Wednesday, October 13, 2010
BC Rail Political Corruption Trial: Robin Mathews' summary of what happened and what didn't happen, in BCSupreme Court yesterday, Oct 12, 2010
Morning in Courtroom 54. The Last Straw …. October 12, 2010.
The Bill Tieleman headline says it best: “Basi-Virk trial delayed yet another week! Allegedly to resume Monday October 18.” [The “Allegedly” catches it.]
And Mr. Tieleman wasn’t even in court to get the news! The Tuesday, October 12 session ended so quickly he hadn’t made it to court from his office…. And the session ended for the week … to resume “Allegedly” … later.
For his story, Mr. Tieleman depends on the person he calls “my colleague Neal Hall [Vancouver Sun] – who has been indefatigable in attending the non-trial for the past months with little to report for it….” [That’s true.] Blandly (and, normally, logically) Mr. Tieleman goes on that Mr. Hall “has just posted the explanation”.
Mr. Hall posted the excuse. Not the explanation. And he posted the excuse only, because – like Mr. Tieleman, it seems – he won’t deal with what I believe is the explanation.
Mr. Tieleman continues (with the excuse): “A Crown decision to reorganize the witness list will ‘decrease the length of this trial substantially’ according to Associate Chief Justice Anne Mackenzie, Neal reports.”
But think. At the end of September, Second Crown Witness Brian Kenning - whispers in the hallways said – had travelled across the country for a birthday party, in the midst of testifying. That block to continuation of the trial was compounded by other things - the sickness of Dave Basi, the sickness of a few jurors … Fate! Days lost. Delay went forward briskly.
It was then – at the end of September when delay was outstanding – and plain to all - that the word in the corridors announced that Prosecution was considering a reduction in the number of witnesses called to (the excuse again) speed the trial on its way. What is more, Keith Fraser [The Province] reports today (Oct. 12) Mr. Berardino’s confidence in the change. “Outside court, Berardino said that his decision to reduce the witness list was in the best interests of the justice system. He said his decision will not impair the strength of the Crown’s case.”
It can, in fact, only improve the Crown’s case.
Martyn Brown, Chief of Staff in the Gordon Campbell Office and chief political advisor to Campbell, was called by Crown to reveal that confidentiality oaths exist and that the three accused had taken the oaths. That took several minutes. And then for days Defence tore Martyn Brown to shreds in cross-examination, calling up from Mr. Brown a chain of forgetfulness about facts and events and people that stunned even the most devoted of Gordon Campbell supporters.
Next Crown Witness, Brian Kenning – still waiting in the wings (“Allegedly”) to complete his testimony - was called to underscore (it seems) three things. The transfer of BCRail to CNR was spotless and perfect. There was no “fix” to dump BCRail onto CNR come what may! And all (what the French call “pots de vin”) – payoffs, which are alleged to have taken place among the highest circles of “administration”, simply didn’t occur. That took a very short time to complete.
And then Defence tore Brian Kenning to shreds in cross-examination, calling up from Mr. Kenning forgetfulness, forgetfulness, forgetfulness, pleas of powerlessness in the transaction, and pleas that huge moneys (of every ridiculous kind) received by top-level operators were the perfect, normal, daily, usual, ordinary, ho-hum, hum-drum huge payouts in the business world … and so should, naturally, be paid to people dissolving a Crown Corporation owned by the people of British Columbia and being dissolved against their will … and with studied secrecy and, apparently, with so many side confidences and breaches of process that two involved bidders complained in highest dudgeon – and one of them, CPR – withdrew in publicly declared dismay!
That’s only one and a half witnesses of a proposed thirty-odd. Think of twenty-eight and a half more going through the same process – being carefully shredded and baldly challenged and exposed to the ridicule of the public for … for months and months and months. Something had to be done.
The excuse, I suggest, is “to reduce the witness list … in the best interests of the justice system”. Part of the explanation (not the excuse) is to do something radical to stop the haemorrhaging of credibility from all involved in what I have always called “the corrupt transfer of BC Rail to the CNR”. And by extension something radical will be done to try to stanch the haemorrhaging of credibility from the whole Gordon Campbell fiasco government.
But, you say, the government is not on trial. Three Campbell-appointed aides are on trial. Of course. But they were government, as much as Martyn Brown is government. Bob Virk sat on the Evaluation Committee … as government. Dave Basi worked for Gordon Campbell and Gary Collins … as government. Aneal Basi, a part of the Campbell propaganda arm called “Communications”, was government communicating.
And, now, William Berardino, Special Prosecutor, is trying to prove charges against the three as, somehow, not ‘government’ but working for government. And Mr. Berardino is calling recognizable government figures and their friends - implicated in the highly dubious transaction out of which charges against the three arose - to represent themselves as clean as cloth and to point the finger of righteousness at the three (alleged) malefactors!
Whatever ways Mr. Berardino turns the matter, the government is on trial in every second of the Basi, Virk, and Basi case.
Mr. Berardino is not (we are told) an accomplished and highly experienced criminal lawyer. (See Bill Tieleman’s “A to Z” on the Basi, Virk, and Basi case.) Mr. Berardino needs to be expert, and perhaps he needs to be Houdini as well to try to give the mess he is in some credible shape. Surely, an accomplished and highly experienced criminal lawyer was needed in this case. But Mr. Berardino was appointed. (?)
At the end of September, I have reported here, word in the hallways was of a coming trimming of Crown witnesses. Then at least ten days elapsed. Surely the trimming of Crown witnesses doesn’t involve a series of seances with clairvoyants! Surely (as they say) it isn’t rocket science! Surely it could have been done swiftly, without fuss, in the jury-free time leading to October 12.
But it wasn’t. Mr. Berardino rose in court (as Associate Chief Justice Anne MacKenzie reported to the jury) and asked for the rest of the week to trim the Crown witness list. She addressed the jury warmly, in sympathy with their wonderful patience, sweetly and with affection - with the excuse (not the explanation) reported above by Keith Fraser. The trial will be sped on its way by the trimming of witnesses.
I suggest it won’t be. And I suggest the intention of Prosecution is to delay the trial in every way possible. And I suggest this latest move to trim witnesses is part of the intended delay. The delay will go on briskly. Will go on … and on … and on … and you (people of British Columbia) will pay for it … on … and on.
The trial is a calamity for the Gordon Campbell government. And it could explode like an anti-personnel bomb wrecking havoc among the very people who began the action.
Not the least of those is William Berardino himself, appointed Special Prosecutor in a violation of the legislation governing the process of Special Prosecutor appointment. Mr. Neal Hall won’t report that, nor will Mr. Tieleman (the man, his blog says, you must read to understand the case).
As I have said – if Mr. Berardino is the most pure and most conscionable legal actor in Canada, it doesn’t matter - his wrongful appointment presents the world with the potential for the perception of bias in the case. And that condition makes his presence in the courtroom intolerable. He was appointed by a Ministry of the Attorney General in which Geoff Plant and Allan Seckel – minister and deputy minister – were Mr. Berardino’s long-time colleagues and partners (and, one assumes, friends).
Quite outside the publication ban – in the Spring of 2007 – Gordon Campbell entered the judicial activity (astonishingly!), wiped out the protocol for vetting cabinet documents sought by the Defence and replaced it with Allan Seckel – who, Gordon Campbell said, would consult with the Special Prosecutor (Seckel’s partner and colleague - and, one assumes, friend - for eleven years).
As I have said, the three accused may be said to have been “government” at the time of the transfer of BC Rail to CNR. And “government” decided to charge them with crimes. It was essential – absolutely essential – that government (the ministry of the Attorney General) find someone from among the 11,000 lawyers in British Columbia in no way connected to the accused or the accusers (if necessary the ministry could even have gone outside the Province).
Instead they found and appointed William Berardino, partner and colleague of what have to be called “the front men” in relation to the charges against the accused. Remember: the ‘raids’ on legislature offices on December 28, 2003 were only conducted on the offices of Dave Basi and Bob Virk – not on the offices of their superiors who gave them their orders. And so – though charges were not laid for a full year – the “raids” were upon the offices of the people who would be charged. And William Berardino had to be appointed with that in mind.
His appointment was in violation of the legislation governing the process of appointment of Special Prosecutors.
The “excuse” for the present postponement of the trial against the three accused in the BC Rail Scandal has been given by Neal Hall and Keith Fraser and repeated by Bill Tieleman– and quoted here. The “explanation” is deeper and darker, and I have tried to give it – delicately – some kind of shape.
"He clearly attempted to influence the manner in which both counsel were presenting their respective cases"
"The errors made by the trial judge and indeed the whole conduct of the trial have a cumulative effect that makes it readily apparent that no other disposition than that of a new trial would achieve a fair result."
Read Below this case, involving similar charges.
R. v. Hinchey,  3 S.C.R. 1128
Criminal law -- Trial -- Charge to jury -- Conduct of trial -- Whether trial judge’s errors and persistent interference preventing accused from receiving fair trial -- Whether curative proviso applicable -- Criminal Code, R.S.C., 1985, c. C-46, s. 686(1)(b)(iii).
"While I do not intend to go into this aspect of the appeal in detail inasmuch as a decision has already been reached as to disposition, the transcript clearly demonstrates untoward interference with both counsel’s conduct of their respective cases by the judge throughout the trial. In the course of the trial, which lasted over two weeks, the judge continually questioned counsel (indeed “grilled” is perhaps a more apt description) both prior to and during the examination of many witnesses as to the form and nature of the evidence to be given. On at least eight occasions the judge suspended the proceedings, excused the jury and of his own volition entered into what he termed as voir dires for that purpose. He clearly attempted to influence the manner in which both counsel were presenting their respective cases.
1 A review of the transcripts makes it apparent that the proceedings were more in the nature of an ordeal than a trial. Certainly they indicate that the accused could not have received a fair trial.
I hadn't realized that there are 11,000 lawyers in BC. One would assume that at least a tenth of them would be able to act as a prosecutor on behalf of the crown; and, of that tenth, at least a tenth would have been quite suitable (as having no direct ties to the government being charged). Easily, the crown could have found, in our province alone, 11 suitable lawyers from which to choose.
That was some analysis.
And a lot of food for thought to help us think about what is really going down here.
Thanks again Robin.
Thank you, RossK.
Also ... Robin has a stunning column in Vive le Canada today on Revolution. It's not exactly BC Rail but it does fit with the climate we're living in.
I don't see how MacKenzie could've consulted the lawyers at any point, on the length of the BC Rail Political Corruption trial. Remember her earliest announcement -- she said it would be only a matter of (from memory) 8 weeks? Simple math would've alerted her to the impossibility of 40+ witnesses in 8 weeks.
I thought, at the time, that she displayed her complete ignorance of the BCRail case, right then and there. Not the details. She lacked even the basic understanding that this is the most significant trial in the province's history.
Who knows who she consults.
someone commented, asking if it was MY letter to the editor of Maclean's magazine which was published.
Answer: maybe. I did write to Maclean's in response to their cover story about Quebec being the most corrupt province. I asked if they had heard about the BC Rail Political Corruption Trial. Explained a bit. Asked them to look into it.
Never expected a reply or to see my letter published.
And so far as I know, my letter was not published. I just looked and only 16 letters are shown. They must've peeled off 80% of what they received.
If the person can tell me where he/she saw "my letter" would they please copy-and-paste for me?
It was definitely not a confrontation ... there's a little more to it,
and I'll see if Robin will explain.
Back later, but thanks for asking.
Just how many other railway companies were up for sale in BC in 2003?!
"Here's a link to the Government Bills for 2003
Line item 64 has Minister of Transportation, Judith Reid, introducing an Amendment on May 14th where she is wants to change the Railway Act while her government is going through the process of selling BC Rail off:
MEMORANDUM OF ASSOCIATION OF THE ......................... RAILWAY COMPANY
1. The name of the company is the "......................... Railway Company".
2. The registered office of the company will be located in the City of ........................., in British Columbia.
3. The object for which the company is incorporated is to establish a railway undertaking, and to construct or acquire a railway from ......................... to ........................., in British Columbia.
4. The authorized share capital of the company is as follows: ..........................................................................................
5. We, the several persons whose names and addresses are subscribed, want to be formed into a company under this Memorandum of Association.
To answer the question from Anonymous 1:07,
"Robin Mathews says Mr. Berardino approached him a little later and said that the group was not talking about the trial, which Mathews accepted as said."