Tuesday, January 27, 2009
Robin Mathews' Morning in Courtroom 65
... the law's delay,
The insolence of office.... (Hamlet)
Icy blasts blew through the wide Vancouver Supreme Court hallways into Courtroom 65. Some of us felt as if we were in a building from the Middle Ages. We believed the feeling was probably fitting, since the procedures are not unlike those of the Inquisition: involving secrecy, unexplained delays, sudden relocation of hearing venues, layers and layers and layers of hierarchy all claiming power to stop the case in one way and another, and - of course - the general public treated as an on-going and continuing nuisance.
And - despite the chill - heavy sparks were struck, tempers flared, and disagreements were strong....
What is done today will be followed on February 16 by an attempt to deal with hundreds of Cabinet documents which George Copley (counsel for Cabinet) will attempt to shield from public scrutiny.
The irony of the situation is truly right out of the Inquisition.
The RCMP, which is supposed to be our uncontaminated investigator and gatherer of evidence, has spent years preventing the Defence (and finally the people of British Columbia) from gaining access to the way in which RCMP has conducted itself in almost all aspects of the BC Rail Scandal.
The Cabinet - our highest expression of democratic trust - has, equally, used every trick in the trade to prevent the Defence (and finally the people of British Columbia) from knowing what Cabinet members did in relation to all aspects of the BC Rail Scandal (inside the courtroom and outside of it).
In sympathy with the icy blasts, proceedings were twenty minutes late starting - eight counsel in the court and one in the gallery, to begin. (One other joined the gallery audience later.) The delay allowed me time for some cultural observations.
The male counsel are graying and balding in various stages and seemingly comfortable with their condition. The five women in the room (lawyers, clerk, judge) all - as I could measure the situation - take enormous care with their hair - all of them tinting, dyeing and otherwise 'adjusting' the state of their "crowning glory" to defy the work of time. Does that mean that we are still so sexist we don't want to see naturally aging (graying) women in public position - and will reject them if they show age? A sociological question.
The morning was occupied principally with two documents which the Defence stated it wanted to be fully disclosed. In short, the documents in questions threw up major questions - questions that, finally, go to the heart of the cabinet's role in the Scandal. (1) In the planning of the raids on the legislature, who was involved? (2) Clearly, the Speaker of the House had to be - but he appears to have been avoided in order to consult with the Solicitor General. (The Speaker of the House is obviously not a member of cabinet, and so not in on "cabinet secrets".) (3) Were the RCMP told that it was proper procedure to consult the Speaker, and did they consciously avoid doing so?
It is a significant matter, Michael Bolton, for the Defence argued, if law enforcement decides to penetrate parliament. In that case, everything must be transparent. Very clearly it is not. By accident or design, three or four pages of excerpts from an RCMP folder called "Research, Parliamentary Privilege" came into the hands of Defence. Apart from the question of how RCMP/Prosecution released those pages to Defence, apparently they throw into question what else is in the document, what instructions RCMP decided to follow, what was the assessment of the Speaker as key agent to give permission. If RCMP consulted the Solicitor General, was the substance of their consultations shared with other members of cabinet?
Defence claims that it requested as early as August 2005 RCMP materials involving the search of the legislature offices, wanting officer notes and memoranda. All were denied by the Special Crown Prosecutor, William Berardino, under a claim of solicitor/client privilege.
The materials sought, according to Michael Bolton, for the Defence, were produced during the time in December 2003 when Omnitrax was being spoken of for a "consolation" prize"; Finance minister Gary Collins was under surveillance by RCMP; wire taps might have been used instead of legislature raids; the Speaker not involved in matters he should have been involved with, etc. (one being the first access gained for wire taps). There are still many unanswered questions (and, presumably, release of the documents shielded by the Special Crown Prosecutor could facilitate the gaining of answers to vital questions.)
Taking up the issues dealt with by Michael Bolton, Kevin McCullough for the Defence sharpened questioning. He proposed that the contradictions and the avoidances involving the RCMP invited questioners to try to get behind (what I took to be) the tactics of complicity. That last word brought Janet Winteringham to her feet with objection. Allegations are not acceptable. They belong well ahead in the case, not now during argument over disclosure. McCulloujgh insisted that the items of unclear behaviour have to be seen in the context of the events of the time, the intentions of the RCMP to get information in ways which may not be acceptable, the political manipulations going on - by cabinet members.
He said, in addition, that by September of 2008, Madam Justice Elizabeth Bennett was about to rule that the two or three and a half year denial of documents was improper, and so Berardino removed all claims to privilege in order to avoid that ruling. Once again, Janet Winteringham objected. McCullough went on to say that despite that change of direction, the material in the "Research, Parliamentary Privilege" was neither released nor was it entered anywhere in the inventory of materials not released. That prompted McCullough to ask if there are more documents neither released nor listed as not released. To prove his point he read from correspondence between himself and Berardino in which Berardino declares all the material asked for in 2005 is released.
In an attempt to maintain her "uninvolved referee" position, Madam Justice Elizabeth Bennett stated that what Defence was after was whether her order of Sept. 2008 covered the materials not yet disclosed. She stated that she understood the context, but her role was not to comment on that, but simply to rule if her order covered the disputed material and/or whether that material was suitably "privileged" or otherwise protected.
At that point, the lunch break was called for, just as Joseph Doyle, for the Defence, was to open another window on questions about what kinds of privilege are being claimed and what further disclosure is required. There is more to be said between now and February 16 about all the matters concerned... and that will, doubtless, follow.
Thank you Robin for your excellent piece.
Well ... Anon 8:59 ... I didn't know that the RCMP has "at least 200 lawyers" ... !!
Somehow that really surprises me.
Do you mean that these lawyers are staff employees?