Monday, April 14, 2008

 

Blood on the floor of courtroom 65. The BC Rail Scandal ...

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... and the Basi, Virk, and Basi Case.

Robin Mathews
April 14, 2008


As if to symbolize the general bloodiness of today's hour-long hearing, Madam Justice Elizabeth Bennett wore sleeve caps of brilliant scarlet and a dickey of blazing white. Eleven counsel filled the court proper. The gallery began with five in it and ended with seven.

Today. The Basi, Virk, and Basi case, I suggest, ceased being even a pretence at a removed, distinct, judicial event. Today it became (and will continue) a full-dress political battleground - no participant able, from now on, to state (like it or not) that he or she is not one of the political warriors doing battle for or against the Gordon Campbell cabinet, architect of the corrupt (and perhaps even criminal?) sale of BC Rail.

That fact places Madam Justice Elizabeth Bennett in a hole into which she will dig herself deeper and deeper as she tries to maintain the fiction that she is not on any side but merely there to rule on matters of process and law. Already, today, (to this observer) she began digging the hole deeper.

How did it happen? Hold your breath.

Delaying and tidying up, and arguing whether there was delaying, and some promise of tidying up seemed to be the order of the day. Madam Justice Elizabeth Bennett was serene.

Janet Winteringham, for the Crown, was (as usual) laying out the reasonable and solid and sensible way material was being prepared carefully for disclosure.

Michael Bolton Defence counsel, showed a little concern about unresolved matters to be disclosed. Would all be tidy by the required dates?

Joseph Doyle (Defence counsel) was, as usual, undramatic and tidy.


Kevin McCullough, Defence counsel, shouldering a large part of the disclosure load, reported that March 11 requests of simple nature remain unanswered, un-acted upon. He stressed misunderstandings of matters that seem impossible to misunderstand. He wanted to know if e-mails George Copley (counsel for the executive committee - the cabinet) had presented are complete. He noted the Ottawa files (at the time to then RCMP Commissioner Juliano Zaccardelli - since resigned in disgrace) are not yet available. He remarked that 857 documents are still undisclosed. In a way common to courts, he asked why they were not named, and remarked that she (Madam Justice Elizabeth Bennett) must be interested in that fact, in order to focus attention upon it. And so on.

Then the blood began to run across the floor.

Previously, Defence had surfaced the question out of which came NDP Justice Critic Leornard Krog's letter of questions to Deputy Attorney General Allan Seckel about the change of protocol concerning the release of cabinet documents. A complex but workable protocol existed from early 2004 until well into 2007, at which time, unilaterally, Gordon Campell announced a change. Allan Seckel, Deputy Attorney General would oversee screening of cabinet documents for possible privilege.

Seckel took a "noli me tangere" position (Don't Touch Me!), forcing Krog to contact Madam Justice Elizabeth Bennett to have his questions answered. She released (at one dollar per page) about 250 pages of material containing stuff that answered some of his questions. Seckel, as I have said before, is placed in an intolerable position. If Gordon Campbell changed the protocol for political reasons, Seckel's every action in the matter may be described as political. If Campbell and cabinet continue to refuse to say why the protocol was changed, Seckel looks more and more like a political servant making political choices. If that is so, then the "apolitical" role of Deputy Attorney General is suddenly politicized. Where, then, is there unbiased comment or action out of the Attorney General's Office (he being the top law officer of the Crown)?

Wally Oppal, Attorney General, has already written himself large as a Politician first and Law Officer second. And so politicization is not only spreading to the Courtroom 65. It is bloodying the Province.
Allan Seckel's position is becoming so intolerable, he should, perhaps, in the interests of the Public Good, resign his position.

The documents released by Madam Justice Elizabeth Bennett did not answer the major question put by Leonard Krog: Why Was the Protocol Which Had Been Working For Three and a Half Years Suddenly Changed by Gordon Campbell Himself?

Defence counsel had signalled that change earlier, and had made clear its belief that the premier had entered the judicial process, politicized it, and that he (and cabinet secretaries - four people in all - but especially Campbell) should be identified as concerned in the case and legitimate to be called for cross-examination.

I believe it was Madam Justice Elizabeth Bennett who suggested that a set of questions might be drawn up, submitted to Gordon Campbell, to which - in replying - he might make appearance for cross-examination unnecessary. Defence drew up questions, submitted them to George Copley saying that the terms in which they were offered - to be fair - would be "as if" Campbell (and any of the others questioned) were in the witness box facing questions that were not screened by counsel. And so they would take the questions as private, reply to them without consulting anyone else, seal them up and return them. Simple.

George Copley rejected that proposal outright.

In the period of heightened tension that followed, Kevin McCullough (Defence) drew Madam Justice Elizabeth Bennett in - as he had to do - as someone who was going to have to adjudicate the matter.

William Berardino, Special Crown Prosecutor, rose to intervene to the effect that the people questioned might not have the answers to all the questions unless they were able to consult with others who had acted, perhaps. McCullough replied that they need only say (as they would under cross examination): "I can't answer that question" because I was not the one who made the decision or acted or other. Simple.


McCullough observed (what this column has also observed) that it is hardly likely Gordon Campbell would have entered the judicial arena and unilaterally changed the protocol dealing with the release of cabinet documents unless he had powerful political reason to do so. Leonard Krog, incidentally, has observed the very simple fact that cabinet may offer any and all documents without privilege. Privilege is asserted; it is not a basic characteristic of cabinet documents. And so the assertion of privilege - which has dogged these proceedings - may be seen by any reasonable and prudent Canadian as revealing a suspicious desire by the cabinet to keep information about the conduct of the people's business from the people. Why would it want to do that?

At that point Madam Justice Elizabeth Bennett (and ever after in this case, I allege) had to act. She could not choose otherwise. She had, in effect, to weigh in on "the politics" of the corrupt sale of BC Rail. She had to take position. And she did. She told Kevin McCullough that she has doubts about his argument, thinking perhaps (not making a firm statement) that counsel has a role in the replies to be made by the premier and others. And there, for the time being, the matter stands.

Next hearing date is May 2, 2008 at 9:00 a.m.

But that, of course, is not the end at all. For some reason that one has to believe is very important, Gordon Campbell unilaterally changed the protocol for deciding if cabinet documents should be withheld from the Defence as "privileged" material. He waded into the apparently distinct judicial processes from a major political position bearing major political interests and taints. His action cannot be described, I believe, as anything else than a political action. Defence, as a result, insists he be a party subject to cross examination in the Basi, Virk, and Basi case.

And this is where Madam Justice Elizabeth Bennett becomes - whatever she may wish - a political actor in the tragic BC Rail Scandal. For Gordon Campbell has politicized everything to do with the court processes involved, I allege. If she says Gordon Campbell's action was not interference in the judicial process, she is (also) making a political decision. If she says his action was interference in the judicial process, she is (also) making a political decision. If she says he need not appear to be cross-examined, she is (also) making a dynamic political choice. If she says he must appear to be cross-examined, she is (also) making a dynamic political choice. Because of the situation Gordon Campbell has created, she cannot act in the matter without someone (with a colour of fairness) saying she has acted from political motivation. (Although she may state the opposite, and mean it.)

Gordon Campbell has made Allan Seckel's position so intolerable Seckel's only recourse may be to resign as Deputy Attorney General. Campbell seems to have made Madam Justice Elizabeth Bennett's position so intolerable that her only recourse may be to resign from the case. That would throw the whole matter into chaos - which may be precisely what Gordon Campbell hopes will happen.

As if her failure to demand schedules and dates of disclosure haven't already (as I have alleged before) done harm to the issue in court, now she is placed in a position that cannot (I allege) be seen - in some circles - as anything else but invidious. The pursuit of justice in the matter seems to have been so clogged with political blood that procedures in courtroom 65 may stand, for history, as an example of how power - wishing to defeat the ends of justice - can lay trap after trap after trap, so that even the people acting from highest principle are eventually dragged down and caught in the tangles.

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Robin: thank you, and thank you again, for helping us see into Courtroom 65 and into the case which has caught up the province of British Columbia. - BC Mary.

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Comments:
Express Collision Shop Said,


A POLITICAL ACTOR IN THE TRAGIC BC RAIL SCANDAL?


INVIDIOUS-adj-likely to provoke ill-will; offensively discriminating.

I had to look that one up in an old dictionary. Thank you Robin, I learned a few new or forgotten words today-Biofilm and invidious.
 
Thank you Robin for a great piece. Is anybody in the Campbell loving lower mainland reading this?? Our premier is dirty under all those stiff suits and you all still support him! It seems to me that those who are helping him with this game of chess can't win now, no matter what they do.
 
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