Tuesday, May 08, 2007

 

May 8 in Supreme Courtroom 54

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TUESDAY MORNING IN COURTROOM 54
Robin Mathews

Some, but not all, of Tuesday morning's hearing session on the Application for Disclosure of the Defence in the Basi, Basi, Virk case was happening underground, below the level of vision. More of that later.

Crown continued to deal with - if not to answer - points made by Defence, describing the progress of investigation as it ended reference to people such as Gary Collins. And, later, Andrea Mackay provided a guided tour and explanation of the construction of data bases, indices, and search capabilities in relation to the documents and exhibits (evidence) gathered electronically and, apparently, completely available to Defence.

A battle has been going on for months and months about disclosure to Defence, and it didn't stop today.

I have said that the Crown appears to want to narrow the focus of activity in the courtroom, and that makes sense from its point of view. It has a straightforward case (?) against Basi, Basi, and Virk and it really doesn't want to have to talk about people who were never charged, who Crown denies were investigated, or who are being called into question as investigators. But the questions are so sharp about all those matters and about the conduct of the Special Prosecutor that the word "simple" enters almost nobody's mind.

Last week Defence alleged disclosure has been something less than candid and cooperative, citing,for instance, a key telephone message between David Basi and his cousin Bobby Virk that (Defence insisted) was nowhere available on the wonderful, shared electronic archive. If Defence tends to believe the absence of the call is not a matter of error, it cannot be wholly blamed.

Today, at a thoroughly embarrassing moment, Ms. Mackay showed how an index could be found, and - with a few correct buttons pushed - up would come a document from (I think it was) December 10, 2003. Messers. Doyle and McCullough (Defence) interrupted the demonstration to say they had done exactly on their machine what Ms. Mackay had done on her machine, right then, and did not have the same result. So much for a system that is equally electronically available to both Prosecution and Defence. Indeed, at one moment when Ms. Mackay was showing a linkage system (I think) to the judge, one of the Defence counsel remarked that he wished they had that structure available to them.

Crown doesn't want it thought it has been less than candid and cooperative in the disclosure of materials asked for by Defence. Anyone who has sat in many of the hearing sessions, however, has to know the tenacity with which Defence - again and again - reported inadequate, incomplete, bungled, or non-existent responses to requests that materials be disclosed. Indeed, a member of the Defence team asked today - if I heard him correctly - whether the Crown really planned to release some of the materials (and THAT was the problem).

I have expressed wonder, more than once, that the presiding judge didn't contact RCMP, Special Prosecutor, and others and tell them if disclosure was not expeditious and efficient, she would make court orders and she would punish failure to comply. Madam Justice Bennett has seemed to have almost the same attitude to the failures of disclosure as she has to granting public access to documents. Do those two matters have a common characteristic - that they are displeasing to those who want secrecy and delay?

Ms. Winteringham reported yesterday that the Crown has secured fourteen affidavits from investigators. Those affidavits bring much that is in question to resolution - if they can be believed. And those affidavits, as I have already said, are sworn, are complete, are there, and are formal. They should be available to any Canadian who wishes to examine them. Madam Justice Bennett's refusal to make them available calls into question, I insist, the integrity of her place as presiding judge.

That statement leads to my statement that much that happened today happened underground, below the level of vision. First, the Crown offered its analysis and then its electronic demonstration as if there has not been a continuous fight to get disclosure of important materials. Second, Crown and RCMP have been, we were told, in constant communication on the matter and the means of providing and placing evidence required on electronic vehicles.

But we can't help remembering that Sergeant Debruyckere, who has had large power in the matter of investigation, is the brother-in-law of Kelly Reichert, then Executive Director of the B.C. Provincial Liberal Party and on the Provincial Election Campaign Team with Gary Collins. Lifting our eyes a little, we see the RCMP in a "smear and disinformation" campaign in the nineties Gustafsen Lake Standoff, and doing dirty tricks in the Glen Clark matter. Lifting our eyes a little more, we see the RCMP in Ottawa deep in corruption allegations, now, which produce allegations from rank and file police that "co-operative" officers were the ones who got promoted and got interesting jobs. Officers asking for behaviour of integrity, it is alleged, were sent to unattractive positions. Acting national Commissioner of Police after the resignation in disgrace of Guiliano Zaccardelli, we know, is Beverly Busson who left the top job in B.C. to take the acting position. Should we rejoice in her good fortune?

Then there is the highly visible problem of elected officials - all of whom, without exception, have been found to need no investigation or scrutiny by RCMP and Crown. Defence reference to both dubious and sleazy activities connected to elected officials has been forced in, of necessity, in the attempt to get necessary materials disclosed. Can we be confident that not one elected official in the huge sleaze of the BC Rail sale crossed the line into actionable behaviour? Not one?

There is the question of the appointment of the Special Prosecutor who was at one time practising law with the Attorney General who appointed him to the BC Rail matters. He is, and has to be, on a level not unlike that of Sergeant Debruyckere: can British Columbians be assured that of all the choices in the Province those choices - despite what might seem to be connections those men had which some might say tended to bias - were the best that could be made in the interests of justice?

And then there are questions of the objectivity of Supreme Court judges in a system that has placed a long time colleague of many of them in the position of Attorney General, and that has frequently given examples of seeming bias in favour of Big Corporations and Campbell Government.

All of those energies are working beneath the calm and (mostly) good-mannered exchange in courtroom 54. All of those energies burst constantly in little flashes as the people in the court proper (watched by the people in the gallery) continue in their adventure, seeking justice in the matter of the BC Rail dirty sale and the many, many strange activities that have arisen from that unfortunate event.

None of the difficulties of the Crown should be under-estimated. Some materials couldn't be put into an archive until an investigation in question was completed, and so a staggering of entries was inevitable. Technical problems in such a large matter had - almost certainly - to enter. Evidence that belonged in two or three of the investigations had to be sorted or copied or separated in a dizzying way. Some materials had to be vetted for various reasons, some had to be denied. And more.

All other things being equal, a fair-minded person could look at those difficulties with nothing but sympathy. But the underground energies working in the Basi, Basi, Virk matter are so strong they almost forbid that. Whatever the case, those energies open wounds of suspicion, doubts about good faith - suspicions and doubts that cannot easily be brushed aside.

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