Monday, February 25, 2008

 

BC Rail Scandal's 'moment of truth'

.
The Fall of a Court.
On February 20, the BC Rail Scandal experienced its "moment of truth".

By Robin Mathews

Related to the fraud and breach of trust charges against Order in Council-appointed Gordon Campbell cabinet aides Dave Basi, Bobby Virk, and Aneal Basi, February 20 delivered up a revealing and explosive document: a particularly important, January 4 Defence Application for Disclosure of evidence.

The document opens painful questions about the honesty and legitimacy of the Gordon Campbell government and the proper separation of police, cabinet, court, and lawyers engaged with the public's business.

It opens questions that no one among the chattering classes (so far) wants even to mention, about the growth of an incipient Police State in B.C. and Canada. It opens related questions about the legitimacy of the higher courts in Canada - especially, in this case, the Supreme Court of British Columbia.

As a mere footnote to that last point, the explosive nature of the released January 4 Application for Disclosure highlights the danger in the court's continuing refusal to release material on the public record to the public. If the fifteen page document released on February 20 has explosive implications, what - we may ask - is present in the hundreds of pages on public record that Madam Justice Elizabeth Bennett is keeping from public view?

Arising from the corrupt (and still partly secret) sale of BC Rail, an honest and open investigation and examination of all the evidence might well be enough to force the resignation of the Gordon Campbell government.

Think of it. At the moment, now, the Gordon Campbell government may be illegitimate, a "rogue state", a government acting behind a barrier constructed to obscure its fraudulent status.

In such a dramatic and important situation - focused in a set of court processes - reasonable people quite fairly expect the court to move in an organized, competent, timely, and visibly meaningful way. They expect the presiding judge to iron out wrinkles in procedure, to undo log jams in communication, to make sure evidence required arrives promptly in effective form, and to move pre-trial hearings to a smooth and timely conclusion so that the trial, proper, may begin.

Those things have simply not happened in the Bask, Virk, and Basi case, a case staggering and lurching, scarcely moving forward in the Supreme Court of British Columbia.

The January 4 document lists serious failures on the part of the Special Crown Prosecutor to present evidence called for. It lists presentation of evidence without proper (or sometimes any) indexing, failures to explain anomalies, incorrect verbal information being given and possible other (not yet known) verbal misinformation having been given by the Special Crown Prosecutor. It lists what appears plainly to be missing material, late or spotty presentation of material, failure to provide "information relevant to the abuse of process allegations", - and more.

Failures of organized, competent, and visibly meaningful disclosure are listed through 69 particular items presented in the January 4 Application for Disclosure filed by the Defence.

The January 4 document constitutes, in fact, a scathing denunciation of the long, long, long pre-trial process so far undergone. And it forces reasonable Canadians to recognize that something is deeply and fundamentally wrong. For reasonable Canadians the January 4 Application for Disclosure is truly a "moment of truth". No longer can the "You don't understands", the "ifs" and the "buts" and the arguments that "court processes are complicated" work to head off criticism.

A school child reading the January 4 Application for Disclosure would see plainly that the Supreme Court of British Columbia is seriously failing justice and the people of the Province.

Is the Special Crown Prosecutor dragging his feet? Is he purposefully failing to organize material and ready it for the Defence? Is he urging the RCMP to keep material back? Or is he looking the other way when the RCMP prepares material inadequately? Is he taking as his primary task the delay and obfuscation of what ordinary people think of as "due process of law"? Are those his instructions?

Does the RCMP - in this case - have reasons of its own to block, disarrange, and impair the proceedings? Is the RCMP an entity which has contempt for the powers of the Supreme Court of British Columbia? Does it consider itself outside the scope of jurisdiction of the higher courts of Canada? Is the RCMP delaying the process under orders? From someone?

Is counsel for the Gordon Campbell cabinet throwing sand into the machine purposefully, preventing movement forward? Has he been ordered to do that?

All of those questions and many others may perfectly reasonably surface in the minds of ordinary Canadians.

They are important questions. But all of them are subordinate to the Number One Question.

Why is Madam Justice Elizabeth Bennett permitting the disarray, the failure to comply with her court orders, the apparently alarming failures on the part of the Special Crown Prosecutor and (through him) the RCMP to complete tasks, to report information, to give up materials in an organized, timely, and credible fashion? Why is Madam Justice Elizabeth Bennett permitting the chaotic and destructive delay that marks the process over which she presides?

That is the fundamental question.

She is key to almost all the failures cited in the January 4 Application for Disclosure and, as a result, is now, herself - I say this with respect - in question, front and centre.

Return for a moment to the 15 page, January 4 Application for Disclosure. It begins by claiming that "notwithstanding the Court's Order of June 4, 2007, neither full disclosure has been made nor has the Court's Order been complied with". Later, [# 59] Defence again refers to neglect by the Special Crown Prosecutor of "the Court's June 4, 2007 Order." And again [#62] Defence writes: "Notwithstanding repeated Court Orders with respect to providing meaningful indexes of materials ... indexes ... are not helpful [and are] unusable without opening each individual document". Regarding matters concerning "star witness" Erik Bornmann [#67], Defence writes: "To date, the Special Prosecutor has not complied with this part of the June 4, 2007 Order".

The opening of the Application for Disclosure makes a blanket statement of failure to comply with the Court's Order. At specific places in the document that blanket statement is given special application.

Concluding the Application, Defence seeks relief by asking for 13 Court Orders. At least six of the requested Orders, as I read them, deal with information in the possession of the RCMP that Madam Justice Elizabeth Bennett, in court, called for "forthwith" months and months ago. Others among the remaining requests for Orders reiterate matters covered earlier in the hearings.

What conclusions may reasonable Canadians come to? First, that Court Orders from the presiding judge are all but ignored by the Special Crown Prosecutor and the RCMP. They defy her orders so visibly and consistently - as far as an ordinary Canadian can see - that reasonable people may conclude they are in contempt of court.

But the presiding judge does not cite them with contempt of court, nor does she even upbraid them publicly for failing to comply with Court Orders. This observer is convinced (as I believe the Special Crown Prosecutor and the RCMP must be) that her Court Orders are meaningless gestures undertaken, perhaps, to provide "news" for the members of the press sitting in the gallery.

Secondly, Madam Justice Elizabeth Bennett, herself, seems to place no value upon the Orders she issues. She suffers their violation with imperturbability. As I see things, she does almost nothing to assure the integrity of the court process.

There may be any number of reasons why she avoids enforcing her Court Orders. The reasons may be psychological, temperamental, ideological, political, or other. Whatever the reason, her failure, I believe - I say this with respect - seriously impairs what may be to the British Columbia population the most important trial in the Province's history.

For that reason I think she must, with respect, be asked to step down, must be asked to leave the case, must be declared unable to continue in the role of presiding judge. As long as she remains in that position, I believe the case will be seen, more and more, as an embarrassing and destructive farce. British Columbians would be acting with perfect prudence, I believe, in going - in droves - to the next hearing on the BC Rail Scandal, rising in the court, asking for standing, receiving it, and, one by one, requesting - with respect - that Madam Justice Elizabeth Bennett vacate the position of presiding judge, for the sake of the credibility and the integrity of justice and the Supreme Court of British Columbia.

The BC Rail Scandal court process has become a tragic joke, bringing justice and the Supreme Court of British Columbia into growing disrepute. The failure to get the simplest production of evidence without delay, obstruction, posturing - impediments of all kinds - is making the Supreme Court of British Columbia appear a bastion of protection for wrong-doers and for those who would efface the fundamental freedoms of Canadians. Almost all of the impediments to a clean, competent, and timely process, I believe, must be laid at the door of the presiding judge.

The moment of truth has arrived. Madam Justice Elizabeth Bennett must go.


for vivelecanada.ca

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Comments:
Hi mary,

this was L.krog just after question period.





point of Privilege
(continued)

L. Krog: I rise to speak to my point of privilege first raised in this House on Monday, February 18, 2008, and then again reserved this morning. I wish to outline the factual support for my contention that this House should find that the Premier has misled this House and that he be directed by the House to apologize. [DRAFT TRANSCRIPT ONLY]

The matters which consolidated this point of privilege were brought to my attention on Monday, February 18, 2008, and so I rose in the House on that day to register my point of privilege. In addition, new matters came to light on Friday, February 22, 2008, which raise an additional point of privilege, which I will also address in my remarks. I rose this morning at first opportunity to reserve my right to speak to this point of privilege. [DRAFT TRANSCRIPT ONLY]

The following outlines the factual basis for my points of privilege. During Committee of Supply, spring session 2007, the Leader of the Opposition asked the Premier questions about the process regarding the disclosure of documents in Regina v. Dave Basi, Bobby Singh Virk and Aneal Basi. The Premier responded on numerous occasions that the Premier's office was not consulted nor involved in the determination of which documents should be disclosed. [DRAFT TRANSCRIPT ONLY]

I quote the Premier. "There is a special prosecutor involved in this. The Premier's office does not have a direct input into that. Certainly not with this government." That's Hansard, May 28, 2007, afternoon sitting. [DRAFT TRANSCRIPT ONLY]

The Premier again: "I can tell you right now, hon. Chair, this Premier's office is not involved directly in that." Hansard, May 28, 2007, afternoon sitting. [DRAFT TRANSCRIPT ONLY]

[1430]

Again the Premier: "The Deputy Attorney General will determine who, in fact, and what kind of documentation will be made available within the confines of the law as it currently [DRAFT TRANSCRIPT ONLY]

H049/bah/1430
2007, afternoon sitting. Again the Premier: "The Deputy Attorney General will determine who in fact and what kind of documentation will be made available within the confines of the law as it currently exists, and he will not consult with the Premier's office with regard to that." Again, Hansard, May 28, 2007. [DRAFT TRANSCRIPT ONLY]

Last week it came to my attention that an entirely different protocol was developed and implemented in January 2004. According to an article authored by the Clerk of the Legislative Assembly and published in the Parliamentarian, after consultation with the Speaker in December 2003, the government developed a five-stage protocol to handle these potentially sensitive cabinet documents. [DRAFT TRANSCRIPT ONLY]

That's contained in "The execution of search warrants in the British Columbia Parliament Buildings," Kate Ryan-Lloyd, the Parliamentarian, 2004, issue 2, page 158. [DRAFT TRANSCRIPT ONLY]

According to the article, four of the five stages were: (1) a lawyer selected by the government must sever any documents that contain deliberations of the province's executive council; (2) the associate chief justice reviews these documents and decides if they are relevant to the police investigation; (3) if confidential cabinet documents were found to be relevant to the criminal investigation, those documents would be sent to the deputy cabinet secretary to confirm that the material is to remain confidential; (4) if the documents in question are considered to be confidential, the associate chief justice asks the special prosecutor and other prosecutors to argue in closed court whether the information is to remain confidential in law. [DRAFT TRANSCRIPT ONLY]

That's at page 160. Further to this, I located an article dated January 15, 2004, in The Vancouver Sun, which describes a fifth step that would take place after the documents were sent to the deputy cabinet secretary, who was at that time Ms. Joy Illington. "If Illington requires the assistance of the executive council, she must appear before dome in a closed courtroom and ask permission to discuss the confidential matter with the executive council. "Charges expected soon in drug probe," Lori Culbert and Jim Beatty, The Vancouver Sun, January 15, 2004, page A01. [DRAFT TRANSCRIPT ONLY]

The authors of the story summed up the situation in this way: "The documents considered privileged will go through a longer vetting process that can involve the provincial government's executive council." [DRAFT TRANSCRIPT ONLY]

In addition, in December 2007 the government counsel, George Copley, advised the court that he did not begin to receive advice from the Deputy Attorney General on matters of privilege until July 2007. "Basi-Virk defence alleges solicitor-client privilege claim instructions in case came from B.C. cabinet," Bill Tieleman, December 14, 2007 — Tieleman blogspot, etc. [DRAFT TRANSCRIPT ONLY]

Finally, on February 22, 2008, The Province columnist Michael Smyth reported on an interview with Deputy Attorney General Allan Seckel. Smith noted that: "In the immediate aftermath of the raid, the government established a protocol for reviewing internal records to see if they should be released or deemed privileged and kept under wraps. Two bureaucrats from Campbell's office" — that's the way the quote reads — "Joy Illington and, later, Elizabeth McMillan, were assigned the task, but that changed last year over concerns that the process looked too cozy." "Premier should stay clear of B.C. Rail," Michael Smyth, The Province, February 22, 2008, page A04. [DRAFT TRANSCRIPT ONLY]

Michael Smyth then quoted Allan Seckel as saying: "There was a concern, as this appeared to be getting a political life to it, that it would be prudent to not have the Premier's office involved in any way in these decisions." [DRAFT TRANSCRIPT ONLY]

Therefore, I have raised my matters of privilege, reserved on two occasions, in that the Premier knowingly misled the House on May 28, 2007, by stating that the Premier's office was not involved in the review of documents when he knew that a process that included the Premier's office was in place since 2004 and continued until at least 2007. [DRAFT TRANSCRIPT ONLY]

I am also submitting, hon. Speaker, the required accompanying motion. [DRAFT TRANSCRIPT ONLY]



Hon. M. de Jong: Thanks, Mr. Speaker, and to the member for the submissions. I reserve the right to respond more fully in due course. [DRAFT TRANSCRIPT ONLY]
 
An awesome summary of where we are in this matter, Robin.

"Is the Special Crown Prosecutor dragging his feet?"

It's difficult to tell, he shows up so rarely.

"Is the RCMP an entity which has contempt for the powers of the Supreme Court of British Columbia? Does it consider itself outside the scope of jurisdiction of the higher courts of Canada? "

Well, DUH! I know Robin, that was just a rhetorical question!

"Is counsel for the Gordon Campbell cabinet throwing sand into the machine purposefully, preventing movement forward? Has he been ordered to do that?"

I, for one resent the fact that I have to pay for legal representation so the Soup Nazi doesn't have to tell us what he did. The last I heard, Gordon Campbell wasn't a defendant in this case - as wrong as that may be!

" Why is Madam Justice Elizabeth Bennett permitting the chaotic and destructive delay that marks the process over which she presides?"

You might say THAT is the $64 Billion Dollar Question! I find it completely unacceptable that this Disclosure Application even had to be made, some four years after the original raids and over three years since the laying of charges.

Go put up a roadblock somewhere that gets in the way of one of the Campbell Cabal's pet projects, if you would like to see how fast the Supreme Court of BC can act, with the right motivation. If only it could act that rapidly in the pursuit of JUSTICE.
 
DPL has sent us these two segments from Hansard for February 25, 2008. This segment got separated onto another post ... I found it there and copied it to this location, just to explain why Part 2 comes first. Many thanks to DPL for this. - BC Mary
_______________________________________

Point of Privilege
(continued)

L. Krog: I rise to speak to my point of privilege first raised in this House on Monday, February 18, 2008, and then again reserved this morning. I wish to outline the factual support for my contention that this House should find that the Premier has misled this House and that he be directed by the House to apologize. [DRAFT TRANSCRIPT ONLY]

The matters which consolidated this point of privilege were brought to my attention on Monday, February 18, 2008, and so I rose in the House on that day to register my point of privilege. In addition, new matters came to light on Friday, February 22, 2008, which raise an additional point of privilege, which I will also address in my remarks. I rose this morning at first opportunity to reserve my right to speak to this point of privilege. [DRAFT TRANSCRIPT ONLY]

The following outlines the factual basis for my points of privilege. During Committee of Supply, spring session 2007, the Leader of the Opposition asked the Premier questions about the process regarding the disclosure of documents in Regina v. Dave Basi, Bobby Singh Virk and Aneal Basi. The Premier responded on numerous occasions that the Premier's office was not consulted nor involved in the determination of which documents should be disclosed. [DRAFT TRANSCRIPT ONLY]

I quote the Premier. "There is a special prosecutor involved in this. The Premier's office does not have a direct input into that. Certainly not with this government." That's Hansard, May 28, 2007, afternoon sitting. [DRAFT TRANSCRIPT ONLY]

The Premier again: "I can tell you right now, hon. Chair, this Premier's office is not involved directly in that." Hansard, May 28, 2007, afternoon sitting. [DRAFT TRANSCRIPT ONLY]

[1430]

Again the Premier: "The Deputy Attorney General will determine who, in fact, and what kind of documentation will be made available within the confines of the law as it currently [DRAFT TRANSCRIPT ONLY]

H049/bah/1430
2007, afternoon sitting. Again the Premier: "The Deputy Attorney General will determine who in fact and what kind of documentation will be made available within the confines of the law as it currently exists, and he will not consult with the Premier's office with regard to that." Again, Hansard, May 28, 2007. [DRAFT TRANSCRIPT ONLY]

Last week it came to my attention that an entirely different protocol was developed and implemented in January 2004. According to an article authored by the Clerk of the Legislative Assembly and published in the Parliamentarian, after consultation with the Speaker in December 2003, the government developed a five-stage protocol to handle these potentially sensitive cabinet documents. [DRAFT TRANSCRIPT ONLY]

That's contained in "The execution of search warrants in the British Columbia Parliament Buildings," Kate Ryan-Lloyd, the Parliamentarian, 2004, issue 2, page 158. [DRAFT TRANSCRIPT ONLY]

According to the article, four of the five stages were: (1) a lawyer selected by the government must sever any documents that contain deliberations of the province's executive council; (2) the associate chief justice reviews these documents and decides if they are relevant to the police investigation; (3) if confidential cabinet documents were found to be relevant to the criminal investigation, those documents would be sent to the deputy cabinet secretary to confirm that the material is to remain confidential; (4) if the documents in question are considered to be confidential, the associate chief justice asks the special prosecutor and other prosecutors to argue in closed court whether the information is to remain confidential in law. [DRAFT TRANSCRIPT ONLY]

That's at page 160. Further to this, I located an article dated January 15, 2004, in The Vancouver Sun, which describes a fifth step that would take place after the documents were sent to the deputy cabinet secretary, who was at that time Ms. Joy Illington. "If Illington requires the assistance of the executive council, she must appear before dome in a closed courtroom and ask permission to discuss the confidential matter with the executive council. "Charges expected soon in drug probe," Lori Culbert and Jim Beatty, The Vancouver Sun, January 15, 2004, page A01. [DRAFT TRANSCRIPT ONLY]

The authors of the story summed up the situation in this way: "The documents considered privileged will go through a longer vetting process that can involve the provincial government's executive council." [DRAFT TRANSCRIPT ONLY]

In addition, in December 2007 the government counsel, George Copley, advised the court that he did not begin to receive advice from the Deputy Attorney General on matters of privilege until July 2007. "Basi-Virk defence alleges solicitor-client privilege claim instructions in case came from B.C. cabinet," Bill Tieleman, December 14, 2007 — Tieleman blogspot, etc. [DRAFT TRANSCRIPT ONLY]

Finally, on February 22, 2008, The Province columnist Michael Smyth reported on an interview with Deputy Attorney General Allan Seckel. Smith noted that: "In the immediate aftermath of the raid, the government established a protocol for reviewing internal records to see if they should be released or deemed privileged and kept under wraps. Two bureaucrats from Campbell's office" — that's the way the quote reads — "Joy Illington and, later, Elizabeth McMillan, were assigned the task, but that changed last year over concerns that the process looked too cozy." "Premier should stay clear of B.C. Rail," Michael Smyth, The Province, February 22, 2008, page A04. [DRAFT TRANSCRIPT ONLY]

Michael Smyth then quoted Allan Seckel as saying: "There was a concern, as this appeared to be getting a political life to it, that it would be prudent to not have the Premier's office involved in any way in these decisions." [DRAFT TRANSCRIPT ONLY]

Therefore, I have raised my matters of privilege, reserved on two occasions, in that the Premier knowingly misled the House on May 28, 2007, by stating that the Premier's office was not involved in the review of documents when he knew that a process that included the Premier's office was in place since 2004 and continued until at least 2007. [DRAFT TRANSCRIPT ONLY]

I am also submitting, hon. Speaker, the required accompanying motion. [DRAFT TRANSCRIPT ONLY]



Hon. M. de Jong: Thanks, Mr. Speaker, and to the member for the submissions. I reserve the right to respond more fully in due course. [DRAFT TRANSCRIPT ONLY]

February 25, 2008 4:11 PM
 
Mary,

It is very, very rare for a Deputy Attorney General to be commenting on a "case before the courts".

There is something to these documents and I hope that the NDP are like a dog on a bone with this issue and don't give up.

Opposition New Democrats allege Campbell misled legislature on raid documents
CP Newswire - 6:00PM

VICTORIA - British Columbia Premier Gordon Campbell should apologize for misleading the legislature about government documents related to the controversial 2003 raid on the legislature, say the Opposition New Democrats.

But a bureaucrat handling the potentially sensitive documents said Monday there has been no hint of government interference in the handling of documents that could form part upcoming trial of two former high-level government bureaucrats.

"Not a bit, not even a whiff," said Alan Seckel, B.C.'s deputy attorney general.

Police seized more than 30 boxes of documents from the finance and transportation offices in the raid and laid corruption charges against two former high-level government officials.

The two former B.C. cabinet aides - David Basi and Bobby Virk - are charged with trying to cash in on the Liberal government's $1-billion privatization of Crown-owned B.C. Rail in 2003.

Basi was the ministerial assistant to former finance minister Gary Collins and his co-accused, Virk, the ministerial assistant to then-transportation minister Judith Reid when their offices at the B.C. legislature in Victoria were raided on Dec. 28, 2003.

Police toted out 33 boxes of documents and seized government computers.

The case, being handled by a special Crown prosecutor because of its political nature, has dragged on since then.

It's grown more complicated with related investigations into illegal drug dealing, proceeds of crime, wrongdoing involving the Agricultural Land Reserve and money-laundering charges against Basi's cousin Anael Basi, a former government communications officer.

The trial was scheduled to start next month in Vancouver, but is likely to face further delay due to ongoing legal wrangling over disclosure of documents.

Under Opposition questioning last spring, Campbell told the legislature that his office was not directly involved in reviewing any documents related to the upcoming trial.

Now the New Democrats claim there was a government protocol in place that permitted the cabinet secretary to review documents.

NDP member Leonard Krog submitted a motion to the Select Standing Committee on Parliamentary Reform and Ethical Conduct on Monday asking the committee to force Campbell to apologize to the legislature for the misleading statements made last May.

"The premier knowingly misled the house on May 28, 2007 by stating that the premier's office was not involved in the review of documents when he knew that a process that included the premier's office was in place since 2004 and continued until at least July 2007," said Krog's notice of motion.

Outside of the legislature Krog was not as forceful, saying "the premier has something to answer for."
 
.
P.G., that was a good discovery.

I hope the NDP Opposition does what you suggest.

Over at The Tyee, Bill Tieleman has added a comment to his Railgate story saying he feels sure that the Basi-Virk / BC Rail Trial WILL go ahead.

I sure hope so.

.
 
Hi Mary,

My apologies for the confusion on the l.krog piece from the legislature as there was a problem sending that information to you.
 
.
Anonymous 8:58,

Hey, no problem! Without you, we might have missed those HANSARD segments and they are very important to counteract some of the spin which blew up afterward.

I can't fathom the minds of journalists like Les Leyne who get into a lather bashing the BC Opposition as if they're criminals for doing what oppositions are supposed to do.

It beats me, how Leyne could dream up such things about the calm request Leonard Krog made in the Legislature.

With your sharp eyes finding the original comments in HANSARD and sending them to us, we could begin to sort things out for ourselves.

Thanks again ... and please, stick with us, as I think we're beginning to get somewhere.

For example, do you think that we really did have a chance to stop the "sale" of BCRail at the time of the police raids on the Legislature? Man alive, I really want to bash somebody myself, if that's the case -- and we didn't know!!

So please keep watching, contributing, and helping. Thanks again!

.
 
So, a premier of a province can 'lie', or 'mislead' in the house, and only have to applogize when found out? Seems to me there should be more consequences than that....
 
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