Thursday, November 15, 2007

 

Tomorrow, and tomorrow, and tomorrow: Friday Nov. 16, 9:00 AM. CONFIRMED.

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To-morrow, and to-morrow, and to-morrow,

Creeps in this petty pace from day to day,

To the last syllable of recorded time;

And all our yesterdays have lighted fools

The way to dusty death. Out, out, brief candle!

Life's but a walking shadow, a poor player,

That struts and frets his hour upon the stage,

And then is heard no more. It is a tale

Told by an idiot, full of sound and fury,

Signifying nothing.

Macbeth Act 5, scene 5



Shakespear created those first two lines to describe things like the speed at which Basi Virk Basi are coming to trial. (My view.) I'll check Vancouver Supreme Court Listings (left column) tomorrow morning early ... seems they're jamming this meeting into place at daybreak, probably the "real" trials get under way at 9:30 or 10:00.

Some other clever soul said that justice not only had to be done, but had to be seen to be done. Sigh. Wonder where he lived.

So, is the rumour true that there are sweepstakes ongoing in CanWest newsrooms on whether anything happens in Supreme Court tomorrow, and if so, whether it's actually news, and if it's actually news, whether anybody will cover it, and if they cover it, will CanWest publish it? Just wondering. As we creep on, at this petty pace. - BC Mary.

Next Basi Virk Basi hearing
Vancouver Supreme Court
Friday, November 16 - 9:00 AM

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Anonymous Nov. 15, 4:45 refers to R.v.Carosella [1997] 1S.C.R.80 so I looked it up. See:

http://scc.lexum.umontreal.ca/en/1997rcs1-80/1997rcs1-80.html.

It's mostly about disclosure and some interesting remarks where an accused has alleged a breach of his right to make full answer and defence as a result of non-disclosure or non-production. In the case of Basi Virk Basi, we've heard a lot about their requests for more, more, and more disclosure. This excerpt is taken from the dissenting opinion by J.L'Heureux-Dube as to how much disclosure an accused may need. I am assuming that "a third party" in the case of Basi Virk Basi, is the B.C. government or, at least, the Ministry of Finance and the Ministry of Transportation:


Does an accused automatically have the right to every piece of potentially relevant evidence in the world? My colleague suggests that this is in fact the case. Despite the difference between this situation and cases of disclosure, as previously outlined, he suggests that there will be a breach of the right to full answer and defence and therefore an unfair trial anytime material is unavailable that would have been disclosed if in the hands of the Crown. Therefore, whenever information in the hands of a third party has the reasonable possibility of being of some use to the defence (as per Stinchcombe, supra) the fact that it is unavailable immediately causes a violation of the Charter. In my view, the adoption of this rationale could quite possibly lead one to the conclusion that there has never been a fair trial in this country. It goes against the grain of this Court’s Charter jurisprudence and is contrary to basic underlying notions of how the criminal justice system actually operates.

While the production of every relevant piece of evidence might be an ideal goal from the accused’s point of view, it is inaccurate to elevate this objective to a right, the non-performance of which leads instantaneously to an unfair trial. In my view, the words of McLachlin J. in O’Connor, supra, at paras. 193-94, are quite instructive in this regard:

. . . the Canadian Charter of Rights and Freedoms guarantees not the fairest of all possible trials, but rather a trial which is fundamentally fair: R. v. Harrer , [1995] 3 S.C.R. 562. What constitutes a fair trial takes into account not only the perspective of the accused, but the practical limits of the system of justice and the lawful interests of others involved in the process, like complainants and the agencies which assist them in dealing with the trauma they may have suffered. Perfection in justice is as chimeric as perfection in any other social agency. What the law demands is not perfect justice, but fundamentally fair justice.

Perfect justice in the eyes of the accused might suggest that an accused person should be shown every scintilla of information which might possibly be useful to his defence. From the accused's perspective, the catalogue would include not only information touching on the events at issue, but anything that might conceivably be used in cross-examination to discredit or shake a Crown witness. When other perspectives are considered, however, the picture changes. The need for a system of justice which is workable, affordable and expeditious; the danger of diverting the jury from the true issues; and the privacy interests of those who find themselves caught up in the justice system -- all these point to a more realistic standard of disclosure consistent with fundamental fairness. That, and nothing more, is what the law requires.

The impossibility of achieving this so-called “perfection” has consistently been recognized in the evidence gathering process as well as at the trial stage. In virtually every criminal case, an accused will not be able to gather all of the evidence that he or she would like. Potential witnesses may be impossible to locate, the weapon used to commit the crime may not have been found by police — invariably, there will be some piece of evidence relevant to the case that will be unavailable. The justice system would grind to a halt if an accused had only to show that a missing piece of evidence was relevant to the case in order to establish a violation of s. 7 and obtain a remedy under s. 24(1).

The Charter does not entitle an accused to a “perfect” trial, in which every piece of relevant information which might or might not affect the defence is diligently piled at the defence’s door. An accused is entitled to a fair trial, where relevant, unprivileged material gathered by the Crown is disclosed, while evidence in the hands of third parties, after a balancing of considerations, is produced in appropriate cases. Where evidence is unavailable, the accused must demonstrate that a fair trial, and not a perfect one, cannot be had as a result of the loss.

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Comments:
Basi-Virk won't get much coverage because the disclosures go against the big media agenda: responsible ethnic, Wally Oppal, leads crusade against bikers, activists, drug dealers and users. Oppal's conduct in the Spring legislature revealed displeasure for residual defamation that may fall on his Sikh community, in face of accusations of misconduct by fellow ethnics.

For the umpteenth time, David Basi would have escaped justice if information of his conduct did not have to be reported from one police service to another. Coverups are impossible, unless information can be contained and prosecutorial responses can be controlled. Any federally appointed judge need only affirm a "Carosela" Motion on an inability to properly answer a charge, because evidence has been destroyed or witnesses compromised. Basi-Virk will NEVER go to trial.

Prior to Oppal's attainment of the Attorney General's office, CJ Brenner (Supreme Court) personally intervened in ANY case that was of interests to legislators. Last March, Oppal held joint public meetings with Brenner and Hugh Stansfield (CJ, Provincial Court) at hand. A co-ordinate relationship pervades among BC's nominally independent courts. In that context, BC justice is somewhat totalitarian and dictatorial.

Don't believe it? While at the BCAC, Oppal rarely left the pack' consensus. His decisions consistently favoured elite interests. However, while under consideration for the AG appointment - on election - he issued a rare dissent. Read this case as illustrative of judicial servitude to special interests.
http://www.canlii.org/en/bc/bcca/doc/2005/2005bcca88/2005bcca88.html

What a depraved majority decision. The BCAC says, Cops have no duty to deliver an unconscious prisoner to medical professionals. Oppal hardly wanted to reveal that judicial officers issued a surrogate decision on the Frank Paul atrocity. If cops act on power without obligation, then who the hell do they serve?
 
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Anon 4:45,

Once again, thank you for these sharp insights.

I probably don't read things like R. v. Carosella, from the same standpoint as lawyers and judges do. But I was nevertheless touched by the apparent good sense of L'Heureux-Dube. I say "apparent" good sense, having at least learned that nothing is quite as it seems.

Reminder to self: two psychologists met in the elevator at the start of a work-day. "Good Morning!" said one. And the other thought, "I wonder what he really means by that."

I don't want to become like psychologist #2, but I certainly appreciate the clues you have provided. Because I'm often puzzling over what somebody means by the things they say about B.C.

And today, the whole high-priced crowd is back in Supreme Court on Case #23299 ... and I do hope you are mistaken when you say that Basi Virk will never go to trial.

B.C. needs to know what Basi-Virk can tell us.

After that, in my view, Basi-Virk are eligible to be B.C.'s next Lt. Governors, because the trial is not so much about them as about how Canada's 3rd largest railway slid from public ownership into private hands. The Basi-Virk trial may show us how other public assets, such as the TFL lands, the run-of-the-rivers, were transferred into private, often foreign ownership ...

So thanks, 4:45, we hope to hear from you again soon.

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What about the defamation of the white community? Why did Rich Coleman take over the Sunriver Estates? Proceeds of crime ? If so, then Basi has to be charged/convited of something?!
 
Carosella ignores the type of disclosure the defence are receiving and are requesting. And quite frankly was not even raised by the Special Prosecutor in his defence of his handling of disclosure in the fall of 2006 and the spring of 2007.

The RCMP have titled documents "NOT FOR DISCLOSURE" that are directly relevant to the close relationship between the lead RCMP officer and the Gordon Campbell liberals.

The charges in this case relate to the sale of BC Rail. Surely the government has documents that are relevant to the role the Campbell Cabinet and MLAs played.
 
Anonymous 4:45

I have read with interest every disclosure application filed by defence lawyers in this case. They are, to say the least a fascinating read with specific detailed requests for information backed by rcmp documents to support the case for more information put forward by the defence. As one of the posters stated, where do you think documents entitled "not for disclosure" came from? That was an rcmp document that talks about their cozy relationship with campbell and his number one guy kelly reichart in the bc liberal party. Who has the most to lose here, basi and virk or the people desperately trying to cover their tracks in campbells office.

Make no mistake about it, remember you read it here first, this case WILL see the inside of a court room and be heard. What I can't tell you is whether or not that will be a criminal court first or a civil court. Based on my experience and after talking to people in the legal community defence lawyers do not make these types of applications for disclosure requests with supporting documentation if they are trying to have this case thrown out on some technicality. Anonymous I think you are engaging in some very irrational thinking if you believe this case is never going to trial. Go back and read the last application that was filed. I have re-read that on several occasions. Then read the judges decision, which was, if nothing a stinging rebuke to the rcmp and the prosecution. Basi and Virk are going to be heard and are going to have their day in court, it may be criminal and then civil or may go right to civil.

Remember, you heard it here first.
 
Mary,

There is a wire story that mentions Berardino providing more disclosure on Wenesday (the 14th) which includes over 800 emails from Erik Bornmann. No mention of Kieran emails or Jamie Elmhirst.

Surely emails are key to any fraud case (think of Conrad Black case) why didn't the Special Prosecutor disclose this on day 1?
 
Mr. Berardino may be the special prosecutor in this case, but my thoughts are that he is working under orders that he is to stall as long and as much as he can. I know this is not the way our courts (I refuse to acknowledge that we have a JUSTICE system) are to operate, but something here just does not add up. Our legal system can move swiftly when it has to do with injunctions by corporations, why not in this case? I also acknowledge this is very likely a highly complicated case, just like its' moniker (everywhichway) but four years is really stretching it. Regardless, if it takes another year, it MUST come to court.Jo5ey
 
Full-answer-in-defence to charges is an absolute right, and prosecution in face of available exculpatory evidence should be fatal to the case. It is not, in the swamp of BC justice.

Forget the stereotypical win at any cost, prosecutors in TV dramas; Canadian prosecutors have to be impartial. It was spelled out in a 1954 case at the SCC,
http://www.canlii.org/en/ca/scc/doc/1954/1954canlii3/1954canlii3.html

"It cannot be over-emphasized that the purpose of a criminal prosecution is not to obtain a conviction; it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proof of the facts is presented: it should be done firmly and pressed to its legitimate strength but it must also be done fairly. The role of prosecutor excludes any notion 'of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility. It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the just­ness of judicial proceedings."

Re Special Prosecutors, allow me to inform readers of something that only a handful of persons are aware of. In February of this year Oppal announced the appointment of an SP to address concerns raised by a convict, Ivan Henry (convicted for a series of rapes in Vancouver). Henry filed a Supreme Court action for retrial based on alleged improprieties committed by police investigators. On losing, he applied for a Review, which was heard in part by Lance Finch (CJ of BC). When Henry took the case to the Appeals Court, he walked out when he saw Finch on the panel, given that he thought it unfair that Finch determine his own determination. Finch's conduct delayed justice for over a year and a half. When the appointment was reported I contacted a certain city reporter who wears his cashmere coat to wine parties with Finch, Brenner, Stansfield and Oppal, and he declined to reply. The principle audi alteram partum (another party must hear, or review your decision; or, let another judge judge your work) was butchered and our slavish media covered it up. Why? They get good copy from comic book reports of the hero AG waging war on bikers, illegal immigrants, organized criminals, drug marauders, grow-ops, transit cheats, welfare frauds, and "thugs." Telling the truth about cop, prosecutor and judicial misconduct doesn't make good copy. They report material - the airport taser atrocity for example - in a manner in which the apology for same buries the fact of wrongdoing. Remember the APEC pepper spray reportage? Justice Hughes later condoned the brazen cop assaults in that case. Lead APEC cop, William Dingwall is now one of the top ranked cops in RCMP BC.
 
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Anonymous 3:09,

You have just given us the words by which to measure the Basi-Virk / BC Rail goings-on in B.C. Supreme Court, and to explain this blog's purpose.

As you may have noticed, BC Mary has never cared much about "win or lose" or about pre-judging the outcome, but about the facts of Case #23299.

Remember how it took a while before those police raids on the B.C. Legislature stopped being about Basi-Virk and became "the B.C. Rail case"? I was relieved when it did, because right from Day One (28 Dec 2003) many of us saw the issues as far, far bigger than two employees.

Sometimes, people want to argue that Basi or Virk did this or didn't do that, and try to shrug it off ["There's nothing to these charges" wrote Gary Mason last Christmas in The Globe and Mail].

I suppose it's a natural part of the human process to want to lay blame but in a case like this, we first need to get all the facts out in the clear.

So thank you for your own very informative comments, and most particularly for that quote:


"the purpose of a criminal prosecution is not to obtain a conviction; it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proof of the facts is presented: it should be done firmly and pressed to its legitimate strength but it must also be done fairly. The role of prosecutor excludes any notion 'of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility. It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the just­ness of judicial proceedings."


The Basi & Virk families deserve our sympathy for the stressful length of time they have had to wait for this matter to come to trial. In my view, Basi & Virk may have been personally ambitious but they (young men) operated as team players, as co-operators and facilitators, rather than as ruthless individualists.

So it's almost impossible to avoid wondering if the team - the Campbell government (entirely involved in the unpopular sale of B.C. Rail) - wishes the whole thing would go away, as in a dismissal or mistrial.

As for big media doing the work of properly informing the public about these issues, B.C. is so poorly informed that too seems almost criminal. At yesterday's Basi Virk / BC Rail hearing, 3 reporters: Bill Tieleman, the Province, Canadian Press. As the day ended, only Bill Tieleman had reported.

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could it be that BasiVirkBasi have told their counsel some information that involve someone, not now on the front page, or perhaps not yet involved, and holding a high level of VIP status, and this is the disclosure that defence counsel are after? Could this be the unkown witness? Jo5ey
 
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