Thursday, May 03, 2007
POLITICS IN B.C. SUPREME COURT?
The Basi, Basi,Virk charges and the role of the Supreme Court.
Part One: Associate Chief Justice Patrick Dohm.
By Robin Mathews
The questions asked here about Associate Chief Justice Patrick Dohm are disturbing ones. Are there political motivations guiding the actions of some B.C. Supreme Court judges - a highly dangerous development if the answers to the questions asked here are Yes instead of No. The subject is generally shied away from, as if people are afraid to confront what may be a dangerous development.
As an ordinary and average Canadian I have been influenced by simple experience to have deep concern about the actions of Associate Chief Justice Patrick Dohm. Attending court hearings moving towards (?) a trial of the three men variously charged with fraud and corruption arising from alleged events connected to the dirty sale of BC Rail, I went to the Criminal Trial Registry to obtain documents on public record. I was rudely refused them because - I was informed - a so-called Practice Direction of Associate Chief Justice Patrick Dohm denies to Canadians almost all documents generated by criminal trials and placed on public record. I managed by other means to get some documents, and then I complained to presiding judge Madam Justice Elizabeth Bennett about the system which categorically denies documents on public record to Canadians.
The excuse given for Dohm's alarming "gag order" is that it is intended to protect the accused. That excuse seems to me to be obvious and demonstrable nonsense. I have gained access to several documents which in no way asperse or endanger the accused. In fact, the opposite. They provide evidence and argue for the legitimacy of the accused in the process of opening up the terms of trial processes. What is really going on?
A little later, on March 6, Madam Justice Elizabeth Bennett announced to the court that this trial will be open, that documents will be available. Days later I went to get some and was rudely turned away. In the intervening almost two months, I have written to the Chief Justice, to Justice Bennett, to the Criminal Trial Coordinator, and to a court officer in an attempt to find what, if any, documents are available and how I may get them, and only today received a letter telling me the protocol to provide access to documents was placed on the Supreme Court website on April 25.
Questions concerning the so-called "Practice Direction" ,which I wrote to Chief Justice Brenner, as well as questions about the rights of Canadians in Supreme Court spaces, and other questions to him have been brushed aside by a court officer with what I might characterize as something less than sympathy or any desire to satisfy my inquiries. Clearly, Justice Brenner does not intend to answer them in any way.
(Amusingly, Justice Brenner spent the afternoon the other day at the Vancouver Public Library engaged in public relations work intended to show British Columbians how open, cooperative, and concerned court officers are to answer questions from people regarding the court, the judges, and their work.)
A reasonable Canadian might well draw some inferences (a) from the intolerable and odious (so-called) Practice Direction of Patrick Dohm and (b) from the strangely attenuated time it took to set up a protocol to permit the public [in the Basi, Basi, and Virk matter only] to have access to documents on public record which should be almost universally available to Canadians at all times in all cases.
In the Basi, Basi, Virk case some documents will be available from the court. But the gag order imposed by Associate Chief Justice Partrick Dohm is only being a little dented in this case - and only because of complaint to Justice Bennett and, as she has said herself, the wide public interest in the trial.
Questions spring from what I call the intolerable and odious general gag order. Is Associate Chief Justice Patrick Dohm (1) using his power over Criminal Registry to achieve political ends? (2) Is he serving the wishes of political operatives in the province by denying Canadians a fundamental freedom? (3) Do some documents in criminal cases, and certainly in this one, provide the public with information that may well call into question the behaviour of the Crown, the Attorney General and/or others of the Gordon Campbell cabinet? (4) Can such documents inform the public about matters concerning the innocence of the accused, information that Patrick Dohm would prefer to suppress because it might do political damage to people he wishes to support politically? In fact, (5) is the intolerable and odious "gag order" on documents produced by criminal trials intended to do the exact opposite of what is claimed? Has the "gag order" been imposed, not in fact, to protect the accused but to influence public sentiment against the accused by denying information about them? Finally, to repeat (6) are "political" motivations revealed by Dohm's extraordinary and far-reaching "gag order"?
Consider the facts as they are presently imposed upon concerned Canadians interested in criminal trials in the B.C. Supreme Court. If they wish to know what happens in a court, they must attend the court, take careful notes over hours, and days, and hope they have them right. The exact record of the day is not available to them. If Defence or Crown places documents of whatever kind on public record in Criminal Registry, they are not available to Canadians who want to see them. Canadians are denied that fundamental freedom of information because Associate Chief Justice Patrick Dohm and his colleagues have decided to lift that fundamental freedom and remove it. That is why I write of the odious and intolerable gag order imposed by Patrick Dohm. The judges of the Supreme Court of B.C. who are engaged in criminal trials are all complicit in the act of denying Canadians a fundamental freedom. Madam Justice Bennett - painstakingly working out a protocol to allow Canadians the freedom to see court documents in the Basi, Basi, Virk trial - is not doing something special or good. She is simply turning back an odious and intolerable gag order for a little time and in a particular case.
Why, I repeat, did Patrick Dohm impose the gag order? Was it to gain political advantage for certain people in the province? Was it fundamentally a political act?
Dohn signed search warrants in what I call "the fraudulent investigation and trial of innocent Glen Clark, premier of B.C." At one point, we are told, when RCMP wanted search warrants in that matter, they didn't approach the dozens of Provincial and Supreme Court judges available in B.C. They sought out Patrick Dohm, it is said, on vacation in a foreign country to get search warrant approval. (1) Was the investigation and trial of Glen Clark a political coup d'etat by the Gordon Campbell forces? (2) Were Patrick Dohm and Madam Justice Elizabeth Bennett (presiding judge) wholly ignorant of alleged (but uninvestigated) dubious practices by RCMP, of alleged "smear and disinformation" practices by RCMP, and (3) of the surfacing of the case against Clark in the constituency office of Gordon Campbell? If they were ignorant of those things, did they have a right to be? Was their apparent ignorance political?
In the matter of the December 2003 search warrant "raids" on legislature offices Associate Chief Justice Patrick Dohm signed the warrants. In both the wire-tap warrant and the "raids" warrants he assessed the information requesting them and he approved the warrants. (In the first case a warrant had been refused twice by another judge on the basis that it could offend cabinet privilege.)
Defence has made clear that in preparation for the "raids" on legislature offices the RCMP held several strategy meetings in which, Defence alleges, evidence reveals RCMP intended to control media response and to enforce a (false?) view of the purpose of the raids by connecting the (later) accused men to "the insidious rise of organized crime and its pernicious reach inside government". (Vanc. Sun Jan 24 04 B7) Dohm is reported to have said (in the same news story) that "the RCMP investigation into drug-smuggling and money-laundering is so intertwined with the legislature inquiry that they cannot be separated".
Dohm should have been completely outside behaviour intended to control thought and response, and we don't know that he was. Should he have been alarmed (a) when he learned he was not told clearly that wire-taps were to a legislature office disguised as a vague street address, and when (b) he discovered the claims about organized crime were not born out in the search warrants or were seriously over-proclaimed by RCMP in public statements?
Not only does he seem to have been unruffled by that information, but in late January of 2004 he "shut the door on public access to information about events that led to the Christmas-week seizure of material from government offices." In normal practice a search warrant becomes public property immediately after the search. But not in this case.
As with the court documents upon which Dohm has imposed a blanket "gag order", his behaviour in the matter of the search warrants is disturbing. Ian Mulgrew states in the column already referred to that "the law on search warrants is clear - they are proceedings of the court and the public has an absolute right to see what is in them after they are executed [subject to rare exceptions that did not apply in the "raids" case].
On March 2, 2004, Dohm again refused to provide the warrants to the public - and it may be asked if he permitted a false and/or exaggerated view of the reason for the legislature raids to persist? Almost incredibly, Dohm permitted Special Prosecutor William Berardino to make a "bare-bones summary" of the warrants instead of doing it himself. Since that time Defence has expressed increasing impatience with the delays in disclosure by Berardino, recently suggesting that he does not possess impartiality - the reason a Special Prosecutor is appointed. To avoid entanglement in such allegations, should not Dohm have released the warrants or - at least - have written the summary of them himself?
Dohm - Defence suggests - was not told that the warrant for wire-taps was for an office in the legislature. Dohm must, of course, have learned the truth after the fact. But we have no evidence I have seen that upon learning that truth he expressed his consternation or ruled anew on the wire-tap legitimacy. Did he, in fact, know when he issued the warrant that the wire-taps were of a legislature office? Is Defence making the wrong assumption in the matter?
And if he did know, brushing aside the "cabinet privilege" reason another judge used twice to refuse the wire-taps, why did he show such sensitivity to a cabinet minister upon the request for a search warrant of the home of Mark Marissen and Christy Clark (then deputy premier), convincing RCMP not to use a search warrant in that case?
RCMP manifested - Defence says - obvious intention to avoid any but positive statements about elected officials (all of whom, incidentally - in the case - happened to be Gordon Campbell Liberals). Did Associate Chief Justice Patrick Dohm know that was a policy of the RCMP? Did he approve of it? Did he support it?
Ian Mulgrew (Vanc. Sun Mar 3 04 A3) repeats the RCMP media strategy (apparent) misinformation that "a B.C. government official got caught up in an organized crime and drug investigation". Mulgrew notes the RCMP as saying, again, "the breach-of-trust investigation is indirectly linked to the on-going organized crime probeŠ."
Three matters that are revealed two months after the raids are astonishing. (1) William Berardino, writer of the warrants summary for Dohm, conceded, according to a Vancouver Sun story, "there is no risk to the on-going investigation, but he [Berardino] doesn't want to release more information". (2) The Vancouver Sun was still quoting RCMP who "after the legislature raids Štold reporters that officers were following links in a 20-month-old investigation into involvement of organized crime in the sale of B.C.-grown marijuana in the U.S. in exchange for cocaine which was then sold in Canada". (3) The Sun nowhere states that the Associate Chief Justice wanted to correct any false perceptions created by the RCMP in the first days after the raids.
The fact is also reported that CP Rail had, five months before, (four days before Gordon Campbell announced CN Rail would take over BC Rail) accused the B.C. government of leaking confidential competitive information to a rival bidder [CN Rail]. CP Rail claimed the BC Rail sale was "extremely prejudiced", but Gordon Campbell went ahead with the sale to CN Rail anyway. (Vanc. Sun Mar 3 04 A1 A2)
More questions arise about Patrick Dohm.
Did he (1) know about and approve of a highly political intention of the RCMP to connect the raids on legislature offices to organized crime and to have Sergeant John Ward say publicly such things as that "organized crime is a cancer eating away at the social and moral fabric of British Columbia"? (Vanc. Sun Mar 3 04 A2) (2) Was Patrick Dohm part of a campaign to turn attention away from the dirty sale of BC Rail towards the three men (later) accused? (3) Can he, today, show convincing reason for withholding the legislature raids warrants from Canadians? (4) Is there something other than coincidence in the fact that Dohm and Madam Justice Elizabeth Bennett were involved in the investigation, the trial and the destruction of Glen Clark as a political person, and since then have become - he with search warrants, she as presiding judge - involved in the investigation and the court processes leading to the (possible) trial of the three men charged as part of the dirty sale of BC Rail?
The questions written here are disturbing. What are the correct answers to them?
Excerpt from today's (May 3/07) Vancouver Sun editorial:
FREEDOM OF INFORMATION IS A FUNDAMENTAL RIGHT IN A DEMOCRACY
... Government officials seem obsessed with secrecy. But they must understand that if they try to hide information, we will have to assume they have something to cover up.
Access to government information is a major component of press freedom; press freedom is a principal feature of democracy. It's not too much of a stretch to claim that freedom of information is a fundamental right of citizens in a democratic society.
I have left out some parts but the memo is easily obtainable and I did send one to BC Mary as the owner of this blog.
Re. R.v Basi, Virk and Basi file VA 3299 april 23 2007
By forwarding a copy of this memorandum to Council and posting a copy on the courts public website please advise of the following:
The following protocol has been developed with the assistance of counciol fpor the media with respect to media and pblic access to exhibits.
as each exhibit is filed, I wil rule, after submission from the parties, whether allor part or none of the exhibits will be made avaiable to the public.The document will be places in a media bin in the court registry. I will do any editing of the document. There might be a short delay iavailability if the document requires editing....... a list of Bans will be posted on the courtroom door.
Any member of the medai or public may request a copy of the document by completing a form at Counter 205 at the Registry.
View only documents such as unreproducable exhibits may be viewed between 9.00 to 9.45 with prior arrangements being made with the Coiurthouse Medai Liason representative.
Anyne wishing to view documents in the media bin, rahter than copying the documents may do so between 9:00- 9:45.
The medai Liason Rep is Julie Morrison and she is located in the Court Registry at Cointer 205.
The protocol will not apply until the commencement of the trial. Documents filed or motions are not exhibits and not evidence.
she copied Crown and defense layers. and a D. Burnett, Mr. skene and S. Dawson
Without him even this amount of openness would not have been afforded.
The public interest, it seems again and again, is the last thing in the mind of the justice system in this country
And, has this trial started - or not?
Your comment about copying the message to Robin Mathews is rather strange in my view. Bill Tieleman is a recognised columnist with tons of connections and I rather doubt he got one. But I do know he has seen it.How do I know? I asked him simple as that. Be must get tons of stuff from lots of people.
The only reason I suppied it here on Mary's blog was to let you people who don't bother checking things out on their own. This is a public document written on April 23, and I rather doubt the judicial system has a data base with everyone who might show up at a court for whatever reason. Besides as the judge said. Nothing gets released till the case starts. This is pretrial stuff so far. Nobody is picking on anyone. Did I get one special delivered to my place? Of course not, I went and found it, just as Robin or anyone else can do. Was I in the court? No but we should be pleased someone does show up and tell us what they see and hear.
An of course that some folks collect and post the articles. (Starting at 5:30 am by checking the court registry each working day and downloading stuff thought out the day keeps a few folks pretty busy.) Good God, if anyone passes it along be satisfied. Or go look it up yourself. dl
Robin Mathews was the one who wrote to Madam Justice Bennett explaining that he had first been promised documents and then was refused documents.
In a sense, she was answering Robin's complaint and the public' need to know.
And in that particular way, as "gw" commented, it "Would've been nice" if Judge Bennett had included Robin amongst the interested Canadians to whom she sent copies of her letter.
Beradino Council for crown
J. Doyle Council for Mr.Basi
PM Bolton Council for Mr.Basi
K, McCullough Council for Mr. Virk
and the three individuals I mentioed before.
And of course the Judge posted it on the public website..
If she passed any out to the public it doesn't show on the memo and I'm faily confident she did not.Why would she? dl
If you read back into the record here on Mary's site, you'll find all the details. The reason that a personal letter with an enclosure, rather than a cc, would have been appropriate will become clear when you read that material.
It would have been, apart from other considerations, a matter of recognizing an un-discharged obligation and the exercise of nominal courtesy. Further, given the statements of the chief judge of the Supreme Court of British Columbia in several public forums within the last month or two, it would have been a real acknowledgment - instead of a pro forma one - of the 'idea' that the public interest is the paramount consideration in the operation of a credible system of justice in this country and province.
A quick read back through Robin's Part I: Politics in the BC Supreme Court just above here will put the case far more eloquently than I have.
If there is a hero in the first stages of this marathon legal exercise it is, in my opinion, not the courts; not the police; not the lawyers and certainly not the government; it is, when you get down to the reality of the situation - Robin Mathews.
He is that 'ordinary and average Canadian' and it is he who deserves that label. He deserved far better treatment than he has received from the system to this point of the proceeding.
In my view.