Wednesday, November 28, 2007


"Emotional exhaustion" in B.C. courtrooms ... and outside, too

During this week of waiting for the next instalment of the Basi Virk Basi / BC Rail Case, here's a glimpse behind the curtains of the courtroom performance. Our guide is Donald Brenner, Chief Justice of the B.C. Supreme Court.

Followed by a Citizen's comment on the same topic. - BC Mary

Judge points out the difficulty of gaining courtroom experience

Ian Mulgrew
Vancouver Sun - November 28, 2007

The high cost of civil litigation means young lawyers are failing to receive needed trial experience, B.C. Supreme Court Chief Justice Don Brenner insists.

"I think it's a real problem," he said in an interview this week.

"We think there is a vacuum for younger counsel to gain trial experience."

But that's just one of the problems besetting the legal system that rarely receive public attention.

Another, for instance, is that the Supreme Court has been hit with retirements and a death this year that have led to its losing almost 10 per cent of the sitting judges.

On that front, Justice Brenner said he's hoping Ottawa is on the cusp of appointing a half-dozen or more judges.

The Supreme Court, he noted, normally has a complement of 88 justices (86 regular members and two associate chief justices) but is currently down seven justices.

"That strikes me as a lot," Justice Brenner said. "We had a number of vacancies created this year coupled with the judicial affairs adviser [who helps evaluate potential candidates for the bench] resigning, so the [federal justice] minister has taken some time to replace that person. {Snip} ...

In part, the situation is a reflection that the cost of legal services is far too high. Many people can't afford to go to court so the number of trials being scheduled is declining in part for that reason.

But also legal system stakeholders in the past few years have been adopting reforms to steer civil and family cases away from trial.

At the same time, large law firms don't want to write off the cost for junior lawyers in the name of education or apprenticeship.

By the time that a matter can genuinely bear the expense of two lawyers, it's usually worth too much to entrust to a junior.

Those trends have led to the vast majority of lawsuits and family matters being settled out of court or through less formal adjudication processes.

The problem is not so acute in criminal cases.

Patrick Doherty, who chairs the criminal law section of the Canadian Bar Association's B.C. branch, said there was lots of opportunity to gain trial experience through legal aid defence and Crown work.

The civil side, though, saw legal aid funding slashed by the provincial Liberal administration during its first term and that hurt many young lawyers.

"My perspective is that 15 or 20 years ago there was a great ability for more senior lawyers to take junior lawyers with them to a civil case," Justice Brenner opined.

"That practice has tended to fall away."

Without such experience, junior lawyers can lack the confidence to make decisions that will cut to the nub of an issue at trial. Inexperienced lawyers can waste enormous amounts of court time putting every iota of information before the judge and forcing him or her to find the crux of the case.

The judiciary in the last few years has taken steps to address the problem and participates with the Continuing Legal Education Society in a kind of annual "boot camp" for young lawyers.

The course allows young lawyers to practise their art in front of a judge, have their performance video-taped and later it is critiqued and evaluated.

Justice Brenner said that's not enough.

"We're hoping the justice reforms we're proposing and getting federal backing on will result in more young lawyers returning to the courtroom if we have a process that's more efficient and more economical," he added.

"I want to see us focus on getting the cases to trial in a cost effective way. Some of the things we're trying have succeeded in returning young lawyers to the courtroom -- such as the rule change for cases under $100,000."

By raising the limit for small claims court, as well, more work was created for young lawyers because it is not worth a senior lawyer's time to take on such a file. As the size of the case can't bear significant legal fees, articled students and junior lawyers get a shot.

But those briefs fall by the wayside after a year or two in practice and a young litigator can wait years before seeing the inside of a courtroom again, and longer still before being called upon to speak as a "junior."

In spite of the impetus to have cases resolved through less expensive mediation or alternate adjudicative proceedings, Justice Brenner said trials must remain a cornerstone of the legal system.

"I don't think we should be channeling everyone away from formal adjudication," he insisted.

"The common law changes and adapts only with formal decisions. We need trials, but we need to make sure that the costs don't cause cases to fall away. And we need to make sure the process is efficient so it doesn't cause people to drop out from emotional exhaustion."

G West said...

Pardon me for a moment while I dry my eyes and compose myself to address this heartfelt plea:

"The common law changes and adapts only with formal decisions. We need trials, but we need to make sure that the costs don't cause cases to fall away. And we need to make sure the process is efficient so it doesn't cause people to drop out from emotional exhaustion."

Touched though I am, I mean really, who couldn't be, that Mr. Justice Brenner is concerned for the emotional, mental and “financial” (don’t forget financial) health of his brothers and sisters in the legal profession, I think the good man has gotten rather too exercised about the wrong situation.

And he's concerned about the wrong people.

The fact of the matter is, and I apologize for coming across in a lawyerly fashion, that the real problem here is the fate of the PEOPLE and not the damn lawyers.

I could start with a reference to Betty Krawczyk of course, she’s another ‘product’ of the legal system after all, and I’m certain she’ll be overjoyed (but frustrated) to learn of the Chief Justice’s affection for actual ‘trials’ where people get to call witnesses and plead their case. If I were her I think I’d keep a copy of Justice Brenner’s musings in an envelope in her handbag. Perhaps next time Madame Justice Brenda Brown considers a peremptory conclusion to an action by ‘dismissing’ an accused person’s right to argue his or her case before a panel of peers she could be reminded that the ‘common law changes and adapts only with formal decisions' in real trials

Coming from the Chief Justice, perhaps Madame Justice Brown would actually listen to such an argument.

You know Mary, that little statement from Chief Justice Brenner could as well appear as a new header on your website – but making it clear that the reference to folks who are in danger of dropping out on account of emotional exhaustion are not the young lawyers of the province.

In fact, the real concerns, and I wish Ian Mulgrew would now take as many words to express them instead of just covering the sympathetic musings of the chief justice, of the people are much more concentrated upon this simple thought: That the actual facts and the real truth about the way OUR government operates are in danger of being buried forever in the endlessly attenuated process of bringing Messrs Basi, Virk and Basi to trial at all.

Let’s have a little less concern for the young lawyers of the province and a little more concern for the state of Justice in this province.

As the Pickton trial goes to the jury, could we PLEASE move some of that army of reporters from New Westminster to the Law Courts in Vancouver? Not to diminish the importance of the Pickton trial (although I doubt the conditions under which the women of the DTES are living now will be much improved no matter what happens subsequently to Willy Pickton) I believe (perhaps hope is the better word) the outcome of the case Elizabeth Bennett is currently shepherding toward an actual OPEN trial has the potential to be far more critical to the kind of future and the kind of governance we get here in British Columbia.

I don’t know if the chief justice reads blogs Mary – but I hope a lot of ordinary concerned citizens do. This case is in serious danger of being derailed and unlike the mysterious CN derailment reported once on the radio yesterday I don’t think it should be allowed to go quietly.

And I know, not to be too hasty about this, that there are a great many other British Columbians, concerned about a wide variety of cases - some of which you and I know a fair bit about - who will also be really PLEASED that the Chief Justice is going to start to do something REAL about the handling and disposition of those cases too.

If I could only believe - emotionally drained as I am!


Good one, G West. Brilliant and timely. Many thanks. - BC Mary


Tuesday, November 27, 2007


Robin Mathews' offer to Judge Bennett

In order to fight what I believe is an offensive and unprecedented attempt to reshape the meaning of justice and equality before the law in B.C. and Canada, I have written the following letter to Madam Justice Elizabeth Bennett, judge of the Supreme Court of B.C.

xxx XXXXXXXX Drive,
Vancouver, B.C., VXX XXX,
November 27, 2007

Madam Justice Elizabeth Bennett,
The Law Courts,
800 Smithe Street,
Vancouver, B.C., V6Z 2E1

cc. Chief Justice, B. McLaughlin, Supreme Court of
Canada; Joe Comartin MP; Marlene Jennings MP;
Leonard Krog MLA; B.C. Civil Liberties Assoc.;
William Berardino, QC; Michael Bolton, QC;
Joseph Doyle; Kevin McCullough; Press/Media;

Dear Madam Justice Elizabeth Bennett:

William Berardino, Special Crown Prosecutor in the Basi, Virk, and Basi matters, announced to you, in courtroom 55, on November 23, 2007, that he will bring before you on December 3 a request to have witnesses (secret witnesses?) appear in camera to give their testimony. The meaning of the Latin phrase "in camera" in English is "in secret".

Since the intent of what we call "courts" and "trials" is to conduct the important legal business of the community before public representatives in open tribunals, a request for processes held "in secret" offends fundamental democratic transactions and freedoms. The accusations against Basi, Virk, and Basi are criminal accusations. That means the wrong-doings alleged against them and whatever treatment they may receive are of interest and significance to all Canadians; and so "the Crown", in effect, is the prosecutor, acting for all Canadians. Neither the Prosecution nor the Defence nor the judge presiding can pretend that Canadians in general are anything but profoundly interested parties in the case.

What is more, the charges brought against Basi, Virk, and Basi have arisen out of the scandalous and corrupt sale of B.C. Rail by the Gordon Campbell cabinet in which the three accused men acted as aides to cabinet ministers who are necessarily and by constitutional convention responsible for all decisions made on the B.C. Rail matter by cabinet.

That means every word uttered in your court on the Basi, Virk, and Basi matter is political. It cannot be anything else than political. You, yourself, cannot utter a word in the Basi, Virk, and Basi matter that is not political.

But "political" is not necessarily "partisan". The core of the question, then, is whether words and actions by you, the Special Crown Prosecutor, or Defence counsel are partisan words and actions? In short, are any of you acting or speaking on behalf of the Gordon
Campbell cabinet, the Opposition in the B.C. legislature, or some other political or corporate interest group with goals other than the goal of justice?

Suspicions of partisanship in the matters involved in the accusations against Basi, Virk, and Basi - as you must know - are rampant; and you, yourself, are not, I must say with respect and regret, excluded from the suspicions. The request by the Special Crown Prosecutor feeds directly into deeply unfortunate suspicions.

I have decided - all of those matters considered carefully - to present to you by means of this letter FORMAL REQUEST to appear, with full and equal status, in your court on December 3 to argue against the request (or application) by Special Crown Prosecutor William Berardino to gain your consent to hear in secret (in camera) certain witnesses appearing in the criminal fraud and breach of trust trial of Basi, Virk, and Basi.

I wish to be present in the court. I wish to argue - as Prosecution and Defence are given opportunity to argue. And I wish to argue as an ordinary Canadian - not one representing and defending the accused or prosecuting the accused.

What I am asking is, of course, "political" because I am deeply concerned about the state of political freedoms in Canada. The Berardino request constitutes, I believe, an attempt to gain extraordinary treatment that would, if granted, erase certain Canadian political freedoms. Your response will necessarily be "political" because it will be concerned with Canadian political freedoms. You must take the greatest care that your response is not (and is not "seen to be") partisan. You must take special care not to be "believed" to be serving the interests of the Gordon Campbell cabinet or any other institutionalized partisan force in the Province rather than to be serving justice.

I do not want to be instructed to "hire a lawyer". I do not want to be told about forms to fill out, depositions to prepare, or other. I am making, with deepest respect, a simple, straightforward request requiring a simple, straightforward reply.


Robin Mathews


This is one half of the article. For the full article, please go to Vive le

Thank you, Robin. - BC Mary.



Informer privilege rule vs open court principle

As impatient British Columbians try to sink their teeth into the B.C. Rail Case, one name after another is nominated as the mysterious witnesses who may (or may not) be allowed to testify in camera ... shielded from the public, the media, and even from the Defence lawyers. The Special Prosecutor offered "Paragraph 46" as the precedent for his surprise request.

Thanks to Bill Tieleman who "de-coded" and looked up that particular mystery, we too can see the guidelines which must be followed, if Madam Justice Bennett allows this request.

It's not a simple plea bargain, as I was thinking when I nominated James Seymour Duncan and Anthony Ralph Young who go to trial in 2008 with Dave Basi. These two developers are accused of allegedly bribing Dave Basi for illegal activities to exclude property from the Agricultural Land Reserve for a major Sooke-area development now known as Sun River Estates. It can't be a barter of convenience.

Rather, "Paragraph 46" seems to be talking about a life and death decision involving a police informer who had already been promised this protection. And according to the comment by Kevin McCullough (Virk's lawyer), it's usually a police informer with organized crime connections.

Note especially who is allowed to hear the testimony, as well as who is excluded. Wow.

We owe special thanks to Bill who presented the following excerpts and explanation in his "Rail-gate" article for The Tyee, as well as in his regular column at

The "Paragraph 46" that Special Prosecutor Berardino referred Justice Bennett to was almost certainly from Named Person v. Vancouver Sun [Air India testimony]. That paragraph and the ones immediately before and after, read as follows:

D. The Procedure to Be Followed

45 The interface between the informer privilege rule and the open court principle in the context of a hearing where a party claims to be a confidential police informant must at the same time allow for the protection of the identity of the informer from any possibility of disclosure and the maintenance of public access to the courtroom to the greatest extent possible.

In order to best illustrate how this can be achieved, I will in what follows set out a procedure to be followed in a case such as the one before the Court, where an individual who is in the midst of criminal or quasi-criminal proceedings for some reason discloses to the court his or her status as a confidential informer.

46 In such a proceeding, the parties before the judge will be the individual and the Attorney General of Canada (or the Crown). If the individual wishes to make a claim that he or she is a confidential informer, he or she should ask the judge to adjourn the proceedings immediately and continue in camera.

The proceedings will proceed in camera, with only the individual and the Attorney General present, in order to determine if sufficient evidence exists to determine that the person is a confidential informer and therefore able to claim informer privilege.

47 While the judge is determining whether the privilege applies, all caution must be taken on the assumption that it does apply. This means that under no circumstances should any third party be admitted to the proceedings, and even the claim of informer privilege must not be disclosed. The only parties admitted in this part of the proceeding are the person who seeks the protection of the privilege and the Attorney General. It is the responsibility of the judge at this stage to demand from the parties some evidence which satisfies the judge, on balance, that the person is a confidential informer.

Once it has been established on the evidence that the person is a confidential informer, the privilege applies. I cannot over-emphasize the importance of this last point. The judge has no discretion not to apply the privilege: Bisaillon v. Keable, at p. 93. If the person is an informer, the privilege applies fully.

That leaves some obvious questions -- is there a "confidential informer" who supplied police with evidence of wrong doing? And who is that person? Are they involved in other criminal activities, as the Air India informant was?

And it should also be noted that there appear to be two separate applications for in-camera witnesses, with previous mention of applications coming at the last pre-trial hearing, Nov. 16. There was no mention of excluding defence counsel at that time and Justice Bennett clearly appears to say that there are different applications to be heard.

December 3rd is the next and lengthiest pre-trial hearing.

From today's The Province:

E-mails from inside premier's office might do the trick

Michael Smyth
The Province: Tuesday, November 27, 2007

Two prerequisites for a political scandal to inflict maximum damage on any government: It's got to be visible. And it's got to be simple.

I'm convinced to this day that Gordon Campbell's Liberals deliberately refused to put the NDP's fast ferries into active service for this very reason. {Snip} ...

Last week, lawyers revealed in court that the Campbell government had coughed up thousands of new documents in the case, including e-mails from inside the premier's office.

The e-mails apparently track discussions between Campbell's staff and notorious lobbyist Erik Bornmann, who allegedly paid Basi nearly $30,000 for inside information on the B.C. Rail deal.

"The Bornmann e-mails are out of the world," gushed defence lawyer Kevin McCullough.

The Liberals are nervous as hell about what dirty laundry might spill out of the hamper.

Special prosecutor Bill Berardino, meanwhile, told Justice Elizabeth Bennett that some witnesses want to testify in secret: no public, no media and maybe even no defence lawyers allowed.

Who might these secret witnesses possibly be? Police informants? Campbell's staffers? Campbell himself?

The New Democrats are praying the whole thing explodes into a bombshell court trial -- and the timing could hardly be worse for the government.

The trial is set to begin in March -- just over a year before the 2009 election -- plenty of time for this invisible, complex scandal to morph into something truly damaging for Campbell and the Liberals.


Saturday, November 24, 2007


Corruption case e-mails linked to premier's office

Defence in raid on legislature examining thousands of newly surfaced documents

Neal Hall
Vancouver Sun

Saturday, November 24, 2007

A pre-trial hearing involving two former B.C. government aides accused of corruption heard Friday about thousands of e-mails that were recently disclosed to defence lawyers, which reveal links to the "inner circle of the premier's office." {Snip} ...

The e-mails reveal "what high-ranking people are telling him [Bornmann]," McCullough told the judge.

Defence lawyer Michael Bolton said of the e-mails: "They pertain to the conduits of information between the inner circle of the premier's office and the Ministry of Transport and the Ministry of Finance . . . passing information to key members of the premier's inner circle." {Snip} ...


Friday, November 23, 2007


Courtroom 55 is a large room ... the setting for a historic pretrial BC Rail Hearing


Pretrial Hearing Basi, Virk, and Basi, Friday, November 23

By Robin Mathews

A major explosion occurred today, and minor ones could be heard underground. Madam Justice Elizabeth Bennett worked scrupulously to line up scheduling for December 3 and after. Involved in some sort of sequence are many parts - B.C. Rail materials, Justice Department materials, further disclosure materials, boxes seized at the original legislature (search warrant) raids, third party materials, the Bornmann e-mails: some crossing over, some related, some possessing irrelevant material. 30,000 new pages of disclosure material was received in the last month, Michael Bolton, Defence lawyer said.

Two key matters emerged, to be dealt with a little later. In the meantime:

Defence hinted - but only hinted - that the Special Crown Prosecutor, William Berardino is [still] providing material inadequately and in a way that might be construed as deliberately obstructive.

Delays which are laid at the feet of the Crown (while probably possessing substance) are - I believe - largely the result of a presiding judge who has failed (a) to call early for disclosure material, (b) to prepare the way (with competent homework) to have materials in her care that obviously will be needed in the process, (c) to insist upon prompt, fully annotated, disclosure, attached to real deadline dates, and (d) seriously, meaningfully to rap knuckles for failure to comply. Behind all the wrangles that occur and have occurred in the case, is the judge who acts more as a referee than the key person "seized" with the matter.

In that regard the fact that January is out for movement on the case because of the prior commitments of actors involved seems to this ordinary Canadian a little outrageous. That fact, too, probably has to be placed at the door of the judge presiding.

As I have said before, this is not a case about break and entry into a warehouse. It is a case bearing significantly on the legitimacy of the government in power in the act of legislating for the people of British Columbia. And if there is the slightest question (and there is) that there may be or have been criminals among those who legislate in the present government, all slates should be kept clear, all attention should concentrate on the case, and pursuit of the issue should not be delayed for any reason.

Those things explain, in large part, why the role of Madam Justice Elizabeth Bennett must be figured in.

For people who only hear about the matter from some kind of media source, it might be interesting to know that courtroom 55 is a large room. Into it came 10 lawyers - Defence and the Crown huddling for minutes before the opening of the session, obviously trying to work out some agreements about process. In the large gallery sat about eight people to begin. No representative from the Attorney General's office, no lawyer for ex-minister Collins, no NDP justice critic. Madam Justice Bennett entered the courtroom at ten minutes past nine - and the hour was taken up with the scheduling problems, mostly, to which I have referred.

The two key matters: the first was almost incidental to the discussion, but it was thrust into play. In the Bornmann e-mails, in the B.C. Rail materials a shape of things (that should have been plain much, much earlier) involving "the inner circle", cabinet-connected figures, the "conduits" for information flow is beginning to be seen. That may open matters of involvement by the the directors of Basi, Virk, and Basi that the public has long wanted to know about. Whether it will mean further charges must be laid is quite another question. At this time.

The other key matter is the information the Special Crown Prosecutor provided that he will be asking for an in camera meeting with the judge - excluding not only press and public but also the lawyers for the Defence. A most rare request.

Historically, such a request is only made if the personal safety of a person or of persons is at threat. One must stretch one's imagination hard to think who might be physically endangered by information that the Defence, at least, shares, in relation to the Basi, Virk, and Basi matters.

To this observer, moreover, a side aspect of the issue threw into highlight, once again what I am led to feel frequently is the court's contempt for average Canadians. Asked outside the courtroom about the nature of the in camera application and whether the public and press would be able to hear the argument of the Defence against being excluded, Mr. Berardino (quite rightly) would not be drawn. The judge had said, "say nothing". He was obeying. Asked how press and public could learn whether they could be at the argument, Mr. Berardino said they should consult counsel (hire a lawyer to make representation for them.) Doubtless CanWest Monopoly Press and Media has counsel. But what about you and me?

I said that I believe the judge has an obligation (not a choice) to inform the public well before the event whether they may be present when the Defence presents its arguments against an in camera meeting that excludes it.

In normal circumstances, in a flourishing democracy, ordinary Canadians would know that their champion and informant would be the judge presiding who would aggressively care for their interests in the matter. The judge would "represent" you and me, and think about the exclusion from the point of view of our interest in being in the courtroom, particularly, and from the point of view of the interests of Canadians at large. She would hasten to tell the public if it is to be admitted or not.

This long process has made very clear to me that we will be very lucky if Madam Justice Elizabeth Bennett weighs our role in any serious way. The courts in Canada are increasingly a playground for the rich who play their games before judges; and the 'people' get in the way of the games the rich play.

Sincere thanks to you, Robin, for being our eyes and ears in Courtroom 55, and for connecting the elements into something coherent. Distresssing, but coherent. A very large virtual bouquet to you, once again. - BC Mary.



What?? See


Special Prosecutor in Basi-Virk drops bombshell - wants defence, media, public excluded from in-camera hearing on secret witnesses

Special Prosecutor Bill Berardino dropped a bombshell in BC Supreme Court Friday, telling Justice Elizabeth Bennett that he wants defence counsel excluded from attending an application on whether secret witnesses could testify in camera in the Basi-Virk trial.

Defence counsel for David Basi, Bob Virk and Aneal Basi appeared stunned by the submission by Berardino ...

Go to Bill Tieleman's blog for his full report. Unbelievable! - BC Mary.


Please don't think that I made this up, or that I deleted large chunks of this newz story. I didn't. This is Vancouver Sun's entire coverage of this stunning event in B.C. Supreme Court today:

Special prosecutor requests in-camera hearing without defence lawyers

Vancouver Sun
Published: Friday, November 23, 2007

Special prosecutor Bill Berardino made a rare request for an in-camera hearing where the defence lawyers are excluded at the pre-trial hearing in B.C. Supreme Court for Bob Virk and Dave Basi.

B.C. Supreme Court judge Elizabeth Bennet will hear submissions from the lawyers and various news organizations Dec. 3 to determine whether or not to hold the in-camera hearing.

Basi and Virk are former legislative assistants who are charged with supplying information about the B.C. Rail sale.


Yep. That's it. A crossroads moment in the B.C. Rail Case, as reported in British Columbia's flagship newspaper. So move along, folks ... nothin' to see here ... nothin' to worry about ... thank you, just keep movin' along ... - BC Mary.

Correction: I think I see what happened. CanWest published the abbreviated 3-paragraph piece first -- which I picked up. Then the longer, more detailed version by Neal Hall, was published in both Vancouver Sun and Victoria Times Colonist. Both appeared before sundown on the very day of the hearing. And that's a good thing! OK?

Victoria Times Colonist comes through!

Special prosecutor requests in-camera hearing without defence lawyers

Neal Hall,
Vancouver Sun
Published: Friday, November 23, 2007

A pre-trial hearing involving two former B.C. government aides accused of corruption heard Friday about a mysterious in-camera hearing scheduled for next month that would not only exclude the media and the public but also defence lawyers.

Special prosecutor Bill Berardino suggested to the trial judge that a two-day in-camera hearing be held Dec. 3.

"The media has to be notified," B.C. Supreme Court Justice Elizabeth Bennett suggested to the special prosecutor, who passed up to the judge a previous court ruling and asked her to read three paragraphs.

"I'm well aware of this decision," the judge said, looking at the court ruling, which was not cited in court. [See Bill Tieleman's blog for full explanation. - BC Mary]

Defence lawyer Kevin McCullough expressed surprise to hear that defence counsel would be excluded from any in-camera hearing.

"You're going to be hearing from me on that issue," he told the judge.

When the prosecutor tried to explain the need for the in-camera hearing, the judge stopped him, saying: "Don't say anything more."

McCullough said defence lawyers "think we've figured it out" what the reason is behind the need for an in-camera hearing,"

But again the judge said: "Don't say more." {Snip} ...

Three weeks have been set aside at the beginning of December to handle pre-trial motions and to vet some of the recent Crown disclosure, including another 30,000 pages of material and thousands of emails from Erik Bornmann, a former government lobbyist and well-connected Liberal who is expected the Crown's key witness at trial.

"The Bornmann emails are out of this world," McCullough told the judge. "There are thousands of them...How these emails weren't disclosed before June 4, 2007, may have to be dealt with."

The defence lawyer said the email reveal "what high-ranking people are telling him [Bornmann]."

Bolton said of the Bornmann e-mails: "The[y] pertain to the conduits of information between the inner circle of the premier's office and the ministry of transport and the ministry of finance...passing information to key members of the premier's inner circle." {Snip} ...



Confirmed: 23 Nov '07 at 9:00 AM Vancouver Supreme Court

Case No. 23299 (Basi Virk Basi / BC Rail) covers 7-1/2 pages of the Vancouver Supreme Court listings for today, concluding with "Application for records in the possession of the Province of British Columbia".

To see the Court Listings, go to the links in the left column and click on "BC Criminal Courts Vancouver Court direct. (pdf)

Madam Justice Bennett, at the last hearing on Nov. 16, said that today's gathering would be to "track progress". - BC Mary.


Thursday, November 22, 2007


Krog drops bombshell in BC Legislature, CanWest doesn't notice. But Bill Tieleman and Sean Holman have reports.

After Friday Nov. 16's Basi-Virk hearing, there was virtually nothing in the CanWest newspapers. I can't explain that. I doubt that anybody can explain that satisfactorily.

It was thanks to an astute reader that we first learned of the bombshell that was dropped in the B.C. Legislature yesterday, 21 November, about BC Rail. And Leonard Krog was the Opposition bombardier! Such a rarity! This could've been a "Man bites dog!" kind of news headline. But apparently not in B.C.

CanWest seems to be sticking to its view that "nothing happened. When it does happen, we'll report it." But apparently not if it involves B.C. Rail.

Luckily for the people of B.C., Bill Tieleman has a good report up on his web-site: "More questions raised in Legislature on relationship between ex-Deputy Minister of Finance, Paul Taylor, and Pilothouse lobbyists Erik Bornmann, Brian Kieran."

Also, Sean Holman, from Public Eye Online, wrote this:

By SEAN HOLMAN, 24 HOURS - November 22, 2007

The New Democrats are raising questions about top provincial bureaucrat Paul Taylor's relationship with former lobbyist Brian Kieran.

In the legislature yesterday, attorney general critic Leonard Krog released a 2003 e-mail between Kieran and his then business partner Erik Bornman. {Snip} ...

At the time the e-mail was written, Taylor was the deputy finance minister and Kieran and Bornman were representing OmniTRAX - one of the firms that made an unsuccessful bid for BC Rail.

Taylor is now head of the Insurance Corp. of B.C.

ICBC senior media relations manager Doug McClelland said Taylor was "not available for comment" on the e-mail.

Meanwhile, for his part, Kieran stated, "First, I must assume that this e-mail is part and parcel of matters before the court. And I find it somewhat alarming it has been trotted out by the NDP four months before the trial is set to begin."

"Second," he continued. "I have no recollection of the context around which this e-mail was written. It was almost four years ago. That said, my reading of it indicates the content was of routine government information."

And "third, throughout the disposal of BC Rail, when I was on the file for OmniTRAX I never directly lobbied anyone in finance at the deputy level or above. With respect to Paul Taylor, he did not have the BC Rail file. That job had fallen to Chris Trumpy."

Lest anybody imagine that Leonard Krog's bombshell passed unnoticed in the B.C. Legislature, here's a report from another astute observer who we know as eyesearswideopen:

eyesearswideopen said...

I happened to be watching Question Period today, as Mr. Krog brought forward this little gem in the Leg; as usual, you are on the mark with your up to minute news, Mary.

My ears detected the deafening silence coming from the Campbell Crew as this 'new evidence' contained in a little email, was dropped like stealth bomb vs the usual inane comments hurled at the Opposition on most days.

Seems the cat got their tongues on this one.

Body language spoke volumes: my eyes spied the sullen down turned mouths on Min. Les & Christianson seated directly behind the Finance Minister who was clearly at a loss, on hearing this nugget of truth land in the Leg . . . an omen perhaps of of the tangled web unraveling.

Bring it on Judge Bennett.

Tomorrow morning (Friday November 23 at 9:00 AM), Madam Justice Bennett will be back in Vancouver Supreme Court to listen to lawyers continue arguing the procedures (or lack of procedures) in the Basi-Virk-Basi-BCRail Case. Anyone who can be there, please send us your views. - BC Mary.


Wednesday, November 21, 2007


Brian Kieran to Erik Bornman: "Get Omnitrax together with the new CEO of Partnerships B.C. ...."

Hansard blues 21 November 2007:

Afternoon Sitting


L. Krog: Over a month ago the government released only a summary reporting letter from KPMG into the activities of Mr. Paul Taylor and the B.C. Automobile Dealers Association.

In this House on May 29, the Premier promised that the full review, the terms of reference, the documentation, the process undertaken, the steps taken and the full report will be made available on completion of the review.

The summary reporting letter does not meet the Premier's promised standard. It is quite simply a whitewash, and so my question is very simple. Will the Minister of Finance live up to the government's promise to this House and direct forthwith the release of the full KPMG report as promised?

Hon. C. Taylor: As has been said in this House, when the proper FOI process has been completed, information will be released.

Mr. Speaker: The member has a supplemental.

L. Krog: It's very clear that that process appears to be more of a delaying tactic than a process.

The opposition has received a further relevant e-mail dated January 27, 2003, from Mr. Kieran to Mr. Bornman, part of which reads: "Just got a call from Paul Taylor's wife. She is his message bearer. He suggests we get Omnitrax together with Larry Blain, the new CEO of Partnerships B.C., the P3 agency that Paul engineered. Larry is on holiday at the moment. Paul says all partnerships with government including BCR will be funded by Partnerships. We'll put this together next week."

This clearly shows that the real issue is the relationship between Mr. Taylor and Pilothouse, which KPMG was not instructed to investigate. This e-mail shows that Mr. Taylor was providing Pilothouse with a range of information dealing with the most sensitive and confidential government matters.

Will the Minister of Finance do the right thing and launch today a full inquiry with real powers to investigate the activities of Mr. Taylor?

Hon. C. Taylor: When the information came forward to the Premier's office, an investigation was launched with KPMG, a reputable firm. They found in their results that, in fact, there was no wrongdoing by Mr. Taylor.

If any new information is available, I would suggest that the opposition make it available to the Premier's office.



48 hours until next BCRail hearing, and a reminder from "Lynx" why it's important

First, there was this comment:
Anonymous said...

Sounds like the BC Gov't got a great deal selling off an asset which was declining in value and which even the private sector could not turn a profit with.

November 19, 2007 5:57 PM

And then lynx said...

absolutely wrong, anonymous 5:57.

Not according to an internal memo released by BC Rail in 2003.

BTW... think land deal, think "real estate" deal, think how that rail line snakes through "prime", previously inaccessible BC real estate, when you think of the sale of BC Rail. This was never about a rail deal....kinda reminds you of how our FN treaty process is being used to access previously inaccessible land as well.

Anyway, here's the 2003 news item ....and heeeere's Joy:

Internal memo shows BC Rail is earning a profit for BC taxpayers

Opposition leader Joy MacPhail yesterday blasted Premier Gordon Campbell in the legislature for breaking his promise to keep BC Rail public. MacPhail released an internal BC Rail memo showing the company is earning a profit and exceeding its financial performance targets.

"Gordon Campbell has been saying that BC Rail is a losing enterprise and needs to be sold to provide service to the North," said MacPhail. "But BCRail's books tell a very different story."

According to a confidential memo released by MacPhail, BC Rail made so much money this year that bonuses were paid to all managers at the railway. The memo clearly points out that the bonus was a direct result of an increase in the net operating income of the railway.

As well, said MacPhail, the three-year strategic plan of BC Rail states that it expects to make a further profit over the next three years.

MacPhail also said that the Premier, in his February televised address, said that BC Rail was being subsidized by taxpayers to the tune of nearly a billion dollars. However, according to BC Rail's strategic plan, the Crown corporation has not received a subsidy since 1993."What is notable is that the BC Liberal Party has received $158,000 in donations since 1996 from CN and CP-- the two main competitors vying for BCRail. Now Gordon Campbell is breaking his promise, and selling of a profitable public enterprise to pay off his political bankrollers."


It's all there in Hansard. Many, many thanks to "Lynx" who has a way of knowing where to look for these historic insights. And we desperately need to look for the answers. Big CanWest media in B.C. won't willingly tell the whole story. If reports on the B.C. Opposition are published, they're tailored to create a certain impression. And we must never forget that there were 185 new spin doctors added to the government payroll in Sept. 2006 by Order in Council. Some have suggested (were they kidding?) that "Anonymous 5:57" (above) may in fact have been one of those "Media Monitors" like Dave Basi was, hired to keep on tweaking the news to suit a political purpose. So thanks again, Lynx. - BC Mary


Tuesday, November 20, 2007


Secret witnesses? How will that work?

A report by Kim Bolan in Vancouver Sun for 20 November 2007 provides a glimpse of what happens when a trial witness asks for "witness protection" which is the most extreme form of protection involving money payments, a new identity, a new home.

Two people have requested to be allowed to testify "in camera" at the Basi-Virk / BC Rail trial. We assume they meant something less drastic than going into the witness protection program ... something which would allow them to go on with their lives without fear of reprisal. But ...

Exactly how would that work? Does it mean a mini-trial in Justice Bennett's chambers? and that we will never know what they said, who they are, how credible they appear, and, oh yes, who is threatening them?

There must be a better way to support people who are willing to testify at this important trial. This isn't a gangster nation. The B.C. media is certainly lax and biased, but the police aren't the KGB. If the witnesses trusted the citizens to hear their evidence, and to come to their defence against unfair media, wouldn't that be the best, most democratic way to give evidence about the people's business?

Meantime, here are some clues:

Toronto chief tells Air India inquiry communities have lost trust

Kim Bolan
Vancouver Sun -- Tuesday, November 20, 2007

OTTAWA - Police cannot protect witnesses in gang and organized-crime cases because their identities have to be disclosed to the accused once charges are laid, Toronto police chief Bill Blair told the Air India inquiry Monday.

Blair told the Ottawa inquiry into the 1985 Air India bombing that many violent crimes in cities across Canada go unprosecuted because witnesses feel they will be in danger if they to cooperate with police.

"What I hear so often from all of our communities, but in particular our minority communities is the lack of trust in the police," Blair told inquiry Commissioner John Major.

"When they say we are burning them, they are right. Because within 35 days of making that arrest, we are disclosing information to the defence counsel, to the Crown attorney, that will eventually get in the hands of an accused person."

He said that in Metro Toronto, accused persons have circulated witness statements to other gangsters and to neighbours of people cooperating with police, creating a climate of fear and intimidation.

"Sometimes if we have taken a videotaped statement from the witness, that will be passed out or appears on YouTube or is being shown around to the neighbours," Blair said.

Blair said the problem is even worse in so-called "mega-trials" with multiple accused and many charges that often take years to go to court while the witnesses wait in fear.

"All the while in their neighbourhoods they feel intimidated, threatened," said Blair, who was on a panel with RCMP Asst. Commissioner Raf Souccar, as well as Steve Chabot, of the Sûreté du Québec.

"We have this irony within the criminal justice system that we are unable to protect those people who come forward and it is not good enough, quite frankly, for me to say, 'Well, you have an obligation, so tough.'"

Major is looking at the issue of mega-trials -- particularly those involving terrorism cases -- to see if changes need to be made so that they do not go off the rails before verdicts can be reached.

The Air India trial, which ended with acquittals in 2005, was the longest criminal trial in Canadian history at 19 months, with almost two years of pretrial arguments.

Before the trial, some witnesses complained they felt intimidated because their witness statements were being circulated around the Sikh community by investigators for the defence team.

Since the new Anti-Terrorism Act was passed in 2001, there have been no terrorism trials that have made it through the courts, Major noted. Major said to simplify such cases, prosecutors and police may have to limit prosecutions to the "big fish" and let the smaller fry swim away.

Blair said police have done that in many cases, which has meant "a change of mindset in a policing perspective."

"We have to be more focused to be more effective," he said. "It does require almost a change in our culture because we used to go after almost everybody for everything and that just won't do any more and be successfully prosecuted."

University of Manitoba law professor Bruce MacFarlane ... said the disclosure problems could be overcome if the Crown and police have all the evidence ready in a package to hand over as soon as someone is charged.

But the panel of senior police officers said that is not always possible if they have to make quick arrests to protect someone from murder or potential harm in an unfolding investigation.

Meanwhile, Vancouver South MP Ujjal Dosanjh has been added to the Air India witness list and will testify Wednesday. Dosanjh has been a vocal opponent of violent extremism for two decades.


Monday, November 19, 2007


See Bill Tieleman's "Rail-gate" story on The Tyee. Then look at Grumpy's amazing comments afterward ...

Grumpy wrote:

Adiós CN

... I have heard an interesting rumour that CN wants to wash their hands of the BCR and sell it, at any price. The forest industry has dried up and the grades on the BCR are just too much for CNR managers.

The rumour I hear is that the line from North Vancouver to Whistler may be abandoned; and the rest mothballed.

Now, if this were to happen, what would Campbell's reelection chances be? and waiting in the wings another bird of prey "Falcon" may get his wings clipped by the CNR/BCR fiasco.

The real problem facing the CNR is the BN/Santa Fe would like to have a line through Canada to connect to Alaska, so abandonment and/or moth balling is out of the question. You see if the CNR sell off rights-of-way along portions of the line it will be near impossible for a competing railway to operate.

Evidently 2009 maybe the date when the CN/BCR deal really shows what was intended all along.

Maybe this is why 'BC Railgate' is so important to delay, delay, delay!

and while we're at it, here's a bit more from another Tyee reader:

And maybe now the $600 milion highway to nowhere that doesn't carry one spec of business traffic along its route (the Sea-to-Sky) can also then be shut down, rail service restored to Whistler, (1 train an hour with two at 6:00 am and 4:00 pm) and the endless conga-line of insane drivers in huge-engined 4WD behemoths can finally be abolished.

Sorry, wishful (green) thinking won't pass here, will it.....

Here's Grumpy again:

The newly minted 'Green' Campbell's selling BC Rail to CNR, was the most un-green act ever.

Now just returning from Whistler, I can see that some of the 99 needed reconstructing, but not all of it! Four lanes from Vancouver to Whistler is a trifle much.

But Campbell is anti rail and made sure that a 'rail' option was closed. Owning a railway makes operating passenger rail much cheaper and easier, than dealing with a company like the CNR.

The $6 million annually subsidized BCR Passenger service, pales with SkyTrain's now over $200 million annual subsidy.

When consultants were hired to discredit passenger rail, they were not allowed to use the Talgo 'tilt' train as a model for passenger service. (The Talgo's unique geometry and tilt action meant that it could increase average line speed as much as 50% on some sections of track! Talgo is used by AMTRAK from Vancouver to Eugene Oregon.) Using Talgo as a passenger train model would see much reduced journey times and a level of comfort superior to anything else available.

The consultant's report included the Bombardier bi-level commuter (passenger)rail cars, which because of their two levels, operate very poorly on winding track. This caused the study to assume even greater travel times than the old RDC'S (Budd Cars!)

By using passenger rail cars unsuited to the track geometry, the passenger rail study was skewed against a passenger rail service.

Now with the Olympics (TM) and the 'Green' Campbell, BC will become a world class example of gas guzzling SUV's, operating on super highways, built next to all but abandoned railway, is as green as one can get!

Thanks all: Bill, The Tyee, Grumpy, and the guy who's trying to find Paul Nettleton again in another of B.C.'s hours of need.

Later: Paul Nettleton is in Iqaluit working as a lawyer with Nunavut Legal Services Group. While he was a B.C. member of the Legislature, he served as Rail Critic.

Message to Paul Nettleton: please get in touch!

- BC Mary.


Saturday, November 17, 2007


Lawyers tussle over evidence disclosure


Canadian Press
19 hours ago

VANCOUVER - Lawyers keep wrangling in B.C. Supreme Court over disclosure of evidence in the massively complex corruption case stemming from a raid on the B.C. legislature four years ago.

"There are some monumental disclosure problems," defence lawyer Kevin McCullough told Justice Elizabeth Bennett in a hearing Friday.

But special prosecutor Bill Berardino rejected McCullough's complaints the Crown was dumping thousands of documents on the defence without an easy way to sort through them while not disclosing other relevant files. {Snip} ...

McCullough represents Bobby Virk, who along with Dave Basi is charged with fraud and breach of trust related to the privatization of Crown-owned BC Rail.

The two were ministerial aides when the provincial Liberal government sold everything but the railway's right-of-way to CN Rail in 2003.

Police raided the men's legislature offices in December 2003, about a month after the $1-billion deal closed, carting away boxes of documents.

Disclosure has been a sore point with both McCullough and Basi's lawyer Michael Bolton.

This week, McCullough sent Berardino a letter detailing what he said were the Crown's shortcomings and demanding what the prosecutor said was a huge list of items.

Berardino said he will address the demands in the letter at a hearing scheduled for next Friday.

The case is expected to go to trial early next year, with three weeks of pre-trial motions scheduled to start Dec. 3.

Bolton said he is still sorting through 25,000 pages of documents disclosed Oct. 3 from an overlapping drug investigation.

There are also 800 pages of wiretap logs and Bolton said the defence got thousands more pages on Wednesday. They include an e-mail account belonging to Eric Bornmann, a lobbyist for failed bidder OmniTRAX, who has admitted bribing Virk and Basi but is apparently co-operating with the Crown.

"It's important material," said Bolton. "He's a central witness in this thing."

A package of several thousand pages from a government proceeds-of-crime investigation has also come as a surprise, Bolton said.

"That's new material," he said.

McCullough said the defence is only just finding out about several other RCMP files, including one known as the headquarters file, another on legal applications and one know as Special I (intelligence).

"We are still reliant on the RCMP on what is supplied and not supplied," he said.

Bennett, who has expressed frustration at the pace of the case, ruled earlier this year there was a substantial failure by police and the Crown to disclose evidence.

The defence said last month it planned to file an abuse-of-process motion that could derail the case altogether on grounds the delays have violated the accused men's constitutional right to a speedy trial.

Once again, thanks to Bill Tieleman who forwarded this CP story to me (which, to this time, I've been unable to find). - BC Mary.
November 16, noted in passing. It was 122 years ago, 1885, that they hung Louis Riel.


Friday, November 16, 2007


Basi-Virk Case - Secret witnesses, 5000 pages of new evidence, "rant and rave" accusations, Bill Tieleman was there in Supreme Court today!


By Bill Tieleman

Secret witnesses, 5,000 pages of new evidence and accusations by the Special Prosecutor that a defence lawyer was “ranting and raving” marked the latest BC Supreme Court hearing Friday in the BC Legislature raid case.

The testy pre-trial hearing saw verbal fireworks fly as the long-delayed trial of BC Liberal ministerial aides David Basi and Bob Virk on breach of trust and fraud charges heard more accusations of the Crown and RCMP failing to properly disclose evidence to the defence.

Virk’s lawyer Kevin McCullough blasted Special Prosecutor Bill Berardino after the defence received 5,000 more pages of evidence that had been ordered disclosed by Justice Elizabeth Bennett some months ago. McCullough said he had sent Berardino a lengthy letter complaining again of late disclosure.

“There are some monumental disclosure issues, extreme problems of disclosure,” an exasperated sounding McCullough told Bennett.

“We’re still dependent on the RCMP to decide what to disclose. When you hear about what the RCMP decide is relevant you are going to be very, very, very surprised,” McCullough said.

“We’ve just found there’s three more files, an inordinate amount of notes,” he said. “The [RCMP] Team Commander for 18 months – there is not a single note – nothing.”

That accusation brought Berardino to his feet.

“Mr. McCullough can get up right now and rant and rave but there’s a process and I will respond to his letter point by point. But I do not agree with his position,” Berardino said angrily. He told Bennett the Crown would need about 10 days to reply to McCullough.

The trial also heard that two witnesses have requested that their testimony be given in-camera so they could not be identified in the media.

“The in-camera application – I may hear arguments from media counsel and need some time for that,” Bennett said.

There was no indication as to who the witnesses might be or what evidence they might give in the case.

The 5,000 pages of new evidence – which comes on the heels of 25,000 pages of new evidence given to the defence in October – comprises over 4,000 pages from the Integrated Proceeds Of Crime [IPOC] investigation and another 800 pages of hard copy wiretap logs, the court was told.

Michael Bolton, Basi’s lawyer, said the defence was still working through the earlier disclosure, much of it related to the $1 billion privatization of BC Rail in 2003. Basi and Virk are accused of providing confidential government information about the deal to lobbyist Erik Bornmann, who was working for bidder OmniTRAX at that time. Bornmann is now the Crown's key witness against Basi, Virk and Aneal Basi, a former provincial communications aide.

“I’m still going through that material – much of it is significant. Parts of it are notes of officers and are relevant for our disclosure application,” Bolton said. The defence plans to file multiple applications at a scheduled hearing December 3.

But Justice Bennett again warned both Crown and defence that she would not tolerate any further delays.

“As long as we’re clear – motions are going to proceed on December 3,” she said.

The latest developments concerned MLA Leonard Krog, the New Democratic Party critic for the Attorney-General’s Ministry who observed the hearing.

“It’s very troubling when you hear defence counsel talking about ‘monumental problems with disclosure’, despite what Mr. Berardino says,” Krog said in an interview outside the courtroom. “This isn’t a break and enter – it’s a raid on the BC Legislature. People could go to jail. It’s hard to think about a case that’s more important.”

Krog, himself a lawyer, said disclosure is a critical part of any case.

“There’s a tremendous onus on the Crown and the RCMP to disclose everything,” he said. “One can only speculate but on the road to disclosure somebody’s holding it up.”

Bennett confirmed that another pre-trial hearing will be held on Friday November 23 at 9 a.m.


Bolton told Bennett that part of the new information received includes material from Erik Bornmann's email account.

"It's important material. He's a central witness in this thing," Bolton said.

And McCullough alleged in court that the RCMP had wiretapped calls between the defendants and their lawyers, though he did not provide details.

"Solicitor client calls being listened to, passed on to other officers," he told Bennett.

Still looming is an abuse of process motion that Bolton, McCullough and Joe Doyle, Aneal Basi's lawyer, intend to file in an attempt to through the entire case out of court.

The defence would argue that the failure of the RCMP and Special Prosecutor to provide timely and full disclosure of evidence has made a fair trial impossible.

Justice Bennett referenced that at an October pre-trial hearing:

"At some point your friends are going to bring in an abuse of process motion and I don't need to hear arguments from anyone today," Bennett said curtly to Berardino, using the court term "friends" to refer to the defence counsel. "I appreciate no one knew how many documents there were and I know everyone is working hard."

The new evidence presented to the defence this week came as a result of Bennett's sweeping order in June that the Crown disclose "every scrap of paper" related to the case after she heard about a wide variety of missing evidence, including RCMP officers' notes and an account of

Bennett filed a 37-page decision at that time granting every one of the defence requests for disclosure.

"The defence is entitled to disclosure in a timely fashion. This rather extensive review of the many problems with this case demonstrates that disclosure has not been sufficiently made in a timely way," Bennett wrote in June.

" I regret that I must make the following order in such broad and sweeping terms. However, given the substantial failure to respect the disclosure rights of the accused, this order is the only way I believe I can ensure that no miscarriage of justice will occur."

At the court Friday, MLA Krog said the lengthy delays and problems in getting to trial almost four years after the police raid on the Legislature paint a troubling picture of the whole justice system in BC.

"It says that we have some real problems in a case that is so important to the public," Krog said. "In fairness, maybe these guys [Basi, Virk and Basi] are innocent and four years later they haven't even had a trial."


Thanks again, Bill. We'll be watching for your next reports in 24 HOURS and in The Tyee on Monday. - BC Mary.


Thursday, November 15, 2007


Tomorrow, and tomorrow, and tomorrow: Friday Nov. 16, 9:00 AM. CONFIRMED.


To-morrow, and to-morrow, and to-morrow,

Creeps in this petty pace from day to day,

To the last syllable of recorded time;

And all our yesterdays have lighted fools

The way to dusty death. Out, out, brief candle!

Life's but a walking shadow, a poor player,

That struts and frets his hour upon the stage,

And then is heard no more. It is a tale

Told by an idiot, full of sound and fury,

Signifying nothing.

Macbeth Act 5, scene 5

Shakespear created those first two lines to describe things like the speed at which Basi Virk Basi are coming to trial. (My view.) I'll check Vancouver Supreme Court Listings (left column) tomorrow morning early ... seems they're jamming this meeting into place at daybreak, probably the "real" trials get under way at 9:30 or 10:00.

Some other clever soul said that justice not only had to be done, but had to be seen to be done. Sigh. Wonder where he lived.

So, is the rumour true that there are sweepstakes ongoing in CanWest newsrooms on whether anything happens in Supreme Court tomorrow, and if so, whether it's actually news, and if it's actually news, whether anybody will cover it, and if they cover it, will CanWest publish it? Just wondering. As we creep on, at this petty pace. - BC Mary.

Next Basi Virk Basi hearing
Vancouver Supreme Court
Friday, November 16 - 9:00 AM


Anonymous Nov. 15, 4:45 refers to R.v.Carosella [1997] 1S.C.R.80 so I looked it up. See:

It's mostly about disclosure and some interesting remarks where an accused has alleged a breach of his right to make full answer and defence as a result of non-disclosure or non-production. In the case of Basi Virk Basi, we've heard a lot about their requests for more, more, and more disclosure. This excerpt is taken from the dissenting opinion by J.L'Heureux-Dube as to how much disclosure an accused may need. I am assuming that "a third party" in the case of Basi Virk Basi, is the B.C. government or, at least, the Ministry of Finance and the Ministry of Transportation:

Does an accused automatically have the right to every piece of potentially relevant evidence in the world? My colleague suggests that this is in fact the case. Despite the difference between this situation and cases of disclosure, as previously outlined, he suggests that there will be a breach of the right to full answer and defence and therefore an unfair trial anytime material is unavailable that would have been disclosed if in the hands of the Crown. Therefore, whenever information in the hands of a third party has the reasonable possibility of being of some use to the defence (as per Stinchcombe, supra) the fact that it is unavailable immediately causes a violation of the Charter. In my view, the adoption of this rationale could quite possibly lead one to the conclusion that there has never been a fair trial in this country. It goes against the grain of this Court’s Charter jurisprudence and is contrary to basic underlying notions of how the criminal justice system actually operates.

While the production of every relevant piece of evidence might be an ideal goal from the accused’s point of view, it is inaccurate to elevate this objective to a right, the non-performance of which leads instantaneously to an unfair trial. In my view, the words of McLachlin J. in O’Connor, supra, at paras. 193-94, are quite instructive in this regard:

. . . the Canadian Charter of Rights and Freedoms guarantees not the fairest of all possible trials, but rather a trial which is fundamentally fair: R. v. Harrer , [1995] 3 S.C.R. 562. What constitutes a fair trial takes into account not only the perspective of the accused, but the practical limits of the system of justice and the lawful interests of others involved in the process, like complainants and the agencies which assist them in dealing with the trauma they may have suffered. Perfection in justice is as chimeric as perfection in any other social agency. What the law demands is not perfect justice, but fundamentally fair justice.

Perfect justice in the eyes of the accused might suggest that an accused person should be shown every scintilla of information which might possibly be useful to his defence. From the accused's perspective, the catalogue would include not only information touching on the events at issue, but anything that might conceivably be used in cross-examination to discredit or shake a Crown witness. When other perspectives are considered, however, the picture changes. The need for a system of justice which is workable, affordable and expeditious; the danger of diverting the jury from the true issues; and the privacy interests of those who find themselves caught up in the justice system -- all these point to a more realistic standard of disclosure consistent with fundamental fairness. That, and nothing more, is what the law requires.

The impossibility of achieving this so-called “perfection” has consistently been recognized in the evidence gathering process as well as at the trial stage. In virtually every criminal case, an accused will not be able to gather all of the evidence that he or she would like. Potential witnesses may be impossible to locate, the weapon used to commit the crime may not have been found by police — invariably, there will be some piece of evidence relevant to the case that will be unavailable. The justice system would grind to a halt if an accused had only to show that a missing piece of evidence was relevant to the case in order to establish a violation of s. 7 and obtain a remedy under s. 24(1).

The Charter does not entitle an accused to a “perfect” trial, in which every piece of relevant information which might or might not affect the defence is diligently piled at the defence’s door. An accused is entitled to a fair trial, where relevant, unprivileged material gathered by the Crown is disclosed, while evidence in the hands of third parties, after a balancing of considerations, is produced in appropriate cases. Where evidence is unavailable, the accused must demonstrate that a fair trial, and not a perfect one, cannot be had as a result of the loss.



Responsible journalism in the public interest.

From a Globe and Mail editorial today, 15 November 2007 ...

Truth has always been a defence in defamation lawsuits against newspapers and other media ... [but] truth is difficult to prove ... Thus, important stories did not always see the light of day.

Defamation law took a leap into the 21st century this week, in a ruling by the Ontario Court of Appeal on a former police officer's lawsuit against the Ottawa Citizen. For the first time in Canada, a defence of responsible journalism in the public interest is available when the news media are accused of defaming an individual -- that is, of harming a reputation. The news media will no longer need to prove in court the truth of damaging assertions they have made. They will need instead to prove a commitment to telling the truth in the story at issue...

... Reporting on documents before a court or local council has long been fairly safe, but showing enterprise without relying on such documents was much more of a high-wire act. That limit on reporting initiative harmed the public interest in free and open debate.

A commitment to truth is now the first line of defence for the news media.

~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~

It's only in Ontario, at this time, that the shackles have come off the news media. Isn't it interesting that British Columbia hasn't, to my recollection, seen a lawsuit against anybody in the news media since ... was it Vander Zalm? ... sued a cartoonist for an unflattering editorial cartoon. Something about pulling the wings off flies, was it? Anyone remember? [I googled "cartoonist + sued" and got this excerpt from :

The only time that a Canadian politician successfully sued an editorial cartoonist and newspaper publisher was the William Vander Zalm suit against the Victoria Times. June 22, 1978, the paper ran an editorial cartoon by Rob Bierman depicting the then provincial minister of Human Resources gleefully pulling the wings off flies. But although Vander Zalm won his case in 1979, the verdict was overturned on appeal in 1980.

Franklin shook his head when we discussed the B.C. cartoonist. "It's terrible what they did to Bierman. Defamation laws should not be applied to editorial cartooning," he said. "That's what cartooning is all about - it is to ridicule. Take a guy who is operating in a place that affects us or law-making procedures, Well, there he is and he's bumbling. So you try to show him he's a bumbling idiot. A cartoon is not made to say nice things about people. The very idea of a cartoon is to make a guy look bad, to ridicule him, to show the quickest, simplest way you can that the guy is doing something wrong or that he is out of his element in that job. ]

Heh heh. I'm chuckling already. "Take a guy who is operating in a place that affects us or law-making procedures." There's a Judith Lavoie story just out, about the Capital Regional District slapping new by-laws in place to virtually place a partial moratorium on the Tree Farm lands giveaway around Port Renfrew, Jordan River, Otter Point, Shirley, to Sooke, thus giving people time to figure out how to intercede. Yes, take a guy like Rich Coleman, the Minister who apparently set that big giveaway (all over the province) in motion ...

Or Gary Collins. Or ...


Wednesday, November 14, 2007


Remember Geoff Plant?

Geoff Plant was British Columbia's attorney-general when police raided the Legislature. Actually Plant was told by his staff 4 weeks earlier, on 1 Dec 2003 that a case required the appointment of a special prosecutor and may involve a search of the Legislature.

Enter Bill Berardino, appointed almost immediately (11 Dec 03)
[Stop! An astute reader advises that Bill Berardino was the THIRD Special Prosecutor. Josiah Wood and then Len Doust were appointed before Berardino and both resigned due to conflicts. - BC Mary] ... in the usual way: from a list administered through the Attorney General's office, and undoubtedly chosen by the Deputy Attorney General, the Assistant Deputy Attorney General, and the Treasurer of the B.C. Law Society, with the final choice being made by the Deputy Attorney General.

This process ensures that political loyalties won't taint or influence the Special Prosecutor. Because the Special Prosecutor is supposed to be just that:
special. Beyond reproach, special. Some people are recommending this B.C. initiative be used for the politically-charged Pubic Inquiry into the Brian Mulroney - Karlheinz Schreiber affair. That's how special. That's how impervious it is supposed to be, to taint or political bias.

And so 4 years ago, Bill Berardino took charge of the Basi Virk Basi / BC Rail case.

But the Attorney General, Geoff Plant, and the Special Prosecutor, Bill Berardino, had been law partners at Van Fasken (Russell duMoulin). Does this meet the test of political independence? Beyond reproach independence?

This week, Geoff and Bill are in the news again: Geoff for taking a lambasting from Vancouver City Council, and Bill for taking an expected lambasting at another Basi Virk Basi / B.C. Rail pre-trial hearing in B.C. Supreme Court on Friday, Nov. 16. - BC Mary.



$300,000 study slammed as redundant

Jennifer Saltman
The Province
Wednesday, November 14, 2007

One year after the introduction of Vancouver's Project Civil City, commissioner Geoff Plant's progress report was subject to some less-than-civil debate yesterday.

At an afternoon meeting, four councillors challenged the relevance of the $300,000 program, and the former attorney-general's job description, while taking the occasional shot at Mayor Sam Sullivan.

"I really don't think you're necessary, and I'm sorry to say that," Coun. Tim Stevenson said to Plant. "I think that we have lots of city staff who have been doing an enormous amount of work over a very long period of time . . . I see this as a political appointment."

In December 2006, Sullivan and Coun. Kim Capri introduced the program, which set the following goals: eliminate homelessness, eliminate Vancouver's open drug market, eliminate aggressive panhandling and increase the level of public satisfaction with the city's nuisance and annoyance complaints.

The immediate task is to show a 50-per-cent improvement by 2010.

Outside the meeting, Plant said he expects to see significant progress by 2010, but fell short of saying the 50-per-cent goal would be achieved.

Plant, who was appointed commissioner in May, said he has spent the past six months learning and trying to establish benchmarks for the city's four goals.

According to his report, only one benchmark has been set: There are 2,000 people without homes or living in shelters and 21,276 units of social housing, 1,812 units of support housing and 709 shelter beds.

The other three benchmarks have not been determined.

Coun. Raymond Louie said council was promised a comprehensive action plan by February 2007.

"A year later we haven't seen any concrete action -- that's where our concern lies," he said. "So far, I've been disappointed that we haven't been taking early action. We don't need another Mr. Plant to come before us and tell us what's broken."

Louie said the report encapsulates work already done and plans future studies, but said he doesn't understand the need for future studies.

"Rather than studying further, shouldn't we be actually putting the resources necessary to the initiatives that are under way currently, [that] have been identified through previous reports and actually enable those programs to have some success?" he asked. {Snip} ...

Kim Kerr, executive director of the Downtown Eastside Residents Association, said the plan wages "war on the poor."

"I just think putting a law-and-order guy in charge of this and giving him $300,000 for six months' work only to come up with a report that simply reiterates what countless other reports say is a waste of money," he said.

Council voted to receive the report and endorse it as a framework for future initiatives. They also voted to expand the Downtown Ambassador program by the end of the year.

Plant will return before council in six months with another progress report.


Monday, November 12, 2007


THE BIG LIE: A short course in "realpolitic" in British Columbia

The M.L.A. for Nelson-Creston recently wrote to his Constituency. I hope readers will agree that this is an all-around general appraisal of British Columbia today from both sides of the political fence. Let me just add this dictionary definition of Realpolitic: it's from a German noun - realpolitik - "a ruthlessly realistic and opportunist approach to statesmanship, rather than a moralistic one, esp. as exemplified by Bismarck". Please note that the M.L.A. has set up a special blog for discussion of the ideas expressed here. To add your thoughts, advice, or experiences, go to:



Dear Friends:

Back a few years, before the election of 2005, I was working in the town of
Nakusp. Walking down the street one day, I ran into a guy I used to know
who has served many years as a Social Credit Cabinet Minister.

It was winter and, in winter in Nakusp, pretty much everyone you meet on the
street is someone who lives there. The unlikely meeting of two historical
political combatants on the streets of a little town on the Arrow Lakes made
for a sense that we were on neutral turf. We struck up a conversation more
personal than public.

He asked me if I would run for office again and then, surprisingly, he
almost begged me to re-enter politics. I knew this fellow by virtue of our
mutual years as enemies, so I asked him why he cared.

His answer surprised me. I am only now beginning to understand. He said,
"Because Campbell is running the worst government in history and we have to
bring him down before he destroys British Columbia."

"We?" I thought. This SoCred icon and me are now "we"? This was
interesting and I wanted to know what might have caused such a shift. I
suggested we go for a walk and I steered us to the empty waterside walkway
where I was pretty sure we would be alone in the wind and he might be
inclined to tell me what had caused such a conversion in alliance.

"I like this new life," I said. "Why should I go back into the chaos we
both know is public life? Why is Campbell, as you describe, the "worst"
government in history?"

He said, "Your Party and my Party have always fought over who should run the
province, who should work for us, and how much we should pay them.
We did not fight over whose land this was, though, because we agreed, everyone agreed: It belongs to us." "We own it from the electrical power system to the trees to the bridges and the railroad. Campbell doesn't believe what we believed. He believes the idea of public ownership, of the concept of the Crown, is a failed idea that needs to be dismantled."

"Your governments and mine, Corky, were rich or poor according to the price
of what we had to sell, like coal or lumber or electricity or gas. When
prices were good we ran surpluses and people were happy.

"When prices were poor we ran deficits and cut services and people hated us.
Campbell doesn't need to care about the price of what we produce on the
farm. He is selling off the farm, itself, piece by piece, and running
government on the cash flow he gets from the auction of our assets."

"I am from the business community; the "old" business community. We like to
build commercial enterprises and make money. We believe in our right to do
work and make a profit. Campbell isn't interested in whether or not British
Columbia business makes a profit. He is interested in selling the
businesses, not running them. If this is allowed to continue, both your
Party, and the people who do work, and my Party, and the people who run
businesses, will be working for people we don't know making decisions we
don't understand because we no longer own the province."

I am chagrined to admit that I didn't believe my newfound political ally. I
had fought his kind all my adult life and I was not paying much attention to
parliamentary affairs. I pretty much decided he must have been just talking
out of sour grapes because his era in power had been eclipsed and his Party
had been destroyed by Liberals and he missed the limelight. We made small
talk for a while as I led us back to the main street where we had met. We
said good-bye. I returned to my life and my job and the much less lofty
preoccupations that had normally filled my days.

That was four years ago.

Lately, I have come to understand that I had been given a short course in
the "realpolitic" of British Columbia and I had, at the time, no idea how
real and how wise were the words my former SoCred newfound friend had

More and more I think we live in an illusion: a lie, even.

When I was a kid I was late home from school a lot. I liked to play ball
in the park and I would miss dinner and then make up some story to cover my
behaviour. One night my dad ran out of patience with my excuses and said,
"Corky, if you are going to tell me a lie, don't tell me a little one that I
can understand and figure out. Tell me a whopper that is too big for me to
comprehend and poke holes in."

It was many years before I understood that my dad was really talking about
the Joe McCarthy era he had just lived through, and not my little stories
about why I was late for dinner.

I am reminded of that lecture all the time now as I realize, more and more,
how Campbell has governed and why my SoCred mentor was so right in his

Remember those early years of this century? Remember how we were consumed,
sometimes almost daily, by the savage cuts to seniors' services and child care and government workers and every possible sector of human services?

While we were reeling from change, and two lonely women in the legislature
were trying to hold up the whole sky by themselves, the Liberals were
quietly dismantling the very idea of what "is" British Columbia. And only
now is it even beginning to sink in.

I was stunned into huge depression last year by my failure to save Formosa
Nursery (in Maple Ridge) from the stupidity of being cut in two by a road
that for 40 years has been planned to run next to, not through, their farm.

When I first met the farmers and saw their trouble, I thought, "No problem.
This is too stupid to happen. We will fix this." Only after months of
failure to "fix" the mess did it sink in that the road could not be moved
back to where it belonged, even if the municipalities and the ALC and the
Ministry of Highways wanted to move it off the farm, because the Province
had, literally, sold the road to a private company. The people we trust to
run the Province no longer controlled the outcome of their own decisions.

About the same time as we were dealing with Formosa, the woman who sells
feed for animals in my village yelled at me that we "politicians" were
destroying her business. I told her I had no idea what she was talking
about. She explained that there was some law that was making it illegal to
raise pigs or chickens or cows for farm gate sale, so her customers weren't
raising animals, so she couldn't sell feed and it was "the politicians'"

I told her, just as I had told Ting and Risa, that I was sure she was wrong
and I would figure out what the misunderstanding was. How could it be
illegal to do what we had always done? If she were right, it would be like
making it illegal to breathe or eat or live.

Sure enough, it turned out that back in 2003, when nobody was looking, with
no debate, Campbell and the big companies had quietly passed a law, that
would not take effect until after a provincial election (so it could not
become an election issue), that it would be a criminal act to sell meat to
your neighbour.

Then I attended a meeting in Vernon, of people from the length of the
Okanagan from Anarchist Mountain to Kamloops who were all in a struggle with
trespassers digging up their land and diverting their streams. I learned at
the meeting that the laws of trespass had changed, too, and now it was okay
to invade someone's property if you had a Free Miner's permit. This time I
was not so dumb as to say, "This can't be true" in public, but I thought it
inside my head. When the rules are the rules for your whole life, and you
believe in the rules, it is hard to imagine that we could now be living
under different rules without even knowing what had happened.

(When my kids were little, I remember attending a lecture on parenting,
where the expert told us: "The way to make your children crazy is to change
the rules as you go along. If the same action on the kid's part has
different outcomes, they will not have any idea what is okay and is not
okay. They will learn that "authority" is really just power, and the
definition of "Okay" is whatever they can get away with and the definition
of "Not okay" is whatever they get caught at.")

Then, last spring, I was asked to visit a farmer in Delta I had known years
ago when we, as government, had returned his expropriated land.
The farmer showed me a letter from BC Rail re-expropriating his land to
accommodate a new port development at Tsawwassen.

It was hard not to believe him, standing as I was in his potato field and
holding the letter. In this case, something that I had, personally, tried
to make right was being undone to accomplish a massive industrial
development that had, originally, been stopped 30 years ago by Dave
Barrett's government.

In trying to learn about my farmer friend's troubles, I became educated
about the Tsawwassen Treaty, the "Gateway" project to add $7 billion worth
of roads (through farmland) in the GVRD and the plan to pave farmland to
make a parking lot for containers from Asia to accommodate the transfer of
goods to big box stores in Central Canada.

Now my father's words about the "Big Lie" were coming back to me on a daily
basis, sometimes hourly.

Now we are coming to the part that affects my friends in the Arrow Lakes
Region. A month or more ago, one of you said to me, "There is a rumour in
Nakusp that Pope and Talbot is going to sell their private lands in TFL 23."
And I said, "That cannot happen. Nobody can sell the private land component of a contract with the Crown, without breaking the contract and losing the Crown land."

For the first week I was so sure I was right that I forgot to ask anybody
what was really happening. How could I be wrong? I have worked in the
Forest Industry or in Government all of my adult life. This isn't a case of
not understanding "The rules". The rules are the same for every rancher
with a grazing lease or logger with a woodlot. If you sell off your private land, you lose your access to Crown land. Period. Most of those rules were put in place by Social Credit a half a century ago, to make an economy and to ensure that both private and public land would be managed according to some kind of plan and not exploited by any owner or government.

And then, when the Regional Director and the Mayor of Nakusp asked me about
the same rumour, I wrote to the Minister of Forests to ask him
what was going on. When he didn't answer, I began to listen to other
MLA's talking about similar land sales out of Tree Farm Licenses on
Vancouver Island and, together, we asked questions in the Legislature.
Sometimes the Minister called us "Socialists" for suggesting that legal and
social contracts were being broken. Sometimes he just was absent.

The upshot, of course, is that we learned that way back in 2003 Campbell
changed the rules. Not for ranchers or woodlot owners or the little
sawmills in the area, just for corporations. Now they can do anything they
want. Full stop. They can sell the private land that they put up to make a
contract with the Crown and the Crown will not withdraw their license to
public land. Worse, their Tree Farm License with the people of BC is no
longer a "right" that they receive as a contract from the people in exchange
for jobs: Now it is a "property", a "commodity" that they can sell for
money to anyone they want any time they wish.

Do you begin to see how big this lie is? We, the citizens, have the
illusion that we govern. We citizens have the illusion that we own the
roads or the bridges or the crown land and that we manage those assets
through the Legislature.

British Columbians have the illusion that we have protection for farmland
and we manage that through the Agricultural Land Commission.

We have the illusion that if we buy property we have the right to exclude

And those things are all true for the little people, the citizens of BC.
They are even true for most of the businesses in BC that my SoCred friend
spent his public life defending.

But they are not true for the super-rich, the corporate classes of the world
who are, now, invited not so much to invest in BC as to pillage, legally,
what used to be ours.

I want to close this letter with something hopeful. But it is hard and
maybe even inappropriate to do so.

Two friends in the last year have talked to me about hope. The first one
told me that hope and fear are opposite ends of the same emotion.
If you have hope, she said, you will also have fear that your faith may be
false, that you will fail; and fear is a bad place to start anything.

The second friend said it differently. He said my idea of hope was, in
fact, a weakness because, if events did not unfold in the way that I
"hoped", I was made sad or angry or depressed, none of which leads to good

What I think, today, is that the huge lie that the Liberals tell - the lie
that says that British Columbia is prosperous and that our prosperity is
sustainable (while they sell the farm) and the lie that we live in a
democracy that we control - needs to be exposed, not by me, but by a
thousand thousand conversations between the people.

I think that historical differences between old SoCreds and new Greens and
New Democrats have to be set aside for a while as we concentrate on what we
have in common as the people who believe in and used to own this place.

I think the antipathy between union and non-union needs to take a rest while
we focus on the rights of citizens.

In places like the Arrow Lakes, the wedge between those who log (in
Nakusp) and those who work in the mills (in Castlegar) needs to be replaced
with a dialogue about who owns this land and why we made rules about who
holds the right to harvest the bounty of the land.

I think we need to talk about what a Government "is" before we talk about
"who governs". Government must be more than just a real estate function.
Everyone who votes has a right to believe they elect a government, not a
lackey to world powers called corporations.

We need dialogue more than hope. We need to see the lie in order to name it
and we need to name it in order to talk about it.

I admit that the old SoCred on the street was right. I didn't understand.

I admit that I was wrong to promise the farmers in Maple Ridge or the
landowners in the Okanagan or any of you that I could fix what was broken.
I did not even understand the changes: How could I have believed I could fix

We need to get this debate out of the Legislature and into our homes,
churches and halls; and onto the street. We need to take it back - this
province that is ours to manage for the future - before we raise a
generation who didn't even know we had it.

Corky Evans
M.L.A. for Nelson-Creston

November 4, 2007.