The provincial criminal justice branch (CJB) is implementing recommendations from the Davies Commission of Inquiry, Attorney General Shirley Bond has announced.

The Davies Commission made nine recommendations, all of which will lead to changes or clarifications in CJB's policies and practices.

On the advice of Commissioners Davies and Braidwood, the ministry is proceeding with the implementation of the Independent Investigations Office (IIO), a civilian-led body that will conduct criminal investigations into deaths of serious harm involving municipal police and RCMP in B.C. and other infringements of provincial and federal acts involving an officer. The IIO's chief civilian director will be in place by the end of the year and the team will begin investigations in first half of 2012.

In response to the second recommendation, the criminal justice branch will ensure allegations against police are not assessed or prosecuted by Crown from the region in which the officer is employed. The CJB will use special prosecutors or external private practice lawyers or criminal justice branch prosecutors from other regions for prosecutions of this type. In addition, the government will ask the chief civilian director of the IIO to review, after three years, the IIO's experience with reports to Crown counsel.

Quick Facts:

• A March 2009 interim report dealt with the British Columbia Ambulance Service, Vancouver Police Department, BC Coroners Service and Office of the Police Complaints Commissioner.
• Davies Commission: www.frankpaulinquiry.ca

A backgrounder follows.

Contact:

Dave Townsend
Government Communications and Public Engagement
Ministry of Attorney General
250 387-4962 or 250 889-5945 (cell)

BACKGROUNDER

Recommendations and action on final Davies Report

Summary of Recommendation
1. Charge assessments in personal conflict of interest situations - CJB policies should ensure that branch members do not provide legal advice to an investigating officer or conduct a charge assessment or prosecution in matters involving CJB members' friends or relatives or where an informed member of the public acting reasonably would conclude they might not act with undivided loyalty to the public interest. Responsibility for providing advice to investigating police in such cases should be assigned to a member in a different region or private practice lawyer.

Action Plan
CJB policy will provide that potential conflict of interest situations will be managed by assigning the case to Crown counsel in a region other than that where the potential conflict arises.

Summary of Recommendation
2. Charge assessments in institutional conflict of interest situations - CJB policies should ensure branch members do not provide legal advice to an investigating officer or conduct a charge assessment or prosecution where an accused or potential accused is a police or RCMP officer acting on or off duty, B.C. cabinet minister, senior B.C. public or ministry official or anyone else where the public might conclude the relationship between the member and accused could mean the member might not act with undivided loyalty to the public interest. The CJB's assistant deputy attorney general should receive such police reports directly and refer them to a special prosecutor, private practice lawyer or Crown prosecutor in another province.

Action Plan
Branch policy will ensure that charge assessments of allegations against peace officers are not conducted in the region in which the peace officer is employed. Branch policy will require that investigative reports from the IIO, those involving serious personal injury or death, will go directly to the assistant deputy attorney general for the CJB in Victoria. Other reports received from police agencies will go to CJB's director of legal operations in Victoria. In both situations, the reports will be reviewed for the potential of a real or perceived conflict of interest and will be assigned for the purpose of charge assessment, and conduct of any ensuing prosecution, to either:

• an appointed independent special prosecutor;
• a lawyer in private practice; or
• a Crown counsel from another region.

Effective immediately, cases of serious personal injury or death will go directly to the assistant deputy attorney general in accordance with the above.

In addition, government will ask the chief civilian director of the IIO to review, after three years, the IIO's experience, in light of this policy, with reports to Crown counsel.

Summary of Recommendation
3. Inadequate or incomplete reports to crown counsel - Charge assessment guidelines in CJB's manual (p. 6, chapter 1) should be amended to ensure that police reports to Crown counsel provide a complete, accurate and detailed statement of available evidence and supporting documents, including charge recommendations (name of accused and their offences) and statements from witnesses and accused. Crown counsel should communicate with the investigator if additional information is needed or, if the materials are not provided, advise the investigator a charge assessment decision cannot be made

Action Plan
CJB policy will provide that any report to Crown counsel (RTCC) should include a recommendation from the investigating agency respecting who should be charged and for what potential offences, except where the investigating agency is uncertain as to these matters. CJB policy will provide that Crown counsel will advise the investigator in writing that a charge assessment cannot be made where additional information is required before the charge assessment process can be completed.

Summary of Recommendation
4. Written charge assessment reports - CJB should develop a policy on when prosecutors should prepare detailed written charge assessment reports and what information such reports should include.

Action Plan
CJB policy now requires that written charge assessment decisions be kept in certain circumstances. CJB policy will clarify and confirm implementation of this recommendation.

Summary of Recommendation
5. Timeliness of completing charge assessments - CJB should develop a file management system that alerts administrative Crown counsel when a pending charge assessment decision has been outstanding for 30 days.

Action Plan
Where there is an allegation against a police officer, CJB policy will provide that any RTCC should be returned to the investigating agency if it has not responded within 30 days to a request from Crown counsel for further information on the matter.

Summary of Recommendation
6. Reconsideration of a no-charge decision because of changed circumstances - CJB should develop a written policy on reconsideration based on new evidence and/or changed circumstances that may materially affect the charge assessment decision, including who will conduct the new assessment.

Action Plan
CJB policy will clarify and confirm the process for reconsideration of no-charge decisions based on new evidence.

Summary of Recommendation
7. Reconsideration of a no-charge decision that may have been wrong - CJB should develop a written policy on reconsideration, including the level of certainty required that the decision was wrong before charge assessment will be reconsidered, whether reconsideration should take the form of a new charge assessment or review of the existing assessment, who should conduct it and the duty to take into account whether approving a charge after an earlier decision not to charge may constitute an abuse of process.

Action Plan
CJB policy will clarify and confirm the process, and standards, for review where the branch has a concern that a no-charge decision should be reconsidered.

Summary of Recommendation
8. Notification of the victim or victim's family - CJB amend its policies on notification of charging decisions to address notification of victims or their families, clarify who is responsible for notification and require written documentation of notification particulars.

Action Plan
CJB policy will ensure that, in serious cases, reasonable steps are taken to ensure that victims and/or their immediate family members are notified of charge assessment decisions and the progress of any ensuing prosecution. CJB will continue to comply with the requirements of the Victims of Crime Act with respect to the provision of reasons for charge assessment decisions and information on charges laid.

Summary of Recommendation
9. The branch's public statements - That CJB's policy on public statements on no-charge decisions be amended to include a summary of material facts to give readers a fair understanding of what occurred, identity of the potential accused (unless there are valid reasons to withhold it), criminal offences considered, why evidence on each offence was insufficient to warrant charges and, if a significant delay in completing the assessment occurred, why that was.

Action Plan
CJB policy will implement this recommendation, but the name of the potential accused will only be released if it is already in the public domain. The branch will also continue to comply with the requirements of the Freedom of Information and Protection of Privacy Act with respect to the release of information and disclosure of reasons not to prosecute in other cases.

Listen to the Technical briefing - Davies Commission recommendations - BC Deputy Attorney General David Loukidelis and Crown counsel Neil MacKenzie (soundcloud.com)

Contact:

Dave Townsend
Government Communications and Public Engagement
Ministry of Attorney General
250 387-4962 or 250 889-5945 (cell)