Thursday, June 12, 2008
Elephants in Courtroom 60
MICHAEL BOLTON, THE BRITISH COLUMBIA COURT OF APPEAL, AND ELEPHANTS IN COURTROOM 60.
By Robin Mathews
[All the other press had left. They started leaking out at least a half hour before the end. Remaining in the gallery was the often-attending Liberal and me. Only. Mark Hume and Bill Tieleman had left, I guess, to file stories. It was about six minutes before the end of the day, when Michael Bolton opened up with Bruce Clark, Mark Marissen and Christy Clark's names. The often-attending Liberal was sitting beside me asleep. At the name of Bruce Clark he leapt into wakedness. The only person in the room with pen to paper, furiously taking the kind of notes I take was me ... Bolton was accosted as I report, got back on acceptable track, and ended the day in a very few minutes.]
- Personal note from Robin to BC Mary.
Missing the Wednesday, June 11, B.C. Court of Appeal session, I am depending on the report by Mark Hume in the Globe and Mail (June 12 08 A6) for that day's events. CanWest's flagship paper west of Toronto - the Vancouver Sun - has nothing, NOTHING, on that key story. (Remember: many, many British Columbians depend upon the Vancouver Sun for all their print news.)
My missing the Wednesday session was unfortunate, but it let me meditate on the full day session I attended Tuesday before Madam Justice Catherine Anne Ryan, Chief Justice Lance Finch, and Mr. Justice Ian Donald. Incidentally, the learned judges, reports Mark Hume, "couldn't give an immediate ruling, and didn't know when one would be ready". Not good enough. They have had days to do their homework and they know the issues are important. The argument before them, moreover, is not mysterious or hard to understand. All three judges, Hume reports, noted that "the court may never have faced a dilemma quite like" this one "before".
There are a number of ways of looking at that statement. One of them is that no one has ever had the brass before to try such a baseless raid on the concept of fair trial, open courts, and the rights of the accused as the Crown has tried by attempting to keep counsel for the accused away from the in camera testimony of an RCMP officer who may (?) disclose the identity of a claimed (but in no way evidenced - even to the trial judge) "confidential informant".
The three Appellate Court judges almost seem to have forgotten that counsel for the accused are Officers of the Court and are fully empowered to accept an undertaking of lifelong silence on the identity of the as-yet so-called confidential informant, should it be revealed. The judges must, in addition, consider whether they have enough information even to believe Mr. X is a confidential informant. That the Crown claims he is so means almost nothing. Defence alleges, for instance, that the seven senior investigating RCMP officers all were aware of his identity. If so, how confidential is "Confidential"?
The three Appellate Court judges appear to have accepted the statement of Special Crown Prosecutor William Berardino that counsel for the Defence might break trust and reveal the identity of Mr. X. By having done so, the judges may be showing bias in the matter. For if counsel for the Defence have to be (by their place and role in society) granted trust in an undertaking of confidentiality, there is not the slightest basis for the appeal lodged by the Special Crown Prosecutor to exclude them from the in camera testimony. Counsel for the accused felt deep insult at William Berardino's suggestion, and they had every right to do so. The surprise here is that the three judges of the Court of Appeal were not, apparently, equally alarmed at the Special Crown Prosecutor's suggestion, for it suggests, I believe, that counsel for the accused are (by definition?) inferior and suspect entities in a court trial.
I suggested in my earlier piece on the Appeal Court that Mr. Berardino's insult to counsel for the Defence may have sparked Mr. Bolton's reference to what I call the "political and turbulent" nature of the Supreme Court hearings before Madam Justice Elizabeth Bennett on the Basi, Virk, and Basi matters. The nature of those hearings must, Mr. Bolton seemed to suggest, as I witnessed the moment, have conditioned the quality of the appeal presented by the Special Crown Prosecutor.
And he went on to think aloud about the "political and turbulent" nature of the hearing. By doing so, for a brief few seconds he seemed to say, "there are elephants in the court room. Look at them."
From the first of the hearings in the Basi, Virk, and Basi charges there was an elephant in the courtroom. As years passed, more elephants arrived until, now, there is a herd of elephants in the courtroom. In the larger courtooms used for hearings presided by Madam Justice Elizabeth Bennett, people could ignore (or try to ignore) the elephants present. But when the matter moved to the much smaller Courtroom 60, the elephants got in the way.
I thought I saw Chief Justice Lance Finch stretch to try to see over one of them. And I was almost sure I saw one of the elephants put his large foot on the gown of the Special Crown Prosecutor so that William Berardino had to fuss and fumble and wrestle and bend down to get his gown free.
The first elephant was present at the first hearing. For, remember, the Search Warrant "raids" on legislature offices took place on December 28, 2003. Boxes and boxes of material were hauled away from the offices, hard drives of computers were taken away, a list of people in Victoria and the lower mainland were searched or interviewed. The net brought in an enormous amount of information - so much that the RCMP took almost a full year of further "investigation" before it laid charges against the three men, cabinet aides David Basi, Bobby Virk, and Aneal Basi.
But - this is important - almost at the same time as reporting the "raids" on the legislature offices, the RCMP stated unequivocally that no elected person was under investigation or (as far as we can know) would be. How could RCMP know that none of the vast amount of material seized would provide evidence that elected persons were involved in wrongful activity? Were RCMP officers psychic? Or did they know miraculously of the unsullied and unbesmirched purity of Gordon Campbell and his troupe?
They had been (evidence reveals) investigating cabinet member Gary Collins. Investigation stopped abruptly.
A year later three cabinet aides were charged. And since that day the elephant of cabinet wrong-doing in the BC Rail Scandal has been present in the courtroom. All have been asked to look away from it.
Then, we know, Defence counsel ran into a strange phenomenon. When they considered materials possibly relevant to the defence of their clients and asked for the materials, the Special Crown Prosecutor said, "Yes". And then it didn't come from the RCMP, or it came late, or it came in pieces, or it came in packages (electronic or other) that wouldn't open properly. Or all of a request seemed to come only to be proved to be just a part, later, or ... or ... or. As that problem repeated itself and intensified, another huge elephant entered the courtroom and stayed. It is marked "Maintiens le Droit" across its back, and underneath is written "by permission of the Disney Corporation".
I am told (though I don't know if it's true) a sheriff at the door of the courtroom advises anyone who enters that no elephants are present or permitted into the courtroom. If you see elephants in the courtroom, the sheriff tells people (as I hear the story), pretend you don't, he says, for if you say you see elephants, you will be taken for an immediate psychiatric examination and probably be committed to an institution.
Then, as we know, all charges related to drug matters were dropped - and another elephant wandered into the room, and has stayed. Then there was an earnest and powerful statement by an RCMP officer at the time of the legislature "raids" that Organized Crime has reached into the deepest corners and pockets of our society. Organized Crime. And the officer obviously meant that the search warrant raids were related to that terrible development. Rumours abounded that drug money may have been used to purchase bulk political Party memberships. The memberships would then be used, it was said, to make sure certain people became candidates. If that were true, was it possible that any of the accused was involved - and if any was, with whom (giving orders) was that person (or persons) involved? The questions rose and rose in the air until they created a thick fog. Out of the fog two elephants appeared, wandered into court, and have stayed there.
Well then. More elephants have arrived over the period of the hearings that are intended to lead to the trial of Basi, Virk, and Basi. One is the size of a stuffed toy, (quite cute) and it sits (I am told) at the right elbow of the presiding judge (though I have never seen it myself). Another, like a house pet (invisible to most), is led into court by George Copley, counsel for the Gordon Campbell cabinet and careful respondent to the protocol structures that guarantee the integrity of documents involved with cabinet privilege.
There are accounts also, but they cannot be pinned down to any particular person, that the Special Crown Prosecutor was seen one morning, dressed like the Emir of Shala, riding a beautifully decorated elephant towards the Supreme Court building on Smythe Street. Some say he rode right into the court room, got off the elephant, and that it moved into the area where the jury normally sits and hasn't moved since. Personally, I can't believe that story is true.
I return to Mr. Bolton's remarks of June 10 and the elephants in Courtroom 60.
He was in the process of making a clear and strong statement that Defence counsel must be present when the witness gives testimony, that to ask almost "carte blanche" for an exclusive hearing based on almost no evidence is unthinkable. Mr. Bolton seemed to me to be growing in his sense that the appeal by the Crown was unreal. And he seemed to me to be suddenly aware that it was a part (as far as he was concerned) of all the "political and turbulent" behaviour throughout the hearings - that it was, in fact, an extension of the unreasonable conduct there. He referred to the suggestion that Defence lawyers might not be trustworthy. He responded that the trial judge was concerned, as Defence was concerned, about the Crown's request. Look at the Second Supplementary Appeal Book, he said, where the index indicates that the identity of the informant was well known to all seven major investigators.
Then he seems to have connected actions of importance to the case with elephants. He mentioned Bruce Clark. He mentioned the divestiture of BC Rail. He mentioned Roberts Bank port. He referred to the receiving of documents. Then he spoke of a member of an MLA's family, brother of Christy Clark, brother-in-law of Mark Marissen, Liberal Party figure. Marissen and Clark, he said, may well be witnesses in this case.
And then Madam Justice Catherine Anne Ryan asked where this was "going". Mr. Bolton seemed to question as I think of the moment, whether at least some of the elephants in the room might be material to the case. He seemed to suggest that the complexity [to which he only hinted] was what the presiding judge had to deal with - and so, I presume, made her ruling on Defence counsel being present at the testimony of the RCMP officer.
Madam Justice Catherine Anne Ryan appeared to me to lack sympathy with what Mr. Bolton was saying. She asked why these questions were relevant. She resisted acknowledging the presence of elephants. It is as if someone said loudly and clearly: There Are No Elephants in This Room. We Are Dealing With a Crown Request to Overthrow the Ruling by Madam Justice Elizabeth Bennett That the Defence Has a Right to be Present at What the Crown Wishes to Be an Ex Parte and In Camera Hearing. There Are No Elephants in This Room. That Is All. All We Care About is the Appeal by the Special Crown Prosecutor. Can His Appeal be Upheld in Law or Must It Be Refused in Law.
And then it is if that same person said in a softer voice: The fact that a troupe of elephants is here in courtroom 60 is irrelevant. The fact that the elephants have shaped the case is irrelevant. The fact that one of the elephants has been lying on key information and won't get up is a matter for the Zoo keepers not for us. Please be reasonable. We are not the keepers of elephants. This, after all, is only the British Columbia Court of Appeal. We aren't able to do everything. Elephants do not come under our jurisdiction. Please.
The silence that followed was brief, was momentary. And then the Appeal Court returned to the real matter before it, the issue of major importance, of substance. And the next day (when I wasn't there) the three judges, Mark Hume tells us, all noted that the dilemma facing the three judges of the appeal court was such "that [appeal] court may never have faced a dilemma quite like it before". That seems to me to be absolutely true.
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