IN THE SUPREME COURT OF BRITISH COLUMBIA
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Citation: |
British Columbia (Criminal Justice Branch) v. Davies, |
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2008 BCSC 817 |
Date: 20080624
Docket: S081894
Registry: Vancouver
In the matter of the Judicial Review Procedure
Act, R.S.B.C.
1996, c. 241, and the Public Inquiry Act, S.B.C. 2007, c. 9,
and
in the matter of a Commission of Inquiry into the Death of Frank Paul
Between:
The
Criminal Justice Branch of the
Ministry of Attorney General
Petitioner
And:
William H. Davies, Q.C., Commissioner
Respondent
Before: The Honourable Mr. Justice Melnick
Reasons for Judgment
| Counsel for the petitioner, the Criminal Justice Branch |
R.C.C. Peck, Q.C., |
| Counsel for the respondent, William H. Davies, Q.C., Commissioner |
D.G. Cowper, Q.C. |
| Counsel
for the Frank Paul Family |
S. Kelliher |
| Counsel
for the Aboriginal Legal Services |
J. Rudin |
| Counsel for the United Native Nations Society |
A.C. Ward |
| Counsel for the B.C. Civil Liberties Association |
M. Tammen |
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Date and Place of Hearing: |
May 26, 27 and 28, 2008 |
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Vancouver, B.C. |
[1] In an application to Commissioner William H. Davies, Q.C. (the “Commissioner”) in the Frank Paul Inquiry (the “Inquiry”), the Criminal Justice Branch of the Ministry of Attorney General (the “CJB”) sought to have the Commissioner declare that it was not compellable to provide documentary and viva voce evidence as to its response to the death of Frank Paul (“Mr. Paul”). The CJB says that it and its employees are protected from disclosing such information, relying on the principles of Crown immunity and solicitor-client privilege. The Commissioner found otherwise and the CJB now appeals that ruling. Others have joined as respondent parties to this action to support the Commissioner’s position.
I. Background
[2] On December 5, 1998, Mr. Paul was taken into custody in the City of Vancouver for being in a state of intoxication in a public place. He was transported to the lock-up in the Vancouver Police station. However, a decision was made not to accept him and, instead, he was deposited by a member of the Vancouver Police Department in an alleyway close to the Vancouver Detox Center. In the early morning of December 6, 1998, an individual found Mr. Paul’s body in that alleyway. He had apparently died from hypothermia due to acute alcohol intoxication.
[3] In 2000, certain disciplinary proceedings were taken against two officers of the Vancouver Police Department with respect to their part in the events leading up to Mr. Paul’s death. No inquest was held, nor were any hearings undertaken by the then Police Complaints Commissioner. Apparently, five assessments were undertaken on behalf of the CJB to determine whether there was sufficient evidence to proceed with charges against anyone in the death of Mr. Paul. In each case, the conclusion was that there was insufficient evidence to meet the criminal standard of proof beyond a reasonable doubt. The Assistant Deputy Attorney General agreed with each of those assessments.
[4] In 2003, a new Police Complaints Commissioner, Dirk Ryneveld, Q.C., reopened the Frank Paul file. In January 2004, he recommended that either an inquest or public inquiry be held to look into the matter. Thus, the Inquiry was first announced in February 2007, the Commissioner was appointed in March 2007, and the Inquiry (including the Terms of Reference) was ordered and approved by the Lieutenant Governor in Council on August 9, 2007.
[5] I gather from what was said in the ruling by the Commissioner and by the material put before me, that the intervening 9 years between Mr. Paul’s death and the creation of the Inquiry did not create a vacuum devoid of public interest in the circumstances relating to Mr. Paul’s death, particularly among members of the Aboriginal community. Mr. Paul was an Aboriginal person. In particular, the March 9, 2007 Information Bulletin announcing the appointment of the Commissioner states, in part:
Solicitor General John Les announced the inquiry on Feb. 22, 2007, in response to ongoing public concern and interest in the Frank Paul matter, and a need to ensure public confidence in the administration of justice.
[6] On August 10, 2007, when the Ministry of Attorney General published the Terms of Reference for the Inquiry, the Information Bulletin specifically noted that the Terms of Reference were being released by Attorney General Wally Oppal.
[7] I set out the Information Bulletin of August 10, 2007 in full:
INFORMATION BULLETIN
TERMS OF REFERENCE ANNOUNCED IN FRANK PAUL INQUIRY
VICTORIA – Terms of reference for a public inquiry into the 1998 death of Frank Joseph Paul were released today by Attorney General Wally Oppal.
Paul, a New Brunswick Mi’Kmaq, was found dead in a Vancouver Downtown Eastside alley Dec. 6, 1998, after being released from police custody.
The hearing and study commission, headed by William H. Davies, QC, is being established to provide Paul’s family and the public with a record of the circumstances of his death. Davies, the sole member, may recommend changes, as necessary to the relevant rules, policies and procedures of the BC Ambulance Service, the Vancouver police board and police department, the Police Complaints Commissioner, the BC Coroners Service and the Ministry of Attorney General criminal justice branch.
A commission of inquiry was announced earlier by Solicitor General John Les and is established under the new Public Inquiry Act. It is expected to begin work soon with public hearings in Vancouver this fall. The final report is to be submitted by next May 31.
The Attorney General is responsible for the Public Inquiry Act and receiving Davies’ report. Public inquiry reports will be tabled before the Legislative Assembly following a review related to the applicable sections of the Freedom of Information and Protection of Privacy Act. Oral hearings are open to the public unless the inquiry commissioner determines that protection of a personal or public interest requires otherwise.
BACKGROUNDER
WILLIAM H. DAVIES, QC, COMMISSION OF INQUIRY
PURPOSE AND TERMS OF REFERENCE
Purpose:
(a) to provide Mr. Paul’s family and the public with a complete record of the circumstances relating to Mr. Paul’s death;
(b) to recommend changes considered necessary to the rules, policies and procedures referred to in section 4(c), (d) and (e).
Terms of reference:
(a) to conduct hearings, in or near the City of Vancouver, into the circumstances surrounding the death of Mr. Paul;
(b) to make findings of fact regarding circumstances relating to Mr. Paul’s death, including findings of fact respecting the response of British Columbia Ambulance Service, the Vancouver Police Department, the BC Coroners Service, the Office of the Police Complaints Commissioner and the Criminal Justice Branch of the Ministry of Attorney General to the death of Mr. Paul;
(c) to examine the rules, policies and procedures of the Vancouver police board and of the Vancouver police department respecting police interaction with persons who are incapacitated by alcohol or drug use, including directions for the handling, detention, transportation and release of individuals who, as a result of alcohol or drug use, are incapacitated, violent, unable to care for themselves, self-destructive or unconscious;
(d) to examine the rules, policies and procedures of the British Columbia Ambulance Service respecting the interaction of staff of the British Columbia Ambulance Service with persons who are incapacitated by alcohol or drug use, including directions for the handling and transportation of individuals who, as a result of alcohol or drug use, are incapacitated, violent, unable to care for themselves, self-destructive or unconscious;
(e) to examine the rules, policies and procedures of the BC Coroners Service, the Office of the Police Complaints Commissioner and the Criminal Justice Branch of the Ministry of Attorney General related to the role and response of each of those offices where an individual dies in circumstances similar to the circumstances of Mr. Paul’s death;
(f) to recommend changes considered necessary to the rules, policies and procedures referred to in paragraphs (c), (d) and (e);
(g) to identify the health care and social service programs and facilities available in the City of Vancouver that the police may access if a municipal constable determines that a person should not be detained but the person requires immediate health care or social services because the person is incapacitated by alcohol or drug use;
(h) to submit a final report to the Attorney General on or before May 31, 2008.
[Emphasis mine.]
[8] On this application, the Aboriginal Legal Services of Toronto sought to rely on an affidavit by Grand Chief Stewart Phillip, President of the Union of B.C. Indian Chiefs and a representative of the First Nations Leadership Council of British Columbia. That affidavit was sworn on May 23, 2008, days before the commencement of this hearing, and provided to counsel for the CJB on Sunday, May 25. Grand Chief Phillip purports to provide evidence about his involvement and that of the Paul family and First Nations leaders of British Columbia in bringing about the Inquiry and subsequently negotiating the Terms of Reference. The affidavit is vague in many respects, lacking the precision one would expect of such a document purporting to provide important evidence. In any event, I cannot rely upon it even though it may have been of assistance to me. This is because the affidavit was not put before the Commissioner; therefore, it was not considered by him in coming to his decision. The position of the CJB relating to its claims for immunity and privilege could not have been a surprise to any of the participants before the Inquiry or this judicial review because its counsel announced very early on in the Inquiry proceedings that they intended to take the position they have on behalf of the CJB.
[9] The Commissioner has now apparently received all of the evidence of the Inquiry, other than that he has directed to come from the CJB. His report was to have been filed by May 31, 2008.
II. Errors Alleged in the Commissioner’s Ruling
[10] The CJB alleges that the Commissioner made the following errors of law and jurisdiction:
1. attributing too narrow a scope to the principle of Crown immunity and finding that the CJB could not rely upon Crown immunity in the context of a public inquiry;
2. finding that he is permitted to inquire into the exercise of “prosecutorial discretion” in its narrow “core” sense concerning whether a prosecution should be commenced, even in the absence of bad faith or improper motive;
3. finding that only executive, regulatory or judicial powers of decision can interfere with prosecutorial discretion, and not those of a public inquiry;
4. finding that prosecutorial discretion is a limited principle that can be defeated or overridden in various ways, none of which require proof of bad faith or improper motive;
5. interpreting the Public Inquiry Act, S.B.C. 2007, c. 9, so as to override any and all privileges and immunities held by the Crown, including prosecutorial independence and solicitor-client privilege;
6. distinguishing between judicial and prosecutorial independence, for purposes of their respective immunity from external interference, on the basis that Crown counsel are part of the Executive and are not a Court;
7. finding that solicitor-client privilege does not exist within the CJB, or has been waived, in relation to the charge approval documents in the Frank Paul matter; and
8. creating a reasonable apprehension of bias against the CJB by describing it as being “currently under a cloud” for its response to Mr. Paul’s death.
III. Discussion
1. Standard of Review
[11] Counsel for the CJB submits that the appropriate standard of review is correctness. No other party took issue with the CJB’s position.
[12] Section 19 of the Public Inquiry Act contains a privative clause, which provides:
19 (1) A commission has exclusive jurisdiction to inquire into, hear and determine all matters and questions of fact and law arising or required to be determined under this Act and to make any order it is permitted to make.
(2) An order of a commission under this Act or its terms of reference on a matter in respect of which the commission has exclusive jurisdiction is final and conclusive and is not open to question or review in any court.
[13] However, in Dunsmuir v. New Brunswick, 2008 SCC 9 at para. 31 [Dunsmuir], the Supreme Court of Canada noted that a privative clause will not automatically lead to a deferential standard of review:
The legislative branch of government cannot remove the judiciary's power to review actions and decisions of administrative bodies for compliance with the constitutional capacities of the government. Even a privative clause, which provides a strong indication of legislative intent, cannot be determinative in this respect (Executors of the Woodward Estate v. Minister of Finance, [1973] S.C.R. 120, at p. 127).
[14] At para. 64 the court stated:
The analysis must be contextual. As mentioned above, it is dependent on the application of a number of relevant factors, including: (1) the presence or absence of a privative clause; (2) the purpose of the tribunal as determined by interpretation of enabling legislation; (3) the nature of the question at issue, and; (4) the expertise of the tribunal. In many cases, it will not be necessary to consider all of the factors, as some of them may be determinative…
[15] The jurisdiction given to the Commissioner under s. 19 of the Public Inquiry Act must be considered in light of the purposes of the Inquiry (as noted above) and the fact that the questions of law at issue, the scope of Crown immunity and whether the CJB can claim solicitor-client privilege, are questions of law that are of central importance to the legal system. The Commissioner, as a retired judge of this Court, certainly has considerable experience in determining questions of law, but there is no evidence before me that would suggest he represents a “specialized area of expertise” in the same manner referred to by the Supreme Court of Canada at para. 55 of Dunsmuir:
… A question of law that is of "central importance to the legal system ... and outside the ... specialized area of expertise" of the administrative decision maker will always attract a correctness standard (Toronto (City) v. C.U.P.E., at para. 62).
[16] Further, as the questions of law at issue have constitutional dimensions (see Dunsmuir, at para. 58), it is my conclusion that the appropriate standard of review is one of correctness.
2. Crown Immunity
[17] All participants in this judicial review appear to agree that the leading authority in Canada on Crown immunity with respect to the office of a prosecutor is Krieger v. Law Society of Alberta, 2002 SCC 65, [2002] 3 S.C.R. 372 [Krieger]. Counsel for the CJB also states that parallels may be drawn between the judicial functions of a judge and the quasi-judicial functions of a prosecutor; therefore, they also rely on the Supreme Court of Canada decision in MacKeigan v. Hickman, [1989] 2 S.C.R. 796, 61 D.L.R. (4th) 688 [MacKeigan]. However, I am of the view, as was the Commissioner, that MacKeigan is not of much assistance to the CJB.
[18] In Krieger, the Supreme Court of Canada found that the Law Society of Alberta had jurisdiction to review the conduct of a prosecutor who had not made timely disclosure of certain evidence. The court found that while the Law Society did not have the jurisdiction to interfere with prosecutorial discretion regarding the nature and extent of the prosecution and the Attorney General’s participation in it, except in cases of flagrant impropriety or malicious prosecution, it could review the prosecutor’s tactics or conduct before the court as a matter of professional conduct.
[19] As part of the background to its decision, the Supreme Court in Krieger commented at para. 23 on “… the unique and important role of the Attorney General and his agents as distinct from private lawyers”.
[20] At paras. 25-26, the court observed that:
Although prosecutions were predominantly brought privately in England until 1879, the original power of the Attorney General was and is of initiating, managing and terminating both private and public prosecutions. This power finds its source in the Attorney General's general role as the official legal advisor to the Crown.
In Canada, the office of the Attorney General is one with constitutional dimensions recognized in the Constitution Act, 1867. Although the specific duties conventionally exercised by the Attorney General are not enumerated, s. 135 of that Act provides for the extension of the authority and duties of that office as existing prior to Confederation. …
(A similar provision applicable to the Attorney General of British Columbia is found in s. 2 of the Attorney General Act, R.S.B.C. 1996, c. 22).
[21] The court went on at para. 27:
Attorneys General in this country are, of course, charged with duties beyond the management of prosecutions. As in England, they serve as Law Officers to their respective legislatures, and are responsible for providing legal advice to the various government departments. Unlike England, the Attorney General is also the Minister of Justice and is generally responsible for drafting the legislation tabled by the government of the day. The numerous other duties of the provincial and federal Attorneys General are broadly outlined in the various Acts establishing the Departments of Justice in each jurisdiction.
[22] Finally, on this topic, the court noted at paras. 29-32:
The gravity of the power to bring, manage and terminate prosecutions which lies at the heart of the Attorney General's role has given rise to an expectation that he or she will be in this respect fully independent from the political pressures of the government. In the U.K., this concern has resulted in the long tradition that the Attorney General not sit as a member of Cabinet. See Edwards, supra, at pp. 174-76. Unlike the U.K., Cabinet membership prevails in this country. However, the concern remains the same, and is amplified by the fact that the Attorney General is not only a member of Cabinet but also Minister of Justice, and in that role holds a position with partisan political aspects. Membership in Cabinet makes the principle of independence in prosecutorial functions perhaps even more important in this country than in the U.K.
It is a constitutional principle in this country that the Attorney General must act independently of partisan concerns when supervising prosecutorial decisions. Support for this view can be found in: Law Reform Commission of Canada, supra, at pp. 9-11. See also Binnie J. in R. v. Regan, [2002] 1 S.C.R. 297, 2002 SCC 12, at paras. 157-58 (dissenting on another point).
This side of the Attorney General's independence finds further form in the principle that courts will not interfere with his exercise of executive authority, as reflected in the prosecutorial decision-making process. … [Excerpts from authorities cited by the court deleted.]
The court's acknowledgment of the Attorney General's independence from judicial review in the sphere of prosecutorial discretion has its strongest source in the fundamental principle of the rule of law under our Constitution. Subject to the abuse of process doctrine, supervising one litigant's decision-making process – rather than the conduct of litigants before the court – is beyond the legitimate reach of the court. In Re Hoem and Law Society of British Columbia (1985), 20 C.C.C. (3d) 239 (B.C.C.A.), Esson J.A. for the court observed, at p. 254, that:
The independence of the Attorney-General, in deciding fairly who should be prosecuted, is also a hallmark of a free society. Just as the independence of the bar within its proper sphere must be respected, so must the independence of the Attorney-General.
We agree with these comments. The quasi-judicial function of the Attorney General cannot be subjected to interference from parties who are not as competent to consider the various factors involved in making a decision to prosecute. To subject such decisions to political interference, or to judicial supervision, could erode the integrity of our system of prosecution. Clearly drawn constitutional lines are necessary in areas subject to such grave potential conflict.
[23] At paras. 42-47, the court discussed what constitutes “prosecutorial discretion”:
In making independent decisions on prosecutions, the Attorney General and his agents exercise what is known as prosecutorial discretion. This discretion is generally exercised directly by agents, the Crown attorneys, as it is uncommon for a single prosecution to attract the Attorney General's personal attention.
"Prosecutorial discretion" is a term of art. It does not simply refer to any discretionary decision made by a Crown prosecutor. Prosecutorial discretion refers to the use of those powers that constitute the core of the Attorney General's office and which are protected from the influence of improper political and other vitiating factors by the principle of independence.
L'Heureux-Dubé J., in quoting David Vanek's work, "Prosecutorial Discretion" (1987-88), 30 Crim. L.Q. 219, at p. 219, said that "[p]rosecutorial discretion refers to the discretion exercised by the Attorney-General in matters within his authority in relation to the prosecution of criminal offences" (Power, supra, at p. 622).
As discussed above, these powers emanate from the office holder's role as legal advisor of and officer to the Crown. In our theory of government, it is the sovereign who holds the power to prosecute his or her subjects. A decision of the Attorney General, or of his or her agents, within the authority delegated to him or her by the sovereign is not subject to interference by other arms of government. An exercise of prosecutorial discretion will, therefore, be treated with deference by the courts and by other members of the executive, as well as statutory bodies like provincial law societies.
Without being exhaustive, we believe the core elements of prosecutorial discretion encompass the following: (a) the discretion whether to bring the prosecution of a charge laid by police; (b) the discretion to enter a stay of proceedings in either a private or public prosecution, as codified in the Criminal Code, R.S.C. 1985, c. C-46, ss. 579 and 579.1; (c) the discretion to accept a guilty plea to a lesser charge; (d) the discretion to withdraw from criminal proceedings altogether: R. v. Osborne (1975), 25 C.C.C. (2d) 405 (N.B.C.A.); and (e) the discretion to take control of a private prosecution: R. v. Osiowy (1989), 50 C.C.C. (3d) 189 (Sask. C.A.). While there are other discretionary decisions, these are the core of the delegated sovereign authority peculiar to the office of the Attorney General.
Significantly, what is common to the various elements of prosecutorial discretion is that they involve the ultimate decisions as to whether a prosecution should be brought, continued or ceased, and what the prosecution ought to be for. Put differently, prosecutorial discretion refers to decisions regarding the nature and extent of the prosecution and the Attorney General's participation in it. Decisions that do not go to the nature and extent of the prosecution, i.e., the decisions that govern a Crown prosecutor's tactics or conduct before the court, do not fall within the scope of prosecutorial discretion. Rather, such decisions are governed by the inherent jurisdiction of the court to control its own processes once the Attorney General has elected to enter into that forum. [Emphasis in original.]
[24] With respect to the possibilities of review of prosecutorial discretion, the court noted at para. 49 that courts cannot interfere except in circumstances of flagrant impropriety or in actions for malicious prosecution. In such cases, the actions of the Attorney General will be beyond the scope of his or her office as protected by constitutional principle.
[25] In this case, there was no evidence before the Commissioner, nor is there any evidence before me, that the actions of the prosecutors in the CJB in this case bore any of the hallmarks of malicious prosecution or that those prosecutors in any way acted with flagrant impropriety. There is no evidence to suggest that the exceptions suggested in Krieger are applicable to the circumstances here. To the extent that the Commissioner’s ruling suggests that, notwithstanding a claim by the Crown of privilege or immunity, he can inquire into the exercise of core prosecutorial discretion in the absence of the bad faith or improper motive suggested by Krieger, I respectfully disagree. At para. 45 of Krieger, the Supreme Court of Canada is clear that a decision of the Attorney General, properly acting within the authority delegated to him by the Sovereign, is not subject to interference by other arms of government or by statutory bodies. The executive of the Government of British Columbia is an arm of government and the Commissioner, by virtue of an Order in Council, is an agent of the executive. In my view, in the sense intended by the Supreme Court of Canada, the Commissioner is no less an arm of the Government than is the judiciary for these purposes.
[26] As the Commissioner properly points out, there is a qualitative difference between the judiciary and the function of a Commissioner. So, too, as between the Commissioner and a statutory body such as a law society. Both a court and a law society have the capacity to censor a prosecutor for his or her decision. For that reason, the Commissioner, at para. 123 of his ruling, distinguished between what he referred to as an “independent review” contemplated by the Public Inquiry Act and “external interference”. At para. 123, he went on to state: “My role as a commissioner is to inquire into what happened, make findings of fact, make proposals for reform and report ultimately to the public.” That, he suggested, did not constitute intervention or interference with prosecutorial discretion. He conceded, at para. 126 of his ruling, that he did have the authority to make a finding of misconduct against a participant or allege misconduct in his report. He acknowledged that such a finding or report could harm the participants’ reputations. He went on to conclude that, notwithstanding that he had the power to do so, “… it would be inappropriate for a commissioner to make a finding of misconduct or make a report that alleges misconduct by a prosecutor, in his or her exercise of prosecutorial discretion”. Again, with respect, what the Commissioner has done is recognize that, in essence, his powers do have the character, or some of the character, of the judiciary or a law society, but that in order to succeed in stripping the CJB of its immunity he will choose not to exercise the authority available to him. By logical extension then, if either a court or a law society were to make the same declaration, presumably those bodies could similarly get around the prohibition in Krieger. I do not take comfort from that prospect.
[27] In fairness, there is some logic to the position of the Commissioner in the sense that a court or a law society would probably review the actions of a prosecutor in exercising his or her discretion from different points of view, a court as to the probable correctness of the decision, and a law society as to the professionalism exhibited in the exercise of his or her discretion. However, from the sample questions enumerated at para. 78 of his ruling, it is clear that his interest extends beyond a simple chronology of events to areas such as the adequacy and extent of the prosecutor’s work product and a justification for why he or she used whatever standard he or she did to decide not to charge anyone. The questions suggest that the prosecutors will be obliged to provide ethical, professional, and legal justifications for their decisions.
[28] It has happened that in rare circumstances the Crown has chosen to effectively waive its immunity (or solicitor-client privilege, a topic I will discuss later) and thus open the door to the examination of the exercise of prosecutorial discretion. Such an example is the 1990 Discretion to Prosecute Inquiry (see: British Columbia, Discretion to Prosecute Inquiry, vol. 1 (Victoria: Queen’s Printer for British Columbia) at 109-110 (Commissoner, Stephen D. Owen) (the “Owen Report”)). I accept that that is so, but expect that, in waiving a constitutionally protected immunity, the waiver should be clear in all of the circumstances. I will discuss waiver later in this judgment.
[29] The Commissioner concluded at para. 89 that s. 13(2)(a) of the Public Inquiry Act “… was not intended to be a reference to the rule that precludes certain types of interference with the independent exercise of prosecutorial discretion”. He found that the intent of that section “… is to focus on ordinary witnesses who routinely appear before a court”. I do not agree with that narrow interpretation. In s. 1 of the Public Inquiry Act, “participant” is defined as “a person who is provided with notice or is accepted as a participant under section 11”. Section 11 provides:
11 (1) A person may act as a participant if the person
(a) is provided with notice under subsection (2), or
(b) is accepted as a participant under subsection (4).
(2) If a hearing commission intends to make a finding of misconduct against a person, or intends to make a report that alleges misconduct by a person, the hearing commission must first provide the person with
(a) reasonable notice of the allegations against that person, and
(b) notice of how that person may respond to the allegations.
(3) A person other than one described in subsection (2) may apply to be a participant by applying to a commission in the manner and form it requires.
(4) On receiving an application under subsection (3), a commission may accept the applicant as a participant after considering all of the following:
(a) whether, and to what extent, the person's interests may be affected by the findings of the commission;
(b) whether the person's participation would further the conduct of the inquiry;
(c) whether the person's participation would contribute to the fairness of the inquiry.
[30] In my view, there is no principled reason why a prosecutor from the CJB who receives a notice to appear before the Commissioner should be treated any differently than any other participant in the Inquiry. By that I mean that any participant who appears before an inquiry is, by virtue of s. 13(2)(a), entitled to rely on such immunities as that participant would have had, had that participant been compelled to appear before a court.
[31] That said, I agree with the Commissioner’s statement at para. 90 of his ruling that a claim of Crown immunity may not mean that he is foreclosed from compelling the attendance of any member of the CJB if his purpose is to examine issues not related to prosecutorial discretion. However, how that would relate to a prosecutor who made a decision not to prosecute is hard to fathom.
[32] Section 29 of the Public Inquiry Act states:
29(1) If the government discloses to a commission, either voluntarily or in response to a request or summons, any information over which the government asserts privilege or immunity, the privilege or immunity is not waived or defeated for any other purpose by the disclosure.
(2) If a commission determines that it is necessary to disclose information over which the government asserts privilege or immunity, the privilege or immunity is not waived or defeated for any other purpose by the disclosure.
[33] At para. 97 of his ruling, the Commissioner noted, “On its face, s. 29 contemplates the government providing to a commission information over which it asserts privilege or immunity.” I agree with that statement. However, at paras. 102-104, the Commissioner found that “immunity” as used in s. 29 does not refer to immunity from disclosure of what went into the exercise of prosecutorial discretion but rather “immunity” from tort liability or a public interest immunity.
[34] In my view, the words “privilege” and “immunity” in s. 29 encompass the very issues that were before the Commissioner, namely, solicitor-client privilege and Crown immunity in the context of the exercise of core prosecutorial discretion. I agree with the submission made on behalf of the CJB that the word “if” used in s. 29(1) is simply for the purpose of engaging the control mechanisms described in that section and to reflect the reality that, in a specific instance, the Crown may determine that it will provide evidence to an inquiry over which it could have, but chooses not to, claim privilege or immunity.
[35] It is convenient to mention here, although I will discuss privilege later, that ss. 5 and 6 of the Crown Counsel Act, R.S.B.C. 1996, c. 87, provide for directions or directives to be given, if in proper form, by both the Attorney General and the Deputy Attorney General as to the conduct of prosecutions or as to CJB policy. In my view, that includes whether privilege will be waived. However, absent such instructions that decision would ordinarily rest with Assistant Deputy Attorney General.
[36] The Commissioner stated at para. 105 that the CJB had, at times, argued before him that Crown immunity cannot be waived, absent bad faith. That position, of course, does not appear to square with the CJB’s position that it has an option to disclose, which would then engage s. 29 of the Public Inquiry Act. In other words, s. 29 clearly contemplates a circumstance where a participant in an inquiry might be an individual on behalf of whom the Crown could plead immunity (for example: a prosecutor with respect to his core decision-making process) but the Crown has chosen not to do so.
[37] In its argument before the Commissioner, the CJB relied on two authorities for its proposition that Crown immunity cannot be waived. The first was a reference to a text by Paul Lordon, Q.C.: Crown Law, (Toronto: Butterworths, 1991) at 515. However, the statement by the author there was with respect to privilege:
Unlike a true privilege, which exists for the protection of the individual making the claim and which may be waived by that person, Crown privilege may not be waived by any individual. Furthermore, it may not be displaced by evidence of fraud, as would be the case with true privilege.
[38] In my view, that statement does not go so far as to suggest that Crown “privilege” cannot be waived by the Crown itself. Indeed, as referred to above, there is a process for that in British Columbia.
[39] The other reference was to Sopinka, Lederman and Bryant’s The Law of Evidence in Canada, (Toronto: Butterworths, 1999) at 855-857. At p. 855-856, the authors note:
This government right, where it can be successfully asserted, is more appropriately labelled an “immunity” rather than a privilege. The assertion of an immunity claim may result in the non-disclosure of reports, memoranda and communications, just as in the case of a traditional privilege. However, unlike the private privileges, such as that relating to communications passing between solicitor and client, this public immunity belongs not to any private party, nor to any witness. It is most often asserted by government, either during the discovery process, where the government is a party to the action, or at trial where the government has been served with a subpoena duces tecum. It applies whether or not the government is a party to the litigation.
[40] The authors go on to make the statement at p. 856 that, even in the absence of an objection by the Crown, a judge should prohibit disclosure in the event that disclosure could be harmful to the state. Later in that paragraph, however, the authors go on to state that, “… the court may not be under a duty to raise the objection if the government is a party and has clearly waived its claim of immunity”. For that statement, the authors refer to Leeds v. Alberta (Minister of the Environment) (1990), 69 D.L.R. (4th) 681 at 695 (Alta. Q.B.). However, the authors go on to observe:
Generally, however, this immunity cannot be “waived” by the Crown in the same way as a traditional privilege may be waived. One must distinguish between a right or privilege, on the one hand, and duty on the other. Public interest immunity could not in the ordinary sense be waived because there can be a waiver of rights, but not duties.
[41] Interestingly, however, the authors go on at p. 857 to point out:
The trend in the application of this immunity is to treat the government no differently than any other litigant or witness. The immunity should not be invoked unless clearly warranted by the circumstances.
[42] What this tells me is that the thrust of the law in Canada today is that solicitor-client privilege confers a right on the Crown that may be waived, but immunity connotes a broader public interest duty. However, where it is in the public interest to waive immunity and where such a waiver is consistent with the Crown’s duty to the public, the immunity can be waived as part of a balancing of these interests. It is for the Crown to weigh competing duties to the public and determine whether the public interest is best served by claiming immunity.
[43] An example of where the Crown has chosen to waive its immunity, at least in part, by statute is found in s. 15(4) of the Freedom of Information and Protection of Privacy Act, R.S.B.C. 1996, c. 165:
(4) The head of a public body must not refuse, after a police investigation is completed, to disclose under this section the reasons for a decision not to prosecute
(a) to a person who knew of and was significantly interested in the investigation, including a victim or a relative or friend of a victim, or
(b) to any other member of the public, if the fact of the investigation was made public.
Counsel for the CJB has offered to provide the Commissioner with a statement in writing generally outlining the reasons for not proceeding with a prosecution in this matter. While the proposed statement would be sufficient to comply with the requirements of the Freedom of Information and Protection of Privacy Act, it does not, of course, satisfy the Commissioner.
[44] In the result, I am satisfied that the Crown may claim immunity in proceedings before the Commissioner, although it may waive that immunity.
3. Solicitor-Client Privilege
[45] In Alfred Crompton Amusement Machines Ltd. v. Commissioners of Customs and Excise (No. 2), [1972] 2 All E.R. 353 at 376 (C.A.), Lord Denning stated:
Many barristers and solicitors are employed as legal advisers, whole time, by a single employer. Sometimes the employer is a great commercial concern. At other times it is a government department or a local authority. It may even be the government itself, like the Treasury Solicitor and his staff. In every case these legal advisers do legal work for their employer and for no one else. They are paid, not by fees for each piece of work, but by a fixed annual salary. They are, no doubt, servants or agents of the employer. For that reason the judge thought that they were in a different position from other legal advisers who are in private practice. I do not think this is correct. They are regarded by the law as in every respect in the same position as those who practice on their own account. The only difference is that they act for one client only, and not for several clients. They must uphold the same standards of honour and of etiquette. They are subject to the same duties to their client and to the court. They must respect the same confidences. They and their clients have the same privileges. … I have always proceeded on the footing that the communications between the legal advisers and their employer (who is their client) are the subject of legal professional privilege; and I have never known it questioned.
[46] Is the CJB (or the Assistant Deputy Attorney General who is charged with the administration of the CJB under s. 3 of the Crown Counsel Act), an employer/client that receives legal advice from its employees/prosecutors in the sense described by Lord Denning? The Commissioner did not think so, for a number of reasons:
1. the governing CJB policy gave the Director of Legal Services the authority to make a charge assessment decision, even though the Assistant Deputy Attorney General had the right to review and reverse that decision;
2. while the Director of Legal Services and the Assistant Deputy Attorney General may have benefitted from the comments, memoranda and recommendations of their subordinates, this, in the view of the Commissioner, did not convert the Assistant Deputy Attorney General into a “client”. That is, the Assistant Deputy Attorney General was more in the nature of a senior partner in a law firm who could exercise his own independent professional judgment although he may have received advice from individual prosecutors in the CJB; and
3. in exercising his power to review any charging decision made, for example by the Director of Legal Services, the Assistant Deputy Attorney General may have been provided with materials from subordinates within the CJB. However, those materials did not constitute “legal advice” that the Assistant Deputy Attorney General required in order to know how to exercise his power. That is, he was quite capable of bringing his own professional judgment to bear on whether the Director of Legal Services’ decision should be reversed.
[47] The Commissioner referred to a number of decisions that had been cited to him by the CJB in support of its position that solicitor-client privilege is applicable to the circumstances here. However, he found that the charge approval process and the relationships of the individuals within the CJB were qualitatively different than those in R. v. Brown [Disclosure], [1997] O.J. No. 6163 (Gen. Div.) (QL); Idziak v. Canada (Minister of Justice), [1992] 3 S.C.R. 631, 77 C.C.C. (3d) 65; R. v. Campbell, [1999] 1 S.C.R. 565, 133 C.C.C. (3d) 257; and Waterford v. Australia (1987), 163 C.L.R. 54 (H.C.A.). The Commissioner noted that under the October 1, 1999 version of the Crown Counsel Policy Manual Policy POL 1(“Allegations Against Peace Officers”), if a file alleges that the actions of a police officer have caused the death of another person, the charge assessment decision is to be taken by the Director of Legal Services. The Commissioner inferred from the policy that the Assistant Deputy Attorney General was authorized to review such a decision, and reverse it if warranted.
[48] With respect, I find that the distinctions made by the Commissioner do not take account of the fact that the Assistant Deputy Attorney General ultimately bears the responsibility for the decisions made within the CJB, including those of the Director of Legal Services and, in this case, he in fact reviewed all five decisions not to proceed with charges and agreed with them. The fact that the Assistant Deputy Attorney General is a senior, legally trained individual who, like the Director of Legal Services, may well be perfectly capable of arriving at a decision on his own as to whether a charge should be laid in any given case, does not diminish the reality that such a person of necessity commonly does rely on the advice and opinions of subordinates in coming to his or her own conclusions. I agree that a number of the prosecutors within the CJB apparently weighed material and came to the conclusion that no one should be charged in the death of Mr. Paul. But that did not mean that their opinions did not constitute advice to the person who bore the ultimate responsibility for the actions of those within the CJB. In my view, this makes sense because, as I interpret the structure of the CJB as set out in the Crown Counsel Act, it would be for the Assistant Deputy Attorney General to waive any privilege that might attach to any communications within the CJB. And, if either the Attorney General or the Deputy Attorney General wanted to waive privilege, he could direct the Assistant Deputy Attorney General to do so. However, the Assistant Deputy Attorney General could, under s. 6(2) of the Crown Counsel Act, request that that directive be in writing and may, at his discretion, cause the directive to be published in the Gazette).
[49] I conclude that the Commissioner was in error in finding that the CJB is not entitled to claim solicitor-client privilege with respect to material relied upon and opinions prepared in connection with coming to the decision that no one would be charged in connection with the death of Mr. Paul. It has, of course, been submitted that solicitor-client privilege has been waived in these circumstances and I will deal with that in the following section of the judgment.
4. Waiver
[50] The Commissioner concluded that, even if solicitor-client privilege did attach in these circumstances, it had effectively been waived by the Terms of Reference. That is, that the Lieutenant Governor in Council, by directing the Commissioner to inquire into the response of the CJB to the death of Mr. Paul, must reasonably be taken to have waived any solicitor-client privilege so that he could fully examine the facts. The Commissioner agreed with the submissions of numerous participants before him that it would be incongruous for the Crown to instruct him to inquire into the response of the CJB (which he, in my view, correctly interpreted to include the CJB’s exercise of charge assessment authority), but then prevent him from examining many aspects of that process.
[51] Some of the respondents in the application before me suggested that the same Terms of Reference, when taken in the context of the purpose of the Inquiry, inevitably lead to the same conclusion with respect to the CJB’s claim of immunity.
[52] I will deal first with the application of waiver to immunity. In my view, the direction of the Lieutenant Governor in Council to the Commissioner that he inquire into the “response” of the CJB to the death of Mr. Paul is a clear indication in all the circumstances that the Crown was waiving any claim of immunity. The response of the CJB is not an abstract concept to be considered at the level of policy. Rather, that response was real things done by real people in the exercise of their offices as prosecutors in the CJB. As I discussed earlier in this judgment, it is an important and vital principle that prosecutors in the employ of the Crown who are charged with the responsibility of deciding whether or not a prosecution should be laid should be protected from having their decisions reviewed in any forum other than within the CJB. However, an equally important public policy is the maintenance of the confidence of the public in the justice system and the appreciation that sometimes only transparency will ensure that confidence. In my view, the Lieutenant Governor in Council resolved the conflict between these two very important public policy issues by creating the Inquiry and directing in the Terms of Reference that the Commissioner make findings of fact respecting the response of various institutions, including the CJB, and examine the rules, policies and procedures of the CJB relating to its role in its response where an individual dies in circumstances similar to the circumstances of Mr. Paul.
[53] If it had been the intention of the Lieutenant Governor in Council that only matters of policy and procedures be examined, then there would have been no need to specifically refer to the Commissioner making findings of fact respecting the response of the CJB. Further, what other response would the CJB have, other than to examine the available evidence and to determine whether that evidence met the criteria used by the CJB for laying a charge?
[54] But is the will of the Lieutenant Governor in Council sufficient to override the “firewall” of the scheme of the Crown Counsel Act that acts to protect the independence of Crown Counsel from interference? In this case, I do not have to decide that because, significantly, this Order in Council bears the signature of the Attorney General. Therefore, I find that it represents not just the will of the Lieutenant Governor in Counsel, but the will of the Attorney General as well.
[55] Section 6 of the Crown Counsel Act provides:
6 (1) If the Attorney General or Deputy Attorney General wishes to issue a directive respecting the Criminal Justice Branch policy on the approval or conduct of prosecutions, that directive must be given in writing to the ADAG and, in the discretion of the ADAG, may be published in the Gazette.
(2) If the Attorney General or Deputy Attorney General wishes to issue a directive respecting the administration of the Branch, that directive must, if requested by the ADAG, be given in writing and may, in the discretion of the ADAG, be published in the Gazette.
[56] As the Attorney General signed the Order in Council, I am satisfied that the Assistant Deputy Attorney General received a lawful, binding directive for the CJB to waive both immunity and privilege. The Attorney General has the capacity to do this on behalf of the CJB under s. 6 of the Crown Counsel Act and he chose to do so. Although the directive was not published in the Gazette, there is no evidence to suggest that the Assistant Deputy Attorney General required that to be done but that his requirement had not been carried out.
[57] It is probable that the circumstances in which an Attorney General will direct a waiver of Crown immunity and of privilege will be very rare, recognizing that it is important to respect the mechanisms that are in place to preserve the independence of the CJB. However, those rare occasions may arise when the greater public good will be served by doing so.
[58] Accordingly, I agree with the Commissioner that the Terms of Reference constituted an effective waiver of Crown immunity and solicitor-client privilege.
5. Honour of the Crown
[59] If I am correct that the Terms of Reference constitute a waiver of both immunity and privilege, but I am not correct that the waiver was effective in binding the CJB, then I would go on to consider the concept of honour of the Crown.
[60] That the Crown would purport to give with one hand what it wishes to hold back with the other can probably only be readily appreciated by a constitutional lawyer. Most members of the public including, in the circumstances of this case, the Aboriginal community and the Paul family, will have difficulty understanding a system of government in which the Attorney General has two distinct roles - one political and the other legal. However, as discussed at the beginning of this judgment, the independence of the Attorney General, as reflected in the operation of the CJB, is for the benefit of the public as a whole to insulate those responsible for exercising core prosecutorial discretion from the influence of the political side of government. It is valuable protection that, in most cases, operates effectively and fairly.
[61] However, in my view, in the narrow and possibly unique circumstances here, if the written expression of the will of the Lieutenant Governor in Council and of the Attorney General has not been effective in waiving both Crown immunity and solicitor-client privilege, then the result is manifestly unfair to the public in general and to a significant group of interested citizens, namely the Aboriginal population and the Paul family.
[62] The Aboriginal population and the Paul family placed their trust in the Crown, as represented by the Government of British Columbia and the Attorney General, to provide them with the truth about the events surrounding the death of Mr. Paul. From what was said to me by counsel at this hearing, they have confidence in the Commissioner. Is there an honourable way out of this impasse for everyone? I have concluded that the answer lies in the concept of the honour of the Crown.
[63] Counsel for the CJB stated emphatically that the concept of honour of the Crown has no application whatsoever to the criminal justice system. I agree that the concept of honour of the Crown arose in the context of the treaty negotiation process (R. v. Badger, [1996] 1 S.C.R. 771, 133 D.L.R. (4th) 324 [Badger], which was, by the way, a quasi-criminal case respecting charges under the Alberta Wildlife Act, S.A. 1984, c. W-9.1) and the Aboriginal land claims process (Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511 [Haida Nation]; and Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), 2004 SCC 74, [2004] 3 S.C.R. 550). But I do not agree that the concept is necessarily restricted to those contexts.
[64] Firstly, it is helpful to recall that the Supreme Court of Canada stated in Badger that:
… the honour of the Crown is always at stake in its dealing with Indian people. Interpretations of treaties and statutory provisions which have an impact upon treaty or aboriginal rights must be approached in a manner which maintains the integrity of the Crown. It is always assumed that the Crown intends to fulfil its promises. No appearance of "sharp dealing" will be sanctioned.
[65] I hasten to say that in this case there has been no “sharp dealing” by the Crown. For this alternative analysis, I assume that different branches of the Crown have done what each has been entitled to do at law. In that case, however, the result appears unjust.
[66] Having said that, I am alive to the fact that the Supreme Court of Canada said at para. 17 in Haida Nation that:
The historical roots of the principle of the honour of the Crown suggest that it must be understood generously in order to reflect the underlying realities from which it stems. In all its dealings with Aboriginal peoples, from the assertion of sovereignty to the resolution of claims and the implementation of treaties, the Crown must act honourably. Nothing less is required if we are to achieve "the reconciliation of the pre-existence of aboriginal societies with the sovereignty of the Crown": Delgamuukw, ([1997] 3 S.C.R. 1010) at para. 186, quoting Van der Peet, ([1996] 2 S.C.R. 507) at para. 31. [Citations in brackets added.]
[67] I readily agree that the circumstances here do not deal with the assertion of sovereignty, nor with the resolution of land claims, nor the implementation of treaties. But the circumstances do concern what has been demonstrated time and again, namely the distrust by Canada’s Aboriginal population of the justice system because of the way they have been treated historically. As surely recognized by the Lieutenant Governor in Council and by the Attorney General by the mandate that was given to the Commissioner, this is not a situation where the requisite level of trust can be established, and the honour of the Crown upheld, by the CJB delivering a “clear statement” to the Commissioner as envisioned in the Owen Report. In most circumstances, that will be an appropriate and adequate response, but not this time. Because of the Lieutenant Governor in Council’s decision to waive Crown immunity, the honour of the Crown demands that the CJB waive solicitor-client privilege to enable the Commissioner to review the documents and, if necessary, require those individuals who were then with the CJB, and were participants in the response of the CJB to the death of Mr. Paul, to give evidence.
6. Observations
[68] In the preceding paragraph, I use the expression “if necessary” because it may be, at the discretion of the Commissioner, that he deems it unnecessary to have every single individual involved provide testimony before him in order to be in a position to provide a full and complete report on the response of the CJB. But that is for him to decide.
[69] I also consider it beyond the scope of the Inquiry to require any individual who made a decision not to charge anyone with respect to the death of Mr. Paul to second guess his or her decision or to justify it. The Commissioner is entitled to look at the facts that were before the individuals who made those decisions, get the facts related to the decisions, but not challenge or debate with those individuals the propriety of their decisions. In that way, the Commissioner may open the doors he wishes to open but, at the same time, minimize any transgression into the lawful independence of the CJB.
[70] As the Commissioner has pointed out, he has tools at his disposal with respect to reviewing documents or hearing from witnesses in camera and the capacity to decide that, in the public interest, certain evidence should not be released to the public. He will have to cross those bridges when he gets to them, ever sensitive to the fine line he walks at this point in the Inquiry.
[71] I would expect that persons who may be called to give evidence who are no longer employed by the CJB may wish to be represented by counsel and that the CJB will provide funding for them to have counsel or make such other arrangements as are suitable between the CJB and those individuals. That is, of course, up to the parties involved and is not a direction.
7. Apprehension of Bias
[72] I conclude that the Commissioner’s reference to the CJB being “currently under a cloud” was simply a reference to his perception of the concern of some members of the public with the position taken by the CJB. In my view, his statement does not in any way create a reasonable apprehension of bias by the Commissioner against the CJB.
IV. Conclusion
[73] For the reasons outlined above, the CJB’s petition is dismissed.
“T.J. Melnick J”