The Legislature Raids

.

By Robin Mathews
September 29, 2010

In his worst nightmares of a Legal System gone crazy, Charles Dickens couldn’t have painted a Bleaker House than is coming into view out of the Vancouver fog in British Columbia’s most important public criminal trial in its history.  It is a trial that calls into question almost every aspect of the integrity of the government in power.

Pre-trial hearings, dogged by delay and legal obfuscations, lasted more than three years. That happened after strange, long delay in the laying of charges and the unacceptable “hiding”(still maintained) by then-Associate Chief Justice Patrick Dohm of the largest part of the search warrants key to the matter. (The “hiding” – the failure ever to release the major portion of the materials – leads, of course, to suspicion Gordon Campbell and associates are being especially protected.)

The latest moment of Bleak Comedy has been presented by the second Crown Witness to appear (Brian Kenning, a former director of BC Rail) disappearing in mid-cross examination to attend (apparently) a birthday party in Toronto (says gossip in the outer corridors of the Law Court building)!

This morning – apparently for Mr. Kenning’s convenience – the jury was sent away until October 12, and the court will not sit on this matter again until next Tuesday (Oct. 6), when a publication banned session will continue.

“Three Brown Men” (as I term them) – all appointed from the premier’s office, and government aides of some importance - are being tried for (variously) breach of trust, fraud, and money laundering allegedly undertaken in a small, dark corner of the BC Rail transfer from public ownership into the private possession of Texas-headquartered CNR.  The corner may- it appears more and more possible - have existed, however, in what may have been a huge edifice of fraud and breach of trust erected almost painstakingly by major Gordon Campbell politicians and major Corporate actors in the province.

That aspect of the matter remains muffled in the Bleak Fog of Vancouver because no charges have ever been laid in that direction. The top BC RCMP officer, Deputy Commissioner Gary Bass, refuses to undertake criminal investigation of the chief actors in the transfer of BC Rail to CNR.

The “trying” of the case seems almost to be a gigantic game of hop-scotch in which the major activity may be to leap over the guilty ‘important public figures’ in order to land in the small, dark corner where, allegedly, “three brown men” – with one white one who has been given immunity from prosecution and made a witness – were allegedly working to do bad things in which they were seeking personal gain, for which they have been charged.

As if all that isn’t enough, the Special Prosecutor acting for “the Crown” was improperly appointed and shouldn’t be in the courtroom.  The implications of that are enormous, apart from the fact that Mr. William Berardino seems to have something less than a firm hand on the movement of the trial.  A Crown witness (Mr. Berardino’s witness) – in process of cross-examination – has just disappeared (apparently) to a birthday party in Toronto (as corridor gossip has it. Wherever he is, he was plainly not in view in the Law Courts).

While the witness is “friendly” and a willing participant, the call of honourable behaviour, most British Columbians would believe – if no other pressure were upon him - would assure that Mr. Kenning would be in Vancouver, in the Law Courts building, for the whole period of his (after all, not long) court appearance.  True, a juror fell sick, and one of the accused fell sick and is still sick today, throwing off the schedule a little.  But in the most important public criminal trial in British Columbia history couldn’t the Crown? Couldn’t the judge? Couldn’t Mr. Kenning’s own sense of propriety? insist he remain in Vancouver and be available at the court for the few weeks required to finish his period of testimony?

Doesn’t his absence suggest that he has something less than the highest respect for the administration of justice in Canada?

Apparently not.  And so the trial – a masterpiece of delay and judicial hide-and-seek – is delayed yet again while the world waits for Mr. Kenning to return (it is suggested) to Vancouver.

He went (apparently). Associate Chief Justice Anne MacKenzie apparently doesn’t blame him – for she didn’t even hint such a thing when speaking to the jury about the delay. She hardly mentioned his name.

If Mr. Berardino’s hold on the case, in my view, is not sturdy (since he shouldn’t be in court at all, and since he has been constantly, it seems from the beginning, springing material on the Defence as if he doesn’t know court protocol and manners), hers is equally shaky, in my judgement. She didn’t preside over the largest part of the pre-trial process.  And she appeared as judge as if conjured up by a magician.  The removal from the case (partly by promotion to the Court of Appeal) of Madam Justice Elizabeth Bennett was not completely – as we all like to say these days – “transparent”.  It had the colour, to some, of political expediency. And so the appointment to the case of Justice Anne MacKenzie couldn’t help but fall into the shadow of Elizabeth Bennett’s “promotion”, and its scent of political expediency.

But we can be sure that her own promotion to become Associate Chief Justice Anne MacKenzie, shortly after she took over the BC Rail Scandal trial, has not a hint of political expediency about it.

The view is Bleak. Bleak is the Mainstream Press and Media refusal to present sound background to almost any political news story in the province – and to this one especially.  Unanimously, for instance, it is refusing to report Mr. Berardino’s wrongful appointment – as just one example of its shortcomings in the matter.

As I write this report, moreover, Wally Oppal (former lawyer, judge of the BC Supreme and Appeal Court, and former Attorney General) has just been appointed to head the Inquiry into the legal and police and Attorney General-related failures in the murders culminating in the Robert Picton conviction. The appointment is a staggering affront, I say, to any sense of justice in the province.  The only person to be heard with a hint of the horror that should be expressed at Wally Oppal’s appointment is Stewart Phillip, head of the Union of B.C. Indian Chiefs.  He is not a member of the media.

The acceptable press is pussy-footing and soft-pedalling shamelessly.  We need only take the column written in 24 Hours by David Eby of Pivot Legal Society (Sept. 29, 2010) whose Google entries express praise for his virtue that is only slightly less in magnitude than the praise expressed for Mother Teresa. (I ask how it is possible for social activists like Eby to be folded into “the club” so easily?)  I choose him to discuss because his virtue is trumpetted with such éclat.

Eby doesn’t object in his column to Oppal’s appointment, though he says others will.  In fact, Eby says those who know Oppal and have worked with him “including me, [writes Eby] know he is impartial, fair and qualified”.  (That is not my experience with Mr. Oppal, but I am unimportant.)

Never mind my experience.  Does Mr. Eby remember the “Bountiful Bigamy” matter?  Does he remember that (Attorney General) Oppal violated the procedure for the appointment of Special Prosecutors, approached two top lawyers, Richard Peck and Len Doust to act as Special Prosecutors, one after the other.  And when – one after the other – they recommended with good reason against prosecution, Oppal dropped them, one after the other, and moved on until he had someone, Terrence Robertson, who would proceed with a case. [“Impartial, fair and qualified.”]

Does Mr. Eby remember the case went to B.C. Supreme Court?  Does he remember the judge stopped the trial in its tracks and said the Attorney General was special prosecutor shopping?  Mr. Blackmore – one of the accused in the aborted trial – wrote later, after taking a related case against Mr. Oppal: “we brought an action against the government and proved in court they broke the law.”

The instrumental breaker of the law has to be seen as Mr. Wally Oppal. [Impartial, fair and qualified.] Not only does David Eby not mention the bungled and sleazy Bountiful case, he is joined in that oversight by every other journalist commenting on Mr. Oppal’s appointment that I have heard or read. A number of reasons exist to object strongly against Mr. Oppal’s appointment.  Why do all media representatives fail to remember what is perhaps the most important reason?

In addition, Mr. Oppal’s refusal – when Attorney General – to answer any question whatever about the BC Rail Scandal and court process – in my opinion - made a mockery of the law, the court system, and the position of Attorney General. [Impartial, fair and qualified.]

The legal, judicial situation in British Columbia could be more Bleak … perhaps.  That’s not really the point.  The point is that the legal/higher court system in British Columbia is in collapse … and no one in any position of public influence and power is doing a thing to save it. In my judgement, the BC Rail Scandal trial is an on-going expression of the system in collapse…but it is only the highest profile case and the most important expression.