Tuesday, March 30, 2010

 

Basi-Virk Publication ban: interpreted by Patrick Brown, Robin Mathews

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Dear Mary ... 

           You can send this to anyone else you want, if you think it is interesting enough to do so. 

           First:  the protection of jurers is normal. It may be wrong in the present state of communication.  But it is not new with Anne MacKenzie.  That she made a huge error on her first try simply underscores the fact that she isn't really up to the BBV job; and/or that she is taking dictation ... and getting it down wrong sometimes. Both are possible.

          Second: I have been wondering, in the last weeks, about potential jurers and their relation to the materials presented by press, media, etc.  Any serious British Columbian must know a good deal about the case now. But as recent theorists have said: knowing materials and press comments should not affect intelligent people hearing evidence and testimony in an actual trial.

          Third:  Caveat. Some of the rules were shaped during the immense power of the press. As we saw in the Glen Clark case, when the whole press/media goes to work to destroy the innocent, it can do it if there is no strong court demanding fair play. The good people who first went to work to protect jurers were really thinking, I believe, of the immense power of monopolists (in fact) to indoctrinate.

          Fourth:  The restrictions are not nearly as total as they at first seem.  Notice that what can't be published is any evidence, submissions, rulings, or Reasons for Judgement given in these  proceedings in the absence of jury until....

          That means bcmary or others can continue to pour out the Hansard materials that have been so rich in the last little while.  Anyone can write and present factual material which has not been "given in these proceedings".

I have been lightly at work on Letter Three, and I can see no reason why it would have to be significantly different AFTER the declaration by Anne MacKenzie. Indeed, the court is not so crazy as to say all the archived material on several websites has, somehow, to be evaporated. The court will depend upon jurers not to go to those sources and be 'contaminated' by outside fact or 'bravura'. The court will not (cannot) demand that all material presented in the last six years must be erased.

          In a society in which freedom of expression is still the rule - quite apart from the mangling of truth by large corporate communication sources - there is much room for continued engagement with the BC Rail Scandal. And continued, forceful engagement is necessary to show we know the limits of MacKenzie's declaration AND THE FREEDOMS THAT WE POSSESS.

          The declaration by MacKenzie will scare the pants off some, and will set in motion self-censorship that is in no way necessary.  The thing to do is to read the declaration carefully. As much as they might have wished to make it more a blanket denial, they didn't dare do so.  We can even pretend they didn't want to do any such thing. Reading it carefully brings one quickly to the phrase "given in these proceedings" and the four headings of what is denied "given in these proceedings". Just for instance, the interview Gary Mason published - which you disliked so much - with Dave Basi and Bobby Virk could be reproduced whole and commented upon - for it was not "given in these proceedings".

          My letters to Gary Bass about the failure of the RCMP to undertake criminal investigation of Gordon Campbell and his associates in the transfer of BC Rail could be published and commented upon - They are not "evidence, submissions, rulings, or Reasons for Judgement given in these proceedings".  I refer to allegations by Defence counsel, and they might need care.  But one can say: "All the facts and observations I have made since 2001 regarding BC Rail leads me to insist that criminal investigation of Gordon Campbell and his associates is absolutely necessary, and I am not alone among the best informed people on the matter to hold that belief". And then, independent of what has been "given in these proceedings" one could talk about Gary Collins, the RCMP, etc. etc. AND  BBV ...

- Robin Mathews
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Private comment from Patrick Brown, Island Tides newspaper:

According to Tielman's Tyee article today, the March 2 publication ban was reworded on March 4 to permit reporting of what happens when the jury is present. He says it now reads:

"Pursuant to s. 648 of the Criminal Code and the inherent jurisdiction of the court, there shall be no publication in any document or broadcast or transmission of any evidence, submissions, rulings or Reasons for Judgment given in these proceedings in the absence of the jury until the jury renders its verdict or until further order of the Court."

The key addition is 'in the absence of the jury' which wasn't there before. As it previously read, it really would have forbidden any reporting of the trial. This must have been an error, or how dumb do they think we are?

As I read the Criminal code extract, the publication ban prevents reporting of what happens in the pre-trial maneuvering. Since we have already been privy to a couple of years of pre-trial nonsense (including the revealing sparring over disclosure) it seems very strange to forbid publication of the pre-trial at this point.

It is not clear, of course, whether the publication ban ruling itself is subject to the publication ban. In other words, can we publish the publication ban?

It was, after all, made in the absence of the jury, which has not yet been chosen. Indeed, so were all the other pre-trial proceedings, up till today.

There seems to be no starting date on the publication ban. This is sloppy in the extreme, and may have already given the defendants a justification for appealing the verdict, as if they needed one.

Patrick Brown

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Plus a worthy comment from G West:

Bill's latest comment about the 'effect' of this having moved from trial by judge (Bennett) to trial by jury (MacKenzie) is probably the best explanation for what seems clearly to be a cock-up by the court.

And of course, the fact that the defence 'wanted' everything to hang out when the trial was to be heard by judge alone - and is not so keen about that now that a jury must be chosen and impanelled - has created a strange dichotomy between what we know (and the public has access to) from yesterday backward as opposed to what we cannot know (unless one goes to court oneself) from this point forward.

I am also curious about one other point. What is the status of a private observer who attends at the court and sends emails to a small circle of friends?

Is personal correspondence and conversation going to be restricted as well?

Muzzling the media is fairly common place - muzzling the public - if the public wants to know, may be something quite different.

Furthermore, this is what the order says:
...no information regarding any portion of the trial at which the jury is not present shall be published in any document or broadcast or transmitted in any way before the jury retires to consider its verdict.

If I attend the trial and report verbally to my friend what I heard and saw is my friend 'bound' by the order?

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Comments:
Here's something that doesn't have to do with the pre-trial manouvering but seems to me to be momentous...

The special prosecutor in the Basi/Virk trial gives money to the BC Liberals.

The donations are recorded in in the 2005 BC Liberal Annual Financing Report to Elections BC. Two donations for a total of $600: the big one to Wally Oppal, the guy who oversaw the Ministry responsible for prosecutions.

There’s a section on the Ministry website about special prosecutors:
“Special prosecutors are appointed where there is a significant potential for a perceived or real improper influence in prosecutorial decision making in a given case. The paramount consideration is the need to maintain public confidence in the administration of criminal justice…. Historically, special prosecutors have been appointed in cases involving cabinet ministers, senior public or ministry officials, senior police officers or persons in close proximity to these individuals.”

Oppal himself hid behind the supposed independence of the special prosecutor, stonewalling questions in QP. Here’s how he didn’t answer a question about the trial in 2007: “There’s a special prosecutor that’s appointed. The reason a special prosecutor is appointed is in order to avoid any suggestion of any political interference or any political influence.”

Except now it appears that the special prosecutor, through the period of his appointment, was a financial supporter of the government. In other words, not politically disinterested. And that seems to me to be a violation of the role. After all, Liberal politicians and their friends litter this trial and the prosecutor must make many disinterested decisions about them.

And forgetting all that, what does this say about his judgement?
 
Bill's latest comment about the 'effect' of this having moved from trial by judge (Bennett) to trial by jury (MacKenzie) is probably the best explanation for what seems clearly to be a cock-up by the court.

And of course, the fact that the defence 'wanted' everything to hang out when the trial was to be heard by judge alone - and is not so keen about that now that a jury must be chosen and impanelled - has created a strange dichotomy between what we know (and the public has access to) from yesterday backward as opposed to what we cannot know (unless one goes to court oneself) from this point forward.

I am also curious about one other point. What is the status of a private observer who attends at the court and sends emails to a small circle of friends?

Is personal correspondence and conversation going to be restricted as well?

Muzzling the media is fairly common place - muzzling the public - if the public wants to know, may be something quite different.
Furthermore, this is what the order says:
...no information regarding any portion of the trial at which the jury is not present shall be published in any document or broadcast or transmitted in any way before the jury retires to consider its verdict.

If I attend the trial and report verbally to my friend what I heard and saw is my friend 'bound' by the order?
 
I can't help but see the similarities between the "dictatorship of the corporations" in Chile under Augusto Pinochet and also the legal-political actions of the tobacco companies in the USA between 1960-2000 and the operation of the Province of BC circa 2010.

The tactics and mindset of a "corporate boardroom dicatorship" certainly are the operating model for CEO Gordon Campbell and BC Liberal Corporation.

With all levels of government, especially the courts... on the payroll, Basigate is just business as usual.

I would not rule out special legal tactics against the electoral process being employed to insure the corporation's survival.
 
Here's an idea. If there's a publication ban, but members of the public (e.g. Bill T.) are still allowed to sit in on the court proceedings, why don't those of us in the Lower Mainland organize "citizen watchdog" parties to attend all court sessions.

If there were "overflow" crowds wanting a seat, the judge would be encouraged to obtain a large courtroom – as has happened in other court appearances recently (e.g. the homeless who flooded the Victoria court house when their case for camping in public parks was heard). The judge in that case ordered a move to a larger court room.

I'd love to see the BBV proceedings held in a school gymnasium somewhere so young people could see and learn for themselves the way our politicians and the judicial elite really work. Would be a priceless education. Teachers could take their social studies classes there as a field tour. The students would learn where and how their futures were compromised. Some might develop an interest in becoming investigative reporters, to replace the rotted carcus of what passes for most of what is accepted as journalism today (present company excepted, of course).

Lest anyone be mistaken, I am quite serious in my suggestion that we organize "citizen watchdog" parties to converge on all BBV court sessions.

CC
 
Also, such parties could meet afterwards to discuss what they've seen/heard. There's no possible prohibition on that (freedom of assembly, freedom of communication, freedom of expression) and what was said in those meetings would only halfway be covered by the publication ban.....so long as it wasn't "broadcast"....but Global and CBC won't be covering it anyway huh? Gotta keep the Canadian public pumped on American celebrity news and the homey pride of being able to get a double-double in Kandahar....
 
I can see your next Post BC Mary.

You'll be showing a comparison between the phone call that the Minister responsible for BC Place received, while driving, from a BC Liberal insider, someone appointed by the BC Liberals to take care of ICBC but is heavily involved as one of the bidders to put the casino in place on condition that the retractable roof goes ahead at taxpayers expense..... to .....Patrick Kinsella and others acting on behalf of CN Rail to the Premier of British Columbia because the purchase BC Rail was going off track unless some concessions were made, at taxpayers expense.

Its been proven over and over again that the BC Liberals favour those who donate to their coffers, to their winning elections, promising one thing to the voters and then doing exactly the opposite.

Check out the Vancouver Sun this morning

http://www.vancouversun.com/Liberal+insider+called+minister+about+casino+project+beside+Place/2755138/story.html

and Vaughn Palmer

http://www.vancouversun.com/columnists/Phone+call+minister+prompts+questions/2756309/story.html
 
From Palmer's column:
As for his own contact with Turner, Krueger told reporters that he didn't regard the call as inappropriate, didn't see it as lobbying, and professed not to have been influenced by it one way or another.

Until additional details are forthcoming, the New Democrats held off accusing the B.C. Liberals of anything more serious than an exercise of bad judgment. But as Herbert told reporters, "It smells."


Anyone have on hand Palmer's breaking-news column when the lynch mob hit Glen Clark? The comparison to a casino deal, one in the basement of a small hotel, the other a huge enterprise attached to a gigantic public facility, should not be lost on anyone.

Were Palmer and the other Campbell cronies of the day only mumbling about "bad judgement" in Clark's case. I seem to remember the howling of dogs and the sound of daggers being drawn....

It smells alright, it smells of collusion by the media....
 
NDP justice critic on BC Rail case: Be "extremely careful."
By Vaughn Palmer 6 Apr 2010 View from the Ledge
With the legal proceedings arising out of the raid on the legislature finally scheduled to go to trial next month, the public should hope to learn more about the sale of B.C. Rail and not be concerned about the recent ban on publication issued by the judge.

So says Leonard Krog, New Democratic Party critic for the attorney-general's ministry and himself a lawyer.

"British Columbians are at long last -- something I always hoped would come -- going to get to hear the story behind BC Rail and its sale," said Krog during an interview with me Thursday on Voice of B.C. on Shaw TV.

Well, maybe not the whole story.

"In a perfect world, I would love to believe that the whole story will be made clear during the course of the criminal trial, " he added. "I don't think that will necessarily be the case. "..........then He says

Krog's concern that the whole story may not come out in court does not extend to the recent ban on publication of evidence in the case.

He said the ban arises in part out of the unusual way the case developed. For most of the proceedings, the defence was seeking to have this case case tried in front of a judge alone, which rarely occasions a need for an extensive ban on publication. But the defence recently "re-elected" -- opted for trial by jury instead.

But with a jury, there's a concern that the potential pool of jurors not be tainted before the jury is chosen, which won't happen until later this month. Nor is that concern dispelled once the jury is chosen, because in this country, jurors are rarely sequestered in the course of the trial.

As a result, says Krog, once the defence has opted for trial by jury, you have to be very careful about what is reported before and during the trial.
READ THE ORIGINAL STORY/CUT
"Extremely careful," he emphasized. "What it means is that evidentiary issues that a judge would just hear and then decide whether the evidence would be admissable or not are now going to be heard in the absence of a jury. The jury will have to leave the courtroom. The lawyers will argue. The judge will make a decision. Therefore there is a very strict ban on publicatin of those kinds of proceedings that occur within the trial."

The ban, coming this late in the day, does mean that matters which were formerly the subject of considerable comment and speculation, are now severely restricted, pending the outcome of the trial. But does he, as a sharp critic of the government's handling of both the BC Rail sale and some aspects of the case to date, have any concern about the ban as it is currently worded?

"No," replied Krog, "because at the end of the day this is about the accused being able to answer the charges being brought against them by the state -- by you and me, by the crown. They're entitled to a fair trial. They're entitled to presumption of innocence and the only way they're going to get that is if they have a jury that goes in there without bias."

Krog's admonition -- be "extremely careful" -- will also have to apply to any comments on the case

-----Concerned or not concerned???
Ok back to the top "the public should hope to learn more about the sale of B.C. Rail and not be concerned about the recent ban on publication issued by the judge.

So says Leonard Krog,
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http://communities.canada.com/VANCOUVERSUN/blogs/viewfromtheledge/archive/2010/04/06/ndp-justice-critic-on-bc-rail-case-and-publication-ban.aspx
 
I'm sorry but Leonard Krog is very similar to the law itself or "an ass!"

How about that "publication ban" on the Wee Willy Pickton trial in New West. Oh yeah, there wasn't one, indeed they had a goddamn DAILY column on the trial, EVEN during periods when the trial was in recess. Not to mention wall to wall coverage of every shovel full of evidence dug up at the farm in the lead-up to the trial.

On another note, though I regret the murder of Ms. Beaudry-Ladner in Point Grey, the difference in priority with which the RCMP have treated the so far fruitless search for her killer stands in stark contrast to the concern shown for the scores of missing women from the DTES for years until it became the spectacular news story of the millenium once the police considered actually going to the pig farm "on duty."

I guess it just goes to show that murder is more serious, or not, depending on the victim. Just like the law applies to everybody equally, except for certain folks!

By the way for Wally Oppal and his succesors, I hear Wal-Mart is opening a new "Special Prosecutor" department, complete with marked down prices and a wide selection to suit any special considerations, and a contract with VANOC and the IOC is more important than the paper the Charter of Rights is written on.

Didja hear "snow-blading" is going to be in the next winter Olympics? If you don't know what that even is, join the crowd. I do know what women's ski-jumping is and I know a lot of women do it WELL!
 
The ban, coming this late in the day, does mean that matters which were formerly the subject of considerable comment and speculation, are now severely restricted, pending the outcome of the trial.

I can't see why this ban isn't unconstitutional. A court should have NO POWER to order sealed information that has already been in wide circulation; and more to the point, information which was ordered released by her predecessor.....

I also think that the jurors selected will be rigged every bit as much as the position of Special Prosecutor has been, as well as the transposition of judges and the sealed warrants etc etc etc

A court does not have the right to "seal history", or to ban discussion of known events.

Well, in China they do, of course.....

I gather that the publication ban also covers any information about the selection hearings for the jury, huh? So we can't know why this or that person was not acceptable to either side? Or we can't know who was excluded for being too familiar with the facts as already reported....or who might have a negative impression of the proceedings, the government, or CN or or or or ??

Of course, it helps that the mainstream media has been systematically not-covering this case since its inception....it should be easy to find someone who only reads the sports, celeb news and travel sections of their papers.....and who has no political conscience whatsoever, or sense of right and wrong.....
 
postscript: of course, it won't be the first time that violations of the constitution and the Charter have gone forward, without any possible means of public recourse to prevent it.....
 
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