Thursday, February 19, 2009


Morning in Courtroom 67 by Robin Mathews

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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