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March Pages 2017

THE ADVOCATE V O L . 7 5 P A R T 2 M A R C H 2 0 1 7 183 CELEBRATING PROSECUTORIAL INDEPENDENCE By Gordon Comer On June 27, 2016 British Columbia’s Crown Counsel Act1 (the “Act”) celebrated its 25th anniversary, as the Attorney General noted in the September 2016 issue of the Advocate. As many will know, Crown counsel are the lawyers who prosecute Criminal Code and regulatory offences on behalf of the provincial Attorney General. They are employed by the Criminal Justice Branch (the “Branch”), which forms part of the Ministry of Justice. The Act’s milestone anniversary offers a perfect opportunity to explain the operating context in which Crown counsel complete their work, including the division of responsibility between the Attorney General, the Branch and individual prosecutors. As noted by the Attorney General, the Act supports Crown counsel’s ability to work independently, free from external interference, free from political pressure. While the Attorney General advances legislative change and manages broad policy issues, it is the Branch (made up of about 460 lawyers including an Assistant Deputy Attorney General, Regional Crown counsel, directors and deputies) that make the prosecutorial decisions on individual cases. The Attorney General, who is an elected member of Cabinet, rarely gives direction in individual cases, and when this does occur the Act requires that it be done transparently. In this sense, the Act gives meaningful effect to the principle of prosecutorial independence. This principle is critical to maintaining the rule of law, and in its application the principle supports public confidence that criminal justice will be administered impartially, free from partisan political concerns. Recently, the Supreme Court of Canada declared prosecutorial independence a “principle of fundamental justice” within the meaning of s. 7 of the Charter.2 THE BACKGROUND OF THE ACT The Act has its origins in a tumultuous period in B.C. politics. In 1989 a Vancouver Sun article alleged that then Cabinet minister Bill Reid funnelled a $277,000 lottery fund grant to a company owned by his campaign manager. The RCMP investigated and recommended criminal charges. In British Columbia, charges are generally not laid until they are “approved” by the


March Pages 2017
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