Friday, June 05, 2009

 

Robin Mathews: morning in Courtroom 43

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The attendance of Mr. Sullivan, counsel for Patrick Kinsella, was, perhaps, the focus point of the day. But "shadow talk" may be even more important.

Mr. Kinsella - as we know - was campaign manager for the Gordon Campbell forces in at least two elections, is spoken of as "friend" of Gordon Campbell' received large payments over four years as 'advisor', 'lobbyist', 'consultant' or other for BC Rail in a key period of the BC Rail Scandal. Some suggest he was also - while in the employ of BC Rail - a consultant or other for CN Rail. Mr. Bolton for the Defence, suggested in his argument for the application to access Kinsella records, in fact, that the double role made Mr. Kinsella key in the so-called "sale" of BC Rail to CNR.

Mr. Bolton went on to argue that all of those facts are pertinent to the defence of the accused. He reasoned that the accused were merely a part of a process beginning well before the public knew of the possibility of the sale of BC Rail. One might say that a Gordon Campbell clique decided to sell BC Rail to CN Rail very, very early - after apparently adopting a no-sale election plank for the 2001 election.

As a result evidence in the famous 17 binders made public as a result of the Freedom Of Information request shows quite clearly early discussions about a sale and gives serious information that suggests CN Rail was early choice of buyer, that it was given special knowledge denied to other bidders, that those bidders may have been (without knowing it) used for sham purposes. (Two of them withdrew making clear they thought the bidding process soiled.) Defence even suggests (as I understood argument) that the Northern Caucus concerned about the possibility of a sale of BC Rail may have been used and not fully informed of the Campbell clique's intentions and actions.

Since, Defence argues, the circle of the clique spread outward, as it had to in order to get the results it sought, people like Dave Basi and Bob Virk were, as Mr. McCullough said a few days ago "operatives" who at all times were doing the bidding of senior politicians. Indeed, Mr. McCullough suggested in court that Bob Virk was important in the sale of BC Rail and was in direct contact with Gordon Campbell, though Virk was - on the face of it - an aide to Transporation minister Judith Reid.

Information about the proposed sale was, apparently, leaked to Pilothouse (lobby organization). Pilothouse was employed by a bidder, Omnitrax, to whom it is alleged a special consideration may have been promised if it stayed in the bidding, for appearances. Neither Basi nor Virk, Defence contends, leaked information to Omnitrax, but suggests that maybe the leak came from Christy Clark, Deputy Premier at the time. Bornmann (of Pilothouse) "elearly had certain cabinet sources", Mr. Bolton has said.

Sullivan, acting for Patrick Kinsella, questioned Madam Justice Elizabeth Bennett about her reference to Mr. Kinsella from the bench a few weeks ago. She explained to him her duty with regard to information that the case might need. She explained how she read in the paper that documents not mentioned in court were discovered in the Parliamentary Library (relating, I believe. to payments made by BC Rail to Mr. Kinsella). She pointed the article out to counsel.

She assured Mr. Sullivan she intended nothing more than to make the information known to counsel, and she apologized if her action has been misunderstood.

His argument against the application by Defence to see Kinsella records appeared at one point to be based upon the contention that Defence did not have the right to ask because the records were not relevant. Both Mr. McCullough and, by inference, Madam Justice Bennett suggested the argument was without merit because her ruling had made clear the terms of the relevance of third party records.

Outside the courtroom Mr. Sullivan suggested his argument for the rest of the time would be based largely on a contention that the inferences drawn by Defence counsel, based on materials they already have in their possession, are incorrect inferences, and so the records should remain private.

If the Kinsella forces have a bull-dozer with which to run over the Defence, it did not appear this morning - and does not promise to appear this afternoon.

"Shadow talk" in the hallways would be of as much interest to British Columbians, perhaps. It circled around the status of Madam Justice Elizabeth Bennett as continuing judge for the trail of Basi, Virk, and Basi.

Perhaps the substance of the matter can best be set out in points.

There are those who believe Madam Justice Bennett is "gone". At one point early this morning she said to Mr. Sullivan that he might like to take up a point in question with the trial judge (as if, perhaps, she does not intend to be trial judge).

Associate Chief Justice Patrick Dohm, as I said yesterday, appeared to talk out of both sides of his mouth. He would wait until she had made her decision on the motion by Defence that she stay. But he already has the person chosen to replace her. That he made quite clear.

As I said yesterday, Mr. Bolton stated that her staying or going is in her own power. If she decides the argument of the Defence for her staying is compelling and she decides to stay, she cannot be removed by someone else.

Shadow talk suggests she might want to be free of the case to pursue work as Appeals Court judge.

Shadow talk also wondered if her appointment is dependent upon taking up the new post within a certain time.

Defence, of course - for reasons I listed yesterday - wants her to remain. She has ploughed through mountains of material, mastered intricacies of the case, listened for hundreds of hours to discussion and argument, and is aware of arcane but important connections of forces in the matter.

Can a trial judge proceed without the kind of knowledge she has? Yesterday, Mr. Dohm said (with what I consider haughty irrelevance) that no one need worry because all the judges are well qualified to act - words to that effect. That argument proceeds on the assumption that once the pre-trial hearings are done, admissable evidence secured, and peculiarities ironed out or made clear - anyone can conduct the actual trial. Maybe. In theory.

There are other deeper and darker murmurings. Has Madam Justice Bennett been elevated to the Appeals Court to get her out of the way, to replace her with a judge who will protect Gordon Campbell interests? Her appointment is a federal appointment - but Gordon Campbell is closer - in many ways - to Stephen Harper than to the federal Liberals. Both men are dedicated to handing public wealth to private (often U.S.) owners. That is precisely what the "sale" of BC Rail was.

As I wrote yesterday, a change in judges cannot be seen as a simple act. Because the BC RAil Scandal trials are, perhaps, the most important corruption trials in British Columbia history any tampering with due process will be suspected by many.

Associate Chief Justice Mr. Patrick Dohm might have explained to British Columbians why transfer of Madam Justice Elizabeth Bennett is reasonable, at this time. But Mr. Dohm is not given to considering, I believe, that he has any obligation to British Columbians. He might have discussed the terms of her new appointment. But to do so would imply that British Columbians have a real meaning in court operation in B.C. I don't think such an idea ever enters Mr. Dohm's head.

Argument can hardly be made that she must be immediately removed from the most important corruption trial in British Columbia history to do work on inter-corporation arguments before the Appeals Court. So say nothing.

Indeed, no one suggested that Mr. Dohm probably should have appeared yesterday to hear Mr. Berardino's argument that Madam Justice Bennett cannot be in two places at once, and she should go now. And then, Mr. Dohm should - with his sharp and able tongue - have told Mr. Berardino that it is not a Special Crown Prosecutor's place to say where Madam Justice Bennett should be or should not be. (Mr. Dohm was fast on his feet snapping to Mr. McCullough that he doesn't write memos. Some of us think justice would be better served in Province if he took up the activity.)

No one is suggesting that Mr. Dohm should have said: "Madam Justice Bennett is not moving from this most serious matter. She is seized with it, and she is excellently informed about all its aspects. The work she would do on the Appeals Court that she cannot do in the meantime will be carried by others. This case, which goes to the very heart of our democracy and to the very heart of the responsibility demanded of the highest political actors in the Province must proceed, and it must proceed without any unnecessary changes or shifts."

No one suggested that is what should have happened yesterday. I am suggesting it is what should have happened. And I am suggesting that because it didn't happen, I am deeply uneasy about the good health of justice and the pursuit of justice in British Columbia.

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Comments:
I agree wholeheartedly with Robins bottom line. This whole thing smells of an interference of the greatest magnitude.
Great report Robin. And thanks to BC Mary for having the outlet for these things.
 
Robin, you are correct in your sage perceptions/analysis on what you have so sharply witnessed in BC Supreme Court. You are a wise Wizard Professor Mathews. Your essay is so instructive. Thank you.

You have seen through the smoke and mirrors to reality: there is a vulgar and pervasive POLITICIZATION OF OUR JUSTICE SYSTEM.

The deck is always shuffled/FIXED like a Vegas Dealer in Blackjack . . always to favour the 'House' at the expense of ethics and the public's best interests.

. . . a perpetual Ace up the Sleeve by the 'Circle's' Insiders to always use when TRUTH threatens to topple the chosen ones - a 'veil of protection' engraved on the halls of justice system will ALWAYS enshroud members of this special Club in danger.

For those of us who have seen these contortions we all attest to what really happens when high ranking 'officials and their "friends" have done really bad things. . . whatever it takes . . . WILL be done.

Shuffling & promoting Judges is a well practiced technique.

The General Public has NO inkling of how deep the collusion runs . . . events stranger than anything that most British Columbians could imagine - in fact, like whiplash, suddenly happen. One must experience it to fully grasp 'it'.

There is NO justice/accountability in BC Supreme Court/Appeal Court domains under such circumstances.

As in other prior political litigation, this 'exercise' in the BC Courts will NOT mete out justice - valuable information/documents YES.

REAL justice is found in the public domain with those facts/truth firmly in hand . . . a domain that cannot be controlled by the Club: The Court of Public Opinion.

It is here that the Emperors will find themselves and their entourage with no clothes. It's called DEMOCRACY.
 
" Yesterday, Mr. Dohm said (with what I consider haughty irrelevance) that no one need worry because all the judges are well qualified to act "

I assume Mr. Dohm means they are "well qualified to act" as in trained seals, to protect the interests of the Cabal, which has nothing to do with "Justice" and everything to do with GREED!

Unfortunately I cannot agree with secondlook regarding " REAL justice is found in the public domain with those facts/truth firmly in hand . . . a domain that cannot be controlled by the Club: The Court of Public Opinion. "

Unfortunately in British Columbia there is no public domain that isn't controlled by the highly paid and numerous minions of the Public Affairs Bureau and the less numerous and lower paid lackeys of CanWest. Only 7 or 8 individuals (according to a CanWest Expert) who go to the trouble to care about BC Rail and seek out actual "information" have any notion what this so-called government of Gordon Campbell is so far carrying out with great success, at great cost to normal British Columbians.
 
Koot . . . we are both on the same page.

You are right about 'Canned West' and the silly little Media Monitors paid at Taxpayers expense to TRY to control the message.

But please remember CanWest is now penny stock being controlled by creditors - on the brink of bankruptcy. It is not business as usual - leverage from the Aspers is almost nil.

Prediction: the sanitizing edict will be loosened as we speak.

I see signs already in a column written by Keith Baldrey in the North Shore News yesterday with a headline:

"Gordo may have some 'splainin' to do" (http://www2.canada.com/northshorenews/news/viewpoint/story.html?id=c6082095-f58c-4b1b-b6e7-6defd68a5339)

. . . and hear a 'whisper' of other issues simmering.

Campbell Govt. is not in a secure position on many fronts including the whopper lie about the deficit during the election.

There is much more to come.
---------------

'All truth passes through three stages.

First, it is ridiculed.

Second, it is violently opposed.

Third, it is accepted as being self-evident.'
~ Arthur Schopenhauer (1788 - 1860)
 
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secondlook, Koot:

Thanks for your thoughts, esp. the tip on Keith Baldrey's column but I had to larf ...

because ...

is this big political pundit only now beginning to realize that BC's premier is a bozo who got himself elected the first time by declaring he wouldn't sell BC Rail ... got himself re-elected in 2005 by another factual error about a BCTF strike that never happened because never planned, and who got his three-peat by promulgating a budget that couldn't happen?

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I always thought that Baldrey's coverage during the campaign was an effort to get hired by PAB if Canned Waste goes down. I don't think he's seen the light; just think the light that was being shone on him by Gordo et al has dimmed. Boo. Hoo.
 
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Clever deduction, 4:24,

especially after the president of the Press Gallery in Victoria, Canadian Press reporter Scott Sutherland, has just joined the B.C. Liberal government's public affairs bureau.

Amazing, isn't it?

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It's occurred to me that there's a sad comparison between Patrick Kinsella and Oscar Wilde, though Kinsella has none of Wilde's wit or, indeed, nerve. Wilde went to court to sue for the Marquess of Queensberry (Queensbury?) leaving him a note that accused him of being a "sodomite". Normally divorcing himself from that peculiar behavioural class known as a "British gentleman", Wilde chose to behave like one and took the Marquess to court for libel. The accusation being easily proven true, Wilde wound up in gaol (that's jail" to you modern-era colonials) and we as a reading public sere rewarded with De Profundis and The Ballad of Reading Goal ("Redding" for you colonials, I know some will think that's "reed-ing" but it's the location of the gaol....).

Doubtless to say, I don't think we can look forward to any memorable literary works from Kinsella. But what strikes me is the risk of suing for a defamation that is based in sufficient information and absence of information/clarity as to be believable, if not actually true (I'm adding that last bit so I don't get a nasty note from Mr. Sullivan).

Calling a spade a spade when it's you that's the the shovel has a long and unfortunate history. One supposes that arrogance and gall often combine to form outright stupidity.

Where mortals fear to tread....Wilde, despite his infamies, has earned his immortality (I'm still boggled by the movie production of Salome that airs from time to time...).

It must be difficult for the ultimate backroom boy to be confronted by his emergence in the limelight of scandal, among the politically infamous. But how many lawyers does it take to hold back the truth? King Canute tried, and so did the Little Dutch Boy....but the sea is an impossibly big force against any single human will or their petty desires to control what the Norse called domr ("doom"), sort of a mix of fate and reputation......

Sadly, we will be left from this sorry affair with mostly court records, the ocsaional speech in Hansard, countless blog postings and journalism. But not a single poem, or journal/confessio of mis-deeds in high literary form. This is one of the consequences of sending aspiring elites to university only to get training in commerce, marketing and public relations.....maybe if they'd read more actual culture in their university years, they'd have more moral compass than we have yet to see signs off. And some literary skill to make the fiasco all worthwhile.

I hope one of them surprises me with a brilliant political memoir once this is all done.....

I wish I had a pithy quote from Wilde to cap this off with. All I can think of from my own repertoire is "if you don't want people to say bad things about you, don't do bad things".
 
If I recall correctly Squirrel Cheeked BalderDash has on many occasions published a column that approaches reality and dares to question Big Gord. However I've also generally noticed that these columns are always quietly tucked away in papers like the North Shore News or Coquitlam Courier or whatever non-flagship publications allow him to pretend to be a "journalist."

It is disgusting to watch his smugness on GlowBall as he tries to simultaneously curry favor with the Aspers, Gordo and the Cabal, perform his BC liaR PR duties AND somehow appear to be a "journalist" too. I guess he thinks the "smugness" factor impresses and convinces folks and makes him seem more impotent!
 
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