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Vaughn Palmer: An MLA cannot function while fighting criminal charges

It's not a matter of guilt or innocence but the ability to do the job while distracted and under a cloud

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VICTORIA — Richmond MLA Hon Chan showed no inclination to resign this week after being charged with assault, assault by choking and uttering threats in an alleged case of domestic violence.

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“Chan was made aware of a claim relating to an allegation from approximately 2½ years ago,” said a statement from his constituency office Thursday.

Vaughn Palmer: An MLA cannot function while fighting criminal charges Back to video

Disagrees with allegation. Looks forward to defending himself in court. Co-operating fully with police.

“As this matter is now before the court, no further comment will be made at this time.”

Opposition Leader Trevor Halford put some distance between his party and Chan, dumping the rookie MLA for Richmond Centre from the B.C. Conservative caucus.

Halford then left it to the now-independent MLA to decide how to proceed from here.

“Mr. Chan is entitled to the presumption of innocence and due process before the courts,” he said. “Those proceedings will run their course.”

Yes, Chan is entitled to the presumption of innocence. The charges have not been tested in court and may not be for some time.

But Richmond Centre is entitled to representation in the legislature by an MLA who is not serving under a cloud.

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Chan’s constituents are entitled to his undivided attention and effort, without him being distracted by fighting for his political life in a serious legal proceeding.

These charges of violence — assault, choking and threats — were laid by special prosecutor Andi MacKay under B.C.’s landmark legislation dealing with the prosecution of public figures.

The special prosecutor, like other prosecutors in B.C., would have applied B.C.’s high, twofold test for laying charges.

First, that there is “a substantial likelihood of conviction.”

From the guidelines: “The reference to ‘likelihood’ requires, at a minimum, that a conviction according to law is more likely than an acquittal. ‘Substantial’ refers not only to the probability of conviction but also to the objective strength or solidity of the evidence.

It means weighing “what material evidence is likely to be admissible and available at a trial, the objective reliability of the admissible evidence, (and) whether there are viable defences, or other legal or constitutional impediments to the prosecution, that remove any substantial likelihood of a conviction.”

Once the evidence has met the test, the prosecutor must then determine “whether the public interest requires a prosecution.”

One consideration that likely came into play in laying the charges in this case was “the seriousness of the allegations.”

Domestic violence is never to be taken likely, as Opposition leader Halford and others have said in their comments on the charges.

In gauging public interest, the prosecutor is also expected to consider “the personal circumstances of the accused” and “the need to maintain public confidence in the administration of justice.”

Having already decided that there was a substantial likelihood of conviction on three charges related to domestic violence, it is not surprising that the prosecutor would also have concluded that those charges should be aired in open court because the accused was a member of the legislature.

MacKay was appointed special prosecutor in the case last June 27. But her appointment was not made public until the charges were laid this week.

Such secrecy is a long-standing policy of the prosecution service to protect police investigations and minimize the public fallout for the accused.

The policy is not always applied.

The prosecution service sometimes decides that circumstances require immediate announcement of a special prosecutor “to maintain public confidence in the administration of justice.”

The exception is where a premier or cabinet minister is under investigation or if there has been a leak. Neither was a factor with the Chan investigation.

In any event, the decision to finally lay the charges this week put the case in the public arena and Chan, unavoidably, under a cloud.

The New Democrats promptly called for his resignation. They said it is inappropriate for someone facing serious charges to continue as an MLA.

“These criminal charges were approved by a special prosecutor after a full police investigation regarding serious violent crimes,” said NDP MLA and cabinet minister Grace Lore.

“The B.C. Conservatives should call on him to resign immediately and state clearly that he will not be a B.C. Conservative MLA or candidate in the future.”

Green MLA Jeremy Valeriote echoed the call for Chan’s resignation.

“MLA Chan owes it to survivors, the public, the legislature, and his constituents to resign and to answer to these charges before the courts,” Valeriote said in a news release. “He owes the public an explanation on how he intends to fulfil his duties with these serious charges hanging over him.”

Halford, the interim leader of the Conservatives, chose not to go that far. His hesitation should not stop any of the seven candidates for the permanent leadership from calling on Chan to do the right thing.

Lore also suggested that Chan’s determination to keep working under a cloud makes him a prime candidate for recall.

The 18-months-after-the-election waiting period for recall petitions expires on April 20, two days before Chan is scheduled to make his first court appearance on the domestic violence charges.

vpalmer@postmedia.com

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