Thursday, September 10, 2009

 

With constitutional authority to enact and administer their own criminal laws, each province could enact their own economical disclosure rules

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Go to former BC Supreme Court Justice Bouck's site HERE.

CRIMINAL LAW – DISCLOSURE – R. v. BASI, et al – PROVINCIAL TAXPAYERS’ BURDEN

1. Introduction
An article written by Mr. Les Leyne of Canwest Publishing on 19 May 2009, reveals once more how Canada’s criminal law disclosure system unnecessarily cost provincial taxpayers millions of dollars and create huge delays in administering criminal justice.
Canada’s 1867 Constitution divides the responsibility for legislating and administering the criminal law between the federal government in Ottawa and the ten provinces. Ottawa legislates and provincial taxpayers in each province pay the costs of administering Ottawa’s legislation.
This posting argues that each province should have the constitutional right to both legislate and administer its own criminal laws. This is what happens in all the 50 U.S. states and the six Australian states. If Canada did the same, the many federal legislative criminal law deficiencies that now exist would disappear. That would include the excessive costs arising from Canada’s uncodified disclosure rules.

2. The R. v. Basi, et al criminal trial – lawyers’ fees
A previous posting of 12 December 2008 on this site sets out the details of the case. On or about 28 December 2003, prosecutors charged the three defendants with various counts of fraud, breach of trust, etc. Their alleged misconduct arose out of the positions they held as provincial government employees.
Rather than have a provincially salaried prosecutor handle the case, the province appointed a lawyer in private practice called an independent prosecutor. Presumably, his terms of employment include a rate of pay far exceeding salaries paid to provincial government staff prosecutors. Rumours suggest he receives about $350 per hour plus slightly lesser amounts for his associates.
On top of that, government policy pays the legal fees of private lawyers hired by the defendants. Probably each defence counsel’s hourly rates are near to that of the independent prosecutor. The province may be able to recover those fees from the defendants if they are found guilty.
Today, the case seems no closer to trial because of the lengthy disclosure process. As is their duty, defence counsel must not leave any stone unturned. Both sides now await a decision of the Supreme Court of Canada. It may or may not clarify some of the disclosure issues.

3. Constitutional reform
One way of making Ottawa more sensitive to the cost of administering justice would be to give the federal government the constitutional authority of both enacting and administering Canada’s criminal laws. Then, it would have an interest in modernizing Canada’s criminal justice system since it would be paying the bills for the law’s inefficiencies and not provincial governments.
However, such a change would be wrong for at least two reasons. First, each province has different priorities in controlling crime. Centrally legislated criminal laws cannot take into account these diverse needs. Second, the federal government would have to build criminal courthouses throughout Canada and staff them with federal civil servants to assist judges in administering federal criminal laws.
A better answer is to give the provinces the constitutional authority to both enact and administer their own criminal laws. That is how it is done in other comparable federated nations such as the 50 U.S. states and the six Australian states.
Each province could then enact their own economical disclosure rules similar to those mentioned in my 18 April 2009 posting. While federal and provincial governments ignore these truths, provincial taxpayers are the victims of their inaction. Canadian governments continue to fiddle while provincial taxpayers’ money is burning.

Bottom line:
1. If we had the above constitutional changes and modern codified rules of disclosure, it is probable that the R. v. Basi et al trial would have been completed within about two years of its December 2003 filing.
2. That would have saved provincial taxpayers’ millions of dollars.
3. Please do not blame judges and lawyers for the present debacle. They do the best they can within the system given to them.

13 May 2009
Posted at 11:14 AM in Criminal Justice System
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Comments

Thanks! I appreciate it more than you know. Well, actually as one blogger to another I bet you know exactly how much I appreciate it. It’s a lonesome avocation.

LLC
Posted by: lucas law | May 15, 2009 at 07:36 PM


Perhaps you could just comment on why an "independent" prosecutor is used in this (or any) case and whether the province could have chosen to use its salaried prosecutors. Is the issue essentially one of perceived conflict-of-interest?

Reply: Usually the A.G. will empl[o]y an independent prosecutor if there is a prosecution against a government official creating a conflict of interest. Or, the Department may not have sufficient staff to prosecute the case. These are the only two reasons I can think of.

Posted by: Chris Budgell | May 17, 2009 at 02:30 PM


The repeated delays in HMTQ v. Basi Virk Basi have been very difficult for the interested public to bear.

Further, the delaying has the appearance of being politically motivated and, as such, has reflected poorly upon the B.C. justice system itself.

This being one of the most significant trials in British Columbia history, is there a remedy in law for such an agonizing impasse?

BC Mary
The Legislature Raids
http://bctrialofbasi-virk.blogspot.com/

Reply: Thank you for your message. As I recall, the parties argued a disclosure issue a month or so before the Supreme Court of Canada. It usually takes that court about six months to publish its reasons. Hope this helps.

John Bouck

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Comments:
Thank you Justice Bouck for explaining all this, as well as for your recommendations on reform of our judicial and criminal system. There's a few bits that give me pause to wonder, though, one of them being this:

If we had the above constitutional changes and modern codified rules of disclosure, it is probable that the R. v. Basi et al trial would have been completed within about two years of its December 2003 filing.

Well, that would have been nice, wouldn't it? But since during that two-year span the proceedings of that case were under a press ban, one supposes that the whole affair could have been disposed of without anyone having the right to say anything about it. Only if press bans are made illegal, or at least more carefully restricted in their application (especially in the cases relating to political corruption) would reforms enabling "fast-tracking" of disclosure and trials have any real justice to them.

As long as politicians can hide behind press bans, "third party" claims, so-called "privilege" and the right to appoint prosecutors and judges in charge of their cases, we will not have a truly adequate justice system for dealing with politicians who step outside their legal and constitutional bounds.

In addition to the election-by-judges proposal you've fielded, could it be that the ultimate responsibility for the courts might be to place them under the aegis of the Lieutenants-Governor? Still an appointed critter, but one more beholden to the Constitution than a mere FPTP-elected politico-crat and also answerable to His/Her Excellency the G-G, and to HMTQ no less.

Political interference, and the ability to interfere politically, must be removed from our system. With a chainsaw if necessary.
 
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[THE FOLLOWING ANONYMOUS COMMENT IS CENSORED BECAUSE IT DISCUSSES A SPECIFIC CASE IN UNFLATTERING, POSSIBLY LIBELOUS TERMS. I CAN'T BE EXPECTED TO KNOW THE CASE, THEREFORE I WON'T PUBLISH THIS COMMENT WHICH APPEARS TO REFLECT AN EXTREME BIAS.

IN FACT, WHILE THIS WHOLE COMMENT HAS ELEMENTS OF INSIGHT WHICH WOULD POSSIBLY BE HELPFUL TO US, THE ANONYMOUS COMMENT IS TROUBLING BECAUSE IT'S TOLD IN SUCH FIERCELY ANTAGONISTIC TERMS. I SAY TO "ANONYMOUS" THAT THIS FORM OF VERBAL ASSAULT IS OFF-PUTTING IN ITSELF. OFF-PUTTING AND UNNECESSARY.

JUST SO YOU KNOW: THIS KIND OF COMMENT WILL BE DELETED. BELOW, IS ONLY WHAT'S LEFT AFTER THE DELETIONS. - BC MARY]
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Bouck is well aware that judges are the architects of the Supreme Court rules, that work to defeat justice.

Again: 60,000 civil filings per year in the SCBC; 25,000 by persons denied representation under the parasitic, self-regulation system of the Law Society; and ONLY 495 trials. Why?

Our robed savages do anything in and outside of their power to keep their short work day. And sandbagging injury redress claims is their main tool at hand.

I challenge any reader to sit in a chamber run by a master (order enforcer/shot-gun rider for the chief judge), and then tell me if justice is either facilitated or obstructed in this province.

Again, only 1 cop has been successfully sued for false arrest in 30 years, in face of numerous disclosures of brazen deceit by same.

Bouck himself ... [AND FROM HERE, ALL HAS BEEN DELETED.]
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