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Public law

Cover Story
|Written By Tim Naumetz
Public law

Brian Saunders had two inspirations when he signed up with the federal Justice Department in 1977. Public service was in his blood and — among the goals that would lead him one day to head the new Public Prosecution Service of Canada — he wanted to go to court. “All of my father’s family and my mother’s family were public service,” the youthful-looking Justice Department veteran says. “My father’s family, all his brothers and him, were in the military. My mother’s family were all school teachers and nurses, so I was brought up in families that had a sense of working for the public.”

Defence counsel would, and do, say their side of the courtroom is also a public service. But for Saunders there was no question, considering his family background, about where he would be standing when he made a case in front of a judge. “Maybe I watched too many TV shows that resembled Perry Mason, but the thought of going to court interested me, and I was told when I joined the Justice Department if you want to go to court, go into prosecutions, because you’ll learn how to be a litigator,” he says.

Saunders, officially the director of public prosecutions, sat down to talk to Canadian Lawyer along with his two deputy directors Chantal Proulx, who heads the regulatory and economic prosecutions and management branch, and George Dolhai, who is in charge of the drug, national security, and northern prosecutions branch. Proulx and Dolhai also reveal an early interest in prosecution work, although Dolhai spent two years in litigation at McCarthy and McCarthy, as it was then, before seeing the “light.” Proulx stepped right into it, almost. After a year and a half at the DoJ’s office of national strategy for drug prosecutions following her 1990 call to the bar in Ottawa, Proulx joined the federal prosecution team at the Elgin Street courthouse, a stone’s throw from Parliament Hill, and spent 10 years prosecuting “all kinds of cases, drugs, conspiracies, wiretaps, criminal organizations” before heading back to Justice Department headquarters a few blocks away on Wellington Street.

But the office’s location reflects a sensitive aspect of the status of the PPSC, which Prime Minister Stephen Harper heralded during the campaign for the 2006 election that squeaked him in as prime minister. The proposed public prosecutors’ office was one of Harper’s major campaign planks while he fought to oust the former Liberal government, scandal-plagued as it was in 2005 over allegations of kickbacks and missing federal money during the sponsorship affair that led to the Liberal defeat and eventual criminal charges against a former bureaucrat and party insiders in the Quebec wing. The new Public Prosecution Service of Canada was to be completely independent, hived off from the DoJ, with its budget approved separately by Parliament, and free to conduct prosecutions covering a range of federal statutes and Criminal Code provisions with no chance of cabinet interference.

Yet, four years later, the service remains physically embedded in Justice Department offices. Following a two-year delay of Saunders’ confirmation, Proulx and Dolhai remain “acting” deputy directors, still awaiting their official confirmation by a committee to be composed of Saunders, the deputy minister of justice, and a nominee from the Federation of Law Societies of Canada. “We’ve determined that staffing moves slowly in the public service,” jokes Saunders.

The director of the PPSC is appointed for a seven-year term with a salary that cannot be reduced, and he or she cannot be fired without a resolution from the House of Commons. The auditor general, by comparison, is appointed for a 10-year term and cannot be removed without resolutions from both the Commons and the Senate. As well, despite the budget-process separation from the department, Saunders indirectly concedes he must go through the attorney general to seek special funding in unexpected or unusual circumstances. An example is the effect at least one bill among the government’s wave of tough-on-crime laws will have on the service. Defence counsel had earlier claimed that legislation Justice Minister Rob Nicholson tabled to implement mandatory minimum sentences for drug crimes, including possession of relatively small amounts of marijuana, would inevitably lead to more congestion in the courts as one of the tools in the plea-bargaining chest was eliminated. Saunders confirms the prosecution service also expects more contested trials because of the expansion of mandatory minimums, and says the service had already conducted an analysis that predicted a need for 25 to 35 new prosecutors.

His request for additional financing to beef up the prosecutorial ranks — now numbering 482 on the payroll plus 704 legal agents from the private sector — had to go through Nicholson in order for Saunders to ask for and, it turns out, obtain Treasury Board approval. Coincidentally, only a day after Saunders’ interview for this article, Nicholson appeared at the Commons justice committee to verbally confirm what he had already said in a letter to the committee’s chairman, Conservative MP Ed Fast: the PPSC would be getting new money, if and when the mandatory minimum bill becomes law.

But Nicholson’s letter, obtained by Canadian Lawyer, fails to mention one of the most politically sensitive aspects of the initiative: it will impede the ability of prosecutors to negotiate guilty pleas to save costly trials and stave off further congestion of the courts. The letter says only that the $33.5 million, to be spread out over five years once the bill becomes law, is for “provision of prosecution-related advice and litigation support during police investigations, and prosecution of drug charges under the Controlled Drugs and Substances Act resulting from mandatory minimum penalties.” No one other than Saunders and his management team, Nicholson, or the federal cabinet will know whether the PPSC obtained all of the new budget room it needed. As Saunders points out, the submission to Nicholson and Treasury Board is a confidence of cabinet.

Marco Mendicino, president of the Association of Justice Counsel, the in-house union that also represented public prosecutors while reaching their first collective agreement with Treasury Board last year, says at least one more of Nicholson’s law-and-order bills will also reduce plea bargains and add further to the court logjam and need for more prosecutors to handle the increased workload that will inevitably come from more contested trials. The legislation, already law, limits judicial discretion when assigned credit for time served in custody prior to sentencing. Mendicino says credit for dead time — a term coined long ago to reflect the fact that pre-sentence custody is not included in time served for parole purposes — was also a key instrument in the plea-bargain tool chest.

“Those discussions will be naturally circumscribed by the new guidelines, the new rules,” says Mendicino, a federal prosecutor in Toronto. “An accused person who is facing the prospect of serving more time, if you will, in order to meet his sentence upon proper guilty pleas will arguably be less likely to consider pleading. Those things are hand in glove when it comes to the law and order agenda.”

Mendicino acknowledges that no one outside of the cabinet-confidence circle might ever know whether Saunders also requested additional prosecutors to handle the dead-time ramifications. Since both issues could provide ammunition to opposition parties that oppose the government’s approach to the justice system, currently featuring a decline in crime rates, it is unlikely Nicholson would reveal any backroom give-and-take or discuss his confidential relations and exchanges with Saunders. And Saunders certainly can’t disclose secrets. Since drugs now account for roughly 70 per cent of the PPSC’s workload, 54,705 case files out of 74,674 in the 2008-09 fiscal year, the implications of major legislative and policy changes are substantial.

Joe Comartin, the MP for Windsor-Tecumseh and New Democratic Party justice critic, is wary about another area he suspects could be vulnerable to cabinet influence despite the independent framework under which the service has been established. In the climate of the day, terrorism prosecutions could be more vulnerable to political sensitivity than a change to the Constitution. Comartin, who is a lawyer, has misgivings that go back to 2007, when the prosecution service suddenly switched to direct indictments in the famous Toronto 18 case of a conspiracy to commit terrorist acts in Canada. The case, notorious for its chilling allegations of secret plots to kidnap and murder politicians while blowing up the CN Tower, changed direction abruptly after the PPSC was forced to stay some charges, which were subsequently dropped entirely, following or in the course of preliminary inquiries.

“What happened was they weren’t ready,” says Comartin. “They were going with preliminary inquires and under Brian’s specific direction they stopped that, they cut it and went with a direct prosecution without a preliminary inquiry. The fairer system within a criminal justice system would have been for those preliminary inquiries to go on, and I did subsequently find out the decision was made right at Brian’s desk. I think that was a bad decision from a criminal justice standpoint. Whether [the PPSC] has achieved the independence that it was supposed to have when that decision was made, and it happened, I haven’t been able to really get a good read on it.”

Comartin was on the Commons committee that finally confirmed Saunders’ appointment, at a hearing that took place after the Toronto 18 prosecution directive. “I have to say I was very concerned about that particular appointment,” says Comartin, who added he could not disclose what was discussed in the confirmation hearing because the MPs who sat on the panel had to swear an oath of secrecy. PPSC communications director Dan Brien says Nicholson did not issue a directive to Saunders on the prosecution decision, and if he had, the founding statute for the prosecution service would require a public notice of the directive and an explanation.

Saunders insists the independence of the PPSC is ironclad. “There is no authority over the director of public prosecutions in the Department of Justice whatsoever,” he says. “We tell the attorney general, fulfilling our obligation under the statute, what we propose to do in a file. We don’t consult with him. We say, ‘Here is what we are going to do.’ If the attorney general disagrees, he has the power under the statute to issue us a directive, but he has to do so in a public manner, so that any time there is any involvement by the attorney general in a file, it’s known.”

Meanwhile, Saunders and his deputies say the transformation of the former Federal Prosecution Service, from within the Justice Department to an ostensibly stand-alone department, has streamlined operations, despite the heavy workload its prosecutors faced even prior to the Conservative juggernaut of crime bills. “We are a more streamlined, flatter organization focused on one line of business: the business of prosecutions,” says Proulx. “We are probably much closer to what you would find in private practice in terms of how we do our business, than what you would find in a typical larger government department that is involved in doing a lot of different things and where there’s a lot more hierarchy, perhaps more ranks, perhaps more stringent and lengthier approval processes. I think we’re pretty nimble, we can move pretty quickly.”

It could be expected that a defence lawyer who has spent the past few years facing Crowns from the former prosecution service as well as the new organization might be guarded in his assessment of any progress or changes under the new regime. Mark Ertel, immediate past president of the Defence Counsel Association of Ottawa, lauds the PPSC for its quicker pace, especially compared to provincial Crowns, in post-arrest disclosure. But as far as any wider change in the courtroom goes, Ertel, who went to law school with Proulx, quips: “I think they changed their letterhead. I mean it’s all the same people, right? It’s the same people, the policies are basically the same, except that the laws have changed.”

Justice counsel association head Mendicino says he believes the government, despite its public posturing on crime bills, has not awarded the Crowns the resources they require to do the tasks they are assigned. He says while the government offered more money under the drug bill, it has at the same time listed the PPSC as a target of review for restraint measures. Even before that, it was losing lawyers to the provinces because provincial salaries for prosecutors are higher, says Saunders. The average salary for a senior federal Crown counsel in Toronto at the end of May was $106,774 to $149,518 compared to $111,072 to $182,703 for a senior Ontario provincial Crown, according to tables provided by the association.

The exodus has been somewhat reduced due to provincial hiring freezes. “We don’t lose them as much anymore,” says Saunders. But Mendicino lays blame for the federal Crowns’ heavy workload — he and Saunders both cite long days and overtime — on the government rather than Saunders. “I think Mr. Saunders is respected through the ranks,” says Mendicino. “The director of public prosecutions finds himself in an unenviable position because, in essence, the department has to find ways to save money at a time when they’re being asked to do more.”

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