Proceedings of the Standing Senate Committee on National Finance
Issue 14 - Evidence
OTTAWA, Wednesday, October 23, 1996
The Standing Senate Committee on National Finance met this day at 5:15 p.m. to examine the Main Estimates laid before Parliament for the fiscal year ending March 31, 1997.
Senator David Tkachuk (Chairman) in the Chair.
[English]
The Chairman: Honourable senators, I apologize for being late. I call the meeting to order.
This is the fifth meeting of the committee on the examination of the Main Estimates, 1996-97. From the Department of Justice, we have Mr. George Thomson, Deputy Minister. Welcome.
Proceed, please.
Mr. George Thomson, Deputy Minister, Department of Justice: Mr. Chairman, I welcome the opportunity to be here tonight to discuss the Main Estimates of the Department of Justice for 1996-97. I will be very brief because I know you will want to protect the time for discussion and questions.
[Translation]
As you know, the Department of Justice is responsible for handling the government's legal affairs in their entirety and for providing legal services to every government department or agency. Its responsibilities consist primarily of offering legal advice and other services and handling disputes involving the government.
[English]
We have a budget for 1996-97 of about $450 million. As you know, budgets are dynamic over time, and the department's budget is no exception. In essence, our budget is $3.7 million more than the 1995-96 Main Estimates. We have been subject to a number of reductions, about which I can speak later. In some cases, these reductions have been offset by specific resources for specific purposes. For example, we have moved a substantial amount of money from the Department of Health over to us. It was money ear-marked for dealing with outside agents. Those funds have offset some of the decreases; however, it is money transferred from another department, which explains why our overall change from year to year is slightly increased. However, in general, there have been some substantial reductions in the department budget.
Our budget is made up of two major components, one of which is an operating budget of $190 million, approximately 42 per cent of the budget. That is the budget we use for operating the department itself. We then have a separate grants and contributions budgets of $260 million, which accounts for 58 per cent of our budget. That 58 per cent consists almost entirely -- 95 per cent of it -- of transfers to the provinces and the territories for cost-shared programs such as legal aid, the young offenders agreement, the native court worker program, and the firearms agreements that we have with the provinces. That is the larger share of our budget. The rest is our operating budget.
We introduced a new operational plan framework for this year which is based on three business lines for that part that relates to our general budget.
Senator Cools: Mr. Chairman, is the witness reading from a statement? If so, I do not have a copy of it.
Mr. Thomson: I did not bring a prepared statement to hand out to members of the committee, senator. I would be quite happy to give honourable senators a copy of what I am reading from after I have finished my opening remarks.
We have divided the business lines of the department into three parts. As I said, one of them is government client services, which are the legal services we give to other departments of government and to the government as a whole. Another part is our legislative services, which accounts for about 74 per cent of our budget. Another part is our law policy, which includes policy development and programs. If you exclude the grants and contributions part of that budget, the policy side accounts for about 11 per cent of our operating budget.
We then have the administration side of the department which accounts for about 15 per cent of our operating budget.
[Translation]
The number of requests that the department receives for legal counsel and litigants continues to increase. In the past several years, we have put in place a number of initiatives aimed at improving our services while limiting costs.
[English]
I can mention a few of those. Notwithstanding budget and fiscal pressures, the demand for our work is going up and not down. Given that all the work we do is essential and not work that we can simply give up doing, in order to absorb the cost reductions we have focussed on a number of things. I will mention two or three.
The biggest item is what we call our client-driven services initiative. In this process, we sit down with each of our clients and enter into a contract setting out, overall, what legal services we have and can provide, where the priorities are, and how those services might be provided in future years, including how we might absorb reductions in the overall budget for the legal services of that client.
We are introducing measures such as time keeping for our lawyers and others in the department so that we are able to report accurately how we are using our services on behalf of that client. We have reorganized the department into portfolios that relate to our largest clients or groups of clients. Through this planning process, it is possible to look at all the resources spent on behalf of a client. In this way, for example, we could decide potentially to invest at the front end in terms of legal services that might avoid the need for litigation at the back end, which is much more expensive. A major part of our work is to alter the way in which we do business as a department.
We have 23 service agreements now in place with our major clients. We are beginning a second year of planning with those clients.
Senator MacDonald: By "major clients," you mean departments and government, do you not?
Mr. Thomson: Yes, I am talking about the departments. We offer legal services to all departments.
Senator MacDonald: They are your clients.
Mr. Thomson: Yes. The government as a whole is also our client. We deliver direct legal services from a legal services unit within a department, from our head office, or from our regional operation. We deliver litigation and other specialized advice. When I talk about 23 agreements, I am talking about 23 different departments of government.
We are trying to introduce service standards for a range of our services. We have been looking at re-engineering the way we deliver a number of our services. I am sure you have heard that word before, but we have been looking at the business itself to try to come up with ways to deliver it more efficiently. We are in the process of introducing case management systems to enable us to manage our cases more efficiently. We are experimenting with a cost recovery project as part of these agreements, that is, a user-pay plan, with two or three of our clients.
As a second example, we have put major emphasis on what we call our dispute resolution policy, promoting the use of forms of dispute resolution other than only court-based resolutions as a means of resolving matters earlier, less expensively and more efficiently, thereby reducing pressures on our court system and also on clients.
We have pilot projects under way in some of our regional offices -- they will be underway in all of our regional offices in the next few months -- whereby we take groups of cases and determine whether, by the inventive use of different kinds of dispute resolution, we can resolve more of these cases earlier and more efficiently. We are training all our lawyers in dispute resolution techniques as a means of doing that.
As the third example, we are developing a litigation strategy on our criminal law side. The bulk of criminal prosecutions are done by the provinces, but we are in charge of prosecutions in the north and across the country in areas such as drug enforcement. We are studying a litigation strategy which puts emphasis on the early stages of the criminal process in order to resolve matters early where possible in order to reserve time for the more difficult and complex cases.
Those are only three examples. There are other areas about which I would be happy to speak. However, I think that is all I should say at this time. You have the outlook document. I think you also have a document which outlines the priorities and initiatives of the department over the last year.
I would be happy to answer your questions.
Senator Stratton: Welcome and thank you for attending.
I am referring to the Part III of the Estimates, page 25. With reference to Bill C-68 and firearms, you are in the process of developing regulations, negotiating federal-provincial-territorial financial firearms agreements, and establishing the Canadian Firearms Registration System and the Users Group on Firearms.
What is the status of that initiative?
Mr. Thomson: We are actively developing the regulations which must flow from the bill. We will soon be introducing a large number of those regulations in the House of Commons because they are subject to House review. We put a great deal of work into developing the system needed to support both the licensing program and, ultimately, the firearms registration program. That has involved substantial work with the provinces, at least those provinces still involved in helping us implement the program.
Senator Stratton: Is it correct that certain provinces have backed off and are not negotiating?
Mr. Thomson: Yes, certain provinces and the two territories have indicated that they will not be participating in the implementation of either the new licensing scheme or the registration scheme.
A number of provinces are still involved, including Ontario and Quebec. We are working with them to implement it. In the other provinces, we are looking at developing an implementation program without the involvement of the provinces.
Senator Stratton: Can you actually do that?
Mr. Thomson: Yes, we think we can. Much of the work is done centrally. Some of the local work is done through the RCMP, so there will be a more substantial and direct RCMP involvement. We do think it is possible to develop an implementation program even though the provinces are not participating. However, it is taking some special work to prepare for that.
Those provinces have indicated to us a willingness to move out of the program as we move in. They are not proposing to simply withdraw overnight. They are currently actively involved in implementing the Firearms Acquisition Program and the screening program which now exists in the provinces.
Senator Stratton: Were any draft regulations issued?
Mr. Thomson: A set of regulations was introduced in May. Those regulations were withdrawn in order to do further work on them and to combine them with the broader package of regulations which will be introduced this fall. We hope that the House of Commons will review the proposed final version of those a little later this fall.
Senator Stratton: Those regulations were developed, sent out in draft for comment, and then pulled back. Why were they pulled back?
Mr. Thomson: That was primarily because it was felt that we would benefit from further discussion about them. There was no necessity to have them passed in the spring. Indeed, they were not introduced in time to be passed in the spring, so the decision was made to pull them back and engage in further discussions with groups such as the users' committee which is mentioned in the book in order to develop them further and then add them to the larger package this fall.
Senator Stratton: Does that imply an adverse reaction by the users' group?
Mr. Thomson: It implies a desire on the part of the users' group to have more involvement and more time to review those regulations.
Senator Stratton: Do we know how much this has cost to date?
Mr. Thomson: We know how much money has been allocated to the Department of Justice for the developmental work that is taking place this year. That includes the development of the systems, the development of the regulations, the broader consultations with aboriginal communities, and setting up the firearms centre. The estimate is about $16 million for this year.
Senator De Bané: Mr. Deputy Minister, on the question of gun registration, the bill that was passed by Parliament last year, do the provinces have any discretion in not implementing that registration system?
Mr. Thomson: As you know, the provinces have done two things: They have indicated that they are not participating in implementation, and they have also taken the government to court challenging the constitutional authority to implement the legislation. We are resisting that, arguing that we think there is clear constitutional authority.
Should there be a decision by a court that the constitutional authority does not exist, then clearly there is no obligation to implement the legislation. If the decision is that the legislation is constitutionally valid, there could be some debate about whether it is possible to require that some elements of this act be implemented.
However, the minister has indicated that, in the face of their unwillingness to implement, we would do it directly.
Senator De Bané: Assuming that the law is constitutional, is it lawful for some provinces not to implement the Criminal Code?
Mr. Thomson: I was speaking only to the registration and licensing system in my earlier answer. Assuming it is constitutionally valid -- and I have no doubt in telling you that the Criminal Code provisions are constitutionally valid -- there is no choice but to implement that part of the legislation.
Senator Bolduc: In looking at your outlook on program priorities and expenditures and the overview of recent activities and departmental achievements, I notice that you have something like 1,300 lawyers in the department; is that true?
Mr. Thomson: Yes. I believe it is just under that number.
Senator Bolduc: Would you be kind enough to give us more detail on that? I understand you have 23 agreements with various departments. As well, you serve perhaps another 12 agencies. That amounts to 35 organizations. How many of those lawyers are working in your department, and how many are working elsewhere? Who are your biggest clients?
Mr. Thomson: They all work for the Justice Department. Approximately half of them -- and I would have to get the exact number for you, senator -- work in the regions. We have regional offices across the country. We have regional offices in Halifax, Montreal, Toronto, Edmonton, Vancouver, and two in the North. Then there are sub-regions.
One of our three largest clients is Revenue Canada. We do a great deal of work for Revenue Canada. We do all of their tax work; we do all the tax collection work; we do the tax prosecutions.
We do a substantial amount of work for DIAND. That work has grown over the past number of years, particularly as the amount of litigation land claims work has grown.
The Department of Citizenship and Immigration is a very large client. We do all of the immigration work, all of the court work in relation to that, as well as legal advice.
We then give legal advice to all of the other departments. Some are larger than others. Health is quite large because all of the drug prosecutions. We do all the drug prosecution work across the country. The bulk of that is done either by lawyers in regional offices or by outside agents who are retained to do that work. That is funded through the Department of Health, although the bulk of that is moving over to us.
We do quite a lot of work for the Solicitor General.
We also have legal advisory services within each of the departments, and they generally are larger if the department is larger. However, some are quite small. Some departments only have two or three lawyers.
There are a number of lawyers who do criminal support work. We have lawyers who give special advice on the charter, on human rights, and on administrative law. We have a small group of lawyers who work on unity issues.
That is the range of work that we have has a department.
Senator Bolduc: Do you also do work for the Department of Foreign Affairs and the Department of International Trade, or do they have their own people?
Mr. Thomson: We have a unit within the Department of Foreign Affairs -- we actually lead it jointly with Foreign Affairs -- which deals with international trade issues. We also have Justice Legal Services within Foreign Affairs. It provides standard legal services to Foreign Affairs.
Senator Bolduc: I understand that part of the work for the departments is to provide legal advice to the minister and the deputy minister.
Mr. Thomson: That is correct.
Senator Bolduc: Some of the work is also on actual cases where there is a conflict with someone else. In those specific cases, I suspect that you give contracts to private lawyers.
Mr. Thomson: That is correct.
Senator Bolduc: Do you have any idea how much you do yourself and how much you subcontract?
Mr. Thomson: Our Crown agents' work was about $40 million last year. Our agents are both our criminal prosecutors and those who help us on the civil side. About $40 million worth of work is done by outside agents, and about $20 million of that is drug prosecution.
Senator Bolduc: With respect to your budget, which is half a billion dollars, I suspect that half is for the 1,300 lawyers.
Mr. Thomson: Well over half our budget is grants to the provinces. If you set that aside, the amount that is left of our overall budget is $190 million. Of the $42 million last year for legal agents, not all of that would come out of the Department of Justice. Most of that is paid by clients and is over and above the portion of the $190 million that is spent on lawyers. The portion of the $190 million that is spent on lawyers would exceed 50 per cent of our budget if you count all the lawyers working for Justice. We have approximately 2,400 or 2,500 people working in the department.
Earlier, you quoted the figure of 1,200 to 1,300 lawyers. Something in excess of 50 per cent of our budget would be spent on lawyers' salaries. I cannot give you the exact figure, but I can get it for you.
The Chairman: Are there lawyers in other departments?
Mr. Thomson: Lawyers are located in other departments, but they work for the Department of Justice.
Senator MacDonald: It is good to see Mr. Thomson again. We remember him well and, I think, favourably. He was certainly a forthright and excellent witness before that long, drawn-out committee of a few years ago. Your attendance here reminds me of a number of things.
Some two years ago, a circular was distributed to some people from a man in the law sector. It was a guideline updating of the original PCO guidelines as to the handling of questions from parliamentary committees and things of that nature. It has never seen the light of day. Do you remember the name of the man?
Mr. Thomson: I remember appearing here and discussing that issue, and I remember referring to some work that was being done by Henry Milot.
Senator MacDonald: That is the man.
Mr. Thomson: There is material that Mr. Milot has prepared, and I would be happy to make it available to you.
I circulated across the department my remarks before this committee clarifying the role of counsel. I made clear what I thought the role of counsel was before a committee. I think we also circulated some other material that I will have to gather. However, we never actually decided we needed to finish Mr. Milot's opinion. We felt we had established an appropriate role in the presentation that I made to the committee that day.
Senator MacDonald:Is this paper available in whatever state of readiness it may be? It would be very helpful. As you know, we are bedeviled in parliamentary committees.
Senator Cools: We are not clients.
Senator MacDonald: We are always caught between cabinet confidences and solicitor-client relationships. It is difficult to get information.
Mr. Thomson: I understand the issue. The clarification I gave to the committee probably goes further or is more explicit with respect to our role in relation to committees than perhaps anything produced by Mr. Milot or otherwise.
Senator MacDonald: Are you referring to the testimony before the Scrutiny of Regulations committee?
Mr. Thomson: That is correct, not before the inquiry, but the actual testimony before the Scrutiny of Regulations committee.
Senator Cools: It is nice to see the witnesses, and I welcome the cast of thousands. It is quite impressive to see all of you. Perhaps if we could learn how to be either users or clients, we would have a better advantage.
Senator MacDonald's question activates an issue in my mind. I read your testimony before the Pearson committee with some interest. You went into substantial detail on the issue of solicitor-client privilege and confidentiality. On reading your testimony, Mr. Deputy Minister, I found that there was no issue of privilege at all. There was perhaps an issue of confidentiality, but you seemed to use the terms interchangeably on that committee. I remember reading the testimony on that committee and thinking to myself, "I wish I had been on that committee." The issue of privilege only comes into play if there was any danger of any senator suing the individuals. There was no issue of privilege.
Since we have you here -- and since you have just relied on the previous testimony -- perhaps you could clarify for us again the difference between "confidentiality" and "privilege".
Mr. Thomson: When I appeared before the inquiry, we talked about both. We talked about information that could be subject of confidentiality -- for example, cabinet confidences. We also talked about the solicitor-client privilege and the fact that it exists, although it is the client's privilege and not the lawyer's. We also talked about the power of committees and discussed the issue of the power of inquiries to obtain information.
I think I later clarified in a letter to the committee -- perhaps to Senator MacDonald -- what I thought was the legal authority to obtain that information and how broad that authority went. I need to remind myself of that because it has been some time since I reviewed it, but there was a clear distinction made on the issue of cabinet confidences. There was material in that inquiry where we were dealing with cabinet confidences.
There was also the issue of privileged material, and it was my view that, ultimately, the committee had the authority to require that the solicitor-client privilege be overridden and that the information be provided to them. However, I set out a number of circumstances where I felt that should not be done or processes that I thought should be followed before such a decision was made. I pointed out that it would be in the hands of Parliament to require that information to be provided in circumstances where it was not.
That is the distinction I drew at that time.
Senator Cools: I know the issues quite well. I have studied them quite thoroughly. There was no issue of privilege because the Senate committee was not about to sue. Privilege is about the issue of liability from civil action. A committee was seeking information. The witnesses were giving information to those who were seeking it. They were not at risk from the Senate. No senator was going to sue anyone. Perhaps we could revisit that in another setting.
Senator MacDonald: Did I understand you to say that your budget for outside agents or private law firms was approximately $42 million?
Mr. Thomson: Yes. It was just below $40 last year. We are taking some steps to bring that amount down. It has been as high as $47 million in 1992-93; $38.8 million in 1995-96.
Senator MacDonald: Since all these happy memories are coming back, I have one question on the ex gratia payments.
The item is entitled, "Compensation for Cancellation of Pearson International Airport Transfer Settlement", and it is to Mr. Gouge in trust. The figure is $1.561 million. Was that for the settlement of part of the claims made from the partners in the consortium?
The Chairman: Are you referring to the partners in Paxport?
Senator MacDonald: Some of those claims were settled.
Mr. Thomson: We settled some of the claims, and sums were paid. It would be in that amount or a bit more. I do not know whether that specific payment was made. Could you refer me to the specific page?
Senator MacDonald: I cannot find the page number. I ripped this page out.
Mr. Thomson: I may need to obtain that information for you, senator. It is either that or for other fees paid. The amount would suggest to me that it must have been a settlement for one of the claims.
Senator MacDonald: It is found in section 1022 under "Payments of Claims Against the Crown, ex gratia payments".
Mr. Thomson: I am quite sure that will be in settlement of one of the actual claims. We settled three or four of them a year ago.
Senator MacDonald: Was it during the time of the Pearson inquiry? Mr. Gouge was the lawyer representing Mr. Robert Nixon, and this money is paid to him in trust to settle some of these things. I wish to know what it was.
Mr. Thomson: I do not know the exact date, but I could get it for you quite quickly and easily. I can also get you the details of that payment and what it was for. I think I can provide that to you fairly quickly.
Senator MacDonald: Thank you.
The Chairman: Concerning that payment, what does "pay in trust" mean? When you "pay in trust", does that mean he was paying someone else?
Mr. Thomson: Normally he would receive payment on behalf of someone else, for example, a third party or a client, and then the money is transferred on. My guess is that would be for a third party to whom the sum would then be transferred by the law firm which received the money.
The Chairman: It would not be for work that may have been billed into his firm and then paid out, for example, if he hired another law firm or accounting firm. Is it possible that he would have received money in trust to cover costs?
Mr. Thomson: It is possible that a lawyer can receive money in trust to cover costs to be billed to third parties. I have no idea whether that was the case here. The amount would suggest to me that it was probably a sum received for the purposes of paying a settlement, but I would have to check that.
The Chairman: I was also at the Pearson airport inquiry, and I have other questions on that. Surely you knew that questions about that would arise.
I had trouble last week in the Transport Committee. We had actually phoned a week ahead and said that we would be asking questions in a particular area. Frankly, those questions were not answered, or there seemed to be some difficulty in answering them.
Did you not think that questions on the Pearson airport inquiry would arise? I am surprised that there is no answer to that question.
Senator De Bané: Wait a minute. I object, Mr. Chairman. Senator MacDonald asked a question. The deputy minister replied, "I will get you the information, and I will get it quickly." That should close the matter.
The Chairman: I just asked a question.
Senator De Bané: He cannot be more straightforward than he has. Senator MacDonald was happy. Why are you complaining?
The Chairman: Could you answer my question?
Mr. Thomson: Yes, I had anticipated that I might be asked some questions about the Pearson airport matter. However, I had not anticipated that I would be asked about this specific payment, particularly payments relating to the settlements made one year ago, and I do not have the information.
Senator Cools: Are you aware of or have you been informed of this committee's second report of Tuesday, March 26, 1996? Have you seen that report?
Mr. Thomson: What is the subject?
Senator Cools: It would be the report of this committee of March 26 on the consideration of The Estimates. The report speaks to the testimony of two of your departmental officials. Were you apprised of this?
I see at least one of those officials here today. Were you informed of this report?
Mr. Thomson: I would have to look at it to satisfy myself one way or the other.
Senator Cools: I will give it to you. I have highlighted the relevant sections. I would have thought your people would have briefed you on this report.
Mr. Thomson: I have in fact read the transcript of the testimony which led to this report.
Senator Cools: The feeling of many committee members at the time was that the committee was left with some confusion on some of the subject matters. The latter paragraph of the Senate committee report states:
Justice officials undertook to supply the Committee with responses to some of these questions at a later date, and the Committee indicated that it might pursue the issues when it examines the 1996-97 Main Estimates.
To the extent that the committee was left in some confusion last time, perhaps you could shed more light on those issues.
I will hand the report back to you. I carefully highlighted the two relevant passages from this committee's second report dated Tuesday, March 26, 1996.
The Chairman: Is there a question which has not been answered?
Senator Cools: Yes. At the time, the two officials told us we would get more information later, and it has never been forthcoming. At the same time, if I may refresh senators' memory, it seemed as though we had the wrong officials before us. We were very eager to hear from the right officials in order to clarify those questions dealing with payments on Legal Aid, issues about Airbus, and several other questions placed by senators to the Justice officials at that time. To the extent that the committee has never had proper clarification on those issues, I thought we should begin by asking for some clarification.
Mr. Thomson: I am just advised by Mr. Mehat, who was one of the two witnesses on that day, that Mr. John Sims from the Department of Citizenship and Immigration had agreed to provide some material, including the existing Legal Aid agreement. We are in the midst of finalizing a renegotiated agreement with the provinces.
Mr. Mehat and I do not know whether Mr. Sims sent you that agreement. I am quite prepared to put it in your hands. I do not know whether it has already been provided.
The questions, in general, related to whether the Legal Aid plan in Ontario was being run in a way that involved fraud on the part of some lawyers dealing with the plan. We felt that the obligation to ensure there was no fraud and to administer the agreement was in the hands of the province. We contribute cost-sharing dollars for a specific purpose. Should it be discovered that the funds were being used for a different purpose, we have the opportunity not to pay the money or to take the money back.
We do not have evidence to suggest that the money that we contribute to the provinces ought not to have been paid then or at present. We do not have evidence of a kind of fraud that would affect our agreement in any way. I am not able to advise you whether, at the provincial level, there is evidence of fraud which the provincial authorities are following. I do not have that answer. That is an issue.
Whether you are talking about administering legal aid or applying the criminal law and administering justice in the province, it is in the hands of the provinces. It does not list here the actual requests made.
Senator Cools: That would be in the committee proceedings.
To enlighten honourable senators, these questions flowed from a report of the law society which suggested quite strongly that there was fraud within the immigration bar and within legal aid. At the time, I was seeking to ascertain whether federal dollars were involved.
Perhaps, Mr. Thomson, since your responses are somewhat sketchy, I could ask you to look at the particular report of the law society in question and at our committee report, and then you could return and meet these questions in a more thorough way. That may be the best way to handle this sort of thing.
Mr. Thomson: I would be happy to provide whatever information was undertaken to be provided if it has not yet been.
Senator Cools: The committee proceedings themselves mention the particulars.
My next question involves the outside help, the various people that you hire on your lawsuits. I have before me a press release from your department dated August 12, 1996 in the matter of the Airbus lawsuit. It announces the intention to hire certain legal specialists in law who are obviously being retained in some form to work on the lawsuit.
The person's name that comes to prominence immediately is that of Michael Code. Perhaps you could tell the committee how you know Michael Code, who retained him, what was he retained to do on the Airbus case, and how much is being paid or has been paid to him.
Mr. Thomson: Mr. Code was retained by the department to provide an expert report in response to expert reports filed by the plaintiff in this matter. Mr. Code is a defence counsel in Ontario. I know him as a defence counsel. He also worked for a period of time in the Ministry of the Attorney General of Ontario where we both worked as assistant deputy ministers. He is now back in the defence bar. He is an acknowledged expert in criminal law and teaches in the areas covered by his expert report.
He was retained to prepare an expert report relating to the issues of the prosecutorial power; the independence of the prosecutorial authority; and the appropriate role of police, Crown, attorneys general, and other officials in the managing of matters that relate to a police investigation.
He prepared a report. It was filed in the court case in early August. He billed for it. I have a figure here for all the money spent on expert witnesses. I do not know the exact amount.
Senator Cools: Is he an expert witness or an expert lawyer?
Mr. Thomson: He was retained as an expert witness. He was retained as a lawyer to prepare an expert report to be filed in the case. He is not a counsel on the case.
Senator Cools: I am interested in the amount that he was paid.
Mr. Thomson: I know that the total amount spent on expert witnesses to date is $66,000, but I do not know what portion of that was paid to Mr. Code. I may have that information here somewhere. We will look for it as you continue, senator.
Senator Cools: How much money has been spent by the department on the Airbus case and, in particular, how much money has been paid to Mr. Code or Mr. Sheppard?
Mr. Thomson: I can tell you that the expenditures to date are $720,000. The amount spend to date on Crown agents is $532,000. That is shared.
Senator Cools: Is that in addition to the $720,000?
Mr. Thomson: No. I am breaking down the $720,000, $532,000 of which is payments to Crown agents, one of whom is Mr. Sheppard, and $66,000 has been spent on expert witnesses.
Senator Cools: Is that included in the $720,000?
Mr. Thomson: Yes, it is. As well, $124,000 has been spent on other operating costs.In total, that adds up to $720,000 spent on this file to date.
Senator Cools: Of the $500,000 paid to Crown agents, how much has been paid to Mr. Code or Mr. Sheppard?
Mr. Thomson: The firm of which he is a member -- and that I think there are more lawyers than Mr. Sheppard putting time in on this case -- has received $318,963 as of the end of September.
Senator De Bané: May I ask a supplementary?
[Translation]
Mr. Deputy Minister, in the document which you distributed entitled "Overview of Recent Activities and Departmental Achievements", as well as in your opening statement this afternoon, you spoke of one initiative, the dispute resolution program, which is being expanded. As you stated, the department's dispute resolution initiative focuses on preventing disputes from arising and dealing with those that do arise as early and effectively as possible in order to avoid the court becoming the only avenue of recourse.
Some time ago, the newspapers reported that the defence attorneys and Mr. Mulroney's lawyers discussed the possibility of reaching an out-of-court settlement.
If I can give you my own personal view, I think it would be good for the welfare of the country to make every possible effort to settle this civil action out of court.
I am speaking as a citizen. Not only has this action placed a tremendous burden on Mr. Mulroney's family, I would assume that it has also cost him as much money as it has the federal government. However, if this action is allowed to continue, the reputation of the state, of its institutions and of the Department of Justice will be affected. The public trust will be undermined and Mr. Mulroney will face further personal hardship. I do not even want to think of it.
[English]
We cannot even overestimate the damage that it can bring to our country. I do not know the details of this, but I am asking you to put as much effort as possible into that dispute resolution process you talked about and to settle this case out of court.
I should like to tell you one thing that has shocked me. I was reading the defence tabled by the Crown. One of the paragraphs alleges that perhaps his reputation has been damaged because a certain paragraph has not been written properly, but the damage would have been almost the same if it had been drafted properly. When I read that, I wondered about that kind of argument.
Mr. Deputy Minister, you have explained in detail all the advantages of dispute resolution. I ask you, for the common good, to put a great deal of effort into that. I know you have tried. The papers have told us about it. The effort failed, perhaps because of a leak which should not have happened. However, I am making a personal plea.
Mr. Thomson: Thank you, senator.
Senator Cools: Senator De Bané has said something very sensitive. I am pleased he has put it on the record. No one fought Mr. Mulroney harder than I, but this entire case is just so horrific. I do not understand how, with 1,200 departmental lawyers, this matter cannot be brought to a judicious conclusion by the Department of Justice.
Having said that, I am quite prepared to defer. If there is time, I will come back.
[Translation]
Senator Rizzuto: Mr. Chairman, what is the department's current position? Is it leaning toward an out-of-court settlement or does it intend to pursue this matter via the courts? It is important that we know.
[English]
Mr. Thomson: It is not permissible or appropriate for me to comment on a particular case or the particular position of the defendant, which is what we are in this case, at any particular time in this proceedings, so I really cannot comment other than to say I hear the request that has been put forward by Senator De Bané.
I would say once again that our overall goal is to resolve matters before the courts as expeditiously and as efficiently as possible -- ideally, to resolve matters out of court where possible. That is our position with all civil matters.
I hear your suggestion that that be particularly the approach taken in this matter. I think that is as far as I can go at this time.
Senator Cools: Why can you not go further? Since we are dealing with public expenditure, and since we are dealing with public policy decisions to spend money, why can you not go a bit further? Why can you not share with us some of the policy decisions or expenditure decisions involved in these issues? Why can you not tell us this?
Mr. Thomson: I can provide you with information about expenditures made, and that I have already done. I think it is quite inappropriate for a Deputy Attorney General to be publicly discussing the state of litigation, civil or criminal, presently before the courts. That is why I think it is inappropriate for me to do it. I do feel an obligation, which I am trying to fulfil, to provide you with any financial information that I can in relation to the case.
Senator Cools: This committee must consider the financial implications, the consequences for public policy and the public's perception of justice in this country. So often, people say, "We cannot say this, it is inappropriate," as though somehow we share your point of view. I would be quite happy to urge the chairman right now to go in camera so that you could tell us a bit more about why this horrible case has been going on.
The Chairman: Senator Cools --
Senator Cools: I will defer to other senators.
[Translation]
Senator Lavoie-Roux: I have a question regarding young offenders. Is the cost of enforcing the Young Offenders Act increasing? Delinquency is apparently on the rise. How have costs increased in the last two or three years?
[English]
Mr. Thomson: Since the Young Offenders Act was first passed, the amount of cost-sharing dollars climbed quite dramatically for the first number of years that the act was in force. Those dollars were capped a few years ago at a particular level, and the amount that is paid through the agreement has not gone up since. In fact, through program review, the federal dollars have been subject to a 3 per cent reduction over a three-year period. We are in the midst of negotiations with the provinces with respect to how those dollars will be spent and the kinds of things on which they might be spent. We are trying to protect dollars for serious offenders while encouraging innovative approaches for minor and first-time offenders, as well as to use the cost-sharing dollars to move in that policy direction with the support of the provinces.
We are also looking at the issue of the amount of money paid to each province. In turn, the provinces and the territories are looking with us at the question of how that money is divided, or, to use a current phrase, how it is reprofiled over time. We are in the midst of those discussions.
The amount paid by the federal government will diminish 3 per cent over the three-year period of program review.
Senator Lavoie-Roux: Has the number of young offenders increased?
[Translation]
You say that an increase of 3 per cent will lead to problems.
[English]
That has always been a bone of contention between the federal government and the provinces. You seem now to be increasing the problem, if the number of offenders has increased while you are decreasing the subsidies.
Ms Thea Herman, Sector Chief, Policy Sector, Department of Justice: The young offenders area is one in which it is going up. It varies from province to province.
In the province of Quebec, for example, not as many young people are charged as in other provinces. The province employs other methods. They do more cautioning of young people and diverting young people away from the criminal justice system.
The provinces, with the federal government, are looking at ways to deal with crime and crime prevention. As well, they are looking at alternatives to incarceration and the criminal justice system for those offences which are not serious, that is, for low-risk offences.
Senator Lavoie-Roux: This has been going on for several years. The same approach is not taken with respect to every crime committed. I do not know how you will arrive at some changes. Of course, I am talking more in relation to Quebec because that is where I have my experience.
Ms Herman: In addition to what we are doing with the provinces, a parliamentary task force is now reviewing the area of young offenders. A federal-provincial-territorial task force is also looking at how to deal with young offenders. Hopefully, the work of the parliamentary committee and the federal-provincial-territorial work will help us try to solve some of these problems.
Mr. Thomson: Given the fact that the funds available both provincially and federally have been declining, we have been looking at doing some things that are more innovative for minor offenders who are now placed in custody. Approximately 80 per cent of the young persons placed in custody across this country have never committed a violent offence. We feel that there are some innovative things that can be done with them which would be less costly and more effective. This would free up resources both to deal with these cuts and to deal effectively with the serious offenders.
I have just described the reduction in the first phase of program review. There is a further potential 3.5 per cent reduction in the second phase of the program review which starts two years from now. That is also the subject of discussions with the provinces in terms of federal cost sharing.
Senator Lavoie-Roux: I know there are budget restrictions in every province; however, you must be careful with young offenders. The violence and the problems are increasing.
Mr. Thomson: I agree.
Senator Bolduc: I should like to ask a few questions about judges. The judges of the Superior Court in Quebec are appointed by the federal government.
Mr. Thomson: That is correct.
Senator Bolduc: Are their salaries paid by the federal or the provincial government?
Mr. Thomson: Their salaries are paid by the federal government. The other costs associated with their work are paid by the provincial government.
Senator Bolduc: Do you have any idea how many there are in the province of Quebec?
Mr. Thomson: I think there are somewhere between 900 and 1,000 across the whole country. I do not know how many there are in Quebec. There are, perhaps, fewer than 200.
Senator Bolduc: I am sure you are aware that when judges become 65 years of age, they become supernumerary judges. Do you know how many supernumerary judges there are at the present time?
Mr. Thomson: It varies enormously from province to province and from point in time to point in time. I can obtain for you the exact number in Quebec. I do not have it with me.
Perhaps Mr. Sandell from our judicial affairs unit knows the answer to your question, senator.
Mr. Harold Sandell, Legal Counsel, Department of Justice: I do not have the figures with me, Mr. Chairman. In Quebec, I believe there are approximately 40 supernumerary judges on both the Superior Court and the Court of Appeal.
Senator Bolduc: That means that 20 per cent of them work half-time for their full salary. Is that so?
Mr. Sandell: In fact, it may be slightly higher than that.
Senator Bolduc: I should like to relate that to the program for international travel and some of our judges who plan to travel outside Canada. I will not make a big speech about this; however, in my opinion, it is scandalous. If they do not want to work, they could simply resign. However, they do not do that. They continue to collect their salaries and work half-time. It should not be forgotten that these people earn $150,000 per year. They also receive pensions of $100,000.
If you ask the Senate's permission to send people all over the world to work for different international agencies while we have continue to have that situation in Quebec, I will not vote for it. In my opinion, it is bad management.
Mr. Thomson: The issue has been examined by several triennial commissions in the last few years. The judges who reach 65 and are able to retire, in general, are able to retire on full pension.
If they leave, they leave and are paid their full pension. If they remain supernumerary judges, they must sit a certain number of days. I believe it is half time. That tops them up from the pension to their full salary. I think it can be argued that the amount of sitting time one receives for the topping up is, in fact, an efficient use of dollars because of the amount of sitting time you get for the difference between the pension and the full salary.
Senator Bolduc: However, the premise is false. Do not forget that the pension for justices is extremely generous. It is an exception in our society. People can begin to sit on the bench at 55, and at 65, after only 10 years, they have a full pension. Previously, they did not have to pay for it; now they pay a little for it, but not much. Even though they may have a right to $100,000 a year, they do nothing.
This is not a good subject with me. The basis of your argumentation is not sound. I am telling you that because you are the Deputy Minister. I think you should have a careful look at the situation. Governments are tightening budgets everywhere. You have to do it, but you must hit everyone.
Senator De Bané: Deputy Minister, in his earlier incarnation, Senator Bolduc was president of the Quebec Public Service Commission and Secretary General of the Quebec government.
Senator Lavoie-Roux: He is also a lawyer.
Senator Bolduc: Yes, I am. I do not say it too loudly, but I am.
Mr. Thomson: I will only say, senator, that it takes 15 years rather than 10 to qualify for full pension. One may have whatever view as to whether that is an adequate pension once you qualify for it, but once you move on to supernumerary status, I think it can be argued that we get our moneys' worth for the top-up. You may have a different view with respect to the pension one starts with before the top-up, which I think is the point you are making.
Mr. Sandell: Under the supernumerary program, essentially you receive half a judge for one-third of the salary.
Senator Bolduc: Coming back to the pension scheme, I was deputy minister for 20 years. I worked for 33 years for the provincial government. I have a pension that is about three-quarters of what they receive, and they get that pension in 15 years.
Senator Tkachuk: Are you double-dipping?
Senator Bolduc: Yes, I am. They knew I would retire when I came here.
Mr. Sandell: There is a constitutional requirement for financial security on the part of judges which is not the case with public servants. The Supreme Court of Canada has said that the pension component of the compensation package is part of the overall financial security.
The Chairman: I have a question on behalf of Senator Stratton. He had to go to another meeting.
We are told that the public service will be or has been reduced by 55,000 people. How many fewer lawyers will we have at the Department of Justice?
Mr. Thomson: To answer that question, I need to tell you that it depends upon what comes out of our planning process. I can give you a few examples.
Presently, we contract out legal work to do drug prosecutions. We have done some work which suggests to us that by hiring Justice lawyers to do those prosecutions rather than paying agents we could save substantial money. We have been bringing work in and hiring Justice lawyers to do work we used to hand to Crown agents.
As well, in our negotiation with some clients, some clients say, "We need some special work over a period of time." Transport is an example. There is a great deal of legal work to be done associated with the transfers of the airports. After that, they will need less. Some go up and some come down over a period.
In the criminal area, we have been putting emphasis on drug prosecutions, particularly prosecutions of major drug cases, ones that involve things such as proceeds of crime and serious offences. Through the drug strategy, we have been adding lawyers to engage in that work.
We have areas which are growing, depending upon our agreements with clients, areas which are coming down, as well as areas where we are replacing outside lawyers with inside lawyers. I cannot tell you that our numbers will drop dramatically. I do know that over the next few years the number of lawyers will decline. Thus far, our overall number has not declined as a result of the very arrangements I just mentioned.
Senator MacDonald: You used the expression "hiring Justice lawyers". You do not mean that, do you? You are talking about your in-house lawyers.
Mr. Thomson: Yes. I am talking about adding a lawyer to our staff for the purposes of doing the work, whether temporary or permanent.
Senator MacDonald: If it were a permanent lawyer, you would not be hiring him. He is getting the same salary. He is an in-house lawyer, is he not?
Mr. Thomson: That is correct. When I refer to a Justice lawyer, I am referring to lawyers who have been hired by the Department of Justice to work in the Department of Justice either on a temporary or permanent basis.
Senator Cools: They are staff, essentially.
Mr. Thomson: That is correct.
The Chairman: When you appeared before the Pearson inquiry, we talked about the amount of money paid to the forensic accounting people, Lindquist, Avey. I believe they were working for the legal firm Scott & Aylen. Do you have the total cost for them? How much was paid to them between the start of Pearson inquiry and now?
Mr. Thomson: The amount paid to Scott & Aylen, the lawyers, was approximately $240,000.
Senator Cools: It could have been done for less.
The Chairman: And for Lindquist, Avey?
Mr. Thomson: The total amount paid for all professional service contracts -- by far the majority of this is Lindquist, Avey -- was $1.6 million.
The Chairman: There is also the $240,000.
Mr. Thomson: That is correct.
The Chairman: What other kinds of consultants were there besides Lindquist, Avey?
Mr. Thomson: We retained people to assist with the collation of documents and the translation work, that kind of thing, but it was a very small portion of that $1.6 million.
The Chairman: Would Mr. Crosbie's firm have been on that list? Would they have been paid to participate in the inquiry?
Mr. Thomson: Mr. Crosbie, the former minister?
The Chairman: No, the financial advisor during the Pearson airport deal. Would he be part of that list too?
Mr. Thomson: Was he an employee of Lindquist, Avey?
Senator MacDonald: Mr. Crosbie was the financial advisor to Mr. Robert Nixon. He is with an investment firm.
Mr. Thomson: I do not think that would be part of this sum. I think most of this money would be Lindquist, Avey money.
The Chairman: The Department of Justice did not pay for these people, but they could have been paid by someone else.
Mr. Thomson: The bulk of the money I just told you about was not paid by the Department of Justice but by the Department of Transport.
The Chairman: Were other law firms besides Scott & Aylen hired as a result of the airport cancellation decision or because of the inquiry?
Mr. Thomson: I have just given you figures in relation to the cost of the inquiry and the work in relation to the inquiry. We have separate work being done by in-house lawyers on the ongoing litigation. There are also expenses for experts and others in relation to that litigation. That is a separate expense. I am aware of no other lawyers retained to be part of the work on the inquiry.
To the best of my knowledge, no other lawyers were retained for that purpose. We retained Scott & Aylen to represent the government on the inquiry. They retained Lindquist, Avey to do some work.
The Chairman: During the inquiry, how did the Department of Justice organize itself with Scott & Aylen? To whom did they report, and how were instructions given? Who gave the lawyers instructions, and who gave Lindquist, Avey instructions? Was it you who gave the instructions, or was it the Department of Justice or the Department of Transport? Was the Department of Transport a client of the Department of Justice?
Mr. Thomson: The Department of Transport would have been the client for a portion of the work that we did. It is our client in relation to the litigation. In this particular case, I recall that we had a team which included senior people from the Department of Justice. Among them were the head of our legal services side, Richard Thompson, and a Mr. Edge. Some justice employees were part of managing it, along with some people from the Department of Transport.
However, the people from the Department of Justice who gave direction to counsel would be primarily the two individuals I mentioned. They were the primary link for the counsel from Scott & Aylen.
The Chairman: Is the Department of Justice retained for the present contract which is being negotiated between the Department of Transport and the Greater Toronto Airport Authority?
Mr. Thomson: I cannot speak to that. I do not know the answer to that question or what negotiation you are speaking of at this point.
The Chairman: The Department of Transport is negotiating a contract on behalf of the Government of Canada with the GTAA. Is the Department of Justice retained by the Department of Transport to negotiate the contract?
Mr. Thomson: Yes, and I think primarily counsel through our Toronto regional office are involved in that work.
The Chairman: Did the Department of Justice hire outside law firms to do those negotiations?
Mr. Thomson: I think the answer to that is no. I think that work is all being done by in-house counsel in our regional office, but I will confirm that for you.
The Chairman: So you do not know, or you are not sure?
Mr. Thomson: To the best of my knowledge, that work is being done by counsel in our Toronto regional office. I just do not know whether some outside legal help has been retained for aspects of that. I know that the managing of that for this airport, as well as for other airports, is through counsel in our regional offices. Whether they have retained ad hoc agents for some aspects of that work, I do not know, but I can find out.
The Chairman: If the Department of Transport is able to use Department of Justice lawyers to organize itself for the completion of this very difficult contract which you are negotiating with the Greater Toronto Airport Authority, why was it necessary to hire Scott & Aylen and Lindquist, Avey for a total of $1.84 million to handle the Pearson Airport inquiry by the Senate committee which really, in the scheme of things, was not a very big deal?
Mr. Thomson: That was not our perspective, sir. We thought it was quite a major inquiry which required substantial preparation. We had to prepare on quite short notice. We were requested to make available enormous amounts of information on fairly short notice. Our feeling was that the only way we could be ready to proceed in the time available was to retain outside counsel and to have them get help from Lindquist, Avey. That decision was made based upon resources available at the time and the pressure to produce for the inquiry within some very tight time lines.
The Chairman: Why did it cost $1.6 million for Lindquist, Avey? It cost $240,000 for lawyers, but it cost $1.6 million for forensic accountants. Why is there such a huge discrepancy? I have a pretty good idea of what lawyers charge per hour.
Mr. Thomson: The largest amount of work involved gathering and organizing information and material to be presented to the inquiry and preparing witnesses for the inquiry. That was the type of work done by Lindquist, Avey. The role of counsel was related to that but was primarily related to legal preparation for the inquiry itself.
It turned out that the largest amount of work related to the management and organization of documentation and other materials for the inquiry. That is what Lindquist, Avey spent the bulk of its time doing. That took up a substantial amount of time, and that is what accounts for the cost.
The Chairman: You are not using any outside lawyers in the negotiation of the contract with the Greater Toronto Airport Authority, but are you using outside consultants to help you in those negotiations?
Mr. Thomson: I will need to get the answer to that question. I am quite confident that outside experts in other professions would be required in order to finalize a contract such as this one, whether they are retained by the Department of Transport or by us. I would guess that experts were retained by the Department of Transport to do things like valuations, but I have to find that out for you. I would assume that in any contract this size there would have been a need for outside expertise of some kind.
Senator MacDonald: Mr. Thomson, that was a rather unusual committee in that Mr. John Nelligan, counsel to the committee, questioned with the same privileges as senators. We wondered why Mr. Nelligan could not be brought into the loop by being given an oath of confidentiality, the same oath taken by Lindquist, Avey. In that way, he could have briefed the members of the inquiry on whether we were getting the material we wished in a timely fashion, or on the material which was being excised. We would have been happy to have Mr. Nelligan's advice on those matters. You said earlier that that is something which might be considered. We were a little miffed that everyone seemed to be taking an oath of confidentiality and receiving papers to which we did not have access.
Mr. Thomson: I do recall the issue, senator. I remember that we tried to determine whether there was an answer to it. We did try our best to be as cooperative as possible with counsel who I would say served the committee extremely well.
We decided that we could only do this if we retained Mr. Nelligan in a way that would have created a potential conflict problem in relation to his work. We ultimately felt it was not workable. I recall communicating with the committee about that issue.
In saying that, I do not in any way suggest that Mr. Nelligan is anything other than counsel of the highest integrity who was put forward to perform a role which I know he was prepared to perform. We believed that we were creating a conflict situation, and therefore we were not able to do that.
Senator MacDonald: I tend to agree. It was perhaps a quixotic suggestion, but we had thought that perhaps something could be worked out. At that stage of the game, we were up to here in excised documents. We could not get an explanation for it.
Mr. Thomson: I recall the issue and the effort to try to find an answer to that problem.
The Chairman: So that the answer that you are to provide is clear, I should like a list of the outside consultants that are advising the Department of Justice in the contract negotiations on the Greater Toronto Airport Authority -- that is, who they are and how much they cost -- and a list of the other law firms and what they have cost in this negotiation.
Senator Cools: Bill C-42 is currently before the Senate. Search as I have, I simply cannot obtain answers to certain questions. Could the witness tell us how much Madam Arbour is expected to be paid, that is salary and allowances?
Mr. Thomson: I am advised that we do not know the answer to that question.
Senator Cools: Who knows? It is very frustrating.
Mr. Sandell: Madam Justice Arbour and the UN know.
Senator Cools: Are you suggesting that we bring her before the committee to tell us?
Mr. Sandell: The UN knows. It is a private matter between Madam Justice Arbour and the United Nations. We are not privy to the information.
Senator Cools: Are you telling me that the matter of a Canadian judge's salary which is to be paid by the UN is a private matter between the judge and the UN? Is that what I heard you say?
Mr. Thomson: At the moment, she is not receiving any salary from the UN. She is on leave without pay, pending the resolution of this legislation. I simply do not know what the UN has offered to pay her in this role, and I am not sure we are entitled to know that from her. We do not know at this point in time.
Senator Cools: As far as you know, is the salary higher or less than what one would have been receiving here on the bench?
Mr. Thomson: I do know that salary and expenses are higher when you put the two together because the costs associated with this job and where she is located to perform the job involve higher expenses. I do not know whether the two are combined together. There may be a combination of salary plus certain expenses -- that is, rental or other kinds of costs associated with where she is located. I do not know the mix. I am quite satisfied that the salary end and living expenses, in particular associated with where she is and what she is doing, will be higher, overall, than she is receiving as a judge.
Senator Cools: We have been told in another committee that the Department of Justice heard of Madam Justice Arbour's appointment subsequently and then began to prepare the legislation. Is that true?
Mr. Thomson: You are saying that you have been advised in this committee that we heard about the appointment only after it was made and then decided to look at the issue of legislation?
Senator Cools: That is my understanding.
Mr. Thomson: The possibility of her being appointed to this job or receiving this appointment was something that was known ahead of time. It was not generated by the department, but she was being considered as a possible replacement for Mr. Justice Goldstone, I think. She was at least a name being considered. I cannot say that I knew for sure that she was actually being appointed, but I do know that she was one of the persons being considered.
Senator Cools: Who gave you that information?
Mr. Thomson: My recollection is that it came from Foreign Affairs. Who in particular gave that to me, I do not know. I do know that at one point in the process, perhaps on an individual level, I was asked to comment on persons who might be considered for this particular position. However, I cannot recall who asked me that.
Senator Cools: Who approached you to actuate legislation in this regard?
Mr. Thomson: Once we knew that Madam Justice Arbour was being considered and the UN proposed to appoint her to the job and it became clear that the policy that the UN wished to follow was not to have any member state paying for the person who was performing this job, we reviewed our legislation and recognized that we needed to deal with that issue because of the present terms of the legislation. I cannot recall whether this was in advance of the actual announcement of the appointment or after. Once it was made clear to me, probably by Foreign Affairs, that the UN's policy was not to have salaries paid by individual member's states but, rather, to have the person paid by the UN, we reviewed our legislation. That was done through our judicial affairs unit in order to satisfy ourselves that it could be done. Once we recognized that, in order to comply with that UN policy position, we needed to amend the legislation, we then did work to prepare that.
Senator Cools: I have been trying to obtain information for quite some time, without much success, regarding the actuation of this particular proposed piece of legislation. Perhaps you could share with us the position of Madam Arbour's own chief justice on her appointment. Did the department seek that information?
Mr. Thomson: I do know that we consulted with the judicial council, as we were looking at options. We asked whether the judicial council was supportive. That request was probably made through its chair, which would be the chief justice.
Senator Cools: I am talking about Madam Arbour's chief justice. The proposed Bill C-42 will allow the chief justice of the judge seeking leave to be consulted. Since you have proposed it, I would assume that you would have followed your own proposal concerning Madam Arbour. Did you attempt to determine the position of Madam Justice Arbour's chief justice? If you have that in writing, could you share that with us?
Mr. Thomson: Yes. At the time the appointment was either being considered or being made, I had a discussion with Chief Justice Dubin, who indicated to me he was strongly supportive of her being appointed to this position.
Senator Cools: Was this all verbal?
Mr. Thomson: That was an oral discussion with Chief Justice Dubin at the time the appointment was being considered.
Senator Cools: He indicated to you that he was supportive of her leaving the bench to occupy this position. If he was so supportive of it, why did he not put it in writing to you so that you could share it with us? After all, this is a matter that concerns Parliament very deeply.
Mr. Thomson: At the time, I had not thought that it was necessary to obtain it in writing. He gave me his opinion that he was strongly supportive of it. I assumed that was sufficient.
The Chairman: If you cannot believe a judge, who can you believe?
Senator Cools: Our time is running out, but some of the major issues in which I have been interested have not even been touched upon yet.
My special interest is the business of CIDA and the fusion that seems to be occurring between CIDA and the judiciary. In particular, I have a document entitled "Indicative List of Projects in Legal and Judicial Technical Assistance prepared for CIDA Legal/Judicial Roundtable," April 19, 1996, at Meech Lake.
I wished to put some thorough and detailed questions on this whole phenomenon of CIDA's involvement in this judicial process, but I think the time has run out.
Perhaps the Deputy Minister would undertake to return again on this matter. Perhaps he could, in the few seconds left, give me an extremely, comprehensive and thorough explanation. I should like the Deputy Minister to give us a total exposé of the program by CIDA, how they work, how they are funded, who is being paid what, who is in charge of what, and the total number of tax dollars involved, et cetera.
Mr. Thomson: I am prepared to meet with the senator separately to discuss that. I attended that workshop.
Senator Cools: Who else attended it?
Mr. Thomson: It was a workshop that CIDA held with academics, private NGOs, and a wide range of persons from across the country.
Senator Cools: Were there any judges present?
Mr. Thomson: Chief Justice Lamer was there at the beginning of the meeting to indicate the support of the judiciary in helping other countries to develop justice systems. I think he was the only judge present, and he was only there briefly.
There was a range of people present from across the country, all of whom had been involved in the delivery of justice services on behalf of CIDA. The purpose of the meeting was to look at the needs over the next several years, how we might better coordinate and organize our efforts, and how we should determine which needs were of the highest priority.
Senator Cools: This is long before Bill C-42 was tabled; is that correct?
The Chairman: What is the date on that document?
Senator Cools: This is a list of projects of legal and judicial technical assistance prepared for CIDA's legal/judicial roundtable, April 19, 1996 at Meech Lake.
From what I can see, it seems to be a relatively comprehensive list of organizations which are receiving CIDA funding. For example, it lists the Canadian Bar Association and an amount of $4,350,000. That cannot be right. I also notice law firms such as Stikeman Elliott.
Our committee deserves a thorough explanation. I have tried unsuccessfully to pose some of these questions in the committee on Bill C-42. Unfortunately, in considering Bill C-42, neither the Minister of Foreign Affairs nor the Commissioner of Federal Judicial Affairs attended.
I have a press release regarding Canada's assistance in the Ukraine's judicial reform dated September 24, 1996 which states:
The program, financed by the Canadian International Development Agency (CIDA), will help train judges across the Ukraine...
The program will be managed by the Office of the Commissioner for Federal Judicial Affairs...which coordinates the Canadian judiciary's involvement in international cooperation.
This is significant subject matter. It is important to the considerations of this particular committee.
The Chairman: There has been no reluctance by the witness to answer the question.
Senator Cools: He is very cooperative. I was saying that we need more information on the matter.
Senator De Bané: When we look to the department which you are managing, it is undoubtedly the most important legal firm in Canada, based on the number of people who work there. If we look to the issues on which you do development work or on which you advise the government's different departments, there is no legal firm in Canada that has such impact on the people of this country. No legal firm deals with such a wide range of matters.
I listened to the many questions this afternoon about how much the different law firms have been paid. I asked myself whether your department tries to create an environment which will attract the best and the brightest who, once there, will stay with the department. We need the best and the brightest to be in the Department of Justice.
Mr. Thomson: Senator, I agree totally with your characterization of the department. I agree totally with the statement you made about the importance of the Department of Justice being a leader not only in the legal work which it manages but also a leader in the justice system overall. I would also agree that it is dependent upon attracting and retaining enough of the very best lawyers in the country to ensure that we maintain that reputation.
Overall, I would say we have a very highly qualified law firm. Some of the very best lawyers in the whole country work for us in all of the areas that we cover. We are leaders in a number of areas. We are setting a very important example in the way that we function as a law firm and in the way that we function as a department within the Department of Justice.
Our workload is large and growing. The pressures on those who work in Justice are high. Our salaries overall are not competitive with the private sector, in particular because lawyers' salaries, as with all other civil servants, have been frozen for a number of years. Those pressures mean that we can occasionally lose people to the private sector. We can have difficulty retaining some of our best lawyers because of the environment and because the salaries are not competitive.
On the other hand, most of the people who come to Justice come because of their commitment to the issues that you describe, because this is an opportunity to be involved in some of the most important public interest issues facing the country. That means we do attract and continue to attract very good lawyers. They tend to come recognizing the sacrifices which are compensated by the very factors you have cited.
Overall, I would say we have more to do, particularly in this high pressure time, to secure and hold on to our very best lawyers. We still meet the standard which you set in your opening remarks about what the Department of Justice ought to be.
The Chairman: On Pearson airport and the present lawsuit with Pearson Development Corporation, how much has been spent on outside law firms and consultants, and who would they be?
Mr. Thomson: It is my information that we have retained no outside lawyers for the purposes of the litigation. All counsel are in-house. The Department of Transport has spent a large amount of money on experts who have functioned as witnesses in the inquiry. The total expenditure for expert witnesses and professional services by Transport at this point is $8.9 million.
Most of that would have been outside consultants to help testify or prepare documentation.
This case requires very specialized expert witnesses, some of whom have worked in excess of a year preparing evidence with respect to issues relating to volume and other things relevant to determining the nature of the damages in the matter. Very senior experts with a range of expertise have testified on behalf of both the plaintiff and the defendant in this case, involving the expenditures of many millions of dollars on both sides.
The Chairman: Could you provide us with a list of those people?
Mr. Thomson: Yes, I think I can do that.
Senator Cools: I have a question regarding lexicon. It is odd for me to hear the staff of Her Majesty's Attorney General referring to Her Majesty as a client. What is the origin of this new lexicon and where does Parliament fit into the lexicon?
Mr. Thomson: I would suggest this is not a new term in reference to the government or minister and the various departments as clients we serve. It does not in any way alter our role. Our role is unique as public sector lawyers. I do not want to in any way suggest it is not.
We have some special roles that we play, for example, ensuring that the work of government is carried on in accordance with law and that it complies with charter values. There are a number of objectives that we have as government counsel.
We have referred to those whom we serve as clients. It helps to reinforce the fact that we serve them in a range of ways and they need to be part of working with us to improve the service. We have used the word, but we have not used it in any way as a denial of the unique role that we perform. Certainly, it is true that we have talked about the concept of client service recently, particularly for the planning processes that we have established with those clients.
Senator Cools: Perhaps I could suggest a more formalistic approach in the future. I suggest that we use the language of responsible government and parliamentary government,the language that we have all grown used to hearing. I have never heard this new language from this department in committee. It is very novel.
I find the old language quite effective When you say to me that the Attorney General is one of the two law officers of the Crown, I understand that. I do not understand about clients, users and so on.
The Chairman: To our vice-chairman in committee, so that you did not misunderstand my question to Mr. Thomson, I am here to try to be as fair as I can. I also am partisan, and I am trying to seek information. I am sure Mr. Thomson knows that. Sometimes I get a little testy if it that information is not available simply because we are not here to chit-chat.
I want to make it very clear that the witnesses who do come before us are in almost all cases excellent witnesses and are fully cooperative.
Mr. Thomson, I did not want to give you the wrong impression. I appreciate everyone coming here today and being here well over the supper hour.
The committee adjourned.