Wednesday, December 02, 2009

 

Is Something [Else] Wrong in the Basi, Virk, Basi Process?

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Robin Mathews
December 2, 2009

The appeal to the Supreme Court of Canada, just won by Special Crown Prosecutor, William Berardino, appears to open up a few very puzzling, very serious questions that need answers.

The Berardino appeal concerned the right to have testimony taken in private from a police officer who would very likely identify a confidential informer. Defence counsel wanted to be present. The Supreme Court of Canada ruled that they could not be there. Testimony, in legal words, would be in camera (private) and ex parte (with only one side present). That is to protect what the courts call “informer privilege” – the right of an informer not to have his/her identity known to anyone but the Crown and the presiding judge.

The judgement of the highest court is reasoned, clear, logical, informative. But it opens other, huge questions to British Columbians and anyone in Canada concerned with ‘the administration of justice’. And it does so because of what the Supreme Court of Canada judges write about the relation of solicitor and client.

If – the judges said – Defence counsel were permitted to be present at the in camera meeting and to hear the testimony, they would be – in a sense – trapped.

That is so because they would know something their clients couldn’t know. And knowing would “prevent frankness and fetter the free flow of information between lawyer and client and otherwise impair the solicitor-client relationship”.

The judges went on to say that the lawyers would constantly have to suppress what they knew, that (implied) they might accidentally fail to suppress it, they would have unnaturally to be on their guard, and the knowledge difference would make problems in the relation.

Fair enough.

But let’s apply that to people we know who will almost certainly be called as witnesses in the Basi, Virk, and Basi trial – for instance, Christie Clark, Gary Collins, and Patrick Kinsella. All three have engaged lawyers to represent them.

We know that some long time ago Madam Justice Elizabeth Bennett declared that no person who will be a witness in the Basi, Virk, and Basi trial may be present at the pre-trial hearings.

That is for obvious reasons: their testimony as witnesses might be tainted (even unconsciously) by what they would hear and learn at pre-trial process.

Nonetheless, their lawyers have been – from time to time – admitted to the hearings. Doesn’t that set up the same conditions the Supreme Court of Canada judges so sharply describe between solicitor and client – that they will know things their clients don’t and – to quote the Supreme Court judges, that fact will “impair the solicitor-client relationship”? Won’t the lawyers for the three named potential witnesses have their solicitor-client relation impaired?

Thinking back, I suspect that Madam Justice Elizabeth Bennett refused to release the daily transcripts generally because transcript material may have gotten into the hands of people who would be witnesses at the trial. I applied to have the transactions of one day (of “open court” hearing) I missed. I was only permitted to hear a disc and take notes: nothing more. And I have no connection whatever to the accused or any of the people who may be witnesses at the trial.

Then to my surprise, in September of this year, Mr. McCullough, for the Defence, reported in court that Mr. Sullivan, counsel for Patrick Kinsella, had ordered and had received a number of transcripts of days of hearing! The first question, of course, is whether a lawyer might share transcripts with a witness or witnesses excluded from proceedings? Or, if not, would the knowledge that the lawyer gains and can’t share with the client “impair the solicitor-client relationship”? And who would decide?

But other very important questions arise - very, very important questions.

One: How is it possible that any ordinary British Columbian [ in this case, me ] can be refused transcripts but a lawyer for a potential witness denied access to process can order and receive transcripts of process?

Two: Mr. McCullough, for the Defence, came upon counsel for one witness who had ordered and received transcripts. Did others – and how many others – do the same? How much (hearing) transcript material has been placed in the possession of lawyers for potential witnesses in the Basi, Virk, and Basi trial?

Three: To whom do they apply to get possession of transcripts? Do they apply to the judge sitting – or do they simply apply to the for-profit, private corporation which manages transcripts to make money, and, to make money, that private corporation releases the material?

I remember that Clark Rogers, counsel for Gary Collins, sat for days through hearings. Recently, he had – on some days – electronic presence at hearing. Is he not in the same position as that described by the judges of the Supreme Court of Canada?

Are we being shown – one more time – in the BC Rail Scandal court process that there is something deeply wrong, deeply discriminatory in the way court material is handled? Are we being shown, again, there is one law for “the Club” and another one for ordinary British Columbians? Are we being shown a serious flaw in the “administration of justice” in the matter of Basi, Virk, and Basi?

On the face of it, the answer to all the questions seems pretty clearly to be “Yes”.

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Comments:
Robin, I hope you've cc'd that to the justices of the SCC, and to whomever else...including the federal Minister of Justice, I'd think. But as with ACJ Dohm, I doubt it would do any good.

In British Columbia, rich men get to sleep under different bridges than ordinary men; there are two kinds of law. And as in my previous comments, that's pretty much the way it's been since the original colonies were founded....
 
Robin, your work on this case raises the bar for citizen journalists world wide.

I would argue that you have attended more hearings than the MSM journalists who are getting paid to report the news and certainly have not earned their paycheques on the questionable action of justice in this case.

Kudos to you and your hard work.
 
I recall sitting one day at my local starbucks, and sharing in conversation with a retired New Westminster detective. This was around the time Don Morrsion (OPCC),was under fire for something, and police accountability was all the talk. This retired detective tolds amasing stories of his career, some,which involved investigating Vancouver police.He spoke of how the VPD had a two file system, and just about anyone could walk in, the where files ae kept, and help themselves...
Dec.'02, didn't the VPD, make their own news footage and give it to the media?
Yes.
And yes!
 
Robin would you say that the BC Government has changed the degree to which they do employees criminal record checks before they are hired now, compared to the days that led up to the raid on the BC Legislature offices of Finance and Transportation?

I suppose it may be said that those individuals who have been charged by the police in relation to the above paragraph only got their "feet" wet once they were exposed to all the power that surrounds the secrecy of running a government.

Stated but not proven in a court of law the ALR wheeling and dealings that raked in $50,000; $25,000 (each) for Omnitrax gaining insider deliberations between the government and "participants"; drugs charges that were stayed.

All of the above were brought about by the latter which precipitated Project Everywhichway.

In the Vancouver Sun this morning there is this:

"Police allege man in privacy breach used fake identification"....in a scrum with the MSM Press the Minister responsible, Ben Stewart, was asked "if the police investigation was related to the employee's job, he said "No, it wasn't related to that." Asked again if the investigation was related to his job: "Yes, that's right. It turned up in an investigation that they were doing unrelated to this issue (the privacy breach) and they turned the records over to the government basically and notified us of the problem."

It seem like this could turn out to be EveryWhichWay II.

The fact that the government sat on the RCMP report to them for seven months, in other words prior to this last provincial election, makes we wonder just when the government became aware of David Basi, Bobby Virk and Aneal Basi.
 
When our justice system becomes tainted and delayed by the sitting government our future as a society becomes compromised and weakens the fabric of our democracy!
Gordo and his "yea boss" lying lackeys are rotten to the core!
 
"Are we being shown – one more time – in the BC Rail Scandal court process that there is something deeply wrong, deeply discriminatory in the way court material is handled? Are we being shown, again, there is one law for “the Club” and another one for ordinary British Columbians? Are we being shown a serious flaw in the “administration of justice” in the matter of Basi, Virk, and Basi?

On the face of it, the answer to all the questions seems pretty clearly to be “Yes”.
"

How True Robin.

On a lighter note, the other morning I went out and noticed that the air smelled cleaner than usual and then I turned on the news and understood why. Gordon Campbell was in Toronto!
 
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