In The Supreme Court of British Columbia

IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation: Blackmore v. British Columbia (Attorney

General),
2009 BCSC 1299
Date: 20090923
Docket: S095186
Registry: Vancouver
IN THE MATTER OF THE JUDICIAL REVIEW PROCEDURE ACT,

RSBC 1996, C. 241
Between:
Winston Kaye Blackmore
Petitioner
And
The Attorney General of British Columbia
Respondent
- AND -
Docket: S095757
Registry: Vancouver
Between:
James Marion Oler
Petitioner
And
The Attorney General of British Columbia
Respondent
Before: The Honourable Madam Justice Stromberg-Stein
Reasons for Judgment

Blackmore v. British Columbia (Attorney General) Page 2
Counsel for the Petitioner, Winston Kaye Bruce Elwood

Blackmore: A. Latimer
Counsel for the Petitioner, James Marion Robert V. Wickett

Oler:
Counsel for the Respondent, The Attorney Craig E. Jones

General of British Columbia: S. Bevan
Counsel for the Special Prosecutor as

Appointed by the Attorney General of British Terrence L. Robertson, Q.C.
Columbia: Kathleen M. Kinch
Place and Date of Hearing: Vancouver, B.C.

September 3 and 4, 2009
Place and Date of Judgment: Vancouver, B.C.

September 23, 2009
Introduction
[1] The petitioners, Winston Kaye Blackmore and James Marion Oler, are each
charged with practicing a form of polygamy, or practicing a kind of conjugal union, in
the case of Mr. Blackmore, between May 1, 2005 and December 8, 2006, and in the
case of Mr. Oler, between November 1, 2004 and October 8, 2008, contrary to
s. 293(1)(a) of the Criminal Code, R.S.C. 1985, c. C-46 [Criminal Code].
[2] Initially, the petitioners brought an application seeking to stay or quash the
Information, or an order in the nature of certiorari or prohibition, arguing:
1. The decision of special prosecutor Richard Peck, Q.C. not to prosecute

the applicants was “final” and this prosecution brought by special
prosecutor Terrence Robertson, Q.C. is contrary to s. 7(5) of the
Crown Counsel Act, R.S.B.C. 1996, c. 87 (the Act) and without
jurisdiction, and the information should be stayed or quashed;
2. Alternatively, the Attorney General engaged in conduct or purported to

exercise a power inconsistent with the Act that is otherwise an abuse
of process by “special prosecutor shopping”, and there should be a
stay of proceedings; or
3. In the further alternative, the prosecution is unfair and is otherwise an

abuse of process because it is a constitutional test case, and there
should be a conditional stay of proceedings until the Crown agrees to
pay the legal fees and disbursements of the applicants.
[3] Following the hearing of that application, this Court informed counsel by
memorandum that the issue of whether the decision of the special prosecutor is
contrary to s. 7(5) of the Crown Counsel Act, R.S.B.C. 1996, c. 87 [Act] should be
brought under the Judicial Review Procedure Act, R.S.B.C. 1996, c. 241 [JRPA];
and any challenge to the Information as an abuse of process is properly made to the
trial court.
[4] In response, Mr. Blackmore and Mr. Oler have brought petitions pursuant to
the JRPA seeking the following relief:
a. a declaration that the directive by the Attorney General (the “AG”) to

the Assistant Deputy Attorney General (the “ADAG”) that he appoint
Terrence L. Robertson, Q.C. (“Mr. Robertson”), to conduct a charge
assessment in relation to allegations of criminal misconduct involving
individuals associated with the community of Bountiful, British
Columbia, is a nullity;
b. an order in the nature of certiorari, quashing the appointment by the

ADAG of Mr. Robertson as a special prosecutor under s. 7 of the
Crown Counsel Act, R.S.B.C. 1996, c. 87 (the Act), to conduct a
charge assessment in relation to allegations of criminal misconduct
involving individuals associated with the community of Bountiful, British
Columbia;
c. an order in the nature of certiorari, quashing the decision by

Mr. Robertson as special prosecutor to approve charges against
Mr. Blackmore [and Mr. Oler] under s. 293 of the Criminal Code of
Canada (the “Code”).
[5] It is important to appreciate the scope of this proceeding. This judicial review
concerns the process by which Mr. Blackmore and Mr. Oler were charged with the
offences on the Information that is presently before the Provincial Court. At issue is
the interpretation of the Act, and whether there is the statutory authority to bring the
charges against the petitioners. This judicial review has nothing to do with the
merits of the alleged offences; or with the merits of charge approval in this case; or
whether there was manifest unfairness in the charge approval process or
fundamental unfairness in proceeding with a prosecution instead of a reference to
the Court of Appeal; or whether the prosecution of Mr. Blackmore and Mr. Oler
should be stayed because it is an abuse of process.
The Crown Counsel Act
[6] The Act sets out the role of the Criminal Justice Branch in the conduct of
prosecutions and formalizes the authority of Crown prosecutors employed by the
Ministry of the Attorney General or appointed by the ADAG, subject to specific
direction from the Attorney General or the ADAG. The relevant sections of the Act
are s. 1, in part, and ss. 4-7:
1 In this Act:
"ADAG" means the Assistant Deputy Attorney General, Criminal Justice
Branch;
…
Responsibilities of Crown counsel
4 (1) The ADAG may designate as "Crown counsel" any individual or class of
individual who is lawfully entitled to practise law in British Columbia.
(2) Each Crown counsel is authorized to represent the Crown before all
courts in relation to the prosecution of offences.
(3) Subject to the directions of the ADAG or another Crown counsel
designated by the ADAG, each Crown counsel is authorized to
(a) examine all relevant information and documents and, following the
examination, to approve for prosecution any offence or offences that
he or she considers appropriate,
(b) conduct the prosecutions approved, and
(c) supervise prosecutions of offences that are being initiated or
conducted by individuals who are not Crown counsel and, if the
interests of justice require, to intervene and to conduct those
prosecutions.
(4) The Attorney General may establish an appeal process under which law
enforcement officials may appeal the determination of any Crown counsel or
special prosecutor not to approve a prosecution.
...
Directions from Attorney General on specific prosecutions
5 If the Attorney General or Deputy Attorney General gives the ADAG a
direction with respect to the approval or conduct of any specific prosecution
or appeal, that direction must be
(a) given in writing to the ADAG, and
(b) published in the Gazette.
Special prosecutors
7 (1) If the ADAG considers it is in the public interest, he or she may appoint
a lawyer, who is not employed in the Ministry of Attorney General, as a
special prosecutor.
(2) A special prosecutor must carry out his or her mandate, as set out in
writing by the ADAG, and in particular must
(a) examine all relevant information and documents and report to the
ADAG with respect to the approval and conduct of any specific
prosecution, and
(b) carry out any other responsibilities respecting the initiation and
conduct of a specific prosecution.
(3) If the ADAG appoints a special prosecutor, the ADAG must advise the
Deputy Attorney General
(a) that a special prosecutor has been appointed, and
(b) the name of the special prosecutor.
(4) If, after a special prosecutor receives the mandate under subsection (2),
the Attorney General, Deputy Attorney General or ADAG gives a direction to
a special prosecutor in respect of any matter within the mandate of the
special prosecutor, that direction must be given in writing and be published in
the Gazette.
(5) Subject to the mandate given to the special prosecutor by the ADAG or to
a directive referred to in subsection (4), the decision of a special prosecutor
with respect to any matter within his or her mandate is final, but a decision
not to approve a prosecution may be appealed by a law enforcement officer
under the process established by section 4 (4).
Facts
[7] There have been a number of legal opinions in British Columbia suggesting
the polygamy law in s. 293 of the Criminal Code is unconstitutional and
unenforceable and the proper course is to proceed by way of reference to the Court
of Appeal.
[8] Allegations that polygamy is being practiced in Bountiful first came to the
attention of the RCMP and the Attorney General’s office in 1990. The RCMP
conducted an investigation and provided a report to the Criminal Justice Branch.
[9] Regional Crown counsel reviewed the RCMP report and considered both the
evidence obtained by the RCMP as well as the constitutional validity of s. 293 of the
Criminal Code in light of the Canadian Charter of Rights and Freedoms, Part I of the
Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11
[Charter]. In 1992, Crown counsel ultimately decided that there would be no
substantial likelihood of conviction on charges of polygamy and declined to approve
any charges. Crown counsel arrived at this conclusion principally on the basis of
several internal and external expert opinions which concluded s. 293 was in conflict
with the Charter s. 2(a) guarantee of freedom of religion.
[10] One external opinion, provided to the Ministry of the Attorney General in
February 1992 by retired British Columbia Court of Appeal Justice Richard
Anderson, stated that s. 293 was “in direct conflict with Section 2(a)” and likely
could not be saved under s. 1 of the Charter. Mr. Anderson noted that the section
was overbroad in its application to all polygamous relationships, and that likely it
could not be read down to apply only to “undesirable” polygamous unions, such as
those involving either minors or allegations of physical or sexual abuse.
Mr. Anderson concluded that any charges would result in a constitutional “test case”
that would require an “enormous expenditure of time and money” and would take
several years before a final resolution in the Supreme Court of Canada. In his
opinion, Parliament was in the best position to address the concerns surrounding the
practice of polygamy in Bountiful by redrafting the law in order to withstand Charter
scrutiny and to protect the interests of the women and children of that community.
[11] Internal opinions from the Ministry of the Attorney General on the
constitutional validity of s. 293 to similar effect were publicized in 1992, along with
the decision not to prosecute.
[12] The practice of polygamy in Bountiful again came to the attention of the
Ministry of the Attorney General in 2001 when former Chief Justice Allan McEachern
was asked to provide his opinion as to the constitutional validity of s. 293. In his
opinion, s. 293 was likely in conflict with s. 2(a) of the Charter and would be struck
down if a prosecution were undertaken.
[13] The next RCMP investigation spanned the years 2004-2008. The RCMP
forwarded their first report on their investigation to Crown counsel on September 29,
2006, recommending that charges of polygamy and sexual exploitation be brought

against the petitioners. However, it was the opinion of four senior Crown counsel,
including the ADAG, Robert Gillen, Q.C., that there was no substantial likelihood of
conviction on the basis that s. 293 was likely contrary to the Charter guarantee of
religious freedom. The Criminal Justice Branch would not approve any charges.
[14] On May 31, 2007, the Attorney General issued a directive to the ADAG under
s. 5 of the Act to retain an experienced criminal lawyer to conduct a charge
assessment review of the results of the police investigation into allegations of
potential misconduct by individuals associated with the community of Bountiful. The
directive of the Attorney General, in writing and published in the Gazette: (Directive
for Charge Assessment Review, B.C. Gaz. 2007.I.251) stated:
In compliance with section 5 of the Crown Counsel Act, this letter is my

directive to you to have a charge assessment review conducted of the results
of the police investigation into allegations of potential misconduct by
individuals associated with the community of Bountiful, British Columbia. I
am further directing that you retain an experienced criminal lawyer in British
Columbia who is not an employee of the provincial government to conduct
this charge assessment.
The charge assessment review should consist of a comprehensive legal
analysis of all of the available evidence that has been assembled by the
Royal Canadian Mounted Police as well as any other information the Criminal
Justice Branch has concerning the allegations and furthermore should involve
the consideration of any and all potential criminal or quasi-criminal charges,
including but not limited to, polygamy and any offence of a sexual nature.
[15] Following that directive, on June 6, 2007, the ADAG announced the
appointment of Richard Peck, Q.C. as a special prosecutor in accordance with his
power in s. 7(1) of the Act, which allows the ADAG to appoint a special prosecutor
where “the ADAG considers it is in the public interest”. The Crown Counsel Policy
Manual provides the ADAG with guidance in exercising his or her authority to
appoint a special prosecutor: the ADAG believes “there is a significant potential for
real or perceived improper influence in prosecutorial decision making”, having regard
for “the need to maintain the public confidence in the administration of criminal
justice as the paramount consideration in deciding whether a case requires the
appointment of a special prosecutor”.
[16] Mr. Peck's mandate included the following:
Conducting an independent comprehensive legal analysis of all of the

available evidence that had been assembled by the RCMP as well as any
other information the Criminal Justice Branch had concerning the allegations
and was to involve the consideration of any and all potential criminal or quasi-
criminal charges, including but not limited to, polygamy and any offence of a
sexual nature;
Offering such legal advice as was necessary to the police in the event
that further investigation by them was required;
Providing the Assistant Deputy Attorney General with a written report
setting out his charge assessment review decision; and
If in his view a charge was warranted, conducting the prosecution and
any subsequent appeal.
[17] On July 23, 2007, at the request of Mr. Peck, his mandate was expanded to
include consideration of a recommendation for a constitutional reference, and
carriage of such a reference should one proceed.
[18] With the appointment of Mr. Peck, the Attorney General was reported to have
told a journalist:
The department chose an independent prosecutor since B.C. Crown lawyers

have already made their opinion clear: that charges under the polygamy law
would fail. Oppal insists he isn't shopping for an opinion favouring
prosecution of Bountiful elders. Peck can reach his own conclusions, Oppal
says he just wants resolution. “”I'm quite concerned about the exploitation
and all the other things that are said to be happening there.”” But, he adds,
“”my own personal opinions don't necessarily translate into action.””
(Ken MacQueen, “Polygamy May be Legal in Canada under Charter”

MacLean’s (25 June 2007) online:
Macleans.ca<http.//www.macleans.ca/article.jsp?content=20070625_106885
_106285).
[19] Mr. Peck concluded in his report of July 25, 2007, that there should be no
criminal charges laid in connection with the investigation. With respect to charges of
sexual exploitation, he agreed “with the thorough and well-reasoned opinions of
Crown Counsel on the proposed charges”, applying the Charge Assessment
Guidelines of the Criminal Justice Branch, that there was “not a substantial likelihood
of conviction with respect to any of the proposed counts”. He determined that none
of the range of sexual and marriage related offences in the Criminal Code was
applicable in the circumstances. He concluded “polygamy itself is at the root of the

problem” and said, “With great respect to those who have given opinions to the
contrary, I believe that s. 293 may well be upheld by the courts as consistent with
the Charter’s commitment to religious freedom”.
[20] Mr. Peck considered that a reference to the Court of Appeal, rather than a
criminal trial, was the preferable way to determine the issue of the constitutionality of
s. 293 for a number of reasons:
A prosecution would likely face a number of obstacles, resulting in a

cumbersome and time-consuming process. The constitutional issue might
not be heard for some time after charges are laid, as other aspects of the trial
process, such as disclosure issues or various defence motions, might take
precedence. Given the unique history of this matter, including the lengthy
passage of time since the first expression of police interest in Bountiful, and
the existence of prior Crown opinions regarding the constitutionality of s. 293,
these motions might be particularly lengthy and complex. They could result
in the constitutional issue never being determined at trial.
[21] Further, he concluded the public interest was best served by a reference
which would provide “an authoritative and expeditious judicial resolution of the legal
controversy surrounding polygamy”. Mr. Peck commented:
In my view, a reference to the BC Court of Appeal – with a probable further

appeal to the Supreme Court of Canada – is the preferable approach to take.
My view is that the public interest will best be served by an authoritative and
expeditious judicial resolution of the legal controversy surrounding polygamy.
The legality of polygamy in Canada has for too long been characterized by
uncertainty. The integrity of the legal system suffers from such an impasse,
and an authoritative statement from the courts is necessary in order to
resolve it.
[22] Mr. Peck felt “a clear statement from the courts would be desirable”
concerning the constitutional validity of s. 293. He concluded:
If the law is upheld, members of the Bountiful community will have fair notice
that their practice of polygamy must cease. If they, in turn, persist in the
practice, a prosecution could be initiated at the Crown’s discretion,
substantially free of the procedural obstacles which now exist.
[23] In announcing the decision of Mr. Peck, the media statement issued by the
Criminal Justice Branch August 1, 2007, acknowledged that the appointment of a
special prosecutor is made when there is “a significant potential for real or perceived
improper influence in the administration of criminal justice”, and acknowledged the
decision is final subject to any written published directions from the Attorney
General, Deputy Attorney General or ADAG:
The Assistant Deputy Attorney General for the Criminal Justice Branch
appoints Special Prosecutors pursuant to the Crown Counsel Act when there
is a significant potential for real or perceived improper influence in the
administration of criminal justice.
The decisions of Special Prosecutors are final subject only to receiving
written directions from the Attorney General, Deputy Attorney General or
Assistant Deputy Attorney General for the Criminal Justice Branch. In such
an event, those directions must be made public by publishing them in the
Gazette.
[24] Approximately one month later, on September 6, 2007, the Attorney General
wrote the ADAG, referencing Mr. Peck’s report and some of the reasons why
Mr. Peck concluded that proceeding by way of a reference was preferable to a
prosecution, including “potential arguments relating to pre-charge delay resulting in
actual prejudice, officially induced error and fairness considerations”. The Attorney
General issued a directive to the ADAG, pursuant to s. 5 of the Act, to retain
Leonard Doust, Q.C. "to review Mr. Peck's analysis, including the history and other
factors he considered in coming to a conclusion that a prosecution was less
preferable than a reference". The Attorney General instructed the ADAG:
If Mr. Doust concludes as a result of this review that a prosecution for

offences of polygamy meets the Criminal Justice Branch's charge approval
policy, I further direct that you retain Mr. Doust to conduct the prosecution
arising from the related police investigation on the offences of polygamy only,
and any appeals which may arise from those proceedings.
[25] The Attorney General’s written directions were published in the Gazette:
Directive for Charge Assessment Analysis, B.C. Gaz. 2007.I.386 as required by s. 5
of the Act.
[26] Pursuant to his powers in s. 4(1) of the Act, the ADAG appointed Mr. Doust
as an ad hoc prosecutor.
[27] In his report dated March 20, 2008, Mr. Doust confirmed the findings and
recommendations of Mr. Peck and concluded that “given both practical
considerations and concerns about fairness, a reference rather than a prosecution is
the most appropriate way to proceed at this time”. In coming to this conclusion,
Mr. Doust’s reasons for his recommendation are summarized, in part:
The serious misconduct in Bountiful will likely continue until the

constitutionality of s. 293 is authoritatively decided by the Supreme Court of
Canada…. A reference will bring the question of s. 293’s constitutionality to
the Supreme Court of Canada much faster that (sic) a prosecution…. A
reference will also avoid several possible pitfalls of a prosecution,… There is
a serious risk of unfairness in proceeding with a prosecution under s. 293 at
this time, considering:
(a) for many years, the Ministry held the view that s. 293 is
unconstitutional;
(b) the Ministry publicized its view that s. 293 is unconstitutional;
(c) on the basis of its view, the Ministry declined to prosecute under
s. 293 despite knowing for many years that the section was being
offended;
(d) today there remains some question as to the constitutionality of
s. 293;
(e) a prosecution under s. 293 would effectively compel the accused
to participate as a test litigant in the complex and lengthy resolution of
that question;
(f) the accused would have to be selected from among a pool of
similarly culpable individuals; and
(g) in any case, the reference procedure is available and better suited
than a prosecution to the resolution of the constitutionality of s. 293.
[28] Following the receipt of Mr. Doust’s opinion, the Attorney General was quoted
in the media as saying he favoured laying a polygamy charge but prosecutors in the
Criminal Justice Branch believed the case would fail because of a constitutional
violation of religious freedom. He said he could order prosecutors to take the case
but he preferred to work with someone who did not believe the case was doomed to
failure. He said he wanted a “more aggressive approach, which means you lay the
charge and let the defence worry about the constitutionality issue. That’s normally
the way things are done”. He had hoped one of the reports of Mr. Peck or Mr. Doust
would have recommended prosecution, but since both reports said the same thing
he was now considering going with a special prosecutor: Charles Lewis, “B.C. May
Charge Men of Sect: A-G; ‘Canadians Abhor’ Behavior in Bountiful” The National
Post (10 April 2008) A1 [Lewis].
[29] On May 28, 2008, the Attorney General wrote the ADAG, directing him to
appoint Terrance Robertson Q.C. as a prosecutor, either special or ad hoc. This
was almost one year after the Attorney General wrote the ADAG, directing him to
appoint a prosecutor and the ADAG appointed Mr. Peck. The Attorney General’s
directive to the ADAG reads:
I have received Mr. Richard C. C. Peck's report entitled Final Report of

Special Prosecutor for Allegations of Misconduct Involving Individuals
Associated with the Community of Bountiful, BC, dated July 25, 2007, which
concludes that proceeding by way of a reference is preferable to that of a
prosecution for a number of reasons. Some of these reasons include
potential arguments relating to pre-charge delay resulting in actual prejudice,
officially induced error and fairness considerations.
As I disagreed with Mr. Peck's decision not to prosecute allegations of
polygamy, I directed that Mr. Leonard T. Doust be appointed as Crown
Counsel to review Mr. Peck's analysis with a view to determining the viability
of a prosecution.
Mr. Doust also concluded that a reference was the preferable means by
which to proceed. As he also concluded that a prosecution would be unfair,
he declined to prosecute the polygamy allegations during our discussions on
May 2, 2008.
I disagree with Mr. Doust's conclusion that a prosecution would be unfair.
It is my opinion that the Criminal Justice Branch is mistaken in its belief that
s. 293 of the Criminal Code of Canada is unconstitutional. Both Mr. Doust
and Mr. Peck believe s. 293 to be constitutionally valid legislation. A valid
criminal law is and should be enforced. To do so is appropriate and is not
unfair.
Therefore, pursuant to Section 5 of the Crown Counsel Act, this letter is my
directive to you to retain the legal services of Mr. Terrance Robertson to
conduct a charge assessment of the most recent police investigation into
polygamy in the Community of Bountiful. He is to apply the Criminal Justice
Branch charge approval policy as it relates to Section 293 of the Criminal
Code of Canada and any other Code provisions. The policy requires first, a
determination of whether there is a substantial likelihood of conviction based
on the available evidence, and if so, whether it is in the public interest to
proceed with a prosecution. If he concludes that charges should be
approved, he is to conduct the prosecution and any appeals which may arise
from those proceedings.
As you may designate him to be either Crown Counsel pursuant to Section 4
(1) of the Crown Counsel Act or as Special Prosecutor pursuant to Section 7
of the Crown Counsel Act, I leave that designation selection for your
determination.
[30] This directive was published in the Gazette: Directive for Charge Assessment
Review, B.C. Gaz. 2008.I.237 There was no new police investigation or evidence.
There was no change from Mr. Peck’s mandate. The directive to the ADAG sets out
the reasons why the Attorney General requested Mr. Robertson’s appointment: he
disagreed with Mr. Peck's decision not to prosecute allegations of polygamy; he
disagreed with Mr. Doust's conclusion that a prosecution would be unfair; he felt the
Criminal Justice Branch was mistaken in its belief that s. 293 of the Criminal Code is
unconstitutional since both Mr. Doust and Mr. Peck believed s. 293 to be
constitutionally valid legislation; and he believed it appropriate and not unfair to
enforce a valid criminal law.
[31] On June 2, 2008, in response to the Attorney General’s directive, the ADAG
appointed Mr. Robertson as a special prosecutor. Mr. Robertson’s mandate was
stated to be:
Conducting an independent charge assessment review based on the

results of the RCMP investigation, the materials assembled by the Criminal
Justice Branch and any other information that the investigating officers may
provide to him;
Offering such legal advice as is necessary to the police in the event
that further investigation by them is required;
Providing the Assistant Deputy Attorney General with a written report
setting out his charge assessment decision; and
If in his view a charge is warranted, conducting the prosecution and
any subsequent appeal.
[32] Whereas Mr. Peck’s mandate was to conduct an independent comprehensive

legal analysis of all the available evidence, Mr. Robertson was asked to conduct an
independent charge assessment review based on all the available evidence.
Mr. Robertson’s mandate as a special prosecutor was essentially the same mandate
as Mr. Peck’s. He was asked to consider afresh charges on the same investigative
material Mr. Peck had already considered, and he was asked to apply the same
charge approval test in considering whether charges should be approved.
[33] In August 2008, the RCMP conducted a follow-up investigation.

Mr. Robertson received a Supplemental Report to Crown Counsel from the RCMP
investigating officers, dated November 25, 2008, which post-dated Mr. Robertson’s
appointment as a special prosecutor by about five months.
Issues
[34] What is the meaning of the word “final” in s. 7(5) of the Act? Was Mr. Peck’s
decision with respect to the approval and conduct of the prosecution of the
petitioners a final decision within his mandate, thus restricting the Attorney General’s
ability to direct the ADAG to appoint a further prosecutor, and restricting the ability of
the ADAG to appoint a further special prosecutor with essentially the same
mandate? In other words, was the appointment of Mr. Robertson as a special
prosecutor contrary to s. 7(5) of the Act and was his decision to charge the
petitioners unlawful?
Standard of Review
[35] Counsel for the parties did not raise or make submissions on the appropriate
standard of review. However, in my opinion, the interpretation of the Act is a
question of “general law of central importance to the legal system” that will “impact
the administration of justice as a whole” and therefore the standard of review is
correctness: Dunsmuir v. New Brunswick, 2008 SCC 9 at para. 60, [2008] 1 S.C.R.
190, Toronto (City) v. C.U.P.E., local 79, 2003 SCC 63 at para. 62, [2003] 3 S.C.R.
77.
Position of the Petitioners
[36] The petitioners’ position is that the decision of Mr. Peck not to prosecute the
petitioners was final and binding and the Attorney General acted without jurisdiction
and contrary to the Act in directing the ADAG to appoint Mr. Robertson on the same
mandate as Mr. Peck, to consider and decide a charge assessment in relation to the
same charges that Mr. Peck had decided not to approve for prosecution. They
submit the appointment of Mr. Robertson as a special prosecutor was unauthorized
by law and contrary to s. 7(5) of the Act. Accordingly, Mr. Robertson’s decision to
approve charges against the petitioners under s. 293 of the Criminal Code was also
unauthorized by law and contrary to s. 7(5) of the Act. They seek a declaration and
orders in the nature of certiorari.
[37] In order to avoid the risk, real or perceived, of political interference in a

politically sensitive case, the petitioners submit that a decision of a special
prosecutor with regard to a charge approval assessment is a final decision, vis-à-vis
the Attorney General. They argue the decision of Mr. Peck on his mandate under
s. 7(5) of the Act is “final” in the plain and ordinary sense of that word, and having
regard to the purpose and intent of the Act which was enacted in response to the
Discretion to Prosecute Inquiry: Discretion to Prosecute Inquiry, Commissioner’s
Report, Vol. 1 (Victoria: Queen’s Printer for British Columbia, 1990) [Owen Report],
which made several recommendations, including the formal creation of the position
of special prosecutor with decision-making authority in order to promote public
confidence that the decision to prosecute political and sensitive cases will be made
according to the same standards as other cases, absent political influence.
Position of the Attorney General
[38] The position of the Attorney General is that the decisions of the Attorney
General and the ADAG were authorized by statute and lawful; therefore, it follows
that Mr. Robertson’s decision within his mandate was also authorized. The Attorney
General submits s. 7(5) of the Act, in combination with s. 7(4), has two main
functions. The first function is to enhance independence of special prosecutors in
carrying out their mandate by ensuring transparency and accountability of decisions
by means of overt directions from the Attorney General or the ADAG, thus barring
covert influence from within the Criminal Justice Branch. The Attorney General
argues the historical power of the Attorney General is not restricted in the
appointment of successive special prosecutors by the Act. Rather, the concept of
“finality” emphasizes that the conduct of the prosecution is free from direction except
through overt, public, Gazetted directions. In support, the Attorney General argues
there is no reason why the Attorney General should be permitted to transparently

influence a special prosecution through Gazetted instructions to a special
prosecutor, but be restrained from the much less intrusive device of overtly seeking
a second independent assessment. The Attorney General maintains there is
nothing objectionable in the Attorney General revisiting, even repeatedly, the “public
interest” where the Attorney General has a different view of what is in the public
interest.
[39] The Attorney General argues the second function of s. 7(5) of the Act is that it
operates as a privative clause, giving a special prosecutor the same immunity from
judicial review as Crown counsel enjoy at common law.
[40] In the alternative the Attorney General argues, Mr. Robertson’s decision
involved an exercise of prosecutorial discretion and is not subject to review absent
the petitioners establishing bad faith or improper purpose, which they have not
alleged.
[41] In the further alternative, the Attorney General argues, even if the petitioners
are correct in their interpretation of s. 7(5) of the Act, Mr. Peck’s preference for a
reference over a prosecution was not a “final” decision.
[42] Finally, the Attorney General argues that Mr. Robertson was under a new
mandate that didn’t offend the first decision because it was pursuant to a different
factual matrix arising from a subsequent investigation by the RCMP and that
Mr. Peck was functus.
Position of the Special Prosecutor
[43] The special prosecutor argues his appointment is authorized by the powers of
the Attorney General and the provisions of the Act and there is no bar to the
prosecution of the petitioners on the charges brought by the special prosecutor. The
special prosecutor submits the petitions are an attack on the Attorney General’s
prosecutorial discretion in initiating charges.
[44] The position of the special prosecutor is that the Act does not confer or limit
the power of the Attorney General but merely provides a mechanism, or prescribes
the manner, governing the relationship between the Attorney General, the ADAG
and the special prosecutor. Alternatively, the special prosecutor submits the Act
results in a sharing of power between the Attorney General, the ADAG and the
special prosecutor, such that the Attorney General’s ability to direct a special
prosecutor is limited only in that any directions must be in writing and published in
the Gazette.
[45] The special prosecutor argues the word “final” in s. 7(5) of the Act means that
the decision of a special prosecutor to either approve a charge or not stands with
respect to that particular special prosecutor only, and does not restrict the Attorney
General’s ability to direct the ADAG to appoint further special prosecutors with the
same mandate. The special prosecutor argues nothing in s. 7(5) restricts the
number of special prosecutors that can be appointed, or bars the ADAG from
appointing successive special prosecutors, and such an interpretation would lead to
an absurd result where a special prosecutor is unable or unwilling to act for some
reason or if there was a change of facts and circumstances. Alternatively, the
special prosecutors argue that Mr. Peck’s decision was not ‘final’, as it was subject
to the outcome of a reference.
[46] In the alternative, the special prosecutor argues there is nothing in the Act
that restricts the ADAG from issuing a further or fresh mandate to another special
prosecutor, either on his own initiative where it is in the public interest to do so
pursuant to ss. 7(1) and (2) of the Act, or by the direction of the Attorney General
pursuant to s. 5 of the Act. In the further alternative, the special prosecutor argues
that Mr. Peck’s mandate ended when he decided not to approve charges and s. 7(4)
and 7(5) of the Act cease to be operable at the end of the mandate.
Statutory Interpretation of Crown Counsel Act
Principles
[47] In Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27 at para. 21, 36 O.R.
(3d) 418 [Rizzo Shoes], the Court expressed the modern rule of statutory
interpretation, adopted from E. A. Driedger in Construction of Statutes (2nd ed.
1983), at p. 87:
Today there is only one principle or approach, namely, the words of an Act
are to be read in their entire context and in their grammatical and ordinary
sense harmoniously with the scheme of the Act, the object of the Act, and the
intention of Parliament...
[48] This approach is strengthened by s. 8 of the Interpretation Act, R.S.B.C. 1996

c. 238, which directs that “[e]very enactment must be construed as being remedial,
and must be given such fair, large and liberal construction and interpretation as best
ensures the attainment of its objects”.
[49] The Legislature does not intend to produce absurd consequences: Rizzo
Shoes at para. 27. Further, there is a presumption that legislation is internally
consistent and coherent. In R. v. L.T.H., 2008 SCC 49 at para. 47, [2008] 2 S.C.R.
739 the Court quotes from Sullivan and Driedger on the Construction of Statutes (4th
ed. 2002), at p. 168:
As R. Sullivan explains, the provisions of a statute are presumed to fit

together logically to form a rational, internally consistent framework; and
because the framework has a purpose the parts are also presumed to work
together dynamically, each contributing something toward accomplishing the
intended goal.
[50] The grammatical and ordinary meaning of the word “final” is “ultimate … not
to be undone, altered or revoked …. [and] conclusive”: Simpson and Weiner, The
Oxford English Dictionary, 2nd ed., Volume V (Oxford: Clarendon Press, 1989) at
pp. 191 to 192.
[51] However, it is not enough to look at only the plain and ordinary meaning of
the word: Rizzo Shoes at para. 23. The interpretation of the word “final” in s. 7(5) of
the Act requires consideration of the actual word in the context of the scheme and
object of the Act, having regard to the purpose and the intention of the Legislature.
Meaning of “Final”
[52] The Act was the outcome of the Owen Report which recommended the
adoption of the special prosecutor model in British Columbia to create a mechanism
for the appointment of special prosecutors to address the risk or potential for real or
perceived improper influence in the investigation and prosecution of sensitive
political cases. The Owen Report, at p. 6, documented the rationale for the special
prosecutor model, in part, as follows:
The rule of law in a democracy requires the public’s ongoing consent and
confidence in order to survive. Any widespread unease with the essential
fairness of our justice system can cripple it. Perception becomes reality when
suspicion of injustice is allowed to fester. The system must be capable of
quickly and convincingly resolving any such doubts.
… It is not enough to know now that the system worked fairly. The
adversarial nature of our political system and its apparent proximity to the
administration of justice will inevitably raise questions of potential interference
in criminal investigations involving political and other influential figures ….
The system itself must be capable of demonstrating its integrity on an
ongoing basis.
[53] To maintain public confidence that the integrity of the justice system is being
protected, the Owen Report recommended that a formal special prosecutor
mechanism be enacted by the Legislature. Recommendation #3, at p. 97 of the
Owen Report, states:
That in recognition of the fundamental importance of the separation of politics

from the administration of justice, and given the dual role of the Attorney
General as both a politician and the senior justice administrator in the
province, a special prosecutor process should be instituted for political or
other sensitive cases, as set out in Recommendation #9 below.
[54] Recommendation #9, at p. 115 of the Owen Report, proposed the

appointment of a special prosecutor with decision-making authority in the following
terms:
1) That a special prosecutor be appointed in all cases where there is a

significant potential for real or perceived improper influence in the
administration of criminal justice because of the proximity of the

suspect, or someone with a close relationship to the suspect, to the
investigation, charge approval or prosecution processes. Such cases
would include those involving cabinet ministers, senior public officials
and police officers.
2) That the special prosecutor be a senior criminal lawyer in private
practice in British Columbia, appointed for a specific case jointly by
the Treasurer of the Law Society of British Columbia and the Deputy
Attorney General.
3) That the role of the special prosecutor be to liaise with the police
during the investigation; to make the charging decision; to lay the
information and conduct the prosecution where this decision is made;
and to provide adequate reasons to the police, the victim or other
significantly interested person, and the public, as appropriate, where
the decision not to prosecute is made.
4) That the Attorney General retain the right to intervene, conduct or stay
any case for which a special prosecutor has been appointed and have
the responsibility to do so where appropriate in the public interest; but
that any such intervention or direction to a special prosecutor must be
made public and that full written reasons for the direction or
intervention must be published in the official Gazette and placed
before the Legislature at the earliest appropriate opportunity.
[55] In fact, the Act sets out a special prosecutor process as contemplated by
Mr. Owen, except that the appointment of a special prosecutor is made by the
ADAG.
[56] The Attorney General, pursuant to the Act, can direct the ADAG with respect
to the approval or conduct of a specific prosecution so long as the directions are in
writing and published in the Gazette: s. 5. If the ADAG considers it is in the public
interest, the ADAG may appoint a lawyer as a special prosecutor pursuant to s. 7(1),
or as an ad hoc prosecutor pursuant to s. 4(1). The difference is that a special
prosecutor is not subject to direction from the Criminal Justice Branch unlike an ad
hoc prosecutor. The Act provides that the decision of the special prosecutor within
his or her mandate is final, subject to an appeal by a law enforcement officer if a
charge is not approved (s. 7(5)), and subject to direction from the Attorney General,
the Deputy Attorney General or the ADAG, in writing and published in the Gazette,
with respect to any matter within the special prosecutor’s mandate: s. 7(4).
[57] A number of factors distinguish the appointment of a special prosecutor

pursuant to s. 7 of the Act. First, a special prosecutor must not be employed in the
Ministry of Attorney General: s. 7(1). Secondly, a special prosecutor must carry out
his or her written mandate, examining all relevant materials and reporting to the
ADAG with respect to the approval and conduct of any prosecution: s. 7(2). Third,
the ADAG is required to report the appointment of a special prosecutor to the
Attorney General: s. 7(3). Fourth, all directives given to a special prosecutor by the
Attorney General, Deputy Attorney General or ADAG must be in writing and
published in the Gazette: s. 7(4). Finally, subject to any directives in accordance
with s. 7(4), “the decision of a special prosecutor with respect to any matter within
his or her mandate is final”: s. 7(5).
[58] The intention of the Act is to give the ADAG the power to appoint a special
prosecutor in political or other sensitive cases, at the direction of the Attorney
General, if the ADAG considers it is in the public interest to do so. This process is
intended to address the competing interests the Attorney General faces with respect
to political accountability and Crown independence in the Attorney General’s dual
role of politician and senior justice administrator for the Province.
[59] This dual role of the Attorney General was commented upon in R. v. Power,
[1994] 1 S.C.R. 601 at p. 62, 117 Nfld. & P.E.I.R. 269 [R. v. Power]:
Decisions concerning the operation of criminal justice involve important

considerations relating to the public interest. From this perspective, the
actions of the Attorney General are hybrid in that there is a perpetual moving
to and fro between his legal and political functions. That is why the Attorney
General must answer politically to Parliament for the manner in which the
Crown exercises its powers.
[60] In written argument, counsel for the Attorney General conceded various
rationale for the appointments of Mr. Peck and Mr. Robertson as special
prosecutors, as follows: “to address a concern over the potential appearance of an
overzealousness to prosecute”; “This is not a case in which Minister Oppal or others
in government have any personal or party political interest in seeing a prosecution
either avoided or pursued”; but rather, one where there is “a subtler concern that a
perception of bias or animus might arise out of Minister Oppal’s persistent interest in
Bountiful in the face of the various decisions not to prosecute over the preceding 15
years”; and there was “a perceived need to remove the prosecutor undertaking the
charge assessment from the fray in order to ensure public confidence in the
objectivity and thoroughness of his reasoning”: at paras. 44 and 45.
[61] The Attorney General maintains, however, that the concerns of political
interference in the charge approval process are met by the transparency and
accountability built into the Act. The Attorney General submits that the concept of
“finality” emphasizes that the conduct of the prosecution is free from direction by the
Attorney General, the Deputy Attorney General, and the ADAG, except as it is
expressed through the mandate and consists of Gazetted, public directions. The
Attorney General argues the word “final” in s. 7(5) is a privative clause that should
be interpreted as limiting external parties, such as the court or a private prosecution,
and confirms that decisions of the special prosecutor will enjoy similar immunity from
judicial review that Crown counsel enjoy at common law.
[62] I disagree with the Attorney General’s characterization of s. 7(5) as a privative

clause. The clear language of the provision does not resemble the language of a
privative clause. Furthermore, the notion that the finality of the decision is only with
respect to the courts and the public is inconsistent with the context and legislative
history of the Act. The object and purpose of the Act is to enhance public
confidence in the independence of prosecutorial decision-making. This would be
frustrated if the decision of an independent special prosecutor could be re-visited by
successive special prosecutors, on the same mandate, until a decision is reached
that the Attorney General publically prefers.
[63] The special prosecutor points out there is nothing in s. 7(5) that precludes
interference with the special prosecutor’s mandate or decision or the appointment of
successive special prosecutors so long as it is publically documented. The special
prosecutor submits that “final” within the context of s. 7(5) means the special
prosecutor is the sole decision-maker while carrying out his or her mandate, so long
as he or she does not receive a direction in writing and published in the Gazette,
thus establishing the transparency and political accountability envisioned in the
Owen Report. Further, the special prosecutor points out that on the face of s. 7(5),
when a special prosecutor is still within his or her mandate, decisions made are not
binding on the Attorney General by virtue of s. 7(4). As with the argument of the
Attorney General, to interpret the Act as merely providing that any interference must
be done transparently and that nothing prohibits the Attorney General from seeking
alternative decisions, is inconsistent with the purpose of the Act and would frustrate
rather than further the goals of independence and public confidence.
Prosecutorial Discretion and Judicial Review
[64] The decision to prosecute is fundamental to prosecutorial discretion and is

one of the core powers of the Attorney General: Krieger v. Law Society of Alberta,
2002 SCC 65 at paras. 43-45, [2002] 3 S.C.R. 372 [Krieger]. The Attorney General
and the special prosecutor submit that what the petitioners are attacking is
prosecutorial discretion and prosecutorial decisions: namely, the Attorney General’s
directive under s. 5 of the Act, the ADAG’s appointment of the special prosecutor
flowing from that directive pursuant to s. 7(1) of the Act, and the special prosecutor’s
decision to charge, which are immune from judicial review, absent an abuse of
process argument.
[65] In R. v. Power, L’Heureux-Dubé J. discusses the origins of prosecutorial

powers, derived from prerogative powers, at p. 621, quoting Donna C. Morgan in
"Controlling Prosecutorial Powers -- Judicial Review, Abuse of Process and Section
7 of The Charter" (1986-87), 29 Crim. L.Q. 15, at pp. 20-21:
30 Most [prosecutorial powers] derive ... from the royal prerogative, defined
by Dicey as the residue of discretionary or arbitrary authority residing in the
hands of the Crown at any given time. Prerogative powers are essentially
those granted by the common law to the Crown that are not shared by the
Crown's subjects. While executive action carried out under their aegis
conforms with the rule of law, prerogative powers are subject to the
supremacy of Parliament, since they may be curtailed or abolished by statute.
...
Still other powers that derive directly from the prerogative now reside in the
Criminal Code.... Others ... have been limited or otherwise modified by
Parliament. Finally, another group of prosecutorial powers ... are creatures of
statute.
[66] Further, at p. 622, L’Heureux-Dubé J. examines the meaning of prosecutorial

discretion:
32 In "Prosecutorial Discretion" (1987-88), 30 Crim. L.Q. 219, at p. 219,

David Vanek explains the meaning of prosecutorial discretion:
Prosecutorial discretion refers to the discretion exercised by the
Attorney-General in matters within his authority in relation to the
prosecution of criminal offences. The Attorney-General is the chief
law officer of the Crown and a member of the Cabinet. He heads a
ministry of the government that exercises the authority over the
administration of justice and the constitution and the maintenance and
organization of the courts that is conferred upon the provincial
government by the constitution .... [T]he Attorney-General is the
prosecutor and hence, in effect, a litigant in every criminal case
except .... In practice, the Attorney-General acts in individual cases
through the numerous Crown Attorneys and Assistant Crown
Attorneys who are appointed as his agents to prosecute for criminal
offences on his behalf. [emphasis in original]
[67] Because prosecutorial discretion resides within the domain of the executive
branch of government, courts have been reluctant to interfere with the exercise of
this discretion, in order to reduce the pressures faced by the Attorney General and
Crown counsel, and in recognition of the division of powers between the executive
and the judiciary, the rule of law and the relative expertise of the Attorney General in
balancing the competing considerations in coming to a decision to prosecute: R. v.
Power at p. 123; Krieger at para. 32; British Columbia (Attorney General) v. Davies,
2009 BCCA 337, [2009] B.C.W.L.D. 5812 [Davies]. Absent incompetence,
negligence, bad faith, or “flagrant impropriety” (Davies, at para. 32), or “allegations
that the Crown acted from improper motives or purposes” (Davies, at para. 37),
courts will not interfere with the Crown’s charging decisions: R. v. Port Chevrolet
Oldsmobile Ltd., 2009 BCCA 357 at para. 73, 2009 CarswellBC 2132.
[68] In Davies, the court addressed prosecutorial independence, at para. 30:
Prosecutorial independence is a cornerstone of our system of criminal justice.

Decisions by the Crown to proceed with or refrain from proceeding with
criminal prosecutions have profound effects on persons suspected of crimes,

on victims, and on the public in general. Prosecutors have a duty to make
such decisions dispassionately, without regard to either public sentiment or
political pressures.
[69] It is clear from the authorities that judges should not engage in a process of
judicial screening of the Attorney General’s exercise of prosecutorial discretion in
deciding whether to commence a prosecution. However, the Act imposes limits and
restrictions on the Attorney General’s prerogative powers in certain circumstances in
order to promote public confidence that the exercise of prosecutorial discretion
occurs in a fair and objective way. This will meet what the Owen Report described
at p. 7 as “[t]he challenge of the fair and effective administration of criminal justice …
to achieve the proper balance between independence from political interference and
accountability to the political process for the investigation and prosecution of crime”.
[70] To insulate a decision to prosecute from real or perceived political or improper

interference, and to ensure the independence of the decision making process,
s. 7(5) of the Act gives a special prosecutor decision-making authority. In essence,
the Act limits or restricts the Attorney General’s prerogative powers to decide
whether to prosecute in cases where the ADAG determines that the appointment of
a special prosecutor is warranted in the public interest.
[71] The role assigned to a special prosecutor is not simply advisory, or to make
recommendations, but is expressly to make a final decision on the matters that are
the subject of the special prosecutor’s mandate. The Attorney General’s powers to
decide whether to prosecute are delegated to the special prosecutor whose decision
with respect to any matter within his or her mandate is final, subject only to an
appeal by a law enforcement officer if the special prosecutor decides not to approve
charges. As well, the Attorney General maintains residual responsibility “to
intervene in the public interest and on the public record” by means of further
directions, in writing and Gazetted, from the Attorney General. There was no such
appeal or intervention in this case.
[72] What is in issue here is not prosecutorial discretion because that discretion
was delegated to the special prosecutor. The issue here is the Attorney General’s
directions pursuant to the Act.
Prerogative Powers and Paramountcy
[73] The special prosecutor argues that to interpret the “finality clause” as
interpreted by the petitioners, would offend the principle of federal paramountcy as it
would result in a federal law rendered ineffectual by a statutory limit on provincial
enforcement if the matter was one assigned to a special prosecutor. The special
prosecutor argues the Attorney General is unrestricted in s. 5 of the Act in issuing
directions to the ADAG, and the ADAG is unrestricted in ss. 7(1) and (2) in
appointing successive special prosecutors on the same mandate and issuing a
further or new mandate.
[74] The special prosecutor accepts that the Act provides a mechanism through
which prosecutions are conducted in this province, such that the Attorney General is
not, typically, personally instituting and carrying out proceedings. However, the
special prosecutor argues the Act specifically provides for a personal role for the
Attorney General, and it does not strip him of constitutional and Crown prerogative
powers.
[75] While the petitioners acknowledge that the discretion to initiate a prosecution
is among the prerogative powers of the Attorney General, they argue those powers
may be curtailed or abolished by statute: R. v. Power, at p. 622. They argue the Act
delegates the Attorney General’s powers to a special prosecutor upon his or her
appointment to make a charge approval decision and the Act curtails or limits the
prerogative power normally enjoyed by the Attorney General to such an extent that it
can only be exercised in accordance with the Act – that is, by the special prosecutor,
whose decision on the matter is final: Delivery Drugs Ltd. v. British Columbia
(Deputy Minister of Health), 2007 BCCA 550 at para. 48, 286 D.L.R. (4th) 630.
[76] I agree with the petitioners that there is no paramountcy issue here. To
suggest that the Attorney General’s powers cannot be curtailed by the Act because
they are federally derived would mean that the Province cannot legislate on its
delegated powers to administer the criminal law, an argument to which I cannot
accede.
[77] Through s. 2 of the Criminal Code, Parliament has delegated to the provincial
Attorney Generals the authority to administer the criminal law and to prosecute crime
in their respective provinces. The provincial legislature is within its power to enact a
law that limits or restricts the provincial Attorney General’s powers provided there is
no direct conflict with the federal statute.
[78] In British Columbia, how the provincial Attorney General prosecutes crime is
set out in the Act. The Attorney General’s prerogative to prosecute crime in British
Columbia is subject to the limitations and conditions contained in s. 7 of the Act.
Section 7 delegates prosecutorial discretion in certain cases to a special prosecutor
with decision-making authority. Section 7 (5) stipulates that the decision of a special
prosecutor with respect to any matter within his or her mandate is final, subject only
to a written Gazetted directive to the special prosecutor from the Attorney General,
the Deputy Attorney General or the ADAG; or an appeal by a law enforcement
officer in the event of a decision not to prosecute.
[79] There is no conflict between federal and provincial legislation. There is no

operational conflict between the Attorney General’s powers under s. 579(1) of the
Criminal Code and s. 7 of the Act.
Finality of Mr. Peck’s Decision
[80] The special prosecutor argues that Mr. Peck’s decision not to prosecute was
not “final” but remained subject to the outcome of a reference. The Attorney General
argues that the decision of Mr. Peck to prefer a reference over a prosecution cannot
be seen as “final” as it was not a decision made with respect to the “conduct of a
specific prosecution” in the language of s. 7 of the Act. Further, the Attorney
General argues the recommendation of a reference was not a decision made under
the authority of the Act and therefore was not subject to the finality clause, since the
power to direct a reference is vested exclusively in the Lieutenant-Governor in
Council under the Constitutional Questions Act, R.S.B.C. 1996, c.68.
[81] I reject these arguments. These arguments overlook the fact that Mr. Peck’s
mandate was expanded to include consideration of a reference.
[82] Mr. Peck’s decision, within the scope of his mandate, was final.
New Mandate
[83] Both the Attorney General and the special prosecutor argue, in the
alternative, that Mr. Robertson had a new mandate.
[84] The Attorney General argues Mr. Peck was functus and his mandate expired
once it became apparent the Lieutenant-Governor in Council was not going to
pursue a reference. The special prosecutor argues that once Mr. Peck decided not
to approve charges, his mandate ended and he could not be given further directions.
They argue s.7(5) only regulates the relationship during the life of the mandate and
s. 7(4) and s. 7(5) cease to be operable at the end of the mandate.
[85] I disagree with the positions of the Attorney General and the special
prosecutor that Mr. Peck had exhausted his mandate and could not be given a
directive as ss. 7(4) and 7(5) were no longer operative. This interpretation is
inconsistent with the context and legislative history of the Act.
[86] In addition, the special prosecutor maintains that his decision to prosecute
was made following a new investigation by the RCMP, detailed in a Supplementary
Report to Crown Counsel, dated November 25, 2008. Further, because polygamy is
a continuing offence continuing past the expiry of Mr. Peck’s mandate,
Mr. Robertson’s was a fresh mandate.
[87] I reject this argument. Mr. Robertson was appointed to consider essentially
the same mandate as Mr. Peck and the new investigation by the RCMP was ordered
subsequent to Mr. Robertson’s appointment.
Application to Facts
[88] The evidence demonstrates that on May 31, 2007, the Attorney General
directed the ADAG to retain an experienced criminal lawyer in British Columbia to
conduct the charge assessment concerning the petitioners. The Criminal Justice
Branch had refused to prosecute; the Attorney General could have directed the
Criminal Justice Branch to prosecute under s. 6 of the Act but chose instead to direct
the ADAG to appoint a prosecutor. The Attorney General did not name a lawyer but
left the choice to the ADAG in accordance with s. 7(1) of the Act.
[89] The ADAG appointed Mr. Peck as a special prosecutor. Within his mandate,
Mr. Peck did not approve a prosecution but recommended a reference. There was
no appeal by a law enforcement officer and no directions were issued from the
Attorney General, the Deputy Attorney General or the ADAG.
[90] Less than two months later, on September 6, 2007, the Attorney General
directed the ADAG to retain Leonard Doust, Q.C. "to review Mr. Peck's decision”.
The ADAG appointed Mr. Doust as an ad hoc prosecutor. On March 20, 2008,
Mr. Doust agreed with Mr. Peck’s decision.
[91] However, the Attorney General wanted a “more aggressive approach, which
means you lay the charge and let the defence worry about the constitutionality
issue”: Lewis, at p. A1. He recognized he could order the Criminal Justice Branch to
prosecute the case, but he preferred to work with someone who did not believe the
case was doomed to failure. He had hoped Mr. Peck or Mr. Doust would have
decided to lay a charge, but since both had recommended a reference instead he
considered going with a special prosecutor.
[92] To that end, on May 28, 2008, the Attorney General directed the ADAG to
appoint Mr. Robertson as a prosecutor, either special or ad hoc. In his directive, he
stated he disagreed with Mr. Peck's and Mr. Doust’s decisions not to prosecute. He
disagreed with the Criminal Justice Branch’s belief that s. 293 of the Criminal Code
is unconstitutional since Mr. Doust and Mr. Peck believed it to be constitutionally
valid legislation. In the Attorney General’s view, a valid criminal provision should be
enforced.
[93] The ADAG appointed Mr. Robertson as special prosecutor. With essentially
the same mandate as Mr. Peck, Mr. Robertson’s decision to proceed with a
prosecution was contrary to Mr. Peck’s recommendation not to prosecute but to
proceed with a reference.
[94] Following the decision of Mr. Robertson, the Attorney General did not direct
the ADAG to seek further opinions or decisions, or to make any further appointments
of special or ad hoc prosecutors. A reasonable person would conclude this was
because the Attorney General had finally obtained the decision he wanted all along.
[95] The appointment of Mr. Robertson, on essentially the same mandate as

Mr. Peck, violated s. 7(5) of the Act because the meaning of the Act and the clear
legislative intent is that the decision of the first special prosecutor, Mr. Peck, on his
mandate, was final. The Attorney General delegated his decision-making power to
Mr. Peck to consider a prosecution. He sought the appearance of an independent
transparent process but then refused to accept the result. It is inconsistent with the
Act for the Attorney General to seek the appointment of successive prosecutors to
get a desired result. As the petitioners point out, if the Attorney General is free to
have another special prosecutor review the decision of a previous special prosecutor
on the same mandate, the odds are that eventually the decision will be different as
there are only two possible outcomes.
[96] The Attorney General treated the decision of the special prosecutor,
Mr. Peck, as merely advisory. Yet, Mr. Peck’s decision fell within the terms of his
mandate. There were no public directives to Mr. Peck concerning his mandate or
his decision and no appeal. In accordance with s. 7(5) of the Act, Mr. Peck’s
decision on his mandate was final.
[97] Further, the Attorney General specifically named Mr. Doust and
Mr. Robertson, a decision that is left to the ADAG, thus departing from the principles
of independence that underlies the purpose and intent of the Act. The intent of the
Act is to leave the selection of a special prosecutor up to the ADAG if he concludes it
is in the public interest. The Act does not contemplate that the Attorney General
would direct the selection of a specific prosecutor as he did with Mr. Doust and
Mr. Robertson.
[98] The Attorney General created the illusion that the decision to prosecute was
that of the special prosecutor when, in reality, the decision reflected the result the
Attorney General sought. This is precisely what the Act seeks to avoid in order to
maintain public confidence in the administration of criminal justice in this province.
[99] The Act restricts the Attorney General’s prerogative insofar as he has
delegated the charge approval decision to a special prosecutor. This is not to say
the Attorney General never has the jurisdiction to appoint another or successive
special prosecutors in other circumstances, such as where the mandate has
changed due to a change in circumstances or evidence, or it cannot be fulfilled for
reasons such as resignation, illness, death, or conflict of interest.
[100] In this case, the Court is faced with the appointment of successive
prosecutors, including two special prosecutors on the same mandate. In the result,
the Attorney General got the answer he publically sought all along; that is, to
prosecute. This is exactly the type of interference with the charge approval process
that the Act and the special prosecutor scheme are meant to prevent and is
inconsistent with the purpose and object of the Act.
[101] Objectivity and independence are important checks and balances in the
criminal justice system. A special prosecutor performs a quasi-judicial function,
acting on the basis of powers delegated under the Act, with a role to decide and not
merely to advise. The harm in the appointment of successive special prosecutors is
that it undermines the administration of justice by leaving the perception, if not the
reality, of political interference and of an oppressive or unfair prosecution. The
Attorney General upset the critical balance that Mr. Owen opined should be kept
between political independence and accountability. The Attorney General was well
aware of the role afforded a special prosecutor as evidenced by his comments in
Hansard on May 10, 2007, in respect to questions about another special prosecutor
in another matter:
What has happened here is that there is a special prosecutor appointed. If a

special prosecutor is appointed – listen carefully – the Attorney General
doesn’t get involved. That’s pretty fundamental.
The Attorney General doesn’t get involved, so as to remove any suggestion
of any political interference.
(British Columbia, Legislative Assembly, Official Report of Debates

(Hansard), Vol. 20, No. 7 (May 10, 2007) at 7839 (Hon. W. Oppal).
[102] In relation to the perception of political interference, Mr. Robertson was

reported to have said:
“”Some people may infer that [Mr. Oppal] was shopping until he found a
lawyer that would do his bidding,”” Terrence Robertson acknowledged.
“”Nothing could be further from the truth. I can tell you, [Mr. Oppal's views]
had no impact on my decision. I take my role as a special prosecutor very
seriously.””
Brian Hutchinson, “Polygamy and the legal Wrangling that surrounds it” The
National Post (9 January 2009) Online: National
Post<http://www.nationalpost.comstory-printer.html?ia=1161080.
[103] It needs to be said that no one suggests that Mr. Robertson’s decision to lay
charges in this case was influenced by the Attorney General or was not independent
of government.
[104] Mr. Robertson’s decision-making process, and his decision to prosecute is

not, however, the issue. The Attorney General was well aware of the role afforded a
special prosecutor. The fact that what the Attorney General did was by way of
written directives that were Gazetted does not change the perception on the facts of
this case.
Conclusion
[105] I conclude the Attorney General had no jurisdiction to direct the ADAG to
appoint Mr. Robertson as a prosecutor, and the ADAG had no jurisdiction to appoint
Mr. Robertson as a special prosecutor, to conduct a charge assessment in relation
to the same mandate where Mr. Peck had decided not to approve charges but
recommended a reference to the Court of Appeal. The appointment of
Mr. Robertson as a special prosecutor was contrary to s. 7 of the Act and his
decision was therefore unlawful.
[106] I grant orders in the nature of certiorari, quashing the appointment by the
ADAG of Mr. Robertson as a special prosecutor under s. 7 of the Crown Counsel Act
to conduct a charge assessment in relation to allegations of criminal misconduct
involving individuals associated with the community of Bountiful, British Columbia;
and orders in the nature of certiorari, quashing the decision of Mr. Robertson as
special prosecutor to approve charges against Mr. Blackmore and Mr. Oler under
s. 293 of the Criminal Code.
“The Honourable Madam Justice Stromberg-Stein”

In The Supreme Court of British Columbia

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IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation: Blackmore v. British Columbia (Attorney

IN THE MATTER OF THE JUDICIAL REVIEW PROCEDURE ACT,

Winston Kaye Blackmore

The Attorney General of British Columbia

James Marion Oler

The Attorney General of British Columbia

Before: The Honourable Madam Justice Stromberg-Stein

Reasons for Judgment

Counsel for the Petitioner, Winston Kaye Bruce Elwood

Counsel for the Petitioner, James Marion Robert V. Wickett

Counsel for the Respondent, The Attorney Craig E. Jones

Counsel for the Special Prosecutor as

Place and Date of Hearing: Vancouver, B.C.

Place and Date of Judgment: Vancouver, B.C.

1. The decision of special prosecutor Richard Peck, Q.C. not to prosecute

2. Alternatively, the Attorney General engaged in conduct or purported to

3. In the further alternative, the prosecution is unfair and is otherwise an

a. a declaration that the directive by the Attorney General (the “AG”) to

b. an order in the nature of certiorari, quashing the appointment by the

c. an order in the nature of certiorari, quashing the decision by

The Crown Counsel Act

2006, recommending that charges of polygamy and sexual exploitation be brought

In compliance with section 5 of the Crown Counsel Act, this letter is my

[16] Mr. Peck's mandate included the following:

Conducting an independent comprehensive legal analysis of all of the

The department chose an independent prosecutor since B.C. Crown lawyers

(Ken MacQueen, “Polygamy May be Legal in Canada under Charter”

applicable in the circumstances. He concluded “polygamy itself is at the root of the

A prosecution would likely face a number of obstacles, resulting in a

In my view, a reference to the BC Court of Appeal – with a probable further

If Mr. Doust concludes as a result of this review that a prosecution for

The serious misconduct in Bountiful will likely continue until the

I have received Mr. Richard C. C. Peck's report entitled Final Report of

Conducting an independent charge assessment review based on the

[32] Whereas Mr. Peck’s mandate was to conduct an independent comprehensive

[33] In August 2008, the RCMP conducted a follow-up investigation.

Position of the Petitioners

[37] In order to avoid the risk, real or perceived, of political interference in a

Position of the Attorney General

there is no reason why the Attorney General should be permitted to transparently

Position of the Special Prosecutor

Statutory Interpretation of Crown Counsel Act

[48] This approach is strengthened by s. 8 of the Interpretation Act, R.S.B.C. 1996

As R. Sullivan explains, the provisions of a statute are presumed to fit

That in recognition of the fundamental importance of the separation of politics

[54] Recommendation #9, at p. 115 of the Owen Report, proposed the

1) That a special prosecutor be appointed in all cases where there is a

administration of criminal justice because of the proximity of the

[57] A number of factors distinguish the appointment of a special prosecutor

Decisions concerning the operation of criminal justice involve important

[62] I disagree with the Attorney General’s characterization of s. 7(5) as a privative

Prosecutorial Discretion and Judicial Review

[64] The decision to prosecute is fundamental to prosecutorial discretion and is

[65] In R. v. Power, L’Heureux-Dubé J. discusses the origins of prosecutorial

[66] Further, at p. 622, L’Heureux-Dubé J. examines the meaning of prosecutorial

32 In "Prosecutorial Discretion" (1987-88), 30 Crim. L.Q. 219, at p. 219,

[68] In Davies, the court addressed prosecutorial independence, at para. 30:

Prosecutorial independence is a cornerstone of our system of criminal justice.

criminal prosecutions have profound effects on persons suspected of crimes,

[70] To insulate a decision to prosecute from real or perceived political or improper

Prerogative Powers and Paramountcy