Wednesday, August 12, 2009
BC Rail, August 17, 2009: will Madam Justice Bennett leave the case?
The Honourable Madam Justice Elizabeth Bennett on August 17 is expected to rule on whether she will continue as BC Supreme Court judge presiding over the most important trial in British Columbia history. Or will she leave the case by taking up her promotion as judge in the BC Court of Appeal?
If she views the past 3-1/2 years of Basi, Virk, Basi pre-trial hearings as a worthy example of public justice, I believe she'll choose to stay with that case to see it safely through the minefields ahead. (It would be a tremendous addition to her CV.) But if she feels that the pressures of conflicting "privileges" are too heavy to bear, she may decide to step free of the ensuing debacle by accepting her promotion immediately. So the decision is of massive significance. And George Copley's report to her on August 17, on whether or not the back-up email tapes of Cabinet minutes still exist, would add to that significance.
Crown Prosecutor Berardino wants Judge Bennett gone ... immediately. Is that strange, or what? Defence counsel want Judge Bennett to see the trial through. And so the spotlight turns to the ominous spectre of Associate Chief Justice Patrick Dohm who allowed himself the honour of saying, during a recent pre-trial hearing, that he might step in again, to assign a new judge.
But why? There is nothing to be gained by bringing in a new judge. Is there?
At this point, a previously published item from our Archives has fresh meaning:
Robin Mathews: In Courtroom 43 on June 4, 2009
Courtroom "Friends" Take The Gloves Off, and A Clash Of Legal Opinions
The morning opened with Associate Chief Justice Patrick Dohm on the bench to receive a motion by the Special Crown Prosecutor, William Berardino, to replace Madam Justice Elizabeth Bennett as the trial judge seized with the Basi, Virk, and Basi matters. As I understood his meaning, Mr. Berardino wished the new appointment to be made immediately.
Mr. Berardino offered the argument that Madam Justice Bennett cannot be in two places at once (acting as a Supreme Court judge and acting as a Appeals Court judge). Mr. Dohm agreed. Mr. Berardino argued that Mr. Dohm can appoint a judge to a case and he should proceed to do so.
There is more to the argument, as we shall see. But that first point is an oversimplification. Both courts are in the same building. A judge raised to the Appeals Court must have responsibility to cases in process with which he/she is already 'seized' (in a legal sense 'in possession of').
In a trial of the enormous public importance as the one swirling around the BC Rail Scandal, changing judges won't be accepted as "routine" but cannot help being seen by some as political manipulation for advantage.
Defence counsel pointed out the obvious - that applications were in process of argument regarding third party disclosure and much more - in mid flow.
Mr. Dohm asserted that he would not create a situation of two existing trial judges - meaning, I take it, that he would not appoint a judge for "down the road" while another judge (Madam Justice Elizabeth Bennett) is, in fact, seen as "trial judge". He would not, moreover, break into the present procedures underway.
Matters will proceed as they are until about June 26, much being cleared up of pre-trial activity by then. Then Dohm, as he said it, mighty step back in to make decisions. Mr Dohm said that depending upon what happens with the motion put forward by Defence that Madam Justice Elizabeth Bennett proceed to the trial he will "probably step back" in, an assignment of a judge will take place, and matters will proceed.
In a manner that had a certain grand theatricality about it, Mr. Berardino, Special Crown Prosecutor, stated that the tight process of what might be called 'address and response' between Defence and Crown has never been used in the Basi, Virk, and Basi matter (a good reason, apparently, to proceed with another judge). That brought the Defence lawyers to their feet, fit to burst....
They wanted to rehearse their sorry tale of Crown delay, failure to reply to requests, muddled replies, etc. etc. But Mr. Dohm stopped what would doubtless have led to top-rated entertainment, and even perhaps something worse.
Mr. Dohm appeared to speak out of both sides of his mouth. That is not to be unexpected. But the appearance, in this instance, may simply have been produced by misunderstanding. And there lies what I see as the Clash of Legal opinions. Mr. Berardino (to put the matter in rough words) seemed to be saying that Dohm has the power to change judges, without question. And he should set about doing it.
If that is the case, why does he wait until she assesses the motion put forward by Defence that she (Madam Justice Elizabeth Bennett) stay on. If Patrick Dohm makes the decision, why can't he make it now?
Asked outside court about this apparent contradiction, Michael Bolton for the Defence asserted that if the motion considered by Madam Justice Bennett carries a weight of argument that convinces her she should stay, her decision is final, and cannot be overturned by Mr. Dohm. Mr. Dohm did say that "depending what happens to that motion" he would step back in.
I asked Mr. Bolton if Mr. Dohm - who stated he already has the replacement judge, in fact, chosen - could exert influence on the independence of Madam Justice Bennett's decision. Mr. Bolton would not be drawn on the question (and, of course, quite rightly would not be drawn).
Defence counsel, of course, made the obvious argument for retaining Madam Justice Elizabeth Bennett. She has presided for three and a half years over hearings that have ploughed through mountains of documents and hundreds of hours of argument and review, to say nothing of a growing acquaintance with the connection of apparently widely dispersed forces acting upon the accused and their actions.
That may be, in sum, reason why some forces in society would want her removed. For my part - as a long time observer who has been one of the more severe critics of Madam Justice Elizabeth Bennett's mode of presiding over proceedings - I cannot see how, at this point, switching judges could be anything but a serious, foolish, and politically ill-advised move.
I believe, sincerely, that the people of the Province would not consider a change as anything but the effect of the long arm of Gordon Campbell reaching into the higher court system and forcing it to decisions that guarantee advantage to him and his fellows.
I think Madam Justice Bennett will see the BCRail case through to the end. Read about her HERE and see if you agree: she is a British Columbian with a background of service. She may be slow but she knows when things are important, and in the end, she gets things right. That's what B.C. so desperately needs.
I say "Good luck" to her. - BC Mary.
North Van's Grumps (nominated as Public Document Excavator King by RossK at Pacific Gazette, where this first appeared):
Item # 30.
Where can I find information on the construction schedule from InTransitBC?
Is this the final schedule?
The anticipated construction schedules can be found on the construction schedules page. The construction schedules will continually evolve, and are subject to change as InTransitBC further develops their designs and manages the construction to ensure completion by 2009.
Item # 43 seems quite.... hollow.
And from another source on the Canada line Annual Look-ahead Schedule..... you know the one we weren't suppose to get on until December but surprise, surprise its ready to go on the day that George Copely is in Court to explain why the BC Liberals micro-managing team can't tender their email evidence to Madam Justice Elizabeth Bennett.
Check out Page four of this document, RAV Construction Schedule Overview which has allotted almost two years for Testing System:
I guess, the BC Liberals didn't even know, themselves, when they would need an announcement date that would miraculously coincide with August 17, 2009 to take the heat away for a day with the Judge.
Related article HERE.
Its not that I could careless if she leaves, I just dont see if as fatal to this thing going to trail. But I dont think she has done much to speed things up, despite earlier statements she would.
Thanks ... I am interested to know what others are thinking about this.
I can't help but suggest, though, that there's more to 3-1/2 years of hearings than the dry foundation records. Not everything in those courtroom discussions were recorded, remember?
No, I don't see a change of judges as necessarily fatal in the sense that it would cause the trial to be thrown out; but I think that justice would be poorly served by dropping the ball right now and scrambling around trying to retrieve it.
I agree with you that Bennett is slow but it seems to me that she's making every careful effort to prevent an appeal based upon some defective point in the proceedings.
If you were given a choice, would you choose to have Judge Bennett remain in charge?
I would. And I certainly don't see anything to be GAINED by replacing her.
and one has to wonder WHY her employer would offer her such a position and lure her off this case if it werent already a done deal, and becuase of that, methinks she has already made up her mind...
Now you've got me wondering, so I looked up the date of Justice Bennett's appointment and found more than expected from "Continuing Law Education":
Two appointments to BC Court of Appeal; three to BC Supreme Court
CLEBC Staff/May 20, 2009
Minister of Justice and Attorney General of Canada Rob Nicholson has announced two appointments to the BC Court of Appeal and three appointments to the BC Supreme Court.
The Honourable Elizabeth A. Bennett and the Honourable Nicole J. Garson, both Judges of the BC Supreme Court, have been appointed to the BC Court of Appeal.
The Honourable Hope C. Hyslop, the Honourable Bruce M. Greyell, and the Honourable Terence A. Schultes are appointed judges of the BC Supreme Court.
Madam Justice Bennett, who was appointed Queen’s Counsel in 1994 and a judge of the BC Supreme Court in 1997, replaces Mr. Justice R. T. A. Low in Vancouver.
Madam Justice Garson was appointed Queen’s Counsel in 1999 and a judge of the BC Supreme Court in 2001. She replaces Mr. Justice J. K. Smith in Vancouver.
Madam Justice Hyslop, who was appointed Master of the Supreme Court in 2003, replaces Mr. Justice R. M. L. Blair in Kamloops.
Mr. Justice Greyell replaces Madam Justice N.J. Garson in Vancouver. He has been a partner with Greyell MacPhail from 1991 to 2006 and RoperGreyell from 2006 to 2009.
Mr. Justice Schultes, who has worked as Regional Crown Counsel, Disclosure Court Crown Counsel [uh oh!], and Deputy Regional Crown Counsel since 1987, replaces Madam Justice E. A. Bennett in Vancouver.
The appointments are effective immediately.
So a new question arises: has Judge Bennett already been replaced on the BC Supreme Court and therefore, is possibly ineligible to continue hearing the BC Rail Case?
Didn't I hear, though, that the choice is hers?
I hope so. And I hope she announces on August 17: that she wants to stay with the BC Rail Case.
Suppose I'm appointed today to become Lieut. Gov. of BC ... and discussions had taken place ... it would be assumed that a slow, graceful shuffle would occur while the incumbent packs up to leave the Court of Appeal and that I would have a few things to wind up, too, before I could show up to take over ...
I guess I don't want to think that they could stampede somebody into making a snap decision on something as important as the BC Rail Case.
And I sure don't like the idea of Dohm thundering around bashing heads and "deciding" things, either.
This date is exactly 12 calendar days after the election. Has anyone noticed how many things are happening in this province SINCE the election? Seems to me to be a pattern here.
That slipped right past me, and it's a zinger.
Go ahead (please, go ahead!) ... and tell us what the pattern is.
no doubt in my mind, bennet would have been approached and said yes, then the appointment was made which included her name.
I agree with what you say ... that those detailed discussions have already taken place ...
my point being that the actual start-date of her next assignment probably hasn't been decided.
why would we be holding our breath, waiting for her ruling on August 17, as to whether she will remain with the Basi-Virk / BC Rail Case to the end.
That seems to be the only question left: will she leave now or later?
They have nothing to do with the provincial crown except as laid out below.
Independent judicial advisory committees constitute the heart of the appointments process. These committees have the responsibility of assessing the qualifications for appointment of the lawyers who apply. There is at least one committee in each province and territory; because of their larger population, Ontario has three regionally based committees and Quebec has two. Candidates are assessed by the regional committee established for the judicial district of their practice or occupation, or by the committee judged most appropriate by the Commissioner. Each committee consists of eight members representing the bench, the bar, law enforcement associations and the general public:
- a nominee of the provincial or territorial law society;
- a nominee of the provincial or territorial branch of the Canadian Bar Association;
- a judge nominated by the Chief Justice or senior judge of the province or territory;
- a nominee of the provincial Attorney General or territorial Minister of Justice;
- a nominee of the law enforcement community; and
- 3 nominees of the federal Minister of Justice representing the general public.
Each nominator is asked by the federal Minister of Justice to submit a list of names from whom an appointment to the relevant committee can be made. The Minister, with the assistance of the Commissioner for Federal Judicial Affairs, then selects persons to serve on each committee who reflect factors appropriate to the jurisdiction, including geography, gender, language and multiculturalism. Committee members are appointed by the Minister of Justice to serve a three-year term, with the possibility of a single renewal.
The Minister meets periodically with the Chairs of all the committees for an exchange of views concerning the operation of the process.
All committee proceedings and consultations take place on a confidential basis.
One might like to think that Justice Bennett's elevation to the Court of Appeal was in some way a sop to the Campbell government but I can't see how that conclusion fits the facts.
And why werent all the documents handed over to the defenece, or were only relevant documents handed over? I get the point about who decides what is and isnt relevant to the defences case, ie the defence decides. But having done all that, where any of those documents relevant to the defences case, or was that just a tactic to put doubt in our minds?
As the Discovery portion of this trial progresses we find that they were right. They haven't bothered to investigate any MLA's
Yet almost two years ago there was a request in disclosure that certain e-mails were required by defense in order to properly defend their clients.
I believe it was February this year that Madam Justice Bennett ordered that certain e-mails be produced. Suddenly a few days after the last provincial election Justice Bennett is appointed to the Court of Appeal. And I might add the Special Prosecutor jumps on this and practically demands he immediate removal. All the while CJ Dohm has made another unprecidented move in this case by sitting in court on this matter.( remember his first action was to mark the search warrants secret)
Justice Bennett then orders that most of the e-mails are likely relevent including those of Campbell.
Campbell goes into semi hiding. NOW, I allege, as a deflection he (and Hansen) announce they are going to harmonize the PST and GST. After saying they didn't have any plans to do so. And now we have a huge (predictable) backlash on this further ripoff of the people of BC.
So I'm wondering what will be the bigger news in the MSM on Monday? And how fast will that story die on Tuesday?
As a number of folks have suggested, myself, the Powell river persuader and Mary included, the sudden early opening of the RAV line on Monday is likely at, the very least, a deflector spin jumpstart.
It would be interesting to find out who nominated Justice Bennett to the Court of Appeal. Or, is this, too, considered (conveniently ) confidential information as well?
There are many questions yet to be answered surrounding the over-lapping federal and provincial elements to this case. Those questions continue to linger, like the palpable feeling one gets that that someone is hiding behind a rippling curtain.
It wouldn't be surprising at all to find out that these federal-provincial hidden "intimate intersections" now include our court system.
lynx: maybe not the court system but the RCMP's actions along with CJ Dohm's in this case are surely suspect in my opinion.
Talking about "free", the original free opening date was supposed to be somewhere in December of 2009 and then moved to November. Here's a quote from Source: http://www.canadaline.ca
/aboutFAQ.asp aka "Canada Line FAQs":
"4. How much will it cost to ride the Canada Line?
SNIP ....TransLink is responsible for setting the fares of the entire transit system and is in the process of sorting out the details surrounding fares and other operational aspects so that everything will be in place when the Canada Line begins serving the public on November 30, 2009. At this time, TransLink has not made a final decision on the special fare and how it will be applied. It is expected that the fare structure will be made public well before Canada Line begins operating in 2009."
"Well before"?????? ooops!
Its Saturday, time for another Public Affairs Bullshit announcement from Victoria while the Mass Media Sleeps, but wait a minute, isn't this to be done by the independent Board at TransLink.
Put today's date as a time stamp on TransLink's fare structure schedule:
YVR Add Fare – Free Trial Until 2010
The Canada Line YVR AddFare applies to travel between Bridgeport Station and any of the three stations on Sea Island (Templeton, Sea Island Centre and YVR-Airport).
In the initial months of operation, a trial period will be in effect and travel on the Canada Line to the Vancouver International Airport (YVR) will be exempt from the YVR AddFare. The AddFare is expected to take effect in 2010 and further details will be posted here when available.
For Richmondites, they get to go to YVR for free, provided they can make it to the Bridgeport Station for boarding to the airport under their own power.
This move by the Campbelloids is so cynical they should be standing in the middle of a large cemetery!!
we surely need Robin to be in Madam Justice Bennett's courtroom on Monday August 17 ...
I didn't expect him to be away this long, but, on the other hand, I haven't heard from him either ...
The CJ isn't a free agent, is he?
Isn't he, part of... and the bigger question here, "supposedly" accountable to, our court system?
More and more, this case becomes a game of "Who Do You Trust"?