Friday, February 20, 2009


Friday in Courtroom 67 by Robin Mathews

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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