Wednesday, December 10, 2008


BC Rail Scandal at its Fifth Anniversary


The BC Rail Scandal (Basi, Virk, and Basi) At Its Fifth Anniversary. The Supreme Court of B.C. Clouds of Suspicion.

Robin Mathews
Vive le Canada - December 10, 2008

The fifth anniversary date of the Search Warrant "raids" on B.C. legislature offices draws near, and the charges that have resulted continue in pre-trial hearings that go on and on and on - to the point that many observers believe skullduggery is at work in the, apparently, endless delay.

At the same time, Ontario has produced an important Report on such overly long and complex criminal cases it calls "megatrials". Written by a former top judge, Patrick LeSage, and a University of Toronto law professor, Michael Code, the Report, of course, is tailored to the precise state of Ontario's courts. But it addresses problems that any close observer of the Basi, Virk, and Basi pre-trial hearings recognizes in an instant.

In defence of choking courts, one must admit that the legal system has a tougher time getting trials through than in earlier years. Court cases have been driven into more complex form since the 1970s for real reasons: Charter of Rights and Freedoms challenges, increased criminal legislation, and new (and in some ways more uncertain) views of evidence and privilege.

But even so, the writers of the Ontario Report are not at all happy with what they call the "complacent culture" that has taken over the court system. In their long and serious Report - by the way - they never refer to the public, its right to know, and the increasingly private, secret, and shuttered activities Supreme Court criminal cases have become. That situation awaits another report.

The Basi, Virk, and Basi hearings have been plagued by failure, delay, and "confusion" in disclosure to the Defence. The Ontario Report focuses on the general problem - late disclosure of evidence to the Defence by police and Crowns - asking, in short, for change, now. It asks for what some of us have been calling for repeatedly in the local case: strict deadlines and "judicial intervention". They are saying that judges have a role to fill - and that they are not filling it. That has been clearly the case, I believe, in the Basi, Virk, and Basi case. Making an observation that is hardly shocking, the Ontario Report says that the "modern culture of delay causes great harm to public confidence in the justice system...."

Not only is "justice delayed justice denied", but justice delayed opens huge suspicions that various actors in the drama are simply dishonest, and are serving quite other ends than justice. That, unfortunately, is the case in the Basi, Virk, and Basi matter. Because the accused men were aides to cabinet ministers who, normally, gave them direction; because they have been arraigned at a period when the RCMP is under more suspicion of incompetence and corruption than perhaps ever before in its history; and because the "sale" of BC Rail was a promise broken to the B.C. public and effected in secret and under highly sleazy circumstances the court had to focus sharply.

It had to focus sharply because every British Columbian is - really - a participant in the case. Every British Columbian has been robbed of BC Rail and every British Columbian has suffered from alleged criminal actions involved in that sale - whether committed by the openly accused or by others being shielded from exposure.

The court - especially in this case - had to make all information possible available to the public. It has not done that. It has actively, I say, resisted doing anything like that. It should have insisted upon deadlined submission of all disclosure materials. It has not done that. Rather, it has been sunk in a culture of complacency as if this very probably most important case concerning government officials and breach of the public trust in B.C. history is "just another criminal case".

In general the Ontario Report asks for judges to exert their Common Law powers and to be the guarantors of the effective and timely movement of cases. Indeed, it reports that all "major studies have recommended much stronger judicial case management". Critics of the B.C. Supreme Court, in the conduct of the Basi, Virk, and Basi charges, have powerful backing from experts in Ontario.

British Columbians should take note of that. The courts in the nation are in bad shape. The RCMP as investigator and the framer of criminal charges is in bad shape. David Brown, who completed the most recent Report on the RCMP (June 2007), noted that the "picture of the RCMP and its culture that has emerged is one of mistrust and cynicism". And he called the RCMP "a horribly broken culture".

Suspicions surrounding the process of fixing upon the three accused in the Basi, Virk, and Basi case - by all police, judicial and legal actors - do not go away.

In addition, the B.C. method of appointing Special Crown Prosecutors may be proving unsuccessful. Begun to assure top ranking, objective prosecution in major cases involving public figures, the system risks creating a friendship group available to government to bail it out in times of trouble.

Most recently, the argument to keep a large number of documents in its possession "privileged" (secret) by the RCMP - fronted by Mr. Riley of the Public Prosecution Service of Canada - has seemed to me to be wholly unnecessary, a bureaucratic overload, a matter that should have been conducted much more speedily by the Special Crown Prosecutor.

The intervention by Mr. Riley may have massaged the ego of the PPSC and satisfied its desire to "declare turf", but I cannot see that it had any place in the efficient conduct of the case. Moreover, it echoed earlier claims of "privilege". Top legal experts have seemed unable to identify material for privilege - Madam Justice Elizabeth Bennett (in this instance) discounting over and over claims made by the RCMP and defended by Mr. Riley. Earlier, hundreds of pages of material claimed as "privileged" and held by the Special Crown Prosecutor were released to reveal very, very little that had the quality to invoke claims of "privilege".

This is not a criminal case involving the robbery of a gas station, or even (as in Ontario) a megacase of ten years involving police officers accused of engaging in drug activities - and then all action against them stayed because of delay and various kinds of incompetence.

This is a case that directly involves the lives of the people of British Columbia. Their possession - BC Rail - has been shadily (and, perhaps, stupidly and criminally) handed away. Personnel of their provincial government employed by cabinet have been accused of fraud and breach of trust in that matter. And - as regrettable as it must be to say so - huge suspicion of wrong-doing clings to the premier, Gordon Campbell, and to other members of his cabinet. This is a case being pursued at a time when the investigating body and the one which has been involved with the laying of charges is an RCMP with a hugely damaged reputation.

This case has required and requires scrupulous, timely, openly public, and effective treatment. As the fifth anniversary of the Search Warrant "raids" on B.C. legislature offices draws nigh, there are few in British Columbia, I believe, who would say the treatment of the case has come anywhere near the requirements.

Thank you, Robin. - BC Mary


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