Sunday, August 23, 2009
BC Rail: There is no question in my mind that she should not be leaving. It is insane, unnecessary, a disgrace, says Robin Mathews
British Columbia: The BC Rail Scandal. Crime in high places. An on-going, semi-public rape of democratic institutions. Part One.
August 23, 2009
The B.C. RCMP, the Crown, and the cabinet of Gordon Campbell believe there has been crime in high places concerning the “sale” of BC Rail. Fourteen criminal charges of fraud, breach of trust, and money laundering rest against two top cabinet aides and a government communications officer – the now internationally famous three. Dave Basi, Bobby Virk, and Aneal Basi.
They are accused of leaking information about the sale of BC Rail to Pilothouse Communications, lobbyist for alleged competitor of CN Rail, Omnitrax. The men’s actions allegedly involved gifts, bribery, money laundering, in the years between 2001 and 2004, years of the preparation for and final dumping of BC Rail, and the completed RCMP investigations into “wrong-doing”.
Very early huge cracks in the case yawned as Defence counsel set to preparing its case. The sale of BC Rail seemed a faked operation, to start. CPR, an early bidder, publicly claimed a soiled process, and withdrew. Others, too, detected the omnipresence of and special treatment accorded CN Rail.
Large numbers of people, it is alleged, constructed a false case for the sale of BC Rail. Some, it is claimed, manipulated the books to declare BC Rail a money loser. Controlling power in cabinet, evidence suggests, picked CN as winner long before the bidding/sale process had even begun, suggesting the whole bidding process was a manipulated sham. The “sale”, it is said, was misrepresented as a “partnership”. Cabinet offices apparently engaged in a wholesale public boondoggle as part of a large, concerted process architected to pass the provincially-owned BC Rail to the (now Texas headquartered) CN Rail for something less than a song.
Almost immediately after the now-famous search warrant “raids” (Dec. 28, 2003) on offices located in the legislature from which stores of files, hard drives, and other material were taken (and before they could be examined) police announced that no elected officials were or would be under investigation (?).
All wrong-doing in the matter, the public was assured, was located in the three accused: Basi, Virk, and Basi.
In more than three years of pre-trial hearings (still proceeding) the large social ills named at the beginning of this piece were first hinted at, and now they scream from the courtroom walls. A hardening question grows in the minds of many serious observers. “Are top names in B.C. criminally guilty?” “Can they block and cover in court forever?” So far unlimited pools of public money spent on the case seem to make “block and cover” possible.
Two vitally related matters are involved. They reveal much: (1) the selection of a new “trial judge” for the Basi, Virk, and Basi case. (2) The relation of the BC Rail Scandal to the normal (corrupt) policies of the Gordon Campbell group - its wholesale betrayal of British Columbians. We deal with (1), Part One here.
The replacing of the Honourable Madam Justice Elizabeth Bennett by another judge (whoever) in the matter of the accusations against Basi, Virk, and Basi is – to many reasonable people – unnecessary, insane, and a disgrace.
The process by which the change has come about is not only unnecessary and insane. It is also darkly suspicious. The insanity of the move suggests the staggering insensitivity to public wishes increasingly characteristic of B.C. Higher Court operations. It suggests, moreover, forces at work almost wholly uninterested in justice being done – and being seen to be done. It suggests more – none of it good.
The BC Rail Scandal and the criminal accusations arising out of it join an expanding circle of suspicion falling upon some of the most highly placed people in political life in B.C. The result of the combination is the most important political scandal and public criminal trial in British Columbia history. It is the most important, first, because it openly and publicly concerns accusations against top working aides to major cabinet ministers.
It is most important, in addition, because it locates those accusations within a scandalous and probably fraudulent sell-off of a major British Columbia asset – BC Rail – owned by the people of British Columbia. That allegedly fraudulent sale (parts of it still secret five years after the “sale”) fits a pattern of alleged breaches of trust by the Gordon Campbell government that is of gigantic proportions.
Madam Justice Elizabeth Bennett has presided over the pre-trial hearings for more than three years - hearing Defence applications, listening to Crown arguments and explanations for delay, living the real, unfolding investigation into wrong-doing She has pored over endless documents and has become familiar with almost all aspects of the case. Not at all outstanding in her role, in my estimation, she is, however, now best able to proceed to trial – and she should do so.
To my mind – with respect – she has not been outstanding for clear and visible reasons. (1) She has permitted delay – and even seeming obstruction – by an RCMP increasingly under suspicion of political bias and procedural incompetence in B.C.
She has (2) suffered (and supported) a system far, far short of what may be termed a reasonably “open court” process. In fact, she has done almost nothing to assure availability of material on public record to members of the public.
The enormity of the probable malefactions in the case and their possible location at the highest levels of government made it absolutely essential that she do everything in her power to assure a constant flow of information from the court to the people of B.C. She has done, as I see the matter, almost nothing.
Her own utterances in court, in addition, (3) are often not clearly spoken, nor are the utterances of many others who appear before her. Despite complaints made to her directly, she has done nothing in more than three years to improve the simple matter of clear utterance by providing an effective speaker system in the court. Her reaction on this matter alone has been puzzling, almost as if she has almost open contempt for the public – which, ultimately, she serves.
In a case carrying the huge importance of this one, every day of hearing [public occasions in “open” court], should be available in printed transcript by the next morning, at the very least. Instead, ANY request to Justice Bennett for information on public record has usually led into a tangle and a labyrinth which constitute a disgrace to the legal system in Canada. Madam Justice Elizabeth Bennett has supported that punitive and repressive system without let-up.
She has, too, in my judgement, (4) “catered” to the wishes of the Special Crown Prosecutor, failing, consistently, to react to delay, to his withholding of essential materials, even to - what appear to me to be – manipulations on his part.
William Berardino is alleged to have been, at one time, in some kind of business relation with Geoff Plant, the Attorney General at the time of Berardino’s appointment as Special Crown Prosecutor. That category (SCP) was created to assure the complete objectivity and impartiality of Crown prosecutors in cases connecting to government officials.
If Mr. Berardino did have the connection alleged, he cannot – without suspicion – fill the role he occupies. I wrote to Madam Justice Bennett asking what review process exists generally of such appointments and what review the presiding judge conducts of Special Crown Prosecutorial appointments. She would not even acknowledge – or have acknowledged – my letter to her.
Her apparent arrogance in that matter describes, I think, the reason she must be described as something less than outstanding in her role as presiding judge. Overall, as I have observed her years presiding at the most important criminal trial in B.C. history – involving the very legitimacy of the government of the province - I cannot say she has, in my judgement, risen to the demands made upon her by the facts of the case.
At this moment she has just refused a second Defence request to subpoena government employees who are attempting to recover computer records, apparently (and alarmingly) erased at the behest of the Campbell cabinet. When the dramatic announcement was first made of the destruction of probably key e-mail records, she should have acted at once to have ALL those involved immediately cross-examined, I believe. For the most obvious of reasons….
Experts across the country, apparently, were astonished at the erasure of records. In the light of conditions in B.C. especially, speedy cross-examination was highly desirable. Her attitude appears to be and to have been that the situation is unfortunate but in no way remarkable. And so no special action is required.
On the second occasion when Defence asked to examine people involved in the apparent recovery attempt, Madam Justice Bennett (August 21) said that the civil servants have been extremely thorough and were working hard to comply with court orders. To cross-examine them, she said, would be “a complete waste of time”.
With the greatest respect, I beg to differ.
At this stage in the more than three year game of “block and cover” with the Gordon Campbell forces, her ingenuousness is very difficult to take seriously.
Her replacement by a new “trial judge” is freighted with suspicion. How is it possible, observers ask, that the court system could pluck – in the midst of the most important public criminal trial in B.C. history – the judge from the case on the pretext that she has been appointed to and is needed in the Appeal Court division in the same building? How is it possible that – if deserving promotion – she could be appointed to the Appeal Court without the clear statement that she must first complete the case involving Basi, Virk, and Basi?
Does anyone in British Columbia fool himself or herself enough to believe that Madam Justice Elizabeth Bennett must go, without much delay, to the Appeal Court?
Her removal is clouded by Defence lawyer Michael Bolton’s statement – more than once – that a decision to move from the case rested wholly with Justice Bennett. Is is clouded by sections in the code (669.2, 669.3) which suggest AN OBLIGATION (as I read them) to complete a trial. It is clouded, further, by Madam Justice Bennett’s action in taking testimony from witness John Preissel during pre-trial hearings, suggesting she has engaged in “trial activity” already.
Public reports are that she has “recused herself” (a bastard use of the word “recuse”) – has, herself, stepped down. She has not, in the correct use of the word “recuse”, left the case because “unqualified” to act. She has apparently stepped aside for her own pleasure, feeling no responsibility in the matter to law, to justice, or to the people of British Columbia.
Even that reading, however, is clouded. For we semi-permanent sitters in her court remember perfectly the strange, uncomfortable appearance of Associate Chief Justice Patrick Dohm to “entertain” a motion from Special Crown Prosecutor William Berardino to have Madam Justice Elizabeth Bennett removed from the case before trial. (There was, apparently, a motion by Defence counsel that she stay.)
The appearance of Mr. Dohm was – as I judged it – embarrassing buffoonery. If Madam Justice Bennett was free to choose whether to stay or go, what was Associate Chief Justice Patrick Dohm doing in the court, swaggering and affecting power?
Asked by Mr. Dohm about his motion to have Madam Justice Bennett removed, Mr. Berardino gave two reasons of embarrassing irrelevance. When he said that Madam Justice Elizabeth Bennett couldn’t be in two places at once, Mr. Dohm fell upon that vapid statement as if it were a major and relevant insight. Mr. Dohm was quieter when Mr. Berardino seemed to suggest, secondly, that the whole pre-trial hearings process had been (to his dismay) inadequate. An astonishing claim.
That was a statement of such bold effrontery that Defence could not remain silent. Kevin McCullough was on his feet to describe the quality, as he saw it, of pre-trial inadequacy (almost all on the shoulders of William Berardino).
Seeing (it seemed to me) that a hurricane list of Berardino inadequacies was about to fall into the record, Mr. Dohm stopped all discourse. He had accidentally, it seemed to me, opened the floodgates. But he closed them as fast as he could. Not, however, before observers in the gallery were witness to what seemed to me to be a transparent piece of chicanery.
Mr. Dohm announced that he would be back – to report the newly appointed judge and apparently to tuck Madam Justice Bennett into a steamer trunk for delivery to the Appeal Court.
Associate Chief Justice Patrick Dohm has never returned….
The little piece of amateur theatre we were subjected to on that day a few months ago opens yawning canyons of uncertainty. Is Associate Chief Justice Patrick Dohm working, out of bias, for a party in the BC Rail Scandal? Did he and Mr. Berardino work to put pressure on Madam Justice Elizabeth Bennett to leave the Basi, Virk, and Basi matter? Why did the Special Crown Prosecutor (who is concerned above all with a fair trial) want Madam Justice Bennett removed? Why did Mr. Dohm choose to posture and parade in that courtroom? Why did he say he would be back? Did he not know the law, or did he believe he was above it?
Has Madam Justice Elizabeth Bennett felt extreme pressure to leave the Basi, Virk, and Basi matter? Was the appearance of Associate Chief Justice Patrick Dohm in her courtroom the tip of the iceberg of pressure upon her to leave? His words in the courtroom led most there to understand, I believe, that he was announcing she would leave the case, as a decision made beyond her own powers.
There is no question in my mind that she should not be leaving. There is no question in my mind that her decision to go – I say this with the greatest respect – reveals the height of judicial irresponsibility.
Her leaving not only scrambles the continuity of the most important public criminal trial in BC history. It also adds hugely to the cost. Casually, apparently, Madam Justice Bennett instructed Crown and Defence counsel “to prepare summaries of what has taken place and their positions for the incoming judge to help him or her get up to speed”. (Ian Mulgrew, Vanc Sun, Aug 18 09 A4)
“… get up to speed”.
At taxpayers’ expense Crown and Defence counsel must write impossible “summaries” over what must be days and days of high-cost (unnecessary) work. And more will be demanded of them, for the replacement - Madam Justice Anne Mackenzie - may not soon, or ever, “get up to speed”.
That, too, may be part of a plan in a province rife with corruption where the Higher Courts are, I suggest, in coma.
In the highly charged atmosphere surrounding the Basi, Virk, and Basi case the presiding judge, I say – alone richly familiar with the highly complex matter – cannot leave without commanding reason. And there is no commanding reason. Madam Justice Elizabeth Bennett affects to be making a change of no special significance. If she really believes that, then she is signalling – at best – the triviality of her understanding of law and the courts. Or she is masking a piece of manipulation over which she has, in fact, no power.
If that last is the case, the replacing of Madam Justice Elizabeth Bennett is all of a piece with the ever-burgeoning breakdown of law, order, and democratic institutions in British Columbia.
[Part Two to come: The BC Rail Scandal in the pattern of Campbell government sell-out of BC wealth.]
For: Vive le Canada.
I certainly agree with you, 12:00 ... we are very fortunate to receive the kind of attention Robin gives to this trial.
Robin brings years of special experience to support his determination to get things straight.
An excellent group is forming around him, too, determined that no hearings will go unreported. They have come up with several key elements (Kinsella dates) in the past few days which were missed by the Big Media ... they hope to make sure that there's always at least one Citizen Journalist in the public gallery for future BC Rail hearings.
I must ask you: when you say "shameful province" etc., I wonder if you separate the provincial government apparatus (on the one hand) from the beautiful land of lakes, rivers, mountains, forests, and seascapes (on the other hand)? I do. And that (the 2nd one) is what I think of, every day.
What's shameful is the destructive power in the hands of the government apparatus ... it's like a nonstop game of whack-a-mole.
What I will remember Justice Bennett for is her equivocation on these matters, even more than her tolerance of the delays and games by the Special Prosecutor, and his ongoing efforts to blame the Prosecution for having to deal with unravelling the materials he himself worked at keeping unavailable.
Justice Mackenzie promises to deliver a tatchet job. A drug-case judge, it seems likely she will zero in on the defendants and find ways to exclude all the extraneous-to-this-case wrongdoing...no matter how much more serious all that wrongdoing happens to be.
Whether for ennui, expediency or political pressure, even coercion, Justice Bennett is gone and won't be back; whether or not she would be of any use in a Court of Appeals review of whatever result to this case is questionable; she has been ineffective as a deliverer of justice and enforcer of the public in the case so far, why expect any different in her new higher appointment?
When the histories of this era of mis-rule are finally written, in a hopefully open and free society with an updated justice and political system, she will not be looked on kindly; either by reason of being coopted, coerced, or simply uninterested and disinterested in real justice and real democracy.
Mary, if this case should "fail" in the courts as I believe it has been intended to do from the very beginning...do we have a recourse to the Supreme Court of Canada? Or is the BC Court of Appeal the last stop for us?
How do we make the judges understand that they're being watched, and judged as well? I believe we absolutely must change the system to elected judges, so as to circumvent this type of thing from ever happening again. Perhaps if they realize they answer directly to us for their pay - they may be a little more inclined to stop the nonsense, and apply the laws that are already on the books. In which case this trial would likely already be over, and the trials that must surely follow it be well under way.
The corruption is now so rampant and overt, they aren't even trying to cover up their lies, and manipulations. I for one consider this whole BVB trial and it's seemingly constant mishandling to be a direct and uncalled for insult, not only to me - but to all British Columbians. It's time to clean the nests of vipers from our highest halls, whether that be the Legislature, the Courts, or the RCMP. It's time for us to shine a light so brightly that the world can't ignore it - time to take this right out of the country if we have to!
How did this province go down so far, so fast?
I certainly share your concerns for this province,
but I just can't see where adding politics would improve the situation.
If Elizabeth Bennett or Anne MacKenzie came knocking on our doors pitching their case, or collecting campaign funds, would that bring peace and justice to the courtrooms?
Wouldn't they be even more threatened by the bagmen, the handlers, the vested interests (reverse order)?
I dunno. I just dunno.
Let's ask Robin.
Nice to see the Big Media beginning to pay attention.
Our own Citizen Journalists say that the Public Gallery had many more guests attending last week's hearings, and some important clues came out of that.
The Big Guys don't always catch every detail ... did you know that? But our guys caught 2 important details last week which might otherwise have just been left blowin' in the wind.
It is not just coincidence that this HST thing suddenly appeared after our intrepid Judge was appointed to the Appeals Court.??
This deal was made because the fire was getting too hot for our conniving Premier and Scary Stevie knew it, thus a deal was cut to appoint Justice Bennett to the higher court in return for selling out the Citizens of BC and their right to tax at source.
Bennett was getting too close to being forced to make some very unsavory decisions such as charging the Premier and his sleazy help with obstruction of justice and what ever else re the lost emails.
I totally agree with Robins assessment of our Judge Bennett. The second stringer that will be brought in too bury this travesty will carry it out another three or four years and we all know what will happen after all the crap has been flushed--- a mistrial will be declared because of the passage of time and because the people of BC are don't know, don't care, or don't have the balls to carry out some civil disobedience and drag these bums out of the Legislature and tar and feather them,
...wonder how long until the Gov't claims Sub Judice on all aspects of its operation,refusing to answer anyone about anything because someone in court says "BC Government" ?
I sincerely wish I could tell you that ... but I think, for a while yet, BC is on our own.
My observation is that many court types seem as snotty as they come, nothing new there...
About the hushed oratory in the court is this just one persons perception or can the other citizen journo's support Robin on this?
And Madam Justice Bennett has the unique and valuable advantage of having been immersed in every detail of the BCRail Case for 3-1/2 years and NOBODY can match that ...
so I really don't see what's so difficult to understand there.
On the hushed tones in court, can you comment on that from your perspective and attendance at the hearings? I'm just curious if others are experiencing the same thing?
A kangaroo court or kangaroo trial, sometimes likened to a drumhead court-martial, refers to a sham legal proceeding or court. The colloquial phrase "kangaroo court" is used to describe judicial proceedings that, the speaker feels, deny due process rights in the name of expediency. Such rights include the right to summon witnesses, the right of cross-examination, the right not to incriminate oneself, the right not to be tried on secret evidence, the right to control one's own defense, the right to exclude evidence that is improperly obtained, irrelevant or inherently inadmissible, e.g., hearsay, the right to exclude judges or jurors on the grounds of partiality or conflict of interest, and the right of appeal. The outcome of a trial by "kangaroo court" is essentially determined in advance, usually for the purpose of providing a conviction, either by going through the motions of manipulated procedure or by allowing no defense at all.
"Usually", but not this time, due motions of manipulated procedure, there will be no convictions.
If I am wrong, please correct me