Wednesday, August 05, 2009

 

Robin Mathews: The End of Democracy ...

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Here's an excerpt from Robin Mathews' full-length column in which he puts B.C. into global perspective. His full column is HERE.

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The End Of Democracy And The End Of ... The World
Robin Mathews

... The RCMP hand in the BC Rail Scandal is so black the force seems more and more like a personal bodyguard force for Gordon Campbell, leader of the corrupt sale of BC Rail and of the Private Corporation giveaway of all B.C. publicly-owned wealth.

Lawyer for the Campbell cabinet just reported that ALL e-mails exchanged by all relevant cabinet members and offices between 2001 and 2004 – relating to the BC Rail Scandal – have disappeared, are “not recoverable”. (Despite laws demanding retention of materials for at least seven years, and more.)

That claim is based upon two affidavits signed by civil servant information control officers.

Defence counsel expressed shock at the information. I believe it is a ploy by the Gordon Campbell forces to derail the disclosure process before it entangles them in revelations of serious, criminal wrong-doing. The announcement, I believe, should have galvanized the court into action.

Madam Justice Elizabeth Bennett didn’t show the slightest alarm. She didn’t express surprise. She didn’t order the appearance of the two civil servants and their minister to face examination by Defence, Prosecution, and herself. With unalarmed casualness, she suggested the matter be handed on from pre-trial hearings to the trial judge. Her abdication of responsibility, I believe, is major and grossly unacceptable. It reveals, perhaps, that any attempt to achieve democratic accountability of private corporate controlled government in the courts of British Columbia will be met with a judicial stone wall. Justice, in British Columbia, we are being told, must not be done. And we are being told in a casual, off-hand way intended, I believe, to mask gross impropriety ...

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Note: On August 17, Madam Justice Bennett is expected to make some critical rulings on these matters as well as her decision on whether or not she will continue as presiding judge in the Basi Virk / BC Rail Case. - BC Mary.

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Comments:
I don't know Robin, at trial I'm sure they will get to this...

Providing that the accused, don't win their opening motions, if any, for dismissal, possibly due to unreasonable delay. Also SCC still needs to rule on deep throat, that could also end up seeing Crown asking for a stay. I'm thinking SCC will rule in favour of the accused though?

I hope it will go to trial, imagine the possibility of the accused testyfying on their own behalf! Imagine the testimony of others! Holy smokes we could actually find out how our railway was sold.

Madame Justice Bennett, will be on to other things soon and we will find out who the trial judge will be. This pre-trial has been frustratingly drawn out but the trial could be well worth waiting for.
 
bring on the trial, yes! bring it on!!
 
Mary take a look

SCC decision,relates closely to BC case.
Date: 20090730

Jason Chester Bjelland

Appellant

and

Her Majesty The Queen

Respondent

At trial, the accused was acquitted. The Court of Appeal, in a majority decision, set aside the acquittal and ordered a new trial, finding that the trial judge committed a reviewable error by failing to consider whether a less severe remedy than exclusion of evidence could have cured the prejudice to the accused

1] By reason of the Crown’s failure to disclose information in a timely way, the Crown breached the appellant’s right to make full answer and defence guaranteed by s. 7 of the Canadian Charter of Rights and Freedoms. The issue in this appeal as of right is whether the trial judge misdirected himself by ordering the exclusion of the late disclosed evidence as a remedy under s. 24(1) of the Charter.

2] The majority in the Court of Appeal found that the trial judge committed a reviewable error by failing to consider whether a less severe remedy than exclusion of evidence could cure the prejudice to the appellant by the late disclosure while still preserving the integrity of the justice system (2007 ABCA 425, 83 Alta. L.R. (4th) 4, at para. 30).

3] I agree with the result of the majority in the Court of Appeal. In my view, the trial judge committed a reviewable error by failing to consider whether the prejudice to the appellant could be remedied without excluding the evidence and the resulting distortion of the truth-seeking function of the criminal trial process. Under s. 24(1), where the evidence was obtained in conformity with the Charter, its exclusion is only available as a remedy where its admission would result in an unfair trial or would otherwise undermine the integrity of the justice system. In this case, the prejudice to the appellant’s right to make full answer and defence could be remedied through an adjournment and disclosure order and there was nothing that otherwise compromised the fairness of the trial process or the integrity of the justice system.

#7 "invited the appellant to bring an O’Connor application for access to this information"

37] In the present case, the Crown provided the appellant with disclosure, albeit late. In light of the fact that disclosure was ultimately provided to the appellant, the appellant’s s. 7 right to make full answer and defence was not infringed by his inability to cross-examine the potential Crown witnesses at a preliminary hearing. The appellant was provided with a transcript of a videotaped KGB statement of one accomplice, as well as an agreed statement of facts that formed the basis for a guilty plea and sentencing of the other accomplice. This material provided the appellant with sufficient disclosure of the Crown’s case against him. The appellant could make full answer and defence as guaranteed by s. 7 of the Charter without the need to cross-examine these witnesses at a preliminary inquiry. The prejudice resulting to the appellant from this late Crown disclosure would therefore have been cured by an adjournment to provide the appellant with an opportunity to consider this new evidence against him.

38] Unlike the exclusion of the impugned evidence ordered by the trial judge, an adjournment would have preserved society’s interest in a fair trial while still curing the prejudice to the accused. Had he properly directed himself, this should have been the remedy ordered.

read further
http://scc.lexum.umontreal.ca/en/2009/2009scc38/2009scc38.html

EM
 
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