Monday, January 05, 2009
The morning in Courtroom 65
By Robin Mathews
Courtroom 65 was thinly populated - six counsel and about four people in the gallery this morning. Neither William Berardino nor Michael Bolton was present.
The day was to be spent in definition, disagreement, and argument about - specifically - the meaning and range of power contained in claims that material held in the hands of the RCMP could be held from the Defence because RCMP is claimed to have "litigation privilege", meaning simply that the material is being used in a court action, or that it is going to be used in a court action or an appeal, or that it is being used in another court action or appeal "related to" the court action involving Dave Basi, Bobby Virk, and Aneal Basi. That court action, of course, is the one being conducted in Courtroom 65.
As a citizen observer, I only stayed the morning because the afternoon was going to be a continuation. After that - having early released 11 of 22 items disagreed about, and leaving about 260 to be examined over the afternoon - hearings would cease until January 19, Madam Justice Elizabeth Bennett would decide on the remaining 260, and matters would proceed with their usual lightning speed.
As a citizen observer I watched the angels being balanced on the head of a pin. I watched tedious and obvious argument strung out by Mr. Riley, counsel for the Public Prosecution Service of Canada. I thought of the recent Ontario Study and Report arising out of the abandoned ten-year case against several Toronto police officers. Madam Justice Elizabeth Bennett seemed to me to embody the Report's descriptive phrase - living in a "culture of complacency". I wanted to say: "Yes, yes, Mr. Riley, the points you have taken an hour and a half to make could have been made succinctly and summarily in ten minutes. For crying out loud get on with it." I wanted her to say that this is one of the most important public cases in B.C. history, get on with it. Instead, she seems to be doing everything possible to make it - instead - the longest public case in B.C. history.
Mr. Riley made the point that material was all being gathered by one group in one action - Everywhichway, and only after a time was it broken up into Drug action, ALR action, IPOC (proceeds of crime) action, and the fraud and breach of trust action involving Basi, Virk, and Basi. He argued that since material from that investigation relates to cases in process, none of the materials may be made available to the Defence in this case...until all related actions involving other material are finished. It is true that the wire-taps into legislature offices were originally undertaken in drug investigation and then revealed information leading to the charges against the accused in Courtroom 65.
Besides, argued Riley, the primary facts have been established. Except the Defence rose to say WHAT are the primary facts? And who says they have been established? Indeed, Madam Justice Elizabeth Bennett suggested Defence was arguing that the prosecution wasn't being questioned as to primary facts (as I understood her), but Defence was asking if the police were misleading the Crown and and if both the timing and the laying of charges were not clean and unequivocally correct. Madam Justice Elizabeth Bennett suggested that, ultimately, that would be for her to decide (in the trial, doubtless). Riley insisted that the "independence of the prosecutorial agency" is recognized in all quarters and that claims of any other condition have to exist not as allegations but by demonstration of improper acts.
Joseph Doyle, for the Defence, made the argument that Mr. Riley doesn't represent the Crown; he represents the RCMP. And the RCMP is asserting the materials be withheld from Defence. In an adversarial system (ours), the adversaries are NOT the Public Prosecution Service of Canada and the Defence, not the RCMP and the Defence, but the Special Crown Prosecutor (the Crown) and the Defence. Therefore, the materials held by the RCMP could not be "privileged" as Mr. Riley is trying to say that they are.
That 'tempest in a teapot', though tedious and perhaps completely unnecessary in a case in which matters were being efficiently and fully and speedily dealt with, nonetheless forced light upon hidden elements of the case and hidden questions that have to asked, haven't been answered, and which some (we may be led to believe) do not ever want to have answered.
Just for instance: (1) Why are the Search Warrants of December 28, 2003 still almost completely closed to the people of British Columbia when such documents are normally made public within days?
(2) If, as it is alleged, William Berardino was at one time a business colleague of the Attorney General (Geoff Plant) who appointed him as Special Crown Prosecutor, can the "independence" of the Special Crown Prosecutor in this case be certain?
(3) Why did it take almost a whole year after the earlier investigations and the "raids" on legislature offices to come up with the charges against the three accused?
(4) How was it possible, almost immediately after the "raids" on the legislature, the seizing of file cabinets full of material, hard drives from computers, and wide-ranging search warrant interviews with parties of interest - that, without being able to study that material, the RCMP reported categorically that no elected official was being investigated (or would be)?
(5) How much consultation (unrecorded) went on between RCMP officers and members of cabinet and highly placed civil servants before the Search Warrant raids on the legislature? Evidence suggests there was some.
(6) How can it be explained that four key cabinet members chose not to run in the 2005 election: Reid, Transportation; Clark, Deputy Premier and Minister of education; Plant, Attorney General; and Collins, Finance? Evidence has been brought forward by Defence that Collins was, indeed, being carefully investigated by RCMP - until all investigation of the kind apparently ceased?
(7) How can it be explained that Madam Justice Elizabeth Bennett, after declaring this a case of significant public interest, has done almost nothing whatever to see that transcripts of hearings and documents entered in the court registry have been - wherever possible - made available to the public?
(8) What possibly could be the reason that the RCMP (investigators "without fear or favour" ) have appeared to delay disclosure at every turn, and now - with the argument of Mr. Riley - are seeming to obstruct disclosure even moreso?
Indeed, the role of the RCMP, in its relation to other interests, has been a highly questionable one since the (1995) Gustafsen Lake event (stuffed with hard-to-believe RCMP activity) at which (on a training film) an RCMP sergeant declared that "we" (the RCMP) are experts in "disinformation" and "smear". A few years later, it acted in a way that created a huge, wholly unsatisfactory investigation of the so-called APEC Affair involving startling RCMP violence against protesters at UBC. That was followed by a still uninvestigated role in the destruction of wholly innocent Glen Clark, former premier of B.C. - which eventuated in the rise of Gordon Campbell to the premiership of the Province. By December of 2003, when the RCMP took primary position as investigative force in actions related to the corrupt sale by the Gordon Campbell government of BC Rail - and other activities surprised into the light - the quality, character, and integrity of RCMP operations could not but be, among some observers, a matter for speculation.
Those are questions that never are uttered in Courtroom 65, but they are as alive as any of the business that proceeds in that room. And they may be, finally, more important questions than any that are offered in the courtroom as principal questions based upon what Mr. Riley of the Public Prosecution Service of Canada calls "the primary facts" which he declares have been disclosed.
While the professionals - who claim to support the public interest - do little more than dissemble.
Your eight questions deserve answers - and they deserve to be answered NOW.
Keep up the good work...God knows the media isn't up to it.
Don't understand how this report couldn't make it to the paper.
Me too, 10:02. I can never understand why a NEWSpaper isn't publishing NEWS.
How about sending this little note of yours to the Vancouver Sun newsroom? If they never hear from their readers, they might get this crazy idea that we think it's OK not to talk about BC Rail.
After all, given your experiences you, more than any of us, know that NEWSpaper editors decide what is and what isn't.
News, I mean.