Sunday, November 04, 2007


Courtroom 64 re-visited. By Robin Mathews


Ankles awash, they stand on the deck of The Titanic singing 'Abide With Me, fast falls the eventide'. BC Supreme Courtroom 64, October 26, '07.

All was not as it seemed in Courtroom 64 of the B.C. Supreme Court from 9:00 a.m. until 10:00 a.m. on October 26.

The occasion - a pre-trial hearing concerning the corrupt sale of BC Rail by the Gordon Campbell cabinet - was so important Kirk Lapointe, Managing Editor of the Vancouver Sun, appears to have made another of his judgement calls - that news of the approaching trial isn't worth reporting. (Yawnnnn.) Besides, he needed plenty of room the next day for new president of the CMA - Brian Day - to argue for Private Health Care, the new crusade of CanWest press/media, it seems.

First the Vancouver Sun produced a huge environmental and energy supplement in which it made no mention of the (secretive and falsely reported) sell-out by Gordon Campbell of the rivers owned by the people of B.C. That's called cover-up. Now it has another huge edition on health - to sell covertly, it appears to me, Private Health Care. Brandishing Brian Day, it weighs in, slowly, subtly, persistently, as I read the paper, on the necessity, the inevitability of Private Health Care.

And, incidentally, the Sun avoids having to report on the October 26 heated pre-trial hearing in the BC Supreme Court in which Defence remarked that the latest, late, overdue material disclosed by the Crown might impact on members of the Campbell cabinet. They were the people, remember, who - secretly and against solemn election promise, provoking accusations of fraud and breach of trust - sold the Railway owned by the people of British Columbia to a foreign private corporation.

Does Kirk Lapointe have orders not to report news like that? Who knows?

What was the other news out of Courtroom 64? That the Crown dumped 25000 pages of evidentiary material on the Defence just a few days before the hearing. Planned timing? A coincidence? Michael Bolton of the Defence team was his usual urbane self. Joseph Doyle was his usual tidy, organized person. Kevin McCullough, usually battering ram for the three, was as close to being apoplectic as a self-controlled Defence lawyer can be.

Why? Didn't Defence want the material? Didn't they ask for it? In the witty words (?) of Special Crown Prosecutor, William Berardino quoted by Bill Tieleman on his blog, didn't the judge ask, in her order, for every scrap of paper. Ha. Ha. Ha. Ha.

Now the contestation over the matters arising out of the corrupt sale of BC Rail by the Gordon Campbell cabinet is getting nasty. Now sides in the fight are becoming more obvious.

From the beginning the role of the Prosecution (the Special Crown Prosecutor appointed, in fact, by the Attorney General) has been muddy. Isn't it fair to say Gordon Campbell doesn't want a trial? Isn't it fair to say the RCMP doesn't want a trial? (Why did the RCMP decide early that no elected official would be investigated?) We can assume, can't we, that Gordon Campbell doesn't want the investigation to be expanded?

Isn't it fair to recall that the Special Crown Prosecutor was appointed in 2003 by the Attorney General of the day, Geoff Plant - who just happened to be a former colleague? Isn't it true the Attorney General has very close ties to the Supreme Court? And isn't it true that Wally Oppal was hand-picked by Gordon Campbell - plucked almost from the Appellate Division of the Supreme Court - to run for Attorney General? And isn't it true that Oppal spent many, many years as a colleague of most of the judges of the B.C. Supreme Court?

The role of the Crown as prosecution is complicated. It works with the RCMP in the laying of charges. The RCMP decided no elected official was under investigation. Who, in fact, made that decision?

To get at material involving, bearing upon, related to people not investigated (and, perhaps, who might be found deserving of accusation as distinctly related to the charges against the present accused) Defence has to call for disclosure of material that connects or may connect the presently accused to those others through continuing RCMP police reports, logs, messages, records of meetings, and the same with BC Rail officials and with members of cabinet, and so on.

Isn't it fair to say that all that 'beating the brush' has to happen because fundamental investigation and the scope of investigation has been faulty and incomplete? Isn't that something about which the judge seized with the matter should be wisely and astutely aware?

If the connections Defence is apparently trying to make were contained in charges presented by the RCMP and the Special Crown Prosecutor against related people, wouldn't all this calling for disclosure be unnecessary? And shouldn't the judge - if that is the case - use her power to expand the investigation, and to assure relevant and rapid production of materials applied for by Defence?

Some observers - and I am one of them - have not been convinced Madam Justice Elizabeth Bennett has been sympathetic to those ideas.

Indeed, in Courtroom 64 Kevin McCullough stated frankly that he believes the Crown has not complied with the order for disclosure by Madam Justice Elizabeth Bennett.

(Over and over and over during the period when there was no court order, Defence alleged, and observers seemed to witness, a distinct failure on the part of the Crown to produce necessary material in a timely and cooperative way. And Madam Justice Elizabeth Bennett seemed to experience the tardiness with, usually, unruffled demeanour.)

McCullough's statement in Courtroom 64 is a serious statement. What was the response? Did Madam Justice Bennett want to know the substance of McCullough's claim? Not at all. In fact, we have to ask if she energetically bull-dozed the hearing away from that matter altogether. McCullough insisted. She declared the hearings were going to go on according to schedule. McCullough said, in effect, he couldn't take part because he couldn't possibly get through the material in time. Was she seriously trying to get the process to work? Or was she playing a partisan game?

What about the 25000 pages of material just released to the Defence. Think about it. Did the Crown say: "We want to try the three accused on the basis we set out and we don't want any interference - and we don't want any suggestion the list of the accused should be increased. The Defence doesn't like that.

The Defence asks for disclosure of evidence that may be important to the conduct of the trial of their clients and which - incidentally - may pull in people we don't want anywhere near a courtroom. So we'll comply in every embarrassing way we can. We will stall. We will report imperfectly. And we will BURY the Defence in so much material a trial will never happen"? Is it possible the Crown could have thought and could have said those things? Who knows?

Madam Justice Elizabeth Bennett expressed her own surprise that so much material has been found to be released to the Defence. Was she really surprised? Why didn't she want to know how Kevin McCullough believes the Crown has failed to follow her order? Shouldn't a judge show interest and concern if a major party believes her order is being abused?

I don't like what I saw in Courtroom 64 on October 26. I don't like what was certainly the failure of major press and media to cover the event. I don't like even the reports that have leaked into secondary communication vehicles.

Almost everyone connected to the matters arising out of the corrupt sale of BC Rail by the Gordon Campbell cabinet seems to be living in a dream. Don't the press and media see that this matter is about fundamental democracy in B.C. and Canada? Doesn't Madam Justice Elizabeth Bennett see that? Is the higher court system in Canada useless? Is it increasingly a front for behaviour leading to a repressive and oppressive social system in Canada?

When we are in the Supreme Court of British Columbia, are we in fact ankles awash standing on the deck of The Titanic singing "Abide With Me, fast falls the eventide"?


Thank you, Robin.


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