The Legislature Raids

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By Robin Mathews
January 4, 2012

The question of our higher courts has come up again. It's been sparked by some rumblings about the U.S. federal court - pronounced there by some -"th' feral court" - not inappropriately.

Here at home, here in B.C., the higher courts as self-supervised, self-controlling entities have come more and more into question.  For a long time Canadians thought highly of the supreme courts, believing they were a bastion of fairness - maybe slow, maybe complicated, but fair. Canadians believed the best people to guard the integrity of those courts were their members. That belief is fading very, very fast. And it's fading all the way to - and including - the Supreme Court of Canada.

The rule of law in Canada is in jeopardy.  It is treated with contempt by politicians in power. The courts ruled that the Harper moves against The Wheat Board, for instance, were in violation of the requirements of fair consultation. The Harperites laughed and said "we make the laws". A catalogue of times the Harperites have shown open contempt or open disrespect for the rule of law in Canada is a growing, dangerous catalogue. The rule of law is also treated with dubious propriety by some of the judges themselves - a fact which is like a blow on the head with a hammer when you watch it happening. (Or when it happens to you.)

In B.C. - in relation to the BC  Rail Scandal trial, the trial of Dave Basi, Bobby Virk, and Aneal Basi for fraud, money-laundering, accepting a bribe, etc. -
the integrity of the court is in serious question.  Two things happened, in which I was engaged, ("I was there.") that sent my head spinning.

Look at the least important first. This column will be about the first example. The other will follow. When the trial began (after years of pre-trial), we who had been covering it from the start were told that everyone had to gain journalistic accreditation in order to see materials placed on public record* and to be permitted to carry a recorder into court in order to check quotations and such to assure accuracy of reporting.

I began my career on a small town newspaper.  I have written for papers and magazines all my life, besides writing books, what are called "learned articles", supervising graduate theses in universities, and so on. And I had been covering the pre-trial hearings almost daily for all the years they were being held.

I was refused journalistic accreditation when the trial began. By whom?

Before answering that, look with me at the * (asterisk) above.  I put an asterisk on that statement to accent its location. Anyone needed "journalistic accreditation" in order to see materials placed on public record.  That is a contradiction in terms. If materials are placed on public record, ANYONE IN CANADA has access to them.  Except ... except ....  Except there may be very rare cases where putting materials on public record might require that they be held back for a time for very, very special reasons ... rarely.  That should be on very, very, very rare occasions.

In the Basi, Virk, and Basi case materials placed on public record during the trial could not be seen by the public.  I believe that was ruled in order to protect people who did not have the right to be protected. I believe that decision was made in defiance of the rule of law in Canada. The materials could be seen by those given "journalistic accreditation".  People who were given journalistic accreditation were the smug, in-group circle of journalists.

People who decided who would be given journalistic accreditation were neither the judges on the bench nor their "officers of the court".  The people who decided were from the "smug, in-group circle of journalists".

How could that happen?  There is, apparently, a judge who oversees the committee of journalists.  Those journalists are given the power of the court to sit on applications and decide who will be granted "journalistic accreditation".  Men and women - who are supposed to be completely independent of the courts because they report on them and may have to report negatively on judges - are now made, in fact, officers of the court themselves!  Their conflict of interest is so obvious it should cause huge embarrassment to the judges and to the journalists themselves.  It doesn't.

When I was refused, the spokesperson for the vetting committee was Vancouver Sun journalist and court reporter Neal Hall. He said I could ask the judge on the trial to change the decision to exclude me.  I wrote to Associate Chief Justice Anne MacKenzie.  She refused, of course, to address me.

But a little later one of the legitimate officers of the court wrote to me and told me that I could make out an application, submit it [PAY FOR THAT PRIVILEGE] and have my application "considered" - no guarantee I would be granted "journalistic accreditation".

I wrote to the officer in question and pointed out that in doing what she suggested I would be APPEALING a  decision by the court.  The first hearing - approved of by the structure of the B.C. Supreme Court - had denied me accreditation.  Now I was invited to appeal that decision.  I stated clearly that I didn't believe the first consideration legitimate and so I would not - under any condition - join the misuse of justice and lodge an "appeal".  I heard no more.

Three more important points:  (1) The Special Crown Prosecutor, William Berardino, was appointed (illegitimately) in violation of the legislation governing such appointments. I confronted Neal Hall with the fact that he refused to report that hugely important matter. Mr. Hall refused to respond when I pointed it out to him.

(2) At the end of the trial a very strange piece of manipulation was undertaken.  The Globe and Mail and others asked the Court to release the police investigation reports and other materials on the accused (and not on any others).  Those reports, read in isolation, just happened to paint the accused in very dark colours. The judge granted that request ... for a selected release of materials.  Then Janet Winteringham - for the prosecution - rose and said that the reports were delicate and she believed that while they should be placed on public record they should only be examinable by ACCREDITED JOURNALISTS!!  The judge agreed. That was - I believe - an astonishing misuse of the court's powers.

All that material went on public record but only accessible to what I believed were people who would not assess it critically, but would follow 'the party line' and report in a way that would support the Gordon Campbell circle. In my judgement that is exactly what happened.

Leaving the courtroom from that event, I said to a lawyer (who will go unnamed) that I had a strange feeling during the event that there was one person the prosecution was aiming at, one person the prosecution did not want to see the police investigation reports - and that person was me.  The lawyer chuckled and said he thought I might very well be right, but please, he said, don't quote me.  If I am right, the judge and the lawyer for the prosecution worked to keep materials on public record from the public ... and especially someone who had been following the case from the beginning and reporting on it in a way the Mainstream Press and Media did not like, the prosecution didn't like - and the judge on the trial did not like.

(3)  In what I am going to write now I do not wish, in any way, to asperse Neal Hall, reporter for the Vancouver Sun.  Not  having seen him since the close of the trial in October 2010, I ran into him by accident very recently.  I was determined not to mention our differences, but to cheerily move on.  But he brought up the subject and suggested that I had undertaken an internet campaign against him. I only point that out because he seemed to me to see nothing wrong whatever with the process of which he is still a part - the screening OUT of people so they may not see materials "on public record" in the B.C. Supreme Court. In our brief, unhappy discussion - which I did not want - Neal Hall suggested that being denied the right to see materials from the court on public record and being refused permission to take a recording device into the courtroom were really not important matters. Our conversation ended there.

I wrote above that I have no wish to asperse Neal Hall, and that is true. (Apart from this mess I like him.) I want merely to point out how far from the fair administration of justice and how far from the rule of law we appear to have moved. The actions of the presiding judge on the case are one thing (to be dealt with in the next column). But a  major reporter for a major Canadian daily newspaper is (seemingly) without fundamental knowledge of what 'the administration of justice' means in Canada. He seemed to me to be ignorant of the role of the courts, and the purpose of a presiding judge. He seemed to be ignorant of the fundamental rights of all Canadians in relation to trials in which the Crown (for the people) is prosecuting a person or persons who have allegedly committed acts (crimes) that violate the whole society.

One of the fundamental principles of law and justice in Canada is that no judgement made in secret can be a good judgement or can be believed.  For that reason our system demands openness.  We call our system "an open court system", meaning that trials are held publicly.  They are held before any members of the public who choose to be present. When materials are placed "on public record" that means exactly what it says - as a part of "the open court system" - materials placed on public record are there for the public to examine.

Our court system is in very, very bad condition. When I began attending the pre-trial hearings of the Basi, Virk, and Basi case, I had no idea how deeply troubled and how dangerous the system is.  I have described what I call "the least important" of my negative experiences. The more important of them I will relate in the next column.

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Comment from Gary E. relates to these issues:


This appears to be a good place to add some questions I had in 2008 to the prosecution. There had been some manipulation of the courts in that dates were changed just prior to court sessions. Many of us were pissed off at what was going on so I decided to ask some questions to Mr. Berardino. Following is that email:

"I am writing to you as a very concerned citizen regarding the recent developements of case #23299 of which you are the special prosecutor.

"There was a hearing tentatively scheduled for May,2,2008 which was changed by you to one day earlier, May,1,2008. A reason given by a sheriff in the courthouse was that you did not want to deal with the
public.

"I would like to hear from you personally whether or not this allegation is true. You see as a citizen of this province and this
country I cannot beleive that this statement was even thought of.

"Secondly, there was a question about a letter written by Mr. McCullough to four people who don't want to be examined or
cross-examined in court. Was this question dealt with on May,1,2008. And if so, what was the outcome?

"I am one of many Bloggers on the internet following this case and I would surely appreciate some answers from you ... But answers to these questions may surely help me make some sense of what is going on."

The response I received was from a lawyer in Berardinos office. I was denied permission to print that response but I can tell you that the blame was laid on the defense. The defense disagreed with that response so the prosecutor refused permission.

It may be worthy to note here that the "accredited media" never asked these questions and I still wonder why they didn't pursue the matter. When they  refused to grant Prof. Mathews it made sense to me.

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