Wednesday, November 19, 2008
ROBIN MATHEWS: THE BC RAIL SCANDAL
November 19, 2008. Nine lawyers and eight gallery observers stepped out of Autumn sunshine into Courtroom 46, a smaller, more comfortable room than usual, to hear the laying out of direction for the two to three weeks of continued hearing to begin on November 24 (nearly five years after the Dec. 28, 2003 search warrant raids on B.C. Legislature offices, and nearly four years after charges were laid against the accused).
Considered a circus (not to mention worse things) by some because of its interminable. unnecessary delays, the process continues to mock the "ordinary" Canadian's ideas of law, the courts, justice, and the so-called fundamental basis of the system: the Open Court. I will say a good deal more about that in a piece that will follow.
For now, one of the most interesting aspects of the morning hearing was the report that the Supreme Court of Canada may, in the next days, announce whether it will hear the proposed appeal by the Crown over an alleged mystery witness, or whether the Court will refuse to hear appeal. When it refuses, the Supreme Court of Canada gives no reasons.
We remember that the Crown (in an already overly secret process filled with delays) applied to Madam Justice Elizabeth Bennett to hold an in camera witness testimony of a witness the Crown believes privileged. Not only were members of the public to be excluded but also all Defence counsel.
Defence argued that the witness was hardly secret, being known to many RCMP officers and that the question of privilege was being stretched far enough to snap. Defence argued, too, that the witness was being shielded because he or she might mention someone else in a secret or privileged capacity, arguing that is hardly reason for total exclusion of the accused or their representatives. Other arguments were made for press and media. (Some observers chose to see the whole operation as one more grand attempt to delay proceedings.)
Madam Justice Elizabeth Bennett ruled against the Crown. The B.C. Appeals Court ruled against the Crown two to one. Special Crown Prosecutor William Berardino submitted a request to the Supreme Court of Canada to be permitted to argue the matter in that court.
Today, his usual charming and attractive self, Special Crown Prosecutor William Berardino offered reasons (outside court) why he is seeking appeal before the Supreme Court of Canada. Citing, I believe, the Named Persons Case, he stated that he could do nothing else than request leave to appeal in the light of the Supreme Court of Canada judges' ruling in the matter. In that case the judges of the Supreme Court worked carefully on the question of the secret witness, what protection could be given, what definitions applied - and as far as William Berardino is concerned - wrote a finding that applies exactly to the case he is arguing. That is why he says he could do nothing else but attempt to appeal the BC Supreme Court and Appeals Court rulings.
Referring to paragraphs 28 and 30 of that case, Berardino argued that they fix a non-descretionary ruling in cases such as the one he is arguing.
What are the chances, he was asked, of the Surpreme Court of Canada agreeing to hear the appeal? 50/50 he answered. When Michael Bolton, Defence Counsel, was asked what he thinks the Supreme Court will decide about hearing an appeal, Bolton smiled broadly and allowed he hopes the Court will decide against hearing an appeal. Berardino said (out of sharp-wittedness, perhaps) that though the Court gives no reason for refusing to hear a case, it might well decide in this case (without, of course, making any statement) that it has set down the matter clearly in paragraphs 28 and 30 and if the lower court judges can't read properly that's not the fault of the Supreme Court of Canada.
Asked if the Supreme Court of Canada judges consider the arguments of each of the four judges who were heard on the matter, he said they do, and since each of the four judges gave a different reason for his or her decision, that is evidence of an absence of solid finding on the matter.
The average Canadian observer learns very quickly that Supreme Court of Canada Rulings become a kind of almost unarguable basis of lower court judgements - almost as if judges of the lower courts give away their own minds. That is a way of saying that stupid judgements by judges of the Supreme Court of Canada become "law" in the lower courts. The argument doubtless is that unless judgements become standard, the Supreme Court of Canada would be bombarded with so many requests for appeal that it couldn't continue. It is hard to believe, however, that on such a sensitive question as the admission of witnesses as secret, permitted to give testimony in camera with Defence counsel excluded, that judges of the Supreme Court of Canada would make absolute rulings, producing situations (always a little different one from the other) in which judges must rule that Crown-offered secret witnesses are that and deserve all the privilege attached to that status.
The decision of the Supreme Court of Canada - coming shortly - is important far beyond the BC Rail Scandal case involving Messrs Basi, Virk, and Basi.
" ... what's the chance ..." you ask.
Well, I firmly believe that if the public understood the BCRail issues, they'd be battering down the doors to the premier's secretive Executive Council meetings, heating up the tar vats and plucking a few chickens.
It didn't take long for the voting public to understand the secrecy issues surrounding the $100Million loan to Vancouver's Olympic Athletes' Village. They soon figured out who to vote for.
But the truly anti-democratic aspect to the past 5 years of the BCRail Case is that the secrecy surrounding the transfer of a publicly-owned railway into private hands remains largely intact. The people have never had the courtesy of an explanation.
After almost 5 years of trying to come to terms with these facts, I am firmly convinced that the delays are no accident and that there is some sort of understanding in place by which the whole pack of them intend to sit tight, explain nothing, bluff their way out of this and into 24-carat-gold retirements.
If a Whistleblower could give the general public the facts of the BCR ail situation, they'd have no trouble figuring out who to vote for ... and who to tar and feather.
The tragedy is not simply that they are refusing to let the voting public know the details of the BCRail situation and all the Basi Virk Basi factors ... it's also that there will be a HUGE bill for a botched trial ... a bill which will be handed to the victims to pay ... and of course, that will happen AFTER the May 2009 election.
Somebody should be writing the screenplay.
As those of us who follow this know, this story is like an onion that's being pealed and it's leading in various directions.
I agree it needs to be out in the open by the election, but there is a lot at risk for many people and personal and family safety must come first for those who are in the know. Unless you've ever been there, it's really difficult to say what one would do. In this case, there are clearly many elements and players, many of which we may never even know about.
Anoymous postings on blogs and such help get some info out and trails can be followed...dots connected...
The headline is "Police board member slams hiring process" however another way of writing it could be:
Catherine Holt bolts from Victoria Police Board
"Catherine Holt, a provincial appointee who has sat on the board for four years, walked out of a lengthy closed meeting Tuesday evening, saying she could not accept the board decision to appoint a new chief before the new chairman, Victoria mayor-elect Dean Fortin, and new vice-chairwoman, Esquimalt mayor-elect Barb Desjardins, start their duties next month following their election on Nov. 15." Snipped
ON GOING SAGA...
Special thanks for speaking up. It's true that I was too busy to leave a comment this morning ... but it's even more true that I couldn't quite figure how to respond to "whistleblower".
I'm definitely not in favour (as you can see) of people sitting with folded hands, brown paper bags over their heads, offering no opinions.
Nor am I much in favour of that awful thing "FIGHT" ... when we're all in this together, and should be standing shoulder-to-shoulder facing the problems together ... problems like: what happened to BCRail?
But the comments (above) do help us think this through. Yes, I yearn for the day when the true story is told in full, whether under oath at the Basi Virk trial, or in a quid pro quo deal between Defence and Crown, or divulged by conscience-stricken public servants in high places, or published an investigative journalist who is willing to dig and drill for the truth.
I do believe it can be done. I also believe (laugh if you must) that it's always possible to find a way of saying almost anything, WITHOUT starting a fight. And yes, I do believe that a FIGHT is always less productive than a civil exchange of views.
Meantime, it's clear to me that citizens do have an important role to play.
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