The Legislature Raids

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By Robin Mathews

With considerably better humour than yesterday, argument continued today about the disclosure application focussed on yesterday. Mr. McCullough for the Defence opened the day by discussing the apparent disagreement concerning the process of coming (or failing to come) to disclosure.

Defence and presiding judge appeared to be of one mind about the differences (and - apparent - confusion) that occurred.

Ms. Winteringham for the Special Crown Prosecutorial team went through more documents and made a case for withholding disclosure. She said the Federal prosecutor's report on the wire-taps is available to the Defence. Essentially she argued that the materials were reviewed by more than one agency - one being a federal prosecutor.

Citing precedent, she asserted that application for disclosure was not to be "a fishing expedition" by Defence (in what might be a blind attempt to pull in anything possible and then have a look at it). She said also that, by precedent, material denied at one point might be disclosed at another. The Crown also holds that the application for disclosure of wire-tap materials is premature - before Defence files its Charter Application relating to the wire-tap processes.

In general, the Prosecution wishes to withhold materials sought.

For the Defence, Kevin McCullough made several points. Specifically, he argued that Defence is not on a fishing expedition but has said why the material sought is relevant - Defence seeks to know if material submitted from informers has been judged reliable, or if it is contradictory of valid evidence gathered elsewhere. Some materials that have been disclosed, he argued, have been presented by the Crown as believed to be reliable when it has not been. Information gathered from disclosure reached by impartial review would stand as a basis, where unreliable, for cross-examination in trial (quite apart form any Charter Application about the use of wire-tap).

He pointed, further, to the fact that almost all the reporting on Dave Basi was undertaken in relation to the Drug investigation (not the BC Rail Scandal), and - as Michael Bolton said in court and outside the courtroom - allegations in that matter were wholly false and all suspicions of Basi in the Drug investigation were erased.

Mr. McCullough argued, in addition, that materials gathered by informers need not be covered in a blanket way by informer privilege, because some of it may be released to Defence without any chance of identifying the informer.

The flow of argument is clear: Crown believes the materials sought need no further review as to the claims they make for it. The Defence is unsatisfied with the claims, sees a need to test impartially for relevance and accuracy, and believes that Madam Justice Elizabeth Bennett rejected the Crown as decider of relevance and named herself, as judge, as final arbitrar of the use to be made of materials applied for by Defence - as to relevance and informer privilege.

Essentially, Defence is asking Madam Justice Anne MacKenzie to review the materials and to make findings as requested. The Crown holds review by her is unnecessary.

What Madam Justice Anne MacKenzie decides - that will illuminate her attitude to the case as a whole. There is no doubt she wishes (as all in the matter have claimed they also wish) to bring the matter to trial without delay. She must decide whether denying the Defense the review they request will speed the trial without, in fact, doing serious damage to the (fair) way in which they may conduct defence of their clients. (Defence claims it will be disabled in that respect unless the review is undertaken.)

Her general demeanour, as I observed it yesterday, suggested she would give short shrift to the wishes of the Defence. Today she appeared to be a great deal more serious about the terms of the Defence application. At ten in the morning of December 18 we will learn her final position.

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