Appointed Special Prosecutor Resigns from Deleted Email Investigation

The same day that his appointment as the special prosecutor for the criminal investigation into the British Columbia government's deleted email scandal was announced, Greg DelBigio has withdrawn from the case.

A statement from the criminal justice branch in the justice ministry said that after the Nov. 19 announcement, "questions were publicly raised about the fact that Mr. DelBigio is presently acting as defence counsel in a separate case which is being managed by a special prosecutor, involving allegations of offences said to have been committed under the provincial Election Act by someone who was an employee of the BC Liberal Party at the material time."

DelBigio is the lawyer for Mark Robertson, one of two people charged in the "quick wins" case involving the use of government resources to conduct multicultural outreach to voters. The special prosecutor on that case is David Butcher.

"Neither Mr. DelBigio, nor the Criminal Justice Branch, considers this situation as one that gives rise to any real or apparent conflict of interest," the statement said.

"However, out of an abundance of caution and in recognition of the importance of safeguarding the perceived and actual integrity of the investigation and prosecution process, Mr. DelBigio has decided to withdraw from his appointment as special prosecutor.

"He has determined, out of respect for the importance of maintaining public confidence in the administration of justice, that even a risk of a perception of potential conflict must be avoided."

Assistant Deputy Attorney General M. Joyce DeWitt-Van Oosten, Q.C. made the appointment "independent of any consultation with, or the approval of government" and DelBigio consulted with her before deciding to withdraw, the statement said.

DeWitt-Van Oosten will appoint a new special prosecutor "as soon as reasonably practicable" and the appointment will be announced publicly.

Triple delete saga

The case stems from an October report from Information and Privacy Commissioner Elizabeth Denham. In Access Denied: Record Retention and Disposal Practices of the Government of British Columbia Denham found that George Gretes, a ministerial assistant to Transportation and Infrastructure Minister Todd Stone, had likely deleted emails that were subject to a freedom of information request related to the Highway of Tears in northern B.C.

During Denham's investigation, Gretes at first denied having deleted the emails on former staffer Tim Duncan's computer, but later changed his story, Denham wrote. "The Commissioner has referred this case to the RCMP for investigation, including Gretes' failure to tell the truth under oath," her report said.

The day Denham released Access Denied, Technology, Innovation and Citizens' Services Minister Amrik Virk said the government had accepted Gretes' resignation.

Special prosecutors are independent from the government, justice ministry and criminal justice branch. The Crown Counsel Act allows for such an appointment "where some aspect of an investigation, or prosecution file, carries a significant potential for real or perceived improper influence in prosecutorial decision making."

The role includes deciding whether or not to lay any charges based on the RCMP's report on its investigation when it is completed.