Trinh Tu Huynh, defendant in a civil forfeiture action against a home in Surrey, had subpoenaed Leslie LeClair, a Crown prosecutor who had stayed criminal charges against her in connection with the same marijuana grow operation alleged in the civil forfeiture action. The Director of Civil Forfeiture applied to set aside the subpoena of Mr. LeClair, arguing that the court could not make inquiries into the discretion of Crown Counsel.
Ms. Huynh argued that Mr. LeClair’s decision to stay the criminal charges against her was relevant to the constitutionality of the search of her Surrey property, which was a live issue to be considered by the court in the civil forfeiture proceeding.
Mr. Justice Ball of the BC Supreme Court, however, refused to uphold the subpoena, finding that to require a crown prosecutor’s attendance as a witness would compromise the Crown’s prosecutorial discretion, independent of questioning by the court:
 Upon a complete review of the submissions of counsel for the parties and the authorities cited, relying on the decisions in Krieger and Picha, the applicant has established that in his capacity as Crown counsel, he cannot be compelled by subpoena to attend the trial of this action for the purpose of giving evidence concerning the conduct of the Crown file involving Trinh Tu Nguyen. On that basis, pursuant to Supreme Court Civil Rules, R. 12-5, the subpoena issued to Crown counsel, Leslie LeClair, is quashed.
In this situation, it seems that prosecutorial discretion was used not to preserve the independence of the Crown from the court, but to establish a distinction between Crown Counsel and the Civil Forfeiture Office, allowing the two to act separately and exercise their discretion in an entirely contradictory manner.
Decided by the BC Supreme Court on January 21, 2013.
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