Tuesday, February 19, 2008


BC Rail Scandal in Court. Look again.

By Robin Mathews

Yesterday's events in Courtroom 65 appear to have caused confusion among observers. With good reason, as we will see. Events were, apparently, so confusing to the CanWest Private Corporate Monopoly Chain, it published nothing I could find in Vancouver, site of the Supreme Court hearings.

The Globe and Mail's accounting is bland ("Province waives privilege, defence to see files", Mark Hume, S1).

That's a toss-up: bland, or no account at all - which is best?

What went on in Courtroom 65 was of crucial importance, for several reasons. First, the trial date of mid-March earlier announced by Madam Justice Elizabeth Bennett with a remark by her that she was willing to sit long to assure its realization was blown to smithereens.

She witnessed the passing of that date with sweet imperturbability. Not a word. Not a frown.

Secondly, she didn't (as some have suggested) set up a series of dates for hearings. She listened, as we all did, to William Berardino, Special Crown Prosecutor, list off what he termed a "reasonable" set of dates for disclosure of materials - from several sources - to the Defence. Those dates reached into June. But they were contested by Defence counsel Kevin McCullough, speaking from Victoria on phone connection. He claimed that the Crown has been so imperfect in its completion of disclosure promises that he does not believe the dates given will hold. And he further opined that hearings would have to be called to address the failures.

He cited a few failures of disclosure, as examples, one being reference to evidence by Crown that has not even - over months - been described, let alone released, to Defence.

Thirdly, something was made in court of an apparent move by the cabinet of Gordon Campbell to waive 'privilege' over documents, especially e-mails over which it claimed to have power. That was a grand gesture of smoke and mirrors, I believe - a gesture to take British Columbians' attention away from what may be cabinet efforts to scuttle the proceedings.

George Copley, acting for the Gordon Campbell cabinet, still is toying with solicitor/client privilege to prevent Defence from having open access to critically important material. Mr. McCullough insisted that the restrictions the Gordon Campbell cabinet members (called solicitor/client privilege, I believe) are requesting on some disclosed documents are intolerable. And all documents are still not available. A cabinet that should be opening all relevant documents to assure a timely and fair trial is acting as if it will do anything in its power to prevent and/or to limit open and unimpeded scrutiny of its actions in the sale of BC Rail.

Any report in any publication or news medium, by now, to be fair, has to record that disclosure of evidence necessary to the Defence for the conduct of a fair trial has been a catastrophe, a dog's breakfast, a humiliating game of hide-and-seek, probably a devastation of fair legal practice, and - in the minds of many observers - a process that calls seriously into question the ability to achieve justice in the Canadian legal system.

The BC Rail Scandal court proceedings are a test of the Canadian legal system, and it is failing monstrously. Madam Justice Elizabeth Bennett, presiding judge, should take twenty minutes of the next hearing to explain carefully and in the simplest layman's terms to British Columbians why she is content with matters as they are. That is an especially necessary exercise in which she should engage since an increasing number of British Columbians are asking if the process is a many-layered fraud.


Wonderful sketches of this theater of the absurd, Robin. I loved -

"She witnessed the passing of that date with sweet imperturbability. Not a word. Not a frown."

It certainly is difficult to imagine any of the principles in this farce trembling in their wingtips when they hear the words:

Here come da judge
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