British Columbia (Attorney General) v. Davies

• Jurisdiction: British Columbia
• Court: Court of Appeal (British Columbia)
• Judge: Huddart, Bauman and Groberman, JJ.A.
• Citation: 2009 BCCA 337,(2009), 274 B.C.A.C. 118 (CA)
• Date: 23 July 2009

B.C. (A.G.) v. Davies (2009), 274 B.C.A.C. 118 (CA);

    463 W.A.C. 118

MLB headnote and full text

Temp. Cite: [2009] B.C.A.C. TBEd. JL.041

Attorney General of British Columbia (appellant/petitioner) v. William H. Davies, Q.C., Commissioner (respondent/respondent)

(CA036305; 2009 BCCA 337)

Indexed As: British Columbia (Attorney General) v. Davies

British Columbia Court of Appeal

Huddart, Bauman and Groberman, JJ.A.

July 23, 2009.

Summary:

In 2007, a Commission of Inquiry was established by Order-in-Council signed by the Attorney General of British Columbia, to examine the "response" of the Criminal Justice Branch not to lay charges in connection with the death in December 1998 of Frank Joseph Paul (homeless and of Aboriginal origin). Police had taken Paul into custody for being intoxicated in a public place. He had been held earlier in the day in the "drunk tank". The police drove him to an alleyway, and left him. Within hours, Paul died of hypothermia. In the course of opening before the Commission, the Branch raised the issue of prosecutorial independence and Crown immunity. The Commissioner found that while independence of the Crown prohibited the Commission from making findings of misconduct against a prosecutor in respect of the exercise of prosecutorial discretion, it did not otherwise affect the proceedings of the Inquiry; alternatively, any common law immunity was defeated by the Public Inquiry Act. The Commissioner held that solicitor-client privilege had no application to charge approval decisions; in the alternative, the privilege was waived by the Act. The Branch sought judicial review.

The British Columbia Supreme Court, per Melnick, J., in a decision reported at [2008] B.C.T.C. Uned. 471; 2008 BCSC 817, dismissed the petition, though he disagreed with the Commissioner on a number of points. He found that Crown immunity applied in the context of a public inquiry, and that solicitor-client privilege was applicable to the process leading up to prosecutorial decisions. He dismissed the petition, because he found that the Order-in-Council establishing the Commission constituted a waiver of both Crown immunity and solicitor-client privilege. Finally, Melnick, J., accepted the argument that the honour of the Crown demanded that the Crown waive any immunity from supplying evidence or solicitor-client privilege. The Branch appealed. Prior to the hearing of the appeal, the Attorney General was substituted as petitioner in place of the Branch.

The British Columbia Court of Appeal dismissed the appeal. First, the Commission, fulfilling its mandate, did not interfere with prosecutorial independence: (a) the mandate of the Commission was clear and focused; its terms of reference were unambiguous; (b) the Commission, and its terms of reference, were established by the Executive Council, which was advised on legal matters by the Attorney General; and (c) the limited mandate of the Commission and its composition provided assurance that interference with prosecutorial independence would be avoided. Second, the court concluded that, in the circumstances, the information sought by the Commission was not protected by solicitor-client privilege or Crown immunity. Third, by way of observation, the court did not read ss. 5 and 6 of the Crown Counsel Act as having any bearing on the issue of waiver of solicitor-client privilege or Crown immunity in the context of this appeal. Fourth, in view of the court's conclusions, it was not necessary to address whether the "honour of the Crown" principle could be invoked. The court doubted, however, that the concept would apply to compel the Crown to proceed with a public inquiry in the current case.

Editor's Note: This appeal was heard at the same time as the companion appeal in Picha et al. v. Dolan (Coroner), reported at 274 B.C.A.C. 108; 463 W.A.C. 108; 2009 BCCA 336. The court's reasons in that appeal were issued concurrently and should be read with the disposition in this case. In this appeal, Picha was described by the court as "an example of a more typical case, in which a tribunal will not be interpreted to have jurisdiction to inquire into the exercise of prosecutorial discretion".

Administrative Law - Topic 7904

Public inquiries - General - Status or nature of public inquiries - [See Administrative Law - Topic 7924 ].

Administrative Law - Topic 7924

Public inquiries - Creation of - Jurisdiction - A Commission of Inquiry was set up in the public interest to investigate, among other things, the facts underlying decisions by Crown counsel that raised concerns about the conduct of criminal prosecutions in British Columbia - The British Columbia Court of Appeal commented that the function of the Commission was not a judicial function; it was an investigative function assigned to a jurist with a view to improving the service provided by the Crown - The Commission "is not part of the judiciary. It was created by the Lieutenant Governor in Council under the provisions of the Public Inquiry Act. Its role is not to judge or to fix liability, but rather to examine the exercise of powers by agencies of government ... It cannot be said to 'interfere' with the functions of the executive branch; rather, its functions are themselves functions of that branch ... [A]ny limits that are imposed upon it must derive from the necessity to preserve prosecutorial independence ... Indeed, the court's limited role in supervising the executive branch of government suggests that it must afford considerable deference to the apparent goals of the executive in establishing the Commission" - See paragraphs 43 and 44.

Administrative Law - Topic 7925

Public inquiries - Creation of - Mandate - In 2007, a Commission of Inquiry was established by Order-in-Council signed by the Attorney General of British Columbia, to examine the "response" of the Criminal Justice Branch not to lay charges in connection with the 1998 death of Frank Joseph Paul, a homeless person of Aboriginal origin - The Branch raised the issue of prosecutorial independence and Crown immunity - The British Columbia Court of Appeal agreed with the observations of the Commissioner in respect of the Commission's scope - The subordinate legislation setting up the Commission set out its mandate in great detail - Given the context in which the Commission was set up, and the wording of the Order-in-Council that established it, it was clear that the intention of the Lieutenant Governor in Council was to inquire into the exercise of prosecutorial discretion in the aftermath of Paul's death - This was not a case in which a tribunal was relying on broad, general powers of investigation to support a foray into issues touching on prosecutorial discretion - See paragraphs 68 and 69.

Administrative Law - Topic 7925

Public inquiries - Creation of - Mandate - A Commission of Inquiry was set up in the public interest to investigate, among other things, the facts underlying decisions by Crown counsel that raised concerns about the conduct of criminal prosecutions in British Columbia - In discussing the scope of the Commission, the British Columbia Court of Appeal stated that it was important that the terms of reference of the Commission had been established directly by Order-in-Council, signed by the Attorney General - "Given that the Attorney General signed the Order-in-Council establishing the Commission, we are entitled to assume that he fulfilled his legal obligations under the Attorney General Act, and provided appropriate advice. Given the Attorney General's obligation to 'see that the administration of public affairs is in accordance with law', and given that the Attorney General of the day continued in his post after the establishment of the Commission, we must assume that he did not consider any aspect of the Commission's mandate to be clearly unlawful" - See paragraphs 70 and 71.

Administrative Law - Topic 7925

Public inquiries - Creation of - Mandate - A Commission of Inquiry was set up in the public interest to investigate, among other things, the facts underlying decisions by Crown counsel that raised concerns about the conduct of criminal prosecutions in British Columbia - In discussing the scope of the Commission, the British Columbia Court of Appeal held that the Commission, "fulfilling its mandate, does not interfere with prosecutorial independence" - This did not suggest that inquiries into the exercise of prosecutorial discretion would be frequent or should be treated as routine, as several factors set this case apart - First, the mandate of the Commission was clear and focused - Its terms of reference were unambiguous in authorizing inquiries into the exercise of prosecutorial discretion - Second, the Commission, and its terms of reference, were established by the Executive Council, which was advised on legal matters by the Attorney General - Third, the limited mandate of the Commission and its composition provided assurance that interference with prosecutorial independence would be avoided - See paragraph 88.

Administrative Law - Topic 7925

Public inquiries - Creation of - Mandate - A Commission of Inquiry was set up in the public interest to investigate, among other things, the facts underlying decisions by Crown counsel that raised concerns about the conduct of criminal prosecutions in British Columbia - The British Columbia Court of Appeal held that the Commission's mandate did not violate the principle of prosecutorial independence - The court noted that the Commissioner, a jurist, had indicated that he had interpreted his mandate as not allowing certain types of findings (of misconduct, with which the court agreed) - The court also noted and agreed with the observations of the chambers judge with respect to the mandate and procedures of the Commission - In summary, the court stated that the Commission was "carefully established to inquire (on behalf of the executive) into exercises of prosecutorial discretion. In this case, the participation of the Attorney General in its establishment, its specific terms of reference and expertise, and the limitations on its functions suggested by the Commissioner's stated understanding of his mandate, are all important factors demonstrating that the constitutional principle of prosecutorial independence is not at risk" - See paragraphs 89 to 91.

Administrative Law - Topic 7964

Public inquiries - Powers of - Limitation on grant of powers - At issue was the degree to which prosecutorial independence prevented a public inquiry from inquiring into issues touching on the exercise of prosecutorial discretion - The British Columbia Court of Appeal stated that the rationale for limiting inquiries into the exercise of prosecutorial discretion was equally applicable to courts and to administrative bodies - While the administrative tribunals in Hoem v. Law Society of British Columbia (1985) (B.C.C.A.) and Krieger et al. v. Law Society of Alberta (2002) (S.C.C.) were quasi-judicial bodies, those cases were helpful in establishing proper safeguards to prevent administrative tribunals from improperly interfering with prosecutorial independence - As the court read Krieger, "the Supreme Court of Canada did not hold that Crown immunity is a constitutional imperative to protect prosecutorial discretion. Rather, Krieger establishes that prosecutorial discretion must be protected, in the case of administrative tribunal hearings, by carefully interpreting the statutory mandates of the administrative tribunal in question, and ensuring that no action taken by the tribunal results in improper influence being placed on the Attorney General or Crown counsel" - See paragraphs 45 to 55.

Administrative Law - Topic 7964

Public inquiries - Powers of - Limitation on grant of powers - At issue was the authority of a Commission of Inquiry established in British Columbia in 2007 to examine the Crown's decisions not to lay charges in connection with the 1998 death of Frank Paul - The Attorney General argued that prosecutorial independence prohibited the Commission from inquiring into that area - The British Columbia Court of Appeal held that the circumstances of the establishment of the Commission greatly limited any possibility of interference with prosecutorial independence - The tribunal was not established for the purpose of determining whether charges would be laid, but to review what took place in the aftermath of Paul's death, with a view to recommending procedures to improve the exercise of prosecutorial discretion - As such, its function was to enhance prosecutorial independence - The tribunal was a specialist tribunal - The Commissioner was a highly respected jurist with experience in criminal law - A commission of inquiry, while created by the executive branch of government, operated with independence such that concerns over political interference were minimized - Further, the court noted that commissions of inquiry under the Public Inquiry Act were rare - See paragraphs 78 to 82.

Administrative Law - Topic 7999

Public inquiries - Practice - Standing - In the case at bar, the only relief claimed was against the Commissioner of a public inquiry, and the proceedings before the Commission were not adversarial - The British Columbia Court of Appeal commented with respect to the status of various parties who purported to be respondents (a number of public interest groups) - "Ordinarily, a person will be a respondent to a judicial review petition only if relief is being claimed against that person or if that person is a party to an adversarial proceeding that gives rise to the judicial review. Our tentative view is that persons in positions like those of the purported respondents should, if they wish to present argument, apply for intervenor status" - In the result, the court did not raise any issue as to their standing, as the purported respondents should be given the opportunity to present argument, and there was no objection to their doing so - The case was not to be seen, however, as a precedent for the proposition that all persons having party status in a non-adversarial administrative proceeding would automatically have party status on judicial review proceedings or appeals - See paragraphs 27 and 28.

Barristers and Solicitors - Topic 1504

Relationship with client - General - Solicitor-client relationship - What constitutes - A Commission of Inquiry proposed to examine the Crown's decisions not to lay charges in connection with a person's death - The Attorney General asserted that all "charge approval materials" were protected by solicitor-client privilege; i.e., that Crown counsel were acting as solicitors to the Assistant Deputy Attorney General - The Commissioner concluded that no solicitor-client relationship was formed in carrying out the charge approval procedures - The reviewing judge disagreed - In his view, the Assistant Deputy Attorney General was the "client" who received advice - The British Columbia Court of Appeal was in "substantial agreement" with the Commissioner's ruling - Solicitor-client privilege was inapplicable to the functions of Crown counsel in the charge approval process - In deciding whether or not to approve a prosecution, Crown counsel was neither a client of another lawyer, nor a solicitor advising more senior officers, but was an officer of the Crown, independently exercising prosecutorial discretion - See paragraphs 94 to 102.

Barristers and Solicitors - Topic 1915

Crown counsel - Independence of - The primary issue on this appeal was the degree to which prosecutorial independence prevented a public inquiry from inquiring into issues touching on the exercise of prosecutorial discretion - The British Columbia Court of Appeal first observed the leading jurisprudence on prosecutorial independence and Crown immunity - "Prosecutorial independence is a cornerstone of our system of criminal justice ... Within the judicial system, the principle of prosecutorial independence is reinforced through a number of legal protections. First, courts have very limited powers to directly intervene to control prosecutorial discretion. They do not have the right to dismiss charges simply on the basis that they consider them to have been brought imprudently ... Absent a violation of the principles of fundamental justice, charges will not be stayed to reflect dissatisfaction on the part of the court with the Crown's decisions ... Equally, Canadian courts have indicated that they will not review Crown decisions to refrain from proceeding with prosecutions, at least in the absence of 'flagrant impropriety' ... The courts further protect prosecutorial discretion by providing prosecutors with immunity from civil suit in respect of charging decisions. Unless prosecutorial discretion has been exercised maliciously - i.e., for an improper motive or purpose - a person wrongly prosecuted for a crime cannot sue" - See paragraphs 29 to 33.

Barristers and Solicitors - Topic 1915

Crown counsel - Independence of - The British Columbia Court of Appeal discussed the rationale for the solicitous approach of courts to prosecutorial discretion - "There are two reasons for limiting the role of the courts in reviewing prosecutorial discretion. First, it is important that the courts seek to reduce the pressures that Crown counsel face in exercising prosecutorial discretion ... This rationale for limiting inquiries into the exercise of prosecutorial discretion is equally applicable to courts and to administrative bodies ... The courts are also concerned to observe the constitutional separation between judicial and executive powers" - On a review of the jurisprudence, one rationale was "the need for the judiciary to defer to the executive in respect of matters that lie within its exclusive purview. The degree of deference to which offices and agencies of the executive are entitled from courts varies with their mandate, statutory provisions for review, and constitutional requirements. The offices of Attorney General and Crown counsel are unique, and the deference afforded them in respect of prosecutorial discretion is near-absolute" - See paragraphs 38 to 42.

Barristers and Solicitors - Topic 1915

Crown counsel - Independence of - In summarizing the principles derived from the case law on prosecutorial discretion, the British Columbia Court of Appeal stated that "[t]he Attorney General was entrusted to exercise prosecutorial discretion dispassionately ... This is the essence of prosecutorial independence" and that prosecutorial independence "is a constitutionally protected value. Even if their statutory mandates extend to inquiring into issues touching on prosecutorial discretion, tribunals must not proceed in a fashion that is apt to place undue pressure on the Attorney General or on Crown counsel such that their independence may be compromised. A tribunal may be required to adjust its procedures, or even limit the scope of its inquiries, to avoid interfering with prosecutorial discretion. If a tribunal fails to do so, the courts undoubtedly possess the power to protect constitutional norms by restricting the scope of inquiries" - See paragraphs 56 and 60.

Barristers and Solicitors - Topic 1915

Crown counsel - Independence of - The primary issue on this appeal was the degree to which prosecutorial independence prevented a public inquiry from inquiring into issues touching on the exercise of prosecutorial discretion - The British Columbia Court of Appeal discussed the role of the courts in reviewing prosecutorial discretion; specifically, in assessing what limits ought to be placed on the scope of public inquiries - "In recent years, legal systems have recognized the need for some methods by which the Crown could account to the public for its exercises of prosecutorial discretion, without interfering with prosecutorial independence. The need has been seen as particularly acute in high-profile cases where decisions have been made not to proceed with charges ... 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" - See paragraphs 61 to 65.

Courts - Topic 313

Judges - Independence of judiciary - Judicial immunity - [See second Crown - Topic 2845 ].

Criminal Law - Topic 26

General principles - Prosecution of crime - Prosecutorial discretion - The British Columbia Court of Appeal summarized the principles derived from the case law on prosecutorial discretion, including the following - Prosecutorial discretion resided in the executive branch of government, within the purview of the Attorney General - The courts extended a broad immunity to the Crown in respect of prosecutorial discretion - Although administrative tribunals formed part of the executive branch of government, they, too, must exercise caution in inquiring into matters touching on prosecutorial discretion - As Krieger et al. v. Law Society of Alberta (2002) (S.C.C.) indicated, however, this did not mean that inquiries that touched on matters of prosecutorial discretion would always be outside of the tribunal's mandate - So long as inquiries that touched on matters of prosecutorial discretion were strictly within the tribunal's statutory jurisdiction, and did not interfere with constitutionally protected prosecutorial independence, the tribunal could proceed - See paragraphs 56 to 59.

Criminal Law - Topic 26

General principles - Prosecution of crime - Prosecutorial discretion - [See first Barristers and Solicitors - Topic 1915 ].

Crown - Topic 660

Authority of ministers - Authority of Attorney General - This appeal concerned the authority of a public inquiry established in 2007 by the Attorney General of British Columbia to explore issues surrounding the exercise of the Crown's prosecutorial discretion - Counsel for the Attorney General characterized the Attorney General's role in establishing the Commission as of a political nature, separate from his role in safeguarding prosecutorial independence - The British Columbia Court of Appeal stated that the characterization could not withstand scrutiny - "It is true that the Attorney General, in the Canadian tradition, has a political role as a member of Cabinet. It is not the case, however, that the Attorney General somehow alternates between playing the roles of a political Cabinet member and the role of the non-partisan senior law officer of the Crown. Rather, the Attorney General occupies those two roles simultaneously" - If the Attorney General's view of the Commission's mandate differed from that of the court, it was open to him to press the Lieutenant Governor in Council to modify the Inquiry's terms of reference, or to bring the Commission to a close - See paragraphs 72 to 76.

Crown - Topic 660

Authority of ministers - Authority of Attorney General - This appeal concerned the authority of a Commission of Inquiry to explore issues surrounding the exercise of the Crown's prosecutorial discretion - The British Columbia Court of Appeal described the role of the Attorney General in the establishment of the Commission of Inquiry as of "great importance" - "Prosecutorial discretion, ultimately, rests with the Attorney General ... [H]e is entitled to establish a system to review exercises of prosecutorial discretion, and for improving the policies that govern its exercise. He is also entitled to take steps to satisfy the public that prosecutorial discretion is being exercised in a principled way" - The Attorney General was in a unique position to balance the need for prosecutorial independence with public accountability - Thus, it would be a "rare case" where a commission of inquiry that was established with the mandate of inquiring into an exercise of prosecutorial discretion, and with the apparent approval of the Attorney General, would be found by a court to constitute an unlawful interference with prosecutorial independence - See paragraph 77.

Crown - Topic 768

Duties of ministers - Duty of Attorney General - [See second Administrative Law - Topic 7925 and first Crown - Topic 660 ].

Crown - Topic 2845

Crown immunity - Agents - Prosecutors - In the context of a public inquiry, the Attorney General of British Columbia contended that there was a "constitutional principle of Crown immunity" - The British Columbia Court of Appeal did not agree - "Crown immunity is a means by which at least two constitutional principles are protected - the separation between the judicial and executive branches of government, and the prosecutorial independence of the Crown. Crown immunity is not absolute; it extends only so far as is necessary to protect these values. The scope of Crown immunity was critically examined in Nelles [v. Ontario et al., (1989) (S.C.C.] ... The majority of the Court rejected the idea that absolute immunity was required to preserve prosecutorial independence" - Crown immunity in the present context would mean that Crown counsel could not be questioned about their actions or omissions under the Public Inquiry Act - Though not directly analogous to Nelles, the fundamental issue was the same; i.e., whether the proposed course of the Commission threatened the independence of Crown counsel in carrying out their functions - See paragraphs 34 to 36.

Crown - Topic 2845

Crown immunity - Agents - Prosecutors - This appeal concerned the authority of a public inquiry to explore issues surrounding the exercise of the Crown's prosecutorial discretion - In arguing that prosecutorial independence prohibited the Commission from inquiring into that area, the Attorney General relied on MacKeigan v. Hickman (1989) (S.C.C.) - The British Columbia Court of Appeal stated that, while judicial immunity and Crown immunity were both designed as protections for independence, it did not follow that the testimonial immunity extended to judges in MacKeigan was applicable to Crown counsel - There were significant differences in the way judges and Crown counsel operated, and in the manner in which they could be accountable to the public - The division of powers between the judiciary and the executive played a role in requiring that judges not be brought before commissions of inquiries as witnesses - "Judges are accountable to the public through the open court system, and through the appellate process. They are not answerable to the executive for their decisions" - See paragraphs 84 to 87.

Crown - Topic 2885

Crown immunity - Exceptions - Waiver exception - A Commission of Inquiry was established by Order-in-Council signed by the Attorney General of British Columbia, to examine the "response" of the Criminal Justice Branch not to lay charges in a certain death - Much of the argument on this appeal concerned the question of whether the Order-in-Council constituted a waiver of either Crown immunity or solicitor-client privilege - The Attorney General argued that, pursuant to ss. 5 and 6 of the Crown Counsel Act, no waiver of privilege or immunity could be effective unless a direction in writing was given by the Deputy/Attorney General, and published in the Gazette - In view of the conclusions of the British Columbia Court of Appeal that neither Crown immunity nor solicitor-client privilege applied, it was not necessary to address the issue - Nevertheless, given that it was fully argued on appeal, the court made the following observations - Sections 5 and 6 of the Act had no bearing on the issue in the context of this appeal - If a waiver had been given, it would constitute neither "a direction with respect to the ... conduct of any specific prosecution" (s. 5) nor a directive respecting the Criminal Justice Branch (s. 6) - The Act did not modify the common law with respect to the waiver of solicitor-client privilege or of Crown immunity - See paragraphs 110 to 112.

Crown - Topic 4807

Actions by Attorney General - Status to protect public interest - [See second Administrative Law - Topic 7925 ].

Crown - Topic 7203

Examination of public documents - Freedom of information - Bars - Solicitor-client and litigation privilege (incl. Crown counsel) - The British Columbia Court of Appeal held that solicitor-client privilege was inapplicable to the functions of Crown counsel in the charge approval process - The court considered the rationale for solicitor-client privilege and concluded that those considerations were not germane to the situation of Crown counsel in charge approval decisions - However, the independence of the Crown required that the charge approval process was not generally subject to review by the courts or by other bodies - The necessary confidentiality was provided by Crown immunity tailored to the needs of prosecutorial independence, and not by solicitor-client privilege - Nor was the court suggesting that Crown counsel could never claim privilege, either outside of the charge approval process or even within the process - Equally, litigation privilege was applicable to the work of Crown counsel in the course of a prosecution - Where, however, as here, there was a final decision not to undertake a prosecution, litigation privilege ceased to exist - See paragraphs 103 to 110.

Indians, Inuit and Métis - Topic 3

Duty owed to Indians by Crown - A Commission of Inquiry was established by Order-in-Council to examine the "response" of the Criminal Justice Branch of the Attorney General of British Columbia, not to lay charges in the death of a homeless person of Aboriginal origin - The Commissioner contended that because the terms of reference were developed in response to concerns of First Nations organizations, the honour of the Crown demanded that it not frustrate the Commission's process - In view of the conclusions of the British Columbia Court of Appeal on the other issues, it was not necessary to address the issue of whether the "honour of the Crown" principle could be invoked - The court considered it "doubtful" that the concept would apply - "The concept has, to date, been used almost exclusively to buttress the sorts of Aboriginal rights described in s. 35 of the Constitution Act, 1982. To apply the concept in a manner requiring the Crown to proceed with the holding of a public inquiry would require a substantial expansion of the duties contemplated by the 'honour of the Crown', and would represent a significant incursion on the discretion of the Executive Council under the Public Inquiry Act" - See paragraphs 113 and 114.

Cases Noticed:

R. v. V.T., [1992] 1 S.C.R. 749; 134 N.R. 289; 7 B.C.A.C. 81; 15 W.A.C. 81, refd to. [para. 31].

R. v. Regan (G.A.), [2002] 1 S.C.R. 297; 282 N.R. 1; 201 N.S.R.(2d) 63; 629 A.P.R. 63; 2002 SCC 12, refd to. [para. 31].

Zhang v. Canada (Attorney General) (2007), 365 N.R. 277; 2007 FCA 201, refd to. [para. 32].

Kostuch v. Alberta (Attorney General) (1995), 174 A.R. 109; 102 W.A.C. 109; 128 D.L.R.(4th) 440 (C.A.), refd to. [para. 32].

Nelles v. Ontario et al., [1989] 2 S.C.R. 170; 98 N.R. 321; 35 O.A.C. 161, consd. [para. 33].

R. v. Power (E.), [1994] 1 S.C.R. 601; 165 N.R. 241; 117 Nfld. & P.E.I.R. 269; 365 A.P.R. 269, consd. [para. 39].

Balderstone v. R. et al. (1983), 23 Man.R.(2d) 125; 8 C.C.C.(3d) 532 (C.A.), refd to. [para. 40].

Hoem v. Law Society of British Columbia (1985), 63 B.C.L.R. 36 (C.A.), refd to. [para. 45].

Krieger et al. v. Law Society of Alberta, [2002] 3 S.C.R. 372; 293 N.R. 201; 312 A.R. 275; 281 W.A.C. 275; 2002 SCC 65, consd. [para. 45].

R. v. Director of Public Prosecutions; Ex p. Manning, [2001] Q.B. 330 (D.C.), refd to. [para. 62].

Dixon v. Commission of Inquiry into the Deployment of Canadian Forces in Somalia et al., [1997] 3 F.C. 169; 218 N.R. 139 (F.C.A.), leave to appeal refused (1998), 226 N.R. 400 (S.C.C.), refd to. [para. 76].

Phillips v. Nova Scotia (Commissioner, Public Inquiries Act) - see Phillips et al. v. Richard, J.

Phillips et al. v. Richard, J., [1995] 2 S.C.R. 97; 180 N.R. 1; 141 N.S.R.(2d) 1; 403 A.P.R. 1, refd to. [para. 81].

MacKeigan v. Hickman - see MacKeigan, J.A., et al. v. Royal Commission (Marshall Inquiry).

MacKeigan, J.A., et al. v. Royal Commission (Marshall Inquiry), [1989] 2 S.C.R. 796; 100 N.R. 81; 94 N.S.R.(2d) 1; 247 A.P.R. 1, refd to. [para. 84].

Named Person v. Vancouver Sun - see Vancouver Sun et al. v. Canada (Attorney General) et al.

Vancouver Sun et al. v. Canada (Attorney General) et al., [2007] 3 S.C.R. 253; 247 N.R. 112; 368 B.C.A.C. 1; 409 W.A.C. 1; 2007 SCC 43, refd to. [para. 86].

Picha et al. v. Dolan (Coroner) (2009), 274 B.C.A.C. 108; 463 W.A.C. 108 (C.A.), refd to. [para. 88].

Crompton (Alfred) Amusement Machines Ltd. v. Customs and Excise Commissioners (No. 2), [1972] 2 Q.B. 102 (C.A.), affd. [1974] A.C. 405 (H.L.), consd. [para. 95].

Alfred Crompton Amusement Machines Ltd. - see Crompton (Alfred) Amusement Machines Ltd.

R. v. Campbell (J.) and Shirose (S.), [1999] 1 S.C.R. 565; 237 N.R. 86; 119 O.A.C. 201, consd. [para. 96].

R. v. Gruenke - see R. v. Fosty and Gruenke.

R. v. Fosty and Gruenke, [1991] 3 S.C.R. 263; 130 N.R. 161; 75 Man.R.(2d) 112; 6 W.A.C. 112, refd to. [para. 103].

Descoteaux et al. v. Mierzwinski et al., [1982] 1 S.C.R. 860; 44 N.R. 462, refd to. [para. 104].

Blank v. Canada (Minister of Justice), [2006] 2 S.C.R. 319; 352 N.R. 201; 2006 SCC 39, refd to. [para. 108].

Statutes Noticed:

Attorney General Act, R.S.B.C. 1996, c. 22, sect. 2(a), sect. 2(b), sect. 2(c) [para. 70].

Crown Counsel Act, R.S.B.C. 1996, c. 87, sect. 4(3) [para. 100]; sect. 5, sect. 6 [para. 111].

Freedom of Information and Protection of Privacy Act, R.S.B.C. 1996, c. 165, sect. 15(4) [para. 64].

Public Inquiry Act, S.B.C. 2007, c. 9, sect. 22(2) [para. 93].

Counsel:

Richard C.C. Peck, Q.C., Michael A. Code and Timothy C. Hinkson, for the appellant;

D. Geoffrey Cowper, Q.C., and Keri Gammon, for Commissioner Davies;

Steven M. Kelliher, for the Frank Paul Family and the First Nations Leadership Council of B.C.;

Jonathan Rudin, for Aboriginal Legal Services of Toronto;

A. Cameron Ward, for the United Native Nations Society;

Michael Tammen and Grace Pastine, for the B.C. Civil Liberties Association.

This appeal was heard at Vancouver, British Columbia, on December 1-3, 2008, by Huddart, Bauman and Groberman, JJ.A., of the British Columbia Court of Appeal. The following judgment and reasons for judgment of the court were released on July 23, 2009.