The Fall Of A Court. The BC Rail Scandal's "Moment Of Truth"

As a mere footnote to that last point the explosive nature of the released January 4 Application for Disclosure highlights the danger in the court’s continuing refusal to release material on the public record to the public. If the fifteen page document released on February 20 has explosive implications, what – we may ask - is present in the hundreds of pages on public record that Madam Justice Elizabeth Bennett is keeping from public view? Arising from the corrupt (and still partly secret) sale of BC Rail, an honest and open investigation and examination of all the evidence might well be enough to force the resignation of the Gordon Campbell government. Think of it. At the moment, now, the Gordon Campbell government may be illegitimate, a “rogue state”, a government acting behind a barrier constructed to obscure its fraudulent status. In such a dramatic and important situation - focused in a set of court processes - reasonable people quite fairly expect the court to move in an organized, competent, timely, and visibly meaningful way. They expect the presiding judge to iron out wrinkles in procedure, to undo log jams in communication, to make sure evidence required arrives promptly in effective form, and to move pre-trial hearings to a smooth and timely conclusion so that the trial, proper, may begin. Those things have simply not happened in the Bask, Virk, and Basi case, a case staggering and lurching, scarcely moving forward in the Supreme Court of British Columbia. The January 4 document lists serious failures on the part of the Special Crown Prosecutor to present evidence called for. It lists presentation of evidence without proper (or sometimes any) indexing, failures to explain anomalies, incorrect verbal information being given and possible other (not yet known) verbal misinformation having been given by the Special Crown Prosecutor. It lists what appears plainly to be missing material, late or spotty presentation of material, failure to provide “information relevant to the abuse of process allegations”, - and more. Failures of organized, competent, and visibly meaningful disclosure are listed through 69 particular items presented in the January 4 Application for Disclosure filed by the Defence. The January 4 document constitutes, in fact, a scathing denunciation of the long, long, long pre-trial process so far undergone. And it forces reasonable Canadians to recognize that something is deeply and fundamentally wrong. For reasonable Canadians the January 4 Application for Disclosure is truly a “moment of truth”. No longer can the “You don’t understands”, the “ifs” and the “buts” and the arguments that “court processes are complicated” work to head off criticism. A school child reading the January 4 Application for Disclosure would see plainly that the Supreme Court of British Columbia is seriously failing justice and the people of the Province. Is the Special Crown Prosecutor dragging his feet? Is he purposefully failing to organize material and ready it for the Defence? Is he urging the RCMP to keep material back? Or is he looking the other way when the RCMP prepares material inadequately? Is he taking as his primary task the delay and obfuscation of what ordinary people think of as “due process of law”? Are those his instructions? Does the RCMP – in this case – have reasons of its own to block, disarrange, and impair the proceedings? Is the RCMP an entity which has contempt for the powers of the Supreme Court of British Columbia? Does it consider itself outside the scope of jurisdiction of the higher courts of Canada? Is the RCMP delaying the process under orders? From someone? Is counsel for the Gordon Campbell cabinet throwing sand into the machine purposefully, preventing movement forward? Has he been ordered to do that? All of those questions and many others may perfectly reasonably surface in the minds of ordinary Canadians. They are important questions. But all of them are subordinate to the Number One Question. Why is Madam Justice Elizabeth Bennett permitting the disarray, the failure to comply with her court orders, the apparently alarming failures on the part of the Special Crown Prosecutor and (through him) the RCMP to complete tasks, to report information, to give up materials in an organized, timely, and credible fashion? Why is Madam Justice Elizabeth Bennett permitting the chaotic and destructive delay that marks the process over which she presides? That is the fundamental question. She is key to almost all the failures cited in the January 4 Application for Disclosure and, as a result, is now, herself – I say this with respect - in question, front and centre. Return for a moment to the 15 page, January 4 Application for Disclosure. It begins by claiming that “notwithstanding the Court’s Order of June 4, 2007, neither full disclosure has been made nor has the Court’s Order been complied with”. Later, [# 59] Defence again refers to neglect by the Special Crown Prosecutor of “the Court’s June 4, 2007 Order….” And again [#62] Defence writes: “Notwithstanding repeated Court Orders with respect to providing meaningful indexes of materials … indexes…are not helpful [and are] unusable without opening each individual document”. Regarding matters concerning “star witness” Erik Bornmann [#67], Defence writes: “To date, the Special Prosecutor has not complied with this part of the June 4, 2007 Order”. The opening of the Application for Disclosure makes a blanket statement of failure to comply with the Court’s Order. At specific places in the document that blanket statement is given special application. Concluding the Application, Defence seeks relief by asking for 13 Court Orders. At least six of the requested Orders, as I read them, deal with information in the possession of the RCMP that Madam Justice Elizabeth Bennett, in court, called for “forthwith” months and months ago. Others among the remaining requests for Orders reiterate matters covered earlier in the hearings. What conclusions may reasonable Canadians come to? First, that Court Orders from the presiding judge are all but ignored by the Special Crown Prosecutor and the RCMP. They defy her orders so visibly and consistently – as far as an ordinary Canadian can see - that reasonable people may conclude they are in contempt of court. But the presiding judge does not cite them with contempt of court, nor does she even upbraid them publicly for failing to comply with Court Orders. This observer is convinced (as I believe the Special Crown Prosecutor and the RCMP must be) that her Court Orders are meaningless gestures undertaken, perhaps, to provide “news” for the members of the press sitting in the gallery. Secondly, Madam Justice Elizabeth Bennett, herself, seems to place no value upon the Orders she issues. She suffers their violation with imperturbability. As I see things, she does almost nothing to assure the integrity of the court process. There may be any number of reasons why she avoids enforcing her Court Orders. The reasons may be psychological, temperamental, ideological, political, or other. Whatever the reason, her failure, I believe – I say this with respect - seriously impairs what may be to the British Columbia population the most important trial in the Province’s history. For that reason I think she must, with respect, be asked to step down, must be asked to leave the case, must be declared unable to continue in the role of presiding judge. As long as she remains in that position, I believe the case will be seen, more and more, as an embarrassing and destructive farce. British Columbians' would be acting with perfect prudence, I believe, in going – in droves - to the next hearing on the BC Rail Scandal, rising in the court, asking for standing, receiving it, and, one by one, requesting – with respect - that Madam Justice Elizabeth Bennett vacate the position of presiding judge, for the sake of the credibility and the integrity of justice and the Supreme Court of British Columbia. The BC Rail Scandal court process has become a tragic joke, bringing justice and the Supreme Court of British Columbia into growing disrepute. The failure to get the simplest production of evidence without delay, obstruction, posturing – impediments of all kinds – is making the Supreme Court of British Columbia appear a bastion of protection for wrong-doers and for those who would efface the fundamental freedoms of Canadians. Almost all of the impediments to a clean, competent, and timely process, I believe, must be laid at the door of the presiding judge. The moment of truth has arrived. Madam Justice Elizabeth Bennett must go.