Sunday, May 13, 2007


DISCLOSURE? - Not Really


DISCLOSURE? – Not Really
By Anonymous

Part I - Pulling hens' teeth and other disclosure nightmares.

Some time ago, here at The Legislature Raids we posted a six-part serial on the Notice of Application for discovery in an attempt to analyze the Defence ‘theory’ of this case; a theory spelled out in 78 paragraphs in the Application. The last part of the analysis was posted at the ‘Raids’ on April 1. You can find it in the archives here:

Now, since the ‘trial’ itself was slated to begin in mid-April and being that the first order of business would be disclosure issues it seemed reasonable to assume that there was no further need to explore in detail the rest of the 200 paragraphs in the ‘Application’.

Since the ‘trial’ began (and even that fact is subject to serious debate) the court has not released any more factual material to either the public or the press and, despite the assurance of the presiding judge that the public interest was a paramount factor in the handling of the prosecution of these three accused, the bits of material disclosed from time to time in the media have been tantalizingly few and far between.

The ‘Raids’ has attempted to provide, in the form of press clippings and links, a complete account of this material for the interested reader. Moreover, judging by the daily hit statistics for the site, a good many new and old visitors have been stopping by in the regular course of their effort to stay abreast of the goings on in Court Room 54.

In addition, it’s a good thing they do because it is really only in the print media and here on the internet that much has been available for the interested citizen.

Radio and Television coverage has been embarrassingly poor and intermittent.

But, all that being said, if a concerned British Columbian were of the opinion that the major disclosure issues in this trial have been, or are being, efficiently addressed during the dozen of so days of actual court work that have transpired since April 18 – well, I think that’s a very questionable assumption.

As evidence, I’d like to go back to just a few of those 120 – odd paragraphs and remind the reader just exactly what ‘full discovery’ in this case may actually mean.

In ¶ 80 the defence says the Special Prosecutor (remember this was written in late February of 2007 after seven (7) phases of supposedly complete disclosure by Bill Berardino, Q.C. and his staff stretching from January 19, 2005 to February 15, 2007) has: “…fail(ed) to identify documents and materials that were not being disclosed to the defence.”

And, a few paragraphs further along in the notice the reader comes across this:
(¶ 84) “…Throughout the hearing the Special Prosecutor acted with great umbrage when it was suggested that neither the correspondence related to disclosure, nor the timing of disclosure by his office bore out his strong statements and assertions.”

That is, approximately, the same attitude that Andrea MacKay and Janice Winteringham have displayed in court when confronted time and time again with the same problems and the almost undisputable fact that the Crown is, and has been, dragging its feet.

I’d hasten to add it is not just the Defence saying this. Let me quote Madame Justice Bennett – at ¶ 49 of the judgment she delivered at the conclusion of a 4 day hearing on disclosure on November 14, 2006: “I find at this point it cannot be said that basic disclosure has been met.” (ref ¶ 86 of the Notice).

Now, given what Madame Justice Elizabeth Bennett has been saying in court during this past week, I think it’s hardly surprising that both the Court – and the defence – are starting, it seems, to take a little umbrage at what the Special Prosecutor and his friends have not been doing since November 14, 2006. Another seven months have passed and we are still picking through the leavings at the bottom of the cage.

You’ll remember that the judgment referred to above also gave the defence access to the RCM Police Project Room (¶ 49 of the judgment) and, that “the Crown will also provide better and more complete indexes of the document(s) that they have disclosed, as well as documents that appear on the not-disclosed list” (¶ 51 of the judgment).

In fact, it was because of this Court-order that the defence became aware of exactly how piecemeal and incomplete disclosure up to Phase 5 had actually been.

Given the record from the court since then, it seems that improvement has been glacial.

The next installment of ‘DISCLOSURE ? – Not Really’ will give the reader an impression of the magnitude of what defence council – and by implication the public – are missing.


Last November the trial judge ruled 'that basic disclosure has not been met.'

Further, Madame Justice Elizabeth Bennett followed up with this order: " is a appropriate in this case to permit defence counsel to accompany the Crown and the police to the Project Room to verify the contents of the documents." (para 49 of judgment)

Nevertheless, just to mention a couple of the things the defence subsequently concluded as a result of their time in the Project Room:

a) Although the Crown told the court all hardcopies of BCRail documents WERE in the project room and that they had twice been reviewed by the Special Prosecutor and/or his staff, however, these and other hard copies of documents "were completely missing from the Project Room..."

b) Despite the fact that defence counsel had repeatedly requested the first and second round bids by the final three proponents for the Freight Division of BCR and the first and second round bids for the Port Subdivision of BCR. [First requested March 15, 2006]

These documents had not yet been provided to the defence as of February 26, 2007.

In fact, the last 120-odd paragraphs of the 32 page Notice of Application for Discovery is literally full of examples of non-compliance, sloppy record-keeping and haphazard indexing, discontinuities between what the Crown has provided or undertaken to provide and statements (especially relative to the notes and records of the investigating officers) that had not been provided at that time and which - given Bill T's and others' reports from the court since April 18 - have still not been provided.

Anyone who has seen the Notice of Application will recognize that I've only mentioned a couple of examples.

The document is FULL of them.

It would not be surprising if the public began to think the reluctance of the Crown to provide full Court-ordered disclosure is somehow related to reticence on the part of government MLAs to even acknowledge some of the factual material that HAS been disclosed in court. In its final session last week, the trial judge sounded as though she may finally be getting ready to issue further orders to the Special Prosecutor. Both the people and the accused can only hope so.

Agreed, Anonymous. And thanks.

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