The Appellant Attorney General unsuccessfully appealed the B.C. Supreme Court’s decision, which dismissed the Appellant’s Petition for judicial review. The Appellant’s Petition sought to quash a Commissioner’s decision that allowed him to inquire into the Appellant’s decision not to lay charges in connection with Mr. Paul Frank’s death. In its Petition, the Appellant also sought a declaration that, in the absence of evidence of bad faith, the principle of Crown immunity prevented a public inquiry into the Crown’s decision not to commence criminal proceedings in the Frank Paul matter.

Administrative law – Decisions of administrative tribunals – Government – Public inquiry – Judicial review – Applications – Crown immunity – Jurisdiction – Barristers and solicitors – Crown counsel – Solicitor-client privilege

British Columbia (Ministry of Attorney General, Criminal Justice Branch) v. British Columbia (Commission of Inquiry into the Death of Frank Paul – Davies Commission), [2009] B.C.J. No. 1469, British Columbia Court of Appeal, July 23, 2009, C.M. Huddart, R.J. Bauman and H. Groberman JJ.A.

Mr. Frank Paul died on December 5, 1998 after being removed by police from the “drunk tank” and left in an alley. No criminal charges were laid against anyone involved and, after considerable public pressure, the Solicitor General announced, on February 22, 2007, that a public inquiry would take place. William Davies, Q.C., was appointed to be the Commissioner and, on August 9, 2007, the Commission was established by Order-in-Council 572/2007.

The Order-in-Council included the following terms of reference for the Commission:

(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…the Criminal Justice Branch of the Ministry of Attorney General to the death of Mr. Paul;

…

(e) to examine the rules, policies and procedures of the…Criminal Justice Branch of the Ministry of Attorney General related to [its] role and response…when 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 paragraph []…(e);

At the outset of the inquiry, counsel for the Attorney General raised the issue of prosecutorial independence and Crown immunity. The Commissioner heard submissions about the effect of those principles on the scope of the inquiry he was conducting. Counsel for the Attorney General argued that prosecutorial independence and Crown immunity prevented the Commissioner from inquiring into the decision not to lay charges in respect of Mr. Paul’s death. The Commissioner ruled against the Attorney General and the Attorney General brought a Petition for judicial review to quash the Commissioner’s ruling.

The Attorney General’s petition was dismissed and the Attorney General appealed to the B.C. Court of Appeal. On appeal, the Appellant argued that the principle of Crown immunity prevented the Commissioner from inquiring into the decision not to lay charges in connection with the death of Mr. Frank Paul. The Court of Appeal rejected this argument for several reasons outlined below.

The Commission’s mandate was clear in authorizing an inquiry into the exercise of prosecutorial discretion. This is not a case where the Commissioner is relying on a broad and unspecified power of investigation to inquire into issues of prosecutorial discretion.

The Commission was established by an Order-in-Council and the Attorney General is, according to the Attorney General Act, the “official legal advisor of the Lieutenant Governor and the legal member of the Executive Council”. Therefore, the Attorney General had a duty to advise the Executive Council if he felt the terms of the reference would violate constitutional norms. The Attorney General’s participation in the process gives some assurance that he must not have considered the mandate of the Commission to be an unlawful incursion on prosecutorial independence.

Finally, the Commission’s limited mandate is to inquire into the circumstances surrounding the decision not to lay charges for the purpose of enhancing the exercise of prosecutorial discretion. This provides some assurance that interference with prosecutorial discretion will be avoided.

On appeal, the Appellant also argued that, even if the principle of Crown immunity didn’t prevent the Commissioner’s inquiry, solicitor-client privilege did. The Appellant argued that, in preparing charge approval materials, Crown counsel are acting as solicitors to the Assistant Deputy Attorney General. The Court of Appeal acknowledged that solicitor-client privilege can apply to solicitors acting as members of the public service. However, the Court of Appeal rejected this ground of appeal because, in deciding whether to approve a charge, Crown counsel is not a client of another lawyer and is not a solicitor advising more senior officers in the Criminal Justice Branch. In exercising his or her prosecutorial discretion, Crown counsel is not acting within the scope of a solicitor-client relationship. This conclusion would be different where Crown counsel seeks legal advice from other Crown counsel or from independent solicitors.

In the result, the appeal was dismissed.

This case was digested by Scott J. Marcinkow of Harper Grey LLP. If you would like to discuss this case further, please feel free to contact him directly at smarcinkow@harpergrey.com or review his biography at http://www.harpergrey.com.

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