The Public Prosecutor: A little history

If William Corbett, the Commissioner of Elections, concludes somewhere down the line that his investigation into what is being called the “in-and-out scheme” did, in fact, involve violations of the Canada Elections Act, Corbett will hand over the file to the newly minted Public Prosecutor of Canada, Brian Saunders. [Saunders' office has not yet updated the bio at its Web site. It still refers to him as Acting Public Prosecutor but, in fact, Justice Minister Rob Nicholson made his appointment permanent on Feb. 18 this year.]

Creating the office of the public prosecutor was an idea that Stephen Harper promised in Quebec City in the morning of the second day of the 2006 general election. I remember this day well as I was travelling with him at the time and it was probably the single worst day for the Tories on what would be a very long campaign. (Overall, I thought the Conservatives ran an intelligent, effective, and highly disciplined campaign but it sure didn't look like that was going to be the outcome during those first few days.)

To begin with, Harper announced this public prosecutor idea in Quebec City surrounded by local candidates (some of them now MPs) whose names he could not remember. Those candidates would include a future Foreign Affairs Minister named Maxime Bernier. Then — and this was as out-of-character for Harper then as it is now — he had trouble clearly explaining just what it was that a public prosecutor would do. To finish the morning off on a high note, candidate (and now Heritage Minister) Josée Verner actually shoved CBC reporter Julie Van Dusen out of the way in order to flee from the scrum which ensued after Harper had left the room.

But the day didn't end there. We left Quebec City and, over lunch, flew to Halifax where Harper was to address a big rally there in the late afternoon. Then Premier John Hamm was on hand as well as other notable Nova Scotia Conservatives including one Peter MacKay. Now Harper's professional training is as an economist. MacKay, on the other hand, is a lawyer and served for a time as a Crown prosecutor in New Glasgow. So MacKay has some good first-hand knowledge about the kinds of decisions a public prosecutor might make. But it turned out that MacKay — he was Harper's deputy leader remember — had not been briefed about this key election promise. In fact, the reporters on the bus at the time learned that Conservative strategists had not even solicited MacKay's advice about the office — an odd omission, not only because MacKay was a former prosecutor but also because Nova Scotia was the only province to have a Public Prosecution Service. In fact, Nova Scotia has had one since 1990.

So, naturally, we asked MacKay about the idea of a public prosecutor and he told us he'd only heard about that morning.
Then, we repeated the lines Harper had made earlier that day about a Public Prosecutor, namely:
“The independent director of public prosecutions, not a politician, will decide on prosecutions arising from the sponsorship scandal. We will let him do his job without political interference, while we get on with the job of governing.”

To which MacKay said:
“Let me be clear: A federal prosecutor has no jurisdiction over criminal offences, which include the Criminal Code.”
Apparently, they've since sorted this thing out and, while I'm no lawyer, my reading of the “About page” at the Public Prosecutors site seems to suggest MacKay was right — at least for most of Canada. The Public Prosecutor does have Criminal Code jurisdiction but only in the Territories and certainly not in Québec were some Liberal organizers and ad agency types and civil servants did, in fact, face Criminal Code sanctions for their role in the Sponsorship Scandal.