Monday, December 08, 2008


Courtroom 65, Dec. 8 in the morning

By Robin Mathews

Madam Justice Elizabeth Bennett gave her ruling concerning 29 documents for which solicitor/client privilege is claimed and will move to the question of litigation privilege this afternoon. As one journalist remarked, gathering information is difficult when nothing is revealed and we (the public) are unable to see a single document. At some point (?) documents have to be registered for trial and made available. But that day is not in sight.

In that regard we can register the fact that the judge may consult from time to time about materials and suggest they be released to the public. I do not know of a single occasion when Madam Justice Elizabeth Bennett has done so, and that is perhaps strange in what must be the most important trial in B.C. history involving criminal accusations closely connected to members of the provincial cabinet.

It might be said that the RCMP and the Special Crown Prosecutor are playing games with the case. Of over 300 documents claimed "privileged" two weeks ago, a very large proportion have been released voluntarily or are being ordered released as Madam Justice Elizabeth Bennett reads them and tests them for privilege. A simple person might well ask if the experts (?) with the Special Crown Prosecutor, the RCMP, and the Public Prosecution Service of Canada are really unable to know a "privilege" document when they see one. Or do they very well know one when they see it...?

Two questions arise under that heading. Who can intervene if it is suggested that the RCMP is purposefully obstructing process?

And ...the judge herself wondered - in matters of claims of litigation privilege - how one determines when RCMP material for investigation turns into RCMP material for litigation of a case arising out of investigation.

There is much to wonder at here - behind the droning voices naming Tabs, naming page numbers, assessing privilege or no privilege. One of those things to wonder at is the announced date of the Supreme Court of Canada appeal sought by the Special Crown Prosecutor concerning the 'secret informant' figure in the case. I believe there is real basis to criticize the category of the secret informer and to suggest it is outrageous that the officers of the court - the members of the Defence team - cannot be present at an in camera giving of testimony in which only, perhaps, the secret informer would be named. But more needs to be said on that later....

The announced date for the Supreme Court of Canada appeal is April 22. Consternation has been expressed, and questions have been asked about whether that is an "expedited" date so that the trial can proceed. To that end, I asked Janet Winteringham, representing the Crown this morning. Who I asked sets the date? The court, she replied. Can the Crown, I asked, request an expedited date?

Ms. Winteringham conveyed to me, as I understood her, that the Crown can do so. I asked her if the Crown intends to do that, and she could not give a certain answer.


A big THANK YOU to Robin for doing this report for us. - BC Mary.


"It might be said that the RCMP and the Special Crown Prosecutor are playing games with the case."

I would suggest that the use of the word "might" above could be considered an understatement. It is hard to believe this is the same Robin Matthews expressing himself in the same way as he does over at Vive le Canada. Over there his critical commenters portray him as a wild eyed radical equivalent to the spawn of an unholy same sex union of Timothy McVeigh and Karl Marx. Of course here in BC, Canned Waste and Glow Ball's perspective on the universe is considered "balanced." Unfortunately their "balanced" perspective is all that is available here - unless one is willing to seek out more accurate information through personal effort.
I don't quite understand what Winteringham is alleging with the setting of the court dates at the Supreme Court of Canada.

On the SCC website there are plenty of dates available in February 2009.

A big thank you to Robin for asking the questions that need to be asked...
Maybe some judges actually get holidays or have to review cases after the junior lawyers on staff sort out the stuff. This particular case isn't the only one on the books. April seems pretty quick to me, but what do I know.
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