Friday, April 27, 2007



Robin Mathews
27 April 2007

To the average Canadian visiting a Supreme courtroom, surprises are the order of the day. Today was no exception. The eleven or so people in the gallery - to say nothing of about the same number in the court proper - waited, and waited for the day to begin. They waited nearly three quarters of an hour.

To the average Canadian it seems strange that no one in the gallery knows why there is a delay, however perfectly reasonable. Shouldn't someone come out after ten minutes and announce proceedings are delayed, give a reason, and give some sense of when proceedings will begin? Doesn't the judge presiding have some obligation to everyone there to tell them why their court is not operating? Strange. Little things like that are symptomatic of the gulf between the officers of the court and people for whom the courts exist. The tendency of court officers at act as if the people of the country for whom the courts exist do not deserve the slightest consideration is deeply disturbing.

I joked with one journalist that the court should provide us with refreshments when there is such a delay. Perhaps not that. But the judge should make certain that the people for whom he/she works - the people in the gallery, the Canadian people, are not treated like garbage to be ignored when such incidents occur.

Today troubled words, a serious clash ended the morning session. With usual deliberate organization, Defence counsel Kevin McCullough reviewed the actions (and the inactions), the responses (and the failures of response), the disclosures (and the failures to disclose) of the Special Prosecutor about whom he said at one point that such an appointment was made to assure complete independence and impartiality, but that quite a different sense could (and perhaps must) be gained from William Berardino's conduct.

McCullough spent a good deal of time on the matter of so-called "star" witness, Erik Bornmann, the "deal" struck between him and Crown counsel, the negotiations to put together and partially unpick the deal, the conduct of the Special Prosecutor in the making of the deal (and its partial unmaking), the strange action of Erik Bornmann in issuing (untrue) press notices that he had been completely exonerated of wrong-doing, the Special Prosecutor's conduct in the matter of Erik Bornmann continuing in "articles" with a legal firm in Toronto and, apparently, about to proceed to admission to the Law Society of Upper Canada while in a legal condition which found him (to refer to Defence's language) self-admittedly guilty of bribing a public servant.

And all that was to make a point relentlessly hammered in these hearings. Disclosure of materials needed by the Defence has been shoddy, imperfect, and - in the case of the all-important star witness - almost non-existent.

While the sights of Defence are upon William Berardino and his assistants, to the average Canadian visiting a Supreme courtroom a question occurs (yet again). Where has the judge been? Why has the judge not insisted upon full and timely disclosure?

We watched (as an average Canadian I insist upon making this point again) Madam Justice Brenda Brown in the service of justice, the Gordon Campbell government's Olympic plans, and a U.S. corporation fall upon average, decent Canadians with draconian and swift action - to the point of jailing for ten months a 78 year old woman for failing to show contrition and jailing a sick, elderly Native woman in a wholly unsuitable jail, which conduct almost certainly caused the woman's death!

It is not enough to say that the demonstrators at the Eagleridge Bluffs violated direct and clear court orders and so admitted themselves to contempt of court. They only did so because the judge uttered unnecessary court orders in that case.

The fact - in the Basi, Basi, and Virk trial - that Madam Justice Bennett has not issued court orders to the RCMP, Crown Counsel, certain government officials and perhaps others may reasonably be seen as a failure to use necessary court power. In that case there is very little likelihood that she would have had to cite those ordered with contempt of court. Her firmness of purpose would have ended what seems to average reasonable observers to have been and to be delay of a kind that smacks of an attempt to pervert the course of justice.

All that brought the end of the morning to what might be called a serious clash between Defence and Prosecution. Crown counsel Winteringham rose in dismay at the apparent inferences of Kevin McCullough, suggesting that he seemed be suggesting prosecutorial misconduct by William Berardino.

She was replied to by Defence Counsel Michael Bolton who summed up the argument of the morning with clarity and perspicuity, anchoring it in the case being made for huge failures of disclosure. When Kevin McCullough rose to assure Crown counsel that if it saw prosecutorial misconduct as a conclusion of his argument, he was not responsible for that.

Madam Justice Elizabeth Bennett suggested to Mr. McCullough that perhaps he had been making inferences, but he would not give any ground. The objection of Ms Winteringham was voided of any formal character, and the assembly filed out, each to pursue his and her own thoughts on the matter.


Excellent post Robin. You forgot to mention the fact the prosecutor asked for a publication ban only to be shot down by the judge and the defence lawyers. Maybe campbell called the prosecutor and told him to do something, anything to save his hide!! I am really shaking my head at this affair, why would the prosecutor ask for a publication ban unless he was worried about something.
John's comment here is really interesting.

I've heard not a whisper of this in any other report from the court, have you?

I wonder if John will let us know if he was in court himself to hear Ms Winteringham make the request for a publication ban at this very late and highly unusual stage of the game.

Especially given Madam Justice Elizabeth Bennett's statement about openness and the importance of the public interest in having this vital information put before the citizens of British Columbia and Canada.

What was the 'CROWN' thinking?

I have spoken to someone who was at the trial. They mentioned that the publication ban request came shortly before lunch and the judge remarked that a publication ban request should have been made weeks ago as the crown has had the defence materials for several weeks. This application was not "sprung" on the Special Prosecutor by surprise.

Things will heat up next week with the focus turning to others involved in this sordid affair.
Hi John, Anon:

I've been asking around but not much to report yet. The last thing we need on the Basi, Virk, Basi trial is a publication ban. Cameras in the courtroom would be more like it.

Happened to see this comment, dated almost a year ago, from the Editor-in-Chief of Victoria Times Colonist:

Judge lifts publication ban covering murder trial after TC goes to court

An excerpt from Times Colonist
Published: Tuesday, June 13, 2006

A publication ban has been lifted ... The Times Colonist applied for a special standing in the trial and applied to Justice James Shabbits for a lifting of the ban.

Times Colonist editor-in chief Lucinda Chodan said the newspaper believes it is important to battle publication bans in order to keep the operation of Canadian justice transparent. She said court publication bans are being sought more frequently, with the result that Canadians are being kept from knowing what is going on inside their justice system.

Sure hope Times Colonist still feels this way.

But.....Does this particular E-in-C actually feel this way about this particular trial?

John and Anon--

Was there a rationale given by the Crown for this attempt to further subvert the public interest?

Finally, I hope I'm way wrong here, but.... I have a sneaking suspicion that if things continue in the coming week as they did in the last one that leaked reports regarding the Judge's 'possible' conflict of interest due to the fact that she may have taught a class at the same Real Estate Company, errrrr...... University.....that Mr. Bornmann was a student at may suddenly start re-surfacing of the blue.

Its really simple to understand what happened in court before the lunch break Friday. The government is getting so much heat somebody made a phone call to the special prosecutor and said one word "HELP"!!!!

My understanding from a friend who went to check out the hearing on her early lunch break was the defence opposed any attempt by the prosecutor to have a publication ban. Something tells me basi and virk have been waiting a long time to tell their side of the story, a story that is very unflattering to the government and the sale of bc rail.

I hope you and your friend can be in Courtroom 54 tomorrow and will keep us posted.

It seems clear to me that citizens need to be right there in the gallery to hear the details. The more, the better. I think our presence in court gives a reassuring signal to the judge and to the legal team too, don't you?

Many thanks.
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