B.C. to study changing special prosecutor system — after COVID-19 pandemic

The B.C. government will wait until the COVID-19 pandemic subsides before investigating how to improve the province’s delay-plagued special prosecutor system, says the attorney general.

But an early examination of what might be slowing down politically-sensitive cases — involving MLAs and political staffers — has already highlighted at least one problem.

Attorney General David Eby said preliminary work by his staff found the RCMP unit assigned to investigate cases overseen by special prosecutors is the same short-staffed and overworked unit that handles money-laundering.

“The investigations are typically done by the RCMP commercial crime unit, and this is the same unit that we have learned is so under-resourced on money laundering as well,” said Eby.

“They do what they can with the resources that they have. But it may be to address the issue there, we would need to be some dedicated resources to sensitive investigations or however you wanted to describe it.”

A public inquiry into money laundering is currently exploring how criminals launder proceeds of crime through B.C. casinos, including whether police resources are inadequate.

One way to address the shortcomings might be for B.C. to give dedicated funding to the RCMP unit and earmark it for politically-sensitive special prosecutor cases, said Eby.

The funding would need to be separate from B.C.’s demand that Ottawa fully fund the commercial crime unit’s money-laundering positions, he said.

“Unfortunately the federal funding is headed in the wrong direction, so if there was going to be support for this it would probably need to be provincial,” Eby said Thursday.

But the government must first prioritize reducing court backlogs and fixing other critical justice system problems caused by the COVID-19 pandemic, before it dedicates resources to reforming the special prosecutor system, said Eby.

And the province won’t make any changes until it gets support from other political parties to investigate the issue in a united and non-partisan manner, he said.

Opposition Liberal leader Andrew Wilkinson said he’s supportive of reforms. “Justice delayed is justice denied, and the public are entitled to know promptly what’s going on when a public official is accused of wrongdoing,” he said.

“The current special prosecutor system has proven to be cumbersome, slow and leaves people in the lurch for years at a time when the public are entitled to know what’s going on promptly. So I’m fully supportive of doing a thorough review.”

B.C.’s 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 of whether charges are laid.

But most cases take years to conclude, during which police and the special prosecutor refuse to give information on allegations or updates on timelines. Because the cases often involve politicians or staff, political parties use the information vacuum to accuse each other of vast corruption even if the specific allegations are later determined to be unfounded.

Premier John Horgan said in April the system needed reform. His comments came after a six-month police investigation concluded allegations against former cabinet minister Jinny Sims were unsubstantiated. Nonetheless, Sims was forced to resign as a minister.

“This is not the only time that baseless allegations have put an MLA’s career under a long shadow,” Horgan said in April.

“In effect, unwarranted allegations imposed a sentence on an MLA who is found to have done nothing wrong, and never knew the name of the accuser or the substance of the claims.”

“While the special prosecutor process works, it does not work as well as it could,” Horgan said.

“Both the public and elected officials would be better served by a special prosecutor process that is speedier and more transparent.”

Horgan has instructed Eby to start grappling with how the system could be fixed.

“The premier has been very clear that he is concerned about the current system, how it operates, the lack of information that British Columbians get about what happened and the length of time the investigations take,” said Eby.

“So I agree with him, there are opportunities for improvements. The question is really how we best approach that and what falls in our areas of responsibility.”

The special prosecutor system is currently facing criticism for the length of time it is taking to determine the veracity of misspending allegations against former legislature clerk Craig James and former sergeant-at-arms Gary Lenz. That investigation is now more than a year and a half old.

The most high-profile special prosecutor case in recent political history involved the “quick wins” scandal against the previous Liberal government and premier Christy Clark. It took five years. During that time, two provincial elections were held in which the Opposition NDP accused Clark and her government of vast corruption due to the case. The allegations were largely unsubstantiated by police. One government communications director plead guilty to a single count of breach of trust for using his work time for partisan purposes.

The system is not only plagued by delays, but increasingly a lack of transparency. In May, the criminal justice branch revealed a special prosecutor had been appointed in secret three months earlier to oversee an investigation into protests outside the home of Horgan. The public was only told of the appointment after charges were laid and the investigation was completed.

Eby said one proposal worth investigating would be whether special prosecutors must report out more information on investigations involving an MLA, including whether the politician cooperated with the police or were obstructive.

“The very nature of the special prosecutor and police is that they are independent of government, so if you want to accelerate investigations or have the special prosecutor provide certain pieces of information, the policy work needs to be done on whether that would be an interference of their independence and how you could do it properly — especially considering that criminal law is a federal area of jurisdiction,” said Eby.

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