Friday, February 26, 2010
The BC Rail Scandal: A Test of the BC Higher Courts
By Robin Mathews
February 26, 2010
The pre-trial hearings in the one criminal case arising out of the BC Rail Scandal have exposed the soft underbelly of power in the province. May 3 will begin trial of the three cabinet aides accused of criminal wrongdoing in the corrupt transfer of BC Rail to CNR by the Gordon Campbell government. The administration of justice in British Columbia has been shaken to its roots in a pre-trial process marked by delay, apparent obstruction, the erasure of disclosure material by government, the de facto refusal to release search warrants, juggling of judges – and more.
Many are talking and writing about the shameful secrecy of the BC higher court system, about its irregularities, inconsistencies, inefficiencies, exorbitant costs, and … more.
The inadequacies, I believe, are orchestrated from the premier’s and the Attorney General’s offices to protect what I hold is mounting criminal breach of trust on the part of the Gordon Campbell forces.
In a burst of (mock?) concern, present Attorney General Michael de Jong recently announced a number of reform things he might do – garnering him much press coverage. He will do none of them, I believe, because the Attorney General’s ministry is a key location from which, I allege, law and judicial proceedings are manipulated to cover what I believe are Gordon Campbell government criminalities.
More on that in coming columns.
For now, look at a very small corner of the territory. Madam Justice Elizabeth Bennett - three years in pre-trial hearings involving applications for disclosure, arguments of the disputing parties, etc. -- was (I believe) “manipulated” out of the job. In her place Madam Justice Anne MacKenzie was, I believe, “manipulated” in.
I have already written about what I consider the “unsavoury” hi-jinks of Associate Chief Justice Patrick Dohm and Special Crown Prosecutor William Berardino in that regard. Their's was not behaviour, I think, that reasonable Canadians would find satisfactory.
The BC Rail Scandal case is perhaps the most important public-interest criminal trial in the history of B.C. It not only involves the three accused men – cabinet aides appointed by Gordon Campbell. But it also seriously links the alleged actions of the accused to cabinet and other top-ranking public personalities. And it provides reasonable grounds for speaking of the corrupt transfer of BC Rail to CN Rail by the Gordon Campbell government.
The ‘provenance’ of the trial judge, then, is an important matter, especially since she was brought in (without sound reason, I believe) to replace her predecessor.
Whatever location she started from, little could be found out about Madam Justice Anne MacKenzie by those looking for “background”. And so, a reasonable Canadian, I wrote to Associate Chief Justice Patrick Dohm, Madam Justice Anne MacKenzie herself, and the Law Courts Librarian and asked for her professional resume (curriculum vitae).
The Supreme Court of B.C. must possess such a thing, or something close to it.
None of the people addressed, of course, answered my letter. I received a reply from what one might call “an in-house lackey”, or a “cover-up aide”. He wrote, in short, that they wouldn’t give me what I asked for. He didn’t say: “but here is a brief professional biography”. Nothing. He provided nothing – on the orders of senior court officers, obviously.
The action of the court officers (Madam Justice Anne MacKenzie included) was, I insist, stupid, insulting, and irresponsible. What’s more, it was an example of the enormous arrogance of the “power clique” in B.C. in the face of an absolutely legitimate public interest in public affairs. The vaunted “Open Court System“ of our tradition is dead in B.C. I would say that any reasonable Canadian might assume all the three written to – to use street language – “are in the pay of Gordon Campbell and his friends”.
The refusal to supply the information was, further, I say, an infantile expression of the wholesale violation of the administration of justice characteristic of anyone within the farthest radius of Gordon Campbell power.
The response of the court officers meant a few people would have to do a lot of research in order to tell British Columbians just the bare bones of information about Madam Justice Anne MacKenzie. Think of it. Imagine. A judge of the Supreme Court of B.C., presiding at a major trial, has to be privately researched to gain basic information about her – because top officers of the court, and the judge herself, refuse to make any reasonable information public.
Now some has been gathered. What I believe might be embarrassing personal information – if pushed to further investigation – I will not mention since I only asked to be given (and was flatly denied) information that might be considered relevant to the appointment of Madam Justice Anne MacKenzie to the BC Rail Scandal case. I was denied, I allege, information that should be available to any British Columbian who asks for it.
Madam Justice Anne Winter MacKenzie is approaching sixty years. She was born in New Westminster and lived her early life in the lower mainland of B.C. Like Madam Justice Stromberg Stein, Madam Justice Anne MacKenzie was made a Supreme Court judge in 1990.
Earlier, she attended the University of British Columbia and has proficiency in the French language. She took a B.A. degree in 1973, an LL.B in 1977, and she was called to the bar in 1978. She soon joined the Criminal Law section of the federal Department of Justice where she acted as a federal crown counsel in Vancouver.
At university she met and married (lawyer) Roderick (Roddy) MacKenzie. They produced three children. They live in West Vancouver.
Roderick M. MacKenzie was, for a time, City Solicitor for the city of New Westminster. He continued to show interest in municipal government and its problems. In 1980 he was re-elected national secretary of the municipal law section of the Canadian Bar Association. He left the role of City Solicitor, went into private practice in Vancouver (with partners), and is, presently, I believe, practicing alone from a downtown Vancouver office.
In 2008 Madam Justice Anne MacKenzie received some criticism for her handling of a Hells Angels matter. On May 15, 2009, Madam Justice Elizabeth Bennett was appointed to the B.C. Court of Appeal. That was one of the pretexts (a baseless pretext, I believe) for removing her from the Basi, Virk, and Basi case.
Very shortly after the announcement of Justice Bennett’s new appointment, Associate Chief Justice Patrick Dohm, in what I thought was a crude and inelegant appearance in court, stated he had chosen Madam Justice Elizabeth Bennett’s replacement, but would not name the person. In September, Madam Justice Anne MacKenzie took over the Basi, Virk, and Basi case.
As I perceived her actions, she immediately began cutting off all Defence access to disclosure materials that might involve highly placed government and other officials. Early in her tenure as presiding judge she wondered, as I remember, whether justice could be afforded in the case – but she soon removed herself from that patch of quicksand. She did, however, make a statement – when rejecting a Defence request for more complete disclosure – that society expects a fair trial … not a perfect one.
She is correct. Canadian society is remarkably reasonable on the whole. But I don’t think any informed Canadian will expect a fair trial in the Basi, Virk, and Basi case.
Judicial figures have, it seems to me, parried attempts to widen, properly, the range of the accused – in effect protecting Gordon Campbell. The RCMP has failed to investigate political figures almost certainly involved in the corrupt transfer of BC Rail to CNR. RCMP Deputy Commissioner Gary Bass has refused to undertake investigation when asked to do so, as if there is no basis for investigation.
The “independent”, “objective”, and “unbiased” Special Crown Prosecutor was appointed by an Attorney General who had been for a long-time his partner and colleague. The cabinet of which the Attorney General was a member was (and is) a deeply interested party in the case before the court. The present Attorney General’s Ministry has refused to discuss the appointment of the Special Crown Prosecutor on the specious grounds that the matter is “sub judice”.
That specious claim has been made over and over by both Gordon Campbell, premier, and recent Attorney General, Wally Oppal, whenever asked about the BC Rail Scandal. The latter, Wally Oppal, is presently facing a civil suit for, in fact, misuse of the powers of Attorney General.
And the deputy Attorney General at the time of the appointment of the Special Crown Prosecutor had been for an even longer time partner and colleague of the person appointed. For his excellent work Allan Seckel was recently appointed to be Deputy Minister to the premier Gordon Campbell, Cabinet Secretary, and Head of the British Columbia Public Service.
The trial of Dave Basi, Bobby Virk, and Aneal Basi for (variously) fourteen counts of fraud, breach of trust, and money laundering begins on May 3, 2010. It will probably be bizarre, dramatic, macabre, fascinating, and endlessly intense.
But it will not, I allege, be a fair trial.
And I suspect Madam Justice Anne MacKenzie knows that very well. It will be a trial, I believe, of three men – innocent unless proved guilty. They, I allege, make up only a very small portion of a much larger number who should have been charged in relation to the corrupt transfer of BC Rail to CNR, but who have been almost ubiquitously protected by all the forces that should have been serving law, the administration of justice, and the people of Canada.
For all you or I know, these three are as guilty as sin, or as innocent as a new born seal pup.
The JUDGE and Jury gets to decide, NOT YOU and NOT I, and until they have heard all the evidence your speculation is totally without merit.
Like the National Post ariticle says the optics of this could hardly be worse. Where there is smoke there is fire. These boys were told what to do right from the top. No question. Ask Mr. Nettleton. The top dog will have a lot of tough quetions to answer and so far has got a free pass from all his high powered friends. The fact we were lied to about the sale prior to the election and he got re-elected should be enought to turn on anyone's BS alert.
Then YOU haven't been paying attention. Spend a few hours getting up to speed, please.
Professor Mathews has spent more time in the courtroom observing this case as it unfolds than any other individual - apart from the players themselves - to suggest that his reports are little more than idle speculation is insulting and offensive.
I'm surprised Mary even bothered to post your comment - IT is totally without merit.
British Columbians who care about the future of this province have no excuse for being ignorant about this case and why it's important, perhaps vital, to our future.
Yes, stage setting in place, the script already written.
Let's hope something "unexpected" happens.
Since it is hard to find any info on Justice Mackenzie - this is a .gov.bc "best place on earth" site that provides a "Roddy Mackenzie" link, something on log exports, I think, through the Ministry of Forests and Lands. A "Roddy Mackenzie" is also listed in the BC government directory but I am unable to access it.
Here's that first link:
If a fair trial means a speedy trial, then you and I agree; there is no such thing as a speedy trial in the country. Especially when one has a law team with an unlimited budget to represent you.
...or just google 123people.ca and search for "Roddy Mackenzie"
Campbell doesn't need public protection. He has the Supreme Court of British Columbia, the Attorney General's office, the RCMP and others covering his ass already.
Try working with the public he's supposed to be "working for" by asking obvious questions. Start with the basics. It's alright to ask "real" questions, and seek answers from ALL sources...not just those of your master. You sound extraordinarily like him you know?
I'd suggest anyone who was familiar with the complexities of the case would not have made the statement you did.
Remember, you're the person who wrote this:
For all you or I know, these three are as guilty as sin, or as innocent as a new born seal pup.
Remember? A more comprehensive admission of one’s own ignorance is hard to imagine.
For someone who has, as you say, researched the matter, it was a surpassingly ignorant thing to say.
Nothing you've written heretofore gives me any reason to doubt my original conclusion. I simply don’t believe you and, over the years, I’ve become very familiar with that kind of comment…as a good friend of mine observes in such cases, it usually indicates a kind of cowboy attitude that can best be described as all hat and no horse.
There is every reason to believe that the accused in this case have a very good chance of sustaining the argument that anything they did was at the behest and direction of their political superiors.
Well go ahead and beleive whatever you like. I will wait for the trial, for the evidence, for the crown to state its case and for the accused to state their reasons of defence.
In the mean time, it matters not that you got it in your head that there is "ever reason to believe". That you can say such a thing doesnt make it so.
My point exactly Sabastien. With the infusion of Justice MacKenzie in discovery, much of the evidence that is needed for a fair defense has been cut off. The optics of this discovery have changed dramatically.
As far as your statement:
"rightly or wrongly, recite the same tired shill that others are more guilty than those charged"
I have never said that at all, ever. What I have said is that WITH THE EVIDENCE PRESENTED IN DISCOVERY there are political masters who were well aware of what was going on. Why were they not charged? Why did the police make a statement that no politicians were under investigation, when in fact Collins was himself being tapped?
I have also said that under the criminal code of Canada it is an offence to OFFER and RECEIVE a bribe. Why are the Basi boys the only ones charged? If this does not present to you a biased case of prosecution then as stated I suggest that your comment about being up to speed is a bit off. Or as Leah says you may be "willfully blind"
Assuming you actually consider Oh So Special Prosecutor Beradino a player, rather than an occasional visitor, Robin may have been in the courtroom more than some of the players - unless Janet Winteringham is just Mr. B's drag identity!
Is that biased?
And in respect of the Rail BC deal, how do you know there was an OFFER and not a REQUEST?
And how am I willfully blind when any thinking person can see clearly that the most vulnerable person in the BC Rail deal was the bidders, not the government insiders who, for all we know and may eventually find out if this ever does get to trial, requested the inducement(s)????
As far as thinking people seeing anything you obviously are not thinking. The bidding came down to three companies. CN,CP And Burlington Northern. CP dropped out when it became clear that the bidding was a sham. Then the government offered some candy to Burlington Northern to keep them in the bidding for appearances. The RCMP took the candy away because there was an appearance of wrongdoing.
Two companies, and ONE consortium
CN (Canadian Railway) and CP (Canadian Pacific) we know, but consortium that were involved with Burlington Northern included OmniTRAX, Santa Fe Railway, RailAmerica and Macquarie (Financial advisors to Omnitrax consortium among many other PPP3 projects endorsed by the BC Liberal government)
Check out this newsletter from Macquarie on Page 5 having to do with BC Rail: PUBLIC PRIVATE PARTNERSHIP AND INFRASTRUCTURE UPDATE
The RCMP put a stop to the next BC Rail line that was to be sold off to the highest bidder.
Then there was the Roberts Bank line and its THREE company bidders:
"There were three bidders for this 37 km line Roberts Bank Partnership (a consortium of Vancouver Port, CN and CPR),
Southern Railway of BC
and Macquarie (which would use Omnitrax as operator).
Oh yeah, CN was vulnerable, sure, right, anything you say, Seby....
The other bidders were suckered by a government that had no intention of awarding the railway to any one of them, it was all a set-up to hand it over to CN from the start - we know that from the evidence, and from what CP had to say. I'm surprised there hasn't been a civil suit to recover the costs of preparing and submitting a bid into what was purely a staged process. Of course, Omni/TRAX, who were encouraged to offer a bribe (by the "consultants" from Pilothouse) can't comment on that for obvious reasons, but it's not like they were vulnerable either, and should have - like BNSF and CP - withdrawn from the process once they knew it was all a sham.
You can't rape the willing....
Anytime I have used the 'R' word, my comments never get posted.
I guess its in the way that I use it.
I actually like the way wikipeda says it best,
Actually, Skookum1, that may well still be in the cards. The Supreme Court's judgment in Tercon has some interesting things to say about the fairness and equity of the bidding process - but I'm sure you know that from reading about it at Laila's...
There are some other cases in the wings too and, when the dust settles, there may well be more than one civil case against the BC Government for its handling of the 'sale' of BC Rail....
In fact, I think there's a good deal of worry in certain offices in Victoria on that score right now...
If someone committed a crime, and the court is unable to prove guilt, for whatever reason, be it incompetance, charter rights, budget resources, whatever, how does that make the person who cimmitted the crime, INNOCENT?
You have asked an excellent question which goes to the heart of criminal law.
Why indeed is a person considered innocent until proven guilty?
Within the answer, you'll find the poetic beauty of the law seeking to find balance and fairness for both "the accused" and the society because each side in a civil society needs respect and protection.
Here's a simple URL if you'd like to read up on the nations which do -- as you suggest -- presume that an accused person is guilty until innocence can be proven.
Good luck, Jose ... and it'd be interesting if you come back and tell us what you find out. Because that really is a good question.
Which maybe explains why the Pope of Point Grey is deemed infallible by the same organization. Neo-con rightism is, after all, really a religion more than a political theory. Not the first pope to keep a mistress either......while condemning others for adultery.
He weighs the same as a duck, ergo....