The Province columnist Joey Thompson's TOTALLY UNFAIR attack on Attorney General Wally Oppal while reporting about his realtor brother Harry's case has caused much disgust in the community.
In a column - titled "What happened to our honest, open A-G?" - she wrote after saying how straightforward he has been first as a judge and then as the AG: "That's why it's difficult to fathom why this guy didn't tell British Columbians that his right-hand man had retained a special prosecutor six months ago to sort through evidence amassed by the Ministry of Finance that could possibly result in criminal charges against his brother, Harry."
Thompson had earlier reported that FICOM (Financial Institutions Commission of B.C) investigators had raided Harry's Surrey real estate office in February after a Surrey woman had complained about a possible shady land deal involving him and a broker friend of the complainant, Don Estrada.
Victoria lawyer Harold Rusk was appointed a special prosecutor in February and earlier this month he was replaced by Vancouver lawyer George Macintosh when the former decided to quit for personal reasons.
So did Wally do anything wrong?
NO, NOT AT ALL!
Yet he was vilified.
The VOICE contacted Criminal Justice Branch spokesperson Stan Lowe about the matter and he told me: "In the case here, I can tell you that the Attorney General received the most minimal of briefings on this matter and he assured us from the outset that he does not want to know nor would he become involved in matters at all. So he has done what he should've in this case, he's not commented on it, not released information on it, he's done everything he possibly should've on this case."
He added: "And it is the Criminal Justice Branch, the operational arm, that oversees these types of matters."
Lowe gave a detailed explanation of how the system works. This is what he told me on the phone from Victoria:
What a lot of people make a mistake with respect to this is that they think that the Attorney General Wally Oppal conducts the Criminal Justice Branch, which is the prosecution service. The Criminal Justice Branch is part of the Ministry of the Attorney General. Wally Oppal oversees the entire ministry, but the day-to-day operations, the day-to-day prosecutions are overseen by Robert W.G. Gillen, Q.C., and he's the Assistant Deputy Attorney General. He is the person that actually oversees all the prosecutions in the province. He's a long-term bureaucrat, long-term prosecutor. He oversees the operations.
The Attorney General gets involved from time to time to ensure that there's no political interference in our operations. We have what's called the Crown Counsel Act. So whenever he does become involved, he has to give his directions in writing and we publish those. We did that in Bountiful where he became involved. (Editor's Note: Bountiful is the community of fundamentalist Mormons who are illegally practising polygamy in East Kootenay, a case that Vancouver Sun columnist Daphne Bramham has been pursuing). Those are the only occasions that he could be involved in our day-to-day decision-making process.
Go back to the issue of a special prosecutor. There's only one person that can appoint a special prosecutor - the Assistant Deputy Attorney General Robert Gillen. That's pursuant to what's called the Crown Counsel Act that oversees and ensures independence between the Criminal Justice Branch's prosecution service and that Attorney General's ministry as a whole, because it is a political ministry … In that act, it stipulates who has the power to appoint a special prosecutor (and) when, and also when the Attorney general becomes involved in any conduct of any individual prosecution. It also requires that e provides directions. Now all these directions are published in the gazette that comes out every week. So that affords transparency, so that everyone knows what everyone is doing. So whenever a political figure like the Attorney General becomes involved in our work, it's transparent by way of having to publish those directions, and he's the boss. He can make directions. It's his prerogative.
(Going back to the Harry Oppal matter,) when FICOM (Financial Institutions Commission of B.C.) approached Crown Counsel with a report to Crown Counsel, one of the players involved was Harry Oppal. Bob Gillen at that time determined that there was a need for a special prosecutor because he was the brother of Wally Oppal.
A special prosecutor is there to ensure that things are done independently without political influence. Therefore, no one can interfere with the decisions of a special prosecutor except by written direction and then those have to be published.
In this case, we have a protocol in the branch with respect to protecting the privacy interests of individuals and also protecting ongoing investigations. At that time, the investigation was ongoing, the special prosecutor could have asked the investigating agency FICOM to investigate some more, and furthermore, because we had not laid any charges, we wanted to protect the privacy interests of those people named.
Now the only time that we have a trigger - and you will see this with all our special announcements when we announce a special prosecutor - is when the information about this specific case becomes a part of the public domain. For example, when a special prosecutor approves charges. That's in the public domain because it's the court registry.
Or when the Vancouver Police Department on Judge William Sundhu announced that they arrested him last night (February, 2006) and that we've given the report to Crown counsel. That's in the public domain, and then we announce the appointment of a special prosecutor. Or when someone makes an immediate inquiry with enough information that satisfies us that the issue itself has transcended the private parties involved and is now sufficiently in the public domain that we have a person from the media asking on behalf of the public.
That's what Joey Thompson did. She called the branch, spoke to me and she provided enough specific information that we were now convinced that the matter was firmly in the public domain and we should make the announcement. The reason why we have this policy - it arises out of the "Discretion to Prosecute Inquiry" by Stephen Owen in 1990. What Stephen Owen said in that inquiry, he examined our practices about privacy and completely endorsed the basis for anybody.
If you were, let's say, investigated for impaired driving, we have that information and someone off the street said 'you know anybody that's involved in the media that has an impaired driving investigation,' we wouldn't comment at that time because it wasn't specific enough. So what we would do is it's not in the public domain, we want to protect your reputation because sometimes being said that you are being investigated is as bad as having been charged. And that investigation is usually private - the information is private. Once we approve a charge, it goes into a public registry. Then it's in the public domain, but yet, if it's yourself, we have no need to go publicly and say you've been charged because we have no media request.
In this case here, I want to make it very clear, that a protocol is in place for three reasons.
Number one, to protect the integrity of ongoing police investigations.
Number two, we also wish to protect the privacy and reputation of those individuals who have not yet been charged.
And last, we want to ensure that the process is fair to both parties - it's the balancing of interests between the public and private individuals, and when it's sufficiently in the public domain, then we can release that information, if asked.
We approve 80,000 cases (for prosecution) a year. We don't put a list out every day of everyone we've charged … unless someone asks us. If someone specifically asks me, I am obligated to do so.
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