Wednesday, August 29, 2007
Professor Robin Mathews to Madam Justice Elizabeth Bennett on Basi, Virk, and Basi / B.C. Rail Court Proceedings
Vancouver, B.C., XXX XXX,
August 28, 2007
Madam Justice Elizabeth Bennett,
The Supreme Court of British Columbia,
The Law Courts,
800 Smithe Street, Vancouver, B.C., V6Z 2E1
cc. William Berardino
The Honourable Robert Nicholson, Minister of Justice Canada
Joe Comartin, MP
Libby Davies, MP
Leonard Krog, MLA
Chief Justice Donald Brenner, B.C. Supreme Court
Associate Chief Justice Patrick Dohm
B.C. Civil Liberties Association
RE: the Basi, Virk, and Basi/ B.C. Rail Court Proceedings
Dear Madam Justice Elizabeth Bennett:
The hearing on the "Application for Records" addressed to George Copley, Q.C. and William Berardino, Q.C., filed by Michael Bolton, Q.C. and Claire Hatcher, Kevin McCullough and Kristy Sim, and Joeseph Doyle on June 4, 2007 was taken up by you in the Law Courts on August 21, 2007, and given some continuing attention.
Compelling engagements made it impossible for me to be in the courtroom to witness the transactions. That is a perfectly normal situation. And so I formally request that you make available to me to examine and, if I wish, to have copies made for me of all or parts of the court record of that proceeding/those proceedings.
The reasonableness of my request will register with all Canadians who are not mentally incompetent or serving interests that seek to hide all information possible from the public on the Basi, Virk, and Basi actions as well as anything else really or apparently connected to the corrupt sale of B.C. Rail by the Gordon Campbell cabinet. And so it is perfectly reasonable that you should make those public records available to me; and I look forward earnestly to your early positive decision in the matter.
Please take note: in this request I am not asking to see documents submitted by the Crown (though I have full freedom to do so), but the records of the publicly open transactions occurring in a courtroom of the Supreme Court Building beginning on August 21, 2007. Both you and your strangely secretive colleague, Associate Chief Justice Patrick Dohm, (also involved in the police and court processes arising from the corrupt sale of BC Rail) have publicly placed on record statements of the fundamental, constitutionally transparent principle that "the governing legal principle is that there is a presumption in favour of public access" to court documents on public record. Then, I allege, you both trample that principle underfoot for reasons that I allege are highly suspicious and cannot be defended in a democratic society.
Mr. Justice Patrick Dohm has kept secret from the Canadian public search warrant material issued in 2003. In his grand gesture to "release" the corrupt BC Rail sale search warrants in September, 2004, he blacked out (in number of pages) wholly or in part considerably more than half of the material. Bill Tielemann records it as at "about 80 percent of the search warrant information". (Georgia Straight Sept 16 04 23)
One of the people targetted in the searches was Bruce Clark, brother of then deputy premier Christy Clark and brother-in-law of Mark Marissen, then prime minister Paul Martin's top Liberal organizer in B.C. Allegations were that Clark received confidential BC Rail-involved documents from Dave Basi concerning what may have been the criminal handling of the Roberts Bank spur line intended sale. At the instancing of the RCMP (but not before) B.C. transportation minister Kevin Falcon was forced to cancel that sale, apparently to U.S. rail corporation, omniTRAX. What was Kevin Falcon's role in the whole matter? He did not undergo search as a result of the Patrick Dohm granted warrants or any other. In addition, Associate Chief Justice Patrick Dohm appears to have blackened out much of the material relating to Bruce Clark. I shall return to the subject near the close of this letter.
In August 2007, as I write, both you and Mr Justice Dohm are defying "the governing legal principle Š that there is a presumption in favour of public access". You, yourself, are now seized with the matters involved in the corrupt sale of BC Rail. And you are keeping 80% of the December 2003 search warrant material from the people of Canada, to whom it belongs.
I have, with respect, to record with you, moreover, that I have repeatedly asked you for court transcripts and for - to give an example - the 14 sworn affidavits from RCMP officers tendered by the Special Crown Prosecutor. I have to record, further, that I have been denied by you everything (of matters placed on public record as the property of the people of Canada) which I have requested.
One reason given is the fatuous, odious, repugnant so-called Practice Direction existing as (an apparent) product of Associate Chief Justice Dohm. I have reviewed the gathering of "rules" called the Practice Direction. Inasmuch as it deals with the freedom of Canadians to examine documents on public record in the Supreme Court of British Columbia - and denies them that freedom - I consider the Practice Direction a totalitarian denial of the democratic freedoms of Canadians. Inasmuch as the Practice Direction claims to be based on legislation expressed in the Criminal Code, I believe it distorts the intention of legislation and/or misinterprets the intention of legislators. If, in any case whatsoever, the repressive Practice Direction should appear to square with legislation, I insist, the role of all Supreme Court judges, given their titles expressive of trust, probity, and principle, is to call publicly for a change to the legislation.
Let me remind you that I have applied repeatedly to examine material (secreted by you) which is on the public record. The more I insisted, the more labyrinthine and Kafka'esque were the obstacles placed in my way by you and your minions. I allege I was misinformed and I allege the requirements which I had to fulfill were changed irrationally. Above all, I was assured that no material could, under any circumstances, be released unless I followed the prescribed, complicated ritual (and, then, there was no assurance it would be released).
But when a large, private, profit-making corporation (in this case the Globe and Mail) almost casually - giving almost no notice - requested the release of important materials in early June of 2007, you almost casually and with lightning speed gave the Globe and Mail what it wanted. No protocol. No prescribed ritual. No forms to complete. No labyrinthine process.
Some judges of the Supreme Court of B.C. are popularly accused of practising flagrant favouritism towards large, rich, private corporations. Your actions, I say with respect, convince me you may be one of those judges.
I must allude to another, huge shadow that judges of the Supreme Court of British Columbia labour under, you among them. That is the position of Wally Oppal as Attorney General of the Province. He was - as you well know - a colleague of yours for years as a Supreme Court judge, and in the appellate division as well. He is now Attorney General. His office is closely connected to Supreme Court operations as an on-going fact. He should never have been permitted to move to the political post he holds, for, by doing so, he casts all judges who were his colleagues into suspicion of conflict of interest whenever they are seized with actions in which the Gordon Campbell government has interests. Oppal is, it would seem, an open, visible, motor-mouth supporter of any and every Gordon Campbell policy and action, however dubious, distasteful, or improper.
Because of Wally Oppal's political position, your actions - as a former colleague of his - in the matter of the corrupt sale of BC Rail and the criminal charges that have arisen from it (and especially in regard to those charges that should have arisen from it, but haven't) cannot escape from being viewed with deep suspicion. The conditions in which you work, I allege - whatever may be your probity - cast suspicion upon your behaviour.
The same applies to Chief Justice Donald Brenner. He undertook to preside in the Alcan/B.C. Government/Kitimat dispute about Nechako River power. Wally Oppal, former long-time colleague of Justice Brenner, was a title-page respondent in the matter Brenner undertook to adjudicate objectively. I am a party to the Complaint before the Canadian Judicial Council to the effect that Chief Justice Brenner could not act in the matter without bearing such reasonable suspicion of conflict of interest that his decision must be disallowed.
I believe, in addition, that the substance of Chief Justice Brenner's decision on the Alcan/B.C. government/Kitimat dispute is a tissue of bad reasoning and expediencies - pointing to prejudice in the matter. But quite apart from that, his de facto role as a long-time colleague of Wally Oppal made necessary that he refuse the position he chose to assume. His choice to be judge in the matter is, I believe, intolerable, and we wait anxiously for the finding of the Canadian Judicial Council in the matter of our Complaint.
The Supreme Courts of Canada are fast losing the respect of Canadians - so much so that Chief Justice of the Supreme Court of Canada, Beverley McLachlin, is frequently quoted in the press uttering petillant and nearly-empty statements about her recognition of the failure of justice in Canada. One of her recent comments which made me think of you immediately was a statement of regret that the middle class cannot afford to use the courts. "Middle-class Canadians are increasingly frozen out by the cost and complexity of Canada's judicial processes" Beverley McLachlin said. (Rafe Mair, Tyee, Mar 19 07)
Like you (as I observe your behaviour) she seems to believe ordinary Canadians aren't worth discussing and their exclusion from the courts doesn't warrant comment. In fact, she does make a distinction, saying - almost certainly incorrectly - that "the very poor" get legal aid. But the middle class being unable to use the courts should be a matter for disquiet. Her assumption seems to be that between the very poor and "average middle class Canadians", there are no people. How wrong she is! Her assumption reveals, perhaps, a dangerous ivory-tower distance from Canadian reality.
A wonderful irony of the Chief Justice's concern is that when I sought access to material on public record in the Basi, Virk, and Basi proceedings from you, you arbitrarily, I believe, invoked the "complexity of Canada's judicial processes" with the effect of blocking, frustrating and denying me access.
I do not for a moment pretend you have an easy task, working in an arena with a highly politicized former colleague Attorney General, working with a Criminal Practice Direction which I consider a repressive and totalitarian insult to Canadian democracy, working with a Chief Justice whom I believe has acted (in the Alcan case) with singular - to say the least - imprudence, working with a set of colleagues more and more disprized by the general public. Just for instance, there is a Complaint before the Canadian Judicial Council against Madam Justice Brenda Brown for inappropriate conduct (in support of private corporate interests, it is alleged) which led to the dangerous and inappropriate incarceration of aged and sick Harriett Nahanee (environmental protester) who days later had to be taken to hospital from that "hell hole" to die unnecessarily. The Canadian Judicial Council, as I see it, is handing the Madam Justice Brenda Brown Complaint around from hand to hand like a burning coal. None wishes to grasp it. And, of course, the decision of the Canadian Judicial Council in the two matters I have cited will make clear its role in the revitalization or the continuing degeneration of justice in Canada.
I do not for a moment pretend that you have an easy task. But I will not settle in the matter for the kind of favouritism and judicial delay I believe I have witnessed in your court. It is my opinion - and I say this with the deepest respect - that the narrow scope and the unending delays in the court matters arising out of the corrupt - perhaps criminal - sale of BC Rail must be laid in significant part at your doorstep and at the doorstep of Associate Chief Justice Patrick Dohm.
Nor will I accept the insult you have directed at me by denying me access to information - not as a person with a name, nor as a "hurt individual", but as an ordinary, nameless representative Canadian seeking to see justice done and working to inform other Canadians about a matter of the highest importance to the conduct of law, justice, and fairness in Canada - the dirty and perhaps criminal sale of BC Rail in secret, corrupt, and clandestine deals by the Gordon Campbell cabinet.
In that respect, questions push forward that are unasked by the forelock- tugging private corporate press and media - questions that should be on the front and editorial pages of the Globe and Mail and the CanWest Propaganda Chain every week, and on related television outlets. Who is paying the three law firms conducting Defence? What have they cost Š so far? British Columbians are paying you, and they are paying all costs of "the Crown", to say nothing of the army of RCMP "investigators". How much has this most important (and almost certainly most expensive) set of criminal accusations (not to be confused with a "trial") cost so far? How many millions of dollars? I ask those questions to you as presiding judge in the case, and I ask with the expectation of an answer. The private corporate press and media, moreover, should be publicly examining in detail all the elected officials and all the other political actors connected to the corrupt sale of BC Rail, and those organizations should be demanding the fullest accounting of the innocence of each of those actors, one by one.
Writing to BC Mary the other day, Kirk Lapointe, Managing Editor of the Vancouver Sun, called "non news" the August 21 process ( which I am asking you to provide me the court record to examine). He also wrote that "nothing much happened". Was the Vancouver Sun there or had they been told (as seems often the case on certain court days) not to bother covering? If no Sun reporter was there, how could Lapointe say with confidence there was no news? Who is controlling the press and media coverage of the proceedings over which you preside? Should that not be a matter of interest, and of concern to you?
The suggestion of something like a staged management of the Basi, Virk, and Basi proceedings brings up the central question. Is the whole thing a fraud? Are the wrong people charged? Are searches for evidence calculated to provide intolerable delays? Are the strange handlings of search warrants and certain apparently connected people intended to drive attention away from guilty people? In my mind and in the minds of many others the private, corporate, monopoly press and media are monstrously failing in their duty. The question is: "Are they failing in their duty because they are, in some way, connected to a criminal element involved with BC Rail?" Near the beginning of the letter I referred to politicians and high-ranking non-elected Liberals. Many involved in this matter are - and have been shown to be - close to Gordon Campbell and/or to other cabinet members (if they are not cabinet members themselves). That includes some members of the RCMP - and, of course, since the accession of Wally Oppal to the position of Attorney General it has to include all Supreme Court judges who were his colleagues on the bench. In short, is the gigantic operation, costing British Columbians millions and millions of dollars, simply a massive piece of theatre being acted out to protect criminals at the highest levels of British Columbia life?
Finally, it is my understanding that the Special Crown Prosecutor works (necessarily) in close relation to the investigative police forces in conducting searches and in laying charges. It is my understanding, as well, that the Supreme Court judge seized with a criminal matter may instruct the Crown to gather further, related information that may lead to charges being laid against others believed to be criminally involved in the matter, a condition of great importance since it may have bearing upon the fate, the freedoms, and the fair trial of the already accused. In this highly charged matter in which much of the general public is confident powerful, key politicians and others are guilty of crimes - why have you not given instructions to widen the investigation?
Get a grip anon, deal with the substance of what he is sayin', it's a LETTER, not the great Canadian Novel, nor even a genuine Newspaper Article.
Your comment was only allowed in order to exhibit its ignorance........
I came across a article in the Quesnel Oserver under the Aug 26th heading: Critics call for more CN accountability. Band Chief Clifford Le Brun is not too happy about the proximity to the Native food fishery but the most interesting comment is from City Councillor Ron Paull who says "They're so huge...that they see themselves as untouchable.
Hi gary e,
Very interesting, especially when the Prince George City Council is taking a bit of flak about CN's royal ways:
Seems that CN is building a new "Intermodal Centre" (anybody know what that is??) near 1st Avenue -- which DOES happen to be the CN Railyard.
And gravel is being removed from a hole east of the Kin Centres and sold to CN for this purpose but, uh, um, 3 City Councillors couldn't remember the matter coming before Prince George City Council for approval. Whoa Nelly! Could this be the same gravel that CN was sprinkling over the CN train-wreck site before the inspectors had their analysis??
This new-fangled CN Railway wouldn't want to get itself labeled as renegade, would it?
What I am suggesting is that the tone of the letter pretty much ensures and that addressees don't read any more than the last line.
Now YOU are making the assumption that Judge Bennett, and all the others, are (in your words) morons.
I ask you: why would the addressees leap to reading the last line of Robin's letter when that information is clearly visible in his correct and extremely respectful greeting? Are you on a Media Contract or something?
Be logical. How could the "tone of the letter" force them NOT to read the letter, but only to jump to the last line?
Just think what a jackass you look, as you try to trivialize a situation where the B.C. public is being seriously short-changed on an issue of great public concern. Is that OK by you?
Come on, chum. I assume you're the same commenter who wrote that this distinguished scholar is "in desperate need of an editor" (above), so you've doubly fulfilled your Media Contract obligations.
Now, try to be a real citizen. How about exercising that magnificent brain of yours to provide some CONTENT analysis?
Start by identifying what part of Robin's letter is giving you trouble? Would it be: "Dear Madam Justice Elizabeth Bennett"?
I think that pretty well nails it, BC Mary. You are in fine form as usual.
A great, insightful letter by Robin, filled with thought-provoking questions - the one quoted below especially so:
"If no Sun reporter was there, how could Lapointe say with confidence there was no news? Who is controlling the press and media coverage of the proceedings over which you preside? Should that not be a matter of interest, and of concern to you?"
Are we reading the same letter? The last line in the one I'm reading sez:
"In this highly charged matter in which much of the general public is confident powerful, key politicians and others are guilty of crimes - why have you not given instructions to widen the investigation?"
A pretty clear statement without any underlying tone or snark - and as mentioned above, WHO other than a dork would skip the entire letter to read the last line. A lot of the public that are paying attention DO have their suspicions that there is a lot more to this important case than the Campbell "Cronies 'R Us" crowd and their media enablers would care for us to see.
Bribes were paid to minor players with no influence to influence decisions that affected all British Columbians - so whose influence was being purchased and why did so many central players decide to leave politics shortly thereafter? If it looks suspicious, why shouldn't it be investigated?
But I guess if Bornmannnnnn gets admitted to the Ontario bar after his upcoming "character" hearing, we will know just how high the ethical standards are in the Canadian Justice System - hint, look down, way down.
I was thinking this morning that there hasn't been even the hint of a story (that I could find) about the BASI/VIRK/BCRAIL case in the SUN since August 21.
Didn't the erstwhile editor of Vancouver's flagship news organization advise you that there would be something in his pages in the next "two or three" days? I think he even mentioned in the email he sent you, that they were 'working' on something and asked your readers to "...bear with us".
Did I imagine that? Because, and I know you follow these matters far more closely than I do, I don't think the said managing editor has produced anything at all on the subject.
Not that there hasn't been lots of newsprint soiled in the 10 or so days since the 'managing editor' sent you that email.
Now I know editors don't much like having themselves 'fronted' as news...but, in this case, if I were you, I think I'd send another email to the good Mr.LaPointe to see if he remembers his promise of August 22.
Or do you think the 'managing editor' would be too embarrassed to have his obvious shortcomings aired in public?