Mr. Speaker, as I have been listening to the debate today, there has been a lot of confusion between what is appropriate and what is not, and a lot of discussion as to where the various different cards fall with respect to obligation. I would like to take my time today to talk about the Shawcross and sub judice principles.
In Canada, there is a fundamental and constitutional principle that the Attorney General should act independently of any partisan consideration when exercising his or her discretion. The Supreme Court of Canada stated that this is a fundamental principle in the 2002 case of Krieger v. Law Society of Alberta.
It is important to understand what exactly the principle requires and what constitutes and does not constitute political interference with prosecutorial discretion. The Shawcross helps us to understand this concept, which is why I would like to take a few minutes to discuss it.
In short, the principle emphasizes the paramount importance of the independence of a prosecution while recognizing that it is entirely appropriate for the Attorney General to consult with his or her cabinet colleagues before exercising his or her powers of prosecution. The principle comes from Sir Hartley Shawcross, who in a speech to the United Kingdom Parliament in 1951 explained how the Attorney General should exercise his power to authorize criminal prosecutions, and what legitimate consultations the Attorney General could have with other members of the government in exercising this power.
Shawcross did not invent the principle, but his words on this subject are probably the most famous. I think it is worthwhile reading a part of his speech that is now recognized in the principle.
I think the true doctrine is that it is the duty of an Attorney-General, in deciding whether or not to authorize the prosecution, to acquaint himself with all the relevant facts, including, for instance, the effect which the prosecution, successful or unsuccessful as the case may be, would have upon public morale and order, and with any other considerations affecting public policy.
In order so to inform himself, he may, although I do not think he is obliged to, consult with any of his colleagues in the Government; and indeed, as Lord Simon once said, he would in some cases be a fool if he did not. On the other hand, the assistance of his colleagues is confined to informing him of particular considerations, which might affect his own decision, and does not consist, and must not consist in telling him what that decision ought to be. The responsibility for the eventual decision rests with the Attorney-General....
I would like to emphasize what I think are important elements of this speech. First, the Attorney General must consider whether the prosecution is in the public interest.
Second, in making the assessment, the Attorney General can consult with other members of cabinet, since they can offer insight into what might best serve the public. Sometimes consultation with cabinet colleagues will be important in order for the Attorney General to be cognizant of pan-government perspectives. These consultations can improve the quality of decision-making. Such consultations are not to be equated with interference or prosecutorial discretion. In short, the Shawcross principle does not preclude consultation and says that in some situations it is to be encouraged.
Third, the responsibility for the decision of whether or not to authorize the prosecution is that of the Attorney General alone. Cabinet can in no way direct the Attorney General to make a particular decision.
Fourth, in making the decision of whether or not to prosecute, the Attorney General may not act in a partisan way and must be guided only by the public interest.
In 1978, the Attorney General of Canada, Ron Basford, referred to the Shawcross principle while explaining to the House of Commons his decision not to initiate a prosecution under the Official Secrets Act. He explained the constitutional and legal principles that he had to take into account as the Attorney General. I think it would be useful to quote his words on that. He said:
The first principle, in my view, is that there must be excluded any consideration based upon narrow, partisan views, or based upon the political consequences to me or others.
In arriving at a decision on such a sensitive issue as this, the Attorney General is entitled to seek information and advice from others but in no way is he directed by his colleagues in the government or by Parliament itself.
This is by no means the only time the principle has been adopted by the Attorney General of Canada. Provincial attorneys general have also spoken on it, such as Ontario attorneys general Roy McMurtry and Ian Scott, in 1979 and 1987 respectively.
It is generally well recognized that the Shawcross principle applies to attorneys general in Canada unless a legislative limit has been placed on the ability of the attorney general to consult with respect to particular prosecutions. This is the case, for example, in Nova Scotia.
I want to turn now to a concrete example of how this principle was exercised in the U.K. in the Corner House Research case. The director of the Serious Fraud Office, who exercises both investigatory and prosecutorial authority, was conducting an investigation into bribery allegations in the context of military aircraft contracts between a British company and the Saudi Arabian government. The company sought to stop the investigation on the basis of its potential impact on a huge export contract and its effect on relations between the United Kingdom and the Saudi government. When the fraud office was about to examine the Swiss bank accounts, a representative of the Saudi government made a specific threat that if the investigation continued, there would be no contract and it would imperil intelligence and diplomatic ties.
Ministers of the U.K. government, including the prime minister, advised the attorney general and the director of the fraud office that if the investigation were not shut down, “the consequences would be grave, both for the arms trade and for the safety of British citizens and service personnel”.
The British ambassador to Saudi Arabia warned that “British lives on British streets were at risk”. The director of the fraud office decided, after extensive consultation, to terminate the investigation. The case was heard by the House of Lords, and it concluded that there was no clash with the rule of law. The director could legally make the decision he had to make. Even more, the House of Lords said that with all the facts the director had, any responsible decision-maker could not have done otherwise.
This example shows how important it is for other ministers, and sometimes for the Prime Minister, to inform the Attorney General of particular elements that may affect his or her decision to prosecute. The public interest effects that may arise from a prosecution are relevant considerations in this regard and they could have an impact on the Attorney General's decision to initiate prosecution.
In the example of Corner House Research, the public interest considerations shared with the attorney general and the director of the anti-fraud office were that the security of British citizens was threatened and that it would have had a negative impact on diplomatic relations between the United Kingdom and Saudi Arabia.
Thus, while the Attorney General can, and in fact should, consult with members of his or her cabinet, what is of paramount importance is that the responsibility for a potential decision rests with the Attorney General, who ultimately exercises that responsibility independently and is guided solely by the public interest.
I would now like to turn to the sub judice convention. In our parliamentary system, we adhere to and respect well-established constitutional principles and conventions. Foremost among them is the principle of the separation of powers, which our Supreme Court has emphasized is a principle that is fundamental to the workings of Parliament and the courts. This principle requires that each branch of government recognize the role of the other branches and respect the appropriate limits of its own role. As such, by convention, members of Parliament do not comment on matters that are pending before the courts. This is known as the sub judice rule, sub judice being Latin for “under judicial consideration”. Until that judicial consideration is complete, the convention dictates that the matter not be discussed in the House of Commons.
The rule is described in Parliamentary Rules and Forms of the House of Commons of Canada , as follows: “Members are expected to refrain from discussing matters that are before the courts or tribunals which are courts of record.”
On another point:
The purpose of this sub judice convention is to protect the parties in a case awaiting or undergoing trial and persons who stand to be affected by the outcome of a judicial inquiry.
In chapter 13 of House of Commons Procedure and Practice, third edition, it says:
It is also understood that matters before the courts are also prohibited as subjects of motions, petitions or questions of the House. This restriction exists in order to protect an accused person or other party to a court of action or judicial inquiry from any prejudicial effect of public discussion of the issue. The convention recognizes the courts, as opposed to the House, as the proper forum in which to decide individual cases. As Speaker Fraser noted, the convention maintains a “separation of mutual respect between legislative and judicial branches of government”. Thus, the constitutional independence of the judiciary is recognized.
This guide goes on to point out that restrictions serve to protect an accused or other party from prosecution or judicial inquiry from a prejudicial effect arising from a public discussion of the matter.
The Supreme Court of Canada has recognized the important role the sub judice rule plays in preserving the separation between the role of the courts and that of Parliament. In its 2005 decision in Canada (House of Commons) v. Vaid, the court affirmed the following:
It is a wise principle that the courts and Parliament strive to respect each other's role in the conduct of public affairs. Parliament...refrains from commenting on matters before the courts under the sub judice rule. The courts, for their part, are careful not to interfere with the workings of Parliament.
We here in this House insist on respect for parliamentary privilege. Parliamentary privilege is “one of the ways in which the fundamental constitutional separation of powers is respected.” On the other hand, we must also remember that the separation of powers requires respect for the related constitutional principle of judicial independence. As a result, we must refrain from interfering directly or indirectly in the role of the courts. That especially holds true for courts seized with criminal prosecutions and related matters. We must therefore respect the case law convention, because it contributes to the respect of the principles of the separation of powers and the independence of the judiciary.
We need to maintain a balance between the powers, roles and functions of the executive, the legislature and the judiciary. This long-standing convention is one of the important means we have to maintain that balance. The convention recognizes the courts, as opposed to the House, as the proper forum in which to decide individual cases. Furthermore, it is also important to note that the convention has been applied consistently in all matters relating to criminal cases.
In our parliamentary system, speaking on matters that are before the courts of justice, particularly courts seized with criminal matters and related proceedings, may risk prejudicing the outcome of a trial and may affect the protection of due process, including the presumption of innocence afforded accused persons in our society. The Canadian Charter of Rights and Freedoms constitutionally guarantees the right of persons charged with offences “to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal”. I am certain that no member in this chamber would want to undermine that fundamental constitutional right by discussing matters that are within the rightful purview and jurisdiction of the courts and that are pending before them a decision.
This brings us back to the reason for the rule: to protect not only the constitutional principles of judicial independence and the separation of powers but also the constitutional rights of accused persons. In a House respectful of those principles as well as constitutionalism and the rule of law, we must do all we can to avoid interference, or even the perception of interference, with due process, the broader principles of fundamental justice and the impartial role of the courts. The sub judice rule helps to protect judicial independence and the rule of law by avoiding the risk that judges or juries could be seen to be influenced by the debate in this place.
Given that the matter implicating SNC-Lavalin is presently before the courts, it is important that we exercise the requisite prudence and refrain from discussing these matters—not only, as I have described, in order to protect parties, but also because the trial could be affected by the outcome of the debate in this House.