How will 'special prosecutor' be involved in RCMP Greenbelt probe?

EDITOR’S NOTE: A version of this article originally appeared on The Trillium, a new Village Media website devoted to covering provincial politics at Queen’s Park.

A "special prosecutor" is expected to be involved in the criminal probe into the Greenbelt changes — and may already be, according to correspondence sent by one of the investigators on the case. 

The correspondence sent by a Royal Canadian Mounted Police investigator, which The Trillium obtained, indicates involvement by "the special prosecutor" in the case is connected to the complexity of working with witnesses who may be bound by confidentiality or non-disclosure agreements.

If the RCMP taps into the same network of witnesses that Ontario's auditor general and integrity commissioner did while they investigated the Greenbelt changes, the police could confront dozens who are under confidentiality or non-disclosure agreements.

There is no legal definition for a "special prosecutor" in Ontario, and the RCMP investigator's correspondence leaves what their other specific responsibilities would be in the Greenbelt probe unclear.

Although the RCMP investigator implied a “special prosecutor” is already working with police, neither the police service’s spokespeople, nor Ontario’s attorney general, nor the media relations staff for the federal ministers who oversee the RCMP or the Public Prosecution Service of Canada, nor the federal prosecution service would directly address any questions about the involvement of one.

“In order to protect the integrity of the investigation, the RCMP will not be commenting on any aspect of its investigation,” an RCMP spokesperson said.

Based on recent past examples of appointments of special prosecutors in or from Ontario, and from conversations with a pair of former Ontario attorneys general, The Trillium determined a special prosecutor could serve one of two roles in the RCMP's Greenbelt investigation.

Called for backup

One possibility of the role "the special prosecutor" could be playing in the RCMP's criminal investigation into the Greenbelt land swap is as an independent outside legal adviser to police.

In 2019, an Ontario prosecutor was hired to advise RCMP investigators in Alberta while they were looking into allegations that Jason Kenney's campaign for United Conservative Party leader had committed voter fraud a couple of years earlier. No charges have been laid but the investigation is still ongoing, the Globe and Mail reported on Oct. 13.

A prosecutor, but 'special'

The term "special prosecutor" is more commonly used in Ontario to refer to a Crown counsel appointed from outside of the provincial Ministry of the Attorney General to prosecute a case. The ministry tends to seek out special prosecutors when there's concern that a possible conflict of interest could emerge if an Ontario prosecutor handled a certain case. 

"What would typically happen is the assistant deputy minister for criminal law and the deputy attorney general would go to the attorney general and say, 'Look, here's what we have; here's what the police believe they have in evidence, (and) we ... think in our administration of justice, we should not have anything to do with this ... We recommend that a special prosecutor be named,'" said Howard Hampton, who was Ontario's attorney general from 1990 to 1993, under then-NDP-premier Bob Rae.

A special prosecutor was appointed as Crown when former attorney general Michael Bryant was criminally charged over the death of a cyclist in September 2009.

Bryant had resigned from being a Liberal MPP to take a private sector job less than three months before the incident. He was a minister in Dalton McGuinty's cabinet from the Liberals' election in 2003 until shortly before he left Queen's Park, including attorney general from 2003 to 2007 — making him responsible for appointing provincial prosecutors over that time.

The Ministry of the Attorney General hired prominent Vancouver lawyer Richard Peck to be the special prosecutor in Bryant's case to avoid any conflict of interest. Peck withdrew the charges against Bryant the next year.

Another option available to the provincial government to avoid a conflict of interest in a prosecution is for Ontario's Ministry of the Attorney General to refer it to another prosecution service, such as the federal prosecution service. That referral could also be coupled with a recommendation that a special prosecutor be appointed to the case as well, Hampton explained. 

"That removes you from the possible taint of conflict of interest ... (and) it ... ensures the proper administration of justice and that the proper administration of justice is seen by the public," Hampton said. 

Another time under Ontario's previous Liberal government, the deputy minister to then-Attorney General Yasir Naqvi advised any prosecution coming from an Ontario Provincial Police investigation into a former senior staffer of then-premier Kathleen Wynne and a Liberal party organizer be referred to the Public Prosecution Service of Canada.

The ministry took that step about a year-and-a-half before charges were laid in this case, Hansard transcripts from the time indicate. Crown prosecutors employed by the PPSC — not special prosecutors — handled the eventual court case. A judge found those linked to the Wynne government not guilty.

"A decision was made given the proximity to the premier's office in that matter that in order to ensure fairness (in a prosecution), and that there be no apprehension of bias or allegation, that the matter be dealt totally independently outside the government of Ontario," Naqvi, Ontario's attorney general from 2016 to 2018, said in an interview last week.

"You always need to make sure that there's no apprehension of bias and that the prosecution happens — as is always the case — in the most independent fashion," added Naqvi, who is running for leadership of the Ontario Liberal Party and is currently a federal Liberal MP.

No comments all around

RCMP spokespeople wouldn't directly address any involvement by a special prosecutor in the Greenbelt investigation.

Ontario Attorney General Doug Downey and his office wouldn't address a special prosecutor's involvement, nor whether it had referred a possible prosecution following the Greenbelt investigation to the PPSC, nor whether ministry officials had raised to him how to handle a potential prosecution.

Spokespeople for the federal Minister of Justice and Attorney General Arif Virani and Public Safety Minister Dominic LeBlanc redirected media requests to the RCMP and the Public Prosecution Service of Canada (PPSC).

"As a matter of policy, the PPSC cannot speak to a matter unless or until charges are laid," a spokesperson for the federal prosecution service said. "We have no information to provide."

Naqvi said that either of the two possible meanings of a "special prosecutor" in the Greenbelt investigation, as they're laid out in this article, "points to that this is a very serious matter." 

A referral of prosecutorial responsibility is separate from a decision to refer an investigation — which is how the RCMP became involved in looking into the Greenbelt. The RCMP took over a review from the OPP in mid-August, seven weeks before confirming it had launched a full-fledged investigation.

When handing off responsibility for looking into whether there was a criminal element to the Greenbelt removals to the RCMP, the OPP said it was "to avoid any potential perceived conflict of interest."

The OPP has refused to disclose any more of the specifics it was concerned about, but did rule out connections between the parents of Ryan Amato, the staffer at the centre of the Greenbelt controversy, and OPP Commissioner Thomas Carrique.

In revealing that its sensitive and international investigations (SII) unit had officially launched a criminal investigation, an RCMP spokesperson said in a statement on Oct. 10 that it was looking into "allegations associated (with) the decision from the Province of Ontario to open parts of the Greenbelt for development."

A week before disclosing the start of its investigation, an RCMP spokesperson said the force's domestic corruption and political investigations team — which fits within its SII unit — had been given responsibility for the Greenbelt matter.

According to the RCMP's website, the larger SII unit is responsible for "sensitive, high-risk matters that cause significant threats to Canada's political, economic and social integrity."

The domestic corruption and political investigations group within the SII unit specializes in investigating allegations of fraud, corruption and illegal lobbying, as well as matters involving elected officials and other politicians.

The RCMP has revealed very little about its investigatory work to date, which it said in its Oct. 10 statement is "to ensure that the process leads to a fair and proper outcome."

Ford announced on Sept. 21 after two days of meetings with his Progressive Conservative caucus and cabinet that his government would undo its controversial Greenbelt removals.

"I made a promise to you that I wouldn't touch the Greenbelt. I broke that promise, and for that, I'm very, very sorry," Ford said while announcing his reversal.

Since unveiling its plan to remove 7,400 acres of land in 15 different sites on Nov. 4, 2022, Ford and the Progressive Conservatives have consistently been dogged by the issue. 

Up until Ford's U-turn, he and his government had unrelentingly defended its plan, insisting they were done to allow 50,000 homes to be built.

Findings reported on Aug. 9 by Ontario's auditor general — including that the land-selection process leading to the removals was biased in favour of certain developers who stood to make upwards of $8.3 billion from the plan — transformed the controversy into a full-blown scandal for the Ford government.

The auditor general's report also mentioned that "93 confidentiality agreements were signed" over the course of the project that Amato ran to select land for removal from the Greenbelt.

Ontario's integrity commissioner released a similarly scathing report from his own Greenbelt investigation on Aug. 30. Commissioner J. David Wake described the process leading to the land removals as being "marked by misinterpretation, unnecessary hastiness and deception," and said it "resulted in the creation of an opportunity to further the private interests of some developers improperly."

Two cabinet ministers and two senior staffers, including Amato, involved in the scandal resigned over it before Ford's reversal.

Municipal Affairs and Housing Minister Paul Calandra introduced legislation on Oct. 16 to reverse the Ford government's Greenbelt removals.

Calandra said this Monday that the RCMP hasn't yet contacted anyone in the government for its Greenbelt investigation. Ford's office has also promised to "fully co-operate" with the RCMP's investigation.

—With files from Jessica Smith Cross