The B.C. system of using special prosecutors in highly sensitive cases shouldn’t be expanded as doing so would erode public confidence in the system and could lead to lowered standards, former MP Stephen Owen said in his nine-page report on the issue last month.
British Columbia’s Ministry of the Attorney General requested the report after a conflict of interest arose in which a special prosecutor investigating an alleged campaign breach involving a cabinet minister later announced his firm had donated to the same politician’s election campaign.
Authorities often turn to special prosecutors in cases involving a potential conflict of interest by government or one of its agents, an option Ontario took up last year in the high-profile case against former attorney general Michael Bryant.
In his report, Owen said he disagreed with the Braidwood inquiry findings on the death of Robert Dziekanski that recommended appointing a special prosecutor in such police-related incidents. Owen pointed out there were on average 16 police-related, in-custody deaths each year from 1992 to 2007.
That figure, when combined with complaints to the RCMP and municipal police forces, would lead to a greatly expanded use of special prosecutors and perhaps to lower standards, Owen concluded. In the 20 years that B.C. has used the system, there have only been 153 cases where special prosecutors have been used.
“Special prosecutor appointments should be seen as an extraordinary event and the professional Crown counsel should remain the mainstay of public prosecution in B.C.,” Owen said.
In his view, the 38-lawyer list of special prosecutors is the appropriate size. He recommends reviewing it annually and refreshing it by five or six lawyers every two years with only individuals considered in the top of their field deemed appropriate candidates.
The appointments should reflect a balance in gender; expertise within the criminal bar; and be drawn from throughout the province. Owen also said the government could call in lawyers from outside of the province if required but saw no reason to place such names on the list since using them would be the result of a special circumstance.
In addition, Owen noted it was difficult to compile a comprehensive list of reasons for removal of a prosecutor. But by definition, he said, special prosecutors must exercise exemplary judgment and diligence in their work.
“However, failing to remain in good standing with the law society, leaving active practice or demonstrating poor judgment by acting in the face of an obvious conflict of interest could be cause for being dropped from the list during the annual review,“ Owen said.
Owen also set out recommendations for avoiding conflicts of interest. He suggested, for example, that any special prosecutor on the list who has made personal or business contributions to members of the legislative assembly or their campaign wouldn’t be allowed to sit on a case involving them.
“I have shared the report with Robert Gillen, assistant deputy attorney general for the criminal justice branch, and have asked that he implement all of the recommendations contained in the report,” said B.C. Attorney General Michael de Jong.