Saturday, December 19, 2009
Basi Virk: Seven Minutes in Courtroom 54, December 18, 2009
By Robin Mathews
The court was thinly populated. No Michael Bolton, no William Berardino, no Kevin McCullough, no Joseph Doyle. Five lawyers in court. Two "mainstream media journalists". Two other observers in the gallery.
The reason was clear. Madam Justice Anne MacKenzie was arriving to deliver her decision on the Defence application for disclosure of miscellaneous redacted documents and 427 source witness reports (involving, I believe, briefing notes by officers involved with the informers who have claimed "informer privilege" over much of the material).
We sat the other day some hours as Ms. Winteringham (for the Special Crown Prosecutorial team) went through "redacted" documents in which only she and Madam Justice Anne MacKenzie could see what was being discussed - the "redacted" parts.
The word "redacted" is one of those words that is badly chosen and badly used. It is, in fact, a cover-up word. It's correct meaning is "edited, prepared for publication". The courts have mangled the word to make it mean "material that has been blanked out in a text so it can't be read". It would be much closer to the court's meaning if the word chosen was "censored", then the public would know the material is not edited, not revised, not re-written, not re-organized, but censored, blacked out.
When Associate Chief Justice Patrick Dohm "redacted" and "released" the search warrants from the famous legislature and other location "raids" of December 28, 2003 - all he did was to blacken about 80% of the text to protect people that I believe (under standard search warrant protocols) were not entitled to be so "protected". The public's right-to-know and right to "participate" in the administration of justice in British Columbia is under unceasing attack. Mr. Dohm's "redaction", I believe, constituted just such an attack by withholding material the public has a right to examine.
With Dohm's censored search warrants we saw a piece of the iceberg below the water line - the tip of that iceberg being the RCMP announcement on the day of the search warrant raids (before any of the gathered material could be examined) that no elected official was being (or would be) investigated. The announcement, we know, was just short of a lie because up until December 12, then Finance Minister Gary Collins was under investigation and surveillance (the Defence counsel insist).
"Redaction" in the Basi, Virk, and Basi matter has very often been, I believe, a sign of the class war that is being fought over the wrongdoing involved in the corrupt transfer of BC Rail to CNR: "the BC Rail Scandal".
To put the matter crudely (the most precise way to put it in this case), three cabinet aides appointed, in fact, by Gordon Campbell are charged with (variously) 14 counts of fraud, breach of trust, and money laundering as part of a mammoth set of highly dubious, complex, and wide-ranging manipulations, transactions, negotiations, misrepresentations, and - finally - falsifications that constitute "the BC Rail Scandal". That mammoth scenario could not have been master-minded and carried forward by the three men charged - but they are the only ones against whom accusations of criminal wrongdoing have been brought in relation to the scenario. Their counsel insist they are not guilty as charged.
Today's appearance of Madam Justice Anne MacKenzie and her decision on the application for disclosure by the Defence counsel was I believe another (extremely important) clash in that class war.
Put briefly: one force wishes to convey to the British Columbia public that an alleged criminal wrong-doing in the transfer of BC Rail to CNR occurred when the three men charged (cabinet aides) engaged in alleged illegal actions. Those three - the force says - did criminal acts and no one else did in that transfer. Embarrassingly, that "force" appears to be made up of what one might properly speak of as "power" in British Columbia, the "Establishment" in British Columbia, what the Left would call "the ruling class".
In the terminology of "Class": the "Establishment", and "the ruling class" refer to the corporate capitalists, the political party in power, the (so-called) "mainstream press and media", the upper ranks of police forces, the courts, and the legal 'establishment' that serves those others.
The divide - that first showed itself as a crack in the surface when the announcement was made that no elected officials were under investigation in the BC Rail Scandal - has spread now to the size and depth, at least, of the Fraser Canyon.
It may be that Madam Justice Elizabeth Bennett stepped down from the case for that reason. She did NOT "recuse herself". She had no visible conflict of interest that would make her "recuse herself". Visibly, she freely and voluntarily - seeking her own pleasure - stepped away. And, visibly, she was replaced by Madam Justice Anne MacKenzie.
[Madam Justice Elizabeth Bennett's "free and voluntary" stepping away from the Basi, Virk, and Basi case is complicated just a little by the bizarre hearing in which William Berardino made a motion to Associate Chief Justice Patrick Dohm to have Madam Justice Bennett removed on the ground that she couldn't be in two places at once and on the ground that she did some things wrong in the procedures thus far. Though it was a hearing at which a motion was first presented, and nothing whatever proved, quite strangely Mr. Dohm seemed, somehow, to have already decided, because he informed the assembly that he had already chosen the judge who would replace Madam Justice Bennett!]
Invisibly, some might say, 'the ruling class' decided Elizabeth Bennett was allowing the Defence altogether too much room to (A) point to the divide between 'the ruling class' and the accused three men. She was, some might say, (B) permitting a Defence program and policy that more and more and more pointed to the possibility of wrongdoing among the "Establishment", among members of "the ruling class". Some might suggest (C) that the wrongdoings pointed at might well be criminal wrongdoings. When Defence counsel claimed that cabinet materials, BC Rail management materials, RCMP records and briefing notes, etc. were important to the defence of their clients, Madam Justice Bennett said something like: "Well, let's look at them to see if they are, indeed, relevant." And many of them were found to be relevant to the the conduct of the defence of the accused men - and Madam Justice Bennett admitted them to be used as evidence if required.
All the while the people of British Columbia were being given a look at the extraordinary set of actions by the Gordon Campbell government which - against the people's wishes - transferred "their" railway to a private corporate entity now in fact headquartered in the U.S.A. Some people connected to the Gordon Campbell government might, moreover - the people of British Columbia began to see - just have done it in a way that involved criminal behaviour.
Since Madam Justice Anne MacKenzie has taken over as presiding judge on the Basi, Virk, and Basi case nothing that the Defence counsel has sought - as far as I know - has been granted by her. A spokesperson for her and Associate Chief Justice Patrick Dohm has even refused to supply me with a professional resume for her - the judge sitting on the most important criminal trial concerning public affairs in British Columbia's history. Her record of work as a judge of the Supreme Court of British Columbia I was told - in effect - is none of my business.
It may not come as a complete surprise to readers that Madam Justice Anne MacKenzie took something less than seven minutes this morning to dismiss both parts of the Defence application for disclosure (to give reasons later). She based her dismissal, for the most part, on the Supreme Court of Canada's decision in the Stinchcombe case (1991). All that needs to be said about it is that "Stinchcombe" sets the terms for disclosure of materials to the Defence. Primarily, Mr. Justice Sopinka, for the Supreme Court of Canada, made clear that evidence in the hands of the Crown is "the property of the public to ensure justice is done". It is not the personal holding of the Crown and so it must be released to Defence in most instances.
The Crown may delay the disclosure. On that basis, I believe, Madam Justice MacKenzie announced her decision today. Defence had argued that, under a ruling by Madam Justice Elizabeth Bennett, the Crown cannot unilaterally decide what is relevant to the case for the Defence. Stinchcombe supports that view. Ms. Winteringham, however, claimed irrelevance of material (ostensibly for all concerned). Madam Justice MacKenzie could have reviewed the material right away for relevance. She could have said: "Well let's look at those documents to see if they are, indeed, relevant to the defence of the accused". Instead, she decided to dismiss the application - which doesn't prevent it from being re-born later.
The next meeting of the court on the Basi, Virk, and Basi matter will be held on January 11, 2010. Still to be heard are Defence applications on wire-taps, delay of proceedings, abuse of process, reelection to jury, and change of venue from Vancouver to somewhere else for the trial. All of those matters, however, may take different shape in the next weeks and a wholly different schedule appear before or on January 11, 2010.
Very special thanks to Robin Mathews for his very special reports. This will be his last column for 2009. I believe that Robin Mathews is providing us with a unique set of observations of a trial-event unique in British Columbia. Let's hope that he will be sending us reports on the trial itself in 2010. Happy New Year, Robin. - BC Mary.
The last four words (quote above) must be engraved on Justice MacKenzie's decision issuing stationary. Am I the only one who thinks perhaps the dimissal was mandated from above and Ann or Anne will be busy over the holidays trying to make up the reasons before January 11? A well trained lawyer can make a good argument (reasons) for anything, it takes a "real" judge to eventually, if ever, determine what is truly correct under law!
"the judge sitting on the most important criminal trial concerning public affairs in British Columbia's history. Her record of work as a judge of the Supreme Court of British Columbia I was told - in effect - is none of my business."
Of course we can't even seem to find out exactly who she is (Ann, Anne, Mary Ann - etc.) much less her C.V. I'm going to take the liberty of starting another quiz at The Ledge Raids - let's guess who she is and where she comes from.
Since I'm in a John Prine frame of mind today, I'll start the guessing game by suggesting that Justice Ann(e) MacKenzie is actually Judge Abbie Hoffman of Chicago 8 and "Illegal Smile" fame in drag!
Dear God...this is me. I'm taught you created this earth in six days and rested on the seventh. I can only assume this is part of the seventh. I regret disturbing your rest, and if you were sleeping, I apologize for waking you, but, please, Madam, could you cast an eye on what's going on down here? It's getting out of hand. In fact it's an expletive deleted mess!
Wakey wakey, please. I'm not asking for another flood, I imagine that's a tad complicated, but...an archangel or two? Michael, maybe?
Thank you, ma'am.
Robin: for your reporting, your research, your insight and your continued analytical distillation of important points that have to do with the BCRail Trials or Crown V. Basi/Basi/Virk. Your writing is very important, and the people of BC owe you a huge debt of gratitude. If only the Vancouver Sun would interview you for a full page article (by page seven with a teaser intro and photograph on page one)... One can dream can't one.
BC Mary: for being one of Cam's sought-after archangels.
Cam: for injecting some much needed humour in relation to this trial.
But what if the Defence decised tomorrow that the missing Watergate tapes are relevant? Then what?
Do we allow for more delays while the Defence makes a case for revelance respecting the misplaced 18 1/2 minute tape?
Come on. Lets stop this fishing expedition and get this case to trial!!!! Let the Crown show the Court what it has (ie a smoking gun), and let the Defence tell us it aint what it looks like, and to prove their position or lets here them say they cant, but could if only they could find the missing tapes, and let the Judge decide if that is just a tad fantastic, contrived of what.
Al those nasty details that I personally want exposed. After-all we were supposed to have the most open and accountable government in the world. That was the promise. Perhaps this trial can give us a little of this.
"The Best place on Earth" to have a trial of the BC Liberals
" ... the missing Watergate tapes"? Did you fall asleep and ride off into another country?