Politics in the Supreme Court of British Columbia. Secrecy. Bias, Protection of Wrong-Doers.
Part Three: Madam Justice Elizabeth Bennett.
By Robin Mathews
Madam Justice Elizabeth Bennett presides, and hearings resume, after recess, on June 4. They are the hearings in the Supreme Court of B.C. on the way (?) to the criminal trial of Dave Basi, Bob Virk, and Aneal Basi. The men are accused of various (fraud and breach of trust) charges related to the dirty sale by the Gordon Campbell government of B.C. Rail four years ago.
The sale was publicly attacked by the CPR as being the result of a compromised bidding process. CPR withdrew from the bidding, dissatisfied, alleging the Campbell government made a “clear breach” of fairness and had given CN an unfair advantage in the bidding. To fake a real competition, moreover, government representatives are alleged to have promised benefits to the U.S. company Omnitrax to pretend to stay in the race, andÃ¢â‚¬Â¦andÃ¢â‚¬Â¦. In fact, the sale of B.C. Rail is very probably illegitimate.
On June 4, 2007, the hearings resume as Madam Justice Bennett rules on requests Defence has made for further disclosure of evidence so far denied. Evidence, it seems, has been denied or delayed by the Special Crown Prosecutor and his Crown team because of apparent oversight, apparent neglect, apparent disorganization, absent-mindedness, RCMP obstruction, apparent forgetfulness, cabinet obtuseness, RCMP inefficiency, computer failure, claims of irrelevance, andÃ¢â‚¬Â¦andÃ¢â‚¬Â¦andÃ¢â‚¬Â¦.
Justice Bennett has presided over months and months of delay and obstruction which now are shouting from every nook and cranny of Courtroom 54 in the B.C. Supreme Court building. The question which is forced upon the serious observer is this: is Justice Bennett a part of the forces wanting to “de-rail” (pun intended) the proceedings against Basi, Basi, and Virk?
The Gordon Campbell group has powerful reason to try to kill any close examination of the B.C. Rail sell-out. Expressions of cabinet concern may be seen in the almost daily recent gallery appearances of a lawyer acting for (then) Finance Minister Gary Collins. To that lawyer was added – by a Gordon Campbell signed cabinet order – a full-time information officer to monitor proceedings. Questioned in the legislature about the information officer, “motor mouth” Attorney General Wally Oppal (assisted by abject Campbellite minister of finance Carole Taylor) spewed forth a list of tasks set for the officer which appears to be patent nonsense. The Speaker of the House might well be asked to look into the truth of Oppal’s statements. Did he lie to the House?
All Canadians have to know that Madam Justice Elizabeth Bennett’s integrity as presiding judge in the dirty B.C. Rail sell-off/Basi, Basi, and Virk “trial” is seriously in question.
On March 3, 2007 I wrote in a column that the endless delay in disclosure permitted by Madam Justice Bennett “reveals that the presiding judge has failed to be in control and to insist upon the speedy, fair, and full opening of materials essential to a trial of integrity”. That is clearly a secrecy problem. The forces that may be allied with the Special Crown Prosecutor and his team seem determined, it may be alleged, to keep from Defence material essential to the conduct of a fair trial.
On November 14, 2006, Madam Justice Bennett admitted that “until May 2006 [Corporal Mar] was still requesting notes, reports and documents from [RCMP] officers involved in the investigation”. Bennett observes Mar “did not depose that she has everything from the investigators, two and one-half years after the warrants were executed.” In fact, at this late date everything has probably still not come from the investigators. Surely the presiding judge has an important role to insist upon and to order materials be made available completely and on threat of contempt charges. Justice Bennett still hasn’t taken that step – and I believe never will. There is no doubt that in law she has responsibility, and her failure to act has resulted in much of the delay in the production of necessary materials for a trial. Why has she not acted with greater celerity and insistence?
That whole mess presents one fairly shadowy view of secrecy’s face. The other is not shadowy at all. Madam Justice Bennett is denying to all Canadians, other than lawyers directly involved, ALL documentary material placed on public record during the court proceedings leading to the trial that may or may not take place. Put simply, the court has met for hearings over nearly three months since the February 26 presentation by the Defence of its Application for Disclosure of evidence denied it. (That 32 page, key document, was, fortunately, leaked.) Since then, not a page of proceedings transcript or of documents submitted is available to Canadians. The material is on public record, but is hidden. The public who owns the records is, in fact, prevented from seeing them. The court (and in this case Madam Justice Bennett) refuses to grant Canadians their absolutely correct role in oversight of those materials.
The Crown, for instance, gathered, apparently, 14 sworn affidavits from (mostly) RCMP officers to refute Defence claims made in the Application for Disclosure. I have written to the Chief Justice and to Justice Bennett asking to see transcripts of day to day proceedings and to see the 14 affidavits. I asked, in addition, the Chief Justice to review the overall gag order that lets Justice Bennett operate a totalitarian rule of secrecy and to report to me on his findings.
He has refused to consider my request – as I interpreted his intentions from an amusingly insulting reply sent to me from a Chief Justice Brennan underling.
My last request to Madam Justice Bennett is so far ignored, though it was she who said in court on March 6: “These proceedings have to be as open as possible. We will have a system in place for proper access to documents.”
On May 10, 2007 I wrote the two justices and rejected unequivocally the odious gag order. I wrote that the gag order “calls deeply into question [the Supreme Court's] honesty, integrity, impartiality, and claim to be the guardian of the freedom and tranquility of all Canadians”.
Dangerous secrecy has dogged this whole matter. Would it have done so if ordinary Canadians had been involved and not cabinet connected people? Clearly secrecy was not employed in the matter of the demonstrations against forestry rape on the West Vancouver Eagleridge bluffs. There no doubts were entertained. There contempt of court charges rained down rapidly upon many ordinary, honest, concerned Canadians. There a 78 year old woman was sent to jail for ten months for daring to ruffle the judge presiding. There an aging and sick Native woman protesting also ruffled the judge and was sent to an unsuitable lock-up, despatched there quickly even though she was taken nine days later to hospital to die (apparently as a result of the conditions she faced in the lock-up). There none saw delays. There no secrecy was involved. There the determination of the judge was evident. The Campbell government wanted the protesters dealt with rapidly and forcefully, and for some reason the Supreme Court (in the guise of Madam Justice Brenda Brown) responded as a dog to its master’s whistle.
What are the wishes of the Campbell government in the case being processed involving the dirty sale of B.C. Rail? Can we guess? What do the signs show us?
Associate Chief Justice Patrick Dohm signed all the December 24, 2003 search warrants which led to the “raids” on legislature offices and to the charges against Basi, Basi, and Virk. Search warrants are normally public property as soon as the search action is complete. Dohm, however, sealed the warrants for months. To protect whom? Why such secrecy?
Both Dohm and Bennett admit there is “a presumption in favour of public access”. In a dance of mumbo-jumbo, however, Dohm reports that search warrants may be examined unless a sealing order has been made. In effect – and in practice – Dohm is saying Canadians may see search warrants unless he (or another judge) says they can’t. And every time he says they can’t, suspicion of his motives enters and grows. Strong reasons must be given for denying Canadians access to court documents (which search warrants are). Dohm has failed to give convincing reasons.
He not only delayed release of the December 24, 2003 search warrants. After a few months he imprudently had William Berardino, Special Crown Prosecutor, write a summary for the press – to save Dohm the trouble of fully understanding the case, apparently.
For nine months Dohm refused access to the search warrants. Then he released about 85 pages of warrants with about 70 pages totally or partially blacked out. He did not – and never has, therefore – released the search warrants. Who is he protecting?
What he did do – most interestingly – is erase almost all information that might have implicated others and released, almost untouched, the information that implicated two of the later accused. The effect was to shift attention away from highly placed political participants in the whole B.C. Rail scandal and focus it in a concentrated way on men later accused.
Equally interesting, the men were not formally charged on September 10, 2004 when the gutted 85 page document was released – and so they were “charged” instead in the public mind a good three months before they were actually charged in late December. Desperately anxious to protect the innocent apparently, Dohm did not hesitate to release almost all of the warrant material of the two men – “innocent” at the time and, in Canada’s law, innocent now.
Any reasonable person might draw the conclusion that Dohm’s concern for “the innocent” is a highly adjustable concern or that it may even be a form of bias used to protect certain kinds of wrong-doers.
Madam Justice Bennett, in charge of the B.C. Rail matter in court, accepts all of Associate Chief Justice Patrick Dohm’s “handling” of search warrant information. She continues, as well, secrecy in the day to day hearings concerning the B.C. Rail scandal. Not only does she deny documents obtained, but she denies transcript records of the day to day procedures in open court. And she upholds Dohm’s denial of search warrant information that may implicate Gordon Campbell and his political associates.
This behaviour comes from a judge who sat for 136 days on what many believe was the non-trial of Glen Clark, former NDP premier. In her judgement then she made a statement that is now replete with irony (after declaring Clark completely innocent of wrong-doing). “Our free and democratic society requires Ã¢â‚¬Â¦ allegations to be investigated and a prosecution undertaken if there is evidence which meets the threshold required for charges to be laid. Anything less would bring the system of justice into disrepute.”
In the Basi, Basi, and Virk matter we are more and more led to believe (a) apparent, possible wrong-doing was present among others than the accused. (b) Investigation of others involved in the matter was cut short. (c) Evidence was, perhaps, purposefully not gathered so that the “threshold required for charges” could never be reached in the case of any person but the three presently accused. The day to day court transcripts and the other documents registered and denied to the public may point to information on just that matter – the culpability of uninvestigated others. Is that why they are kept secret?
In my May 20 letter asking to see documents and transcripts, I point out to Madam Justice Elizabeth Bennett that her support of the gag order on such materials is support for a “totalitarian imposition”, and that it “serves the interests of the corrupt element in the Gordon Campbell regime, the corrupt Private Corporations seeking special favours from that regime, the corrupt elements in B.C. political society who desire secrecy and anonymity in their dubious activities, and certain elements of the RCMP which do not want a wide British Columbia public to be able to examine their questionable activity”.
I wrote earlier in this column that all “Canadians have to know that Madam Justice Elizabeth Bennett’s integrity as presiding judge in the dirty B.C. Rail sell-off/Basi, Basi, and Virk ‘trial’ is seriously in question.” Readers must judge if that is a hasty statement.
Robin Mathews, one of Canada’s longest-standing political activists, lives in Vancouver, B.C. He can be reached at firstname.lastname@example.org