Killing Democracy And The Rule Of Law. The Supreme Court Of B.C.

Killing Democracy and the Rule of Law.  The Supreme Court of British Columbia, The BC Rail Scandal, and the Basi, Virk, and Basi Court Proceedings, July 25, 2008.

Courtroom 66 saw a tiny, unspectacular few (10 counsel in court,  about 9 others in the gallery) gather to witness Madam Justice Elizabeth Bennett hammer another nail into the coffin or our legal system.  She ruled that she has the power to order the (dubious) solicitor/client privilege of the Gordon Campbell cabinet to be extended (in this case) to the Defence counsel and – at the same time – to deny the evidence involved to the public.

Rejecting the claim of Roger McConchie (for the Globe and Mail) that granting the order would create (a) a “secrecy package”, (b) would create a new meaning of solicitor/client privilege, and (c) would create a precedent dangerous for the future, Madam Justice Elizabeth Bennett accepted the argument of the Gordon Campbell cabinet (through counsel George Copley) that breaking solicitor/client secrecy and extending information to Defence counsel is not making it public.

Waivers of privilege, she said, require a person to show he or she is directly affected (as, perhaps, in a case of “innocence at stake”, meaning that failure of waiver would assure an unfair trial). My argument is that there is a parallel interest on the part of all British Columbians to someone arguing “innocence at stake” in this matter because the Gordon Campbell cabinet may be shielding evidence that would, ultimately, reveal criminal activity damaging to the whole population.

In her use of precedent, Madam Justice Elizabeth Bennett, as I heard her, called upon instances involving private corporations.  The cabinet of B.C. is not a private corporation.  I shall come back to that.

To begin, George Copley argued (verbally in court) that the Gordon Campbell cabinet has no need in law to relinquish its (dubious) solicitor/client privilege.  (That is questionable.) Cabinet has, he said, not a legal but a moral duty to share the evidence with Defence counsel.

That argument was picked up and used by Madam Justice Elizabeth Bennett in her decision.  It opens huge questions.

Since the law, we are led to believe, is based upon shared criteria of morality, Copley (I insist) is declaring, and Madam Justice Elizabeth Bennett took up the argument [very importantly] that the law and morality – for the Gordon Campbell cabinet – are  separate. In short, the cabinet he represents will act legalistically when forced to, but its action need have nothing to do with morality. Thinking to show a special sensitivity in the case of the materials Defence demands from cabinet in order to guarantee its clients a fair trial, Copley suggested grandly that cabinet felt a moral duty to help though it could legalistically deny the materials necessary for a fair trial.

He is, I believe, saying that the cabinet of British Columbia (or any government in Canada), having been extended huge special powers of privilege and privacy in order to uphold the rule of law, the integrity of government, and the development of policies may, at will, deny the Defence and the Public information (in a court proceeding) which may reveal wrong-doing among its agents or itself (as a cabinet).  In the particular case referred to, he declared that the cabinet, moved by moral considerations, agreed to give Defence the materials necessary to conduct a fair trial but insisted the public has no [legal?] right to see them.

Outside of the court after the decision, Mr. McConchie (for the Globe and Mail) made three points.  (1) This is the first time in Canada that such a declaration has been made. (I will refer to this farther on.)  (2) The order is characterized by consent.  It is a consent declaration of Prosecution and Defence. (3) The introduction of the “moral” component is extraordinary and complicating.  Can the cabinet, in future, be asked to render evidence in court for “moral” reasons, on this precedent?  What are the outside boundaries for the future?  Can cabinet be faced with this decision if it tries further refusal of materials?

McConchie stated that he was delighted that the order in no way prejudices free speech arguments before the court if the cabinet tries to impose a publication ban on privileged material exposed by cross-examination or other means in the court.

Just as relevant, Kevin McCullough for the Defence – after the decision – stated in court (argument no longer being permissible on the order) that Defence is back to Square One.  Because, he said, when Defence wants to use the material in open court, sparks may fly and the cabinet may demand privilege permits them to challenge use (and so, in effect, the material returns to secret status and must be fought over anew).

[If this argument seems unique and of little interest, read on.  And observe, as well, that the Agricultural Land Reserve part of the investigations of the BC Rail Scandal that relate in some ways to Dave Basi, has moved into pre-trial hearings in Victoria – with, I am told, a publication ban on proceedings.  Why a publication ban?  Who is denying the principle of Open Courts?  Who is being protected by a publication ban? Is it a further comment upon the atatempt to strangle the open court principle in Canadian courts?]

Partly the reluctance to release the information in the matter argued in Courtroom 66 in Vancouver is based on (innocent?) third party involvement.  But the argument that the BC Rail co. is a third party to the action against the three accused constitutes, I believe, simple nonsense (accepted, nonetheless, by Madam Justice Elizabeth Bennett).  BC Rail is a property of the people of British Columbia.  The Gordon Campbell cabinet is the elected servant of the people of British Columbia. There exists “the people of British Columbia”, their extension into the cabinet of British Columbia, and their property, BC Rail.  There is no third party.

To argue that there is a third party is to argue that the Gordon Campbell cabinet is a separate corporate entity (separate from the electorate that created it) and that the cabinet “owns” BC Rail and can separate it (as a third party) from the people who, in fact, are its owners.

Permitting that interpretation, Madam Justice Elizabeth Bennett is, I believe, making a declaration that the Constitution of our democracy is a sham.  She is making a declaration, moreover, I believe, that the Gordon Campbell group is a private corporation that – with other private corporations in the world – rules the Province of B.C.  If that is true, “The people of British Columbia” are a fiction.  They don’t exist as a factor in the government of British Columbia

Only one of Madam Justice Elizabeth Bennett’s errors, I believe, is her behaving as if the Gordon Campbell cabinet is a single and separate corporate body as – say – Canfor is or Telus.  At no point in the proceedings thus far have I seen her stop the argument to say, “We are not talking about a private corporation that Gordon Campbell is heading.  We are talking about the government of B.C., which is ‘responsible’ to parliament and through it to the population of the Province.  Its responsibilities in all of the matters we are facing are special and particular to its identity.  All claims it makes for privilege, secrecy, confidentiality have to be weighed from the point of view that it is an instrument of a democratic community and must answer to that community. It cannot be regarded as a private corporation.”

In addition, the Gordon Campbell cabinet, apparently, threatened that if it didn’t get the order it wants, it might not give up the materials sought by Defence counsel.  That is – by the way – the second threat to the Defence (and the Canadian public) in the case.  The first came from Special Crown Prosecutor William Berardino who has suggested that if he doesn’t get a decision permitting him to conduct witness testimony in camera with Defence excluded – on the basis that the witness MIGHT name a person ALLEGED (but without a shred of proof in the hands of the judge) to be a “confidential informant”, he may close the Crown’s case, which means he may end the action.

To the British Columbia public William Berardino, representative of the Crown, is saying, as I understand him, that if he doesn’t get his way in a most tenuous (and I believe probably vexatious) request of the court, he will resign his trust obligation to seek justice on behalf of the constitution and the people of the Province. That is a way of saying, in short, (as I understand the matter) that he wants to make law as he needs it, and is not willing to follow the law of the land.

In the case of George Copley asking for an extension of the cabinet’s (dubious) solicitor/client privilege to be extended to Defence counsel but not the public, both Michael Bolton, Defence counsel and George Copley, counsel for cabinet, argued, I believe, that the order is virtually unnecessary because Defence doesn’t hand on evidence to the public in the normal course of events.

If that is so, why is the order being sought?  I suggest it is being sought in order to diminish the powers of Defence and of the public to demand fully open courts, to demand fair trial, and to uphold the key rights of the accused.

Notice.  William Berardino’s appeal attempts to exclude Defence counsel and the public from the giving of testimony.  That would be, I allege, an action relegating Defence to an inferior place in criminal cases and to nullify the existence of the public.  It would, I believe, be an important step in the direction of reversing a basic principle.  It would be to move away from the principle that the accused are innocent until proved guilty towards the principle that the accused are guilty and have precious little chance in a court of proving the opposite.  That state of law exists and has existed frequently in parts of the world.

The Gordon Campbell cabinet request for an order seeks to eliminate (by establishing a precedent) an important area in which evidence presented in court must be “open”, must be made public and placed on public record.

I suggest that none of the prohibitions sought are necessary.  I suggest, moreover, that they are a part of the move by many contemporary siamese twins – private corporations and governments in power – to destroy democratic institutions and replace them with corporate rule while insisting corporate rule is the final achievement and apex of democratic freedom.

History looked at briefly reveals that corporate totalitarianism has always destroyed the just balance between accusers and defenders.  In criminal law the accuser is the Crown, a highly complex entity outside government (though, of course, made possible by it).  It is, at its best, the ideal of the society seeking justice without bias or affiliations.  Forms of totalitarianism overcome, absorb, and disable open and just courts. The Crown is co-opted.  Judges become rubber stamps for the corporate state. The Defence must – by a hundred means – be disabled.  At first the transition is barely visible.  As long as the fiction of a Democratic Society is maintained (to hoodwink the population) the matter can be hidden, often.

As corporate totalitarianism hardens the fiction is abandoned.  In the Stalinist “show trials” of the 1930s the balance of accuser and defender was erased.  The tortured accused poured out incriminating confessions before a (supposedly) believing court which then handed down each bleak sentence.

Nazi Germany didn’t reach for the “legitimacy” of show trials, but many of its laws saw prosecution, defence, and judiciary combine together to violate and debase human decency and dignity – and to do so “under the law”.  Corporate totalitarianism combines bad law with corrupted courts to gain its ends.

In criminal law, I am arguing, the necessity (in order to move to corporate totalitarianism) is to disable what we think of as the “Defence” and to hide the new role of the courts from the people.  I am arguing, further, that the appeal by William Berardino to exclude Defence and the public from the testimony of a witness in the Basi, Virk, and Basi matter, and the request for a special order by George Copley to expand (in fact) solicitor/client privilege (in fact limiting Defence and excluding the public) may both be seen as attempts (whether Berardino and Copley know it or not) to remove powers of the Defence and to hide evidence (and actions) from the public.

I am suggesting those moves might be seen by reasonable and prudent Canadians as moves toward corporate totalitarianism.

I said in an earlier piece that the rape of democratic rights and procedures at Guantanamo prison has acted as a guide for such moves elsewhere.  The present defender of (Canadian) Omar Khadr at Guantanamo, U.S. Lt. Cmdr. Bill Kueber, makes the point: “if I’m a government lawyer, I can do whatever I need to do to accomplish my mission….  If I’m a defence lawyer, all of a sudden there are all these made-up rules to keep me from doing my job”.  (Globe and Mail, July 19 08 A11)

As one might expect, the corporate friendly Stephen Harper government refuses to intervene on behalf of Omar Khadr.  Lt. Cmdr. Kuebler “freely admits” the case “cannot be won in a Guantanamo courtroom regardless of the evidence”.  (Nor could one ever be won in the Stalinist “show trials”, largely for the same reasons.)  “Time and again, [Cmdr. Kuebler] has told anyone who’ll listen that Mr. Khadr’s only hope is for Ottawa to intervene.”

At present, Guantanamo is the symbolic public face of what is increasingly Dominant Western Power’s attitude to courts, the law, and democratic freedoms.  Delivery for torture to foreign countries by U.S. orders has been common.  Canadian complicity in Afghanistan torture is almost a certainty.  That’s not all.  “Abousfian Abdelsazik … says Canadian diplomats knew he was being tortured in grim Sudanese prisons but did nothing.” (Globe and Mail, June 14 08 A11).  Omar Khadr, in Guantanamo, alleges the same.  Even so, Guantanamo and the other widespread violations of Western law, justice, and rules about human rights make up only one piece of the jigsaw puzzle of what might be called “growing corporate totalitarianism in the West”.

The pieces of the puzzle expand through the phony “War on Terror” to U.S.-led private corporate moves to “rule”, in fact, as much of the world’s economy as possible.  As I write the Iraq oil lands are being parcelled out to major Western – mostly U.S. – corporations.  Afghanistan is being “secured” for oil and for other geopolitical ends.  Human life in the process has no value.

North American transportation lines, oil, gas, and river energy are being privatized and placed in U.S. corporate hands. The BC Rail Scandal is one part of that deliberate policy.  Eager to privatize into U.S. hands, the Gordon Campbell cabinet may well have fallen into actions that it is now desperately, in the Basi, Virk, and Basi fraud and breach of trust action, doing everything in its power to obscure, disguise, and/or erase.

The BC Rail Scandal is the tip of the iceberg.  Against all promises, the Gordon Campbell cabinet has, in fact, destroyed BC Hydro, cutting it into three parts.  One part has been handed to privately-owned Accenture (of the famous Enron and Arthur Anderson disastrous scandals).  BC Hydro is now forced to buy every new kilowatt of power from “private” sources.  The third part of (former) BC Hydro is a sham transmission company, like BC Hydro, B.C.-owned.  Except it is being integrated into a wholly U.S. dominant transmission network which can dictate what happens to and where B.C. electric energy goes.

At present the Gordon Campbell cabinet is auctioning off all oil and gas lands to private, largely U.S.-connected or U.S. interests.  It is, at the same time, giving BC Rail-style leases to private corporations to capture all electric energy from all B.C. rivers – and those leases will funnel energy into a “North American” system over which British Columbians (and other Canadians) will have almost no power.  All of that is accompanied by wholly misleading information, apparently happily disseminated by Canada’s major press and media.

In the same year as the search warrant “raids” on legislature offices the Campbell government set about changing the status of BC Ferries in preparation for selling the operation off to anyone outside Canada who would take it.  To assist, they hired a U.S. person practiced, apparently, in disintegration as head of the new corporation, David Hahn.  He is said to have (expense account) travelled the world attempting to dump BC Ferries, without success.

Having removed BC Ferries from the status of Crown Corporation, the Campbell cabinet could claim it is not a part of the B.C. highways system and must pay for itself.  While pumping money into the private corporations preparing for the Olympics and cutting taxes for like entities, the cabinet is, in effect, throttling people on the Gulf Islands, placing small businesses there in jeopardy, making ferry services more and more expensive, hinting they will be less frequent, and, it is alleged, attempting to destroy the BC Ferries union. 

The delayed, and delayed, and delayed trial of Basi, Virk, and Basi, arising out of the scandalous alienation of BC Rail from the people of B.C., must be seen in that wider perspective.

In civil trials (as distinct from criminal ones) one party (the Plaintiff) accuses a second party (the Defendant) of wrong-doing.  The Crown is not present.

As the Kelly Marie Richard dental malpractice suit in Calgary seems to show, the Plaintiff (the accuser) may be the party that must be destroyed to assure corporate dominance.  The Plaintiffs in the Kelly Marie Richard case allege a giant corporation (CGI) acted improperly with what seems to be cooperation from the RCMP, the CPC, a major law firm, some judges of the Calgary Court of Queen’s Bench, as well as professional associations and others.

So alarming are many, many of the allegations in the case (and evidence I have studied) that, supported by the Committee for the Defence of Kelly Marie Richard, I am seeking (with a serious, accompanying Report) from Rob Nicholson, Minister of Justice and others in government, a full Public Inquiry.  Nicholson has received at least 50 letters from people urging him to act and asking him to reply to my correspondence.

Nicholson, Canadian Minister of Justice, has not so much as acknowledged receiving communication from ANYONE who has made contact with him on the matter. Like Stephen Harper in the Omar Khadr case, Rob  Nicholson appears to refuse even to acknowledge the possibility of demonstrable injustice – where U.S. power or corporate interests are involved.  (They are often almost the same thing.)

With the Omar Khadr, Afghanistan, the Kelly Marie Richard,
and the BC Rail Scandal events in mind, a person would be hasty to say there are no grounds for speaking of a calculated erosion of democratic guarantees in the courts of the West.  The farce of the BC Rail Scandal and the criminal charges arising from it seem to support deep concern about the disintegration of the legal system and the erosion of concepts of justice in Canada.  With the behaviour of Stephen Harper and Rob Nicholson one may be able to point even to a highest level of Canadian government support for corporate wrong-doing.

That is perfectly consistent with allegations that in both Britain and Canada political accountability is under severe attack. (Read Donald Savoie’s book: Court Government and the Collapse of Accountability, Toronto, U. of T. Press, 2008).

Careless journalists in Vancouver have – more than once – suggested that anything other than quiescent acceptance of the delay and apparent manipulation in the Basi, Virk, and Basi case arising from the BC Rail Scandal points to “conspiracy theories”.  They mean by conspiracy theories mad, irresponsible, fantasizing without basis in fact. 

They plainly are refusing to look beyond their noses.  Even there – up that close – indications – quite apart from the scandalous delays – are very disturbing.

A key figure in the case against Basi. Virk, and Basi is the Special Crown Prosecutor, William Berardino.  The category of Special Crown Prosecutor in B.C. arose from an alleged desire to move from the regular Crown Prosecutorial staff in cases involving government figures or persons connected to government to people of unquestioned independence and objectivity.  They are people designed to be chosen among those without any connection with anyone in the case or with anyone in government.

When William Berardino was appointed, the Attorney General from whose office the appointment came, Geoff Plant, is alleged to have been a business associate of Berardino’s in the past.  There are two ways of looking at Berardino’s appointment.  The first is that he is such an outstanding prosecutor that his alleged former connection with the Attorney General, Geoff Plant, simply had to be overlooked.

The second way of looking at the appointment is to say that it was deeply unfortunate because any reasonable Canadian might believe (a) that Berardino should not have been appointed, and/or (b) that his role as Special Crown Prosecutor may be viewed with suspicion.  Since there are about 11,000 lawyers in British Columbia, the Attorney General’s office could pretty clearly have found a candidate with no record of connection to interested parties.

A second key figure in the case is Gordon Campbell, premier.  He solemnly promised not to sell BC Rail and then promptly set about alienating it.  The “sale” is alleged to have been highly suspect (CPR withdrew from the bidding, publicly condemning the process).  Many believe the cabinet misled the people of B.C. and the Opposition in the legislature about the terms of sale, price, etc.

Apart form those matters, Campbell is alleged by Defence counsel in the Basi, Virk, and Basi case (a) to have directly or by agent violated the protocol for sifting privileged cabinet documents.  (b) And he is alleged to have unilaterally nullified the protocol and to have appointed a Deputy Attorney General to oversee privilege claims.  Defence counsel call those actions political interference with court procedure.

Wally Oppal is a third important figure.  Presently Attorney General of B.C., he was for more than a decade a working colleague of many in B.C.’s superior court structure.  He agreed to leave the bench to run as a Gordon Campbell candidate, and very soon after he ran, he won, and was named Attorney General.  Questions about his role are many.  Should a judge ever be permitted to leave the bench to take the position of Attorney General?  Does doing so create a conflict of interest that cannot be cleared?  What is the position of former-colleague judges who must rule on matters with which Oppal is involved?  Can reasonable people believe those judges are totally untouched by their relation with him?  In the BC Rail Scandal both the political milieu and the criminal investigations/hearings leading to trial require an Attorney General as untouched by political considerations as possible.

Just for example, can British Columbians believe that the appointment by Gordon Campbell of a deputy minister from Wally Oppal’s ministry to oversee cabinet privilege claims is a purely administrative move and not a highly charged political one?
Especially after Campbell unilaterally and without consultation closed down the old method?  Needless to say the appointment would have had to be approved by Wally Oppal.

NDP Justice critic MLA Leonard Krog has publicly requested the Attorney General to order William Berardino not to attempt to take an appeal from the B.C. Appeal Court (where he lost) to the Supreme Court of Canada.  To appeal farther, Krog suggests, would delay trial of the accused for at least another year. Can Krog, or any British Columbian, have faith that whatever decision Oppal makes will be founded upon law and not political expediency?

A fourth, large basket of people about whom many questions persist are found in the RCMP.  From the beginning the RCMP has provoked questions about the seriousness with which they have pursued matters arising from the BC Rail Scandal.  Almost as the boxes of files were being removed from legislature offices on December 28, 2003, and as hard drives were being gathered, and offices and homes in Victoria and Vancouver were searched, RCMP spokespeople announced with bland confidence that no elected officials were being investigated (or would be). 

By what prescience could they know that the huge gathering of documents and testimony they had just begun to assemble contained no evidence that might incriminate elected officials?

From almost the beginning, RCMP delay has been a strange, inexplicable, and deeply disturbing.  Over months and months during which time Defence counsel complained and complained of RCMP delay in producing documents, William Berardino said little or that things were going as quickly as possible.

Then in 2008 – a few weeks ago – when NDP Justice critic, MLA Leonard Krog had Madam Justice Elizabeth Bennett release some affidavit material relating to the protocol problem, a strange item was contained in the papers.  The search warrant raids on the legislature happened on December 28, 2003 but charges against the three accused weren’t laid for nearly a whole year.  The raids themselves were the culmination of investigation and evidence gathering that had gone on for some time.  Why the delay?  We have never been told.

In the Krog papers there is a note from George Copley, counsel for the cabinet, well into the year 2004, to people in the Attorney General’s office. In the April 1, 2004 note Copley says that he and Berardino were meeting with Associate Chief Justice Patrick Dohm.  Copley says that Berardino asked him not to bring up the RCMP delay in the meeting with Dohm.  Copley didn’t.  And he said that Dohm chose not to bring up the subject.

“Obviously”, Copley wrote, “Bill Berardino is sensitive to the matter taking so long and he asked me this morning before Court not to comment on that aspect.  In his report to the Court he assured the court that the RCMP were working full time except for the spring break and that Copley would complete his review in 3 to 4 weeks…. I think he [Dohm] got the message without me saying so that any delay at this point has not been our responsibility. He chose not to comment on the delay.”

The RCMP took a further eight months before laying charges against the (presently) accused three men.

As early as 2004, before charges were ever laid, it would seem, there was a recognition among some counsel – and apparently including Associate Chief Justice Patrick Dohm – that the RCMP was delaying.  What was going on?  And why wasn’t the Special Crown Prosecutor demanding speedier action from the RCMP?

Several questions haunt the RCMP role in the BC Rail Scandal.
Who gives the orders?  What relation has RCMP to the cabinet or cabinet spokespeople? Defence counsel, in their June 4, 2007 disclosure application, point to consultation RCMP conducted with both the Solicitor General and his Assistant Deputy Minister “before and during the execution” of the search warrants and with the further involvement of those men when “the criminal investigation continued after the search of the Legislature….” [Was the consultation confidential, or did others in the cabinet know about it?] Why has disclosure of materials requested from the RCMP been so laboured and so unsatisfactory?

The problem of RCMP/Special Crown Prosecutor delay entered the pre-trial hearings presided over by Madam Justice Elizabeth Bennett, and it may be said to have never left.

That brings us to the role of the presiding judge, Madam Justice Elizabeth Bennett.  She spoke of wanting to bring the matter to a speedy trial, but she has done almost nothing to assure effective, complete, orderly, and timely disclosure as far as I have been able to judge.  She may be said to referee the hearings rather than oversee them, in my estimation.  I have said that she should have ordered effective delivery of disclosure materials and should have cited those who delayed with contempt of court.  I point out in this column she has never made a distinction between the Gordon Campbell cabinet and a private corporation. The issue has been called “the most important trial in B.C. history”.  Whether it is that or not, it is very important.  It is a trial in which the business and the property of the people of British Columbia have been, it is alleged, tainted with criminal behaviour and perhaps much more.

For those reasons she should be a stern, consistent, demanding, and an effective instrument to bring the case to trial. She should  engage the public in all matters relating to the trial, and she should make as much of the material as possible available to the public.  She has done none of those things in my estimation.  Instead, in my judgement, she has reinforced the rules set out by Associate Chief Justice Patrick Dohm to (in my judgement) keep information from the public. I believe his protocol, his Practice Direction, for the release of material is intolerable, as I have said in columns frequently.  The Practice Direction of Associate Chief Justice Patrick Dohm may be seen, in my respectful estimation, as a part of the move to corporate totalitarianism – whether Patrick Dohm is aware of that or not.

And so we are back where we started.  Is the machinery of justice in B.C. (and perhaps in Canada) – as a part of the structure of power in our democracy – being transformed into an instrument of corporate aspiration. Is it leading us to the destruction of democracy, democratic freedoms as we have known them, and a New Order in which the values of Private Corporations shall be thrust upon Canadians, called democracy, and, in fact, be the full, unfolding of Corporate Totalitarianism in which the Iraq war and Guantanamo Bay prison are the living manifestations?

Every indication arising from the Basi, Virk, and Basi action points, as I see it, to manipulation, obstruction, and delay of process by forces that look very much like they originate in the Gordon Campbell interest group.  That group – characterized by the cabinet – is actively handing the wealth of the Province (traditionally belonging to the people) to Private Corporate interests, largely centred outside Canada.  The BC Rail Scandal is only one face of that improper sell-out. “The court”, in the person of Madam Justice Elizabeth Bennett, seems completely unaware, and so appears to me to be doing almost nothing to focus, to expedite, and to determine timely and effective movement to trial in the matter before her.