Forcing prosecutors to testify threatens justice system: lawyer  

Vancouver Sun 

02 December 2008 

By Neal Hall 

Compelling prosecutors to testify about their decision-making will have a chilling effect on the entire justice system, an appeal hearing was told Monday.

Lawyer Richard Peck, for the provincial attorney-general, told three B.C. Court of Appeal judges that watering down Crown immunity will undermine prosecutorial independence, one of the cornerstones of the justice system.

"The implications of watering down or narrowing this immunity are profound," Peck said, adding that the "very legitimacy" of the justice system is at stake.

The hearing relates to two cases. One was the inquiry into the 1998 death of Frank Paul in a lane behind a detox centre in downtown Vancouver, where he had been left, unconscious, by police officers. Inquiry commissioner William Davies ordered two former prosecutors who are now judges, Mike Hicks and Austin Cullen, to explain why no charges were laid in connection with the death.

The other was a Victoria inquest into the murder-suicide of Peter Lee and his family, which came to a halt after coroner Jeff Dolan decided two prosecutors, Ruth Picha and Laura Ford, were not immune from testifying about why Lee was released on bail after he had been charged with causing his wife bodily harm by deliberately driving into a power pole in 2007.

The attorney-general's ministry appealed both rulings.

Melnick ruled that prosecutors had waived their immunity in the Frank Paul inquiry and can be compelled to testify, but found prosecutors in the Lee case could not be compelled to testify at the inquest.

The appeal hearing is scheduled for four days this week.

Peck said Monday the 450 Crown prosecutors in B.C. play a judicial-like role in making decisions every day on charge approval and bail, which should not be subjected to external review.

"If we allow that to be eroded, the citizenry will become suspect of the process," he told the court.

 "It threatens to chill law enforcement by questioning motives."

The principle of prosecutorial discretion dates back to the 13th century and achieved constitutional status in a Supreme Court of Canada case known as Krieger vs. the Law Society of Alberta, Peck said.

A number of intervenors have been granted standing to make legal arguments during the appeal, including the B.C. Civil Liberties Association, the First Nations Leadership Council, Aboriginal Legal Services of Toronto, United Native Nations and Frank Paul's family.

Vancouver lawyer Geoffrey Cowper, representing the commissioner at the Frank Paul inquiry, was also expected to make legal arguments.

nhall@vancouversun.com