have been questioned about how independent our judges and prosecutors are, and what oversight and scrutiny parliament plays.
It seems to me it builds on the law reform commission, whose task was to look ahead. Did you take into account our relative position in defending our system when we go into foreign policy?
Mr. Toews: You make a good point, in fact. We are not simply establishing or setting out clearly the value of prosecutorial independence for our own country where we understand that principle on more of a common law basis than on a statutory basis.
As we continue our international development and assistance, the bill is a strong tool for Canadian officials to say, "Look, we think that this common law principle or this generally accepted principle in our system is so important that we have put it in a statute. We have specifically done that."
Again, I go back to the example of hate literature. We know we do not like hate propaganda or hate literature in this country. We know we could have prosecuted many of these situations under different laws. The legislation not only sends a clear message to people in Canada about our disdain for that kind of conduct, it also sends an international message and allows us to relate on that basis.
That is a good point. I tell you honestly, I did not think of that. If I did, it was only in passing. I appreciate your bringing that to my attention.
Senator Joyal: You mention in your opening statement that the objective of the initiative encompassed under Bill C-2 is to establish accountability and restore trust in the general system. As a Minister of Justice, you come forward in Bill C-2 with important initiatives, and the one we are discussing on the current prosecution this morning is a fundamental one.
You have repeatedly stated that you want to send a clear message to Canadians. I cannot but subscribe to that in principle. However, I wonder if whether some government initiatives in practice today are not contrary to that message.
The first justice that you recommended to be appointed in Canada was Richard Bell from New Brunswick for the Court of Queens Bench. He happens to be a reputable lawyer, but he was, at the same time, a well-known Tory organizer each year for the last two elections in New Brunswick. He supported the bill of Mr. Harper when Mr. Harper was seeking the leadership of the Tory party in 2002. Therefore, the first decision you made was to select a candidate whose political achievements are so well known that citizens cannot have a doubt that although we try to establish an independent Crown prosecution, when a person goes in front of a judge, he or she will go in front of a judge who has political allegiance. You criticized the Liberal government for doing the same thing when you were in the opposition. The first initiative you take is to propose a name.
With regards to Bill C-2, should we not have a proposal to establish a nomination process that would establish the trust of citizens? The candidate who happens to have a major political background should appear to peers as somebody over and above any cynical perception.
Mr. Toews: This is a great opportunity to discuss that particular appointment. In fact, I made two appointments. One was Justice Louise Charbonneau from the Northwest Territories. There was no mention at all of that appointment in any of the newspapers that criticized the Bell appointment.
Both Mr. Bell and Ms. Charbonneau came from a list that was not compiled by the Conservative government. In fact, the list was compiled by the prior government under the nomination system.
I have not brought forward any names. I simply went to a list that had already been compiled by the prior government, and the names of both these individuals were either recommended or highly recommended. To me, it makes no difference whether they are recommended or highly recommended; they are suitable to be judges. The suggestion that the Conservative government appointed someone on a political basis is simply wrong.
However, the perception, as you say, may be otherwise. In the case of Justice Bell, I had no idea of his connection to the party. You might think that is odd. It is not odd. I discovered that connection rather late in the process.
I want to emphasize that the names came from a list that was compiled by the previous Liberal government.
Senator Joyal: I do not doubt your honesty, Minister Toews. I want to quote from a principle that you yourself have quoted from Lord Hewitt. Many members around this table have often quoted the same thing in our debates: not that justice be done, but that it appear to be done.
Mr. Toews: That is why we took a particular position with the Supreme Court of Canada. We made a fairly historical move in the appointment of Justice Rothstein to have that public hearing process. As the Prime Minister indicated, that was not necessarily the last improvement in the appointment system.
Senator Joyal: I understand that. However, as I say, when the name went to cabinet, and I have been a member of previous cabinets, the person in question was an organizer associated with the Prime Minister. When the Prime Minister signs the order-in-council he cannot know that person. To me it speaks to the values we stand for.
If the government stands for restoring public trust and confidence, to me there are political situations when one must indicate what the government stands for.
Mr. Toews: Are you suggesting, Senator Joyal, that Conservatives never appoint Conservatives but only Liberals and New Democrats? Are you suggesting Liberals appoint only Conservatives and New Democrats?
Senator Joyal: No, I am not saying that. I am saying that during the former campaign, the Prime Minister made strong statements about there being too many Liberal judges in Canada. I do not know if the initiative of the Prime Minister to "balance the system" is by appointing well-known Tory supporters.
Mr. Toews: I can assure you that the initiative to appoint that individual did not come from the Prime Minister.
Senator Joyal: I take your word on that. As I say, I am here with respect to the issues of perception and restoring public trust.
Mr. Toews: Senator, I do not believe the issue is to disqualify political people. We disqualify people who are not competent.
Given that the prior government made lists of individuals who are recommended for appointment, people in Canada know that is the system. I can go to that list and appoint those individuals regardless of their political affiliation.
The question that has been raised is: Are the people on that list there as a result of political affiliation? Obviously, as you state in this case, regardless of the Conservative connections of that individual, he was not on the list because of his political affiliation. I can only assume he was on the list because of his potential judicial qualities. Therefore, I felt I was free to bring that name forward.
[Translation]
Senator Robichaud: How many names were on the list that was provided to you for the position offered to Mr. Bell?
[English]
Mr. Toews: Two appointments are required from the province of New Brunswick. We went ahead with one. I would be guessing as to an exact number. There were not dozens of individuals.
Senator Robichaud: Would ten be an accurate number?
Mr. Toews: I do not think there would be more than ten. I was going to say four for some reason. I have been through so many lists in the last while. You could be right when you say ten.
Senator Joyal: Mr. Toews, I totally agree with the statement you made that some initiatives are statements of the values for which we stand as a society. The initiatives are important in determining the general societal framework in which a society evolves.
As a matter of fact, there was a major argument in the Senate when section 318 and section 319 of the Criminal Code were amended. Those sections are the hate propaganda sections of the Code. Many of my colleagues around the table will remember that strong and passionate debate in the Senate.
Section 318 was amended two years ago to include sexual orientation. Section 319 was amended to include the defence of religious-based belief. Did you not vote against that bill when it was in the House of Commons?
Mr. Toews: Yes, I did. I strongly defend the categories initiated by the United Nations as a result of the horrible experiences in World War II. The question of whether one expands those categories beyond what the UN recommended is another issue.
In principle, I defend our hate laws. The concern that was raised in the Keegstra decision by the now Chief Justice of Canada regarding the constitutionality of the provisions causes me grave concerns that further expansion and limitation of freedom of expression in this country may jeopardize the constitutionality of section 318 and section 319.
Section 319 was a good step towards trying to rebalance that issue, but I do not think it goes far enough in protecting religious freedoms in this country. I am concerned about that and maintain that concern. I do not think we should add more categories beyond the experience that legislation resulted from.
Yes, I did vote against that particular bill for a number of sound constitutional and legal reasons.
Senator Joyal: Are you prepared, as Attorney General, to launch an action in court to test section 319 under the Charter?
Mr. Toews: I feel that will come sooner or later. My experience has always been to use references sparingly. For example, in my opinion the whole reference of the issue of same-sex marriage was the wrong way to proceed. It should have gone from the Ontario Court of Appeal to the Supreme Court so that the appropriate factual basis was before the Supreme Court of Canada. We need to be careful before we initiate references.
Having said that, I have been involved in reference to section 193.1(1)(c) of the Criminal Code on the solicitation laws, where there had been seven or eight prosecutions in the province of Manitoba, one of which resulted in an acquittal. The government wanted to deal with that as a whole package, and then took a reference at that point.
I do not feel that this particular case justifies a reference. I could be persuaded otherwise. Some cases may be coming to the Supreme Court of Canada that might do the job for us.
Senator Joyal: In other words, if there is a challenge in the court on the basis of freedom of expression in relation to section 319, you, as Attorney General, since it is a Charter challenge, can intervene in the legal process to support the challenge?
Mr. Toews: That is something that has to be considered. My understanding, though, of the role of the Attorney General, which is why I was so critical of the prior government in dealing with the failure to appeal the decision of the Ontario Court of Appeal to the Supreme Court of Canada, is that I believe the failure to appeal was politically motivated, that it was a convenient political reason not to take something to the Supreme Court of Canada.
That, in my opinion, was wrong. The Attorney General, in that case, should have initiated that appeal to the Supreme Court of Canada. That action would have resulted in a much cleaner legal case. The emotion and controversy surrounding that issue still goes on.
Senator Joyal: Should you not make a reference, then, under the Civil Marriage Act, to request that Supreme Court of Canada determine if that act complies with the Constitution?
Mr. Toews: It is my understanding that the Supreme Court has already said that it is not inconsistent with the Constitution. The question is whether other alternatives are also consistent with the Constitution, and a reference of that act would not deal with those other issues.
I prefer to allow that to proceed either politically through the House of Commons and the Senate or as a result of a challenge brought by a private citizen or an organization.
The Chairman: Thank you, minister.
Mr. Toews: I wish to make a correction at this point. I am informed that there were 35 or 37 names on the recommended list from New Brunswick.
The Chairman: For Senator Robichaud?
Mr. Toews: Yes. I am sorry. I simply do not remember.
Senator Robichaud: I was incorrect, as well. I mentioned 10.
Mr. Toews: I would have thought there would be more, and there may have been certain processes that eliminated various names during the process. I simply do not know.
Senator Stratton: You have explained in part how the office of the DPP differs from the Federal Prosecution Service. I would like to take an example from the past to give Canadians an actual case that they can relate to. How could or would the office of the Director of Public Prosecutions handle affairs, for example, with respect to the recent sponsorship scandal?
Mr. Toews: I am hesitant to associate this position with any ongoing prosecution. I simply believe that it is an opportune time to move ahead on this file. Other provinces have done so. This position has been a long overdue measure that should have occurred.
I do not want to associate it with any other prosecution, because we must remember that most, if not all, of the prosecutions involving that particular issue are done by provincial prosecutors, not federal prosecutors.
The initiative here is simply to restore confidence in the justice system, and we are doing our part in that respect to put aside any question that partisan politics determines prosecutions. If I understand your question, you are asking: What would this particular director do in respect of the past experiences, for example?
Senator Stratton: For example.
Mr. Toews: Let us remember, in the same vein as I indicated that provincial prosecutors were doing most of that type of prosecutions, the federal prosecutors would not second-guess prosecutions that are in the jurisdiction of the province.
I see this prosecutor establishing a working group, perhaps, to look at best practices in terms of prosecutions related to these kinds of situations: to sit down with provincial and federal prosecutors and work out the best practices in this area.
We will not usurp what have been traditionally established as provincial responsibilities, but, as a country, we must coordinate our efforts in the prosecution of these types of offences: put certain principles and guidelines clearly in place so there is a uniformity, as much as can be established in a federal country like Canada.
Senator Stratton: Thank you. I have one last question.
We now have public office holders. When we have the director of public prosecutions, what signals would that position send to these public office holders, not relating to any current situation in the courts, that the law will be strictly enforced? How do we impress upon public office holders that this position will make a substantive change to how they conduct themselves?
Mr. Toews: That is a good point, senator. The position signals not only to the Canadian public that these prosecutions are non-partisan, but specifically to public servants that they are called upon to meet a higher standard by virtue of their office.
Because most of these individuals are well-educated, they will become aware of the existence of the jurisdiction specifically to address those kind of concerns; that this issue will not be somehow lost in the whole amorphous mass of prosecutions that may occur, but that we are singling these out as of specific concern to the government because we want to restore confidence generally in public institutions.
In the same way as I pointed out the hate law provisions, this legislation could send a specific message in our country that one does not, for example, put swastikas on a synagogue, because that act is not simply mischief in the legal sense of that term; it is much more serious, and therefore, we want a specific law that addresses that particular issue.
I believe that this legislation will have the same beneficial educational effect on public servants who, as I believe, have a higher standard to meet than the general public because of the positions of trust in which they are placed.
Senator Zimmer: I would like to thank the minister for appearing today and the effort he made to be here with us. Although Senator Baker has exposed your legal golf score, and other senators sang your praises, and we are colleagues from Manitoba, I will try not to be too biased in your favour.
I wish to continue with Senator Joyal's discussion on the appointment of this individual. There are a number of parts to this appointment and selection beyond that issue, minister. What length of term do you think it should be? What qualifications should the individual have? More important, under what circumstances and by which means could the DPP be removed from office? Let us start with the first part: What length of term do you think it should be?
Mr. Toews: The proposal is seven years, non-renewable. Is that sufficient? I have heard that there is a proposal for senators for eight years, renewable.
Senator Zimmer: By election, not appointment.
Mr. Toews: There are all kinds of other issues. Should it be longer, for example? Should it be 10 or 15 years? There is always a compromise when you come up with any number. There are all kinds of policy factors, and one which you may not have yet considered, senator, is that the director of public prosecutions will now be appointing all of the legal agents who represent him or her in criminal matters. It is now totally within my discretion to appoint all of those legal agents. I do not want to use this in a pejorative sense, but that is a patronage function that will now be moved into another office. We do not want create a patronage system inside the bureaucracy.
Senator Cools: You do not have to create it; it is there already.
Mr. Toews: The turnover is a good thing to ensure new minds, and established problems that you cannot avoid are also avoided by that seven-year term.
Going to the senator's point about the appointment of judges, an issue on the appointment of legal agents that are totally within the minister's responsibilities is that no criteria are set out, whereas when we pick a person from the list of judges they have at least gone through an arm's length body of some kind.
Senator Zimmer: Can you give us an outline of the qualifications you look for in an individual?
Mr. Toews: I could point to various individuals, because in my mind I see a number of people who have those kinds of qualities. Obviously I would like to see someone with strong prosecutorial skills and a history of prosecuting in the courts. However, it is more than just that. There is also an issue of administrative abilities. Lawyers sometimes may be great prosecutors but terrible administrators, or so the story goes. The qualities of being a prosecutor do not necessarily lend themselves to being competent administrators. I am not singling out anyone. The person has to be a good administrator, because dealing with thousands of lawyers, I can assure you, is quite a challenge. In my limited role in line departments, I know how difficult it is when each lawyer has his or her opinion about a particular matter. Administrative qualities and personnel relations are absolutely essential.
The other point that needs to be stressed is their ability to develop policy. I think there will be an important policy aspect to this role as well. The DPP will be able to recommend changes in policy to the Attorney General. Those are qualities that I would look for in a DPP, and I would encourage both the Senate and the House to look for some of those qualities. There may be others, but those are the ones that I would suggest.
Senator Zimmer: Most important, under what circumstances and by what means would you remove the individual?
Mr. Toews: The term "for cause" is a well-recognized, common law principle. It has to be a substantive reason. It is used in many contexts where people have been appointed and are only removable for cause. I would not want to limit it, but it does not necessarily involve a breach of the criminal law, for example. It could involve personal work habits that compromise the ability of the office to function efficiently. It can be very broad.
Senator Hays: I have been listening and reading a bit, and the best impression I can get on the director of public prosecutions is that the position is not designed to address any mischief of which we are aware but, it is to address reinforcing the perception of justice not only being done but being seen to be done. We create a new position, restructure, and add to the bureaucracy. The maxim in my mind does not come from my experience as a lawyer but in dealing with farm machinery: If it ain't broke, don't fix it.
I have had drawn to my attention a very interesting piece by someone who served as Deputy Minister of Justice in Manitoba when you were Attorney General, Bruce MacFarlane, a paper entitled Sunlight and Disinfectants: Prosecutorial Accountability and Independence through Public Transparency. I would quote his conclusion:
... as I have argued ... a structure itself may end up acting as a lightning rod for public and political discontent. Rather than focusing on positive values such as independence, accountability and public confidence, the mere existence of the structure can result, rightly or wrongly, in fostering quite the contrary: public mistrust, and the belief that the structure is accountable to no one.
I wonder if you would share with us the processes that have brought this initiative forward in that context.
Mr. Toews: Thank you for those good questions, senator. If "if it ain't broke don't fix it" was the principle with which we guided our lives, most of us would still be driving Model Ts. There was nothing wrong with the Model T.
Senator Hays: It was a great car.
Mr. Toews: The point is that improvements can be made even if something is not broken. That is really the emphasis that I have been trying to communicate to my staff and to the public. As one of the senators opposite you indicated, this is part of a development. We have seen this develop in Nova Scotia, British Columbia and Quebec. We are strengthening prosecutorial independence by statutorily endorsing these principles. By the way, the issue of the relationship between the RCMP and the government was raised in Justice Hughes' report on the APEC inquiry. Justice Hughes indicated that we have great common law principles that protect the RCMP and make their decision-making process independent, but does that mean that we should not strengthen that through statutory provisions? Justice Hughes recommended we do that. We have not done that in that case yet, and that might be a development that we should in fact consider. It is something that I personally advocated, but it is not my area of responsibility at this point. The issue is part of a development of strengthening these particular principles that we cherish in our legal, political and judicial systems.
I respect Bruce MacFarlane; I served with him, and I continue to meet with him from time to time.
There is always a danger if you create an institution that is not sufficiently responsive that somehow it becomes as fossilized as other institutions that are not sufficiently responsive.
The Chairman: Those are fighting words.
Mr. Toews: I was not thinking of any particular institution. I will have to learn to be a little more politically sensitive. We have tried to put numerous safeguards and overrides in this legislation. One of them is the seven-year term in order that we do not institutionalize bureaucratic patronage. We also have the override of the ability of the Attorney General of Canada to send a specific direction on a policy basis by publishing it. I believe that is done in British Columbia, for example, where the Attorney General has sent a specific direction to the Director of Public Prosecution, but it is published. It is open; it is clear. We have kept the ability to intervene in a prosecution and retain the residual ability to prosecute.
We want to have the best of both worlds in this statute; the institutionalized statutory protection of the independence of prosecutors while, at the same time, giving the Attorney General the right, in appropriate circumstances, to intervene, although that intervention must be done in a very public way.
Senator Hays: Mr. McFarlane's point is a good one. By meddling to try to make things better, particularly in a world of increased politicization of things, be it judicial appointments or reinforcing through a director of public prosecutions and other accountability issues that do not have a real need associated with them, can be an invitation to politicize, and that has happened to a degree with the accountability act.
You might comment further on that, but I think that should guide public policymakers in addressing real issues with real solutions.
Mr. Toews: It is good advice, senator, that we not move prematurely on a particular issue. I think that in this case we would not be moving prematurely. This is something that could have been done in the last five to 10 years based on the report of the Law Reform Commission and on the initiatives of other provinces. In fact, we get to benefit from the mistakes that other jurisdictions have made. However, in looking at their experience with this, there are not any significant issues that I would mark as a concern. Generally speaking, they have been positive developments and we should take advantage of those and not wait for a crisis to occur.
Senator Cools: I believe that the intent of these provisions is to do much good, but there is a niggling concern that we are involving ourselves in some naiveté, and I will tell you why. You are talking about the state of national justice. I am a great believer that Parliament has a duty to superintend the state of national justice in the country. Unfortunately, when we say "political," you mean political in a partisan sense.
One of the largest problems this country has faced in many years is that the administration of justice has been greatly politicized, and it is politicized inside the police and the prosecutors. For example, when prosecutors are zealots in a particular ideology, there can be waves of prosecutions. We had a 10-year period in this country when any man accused of sexual assault was virtually carried away without a trial, because of zealots in these positions. The day is over in this country when a minister of justice will ask a judge to acquit a friend. This is not the problem. The problems are inside the systems, and that is why we have had a plethora of wrongful convictions in this country in the past many years.
I did a study, in which I have not been able to interest any Minister of Justice, on false accusations made against men during divorce proceedings. I was amazed that I could not get the then-Ministers of Justice interested. One judge described it as the weapon of choice at a certain period of time. I am talking about the phenomenon of, usually a woman, falsely accusing the man within a civil proceeding of abusing a child as a strategy to get sole custody. I have paid a fair amount of attention to that matter.
To come to the matter at hand, I admire and laud the message that you are trying to send. One of my concerns on the phenomenon of this new position is that it is embodied in its own act. That sets off my alarms because I know that systems begin to creep. In a couple of years there will be another amendment and, before you know it, there is a whole new creature in accordance with the image and vision of someone, and we may never even know who that someone is.
There has been a movement afoot in this country among people who I would describe as the legalists to take the position of the attorney general out of the cabinet and out of the House. A few years after Confederation, Sir John A. Macdonald, who personally authored the department of justice act, took unto himself the role of Attorney General and Minister of Justice concurrent with being Prime Minister, because he understood the inherent difficulties in these situations. As you know, those two positions are one in Canada. The British did not have a minister of justice. Canada, at the time of creating a ministry of justice, and the attorney general's ex officio, the minister of justice, was essentially, they thought, at the leading edge of those in the U.K. who were advocating a separate ministry of justice to look after the thousands of administrative details with which you are burdened.
Two years ago, the government did away with the secondary law officer of the Crown, the Solicitor General. The Minister of Justice is the chief law officer of the Crown and the Solicitor General is the secondary law officer. I complained at the time, but they went ahead and did it. I view that as part of the whole process. What we have here is, to my mind, the first step in moving the Attorney General and the prosecutorial process out from being a minister, out of the House of Commons. I mean this movement has been afoot for a while. To prove my point, all we have to do is look to the clauses in the bill that govern the removal, the tenure and the term, and the removal of this new DPP.
Looking at clause 5, my reading is that position is irremovable. If you look at the page 106 of the bill, subclause 5(1) mixes a cocktail of removal procedures. It mixes the phenomenon of tenure during good behaviour along with tenure for fixed term of seven years. It also involves tenure during pleasure. It talks about removal at any time. It mixes in, and does not say an address but also mixes in, removal. It speaks of a resolution of the House of Commons only, not the House of Commons and the Senate. Each of those methods has a distinct history: During pleasure, during good behaviour. Minister, your staff will not tell you that if you interpret that clause, that person is irremovable. The next subclause states,
5(2) At the end of the Director's term, the Director shall continue in office until his or her successor is appointed.
A minister can simply not make an appointment for many, many years. We went without a chief librarian for many, many years. Minister, I am inviting you to look at some of these questions with great detail. The phenomenon of a removal by address is peculiar and one that very few people understand. If, under a motion to remove an office-holder on a minister of the Crown and once that is commanded by legislation, if the minister does not get his desired wish as articulated in the motion, the minister is forced to retire. The reason we have not removed a judge by an address in the last 140 years, is not because there have not been bad judges; it is because the situation is fraught with political danger. As you know, in British history, the last judge removed by the address was Sir Jonah Barrington. This is why I keep encouraging us to pay more attention to the actual scripting and drafting of these bills. If you will recall, many years ago, we had a disaster called the Judge Landreville affair. The motion to remove him originated in the Senate. The government at the time, I believe, — I would have to look this up — understood very clearly that if it were of the instance of a minister, they were at risk. Whenever a statute or, as in the cases of the judges, the BNA Act commands an address, a removal by an address if a minister of the Crown asks the House and fails to get it, that minister and even the government may fall. It is an extremely difficult matter because it has to do with the misadvising of the House and the misadvising of her Majesty on the use of her prerogative. This was why Diefenbaker ran into the difficulty on the Coyne affair many years ago. I remember he turned it around to try to move it by bill. I keep urging some of us to study these important constitutional questions.
Minister, in this clause, they have thrown in every form of tenure all in one.
The Chairman: Senator Cools, could we ask the minister to respond?
Senator Cools: He may not be ready. I am just asking the minister to think about something.
Mr. Toews: I appreciate that Senator Cools. That was not the option of our government. That was a Bloc amendment.
Senator Cools: We should look at it.
Mr. Toews: All I can say is that is the product of the discussion of the House of Commons. It was not our first choice, and I am mindful of the concerns you have drawn to our attention.
The Chairman: Minister, to be clear to the people who do not have the act before us, can you tell us the Bloc amendment and the change so we can be clear about the clause in question?
Joe Wild, Senior Counsel, Legal Services, Treasury Board Portfolio, Department of Justice Canada: I would be pleased to do that. In the Bloc amendment, we are referring to subclause 4(5).
Senator Cools: No, it is subclause 5(2).
Mr. Wild: If you look at the part that starts "with the support of a resolution of the House of Commons to that effect," that amendment was introduced in the House. It used to simply allow the Governor-in-Council to remove for cause. What was introduced into the House was the concept of obtaining the support of a resolution of the House of Commons to that effect, which effectively means that the DPP can be removed for cause; however, in order to do so, a resolution of the House to that effect must first be obtained.
The Chairman: Senator Cools raised an interesting question about subclause 5(2) that says, "...the Director shall continue in office until his or her successor is appointed." Senator Cools pointed to one of the problems there. Minister, I would love to hear your comments on the senator's good point.
Mr. Wild: If I may, I will speak to that as well. That is actually a common provision in many legislations setting up an appointment regime in allowing for the fact that there is an envisaged finite term. Due to a variety of circumstances, the government may not be in a position to have a successor appointed to commence the day after that envisaged term has ended. It merely is a provision that allows one to continue in the position until the successor is actually able to be appointed and put in the position.
The Chairman: The House of Commons legislative committee on Bill C-2 deleted a function of the director of public prosecutions by which he or she, "conducts, on behalf of the Crown and in respect of prosecutions, any appeal or other proceeding in which the Crown is named as a respondent."
Do you know why this was done and should this specific function not be put back in? Why was that removed?
Mr. Toews: Yes, that is the deletion of paragraph 3(3)(b). The removal resulted from a review of the definition of "prosecution" contained in the act and of the other powers and duties and functions contained within clause 3. It was concluded that respondent proceedings were described by paragraph 3(3)(a) combined with a definition of "prosecution" which includes a proceeding or any appeal related to a prosecution.
The Chairman: It was deemed redundant and unnecessary?
Mr. Toews: That is my conclusion reading this.
The Chairman: If the Attorney General is able to issue directives regarding a prosecution, how will the independence of the director of public prosecutions be ensured? If the Attorney General has the power to give directions to the special prosecutor, where is the independence and freedom from political influence?
Mr. Toews: Both the director of public prosecutions and the Attorney General are guided by the same common law principles on which one initiates a prosecution. That does not change. For example, if there is a hate crimes law prosecution and the director of public prosecutions says I think we should just let it rest at the court of appeal level, there is a general public interest in the matter. The Attorney General says this needs to go on to the Supreme Court of Canada. The Attorney General then can publicly take it over. However, it must be done publicly. That must be published, I believe, in the Canada Gazette as well. That retains that overall broad public interest function for which the Attorney General is responsible, which a director of public prosecutions may not necessarily consider to be important in a particular case.
Senator Baker: I would like to ask one question concerning the proposed conflict of interest act. The House of Commons removed a clause from the bill that required an oath to be sworn by any parliamentarian who had reasonable grounds to believe that a violation had taken place. If you have a complaint to make, you normally swear the complaint in some way. That has been removed from the bill by the House of Commons. Then looking at what follows the commissioner has the power to subpoena witnesses, to demand that persons give testimony — there is a clause there that says the testimony compelled cannot be used in a future proceeding against that person. However, as you know, it can be used to judge his or her credibility in a future proceeding. Then you get to the clause where the commissioner is not compellable, in any action arising out of his or her actions — that is in criminal or civil proceedings. Then you get to the clause where it says that his or her decision as commissioner cannot be appealed to a court, other than under a section of the Federal Courts Act, which places the judgment at the level of a ministerial decision.
In other words, your decision can only be questioned based on patent unreasonableness, which is a decision that is procedurally unfair. That is a very high standard.
Do you think, perhaps, it should be put back in there that somebody should have to swear reasonable grounds to believe? I do not know if you want to comment on that, because the House of Commons has removed it. However, in any other profession — you look at doctors, lawyers, nurses and so on — there is usually, in disciplinary proceedings, an appeal to a superior court in the province in which the proceeding or review took place by that professional body.
There is not in this legislation. In fact, it forbids such a reference to a court on a decision of the commissioner. Here is the commissioner, almighty, making a decision that could ruin somebody's reputation. The testimony given can be used in a future proceeding against that person to establish his or her credibility, but not in substantive ways of laying charges. The commissioner's decision cannot be questioned through civil or criminal proceedings; his decision is final and cannot be appealed to a court.
Do you think that there should be an amendment made to allow an appeal of the commissioner's decision to a superior court?
Mr. Wild: The question, as I understand it relates to the proposed conflict of interest act.
The Chairman: The CIA, you call it.
Mr. Wild: The COIA, but that is okay. It relates to the role of the conflict of interest act and the role of ethics commissioner and the requirement of an attestation by a member of Parliament. What that related to was if a member of the public wished to bring a complaint to the commissioner, they had to go through a member of Parliament to do so. Before the bill was amended in committee, the member of Parliament was required to give an attestation as to the reasonableness of that complaint.
That has been removed so that it is really up to the MPs to decide, on whatever basis they wish, whether or not they wish to bring that information forward to the commissioner, who will then take it into consideration in determining whether or not to launch an investigation.
The idea behind what has happened to the proposed act is you have a commissioner who is reviewing matters that relate to whether or not a public office-holder is in a conflict of interest. Generally, the commission determines whether that public office-holder has violated any of the prohibitions set out in the proposed conflict of interest act — such as the obligation to recuse from debate or voting on the matter where they are in a conflict of interest.
The proposed act sets out a scheme for administrative monetary penalties, where someone has a failure to file the proper reports to the commissioner, of up to $500 fines. In terms of the substantive parts of the act, there is no sanction that the commissioner has other than what we call kind of a shaming sanction, in that he can make public a report about the fact that this public office-holder has violated a prohibition in the act. In doing so, he or she could also, if it involves post-employment aspects — i.e. a public office-holder who has left the public service, and there is a violation — can forbid other public office-holders from having contact with the former public office-holder.
There is no criminal sanction for a violation of an element of the proposed act. In fact, it specifically excludes section 126 of the Criminal Code from operation. The primary policy rationale behind where the sanctions are going to come from is that, ultimately, these are matters that will relate back to discipline and employment. In other words, you are talking about a commissioner who makes a finding — for example, a minister who has violated the proposed act. It is really in the hands of the Prime Minister, who is accountable before the House of Commons and Parliament for whether or not the Prime Minister has then taken the appropriate action in dealing with that issue.
That is the focus of the proposed act. It is through those means as opposed to decisions that generate sanctions that the commissioner would be imposing, which would then necessitate rules of natural justice, procedural fairness and various appeal mechanisms.
Senator Baker: A person's reputation could be totally destroyed.
Mr. Toews: I apologize; I have to leave. However, my officials here, as you can see, conduct themselves admirably. Needless to say, I adopt these answers.
The Chairman: Before you go, I want to thank you on behalf of the committee for coming here today. We know you rearranged your schedule, and that you did not arrive until after midnight last night. We know you had to cancel important appointments, but you have to go back out West now to catch up on some of them.
Mr. Toews: I appreciate the invitation. It may have been an inconvenience, but I think it is very important that I was here and I thank the committee for its invitation.
The Chairman: I would invite Robert Frater and Ann Chaplin to join their colleagues at the table.
Senator Joyal: On a point of order. It is the custom of the committee to address witnesses by their surnames and not by their first names. The committee is governed by the same rules of decorum as the Senate. I would appreciate inviting witnesses by their surnames and not by their first names.
The Chairman: Did I not say Robert Frater and Anne Chaplin?
Senator Joyal: You mentioned the first two witnesses by their first and last names but then you addressed Mr. Wild as, Joe.
The Chairman: I apologize to you, Senator Joyal, and I apologize to the committee if I made that mistake.
Senator Baker: A senator, a member of the House of Commons, a cabinet minister or a public office holder could be totally discredited in the public with no recourse, no appeal procedure, no chance to clear his or her name and no chance to reverse a decision of a fine levied against them for alleged wrongdoing. Mr. Wild, under normal circumstances there is an appeal. Instead, there is a clause in this bill that says there is no appeal.
I will point out that Ms. Chaplin is an expert in this area. As well, Mr. Frater was a participant in the R. v. Regan case in Nova Scotia in which we were talking about the demarcation line between the police and prosecution, and the importance of maintaining that distinction about the word "initiate." Perhaps he is an expert on the use of "initiate prosecutions." An entire case was addressed on this matter in Nova Scotia by the Court of Appeal, in which the other side wished to cross-examine Mr. Frater. The entire case was about the use of the word, as found in the R. v. Regan case before the Nova Scotia Court of Appeal. Why not include in the bill the facility to appeal to a superior court judge, as included in every other piece of legislation, I believe, governing professional alleged misconduct? Mr. Frater, why are the words "initiate prosecutions" in this bill?
Robert Frater, Senior General Counsel, Criminal Law Section, Department of Justice Canada: To clarify, I was counsel for the Attorney General in the Regan case both in the Nova Scotia Court of Appeal and in the Supreme Court of Canada. We went into that case to discuss with the court what the line is between the police and the prosecution and how the relationship had evolved over time. Our concern was that the trial judge in that case had suggested that they are completely separate. In fact, that is not the case because prosecutors are involved with police before charges are laid. For example, if you want a wiretap in this country, as you pointed out, senator, there has to be an agent of the attorney general present for the application. Ms. Proulx pointed out that in many situations where charges cannot be initiated without the consent of the attorney general, such as war crimes prosecutions, genocide, hate crimes, et cetera. Many crimes require the consent of the Attorney General. In that sense, certain offences are initiated as matter of law by the Attorney General. However, Bill C-2 does not adopt an American-style prosecution whereby DPPs would have their own investigative force to prepare the investigation, after which the charge would be initiated. Things would be just as they are now where the police or other investigative agency would do the work, come before the Attorney General, and have the Crown review the charge, depending on the jurisdiction, before it is laid. The bill is not intended to signal any kind of change in that respect.
Senator Baker: Is there an objection to removing the word "initiate" each time it appears in a general sense or do you perceive that to be a problem? Do you wish to answer that?
Mr. Frater: I am saying that it reflects reality in a number of situations in that prosecutions would not be initiated without the consent of the DPP under the proposed new system. It is an accurate description of what will occur under the proposed new system, in some cases.
Senator Baker: Mr. Frater, there was the Marshall inquiry, the Martin report and now the Lamer report, which addresses this question specifically and says that there should not be a blurring of the line to the extent that there is a participation by the Crown prosecutor in the investigation of a particular offence in initiating an actual laying of charge. Yes, they are there for consultation purposes, as is the case in several provinces, but there is not to be a blurring of the line when it comes to the actual initiation of the indictment and the investigation that takes place.
Surely, though, you recognize that. I understand what you are saying in general terms, because that was the substance of your affidavit in the Regan case. Surely you recognize that you cannot blur those two functions.
Mr. Frater: I do not believe it is the intention of the bill to blur the functions. There is nothing about the bill that ought to be perceived as affecting the independence of the police or other investigative agencies. The bill recognizes the reality that some cases are not initiated without going through the prosecutor.
Senator Baker: I do not wish to belabour the point but the Regan case, in which Mr. Frater was involved, used the phrase "initiate a prosecution." The case involved the prosecutor's role in initiation of prosecutions, of which you were the main subject. The question was why you should not be cross-examined. Is the word "initiate" in the proposed legislation for any particular reason?
Mr. Frater: With respect, senator, I am having some difficulty with the case because there was no affidavit from me in that case. My conduct was not at issue in any way.
Senator Baker: Allow me to interrupt.
Mr. Frater: Are we still talking about the Regan case?
Senator Baker: The reference is the Nova Scotia Court of Appeal, Honourable Justice J.A. Cromwell, in Chambers, in the R. v. Regan case. I will read the decision:
... it is the Respondent's position that the Respondent ought to be permitted to cross-examine the affiant on the affidavit which is tendered in support of the application;
You were the affiant on behalf of the Attorney General of Canada, or did you know that this proceeding took place?
Mr. Frater: I am sorry. What you are speaking about is on our original application to intervene in the proceedings in the Court of Appeal. Counsel for Mr. Regan took exception to the Attorney General attempting to intervene in that case and sought to cross-examine on the affidavit.
Justice Cromwell rejected that and allowed us into the case because we wanted to make general submissions about the demarcation between the prosecution and the investigator. It was not a decision about general principles, about whether initiation ought to occur; it was a decision about whether we could be helpful to the court. Justice Cromwell decided that we could be.
Senator Joyal: Before I address the witnesses, Mr. Chairman, I have a request to make, through you, to our library research analyst. In the study this morning, it came to our attention that some sections of the bill refer to the House of Commons but fail to recognize a similar role for the Senate.
I want to draw your attention to proposed section 121(5), page 106. The officers mentioned that in that particular instance the addition to the bill was the initiative of the Bloc Québécois. I am not surprised that the Senate has been omitted in a motion introduced by the Bloc Québécois.
There are other sections in the bill, for instance, with regard to the Public Appointments Commission and the appointment of members, which is mentioned at page 176, where, at the bottom of the page and at the top of the page, the Senate is also omitted.
My request is simply to ask the library research analyst to save us the trouble of rereading the bill and, with that in mind, to come back to us with an analytical table whereby the Senate should be restored in its constitutional duty, at par with the House of Commons, on the basis of the Constitution of Canada.
In the past nine years that I have been in Parliament, I think we restored the status of the Senate eight or nine times. Sometimes the omission is due to the drafters and sometimes it is due to amendments in the other place, but I think that should be taken care of in our committee at a later date.
The Chairman: I agree, Senator Joyal. Would you mind putting that very question to these witnesses, to ask if they know anything about it? I would like to put the question.
Are you able to tell us why the Senate, as one of the three parts of the Parliament, was excluded in many sections of Bill C-2?
Mr. Wild: I am not sure about "many sections." There are certainly the two sections that the senator has raised. With respect to the first one that he raised, which involves the DPP, as I noted, that particular wording comes from an amendment proposed by an opposition party at committee. It reflects that thinking. It is certainly not an amendment or language that had been proposed by the government. The other section to which the senator refers, with respect to the Public Appointments Commission, it is the same issue in that parts of that text were touched on by amendments that were proposed by opposition parties. However, in that particular case, I would not suggest that there is a deliberate oversight. It may have been a deliberate decision not to include the Senate, given the particular role of the Public Appointments Commission in the executive of government, and it may have been, frankly, reflecting a decision that the House is the appropriate body to have involvement in that particular appointment.
Whether or not that is common practice, I cannot speak to. In terms of those two sections, that is pretty much the extent of my knowledge.
Senator Joyal: I would like to come back to some of the issues of the bill, especially the retroactive nature of some sections of it. Who in the Department of Justice paid attention to the possibility that there may be retroactive effects to at least two sections of the bill, as far as I can see? On which argument were you able to contend that the principle of fundamental justice should give way to what section 1 of the Charter states, that is, what is reasonable and acceptable in a democratic society?
Mr. Wild: It may be helpful to go to the specific sections to which the senator refers. Generically, there is no retroactive application in Bill C-2. There is, however, retrospective application. The distinction between the two is not always easy to discern, but there is a distinction.
Retrospective means when a law comes into force and applies to an identified group. It is not retroactive in the sense that the activity that took place between the time that group was acting and when the law comes into force, it does not suddenly become illegal in the sense that they can now be charged or suffer some sanction for what occurred during that period. However, after the law has come into force, the continuation of that activity into the future becomes illegal or subject to sanction, however it is framed in the bill. In that sense, it is what we call retrospective. It is not retroactive and it does not raise Charter issues, given that it is a retrospective application.
If the senator would like to point to specifics, I would be happy to walk through the specific details of those aspects of the bill where there is a feeling that there is a retroactive application.
Senator Joyal: If you deprive someone of a benefit later, after the fact, when the person was not aware, that if the person involved himself or herself in a kind of activity, that he or she would be deprived of another benefit further on down the road, you are affecting the rights of that person.
You know well the examples. Other people were involved in the transition team in the Prime Minister's Office — we referred to that in passing yesterday with the other witnesses — or with the political party which began the initiative at the time when the bill was not even tabled. After that, the bill will have an impact at the moment of its adoption, which could impinge on the rights of a body. I do not want to qualify the body.
To me, something in that harms fair play. We might sometime want to finesse on the interpretation of retroactive versus retrospective, but for the person on the street who looks at this, he will say that this is not fair. The rules of the game can change, and I am totally supportive of changing the rules of the game, but they should not have application to a situation whereby the person honestly, and with the best legitimate intention, involves themselves in that activity. That is why I think the bill in that aspect harms equity. In the Senate, especially, we are sensitive to issues of neutrality. In one case it applies to the Tory party and in the other case it applies to the Liberal Party. We have to be balanced. That is an important element for the Department of Justice. When you draft a bill, you must be conscious of the implications of when it will be implemented and have respect for the fundamental elements of common law. As you know, equity is a principle of common law, and common law is part of the law of the land in Canada. This is an important point. There has been an oversight on this in this bill.
Mr. Wild: With respect to the transition team, the bill is crafted such that — going back to the language I just used — it has a retrospective application to the transition team. Once the bill comes into force, if members of a transition team are identified by the Prime Minister, the prohibition on lobbying activity then kicks in. It does not in any way affect any conduct that the transition team members, after they have left the transition team, have been engaged in between the time the transition team disbanded, normally around the swearing in of the Prime Minister, and the time that proposed Bill C-2 comes into force. During that period, there is no issue to the conduct and the bill has no application to that conduct. However, when it does come into force, if the Prime Minister identifies those members of the transition team, if all of that occurs and the ban applies, it applies, and activity that they are engaged in on the day the ban comes into effect would be activity that would now be banned. — I would add also that they now have, as well, recourse to the Commissioner of Lobbying to seek an exemption from that ban.
With respect to election financing, it is a retrospective application. Anyone who has contributed, prior to the coming into force of the act, the maximum amount under the current rules, is not required to repay any of those funds. There is no criminal sanction associated with those contributions. It simply means that after the coming into force they will have no further room to contribute. From a Department of Justice perspective, those provisions are legal. They are not retroactive in application so they do not trigger the Charter concern around attempting to have a retroactive application of the law. Retrospectivity is permissible and the bill reflects it.
Senator Joyal: I move to another aspect of the bill, which should have been of concern to the Department of Justice. The first draft of the bill contained provisions for secret ballots to appoint officers of Parliament. I wonder who in the department studied the impact of that proposal in relation to section 49 of the Constitution that provides that any vote in Parliament is taken with a voice vote, which is, in other words, through public disclosure of the choice made by the parliamentarian, be he a senator or a member of the other place. What kind of impact did the Constitution of Canada have when you drafted a bill concerning such fundamental thing that is known in any Parliament in the world, which is that when you stand up, you stand up to be counted? This is one of the fundamental principles. You have to stand by what you decide to vote for. To take a secret ballot to vote for the selection of those people implies that normally the choice of parliamentarians might not be that free and it is an implication on the status of parliamentarians. Who in the department evaluated the impact of that proposal in relation to section 49? How did you come to conclude that it is constitutional to think that way?
The Chairman: I do not think the witnesses should have to give names.
Senator Joyal: I do not want names.
The Chairman: The witness can give a general answer, if he would, please, in the few minutes remaining.
Mr. Wild: Of course, another longstanding tradition is that the Department of Justice does not reveal legal advice that has been provided to the government before committees of the House or the Senate. In a general fashion, on the issue of secret ballots, there are differing views. Robert Marleau, for instance, who appeared before the committee in the other place, did not speak out about the unconstitutional aspect of a secret ballot, but merely pointed out that it would be perhaps preferable to do that through a standing order as opposed to doing it through legislation. Recognizing the election of the Speaker is a very different example.
Senator Joyal: That is not provided in the Constitution.
Mr. Wild: The point I am trying to make is that, with all due respect to the law clerk's opinion, there are differing views on whether or not every vote has to be by a voice vote. There are different opinions on whether the institutions of Parliament have the control of their procedures in order to do things by a secret ballot or however you want to put it, a written vote, rather than just having to do a voice vote on every matter. The point that Mr. Marleau was making is a question that is perhaps better addressed through standing orders than through legislation. Ultimately, the government agreed with that as the committee of the other place removed the references to the secret ballot, and the government supported those amendments.
Senator Joyal: I will conclude, Mr. Chairman, with a final question. I know it is late and I appreciate the availability of witnesses.
Of a general nature, I refer here to the section dealing with the public prosecution parts of the bill. I cannot but ask you when I read those sections of the bill what the difference is in what is contemplated in the bill as a model of public prosecution from the one that the Americans adopted and has been incarnated by Kenneth Starr. Where in the American model of "public prosecution" and this model are there similarities and differences?
Ms. Proulx: In terms of the reference to Kenneth Starr, in the United States there has been a statutory creation of a special prosecutor. Kenneth Starr was in fact a special prosecutor. It originated, if I am not mistaken, during the Watergate scandal.
The special prosecutor has a specific mandate given to him or her by the government of the day in relation to a specific issue or affair and is given powers that are much broader in terms of ability to investigate. In fact, the special prosecutor controls and conducts investigations with respect to the mandate. That is very different from what is contemplated for the DPP. In fact, the DPP act will entrench in legislation the existing practice whereby police independently conduct investigations, often in consultation with the DPP.
Senator Joyal: Section 15 does not change that?
Ms. Proulx: Are you referring to section 15 of the DPP act?
Senator Joyal: Yes, at page 109.
Ms. Proulx: It does not. Section 15 of the DPP act allows, in what will be very exceptional circumstances in cases, the Attorney General to assume conduct of a prosecution that has been until then conducted by the DPP. In other words, the DPP will have conduct of a case and the Attorney General, after consulting with the director of public prosecutions, may give a notice of intent, which must be published in the Canada Gazette, and actually take over a case. It is anticipated that it is a power that will be used very sparingly.
Senator Joyal: The power is still there. In other words, we could reinstate a public prosecutor on the basis of a notice given by the minister to the director of public prosecutions that the Attorney General is taking over and appoints another prosecutor to deal with that specific case.
Ms. Proulx: In respect of a specific case, yes, the Attorney General has the ability, as I said, in rare circumstances, to take over a case. Once that takes place, the Attorney General can appoint either in-house counsel to take over the case, or may appoint a legal agent to do so.
Senator Joyal: What surprised me and led me to think twice is that there is nothing in section 15 that qualifies the circumstances in which the Attorney General can make that decision.
I will read the proposed section.
15 (1) The Attorney General may only assume conduct of a prosecution after first consulting the Director. The Attorney General must then give the Director a notice of intent —
this does not mean that the motives must be stated —
— to assume conduct of the prosecution and publish it in the Canada Gazette without delay.
It is the notice of intent that is published in the Gazette. It is not the reasoning why the Attorney General is taking the initiative.
Ms. Proulx: That is correct. It is the notice of intent that is published in the Canada Gazette, and I would add in closing that the Attorney General is accountable to Parliament. Should he or she choose to take over conduct of a case, is a matter for which he or she is accountable.
Senator Joyal: I do not want to be cynical, but provided there is no secret ballot.
Senator Baker: I do not want members of the committee or anybody watching this to think that I was trying to put Mr. Robert Frater or Madam Proulx on the spot or question their integrity. They have had long and distinguished careers in case law, and I congratulate Mr. Frater and Madam Proulx for the excellent job they have done over the years. Some of their cases go back to when they were students at law, which are now reported in QuickLaw. I will not tell you how long ago that was, Mr. Chairman.
Senator Andreychuk: To follow up on an important point, we are saying there is a change about Attorneys General, and perhaps there is on a reporting basis. However, Attorneys General in the provinces already have the right to assign and reassign prosecutors. What is the specific change that we would allow that is not already part of the body of our prosecution law?
Ms. Proulx: You are quite correct, senator, that at present, Attorneys General may reassign cases from prosecutor to prosecutor, and sometimes, from legal agent to in-house prosecutor, and vice versa.
Senator Andreychuk: And out to contract?
Ms. Proulx: You are quite correct.
The Chairman: Thank you very much. On behalf of this committee, I would once gain like to thank the minister and the representatives who are here from the department. You have been very useful to this committee. We appreciate everything you have done. Honourable senators, this meeting is now adjourned. Thank you.
The committee adjourned.