Winston Kaye Blackmore Petitioner v. The Attorney General of British Columbia, 2015 BCSC 1099

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Blackmore v. British Columbia (Attorney General), 2015 BCSC 1099 Date: 20150625 Docket: S151644 Registry: Vancouver Between: Winston Kaye Blackmore Petitioner And The Attorney General of British Columbia Respondent Before: Associate Chief Justice Cullen Reasons for Judgment Counsel for the Petitioner: J.J. Arvay, Q.C. & A.M. Latimer Counsel for the Respondent: K.A. Horsman, Q.C. & R. Garson Place and Date of Hearing: Vancouver, B.C. June 8, 2015 Place and Date of Judgment: Vancouver, B.C.

June 25, 2015 INTRODUCTION [ 1 ] The petitioner, Winston Blackmore, is charged on an Information with one count that between the 12 th day of October 1990 and on or about the 28 th day of February 2014, at or near Creston, in the Province of British Columbia, he practised a form of polygamy, or practised a kind of conjugal union with [24 named women] contrary to s. 293(1) (

a) of the Criminal Code , R.S.C., 1985. c. C-46. [ 2 ] The Information was sworn on August 1, 2014. [ 3 ] A charge was laid following a charge approval conducted by Peter Wilson, Q.C., who was appointed as a Special Prosecutor under the Crown Counsel Act , R.S.B.C. 1996, c. 87 [ CCA ], by the Assistant Deputy Attorney General (“ADAG”) on January 17, 2012. On January 31, 2012, Mr. Wilson’s mandate was modified to include consideration of polygamy charges. [ 4 ] The appointment of Mr.

Wilson by the ADAG came after the ADAG received directions from the then Attorney General to appoint a Special Prosecutor in connection with the charge approval, on January 9, 2012. [ 5 ] In his petition dated and filed February 27, 2015, Mr. Blackmore challenges the process by which he was charged. The ruling he seeks is set forth in

Part 1, paragraphs 1 to 4, of his petition, as follows: 1. a declaration that the decision of then Assistant Deputy Attorney General, Robert W.G. Gillen, Q.C., on January 31, 2012 to appoint Peter Wilson, Q.C., as a special prosecutor with the mandate to conduct a charge assessment in relation to the polygamy provisions of the Criminal Code with respect to individuals associated in the community of Bountiful is a nullity; 2. an order in the nature of certiorari , quashing the said appointment; 3. an order in the nature of certiorari , quashing the decision by Peter Wilson, Q.C., on August 13, 2014 to approve charges against the petitioner under s. 293 of the Criminal Code of Canada; and

4. costs. [ 6 ] The petition is brought pursuant to the Judicial Review Procedures Act , R.S.B.C. 1996, c. 241 , and involves a consideration of the application of certain provisions of the CCA , pursuant to which Mr. Wilson was purportedly appointed. The cogent provisions of the CCA read as follows: 1 In this Act : "ADAG" means the Assistant Deputy Attorney General, Criminal Justice Branch; … 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. … 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. … 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 Justice, 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). [ 7 ] The circumstances prompting the petition are akin to a previous 2009 application brought before Madam Justice Stromberg- Stein (then of the B.C. Supreme Court) in Blackmore v.

British Columbia (Attorney General) , 2009 BCSC 1299 [ Blackmore No. 1 ]. [ 8 ] In that application, the petitioner and a co-accused, James Oler, contested the jurisdiction of the ADAG under the CCA to appoint a Special Prosecutor, Terrence Robertson, to conduct a charge approval decision with respect to their alleged polygamous behaviour, in the face of an earlier decision by another Special Prosecutor declining to approve charges in the absence of a constitutional reference on the constitutionality of s. 293 . [ 9 ] In the case before her, Justice Stromberg-Stein observed at para. 5 as follows:

[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 [ CCA ], 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. [ 10 ] Those observations are applicable to the present case.

The sole issue here is the jurisdiction of the ADAG, in the prevailing circumstances, to appoint a Special Prosecutor. The petition does not implicate any issue of the procedural or substantive fairness of the decision to prosecute, nor does it engage consideration of the doctrine of abuse of process.

To the extent that those concepts may arise, their consideration and determination is a matter for the trial judge, not for this judicial review. [ 11 ] It is the petitioner’s position that the present circumstances are indistinguishable in principle from those which confronted Justice Stromberg-Stein and accordingly they should lead to the same result: a decision quashing the appointment of the Special Prosecutor and quashing the Special Prosecutor’s decision to approve the polygamy charge against the petitioner.

THE FACTUAL CONTEXT [ 12 ] The parties do not dispute the facts underlying the 2009 decision in Blackmore No. 1 to quash the appointment of Mr. Robertson as Special Prosecutor and his decision to approve charges. They are set out thoroughly in the petitioner’s written submissions at paragraphs 2 to 28 and read as follows (footnotes omitted): 2. In 1990-1992, allegations of polygamy in Bountiful were forwarded to the Royal Canadian Mounted Police (the “RCMP”) and the Attorney General’s ("AG”) office. The RCMP provided a report to the Minister of Attorney General, Criminal Justice Branch (the “CJB”).

The CJB concluded that s. 293 is in conflict with the Canadian Charter of Rights and Freedoms ,

Part 1 of the Constitution Act, 1982 , being

Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 ("the Charter ”) and charges were not approved as it was decided there was no substantial likelihood of conviction. 3. In 1992, the branch obtained an external opinion from Justice Anderson to the same effect. 4. Opinions such as this were widely publicized in the years that followed. 5. In 2001, former Chief Justice McEachern echoed the advice to the Ministry that s. 293 is likely an unjustifiable infringement of the Charter . 6.

In September 2006, the RCMP reported to Crown Counsel on a wide-ranging criminal investigation of possible misconduct by Individuals associated with the community of Bountiful, British Columbia. The Report to Crown Counsel recommended, inter alia , charges of polygamy pursuant to s. 293 of the Criminal Code against Winston Blackmore. Charges were not approved as senior Crown counsel agreed there was no substantial likelihood of conviction. 7.

On May 31, 2007, the AG directed the Assistant Deputy Attorney General (the “ADAG”) to have a charge assessment review conducted of the results of the RCMP Investigation by an experienced criminal lawyer in British Columbia, who was not an employee of the provincial government. 8. Pursuant to the direction from the AG, the ADAG appointed Richard Peck, Q.C. 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.

Section 7 of the Act provides: … 10. Mr.

Peck’s mandate included: a. conducting an independent comprehensive legal analysis of all of the available evidence that has been assembled by the RCMP as well as any other information the CJB 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; b. offering such legal advice as was necessary to the police in the event that further investigation by them was required; c. providing the ADAG with a written report setting out his charge assessment review decision; and d. if in his view a charge was warranted, conducting the prosecution and any subsequent appeal. 11.

At the request of Mr. Peck, this mandate was expanded to include consideration of a recommendation for a constitutional reference, and carriage of such a reference should one proceed. 12. In a decision announced by the CJB on August 1, 2007, Mr. Peck decided, inter alia , that there would be no criminal charges laid in connection with the investigation, meaning, in light of the Report to Crown Counsel, no charges against Mr. Blackmore under s. 293 of the Code . 13. 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. 14. 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. 15. 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. 16. Mr. Peck’s decision not to approve charges against any individual in Bountiful and to recommend a reference to the BC Court of Appeal was within his mandate as special prosecutor. 17. On September 6, 2007, the AG directed the ADAG to retain Leonard Doust, Q.C., to review Mr. Peck’s analysis, and if Mr.

Doust concluded as a result of this review that a prosecution for offences of polygamy meets the CJB’s charge approval policy, to conduct the prosecution arising from the related police investigation on the offences of polygamy only. Pursuant to the direction from the AG, the ADAG designated Mr. Doust as Crown counsel under s. 4 of the Act to review Mr. Peck’s analysis, and if Mr.

Doust concluded as a result of this review that a prosecution for offences of polygamy meets the CJB’s charge approval policy, to conduct the prosecution arising from the related police investigation on the offences of polygamy only. 18. In a report announced by the CJB on April 7, 2008, Mr. Doust confirmed the findings and recommendations of Mr. Peck, and decided not to prosecute the alleged offences of polygamy against Mr. Blackmore or Mr. Oler. 19. Mr. Doust elaborated on Mr.

Peck’s concerns noting: At the least, if the Supreme Court of Canada decides that s. 293 is constitutionally valid, then its decision will serve as very clear notice to all with respect to future conduct, leaving any violations of s. 293 to be fully and properly prosecuted. 20. In the

summary of his reasons, he outlined fairness concerns with a criminal prosecution including: 1. The serious misconduct in Bountiful will likely continue until the constitutionality of s. 293 is authoritatively decided by the Supreme Court of Canada. This is so because: (

a) members of the Bountiful community likely will not perceive real jeopardy in practising polygamy unless and until the Supreme Court of Canada conclusively holds that s. 293 is constitutional; and (

b) the government of Canada likely will not consider new legislation to address the problem of polygamy unless and until the Supreme Court of Canada conclusively holds that s. 293 is unconstitutional. 2. A reference will bring the question of s. 293 's constitutionality to the Supreme Court of Canada much faster that [sic] a prosecution. This is so because: (

a) a reference will be narrowly focussed, isolating the constitutional issue and the evidence in relation to it; (

b) a reference will start in the Court of Appeal instead of the trial court, saving at least a year and probably much more given the near certainty of pre-trial matters and motions; and (

c) in the case of a reference, there will be no need to wait for leave to appeal to the Supreme Court of Canada, potentially saving more than six months. 3. A reference will also avoid several possible pitfalls of a prosecution, namely: (

a) historical legal opinions that s. 293 is unconstitutional being in evidence before the trial court as part of a motion alleging abuse of process; (

b) on appeal, the need to abide by the trial court's findings of fact on the social science evidence, which findings might hamper efforts to justify s. 293 under s. 1 of the Charter ; and (

c) the possibility of s. 293 being read down in the Supreme Court of Canada, which could necessitate a new trial and render the earlier trial a waste. 4. 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. 21. 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 CJB 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 is 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. 22. On the basis that he disagreed with the decisions of Mr. Peck and Mr. Doust not to prosecute, the AG directed the ADAG on May 28, 2008, to retain Terrence L.

Robertson, Q.C., to conduct a charge assessment of the RCMP investigation into polygamy in the community of Bountiful and, if Mr. Robertson concluded that charges should be approved, to conduct the prosecution. 23. Pursuant to the direction from the AG, the ADAG appointed Mr. Robertson on June 2, 2008, as a special prosecutor under s. 7 of the Act to conduct a charge assessment in relation to the allegations of criminal misconduct involving individuals associated with the community of Bountiful, British Columbia. Mr.

Robertson’s mandate included: a. conducting an independent charge assessment review based on the results of the RCMP investigation, the materials assembled by the CJB and any other information that the investigating officers may provide to him; b. offering such legal advice as is necessary to the police in the event that further investigation by them is required; c. providing the ADAG with a written report setting out his charge assessment decision; and d. if in his view a charge is warranted, conducting the prosecution and any subsequent appeal. 24.

In a decision announced by the Ministry of the Attorney General on January 7, 2009, Mr. Robertson approved charges against Mr. Blackmore and Mr. Oler under s. 293 of the Code . Thereafter, Mr. Robertson assumed conduct of a prosecution of Mr. Blackmore and Mr. Oler. 25. On January 6, 2009, an Information was sworn in Cranbrook alleging one count of polygamy against Winston Kaye Blackmore, Court File number 27165.

The Information read as follows: Winston Kaye BLACKMORE, between on or about May 1, 2005 and on or about December 8, 2006, at or near Creston, in the Province of British Columbia, practised a form of polygamy, or practised a kind of conjugal union with Christina Maud Blackmore, Mary Anne Blackmore, Marjorie Johnson, Susan Eleene Gallup, Harmony Quinton, Marsha Carol Chatwin, Zelpha Chatwin, Ruth Ann Lane, Diana Lynn Lane, Edith Louise Barlow, Leah Barlow, Marlina Fischer, Janelle Lona Fischer, Jennifer Johnson, Susie Lorraine Johnson, Shalina Ann Palmer, Luella Elise Barlow, Sharon Johnson, Marie Steed, contrary to Section 293(1) (

a) of the Criminal Code . 26. On the same date, an Information was also sworn alleging one count of polygamy against James Marion Oler, Court File number 27166. 27. Subsequently, on February 5, 2009, a two count C Information was sworn in Cranbrook alleging one count of polygamy against Winston Kaye Blackmore and one count of polygamy against James Marion Oler, Court file number 27165C. The Information, with respect to the petitioner, was in identical terms as the Information laid on January 6, 2009. 28. The petitioner sought judicial review of Mr.

Robertson’s appointment and decision to approve charges against the petitioner. [ 13 ] In Blackmore No. 1 , Justice Stromberg-Stein found that Mr. Robertson’s mandate as a Special Prosecutor “was essentially the same mandate as Mr. Peck’s. Mr. Robertson 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” (at para. 32). [ 14 ] Stromberg-Stein J. articulated the issues before her at para. 34 as follows: [34] What is the meaning of the word “final” in s. 7(5) of the [ CCA ]? 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 [ CCA ] and was his decision to charge the petitioners unlawful?

[15] In coming to her conclusion as to the meaning of the word “final”, at para. 53 Justice Stromberg-Stein considered the discretionto prosecute inquiry (the “Owen Report”) referring, inter alia, to recommendation three at page 97 of the report, which reads as follows: That in recognition of the fundamental importance of the separation of politics from the administration of justice, and given the dual roleof the Attorney General as both a politician and the senior justice administrator in the province, a special prosecutor process should beinstituted for political or other sensitive cases, as set out in Recommendation #9 below. [16] At para. 54, Stromberg-Stein J. also referenced recommendation number nine at page 115 of the Owen Report which proposedthe appointment of a Special Prosecutor 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 theadministration of criminal justice because of the proximity of the suspect, or someone with a close relationship to the suspect, to theinvestigation, charge approval or prosecution processes.

Such cases would include those involving cabinet ministers, senior publicofficials 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 bythe 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 theinformation and conduct the prosecution where this decision is made; and to provide adequate reasons to the police, the victim or othersignificantly 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 appointedand have the responsibility to do so where appropriate in the public interest; but that any such intervention or direction to a specialprosecutor must be made public and that full written reasons for the direction or intervention must be published in the official Gazetteand placed before the Legislature at the earliest appropriate opportunity. [17] After noting that the CCA incorporated Mr.

Owen’s recommendations “except that the appointment of a special prosecutor ismade by the ADAG” (at para. 55), Justice Stromberg-Stein went on to hold at para. 56 as follows: [56] The Attorney General, pursuant to the Act, can direct the ADAG with respect to the approval or conduct of a specific prosecution solong 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 mayappoint 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 specialprosecutor is not subject to direction from the Criminal Justice Branch unlike an ad hoc prosecutor.

The Act provides that the decision ofthe 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 theGazette, with respect to any matter within the special prosecutor’s mandate: s. 7(4). [18] In the present case, the petitioner questions whether the CCA confers authority on the Attorney General to direct the ADAG toappoint a Special Prosecutor and whether Mr. Wilson’s appointment was lawful on that basis.

The petitioner did not raise that issue inhis petition. It does not appear that the issue of the lawfulness of the Attorney General’s authority to direct the ADAG to appoint aSpecial Prosecutor under the CCA was raised before Justice Stromberg-Stein. Although it was raised before me in oral argument, it wasnot fully nor properly argued.

In light of the reasoning and recommendations of the Owen Report, in light of the provisions of the CCA,s. 7(1) in particular, and in light of the Attorney General’s authority to act notwithstanding the report of a Special Prosecutor, a challengeto the lawfulness of such a direction might encounter success. It would not be appropriate, however, to attempt to resolve that issue inthe present case. Even if the petitioner is correct that Mr. Wilson’s appointment was unlawful, it would follow that Mr.

Peck’sappointment would equally be unlawful as he was similarly appointed by the ADAG following a direction by the then Attorney General. In those circumstances, the question of the “finality” of Mr.

Peck’s decision would be moot and the essential basis for this petition wouldbe academic. [19] At para. 61 of Blackmore No. 1, Justice Stromberg-Stein noted the Attorney General’s argument before her that the concept offinality serves as emphasis that the conduct of a prosecution is free from direction except as provided for in ss. 5 and 7(4) of the CCA,and further that the word “final” in s. 7(4) is a privative clause limiting review for the Special Prosecutor similar to that enjoyed byCrown Counsel at common law. [20] She rejected those arguments, holding that the object and purpose of the CCA is “to enhance public confidence in prosecutorialdecision-making” by ensuring that a Special Prosecutor’s decision cannot “be revisited by successive special prosecutors, on the samemandate, until a decision has reached that the Attorney General publicly prefers” (at para. 62). [21] At paras. 64-69, Justice Stromberg-Stein recognized that courts have been very reluctant to interfere with the exercise ofprosecutorial discretion, citing R. v.

Power, (SCC), [1994] 1 S.C.R. 601; Kreiger v. Law Society of Alberta, 2002 SCC65; British Columbia (Attorney General) v. Davies, 2009 BCCA 337; and R. v. Port Chevrolet Oldsmobile Ltd., 2009 BCCA 357.

Shenoted the Court “should not engage in the process of judicial screening of the Attorney General’s exercise of prosecutorial discretion indeciding whether to commence a prosecution” (at para. 69). [22] She concluded however, that “[i]n essence the [CCA] limits or restricts the Attorney General’s prerogative powers to decidewhether to prosecute in cases where the ADAG determines that the appointment of a special prosecutor is warranted in the publicinterest” (at para. 70).

In other words, the CCA makes the Attorney General’s prerogative powers to decide whether to prosecute in thosecircumstances subject to written directions published in the Gazette under s. 7(4). [23] In the case before Justice Stromberg-Stein, there was no intervention by the Attorney General under s. 7(4) of the CCA. Accordingly, she concluded: “What is at issue here is not prosecutorial discretion because that discretion was delegated to the specialprosecutor. The issue here is the Attorney General’s directions pursuant to the Act” (at para. 72). She went on to reject an argument thatMr.

Peck’s decision was not “final” but “subject to the outcome of a reference” finding that as “Mr. Peck’s mandate was expanded to

include consideration of a reference” his decision was made under the authority of the CCA and was subject to the finality clause (at paras. 80-82). [ 24 ] Justice Stromberg-Stein also rejected an argument that Mr. Robertson had a new mandate. That argument proceeded on the basis that Mr. Peck was functus and his mandate expired because the Lieutenant Governor was not going to pursue a reference. It was also argued that s. 7(4) and 7(5) “cease to be operable at the end of the mandate” (at para. 84).

Stromberg-Stein J. found those arguments to be “inconsistent with the context and legislative history of the [ CCA ]” (at para. 85). [ 25 ] In response to an argument that Mr. Robertson made a decision to prosecute following a new investigation by the RCMP detailed in a report dated November 25, 2008, Stromberg-Stein J. concluded that “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” (at para. 87). [ 26 ] Justice Stromberg-Stein found that “[w]ith 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” (at para. 93). [ 27 ] She held that Mr. Robertson’s appointment was a violation of s. 7(5) of the CCA because it did not accept the finality of Mr. Peck’s decision not to prosecute without a reference. She held it was “inconsistent with the [ CCA ] for the Attorney General to seek the appointment of successive prosecutors to get a desired result” (at para. 95).

Justice Stromberg-Stein elaborated on the basis for her decision at paras. 98 and 99 as follows: [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 [ CCA ] seeks to avoid in order to maintain public confidence in the administration of criminal justice in this province. [99] The [ CCA ] 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. [ 28 ] The Attorney General did not appeal Justice Stromberg-Stein’s decision, which was rendered on September 23, 2009. The Information approved by Mr. Robertson was stayed by the then ADAG on October 20, 2009. On October 21, 2009, the ADAG instructed Mr.

Robertson not to appeal the ruling and “to take no further action with respect to his mandate”. On the same date, he directed Mr. Peck not to proceed any further with the matter pursuant to his previous mandate letters of June 5, 2007, and June 23, 2007. Those directions were made in writing and gazetted pursuant to s. 7(4) of the CCA . [ 29 ] On October 22, 2009, the then Attorney General announced that he had asked counsel to the Ministry of the Attorney General to request the B.C. Supreme Court’s direction on two reference questions with respect to polygamy.

In Reasons released on November 23, 2011, Reference re:

Section 293 of the Criminal Code of Canada , 2011 BCSC 1588 [ Reference re: s. 293 ], Bauman C.J.S.C. (as he then was) upheld the constitutionality validity of s. 293 of the Criminal Code . [ 30 ] Under s. 1 of the Constitutional Question Act , R.S.B.C. 1996, c. 68, the Lieutenant Governor in Council “may refer any matter to the Court of Appeal or to the Supreme Court for hearing and consideration, and the Court of Appeal or the Supreme Court must then hear and consider it.” [ 31 ] The reference was made to the Supreme Court, rather than the Court of Appeal, according to the then Attorney General, to provide “the option to introduce evidence and witnesses which will put a human face on polygamy in contrast to the more abstract nature of a reference to the British Columbia Court of Appeal.” [ 32 ] The Attorney General for B.C. and the Attorney General for Canada supported the constitutionality of the provision and a court-appointed amicus curiae presented and argued the case against its constitutionality. [ 33 ] Eleven interested parties including the Fundamentalist Church of Jesus Christ of Latter Day Saints (“FLDS”) and James Oler, as Bishop of the FLDS, participated in the reference.

The petitioner applied for but was denied standing as a party. He elected not to participate in the proceedings as an interested person which would have enabled him to adduce evidence and make argument. [ 34 ] A significant quantity of evidence was heard on the reference, including from the FLDS congregation. Evidence adduced in the reference established that young girls (as young as 12) were moved between Bountiful, B.C. and FLDS communities in the United States for the purpose of marriage to older men.

In finding s. 293 of the Criminal Code constitutional, Chief Justice Bauman concluded that although it violated freedom of religion under s. 2(

a) of the Charter , it was justified under s. 1 because there is “a reasoned basis for the apprehension that polygamy (especially polygyny) is inherently harmful to the participants, to their offspring and to society generally” (at para. 1182). [ 35 ] Chief Justice Bauman summarized the apprehended harm at paras. 779 to 793 of his Judgment as follows: [779] Drawing on principles of evolutionary biology tested against evidence from psychology, anthropology, economics and other disciplines, Dr. Henrich posits that polygyny has a number of predictable effects:

a) It creates a pool of unmarried men with the attendant increase in crime and anti-social behaviour;

b) The increased competition for women creates pressure to recruit increasingly younger brides into the marriage market;

c) This competition causes men (as fathers, husbands and brothers) to seek to exercise more control over the choices of women, increasing gender inequality and undermining female autonomy and rights. This is exacerbated by larger age disparities between

husbands and wives in both polygynous and monogamous relationships; and

d) Men reduce investment in wives and offspring as they spread their resources more thinly across larger families and increasingly channel those resources into obtaining more wives. [780] Male control features prominently in Dr. Grossbard’s economic analysis of polygyny. That analysis reveals that while polygyny increases the value of women in the marriage market, women do not realize the added value since men manipulate social institutions in ways that facilitate their control of women.

These institutions include early and arranged marriages, the payment of brideprice, easy divorce and the devaluing of romantic love. Among the costs are depressed mental health for women and poorer outcomes for their children. [781] These and other harms recur consistently in the social science literature. [782] Women in polygynous relationships are at an elevated risk of physical and psychological harm. They face higher rates of domestic violence and abuse, including sexual abuse. Competition for material and emotional access to a shared husband can lead to fractious co- wife relationships.

These factors contribute to the higher rates of depressive disorders and other mental health issues that women in polygynous relationships face. They have more children, are more likely to die in childbirth and live shorter lives than their monogamous counterparts. They lack reproductive autonomy, and report high rates of marital dissatisfaction and low levels of self-esteem. They also fare worse economically, as resources may be inequitably divided or simply insufficient. [783] Children in polygynous families face higher infant mortality, even controlling for economic status and other relevant variables.

They tend to suffer more emotional, behavioural and physical problems, as well as lower educational achievement. These outcomes are likely the result of higher levels of conflict, emotional stress and tension in polygynous families. In particular, rivalry and jealousy among co-wives can cause significant emotional problems for their children. The inability of fathers to give sufficient affection and disciplinary attention to all of their children can further reduce children’s emotional security.

Children are also at enhanced risk of psychological and physical abuse and neglect. [784] Early marriage for girls is common, frequently to significantly older men. The resultant early sexual activity, pregnancies and childbirth have negative health implications for girls and also significantly limit their socio-economic development. Shortened inter-birth intervals pose a heightened risk of problems for both mother and child. [785] The sex ratio imbalance inherent in polygyny means that young men are forced out of polygamous communities to sustain the ability of senior men to accumulate more wives.

These young men and boys often receive limited education as a result, and must navigate their way outside their communities with few life skills and little social support. [786] Another significant harm to children is their exposure to, and potential internalization of, harmful gender stereotypes. [787] Polygyny has negative impacts on society flowing from the high fertility rates, large family size and poverty associated with the practice. It generates a class of largely poor, unmarried men who are statistically predisposed to violence and other anti-social behaviour.

Polygyny also institutionalizes gender inequality. Patriarchal hierarchy and authoritarian control are common features of polygynous communities. [788] A great many of the foregoing effects are not limited to particular cultures or geographic locations; they are universal. Dr. McDermott’s statistical analysis of polygyny reveals that throughout the world, women in polygynous societies sustain more physical and sexual abuse. They have more children, are more likely to die in childbirth and live shorter lives than their monogamous counterparts.

They are more likely to be subject to sex trafficking and genital mutilation. They receive less equal treatment than men and encounter more discrimination under the law. [789] Girls are less likely to be educated, restricting a key factor allowing for upward mobility and economic independence. Up to half of the boys in highly polygynous societies are ejected from their communities with incalculable negative effects. [790] Individuals in polygynous societies tend to have fewer civil liberties than their counterparts in societies which prohibit the practice.

Polygynous states spend more on defence on average, leaving fewer resources for domestic infrastructure and projects geared toward health and education. [791] Moving closer to home, these harms are consistent with what clinical experts in North America have observed in their patients from polygynous backgrounds. Dr. Beall spoke of PTSD and other mental health conditions in his patients from fundamentalist Mormon communities. Dr. Stickevers’ Muslim patients in polygynous relationships had higher rates of depression and anxiety and lower levels of self-esteem than her monogamously married patients. Dr.

Hassouneh’s Muslim patients had similar symptoms. [792] The evidence of the witnesses who recounted their personal experiences living in polygynous families put a human face on many of the harms identified by the experts and in the social science literature. To be fair, some of these witnesses related positive experiences with polygyny.

However, their accounts stand against the overwhelming weight of the evidence that polygyny has harmful consequences for both the individuals involved and the societies of which they are a part. [793] Finally, the evidence relating to Bountiful reveals higher rates of teen pregnancy, the movement of young girls between the community and the United States for the purpose of marriage, and poorer educational outcomes. [Emphasis in original.] [ 36 ] The amicus curiae elected to not appeal the decision in Reference re: s. 293 .

No other participant attempted to bring an appeal. [ 37 ] In addition to Reference re: s. 293 , which involved evidence adduced in relation to the apprehended harm of polygamy and Chief Justice Bauman’s determinations based on that evidence, there were other salient events that post-dated Mr. Peck’s report. When

Mr. Blackmore was arrested in 2009, he provided a statement comprising a 99-page transcript. In 2011, investigators from British Columbia travelled to Texas to examine evidence which had been seized by Texas authorities during a search of the Yearning for Zion (“YFZ”) ranch in Eldorado, Texas. The YFZ ranch was an FLDS community and in fact was the “FLDS headquarters.” Documents “of significance to polygamy” were among the material seized and according to the affidavit of Sergeant Terry Jacklin, sworn April 10, 2015, included “marriage records in relation to the polygamists’ unions alleged against Mr.

Blackmore.” [ 38 ] Following his appointment as Special Prosecutor in January 2012, Mr. Wilson received two Reports to Crown Counsel, the first in July 2013 and the second in January 2014. Although the Reports included material upon which Mr. Peck had relied in making his report and recommendations, there was additional evidence as well, including witness statements taken in 2012 and 2013, as well as the YFZ materials and Mr.

Blackmore’s statement. [ 39 ] When the Attorney General directed the ADAG to appoint a Special Prosecutor on January 9, 2012, following Reference re: s. 293 , she wrote in part as follows: The Deputy Attorney General has told me that Mr. Peck has confirmed to you that he is not prepared to carry on with the mandate as Special Prosecutor.

Therefore pursuant to s. 5 of the Crown Counsel Act , I direct you to appoint a new Special Prosecutor respecting the possible prosecution of sexual exploitation and other alleged offences against minors connected with members of Bountiful from the early 1980s to the present. [ 40 ] On January 18, 2012, the Criminal Justice Branch issued a media statement announcing the appointment of Mr. Wilson. The press release included the following: Mr.

Wilson’s mandate includes the following: • Offering such legal advice as is necessary to the police in their continuing investigation; • If a Report to Crown Counsel is forwarded to him as a result of that investigation, conducting an independent charge assessment of that report, the materials assembled by the Criminal Justice Branch and any other information that the investigating officers may provide to him for his consideration and making the charging decision he deems appropriate in the exercise of his independent prosecutorial discretion; • As part of any charge assessment, considering, if the evidence supports it, the possible prosecution of sexual exploitation and other alleged offences against minors by individuals associated with the community of Bountiful, from the early 1980s to the present which may include;

Section 271 of the Criminal Code (Sexual assault),

Section 151 of the Criminal Code (Sexual interference)

Section 152 of the Criminal Code (Invitation to sexual touching),

Section 153 of the Criminal Code (Sexual exploitation of a young person),

Section 170 of the Criminal Code (Parent or guardian procuring prohibited sexual activity),

Section 171 of the Criminal Code (Householder permitting prohibited sexual activity), Such other similar offences as may have existed under the provisions of the Criminal Code from time to time during the period covered by the police investigation,

Section 14 of the Child, Family and Community Service Act (Failure to report a child in need of protection), and Any criminal or other statutory offences involving or related to unlawful cross border movement of children; • Providing the Assistant Deputy Attorney General a written report with the reasons for any charging decision; • If in his view a prosecution is warranted, conducting the prosecution and any subsequent appeals; and • Providing 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.

At this time Mr. Wilson’s mandate does not include consideration of polygamy related offences. As this matter involves an ongoing police investigation no additional public statements will be made by either the Criminal Justice Branch or Mr. Wilson at this time. [ 41 ] As earlier noted, on January 31, 2012, Mr.

Wilson’s mandate was expanded, apparently by the ADAG without written direction from the Attorney General, to “include possible polygamy prosecutions.” [ 42 ] In a press release dated March 26, 2012, the then Attorney General advised that there will be no further reference to “a higher court” stating: Legal counsel have advised me [ Reference re: s. 293 ] will enable police and prosecutors to act with authority in investigating and prosecuting criminal polygamist relationships.

While the decision of a higher court may be more persuasive in case law, the government does not believe a referral decision is necessary.

[ 43 ] Each of Mr. Peck, Mr. Robertson, and Mr. Wilson were tasked with determining whether to approve charges for polygamy. [ 44 ] The British Columbia, Ministry of Justice, Crown Counsel Policy Manual: Charge Assessment Guidelines (2 October 2009) [ Charge Assessment Guidelines ], under which a prosecutor, including a Special Prosecutor, makes his or her decision to approve or decline to approve a charge, contemplates a two-prong test.

The test reads (so far as applicable) as follows: Under the Crown Counsel Act , Crown Counsel have the responsibility of making a charge assessment decision which determines whether or not a prosecution will proceed. In discharging that charge assessment responsibility, Crown Counsel must fairly, independently, and objectively examine the available evidence in order to determine: 1. whether there is a substantial likelihood of conviction; and, if so, 2. whether a prosecution is required in the public interest.

A substantial likelihood of conviction exists where Crown Counsel is satisfied there is a strong, solid case of substance to present to the Court. Once Crown Counsel is satisfied that there is a substantial likelihood of conviction (the evidentiary test), Crown Counsel must determine whether the public interest requires a prosecution by considering the particular circumstances of each case and the legitimate concerns of the local community. Public interest factors include those outlined below. Exceptional circumstances may require that a prosecution proceed even though the usual evidentiary test is not satisfied.

Such circumstances will most often arise in cases of high risk violent or dangerous offenders or where public safety concerns are of paramount consideration. In these cases, charging decisions must be approved by Regional or Deputy Regional Crown Counsel and the evidentiary test is whether Crown Counsel is satisfied that there is a reasonable prospect of conviction. [ 45 ] In the discussion

section under the heading “Public Interest Test” in the Charge Assessment Guidelines , it appears clear that the public interest test is not considered unless and until the first prong − the substantial likelihood of conviction test − is met. In that same discussion portion of the Charge Assessment Guidelines , factors in favour of prosecution and factors against prosecution are listed. The factors listed in favour of prosecution read as follows: Once Crown Counsel is satisfied that the evidentiary test is met, Crown Counsel must determine whether the public interest requires a prosecution.

Hard and fast rules cannot be imposed as the public interest is determined by the particular circumstances of each case and the legitimate concerns of the local community. In making this assessment, the factors which Crown Counsel will consider include the following: 1. Public Interest Factors in Favour of Prosecution It is generally in the public interest to proceed with a prosecution where the following factors exist or are alleged; (

a) the allegations are serious in nature; (

b) a conviction is likely to result in a significant sentence; (

c) considerable harm was caused to a victim; (

d) the use, or threatened use, of a weapon; (

e) the victim was a vulnerable person, including children, elders, spouses and common law partners (see policies ABD 1, CHI 1, ELD 1 and SPO 1); (

f) the alleged offender has relevant previous convictions or alternative measures; (

g) the alleged offender was in a position of authority or trust; (

h) the alleged offender’s degree of culpability is significant in relation to other parties; (

i) there is evidence of premeditation; (

j) the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor (see policy HAT 1); (

k) there is a significant difference between the actual or mental ages of the alleged offender and the victim; (

l) the alleged offender committed the offence while under an order of the Court; (

m) there are grounds for believing that the offence is likely to be continued or repeated; (

n) the offence, although not serious in itself, is widespread in the area where it was committed; (

o) the need to protect the integrity’ and security of the justice system and its personnel; (

p) the offence is a terrorism offence;

(

q) the offence was committed for the benefit of, at the direction of or in association with a criminal organization. [ 46 ] The factors listed against prosecution are as follows: 2. Public Interest Factors Against Prosecution It may not be in the public interest to proceed with a prosecution where the following factors exist or are alleged: (

a) a conviction is likely to result in a very small or insignificant penalty: (

b) there is a likelihood of achieving the desired result without a prosecution by the Criminal Justice Branch. This could require an assessment of the availability and efficacy of any alternatives to such a prosecution, including alternative measures, non-criminal processes or a prosecution by the Federal Prosecution Service. Crown Counsel need not conclude, in advance, that a prosecution must proceed in the public interest if a referral for an alternative measure is not acceptable. Information with respect to the suitability of a candidate for diversion or alternative measure is a factor to be taken into consideration by Crown Counsel in reaching a final charge assessment decision; (

c) the offence was committed as a result of a genuine mistake or misunderstanding (factors which must be balanced against the seriousness of the offence); (

d) the loss or harm can be described as minor and was the result of a single incident, particularly if caused by misjudgment; (

e) the offence is of a trivial or technical nature or the law is obsolete or obscure. [ 47 ] The Guidelines also list “Additional Factors to be Considered in the Public Interest”. They read as follows: 3. Additional Factors to be Considered in the Public Interest (

a) the youth, age, intelligence, physical health, mental health, and other personal circumstances of a witness or victim; (

b) the personal circumstances of the accused, including his or her criminal record; (

c) the length and expense of a prosecution when considered in relation to the social benefit to be gained by it; (

d) the time which has elapsed since the offence was committed; (

e) the need to maintain public confidence in the administration of justice. [ 48 ] It is from this factual background, and with these Charge Assessment Guidelines in mind, that I now address the submissions of the parties in this petition. POSITION OF THE PARTIES The Position of the Petitioner [ 49 ] The petitioner says Mr. Wilson’s appointment was invalid for several interrelated reasons. At its base, the petitioner’s argument is that Mr. Peck’s decision was final and that the appointment of Mr. Wilson to pursue a mandate that was essentially the same as that of Mr.

Peck runs afoul of s. 7(5) of the CCA . [ 50 ] The petitioner relies on Blackmore No. 1 for the proposition that Mr. Peck’s role was not simply advisory, but was to make a final decision on matters that were the subject of his mandate. Under s. 7 of the CCA , a final decision of a Special Prosecutor is subject only to an appeal by a law enforcement officer if the Special Prosecutor decides not to approve charges. [ 51 ] In this case, the petitioner submits that Mr.

Peck’s decision not to prosecute Bountiful community members was grounded in a finding that prosecution would not be in the public interest for two reasons: 1. The public interest would be best served by an authoritative and expeditious judicial resolution of the legal controversy surrounding polygamy by way of a reference to the BC Court of Appeal. 2.

Such a reference was needed to provide “fair notice” to Bountiful community members that the practice of polygamy must cease in the event s. 293 of the Criminal Code was upheld as constitutional. [ 52 ] The petitioner acknowledges that the suggested reference to the Court of Appeal was a recommendation; however, he submits it was central to Mr. Peck’s decision not to approve charges. [ 53 ] The petitioner states that this decision was final, relying on the clear wording of s. 7(5) of the CCA . To give meaning to this

section in the circumstances, he submits, a subsequent Special Prosecutor could not receive a mandate to consider approving charges for polygamy for any period of time prior to the conclusion of the recommended reference.

Any such mandate would not be “new” and would be invalid pursuant to s. 7(5) of the CCA . [ 54 ] The petitioner submits that the once a Special Prosecutor has rendered a final decision the Attorney General may ask the Special Prosecutor to reconsider his or her decision in light of new evidence or written material outlining the Government’s perspective, but that the Attorney General could neither direct the Special Prosecutor to accept this perspective, nor reverse the Special Prosecutor’s decision.

Further, the finality of the Special Prosecutor’s decision cannot be frustrated by the appointment of successive Special Prosecutors with essentially the same mandate. [ 55 ] Although, the petitioner recognizes that the determination of whether it is in the public interest to prosecute Bountiful community members cannot be frozen in time by the decision of Mr. Peck, he submits that Mr. Peck’s decision would be rendered meaningless if subsequent Special Prosecutors could approve charges for “past acts of polygamy” following Reference re: s. 293 . This, he submits, would be contrary to Mr.

Peck’s finding that a prosecution would not be in the public interest due to the need to give “fair notice” to individuals in Bountiful. The petitioner bolsters his argument on this point by suggesting the decision of Chief Justice Bauman in Reference re: s. 293 , was not the authoritative reference contemplated by Mr. Peck, because it was rendered by a lower court and Mr. Blackmore was denied party standing. [ 56 ] Turning then to an assessment of Mr. Wilson’s mandate, the petitioner submits that it was essentially the same as the mandate given to Mr. Peck, and fatally, allowed Mr.

Wilson to consider approving charges against individuals in Bountiful for acts of polygamy that predate Reference re: s. 293 . The petitioner argues that new evidence gathered concerning past acts of polygamy prior to Reference re: s. 293 and the Reference re: s. 293 decision itself do not transform this essentially similar mandate into a new mandate. He argues this intrusion into the area of Mr. Peck’s final decision is sufficient to render Mr. Wilson’s appointment invalid, since the Court is not entitled to read down the mandate given to Mr.

Wilson to narrow its scope to a non-intrusive mandate covering only the period following the Reference re: s. 293 . [ 57 ] The petitioner says that given the invalidity of Mr. Wilson’s mandate and appointment, he was without authority when he decided to approve charges against Mr. Blackmore. He submits the Legislature was clear in enacting s. 7 of the CCA that Mr. Peck’s decision was to be accepted and treated as final. This, he says, is all part of the object and purpose of the Act to enhance public confidence in the independence of prosecutorial decision-making, as discussed in Blackmore No. 1 at para. 62.

Finally, he highlights the importance of upholding the public confidence in this regard, relying on British Columbia (Attorney General) v. Davies , 2009 BCCA 337 at paras. 61-62 and 65 : [61] In assessing what limits ought to be placed on the scope of inquiries, however, the courts must be alive to the very real need for public confidence in the prosecutorial system. Prosecutorial independence is, undoubtedly, a sacrosanct value. That does not mean, however, that all attempts to establish a form of public accountability for exercises of prosecutorial discretion ought to be eschewed.

In recent years, legal systems have recognized the need for some methods by which the Crown can account to the public for its exercises of prosecutorial discretion, without interfering with prosecutorial independence. [62] The need has been seen as particularly acute in high-profile cases where decisions have been made not to proceed with charges. In England, under the Prosecution of Offences Act 1985 (UK), 1985, c. 23, courts have found a limited duty on prosecutorial authorities to provide reasons for non-prosecution decisions, and a concomitant right to judicial review: R. v.

Director of Public Prosecutions, Ex p. Manning , [2001] Q.B. 330 (D.C.). … [65] Protection of prosecutorial independence should not be compromised; nonetheless, the courts must recognize that in a system in which prosecutorial discretion is generally exercised outside of the public gaze, mechanisms for public accountability ought not lightly be discarded.

The Position of the Respondent [ 58 ] The respondent accepts the reasoning of Justice Stromberg-Stein in Blackmore No. 1 , to the effect that the objective of the CCA to avoid the appearance of political interference in the charge approval process would be defeated “if there was no finality to a charge approval decision by a special prosecutor”.

The respondent, however, relies upon Stromberg-Stein J.’s expressed recognition in para. 99 of Blackmore No. 1 (quoted above) that the appointment of successive Special Prosecutors may be lawful where there is a change in circumstances. [ 59 ] The respondent notes that the focus of the petition is on the mandate given to Mr. Wilson by the ADAG on January 31, 2012, to conduct a charge assessment in relation to polygamy offences and any ensuing prosecution. Counsel for the respondent also notes that there were two distinct acts which the petitioner appears to impugn.

The first was the Attorney General’s direction to the ADAG to appoint a Special Prosecutor to consider criminal charges other than polygamy in light of new information which “emerged from the polygamy reference and subsequent RCMP investigation”. As mentioned earlier, whether the direction of the Attorney General runs afoul of the CCA was not fully argued before me, and I leave this issue for another day. The second impugned act was the ADAG’s appointment of Mr. Wilson with a mandate reflecting the AG’s direction and the ADAG’s subsequent expansion of Mr.

Wilson’s mandate pursuant to s. 7(2) of the Act to include consideration of polygamy related offences on January 31, 2012. This act remains the focus of the present inquiry. [ 60 ] The respondent emphasizes that nothing done by Mr. Wilson “because of fairness concerns or otherwise” is at issue within this petition because those are acts of prosecutorial discretion. Judicial intervention with

an act to prosecutorial discretion is only available through the abuse of process doctrine if it is established on the balance of probabilities that the decision to approve a charge was conducted in a manner that “is egregious and seriously compromises trial fairness and/or the integrity of justice system”: R. v. Anderson , 2014 SCC 41 at para. 50 . The respondent submits any such argument would be confined to the trial court. [ 61 ] The respondent says that the petitioner’s argument depends on an

interpretation of “final” in s. 7(5) of the CCA that is not supported by the CCA or in Blackmore No. 1 . The respondent notes that Stromberg-Stein J. acknowledged the residual responsibility of the Attorney General “‘to intervene in the public interest and on the public record’ by means of further directions, in writing and Gazetted” (at para. 71). The respondent says that the Deputy Attorney General’s written gazetted direction in October 2009 to Mr. Peck under s. 7(4) of the CCA brought to an end whatever subsisting mandate “Mr. Peck had as of his 2007 appointment”. The respondent says s. 7(4) justifies the appointment of successive Special Prosecutors if in writing and gazetted.

[ 62 ] The respondent submits that in any event there was an intervening fundamental change in the circumstances between Mr. Peck’s appointment in 2007 and Mr. Wilson’s appointment in 2012 which justified the appointment of “successive special prosecutors”. In particular, the respondent submits “[t]he constitutional clarity brought about by [ Reference re: s. 293 ], the renewed RCMP investigation after the Reference judgment; the new and different evidence; the prospect of criminal charges for other polygamy related sexual offences in Bountiful, and Mr.

Peck’s confirmation that he no longer considered himself engaged as a Special Prosecutor in these matters”, amount to a change in circumstances. [ 63 ] The respondent notes the offence alleged in the Information approved by Mr. Wilson extends seven years beyond the circumstances considered by Mr. Peck in 2007 and it “cannot conceivably be relied on even on the petitioner’s theory of finality to forever preclude the future investigation and prosecution of ongoing criminal conduct − in practising polygamy.” [ 64 ] The respondent submits it is important that the original impetus to appoint Mr.

Wilson in January of 2012 was emerging evidence from the polygamy Reference re: s. 293 about the traffic of children between Bountiful and the polygamist communities in the U.S., and that there is no legal impediment to his appointment for that purpose. The expansion of his mandate to include consideration of polygamy charges was done in the wake of the expiry of Mr. Peck’s mandate, and various significant intervening events justifying the ADAG’s jurisdiction to have Mr.

Wilson revisit the polygamy question. [ 65 ] The respondent says that the petitioner’s other expressed objections to the validity of the appointment of Mr. Wilson based on fairness concerns are matters properly before the trial judge in the criminal prosecution, not the subject of a judicial review. The respondent identifies those concerns as: (

i) the fact that the Information captures pre- Reference re: s. 293 events; (ii) the absence of fair notice to the petitioner (and others); and (iii) the non-authoritative nature of Reference re: s. 293 . As to the first two concerns, the respondent argues that they are matters which go to an abuse of process argument, not jurisdictional ones and should be argued before the trial court.

As to the third issue of the authoritativeness of Reference re: s. 293 , the respondent submits it is patently authoritative as a matter of judicial comity, but in any event as with the first two concerns, it is a question for the trial judge based on an abuse of process or some other Charter based application. [ 66 ] The respondent relies on R. v.

Anderson , in support of its contention that “Judicial review of decisions involving the exercise of prosecutorial discretion is highly constrained for reasons of principle, policy and practicality that flow from the structure and history of Canadian criminal courts and the role of prosecutors within them.” [ 67 ] The respondent submits the concept of abuse of process prevails only in the clearest of cases and cannot be adjudicated “other than by the trial judge in the full context of the criminal proceedings associated with the exercise of judicial discretion.” For that proposition, the respondent relies on R. v.

Babos , 2014 SCC 16 . [ 68 ] The respondent submits Mr. Wilson’s ultimate authority arises out of s. 504 of the Criminal Code which authorizes the swearing of an Information. His decision to approve the swearing of the Information is act of prosecutorial discretion; accordingly no issue apart from the jurisdictional validity of his appointment under the CCA is justiciable in this hearing. As far as jurisdiction is concerned, the respondent submits the significant changes in the legal and evidentiary landscape, including Mr. Peck’s decision not to carry on with his original mandate, brought Mr.

Wilson’s appointment outside the scope of Justice Stromberg-Stein’s prohibition of the appointment of successive Special Prosecutors under the CCA . [ 69 ] The respondent says the petition should be dismissed. DISCUSSION AND CONCLUSION [ 70 ] As I understand the petitioner’s position, it is not based on an allegation of unfairness that implicates anything more than the jurisdictional question. The issue is whether, given the finality of Mr. Peck’s decision, Mr.

Wilson’s appointment controverts the concept of objective and independent decision-making embedded in the ADAG’s authority under s. 7(1) to appointment a Special Prosecutor. It is not the petitioner’s contention that any discretion exercised or decision made by Mr. Wilson was unfair or even justiciable in the context of this petition. It is only that, in appointing him without sufficiently distinguishing his mandate from Mr.

Peck’s mandate and decision, the Attorney General or ADAG has trenched on a vital principle of the CCA : the imperative of finality subject only to the provisions of s. 7(4) , which represents protection against “a significant potential for real or perceived improper influence on the administration of criminal justice.” [ 71 ] It is in that sense that the petitioner raises the issue of fairness. He does not point to an unfair exercise of prosecutorial discretion, rather he points to an unfair delegation of a mandate to Mr. Wilson without adequate recognition of the scope of Mr.

Peck’s earlier decision. [ 72 ] In particular, the petitioner says Mr. Peck’s conclusion (endorsed by Mr. Doust), that notice to individuals practicing polygamy of the unlawfulness of their acts and the constitutionality of the polygamy laws was a necessary pre-condition to considering a prosecution, was not imported into the mandate given to Mr. Wilson. Hence, the petitioner submits Mr.

Wilson was placed in the untenable position of revisiting a decision already made, and final according to s. 7(5) of the CCA . [ 73 ] As I see it, the petitioner’s position requires consideration of what confronted the ADAG when he expanded Mr. Wilson’s mandate to include potential polygamy charges on January 31, 2012. That context includes not only what had transpired since Mr. Peck’s decision on August 1, 2007, but also an

interpretation of Mr. Peck ’s decision in light of the charge approval guidelines then

operable to determine whether it does indeed foreclose the expansion of the mandate to Mr. Wilson. Those guidelines were the British Columbia, Ministry of Justice, Crown Counsel Policy Manual: Charge Assessment Guidelines (18 November 2005) , and contain identical language to the Charge Assessment Guidelines discussed earlier in these Reasons. [ 74 ] In Blackmore No. 1 , Justice Stromberg-Stein characterized the standard of review of the issue before her as one of “correctness”. In that case, the issue was an

interpretation of the CCA . Specifically, Stromberg-Stein J. was faced with determining “[w]hat is the meaning of the word “final” in s. 7(5) of the Act ?” ( Blackmore No. 1 at para. 34). [ 75 ] In the present case, that issue is resolved. The issue for me, as I see it, is whether in light of the CCA as interpreted in Blackmore No. 1 , the ADAG acted without jurisdiction by expanding Mr. Wilson’s mandate without taking into account limits placed on a potential prosecution by Mr.

Peck’s earlier decision. [ 76 ] I conclude, given the context of the ADAG’s decision, the proper standard of review is, in part, one of reasonableness in the present case. The question as I see it is whether it is reasonable to interpret Mr. Peck’s decision as leaving open a future prosecution of past practices. A determination of this question can then be applied to the question of whether the ADAG was without jurisdiction in expanding Mr. Wilson’s mandate to consider polygamy charges without exception. This second question is subject to a correctness review. I will address each question in turn.

Is it reasonable to interpret Mr. Peck’s decision as leaving open future prosecution of past acts of polygamy? [ 77 ] The position of the petitioner is, essentially, that Mr. Peck based his decision on the public interest prong of the Charge Approval Guidelines. Accordingly, it can be inferred at least that Mr. Peck was satisfied that there was a substantial likelihood of conviction, if a charge of polygamy was to be laid. [ 78 ] In the

summary of conclusions from Mr. Peck’s report which was made public, there is a reference to “Obstacles” or “Procedural Obstacles” which a prosecution “would likely face” including “the existence of prior Crown opinions regarding the constitutionality of s. 293”. Mr. Peck noted that motions dealing with the obstacles faced by the prosecution “might be particularly lengthy and complex” and “could result in the constitutional issue never being determined at trial.” He concludes in his

summary that “[t]he public interest will best be served by an authoritative and expeditious judicial resolution of the legal controversy surrounding polygamy.” [ 79 ] In other words, Mr.

Peck considered it in the public interest not to couple the inevitable constitutional issue with a criminal prosecution, notwithstanding his view that “Polygamy is the underlying phenomenon from which all the other alleged harms flow.” It was his view that, if the polygamy prohibition was ruled constitutional, then, if those embracing it “persist in the practice, a prosecution could be initiated at the Crown’s discretion substantially free of the procedural obstacles which now exist.” [ 80 ] Although it is not completely clear to me from the published

summary of Mr. Peck’s report whether he based his decision to decline to approve charges in relation to those practising polygamy as of the date of his report (August 1, 2007) on the first or second prong of the test, on balance I conclude, as the petitioners submit, that he was exercising his discretion under the public interest prong of the test, rather than under the substantial likelihood of conviction prong. Had Mr.

Peck concluded that a colour of right type of defence or an abuse of process argument would diminish the prospect of conviction below a substantial likelihood, one would expect him to have said so, rather than basing his recommendation for a reference instead of a prosecution on how “the public interest will best be served”. [ 81 ] The standard of reasonableness articulated in Dunsmuir v. New Brunswick , 2008 SCC 9 at para. 47 is as follows: In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process.

But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. [ 82 ] One factor to consider in my review of the reasonableness of such an

interpretation of Mr. Peck’s decision allowing for potential future prosecution for past acts of polygamy is that Mr. Peck’s decision not to prosecute was not based on there being no substantial likelihood of conviction. In other words, he viewed the evidentiary record before him and the governing law as leading to a likely conviction for polygamy.

Although he expressed concern at procedural obstacles posed by the Criminal Justice Branch’s prior decisions not to prosecute because of doubts about the constitutionality of the polygamy provisions, he did not find in those concerns a sufficient impediment to conviction. [ 83 ] Mr.

Peck’s reliance on the public interest prong of the charge approval test focussed on the efficacy of not tying a constitutional determination of the polygamy law to a prosecution with procedural obstacles, and with the need for a clear statement of the constitutional validity of the law to inform the public and to give notice to those who might “persist in the practice” so that “a prosecution could be instituted at the Crown’s discretion, substantially free of the procedural obstacles which now exist”. [ 84 ] As I read the

summary of Mr. Peck’s decision, it is at least open to an

interpretation that those who persist in the practice of polygamy in the face of an authoritative declaration of the validity of s. 293 are liable to prosecution for their continuous participation (including past acts of polygamy), not just their continued participation in the practice of polygamy. [ 85 ] It is significant that a factor in determining whether a prosecution is merited in the public interest is if “there are grounds for believing that the offence is likely to be continued or repeated.” In other words, even the likelihood of persistent or repeated offending can influence a decision to proceed with a prosecution of past acts. [ 86 ] Mr.

Peck’s opinion could be interpreted as giving a fair opportunity for the petitioner and others to avoid prosecution for pre- Reference re: s. 293 polygamy practices by repudiating them once their illegality is authoritatively established. In those

circumstances, a successive or subsequent charge approval relating, in part, to those past practices, would not conflict with the finality of Mr. Peck’s decision if they continued in the face of Reference re: s. 293 . Was the ADAG without jurisdiction in expanding Mr. Wilson’s mandate to consider polygamy charges without exception? [ 87 ] In light of my finding that it was reasonable to interpret Mr. Peck’s decision as leaving open the possibility of future prosecution for past acts of polygamy, the ADAG’s expansion of Mr.

Wilson’s mandate without excepting pre- Reference re: s. 293 polygamy practices would be distinguishable from the appointment of Mr. Robertson at issue in Blackmore No. 1 . It was clear from the record before Justice Stromberg-Stein that Mr. Robertson’s appointment was simply an attempt to revisit Mr. Peck’s decision in its entirety because the Attorney General of the day did not agree with it. Although the Attorney General had the authority to direct that a prosecution be undertaken, he instead purported to have Mr.

Robertson appointed to give the appearance that he was removed from the fray. [ 88 ] Although there is some doubt whether the Attorney General can direct the ADAG to appoint a Special Prosecutor in any event, the circumstances before me are quite different from those before Justice Stromberg-Stein. [ 89 ] In the present case, Mr. Wilson was appointed in the wake of a comprehensive reference which specifically addressed not only the constitutionality of s. 293, but also the various harms associated to polygamy which justify its proscription under s. 1 of the Charter . Mr.

Wilson’s appointment was not simply to revisit Mr. Peck’s decision, but to look at what arose from Reference re: s. 293 and what arose from investigations conducted after Mr. Peck’s decision and after Reference re: s. 293 . His mandate was thus based on a different legal and evidentiary landscape than was Mr. Peck’s. [ 90 ] The crucial question is not whether Mr. Wilson’s mandate overlapped Mr. Peck’s by, in part, encompassing the same pre- Reference re: s. 293 period. Rather, the question is whether the ADAG’s expansion of Mr.

Wilson’s mandate to include possible polygamy prosecutions without excepting the pre- Reference re: s. 293 period was based on an unreasonable

interpretation of the contents of Mr. Peck’s final decision and therefore without jurisdiction under the Act . [ 91 ] Had Mr. Peck’s decision been based on the first prong of the charge approval test, it would have exempted the pre- Reference re: s. 293 period on the basis that a lack of notice would engage an abuse of process, a Charter based remedy, or a defence sufficient to diminish the strength of the prosecution below a substantial likelihood of conviction.

A reduced likelihood of conviction on that basis would not be changed by post- Reference re: s. 293 persistence in offending s. 293 of the Criminal Code . [ 92 ] Conversely, subjecting past practices to prosecution in light of their continuation in the face of authoritative notice of their illegality is not necessarily incongruous with Mr. Peck’s decision to

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