Friday, February 27, 2009
Robin Mathews: Legal breakdown threatens
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.
Thanks a million.
It's important to read of your opinions, as someone who has spent so much time in the courtroom.
Additionally, yours is the clearest account of how the two binders came to be excluded.
One last thing....are the 8000 pages from the other 15 binders now available for public view/egregious photocopying charges in the Court Registry?
And the big question is....Will Lord Black, when he is no longer in the crosshairs, have scraped together the cash to buy back his print Empire from the not-so-magnificent AsperSons at 12 cents on the dollar just in time to cover the coming trial.
Legal fees for Basi, Virk, Basi
Saturday, July 05, 2008
Disclosure, disclosures, why has the government dug their heels in and slowed the process on producing disclosures to the defense.
Welllllll now that the NDP have their hands on the 15 binders from the BC Liberal Government via the Court, wouldn't it be appropriate for the NDP to ask the Premier once again what Joy McPhail asked before:
J. MacPhail: .... We've discussed the indemnification policy around court actions in this House many times. In fact, the government, when they were in opposition, raised this over and over again. I know, Mr. Chair, because I had to answer the questions when I was in government.
What is the indemnification policy for political staff who may be charged in relation to their government duties? For those that may not be familiar with it, indemnification, as I understand it, means who is indemnified for covering the legal expenses if one is charged in relation to their government duties.
SNIP .... Hon. G. Campbell: Again, we're getting close to a hypothetical question here. Mr. Basi has not been charged, and neither has Mr. Virk been charged. In terms of people that are involved in the public service, if there is a legal action taken as a result of them exercising their public duties, then there would be some indemnification. If they are charged outside of their duties, there would be no indemnification. That's the simplest answer, Mr. Chair.
Sooooo........ they were charged a year after they were fired... but they were "doing" their job, as directed by their Ministers at the time, therefore......... there is going to be indemification and that's why the disclosures are so important to the lawyers, and of course their clients.
That's going to take some sorting out, too ... because if they actually did something illegal and if they were following orders ... then isn't the boss guilty?
"BC gov't sows fear by claiming 'crown copyright' on released documents, say critics
February 24th, 2009 12:00am
Congratulations! The B.C. government -- the one that promised to be "the most open, accountable and democratic government in Canada" -- has just granted your freedom of information request.
You open the package of documents and find a notice that seems to say you can't make the information public without the government's permission.
"Permission of the copyright holder" -- that would be the B.C. government -- "must be obtained prior to any reproduction, dissemination or sale of these records (including the posting of such records on the Internet). If you wish to reproduce a record or portion of a record that is subject to Crown copyright, you must send a copyright request to the Province's Intellectual Property Program."
In the eyes of the Freedom of Information and Privacy Association, this notice is both intimidating and legally questionable. About a year ago, FIPA and researcher Stanley Tromp filed a complaint with B.C.'s information and privacy commissioner.
link to teh above