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Saunders points out, the submission to Nicholson and Treasury Board is a confi- dence of cabinet. Marco Mendicino, president of the Association of Justice Counsel, the in- house union that also represented pub- lic 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 pros- ecutors to handle the increased workload that will inevitably come from more con- tested 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 per- son 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 plead- ing. 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 han- dle the dead-time ramifications. Since both issues could provide ammunition to opposition parties that oppose the govern- ment's approach to the justice system, cur- rently 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 frame- work 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 ser- vice suddenly switched to direct indict- ments 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 kid- nap and murder politicians while blow- ing up the CN Tower, changed direction abruptly after the PPSC was forced to stay some charges, which were subse- quently 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 Comartin, who added he could not dis- close what was discussed in the confir- mation 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 prosecu- tion 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 author- ity 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 dis- agrees, he has the power under the statute to issue us a directive, but he has to do so "We are a more streamlined, flatter organization focused on one line of business: the business of prosecutions. 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. . . ." — Chantal Proulx Brian's specific direction they stopped that, they cut it and went with a direct prosecution without a preliminary inqui- ry. 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 jus- tice 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 com- mittee that finally confirmed Saunders' appointment, at a hearing that took place after the Toronto 18 prosecution direc- tive. "I have to say I was very concerned about that particular appointment," says 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 depu- ties 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 orga- nization 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 www. C ANADIAN Law ye rmag.com JULY 2010 33