The Legislature Raids

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Cracks Widen in the Supreme Court of B.C. The BC Rail Scandal.

On February 25, 2009, Madam Justice Elizabeth Bennett of the B.C. Supreme Court released fifteen binders of information "relevant" to the fraud and breach of trust charges against former B.C. cabinet aides and secured by the Defence through Freedom of Information application. She refused to release two binders of material, originally included with the fifteen others, involving actors and actions in BC Rail.

The implications of her decisions, I suggest, are large. But first ....

Begin at the beginning. More than five years have passed since the smouldering BC Rail Scandal erupted dramatically with police (search warrant) raids on B.C. legislature offices, and on Victoria and Vancouver homes and offices, resulting in the "capture" of boxes of files, hard drives, and more.

They followed a series of wire-tappings of legislature and other telephones which ultimately brought various court actions involving allegations of misconduct in Agricultural Land Reserves management, drug operations, incorrect police officer advice to a relation, and the fraud and breach of trust allegations against the three accused cabinet aides.

The raids were accompanied by loud police utterances about "organized crime" filtering through every nook and cranny of Canadian life. (A raid on the sanctity of parliament would suggest the filtering had stretched very far indeed.)

The search warrants themselves (becoming, normally, public record after searches are completed) are still, enigmatically, (in fact) sealed. They have been legalistically "released" - the texts so blacked out, however, (except for those concerning the three men later charged) as to be nearly useless.

That situation is, it seems, characteristic of too much procedure in the five years. Legalistically "correct" action has often, to this observer, disguised obstruction, delay, and hanky-pank intended to prevent fundamentally necessary information from reaching the court and the people of British Columbia.

The reason appears on the surface to be connected to the fact that the BC Rail Scandal begins in the cabinet of Gordon Campbell, premier of B.C.

(A) He declared B.C. Rail would not be sold, and then, gaining power, set immediately to work to sell it.

(B) The sale was rife with allegations of wrong-doing. CPR withdrew from the competition, publicly declaring the bidding process tainted. NDP representative Joy MacPhail reported [in Hansard] that CIBC World Markets (acting for the B.C. government), in September 2003, said, in effect, that "Of course CN would be the best company to buy B.C. Rail." And in October of that year, "there's a leak of commercial data to CN while the bidding is going on", the data never distributed to other bidders.

That was three months before the search warrant raids on B.C. legislature offices and before completion of the "sale". The "smouldering" broke into fire with the "raids" on the legislature. Cries rose for a public inquiry into the sale. It never happened.

(C) Only weeks before the legislature raids, at least one cabinet minister was being investigated by RCMP.

(D) Almost at the same time as the raids, however, RCMP announced that no elected official is being investigated (or will be) concerning the totality of the BC Rail Scandal. A full year later - charges were finally laid against the accused - containing allegations concerning bribery in relation to fake bidding. But not before the sale of a rail spur-line to Roberts Bank was stopped because the RCMP reported contamination in the process.

No suggestion has ever been made (since the legislature raids) that a member or members of cabinet have had any part in or any relation to the alleged crimes involved in the BC Rail "sale".

To this observer, bad law, unacceptable prohibitions upon the public-right-to-know, new legal territory (implications of Charter Rights and Freedoms), and a growing totalitarian belief that law-makers are exempt from normal criminal investigation have helped to hobble movement in the case.

In addition, to put the whole matter briefly in order to move on, after months and months of sitting in the courtroom and hearing argument - as well as researching - my opinion is clear.

(1) Prosecution, I believe, has not pursued the matter effectively.

(2) Nor has the RCMP responded to disclosure requests with anything like competence.

(3) Cabinet, BC Rail, Liberal MLAs have not, I believe, assisted the course of the pre-trial hearings.

(4) The judiciary, I believe, has consistently erred on the side of "legalisms", of permitting intricate obstacles - rather than insisting upon following a clear path towards trial. And it has done almost nothing - in this most important action involving deep public interest - to assure the public's right to know. All of the people and institutions mentioned, I think, can be faulted for - in fact - contributing to delay and obfuscation.

My assessment of Defence counsel is that it has persistently tried to open the larger implications of guilt and involvement. That may be the case simply as a Defence strategy to "protect" its clients. But it also seems to have been part of an argument that the accused could not have acted (in some cases) as they did without direction or authorization from seniors.

Nevertheless, Defence has provided the only insight into the possible larger implications of the BC Rail Scandal available to the public through the court hearings. All other forces involved have seemed to refuse to entertain any consideration that more than the three accused should be considered for investigation. (Or they have presented faces apparently blankly unaware of such a possibility.)

That assessment suggests the "normal" forces which assure order, the rule of law, and civil tranquility in B.C. society are not properly operative. It suggests there may be real cracks in the Supreme Court of B.C. and in policing, and the whole "legal structure" of the Province may be in breakdown.

If there are people who should have been investigated and charged, and if those people are "powerful" or in government - then the Basi, Virk, and Basi "trials" demonstrate that the legal system of British Columbia is collapsing.

The story of the seventeen binders (containing 8000 pages of material) released to the Defence through Freedom of Information points to what might be the breakdown of fair procedure in the Province.

According to Leonard Krog, NDP justice critic, speaking on the 25th of February to reporters, B.C.'s Freedom of Information procedure is (with Ontario's) the worst in Canada. I have written already that it is constructed as an Orwellian double-speak ruse called "Freedom of Information" intended to prevent the public from getting the simplest information about activities resulting from Gordon Campbell policy.

Defence sought, Michael Bolton reported, to have the Special Crown Prosecutor ask government agencies and departments to surrender information relevant to the Basi, Virk, and Basi case. Mr. Berardino did not do so, but passed the request on to counsel for the cabinet, Mr. George Copley. He, in turn, decided he was not the person to ask for information, and he advised Defence to use the Freedom of Information (FOI) route.

Here, I believe, was room for judicial initiative. Madam Justice Elizabeth Bennett, I believe, might properly have instructed the Special Crown Prosecutor to ask for information. (She cannot be ignorant of the dubious nature of FOI.) But she has rarely, as I judge from observation, taken initiative in order to speed up procedure.

In the strange fashion of Freedom of Information, a "nominee" was named to track all the documents relevant to the Basi, Virk, and Basi matter, to have them studied (and released or partly or wholly denied) and delivered to the Defence.

As a protocol for a procedure was agreed upon, BC Rail was invited in, probably to make the sweep of search thorough. BC Rail agreed to be part of the protocol, and thus two binders were gathered of BC Rail documents relevant to the Basi, Virk, and Basi action. Needless to say, because of the centrality of BC Rail to the BC Rail Scandal, those two binders are very likely highly sensitive.

Someone observing that labyrinthine processes had a brilliant insight. The materials gathered were not secured by the Crown (through the Special Crown Prosecutor). Indeed, Madam Justice Elizabeth Bennett stated in court she believed the FOI route was the correct one - dismissing Michael Bolton's allegation that the Special Crown Prosecutor had abdicated his responsibility. (Could she have said that to cover up for the fact she hadn't ordered the Special Crown Prosecutor to accept responsibility, and to get the materials?)

Whatever the case, the seventeen binders of material came into possession of Defence counsel by a means WHICH ANY CANADIAN COULD HAVE USED. As a result, the "brilliant insight" was that the Official Opposition could ask to have ALL the material because it was material anyone could ask for and get.

One might believe that the Special Crown Prosecutor and the presiding judge were trapped in their own clever interpretation of the proper route to use to gain the materials.

They, therefore, couldn't stop its release to the Official Opposition and to all other Canadians who wanted to examine it. (Well -- that is -- they couldn't stop the release of ALL of it But.)

But BC Rail is not a government department in the normal sense. It is a Crown Corporation and so not subject to Freedom of Information rules. Using that as a basis for resistance, counsel for BC Rail, Mr. Dean, argued that - while he had okayed BC Rail being included in the FOI protocol, and while the two binders of BC Rail material were gathered under that head and placed in the hands of the Defence - nothing BC Rail agreed to said or suggested the materials could be handed on to the Official Opposition and the public.

Many will believe that support given to his position by Madam Justice Elizabeth Bennett was proper. It may have been. It may not have been. She declared that any of the material which is used, later, in the trial will, of course, come into public record. And she declared that BC Rail could release all of the material if it chose to do so; but she stuck to the legalism that BC Rail could refuse to release what is probably the most sensitive material in the seventeen binders.

And so the victory on February 25 was a somewhat muted victory.

If my observation of her is correct, Madam Justice Elizabeth Bennett did not like the application by lawyer Michael Mulligan, for the NDP, to get release of the binders. By my observation her body language was impatient, her tongue sharp. Something had happened over which she did not have control - and upon which she had to rule in favour of the public's right to know.

Instead of embracing the opportunity with good humour, she registered it - to me - with something less. It was almost as if the tight circle of control was broken - and she didn't like it. I may be interpreting incorrectly. I hope I am.

At that point I would say Madam Justice Elizabeth Bennett reached visibly (to my eyes) to demonstrate control, asserting strongly that the BC Rail documents were not available to the public. That made me ask myself if on all the other occasions when she hadn't reached strongly for control - to prevent delay, to prevent what I saw as obstruction, to hasten the movement of the procedure, to speed up delivery of disclosure materials - she was, indeed, exerting control, by not acting. I hope I am wrong.

The events in courtroom 67 on February 25, 2009, however, brought to mind all the forces that have seemed (to me) to be obstructing the pursuit of justice in the Basi, Virk, and Basi case. And - as I have witnessed the matter over many months - those forces have been, as I see it, the very ones British Columbians depend upon to assure the rule of law and the fair conduct of society: the government in power, the RCMP, some bastions formed by many in the legal profession, some members of the judiciary, and - mentioned for the first time here - the press and media which have, I believe, mostly, sadly failed the B.C. public in the matter of providing full accounts of individual events and full explanations of all the forces involved in what is called "the Basi, Virk, and Basi matter".

If my suspicions are correct, we are living at a time when the legal security of Canadians is in visible collapse and legal breakdown threatens -- or is underway.

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IS MEXICO DISINTEGRATING?
The Globe and Mail - Februry 27, 2009


Excerpt:

... The crisis is nothing less than an effort by the major drug cartels to tame and suborn the Mexican state, and not just in the strip along the U.S. border, although the epicentre is there. Obviously, the cartels' leaders do not have designs on Mexico's presidential palace. But through a policy of terror extending from Oaxaca in the south, through Acapulco on the Pacific coast, and up to the great border cities of Tijuana and Juarez, they have made it abundantly clear that they are trying to achieve impunity.

Read the complete article here.
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"Gangs" is shorthand for drugs trafficking. The Drug Trade is shorthand for organized crime. Cartels?


The prime minister comes to Vancouver to talk about gangs.

BC's attorney general goes to Ottawa to talk about gangs.

Photo ops aplenty.

But the trial of Jasmohan Singh Bains took place in June 2008 ... without any mention of it in the news media until it was reported here, by BC Mary, 6 months later. It was two more months before Ian Mulgrew picked up on this event and wrote a column about it ("Drug dealer linked to legislature raid imprisoned", Feb. 17, 2009, Vancouver Sun). Why the silence? Why 8 months of complete silence before reporting the trial and 9-year-sentence of an alleged Mr Big, who was connected to the Basi Virk BC Rail Case?

After Ian "officially" broke the story, everything went quiet in Big Media again.

Reports from Supreme Court on the Basi Virk BC Rail trial remain painfully scarce, especially when compared to the way a Coquitlam pig farm was reported. Or the coverage given to a home-made deck.

What's going on? Well, I don't know. But like most other British Columbians, I can't help speculating. I think there's one heck of a lot going on in B.C., and it scares me.

Today, my guesswork is somewhat validated by the report on what's happening in Mexico. I can't help thinking that sometimes silence can send a message even louder than gunfire. - BC Mary.

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See also:

MEXICO PRESIDENT HOPES TO END DRUG-RELATED VIOLENCE
THE WORLD - February 27, 2009

Mexico City: Mexico's president says he hopes to quell his country's rampant drug violence by the end of his term in 2012, and disputes US fears that his government is losing control of its territory.

President Felipe Calderon and his top prosecutor said on Thursday the violence that killed 6,290 people last year - and more than 1,000 in the first eight weeks of 2009 - is a sign that the cartels are under pressure from military and police operations nationwide, as well as turf wars among themselves.
"To say that Mexico is a failed state is absolutely false," Calderon said. "I have not lost any part - any single part - of Mexican territory."

Calderon, a Harvard-educated conservative, said smuggling cannot be eliminated as long as Americans continue to use drugs, but hopes he can beat back the cartels by 2012 to a point that the army and federal police can withdraw and leave the problem in the hands of local law enforcement. He declined to give a specific timeline for winning the war against drug gangs ...


[That sure makes me feel better. You? - BC Mary.]

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And this story:

WITH DEADLY PERSISTENCE, MEXICAN DRUG CARTELS GET THEIR WAY
Marc Lacey
New York Times - February 28, 2009

CIUDAD JUAREZ, Mexico–Mayor Jose Reyes Ferriz is supposed to be the one to hire and fire the police chief in this border city that is at the centre of Mexico's drug war.

But it was drug traffickers who decided that Chief Roberto Orduna Cruz, a retired army major who had been on the job since May, should go. To make clear their insistence, they vowed to kill a police officer every 48 hours until he resigned.

They first killed Orduna's deputy who was operations director, Sacramento Perez Serrano, together with three of his men. Then another police officer and a prison guard turned up dead. As the body count grew, Orduna eventually did as the traffickers had demanded, resigning his post on Feb. 20 and fleeing the city.

Replacing Orduna will also fall outside the mayor's purview, although this time the criminals will not have a say. With Ciudad Juarez and the surrounding state of Chihuahua under siege by heavily armed drug lords, the federal government last week ordered the deployment of 5,000 soldiers to take over the Juarez Police Department. With the embattled mayor's full support, the country's defense secretary will pick the next chief.

Chihuahua, which already has about 2,500 soldiers and federal police on patrol, had almost half the 6,000 drug-related killings in all of Mexico in 2008 and is on pace for an even bloodier 2009. Juarez's strategic location at the busy El Paso border crossing and its large population of local drug users have prompted a fierce battle among rival cartels for control of the city.

Gunmen recently shot at one of three cars in Gov. Jose Reyes Baeza's motorcade, killing a bodyguard and wounding two agents. The drug cartels routinely collect taxes from business owners, shooting those who refuse to pay up. As for the Juarez mayor, who has made cleaning up the notoriously corrupt police department his focal point, the cartel recently threatened to decapitate him and his family unless he backed off.

In an interview in his wood-paneled office overlooking the United States, Reyes, 46, whose father was mayor in the early 1980s, said he was not going to allow criminals to run the city, despite the inroads they are making.

"I'm not going to give in," he vowed in an interview, welcoming the arrival of soldiers so that the traffickers will feel the heat even more.


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BASI-VIRK - NDP wins access to 8000 pages of documents related to BC Rail privatization in Supreme Court of BC decision today

Feb 25, 2009.

The New Democratic Party opposition won a big legal victory in BC Supreme Court today when Justice Elizabeth Bennett ruled that they - and the public - could have access to 8,000 pages of government documents related to the privatization of BC Rail.

{Snip} ...


NDP MLA Leonard Krog said ... the BC government could release far more documents if it chose to, including two more binders of BC Rail company information that Bennett today declined to release to the NDP.

"The body that is holding back documents is the government of British Columbia," he said. "BC Rail can release those documents if they wish. The fact that this case has gone on so long is entirely the fault of the provincial government."

Krog said the Gordon Campbell government was using "entirely political" moves to keep the facts from the public.


Read Bill's entire column here.
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And try this brief Canwest report for an intriguing point of view which concludes:


The trial ... continues in the midst of allegations the government has been trying to prolong it and prevent some evidence from being heard.

So far, said Krog, there has been no adequate explanation for how the BC Rail deal led to criminal charges.

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Repeat: March 9 is the date for the next Basi Virk session for arguments over parliamentary privilege and disclosure of documents.


The court adjourned until the next pre-trial session, scheduled to begin March 9 with arguments over parliamentary privilege issues and disclosure of documents.

Lawyer Frank Falzone will be representing the Speaker of the BC Legislature, the Clerk and the Conflict of Interest Commissioner.

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Very interesting comment from a Bill Tieleman thread:

NRF said:

Questions:

Was the root purpose of the BCR sale to separate and privatize its Howe Sound land bank? BCR held vast prime developable land in the West Van-Squamish corridor. Who owns or holds options now? Liberal insiders perhaps?

Is Campbell punishing the RCMP with the Braidwood Inquiry? Reputation of the police force is being damaged badly by the very public hearings - live streaming and pdf transcripts available to all.

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NRF: As I understand it, there's a clause in the still-secret agreements on the sale of BCRail's operating rights ... the so-called Five Year Clause -- which the Campbell government agreed to. I'm told that it says that after 5 years, certain BC Rail lands may be transferred into CN ownership for $1.

I can't verify that. All I know for sure is that July 12, 2009 is the 5-year anniversary. Let's hope that the BCR Agreements are included in the 15 folders now in the hands of the Opposition. Or that somebody succeeds in prying the other two folders out of the clutches of the highly-paid BC Rail executives who are now is fighting to keep them sealed. See Times Colonist story 23 July 2008 "Tiny BC Rail offers big bucks to bosses".

It's all beginning to make a weird kind of sense. - BC Mary.

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Provincial NDP obtain files related to sale of BC Rail
The Globe and Mail - Feb 25, 2009
MARK HUME

Vancouver — The NDP Opposition has won access in the Supreme Court of British Columbia to 8,000 pages of confidential government files related to the controversial $1-billion sale of BC Rail.

In a ruling handed down Wednesday, Madam Justice Elizabeth Bennett granted a motion filed by NDP justice critic Leonard Krog, who sought access to material recently obtained by defence lawyers in a slowly unfolding political corruption case.

{ Snip} ...

The case has been bogged down at the pretrial stage for years while lawyers fight over a number of complex legal issues, mostly related to the disclosure of masses of police and government documents.

Mr. Krog said the latest release deals with files that defence lawyers obtained by filing freedom of information requests. He said he could have done the same thing, but that might have taken a year or more, so he appealed to the court to expedite matters in time for the election.

“Hopefully [this disclosure] will give information to the public that they should be entitled to know before this government [stands] for a third mandate,” he said.

Mr. Krog was critical of the government, saying the administration stalled the release of documents in court.

He said the sale of BC Rail was the wrong deal at the wrong time, because it came just as energy prices were rising and development was beginning in the north, making the rail line increasingly valuable.

Just when the provincially owned railway was poised to start making a profit, he said, it was privatized under questionable circumstances.

“It was just an outrageous giveaway,” he said.

Mr. Krog says he doesn't know what he will find in the mass of documents, which Judge Bennett said will take staff about six hours to copy.

But a defence lawyer who has already seen the file said it contains communications concerning lobbyists, material about leaks of information around the BC Rail sale – and several binders that come directly from Mr. Campbell's office.

The NDP application was made by Victoria lawyer Michael Mulligan.

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About those leaks of information ... has anybody been drilling down for information on the topic of Bid-rigging?? - BC Mary.

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Ten lawyers attended and ten in the gallery - four of the latter were from the Globe and Mail, CanWest, Canadian Press, and WestStar - arrived for the big news today. Mr. Krog, NDP Justice critic and activator of the request for the release of FOI materials was present. The morning will be widely reported....(And Mr. Krog's comments.)

Fifteen of the seventeen binders of information gained by Freedom of Information Application on behalf of Defence were released by Madam Justice Elizabeth Bennett to the parliamentary Opposition (and all others).

Two binders, containing materials from BC Rail were fought over and were ruled by the judge to be available (already in its possession) to the Defence, but to no one else - unless some of the material becomes exhibit (evidence) used in the forthcoming (?) trial.

I earlier remarked that the BC Rail material - already released to the Defence as a part of the FOI protocol - would have to be released generally today unless there is "unsavoury" material in it which the Campbell cabinet wants suppressed.

The suppression happened. Was it because of "unsavoury" material contained in the BC Rail materials? Stay tuned....

Next hearing date for the Basi, Virk, and Basi matter is March 9.

Much more needs to be written about the momentous (?) events of the morning. I will return to the subject in the next day or so.


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So ... March 9, 2009 is the next BC Rail session ... 12 more days. But then, who's counting? Many thanks to Robin Mathews for soldiering on, watching, and reporting back to us.

- BC Mary.

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Excerpt:

... The order came Wednesday after an application by provincial NDP justice critic Leonard Krog, who contends the Liberal government has dragged its feet on disclosing information for the five-year-old case because it botched the $1-billion sale of BC Rail assets to CN Rail in 2003.

"We are getting 15 binders of documents that will hopefully cast some light on what was essentially the giveaway of a Crown asset in circumstances that led to criminal charges and one of the longest-running cases in B.C. criminal court history," Krog said after Bennett's ruling.

Click here for a longer, more detailed report by The Canadian Press.

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The Canadian Press in a first report dated Wed., Feb. 25, 2009, warns however that Madam Justice Bennett has stipulated that the documents must remain in Vancouver Court House.


Quote:

NDP justice critic Leonard Krog said he hopes material in the 15 binders will shed some light on the government's handling of the BC Rail privatization before the May 12 provincial election.

Krog said government delays in disclosing documents has dragged the case out for five years since police raided legislature cabinet offices looking for evidence in the corruption case.

Copies of the documents will be kept in the Vancouver Law Courts registry but Krog said the New Democrats now will call on the government to publish them.

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DEBATES - B.C. LEGISLATURE - FEB-24-2009 - Blues

DISCLOSURE OF DOCUMENTS IN BC RAIL COURT CASE

L. Krog (Opposition critic for Attorney General): Tomorrow Madam Justice Bennett of the B.C. Supreme Court will hear an application by the official opposition to be given access to binders of material related to the B.C. Rail scandal. The Attorney General has repeatedly said he is committed to openness and accountability. Does he or does he not support the public's right to know the truth about the B.C. Rail corruption trial? [DRAFT TRANSCRIPT ONLY]

Hon. W. Oppal (BC Attorney General): I think that Madam Justice Bennett can make her decision without the assistance of anyone in this chamber.

L. Krog: What would be of assistance to Madam Justice Bennett would be if the government would cooperate by releasing all of the information that the public of British Columbia has a right to know.

I would remind the Attorney General that his government goes before the public of British Columbia on May 12 for the ultimate vote of confidence, the ultimate truth-finding expedition, and I would encourage him strongly to encourage the government's lawyers to hand over the documents so that the people of British Columbia know what is the truth behind the B.C. Rail corruption trial.

It's been over five long years since this Legislature was raided. The people have a right to know. Again, I'm asking the Attorney General: does he support the right of the people to know or doesn't he?

Hon. W. Oppal: It's apparent to me that when that member went to law school, he apparently missed the lecture that dealt with the doctrine of separation of powers. That is that during the course of any trial, it is totally improper for legislators to comment on what's going on in a courtroom.

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Talk on gangs, but little action

Editorial
Times Colonist - Feb. 22, 2009


Is Premier Gordon Campbell serious about fighting gang violence and reforming the justice system? He certainly says he is. But in Tuesday's provincial budget, court and prosecution services were cut by $10 million over the next three years. There will also be staff reductions amounting to 100 positions in these areas. That appears to contradict Campbell's promise that more prosecutors would be hired.

{Snip} ...

... why hasn't Oppal established a war-room in Vancouver and taken control? Is there something more important on his agenda?

Then there is the disarray of our court system. Two years ago the chief justice of the B.C. Supreme Court co-authored a scathing report. He noted the volume of civil cases in Vancouver's Supreme Court has declined by half, while the length of trials doubled. He pointed to the huge costs associated with even minor suits and worried that litigation has become a practical option only for the rich. And he laid out a massive program of reform.

Instead of enacting that program, the government allowed it to fall by the wayside.

In fairness, many of these problems predate the current administration. And there is no group more capable of resisting change -- or apparently more willing to prove it -- than the courts.

If judges and lawyers are set on maintaining the status quo, they have formidable weapons at their disposal. They enjoy great latitude in their conduct of affairs.

But that freedom is not unlimited. When all else fails -- and the court system has failed -- the government is empowered to intervene.

{Snip} ...

We need an attorney general who understands we're in a war and means to win it. We need a minister of finance who will support that campaign, not short-change it.

And we need leadership from the premier. This is Campbell's government. Vancouver is his home.

There is no time left for half measures. This scandalous outbreak of lawlessness and bloodshed must be halted in its tracks.


Read the full Times Colonist editorial here.

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"The mills of the gods grind slow. But those of the courts don't grind at all."

Beginning early, eight or nine lawyers assembled close to nine-thirty a.m.. A little later three people were in the gallery, none of them press and media. Regulars.

Madam Justice Elizabeth Bennett read a decision about disclosure of memoranda, releasing some requested material to Defence.

Then. Mr. Copley (counsel for cabinet) dropped off a box of documents and returned quickly to the court (elsewhere) where he was appearing. Apparently, he had also sent, by mail, documents that could not reach Defence counsel Kevin McCullough by the week-end.

"Thrift! Thrift!" (as Hamlet says about his mother's hasty re-marriage). The poor Gordon Campbell government is on the hook for another huge package (tens of millions of $$$) to pay for Olympic Security. That makes clear why cabinet is cutting $9 million from the more trivial operations of the higher courts. (Thrift!) And in the face of such drastic austerity, Mr. Copley could hardly send, by courrier, documents to Defence so they could be reviewed before Monday's hearing. Thrift! Thrift!

There was more. But suffice it to say that the sudden need to exchange and supply documents in large quantities among Defence, Crown, BC Rail, and Gordon Campbell cabinet created a situation in which necessary review was impossible - even though a try was made at the suggestion of Defence lawyer Keven McCullough by a one hour court recess.

It wasn't enough time. Court had to break. Some faces showed traces of impatience - even perhaps the usually impassive face of the presiding judge. And so the day's hearing leaked out onto Hornby Street like snow melting in a hot, Spring sun. Tuesday's hearing has been cancelled.

The court will assemble on Wednesday at ten a.m. to hear the application by the Official Opposition in the B.C. parliament to be given access to the seventeen binders of materials gained by the Defence through Freedom of Information application, material related to the BC Rail Scandal and, especially, to the Basi, Virk, and Basi matter before Madam Justice Elizabeth Bennett.

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Monday, February 23 at 9:30 AM
(Confirmed in today's Court listing)

Tuesday: No, it's cancelled.

Wednesday, Feb. 25 ... Yes, at 10:00 AM


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One of the reasons for today's pre-trial hearing is explained in the Court listings as: "including application for records in the possession of the province of British Columbia" ... very interesting. Will Gordo step forward and say "Sure, you bet, I'll see what I can do to help!" Will Stonewally? - BC Mary.

Later, after reading Robin's report, I gotta say: I was kidding. Honest. I was only kidding! Imagine sending the docs by snail mail ... !!

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Noted in passing ...

It's Sunday. In an idle moment, I typed "Dave Basi" into the Google search box. Couldn't help but smile, remembering the countless times the premier and attorney-general of this troubled province have said they couldn't say a thing about Dave Basi's issues because it's "before the courts".


So what did I find? In less than 1 second, Google produced 53,100,000 items online relating to Dave Basi. My favourite so far is:

Basi-Virk TRIAL DATE EXPECTED TO BE SET NEXT WEEK
and, as we can see, the dateline on Jeff Rud's story is Dec. 31, 2005. My blog [The Legislature Raids] was established 5 months later, because we actually did expect the Basi-Virk trial to begin on June 6, 2006 ... but people had begun to detect the uncanny quiet which was already settling over the mainstream media.

Even when Big Media spoke, it often included a warm, "Poor Dave" slant. There was the Gary Mason story in The Globe and Mail (Dec. 2006) headlined THERE'S NOTHING TO THESE CHARGES. But here's another example, published closer to that anticipated trial date ...


Despite the fact that the story by Culbert and Cernatig in Vancouver Sun draws a direct, court-documented link between Dave Basi while Ministerial Aide to the BC Minister of Finance ... and his cousin, Jasmohan Bains, known to police as Mr Big on the West Coast ... it manages to blend the two points of view. It may be high crimes but it's also "Poor, poor Dave."

An Excerpt:

More than a year after the drug investigation, Project Everywhichway, was launched, Basi was among eight people charged on Sept. 15, 2004 with drug-trafficking offences.

He was personally charged with production of marijuana and possession of marijuana for the purpose of trafficking, between March and December 2003.

It was alleged Basi conspired with Jasmohan Singh Bains and Mandeep Singh Sandhu to launder proceeds of crime exceeding $5,000 between Dec. 9, 2000 and Dec. 11, 2003.

Sandhu at the time was on the executive of the Esquimalt-Juan de Fuca federal Liberal riding association because he had been hand-picked by Basi for the position. He is a cousin of Victoria police Const. Ravinder Dosanjh, who was suspended with pay Dec. 15, 2003 in connection with the investigation.

{Snip} ...

Court documents allege Virk and Dave Basi "recklessly put at risk the bidding process. . . for BC Rail in disclosing to interested third-parties confidential government documents and confidential government information including cabinet confidences."

I wonder if that final statement could be an accurate description of "bid-rigging" ... anyone know?


Here's another item that says a lot more about the Crown (that would be the BC government apparatus allegedly protecting the public interest) than it does about Dave Basi:

SUPREME COURT OF CANADA - Judgments in Leave Application
Ottawa 2008-11-27.
The Supreme Court of Canada has today rendered judgment in the following application for leave to appeal:


GRANTED / ACCORDÉES

Her Majesty the Queen v. Bobby Singh Virk et al. (B.C.) (Criminal) (By Leave) (32719)
(The motions to expedite the application for leave to appeal and to seal the responses by the respondents Udhe Singh (Dave) Basi and Bobby Singh Virk are granted. The application for leave to appeal and the applications for leave to cross-appeal are granted. / Les requêtes visant à accélérer la procédure de demande d’autorisation d’appel et pour sceller les réponses des intimés Udhe Singh (Dave) Basi et Bobby Singh Virk sont accordées. La demande d’autorisation d’appel et les demandes d’autorisation d’appel incident sont accordées.)
Coram: McLachlin / Fish / Rothstein

The Supreme Court of Canada then provides a telephone number (613) 995-4330 and a place to leave comments online: comments@scc.csc.gc.ca And they seem so friendly! Look:

WHO WE ARE, WHAT WE DO

Think of us as 911 Supreme Court: we specialize in assisting lawyers taking cases to the Supreme Court of Canada:
Leaves To Appeal
Applications to Intervene
Drafting/Revising Factums
All Interlocutory Applications
Stays of Procedure and Execution
Constitutional Questions
Technical Compliance with Supreme Court Rules
Overall Strategic Advice
Write/ghostwrite leave to appeal and appeal factums for lawyer-clients: Marie-France has a Masters from Oxford and a Doctorate from Berkeley, Jeff a Masters from York, and I've a Masters and Doctorate from McGill.
We're happy to put pen to paper/fingers on the keyboard for you: we will research, strategize & write the factum, with you seeing and approving each draft. WE'RE LAWYERS TOO.


COURT OF APPEAL WEBSITES

Below is a list of available C.A. web sites. For your quick access, all are hyperlinked. Dedicated web sites for some jurisdictions are not yet up (when they are we'll add them on), but in the meantime, many Court of Appeal decisions from these jurisdictions are available at the more generalized "canlii" sites noted (& hyperlinked) below:

Alberta: www.albertacourts.ab.ca
British Columbia: www.courts.gov.bc.ca
Manitoba: http://www.manitobacourts.mb.ca/
New Brunswick: http://www.gnb.ca/cour/03COA1/index-e.asp
Newfoundland: http://www.court.nl.ca/
Nova Scotia: www.courts.ns.ca/Appeals/index_ca.htm
Ontario: http://www.ontariocourts.on.ca/coa/en/
Prince Edward Island: http://www.gov.pe.ca/courts/
Quebec: www.tribunaux.qc.ca/mjq_en/c-appel/index-ca.html
Saskatchewan: www.sasklawcourts.ca
Nunavut: http://www.nucj.ca/index.htm
Northwest Territories: www.justice.gov.nt.ca/dbtw-wpd/nwtjqbe.htm
Yukon: www.yukoncourts.ca
Federal Court of Appeal: decisions.fca-caf.gc.ca/fca
Court Martial Appeal Court: www.cmac-cacm.ca/index_e.html


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More on this later, if I have time.

By the way, is anyone else checking into the implications of "bid-rigging" as it may -- or may not -- apply to the still-secret transaction between the BC government and CN for BC Rail? - BC Mary.

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Beginning with the premier and the attorney-general, the current BC government must demonstrate a healthy determination to fight crime if they expect others to do so.

Instead of blocking the legitimate requests of their former employees to obtain documents necessary for a fair trial on charges of fraud and bribery in the sale of BC Rail. they could demonstrate an honest readiness to provide every document without further delay. They could be the inspiring examples of good, responsible citizens.

In other words: the Campbell Government should be the example that they expect others to follow.


Noted in passing ...

... We've had criminologists this past week telling us that the gang problem in the Lower Mainland is -- per capita -- the worst on the planet. There are scores of gangs, all vying for a piece of the action of the drug trade.

Suddenly, almost unbelievably, the picture-perfect Lower Mainland feels like Chicago of the 1930s. Lotus Land has become Gangland.

Excerpt from Gang violence is a story that won't go away. By Ian Haysom. Read the complete column here.

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Sometime today, the 100,000th visitor dropped in here to read the latest BC Rail news.

Your visits, your interest, your support and contributions have provided a welcome sense of teamwork. Even on the hardest days, it all seems worth-while.

Thanks to all, and I hope we'll see the BC Rail Case come to the trial stage before another BC election.

- BC Mary.

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Today twelve lawyers filled the court. Three observers were present in the gallery - none from the press and media. Two counsel for various media organizations made representation to assure access to documents when removed from privilege and available as exhibits in court. The two swelled the number present.

Much of the morning was taken up with the two volumes (or binders) remaining of the seventeen garnered from the Freedom Of Information request by Defence lawyers. The two binders contain materials from the BC Rail organization for which Mr. Dean (BC Rail lawyer) has been considering exerting confidentiality claims.

As I have said, BC Rail materials are in a dark part of the Basi, Virk, and Basi matter. To begin, I (alone, it seems) question whether - in a matter of this kind - a Crown Corporation very heavily influenced by cabinet may be seen as possessing "third party" interests. And since BC Rail is at the heart of all the issues bearing on the present case, a refusal to release documents from that source might well send a powerful message about the need to hide actions. Crown Corporations, however, are not subject to FOI (as government Departments are). And so if BC Rail (now a shadow, almost without assets since the Campbell government has been dissolving the remains of BC Rail) wishes to refuse Defence the two binders of materials, it has grounds. Only, one must assume, will it refuse access if it believes there are materials present that are compellingly unsavoury. If it does, a court battle will ensue.

Those matters will be dealt with on Monday (beginning at 9:30 a.m.), and on Tuesday.

Wednesday will see the decision by Madam Justice Elizabeth Bennett on the application by the lawyer for the Official Opposition to have access to all the binder material sought and gained through Freedom Of Information by the Defence.

Here again, conversation with friends bore on the very real matters under consideration. As many know from nasty personal experience, gaining materials through Freedom Of Information application is often more frustrating than satisfying. In fact, the process has been turned into an almost complete sham in many cases where response to request drags out forever - and then material given up has more blacked out space than print left visible. Freedom Of Information procedures are often, in fact, bureaucratic ways of denying the public's right to know through Orwellian double-speak.

We can only hope that has not been the case here. Bearing all that in mind, however, one has to give some attention to the argument by Defence lawyer Michael Bolton yesterday that the request for materials at issue should have come directly from the Special Crown Prosecutor to the various sources holding the materials in order to avoid shadowy intervention and to guarantee that the full power of the Crown was backing the requests. We can only hope that the FOI requests, made on behalf of the Defence, have the same power as requests made by the Special Crown Prosecutor would have had.

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Before reading today's Canadian Press article about bid-rigging, please note:

... In October 2002, OmniTRAX hired Erik Bornman and Brian Kieran to lobby the provincial government on BC Rail. The B.C. Lobby Registry Web site shows that the cabinet ministers Bornman and Kieran registered to lobby were Gordon Campbell, Gary Collins, Judith Reid, Rick Thorpe, Richard Neufeld, and Kevin Falcon.

Prior to the government choosing CN, both OmniTRAX and Canadian Pacific complained that the BC Rail process was unfair to them. Several media reports said the government was determined to award the deal to CN. CN has donated about $150,000 to the B.C. Liberals since 1994.

CP wrote in a bitter private letter, dated November 21, 2003, and copied to the premier's office, that the government's handling of the BC Rail deal was "extremely prejudiced", that CN had been provided "enhanced access to shippers", and that CP was formally withdrawing from the bidding.

"By allowing CN access to BC Rail's customers at a time when CPR was prohibited by its confidentiality agreement from contacting such customers, the province has, whether intentionally or not, provided CN with an unfair competitive advantage," says the CP letter ...

Excerpt from POLICE RAIDS AND BC RAIL by Bill Tieleman - March 11, 2004.

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Charges laid in $67-million bid-rigging scheme

THE CANADIAN PRESS - Feb 17, 2009

OTTAWA - The federal Competition Bureau has charged 14 people and seven Ottawa-area companies in a bid-rigging scheme involving $67 million in federal government information-technology contracts.

The bureau said it has evidence that IT service companies co-ordinated bids to divvy up contracts and exclude competitors.

The alleged scam involved bidding competitions for 10 contracts for the Canada Border Services Agency, Public Works and Government Services Canada, and Transport Canada.

"Bid-rigging is a serious criminal offence that harms buyers of products and services, competing businesses, and ordinary Canadians who ultimately pay the bills," said Melanie Aitken, interim commissioner of competition.

"The bureau will not hesitate to take action against bid-riggers when it uncovers evidence that the law has been broken."

Bid-rigging is a criminal process in which bidders secretly agree not to compete or to submit bids that have been pre-arranged among themselves.

The goal is to get around the competitive bidding process and inflate prices. The bureau said recent studies suggest bid-rigging can drive up prices by about 20 per cent.

{Snip} ...

Penalties for bid-rigging include a fine at the discretion of the court and-or up to five years in prison.

Click here to read the complete news article.

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By Neal Hall
Vancouver Sun - Feb. 19, 2009

VANCOUVER – The opposition New Democrats applied Thursday in B.C. Supreme Court to gain access to thousands of documents related to the government sale of BC Rail in 2003.

Victoria lawyer Mike Mulligan, representing the NDP, applied for the release of about 8,000 documents during a pre-trial proceeding involving former government aides accused of corruption related to the BC Rail sale.

A lawyer for BC Rail told Justice Elizabeth Bennett that he wanted to check the documents before the judge decides whether to disclose the material to the NDP.

The matter will return to court next Wednesday ...

Read the full column at Vancouver Sun.

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NDP OPPOSITION LAWYER ASKS BASI-VIRK JUDGE TO RELEASE F.o.I. DOCUMENTS RELATED TO BC RAIL PRIVATIZATION

By Bill Tieleman
Feb. 19, 2009


... NDP MLA Leonard Krog said in an interview with me this evening that the information it has requested could shed light on what happened in the BC Rail deal.

"The opposition is hopeful that some of the truth about the sale of BC Rail will come to light as a result of this application," Krog said. "British Columbians deserve to know the truth before the May 12 election."

Arguments on release of other FOI-requested documents continues in court this week and next.

Read Bill's full column here.

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The day began in full panoply. Thirteen lawyers made their way into the courtroom, many pushing carts full of documents. Not quite a fashion show, all were pressed and combed and scrubbed and be-suited. The judge entered the court sixteen minutes after the stated starting time. The gallery was packed with three people, later five. Press - except late, and CanWest - didn't appear at all. A few of the lawyers leaked away, but eleven were there when the lunchtime tocsin sounded.

Glued to the action in court, all that went on seemed as if justice is being served and the slow but sure pace is moving towards a reasonable outcome that will satisfy the people of the Province and democratic ideas of fair conduct. That is so when "glued to the action in court". From a further distance, the view is not so comfortable....

A highlight of the morning, perhaps, is that the Official Opposition (not a person) has requested that the seventeen volumes (or binders) of documents (some 8000) produced as a result of Defence counsel Freedom of Information requests be released to the Official Opposition. Madam Justice Elizabeth Bennett will probably decide by next week if the parliamentarians are to have the FOI materials.

As she herself probed, a possible basis for her judgement became clear - and will likely be founded upon a recognition that anyone might have made the FOI request and had it responded to.

An interesting addendum to this matter is that the Prosecution has asked to have the list of documents and the seventeen volumes (or binders) released to them. Defence (in a turnaround) is forcing a judgement of that matter onto the presiding judge. A reason for the balkiness of the Defence may be (as Kevin McCullough hinted to the judge) that it considered the material was delivered in messy condition - and now the Crown wants to see it, listed, and put into the proper order in which it should have been received.

Mr. Webster, the nominee under the release protocol, assured the court that all of the documents are considered relevant to the case. According to both Defence and Prosecution, Defence sought the documents from the Special Crown Prosecutor. He passed the request to counsel for the cabinet, Mr. George Copley, who - as Madam Justice Elizabeth Bennett pointed out carefully - declared they were documents to be obtained by FOI (Freedom of Information application). She sees the process as reasonable and transparent, in the face of Defence counsel reading delay, at least, into the process.

Indeed, Michael Bolton, for the Defence, alleged that the Special Crown Prosecutor "abdicated his responsibility" by sending the request to Mr. Copley. Bolton further alleged that the whole approach of the Special Crown Prosecutor has been "to avoid the matter altogether" and that he has "been part of the problem from the beginning here". The collection of documents, Mr. Bolton alleged, has been a huge distraction, and the government continues to hold documents. He charged that the Crown had an obligation to secure all the material. Madam Justice Elizabeth Bennett very clearly was not of the same opinion, as I point out in the preceding paragraph.

The move by the Official Opposition is timely and pertinent. It might have had a sharper and fuller role to play than it has so far. It would be perfectly appropriate of the Official Opposition to question the legitimacy of an Attorney General moving (almost directly) from the higher courts into the position he holds. The Opposition might appropriately ask how Special Crown Prosecutors are screened to assure objectivity. The Opposition could (a) inquire about and (b) challenge civil case fees that some believe are illegitimately charged. The Opposition might have asked - as I have - how the BC Rail officers can be categorized as "third party" entities when they were the servants of a cabinet which was operating a railroad in the name of the people of B.C. Where is "third party" status in that? The Opposition has had every reason to demand the Deputy Commissioner of the RCMP appear publicly and give reason to the public for the RCMP repeatedly choosing to deny or delay disclosure of actions taken and documents produced during investigations on behalf of the B.C. public. That is a political question, not one related specifically to the Basi, Virk, and Basi case.

I'm saying that many questionable aspects of the BC Rail Scandal (and other cases) surfacing in courtrooms are not primarily sub judice (involved with the particular action) but are political choices made by a sullen and questionable government in power - and fair game in the political sphere for Opposition public action.

Defence alleges that more documents exist that they want disclosed, and they want to assure that BC Rail documents are not secreted from view on the basis of third party privilege. BC Rail documents are or may be included in the seventeen binders of materials. And so, it would seem, separating them out as "third party" documents may take some time.

Defence explained that the FOI requests have depended on the fact that the RCMP raided legislature offices, didn't find all that they wanted, had to search elsewhere, and - indeed - investigated for a year more before any charges were laid. That necessarily brings into play MLAs at different levels, BC Rail officers, and others who produced relevant materials

In an attempt to make the arguments comprehensible, Michael Bolton, for the Defence pointed out that Defence needs information about the "auction" of BC Rail, allegations regarding Omnitrax, matters relating to Roberts Bank port rail operations, any correspondence between RCMP and Special Crown Prosecutor, when and if compensations were paid, whether the BCRail "sale" price was appropriate, whether there was consultation between RCMP and various Gordon Campbell cabinet ministries. Mr. Bolton suggested that the indictment against his client seems to pin the reason for cancellation of the Roberts Bank spurline sale on to him.

The arguments were to continue in the afternoon.

Not "glued to the action in court", and gaining a little distance, any ordinary Canadian might ask a few telling questions. One: shouldn't the RCMP be immediately ready to give up any relevant documents in its hands to assure a fair trial? Two: Shouldn't the Special Crown Prosecutor do everything in his power to assure speedy and full disclosure of materials needed for the trial? Three: Shouldn't the cabinet of the Province want - first and foremost - that justice be served and that any and all relevant information it holds be available to the court for scrutiny? Four: Shouldn't the BC Rail officers, past and present, be reminded that they are not independent "persons" but servants of the people of British Columbia and - as such - have no existence as so-called "third party" interests?

In short, is the exciting and minute action in the courtroom all something of a sham, a tribal dance, an elaborate and expensive ritual undertaken with the intention of assuring the people of British Columbia they will never know the truth about the corrupt "sale" of BC Rail, and - above all - they will never be permitted to see who was most closely involved and to what extent criminal activity may have been used, as the (then) new premier of the Province broke his election promise and threw the peoples' railway onto the junkheap to be grabbed up for chicken feed, and perhaps by a pre-planned winner of the "auction"?

Questions. Questions.

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All three of the Accused are named in 3-1/2 pages of the VANCOUVER Supreme Court listings for today, Thursday February 19, 2009.

Here's hoping that Robin Mathews will be there. Others, too. - BC Mary.

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File #23299-10 (that's the Basi Virk Basi file number, although they are not named)

HMTQ v. Limited Access - 10:00 AM


001. An order permitting access to and copying of all exhibits filed in open court,

002. Declaration-no undertaking or obligation precludes the release of material relating this case pursuant to Freedom of Information and Protection of Privacy Act.

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UPDATE: A commentor advises that the Court Calendar changed about noon today, Feb. 17. On checking it myself, I see that the first listing (as shown here) has been removed. - BC Mary.

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Victoria Times Colonist has published this story today, February 17, 2009. It's an informative news article with detail -- even fresh detail -- about Basi-Virk and BC Rail. Read the story here.

But look at the dates!! Please look at the dates, or you won't believe it's possible for a news service to come out with news of a very important trial that happened last June 2008!!

Then, please note that BC Mary published this information on Thurday December 11, 2008 under the headline "Jasmohan Singh Bains sentenced to 9 years." That scoop resulted from a commentor mentioning that he had heard -- during a Basi-Virk pre-trial hearing -- that Bains had been sentenced to 9 years. What?? I was so unsure about that -- having seen NOTHING in the 4 daily newspapers I check every morning -- I went to a whole lot of trouble to confirm that this was true. Unbelievable.

The Bains trial had begun in June 2008 IN VICTORIA, the guilty verdict had been given in August 2008 and the sentence pronounced in September 2008. And despite the fact (or because of the fact??) that Bains is a significant figure in the raid on the BC Legislature, nothing was published about his trial?

Special thanks to the commentor who first mentioned this, saying "The broke TC has just broken the story ... 3-1/2 months late."

A big part of what's wrong with British Columbia these days is that the media has failed, time and again, to report news like this. - BC Mary.

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Vancouver Sun actually may have been first, with TC following the leader. Read Ian Mulgrew's story on it "Drug dealer who triggered raid fined and sentenced to 9 years" here, in which Mulgrew claims he didn't know about the Bains trial, blames the RCMP for being "oddly silent", and gives credit to BC Mary.

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File #23299-5 Limited Access & Others v. HMTQ.
Application for records in possession of the Province of British Columbia.

BC Supreme Court, 800 Smyth Street, Vancouver.

Monday February 16, 2009 at 10:00 AM.


This may look low-key but in my opinion today's Basi Virk session could be the Showdown at the OK Corrall ... will lawyers for Dave Basi and Bobby Virk be able to stare down the lawyers for the government (and/or the Crown)? How will the "Province of British Columbia" explain its demands for additional secrecy? Will Madam Justice Bennett intervene and rule that the "Province of British Columbia" must release those documents in order for the Accused to properly defend themselves?

Today's session might prove to be a very interesting development, bringing the proceedings much closer to the heart of the BC Rail Case. - BC Mary.

Ha! And Huh! Keep reading ... !!!

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UPDATE, 3:00 PM, Report from Robin Mathews:


Dear Mary.

No. Today wasn't a Basi/Virk day. Sorry. I went down; there was nothing on the board - the board beginning with Brenner (ch Justice). So - knowing their wonderful competence - I went up to courtroom 65 in case they had misplaced the first page with Bennett on it (it is alphabetical). Nothing there. Over the concrete rail I saw Neal Hall talking on his phone. I went down with a note asking if BBV was on today. He said he didn't know, shrugged.

So. after ten I went down to scheduling, stood in a line-up, several behind me, for ten minutes, and then the nice lady asked what I wanted. I explained that Basi/Virk was on the website list this a.m. but there was no show. She went to her computer and looked at it for awhile.

"No Basi/Virk today," she said. "It was on last Thursday and will be on again this Thursday, Feb 19, at ten a.m."

Informed, at last, - about being actively misinformed - I set out for home wondering what a Supreme Court judge like Madam Justice Elizabeth Bennett would charge for the hours I wasted over a Vancouver Law Courts announcement about the case she is conducting.

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With Robin's report, I went immediately back to the Public Access Supreme Court Criminal List for 16-Feb-2009 again ... and to my great surprise (not) ... I found that File #23299-5 (the Basi Virk File number) was gone. It had been the first entry in the 8 page lineup, but it was gone. Gone. Just like that.

So is it safe to accept what the nice lady said about the next Basi Virk hearing being on Thurs., Feb. 19?? - BC Mary.


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Groups slam province over new gag law
The Canadian Press, The Globe and Mail
February 14, 2009


Vancouver -- The B.C. election gag law that took effect yesterday is being slammed by the B.C. Civil Liberties Association and other groups.

They say the law is so vague that anyone could be fined if they put out any advertising even remotely related to the election, including photocopying for neighbourhood flyers.

Vincent Gogolek of the Freedom of Information and Privacy Association calls the law "an outrageous violation of freedom of speech."

Micheal Vonn of the B.C. Civil Liberties Association says the law is a nightmare that puts voters in the ridiculous position of having to register with the government before they can speak out about any public issue for the next three months.


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BASI-VIRK - BC Liberal MLAs caucus sends lawyer to block FOI disclosure of MLA communications

Bill Tieleman
http://billtieleman.blogspot.com


A lawyer representing the B.C. Liberal MLA caucus made a first appearance Wednesday at the B.C. Legislature raid case ...

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Edward Montague
Edward received his Bachelor of Arts Degree with Honours in English Literature from the University of British Columbia in 1981, after which he spent two years as a volunteer teaching for CUSO in Nigeria, West Africa. He then returned to UBC where he completed his Bachelor of Laws degree in 1987. Since his call to the Bar in 1988, Ed has represented the interests of individuals and corporations as a trial lawyer, with an emphasis on personal injury, insurance and employment law, as well as varied commercial litigation matters. He is a former President and Governor of the Trial Lawyers Association of B.C., and is the B.C. representative to the American Association for Justice.

Ed Montague is with the firm of Campbell Froh May & Rice, 11 lawyers with offices on Cooney Road, Richmond.

[It is not clear to me why he would have been chosen for this delicate yet volatile task of demanding government secrecy for M.L.A.s. - BC Mary]

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This is a HUGE development in the history of British Columbia. As I read Bill's report, it's telling us that the voting public can elect an M.L.A. to represent them in the provincial legislature ... but the M.L.A.s (at government expense, mind you!) can try to erect a barrier between themselves and the public. It tells us that our elected M.L.A.s seem to think this is OK. Well, it isn't OK.

On any issue, such a barrier is a flagrant violation of the democratic principle that the people are sovereign.

But this particular issue -- the tainted sale of BC Rail -- is a huge, public issue. To advocate for secrecy surrounding the words and deeds of our own elected representatives ... when Canada's 3rd largest railway slipped from public ownership into private pockets ... that's what makes the appearance of this new lawyer acting for the BC Liberal MLA Caucus, so outrageous.

It's telling us that our elected M.L.A.s think the people of B.C. shouldn't be allowed to hear everything the M.L.A.s said about that sale? That even if the public (which includes Basi Virk) is asking for data under the Freedom of Information rules, they should be sent away without the information? Whatever happened to accountability? What is this, Zimbabwe?

I doubt that any mention of this M.L.A. development will appear in the mainstream media. This tells us something, too.

Special thanks to Bill Tieleman for this story. He was the only reporter attending, on Wednesday Feb. 11, when this happened. - BC Mary.

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Nearly 700 police officers were involved in today's major raids on gangs who allegedly traffic cocaine in Montreal and Ottawa. 47 people have been arrested so far on various charges, including gangsterism, weapons possession as well as drug-trafficking. It begins to look as if that's the way to do the job. But the lesson passes unremarked by the leadership of British Columbia.

In Vancouver, where 6 people have been shot in the past 7 days, the premier says he will shift police around, ask Ottawa for better wire-tap laws, and (in his opinion) provide families with a sense of safety. The man is a fool.

Julian Sher, author of two books on Organized Crime in Canada, said in a CBC interview that it's impossible to have any effect on organized crime without having a serious plan of infiltration. He agrees with Jerry Paradis, a BC provincial court judge for 28 years, who says that putting more police officers on the ground won’t lessen the danger to ordinary citizens, who are at risk of getting caught in the crossfire. “The police will be unaware of when the next explosion will happen. They don’t know about [the shootings] until they happen.” The only method that works is when a brave cop puts his life on the line by taking up with the gangs, running with them, learning their secrets, and never forgetting that he's a cop there to arrest the gangsters.

So Campbell and his Attorney-General are talking nonsense about putting more cops on the street and about how this can be done by shuffling cops from one unit to another without hiring new ones.

Campbell and Oppal can't help but know that a drug war has broken out on the streets of Surrey and Vancouver. They can't be so stupid as to not know what's really going on. Although that's exactly what the premier told us when he returned from his Hawaii holiday after the police raid: "I know nothing," he said. Prime Minister Martin stood up to say the same thing. Fools. They were briefed, as much as 3 weeks before the raid was launched. Do we think they never asked "Why?"

How can they forget that it was a drug trafficking investigation which led police to make that unprecedented raid on the B.C. Legislature? Such a thing had never before happened in Canada. It was about drugs ... drugs which, in B.C., add up to to $6Billion a year for marijuana alone ... and traded in the U.S. for cocaine which came back into Canada. Traded for guns, too. They knew that. Solicitor-General Rich Coleman told us about the guns himself, saying that some of them ended up in the hands of the insurgents fighting Canadian troops in Afghanistan. How could they fail to see their duty, when the opportunity presented itself to put these issues on trial?

Caught on wire-taps and available as evidence were the cell-phone conversations between Ministry of Finance aide, Dave Basi, and his cousin, Jasmohan Singh Bains who in 2003 was thought to be the new Mr Big on the West Coast. The Bains trial was held in Victoria in June 2008, the guilty verdict was given in August 2008, the 9-year sentence was pronounced in September 2008, but nothing was known of this until December 2008 ... why? We'd be fools ourselves to think that the Attorney-General, and therefore the premier, had paid no attention to the Bains trial. So ... was Dave Basi a witness at that trial? Probably. But we the people don't know.

Drug charges were actually laid against Dave Basi as well as Jas Bains after the Legislature Raids. We know this from a little exchange in Supreme Court:

Ms. Winteringham [Crown Prosecutor] said the defence was simply wrong when it stated that the investigation, code named Project Everywhichway, suddenly veered off course to target Mr. Basi ... In fact, she said, Mr. Basi emerged as an early person of interest in a drug investigation that was triggered when informants told the RCMP that the arrest, in May, 2002, of U.S. drug dealer Cirilo Lopez had created an opening for a new drug boss on Vancouver Island. "The word on the street was that Jas Bains was going to be the person taking over," Ms. Winteringham said. There were 26 calls recorded between the cousins in the summer of 2003.

Then, all of a sudden and without explanation, the drug charges against Basi were stayed. Why? Does this make sense? I don't think so. But it's a great pity that the police didn't seize the opportunity to learn more. Instead, over 5 years have passed with an official silence offering, in effect, a protective cover.

Retired judge Paradis put it this way, with regard to the drug wars underway on the streets of Vancouver:

“I’m satisfied in my own mind that although organized crime is involved in other things at the moment, while this particular or several gang wars may be due to other things that I’m not aware of, I have no doubt in my mind that it’s [an] attempt to either get status or maintain status in the drug market and protect turf,” he said.

In my view, the leadership in British Columbia has failed to take action when it could have and should have. The people of this province -- even their children -- are in danger. Therefore, the BC government is in serious default in its duty to protect the people of this province. - BC Mary.


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Read more here: Gang violence tightens grip on Canadian cities, which reports that drug sales have doubled in the past 10 years.

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Surprise to me ... to find Aneal Basi, Bobby Virk, and "Limited Access" heading up today's Supreme Court Listings in Vancouver.

But let's cheer them on. Anything that gets this case moving forward, is welcome news. So it"s 800 Smyth Street, Vancouver, today February 12, 2009 at 10:00 AM.

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If one of your loved ones dies because of negligent actions onboard a British Columbia Ferry, don’t go looking for justice in the province of British Columbia. Unless you are wealthy, you won’t be able to afford Court in B.C.

The people of B.C. will never get a chance to hear in Court why or how two people died in the B.C. Ferries disaster in March 2006. Very sadly, two lovely teenage girls from Penticton will never know what happened to their father. Our so-called justice system has let them down. The two teenagers and their mother did not have the money to pay the exorbitant amounts required by our justice system to fund their trial. The Queen of the North trial scheduled for February 2, 2009, will not happen. Our justice system is unfair to these two girls, and people should be aware what the government has done to us all in B.C.

In all of Canada, it is only the government in B.C. that has passed rules that operate to prevent ordinary people from having access to the Courtroom. Even though ordinary people pay the taxes for the Courts (the physical building, the judges, the sheriffs, and the Court staff, etc.), the B.C. government has erected financial barriers so that non-wealthy folks are kept out of their own Courts. These barriers, in Court case against B.C. Ferries, kept two teenage girls from having their day in Court.

I repeat, there is no other province in Canada where the government impedes access to such a degree as here. In B.C. you will need a pile of money just to rent the courtroom. This unfair rent is euphemistically called “hearing fees”. This trial was estimated to take something like 30 days. This rent would have cost the girls about $15,000.00. Only in B.C. do we have outrageously high jury fees. The two girls also did not have anywhere near the money to pay the government for their so-called “right” to a jury. Jury fees would have cost the girls an additional approximate $25,000.00. For starters, the girls had to come up with approximately $40,000.00 in jury and hearing fees to the government to be able to walk into the courtroom. Nowhere else in Canada is like this.

The B.C. government also demands a host of other fees. For example, when the Writ was date stamped by a clerk at the counter my clients had to pay $208.00. When they asked someone at the Courthouse to put their dead father’s case on a list for a trial, that cost them another $208.00.

These expenses and fees levied by the government go on and on as the litigation proceeds. If you are wondering how ordinary people pay for these excessive government fees, the answer is simple. They don’t. Maybe the B.C. government expected these girls to raise money by doing more baby-sitting? Maybe they should have held a bake sale at their Penticton high school?

This case involving the sinking of a “public” ferry is one of enormous public importance. The facts of this tragedy have never been fully revealed. The facts would have come out at trial. The capacity of B.C. Ferries to ensure safe passage is of crucial importance to the travelling public. Just as importantly, these two innocent kids really deserved to find out what happened to their father. Gerald Foisy and Shirley Rosette who both died on the Queen of the North had entrusted their safe passage to B.C. Ferries just like hundreds of thousands of us do who ride the Ferries.

What really happened to cause a fully equipped modern vessel to smash into an mountainous island at high speed? What really happened so all passengers were not taken safely off this sinking ship? You will now never find out. The trial cost is too much for the two girls and their mother.

Citizens deserve justice. No other province charges such fees. If the girls lived anywhere else in Canada, they would have at least a fighting chance to have their day in Court. A few comparisons. In B.C., $40,000.00. In Alberta, the trial fees would have been $800.00. In Ontario, $645.00. Only one other province charges hearing fees, Saskatchewan. In Saskatchewan, the daily hearing fees cost only $15.00 per hour, say $3,000.00 in total, not $15,000.00 like in B.C. Saskatchewan is also the only other province that charges jury fees. Those fees are difficult to assess exactly but are nothing like B.C.

To understand the B.C. government’s attitude toward Court access, it really would be simpler if they put up signs on the Courthouse door, reading “Ordinary People Prohibited”.

The rules in our justice system are designed so that wealthy litigants, like B.C. Ferries, have an advantage over ordinary people. In this litigation, B.C. Ferries took full advantage of the unfair laws and Court rules. Goliath is favoured over David here in B.C.

A litigant’s best hope is often a jury and B.C. Ferries tried its best to get rid of the jury. When it comes to the size of Court awards in wrongful death cases, Judges are restricted by ironclad precedent of relatively small amounts. Juries are not so restricted. The input of juries in fixing amounts of awards is of critical importance to our system of justice. Juries are not bound by precedent and they have wide latitude. B.C. Ferries sent their lawyers to Court to try to persuade the Judge to rule that the case should not be heard by a jury. The girls fought back and B.C. Ferries lost that round when the Judge ruled that a jury could hear the case. Why did B.C. Ferries try to keep this case away from a jury? A jury comprised of regular folk have a lot of power. What were the facts they did not want a jury to hear? What really happened on this ship? Why the crash? Why the failed rescue?

There was a federal Transportation Safety Board inquiry. The T.S.B. report can be viewed online. The Board’s inquiry methodology was deeply flawed. Their mandate was restricted because they don’t look to find fault. Unlike a trial, the T.S.B. does not cross-examine those involved. But at least they got some of the fundamentals right. They found no equipment failure. They said the seas were calm. They said there was little wind, little rain, and the visibility was good despite a squall. It wasn’t the sea that caused the deaths. So how in heaven’s name did this ship come to perdition? If there had been a trial the girls hoped the truth would come out B.C. Ferries surely did not want the jury hear evidence that the woman steering the boat did not know what she was doing. She was poorly trained and lacked supervision. As the T.S.B. told us, she had spoken to her supervisors about her nervousness to drive the boat that very voyage. Yet BC. Ferries still allowed her to be at the helm knowing she was poorly trained and knowing she lacked basic navigational skills.

Also, the T.S.B. found B.C. Ferries had only two crew on the bridge. The T.S.B. said three people were required by law to be on the bridge at the time of the collision with Gil Island. Why did B.C. Ferries have only two people on the bridge? The public will not learn the details of what these two people were actually doing on the bridge which caused them not to pay attention to where they were going. What were they doing for approximately 14 minutes when there were going at high speed in the wrong direction? Why did they not realize they were heading right into Gil Island? It is like a ship being driven into the shores of North Vancouver. Gil Island is a mountain rising out of the sea. The facts are astounding.

B.C. Ferries’ problems were not limited to just what went on on the bridge. The T.S.B. investigation found that: “B.C. Ferries was in the process of developing evacuation plans/procedures for its vessels; a detailed plan for the Queen of the North, however, had not been completed. Documentation available to the crew did not provide sufficient detailed information about passenger-control duties during abandonment.” Go ahead and Google the T.S.B. report. See page 46. Imagine a public ferry with no proper evacuation plan. It is astounding.

The T.S.B. also criticized B.C. Ferries for other critical shortcomings. For example, the trial evidence would have reflected the T.S.B. conclusion that watertight doors were not closed. Worse, a B.C. Ferries vice president actually told the Provincial Public Accounts Committee in 1998 that they were sailing with these watertight doors closed. Google the Public Accounts Committee in Hansard 1998, p. 794. After a federal ruling was made the vice-president told the committee, “We’ve had our ruling. We are now sailing with the doors closed, as required by regulation.” The jury would have heard that this was untrue. Doors were regularly left open on the Queen of the North. One of the first announcements the passengers heard after the ship crashed was to close the watertight doors. There is an obvious reason for having watertight doors closed on a ship like this. The T.S.B. said, “The potential to slow down or stem the progressive flooding was not realized.” The announcement was too late. The water rushed in fast. Debris got in the way of one door, and it could not be closed.

How would you expect a jury to react to the fact that regular practice was for the Queen of the North to sail with these doors open despite repeated attempts by Transport Canada and the T.S.B. to point out the dangers of open watertight doors? As there will be no trial, we cannot know how the jury would have reacted. If B.C. Ferries had kept all of the watertight doors shut, how much would the speed of the flooding would have slowed? How much more time to search for passengers?

There is much more. The alarm bells were so poorly positioned that some passengers could not hear them. That means, that alarm bells could not be heard in some of the sleeping cabins. This is shocking. How are passengers supposed to be notified that a crisis is occurring?

The fact that the Queen of the North had no proper evacuation plan is profound. The safety of passengers is put in peril. With no detailed evacuation plan, what is supposed to happen? For example, how is the search for passengers supposed to occur? How would a jury react if they found that search procedures were pathetically negligent?

If a disaster happens, an organized evacuation is absolutely essential. Passenger cabins have to be checked and fast. What is a passenger to do if the cabin door is jammed? The jury would have heard all about it. For example, once a cabin was searched a crew member was supposed to write a large “X” on the door in chalk. The chalk mark signifies the cabin has been searched. On the Queen of the North they could not find chalk. Who was supposed to search it? Was the door jammed? The girls will never get to hear whether their father’s cabin was even searched at all. The evidence would have been that there were several areas of the ship which were not searched.

No doubt some individual few crew members acted bravely, but B.C. Ferries surely did not want a jury to hear how poor the rescue process was. The T.S.B. determined that the ship took about 1 hour 20 minutes to sink. The jury would have heard that the training of the crew was so bad that B.C. Ferries had no effective system in place to verify the number of passengers that got off the sinking ship.

As the crew all sat in the lifeboats sitting on the quiet calm sea that night, they could not get the number straight. An incorrect count is disastrous. An incorrect count means that B.C. Ferries could not determine whether there were passengers left onboard. There were only 59 passengers.

The crew of 42 all got off safely. The crew all sat in their lifeboats watching the ship until it eventually sunk. Two innocent souls were left onboard. The crew only had to count up to 59. The next morning it was announced by the press that all passengers had been evacuated safely from the vessel. It is by God’s grace that there were only 59. This ship had a capacity for 650 passengers.

The jury would have heard from passengers the details about the confusion during the evacuation. The jury would have had a chance to consider that in light of the fact that there was no proper and detailed evacuation plan the evacuation is bound to be confused, if not utterly panic stricken.

A trial is by far a better way of getting at the truth than the T.S.B. inquiry. The T.S.B. is hamstrung in its ability to get at the truth, but at a trial witnesses are put up on a witness stand in front of everyone. Then, most importantly, witnesses are subject to being cross-examined. This is the best way ever devised to get at the truth. The T.S.B. did not have this advantage. There would have been a lot of cross-examination in this trial. Certainly, there would have been cross-examination about the relationship between the man and the woman who were driving the ship at the time of the collision with Gil Island. It was no secret that they had a personal relationship. This is referred to in the T.S.B. report. They concluded during the crucial 14 minutes the two on the bridge were having a “personal conversation”, whatever that means. What is not clear to the public or to the two girls is how this personal relationship figured into this disaster.

The T.S.B. inquiry uncovered evidence of illegal drug use by B.C. Ferries crew. Had there been a trial, evidence would have been led about the use of illegal drugs by crew members between shifts. And, very significantly, what was done or not done about it by B.C. Ferries. The T.S.B. said, “not all senior crew members consistently took action to ensure the company’s no-tolerance policy was strictly adhered to”. With no trial, beyond this, the public and the girls are completely left in the dark.

As I stated above, B.C. Courts are not for regular folks but only for the wealthy. Just to get into the Court the hearing fees and jury fees would have cost the girls about $40,000.00, but the two teenagers and their mother faced even more financial obstacles. In order to prove the case, the two girls would have to have brought witnesses to Court.

The witnesses who knew what happened that night are B.C. Ferries employees or former employees. In advance of the trial, the two girls notified B.C. Ferries that they required fourteen crew members from the Queen of the North to testify. Many of these witnesses do not live within walking distance of the Vancouver Courthouse. A number are up in the Prince Rupert area. The two girls have very little money so they asked B.C. Ferries to pay to bring the crew to Court. B.C. Ferries refused, leaving the girls to pay in full the cost of the bringing these witnesses to trial. This means that the girls would have to pay all of the costs for airfare, cab fares, hotel rooms, and breakfast, lunch and dinner for all the crew members. This is another example of how our justice system makes it so difficult for individuals to sue large corporations. The teenagers would have to come up with, say another $15,000.00 to $20,000.00.

There is more. Traditionally, people probably associate a high degree of honour to naval officers, especially to a Captain. One would expect that a Captain of a ship like the Queen of the North would be honourable. A common perception is that, even if he does not go down with his ship, the Captain would want to be forthcoming about this incident, if for no other reason, to prevent similar future shipping disasters. The girls needed the Captain to testify at the trial. He lives in Calgary so the girls asked the captain’s lawyer in Vancouver to accept a Subpoena to save them the cost of having to hire an Alberta lawyer to go to Court in Alberta and obtain an out-of-province Subpoena. This honourable Captain told his lawyer in Vancouver not to accept service. This means he insisted the girls shoulder the cost of getting an Alberta lawyer to get a Subpoena from an Alberta Court. He would also require travel expenses. So much for naval honour.

There is more. In order to prove their case, the girls needed a senior operations official from B.C. Ferries. During the lead up to trial, B.C. Ferries produced for examination their representation as is required by the Court rules. This witness was an important witness in the girls’ case. He is supposed to know how ships are meant to be safe. When the girls asked for him to be produced at trial, about five weeks prior to the trial, B.C. Ferries told the girls that this witness would be out of the country at the time of the trial. He would not be available to come to Court. B.C. Ferries suggested that his evidence be obtained prior to the trial on a videotape. The expense of obtaining this videotape evidence in this case would have to be borne by the two teenagers.

The girls faced additional obstacles because of the law itself. Our laws operate in an unfair manner. Because of B.C. laws, the survivors of a parent’s wrongful death are usually not entitled to large awards of damages. In B.C. death cases a claimant is not entitled to any damages for sorrow, pain or grief. Our laws relating to wrongful deaths have been in need of reform for years. It is impossible in B.C. to get even a nickel for the deepest grief however caused. The historical reasons why a child cannot be compensated for grief arising from the wrongful death
of a parent have been examined and changed elsewhere in Canada, but not in B.C. Typically, a survivor of a wrongful death can only recover small amounts for such things as loss of financial contribution and things like that.

B.C. Ferries also had other law to its benefit. The law does not allow any reasonable chance for these children to seek damages to punish the wrongdoer. Remember no one has been charged criminally in this case. In wrongful death cases, a jury cannot punish stupidity, gross negligence or wanton neglect by awarding punitive damages. In B.C. even if a family member is murdered, the survivor cannot get punitive damages against the wrongdoer. Even if the jury had wanted to hammer B.C. Ferries with punitive damages in this case, the law would not permit them to do so.

You really have to ask yourself, what kind of justice system do we have where our law prevents punitive damages from being imposed when there has been a conduct which is so wrong and which results in the loss of human lives: Why is it that you can try to get punitive damages if some product you purchase is defective, or if your insurance company treats you unfairly, but not if your father loses his life at sea where another is clearly at fault? This law is wrong and unfair.

It has been a very sad and frustrating experience to see two young teenagers through this process. I have been a lawyer for a long time, but I cannot justify to them why the Court system is so unfair. I cannot justify to them why our justice system demands $40,000.00 in hearing and jury fees as a requirement for them to have a trial, and find out why their father died. I cannot explain to them why Courts say their father’s life is so valueless that their grief cannot be compensated. I cannot explain to them why our laws would not allow a jury to award punitive damages against a wrongdoer.

Our justice system favours the large institutions. Powerful and wealthy organizations like insurance companies, governments, and multi-million dollar corporations can access Courts anytime they want. These two girls cannot. These two lovely girls loved their father. They were innocent to think we have Courts for people like them. I cannot justify to them why we do not.