Monday, December 14, 2009

 

Basi Virk: Courtroom 54, Dec. 14, 2009

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By Robin Mathews

In the afternoon session, ten lawyers sat in courtroom 54, and five observers sat in the gallery to witness a sorry spectacle. It was one that bodes more sorrow, and one that (for me) calls into question the present nature of the administration of justice in this case. To say how and why that is so, the events of the day (first) have to put in capsule form....

The morning was taken up with the 'in camera' (private) and 'ex parte' (with all others than Crown and judge excluded) taking of testimony by the Special Crown Prosecutor and his team from the secret witness - the way having been cleared by the recent Supreme Court of Canada decision in the matter. As the afternoon session began - all were still excluded from the courtroom. Then only the gallery visitors were excluded. Then all were permitted entry and, late, the afternoon session began and shaped a tense set of confrontations.

Testy exchanges erupted between Defence counsel, Kevin McCullough and Janet Winteringham of the Special Crown Prosecutorial team, between Defence counsel and Madam Justice Anne MacKenzie. They seemed to begin when Mr. McCullough argued that an attempt to delay discussion of documents before the court until the Charter challenge is unreasonable. The case for informer privilege may be made at the proper time. But the issue now, and first, is whether the documents are relevant to the defence of the accused.

The argument was simple - the documents (in question) held by the Special Crown Prosecutor must be assessed by the judge and declared relevant or not relevant. That is not a small matter, Mr. McCullough said because there are hundreds of documents involved. The argument about whether some or all are protected (to the Crown Prosecutor) by informer privilege comes after relevance has been determined, he argued.

Among them are - Ms. Winteringham said - search warrant applications, wire tap applications, RCMP officer affidavits, confidential informer materials, informer material with relation to Mr. (Dave) Basi, and ... more.

Not only did Ms. Winteringham (according to Defence Counsel McCullough) say, or suggest, there were not hundreds of documents, but she insisted upon going through the binders of materials with the comments that they were not relevant and/or protected by informer privilege - as if to be claiming relevance or irrelevance could be undertaken by the Crown. That was not at all clear, but if she were not making the claim, Defence (it seems) wondered why she insisted upon including reference to relevance, document by document.

Madam Justice Anne MacKenzie appeared to be riding at least two horses around the circus tent. On the one hand she argued that she would be the arbitrar of relevance, but she also argued on precedent that both privilege and relevance arguments could be made at once by the Crown. And she suggested relevance might be limited, though Defence argued that documents Ms. Winteringham called irrelevant all concerned people who are connected to the investigation.

Defence and judge disagreed about the process of producing or denying (disclosure) materials. Madam Justice Anne MacKenzie insisted she was using the standard precedent to decide. Mr. McCullough argued that she was bound by the decision made by her predecessor Madam Justice Elizabeth Bennett (modifying the precedent) who, on June 4, 2007 declared that henceforth the Crown could not make the 'irrelevant' argument about disclosure materials. And so Madam Justice Anne MacKenzie was re-writing the rules, Mr. McCullough suggested.

For those in the gallery much seemed puzzling about the afternoon.

Distrust was evident in the room. The impatience of the presiding judge with Defence arguments
was palplable - and she does not show her impatience with either charm or grace.

All added up to the sad feeling, I refer to above, that the quality of administration of justice in this case is being forced into question.

Put very simply - the afternoon must stand as example or (as they say in the Court) Exhibit A in an argument that perhaps the administration of justice in this case is being twisted.

Madam Justice Elizabeth Bennett who was seized with the Basi, Virk, and Basi matter should not - many insist - have been permitted to leave the case. Her leaving was strange. The way in which she left was more than strange.

Some argue that there were senior people in the Court (and, perhaps, elsewhere in power) who disapprove of the way in which Defence counsel chose to proceed with their role. And at this point, the speculations become very serious, for Defence counsel holds that (1) the interactions of the superiors of the accused in the transfer of BC Rail to CNR, (2) the policies involved in the BC Rail Scandal, and (3) the single-minded concentration of investigators only upon the presently accused bear so materially on the accusations that those interactions and policies and investigations MUST be part of the evidence and argument surrounding the accusations.

Those interactions and policies, we have come to see, may not only vitiate the power of the accusations against the accused but they (cannot, it seems, but) open the question whether the superiors of the accused may, themselves, have undertaken actions which have criminal implications.

Then the questions begin to flood in. Was Madam Justice Elizabeth Bennett'removed' because (whatever she may have thought personally) she knew the Defence was pursuing a perfectly legitimate Defence strategy? Was she 'removed' because she would not force the Defence to treat the case as a simple matter of several people in a room offering and accepting a bribe? Where did Madam Justice Anne MacKenzie come from? What angel delivered her to the Basi, Virk, and Basi matter? Does she believe (with complete independence) that her role is to stop Defence from its demand for materials that drag into the light dubious RCMP actions, inconsistent Special Crown Prosecutorial decisions, cabinet and BC Rail management interactions and policies undertaken to create and execute a sham "sale" of BC Rail (that may contain within it evidence of criminal breach of trust)?

Questions. Questions.

Because the questions are becoming so central, and because they have to concern themselves partly with the deeply disturbing question whether the administration of justice is being interfered with in the Basi, Virk, and Basi matter - more will have to be said here and in very different form elsewhere.

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Robin Mathews did request a copy of Madam Justice MacKenzie's curriculum vitae (cv).


I asked Professor Mathews if he would let us see the letter from the Law Courts/800 Smithe Street/ VanBC V6Z 2E1, replying to his request. Here it is:

November 24, 2009

Mr. Robin Mathews
xxx Salsbury Drive
Vancouver, B.C. V5L xxx

Dear Mr. Mathews:

RE: Your letter dated November 16, 2009

I have been asked to respond to your letter on behalf of Madam Justice Mackenzie and Associate Chief Justice Dohm.

The Supreme Court does not have a curriculum vitae for Madam Justice Mackenzie; therefore, I cannot provide one to you.

Yours truly

H.L. McBride
Supreme Court Law Officer


It seems appropriate that we look back also at my own efforts to describe Justice MacKenzie's lawyerly background at the time she replaced Justice Bennett on the BC Rail Case. Here is a piece I wrote titled "Madam Justice Anne MacKenzie":

Friday, August 21, 2009

Madam Justice Anne MacKenzie

New Supreme Court Justice on Basi Virk Basi / BC Rail trial.

I thought it would be easy to find a simple biography of Madam Justice Anne MacKenzie but like so much else, such is not the case. So far, I've only found that Mary Anne MacKenzie was born in Vancouver in 1983 to parents who were lawyers (her mother was Madam Justice Anne Winter). Is this the correct Anne MacKenzie? I don't think so. Or maybe the 1983 is a clerical error ... or maybe it's Anne W. MacKenzie ...

The most interesting info. came in the form of a book review. Canadian Criminal Jury Instructions (CRIMJI) 4th ed., ISBN 1-55258-456-9, published Sept. 1, 2008 @ $350. a copy with CD updates is "the source of jury instructions and law that the bench and bar have turned to." Where Madam Justice Elizabeth Bennett was one of the 3 authors, Madam Justice Anne MacKenzie was one of the 8 members of the editorial board.

There's more detail if you click HERE. [But this link has gone dead, since yesterday. This is beginning to feel weird. - BC Mary.]

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I'd welcome information (with sources, please) to fill in some of the large gaps in the biography of Anne MacKenzie, a person who occupies a very important place in B.C. history at this time. - BC Mary.

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Tues., Dec. 15, 2009. There's one more thing I'd like to add:

I checked on today's BC Supreme Court listings despite the fact that those who attended yesterday seemed convinced that the hearing would be continuing today, beginning at 10:00 a.m.

Well, there's no court listing for Basi, Virk or Basi today. That's not to say the hearing isn't happening, or that it won't show up later on the court listings (as has happened before). But ... I am beginning to wonder ... how many self-serving co-incidences does it take, before I'm entitled to think there's mischief afoot?

I'm pretty darn sure there's a Basi Virk hearing for today. [Yes, there was; the 2-page listing for Basi, Virk, Basi appeared later in the day.]

And I'm pretty darn sure that not everybody in that courtroom is pleased to have the public watching.

Warning: watch for the first yabo to start howling "Conspiracy theory!" - BC Mary.

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Comments:
http://bctrialofbasi-virk.blogspot.com/search?q=Basi-Virk-Basi+full+text+defence+disclosure+application%2C+as+filed+June+4%2C+2007+.
 
This trial is taking so long and saps so much good energy from thoughtful, vigilant, community-minded people that I am reminded of the Basho's last (early 18th century) Haiku:

Tabi ni yande Yume wa kareno o
Kakemeguru

Translated:
On a journey, ill -
My dreams wander
Over a withered moor.

The BC Rail trial is metaphor for the bigger picture, average citizens verses the corporations and their bootlick governments. We are in the throes of a huge battle. If the BC Rail Trial fails to expose and extricate this cancer, citizens may have little hope of finding even tedious resolutions to other illnesses brought on by privatizing monopolists. The objectivists don't seem to be able to stop wanting more.

Just yesterday, the insatiable ExxonMobile swallowed up yet another energy corporation worth $31,000,000,000. Yep, they will most likely find new "efficiencies" in the near future; I expect CN CEO envisions laying-off a good number of hard-working people, thereby bringing costs down and allowing him to undercut/annihilate competition wishing to sell diesel to CN Rail. It looks like more big bonuses are in store for the top ExxonMobile execs - and dividends distributed to shareholders.
 
" how many self-serving co-incidences does it take, before I'm entitled to think there's mischief afoot?
"

Well, ever since Lord Gordo summarily treated Dave Basi and Bobby Virk differently - in terms of the conditions of their suspensions/dismissals - while claiming to know NOTHING about the raids. How was he able to differentiate in their treatment MONTHS before any charges were laid?

In the intervening years so much that is questinable has happened while SO LITTLE has really happened that one's sanity would be suspect if they didn't smell a rat in the Campbull Crime Family!

By the way, sometimes when those really fancy "inside" URLS cease to work, one can start at the domain/home/mainpage level and work down from there - using the unworkable link as written (without all the %99$21=5%5 type stuff) as a potential guide to the appropriate folder - sometimes one can approach via FTP with anon login or more inscrutable methods - it is a matter of access to folders, permissions and where you are coming from.

So for the link that went bad start at:

http://www.cle.bc.ca/

and try to find .pdfs about Jury Instructions (under CLE Online? Courses? Publications? - who knows?)

(the site is for the Continuing Legal Education Society of BC - technically one may have to be a registered member (money/invite?) to access some parts of the site.
 
Its settled then, at least that's the way it went today (Dec. 15th, 2009). Madame Justice MacKenzie agrees with Defense Consul that neither the Crown via the Special Prosecutor eg. Ms Andrea Mackay, nor the RCMP were in a position by which they could determine whether the information is relevant or not. And we are talking here about secret informants. That jurisdiction lies solely with the Justtice MacKenzie as stated by Justice Bennett two years ago.



I would like to throw in one other category that shouldn't have had the right to determining what's relevant as evidence .... Ken Dobell as Deputy Minister to the Premier and Cabinet Secretarty.

"Ken Dobell, the former deputy minister to Premier Gordon Campbell, has admitted he reviewed confidential government documents seized by police in the B.C. Legislature raid case without signing an undertaking as required by a protocol created by the Special Prosecutor."

From Bill Tieleman:

"Dobell, speaking to the Globe and Mail's Mark Hume, claimed he was not part of the "political side" of Campbell's office and as cabinet secretary he was part of an "independent, bureaucratic office."

That, Dobell said, meant he had not contradicted Campbell's claim in the Legislature last year that the premier's office was not involved in disclosure of evidence issues.

"There is a special prosecutor involved in this. The Premier's Office does not have a direct input into that ... This Premier's Office is not involved directly with that," Campbell said in 2007.

Dobell now says that his role as cabinet secretary was different.

"The cabinet secretary ... is an independent, bureaucratic office, it's not a political office, and in that sense, nobody in the Premier's office, on the political side, was involved in the issue," Dobell told Hume.

And Dobell says he was never asked by government lawyer George Copley to sign an undertaking as required by the protocol.
"
 
I guess that means that in the case of the Finance Minister and the Premier, their Deputy Ministers tried to keep their mouths shut during the election because it was the non-political, bureaucratic offices that were trying to stem the flow of information to the public during an election... information that would have cost the BC Liberals the election.

If you don't like the coming HST, blame the Deputy Ministers; If you don't like budget mushrooming from $.5 billion to over $2 billion then blame the Deputy Ministers.
 
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