A coroner's inquest into the murder-suicide of a Vancouver Island family will have to proceed without hearing from Crown prosecutors, says the B.C. Supreme Court.
In a ruling released Tuesday, the court found that prosecutors cannot be compelled to appear before the inquest into the September 2007 deaths of the Lee family in Oak Bay, B.C.
But in a separate judgment, the court said prosecutors will have to appear before a public inquiry into the death of a man who froze to death in the Vancouver alley where he was left by police.
The decisions mean the commissioner at the inquiry into Frank Paul's death will hear from three prosecutors as to why the two police officers involved with Paul the night he died were never charged with a crime. The inquiry report has been on hold since last month awaiting the B.C. court's decision.
In his ruling, Justice Thomas Melnick agreed with the inquiry commissioner's opinion that, by calling the inquiry and setting out the terms of reference, the Crown essentially waived any solicitor-client privilege.
"It is an important and vital principle that prosecutors in the employ of the Crown who are charged with the responsibility of deciding whether or not prosecution should be laid should be protected from having their decisions reviewed in any forum other than within the (Criminal Justice Branch)," Melnick wrote.
"However, an equally important public policy is the maintenance of confidence of the public in the justice system and the appreciation that sometimes only transparency will ensure that confidence."
Paul, an alcoholic aboriginal man, froze to death in December 1998 in the Vancouver alley where a city police officer left him.
In February, inquiry commissioner William Davies ruled that the prosecutors should testify and Melnick refused the Criminal Justice Branch application to have that decision overturned.
Melnick noted that "the aboriginal population and the Paul family placed their trust in the Crown . . . to provide them with the truth about the events surrounding the death of Mr. Paul."
David Dennis, vice-president of the United Native Nations Society, which had intervener status at the inquiry, said the prosecutors have to be held accountable for their decisions.
He said their testimony is critical because so many questions have been left unanswered.
"Everything so far has led us to paint a picture of the actions of the police and, in our view, the actions of the police have been criminal in nature," he said.
"It's a great day. As we approach the terms of reconciliation within this province and this country we've always said truth has to come first and I think that in this instance the truth will come out."
In his decision on the Lee case, Melnick found that the Supreme Court of Canada has previously ruled that prosecutorial independence must be protected.
"Prosecutorial independence is a constitutional value of such importance that . . . it outweighs other important societal needs such as judicial supervision," Melnick wrote.
The Lee case is being reviewed at a coroner's inquest, and not a public inquiry whose terms of reference were set out by the Ministry of the Attorney General, as is the case in the Paul inquiry.
The ruling means the inquest into the murders will continue without hearing from prosecutors Ruth Picha and Laura Ford about why they didn't oppose Peter Lee's release on bail for a domestic violence charge before the murders.
Lee murdered his six-year-old son, his wife and his in-laws in their home in the Victoria suburb of Oak Bay last September.
In April, jurors at the coroner's inquest said they wanted to hear from prosecutors and the inquest was put on hold pending the judicial review.
Stan Lowe, a spokesman for the Criminal Justice Branch, said both rulings uphold prosecutorial independence.
"We are currently in the preliminary stages of our review of both decisions," said Lowe. "The common theme from both decisions is that the court has upheld the principle of prosecutorial independence and found that it applies to both types of public inquiries."
He said prosecutorial independence ensures the decisions of the prosecution service are based on fair, impartial and dispassionate reviews of evidence and are not subject to pressure from any forces.
The B.C. Coroner's Service is also reviewing the rulings, including consulting lawyers about whether to appeal the ruling in the Lee case, a spokeswoman said.
A Victoria lawyer representing victims of domestic abuse at the murder-suicide inquest in Victoria said she still expects answers from prosecutors when the inquest resumes.
Diane Turner said she had a previous agreement to submit written questions to the Crown and the Crown agreed to answer those questions.
"My clients are hopeful that any outstanding questions that remain can be answered...," she said.
