The role of prosecutors in criminal justice and the rule of law transcript

Welcome to the Rule of Law Matters podcast. If you're wondering what the Rule of Law means and why it matters, this is the podcast for you. This is season one, episode 12, The Role of Prosecutors in Criminal Justice and the Rule of Law. This podcast is brought to you by the Law Society of British Columbia. The Law Society is a regulatory body that protects the public by setting and enforcing professional standards for lawyers in our province. We bring you this discussion today to raise awareness about the importance of upholding the rule of law. Here's your host.

Jon Festinger

I'm your host Jon Festinger. I'm a member of the Law Society's Rule of Law and Lawyer Independence Advisory Committee. I'm also a lawyer and teach at UBC's Allard School of Law and the Thompson Rivers University Faculty of Law. Today we are welcoming Christopher McPherson QC to talk about role of Crown counsel and prosecutors in upholding the rule of law. Christopher McPherson QC is a senior prosecutor responsible for challenging high profile homicide cases. He was called to the bar in 1987. He has been a prosecutor for nearly 22 years and he has prosecuted over 40 homicide cases. Chris is also the Second Vice President of the Law Society which means he will be President in 2023. Chris was first elected as a bencher in 2016. Welcome Chris, it's great to have you here.

Christopher McPherson

Thanks a lot Jon, it's great to be here.

Jon Festinger

Tells us a bit more about yourself, particularly why did you decide to pursue the law, pursue a career in the law, become a prosecutor and how much of that may have been connected to what we now call, at least in this podcast, rule of law principles?

Christopher McPherson

I actually ended up going to law school pretty much by accident. I had finished my undergraduate degree, I travelled around and I guess like so many people in their twenties wasn't quite sure what I was going to do with the rest of my life so I decided to apply law school and that's what I did. And right from the start it was criminal law that attracted me. I guess I sort of, probably like a lot of young lawyers, envisioned myself you know as the next Clarence Darrow or something, right. And then I did the Criminal Clinic at UBC and I found that I just loved being in the courtroom. I spent a large part of my second year hanging out, hanging out at the provincial courts because I enjoyed that a lot more than going to classes for some reason.

But then you know like it's sort of hard looking back but I think I probably succumbed to the peer pressure at the university, particularly at UBC which is where I went. You weren't a success if you didn't get a job downtown in the big firm so I did that, ended up working at a couple of different firms. After what, three, four years, I decided mmm, no, that's not what I want to do so I left, struck out on my own after I don’t know, four years, and I guess the timing wasn't great when I decided to go out on my own because that was when the first big legal aid strike happened which would have been of course after I'd signed my lease and bought my furniture and all that good stuff.

But in any event, I found space to share, eventually formed a partnership. That lasted eight, nine years or so, did everything I could to grow a criminal defense practice although I did other stuff too just to sort of pay the bills, did some ad hoc work, and then I ended up at the Crown and that really happened for two things, reasons. My business partner had a hard time making a go of it, she ended up leaving the, not leaving the practice but leaving private practice, joined a public advocacy group and after that, it's sort of hard to explain but it just didn't feel the same the way my firm worked and I wanted to do the bigger cases and I was on my own with just a couple of partners and I was having a hard time getting the bigger cases, which is what I wanted to do. And so I went to the Crown, I'd always done Crown work, I'd always done some ad hoc work and within a couple of years, all I ended up doing was major cases and mostly homicides for the better part of 20 years. 

Jon Festinger

What's the attraction of those major cases to you?

Christopher McPherson

I think it's a number of things. They're very high stress but you feel like you get a lot out of it. I think I probably admit that there's a bit of ego involved that you want to do the big cases; if you're going to do criminal law you want to do the big cases, you want to do the homicides, at least I did and as I've been doing it longer and longer and longer, one of the other things is I'm really attracted, because we almost always have, for example, a second lawyer on the case, I get to work with young lawyers who it just gives you a huge amount of energy, it's, they're great to work with. So it's a combination of things. I've done the provincial court work but I much prefer the, the bigger cases.

Jon Festinger

When you're doing a big case, you realize that a lot of people are watching, not just lawyers and judges but members of the public and that how the case is handled carries some significance for society, for the rule of law in a free and democratic society; do you ever think about that? Are you aware of the stakes and how people read into the system or not?

Christopher McPherson

I'm always aware of the stakes. You're dealing with people's lives and I'm talking both the person on a homicide and their family who have lost their lives but also the person accused of the crime. A person's going to get convicted of murder they're going to get a life sentence and you're keenly aware that you are being observed by any number of different facets of society. You see your name all the time in the press. You get phone calls, some of them strange phone calls from people you've never, have no idea who they are. You get media calls all the time and I've got a pretty good relationship, I think, with the media because I've long, long ago realized it was important to speak with them and sometimes you speak with them, honestly, off the record and you develop trust relationships with certain members of the media.

And also, there's pressure just from society. I mean I look at some of my cases and you know there's the letters to the editor or the comments sections on the CBC and you're dealing with victims and families of victims who have obviously a keen interest but a different interest than your own. So I don’t think it's for everyone but it's really important that you're aware that the things that you do have an impact on much more than just you, you're impacting the, as I say the families, the accused, and society at large. And when you're dealing with someone charged with murdering a group of people, society's interested in those and you'd expect them to be. And so you have to, you're always aware of that I would say.

Jon Festinger

So to get into principles of the rule of law that, that help you navigate and help you steer through these issues, let's start with the most basic question: what does a prosecutor actually do and can you walk us through how decisions are made to prosecute in a criminal law context?

Christopher McPherson

Well I think the first place to start is the very fundamental point that the investigative branch, the RCMP, local police, is separate from the prosecutorial branch. They're very different functions and I think it's incredibly important for the rule of law that they, that we keep those things very different, very separate, very independent. In essence, a police or other agency, sometimes there's other agencies involved, investigate the offense, they gather the evidence, they interview witnesses, they gather evidence from a huge number of different sources. And really at that stage, the prosecution service has a very, very limited role. We are occasionally consulted by the police or other agencies for some advice or to review materials. I'm thinking here if they're making applications to search places or wiretap or any number of those sorts of things which have very significant legal consequences. The prosecution service is often consulted but other than that, it's not really involved in an investigative process.

 So prosecutors don't go to the scenes of crime or anything of that nature. And then once that investigative process is complete or nearly complete, the police forward the information to the prosecution service and that's where the decision about whether to lay a charge or not is made. And that's different than very many places, it's certainly the case in British Columbia but not the case in other provinces. And so we have very established policies about when to approve a charge. We ask essentially two questions, first, is there a substantial likelihood of conviction, that's a pretty high test, and secondly, is it in the public interest to proceed.

Jon Festinger

You talked about other provinces not having the same separation in the same way where the decision to proceed in those other provinces is essentially made by the investigators. When you talk to your fellow Crowns in those provinces, do, is the, is the experience very different from them, for them rather?

Christopher McPherson

I would say it's significantly different but in every province, once the police lay a charge, the prosecution service takes it over. The prosecution service is still responsible for prosecuting that charge and they can stay the charge, they can lay a different charge, they can do all of those things. But one of the things I find that's incredibly important is especially on a major case, there's a certain inertia once a charge is laid that can make it more difficult to intervene at a later stage, to not proceed with the charge, to withdraw the charge, to lay a lesser charge, so I think it's, personally I think it's a much better approach the one that we have in British Columbia because those decisions are made upfront, or most of them are made upfront. And I think what's important to stress is this, British Columbia, the standard of approval of charges isn't just something that you deal with at the very beginning, it continues right through the prosecution.

Jon Festinger

Chris, what does a prosecutor consider when they are deciding whether to lay a charge?

Christopher McPherson

It involves really a, well you review all the evidence, all the evidence that's available at the time but it's a bit more than that because you have to review the evidence and then you have to analyze the evidence. You have to make a determination of what you as a prosecutor feel is likely to be admissible in a court which may or may not be the case depending on the nature of the evidence. You have to consider is that evidence going to be available at trial. So for example, let's say you're dealing with a very vulnerable witness, a witness who is reluctant to provide evidence which happens a lot. You have to think about will that evidence still be there and will it still be reliable because you have to look at all the evidence and ask yourself is that truly reliable evidence because sometimes evidence is presented to you and it looks reliable but it might not be when you actually look at it more carefully. And it actually goes even further than that because you have to ask yourself are there viable defenses and what are those defenses, how strong are those defenses. Are there any other legal impediments, inadmissibility as I said of evidence or even sometimes logistical issues or if you can't find the witness anymore, what if the witness has left and they do.

And you have to think about constitutional impediments even. So are there issues regarding breaches of rights under the Charter of the accused, are there issues admissibility of statements, all of those sorts of things. So it can be a very involved process, particularly on the larger more significant files, for any number of reasons, the evidence is more complicated, the legal issues are more complicated and the stakes are higher. So it presupposes a lot of work, actually, at the very early stages.

Jon Festinger

When you're doing that work, do you see it through a purely adversarial lens? How do you see your role in doing that work?

Christopher McPherson

No, you don’t see it as a purely adversarial process. You certainly have to consider what your adversary, the defense counsel, is likely to raise but there's some very much, some very fundamental issues that you have to consider and that's I think connected in large part to the second branch of the test which whether it's in the public interest to proceed. And sometimes it isn't and that can consider a lot of things. Sometimes it could even be a serious offense but the trauma to the victim, I'm thinking here of, for example, sometimes sexual offenses, would be so great you have to ask yourself can we, should we proceed with this in this manner. What about how long the case is going to take, if it's a massive amount of evidence for what one has to objectively say is a relatively minor charge, and that does happen, you have to ask yourself how do we deal with that.

We also look at, and especially now, issues, what if the accused is an Indigenous person? There's different policy considerations and some of those have changed recently because, as everyone who's involved in the justice system knows, the rates of incarceration for Indigenous persons is far, far, far out of proportion to the population. So those are all sorts of things you're looking at so it's not a purely adversarial system and I think that's really important and people don’t seem to get that sometimes. We, our job as a prosecutor is not to get a conviction, our job is to present the appropriate evidence.

Jon Festinger

With that, let's continue down the path of the things that you have to consider. What is, you know you're part of government in a certain sense, you're seen as part of government. That certainly has a rule of law problem associated with it and there are balances and remedies in the Charter and elsewhere. Talk about that, how prosecutors see themselves as part of government or independent of government.

Christopher McPherson

Prosecutors are employed by the government and paid by the government but we are independent from it and it's incredibly important that the prosecution service is properly funded and that's going to come from the government. But it's also incredibly important that we act in a way that is separate from government. We have to be, for the rule of law to work, it has to apply to the government as well and so we have to be independent of the government. It's a check on the government's extraordinary amounts of power so yes, we are independent from government, and you know it's, this is set out in the Law Society Code of Conduct. I'm a lawyer, we are required under our professional obligations as lawyers, and as prosecutors, to act independently of all partisan concerns all improper motives. It's more than just code of conduct for lawyers, it's there on a constitutional level confirmed by countless cases.

Prosecutors have a quasi-judicial function. We make such important decisions and we have to be able to make them based on established policies, established law, considerations that the government itself perhaps may not want to look at. And it's recognized by government, I mean the, we have a Crown Counsel Act which specifically says that we're independent. Other jurisdictions use a Director of Public Prosecutions or some equivalent, again independent from government. It's a hallmark of any place, an absolute hallmark of any place where there is the rule of law that the prosecution service is independent of government oversight in the sense that sometimes the government has to be prosecuted, for example, and the prosecution, the prosecution service can't be told you must do it this way or that way because that does not serve the rule of law.

Jon Festinger

How do defense counsel see themselves? It's clear how you see yourself; how do defense counsel see themselves, generally speaking obviously, in terms of their relationship to the rule of law and the system of law in a free and democratic society because my experience is they see themselves as a very powerful protector in that system.

Christopher McPherson

And I think they are and I think they must be and I mean I spent a good portion of my life doing defense work as well so the defense bar properly sees themselves as a very fundamental and important check on the powers of the state and to my mind, the rule of law is best protected when defense counsel are very good at what they do, when they hold the prosecution sort of colloquially speaking, the prosecution's feet to the fire because it's a fundamental aspect of criminal law that the prosecution must prove its case beyond a reasonable doubt and the defense counsel, one of the main things that they can do is to make sure that that happens in every case to the best of anybody's ability. And I think overall all members of the criminal bar understand the roles of the prosecution and the defense and all of us understand that we're all very important cogs in the machine of the justice system and the rule of law because it has to be fair to everybody and if a case is not prosecuted fairly then, and not defended vigorously, I think that's a great deal of damage to the rule of law if that is not done.

And you know and the other thing I think that people may or may not understand is that the camaraderie between the defense bar and the Crown, at least in this province, is really amazing. We, the prosecution, the prosecutor, will rely on what the defense counsel says to you and the defense counsel's going to rely on what the prosecutor says to them. It's been a hallmark of the criminal bar in this province for my entire career and I know well, well before my career started. And I think in the long run that too helps the rule of law. I think there's a real sense that we're all in this together in one way.

Jon Festinger

Well because we are. We have this interest, all of us, in preserving the rule of law in a democratic society and that, that is a mutual cause and mutual causes require mutual respect. So that's probably a pretty good jumping off point to a subtle but really important distinction that I think has become more important in our current times, for whatever reason. You talked a lot about or you mentioned that high profile cases and there's a difference, isn’t there, between high profile cases and politically charged cases which often are high profile. Can you talk a little bit about that?

Christopher McPherson

I think to start with yes, we've talked a lot about the high profile cases but most cases aren't. The vast bulk of criminal law is, honestly, fairly minor cases. Most transgressions against the state, most criminal activities, are, if one is objective, relatively minor but they aren't minor to the people who are involved so that's something you always have to consider. But in terms of politically charged cases versus high profile cases, sometimes they're the same but they're different as well. I've prosecuted many, many high profile cases involving murderers, multiple murders so they're very high profile but they don't necessarily have a political edge to them. But some cases do. Now there's the obvious ones, something involving a government official for example, or something that for some reason or another is finding its way to the front page of the Vancouver Sun and The Province all the time. And in those cases, the politicians are more active in those cases. They see them as important to them, important to the government for example, and that can lead to all sorts of potential issues and because while the prosecution service is independent, we are still government employees.

 So in those sorts of circumstances, there is the authority to appoint a special prosecutor, someone who is not employed by the government who will take the reins of the case, who will make the determinations that a prosecutor would generally do. And most of those special prosecutors are defense counsel, often defense counsel almost universally with a very enviable reputation, who have shown their abilities as a lawyer but also their objectivity and it's done not really all that often but it is done and I think it's an important process. And sort of, one thing that I find interesting about that which people may not understand is that the decision to appoint a special prosecutor, someone who's not an employee of the government, is actually not made by the political masters, it's made by the management of the BC Prosecution Service which, when you think about it, is quite interesting because that's a person who is not a political person but looks at it and says no, for these reasons, this has got to go somewhere else and we're not going to do that in house.

Jon Festinger

And that's the perfect way to do it, I mean that's how it has to be done because if it was a matter for the politicians to decide whether it was going to go outside, you could see how that could go off track fairly quickly.

Christopher McPherson

Very, very easily actually.

Jon Festinger

If it's not the government's interests or political interests that you're pursuing, when you go about your day-to-day job as a prosecutor, whose interests do you see yourself as representing?

Christopher McPherson

I think that's a really tough question because no, we don’t represent the government's interest. On one hand I suppose we say we represent society's interest but what that is is I think it's impossible to say. I mean depending on what aspect of society you're talking about, they're going to have different interests. I think really at its heart, what the prosecution does, a properly prepare, properly fair prosecutor, we represent the interests of justice, we represent the rule of law. We know that our job is not about winning a case, losing a case, we are duty bound to make sure evidence is put properly but fairly before the court. So it's, in a way it's a hard question to answer because we definitely don't represent the government, we certainly don't represent the victims, and that sometimes it is something that's difficult to explain because picture the situation, we have a victim or victim's family, they don't really have any other recourse. A person's now being charged with a criminal offense and they often sort of look at you as a prosecutor as their lawyer but you're not and one of your duties as a prosecutor almost invariably is you have to explain that at some point to the victim or the victim's family. And it can be a difficult conversation to have because one can imagine, and again I'm speaking because most of my work is on the more serious files, they want to make sure this person's found guilty. They want to make sure that this person serves a very large sentence and they, the family let's say, want that because they think that's justice, that that's, it's right. And from their perspective I suppose it probably is but that's not really necessarily in the interests overall of society.

We have to think much more about things like rehabilitation, we have to think carefully about what is the right sanction for this particular offense of these particular facts. We aren't interested and the courts aren't interested in vengeance or revenge and The Supreme Court of Canada has told us that very, very clearly. And so your interests or rather the interests that you're protecting, I think that's a better way to put it, may well diverge from the interests of the family. And I've had lots of cases after whatever decision I've made, the family didn't like it, generally speaking, almost always, have been able to explain my decisions to them, but then they may go to the press, they may go to the government, and I think they're perfectly entitled to do that and I don’t have any issue with that. I mean as long as I've explained my decision and I have a strong and cogent rational for making the decisions that I make then I'm going to keep making them. I think this sort of balance, this sort of objectivity is really important overall for the rule of law and they can be very difficult to explain.

Jon Festinger

Well let's go to kind of one last place that flows from all of this, and that is that wrongful convictions do sometimes happen.

Christopher McPherson

They definitely still can happen.

Jon Festinger

How do we handle these issues? How does the prosecution service deal with the reality that a mistake could have been made and move forward from that possibility to rendering justice that may be different from the previous version?

Christopher McPherson

Well I guess the first thing is we try to prevent them by all these various checks and balances and items that we've already discussed. But as you're, you're right, I mean sometimes we get it wrong. I mean there are appeals of course, there's an independent defense bar, there's an independent judiciary, those are all powerful checks and balances, but a person can exhaust all of their legal remedies, all their appellate remedies and still, as it turns out, have been wrongfully convicted and maybe other evidence comes out literally years later and it can be in any number of different forms. One of the things that's happened I suppose in the fairly recent past is the improvements in technologies, for example, DNA that can show that we were all wrong back whenever that case went ahead. Witnesses can come forward decades, literally decades later and then they have to be looked at. And it's always possible to go back and revisit something that may have happened literally decades ago. It can be complicated but it can be revisited.

Jon Festinger

So one thing you talked about Chris earlier is the standards in bringing a prosecution. What's the standard to revisit a conviction? Is it the same standard? Do the standards change? What lens does the prosecution service look at it through?

Christopher McPherson

That's a very difficult question because I mean I think the only answer is it depends. It depends on what the nature of this new evidence is, it requires an independent review and that is often done, certainly the prosecution service will do it in house as well but it may require, probably does require, an outside group to look at it. I can give you some examples. I mean there's the whole, it used to be called the Association of Wrongfully Convicted, I think it's now called Innocence Canada, which will take on cases, people can make applications to them and then they look at them.

I'm even aware of one case in particular, which I'm very much aware of, is that a case came down and one, a fellow prosecutor had been reviewing it and thought my, that sounds exactly like the same facts of this case that had taken place a very long time before and in that particular case, that individual prosecutor spoke to the prosecutor who fortunately was still involved with the prosecution service who'd prosecuted that case and said oh, that sounds like so and so, yeah, it wasn't, it was somebody different. The whole case was reopened, it was a prosecutor in that particular case who initiated the review of what was potentially a wrongful conviction.

It's not perfect, by any means, and it does depend to some degree, honestly and a bit of luck, that some of this evidence comes forward at some point, but it's there and then it becomes a political process and the Minister of Justice or the Attorney General came make certain requests and things of that nature and more investigations can be done, there can be more hearings, those sorts of things. I mean there are some that have been wrongful convictions from 30 years ago, right, and it happens. I don’t know that there's a perfect answer to it.

Jon Festinger

There isn't a perfect answer to most any rule of law question, yeah, there are process answers and following the process with seriousness, with thoughtfulness, with conviction, with ethical clarity and on that note, from my perspective, it's pretty clear that you are an agent of the rule of law and the agent that you are is the kind of person we want looking after all of our interests because there but for the grace of God go all of us in our relationship to the state. So what we need are those qualities that you embody, Chris, and I think we should all be grateful for what you do and how you do it.

Christopher McPherson

Thanks a lot Jon, and if I may say, I think the culture of the prosecution service is exactly that, that we are keenly aware that we have a very considerable obligation to make sure the rule of law is followed in every single case and that we are, to the best we can at least, looking at everything in a way that is as fair as possible.

Jon Festinger

Thanks for listening. Chris McPherson walked us through what the role and duties of a prosecutor are emphasizing their separation from the investigation and the police. He contrasts this with other provinces where this isn't necessarily the case. He also talked about the standards that must be met before the BC Crown decides to lay a charge. We discussed the importance of prosecutorial independence in a rule of law context. Prosecutors don't represent the government's interests but they don’t strictly represent the victim's interests either. Chris clarified that their job is not to get a conviction but to present the appropriate evidence. We also talked about criminal defense lawyers and how they play a critical role as part of the entire justice system. Lastly, Chris talked about the rare occurrences of wrongful convictions, how new evidence might be discovered and what recourses people have.

If you want to know more about the rule of law, visit the Law Society's website at lawsociety.bc.ca. If you liked today's episode, please subscribe and leave us a review wherever you get your podcasts. We also have set up an email to receive your feedback. If you have suggestions or comments, please send those to us at podcast@lsbc.org. Vinnie Yuen is our producer today. This is your host, Jon Festinger, signing off.