Monday, November 24, 2008
Public Prosecution Service of Canada and Department of Justice, Canada, have interests in the Basi-Virk / BCRail Case
Courtroom 65, November 24, 2008
By Robin Mathews
Nine lawyers and some twenty gallery observers assembled today to hear the opening of the few weeks to be devoted to (especially) the claims of privilege for hundreds of RCMP documents which the Defence has asked to be revealed. (The swollen gallery crowd was made up of visiting students learning about the legal system.) The larger portion of the documents in question come from the famous "cabinet" in Victoria to which counsel went as the Crown looked at each RCMP document and described its subject to attending Defence representatives. Many of the documents are communication documents between RCMP personnel and probably, in some cases, to others.
The "inoffensive" Notice of Application the Defence filed on November 18 asking for an Affidavit describing the reasons for some non-disclosure decisions and asking to have overlap documents identified and removed from non-disclosure suddenly blew up into larger proportions this morning.
On the face of it, as lawyers like to say, the matter is simple. The Public Prosecution Service of Canada and the Department of Justice, Canada, have interests in the matter and so should have "standing" in the case. The PPSC (a renewed and renamed animal in the last few years) gave advice to the RCMP in some of the matters connected. It has conducted the drug trial recently in a connected matter that has resulted in a conviction and an appeal lodged. Mr. W. P. Riley of PPSC said that he has instructions to deny any waivers of privilege on RCMP documents and he intends to do so.
But the Defence stopped the activity. It made a day-long case (with interventions from Crown counsel) to argue that the Special Crown Prosecutor, William Berardino, has been the sole supplier of documents, has signed protocols of disclosure, has conducted all the business dealing with RCMP documents and it is he who should argue the case for privilege, not someone from PPSC who just stepped in and who describes himself as a "stranger to the case". Berardino and Riley both suggested as clearly as they could that the substance of the matter is what is at stake, not the form of it. (In effect, "so what" if someone other than Berardino handles the argument of privilege? (to use Berardino's quip in court).
Defence argued that all through the early stages of investigation there was no separation of drug investigators and commercial crime investigators, and so on. And all that material was handled by the Special Crown Prosecutor. Defence argument is probably, at base, that a PPSC lawyer is not really qualified or - perhaps - authorized (in law) to handle some of the materials. And so it should be the duty of the Special Crown Prosecutor.
Sparks flew when Kevin McCullough, Defence lawyer, said that Crown's (Janet Winteringham) suggestion that the PPSC has had a presence is nonsense.
There it stands until this evening when Madam Justice Elizabeth Bennett has pledged to make her decision on the matter.
All that is "on the face of it". But a gloomier picture lurks in the background, perhaps. Readers of my column on this site on Sunday will recall that I refer to the dark picture Paul Palango draws of RCMP structure, power positions, general behaviour, and day-to-day cover-up and white-washing (just published). (See:Dispersing The Fog, Paul Palango, Key Porter, 2008). The book is a 'must' read.
My own experience in the Glen Clark case and the (present) Kelly Marie Richard case in Alberta has led me to face-to-face experience with what I believe is improper (and worse) conduct of RCMP officers at all levels - reaching to the office of William Elliott, Commissioner.
Palango alleges nothing is released from RCMP headquarters without being vetted by the political masters in Stephen Harper's group. He alleges the RCMP regularly fogs and covers up important information. And I add - in my Sunday column - that all those things suggest there is a much too close relation (in the Provinces) between the government in power and the RCMP.
My own sad experience (in both cases I have acted out of concern for the public good and have no personal interest whatever) leads me to a position in which I would not trust the action of a lawyer who has been instructed by the RCMP to "protect" its interests and its right to confidentiality. I say that with a heavy heart and genuine regret. The position of the RCMP in Canada is becoming so constantly in question, however, that I suspect more and more Canadians will come to adopt my view.
Thank you for spending the time and putting in the work that you do.
Again, thank you. I look forward to your updates.
Mr. Berardino seems to be on edge these days and rightfully so. He has truly botched this case.
Yes ... Spot on!
Often, I think it wouldn't matter how many journalists were in that courtroom, Robin's reports would still give us something deeper, more connected with the law and with history, more human, more colourful and thought-provoking.
Robin takes us with him to the Basi-Virk hearings, sometimes walking in the sunshine right into the Law Courts Building, sometimes noting what the judge is wearing, and always fixing the main players with the unblinking eye of scholarship to make real sense of what they're doing. Or not doing.
His reports are a great gift to British Columbians.
THANK YOU for expressing that for us.
However, the thing that saddens me the most is that thanks, perhaps partly to failures of our education system and, especially, the compliance of the "Circle" controlled excuse for media in this country, (especially the Canned Wasteland that is the media monopolization in British Columbia) - hardly anyone except yourself, BC Mary and the comparative few who visit and comment here, seems to even care about this ongoing erosion of democracy, freedom and justice.
Democracy, the rule of law, and self government are lofty and beautiful ideals. But unfortunately one is forced to question whether average citizens, unmotivated by limitless greed, only desiring a satisfying life for themselves and their children are actually qualified to govern themselves through (un)representatives.
Of course the first requirement is to pay attention, which is made almost impossible by politicians who are congentially incapable of speaking the truth and a Pravda like media that when it cannot simply ignore the facts will distort them to support the agenda of those who have siezed power to satiate their own greed.
One can only hope that the current "economic meltdown" will be enough to wake up a critical mass of regular folks so that the "Shock Doctrine" can be put into effect, but from the bottom up this time, instead of in the service of the same old elites. This could be the last chance for Civilization to become civilized or else it may be the time for some other species to take over the dominance of the planet.
Like the poster above, I thank you for your efforts, and pray that they bear fruit in time for it to matter!