Thursday, June 04, 2009

 

Robin Mathews: In Courtroom 43 today

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Courtroom "Friends" Take The Gloves Off, and A Clash Of Legal Opinions

The morning opened with Associate Chief Justice Patrick Dohm on the bench to receive a motion by the Special Crown Prosecutor, William Berardino, to replace Madam Justice Elizabeth Bennett as the trial judge seized with the Basi, Virk, and Basi matters. As I understood his meaning, Mr. Berardino wished the new appointment to be made immediately.

Mr. Berardino offered the argument that Madam Justice Bennett cannot be in two places at once (acting as a Supreme Court judge and acting as a Appeals Court judge). Mr. Dohm agreed. Mr. Berardino argued that Mr. Dohm can appoint a judge to a case and he should proceed to do so.

There is more to the argument, as we shall see. But that first point is an oversimplification. Both courts are in the same building. A judge raised to the Appeals Court must have responsibility to cases in process with which he/she is already 'seized' (in a legal sense 'in possession of').

In a trial of the enormous public importance as the one swirling around the BC Rail Scandal, changing judges won't be accepted as "routine" but cannot help being seen by some as political manipulation for advantage.

Defence counsel pointed out the obvious - that applications were in process of argument regarding third party disclosure and much more - in mid flow.

Mr. Dohm asserted that he would not create a situation of two existing trial judges - meaning, I take it, that he would not appoint a judge for "down the road" while another judge (Madam Justice Elizabeth Bennett) is, in fact, seen as "trial judge". He would not, moreover, break into the present procedures underway.

Matters will proceed as they are until about June 26, much being cleared up of pre-trial activity by then. Then Dohm, as he said it, mighty step back in to make decisions. Mr Dohm said that depending upon what happens with the motion put forward by Defence that Madam Justice Elizabeth Bennett proceed to the trial he will "probably step back" in, an assignment of a judge will take place, and matters will proceed.

In a manner that had a certain grand theatricality about it, Mr. Berardino, Special Crown Prosecutor, stated that the tight process of what might be called 'address and response' between Defence and Crown has never been used in the Basi, Virk, and Basi matter (a good reason, apparently, to proceed with another judge). That brought the Defence lawyers to their feet, fit to burst....

They wanted to rehearse their sorry tale of Crown delay, failure to reply to requests, muddled replies, etc. etc. But Mr. Dohm stopped what would doubtless have led to top-rated entertainment, and even perhaps something worse.

Mr. Dohm appeared to speak out of both sides of his mouth. That is not to be unexpected. But the appearance, in this instance, may simply have been produced by misunderstanding. And there lies what I see as the Clash of Legal opinions. Mr. Berardino (to put the matter in rough words) seemed to be saying that Dohm has the power to change judges, without question. And he should set about doing it.

If that is the case, why does he wait until she assesses the motion put forward by Defence that she (Madam Justice Elizabeth Bennett) stay on. If Patrick Dohm makes the decision, why can't he make it now?

Asked outside court about this apparent contradiction, Michael Bolton for the Defence asserted that if the motion considered by Madam Justice Bennett carries a weight of argument that convinces her she should stay, her decision is final, and cannot be overturned by Mr. Dohm. Mr. Dohm did say that "depending what happens to that motion" he would step back in.

I asked Mr. Bolton if Mr. Dohm - who stated he already has the replacement judge, in fact, chosen - could exert influence on the independence of Madam Justice Bennett's decision. Mr. Bolton would not be drawn on the question (and, of course, quite rightly would not be drawn).

Defence counsel, of course, made the obvious argument for retaining Madam Justice Elizabeth Bennett. She has presided for three and a half years over hearings that have ploughed through mountains of documents and hundreds of hours of argument and review, to say nothing of a growing acquaintance with the connection of apparently widely dispersed forces acting upon the accused and their actions.

That may be, in sum, reason why some forces in society would want her removed. For my part - as a long time observer who has been one of the more severe critics of Madam Justice Elizabeth Bennett's mode of presiding over proceedings - I cannot see how, at this point, switching judges could be anything but a serious, foolish, and politically ill-advised move.

I believe, sincerely, that the people of the Province would not consider a change as anything but the effect of the long arm of Gordon Campbell reaching into the higher court system and forcing it to decisions that guarantee advantage to him and his fellows.

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