Guess which office doesn’t have an independent investigative function! - Liveblogging the Acting Director of Public Prosecutions at the Justice committee

POSTMEETING ITQ MICRORECAP: During today’s meeting, we learned all about the Public Prosecution Service and its not-actually-all-that-new acting director, Brian Saunders. We also learned that the opposition parties were, at least initially, the teensiest bit sceptical over the independence of his office, since he reports to the Attorney General, and there were many, many questions about exactly how much contact the current director has had with the current (and former) ministers since his appointment, and whether or not either minister had advised him on any specific cases. Finally, we were somewhat surprised when NDP justice critic Joe Comartin gave notice that he would not be voting in favour of a motion recommending that the appointment be confirmed, particularly when he declined to explain why he was withholding his support. After the motion passed, the chair kicked the rest of us out so the committee could discuss future business in camera, and that was that.

For the realtime liveblog of today’s meeting, read on.

He’s actually been on the job for almost a year, but certain events and misadventures interfered with the first — and last — attempt by the Justice committee to have a getting-to-know-you chat with the currently Acting Director of Public Prosecutions, Brian Saunders.

That’s all in the past now, however, so join ITQ for all the liveblogging action this afternoon. The meeting gets underway at 3:30 p.m., so check back then.

3:20:06 PM
Okay, so while we’re waiting for the meeting to start, can I tell you what drives me stark, staring bonkers? The fact that the tables reserved for the media, along with the rest of the audience section, all face the chair instead of the witnesses. Would it be such an offence to tradition to flip the table around so that we could actually *see* the people giving testimony?

Right now, by the way, the members of the Justice committee are having an official photo taken by a rather amused House photographer. I never noticed it before, but this committee is entirely male. Huh.

3:24:44 PM

Alright, the permanent membership list may be a boys’ club, but I should note that the NDP’s Megan Leslie is currently at the table as well, alongside Joe Comartin. Also present and accounted for is Brian Saunders, the acting Director of Public Prosecutions, who, sadly, looks absolutely nothing like that Fitzgerald firebrand from Chicago.

Anyway, Chairman Fast just gaveled us into session, and after a quick warning to members to restrict their questions to his qualifications for the job, which doesn’t go over terribly well with Brian Murphy until he realizes that it doesn’t mean he can’t ask about how Saunders envisions the position, and other issues related to the office. Whew. That was almost an unfortunate lapse in cooperation.

3:30:44 PM
Saunders, who has ten minutes to give his opening statement, describes his background, which included a stint at Cambridge, and his years of service in the public service, both in Edmonton and Ottawa.

3:32:40 PM
He served on the NAFTA litigation committee! And was involved in civil litigation regarding unreasonable search and seizure, and – wow, he’s done a lot, actually. Remind me to link to his cv later. Anyway, he became the acting director of the Public Prosecution Service in 2006 – the first acting director, to be precise, and although at first not all the lawyers who were originally transferred along with the office were enthusiastic about being emancipated from Justice, but since then, most have realized that it makes sense, and ensures prosecutorial independence.

3:35:28 PM
And – questions! Ujjal Dosanjh kicks things off for the Liberals, and wonders if, in Saunders’ experience, there was ever a situation in which there was interference with prosecutorial independence in the past, and Saunders assures him that as far as he knows, there was not. This wasn’t designed to address a problem, but to avoid one.

3:38:03 PM
Dosanjh wonders about accountability – who, specifically, does the DPPS report? The Attorney General, Saunders tells him: Dosanjh seems a little sceptical about whether that is enough; in BC, for instance, there is arguably more political independence, because the minister may have to answer questions on prosecutions in the legislature. According to Saunders, he sends regular reports to the Attorney General, and plans to increase the regular meetings between the office and the AG to every few months.

On what kinds of cases has he advised the AG, Dosanjh wonders, which provokes a bit of balking by Saunders, who suggests that could bleed into privileged issues. He gives a few examples — regulatory cases, that sort of thing — but Dosanjh wants names, and Saunders points to the prosecution of Hells Angels in British Columbia.

Interesting tidbit: Although the AG can provide legal advice or direction to the office, such advice would have to be written, and printed in the Canada Gazette.

3:44:28 PM
Real Menard wants to make sure that it isn’t the Attorney General that decides who will be charged, and Saunders assures him thusly; Menard, however, wonders if the DPPS ever has to oppose the Attorney General – if, say, the minister objected to charges being laid. Saunders compares his position to that of the RCMP, which also has to advise on the likelihood of prosecution. The office gives the AG an opinion, but if the AG decides *not* to proceed with charges, they would have to issue a directive, or take over the case.

Menard – who has a lot of good questions – wonders what powers the Attorney General has as a case goes through the courts; Saunders suggests the minister would use the same tests as the federal service: is there a reasonable likelihood of success, etc.? Menard, however, is fixated on the power of the AG to take over the case, which Saunders says has never happened. If it did, there are lawyers within Justice who could carry out the prosecution.

3:50:53 PM
Joe Comartin is up for the NDP, and he wants to know more about cases under the Anti-Terrorism Act, which Saunders confirms would likely involve his office; in the case of the Toronto Eighteen, or however many are left, Comartin wonders if the DPPS would have made the call to intervene at first instance; Saunders notes that there are two sorts of cases in which the AG might intervene: cases that the office itself is prosecuting, which would be very rare, or cases in which there are provincial authorities dealing with a matter of interest to the federal government, such as challenging the Criminal Code.

What Comartin wants to know, however, is if the AG has ever taken over one of his cases, and once again, the answer is no — nor have there been any cases where he thought the AG *might* take over.

3:55:09 PM
Comartin wonders how we would know if the AG has taken over a case, and Saunders notes that it would be obvious: there would be new counsel, and the PPS would no longer be there.

Finally, Comartin gets to the real issue here: the possibility of political interference – a case involving a member of the government – up to and including cabinet. “That’s the last question,” the chair warns; Saunders notes that such an investigation would be carried out by the police or the RCMP.

3:57:40 PM
The government finally gets its turn, and Rick Norlock hits the nail on the head: when the job was first proposed, most people assumed that he would be something like a special prosecutor — I KNOW! MPs TOO! SO FRUSTRATING! — and invites Saunder to explain how that isn’t, in fact, what his office is all about. Which he does, not that it will help much, I suspect: police investigate, and decide what charges t lay; prosecutors, well, prosecute. What we see on TV, he notes, particularly American television, are prosecutors with much more involvement with the investigative process. That’s not the case here: the special prosecutor doesn’t take charge of the investigation.

Thank you, Rick Norlock, for asking that question, and thank you, Brian Saunders, for answering it. Let’s see if it takes.

4:06:04 PM
Brian Murphy seems to be a little bit sceptical of the much vaunted independence, given the fact that he is accountable to the minister; is it Saunders to whom we would all be looking if the prosecution of a public figure did — or didn’t — take place? Saunders pleads for context — the legislation attempts to put in safeguards by requiring any intervention by the AG to be done in writing; similarly, in Nova Scotia, the Marshall Inquiry called for “ultimate accountability” in the Attorney General, even though in most cases, he wouldn’t be involved.

4:09:51 PM
In eighteen years, Saunders says, there have only been five or six interventions, but what Murphy wants to know is how often the Attorney General has asked him about cases of interest. Saunders says that he has briefed the minister four or five times. Murphy looks unmollified.

4:11:04 PM
Marc Lemay wants to talk Quebec, not surprisingly. Say someone is charged under the Migratory Birds Act, and challenges the law on constitutional grounds – would the DPPS intervene? That depends – but it would likely be Justice, and the AG that intervened in such a case, Saunders replies.

4:13:34 PM
LeMay carries on with his questions about who, exactly, would advise in appeals – in Quebec, for instance, would it be Quebec lawyers? Or is there one committee for all? Saunders notes that there are many, many very good lawyers, but LeMay wants to know who would have the *final* say in, for instance, a case involving the prosecution of aboriginal peoples with constitutional factors? The last word goes to the prosecutors, Saunders confirms.

4:19:16 PM
I wonder what they’re doing at Ethics right now. Do they miss me? I miss them – it’s annoying, really, that two of my favourite committees are on the same Monday/Wednesday schedule.

Oh, and Daniel Petit is going on about the Norbert case, and Ontario and Quebec and federal laws, and honestly, it’s just not all that interesting; even Menard – a Bloquiste! – isn’t paying attention. He’s actually conspiring with Joe Comartin, in fact.

4:22:39 PM
Dominic Leblanc follows up on the still not entirely answered question of communication between the DPPS and the Attorney General; Saunders is obviously a bit uncomfortable at how specific it’s getting. As far as he can recall, the minister has never called him to discuss a specific case, although Saunders doesn’t want to say whether other cases may have come up during the course of discussing “cases of general importance.”

4:25:58 PM
Huh. Interesting. Leblanc – clearly thinking of a particular investigation still ongoing – wonders whether a prosecution under the Canada Elections Act would trigger a heads up to the minister as a case of “general importance,” and Saunders promptly reminds him that that particular act is specifically, statutorily excluded from cases on which he would notify the minister — for obvious reasons, really, but it’s always nice to see evidence of legislative drafters thinking ahead. Especially when it comes to the Federal Accountability Act, which — has issues. Challenges. Unintended consequences in the making.

4:31:57 PM
Patrick Brown has clearly run out of questions, and apparently what little interest he has in the wonderful world of the metalegal system; given three minutes to question Saunders, all he can manage to come up with is a request that he go over his biography and references, again. Saunders obliged – he does seem eminently qualified – and then Rob Moore takes over to get a little more detail on how, exactly, all those prosecutors work together.

This gives Saunders the opportunity to discuss some of the success stories – Norbort, Hell’s Angels, other high profile cases. As for planning, the PPS has offices scattered all over Canada, and prosecutors regularly meet with their respective provincial counterparts.

4:36:50 PM
Brent Rathgeber – there is, in fact, no R; I’ve been misreading his nameplate all this time – wants to talk drugs; specifically, how defence lawyers make oodles of money defending those accused of drug-related crimes. Why no similar compensation for the prosecutors? Apparently, there is a process that allows for an enhanced salary in some cases, although that depends on the situation. Oh, and federal agents – lawyers on contract with the DPPS – are now hired without any involvement from the Justice department.

4:40:51 PM
Dosanjh tries one more time to elicit a clear answer to his question: Has the minister ever solicited advice or information on a particular case without being prompted by a notice from the DPPS? The answer is still no – not as far as Saunders is aware, although there is a bit of confusion surrounding the (fairly remote) possibility that the minister may have contacted one of the deputy directors.

Comartin notes that Saunders has acknowledged giving “verbal briefings” to the minister; did he ever request a change of action or direction in a case? Saunders reminds him that any direction on a specific case would have to be given in writing, and published in the Canada Gazette. Are we all clear on that now? No, I’m not being sarcastic — I didn’t know that either, but it is rather reassuring to know that’s the case.

4:46:02 PM
One of the ongoing projects, according to Saunders, is the development of guidelines for field prosecutors that would include, among other things, a better definition of what a case of general interest would be.

Comartin wonders how many of these cases have been brought to the attention of the Attorney General, and Saunders says it is probably as many as forty or fifty.

4:48:10 PM
Murphy is still a bit perplexed by the designation of much of the substance of his discussions with the Attorney General as covered by solicitor-client privilege, since that makes it sound as though his client is the Attorney General, but after a bit of back and forth, Saunders explains that he was only referring to discussions about ongoing prosecutions, which shouldn’t go on in public. It eventually turns out that Murphy’s fear that *everything* he discusses with the minister is privileged is not, in fact, warranted. “I feel safer now,” Murphy notes.

4:50:13 PM
A good-humoured Rob Moore teases the Liberals over not having nearly as deep an understanding solicitor-client privilege as the members on the government side of the table, prompting the obvious rejoinder about his “long experience” from the opposition. Oh, kids. You’re so cute when you aren’t trying to destroy each other and/or parliament itself.

4:53:51 PM
Huh. That was unexpected. When Real Menard tabled the usual motion that recommends that the appointment be confirmed, Joe Comartin speaks up to inform the committee that he will be voting against it – and the appointment; he was on the review committee, he notes, and that’s all he can say about it. Odd. The motion passes anyway, and the committee gives Saunders a polite round of applause before suspending for five minutes to go in camera. Which means that ITQ had best make herself scarce lest she be cited for parliamentary trespassing.