Wednesday, September 30, 2009


Madam Justice MacKenzie sets date for Defence trial-delay application

The Basi-Virk case stems from a police investigation over the alleged leak of confidential information from ministerial aides about the BC Rail bidding process, which led to the unprecedented police search of the legislature in December 2003.

The Basi-Virk case stems from a police investigation over the alleged leak of confidential information from ministerial aides about the BC Rail bidding process, which led to the unprecedented police search of the legislature in December 2003.

Photograph by: Bruce Stotesbury, Canwest News Service file

Full column is HERE.

VANCOUVER - The new trial judge in the Basi-Virk political corruption case made it very clear Wednesday that she wanted to set a date to hear the defence trial-delay application.

During a pre-trial conference, B.C. Supreme Court Justice Anne MacKenzie said there was some urgency to hearing the defence application that the trial delay in the case has caused prejudice to accused.

Defence lawyer Kevin McCullough, who representing the accused Bob Virk, expressed concern that the application should be heard after all the Crown disclosure has been completed, but the judge insisted the matter be scheduled right away.

"I want to do that first," the judge told the defence and Crown lawyers.

"I don't want to start off on the wrong foot," McCullough responded, adding he thinks the disclosure is nowhere near complete so the constitutional argument on trial delay should be put off until just before the trial begins.

The judge, however, suggested the defence should anticipate that the trial will start next January.

After a brief adjournment for counsel to discuss the matter, the defence trial-delay application was set for Dec. 1. It is scheduled to last five to eight days.

Under 11(b) of Canada's Charter of Rights and Freedoms, a person charged with a criminal offence is guaranteed the right "to be tried within a reasonable time," which the Supreme Court of Canada has found to be in the range of 12 to 14 months after arrest.

The charges in Basi-Virk case were laid in 2004, so the trial judge will have to hear legal arguments and evidence about whether the Crown and defence caused the delay, and whether the delay was unreasonable.

If a judge finds the Crown caused unreasonable delay, a judge can rule the accused person's fair-trial rights were violated and the usual remedy is to stay the charges.

Defence lawyer Michael Bolton, acting for the accused Dave Basi, told the judge that he will bring evidence in the form of reports about how the trial delay has affected the accused psychologically and financially.

{Snip} ...

The case will return to court Oct. 13 to continue hearing applications for disclosure of documents held by the provincial government, including the cabinet.

Another week of arguments concerning application for disclosure of BC Rail documents is set to start Oct. 19.

{Snip} ...

At the centre of the case is the controversial $1-billion privatization sale of BC Rail to CN Rail, which was announced by the government in November 2003 and finalized in 2004.

Five years and not a trial in sight

New judge takes over BC Rail case as process is poised to collapse

By Vaughn Palmer,
Vancouver Sun - October 1, 2009

When Justice Anne MacKenzie formally took charge of the BC Rail case Wednesday, she wasn't long in signalling that, as the expression goes, a new sheriff is in town.

MacKenzie advised the parties at a pre-trial hearing that she wanted to begin the much-delayed B.C. Supreme Court trial in the new year.

But it may not come to that because she also announced that she wanted to proceed straightaway with a defence application to have the entire case thrown out because of the years of delay in going to trial.

Her intentions brought an expression of concern from defence lawyer Kevin McCullough, who noted that his side is still in the midst of efforts to obtain as much evidence as possible through a series of disclosure motions.

The judge reiterated her determination to proceed with the delay-of-trial application, all but cutting him off. "I want to do that first."

"I don't want to start off on the wrong foot," McCullough returned, while maintaining his view that the order of business should be disclosure first, delay-of-trial application later.

Not surprisingly, Justice MacKenzie prevailed, as my colleague Neal Hall reported in a story posted on The Vancouver Sun website shortly after the pre-trial conference wrapped up.

The expedited delay-of-trial application will be heard starting Dec. 1. It is expected to take five to eight days of court time.

The prosecution has been urging this course of action for some time, presumably on the notion that if the case were going to be tossed because of the delays, there would be no need to resolve the many other outstanding issues in this exceedingly complex proceeding.

Indeed, it would be bizarre if the court were to tackle other issues -- which could consume additional weeks if not months -- only to return to the delay-of-trial issue after the court itself had contributed to the delays. {Snip} ...

MacKenzie's predecessor, Supreme Court Justice Elizabeth Bennett, estimated in August that the case "will not likely resolve for at least another year."

She said that after accepting a post on the Court of Appeal, having presided over the case since January 2006, during which time she didn't hear more than a scrap or two of actual evidence.

Instead, she vetted application after application for disclosure of evidence, with each succeeding application spawning more applications until the material disclosed numbered in the hundreds of thousands of pages.

To be sure, those applications were mounted by the defence. The prosecution will argue the defence was mostly responsible for the delays. The defence will say in reply that if police had been more forthcoming in the disclosure process, there would have been no need for all the applications. And so on.

Hence the need to set aside five to eight days for the back-and-forth on the delay-of-trial application.

Nor is that the end of the issues standing in the way of this case proceeding to trial. The defence intends to challenge the wiretap evidence and the search warrants. Plus there is the matter currently before the Supreme Court of Canada involving the handling of the so-called "secret witness," actually a police informer.

Any one of those issues could sink the case. Wiretap evidence declared inadmissible. Search warrant thrown out. Prosecution abandoned to protect the identity of the informer. Judge stays the charges because of unreasonable delays in going to trial.

As noted above, it makes sense to hear the delay-of-trial application first because if the defence wins on that one, then the other issues are, as the lawyers say, moot.

In that event, the public would be left wondering about a years-long case involving allegations of political corruption that ended with no answers, only more questions.

A change of government could spawn a public inquiry. One or the other of the accused might launch a suit for wrongful prosecution. But barring the answers that might emerge from those proceedings, one has to underscore the significance of the farewell statement of departing Justice Bennett.

"Over the past three years, I have read thousands of pages of documents as part of these applications, and have issued a number of rulings. However, no evidence has been heard on what might be referred to as the trial proper." She repeated the point: "I have heard no evidence except for a few minutes of evidence on a disclosure motion."

No evidence. Not tested in court. Not even presented in court. Something to keep in mind. Because if this case collapses without going to trial, then the public record would show no evidence, no findings, no verdicts, only rumours, innuendo and speculation.
Pssst ... Vaughn: Don't overlook the fact that -- within that statement of Justice Bennett -- there is the clear-as-diamonds acceptance that the trial of Basi-Virk had begun; from which it follows that she as presiding judge was obliged by law to complete that trial.
- BC Mary.


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