Proceedings of the Standing Senate Committee on
Legal and Constitutional Affairs
Issue 12 - Evidence, October 19, 2006
OTTAWA, Thursday, October 19, 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 9 a.m. to give consideration to the bill.
Senator Donald H. Oliver (Chairman) in the chair.
[English]
The Chairman: Honourable senators, this is our twenty-seventh meeting in relation to Bill C-2, providing for conflict of interest rules, restrictions on election financing and measures respecting administrative transparency, oversight and accountability. This bill is more commonly known as the proposed federal accountability act.
As senators, our witnesses and members of the public both here in the room and across Canada on television know, this bill reflects a central portion of the new government's agenda and is one of the most significant pieces of legislation brought before Parliament in recent years. The committee is giving the bill the extensive, careful and detailed study that it deserves. During more than 90 hours of meetings to date, we have heard more than 140 witnesses. They have discussed topics ranging from accountability, ethics and conflict of interest, parliamentary privilege, political financing, the parliamentary budget office, access to information, privacy, whistle-blowing, audit powers, procurement and lobbying.
At this meeting, we will be focusing on the question of the director of public prosecutions. To begin this session, I am very honoured to welcome the Right Honourable Antonio Lamer. As one of Canada's finest jurists, he hardly needs an introduction. He has had a stellar legal career, which included being appointed to the Superior Court of the Province of Quebec in 1969 and the Quebec Court of Appeal in 1978. In 1980, he was appointed to the Supreme Court of Canada, where he became Chief Justice of Canada on July 1, 1990. He continued his distinguished career in public service by being appointed Communications Security Establishment Commissioner in 2003, a position he held until earlier this year. He is now with the law firm of Stikeman Elliott and is a member of the Quebec bar.
[Translation]
The committee thanks you for being here. I will now give you the floor, following which we will have a question and discussion period which, I am sure, will be most useful to the members of the committee.
[English]
We are delighted you are here and look forward to hearing your presentation.
[Translation]
The Right Honourable Antonio Lamer, former Chief Justice of the Supreme Court of Canada, as an individual: Honourable senators, I will begin my presentation in French. The word "presentation" is perhaps in this instance a little bit of an overstatement.
Indeed, having appeared a dozen and a half times before Parliament and having heard others some fifty-odd times, you will most certainly find my presentation somewhat out of the ordinary. Allow me to explain.
[English]
Indeed, I was in Montreal last week on business for Stikeman Elliott, until Saturday afternoon. I phoned back each day, at the end of the day, to find out what happened, to see if the barn had burnt down, to be told on Thursday afternoon late that you honourable ladies and gentlemen wanted to hear from me about Bill C-2. That is all I knew.
When I got back to the office Monday, after having been away a whole week, I had a pile of stuff on my desk to clean, and it was not before late Monday night that I started gathering material. Thanks to the help of Mr. Lafrenière, I received a stack of information, and I went through the whole darned bill until I found out that you wanted to hear me on a chapter thereof, which you have just mentioned. I must say I appreciated that error, because it gave me an opportunity to read the bill. I fully agree with you that it is a tremendously important bill and touches upon very fundamental questions regarding our country.
As I said, it was only on Tuesday, by reading the material sent to me, that I realized that I was to focus on the DPP, so then I scrambled. Again, thanks to Mr. Lafrenière, I was able to pull together some material regarding DPPs. I read articles by Janice Tibbetts, as well as Greg Weston's article. I read the report from Mr. Raaflaub, his book. I did not have time to read it all, but I read the conclusions of Mr. Justice Kaufman who wrote extensively on the subject of a DPP for Nova Scotia. That is about all I read. As well, I made a couple of telephone calls to people I thought would have some knowledge about this that I might not have. One of them was Professor Ratushny, who directed me to further reading. I have been reading about DPPs all week.
[Translation]
You have before you a witness who is used to studying matters in depth before giving an opinion.
And before giving an opinion, I must admit that circumstances were such that I lacked the time to be able to comply with this Committee's rules, consisting in preparing a 10 to 15 page brief and providing it at least two weeks in advance.
I must say that in order to waste no time, I drafted this presentation while awaiting my meal in a restaurant. I am however nevertheless prepared to take your questions, if you still wish to put some to me.
[English]
I am now in your hands, and those of the honourable senators of your committee, with the hope that I may be of some help to you, notwithstanding the situation I have been put in.
The Chairman: Thank you very much for that introduction. Is there anything else that you would like to say generally about the DPP sections in Bill C-2, the appointment process, or anything else that caught your attention while reading those sections, or would you prefer to go directly to questions?
Mr. Lamer: I certainly have ideas about DPPs — about having and not having DPPs — but I think what would be best is for me to address your questions, because you are concerned about them. In that way, I will be directed towards what interests you. I could talk for two hours about the different aspects of DPPs.
I could say that we have been living without a DPP since Confederation. British Columbia does not have a DPP, but has an arrangement very similar to a DPP structure. Nova Scotia has one, but they had trouble with him or her, and it has brought about the Kaufman study. I know about the DPP of Newfoundland. I had some adverse comments, I would call them, in my report when I inquired into three murder cases — and I lost a friend. So, I can say many things, but I do not know what really interests you. By asking me questions, I can be more relevant and more useful to you than just talking away about DPPs.
Senator Baker: Chief Justice Lamer has been in Newfoundland now for the past three years, off and on, and we have watched him many evenings on the news where they took clips of the day's proceedings. The one that stands out to me, Chief Justice, was where you had said to a counsel, "We should move on now because this has been going on too long." The counsel responded, "But, Your Honour, I have only been going on for two hours." You responded, "Counsel, two hours with you is too long."
I am pleased to report that that counsel has now turned to politics. He is running for PCs in a by-election in the province. A brilliant young man, as you know.
Mr. Lamer: I guess he is now limited to question periods of two minutes.
Senator Baker: Chief Justice, yes, you are correct, we did have a Director of Public Prosecutions in Newfoundland. With the presentation of your report, the Director of Public Prosecutions stepped down in order to allow a complete review of the office, as was your recommendation. That review is being done by a former justice of the Court of Appeal. He will be making some recommendations.
I, too, have been reading recently — I have been trying to read your report. Here it is. It is, I imagine, about 1,000 pages, or 350 in the short version.
Mr. Lamer: I will leave you a bound version.
Senator Baker: Wonderful. It has not arrived here yet. The Government of Newfoundland only released your report on June 21 of this year, less than four months ago. When your report was released, everybody was very appreciative and supported your recommendations, especially the government of the province, who said so in a press release.
I should like to read a paragraph from that press release.
Establishing an independent review of the Office of the Director of Public Prosecutions is one of the recommendations...government will implement immediately. Commissioner Lamer recommends that an independent review be called to ensure that steps have been taken or will be taken to eliminate the "Crown culture" that contributed to the wrongful conviction of Gregory Parsons, and was also evident in the prosecution of Randy Druken.
You recommended that a Crown policy manual be amended for the office of the Director of Public Prosecutions and those who prosecute as Crown prosecutors. You recommend certain guidelines. You recommended, for example, the withdrawal of a charge where the Crown attorney decides that reasonable and probable grounds did not exist to lay the charge in the first place. You also recommended that where the Crown attorney determines that the evidence is so manifestly unreliable that it would be dangerous to convict, then, of course, request an acquittal or enter no evidence.
What if, Chief Justice, the Crown attorney or the Director of Public Prosecutions were a part of the decision making or had exclusive jurisdiction to make the decision to prosecute? Then, of course, if they made the decision to prosecute, they certainly would not have that second look to find out if there were reasonable and probable grounds that existed to lay a charge, because they would have been the ones who determined whether or not a charge would be laid.
I think that is the key question here. When you read the bill, you noted that the director of public prosecutions would decide whether to initiate a prosecution. If the director decides to initiate a prosecution, he or she would request the commissioner to cause an information in writing and under oath or solemn declaration to be laid before a justice. If the director of public prosecutions decides to initiate a prosecution, the director would request that the commissioner lay the charge. Further on in the proposed act, it now states that no prosecution for an offence under this proposed legislation may be instituted by a person other than by the director of public prosecutions.
My question to you is quite simple: In view of your recommendations in Newfoundland, what would your opinion be on an office called the director of public prosecutions that carries out prosecutions of all federal acts, except the Criminal Code, in which they can initiate prosecutions and, in some cases, as outlined in this proposed act, actually decide on whether or not a charge will be laid?
Mr. Lamer: Things vary from province to province, but I will talk federally. Right now, my understanding is that there exists, at the federal level, a comprehensive policy for Crown prosecutions, which was not the case in Newfoundland 15 years ago. Let us not forget that what I said was the result of what I heard concerning what happened 13-15 years ago. There were three murder cases, not on the same day. It has to be in the context of the fact that there was no police — the police must be satisfied and have reasonable belief that the person they are to accuse is guilty.
In Newfoundland, as distinct from other provinces, the police do not go to the Crown prosecutor. They may go to the Crown prosecutor but they do not have to go to the Crown prosecutor. They rarely went to the Crown prosecutor. The police had a kind of independence — and, I believe, that is still the case. Once the charge is laid, the Crown assesses whether there is a reasonable expectation that there will be a conviction. If a Crown prosecutor believes there is not a reasonable expectation that there will be a conviction or, I added, if there is a conviction, God help us, it would be unsafe. That is when miscarriages of justice occur and innocent people are found guilty — when it is an unsafe verdict. When that happens, you withdraw the charge in case a jury would find the accused guilty.
There was no police policy at the time according to the testimony of Staff Sergeant Peddle, if I recall. There was a very short report setting out Crown policy that brought about the recommendation that the director of public prosecutions, DPP, set up a committee composed of the law society, et cetera. I will not go into that report; you have Bill C-2 before you and that is enough. The police developed a policy before I handed down my report. At the outset, I said I hoped my report, by the time I handed it down, would be obsolete. I wanted them to listen and to start fixing what went wrong 15 years ago that sent at least one innocent person to the penitentiary, rather than wait for my report.
The Crown did nothing. The Crown did not move. I do not know whether it is moving because I did not follow it up. I assume that something is happening and there will be a Crown policy. At the federal level, the DPP will be acting in accordance with a Crown policy that he or she will have elaborated, hopefully not alone but with the Canadian Bar Association, law societies, police and the Crown prosecutors — perhaps in consultation with Manitoba where there is a wonderful Crown policy in place that operates very well. If senators recall, Bruce MacFarlane testified on this issue. I must say, it was the most impressive testimony I had heard in the three years that I sat as Commissioner.
Senator Baker: Mr. MacFarlane will testify here today.
Mr. Lamer: You will have a wonderful witness, who will be much better prepared than I am.
The director of public prosecutions can always be overruled by the Assistant Deputy Minister of Justice, if I did not misread, but only in exceptional cases. There was a debate on public interest and general interest, which I read about. Let us consider whether it might be a matter of public interest, which I understand would obviously include general interest. If there is a public interest or a fundamental policy issue, then the attorney general can move in through the deputy attorney general and take over the case, if I have not misread this bill. Therefore, while the deputy minister of justice is at arm's length from the politician — the minister of justice and attorney general — it is not an abdication of the government to give him a complete free rein. There is always that possibility.
Let us go back in history a bit. I have been in the business for 53 years, I believe it is, but there are two particular instances that I recall. Allow me to preface by saying that I will not mention any relevant names because the people are old or dead and I do not want to hurt anyone's feelings or the memories held by their children and grandchildren. Although I might be wrong, I recall only two instances where there was a perception, and I say the word "perception," of interference by the political master in a prosecution, although I am not saying whether that perception was well- founded.
Things have been going well in the justice system at the federal level, where the ADM has been enjoying in a constitutional sense the position's arm's-length status from the minister, even though he is an employee of the Minister of Justice, before the minister would interfere in a prosecution where the ADM would be acting as the DPP, in accordance with the act, pending an appointment of one. There is not a real problem because I have not seen recently the need for a DPP. However, it is not a bad idea to have a second arm's-length position in the political arm of justice. It is rather akin to fire insurance, in that it is not because you have never had a fire that you do not have fire insurance.
The DPP would represent that additional insurance for the independence of the prosecutorial system at the federal level.
Senator Baker: Let me ask you specifically then, should the office of the DPP be directly involved in the decision to lay a charge?
Mr. Lamer: I say exceptionally; Kaufman says very seldom. I will use the word "exceptionally," but the exceptions might be many. It all depends on the mood and what is happening and what kind of government you have.
Let me go back a bit into the background. When Don Christie was ADM, criminal matters, he was followed by Landry. I knew Landry when he was the head of the office of federal prosecutors in Montreal, which, at the time, was the largest crime district in all of Canada. I am talking about the Montreal of the nightclub days.
Mr. Justice Landry — now retired, I think — when he was the head of the office very seldom was told anything by Don Christie, who became eventually associate chief judge of Tax Court. Very seldom did the ADM pick up the phone; I know because I used to go have lunch with Landry and we would discuss these things. He was the one the junior prosecutors would go and see before entering a stay, withdrawing a charge or doing something that was out of the ordinary.
It is the same thing with the DPP. Landry would speak to Don Christie only when there was something very special. There has to be restraint and that has to be written into the policy.
Senator Baker: It has to be written into the law, do you think?
Mr. Lamer: You can put it in the law also — I talk policy; you talk law. It should be in the policy that you do not shoot from the hip. Wait until there is really something that requires that you do intervene. That goes right up to the Attorney General or the Deputy Attorney General taking over the prosecution.
Senator Baker: So the section in this bill that deals with the Canada Elections Act, which says that that the director of public prosecution shall decide on whether or not a charge shall be laid in all cases, in every violation, perhaps would not be the best idea in your opinion, is that correct?
Mr. Lamer: I would temper it and say that he should delegate — not abdicate, but delegate. If he cannot trust the chief Crown prosecutor, he should fire him or move him into policy planning, because there comes a point in time where this man or woman will not have the time to handle all the prosecutions. When you think of all the drug prosecutions in Canada that he would have to go through — the decision to lay a charge is not made just by reading the charge; it is by reading everything that has brought about the decision, which is an important decision, to lay a charge.
Sometimes it is easy; you catch the person with the goods and that is it. You do not have to study the matter very long. Other charges require wiretaps. Some wiretaps, you might not realize, require 5,000-page affidavits. I cannot see the DPP going through the affidavits of all of these drug cases or all of these interception applications; I do not think he would have the time to look at every one.
Senator Baker: I was referring to the clause that deals with the Canada Elections Act.
Mr. Lamer: That is a different thing. We are taking away from the Canada Elections Act —
Senator Baker: We are taking the authority to make the decision away from the commissioner.
Mr. Lamer: That is a decision by Parliament.
Senator Baker: And Parliament is supreme.
Mr. Lamer: That is it.
Senator Baker: What do you think about what appears to be a proposed change in the law in Canada relating to the laying of a charge, under three of these four acts here, that could be a summary conviction matter, which, under the Criminal Code, has a time limit of six months? Under various federal acts over the years — like the Environment Act, the Fisheries Act — this was changed, extended to, in some cases, a year and a half to two years from the time the minister became aware of the offence. You have adjudicated some of these cases.
This bill extends the period of time to 10 years under which a charge may be laid. It says here that proceedings under this proposed act may be taken at any time within, but "not later than ten years after the day on which the subject- matter of the proceeding arose."
Mr. Lamer: Which matter is that?
Senator Baker: This would be under three of the acts here — the proposed accountability legislation, the Canada Elections Act and the Access to Information Act.
I am wondering whether you have any opinion. There were reasons given to the committee, of course —
Mr. Lamer: Are these summary convictions?
Senator Baker: Yes, these are hybrid offences that carry penal consequences. They can either be prosecuted summarily or indictable.
Mr. Lamer: If they are prosecuted summarily, it is six months.
Senator Baker: No, it is 10 years under this proposed act. This is an extension of time. It was there before. Let me read that whole section to you. There is an extension of several years to make this a 10-year event.
Proceedings under this Act may be taken at any time within but not later than five years after the day on which the Commissioner became aware of the subject-matter of the proceedings and, in any case, not later than ten years after the day on which the subject-matter of the proceeding arose.
These exact same words are used and transplanted in the other acts.
I am wondering what your opinion is of that, if, as you suggest, the prosecutor representing the DPP decides to proceed summarily, and they would have 10 years in which to lay the charge. I know you have not had time to study it, but you have adjudicated these.
Mr. Lamer: I did not have time to start digging into the different aspects. It seems a very unusual approach to the criminal law.
I realize that in many statutes, for various reasons, the six-month maximum to prosecute has been extended to one or two years; and in one instance, I think in some administrative laws, it went up to five and seven.
The Chairman: Senator Baker, we have just given me a copy of the statute. Could you tell him which page you are reading from?
Senator Baker: That would be on page 32, right at the bottom of the page, under limitation period, clause 65. That is supplanted except for the certain words into other acts as well.
As you were saying, there were certain acts that you have seen over the years that have had that provision in them to extend it in administrative law.
Mr. Lamer: There have been rationales for that.
Senator Baker: What would you think of a provision that is a hybrid offence, where the choice has to be made by the director of public prosecutions to proceed summarily or indictably, which carries penal consequences both ways, and the style of cause would appear as "Her Majesty the Queen v. John Doe"? I gather you do not think very much of that.
Mr. Lamer: I would like to have the right to ask questions of the Department of Justice about it.
Senator Baker: We get your message.
Mr. Lamer: Maybe they have a good reason, but I cannot think of one.
Senator Baker: Chief Justice, let me ask one further question, because the chair, as a former professor of law, is about to cut me off in his professor role.
I would like to ask you a question relating to the roles of the Attorney General and the director of public prosecutions. The Attorney General can remove a prosecution from the director of public prosecutions, and that removal would be public; it would be in the Canada Gazette.
Mr. Lamer: It would be in the Canada Gazette and with good reasons.
Senator Baker: However, let me turn you to something that may raise a Stinchcombe argument, which you have adjudicated many times. At the bottom of page 108, under clause 11, there is a reference to delay the publication of a directive and limit on delay. In other words, there is a secrecy provision in the bill; the Attorney General can send a letter or can demand of the director to remove the prosecution in mid-trial, because the limit on delay reads in 11(2):
The publication of a directive may not be delayed beyond the completion of the prosecution or any related prosecution.
In other words, there is a prosecution in progress and you have a directive from the Attorney General down to the director of public prosecutions for some reason. As you say, the reason stated is: We wish to remove this from your hands, perhaps for reasons that relate to the matter under consideration, in the prosecution. No one knows; it is not spelled out. This provision allows this to be kept secret until the prosecution is completed.
Mr. Lamer: Yes, but it is a withdrawal. Let us not misread Stinchcombe. Stinchcombe is there to disclose evidence against an accused. It is a good question to ask, does evidence or reasons for the withdrawal of a charge against an accused fall within Stinchcombe?
Senator Baker: Do you think it does?
Mr. Lamer: From the top of my head, because we are used to thinking about things a little longer than 12 seconds, I would say no, because the rationale behind Stinchcombe is to enable the defence to prepare its case. If you will be withdrawing the case, the reasons why you are withdrawing it do not meet the rationale for your preparing the case. You are not preparing the withdrawal. With the withdrawal, you just walk out. I think, at first blush, that there might not be a Stinchcombe problem there, but who knows? There are nine different people who might find that there is, but I do not think so.
Senator Baker: The words "initiate" and "institute" are used interchangeably in the director of public prosecutions bill. The words "institute proceedings" and "initiate proceedings" are used interchangeably.
Mr. Lamer: What is the French version?
Senator Baker: We can give two examples. Let us go to page 105.
Mr. Lamer: I am with you.
Senator Baker: It says, "The director initiates".
Mr. Lamer: In French it says "engage."
Senator Baker: My colleagues will support me that I am telling the truth here, although I have difficulty finding the word "institute." It is there three times.
Senator Day: While you are looking, maybe I can make life more complicated. While you are looking for "institute," if you look at "initiates" at the top of page at 104, the French is "engager." That is consistent with "initiate." Therefore, "initiate" is being translated as "engage" or "engager."
Senator Baker: "Institute" will bring you to the director's consent required. That is at the bottom of page 112, at clause 512.
Mr. Lamer: "May be instituted by a person..."
Senator Baker: It reads "instituted," and it is the same word.
Mr. Lamer: It is again "engagées."
Senator Baker: It reads to initiate a prosecution, to institute a prosecution. At what point, in your opinion, would the period be at which your prosecution is instituted or initiated?
Mr. Lamer: It would be when you lay the charge.
Senator Baker: Is it is when you laid it or you made the complaint?
Mr. Lamer: If you are talking about a prosecution being instituted, it is not a prosecution without a charge. You must have a charge for it to be a prosecution. If I can use an old expression, it is not a hue and cry to the police or to, I do not know, the Crown. If you are talking about prosecution for an offence may be instituted, you can think about it before and you can ponder about it but then if you institute it, that means that you have taken the first step, and that first step is the laying of the charge.
Senator Baker: You see nothing wrong with those two words being used interchangeably?
Mr. Lamer: I see something wrong. Parliament should avoid using different words when talking about the same thing.
Senator Baker: Exactly. In this entire process, how important is what has been referred to as the hard second look that must be taken by the director of public prosecutions and his staff before they proceed with a prosecution after charges have been laid? Is that second look that you have identified a Crown prosecutor should take an important part of our Canadian justice system?
Mr. Lamer: Thank goodness, we do not hang them anymore. After hearing what I heard in Newfoundland and cases such as Guy Paul Morin, and Parsons. I can name a series of persons, and I would have liked to see a third look in many of those cases. Therefore, I do not see anything wrong with a second look.
Before putting somebody through the — I will use the French term, le moulinet — the meat grinder of the criminal justice system, which is a very invasive and rough system, you stigmatize a person. You stigmatize even those who are acquitted. You stigmatize even those where they find the guilty person, as in the case of Parsons.
In Parsons, a matricide, he raped his mother and stabbed her 52 times and spent years in the penitentiary. In 1995 DNA comes out with more precision and exonerated him. Two years later, DNA is found and somebody is charged with the mother's death who pleads guilty.
I was riding in taxis morning and night to the Mayfair Hotel, the old Newfoundland Hotel in St. John's. I came across a couple of taxi drivers who, notwithstanding that Mr. Parsons was acquitted, was found to be factually innocent and somebody pled guilty, gave a confession and said he had nothing to do with the crime, still told me he had a feeling Mr. Parsons had something to do with that murder. That was from two taxi drivers, and they are quite representative of the general population.
Therefore, the criminal justice system is an awfully harsh system. You stigmatize people and exceptionally invade their privacy. You ask them where they were on a certain night, with whom, what they were doing, what they ate, what they did and did not do. You invade the privacy of every witness. Sometimes you even ask their age. Presently, some courts do not ask the age anymore unless it is a live issue in the case.
Therefore, a second look will depend on who will be appointed and how he or she will operate. You can have 10 fast looks and two long looks and one good long look. It is not the fact of a second look or this and that. It is the fact that one must always be very careful when one lays a charge. That applies to the youngest prosecutor right up to the top.
Senator Baker: Does that mean the person who takes the second look should not be the person who took the first look?
Mr. Lamer: In my report, you will find I suggest there should always be a devil's advocate within a police squad dealing with major crime. There should also be one within an office of prosecutors. If a detective says he or she received the information from a person, there should be another officer present to question whether that person was checked for drug use. In a case I have experience with, everyone was on drugs. The police were the only ones not on drugs, to the best of my knowledge. A contradictor should be present to check this or that. There should always be that devil's advocate. In that manner, we will avoid wrongful convictions.
Senator Baker: Chief Justice Lamer, in this bill the director of public prosecutions and the prosecutors in that office can initiate prosecutions and become agents for the Solicitor General's office — presently referred to as Emergency Preparedness. They can go in with the police to swear the search warrant of 500 pages you just spoke about, to assist the police and to be aware of everything contained in all those search warrants. The same persons could end up handling the prosecution of the case.
Mr. Lamer: The policy should illustrate that should not occur. We as judges — I say "we" but I have not been a judge for close to seven years now — judges who hear preliminary inquiries do not sit at trial. There is no law that says they cannot.
When I was a young lawyer in Quebec, in certain rural districts where they had only one judge, that same judge would hear the preliminary inquiry and then the trial. That was not a very effective system.
Presently there is a policy in place to prevent that from happening. Quebec has a policy. That circumstance does not happen anymore because there are always two or more judges available within a rural district. That is a question for the policy-makers.
[Translation]
Senator Joyal: Welcome, Mr. Lamer. We are always humbled when we hear you speak, given your great experience of more than 50 years in the administration of justice.
I would like to come back to section 11 of the Bill, on page 108, that we discussed at the very beginning of the meeting and about which you made certain comments, in answer to Senator Baker.
This is the section that reads as follows:
(1) The Attorney General or the Director may, if he or she considers it to be in the interest of the administration of justice, direct that the publication in the Canada Gazette of a directive referred to in subsection 10(1) be delayed.
(2) The publication of a directive may not be delayed beyond the completion of the prosecution or any related prosecution.
I would like to draw to your attention the Canadian Bar Association's report with regard to section 11. I do not know if you have had the opportunity to apprise yourself of it.
Mr. Lamer: No, I have not had the time.
Senator Joyal: I would ask the clerk to give a copy of the report to our witness.
The Canadian Bar Association clearly did an in-depth analysis of Bill C-2 and made a certain number of recommendations to us.
I would draw your attention, if you would, to the bottom of page 19 of the brief, and if you allow me, I will read the text along with you.
Under the proposed Act, the Attorney General would have authority to intervene in particular cases or to give advice...
Mr. Lamer: I have an English text.
Senator Joyal: It is the paragraph following the first recommendation. I would like someone to provide you with the text in French. Do you have it?
Mr. Lamer: I do not know if the page numbers are the same in English and in French.
Senator Joyal: Please take my copy and I will take the English text. It is on the bottom of page 19. Now that you have the French text, I will, with your permission, read out the English.
[English]
Under the proposed act, the Attorney General would have the authority to intervene in particular cases or to give advice or instruction on particular issues in exceptional circumstances. Official notification of such action may need to be postponed in certain circumstances. To further increase transparency in prosecutorial decision- making, we suggest that the Attorney General give immediate notification that such intervention or advice has been given and provide reasons why disclosure that is more detailed cannot be given until completion of the prosecution in question.
[Translation]
There are therefore two elements: "to give notice" and "the reasons," the latter of which is not outlined in section 11. This section does not stipulate that the Attorney General provide the reasons why he gave notice.
Mr. Lamer: If I understand correctly, he must give notice.
Senator Joyal: He must give notification, but he does not provide reasons. If you read section 11, there is no precise mention of the reasons for giving notification of intervention.
[English]
Mr. Lamer: It says that any such directives must be in writing and be published in the Canada Gazette, and you can delay it until the end of the case.
[Translation]
Senator Joyal: Absolutely. I will read the Bar Association's recommendation in English. Forgive me, but I gave you my French copy.
[English]
Mr. Lamer: It is to be published in the Canada Gazette.
Senator Joyal: The Canadian Bar Association recommend that section 11 relating to the director of public prosecutions be amended to limit any delay of official notification of either intervention or specific direction by the Attorney General. Only to exceptional circumstances, and then, in such circumstances, prompt official notification of the existence of intervention or direction should be required, together with reasons why detailed notice of the nature of the action taken cannot be provided until the conclusion of the prosecution.
Mr. Lamer: At the end of the case.
Senator Joyal: Yes.
Mr. Lamer: It is provided at the end of the case. There is nothing wrong with that. I agree with that. I know why. It is because you do not want to have a mistrial.
Senator Joyal: Of course.
Mr. Lamer: It depends on what he is saying and what the directive is and the reasons. It could create a mistrial or a miscarriage of justice. It could be terribly unfair to the accused.
Senator Joyal: Absolutely.
Mr. Lamer: It must be in the interests of the administration of justice. When it finally gets published, if it was not in the interests of the administration of justice, then consequences will flow from that.
Senator Joyal: That is why the bar suggests reasons with detailed notice of the nature of the actions. I can understand that you must delay the publication of the reasons, as you said, in order not to provoke a mistrial, but at the end of the prosecution, you have to know why the interests of the administration of justice were at stake. At the end of the case you need the detailed reasons. That is what the Canadian bar suggested to us.
Mr. Lamer: Are they not there?
Senator Joyal: According to the bar, it is too vague to serve the purpose of transparency. That is what the bar said in its brief.
Mr. Lamer: I am not opposed to what the bar is saying. It makes it clearer, but it is clear enough to me. If the bar feels that it is not clear to some of them, well, that happens often. I understand that he gives a directive, and that directive, if he considers it to be in the interests of the administration of justice, and it must be in the interests of the administration of justice, cannot be just a fanciful intervention in the conduct of the case. At the end, he must publish the directive in the Canada Gazette. It would be clearer if it were saying a directive including the reasons why it is in the interests of the administration of justice.
Senator Joyal: Exactly. That is what the bar wants.
Mr. Lamer: There is nothing wrong with that. That would clarify it. If I were to read it, I would say it is inferentially there. The purpose of the publication of the directive is to inform why he stuck his nose in the case. He stuck his nose in the case because, and he gives his reasons, but the reasons have to be related to the interests of the administration of justice. It is meshed. I have nothing against what the bar would suggest as a clarification. The clearer it is the better.
Senator Joyal: That is exactly why the bar suggested it. In their text, they say it is "to further increase transparency in prosecutorial decision making."
Mr. Lamer: I see nothing wrong with it. It certainly further clarifies, but I can see it being inferentially there in section 11. He must say why it was in the interests of the administration of justice.
Senator Joyal: The notice could say just, "In the interests of the administration of justice, I decided that." It is under the general label or general heading of the interests of the administration of justice, but in relation to the case at stake, we do not know how the interests of the administration of justice would be served by such a decision.
Mr. Lamer: If I were the lawyer for the defence, I would send him a subpoena and ask him what are the interests of the administration of justice.
Senator Joyal: Yes, understanding that then you further another procedure and so forth. It would be clearer to have it in the legislation.
Mr. Lamer: I agree that the bar's proposition is not a bad proposition.
I do not see anything wrong with it, as I said before. I would not take the drafter to task on that one.
Senator Andreychuk: You are saying you would not take the drafters to task because it is implicit. I notice that the bar said that they wanted this power used only for exceptional circumstances. An Attorney General would not interfere unless he or she thought it was in the interests of the administration of justice. How could it be narrowed to exceptional circumstances?
Mr. Lamer: The Attorney General's intervention at the outset is exceptional circumstances, and those exceptional circumstances have to be in the interests of the administration of justice. The interests of the administration of justice are that the prosecution proceed, that the prosecutor handles the case, and that no one interferes by giving directives to the prosecutor. That is the general rule, unless there is an exceptional situation.
I can think of a scenario where a witness is an informant in security matters, and you have four people to prove point A. You do not need a fifth person to make the same point. I balance that as against the witness being cross- examined and it being revealed that he is one of our informants. In that scenario, we say that you do not need that witness to prove the point. You have four identification witnesses and they are all strong. He would be number five.
Senator Andreychuk: The bar is saying that this power should be exercised only in exceptional circumstances. My point is, having prosecuted and defended for a number of years, that Attorneys General or directors of public prosecution would only interfere in the interests of the administration of justice when they thought it was necessary, and that would be, by definition, exceptional cases. They are not interfering all the time. We have a history of protecting the administration of justice, but we do not do it willy-nilly.
Mr. Lamer: We have been doing it since Confederation at the federal level. I am not talking about what has happened in some provinces at some point in time.
Senator Andreychuk: That may be why the bar is reacting, then. To say "exceptional."
Mr. Lamer: As a general proposition, the Federal Crown has a healthy culture. It is my opinion, as a result of my experience, that the Federal Crown has a healthy culture. I do not remember the details, but I read the Crown policy, and it is quite comprehensive and seems to me to be quite adequate. There is room for improvement, but there is room for improvement everywhere, including Bill C-2.
Senator Joyal: In the example that you gave whereby the Attorney General would intervene to protect "an informant," this is not per se the administration of justice.
Mr. Lamer: Oh, yes, it is. The Evidence Act foresees that a police officer is not obliged to reveal his informants. He has a privilege.
Senator Baker: That is why they black mark the sources in the warrants.
Mr. Lamer: There is a long-standing rule, the police privilege, which has been in effect since I was in law school. That was in 1953.
Senator Joyal: However, it means that the police would have to establish the proof on other grounds, on solid and reasonable grounds.
Mr. Lamer: I am giving an example. Examples are never perfect. Time is passing, and I am simply giving an example of where it would be, to me, a justifiable intervention with a prosecutor. If you do not need him for the conviction, for God's sake, do not call him.
Senator Milne: Your Honour, you have said that things have gone well at the federal level. The DM is respected and acts at arm's length from the minister. Recently, in replying to Senator Andreychuk, you said that the Federal Crown has a healthy culture. However, when I look at the appointment procedure for the DPP, I begin to have some doubts about the appointment procedure.
The Attorney General, of course, is very political and he makes up a list of 10 names. The list includes a person from the Federation of Law Societies, which is good and neutral. The list includes a person from each recognized political party in the House of Commons. First, what about the Senate? Second, of course then there is one person there who is very political. The list includes the Deputy Minister of Justice, who is a GIC appointment and who may or may not be more closely connected with the Attorney General. The list includes the Deputy Minister of Public Safety and Emergency Preparedness. Again, that is a GIC appointment, and there is a perception that there may be some political influence there. The list includes a person selected by the Attorney General, and the Deputy Minister of Justice already sort of represents the Attorney General on this, so the Attorney General is in there twice. Then the Selection Committee can only look at the 10 names; they cannot go beyond those 10 names.
Mr. Lamer: Boil it down to three.
Senator Milne: There is a real possibility that there could be quite a bit of political influence. Do you think that this could perhaps lead to the Americanization of the Canadian system? Could we end up with a Canadian Kenneth Starr on this?
Mr. Lamer: That there will be an Americanization is not necessarily bad, though I am not a great fan of the American system of justice.
Senator Milne: Do we want this overlay on the Canadian system?
Mr. Lamer: It is a selection system that could be different. There are so many ways to skin that cat. Take as an example the appointment of judges. Now lawyers have to apply. They go to a committee, composed of a judge of the Court of Appeal, a prominent member of the bar and a layperson, which I sometimes call window dressing, because usually it is someone who does not know the lawyer or the system and has to ask, "Is he a good lawyer?" Anyway, he or she is a member of the public. Then they draw up the list and the minister chooses from it, although he does not have to. I know that a couple of attorneys general, ministers of justice, have said, "I would not go outside the list, even though I have the right to." I think that was Mr. Hnatyshyn, when he was Minister of Justice. Another one did the same thing.
It is a system where, if you postulate that the minister is setting out to make a political appointment, my understanding is that if he is not satisfied, it has to be approved by the committee. If the committee not satisfied with it, he must choose out of the other two. It is silent about, if they are not satisfied —
Senator Milne: The process starts all over again if the committee is not happy.
Mr. Lamer: Yes. As I said, there are many ways of slicing bread. It is a system that is an improvement on some other types of appointments. It involves the opposition parties, which is novel — well, not that novel, I know that the chair of Human Rights, the Commissioner for Freedom of Information, the Auditor General, the Officer of Official Languages, the Privacy Commissioner, the Chief Electoral Officer —
Senator Milne: Those are officers of Parliament. They come before Parliament to be questioned and they are appointed by Parliament, not GIC.
Mr. Lamer: I know.
Senator Milne: Perhaps this person should be an officer of Parliament then.
Mr. Lamer: Parliament is a legislative body and has a legislative activity. There is nothing fundamentally wrong with what you are suggesting. As I said, you are slicing the bread in another way. Here a process brings in Parliament in a certain way without having it go to Parliament, by having the opposition parties getting involved. If there is any hanky- panky going on, the opposition parties are privy to the process.
Senator Milne: Do you think the Senate should be privy to the process, too?
Mr. Lamer: I think you should be privy to everything. In the other House, I might have a different opinion.
Senator Milne: As I see it, there is a problem with the DPP enforcing the Canada Elections Act. I was reading quite a long article here by Peter Aucoin, who said that under our present Elections Act, prosecutions could only take place with the consent of the commissioner of elections.
Elections Canada is called in around the world by different countries to tell them how to run their elections. It is highly respected; the system has worked well. The Commissioner of Canada Elections Canada has independence as an enforcement officer, especially in regard to the initiation of a prosecution and the conclusion of compliance agreements.
Do you think that the commissioner has independence as an enforcement officer, or will have under this bill? Do you think that bill will interfere with the commissioner's independence?
Mr. Lamer: It would appear so. I think he is losing an exclusive prerogative.
Senator Milne: One that has worked well.
Mr. Lamer: Yes; I do not really know why that provision was introduced. There may be very good reasons.
As I told you at the outset, I did not have time to think about everything in this bill. I did not have time to phone a couple of former electoral officers who are friends of mine. One used to be the Clerk of the Senate and he became the Chief Electoral Officer, but I think he is dead now.
Senator Milne: It would be difficult to phone him.
Mr. Lamer: Anyway, I know the electoral officer; and I did not have time to phone him to find out what his views were about this and what the rationale is about this. I did not have time to phone anybody in the Department of Justice to find out the rationale for interfering with that exclusivity of prosecution. The safest thing for me to say is I did not have time to find out and then assess their responses.
Senator Milne: I will be nice; I will not ask you to give us an opinion off the top of your head in 12 seconds.
Mr. Lamer: I really do not know. It would be unwise on my part to try to give you an explanation. I actually do not have one.
Senator Mitchell: I will make it as brief as I can; I know we have taken a good deal of the Chief Justice's time.
Early on in my consideration of this particular initiative in the bill, my impression was that it might not be necessary — that it was layering on another level of bureaucracy or procedure that simply was not necessary. A number of elements in this bill concern me greatly. However, you made a statement earlier that began to persuade me otherwise. You said despite the fact that our system has run exceptionally well without this kind of an officer, it never hurts to have another back-up. I am quite compelled by that statement.
Could you be more specific? What is your impression that this DPP would do that is not already being done in a specific way, other than simply being back-up? It may well be that back-up is more than enough, but do you have something more specific in your impression?
Mr. Lamer: Your people and my people, the judiciary and the people involved in government in some form or fashion, understand that an assistant deputy minister, as distinct from a deputy minister, enjoys security of tenure. The deputy minister does not; he is at good pleasure. That is a great difference and because of that, the ADM in charge of criminal matters enjoys the protection of let us call it his "union." If he had interference in his job that he thought was uncouth, he would then blow the whistle.
This is us; we know these things, but out there, people are cynical about these things. They say he became assistant deputy minister and he is close to the minister. He was appointed by the minister, maybe, brought up from one position to an assistant deputy minister, and will want to please the prince. Therefore, I think it is a question of perception.
Senator Mitchell: That is a powerful point. Could it be derived from your argument that as a result of people's scepticism about the independence of an assistant deputy minister who, given your argument that I agree with —
Mr. Lamer: It is perception.
Senator Mitchell: — is put into the position of the DPP who does not have that union protection —
Mr. Lamer: He has the protection of a judge. It will take an impeachment to kick him out. That is better than a union.
The Chairman: Honourable senators, I wish to make a proposition to the committee. In fairness to the Right Honourable Lamer, former Chief Justice, who has agreed to appear for an hour and a half, that hour and a half has expired. There are still a number of senators who would like to pose questions.
We have conferred with members of the steering committee who have agreed that if you are willing, perhaps you could stay and join the next witness, Mr. MacFarlane. Following his presentation, perhaps honourable senators who did not have an opportunity to question you now could add some questions at that time.
I want to be fair to you. You have been here for an hour and a half. Are you able to stay any longer? We would be honoured if you could stay.
Mr. Lamer: Yes, I will be able to stay.
The Chairman: We will resume shortly with Mr. MacFarlane and the Right Honourable former Chief Justice.
Honourable senators, we now have before us Mr. Bruce MacFarlane, Q.C., currently on secondment from Manitoba Justice as a professional affiliate, Faculty of Law, University of Manitoba, where he teaches about wrongful convictions and also researches and writes on criminal law subjects acting as a general resource to faculty members and students. From 1993 to 2005, he was the Deputy Attorney General for the Province of Manitoba. His experience will be valuable to our deliberations. Mr. MacFarlane, welcome, and thank you very much for agreeing to join the panel with the former Chief Justice.
Bruce A. MacFarlane, Q.C., Professional Affiliate, Faculty of Law, University of Manitoba, as an individual: I appreciate the invitation to attend this morning. I have an opening presentation to outline my thoughts. I recognize that certain issues have already arisen during the course of these committee proceedings and I would like to comment on a few of them. I also have a recommendation in terms of an addition to the bill that this committee might want to consider.
In my former role as Assistant Deputy Attorney General federally, I had an opportunity to be invited to attend an inaugural meeting of DPPs — directors of public prosecutions — from around the Commonwealth. That had never been done before. Usually, at the international level, the emphasis is on law reform and how different countries can change their laws, but the DPP for Australia said we should be getting together to compare notes on how to conduct prosecutions because we all have an anglo-based criminal justice system, and I thought that was a very good idea. An organization called HOPAC, Heads of Prosecution Agencies of the Commonwealth, was established in 1991. I was a founding member. It is, in essence, a council of DPPs throughout the Commonwealth. That organization has met every second year, and I have attended all the meetings. I raise that in the sense that I have had the opportunity to discuss issues of DPP systems and independence and relationship with attorneys general with virtually all of the directors of public prosecutions throughout the Commonwealth, including all the DPPs in Australia, in England, and in the United States, although the latter does not have a DPP system, and also the equivalents from Ireland, Scotland, Hong Kong, Singapore and other countries. I have benefited from all those discussions.
I would like to address the question of a DPP system from that broader context, the context of developments throughout the Commonwealth, because this is not just a Canadian issue, although we are focusing on the issue of Bill C-2. There is a backdrop to this, especially when considering the issue of potential interference with independence.
As the committee is aware, a director of public prosecutions was first appointed in England in the 19th century, so this system goes back a distance. Subsequently, in Australia, there were a number of controversies. I think it is safe to say that a number of scandals emerged in Australia during the 1980s. As a result, a number of DPP systems were developed statutorily to ensure that interference could not take place. You will note that many of the DPP systems in Australia were enacted the same year, 1991, and there appears to have been a model statute developed at the time, because the wording throughout many of the states in Australia is very similar.
In Canada, issues concerning the Donald Marshall case and the resulting report led in part to the development of a DPP system in Nova Scotia. Subsequent to that, Manitoba developed not a statutorily based scheme but one which resembles in part the British Columbia model. The British Columbia model is a statutory transparency scheme. Manitoba developed a policy framework that achieved the same thing as British Columbia, although without the benefit of legislation. The Province of Quebec has since passed legislation as well.
My first point is that we have seen a progression of thinking in this area. We have seen an evolution. We have seen different countries approach the issue in different ways. I think that is an important factor for the committee to consider. Most of the approaches revolve around the same proposition, though — that it is critically important to separate the prosecution function from partisan political considerations. I think everyone agrees with that. How you achieve that becomes the objective and the challenge. Different jurisdictions have approached it in different ways.
In the wake of the development of a number of DPP systems in Australia, and given the fact that a council of DPPs established itself in early 1991, I noted that throughout the 1990s there seemed to be a sense that the only way to ensure independence was through a statutorily based DPP system. I felt that that was not necessarily the case. I did some writing and speaking, and some of my writings have been published. The main point I endeavoured to make was that, to use a phrase I use many times, there are many different pathways to independence. Whether and to what extent a particular model will work in a particular jurisdiction depends a lot on the history there, the culture, the controversies that have arisen and the environment in that particular jurisdiction.
At the moment, there are, in essence, three broad basic models for a DPP system or an independence-garnering scheme, which is probably a better way to refer to it. The first is the classic statutorily based DPP system, which is evidenced in Australia, Nova Scotia, Quebec and is proposed at the federal level in Canada and in England. I will call that the classic, statutorily based DPP system.
Second is a statutorily based scheme to ensure transparency and that is best evidenced by the Province of British Columbia.
The third basic model is the policy framework model, which does not have the benefit of a statutory base but rather is an announced policy framework intended to ensure transparency in the same way that the B.C. model does.
Those are the three: the classic DPP, the B.C. model, and what I will refer to as the Manitoba policy-based model. Each of the three models forms a reasonable policy choice. Whether it is viable in a particular jurisdiction depends on how it is developed, what the details are. However, they are all reasonable policy choices, and whether or not any given scheme will be viable falls to the legislature or to Parliament to decide.
They are all reasonable policy choices because they all have the same objective: to keep partisan political considerations out of the mix when it comes to prosecutions.
There are pros and cons for each of the models. The pros and cons sometimes relate to costs and sometimes relate to speed. For instance, the Manitoba policy framework model can be done at the drop of a hat and developed very quickly, without the need for legislation, and achieves the same thing British Columbia achieved through legislation. However, that might not work in some jurisdictions. It might not be preferable to have simply a policy framework.
If the policy choice in any particular jurisdiction is to have a statutorily based DPP scheme, there are seven key elements that need to be addressed.
The first relates to the interrelationship between the director of public prosecutions and the Attorney General. It is necessary, in my view, to ensure that directions are in writing, are published and are publicly available.
The Chairman: What has to be published? Do you mean every direction and interaction between the DPP and the Attorney General, or could this be set up at the beginning and carry on? Are you saying that in each and every case directions would be written and published?
Mr. MacFarlane: To be more precise, I mean directions with respect to specific cases.
The Chairman: I understand.
Mr. MacFarlane: If there are also directions of a more general nature with respect to prosecution policy, I would suggest the same apply to those as well. It is the to-and-fro between the DPP and the Attorney General, either with respect to cases or with respect to prosecution policy.
The second key element concerns the selection process. It is my view that it would be preferable to have a process not unlike the Bill C-2 approach as opposed to a simple appointment by Governor-in-Council or, as in Australia, by the Governor. It seems to me that some form of process that allows input from stakeholders is preferable.
The third key element relates to the term for a DPP, and on my review of the existing statutory models the most common number is seven years. That seems a reasonable number. It allows a director to ensure that the system is working well. It is not so short that the director is simply gone after a brief period of time.
However, it is important not to have the director around for too long. I do not think it is appropriate for anybody in public life to be around for too long. I make no comment with respect to anyone at this table.
It is my submission to you that seven years is appropriate. There is a basis for that internationally. Internationally, especially in Australia, there seems to be a trend to have a seven-year term that is potentially renewable. I think that is wrong in principle. I would urge the committee not to adopt that approach. It is wrong for this reason: As you approach year 5 and year 6, there may well be an unconscious tendency to curry favour with government. The line must be absolutely clear, that you know that in seven years you are gone.
The fourth key element is termination of a director, and there are a number of different models. The most common model in Australia is that it is an executive action on the basis of misbehaviour, bankruptcy, or other very specific elements set out in the legislation. The concept of for cause is well understood in Canada under the law. I would recommend that for cause be the basis for termination or potential termination. I note in Bill C-2 that that is to be supported by a resolution of the House of Commons. It seems to me that that is an appropriate additional safeguard to avoid any perception of political interference in individual cases. The termination provision in Bill C-2, I would suggest to you, is probably the best in the Commonwealth at the moment.
The fifth key element is the annual report. Overwhelmingly, the tendency internationally is to have the director prepare an annual report provided to the Attorney General, who lays it before Parliament. That is an appropriate mechanism. It permits the director of public prosecutions to have access to Parliament through the person to whom the prosecution function normally accounts, that is, the Attorney General. I would not suggest that the director have the report directly in Parliament. It seems to me that the traditional approach here is appropriate, bearing in mind that the Attorney General could not provide any change to that report. It is a report of the director. That is the proper routing for an annual report.
With respect to the question of the power of the director of public prosecutions, I note in the transcript of the proceedings of this committee that there has been a fair bit of discussion of initiate, conduct, and other language that has been used. I would like to comment on that. Initially, when I saw that Bill C-2 provided that the DPP would initiate prosecutions, I paused on that one because it was different from the traditional Canadian approach. Initially, I was troubled by it.
I started digging into some of the foundational provisions of the Criminal Code, section 2, and it seems to me that if one considers the definition of Attorney General in section 2, that is a where the answer is. There is no change in the law.
Section 2 of the proposed DPP act provides that prosecution means a prosecution under the jurisdiction of the Attorney General, so the Attorney General is immediately a part of the definitional linkage.
Section 2 of the Criminal Code outlines that "Attorney General" means the Attorney General of Canada with respect to proceedings commenced at the instance of the Government of Canada with respect to contravention of non- Criminal Code offences. The key words are "proceedings commenced at the instance of the Government of Canada." Bill C-2 provides in proposed section 3(3) of the proposed director of public prosecutions act that the DPP, under and on behalf of the Attorney General, initiates and conducts prosecutions on behalf of the Crown.
In essence, the issue is whether there is a practical difference, or a difference at all, between the phrase "commenced at the instance of the Government of Canada," as in the code or, "initiates prosecutions on behalf of the Crown." It does not seem to me that there is a difference. It is my submission to the committee that that piece in Bill C-2 does not change the law and that the practice would not change.
I have one recommendation to make to the committee for consideration with respect to possible amendments and possible additions to Bill C-2. One of the features of a DPP system is the interplay between the DPP and the Attorney General, and that is where it becomes touchy and sensitive. Anything going down, if I can call it that, from the Attorney General in way of direction must be in writing and published. There is also the need for more informal communications in the nature of information sharing so that both can discharge their respective responsibilities effectively.
Some provisions in Bill C-2 talk about consultation. I am proposing a broader and more formalized form of consultation, which is reflected in virtually all of the DPP statutes in Australia. Most of the states and the Commonwealth of Australia have essentially the same provision; there are slight changes in wording only. I will read one model to you, the Western Australian Director of Public Prosecutions Act, 1991. I have chosen this one only because it is the simplest language and appeals to me the most. Section 26, under the heading of consultation, states:
(1) The Director shall, if requested to do so by the Attorney General, consult with the Attorney General with respect to matters concerning the performance of the Director's functions.
(2) The Attorney General shall, if requested to do so by the Director, consult with the Director with respect to matters concerning the performance of the Director's functions.
Thus, both the DPP and the Attorney General have the ability to require the consultation of the other with respect to the functions of the Director of Public Prosecutions. That provision, with either exactly the same words or slight variations on the words, can be found in the following statutes: The Southern Australia statute, section 8; the Australia Capital Territory, section 19; New South Wales, section 25; the Northern Territory, section 27; and the Commonwealth Legislation, section 7.
That kind of consultation is necessary on a number of different levels. It ensures that the Attorney General has some understanding of what is going on and if he or she has the need for information a venue exists for the provision of information. It also provides the Attorney General with an opportunity to assess whether any kind of direction is necessary. Often when you speak with the other individual you find out information that causes you to realize that initially you had a misperception and that there is no need for direction now that you have all the information. I would encourage statutory consultation of the kind that I have described.
The Chairman: That does not include other forms of information sharing between the Attorney General and the DPP, does it?
Mr. MacFarlane: No, it does not. It provides both with a formal opportunity to say, "I need to consult with you; I need to do it fairly soon; and I have a right to ask you to consult with me." It provides that statutory base for consultation and ensures that one or the other will not push the other away and refuse to consult.
The Chairman: In your recommendation for this broader form of consultation, would you also recommend that more information should be exchanged between the Attorney General and the DPP?
Mr. MacFarlane: No. My recommendation is confined to a consideration of the function of the director of public prosecutions.
The Chairman: Thank you.
Mr. MacFarlane: The words used in this particular model are "concerning the performance of the director's functions."
The Chairman: I would ask you about that because the Attorney General and the DPP, when necessary, will have to continue to share information. In your opinion, that shared information should be in writing and made public. Is there any other parameter?
Mr. MacFarlane: No, I am sorry if that impression was left. I did not intend that. I am speaking of directions from the Attorney General as opposed to information sharing. There is an important distinction between the two. If the Attorney General provides a direction either with respect to a specific case or with respect to the policy that the Attorney General wants to have in this area, that direction must be in writing and published.
The Chairman: Thank you for the clarification.
Mr. MacFarlane: The approach adopted in Bill C-2, which is consistent with the approach throughout Australia, is viable and reasonable. I am not suggesting any changes in that area.
In conclusion, the three basic models are all reasonable policy choices and any one of us could mount an argument in support of or against any one of them. First, the best fit is based on background history issues, controversies in any particular jurisdiction, and whether it will fit in well. Second, government, Parliament and the legislatures are in a strong position to assess which policy options are best for their respective jurisdictions.
The Chairman: Thank you for that informative presentation.
Senator Baker: Welcome, Mr. MacFarlane, to the committee. I note that you are sitting next to former Chief Justice Lamer, before whom you appeared many times going back to 1988 in R. v. Lafrance and R. v. DeSousa. I am sure you remember.
Mr. MacFarlane: Yes.
Senator Baker: The former Chief Justice, even when you were not in attendance, referenced you and your publications in R. v. M. Even when you are not with him the former Chief Justice gives you a great deal of credit, as he did here this morning. He called you as a witness in Newfoundland, and you appeared. He gave you considerable attention in his report, beginning at page 134 where he outlines the role of the Crown. He referenced your paper and your appearance before him and the evidence that you gave.
In that context, when you first saw the word "initiate" in respect of the prosecutorial actions of the proposed DPP, you were surprised but you checked further and discovered that section 2 of the Criminal Code gave the Attorney General of Canada the right to "commence proceedings." You concluded that "commence" has the same meaning as "initiate." Did you carry out what former Chief Justice Lamer would have done — an examination — in forming that opinion as to the meaning of "commence" vis-a-vis "initiate?" To the ordinary person, "initiate" means to "actively participate in the initiation of something." To commence a prosecution is merely to take it after the charge has been laid. To initiate, it appears to me, according to I imagine Oxford's seventh edition, would have a contrary meaning.
Mr. MacFarlane: Against the backdrop that you just described, certainly when I saw the word "initiate," I paused. It seemed to me it was inconsistent with past history.
When I looked at section 2, I realized the same concept of initiating or commencing was buried there. However, almost no one reads section 2 of the code. This honourable committee certainly does, but the average lawyer and the average person do not generally read section 2. However, once you take that section into account, it seems that Bill C-2 and the current law are the same. I did not see any reasonable distinction between the two. That certainly gave me room for comfort.
Although, having said that, because section 2 is buried in the Criminal Code and because initiating is right up front in proposed section 3 of the proposed DPP act, it will have to be made clear to everyone that section 2 is there and that there has been no change in the law. One concept is buried and one is right up front.
Senator Baker: Are you telling the committee that you have conducted what you suspect the Chief Justice would have done in his interpretation of words in law, that you considered its ordinary meaning and its meaning within the context of its use in the Criminal Code and you came to the conclusion that the Crown can initiate a prosecution under the Criminal Code?
Mr. MacFarlane: The provisions of the Code talk in terms of proceedings commenced at the insistence of the Government of Canada.
Senator Baker: You have read the clauses of the bill dealing with the DPP, and I am sure you have read the provisions referenced in this committee many times, and which the Chief Justice passed judgment on a few moments ago relating to the Elections Act, in which the DPP is the person who decides whether or not charges will be laid. To you, does that appear to be the same as or comparable to commencing a proceeding under section 2 of the Criminal Code?
Mr. MacFarlane: Could you draw my attention to the provision to which you are referring?
Senator Baker: I draw your attention to page 112 of the bill, halfway down the page, proposed subsection 511(1) of the Canada Elections Act, which states:
If the Commissioner believes on reasonable grounds that an offence under this Act has been committed, the Commissioner may refer the matter to the Director of Public Prosecutions who shall decide whether to initiate a prosecution.
The offence referred to could be a hybrid offence that could be prosecuted by way of indictment or summarily, both carrying penal consequences if conviction takes place. Proposed subsection 511(2) goes on to say:
If the Director decides to initiate a prosecution, the Director shall request the Commissioner to cause an information in writing and under oath or solemn declaration to be laid...
In other words, it is the director of public prosecutions and his or her office and prosecutors who, under the law of Parliament, are responsible. The Commissioner of Canada Elections cannot do it anymore. Presently, the commissioner lays the charge. However, under this new bill, that is the responsibility of the director of public prosecutions.
Where does it go to commence the prosecution? I use the phrase "commence the prosecution" when it goes to court. It then goes to the office of the director of public prosecutions. What do you think of that?
Further down the page, proposed subsection 512(1) states:
No prosecution for an offence under this Act may be instituted by a person other than the Director of Public Prosecutions...
Mr. MacFarlane: I will make a couple of observations. With respect to subsection 511(1), there is a clear parallel there. The matter does not go to the DPP unless the commissioner has reasonable grounds. There is an initial step that must take place. In essence, the commissioner has a chokehold on the situation. If the commissioner has reasonable grounds, then and only then does it go to the director for consideration of the evidence in a quasi-judicial manner. An expectation of the director of public prosecutions will be to discharge a quasi-judicial role.
Proposed subsection 512(1), states:
No prosecution for an offence under this Act may be instituted by a person other than the Director of Public Prosecutions...
There are a number of parallels in criminal law at the moment where the Attorney General or the Deputy Attorney General must consent in writing before a prosecution can be commenced. That is not new.
Senator Baker: Yes, but they are clearly defined in law. They are not just any old prosecutions. There is a reason for those federal laws.
Mr. MacFarlane: This defines a class or a group of offences. In that sense, it is not directed to a specific offence but to a class or a group.
Senator Baker: Yes. The word "institute" is clearly defined in this particular instance under one of these acts. The evidence you gave before the Chief Justice regarding the role of the Crown appeared to stress the importance of the Crown in all prosecution matters that they be of a particular culture or attitude. The Chief Justice used the word "culture" as meaning interchangeable with an attitude, as outlined in his report.
However, the Chief Justice is saying a strong second look should be required, as he has adjudicated in some of his judgments. In the recommendations on the DPP in Newfoundland, he further suggested that the Crown prosecutor make a decision on a stay immediately if reasonable and probable grounds are not present. He then recommended further that an acquittal may result from the entry of no evidence if the Crown finds that it is dangerous to prosecute. That vital second look is there.
How can one have a second look if the first look was the look that led to the charge's being laid when reasonable grounds were formed to lay the charge, and it was ordered under the law for the commissioner to lay the charge?
Mr. Lamer: I would like to answer part of that, although I am not precluding senators from hearing this wise man's answer.
I said you must consider the context. The practice I faced in Newfoundland is that the police do not go to the Crown before laying the charge. They do not go to the Crown unless they need some advice —
Senator Baker: Specific advice.
Mr. Lamer: — as to whether it should be fraud or theft by a trick as compared to fraud. Should it be first or second degree murder? They may go and see the Crown, but they do not have to. They rarely did.
We spent time in Newfoundland together. There is a culture there in which you get very friendly very quickly.
Senator Baker: That is right.
Mr. Lamer: The second look I was referring to in the report was in the context of a charge laid by a member of the Royal Newfoundland Constabulary of 15 years ago, which had very little training in those days. Most of the RNC were fishermen who had lost their jobs when the federal government cut down on the cod. They were trained for a few weeks; they were pulled from patrol cars to investigate major crimes. In his testimony, the lead investigator started off by saying that he shuddered at the thought of how he approached this murder, in which he was asked to lead the investigation. He was the lead investigator, but he had never investigated anything. He had been to the Friday-night brawl. The second look I was referring to was in that context.
However, given the fact that we are facing more wrongful convictions, and given the fact that the rationale for the Crown to proceed has traditionally been the likelihood of a conviction — including an unsafe conviction — I was of the view that there should be a second look before you proceed, because of what I have just said.
Senator Baker: I understand that, Chief Justice. I was not just quoting you from your report; you have said this before.
Mr. Lamer: Oh, yes.
Senator Baker: In general terms, in many judgments, other members of the —
Mr. Lamer: I am consistent.
Senator Baker: Yes, you certainly are. We can give you the cases in which you have been consistent, and other justices have been consistent.
What the Chief Justice devised in the Newfoundland report, I would suggest, should be the instructions to all Crown counsels — that they have a good second look when they assume a prosecution and decide whether they will go ahead with it.
I still come back to my question. If you are an employee of the DPP, how can you have a good second look on whether to proceed when you were the one who made the decision in the first place? I understand, Mr. MacFarlane, what you say when you say reasonable and probable grounds were formed by the commissioner.
Mr. MacFarlane: Yes.
Senator Baker: But the DPP, in making the decision to lay the charge — the only person who can lay it — would also have formed reasonable and probable grounds that an offence has been committed, would you not say? Then if we follow the logic on to its conclusion, when they assume that prosecution, they are supposed to have a second look at something that they had already reached a conclusion about in the first place.
That is my only point. I do not know if you want to comment on that. If not, I will rush on.
Mr. MacFarlane: I think that the answer lies in the practice throughout Canada, which has been in place for quite a while. I will confine my comments to my experience in the federal world and in Manitoba. There are many looks that take place, and at various stages. I will speak generally about prosecution as opposed to Canada Elections Act offences specifically.
The police, if they have reasonable grounds, will lay an information. Sometimes they will seek the advice of Crown counsel; sometimes they will not. It depends on how complex the case is. If the case is a potential multi-month conspiracy case, invariably they will approach Crown counsel before the laying of charges to make sure that there is a case, but they are not required to do that.
Once the charges are laid, the responsibility for the charges shifts over to Crown counsel. At that stage, Crown counsel is expected to do an assessment of the evidence and could well disagree with the police. That does happen from time to time, and it is a bit unseemly because the public is trying to figure out what is going on here; the police lay the charge and the Crown is staying it at the first appearance.
However, there is an expectation of an assessment early in the proceedings to see if there appears to be a reasonable prospect of conviction. That is the federal test; some provinces have the reasonable likelihood of conviction, and British Columbia has a substantial likelihood of conviction as their test. If those tests are met, the case continues.
However, at many stages after that, there is a reassessment for a second, third or fourth look. For instance, there will be an assessment at the time of bail. There will be an assessment at the time it is set down for preliminary inquiry, if that is to take place; and when the trial counsel assumes conduct of the case, there will be yet another assessment.
Throughout that full spectrum of the case working its way through the courts, it is an expectation that the Crown counsel will continue to make sure there is a case fit for prosecution. There is an application of that test at many stages.
In Manitoba, we have many situations where the proceedings are stayed in advance of the trial because, at a late stage, there is a conclusion that the case has simply fallen apart. Therefore, the charges will be stayed before the trial even starts. That is a clear expectation of all Crown attorneys across Canada, that there will be that ongoing assessment of the strength of the case.
With respect to the acquittal point, I would make this observation, because Commissioner Lamer in his report does talk about acquittals. That is a very live issue right now in Canada in terms of when an acquittal should be entered on the basis of an offer of no evidence, and when a stay should be entered.
I do not want to take the committee off course. I just wanted to note that, because it is presently before Commissioner LeSage, former Chief Justice of the Ontario Superior Court of Justice, in the Driskell public inquiry. He will be providing advice to Canada and Manitoba on that interrelationship between stays and acquittals.
Senator Baker: I would suggest they read Chief Justice Lamer's report, because he directs that it is possible, even after a directed verdict has been refused, to stop the prosecution at that point.
Mr. MacFarlane: Just to finish that, so the record is clear, there was a panel discussion of seven people on the stay issue at the Driskell inquiry and Chief Justice Lamer's recommendations were squarely before that panel.
Senator Baker: Mr. MacFarlane, what do you think about the 10-year period given under this bill? Chief Justice Lamer has passed his opinion on it. I do not think he gave us a definitive answer, but by the look on his face, we knew what he thought about it.
The 10-year period is the longest period I know of. I have been a member of Parliament for 30 years and I do not know of any act of Parliament that gives you 10 years in which to lay a summary conviction charge, which has penal consequences at the end of it, under any circumstances. What do you think of that?
Mr. MacFarlane: Again, could you draw my attention to the specific provision in the bill? I heard the earlier testimony, but I have not had occasion to consider the provision.
Senator Baker: There are several examples here, but I will give you the first one that comes in this bill. It is at the bottom of page 32. That exact wording of proposed section 65 is transplanted, subsumed in another proposed section and just certain words are changed.
Mr. MacFarlane: Thank you.
Senator Baker: It is comparable, Mr. Chairman, to bumping into someone getting off the bus 10 years ago and someone saying later that you are guilty of common assault, but you cannot remember what took place at that time? Or if this passes, they could go back to my elections back in 1999 and 1998 and lay a charge against me. I do not know what happened in those elections back 10 years ago.
The Chairman: You just won, that is all.
Senator Baker: That is the context in which I ask you — in terms of a summary conviction offence.
Mr. MacFarlane: Let us assume that proposed section 65 applies to summary conviction proceedings. I accept your premise in that respect. It does strike me as being unusual.
Senator Baker: That is the answer that the Chief Justice gave.
Mr. MacFarlane: I have not seen such a lengthy summary conviction limitation period before, so it strikes me as being unusual. I do not know what the policy rationale is, and it would be helpful to me to find that out. I was not involved. At first blush, it seems unusual.
Senator Baker: Surely, though, a policy decision would not change your opinion at first blush on this particular item. Do you not agree that, regardless of the policy decision, to lay a summary conviction offence charge after 10 years would seem to defy logic?
Mr. MacFarlane: I would be more comfortable saying that it seems at first blush to be unusual, but to take it further, I think I would need to know the original rationale.
Senator Baker: One further question. The Chief Justice said there was nothing wrong with the next section that I will quote to you. I should not say that I am not convinced, because I have never disagreed with the Chief Justice. However, I find it strange that a communication between the Attorney General and the director of public prosecutions can be made concerning a particular case that is not disclosed during a prosecution. We do not know what that communication is. We can only guess, as the Chief Justice said, what that communication could be.
It may be that you have an informant whose name should not be disclosed. We all know that when freedom and innocence are at stake, no one is protected under those circumstances. The Chief Justice was using that as an example, which he drew out of the air, which I understand. However, I still cannot understand how communications that deal directly with a case under prosecution can be withheld from the defence until, as Senator Nolin was pointing out a moment ago, the completion of the prosecution and until the Chief Justice has ruled on when a prosecution is complete, after all the appeal processes are finished.
Could you direct yourself to that question, how communications can be withheld way down the road concerning a prosecution?
The Chairman: It is page 108.
Senator Day: Is that the section that the Canadian Bar Association has opined on?
Senator Baker: Mr. Chairman, as you are aware, it is not just the disclosure of something that deals with a prosecution that is at stake, but it is the disclosure of something that may affect a prosecution that is at stake. It is not just things that directly affect the case that is being presented by the Crown that must be disclosed; anything that could possibly affect the case must be disclosed, whether the Crown is using it or not.
Mr. MacFarlane: I am looking in particular at page 108, proposed subsections 11(1) and (2). There are fairly broad circumstances under which the provision could be triggered. That is to say, it could involve a decision to stay proceedings or in some other fashion affect the course of the case, so it is broad in that respect.
My initial thought is that the circumstances that might be of concern to the director or the Attorney General could equally cover a whole range of circumstances, one of which could potentially involve a police informant or a threat to an individual. There could be a wide range of circumstances that would cause the director or the Attorney General to say, "We cannot put this out yet publicly. We do not want to imperil the life of someone, so it will have to be delayed."
However, the proposed section does cap it at a certain point. It is not unlike sealing a search warrant, which is presently available in our criminal laws.
Senator Baker: You examine R. v. Garofoli and you say the conclusion is that you cannot withhold information in the sealed warrant; it is opened. The judge has a look at it to ensure that the blackening out is actually privileged information, but it has to be disclosed. So it is a poor example.
Mr. MacFarlane: I was speaking of search warrants as opposed to wiretap applications and authorization.
Senator Baker: Sealed packets.
Mr. MacFarlane: On occasion, confidential information is provided to the judge in order to obtain a search warrant, and there is a need to keep that information sealed for a period of time. That could be triggered by a whole range of circumstances, often involving a police source or someone's life or safety. Even in that situation, the judge will say, "I have to cap it at a certain point. I cannot have an indefinite sealing," and it is available to the media after a certain point.
It is an analogy. It may not be a perfect analogy, but the same principle applies here, that there will be circumstances where the information cannot be made public because that could have an impact on someone, and it could be quite a serious impact. However, a capping is necessary, and the proposed section provides for that capping.
Senator Baker: The sealed packet, under the section that you are talking about, is unsealed at trial and there is an edited version of it given to the defence, which is the law, and then it has to stand on its own. However, the defence can ask for the unblackening of this, and the judge makes a decision whether or not it is privileged information. If innocence is at stake, one even has the right to cross-examine an informant. My problem with this is how can you withhold that kind of information from the defence if, indeed, it could affect the trial that is under way?
Mr. MacFarlane: With respect, the scenario you are speaking about pertains to wiretap applications, not search warrants. I had in mind a search warrant situation, which I thought was more apt, where a peace officer asks for a search warrant from a judge. It is in the early stages of an investigation. There is no charge.
Senator Baker: But there is a trial on here. This is my problem with it. You have given me an example which is a pre- trial arrangement of a search warrant, but my example is during a trial.
Mr. MacFarlane: That might be an even stronger reason for why the information cannot be made public at that stage, because it might affect the course of the trial.
Senator Baker: What is the precedent for withholding information in a sealed packet during a trial?
Mr. Lamer: I think I have responded to that. I talked about the police privilege and informant privilege, which is the classic example. The only investigation being done at that stage by one of the lawyers, or sometimes by the judge, is whether this is a reliable informant and whether this informant has in the past given information that has been found to be well-founded and true. Then the privilege is triggered. I just repeated what I said before.
Senator Ringuette: Mr. MacFarlane, you have talked about the history, the culture, the environment and at the same time, Mr. Lamer has talked about his 53 years and only remembers two cases where there was a perception of political interference. Then I heard that the Criminal Code in section 2 provides for the Attorney General, on behalf of the Crown, to lay charges.
Senator Baker: To commence laying charges.
Senator Ringuette: Yes, to commence proceedings and at the same time, in Bill C-2 we have the proposed DPP that can also initiate.
Not coming from a legal background and with all the different processes you have as tools, I find that there is a duplication here; not a second look, but in reality a duplication. The Attorney General, on behalf of the Crown, through the Criminal Code can commence and the proposed DPP under Bill C-2 can initiate.
I will be the devil's advocate. To what extent are we, in Bill C-2, providing for a more accountable, transparent, judicial system and not a more complex, confusing — because of the role of the DPP and the Attorney General — system? Is it ultimately because of the history, the culture and the environment, in Canada, of prosecution? Is it necessary to have this duplication in our judicial process?
Mr. MacFarlane: When you are referring to duplication, are you referring to the existence of the office of the DPP and why that is necessary? Is that your question?
Senator Ringuette: Yes. I was listening carefully to what was said this morning. I heard that the Criminal Code is not changed by Bill C-2. The Attorney General commences a process, and in Bill C-2, the DPP initiates a process. That sounds like duplication from a lay person's perspective; it is not a second look but a duplication of authority. You said that there would be a need for policy to establish the relationship and the role of these two entities further down the road.
Mr. MacFarlane: It is my view that on a day-to-day, case-by-case basis the Bill C-2 scheme would overtake the role of the Attorney General in individual cases, subject to the ability of the Attorney General to intervene in individual cases, and I would not expect that to occur very often.
It is a shifting of the responsibilities over to an independent authority. That is what is being sought here. The Attorney General, in essence, is in the background able to intervene, but if he or she wants to intervene, it has to be in a very public way. Fundamentally, the DPP would be assuming responsibility for the initiation and conduct of criminal cases. There is not that duplication to which you refer.
Senator Ringuette: When you were talking about section 2 of the Criminal Code, I understood that it was not changed and therefore did not remove the powers of the Attorney General.
Mr. MacFarlane: The specific provisions of Bill C-2 would, in that practical sense that I just described, displace the role of the Attorney General. It would fall to the DPP to have that responsibility, subject to that residual power on the part of the Attorney General and with all the safeguards attached to that residual power.
Senator Milne: Mr. MacFarlane, you helped to set up HOPAC, this association of Commonwealth DPPs.
Mr. MacFarlane: Right.
Senator Milne: You have studied the Commonwealth systems in all these countries. Can you tell me if, in any of the Commonwealth countries that you have looked at, the DPP has any jurisdiction for the enforcement of the electoral law?
Mr. MacFarlane: I have to say that I have not looked specifically for that. I know that the DPP in England and Wales has a long list of responsibilities concerning statutes apart from the criminal law. There are probably 15 or 20 statutes that are listed. I know for instance, the Extradition Act is on that list, but I cannot recall whether the Electoral Act is included in those Australian statutes. It is not something that I have discussed with any of them.
Senator Milne: I asked the question because our electoral system here works pretty well, I think. Elections Canada has a good reputation and then all of a sudden the commissioner can no longer lay charges. They must be laid by the DPP which, to me, could potentially, at least in the public eye, indicate a bit of a political interference in the process.
Mr. MacFarlane: My initial impression is that quite the contrary was proposed or anticipated and that is to vest jurisdiction, concerning prosecutions, in someone who is insulated from the partisan political process. I see it quite differently.
If you have the proper safeguards surrounding the office of the DPP and if you have the proper person in place then that person is positioned to be insulated from political pressure or considerations. In that sense, I see it in quite the reverse.
Senator Milne: I feel that the commissioner is already pretty well insulated from the political process.
Mr. Lamer: My first answer was, I do not know. I could not get hold of the people today to talk about this and to find out what it is all about. I have been thinking about it while listening to Mr. MacFarlane. The electoral officer, the commissioner, runs an investigatory branch. I am looking for a rationale. You have an investigator who then prosecutes. It reminds of the days when the RCMP used to lay the charge and then prosecute.
Senator Milne: It sounds like Newfoundland.
Mr. Lamer: I think that maybe there is something there, but I cannot say that is the rationale. If I had to come up with a quick answer, I would say there is a desire to split the investigator away from the prosecution.
Senator Milne: I believe, under the Elections Act, the investigation really takes place under the Chief Electoral Officer, and then the commissioner does the prosecution. Is that not correct?
Senator Nolin: The commissioner initiates all the investigations.
Mr. Lamer: If the investigator is to run the prosecution, then it is obvious that the investigator would like to see a second, third, four and fifth look. As the prosecution goes on, suddenly you find out that that witness that was so wonderful during the police interview starts being quite a different person either under examination or under cross- examination, and then your case falls apart. I think that is the rationale to separate the investigative branch from the prosecutorial branch. I think so, but I am not sure.
Senator Milne: Do you have anything further to add Mr. MacFarlane, or do you bow to the Chief Justice?
Mr. MacFarlane: I always bow to the Chief Justice. In addition to bowing, though, I happen to agree with him.
Mr. Lamer: I am no longer Chief Justice, you know.
The Chairman: We still regard you as the Chief Justice.
Mr. Lamer: That does not make me a Chief Justice. I am a member of the Quebec bar.
Senator Day: First of all, as a point of clarification: I am looking at page 109 of Bill C-2. Mr. MacFarlane, you were talking about the Attorney General intervening. At proposed section 14, the Attorney General indeed is contemplated to have the power to intervene if it raises a general question of public interest. However, the Attorney General also, under proposed section 15 and proposed section 3, has the power to take over and conduct the prosecution. There is a different treatment with respect to notice requirements, et cetera.
You mentioned all the proper notice requirements for intervention, and the only notice I see for intervention under proposed section 14 is to notify the director that the Office of the Attorney General will intervene. Do you believe there should be more public notice as to why the Attorney General is intervening? Is that what you were suggesting?
Mr. Lamer: I do not think we are talking about the same kind of intervention. We are talking about a procedure of intervention where he becomes an intervener. You must make an application to the judge to intervene.
Senator Day: All I can do is follow the words of the act. The act says "intervene," and the word that Mr. MacFarlane used was "intervene." I would like clarification as to what he meant.
Mr. Lamer: There is intervention in a proceeding. Before the Supreme Court, you will find 10 or 12 interveners, interest groups. I think that is what it means.
Senator Day: Proposed section 14 says, "...intervene in first instance or on appeal." That is clearly not the same thing as taking over the prosecution. Do you believe, Mr. MacFarlane, that there should be other public notices, as you have suggested in your testimony earlier, with respect to proposed section 14?
Mr. MacFarlane: As I read proposed section 10 of Bill C-2, it uses the words "any directive," which seems to contemplate both the scenarios to which you referred.
Senator Day: You think a notice is a directive.
Mr. MacFarlane: No, we were talking about intervening and taking over.
Senator Day: Yes, proposed section 14, which says the Attorney General may, after notifying the director, intervene. Do you think that notifying for an intervention is a directive?
Mr. MacFarlane: I would interpret it as a directive, yes.
Senator Day: Then we should change the word to "direct."
Mr. MacFarlane: The Attorney General is providing the director with a directive either to intervene or to take over. Either scenario would amount to a direction.
Senator Day: You and I disagree on that interpretation, and that is why we are here. If there is a possibility of this being interpreted in more than one way, we have the opportunity to rectify this so there is no possibility of misinterpretation or these cases going up and the court deciding on the definition of the words.
I heard what you said with respect to it being a policy decision as to whether you want to have a director of public prosecution regime that is established by statute. That was the end of your introductory words, and I agree with you.
Our role here is to look at that policy decision that is proposed in Bill C-2 and try to understand the reason for that decision. If we say that is a good reason, then let us make sure that this change in the regime is reasonable and does not create any unforeseen consequences that we do not particularly want.
Let us talk, first, of the point that you did not get into on the policy side of it. A number of us have been searching for a reason for this change. You were appointed as Assistant Deputy Minister, and you were a director of public prosecutions, small letters, during your time with the Department of Justice. Is that correct?
Mr. MacFarlane: Yes, I was Assistant Deputy Attorney General, and I cannot recall if it was an Order-in-Council appointment or not, and my role as Deputy Attorney General for 12 years was at pleasure.
Senator Day: Would you call yourself a director of public prosecutions in that role?
Mr. MacFarlane: In the first role, the Assistant Deputy Attorney General, yes, I was in charge of all federal prosecutions. In the Deputy Attorney General role, in theory I was the head and would be the one referred to in the Criminal Code on a number of occasions, but in practice I allowed the prosecution service to make day-to-day decisions. In theory, I was the head.
Senator Day: That was a policy-based regime as opposed to a statutorily-based scheme.
Mr. MacFarlane: That is correct.
Senator Day: Bill C-2 proposes to create the statutory scheme. I am asking whether there was something wrong with the previous system that is driving us into a new statutory scheme. What are the motivating factors moving us into a statutory scheme from the scheme we feel had worked fairly well for many years?
Mr. MacFarlane: I cannot comment on what specific issues or events might have precipitated Bill C-2. I can say that I have always felt that it is preferable to develop a DPP scheme in quieter times, not in the wake of a controversy or a crisis. Most of the jurisdictions developed their schemes in the wake of a crisis and had to move quickly. Canada's approach is to move forward with an initiative not because, as I understand it, there is a crisis, but because government feels it is the right thing to do. There is the committee process, and there is time for consultation.
Mr. MacFarlane: That would be the right way to do it so there is a well-thought-out scheme in place, although I do not know whether something precipitated it.
Senator Day: You are not aware of anything other than a government decision to precipitate that.
Mr. MacFarlane: I have been left with the impression that government decided it was the right thing to do when it had the time rather than do it in the wake of a crisis.
Senator Day: Thank you for that. We are not aware of anything other than a government decision either. It would have been nice to know that there was a policy explanation.
We should be looking at the issue of independence of the proposed DPP and assurance that there will be no political partisan interference with that role. You and former Chief Justice Lamer both said that is an important fundamental of any scheme that might be set up. You have described three different schemes. During your illustrious career, Mr. MacFarlane, were you ever uncomfortable in performing your functions as director of prosecutions because you did not have the needed independence to do the job as it should be done or that there was partisan political interference?
Mr. MacFarlane: I have to be careful not to disclose any information that might be covered by solicitor-client privilege or any other offence. I can endeavour to answer your question in this way: In a scheme that is not statutorily based with clear rules, there is always a lurking concern on the part of those prosecuting that there might be adverse consequences if an unpopular decision is taken; that concern underlies the skin and is not overt. I have had Crown attorneys ask me whether I might be fired or at least not advance in my career if I continued to make unpopular decisions, although they were lawful decisions. I have had to assure them that no, we have attorneys general with integrity and so that would not happen. There is always the underlying concern that if an unpopular decision is taken, there might be some adverse consequences.
Without too much detail, I am pleased to say that in all of the time I was either Assistant Deputy Attorney General or Deputy Attorney General, I never saw political interference. However, I have seen potential situations that greatly concerned me and they were headed off before they occurred.
Senator Day: Have you been an advocate for a statutory scheme?
Mr. MacFarlane: I have been an advocate for one of the three models.
Senator Day: We have one of those three schemes in place.
Mr. MacFarlane: The three schemes that I am referring to are the statutory DPP approach, or a policy-based approach, or a British Columbia-like approach. It is important to have a clear understanding of the roles and responsibilities and the fact that you cannot mix partisan political considerations with prosecutions. I am an advocate of having a model in place but which model should be in place will vary according to the jurisdiction.
Senator Day: The federal model currently in place is not a policy-based scheme, unless I misunderstood you.
Mr. MacFarlane: I have not been with the federal government in a while but it is my understanding that the current federal scheme is none of the three models to which I referred.
Senator Day: I misunderstood you.
Mr. MacFarlane: The federal scheme is what I would refer to as the classic traditional Canadian scheme, which does not include DPP legislation, a B.C. model or a policy framework. Manitoba's scheme has the Attorney General reduced to writing and publishing any directives, but that is the result of policy. I have been outside of Justice Canada but I am not aware of a policy to that effect.
Senator Day: I appreciate your clarification because I would have taken away a different view.
Mr. MacFarlane: Professor Edwards, who is the leading Commonwealth expert on the role of the Attorney General, who has since passed away, observed that the traditional Canadian system seems to work reasonably well because of the integrity of the office-holder of the Attorney General. That was his point to make on the issue — the integrity of the office-holders. How long that would last and whether that is a sound basis for a scheme is a matter for debate.
Senator Day: Were you consulted by the Department of Justice Canada or the current Attorney General with respect to the statutory scheme that we are setting up?
Mr. MacFarlane: No, I was not consulted.
Senator Day: You have analyzed it and given the committee your seven points. I know the record will show the points but I missed one in my notes. I believe that other than your recommended consultation amendment, everything else that you think should be in a statutory scheme is proposed in Bill C-2.
Mr. MacFarlane: Those are the seven critical elements that are addressed in Bill C-2 and for two of them; Bill C-2 is ahead of all jurisdictions that have a DPP system in place. It is a very impressive bill.
Senator Day: If we can get past the policy decision on whether to have the statutory scheme, the scheme that you see outlined here is a pretty good one.
Mr. MacFarlane: Yes, it is a good scheme, but I would add one additional consultation provision. That aside, it is a reasonable choice and has been well thought out. It pulls the best from the other jurisdictions.
Senator Day: That will be helpful to the committee in its deliberations. Your proposal on the Western Australia DPP model will be a matter of record as well. Presumably, that would fit around proposed section 13 at page 109 where it says,
The Director must inform the Attorney General in a timely manner of any prosecution, or intervention that the Director intends to make, that raises important questions of general interest.
The director has an important direct link with the Attorney General in relation to those kinds of issues. You said there should be more communication on an ongoing basis and that we could probably add something there to create the one point that you find lacking in the bill as it reads now.
Mr. MacFarlane: I have no view on where it should fit in. My point was that consultation is important and ought to be included in Bill C-2.
Senator Day: Thank you.
Mr. Lamer: I should like to respond to Senator Baker's concern.
I have been looking at the French version of clauses 13 and 14 and the relevant side notes. On page 109, clause 13 says, "The Director must inform the Attorney General in a timely manner of any prosecution, or intervention...," which is not the same as "any directive" at clause 10.
The side note says "duty to inform" and in French, it says "communication au populaire général..." in respect of the DPP's communication with the Attorney General that he intends to intervene.
Clause 14 says,
When, in the opinion of the Attorney General, proceedings raise questions of public interest, the Attorney General may, after notifying the Director, intervene in the first instance or on appeal.
He is notifying him that he will intervene. He is not intervening by giving him a directive.
The side note of clause 14 says "Intervention du procureur général." The side note of clause 14 says "Communication au procureur général," which indicates to me that clauses 13 and 14 are talking about a judicial intervention, because in clause 13 they say "in first instance or on appeal." That has no purpose. If he gives directives while he is in appeal or in first instance, they must be published. Here he must make an application to the court, either the court of first instance or the Court of Appeal. The information will be contained in what is called an application to intervene with an affidavit.
With all due respect to contrary views, it seems clear to me that we are talking here about a judicial intervention.
It seems clear to me, when I look at the side notes and the structure of the clause, that we are talking about judicial intervention. I may be wrong; perhaps it would provide clarification to say:
The Director must inform the Attorney General in a timely manner of any prosecution or judicial intervention...
A prosecution is always a judicial matter; it is coupled with prosecution. If it is in the nature of a directive, I do not understand why we are talking about prosecution or intervention. It seems clear to me in looking at the French version.
There is a rule of law with which Mr. MacFarlane is quite familiar. If there is ambiguity between the two official texts of a law, the clearer one carries the day. I could argue it with the English text only, but it is buttressed by the wording of the French text.
I suggest that you might want to ask whoever you will be hearing from about this. If I am wrong about it being a judicial intervention, then it is very poor drafting.
The Chairman: Thank you for bringing that to our attention. The very fact that you have raised it will cause it to be noted by the authorities.
Mr. Lamer: They are listening to me right now.
The Chairman: That is right. Big Brother.
Senator Day: I wish to thank the Chief Justice for that last point. He indicated that he had an opportunity to study, albeit for a short period of time, the entire bill, not knowing where we wanted to focus.
Chief Justice, if over the next day or so you would like to point out any areas other than what we focused on today that raise particular concerns for you, we would be pleased to hear from you in writing.
My question for Mr. MacFarlane relates to the appointment process. I have always felt that our public service is a very fine public service. I believe that the merit principle is respected and practised, and that we get assistant attorneys general and deputy attorneys general who are very meritorious and do a fine job for us.
I am concerned about an appointment process that does not recognize that independent, meritorious appointment process where people come up through the levels with experience. We now have the Attorney General choosing 10 names from wherever, giving them to a committee that he has created, and saying, "Look at only these 10 names, pick three of them, and I will choose from those three."
That seems to me to be getting away from the principle of merit and creating the potential for partisan political interference in the selection of a very important person, the Director of Public Prosecutions.
Would it not be better if we did not give the Attorney General the right to choose the first 10 names, but rather let a committee choose the very best and submit those names? Would it not be better, as with the legal system for the appointment of judges, to let people apply for this position and the committee to choose three people from that group, and then let the Attorney General choose from those three, rather than the Attorney General initiating the base?
Mr. MacFarlane: I suppose there are different ways to do this. The systems in other countries are basically an executive decision on a single person.
Senator Day: Yes, you have commented on that.
Mr. MacFarlane: I see this as a significant improvement on that. Whether it can be improved on further is a matter of debate. It seems to me that it would be difficult to load the dice, so to speak, when you must, of necessity, put forward 10 names because they are coming from different locations. In my view, there will be attention to the merit principle at the front end. The 10 names will go forward and will be reduced to three by a committee of broad base. I would prefer this over the approaches in other countries.
Senator Day: I understand that entirely. However, we are designing our own system. We do not have to choose a system of another country; we want to choose the best system. I am not suggesting that this would be done, and I am not suggesting that an Attorney General would ever do this, but if you wanted to ensure that your person got the job, you would choose nine straw people and one good person, and then the committee would put forward that name. There is a potential, and appearance is what we are considering, not the likelihood of it being done.
Mr. MacFarlane: This is probably arises from my experience with government over the years, but I would have more confidence in the process than you would. On the perception level and the level of reality I would have more confidence.
Senator Joyal: If I understand your explanation to the question that Senator Day asked you, we are outside your three model schemes. We are a hybrid system of Manitoba and British Columbia, as I understand — a mix of policy and statutory elements.
Mr. MacFarlane: No. The federal scheme, as I understand it, is completely outside of the three models. It is what I would refer to as the traditional Canadian approach, that is a management structure with a deputy at the top, assistant deputy and then Crown attorneys below, so that the reporting relationship ultimately goes to the Attorney General, who is at the top of the fulcrum. That is the traditional approach. That is my understanding of where the federal government still is.
Senator Joyal: We are moving from that system, which, Chief Justice Lamer mentioned, has had its credibility questioned very few times — in fact, Mr. Lamer recalled only two instances. As you said, unlike Australia, we do not have a history of scandals or miscarriages of justice that would have been creating a lot of uproar in public opinion.
The reasoning to change the system presently is not based on the consideration of mishap of the system you have described as a management structure system. I understand from your presentation that with this proposed legislation we would have a statutory model like the Nova Scotia, the Quebec and the Australia model. We would be under the first model, according to this bill; am I right?
Mr. MacFarlane: If this goes forward, it would move us from what I call a traditional approach, which is a straight line up to the Attorney General, right to the statutory DPP — but a made-in-Canada approach, because there are many features in here that are new and commendable.
Senator Joyal: You said you could give the pros and cons of each model. My question is what are the cons of the model, even though it is made in Canada? I remember from your readings that you have criticized the Nova Scotia model in the past. How does this bill not reproduce the difficulties of the Nova Scotia model?
Mr. MacFarlane: My commentary in my writings with respect to Nova Scotia related to the controversies in specific cases. I was not commenting on the structure itself, but rather on the fiery controversy that developed in relation to specific cases and how they were handled.
I would hate to end my commentary with cons because I think that, on balance, Bill C-2 is a very good scheme. There are really only two cons that I can think of, and they are not in relation to Bill C-2 so much as to models generally.
The first con is that, as the Australian experience shows, where there is a DPP structure in place, that structure on occasion becomes a lightening rod for public discontent. It becomes the focus of attention, the focus of criticism and it ends up becoming a lightening rod. The answer to that might be that you need a thick skin as a DPP.
The second con I can identify, again from the Australian experience, is that it might ignite expectations that the process is forever and hermetically sealed from political attack. As a former DPP in Australia said, if the government wanted to dismantle or interfere, there are ways to do it. The DPP system, as a model, is not a hermetically sealed system that is completely impervious to interference. If the government wanted to interfere, there would be ways; however, the system guards as much as possible against that.
I also have to say that the culture and the experience in Canada is quite different than the experience in Australia. Some have described the experience in Australia, in terms of attacks against the judiciary and attacks against the DPP, as somewhat akin to a blood sport. We do not have that experience and culture in Canada.
Senator Joyal: Not yet.
Mr. MacFarlane: In my article, I made this observation. I was told this by a DPP — I should not reveal who — and it shows how even in a DPP system there can be attempts to pierce. There was a meeting between the Director of Public Prosecutions and the Treasury Board in an Australian jurisdiction and the conversation went roughly along these lines. The Treasury Board said, "One of your programs is costly and unpopular with the public. We would like you to cut expenditures." The DPP said, "No, I am not going to that; it is not in the public interest and I will continue with that program." The Treasury Board said, "Fine, you have the statutory role and the statutory responsibility to do that and I cannot interfere with that." However, then the Treasury Board asked, "What is your budget for that particular program?" The DPP replied that it was $15 million, and the Treasury Board cut the budget by $15 million.
[Translation]
Senator Nolin: Mr. Lamer, did Mr. MacFarlane's comments remind you of a specific decision regarding judicial independence?
Mr. Lamer: Yes.
Senator Nolin: With regard to the salary of the Director, is the fact that his remuneration cannot be reduced sufficient protection when we are talking about the Director's financial independence?
Mr. Lamer: I must say that if a reduction were used as a means of reprisal, that protection is useful. This is one aspect. But if his salary can be increased, it can also be decreased. Remember the salary freeze from the Governor General down to the last public servant. Several judges talked to me about it and I told them "Yes, but listen, we have to do our share just like all the others." It was a way to reduce our salaries in the sense that the inflation rate was extremely high at the time. If at some time in the future — I cannot foretell the economic future of Canada — there was a need to reduce federal budgets, starting with the Governor General and all the way down to the last public servant in the National Capital Commission, I do not see why he would be treated differently from the Chief Electoral Officer or the Official Languages Commissioner. Obviously, they too can be subject to pressures or reprisals. This legislation is not entrenched in the Charter nor in any other part of the Constitution. So it would be enough to simply say:
[English]
Bill C-2 is amended to abrogate the section that protects him from reduction of salary.
[Translation]
Senator Nolin: Unless the Supreme Court is asked to rule on the independence of the position.
Mr. Lamer: If it is done as a form of reprisal, this is a definite possibility, but if it is a fiscal measure... I had better stop there.
Senator Nolin: I got your point.
[English]
The Chairman: On behalf of the committee, I would like to say to the two of you that your testimony has been informative and enlightening. We have been impressed by the way you have helped us in our deliberations on a big, difficult bill. We have been enriched by the guidance you have given us and we appreciate the wisdom you have demonstrated in all of your answers.
We are continuing with the issue of the director of public prosecutions. We have before us now Mr. Lomer, Treasurer of the Criminal Lawyers' Association of Ontario. The association is a strong voice for criminal lawyers and others concerned with the quality of criminal justice. They regularly consult with all levels of government and the judiciary on issues relating to the legislation and administration of criminal justice in this country.
Mr. Lomer graduated from Osgoode Hall Law School and has been practising law since 1981. He is currently at Lomer, Frost, where his practice is primarily defence work. Welcome. Please make your presentation.
Michael Lomer, Treasurer, Criminal Lawyers' Association of Ontario: I am honoured to be here today. I have had a great deal of interest in this area since I was in law school and going through constitutional law in my first year. Any of you who are lawyers will remember the turgid writings of the 19th century and the early 20th century in the division of powers cases and how hard they were to read through. What I did enjoy, and it was like a breath of fresh air in the constitutional realm, was the writings of then Chief Justice Dixon, even in dissent.
The Hauser case from 1979 was interesting because it turned what was thought to be the standard division of powers in criminal law, namely, that the federal government enacted the policy and procedure and locally the provinces did all the prosecutions. I thought it was a brilliant way that the Fathers of Confederation had created a trans-Canadian model for criminal law, unlike the one we saw immediately to the south, with 51 jurisdictions of criminal law, different penalties, and so on. Dealing with crime was essentially a local issue in the community in which people lived. That is, the decision was made locally. I thought that decision was great. Then just as I was starting my articles at the Attorney General of Ontario in the Crown law office, Hauser came along and contrary to what we had all thought, that the prosecution was the inherent right of the provincial Attorney Generals, it was really at the sufferance of the federal Attorney General, who had been very quiet about this for the past century.
It is in that context that I come here saying, well, we had a brilliant idea, which was that the prosecutions would be provincial, the policy would be federal. Instead, by a dint of historical anomalies, in this case probably drug trafficking and that sort of thing, the situation changed. Someone had to prosecute drug trafficking, but it was not really in the Criminal Code because drug trafficking and drug abuse were not known back in the 1800s.
The federal government stepped in and started doing the prosecutions in that area, and we had both the policy- maker and the prosecutor in the same office. I never did like that idea. It was always an uncomfortable thing. With your chief prosecutor right next door to your chief policy-maker you tended to have almost a skewed system in a sense that there was a thumb on one of the scales. The policy-maker, without knowing it and with the utmost of integrity, would be influenced by the prosecutorial arm that was sitting next door to him. In that light I saw the advent of the DPP as one small step back, and a good one at that.
Hiving off from an administrative, federal prosecution service, which is what we have presently, and creating a statutory body, which I suspect in the years to come will be not only a separate statutory body but also a separate physical plant, will create a separate, independent arm of the government, and I think that is a return to the model that I thought was so brilliant when I was in law school — the model of the policy in one hand and the prosecutorial function well removed from that policy.
I also sit as a commissioner in the Uniform Law Conference of Canada; I have done that for three years as an Ontario delegate. The Criminal Lawyers' Association of Ontario insisted years ago that it was only right and proper that we should have a seat on the Ontario delegation. The Uniform Law Conference of Canada is interesting because there we see a genesis of many of the ideas that go into the criminal law. They percolate through that conference. They are debated by many experienced primarily Crown attorneys but also defence lawyers. After the debate, which is monitored and participated in by the federal government policy side — in fact, they are the host — we sometimes see legislative initiatives that come out of it.
I have watched the legislative process fairly closely and I must say that on the whole I see this as a good first step, because it clearly, statutorily creates an independent body. That is not a slight. I take Mr. MacFarlane's previous comment to heart; we do depend on the integrity of our ministers of justice, and by and large we have been fortunate. However, that is not the basis on which we should operate. We should have a structured, objective and independent basis. That is one justification I see for this proposed legislation.
The other justification ties into something that Chief Justice Lamer was talking about in the interpretation of proposed subsection 14 on page109:
When, in the opinion of the Attorney General, proceedings raise questions of public interest, the Attorney General may, after notifying the Director, intervene in first instance or on appeal.
I take that as well to be clearly a judicial intervention, because I think it refers to the other role of the Attorney General, which is the policy-maker. Policy comes not only from the legislation that comes forward, but it also comes from the judicial interpretation of the various clauses.
For example, if there were a challenge in a provincial court of appeal with respect to a provincial prosecution, say, for a challenge that has already been made and dealt with, but a challenge with respect to the bail provisions, the federal Attorney General would step in as the policy-maker, not as any representative of the director of public prosecutions, but to come in and say what the policy basis for this is and why we either support the application or we do not support it. It is separate and apart from the director of public prosecutions, who is in fact the prosecutor. He will definitely like to support the prosecution position, but it might be different if one looks at policy in a global or trans-Canadian sense.
I noted two other clauses when I was looking through the bill. One is contentious and is about taking over the conduct of the prosecution. I suspect I will come back to that in answer some questions. That is proposed section 15.
The other is perhaps something you take up with your drafters or the government, which is putting forward the bill. Proposed section 3 describes the duties and functions of the director. The version I have from the website states:
(b) 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.
The Crown is not always the respondent on appeals. Sometimes they lose at trial. Sometimes they want to appeal.
Senator Day: The wording now is:
(a) initiates and conducts prosecutions on behalf of the Crown, except where the Attorney General has assumed conduct...
Mr. Lomer: I have to tell you that your website is a little slower than you are. Do we have that? It is quite a bit different from the one you have on the website, I must say.
Senator Day: That is the Department of Justice website, is it?
The Chairman: There are several websites. There is the website that gives the House of Commons bill, and then the House of Commons amended bill.
Mr. Lomer: I am sorry, maybe I am talking out of my hat with respect to it, but it does looks like it appears to have been changed.
Senator Joyal: There were many changes on that clause.
Mr. Lomer: There were.
The Chairman: Maybe I could save you some time because the parliamentary researchers have told us that the problem you referred to was fixed in the House of Commons.
Mr. Lomer: I must have the House of Commons' first version.
The Chairman: What is the second problem that you wanted to bring to our attention?
Mr. Lomer: It has to do with proposed section 15. I suspect that the day the Attorney General comes to the cabinet and says he will invoke that provision is the day it will be above the fold on every newspaper across Canada, when you think about the circumstances in which you are going to have your political law officer take over from a separate, independent prosecutor general, if you will, the director of public prosecutions.
The day that that happens, it has to be because of a political issue. I was trying to imagine as I was coming up here when it would happen and one can only imagine the most horrendous of fact situations. While that provision is in there, I would caution any Attorney General to never, ever invoke it because the fallout of that would be radioactive, I would think.
The Chairman: Did you consult widely with criminal lawyers and with other associations in Ontario in your preparation for coming here today? Have you gleaned from them their views on the sections dealing with the DPP?
Mr. Lomer: Because of the time limitation, consultation was primarily within the legislation committee of the executive of the Criminal Lawyers' Association of Ontario, the governing body. They support the position I took.
We have long had held the position that policy should be separate from prosecution. That position was indicated in letters from then president of the Criminal Lawyers' Association of Ontario Alan Gold to then Assistant Deputy Minister Richard Mosley, who is now a judge. We thought that the federal government should not be involved in prosecutions if they were to be setting the policy. It was a better thing to have the policy being mentored by somebody above the fray, if you will. This bill does take one step down that road, which is a good thing.
Senator Baker: Mr. Lomer, you heard some of the exchanges that took place with the previous witnesses and the question of disclosure of directives that are made from the Attorney General to the director of public prosecutions. This says "any directive" without us knowing what the substance of those directives would be or why they would be issued. The bill goes on with some specificity on other matters but does not define what all these directives could be. The Chief Justice said "this is my opinion," without deciding the matter because he has not examined it.
Are you concerned that any directive could be sent from the Attorney General to the director of public prosecutions concerning a prosecution while a prosecution is in progress and that that information is withheld from the defence until the completion of the prosecution or any related prosecution?
We are asking you this question, Mr. Lomer — and this indicates your importance before this committee — because this committee reads case law from time to time, in our casual moments. We note that you are reported considerably over the years. You have appeared before the Supreme Court of Canada and the courts of appeal. You have done a great job representing people to the best of your ability, giving them the best defence possible. At least that is my judgment, from examining the applications you put forward concerning the Charter.
One case you argued — I think you lost the case, but it does not matter — is the Ontario Court of Appeal, 2004, R. v. Trotta. That involved disclosure. The final judgment of the Court of Appeal said that the new disclosure regime of the Court of Appeal of Ontario therefore must be limited to information which is not simply only come to light after trial but which has in fact only come into existence after trial.
The Court of Appeal says:
...A convicted accused is no longer presumed innocent. In fact, the opposite is presumed. The conviction stands unless the appellant can convince the appeal court that it should be set aside. A convicted person has also exhausted his or her right to make full answer and defence. It is inappropriate at the appellate stage to speak either of the presumption of innocence or the right to make full answer and defence. It is equally inappropriate to describe the boundaries of the Crown's disclosure obligation on appeal by reference to the presumption of innocence or an accused's right to make full answer and defence.
In this bill we have information pertaining to a prosecution which will not be given until after the prosecution has been finished, which, according to the judgment of the Ontario Court of Appeal as I read it, which you litigated —
Mr. Lomer: And lost.
Senator Baker: Yes, but it was a good try. Their judgment stands, and that is that you have no right to appeal. It would be very difficult, according to the Court of Appeal, to put forward Stinchcombe or any other argument after the conviction has taken place because of the way they have formed their judgment.
Is that the way you read it? Are you concerned about that section in the bill?
Mr. Lomer: First, we were granted leave to the Supreme Court of Canada, primarily because of the passage that you just quoted. While I agree with Justice Doherty in the Court of Appeal that the presumption of innocence no longer pertains subsequent to a conviction, the full answer in defence continues up to and including 696 applications to the Minister of Justice. It is on that basis in part that we are appealing to the Supreme Court.
It does concern me that something that could affect a verdict is withheld from the defence until afterwards, when, according to the Court of Appeal for Ontario, a different test would apply to a person that has been convicted.
I know why Justice Doherty said what he said because courts also have an interest in finality and because of organizations such as AIDWYC, the Association in Defence of the Wrongly Convicted, which, years later, keeps coming back and saying, "We found this and this." In fact, at present there is a case the Court of Appeal called Truscott, where things did not settle.
As much as Justice Doherty would like a principle of finality and there is such a thing in the courts, the reality is that, as long as we are talking about locking people up for life and that sort of thing and we do not have the wherewithal to get it right 100 per cent of the time, we will have to have certain flexibility in that principle. That is one argument we will be making.
The provision in the section you have just read will interfere but I do not think will ultimately defeat the defence, if there is merit.
Senator Baker: When are you arguing this?
Mr. Lomer: We just delayed it again. I cannot get into the reasons why. There are substantive issues coming out.
Senator Baker: Even if the Court of Appeal is determined to be incorrect in its judgment, the problem still stands, does it not?
Mr. Lomer: Yes, it does.
Senator Baker: Whereas something could affect a trial if it were disclosed during the trial, having it after the fact is not the same thing. Derivative evidence that could be obtained from that disclosure is not available. Do you agree we should be concerned about that? I know you support the director of public prosecutions, but I would like for you to answer that specifically, whether you agree with that or not.
Mr. Lomer: The timing of when these directives are published as statutory instruments is something of concern. You are quite right. You cannot say that they must be disclosed immediately because there may be valid state concerns, such as in a terrorism case or something of that nature where there are other considerations.
However, you might want to have a type of provision where there is a presumption that it is disclosed in the absence of certain clear categories of reasons not to disclose it and one of them should not be that it might affect the verdict at the trial.
Senator Baker: You heard the discussions we had with the Chief Justice prior to this and the other witness concerning this matter. You heard us, in the exchange, concerning the possibility that it could be an informant whose name need not be disclosed. You also heard the exchange regarding the duty of the Crown to disclose sealed packets and their contents and where innocence is at stake there are exceptions to every rule, and that has been determined by the Supreme Court. Do you agree with that?
Mr. Lomer: Yes.
Senator Baker: There may be excuses for not disclosing but it is difficult to come up with an example to justify a blanket nondisclosure that could materially affect the trial.
Mr. Lomer: It is, as with everything, that we find ourselves in the complex areas that we move into. It is a balancing that must be undertaken that oftentimes legislation can give direction as to the factors to be included in the balancing and factors not to be included. We have seen that, for example, with respect to release of third party records in criminal proceedings where they are told what can and cannot be included.
Senator Baker: Let me move on to the section dealing with the extension of time to 10 years. Did you hear that exchange?
Mr. Lomer: I actually did not, unfortunately.
Senator Baker: There are sections in the act that extend in a couple of acts of Parliament the time period to 10 years in which to prosecute a summary conviction offence.
Mr. Lomer: Really?
Senator Baker: Yes, really.
Mr. Lomer: I missed that. I must tell you, it was not in the original version, or I would have something to say about that. I am here under false pretences, I got the wrong act.
Senator Baker: Let me just reference you. You have used the Askov argument, on occasion, before several levels of court. That is why I am asking you the question. You have gone through the test repeatedly in court. How do you feel, in view of that, the requirements of the law today, and it would be a violation what, of section 7, fundamental justice, Askov?
Mr. Lomer: Yes, and 11(b) of the Charter.
Senator Baker: Presumption of innocence?
Mr. Lomer: No, right to a trial within a reasonable time.
Senator Baker: We have section 7 and 11(b), a provision that allows 10 years for a hybrid offence, which carry penal consequences, both the summary and the indictable. Do you believe that violates section 7 and 11(b) of the Charter?
Mr. Lomer: I think it clearly has lost sight of the meaning of summary offences. Summary offences, in their very nature, were supposed to be quick, judicious, expeditious, dealings with matters before the court. It was originally a check or balance in a system but things change when you start creating situations where you can hold on to a summary offence for 10 years, you do not have to put it before a jury, you do not have to put it into a high court or give added rights, such as a preliminary inquiry, and that sort of thing.
If we had a theft under, for example, but it happened seven months ago, why are we going to prosecute it now, when you cannot presently; you are talking about creating 10 years as being the limit.
There are, in other jurisdictions, time limitations with respect to prosecutions. We do not have any of that in this country. I represented a fellow, about to collect his old age pension, in a juvenile delinquent's court because the charge was so old when they laid the charge, it was indecent assault that went back 40 odd years. Now, go figure. We do not have any limitation period.
Senator Baker: Unindictable.
The Chairman: And you did not have any witnesses, I am sure.
Mr. Lomer: We had one, the complainant.
Senator Baker: Even if it were prosecuted indictably after 10 years, it would still raise an Askov argument.
Mr. Lomer: No, it would not because Askov is only triggered by the laying of the charge. Even using section 7, the courts have been circumspect — they might say even a brick wall — with respect to time leading up to it. You must, as a general rule, prove not only that you are missing a witness, but what that witness would say.
Senator Baker: So our argument is if it goes summary, it is a hybrid offence.
Mr. Lomer: Yes.
Senator Baker: Your opinion is it is contrary to the Charter, 10 years. Would you argue it if you had a client?
Mr. Lomer: I would argue it, but is it contrary to the Charter? It really is distorting our whole criminal process as to what we used to think was appropriate.
Senator Baker: So you would say it is an abuse of process.
Mr. Lomer: Senator Baker, you keep putting words in my mouth. I would say it is an abusive process. You should be looking at why it is you are doing that and the only reason I can see is to avoid jury trials. The only reason you are extending the summary conviction is you do not want jury trials. Ask yourself why the government is in the business of legislating to prevent our citizenry in participating in the criminal justice system?
Senator Baker: Let me just ask you one concluding question that relates to the role of the director of public prosecutions. As you see it, you think it is a good idea. This act allows the director of public prosecutions to determine, under the Elections Act, whether or not charges should be laid. Under a section of the Canada Elections Act, it is the director of public prosecutions, public prosecutor, who will decide whether or not a charge will be laid, and then following the laying of the charge by the commissioner, would then prosecute the charge. Do you have a problem with that?
Mr. Lomer: I have always had a problem in a situation where the investigator and the prosecutor are tightly connected.
Senator Baker: Let me correct that, because the investigation is actually done by the commissioner. The point is the director of public prosecutions —
Senator Andreychuk: I know your point, but I would like to hear everything. You are going too fast in your cross- examination.
Mr. Lomer: I am always concerned in a situation where there is a connection between the investigation and the prosecution. I depend, in my daily practice, on an independent prosecutor giving a case an objective examination and determining that there is no reasonable prospect of conviction or that there is, and going forward.
If the prosecutor is identified with the investigator, I do not get that independence. My understanding is the DPP does not lay the charge but prosecutes it. The DPP makes the decision whether there is a reasonable prospect of conviction and that sort of thing.
Senator Baker: Yes.
Mr. Lomer: I cannot see anything wrong with that.
Senator Baker: The example I just gave to you is in this bill under the Elections Act where it is the DPP, it is the exclusive jurisdiction of the DPP to decide under that act whether or not charges will be laid. The commissioner of the Canada Elections Act presently is the one who determines whether a prosecution shall be laid right now.
Mr. Lomer: I am really reluctant to rely on my version of the bill. Is it the decision of the DPP to charge or is it the decision of the commissioner?
Senator Baker: No, it is the DPP's decision to lay the charge.
Senator Joyal: The DPP decides to charge on the basis of the information supplied to him by the commissioner.
Mr. Lomer: If you were to parallel that to the way investigations work in every province except for British Columbia, it is the police — in this case the investigator, the commissioner — that would lay the charge, but it is the prosecutor that decides whether the charge goes forward.
In British Columbia, they have a pre-charge screening process where the police go to the Crown and say, should I lay the charge? Then they get the imprimatur of the prosecution that it should go forward. I have never had a difficulty with the system whereby the police lay the charge but the Crown prosecutes. As I said, that tracks the way things work in the Criminal Codes here in Canada.
This is a little different. This is more a British Columbia model, and I have never practiced in British Columbia. I cannot speak to it, quite frankly, as to whether or not the British Columbia model has more advantages because the Crown gets to screen the pre-charge, if you will, which is what you say the legislation does here.
Senator Baker: Let me just read you proposed subsection 512(1), page 112,
No prosecution for an offence under this Act may be instituted by a person other than the Director of Public Prosecutions without the Director's prior written consent.
Before that, on the same page, we have the director who decides to initiate a prosecution.
If the Director decides to initiate a prosecution, the Director shall request the Commissioner to cause an information in writing and under oath or solemn declaration to be laid...
It is the director of public prosecutions who decides.
Mr. Lomer: The act sets up the director as being an independent, statutorily created personage.
Senator Baker: Yes.
Mr. Lomer: I must admit, at first blush, I do not think that is problematic. It enacts what goes on in British Columbia on a daily basis. You should perhaps talk to the prosecution service there, for example.
Senator Baker: We have had a look at some of that. There are three provinces where there is some pre-charge consultation with Crown attorneys, but this goes beyond that.
Mr. Lomer: Yes, it does.
Senator Baker: Do you think that perhaps we should have a second look at this, as far as the director of public prosecutions being the one who makes the decision on whether to lay the charge?
Mr. Lomer: I have always believed that the professionalism of the police also has a role to play. In this regard, what I am referring to is that a police officer oftentimes in Ontario will go to a Crown and say, this is what I have. What do you think I should do? Should I charge, and if so, what would be the appropriate charge? This is an informal consultation. Ultimately, though, the police officer can take the advice and if he does not like the advice, he can lay the charge.
What you are positing in that legislation is that your investigator, your commissioner of elections, cannot. You might want to look at whether that is something that you might want to consider, in much the same way that we give that power to police generally.
Senator Baker: Thank you, Mr. Lomer. Keep up the good work.
Senator Joyal: I would like to come back to proposed section 15, which you just referred to in your presentation. It is on page 109 of Bill C-2.
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 to assume conduct of the prosecution and publish it in the Canada Gazette without delay.
The proposed section does not mention any reasons or circumstances under which the Attorney General should or might take over the prosecution. Should we be more specific to prevent the politicization of a decision whereby we are establishing a structure to be as independent as possible? If we are to create an exception from that independent structure, should we not specify the circumstances under which that decision is taken to remove the DPP from the procedure?
Mr. Lomer: It certainly would not hurt, but I would venture to say that everyone is going to know when the Attorney General takes over a prosecution from the DPP. I say that because it could only be as a result of a political decision.
The only concern I have is there may be legitimate reasons for not publishing such a decision. You are asking me to look into a crystal ball. I think primarily in the cases where the Office of the Attorney General has arrogated to itself in the definition in proposed section 2, primarily terrorism cases and war crimes, that it has a parallel jurisdiction with the provincial attorneys general, when the reality is it has the supreme jurisdiction; it was just too polite to say so in section 2. The case law is very clear that the federal Attorney General has the power to take any prosecution it chooses without a by-your-leave from the provincial Attorney General. It just never is done.
I would be reluctant to say that he has to publish in all cases. In the vast majority of cases where a political decision has been made to take over from the DPP, everybody will know it because it will be, as I said, above the fold in the newspaper. You could be sure that the press will be interested in the reasons for — and speculating on the reasons for — causing questions in the House. It will have a very large effect.
To require reasons to be addressed at the time that the decision is made could have fall-out with respect to the prosecution itself. For that reason, it perhaps would be unwise to make it a fundamental requirement.
Senator Joyal: In relation to the last comment that Mr. MacFarlane made — I do not know if you were in the room when he referred to an article that he published, whereby he drew our attention to the quote "budgetary independence" of the DPP. As you know, there is no provision in the proposal dealing with the financial implication of that new public officer. The Canadian Bar, in its brief to us, recommended that the process of budgetary request and allocation be transparent and a legislative provision should be made for the allocation of additional resources for extraordinary prosecutions.
In other places in Bill C-2, when we are dealing with other officers, there is a public budgetary process. The minister has to take the request for the budget and bring it to the Treasury Board. We know that there is a transmission.
Here, as Mr. MacFarlane has pointed out to us, there is nothing that gives that budgetary independence to the DPP. The example that he gave us from Australia is very telling.
Mr. Lomer: Yes, it is quite a chilling example.
Senator Joyal: You are informed you have no more budget, thank you, good-bye. We have had some examples of that recently whereby the Law Reform Commission of Canada was advised that there is no budget for it, but it remains on the statute book. It is a way to intervene and, in fact, implement a political decision.
Should we be concerned that there will be a kind of budgetary process that protects the institution if we are to keep it as an independent structure of operation?
Mr. Lomer: I would be particularly concerned in the provincial sphere, where victim witness programs frequently relate to charges in respect of young children, if a policy decision were taken by a government to deem this fluff and inappropriate while the DPP thinks it appropriate because it helps with the prosecution. Currently, you are not doing child prosecution cases in the office of a DPP but that is not to say it might not happen and the debate on the appropriateness of it could be cut off if there is no transparency policy with respect to the budget.
I agree with Mr. MacFarlane's example that it could be very chilling. It is rather like policy by starvation — you cut off the flow of funds for that particular program and that ends it.
Senator Joyal: In consideration of the annual report, proposed section 16 at page 109 says that the DPP would report to the Attorney General and that the Attorney General would cause a copy of the director's report to be read in the House of Commons. There should be reference to the budgetary implications of the operation of the office of the DPP. In that way, Parliament would be informed each year of the budget status and financial condition under which the DPP operates. Provided there is a specific reference to the budget in the annual report, Parliament could raise the issue directly about the DPP independence on financial matters.
Mr. Lomer: Certainly, it would add to the independence of the position. If you have an annual report by the DPP on its budgetary aspects as well as its prosecutorial aspects, then it could be examined in greater depth with the need to address the issue of whether certain prosecutions are not done because of cost limitations.
Senator Joyal: Otherwise, the figures will be buried in the Department of Justice's overall budget, and we know how that gets here by Parliament. On the basis of what the Canadian Bar Association is recommending at page 17 of its brief, we could consider that, given the testimony of Mr. MacFarlane in respect of his previous experience.
Mr. Lomer: There is no doubt that the government wants to make a transparent and objective department of public prosecutions, which I think is good. Anything that would add to that transparency at the outset is also good. As senators heard from Mr. MacFarlane's example, one additional item would be in respect of setting policy for the budget of the office of the proposed DPP in such a way that it might not be seen directly but, nonetheless, it would have an impact. Yes, I would agree with you, senator.
Senator Andreychuk: I am a bit confused by your answer to Senator Baker and Senator Joyal. If the Attorney General intervenes to take a case and publication can be delayed in the interests of the administration of justice, a balancing act, I believe you said, might be necessary in that you might be prejudicing the accused in the trial if you do not have all the facts, et cetera. Do you, "in the best interests of the administration of justice," weigh those facts? I do not think any Attorney General could not weigh the issue broadly as well as specifically within a case before he comes to a judgment. Was that your reference when you said "balancing act?"
Mr. Lomer: Senator Andreychuk, we are talking about the release of the reasons behind the decision for the Attorney General to intervene and take over a case. Currently, the proposed section does not say that there must be any reason released for such a decision. I suggested a possible solution to the impasse between no reasons released and reasons released, where appropriate, would be that balancing act. That would mean adding another subsection to state that reasons shall be released contemporaneous with the decision in circumstances where the administration of justice is not compromised by the release. A number of relevant factors could be added.
Senator Andreychuk: Yes, that was my point. How could it be said after the fact without disclosing the information? I would assume that facts would not be disclosed because of the sensitive nature of the information, whether connected to national security or other issues.
Mr. Lomer: I do not see it in national security cases necessarily.
Senator Andreychuk: I use it as an example only.
Mr. Lomer: I understand. I see this applying in a case where a member of the government or cabinet is charged with a criminal offence and the Attorney General intervenes at a time when clearly it has become a political issue. That is why I said there would be nuclear fallout should the Attorney General ever exercise this section. Certainly, the reasons for such an intervention will never be flattering, unless it is a truly good reason. Then the Attorney General would want to release it.
The proposed section says that no reason ever is needed. I suppose the only good thing I can say about no reasons ever is that the likelihood of an Attorney General intervening is pretty slim. With an independent prosecutorial service under a DPP, why would there ever be a need for an Attorney General to intervene and take over the prosecution of a case. I simply cannot see that happening. Politicians would understand the virtue of having an independent organization to deal with such an issue rather than deal with it themselves by taking over the prosecution.
In summary, there is merit in having reasons released in the terms that I described earlier. As well, it is unlikely that we will see this section exercised at any time in the near or distant future.
Senator Andreychuk: The prosecution offices across Canada are subject to the budget and are not separate in any way. At one time, discussions took place on the idea of separate budgets for prosecutors and the offices of the provincial attorneys general. That would create some independence and allow them to determine their own conduct. It is my understanding that they are still subject on a line-by-line basis under the provincial attorneys general, as are legal aid offices, in many instances.
Mr. Lomer: That is correct. Although I speak from only a bit of knowledge on the subject, in Ontario the Crown attorneys have managed to create a principle that links their most senior members' salaries to the salary of the provincial court in terms of the quantum. The salary of the provincial court is determined by an independent body, thereby creating a cascading effect on salaries down to senior members. I do not look into this area frequently but rather I hear about it from colleagues, some of whom are beneficiaries of that system.
Senator Day: Mr. Chairman, thank you for recognizing me but, given the time, I will pass.
The Chairman: Mr. Lomer, I thank you for your testimony today.
The committee adjourned.