Rob Shaw: B.C.'s special prosecutor system needs reforms to win back public trust

Credit to Author: Rob Shaw| Date: Tue, 15 Oct 2019 10:00:01 +0000

VICTORIA — NDP MLA Jinny Sims finds herself in a familiar but unenviable position for a B.C. politician: The subject of a police investigation, stripped of her cabinet post and accused of corruption by her political opponents — all before anyone (including her and the public) knows what’s going on.

Sims has a long road ahead of her.

Based on the recent history of police investigations into B.C. political officials, she could be waiting years before she’s charged with a crime or cleared of wrongdoing.

We can predict with some certainty what will happen next.

Police and special prosecutors overseeing the case will stonewall when asked questions. The accusations against her will remain vague. Her enemies will use the information vacuum to insinuate she and her governing party are guilty of all kinds of crookedness, sleaze, nepotism, fraud and criminal activity.

Whenever it all wraps up, the damage to Sims’ reputation and career caused by many months of twisting in the wind is likely to be far greater than any punishment levelled by the courts — if she even did anything wrong. She won’t shake the stench of the assumption that goes unspoken in so many cases: You must be guilty of something or else you wouldn’t even be under investigation.

Politicians from all parties have gone through this ringer for years. B.C.’s special prosecutor system is almost 30 years old. The time has come for it to be refreshed.

The special prosecutor system appoints private lawyers to oversee police investigations into politicians and political officials, to avoid any perception that the attorney general, premier or government staffers are trying to influence the outcome.

Police conduct their investigation free of political interference. The special prosecutor provides legal advice. Police don’t approve charges in B.C., so that decision falls to the special prosecutor. He or she needs to see both a substantial likelihood of conviction and a public interest in laying a charge.

The system was created following an independent commission in 1991 that addressed legitimate suspicions around politically charged cases.

In theory, B.C.’s system works well.

In practice, it has become plagued with multi-year delays and confusing outcomes.

As a result, the system handles cases like this:

• 2008: Solicitor General John Les resigns after a special prosecutor is appointed to oversee questionable land deals from two decades earlier. The RCMP investigation takes two years. Les is not charged. His career is tarnished and he never makes it back to cabinet. Les later expresses public frustration at the damage done to himself and his family.

• 2010: Solicitor General Kash Heed is forced to resign twice from cabinet amid campaign spending allegations, after it turns out the law firm of the first special prosecutor donated $500 to Heed’s campaign. Heed is cleared both times. But the process takes more than a year. His campaign manager pleads guilty to election campaign offences. Heed never makes it back to cabinet.

• 2013: Premier Christy Clark’s government is accused of using taxpayer resources to drum up ethnic votes in a scandal called “Quick Wins.” The Opposition NDP allege vast corruption by Clark, cabinet ministers and top officials stretching back to Clark’s party leadership race. It takes more than five years to finish the investigation, during which time a cloud of confusion hangs over two provincial elections. The allegations are largely unsubstantiated. One government communications director, Brian Bonney, pleads guilty to one count of breach of trust for using his work time for partisan purposes.

• 2018: Speaker Darryl Plecas alleges misspending by the now-former clerk of the legislature, Craig James, and the now-former sergeant-at-arms, Gary Lenz. Two special prosecutors are appointed. Both men are suspended. One year later, the full allegations are still unknown. Neither men has been charged (though James was found in a separate review to have committed employee misconduct and Lenz to have lied). Both have retired, citing irreparable damage to their reputations.

And now there is Sims.

Her investigation comes four months after a fired constituency assistant accused her of writing sponsorship letters for Pakistani citizens that may have been on a U.S. security watch list, in exchange for campaign donations.

The Opposition Liberals forwarded that information to the RCMP. Is that what the police are investigating? No comment from the special prosecutor.

One thing in common in virtually all the cases is a total public blackout from both police and prosecutors.

This theoretically protects the important principles of independence and fairness. But years of cases have shown it is actually having the reverse effect.

As investigations drag on for years, critics fill the silence with outrageous accusations that fail to pan out. The public struggles to understand what is happening. Confidence in our justice system is chipped away.

I put the history of long delays on special prosecutor cases to Premier John Horgan this week.

“Those are very good questions and good examples through history,” he said. “There are many, many more, of course, where after a long period of time little or no consequence came from it other than reputations being damaged, people living and working under a cloud. But it is the system we have. I have no intention of making any changes.”

It would be difficult for the NDP to change anything with a cabinet minister under investigation. But the Liberals — whose members have experienced the flaws first-hand — could extend an olive branch to start an all-party legislative committee to research reforms.

The most pressing changes are about accountability and timelines.

Special prosecutors should provide a summary of basic allegations in a case, recognizing that silence is untenable in the political arena. Then they should issue brief updates every six months or so, to bolster public confidence that work is continuing. Government should make extra funding available for police agencies so they have the proper staff, experts and evidence-processing tools to expedite any investigation.

If MLAs do one day study the issue, they could dig into larger ideas, such as perhaps using retired judges as special prosecutors to balance out a system made up predominantly of defence lawyers.

Or maybe research a more radical idea: Inject some common sense into the process through a resurrected grand jury system for political cases, where prosecutors present evidence to ordinary citizens to determine the public interest of charges.

Unfortunately, Horgan said he’s reluctant to explore any changes.

“It was designed, you’ll remember, at a time when we wanted to ensure that the police were free to do their work without fear of politicization of that process,” he said. “So we have to weigh the pluses and minuses here, the greater good for the community versus the unfortunate nature of some of these processes on individuals.”

In the meantime, B.C.’s torturously slow system leaves the politicians and the public in limbo.