The Legislature Raids

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Open Crime Enters The BC Rail Scandal. An "In Camera" Application By The Crown Scuttles Action In The B.C. Supreme Court On The Basi, Virk, and Basi Charges.

By Robin Mathews

for vivelecanada.ca

Open Crime has come to the BC Rail Scandal, a scandal created by the corrupt sale of BC Rail by the Gordon Campbell cabinet. The effect of the open crime cannot but leak into the Supreme Court of British Columbia - a serious development, grossly under-reported.

At the same time, Special Crown Prosecutor William Berardino has fired a black torpedo, brilliantly aimed, at the succession of applications planned to be filed by Defence counsel in the weeks following December 3 and before Christmas.

A leading journalist on the whole issue of the BC Rail Scandal had his office broken into in the early hours of December 3 - and was left a sign that the break-in is about his role in reporting on that subject. The complete news blackout of the incident by the major B.C. papers on the mainland is incredible. Not a word in the Vancouver Sun, the Province, or the Globe and Mail.

The raid on the journalist's office has to be seen as an attempt to compromise the full, fair, and open trial of men accused in relation to the BC Rail Scandal, and is surely intended as a general warning to those who want, fully and fairly, to have the trial open and reported in all its implications.

Journalist Bill Tieleman of Weststar Communications, writer for 24 Hours, Tyee, etc., returned to his office at mid-day on December 3 from the hearings-toward-trial of the three men charged as a result of the corrupt sale of BC Rail by the Gordon Campbell cabinet.

Tieleman discovered his office had been entered through the ceiling after his door and wall couldn't be forced open.

Thugs forced the office door next to Tieleman's, climbed to his ceiling, dropped through, and made his office a scene of rubble - bookshelves overturned, other materials scattered, filing cabinets yawning wide and - apparently intentionally - a book about the December 2003 search warrant "raids" of B.C. legislature offices balanced pointedly on a ceiling tile with the book's cover - showing a picture of the legislature raids - in full view. Tieleman has no doubt the raid was undertaken to send him a message about the BC Rail Scandal and the Basi, Virk, and Basi hearings presently moving towards trial - which he regularly reports upon.

The failure of the major lower mainland papers to report the matter cannot be brushed aside. Nor can the failure of the Attorney General of B.C., Wally Oppal, to comment. For the raid has a bearing on the B.C. Supreme Court hearings into the fraud and breach of trust charges against cabinet aides. The raid is almost certainly an attempt to interfere with the due process of law, inasmuch as the unfettered reporting of cases by the press is an essential part of any court system of integrity.

It would not have been amiss, moreover, for the presiding judge, Madam Justice Elizabeth Bennett, to have been publicly heard on the matter. For when criminal activity (historically) has threatened the legal system, the failure of judges to connect activity outside the court with processes inside has very often contributed to the break-down of democratic freedoms. The failure of the major British Columbia press, of the Attorney General, and the judge presiding to take note, publicly, of the criminal assault on free speech is unacceptable.

Public servants increasingly fail to fulfill the reasonable expectations of the public they serve. They define their roles in the narrowest, least responsible, and "safest" ways possible. Refusing to use the small scope of moral creativity she possesses, Madam Justice Elizabeth Bennett joins the ranks of an army of public officers, bureaucrats, corporation executives, politicians, and others who are moving humankind - quite simply - towards disaster. She is a symbol in a courtroom - for there she "presides" (holds the place of authority), is seen clearly, and may act with a small degree of moral strength and creativity. Her failure to do so is plainly visible, over and over.

The ranks of the army which she joins are in her court - are her court - and spread out from it through police forces, courts of the nation, city councils, professional bodies, corporations, legislatures, and on, to institutions outside Canada, to - presently - to Bali, where world forces of greed, fear, and ambition turn away from moral creativity on global warming and continue moving humankind towards disaster. The icebergs melt. The waters rise. The deserts extend. The ranks of the army consult narrow interests and false precedents. They deny reality. They use special pleading. They back greed, fear, and ambition.

The thread of irresponsibility that they weave may be seen from courtroom 54 in Vancouver's Supreme Court to Bali, and it is not imaginary.

Unaware they have reached a pinnacle in all human history of comfort, protection, ease, and affluence, they push on to grab and hold more of the earth's wealth - at any cost. They are pitiable. Ordinary people, more and more, see the corruption around them and the threats to global survival, and they look to their public servants for moral leadership. "Blind mouths reach up and are not fed".

The failure of the major mainland press, of the Attorney General, and the judge presiding to take note, publicly, (in this small corner of the world) of the criminal assault on free speech fits into the general contemporary resignation of responsibility among public servants and "leaders" of society. The failure of response is unacceptable.

Unacceptable, but not unexpected.

We can say, without any fear of being contradicted, that if the NDP was in power and had been responsible for the corrupt sale of BC Rail, the story of the break-in would have been very, very different. The major B.C. papers would have had screaming, banner headlines about gangland-style crime reaching towards the courts. Bill Tieleman would have been interviewed on front pages, photos of his vandalized office displayed prominently. And the story of the corrupt BC Rail sale would have been minutely revisited in columns and news stories to make sure British Columbians possessed all the facts.

But the government of B.C. is government by big corporations. The Globe and Mail and CanWest Media are big corporations. They are in business to make profit and to support governments that help them make profit, not to inform British Columbians of matters essential to their society and freedom. As if to rub salt into the wound, on December 5 the Globe and Mail ran a recapitulation of its December 3 story concerning the bid for an in camera (secret) process by William Berardino, Special Crown Prosecutor. The story didn't mention the break-in at Bill Tieleman's office.

We remember another story about entry through the ceiling which is related, in some way, to the Basi, Virk, and Basi proceedings. The Crown's key witness, Erik Bornmann, apparently used the same device. He has been denied admission to the Upper Canada law society because he has admitted taking some part in an alleged bribery involving at least one of the accused (the reason Bornmann is a witness).

Earlier in his career, Bornmann apparently earned the name of "spiderman" among friends as a result of his letting himself through a ceiling, it is alleged, to get at materials he wanted in an office below.

The humour (?) of all this is darkened by William Berardino's application for and apparent success at getting in camera (secret) examination - excluding even Defence counsel - of a police officer with information that must reveal the identity of an informer who would be endangered, it is alleged, by the exposure of his or her identity. At the end of argument Thursday - which is to continue (in secret) - Madam Justice Elizabeth Bennett was continuing to uphold the legitimacy of the application for in camera (secret) appearance of the police officer. Whether she will permit (a) secret appearance (b) with Defence counsel excluded - and press and public as well - is, at this moment, open to some question.

There is good chance she will feel bound by Section 37 of the Canada Evidence Act to support the application of the Special Crown Prosecutor.

This is not a simple matter. The Criminal Code determines that, in such a situation, Defence counsel must be present since the fate of the accused is affected by the appearance of the witness. But Section 37 of the Canada Evidence Act erases the power of the Criminal Code in the matter. And so when the Crown heard (on Thursday. Dec. 6) Madam Justice Bennett find that Defence counsel could be present under the terms of the Criminal Code, the Crown invoked Section 37 of the Canada Evidence Act.

This is not a simple matter. As I have repeatedly written the principle of an open court - a great principle - is one of the cornerstones of Canadian democratic freedom. Whenever it is further eroded, the erosion is used to continue the destruction of the principle of open courts. That, as I said, is an ironclad rule. When you ask who wants to erode the principle of open courts, a simple answer is the people who find democratic society an obstruction to their ambitions.

My own opinion is that Madam Justice Elizabeth Bennett should have asked the Berardino application to wait until the pre-announced Defence counsel applications were heard. She should have done that, in my mind, to defend the principle of courts open to the public and to scotch any idea that she is willing to be part of applications for in camera (secret) processes that might in any way be unnecessary or exploitative. She should have taken a bold, even creative, stance on the open court principle.

Had she done so, Defence could have continued with its applications and could in no way have impeded a later application by the Crown to hear testimony from a police officer in camera (secretly).

At the beginning of this piece I wrote that William Berardino "fired a black torpedo, brilliantly aimed, at the succession of applications about to be filed by Defence counsel in the weeks following December 3". If I remember correctly, Defence was going to challenge the legitimacy of wiretaps, was going to challenge what have been extended delays as abuse of procedure, perhaps invalidating the charges against the three men. It proposed a Charter challenge based, I believe, on the wiretaps. And there may have been moreŠ.

Significantly, the abuse of procedure claim would almost certainly have had to include the failure of the Special Crown Prosecutor to disclose in a timely fashion materials needed by the Defence.

Skating through the Defence line, Special Crown Prosecutor Berardino announced on November 26 that he would be making an application regarding the need for in camera (secret) examination. The reason he would attest, now, it seems, was not clear. (Though I believe it was pretty clear at the time.) Some began going in search of "secret witnesses" believing that is what he had spoken about in court. Madam Justice Bennett did not (strangely) ask him to present an affidavit giving a brief statement of his reason.

And so when the court assembled on December 3, she, it would seem, (strangely) didn't know what the application would be for, though she had had about eight days to find out. She struck a forty-five minute in camera hearing to learn. Then she struck another one for Defence counsel to argue against legitimacy of the application. That argument ran the rest of Monday and Tuesday. Court didn't sit on Wednesday, and on Thursday the Crown sunk the final dagger into the heart of Defence by moving from the Criminal Code statement on in camera (secret) testimony to Section 37 of the Canada Evidence Act. It was argued Friday, December 7 and perhaps will go on. And so, in a time meant to be used to hear the Defence counsel applications, the Crown has already usurped a week of the time and may, with its action, force appeals and delays and the impossibility of having a trial as scheduled in March if any trial happens at all.

Roger McConchie, acting for CTV, the Globe and Mail, and Canadian Press, said outside the courtroom that because of the developments arising out of what I call Berardino's black torpedo, the trial could be delayed or thrown out. Indeed, he remarked that it's anybody's guess "if this is going to trial".

And - as it stands - if the trial collapses in appeal delays, the Crown and RCMP will not have been tested for the legitimacy of the methods they used, the delays they caused, or the ways they found to choose accused to stand trial.

Defence earlier ate away at the credibility of the Crown's position by forcing the disclosure issue and discussing what some disclosure materials contained. Defence opened enormous questions about investigative methods and motivations - pointing away from the three men accused. An unspoken question was posed about the basis, the formulation, and the larger legitimacy of accusations. If the process collapses under the weight of the present complications introduced, some major, fundamental questions surfaced by the BC Rail Scandal will never be addressed.

Madam Justice Bennett declared on Thursday that the public interest in the matter is paramount. But as I have said elsewhere, on questions of the public interest, the public right to know, and the principle of open courts, she is not convincing. She speaks, but she does not act. I, for one, am not in the least convinced she cares about the public or is concerned to guard its freedoms. In my observation and in my experience, rather, she acts against them.

As I have repeatedly written, she has denied material to the public that is on public record - without any good reason that I have been able to discover. Submitting herself to an irrational and indefensible "Practice Direction" on disclosure, she denies, I believe, reasonable operation of an "open court".

My own direct experience of court operation - as a person with a name - doesn't matter. But as a representative Canadian trying to make the court work to see justice done openly and effectively my experience is of first importance.

In that regard, she had her associates deny me documents and information, professing that an elaborate protocol had to be followed (which, even so, might not eventuate in release of materials requested). But when the Globe and Mail asked for an important document, she agreed to release it on the spot and without any protocol observed whatever. The requirement of protocol procedure obviously could be waived at her discretionŠand was, when it suited her.

Most recently, I wrote to her (after the November 26 hearing) and asked to have equal standing in the argument against the Special Crown Prosecutor's application to be heard on December 3 for the right to hear in camera (secret) testimony. The letter I received in answer (dated Nov. 30 07 and delivered a few days later) from a court officer, said:

"If you wish to address Madam Justice Bennett on the subject of Mr. Berardino's request for the hearing of certain testimony in camera, you may do so. However, the procedure to do so is by engaging the Court's formal process by filing an application and supporting materials under the Rules of Court; not by sending a letter to the judge."

That response is precisely the same as the previous response from the court to my request to see documents. It is (to put the matter gently) garbage. The statement quoted, in itself, is acceptable. But the writer should have added. "You have, of course, (especially if time is short) the right to rise in court during proceedings and ask for standing in the matter, and to receive that right at the discretion of the judge." The court officer's failure to tell me that is, I believe, not a matter of accident. Not to have told me was, in effect, to mislead me. Again.

Just as the Globe and Mail proved the falseness of the tight restrictions on me concerning absolutely necessary protocols to be followed to gain the right to examine material on public record, so on Thursday, December 6, the Crown proved the falseness of the statement to me about procedures to receive standing in relation to the Berardino request.

On Thursday, the Crown stated it would apply for in camera (secrecy) rights under Section 37 of the Canada Evidence Act. The judge wanted to know when. The Crown said it would like to do it on Monday. (That, presumably, would have been by the presentation of a formal, written application). Madam Justice Elizabeth Bennett wanted to move things along and so, on the spot, she had Ms. Winteringham, for the Crown, dictate the request, which the judge wrote onto her computer on the spot.

Madam Justice Elizabeth Bennett did not, however, look up at me, and say: "and by the way, Mr. Mathews, I believe you would like to make a verbal application for standing in this matter. I have just dealt with Ms. Winteringham's verbal application and I am perfectly ready to receive a verbal application from you, especially since you have had so little time to file a formal application".

That did not happen because - as the response from the court officer makes clear (and as was made clear the first time concerning a request to see documents), we are not all equal before the law. The principle of open courts is being narrowed daily until the courts will be shams as open tribunals conducting crucial public business. Ordinary Canadians are, in fact, more and more held in contempt, I believe, by a great many judges and officers of the B.C. Supreme Court. If that is true, it throws a shadow on all the decisions made in the courts where those judges "preside".

In the same vein (though this is perhaps a humourous example) I went to the criminal trial coordination desk on December 5 because neither the in camera (secret) Tuesday hearing nor the cancelled Wednesday sitting were recorded on the Supreme Court website. No one was in courtroom 54 on Wednesday, but there was no information on the website explaining why (nor on the courtroom door).

The receptionist at the desk could hardly extend herself to hear me. She went to the office of Mary Ellen Pearce (trial coordinator) and came back to tell me there was no sitting that day. (Ms. Pearce, of course, would not descend from her office to speak to an ordinary Canadian seeking information.)

I asked the receptionist to tell Ms. Pearce that there was no indication of the matter on the court website. The receptionist informed me Pearce is "only" the trial coordinator. I said that means she can decide what goes on the website about scheduling. I asked the receptionist again if she would take a note and inform Pearce that no information appears on the website about in camera or cancelled sittings, a distinct inconvenience to people seeking information.

With the worst will in the world, as I registered her response, and with body language that made me almost certain she wouldn't give my message to Mary Ellen Pearce, the receptionist scratched down a few words for the sake of appearances.

Madam Justice Elizabeth Bennett is not alone in her contempt for ordinary Canadians. It appears to be a raging disease, highly communicable, in the Supreme Court of British Columbia.

In the last piece I published on the subject of the BC Rail Scandal I said that the brouhahah about in camera (secret) testimony in the Basi, Virk, and Basi proceedings is a tempest in a teapot. That is because I believe all the fireworks hide the fact that the central wrong-doers in the BC Rail Scandal arising from the corrupt sale of B.C. Rail by the Gordon Campbell cabinet have not, (I allege), been identified, investigated, and charged. Almost all that we see, as I read the situation, is smoke and mirrors.

That is very likely true. But even so, the applications for in camera (secret) processes in the matter of Basi, Virk, and Basi dangerously threaten the integrity of the court system as a credible and meaningful institution in Canada. (That will be powerfully demonstrated if the possibility of any trial at all collapses as a result of the present manoeuvres.) For that reason, we should regret and resist the application just made for in camera processes under Section 37 of the Canada Evidence Act.

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Thanks and extra thanks, Robin, for your passionate defense of a colleague whose working space was assaulted while he was observing Supreme Court events in the Basi-Virk Hearing. I do believe it's an astonishing ethical failure even for CanWest, to pretend that Bill Tieleman as journalist wasn't the victim of a criminal attempt at intimidation. And that a free press isn't also a victim of this type of crime. - BC Mary.

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