Monday, July 16, 2007


Random Notes from Courtroom 53

Robin Mathews

July 16, 2007

Hearing in the Basi, Virk, and Basi proceedings took place today in Courtroom 53. A number of familiar journalists were not present. Is it holiday time in Vancouver or did they get word there'd be little to cover? There was plenty to cover.

The hearing was, in some ways, to mark progress on the gathering and distribution of evidence asked for in the last Applications for Disclosure. And, especially, to report on the administration of the orders made by the judge to get evidence in and to the Defence.

Hearings plod on, but there is no certainty they will eventuate in a trial. Justice delayed is justice denied, and under the eye of Madam Justice Elizabeth Bennett, the snail's pace ... continues. That brings up a philosophical question ... to follow.

The disagreement about efficiency of collection (by the Crown) and availability (to the Defence) of materials asked for continues unrelentingly. Prosecution, again, insisted that mess must be avoided and everything about its delay bore on the necessity to produce clean, clear, certain materials. (That is a little funny in the light of the past record of the Prosecution - the Crown - which, again and again produced incomplete or badly described materials.) Defence reported that some (late) documents (arriving because of the court order) are of considerable importance.

Defence was not happy with the Crown's explanation for delay, and it cited letters written over and over to the Crown requesting a schedule to review the Drug files. The Crown made no reply. It was apparently too busy with important work to acknowledge and reply to letters from Defence. On the one hand, Defence is demonstrating to the Court apparent fudging by the Crown. On the other hand, the Crown is perhaps saying "we're in charge here, and we will direct the movement of the process. We, after all, are the Crown."

Whatever the case, the delay in beginning the Drug files Review was a good month.

One of the orders Madam Justice Bennett made was that the Special Prosecutor answer three questions about the deal or arrangement made with Erik Bornmann ("Star Witness") and his lawyer by William Berardino, Special Crown Prosecutor. That was brushed past quickly; there were no documents.

And yes, Bill Berardino was there, Bill looked all sleekit and smooth, making only one or two small interventions. But Janet Winteringham carried the can for most of the day.

Defence asked earlier for the right to cross-examine Berardino and the lawyer for Bornmann. Madam Justice Bennett invented the three questions instead. To a layman, the cross-examination would have been very, very important. Was Madam Justice Bennett avoiding embarrassment for the Crown? Who knows? As it was today, the matter passed in seconds. Apparently insignificant.

The two teams had to face unrealistic dates for further hearing and to readjust them. So they will have a conference call hearing on August 13 and aim to have the Drug files Review finished for a hearing set on September 4, when they can discuss success with obtaining third party materials - connected frequently more closely to the Campbell government. Then there is a voir dire in October, and then...and then....

Philosophically, the question persists. Are the delays necessary? Defence seems to think they are not.

The question persists: is Madam Justice Bennett doing enough to move the proceedings along. Today, again, she asserted that she wants to move things along. Does she, really? The question poses itself because - as I said before - she has power to order that things be done within time limits. If the Special Crown Prosecutor had to hire three new assistants to get material processed and to the Defence - I believe the taxpayer (who is footing all the Crown's bills) would be happy.

Shouldn't Madam Justice Elizabeth Bennett have said to the Crown today: "You are taking too long. You are being paid by the taxpayer who wants to see justice done. Get a few more assistants and GET THE MATERIALS to the Defence by X date, and if you don't do it with scrupulous exactness, you will hear from me."

Defence made a plea today that it works on retainer from the accused. It can only spend so much and can only have so many people pulling all the materials together. That is not the case with the Crown which we, the taxpayers, pay for. For the most part, however, the Crown has been delaying and Defence has been trying to speed things along. Doesn't Madam Justice Elizabeth Bennett see that? If she does, she gives no evidence of doing so.

This is a pre-trial process that - more and more - seems to implicate in deepest suspicion of wrong-doing cabinet officials, RCMP officers, top political Liberals and the government of Gordon Campbell in what may be the highest malfeasance in respect to the corrupt sale of BC Rail. I do not have the slightest doubt that in a matter of such grave importance to justice in Canada and to the proper conduct of public affairs for the population of the country the court has powers to move the action forward and to open it up in ways of fundamental importance.

That does not appear to be happening.


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