Independence of Crown Counsel
Impartiality and fairness are fundamental to a democracy governed by the rule of law, where everyone is equal under the law. In our justice system, police, prosecutors and judges make their decisions independently of each other and all outside influence to ensure a fair and impartial criminal justice system.
In British Columbia, prosecutors, known as Crown Counsel, are responsible for deciding whether to lay criminal charges and for prosecuting criminal cases. They do so as agents for the Attorney General, who is the chief law officer for the Crown. However, prosecutors make their decisions independently, which means that they conduct each prosecution free from political or other external influence.
The independence of prosecutors is constitutionally protected. A decision by Crown Counsel on whether a prosecution should be brought, continued or ceased and what the prosecution should be for is generally protected from review by the courts and other arms of government except in cases of bad faith. It is understood that prosecutors are in the best position to assess the strength of a particular case and the public interest in a prosecution.
The independence of Crown Counsel does not mean they are not accountable for their decisions. Prosecutors are accountable to their supervisors, to the Attorney General, to the courts if the manner in which they conduct a prosecution proves abusive and to the provincial Law Society. If they act with malice, prosecutors can be sued in the civil courts for malicious prosecution.
Provincial legislation called the Crown Counsel Act describes the relationship between the Attorney General, the Assistant Deputy Attorney General, who administers the BC Prosecution Service, and Crown Counsel. While the Attorney General superintends the administration of justice, Crown Counsel have a broad area of unfettered discretion in their prosecution cases.
To protect the independence of Crown Counsel from political influence, the Crown Counsel Act mandates that when the Attorney General or the Deputy Attorney General wishes to intervene in a prosecution decision, they must do so in writing and the intervention must be published in the B.C. Gazette, the official public legal record of notices by government.
Although the Attorney General has constitutional responsibility to oversee criminal prosecutions generally in the province, he or she is also a member of cabinet. The publication requirement in the Crown Counsel Act promotes transparency and avoids any appearance of cabinet interference, political or otherwise, with criminal prosecution decisions.
Prosecutorial independence is further protected by the special prosecutor process established by Section 7 of the Crown Counsel Act. The head of the BC Prosecution Service – the Assistant Deputy Attorney General – has sole authority to appoint a lawyer from the private bar as a special prosecutor in cases where there is a perceived or real improper influence.