Sunday, June 14, 2009
Robin Mathews: Politics (and Betrayal?) in the High Courts of British Columbia
On June 4, 2009 Associate Chief Justice Patrick Dohm appeared in courtroom 43 of the Supreme Court of B.C. He was there in connection with the latest episode in the saga of the B.C. Rail Scandal.
He came to hear a strange motion from the Special Crown Prosecutor to remove the presiding judge before trial begins. That was offered as a simple matter of scheduling. But it may appear – in fact – to those of us who have sat through years of the hearings to be an explosive political move on the part of the Gordon Campbell forces to prevent an outcome destructive of their power.
If I appear to be suggesting it may be a horrendous violence done to judicial proceedings – and a sign of the gross decay of justice in Canada – that is precisely what I am suggesting.
The scandal involves the deepening story of the corrupt sale of BC Rail by the Gordon Campbell government, high-lighted by search warrant raids on B.C. Legislature offices on December 28, 2003, charges laid against three important cabinet aides a year later, and pre-trial hearings that – moving towards trial of the three men – are still in process six years after ‘the raids’ on the legislature.
Preparation for the trial – what is perhaps the most important public corruption trial in British Columbia (if not in all Canada) – is still being made. The significance of the case is not only signalled by the former positions of the accused and their closeness to top cabinet officers. But it is heightened by the growing suspicion that top cabinet officers – including the premier – Gordon Campbell – may have been implicated in the actions for which the three men stand accused – fraud, breach of trust, and money laundering.
The pre-trial hearings – as I have observed them – have been complicated because of a major thesis of the Defence. It is that the accused – whatever their actions – were “operatives” of the premier (especially Dave Basi and Bob Virk).
The men were appointed by Order in Council and were fired by the premier’s Chief of Staff, Martin Brown – not by the cabinet ministers for whom they, ostensibly, worked. Evidence of their centrality in the corrupt sale of BC Rail grows.
In brief, Defence argues that the actions of the accused were undertaken by orders from their superiors, and that fact must be demonstrated fully and clearly if a fair defence is to be conducted.
The B C Rail Scandal is a story beginning in the 1996 election which Gordon Campbell lost partly because of a declared intention to sell BC Rail. Between that election and the next one – which Campbell won in 2001 – two strange things occurred. Campbell publicly reversed his position on the sale of BC Rail.
As important, secondly, Glen Clark, NDP premier of B.C. was challenged by allegations (raised in the constituency office of Gordon Campbell) that he had acted fraudulently in the contract of work to have a deck added to his modest East Vancouver home. That work involved a sum of, perhaps, ten thousand dollars. (The major press made much more of the Glen Clark case than they have made of the billion dollar corrupt sale of BC Rail.)
Ujjal Dosanjh, Attorney General, announced the RCMP investigation, Clark resigned for the duration, was destroyed by mass media and the other enemies of the NDP, and left politics. Dosanjh became NDP leader, seemed (to me) to ‘not run’ in the 2001 election, lost to the Campbell Liberals, joined the Liberals very, very soon, and became a “dream-team” federal Liberal MP.
I protested to the Commission for Public Complaints Against the RCMP (PCC) about the conduct of the RCMP investigation of Clark. My complaint was closed without my consent. I pushed on. Three years later, PCC reported to me that the investigation I asked for had been “wrongfully” terminated. PCC did nothing, nor did RCMP.
In the court of Madam Justice Elizabeth Bennett Glen Clark spent 136 days of trial. He was acquitted of all wrong-doing. But he had been subjected to sleazy, relentless trial by press, media, and all the other anti-NDP forces in the province. He was ruined.
Gordon Campbell became premier, with a promise he would not sell BC Rail. As time and information (even in a limited way) comes available to average Canadians, the appearance is that Campbell set to work very, very early to sell BC Rail – and to sell it to CN (despite a “show” of fair bidding and outcome). Thousands of pages of information that are on public record have been kept from British Columbians.
Campbell early in office struck what appears to have been a “set-up” core review of the economy. Then he struck what also appears to have been a “sham” bidding process for the sale of BC Rail. Two bidders left the process declaring it soiled, CPR going public with its deep dissatisfaction, claiming as others did that CN was receiving secret and special treatment.
Part of the case against the accused rests upon allegations of bribery in relation to a bidder apparently being wooed to remain in the auction for appearances sake, with – it is alleged – promises of a consolation prize when CN was announced the winner. The matters in question being handled at the edges, the bidder is claimed – even by Defence – to have been ignorant of the machinations.
Those are, perhaps, the bare bones of the story. Overlaps from the investigation process have already seen a nine year drug sentence given to someone communicating with Dave Basi. Mr. Basi is accused with two others in a case involving land allegedly removed illegitimately from the B.C. Agricultural Land Reserve. That is a reserve set up by the NDP when in power which has been eaten away by the Gordon Campbell government.
Important as those cases most certainly are, the driving interest is in the BC Rail Scandal case. It involves the whole cabinet as part of a (secret) policy and practice which two bidders declared corrupt. That fact alone points to the suggestion that BC Rail may have been illegitimately and illegally sold.
Associate Chief Justice Patrick Dohm signed the search warrants for the “raids” of December 28, 2003. Not only did the raids involve legislature offices but also the homes of many others who were of interest in the investigation.
Asked to release the search warrants (as is customary after searches) Mr. Dohm was truculently aggressive in refusal. He sealed them all. Pushed by press and media, he later produced a summary, but did not unseal the warrants. Astonishingly, he did not prepare the summary himself. Instead, he showed an (unfortunate) relation to the Special Crown Prosecutor, William Berardino, by having him prepare the summary. The relation between a judge and “the Crown” (the prosecution) must always be handled with kid gloves. Mr. Dohm couldn’t be bothered, it seems, breeding consequences we shall see when he appeared in courtroom 43 on June 4.
Sometime later, Mr. Dohm unsealed the search warrants. The unsealing was a bad joke. The “unsealed” search warrants, by one jounalist’s reckoning, blank out 80% of the materials.
By, perhaps, astonishing coincidence, a number of cabinet ministers who might have continued in happy, profitable public service chose to go into private life as the election of 2005 drew near. Geoff Plant, Attorney General, who appointed William Berardino as Special Crown Prosecutor, left politics. So did Christy Clark, minister of education and deputy premier. So did Judith Reid, transportation minister. And so did Gary Collins, minister of finance, apparently under RCMP scrutiny before the search warrant “raids”.
Dave Basi was ostensibly in Mr. Collins ministry. Bob Virk was ostensibly in Judith Reid’s ministry.
It is alleged that Plant and Berardino were, at one time, business partners, or associates, or other. I wrote Madam Justice Elizabeth Bennett on the matter and asked her what review process exists to assure appointees as Special Crown Prosecutors are completely objective.
She did not deign to reply to my letter.
Why was Mr. Patrick Dohm in courtroom 43 on June 4, 2009? He was there at the instancing of Special Crown Prosecutor William Berardino who presented a motion which Mr. Dohm received there. Shortly after the matter of the search warrant raids and when charges were laid against the three accused, Mr. Dohm passed the matter of Basi, Virk, and Basi (and the charges against them) to Madam Justice Elizabeth Bennett. She has conducted three and a half years of pre-trial hearings which might terminate in the next several weeks. She has ploughed through mountains of documents, hundreds of hours of argument, and the bringing together of tenuous but significant relations among people and institutions.
To many observing the pre-trial hearings, delay has been the watchword. Because Defence argues the accused were doing the bidding of their superiors, materials around the sale of BC Rail and those involving the search warrant “raids” and the RCMP investigation of the whole matter must be produced.
My observations lead me to believe that the RCMP responded to requests (and orders) for disclosure very, very, very badly. Their material came late, came badly organized, came in fragments, or didn’t come at all.
As I observed matters, the Special Crown Prosecutor did little or nothing to assure prompt disclosure. And Madam Justice Elizabeth Bennett did not use her powers adequately to speed RCMP and other disclosure. What was the RCMP doing? What were its interests?
Delay was followed by delay. BC Rail did not throw open its records, as it had every reason to do. It has niggled. And, indeed, three binders of material were gathered by Freedom of Information from BCR. But – using a technicality – BC Rail has had them denied to public scrutiny.
Finally, and of absolute importance, Gordon Campbell could have ordered all ministries and all other governmental bodies to release requested material without impediment. Doing that, one would think, would be the instant action of an innocent man in the position of premier. Gordon Campbell has not done that, ever.
And so the delay process has gone on and on, and on. Important “third parties” (which is the hilarious designation of BC Rail) as well as individuals like BC Rail and (apparently) CN Rail employee Patrick Kinsella (and others) are contributing to delay.
That leads reasonable Canadians to ask if there has been cooperation in delay by all of what might be called “the Gordon Campbell forces”? And do those forces reach into the sacred and trusted precincts of British Columbia’s high courts?
We must remember that the strange unseating of Glen Clark as premier of B.C., the (I insist) bungled and protracted RCMP investigation of his actions, the raging attack on him by private corporate press and media, and the 136 day trial he sat through to be declared innocent of all charges – all give the impression of a co-ordinated attack by a vicious democracy-hating Right to destroy fair and reasonable party politics in British Columbia by every dubious and dirty tactic available. Former B.C. premiers asked for a public inquiry into the Glen Clark matter. But they had to ask the government of Gordon Campbell.
By a stroke of remarkable coincidence, Madam Justice Elizabeth Bennett ws recently named to the B.C. Appeals Court. Though she failed, in my eyes, to end court delay, she accepted applications for disclosure leading in all legitimate directions, even now into e-mail records of Gordon Campbell and major cabinet members.
Another judge – deftly and wrongly – might have cut off most of those applications.
Not perfect, not (I would say) properly responsive to the enormous public importance of this case, still Madam Justice Elisabeth Bennett may have offended “the Gordon Campbell forces”.
She cannot be fired for doing generally capable work. But she can be promoted “before she does more harm”. That may be sheer speculation. It may not be, because Stephen Harper and Gordon Campbell are clones – and her appointment to the Appeals Court is a federal appointment. Both Harper and Campbell want to sell off everything in public hands. (Harper is faking the sale of Atomic Energy of Canada and moving to sell off so-called “Crown Assets”. Campbell has, in fact, sold BC Rail, BC Hydro, Terasen Gas, and is now selling ALL B.C. rivers.)
It is at this point that Associate Chief Justice Patrick Dohm re-enters, to appear on June 4 in courtroom 43. Consider in the light of what has been written here the importance to Canadian democracy of the Basi, Virk, and Basi trial. Consider the importance of continuity and grasp of the years of information gathering.
On June 4, Associate chief Justice Patrick Dohm appeared to hear a motion by Special Crown Prosecutor William Berardino to remove Madam Justice Elizabeth Bennett as trial judge in the the BC Rail Scandal accusations against Basi, Virk, and Basi. She has been seized with those matters for more than three years.
Mr. Berardino cited two reasons Bennett should leave. The first was not a reason for him to adduce. The second was manifest nonsense.
So specious was Mr. Berardino’s presentation, I grow increasingly convinced that he and Associate Chief Justice Patrick Dohm may have reviewed the baselessness of Berardino’s position, earlier. And they may have decided – as we say – to “fake it”, to “bull it through”. I may be wrong.
When Mr Berardino said – to begin – that Madam Justice Bennett can’t be in two places at once, Mr. Dohm might well have said: (1) That is not for you to decide, and (2) schedulers under my authority will decide whether she will divide her time or finish this case and then move exclusively to Appeal Court matters.
Instead, Mr. Dohm said that he agreed completely with Mr. Berardino, as if the latter had established a difficult point in law. In fact, Berardino said nothing of substance.
Then Mr. Berardino presented his wholly specious point. He said that the mode in which the two parties (Crown and Defence) deliver requests, respond, and properly adhere to standards of procedure has never been followed in this matter. Naturally, Defence leaped to its feet to declare Berardino’s statement nonsense and to show that when due process failed, he – Special Crown Prosecutor – was the one to ignore, obstruct, delay, and retard process. But Mr. Dohm leaped into the action and stopped Defence from speaking.
And so, on the record, Mr. Berardino has said the hearings have never followed proper procedure – as a part of his complaint. Defence could not respond. Mr. Berardino’s wholly specious point was allowed by Mr. Dohm to be made and to stand uncontested.
After that, Mr. Dohm appeared to be (more or less) figuring out on what date and whether he would reappear – since Madam Justice Elizabeth Bennett is obviously in the midst of pre-trial applications for disclosure of third party records.
That, as I remember, was when Mr. McCullough for the Defence rose and suggested that perhaps Mr. Dohm should send a memo to all parties involved. Mr. Dohm did not say: “Thank you, Mr. McCullough, but I think we can work the problem out now.” (Since he very likely was play-acting and knew very well what he was going to do before ever entering courtroom 43.) Instead, he quipped back, insultingly (as I observed the moment), “I don’t send memos”. Ha. Ha. Some people laughed. It never hurts (those in the legal community) to laugh at Mr. Dohm’s bad taste intended as humour.
Associate Chief Justice Patrick Dohm did not, as I have written earlier, tell the assembled counsel and British Columbians why the removal of Madam Justice Elizabeth Bennett might be wise – or even absolutely necessary. Apparently, he considers such matters have nothing to do with the people the Supreme Court serves. Indeed, the Dohm “Practice Directions” to keep information on the public record from the public, the refusal to provide daily transcripts of “open court” proceedings, and (what seems to me to be) the arrogance of court officers like Mr. Dohm are dangerous to democracy. They lead, almost necessarily, to the suspicion that the higher court judges are lackeys to political masters.
In theory, according to Defence counsel Michael Bolton, the decision about whether she goes or stays is Madam Justice Bennett’s to make. Only if she rejects the Defence motion that she should stay for reasons can Mr. Dohm, then, name a new trial judge. I am not alone among those in the courtroom in believing Mr. Dohm came as close as he could to saying Madam Justice Bennett will go, and that he has already chosen a judge to replace her.
In what seemed to be alarm at the suggestion, Mr. Dohm spoke what I have earlier referred to as an irrelevance – that all judges are able to conduct criminal trials. That was not what the Defence motion is about. Defence counsel (and many reasonable others) believe Madam Justice Bennett should stay with the Basi, Virk, and Basi matter because she has been reviewing information for three and a half years and is the most qualified judge to try THIS matter.
But Mr. Dohm seemed uninterested in matters of substance. He spent his time in courtroom 43, it seems to me, uttering illogicalities, insults, and non sequitors – possibly as a way of avoiding the very real questions involved.
His behaviour made me question his good faith. Nothing about his appearance on June 4 increased my faith in the British Columbia higher courts. Rather it made me fear for the people of the province and for democracy here.