Wednesday, September 30, 2009


Robin Mathews in Supreme Court today

Morning in Supreme Courtroom 42, September 30, 2009
By Robin Mathews

All attention was focussed on the "new" judge appearing for the first time to preside over pre-trial and trial processes involving the accusations against Dave Basi, Bobby Virk, and Aneal Basi.

Observers were given time to ponder the circumstances of her arrival since Madam Justice Anne MacKenzie entered court twenty minutes late. Will her appearance be a victory for the Gordon Campbell government? We remember that the withdrawal of Madam Justice Elizabeth Bennett was a matter for her to decide. But we also remember a few months ago Associate Chief Justice Patrick Dohm appeared in the court to hear a motion by Special Crown Prosecutor William Berardino to have her removed. And that Defence entered a motion to have her stay. We remember, as well, that Dohm said he would be back in the court at some time to announce the change (he obviously agreed with Mr. Berardino)- for which he said he had for already chosen the replacement (apparently, unannounced, Madam Justice Anne MacKenzie). If that is so, how free was Madam Justice Bennett to choose?

And what is the meaning of the presence, now, of Madam Justice Anne MacKenzie?

We will probably never have the answer to those questions in the light of the extraordinary set of circumstances.

Madam Justice Anne MacKenzie made clear that she wants the matter to proceed without delay and even spoke of a January trial date. She said, in addition, that she wants to move immediately to what is known as the Eleven B application. That is the application by Defence for mistrial because of unnecessary delay - provided for in the Charter of Rights and Freedoms which requires that the trial of accused persons is conducted without unreasonable delay.

Defence responded that the application cannot be heard until (in effect) all the delay is before the court, and so it should wait until disclosure is complete. The judge disagreed and said Defence could "factor in" further delay (that is, guess what it might be). Mr. Berardino, Special Crown Prosecutor spoke for an immediate hearing of the Eleven B application in support of Madam Justice Anne MacKenzie's position.

That was the character of her attitude to the process in general, and she shaped what she hopes will be a schedule proceeding into early December. During the back-and-forth concerning the directions she wishes proceedings to take, she stated that she has not read all the material generated. That was a fear reasonable people had when Madam Justice Elizabeth Bennett announced her withdrawal - could Madam Justice MacKenzie get "up to speed", as one journalist said it.

She is, apparently, not "up to speed" yet, though she is in full charge of the process.

Outside the courtroom, Leonard Krog, NDP justice critic remarked that it was clear to him Madam Justice Anne MacKenzie wants to get going and wants to be in stronger control than Madam Justice Bennett apparently was. Mr. Krog suggested that from a public interest perspective that is a good thing. Any of counsel, he opined, is going to have to have really good excuse to delay. (In fact, she made clear that this case must be primary with counsel and it is others they must put aside in cases of conflict.)

Mr. Krog may be right. He may not be. For if Madam Justice Anne MacKenzie is in the court to prevent any further revelations about high government officials being involved in questionable actions involving the sale of BC Rail, then her presence will speed, perhaps, the trial of the three accused men, but will prevent the full scope of responsibility in the matter to be known. Mine is a speculation - as is Mr. Krog's.

Our speculations will be proved or disproved when the hearings resume on October 13, leap-frogging their way through the weeks until early December. Ten a.m., October 13 is the next date of appearance on the BC Rail Scandal court processes.


.... wonder why the pace of this trial has never seemed a normal one?

....seems the tempo has always been, ummmmm.... orchestrated.

.... now the metronome has again been re-set....from the slow crawling waltz of the limping tortoises to an apparently hare-raising fast jive.
Let's go up tempo!
If there is any further delay the defence argues "justice delayed is justice denied" - charges dismissed. (Oops! They're already arguing that aren't they?)
If there is a speedy trial (as the 'special' persecutor insists) then the defence can argue that not all the evidence is in (due to foot-dragging by the aforementioned special persecutor) and argue for a mistrial.
It's the perfect solution: no trial - no public disclosure...
Its win-win for the government - and we the taxpayers get to pay
damages (on top of their defence lawyer's costs, of course) to the poor (never-proven-guilty) defendants for all their 'pain & suffering' (and they get to keep any and all alleged payoffs and kickbacks).
Is there a criminal code charge for 'perversion of justice'?
Wait a minute: justice has nothing to do with the law, right?
What was it Jack Cade said (according to Shakespeare)?
Something about: "The first thing we do, let's kill all the lawyers." - Henry VI, Part 2
Many thanks to RM for perceptive reporting - we are all in your debt!
It almost seems as if Justice Anne has decided the trial will proceed full bore, disclosure or lack of same, be damned. Since it is only the forces arrayed against the defense and the people of BC who have a problem complying with disclosure orders (or requests, complete with pretty please) it is easy to see whose interests this accelerated pace is most likely to aid and abet, and it is neither justice nor the people of BC, the land that justice forgot!
It's just jive talkng, is all.
Faster dance steps and fancy moves often result in slipped footing, or even a glimpse under the skirt (or kilt).....
Anon 10:18...I think you've hit the nail on the head.
Leah, Anon & Anon ... I've been thinking about what can be done ...

in the nicest possible way, of course,

to influence this trial.

I've put some of those thoughts together, and will post something later today.

One thing is clear: we cannot be satisfied with simply wringing our hands and saying we're doomed. No, absolutely not.

The BC Rail Case is never going to be over until we, the people (and the previous owners of BC Rail) say that it's over.

Please join the discussion. OK?
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