The Legislature Raids

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It's absolutely OK if you laugh when I tell you that this evening, I'm working in semi-darkness because the Electricians Three have knocked off from re-wiring the 150-year-old Heritage House I live in. Re-wiring is a co-operative skill which, I learned today, requires exactitude in spoken English, a fine strong voice "Can you hear me, Ernie?" spoken into a small hole in the wall, to which the response is a series of taps from the attic. And cool nerves. Nobody mentions shock. Ernie didn't even flinch when he descended from the attic unexpectedly into my bathroom with me still in it.

Anyhoo ... at 5:00 PM ... with the job half done, Electricians Three went home leaving certain parts of the household unlit. Including my part. And I so much want to share with you, the thing I was reading this afternoon in the sunshine. I'm going to try anyway, hoping I don't make too many errors ...

I can't thank Chris Budgell enough, for providing the URL to the "Reasons for Judgment" written by Justice W.G. Parrett of Prince George, dated April 1998. It's one of those documents which demonstrates that the law in the hands of a gifted judge is a tool which carves out images of such reason and beauty, we feel the world will be put right once the document is passed to the public.

Chris actually was recommending a book titled "Politics and the Rule of Law" but he added that, "to better understand what the case meant, it is worth having a look at the lengthy Supreme Court judgment that came down in July 1999.

"I recommend reading at least the Table of Contents and the final section - about damages. Note that no quantum of punitive damages is mentioned.

"One lawyer commented to me that the plaintiff's ultimate success in this case was attributable in part to the fact it was heard by a judge in Prince George, where the community doesn't appreciate being screwed by bureaucrats from Victoria."

The trial of Carrier Lumber vs. Province of B.C. was very, very real stuff about forestry, mountain pine beetle, logging ingenuity, First Nations grievances, government bungling, and the U.S. Softwood Lumber treaty. The document starts off with the judge's admiration for the loggers (Carrier Lumber of Prince George) as well as the government (Ministry of Forests) for their efforts to salvage the dead or dying forests ... each meeting the other half way ... until an agreement in principle was somehow re-written ... the First Nations set up a road block ... the U.S. Softwood Lumber deal brought down more costs onto Carrier ... it's all there in Carrier Lumber vs. HMTQ in right of Province of British Columbia.

I must say that I didn't quite understand why Chris had given me this material to read, not until I got way, way into the "Reasons for Judgment". Suddenly, when I came to ...

7.0 THE EVIDENCE
7.1 ADVERSE INFERENCES

The Supreme Court Justice wrote these words. The high-pitched sounds of Electricians Three drilling, tapping, shouting seemed to fade away, as I read and began to understand why Chris had sent it ...

[120]     The plaintiff in this case submits that there has
been a widespread campaign by agents or employees of the
Ministry of Forests and/or the Attorney General's Branch to
prevent disclosure of relevant documents in this action.

[121]     This assertion by the plaintiff is resisted
strenuously by the defendant who nevertheless concedes that
substantial documentation that is both relevant and material to
the issues in this case was not disclosed by the Crown until
after the plaintiff had closed its case.

[122]     The circumstances giving rise to this situation are
quite extraordinary and led to rulings on October 30, 1997 and
December 12, 1997 which were themselves extraordinary and
resulted in a significant change of course in the conduct of
this trial.

[123]     Regrettably it is necessary in dealing with the
plaintiff's submissions on this point to canvass the
circumstances under which those rulings were made and this
trial eventually reconvened to run its altered course.

[124]     On October 2, 1997, the plaintiff closed its case in
this action and the defence began its case with the calling of
its first witness Hartley Lewis.  On October 16, 1997, after an
application made necessary because of the serious illness of an
important defence witness the trial was adjourned.

[125]     On that same date by what amounts to pure
coincidence, the plaintiff's Woodland's manager encountered a
member of the Ulkatcho Indian Band and during the course of
their discussion, the subject of this trial came up.  As a
result of their discussions a file and a number of documents
were produced to him which originated with or had been
delivered to the Crown.  The documents had not been disclosed
and are material and relevant to the issues in this trial.  One
of those documents was a letter signed by the Minister of
Forests.

[126]     Mr. Byl, on behalf of the plaintiff, returned a
motion in which he sought to have the defence struck.  This
application was adjourned on October 30, 1997, on conditions,
and dismissed eventually on December 12, 1997.

[127]     The resulting orders and conditions permitted the
plaintiff during an adjournment of this trial to effectively
investigate the circumstances surrounding the non-disclosure by
the Crown of quite literally hundreds, if not thousands, of
material documents.

[128]     The orders of October 30, 1997, directed the cross-
examination of a number of Ministry officials who had sworn
affidavits concerning the disclosure process, an additional
order directing immediate production of all documents relevant
to the First Nations blockades of the Henry's Crossing Bridge
and access to the Beef Trail Area.  A further order required
the defendant to provide affidavits verifying their lists of
documents.

[129]     On December 12, 1997, following further information
being placed before the court and hearing further submissions
the plaintiff's application was dismissed.  In dismissing that
application directions were given that any reasonable
application by the plaintiff to try and deal with the situation
would be entertained including reopening of the plaintiff's
case, orders directing the Crown to recall witnesses, and any
necessary amendments amongst others.  The conduct of the
defendant was characterized in that ruling in these words:
It is conduct which has caused a major and important
trial in these courts to be embarked upon and carried
out by a plaintiff who is seeking justice in these
courts on the basis of a massive failure to honour
the requirements of proper disclosure.  If not for
the serious illness of an important defence witness,
it is likely that this trial would have gone to its
conclusion without the facts, as we know them, having
become known.


[130]     With this background I turn to the basis from which
the plaintiff now seeks to have this court draw inferences
adverse to the defendant.

[131]     In the weeks immediately preceding the commencement
of this trial the plaintiff brought a number of motions related
to the production of documents.  It was a central theme to
those applications that proper and required disclosure had not
been made by the Crown.  If there was any doubt concerning the
position of the plaintiff it was laid to rest in their opening
at this trial.  In that opening the following passage is found:
It is a theme in this case that documents in the
possession or control of the Crown in respect to this
issue have been produced reluctantly, under Court
Order, and in some cases, not at all.  The existence
of such documents can be inferred from evidence that
will be put forward in this trial.  The Crown has,
unfortunately, chosen to defend its position in part
through the suppression of evidence.  In doing this,
it has breached its discovery obligations under Rule
26 of the Rules of Court, two court orders, and the
terms of the Document Disposal Act.  Carrier will
argue that where such documents must reasonably
exist, but have not been produced, such as Executive
Minutes or Executive Briefing packages, the Court
should rule adversely against the Crown, and find, on
the basis of well-established law as set out in
Barnes v. Union Steamship that such documents, if
produced, would prove the Plaintiff's contention.


[132]     It is also significant that throughout this trial
counsel for the plaintiff maintained this theme raising it with
numerous witnesses.  Throughout much of the period from the
commencement of the trial until its adjournment on October 16,
1997, Ministry officials who were presumably knowledgeable
concerning the events and, who in some cases authored or
assisted in the drafting of some of those documents were
present in the courtroom.  This background makes the events
which occurred following the adjournment on October 16, 1997,
even more difficult to understand and accept.

[133]     In this action the defendant has delivered a list of
documents, an expanded list of documents and what have been
designated as the second through the twenty-third supplemental
lists of documents.  Those beginning with the fifteenth list
were all delivered after the close of the plaintiff's case and
after the adjournment of this trial on October 16, 1997.  Those
documents list in excess of 2,000 documents which were not
previously disclosed by the Crown.

[134]     The way in which document disclosure occurred in this
case is, as already described, quite extraordinary but the
issue does not end there.  The plaintiff maintains in its final
submissions that what the evidence at this trial discloses is
that despite all of the energy put into pursuing those issues
at trial, despite the events that occurred with respect to
document disclosure, despite the importance placed on the issue
by the Court, and the orders that were made, document
disclosure remains incomplete and demonstrably so.

[135]     The plaintiff's final submission focussed on four
specific classes of documents which, whatever the final
outcome, were material to the issues before the court.  Those
four classes of documents are:
a)   the Constitutional documents;
b)   the Regional A 20022 file;
c)   the Regional Nemiah file; and
d)   the Regional Ulkatcho file.

[136]     A measure of the plaintiff's concern about disclosure
issues can be found in the fact that on the closing day of the
first phase of the trial, the day it was adjourned as a result
of Mr. Carlson's health problems, the plaintiff tendered
Exhibit 80 at the trial.  This volume of documents was produced
and used in the cross-examination of Ron Reeves, the former
District Manager for the Ministry of Forests in the area.  The
purpose of the exercise was to demonstrate on the basis of some
documents that had been produced that nine separate meetings
had taken place between Ministers of the Crown and various
First Nations groups at various times during the crucial time
period between August 2, 1989 and June 3, 1992.  The
proposition being advanced was that documentation with respect
to these crucial meetings must exist yet had not been produced.

[137]     Regrettably this case is replete with examples which
serve to highlight in sometimes vivid terms the failure of the
defendant [BC Ministry of Forests] in this case to properly honour their obligations to
disclose.  It is not useful or practical to catalogue in detail
those failures, but it is useful by way of example to
demonstrate the scope and nature of them ...

And so Justice Parrett continued, right to the end of his "Reasons for Judgment" to explain exactly how the government can not only be at fault but can be deliberately negligent when it suits their purposes. I would urge every citizen to turn off the TV and read this legal document.

The complete copy is yours to read, merely by clicking HERE.

- BC Mary.