Wednesday, August 19, 2009
Madam Justice Bennett had another option for staying on the BC Rail case
The section of the code (669.2) that Bennett cited is normally used when a judge dies or is otherwise unable to continue sitting on a case.
Basically it says that as long as 'no evidence has been called' another judge of the same jurisdiction is allowed to hear and decide the case - including calling adjournments.
It's usually used in the case of a judge who dies while on the job ... the key here is that 'evidence has not actually been called' which may be why she was so careful to distinguish the 'testimony' of that one witness, John Preissell*, that she has heard.
I think there's an interesting point about all this which hasn't been brought up by the lawyers or the media...if the trial had actually begun then I don't see how Bennett could have avoided staying on...There's another section included in 669...
JURISDICTION WHEN APPOINTMENT TO ANOTHER COURT:
669.3 Where a court composed of a judge and jury, a judge or a provincial court judge is conducting a trial and the judge or provincial court judge is appointed to another court, he or she continues to have jurisdiction in respect of the trial until its completion. 1994, c.44, s. 66.
So it seems that, despite Madam Justice Bennett's protestations, she could have decided that the one witness HAD presented evidence and she could have - given her continuing jurisdiction - decided to stay with the case.
There's at the very least an argument to be made that she could (perhaps should) have carried on....the fact she even 'mentioned' that bit about hearing a witness indicates that it was at least on her mind and needed to be addressed.
There may be other cases (which she may have cited in court) that clear up the question and of course we won't know about that until she publishes her written reasons.
*John Preissell. Kevin McCullough, defence lawyer for Dave Basi, made sustained arguments that the RCMP has "tailored" its investigation in order to steer it away from elected politicians and towards Basi and Virk.
Because this may be pivotal in the Basi Virk Basi case, let's turn to Bill Tieleman's account of the surprise witness, John Preissell, who made an unexpected telephone call to McCullough on Sunday 29 April. Bill writes in The Tyee: Preissell, it turns out, had contacted RCMP in January 2005 to offer information he had about the role of provincial lobbyist Brian Kieran in the case. And after speaking to McCullough, Preissell made a surprise appearance in the courtroom Monday to give evidence.
Preissell told the court in sworn testimony as the case's unscheduled and first witness that the RCMP "didn't seem too interested" when he contacted them about Kieran, who is one of the Crown's key witnesses against the defendants.
McCullough found that amazing because first of all, special prosecutor Bill Berardino had never disclosed the Preissell tip to the defence.
And second, because Preissell testified under oath that Kieran had threatened him over a planned public campaign against Gary Collins about Insurance Corporation of B.C. issues. Collins was minister responsible then and Preissell at that time was owner of an auto body and glass repair shop having "red tape" trouble with ICBC.
"The bottom line was he [Kieran] threatened me repeatedly and said if we didn't back off of Mr. Collins we wouldn't get what we wanted," Preissell alleged. "I was actually afraid, I was very afraid."
Preissell said that at the time of the threat in the spring of 2003 he was a member of a group of the Auto Glass Survival Coalition and that another industry group he had been involved with had hired Kieran as a lobbyist.
"Kieran offered to work for the Coalition for free to embarrass ICBC but not to embarrass the minister of finance," Preissell testified.
When I contacted Kieran and read him Preissell's statement he declined comment. "As per the past three years, I've been advised by my attorney that I should wait until I'm in court to say my piece," said Kieran, a longtime Victoria political columnist for The Province newspaper before becoming a lobbyist.
Now of course there may be other precedents to consider and I'll withhold final judgment until her reasons are published in written form, but, on the face of it, I think one may well conclude that Madame Justice Bennett has taken the easy way out of this one...
And that's too bad...clearly she could have chosen to stay and see this thing through without it having any real impact on her career as a justice of the BC Court of Appeal.
Can this have been ambition, lack of interest or just an astute calculation about what the final outcome of this case is going to be.
Madame Justice Bennett seems to think that her action will not affect the accused's search for justice and a fair trial.
I wish I were as confident about the state of the public interest.
Bennett did refer to several other cases where the judge had a choice to make in staying on or leaving, and used these as reference in her address to the court. She did also speak to several subsections of this section of the criminal code,although to be exact at this point is impossible.
I do recall one of her considerations for leaving,was that to stay on Basi-Virk, and have her replaced in her new appointment for such an extended period of time would not only be unfair to the judges filling in for her, but also those waiting for trials and the delays would be inevitable.
If it does go to appeal, I'm quite sure she won't be as "nice" as she is trying to be now, both sides know it. I'm quite sure the prosecution doesn't want to see her again...other than across a dinner table maybe...the defense, who knows?
For the legal beagles out there....
Is there any leverage here for the defence in making the case that Mr. Preissell did, in fact, present evidence?
(and another darned fine piece of analysis here at Mary's place that we get from nowhere else! - thanks very much to the guest editor)
only the truly naive would think she would stay on to watch helplessly as the defense steers this thing through endless courses of sub trails which the court system allows for while failing to achieve any conclusion as the trajectory has estalished itself thus far. WHY WOULD ANYONE WANT THAT LEGACY?
Remember, the Province is paying the legal bills of Basi, and if found guilty, will have to repay the costs, which we of course can only speculate would be an amount that would force an assignment in bankruptcy, so again, the lawyers are the only winners, and the taxpayer shafted again.
It must be the weather or something, but I have such an urge to get my hands on that long-gun which delivers a boxing glove punch, right smack BANGo on the nose of any smart aleck who thinks that because HE has developed a half-baked opinion, everybody else is suddenly made of inferior stuff ...
and we are doomed,
all is lost,
there is no hope,
no hope whatever,
and we're all gonna die
And please, the province is almost bust as it is. Today they announce gambling limits online of $9,999 becuase there are those offshore sites that do just that. THis will result in many hardships and despair as people are robbed by the province based on a flawed argument that offshore sites are doing this and if people must get robbed the provincial govt should be in on the crime.
WHats next? Selling crack cocaine and herion to undermine organised crime.
You heard it here first.
Have an opinion. Have any opinion you wish. That doesn't mean fighting with any other point of view.
And remember, this site is about BC Rail ... not about gambling or drug trafficking.
I have no issue with anyones' opinion; you reminded me that this isnt about gambling or drug trafficing, even after your comment that we are all going to die bankrupt. As you are aware, the case stemmed from drug trafficing, the goverment facing shortfalls raised betting limits; the govts argument for raising the betting limits will encourage gambling/misery in BC households just becuase people can get this from offshore sites!!
Why not just block those offshore gambling sites?
Hmmm. Never thought of that. How long do we have to retain electronic informaiton for again?
Just becuase you wish for something and want that thing to happen or be true really really badly doesnt make it so. And no, I am not saying I agree. I wish it werent so either. I really do. This thing is a mess.
You are misreading what's been said ...
so in simpler terms:
you have every right to form an opinion,
that doesn't automatically mean that everybody else doesn't have the same right. OK?
We're all in this mess together ... and I hope we can find our way out of it together, too..
The first line is true for everyone, though I feel some people need to get busy and get it done.
The bankrupt part is irrelevant as I haven't heard of a canteen in Heaven or Hell.
Note how anon casually drops non-truths into the discussion with:
"only the truly naive would think she would stay on to watch helplessly as the defense steers this thing through endless courses of sub trails which the court system allows for while failing to achieve any conclusion as the trajectory has estalished itself thus far. WHY WOULD ANYONE WANT THAT LEGACY?"
It takes a vivid imagination to accuse the defense of the interminable delays in this trial, pre-trial or farce. It seems as if everyone in the courtroom, Copley, Stuart Chase, Wild Bill Berardino has the interests of the Campbell government/cabinet in mind rather than the people of BC or any interest in truth OR justice.
While it is difficult to think of a replacement judge that would be an improvment over Ms. Bennett, and many who could be worse - she herself has contributed greatly to the inexusable delays that have this still before the courts and not even at trial over five years after the raids themselves. Perhaps if Ms. Bennett had EVER held the RCMP, cabinet and others ACOUNTABLE for failure to comply with disclosure orders and a few empty suits were cooling their heels in the hoosegow for contempt of court from time to time we would have heard closing arguments in this case already, not to mention a lot of testimony!
Maybe I should start a betting pool about whether or not the Campbelloids can delay this thing through yet another election, by which time there won't be enough left of BC to care about.
Thanks to the PABlum brigade and the Canned Waste/Glow Ball crew, getting people to pay attention or care about this issue is kind of like trying to teach well fed cattle how to do ballet. The same cows, starving, might learn to perform a beautiful rendition of Swan Lake for some grain or alfalfa.
kootcoot has cut right to the chase,he is correct in his analysis.I suspect, they had no choice but to move her,Shes either fearful or out of her league, regardless, if she would have stayed on, this case would have ended up being tried in an old folks home.
Either way, we need someone to come in and take charge of this monster. I have my doubts that will happen.
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