The B.C. government is considering drastic changes to the special prosecution system after an embarrassing scandal that forced the resignations of the solicitor-general and the special prosecutor assigned to probe allegations of election irregularities.
One change, proposed by Attorney-General Mike de Jong, would be to require special prosecutors to come from outside the jurisdiction, possibly the province, to avoid conflicts of interest.
"Perhaps, we're at the point where the list of qualified candidates to be a special prosecutor needs to derive from outside the jurisdiction," Mr. de Jong said.
Meanwhile, a former B.C. deputy attorney-general who was responsible for the establishment of the province's special prosecution system 20 years ago said it's obvious it needs "tweaking."
Stephen Owen urged the B.C. government in 1990 to move to a special prosecutor system after a political scandal involving John Reid, the Social Credit minister responsible for lotteries. Mr. Reid was accused of misdirecting lottery funds, and police recommended charges. But the province's criminal prosecutors refused, eliciting complaints of political favouritism.
Mr. Owen's report recommended that independent prosecutors be appointed to high-profile or political cases to avoid that perception. Ironically, 20 years later, one of these supposedly independent prosecutors has resigned because of a potential conflict.
Terrence Robertson, a Vancouver lawyer, was hired by the province to probe allegations of election irregularities during the 2009 spring campaign of Kash Heed, who went on to win and become solicitor-general. Mr. Robertson cleared Mr. Heed of wrongdoing, but recommended charges against three of his top campaign workers. Mr. Heed, who resigned from cabinet last month, was reinstated.
But one day after submitting his report, Mr. Robertson resigned, noting that his law firm, Harper Grey, made a $1,000 contribution to Mr. Heed's campaign. As a result, Mr. Heed resigned again.
The whirl of resignations has prompted heated criticism of the special prosecution system. It turns out that special prosecutors - who are hired to prevent the appearance of a conflict - aren't vetted that deeply to ensure they don't have connections with the individuals they're hired to probe.
They aren't grilled on community or political party affiliations, said Neil MacKenzie, a spokesman for the criminal justice branch. Rather, they're asked to declare whether they have a conflict before they sign the contract for the case.
"It's not a situation of a specific checklist," Mr. MacKenzie said. But that will likely change, he added.
Mr. Owen, who was also a provincial ombudsman, said the system that has developed over the years involves a roster of top criminal lawyers. The deputy and assistant attorney-general, as well as the president of the Law Society of British Columbia, all have a hand in developing this list.
It's up to the special prosecutor to determine whether there is a conflict. Mr. Robertson declared a perceived conflict after his investigation was completed.
Mr. Owen agreed the rules for selecting special prosecutors need strengthening, and tougher questions need to be asked, such as: "Have you or your firm ever contributed to a political campaign?"
For now, Mr. Owen said a new special prosecutor must be hired, and must reconsider all Mr. Robertson's recommendations. Otherwise, Mr. Heed will always be under suspicion.
Meanwhile, NDP justice critic Mike Farnworth on Thursday called for an outsider - perhaps Mr. Owen - to review the special prosecution system.
The legislation that provides for the appointment of independent counsel in politically sensitive cases is sound, he said, "but clearly in this case there are some problems that need to be addressed, and they need to be addressed quickly."
With a report from Justine Hunter