In The Supreme Court Of British Columbia

IN THE SUPREME COURT OF BRITISH COLUMBIA Blackmore v. British Columbia (Attorney General), 2009 BCSC 1299

Citation:

Date: 20090923 Docket: S095186 Registry: Vancouver IN THE MATTER OF THE JUDICIAL REVIEW PROCEDURE ACT, RSBC 1996, C. 241 Between: Winston Kaye Blackmore Petitioner And The Attorney General of British Columbia Respondent - AND Docket: S095757 Registry: Vancouver Between: James Marion Oler Petitioner And The Attorney General of British Columbia Respondent Before: The Honourable Madam Justice Stromberg-Stein

Reasons for Judgment

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Counsel for the Petitioner, Winston Kaye Blackmore:

Bruce Elwood A. Latimer

Counsel for the Petitioner, James Marion Oler:

Robert V. Wickett

Counsel for the Respondent, The Attorney General of British Columbia: Counsel for the Special Prosecutor as Appointed by the Attorney General of British Columbia: Place and Date of Hearing: Place and Date of Judgment:

Craig E. Jones S. Bevan

Terrence L. Robertson, Q.C. Kathleen M. Kinch Vancouver, B.C. September 3 and 4, 2009 Vancouver, B.C. September 23, 2009

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Introduction [1]

The petitioners, Winston Kaye Blackmore and James Marion Oler, are each

charged with practicing a form of polygamy, or practicing a kind of conjugal union, in the case of Mr. Blackmore, between May 1, 2005 and December 8, 2006, and in the case of Mr. Oler, between November 1, 2004 and October 8, 2008, contrary to s. 293(1)(a) of the Criminal Code, R.S.C. 1985, c. C-46 [Criminal Code]. [2]

Initially, the petitioners brought an application seeking to stay or quash the

Information, or an order in the nature of certiorari or prohibition, arguing: 1.

The decision of special prosecutor Richard Peck, Q.C. not to prosecute the applicants was “final” and this prosecution brought by special prosecutor Terrence Robertson, Q.C. is contrary to s. 7(5) of the Crown Counsel Act, R.S.B.C. 1996, c. 87 (the Act) and without jurisdiction, and the information should be stayed or quashed;

2.

Alternatively, the Attorney General engaged in conduct or purported to exercise a power inconsistent with the Act that is otherwise an abuse of process by “special prosecutor shopping”, and there should be a stay of proceedings; or

3.

In the further alternative, the prosecution is unfair and is otherwise an abuse of process because it is a constitutional test case, and there should be a conditional stay of proceedings until the Crown agrees to pay the legal fees and disbursements of the applicants.

[3]

Following the hearing of that application, this Court informed counsel by

memorandum that the issue of whether the decision of the special prosecutor is contrary to s. 7(5) of the Crown Counsel Act, R.S.B.C. 1996, c. 87 [Act] should be brought under the Judicial Review Procedure Act, R.S.B.C. 1996, c. 241 [JRPA]; and any challenge to the Information as an abuse of process is properly made to the trial court.

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In response, Mr. Blackmore and Mr. Oler have brought petitions pursuant to

the JRPA seeking the following relief: a.

a declaration that the directive by the Attorney General (the “AG”) to the Assistant Deputy Attorney General (the “ADAG”) that he appoint Terrence L. Robertson, Q.C. (“Mr. Robertson”), to conduct a charge assessment in relation to allegations of criminal misconduct involving individuals associated with the community of Bountiful, British Columbia, is a nullity;

b.

an order in the nature of certiorari, quashing the appointment by the ADAG of Mr. Robertson as a special prosecutor under s. 7 of the Crown Counsel Act, R.S.B.C. 1996, c. 87 (the Act), to conduct a charge assessment in relation to allegations of criminal misconduct involving individuals associated with the community of Bountiful, British Columbia;

c.

an order in the nature of certiorari, quashing the decision by Mr. Robertson as special prosecutor to approve charges against Mr. Blackmore [and Mr. Oler] under s. 293 of the Criminal Code of Canada (the “Code”).

[5]

It is important to appreciate the scope of this proceeding. This judicial review

concerns the process by which Mr. Blackmore and Mr. Oler were charged with the offences on the Information that is presently before the Provincial Court. At issue is the interpretation of the Act, and whether there is the statutory authority to bring the charges against the petitioners. This judicial review has nothing to do with the merits of the alleged offences; or with the merits of charge approval in this case; or whether there was manifest unfairness in the charge approval process or fundamental unfairness in proceeding with a prosecution instead of a reference to the Court of Appeal; or whether the prosecution of Mr. Blackmore and Mr. Oler should be stayed because it is an abuse of process.

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The Crown Counsel Act [6]

The Act sets out the role of the Criminal Justice Branch in the conduct of

prosecutions and formalizes the authority of Crown prosecutors employed by the Ministry of the Attorney General or appointed by the ADAG, subject to specific direction from the Attorney General or the ADAG. The relevant sections of the Act are s. 1, in part, and ss. 4-7: 1 In this Act: "ADAG" means the Assistant Deputy Attorney General, Criminal Justice Branch; … Responsibilities of Crown counsel 4 (1) The ADAG may designate as "Crown counsel" any individual or class of individual who is lawfully entitled to practise law in British Columbia. (2) Each Crown counsel is authorized to represent the Crown before all courts in relation to the prosecution of offences. (3) Subject to the directions of the ADAG or another Crown counsel designated by the ADAG, each Crown counsel is authorized to (a) examine all relevant information and documents and, following the examination, to approve for prosecution any offence or offences that he or she considers appropriate, (b) conduct the prosecutions approved, and (c) supervise prosecutions of offences that are being initiated or conducted by individuals who are not Crown counsel and, if the interests of justice require, to intervene and to conduct those prosecutions. (4) The Attorney General may establish an appeal process under which law enforcement officials may appeal the determination of any Crown counsel or special prosecutor not to approve a prosecution. ... Directions from Attorney General on specific prosecutions 5 If the Attorney General or Deputy Attorney General gives the ADAG a direction with respect to the approval or conduct of any specific prosecution or appeal, that direction must be (a) given in writing to the ADAG, and (b) published in the Gazette.

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Special prosecutors 7 (1) If the ADAG considers it is in the public interest, he or she may appoint a lawyer, who is not employed in the Ministry of Attorney General, as a special prosecutor. (2) A special prosecutor must carry out his or her mandate, as set out in writing by the ADAG, and in particular must (a) examine all relevant information and documents and report to the ADAG with respect to the approval and conduct of any specific prosecution, and (b) carry out any other responsibilities respecting the initiation and conduct of a specific prosecution. (3) If the ADAG appoints a special prosecutor, the ADAG must advise the Deputy Attorney General (a) that a special prosecutor has been appointed, and (b) the name of the special prosecutor. (4) If, after a special prosecutor receives the mandate under subsection (2), the Attorney General, Deputy Attorney General or ADAG gives a direction to a special prosecutor in respect of any matter within the mandate of the special prosecutor, that direction must be given in writing and be published in the Gazette. (5) Subject to the mandate given to the special prosecutor by the ADAG or to a directive referred to in subsection (4), the decision of a special prosecutor with respect to any matter within his or her mandate is final, but a decision not to approve a prosecution may be appealed by a law enforcement officer under the process established by section 4 (4).

Facts [7]

There have been a number of legal opinions in British Columbia suggesting

the polygamy law in s. 293 of the Criminal Code is unconstitutional and unenforceable and the proper course is to proceed by way of reference to the Court of Appeal. [8]

Allegations that polygamy is being practiced in Bountiful first came to the

attention of the RCMP and the Attorney General’s office in 1990. The RCMP conducted an investigation and provided a report to the Criminal Justice Branch. [9]

Regional Crown counsel reviewed the RCMP report and considered both the

evidence obtained by the RCMP as well as the constitutional validity of s. 293 of the Criminal Code in light of the Canadian Charter of Rights and Freedoms, Part I of the

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Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 [Charter]. In 1992, Crown counsel ultimately decided that there would be no substantial likelihood of conviction on charges of polygamy and declined to approve any charges. Crown counsel arrived at this conclusion principally on the basis of several internal and external expert opinions which concluded s. 293 was in conflict with the Charter s. 2(a) guarantee of freedom of religion. [10]

One external opinion, provided to the Ministry of the Attorney General in

February 1992 by retired British Columbia Court of Appeal Justice Richard Anderson, stated that s. 293 was “in direct conflict with Section 2(a)” and likely could not be saved under s. 1 of the Charter. Mr. Anderson noted that the section was overbroad in its application to all polygamous relationships, and that likely it could not be read down to apply only to “undesirable” polygamous unions, such as those involving either minors or allegations of physical or sexual abuse. Mr. Anderson concluded that any charges would result in a constitutional “test case” that would require an “enormous expenditure of time and money” and would take several years before a final resolution in the Supreme Court of Canada. In his opinion, Parliament was in the best position to address the concerns surrounding the practice of polygamy in Bountiful by redrafting the law in order to withstand Charter scrutiny and to protect the interests of the women and children of that community. [11]

Internal opinions from the Ministry of the Attorney General on the

constitutional validity of s. 293 to similar effect were publicized in 1992, along with the decision not to prosecute. [12]

The practice of polygamy in Bountiful again came to the attention of the

Ministry of the Attorney General in 2001 when former Chief Justice Allan McEachern was asked to provide his opinion as to the constitutional validity of s. 293. In his opinion, s. 293 was likely in conflict with s. 2(a) of the Charter and would be struck down if a prosecution were undertaken. [13]

The next RCMP investigation spanned the years 2004-2008. The RCMP

forwarded their first report on their investigation to Crown counsel on September 29,

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2006, recommending that charges of polygamy and sexual exploitation be brought against the petitioners. However, it was the opinion of four senior Crown counsel, including the ADAG, Robert Gillen, Q.C., that there was no substantial likelihood of conviction on the basis that s. 293 was likely contrary to the Charter guarantee of religious freedom. The Criminal Justice Branch would not approve any charges. [14]

On May 31, 2007, the Attorney General issued a directive to the ADAG under

s. 5 of the Act to retain an experienced criminal lawyer to conduct a charge assessment review of the results of the police investigation into allegations of potential misconduct by individuals associated with the community of Bountiful. The directive of the Attorney General, in writing and published in the Gazette: (Directive for Charge Assessment Review, B.C. Gaz. 2007.I.251) stated: In compliance with section 5 of the Crown Counsel Act, this letter is my directive to you to have a charge assessment review conducted of the results of the police investigation into allegations of potential misconduct by individuals associated with the community of Bountiful, British Columbia. I am further directing that you retain an experienced criminal lawyer in British Columbia who is not an employee of the provincial government to conduct this charge assessment. The charge assessment review should consist of a comprehensive legal analysis of all of the available evidence that has been assembled by the Royal Canadian Mounted Police as well as any other information the Criminal Justice Branch has concerning the allegations and furthermore should involve the consideration of any and all potential criminal or quasi-criminal charges, including but not limited to, polygamy and any offence of a sexual nature.

[15]

Following that directive, on June 6, 2007, the ADAG announced the

appointment of Richard Peck, Q.C. as a special prosecutor in accordance with his power in s. 7(1) of the Act, which allows the ADAG to appoint a special prosecutor where “the ADAG considers it is in the public interest”. The Crown Counsel Policy Manual provides the ADAG with guidance in exercising his or her authority to appoint a special prosecutor: the ADAG believes “there is a significant potential for real or perceived improper influence in prosecutorial decision making”, having regard for “the need to maintain the public confidence in the administration of criminal justice as the paramount consideration in deciding whether a case requires the appointment of a special prosecutor”.

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Mr. Peck's mandate included the following: Conducting an independent comprehensive legal analysis of all of the available evidence that had been assembled by the RCMP as well as any other information the Criminal Justice Branch had concerning the allegations and was to involve the consideration of any and all potential criminal or quasicriminal charges, including but not limited to, polygamy and any offence of a sexual nature; Offering such legal advice as was necessary to the police in the event that further investigation by them was required; Providing the Assistant Deputy Attorney General with a written report setting out his charge assessment review decision; and If in his view a charge was warranted, conducting the prosecution and any subsequent appeal.

[17]

On July 23, 2007, at the request of Mr. Peck, his mandate was expanded to

include consideration of a recommendation for a constitutional reference, and carriage of such a reference should one proceed. [18]

With the appointment of Mr. Peck, the Attorney General was reported to have

told a journalist: The department chose an independent prosecutor since B.C. Crown lawyers have already made their opinion clear: that charges under the polygamy law would fail. Oppal insists he isn't shopping for an opinion favouring prosecution of Bountiful elders. Peck can reach his own conclusions, Oppal says he just wants resolution. “”I'm quite concerned about the exploitation and all the other things that are said to be happening there.”” But, he adds, “”my own personal opinions don't necessarily translate into action.””

(Ken MacQueen, “Polygamy May be Legal in Canada under Charter” MacLean’s (25 June 2007) online: Macleans.ca
Mr. Peck concluded in his report of July 25, 2007, that there should be no

criminal charges laid in connection with the investigation. With respect to charges of sexual exploitation, he agreed “with the thorough and well-reasoned opinions of Crown Counsel on the proposed charges”, applying the Charge Assessment Guidelines of the Criminal Justice Branch, that there was “not a substantial likelihood of conviction with respect to any of the proposed counts”. He determined that none of the range of sexual and marriage related offences in the Criminal Code was

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applicable in the circumstances. He concluded “polygamy itself is at the root of the problem” and said, “With great respect to those who have given opinions to the contrary, I believe that s. 293 may well be upheld by the courts as consistent with the Charter’s commitment to religious freedom”. [20]

Mr. Peck considered that a reference to the Court of Appeal, rather than a

criminal trial, was the preferable way to determine the issue of the constitutionality of s. 293 for a number of reasons: A prosecution would likely face a number of obstacles, resulting in a cumbersome and time-consuming process. The constitutional issue might not be heard for some time after charges are laid, as other aspects of the trial process, such as disclosure issues or various defence motions, might take precedence. Given the unique history of this matter, including the lengthy passage of time since the first expression of police interest in Bountiful, and the existence of prior Crown opinions regarding the constitutionality of s. 293, these motions might be particularly lengthy and complex. They could result in the constitutional issue never being determined at trial.

[21]

Further, he concluded the public interest was best served by a reference

which would provide “an authoritative and expeditious judicial resolution of the legal controversy surrounding polygamy”. Mr. Peck commented: In my view, a reference to the BC Court of Appeal – with a probable further appeal to the Supreme Court of Canada – is the preferable approach to take. My view is that the public interest will best be served by an authoritative and expeditious judicial resolution of the legal controversy surrounding polygamy. The legality of polygamy in Canada has for too long been characterized by uncertainty. The integrity of the legal system suffers from such an impasse, and an authoritative statement from the courts is necessary in order to resolve it.

[22]

Mr. Peck felt “a clear statement from the courts would be desirable”

concerning the constitutional validity of s. 293. He concluded: If the law is upheld, members of the Bountiful community will have fair notice that their practice of polygamy must cease. If they, in turn, persist in the practice, a prosecution could be initiated at the Crown’s discretion, substantially free of the procedural obstacles which now exist.

[23]

In announcing the decision of Mr. Peck, the media statement issued by the

Criminal Justice Branch August 1, 2007, acknowledged that the appointment of a

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special prosecutor is made when there is “a significant potential for real or perceived improper influence in the administration of criminal justice”, and acknowledged the decision is final subject to any written published directions from the Attorney General, Deputy Attorney General or ADAG: The Assistant Deputy Attorney General for the Criminal Justice Branch appoints Special Prosecutors pursuant to the Crown Counsel Act when there is a significant potential for real or perceived improper influence in the administration of criminal justice. The decisions of Special Prosecutors are final subject only to receiving written directions from the Attorney General, Deputy Attorney General or Assistant Deputy Attorney General for the Criminal Justice Branch. In such an event, those directions must be made public by publishing them in the Gazette.

[24]

Approximately one month later, on September 6, 2007, the Attorney General

wrote the ADAG, referencing Mr. Peck’s report and some of the reasons why Mr. Peck concluded that proceeding by way of a reference was preferable to a prosecution, including “potential arguments relating to pre-charge delay resulting in actual prejudice, officially induced error and fairness considerations”. The Attorney General issued a directive to the ADAG, pursuant to s. 5 of the Act, to retain Leonard Doust, Q.C. "to review Mr. Peck's analysis, including the history and other factors he considered in coming to a conclusion that a prosecution was less preferable than a reference". The Attorney General instructed the ADAG: If Mr. Doust concludes as a result of this review that a prosecution for offences of polygamy meets the Criminal Justice Branch's charge approval policy, I further direct that you retain Mr. Doust to conduct the prosecution arising from the related police investigation on the offences of polygamy only, and any appeals which may arise from those proceedings.

[25]

The Attorney General’s written directions were published in the Gazette:

Directive for Charge Assessment Analysis, B.C. Gaz. 2007.I.386 as required by s. 5 of the Act. [26]

Pursuant to his powers in s. 4(1) of the Act, the ADAG appointed Mr. Doust

as an ad hoc prosecutor.

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In his report dated March 20, 2008, Mr. Doust confirmed the findings and

recommendations of Mr. Peck and concluded that “given both practical considerations and concerns about fairness, a reference rather than a prosecution is the most appropriate way to proceed at this time”. In coming to this conclusion, Mr. Doust’s reasons for his recommendation are summarized, in part: The serious misconduct in Bountiful will likely continue until the constitutionality of s. 293 is authoritatively decided by the Supreme Court of Canada…. A reference will bring the question of s. 293’s constitutionality to the Supreme Court of Canada much faster that (sic) a prosecution…. A reference will also avoid several possible pitfalls of a prosecution,… There is a serious risk of unfairness in proceeding with a prosecution under s. 293 at this time, considering: (a) for many years, the Ministry held the view that s. 293 is unconstitutional; (b) the Ministry publicized its view that s. 293 is unconstitutional; (c) on the basis of its view, the Ministry declined to prosecute under s. 293 despite knowing for many years that the section was being offended; (d) today there remains some question as to the constitutionality of s. 293; (e) a prosecution under s. 293 would effectively compel the accused to participate as a test litigant in the complex and lengthy resolution of that question; (f) the accused would have to be selected from among a pool of similarly culpable individuals; and (g) in any case, the reference procedure is available and better suited than a prosecution to the resolution of the constitutionality of s. 293.

[28]

Following the receipt of Mr. Doust’s opinion, the Attorney General was quoted

in the media as saying he favoured laying a polygamy charge but prosecutors in the Criminal Justice Branch believed the case would fail because of a constitutional violation of religious freedom. He said he could order prosecutors to take the case but he preferred to work with someone who did not believe the case was doomed to failure. He said he wanted a “more aggressive approach, which means you lay the charge and let the defence worry about the constitutionality issue. That’s normally the way things are done”. He had hoped one of the reports of Mr. Peck or Mr. Doust would have recommended prosecution, but since both reports said the same thing he was now considering going with a special prosecutor: Charles Lewis, “B.C. May

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Charge Men of Sect: A-G; ‘Canadians Abhor’ Behavior in Bountiful” The National Post (10 April 2008) A1 [Lewis]. [29]

On May 28, 2008, the Attorney General wrote the ADAG, directing him to

appoint Terrance Robertson Q.C. as a prosecutor, either special or ad hoc. This was almost one year after the Attorney General wrote the ADAG, directing him to appoint a prosecutor and the ADAG appointed Mr. Peck. The Attorney General’s directive to the ADAG reads: I have received Mr. Richard C. C. Peck's report entitled Final Report of Special Prosecutor for Allegations of Misconduct Involving Individuals Associated with the Community of Bountiful, BC, dated July 25, 2007, which concludes that proceeding by way of a reference is preferable to that of a prosecution for a number of reasons. Some of these reasons include potential arguments relating to pre-charge delay resulting in actual prejudice, officially induced error and fairness considerations. As I disagreed with Mr. Peck's decision not to prosecute allegations of polygamy, I directed that Mr. Leonard T. Doust be appointed as Crown Counsel to review Mr. Peck's analysis with a view to determining the viability of a prosecution. Mr. Doust also concluded that a reference was the preferable means by which to proceed. As he also concluded that a prosecution would be unfair, he declined to prosecute the polygamy allegations during our discussions on May 2, 2008. I disagree with Mr. Doust's conclusion that a prosecution would be unfair. It is my opinion that the Criminal Justice Branch is mistaken in its belief that s. 293 of the Criminal Code of Canada is unconstitutional. Both Mr. Doust and Mr. Peck believe s. 293 to be constitutionally valid legislation. A valid criminal law is and should be enforced. To do so is appropriate and is not unfair. Therefore, pursuant to Section 5 of the Crown Counsel Act, this letter is my directive to you to retain the legal services of Mr. Terrance Robertson to conduct a charge assessment of the most recent police investigation into polygamy in the Community of Bountiful. He is to apply the Criminal Justice Branch charge approval policy as it relates to Section 293 of the Criminal Code of Canada and any other Code provisions. The policy requires first, a determination of whether there is a substantial likelihood of conviction based on the available evidence, and if so, whether it is in the public interest to proceed with a prosecution. If he concludes that charges should be approved, he is to conduct the prosecution and any appeals which may arise from those proceedings. As you may designate him to be either Crown Counsel pursuant to Section 4 (1) of the Crown Counsel Act or as Special Prosecutor pursuant to Section 7

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of the Crown Counsel Act, I leave that designation selection for your determination.

[30]

This directive was published in the Gazette: Directive for Charge Assessment

Review, B.C. Gaz. 2008.I.237 There was no new police investigation or evidence. There was no change from Mr. Peck’s mandate. The directive to the ADAG sets out the reasons why the Attorney General requested Mr. Robertson’s appointment: he disagreed with Mr. Peck's decision not to prosecute allegations of polygamy; he disagreed with Mr. Doust's conclusion that a prosecution would be unfair; he felt the Criminal Justice Branch was mistaken in its belief that s. 293 of the Criminal Code is unconstitutional since both Mr. Doust and Mr. Peck believed s. 293 to be constitutionally valid legislation; and he believed it appropriate and not unfair to enforce a valid criminal law. [31]

On June 2, 2008, in response to the Attorney General’s directive, the ADAG

appointed Mr. Robertson as a special prosecutor. Mr. Robertson’s mandate was stated to be: Conducting an independent charge assessment review based on the results of the RCMP investigation, the materials assembled by the Criminal Justice Branch and any other information that the investigating officers may provide to him; Offering such legal advice as is necessary to the police in the event that further investigation by them is required; Providing the Assistant Deputy Attorney General with a written report setting out his charge assessment decision; and If in his view a charge is warranted, conducting the prosecution and any subsequent appeal.

[32]

Whereas Mr. Peck’s mandate was to conduct an independent comprehensive

legal analysis of all the available evidence, Mr. Robertson was asked to conduct an independent charge assessment review based on all the available evidence. Mr. Robertson’s mandate as a special prosecutor was essentially the same mandate as Mr. Peck’s. He was asked to consider afresh charges on the same investigative material Mr. Peck had already considered, and he was asked to apply the same charge approval test in considering whether charges should be approved.

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In August 2008, the RCMP conducted a follow-up investigation.

Mr. Robertson received a Supplemental Report to Crown Counsel from the RCMP investigating officers, dated November 25, 2008, which post-dated Mr. Robertson’s appointment as a special prosecutor by about five months. Issues [34]

What is the meaning of the word “final” in s. 7(5) of the Act? Was Mr. Peck’s

decision with respect to the approval and conduct of the prosecution of the petitioners a final decision within his mandate, thus restricting the Attorney General’s ability to direct the ADAG to appoint a further prosecutor, and restricting the ability of the ADAG to appoint a further special prosecutor with essentially the same mandate? In other words, was the appointment of Mr. Robertson as a special prosecutor contrary to s. 7(5) of the Act and was his decision to charge the petitioners unlawful? Standard of Review [35]

Counsel for the parties did not raise or make submissions on the appropriate

standard of review. However, in my opinion, the interpretation of the Act is a question of “general law of central importance to the legal system” that will “impact the administration of justice as a whole” and therefore the standard of review is correctness: Dunsmuir v. New Brunswick, 2008 SCC 9 at para. 60, [2008] 1 S.C.R. 190, Toronto (City) v. C.U.P.E., local 79, 2003 SCC 63 at para. 62, [2003] 3 S.C.R. 77. Position of the Petitioners [36]

The petitioners’ position is that the decision of Mr. Peck not to prosecute the

petitioners was final and binding and the Attorney General acted without jurisdiction and contrary to the Act in directing the ADAG to appoint Mr. Robertson on the same mandate as Mr. Peck, to consider and decide a charge assessment in relation to the same charges that Mr. Peck had decided not to approve for prosecution. They submit the appointment of Mr. Robertson as a special prosecutor was unauthorized

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by law and contrary to s. 7(5) of the Act. Accordingly, Mr. Robertson’s decision to approve charges against the petitioners under s. 293 of the Criminal Code was also unauthorized by law and contrary to s. 7(5) of the Act. They seek a declaration and orders in the nature of certiorari. [37]

In order to avoid the risk, real or perceived, of political interference in a

politically sensitive case, the petitioners submit that a decision of a special prosecutor with regard to a charge approval assessment is a final decision, vis-à-vis the Attorney General. They argue the decision of Mr. Peck on his mandate under s. 7(5) of the Act is “final” in the plain and ordinary sense of that word, and having regard to the purpose and intent of the Act which was enacted in response to the Discretion to Prosecute Inquiry: Discretion to Prosecute Inquiry, Commissioner’s Report, Vol. 1 (Victoria: Queen’s Printer for British Columbia, 1990) [Owen Report], which made several recommendations, including the formal creation of the position of special prosecutor with decision-making authority in order to promote public confidence that the decision to prosecute political and sensitive cases will be made according to the same standards as other cases, absent political influence. Position of the Attorney General [38]

The position of the Attorney General is that the decisions of the Attorney

General and the ADAG were authorized by statute and lawful; therefore, it follows that Mr. Robertson’s decision within his mandate was also authorized. The Attorney General submits s. 7(5) of the Act, in combination with s. 7(4), has two main functions. The first function is to enhance independence of special prosecutors in carrying out their mandate by ensuring transparency and accountability of decisions by means of overt directions from the Attorney General or the ADAG, thus barring covert influence from within the Criminal Justice Branch. The Attorney General argues the historical power of the Attorney General is not restricted in the appointment of successive special prosecutors by the Act. Rather, the concept of “finality” emphasizes that the conduct of the prosecution is free from direction except through overt, public, Gazetted directions. In support, the Attorney General argues

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there is no reason why the Attorney General should be permitted to transparently influence a special prosecution through Gazetted instructions to a special prosecutor, but be restrained from the much less intrusive device of overtly seeking a second independent assessment. The Attorney General maintains there is nothing objectionable in the Attorney General revisiting, even repeatedly, the “public interest” where the Attorney General has a different view of what is in the public interest. [39]

The Attorney General argues the second function of s. 7(5) of the Act is that it

operates as a privative clause, giving a special prosecutor the same immunity from judicial review as Crown counsel enjoy at common law. [40]

In the alternative the Attorney General argues, Mr. Robertson’s decision

involved an exercise of prosecutorial discretion and is not subject to review absent the petitioners establishing bad faith or improper purpose, which they have not alleged. [41]

In the further alternative, the Attorney General argues, even if the petitioners

are correct in their interpretation of s. 7(5) of the Act, Mr. Peck’s preference for a reference over a prosecution was not a “final” decision. [42]

Finally, the Attorney General argues that Mr. Robertson was under a new

mandate that didn’t offend the first decision because it was pursuant to a different factual matrix arising from a subsequent investigation by the RCMP and that Mr. Peck was functus. Position of the Special Prosecutor [43]

The special prosecutor argues his appointment is authorized by the powers of

the Attorney General and the provisions of the Act and there is no bar to the prosecution of the petitioners on the charges brought by the special prosecutor. The special prosecutor submits the petitions are an attack on the Attorney General’s prosecutorial discretion in initiating charges.

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The position of the special prosecutor is that the Act does not confer or limit

the power of the Attorney General but merely provides a mechanism, or prescribes the manner, governing the relationship between the Attorney General, the ADAG and the special prosecutor. Alternatively, the special prosecutor submits the Act results in a sharing of power between the Attorney General, the ADAG and the special prosecutor, such that the Attorney General’s ability to direct a special prosecutor is limited only in that any directions must be in writing and published in the Gazette. [45]

The special prosecutor argues the word “final” in s. 7(5) of the Act means that

the decision of a special prosecutor to either approve a charge or not stands with respect to that particular special prosecutor only, and does not restrict the Attorney General’s ability to direct the ADAG to appoint further special prosecutors with the same mandate. The special prosecutor argues nothing in s. 7(5) restricts the number of special prosecutors that can be appointed, or bars the ADAG from appointing successive special prosecutors, and such an interpretation would lead to an absurd result where a special prosecutor is unable or unwilling to act for some reason or if there was a change of facts and circumstances. Alternatively, the special prosecutors argue that Mr. Peck’s decision was not ‘final’, as it was subject to the outcome of a reference. [46]

In the alternative, the special prosecutor argues there is nothing in the Act

that restricts the ADAG from issuing a further or fresh mandate to another special prosecutor, either on his own initiative where it is in the public interest to do so pursuant to ss. 7(1) and (2) of the Act, or by the direction of the Attorney General pursuant to s. 5 of the Act. In the further alternative, the special prosecutor argues that Mr. Peck’s mandate ended when he decided not to approve charges and s. 7(4) and 7(5) of the Act cease to be operable at the end of the mandate.

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Statutory Interpretation of Crown Counsel Act Principles [47]

In Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27 at para. 21, 36 O.R.

(3d) 418 [Rizzo Shoes], the Court expressed the modern rule of statutory interpretation, adopted from E. A. Driedger in Construction of Statutes (2nd ed. 1983), at p. 87: Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament...

[48]

This approach is strengthened by s. 8 of the Interpretation Act, R.S.B.C. 1996

c. 238, which directs that “[e]very enactment must be construed as being remedial, and must be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects”. [49]

The Legislature does not intend to produce absurd consequences: Rizzo

Shoes at para. 27. Further, there is a presumption that legislation is internally consistent and coherent. In R. v. L.T.H., 2008 SCC 49 at para. 47, [2008] 2 S.C.R. 739 the Court quotes from Sullivan and Driedger on the Construction of Statutes (4th ed. 2002), at p. 168: As R. Sullivan explains, the provisions of a statute are presumed to fit together logically to form a rational, internally consistent framework; and because the framework has a purpose the parts are also presumed to work together dynamically, each contributing something toward accomplishing the intended goal.

[50]

The grammatical and ordinary meaning of the word “final” is “ultimate … not

to be undone, altered or revoked …. [and] conclusive”: Simpson and Weiner, The Oxford English Dictionary, 2nd ed., Volume V (Oxford: Clarendon Press, 1989) at pp. 191 to 192. [51]

However, it is not enough to look at only the plain and ordinary meaning of

the word: Rizzo Shoes at para. 23. The interpretation of the word “final” in s. 7(5) of

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the Act requires consideration of the actual word in the context of the scheme and object of the Act, having regard to the purpose and the intention of the Legislature. Meaning of “Final” [52]

The Act was the outcome of the Owen Report which recommended the

adoption of the special prosecutor model in British Columbia to create a mechanism for the appointment of special prosecutors to address the risk or potential for real or perceived improper influence in the investigation and prosecution of sensitive political cases. The Owen Report, at p. 6, documented the rationale for the special prosecutor model, in part, as follows: The rule of law in a democracy requires the public’s ongoing consent and confidence in order to survive. Any widespread unease with the essential fairness of our justice system can cripple it. Perception becomes reality when suspicion of injustice is allowed to fester. The system must be capable of quickly and convincingly resolving any such doubts. … It is not enough to know now that the system worked fairly. The adversarial nature of our political system and its apparent proximity to the administration of justice will inevitably raise questions of potential interference in criminal investigations involving political and other influential figures …. The system itself must be capable of demonstrating its integrity on an ongoing basis.

[53]

To maintain public confidence that the integrity of the justice system is being

protected, the Owen Report recommended that a formal special prosecutor mechanism be enacted by the Legislature. Recommendation #3, at p. 97 of the Owen Report, states: That in recognition of the fundamental importance of the separation of politics from the administration of justice, and given the dual role of the Attorney General as both a politician and the senior justice administrator in the province, a special prosecutor process should be instituted for political or other sensitive cases, as set out in Recommendation #9 below.

[54]

Recommendation #9, at p. 115 of the Owen Report, proposed the

appointment of a special prosecutor with decision-making authority in the following terms: 1)

That a special prosecutor be appointed in all cases where there is a significant potential for real or perceived improper influence in the

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administration of criminal justice because of the proximity of the suspect, or someone with a close relationship to the suspect, to the investigation, charge approval or prosecution processes. Such cases would include those involving cabinet ministers, senior public officials and police officers.

[55]

2)

That the special prosecutor be a senior criminal lawyer in private practice in British Columbia, appointed for a specific case jointly by the Treasurer of the Law Society of British Columbia and the Deputy Attorney General.

3)

That the role of the special prosecutor be to liaise with the police during the investigation; to make the charging decision; to lay the information and conduct the prosecution where this decision is made; and to provide adequate reasons to the police, the victim or other significantly interested person, and the public, as appropriate, where the decision not to prosecute is made.

4)

That the Attorney General retain the right to intervene, conduct or stay any case for which a special prosecutor has been appointed and have the responsibility to do so where appropriate in the public interest; but that any such intervention or direction to a special prosecutor must be made public and that full written reasons for the direction or intervention must be published in the official Gazette and placed before the Legislature at the earliest appropriate opportunity.

In fact, the Act sets out a special prosecutor process as contemplated by

Mr. Owen, except that the appointment of a special prosecutor is made by the ADAG. [56]

The Attorney General, pursuant to the Act, can direct the ADAG with respect

to the approval or conduct of a specific prosecution so long as the directions are in writing and published in the Gazette: s. 5. If the ADAG considers it is in the public interest, the ADAG may appoint a lawyer as a special prosecutor pursuant to s. 7(1), or as an ad hoc prosecutor pursuant to s. 4(1). The difference is that a special prosecutor is not subject to direction from the Criminal Justice Branch unlike an ad hoc prosecutor. The Act provides that the decision of the special prosecutor within his or her mandate is final, subject to an appeal by a law enforcement officer if a charge is not approved (s. 7(5)), and subject to direction from the Attorney General, the Deputy Attorney General or the ADAG, in writing and published in the Gazette, with respect to any matter within the special prosecutor’s mandate: s. 7(4).

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A number of factors distinguish the appointment of a special prosecutor

pursuant to s. 7 of the Act. First, a special prosecutor must not be employed in the Ministry of Attorney General: s. 7(1). Secondly, a special prosecutor must carry out his or her written mandate, examining all relevant materials and reporting to the ADAG with respect to the approval and conduct of any prosecution: s. 7(2). Third, the ADAG is required to report the appointment of a special prosecutor to the Attorney General: s. 7(3). Fourth, all directives given to a special prosecutor by the Attorney General, Deputy Attorney General or ADAG must be in writing and published in the Gazette: s. 7(4). Finally, subject to any directives in accordance with s. 7(4), “the decision of a special prosecutor with respect to any matter within his or her mandate is final”: s. 7(5). [58]

The intention of the Act is to give the ADAG the power to appoint a special

prosecutor in political or other sensitive cases, at the direction of the Attorney General, if the ADAG considers it is in the public interest to do so. This process is intended to address the competing interests the Attorney General faces with respect to political accountability and Crown independence in the Attorney General’s dual role of politician and senior justice administrator for the Province. [59]

This dual role of the Attorney General was commented upon in R. v. Power,

[1994] 1 S.C.R. 601 at p. 62, 117 Nfld. & P.E.I.R. 269 [R. v. Power]: Decisions concerning the operation of criminal justice involve important considerations relating to the public interest. From this perspective, the actions of the Attorney General are hybrid in that there is a perpetual moving to and fro between his legal and political functions. That is why the Attorney General must answer politically to Parliament for the manner in which the Crown exercises its powers.

[60]

In written argument, counsel for the Attorney General conceded various

rationale for the appointments of Mr. Peck and Mr. Robertson as special prosecutors, as follows: “to address a concern over the potential appearance of an overzealousness to prosecute”; “This is not a case in which Minister Oppal or others in government have any personal or party political interest in seeing a prosecution either avoided or pursued”; but rather, one where there is “a subtler concern that a

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perception of bias or animus might arise out of Minister Oppal’s persistent interest in Bountiful in the face of the various decisions not to prosecute over the preceding 15 years”; and there was “a perceived need to remove the prosecutor undertaking the charge assessment from the fray in order to ensure public confidence in the objectivity and thoroughness of his reasoning”: at paras. 44 and 45. [61]

The Attorney General maintains, however, that the concerns of political

interference in the charge approval process are met by the transparency and accountability built into the Act. The Attorney General submits that the concept of “finality” emphasizes that the conduct of the prosecution is free from direction by the Attorney General, the Deputy Attorney General, and the ADAG, except as it is expressed through the mandate and consists of Gazetted, public directions. The Attorney General argues the word “final” in s. 7(5) is a privative clause that should be interpreted as limiting external parties, such as the court or a private prosecution, and confirms that decisions of the special prosecutor will enjoy similar immunity from judicial review that Crown counsel enjoy at common law. [62]

I disagree with the Attorney General’s characterization of s. 7(5) as a privative

clause. The clear language of the provision does not resemble the language of a privative clause. Furthermore, the notion that the finality of the decision is only with respect to the courts and the public is inconsistent with the context and legislative history of the Act. The object and purpose of the Act is to enhance public confidence in the independence of prosecutorial decision-making. This would be frustrated if the decision of an independent special prosecutor could be re-visited by successive special prosecutors, on the same mandate, until a decision is reached that the Attorney General publically prefers. [63]

The special prosecutor points out there is nothing in s. 7(5) that precludes

interference with the special prosecutor’s mandate or decision or the appointment of successive special prosecutors so long as it is publically documented. The special prosecutor submits that “final” within the context of s. 7(5) means the special prosecutor is the sole decision-maker while carrying out his or her mandate, so long

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as he or she does not receive a direction in writing and published in the Gazette, thus establishing the transparency and political accountability envisioned in the Owen Report. Further, the special prosecutor points out that on the face of s. 7(5), when a special prosecutor is still within his or her mandate, decisions made are not binding on the Attorney General by virtue of s. 7(4). As with the argument of the Attorney General, to interpret the Act as merely providing that any interference must be done transparently and that nothing prohibits the Attorney General from seeking alternative decisions, is inconsistent with the purpose of the Act and would frustrate rather than further the goals of independence and public confidence. Prosecutorial Discretion and Judicial Review [64]

The decision to prosecute is fundamental to prosecutorial discretion and is

one of the core powers of the Attorney General: Krieger v. Law Society of Alberta, 2002 SCC 65 at paras. 43-45, [2002] 3 S.C.R. 372 [Krieger]. The Attorney General and the special prosecutor submit that what the petitioners are attacking is prosecutorial discretion and prosecutorial decisions: namely, the Attorney General’s directive under s. 5 of the Act, the ADAG’s appointment of the special prosecutor flowing from that directive pursuant to s. 7(1) of the Act, and the special prosecutor’s decision to charge, which are immune from judicial review, absent an abuse of process argument. [65]

In R. v. Power, L’Heureux-Dubé J. discusses the origins of prosecutorial

powers, derived from prerogative powers, at p. 621, quoting Donna C. Morgan in "Controlling Prosecutorial Powers -- Judicial Review, Abuse of Process and Section 7 of The Charter" (1986-87), 29 Crim. L.Q. 15, at pp. 20-21: 30 Most [prosecutorial powers] derive ... from the royal prerogative, defined by Dicey as the residue of discretionary or arbitrary authority residing in the hands of the Crown at any given time. Prerogative powers are essentially those granted by the common law to the Crown that are not shared by the Crown's subjects. While executive action carried out under their aegis conforms with the rule of law, prerogative powers are subject to the supremacy of Parliament, since they may be curtailed or abolished by statute. ...

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Still other powers that derive directly from the prerogative now reside in the Criminal Code.... Others ... have been limited or otherwise modified by Parliament. Finally, another group of prosecutorial powers ... are creatures of statute.

[66]

Further, at p. 622, L’Heureux-Dubé J. examines the meaning of prosecutorial

discretion: 32 In "Prosecutorial Discretion" (1987-88), 30 Crim. L.Q. 219, at p. 219, David Vanek explains the meaning of prosecutorial discretion: Prosecutorial discretion refers to the discretion exercised by the Attorney-General in matters within his authority in relation to the prosecution of criminal offences. The Attorney-General is the chief law officer of the Crown and a member of the Cabinet. He heads a ministry of the government that exercises the authority over the administration of justice and the constitution and the maintenance and organization of the courts that is conferred upon the provincial government by the constitution .... [T]he Attorney-General is the prosecutor and hence, in effect, a litigant in every criminal case except .... In practice, the Attorney-General acts in individual cases through the numerous Crown Attorneys and Assistant Crown Attorneys who are appointed as his agents to prosecute for criminal offences on his behalf. [emphasis in original]

[67]

Because prosecutorial discretion resides within the domain of the executive

branch of government, courts have been reluctant to interfere with the exercise of this discretion, in order to reduce the pressures faced by the Attorney General and Crown counsel, and in recognition of the division of powers between the executive and the judiciary, the rule of law and the relative expertise of the Attorney General in balancing the competing considerations in coming to a decision to prosecute: R. v. Power at p. 123; Krieger at para. 32; British Columbia (Attorney General) v. Davies, 2009 BCCA 337, [2009] B.C.W.L.D. 5812 [Davies]. Absent incompetence, negligence, bad faith, or “flagrant impropriety” (Davies, at para. 32), or “allegations that the Crown acted from improper motives or purposes” (Davies, at para. 37), courts will not interfere with the Crown’s charging decisions: R. v. Port Chevrolet Oldsmobile Ltd., 2009 BCCA 357 at para. 73, 2009 CarswellBC 2132. [68]

In Davies, the court addressed prosecutorial independence, at para. 30: Prosecutorial independence is a cornerstone of our system of criminal justice. Decisions by the Crown to proceed with or refrain from proceeding with

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criminal prosecutions have profound effects on persons suspected of crimes, on victims, and on the public in general. Prosecutors have a duty to make such decisions dispassionately, without regard to either public sentiment or political pressures.

[69]

It is clear from the authorities that judges should not engage in a process of

judicial screening of the Attorney General’s exercise of prosecutorial discretion in deciding whether to commence a prosecution. However, the Act imposes limits and restrictions on the Attorney General’s prerogative powers in certain circumstances in order to promote public confidence that the exercise of prosecutorial discretion occurs in a fair and objective way. This will meet what the Owen Report described at p. 7 as “[t]he challenge of the fair and effective administration of criminal justice … to achieve the proper balance between independence from political interference and accountability to the political process for the investigation and prosecution of crime”. [70]

To insulate a decision to prosecute from real or perceived political or improper

interference, and to ensure the independence of the decision making process, s. 7(5) of the Act gives a special prosecutor decision-making authority. In essence, the Act limits or restricts the Attorney General’s prerogative powers to decide whether to prosecute in cases where the ADAG determines that the appointment of a special prosecutor is warranted in the public interest. [71]

The role assigned to a special prosecutor is not simply advisory, or to make

recommendations, but is expressly to make a final decision on the matters that are the subject of the special prosecutor’s mandate. The Attorney General’s powers to decide whether to prosecute are delegated to the special prosecutor whose decision with respect to any matter within his or her mandate is final, subject only to an appeal by a law enforcement officer if the special prosecutor decides not to approve charges. As well, the Attorney General maintains residual responsibility “to intervene in the public interest and on the public record” by means of further directions, in writing and Gazetted, from the Attorney General. There was no such appeal or intervention in this case.

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What is in issue here is not prosecutorial discretion because that discretion

was delegated to the special prosecutor. The issue here is the Attorney General’s directions pursuant to the Act. Prerogative Powers and Paramountcy [73]

The special prosecutor argues that to interpret the “finality clause” as

interpreted by the petitioners, would offend the principle of federal paramountcy as it would result in a federal law rendered ineffectual by a statutory limit on provincial enforcement if the matter was one assigned to a special prosecutor. The special prosecutor argues the Attorney General is unrestricted in s. 5 of the Act in issuing directions to the ADAG, and the ADAG is unrestricted in ss. 7(1) and (2) in appointing successive special prosecutors on the same mandate and issuing a further or new mandate. [74]

The special prosecutor accepts that the Act provides a mechanism through

which prosecutions are conducted in this province, such that the Attorney General is not, typically, personally instituting and carrying out proceedings. However, the special prosecutor argues the Act specifically provides for a personal role for the Attorney General, and it does not strip him of constitutional and Crown prerogative powers. [75]

While the petitioners acknowledge that the discretion to initiate a prosecution

is among the prerogative powers of the Attorney General, they argue those powers may be curtailed or abolished by statute: R. v. Power, at p. 622. They argue the Act delegates the Attorney General’s powers to a special prosecutor upon his or her appointment to make a charge approval decision and the Act curtails or limits the prerogative power normally enjoyed by the Attorney General to such an extent that it can only be exercised in accordance with the Act – that is, by the special prosecutor, whose decision on the matter is final: Delivery Drugs Ltd. v. British Columbia (Deputy Minister of Health), 2007 BCCA 550 at para. 48, 286 D.L.R. (4th) 630.

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I agree with the petitioners that there is no paramountcy issue here. To

suggest that the Attorney General’s powers cannot be curtailed by the Act because they are federally derived would mean that the Province cannot legislate on its delegated powers to administer the criminal law, an argument to which I cannot accede. [77]

Through s. 2 of the Criminal Code, Parliament has delegated to the provincial

Attorney Generals the authority to administer the criminal law and to prosecute crime in their respective provinces. The provincial legislature is within its power to enact a law that limits or restricts the provincial Attorney General’s powers provided there is no direct conflict with the federal statute. [78]

In British Columbia, how the provincial Attorney General prosecutes crime is

set out in the Act. The Attorney General’s prerogative to prosecute crime in British Columbia is subject to the limitations and conditions contained in s. 7 of the Act. Section 7 delegates prosecutorial discretion in certain cases to a special prosecutor with decision-making authority. Section 7 (5) stipulates that the decision of a special prosecutor with respect to any matter within his or her mandate is final, subject only to a written Gazetted directive to the special prosecutor from the Attorney General, the Deputy Attorney General or the ADAG; or an appeal by a law enforcement officer in the event of a decision not to prosecute. [79]

There is no conflict between federal and provincial legislation. There is no

operational conflict between the Attorney General’s powers under s. 579(1) of the Criminal Code and s. 7 of the Act. Finality of Mr. Peck’s Decision [80]

The special prosecutor argues that Mr. Peck’s decision not to prosecute was

not “final” but remained subject to the outcome of a reference. The Attorney General argues that the decision of Mr. Peck to prefer a reference over a prosecution cannot be seen as “final” as it was not a decision made with respect to the “conduct of a specific prosecution” in the language of s. 7 of the Act. Further, the Attorney

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General argues the recommendation of a reference was not a decision made under the authority of the Act and therefore was not subject to the finality clause, since the power to direct a reference is vested exclusively in the Lieutenant-Governor in Council under the Constitutional Questions Act, R.S.B.C. 1996, c.68. [81]

I reject these arguments. These arguments overlook the fact that Mr. Peck’s

mandate was expanded to include consideration of a reference. [82]

Mr. Peck’s decision, within the scope of his mandate, was final.

New Mandate [83]

Both the Attorney General and the special prosecutor argue, in the

alternative, that Mr. Robertson had a new mandate. [84]

The Attorney General argues Mr. Peck was functus and his mandate expired

once it became apparent the Lieutenant-Governor in Council was not going to pursue a reference. The special prosecutor argues that once Mr. Peck decided not to approve charges, his mandate ended and he could not be given further directions. They argue s.7(5) only regulates the relationship during the life of the mandate and s. 7(4) and s. 7(5) cease to be operable at the end of the mandate. [85]

I disagree with the positions of the Attorney General and the special

prosecutor that Mr. Peck had exhausted his mandate and could not be given a directive as ss. 7(4) and 7(5) were no longer operative. This interpretation is inconsistent with the context and legislative history of the Act. [86]

In addition, the special prosecutor maintains that his decision to prosecute

was made following a new investigation by the RCMP, detailed in a Supplementary Report to Crown Counsel, dated November 25, 2008. Further, because polygamy is a continuing offence continuing past the expiry of Mr. Peck’s mandate, Mr. Robertson’s was a fresh mandate.

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I reject this argument. Mr. Robertson was appointed to consider essentially

the same mandate as Mr. Peck and the new investigation by the RCMP was ordered subsequent to Mr. Robertson’s appointment. Application to Facts [88]

The evidence demonstrates that on May 31, 2007, the Attorney General

directed the ADAG to retain an experienced criminal lawyer in British Columbia to conduct the charge assessment concerning the petitioners. The Criminal Justice Branch had refused to prosecute; the Attorney General could have directed the Criminal Justice Branch to prosecute under s. 6 of the Act but chose instead to direct the ADAG to appoint a prosecutor. The Attorney General did not name a lawyer but left the choice to the ADAG in accordance with s. 7(1) of the Act. [89]

The ADAG appointed Mr. Peck as a special prosecutor. Within his mandate,

Mr. Peck did not approve a prosecution but recommended a reference. There was no appeal by a law enforcement officer and no directions were issued from the Attorney General, the Deputy Attorney General or the ADAG. [90]

Less than two months later, on September 6, 2007, the Attorney General

directed the ADAG to retain Leonard Doust, Q.C. "to review Mr. Peck's decision”. The ADAG appointed Mr. Doust as an ad hoc prosecutor. On March 20, 2008, Mr. Doust agreed with Mr. Peck’s decision. [91]

However, the Attorney General wanted a “more aggressive approach, which

means you lay the charge and let the defence worry about the constitutionality issue”: Lewis, at p. A1. He recognized he could order the Criminal Justice Branch to prosecute the case, but he preferred to work with someone who did not believe the case was doomed to failure. He had hoped Mr. Peck or Mr. Doust would have decided to lay a charge, but since both had recommended a reference instead he considered going with a special prosecutor. [92]

To that end, on May 28, 2008, the Attorney General directed the ADAG to

appoint Mr. Robertson as a prosecutor, either special or ad hoc. In his directive, he

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stated he disagreed with Mr. Peck's and Mr. Doust’s decisions not to prosecute. He disagreed with the Criminal Justice Branch’s belief that s. 293 of the Criminal Code is unconstitutional since Mr. Doust and Mr. Peck believed it to be constitutionally valid legislation. In the Attorney General’s view, a valid criminal provision should be enforced. [93]

The ADAG appointed Mr. Robertson as special prosecutor. With essentially

the same mandate as Mr. Peck, Mr. Robertson’s decision to proceed with a prosecution was contrary to Mr. Peck’s recommendation not to prosecute but to proceed with a reference. [94]

Following the decision of Mr. Robertson, the Attorney General did not direct

the ADAG to seek further opinions or decisions, or to make any further appointments of special or ad hoc prosecutors. A reasonable person would conclude this was because the Attorney General had finally obtained the decision he wanted all along. [95]

The appointment of Mr. Robertson, on essentially the same mandate as

Mr. Peck, violated s. 7(5) of the Act because the meaning of the Act and the clear legislative intent is that the decision of the first special prosecutor, Mr. Peck, on his mandate, was final. The Attorney General delegated his decision-making power to Mr. Peck to consider a prosecution. He sought the appearance of an independent transparent process but then refused to accept the result. It is inconsistent with the Act for the Attorney General to seek the appointment of successive prosecutors to get a desired result. As the petitioners point out, if the Attorney General is free to have another special prosecutor review the decision of a previous special prosecutor on the same mandate, the odds are that eventually the decision will be different as there are only two possible outcomes. [96]

The Attorney General treated the decision of the special prosecutor,

Mr. Peck, as merely advisory. Yet, Mr. Peck’s decision fell within the terms of his mandate. There were no public directives to Mr. Peck concerning his mandate or his decision and no appeal. In accordance with s. 7(5) of the Act, Mr. Peck’s decision on his mandate was final.

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Further, the Attorney General specifically named Mr. Doust and

Mr. Robertson, a decision that is left to the ADAG, thus departing from the principles of independence that underlies the purpose and intent of the Act. The intent of the Act is to leave the selection of a special prosecutor up to the ADAG if he concludes it is in the public interest. The Act does not contemplate that the Attorney General would direct the selection of a specific prosecutor as he did with Mr. Doust and Mr. Robertson. [98]

The Attorney General created the illusion that the decision to prosecute was

that of the special prosecutor when, in reality, the decision reflected the result the Attorney General sought. This is precisely what the Act seeks to avoid in order to maintain public confidence in the administration of criminal justice in this province. [99]

The Act restricts the Attorney General’s prerogative insofar as he has

delegated the charge approval decision to a special prosecutor. This is not to say the Attorney General never has the jurisdiction to appoint another or successive special prosecutors in other circumstances, such as where the mandate has changed due to a change in circumstances or evidence, or it cannot be fulfilled for reasons such as resignation, illness, death, or conflict of interest. [100] In this case, the Court is faced with the appointment of successive prosecutors, including two special prosecutors on the same mandate. In the result, the Attorney General got the answer he publically sought all along; that is, to prosecute. This is exactly the type of interference with the charge approval process that the Act and the special prosecutor scheme are meant to prevent and is inconsistent with the purpose and object of the Act. [101] Objectivity and independence are important checks and balances in the criminal justice system. A special prosecutor performs a quasi-judicial function, acting on the basis of powers delegated under the Act, with a role to decide and not merely to advise. The harm in the appointment of successive special prosecutors is that it undermines the administration of justice by leaving the perception, if not the reality, of political interference and of an oppressive or unfair prosecution. The

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Attorney General upset the critical balance that Mr. Owen opined should be kept between political independence and accountability. The Attorney General was well aware of the role afforded a special prosecutor as evidenced by his comments in Hansard on May 10, 2007, in respect to questions about another special prosecutor in another matter: What has happened here is that there is a special prosecutor appointed. If a special prosecutor is appointed – listen carefully – the Attorney General doesn’t get involved. That’s pretty fundamental. The Attorney General doesn’t get involved, so as to remove any suggestion of any political interference.

(British Columbia, Legislative Assembly, Official Report of Debates (Hansard), Vol. 20, No. 7 (May 10, 2007) at 7839 (Hon. W. Oppal). [102] In relation to the perception of political interference, Mr. Robertson was reported to have said: “”Some people may infer that [Mr. Oppal] was shopping until he found a lawyer that would do his bidding,”” Terrence Robertson acknowledged. “”Nothing could be further from the truth. I can tell you, [Mr. Oppal's views] had no impact on my decision. I take my role as a special prosecutor very seriously.””

Brian Hutchinson, “Polygamy and the legal Wrangling that surrounds it” The National Post (9 January 2009) Online: National Post
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Conclusion [105] I conclude the Attorney General had no jurisdiction to direct the ADAG to appoint Mr. Robertson as a prosecutor, and the ADAG had no jurisdiction to appoint Mr. Robertson as a special prosecutor, to conduct a charge assessment in relation to the same mandate where Mr. Peck had decided not to approve charges but recommended a reference to the Court of Appeal. The appointment of Mr. Robertson as a special prosecutor was contrary to s. 7 of the Act and his decision was therefore unlawful. [106] I grant orders in the nature of certiorari, quashing the appointment by the ADAG of Mr. Robertson as a special prosecutor under s. 7 of the Crown Counsel Act to conduct a charge assessment in relation to allegations of criminal misconduct involving individuals associated with the community of Bountiful, British Columbia; and orders in the nature of certiorari, quashing the decision of Mr. Robertson as special prosecutor to approve charges against Mr. Blackmore and Mr. Oler under s. 293 of the Criminal Code. “The Honourable Madam Justice Stromberg-Stein”