A Letter To Madam Justice Elizabeth Bennett, BC Supreme Court

                                   
                                    
                          
                                     February 5, 2009



The Honourable Madam Justice Elizabeth Bennett,
The Supreme Court of British Columbia,
Vancouver Law Courts, 800 Smythe Street,
Vancouver, B.C., V6Z 2E1


copies to W.S. Berardino, Q.C, Janet Winteringham, P.M. Bolton, Q.C., K.G. McCullough, J. M. Doyle, vivelecanada.ca, the legislature raids website, Dialogue magazine, Canadian Press, Mark Hume, Neal Hall, Gary Mason, Bill Tieleman, others.



My Lady:

     This letter is being written to you, with the greatest respect, on the matter of the appearance in the Supreme Court of British Columbia on, and after, February 16, 2009, of George Copley, lawyer for the Executive Council of B.C. (the Gordon Campbell cabinet, in effect). 

    Winner (I understand) of a medal for his service to Campbell policy, George Copley will present material and argument of the greatest importance to the understanding of the BC Rail Scandal, to what is thought of by many to have been the corrupt “sale” of BC Rail by cabinet, and to the forthcoming trial of Messrs. Basi, Virk, and Basi for (variously) fraud and breach of trust in relation to the BC Rail Scandal.

   Mr. Copley presents a huge problem when he speaks in court: he cannot be heard.  On many previous occasions people in the gallery have exited the courtroom saying they had not heard a word of his utterance.  Put simply, that is a preposterous situation. 

   On more than one occasion I have heard you ask Mr. Copley to speak up so that you could hear him.  You have done that when facing him at a distance of about 7 feet.  What do you think has been the case of a gallery of auditors 30 feet away, partially blocked by a glass wall, with Mr. Copley facing away from them?

   You have not, in the past, seemed aware of or in the least concerned about the ability or inability of the gallery to hear utterance in the court.  I submit, with respect, that you should have been concerned in a legal system based upon the principle of open courts.  If a speaker in an open court is inaudible to everyone but the judge and lawyers, the court process is not “open”.  It is, in fact, a process being conducted in camera.

   George Copley’s silent presentation is just one of the absurdities common to the pre-trial hearings involving Basi, Virk, and Basi, and common to Supreme Court of British Columbia in its behaviour. It is an outrage, for instance, that people seeking transcript material and other material on public record should face refusal or unseemly delay, bureaucratic complexity, and then often  huge costs paid to private corporations whose profits Supreme Court judges seem more concerned to assure than they are to assure the public’s right to know and its certainty of the fair pursuit of justice.

    Private corporate control over court documents and records must end.  In addition, repression of materials on public record for in-house reasons under so-called “Practice Directions” must end.

   In a public matter and trial of such importance as this one - with which you are seized - a printed transcript of every day of hearing should be available on the next sitting day, in the courtroom, for all who wish to have a copy.  If that statement surprises you, I suggest – with the deepest respect – you may have forgotten the duty our legal system has (and you have as judge) to support the fair pursuit of justice openly and with regard to all citizens. 

  So much material on public record is presently kept secret for reasons I consider indefensible that suspicion may fairly arise among some Canadians that rule-makers in the Supreme Court of British Columbia are either petty tyrants or are complicit with others wishing to prevent justice being done – and being seen to be done.

   The recent revelation that (a) Brittni Lee Foisy, 19, and Morgan Taylor Foisey, 15, could not afford the astonishing court costs to be able to use the B.C. Supreme Court system in a civil case against (government controlled, in fact) B.C. Ferries, and that the Gordon Campbell cabinet (through the Ferry Corporation) would not assist them financially is a further outrage, and connects directly to the points I am making.

   Indeed, lawyer Peter Ritchie for the Foisey women suggests the Ferry Corporation resisted trial by jury and “would rather avoid” questions that would have arisen in cross-examination.  Reasonable Canadians may fairly believe that the Ferry Corporation (in fact a complex extension of cabinet policy) wishes   to thwart a normal search for justice.

    It is a further outrage I suggest (b) that a cabinet minister, Attorney General Wally Oppal, “downplayed” critical statements by the young women’s lawyer, did nothing as a cabinet member to suggest special help, and professed – nonetheless – that improving the system is a “priority” for him.  He could, perhaps, have made a more inane and insulting statement (merely parroting the Gordon Campbell position?)

   I have said before that Wally Oppal should not be Attorney General of the Province.  No Supreme Court/Appellate Division judge – long a colleague of judges there – should ever be permitted to be Attorney General, for such an appointment invites suspicions of conflict of interest which cannot be erased.  Wally Oppal’s highly political position as Attorney General (producing the kind of wholly political, nonsensical comment on the Foisey matter just referred to) is, I submit with respect, a sign of the degeneration of the British Columbia higher court system.

   On Tuesday, February 3, Gordon Campbell postured before a large audience at the Sheraton Wall Centre, telling them he will spend another two billion dollars of B.C. taxpayers’ money to assure employment. None of that money, it appears, is dedicated to restoring the British Columbia higher court system.  Gordon Campbell does not, I believe, wish to see an effective and just legal system in British Columbia.  The reasons – for those observing the Basi, Virk, and Basi procedures – may seem to be obvious.

   The question – a related one - of the system which produces Special Crown Prosecutors is raised by the Basi, Virk, and Basi matter.  In theory, Special Crown Prosecutors are chosen to be especially independent of any connection to the forces in contestation in a case – especially one relating to elected officials or civil servants.  But in this case the Special Crown Prosecutor is alleged to have been (at some time in his career) a business partner, or practicing colleague, or other of the Attorney General in position at the time of the appointment as Special Crown Prosecutor.  Who reviews such appointments?  What machinery is in place to assure the unquestioned objectivity of appointees?  Is there any form of review that is guaranteed to be utterly impartial?  Should not judges-in-place require review?  If the present Special Crown Prosecutor was connected to the Attorney General of the day, questions arise – no matter how scrupulously objective and superbly competent the Special Crown Prosecutor may be in the present case.  The fact that I may bring up this topic, and ask the questions I do makes a comment upon the viability of the Supreme Court of British Columbia at this time.

The few points I have made so far show clearly, I suggest, that the Supreme Court of British Columbia – with other like courts in Canada – preserves and advances a shameful system assuring access to “justice” for the rich and powerful and little or no access for the poor (or even the merely not-rich).  The Supreme Court of British Columbia constantly fails even in assuring the simple public “right to know”.
 
    I remind you, with respect, that you are a knowing and participating agent of the system being described.

   I am concerned (as you no doubt know) especially about the apparent contempt Supreme Court officers of all ranks feel for the public they serve.  The BC Rail Scandal has produced court actions involving drug crime, alleged wrong-doing involving Agricultural Land Reserves, the fraud and breach of trust matter with which you are seized, trial of a Victoria police officer for counselling misinformation – and more.  Court actions have been held in North Vancouver, Vancouver, and Victoria – apparently uncoordinated, unconnected, and shifting in venue as if purposefully fragmented in order to scatter attention.  They may not have been (and continue to be) fragmented for dubious cause.  But reasonable and prudent Canadians have every right to suspect – when the Gordon Campbell cabinet is touched – that such fragmentation is intended, and orchestrated.

   Court scheduling must be conducted in the interests of public understanding and information – with reasonable concentration of related events and court processes.  Scheduling should not be conducted to suit the whims of judges or anyone else if such action prevents the public from gaining access to important information in a serious, continuing fashion. 

   I believe I have remarked before that this is one of the most important series of hearings and trials in British Columbia history, carrying within it the possibility of unseating the incumbent government because of its possible involvement with wrong-doing.  The courts involved have had a special weight upon them to conduct themselves with clarity, with dispatch, with openness, with effectiveness, with visible discipline, with deep regard for the centrality of the people of British Columbia as an interested party.  The courts, I say with respect, have – as I have observed them - done none of those things.

   Mr. George Copley is a servant of the B.C. Cabinet.  He is appearing in Vancouver Supreme Court on February 16 in order to shield what cabinet documents he can – relating to the BC Rail Scandal – from the Defence (and the British Columbia public).  His presentation will be extremely important and MUST be fully audible. 

   With continuing respect, I ask you to make perfectly certain that he can be heard clearly throughout the courtroom.  If that means he must speak into a special microphone, then I ask you – with respect – to provide a special microphone or whatever else is necessary to assure he is not, one more time, seeming to be whispering secrets to you alone.

   It is perhaps extraordinary that a Canadian has to apply in a special letter to a Supreme Court judge to request that procedure in a B.C. Supreme Courtroom be made audible to those present.  But there appears to be at present a state of judicial carelessness, inadvertency, shielding of information, inexplicable delays in demanding the production of evidence, inattention to the rights and freedoms of ordinary Canadians, and an apparent dwelling in what has been called in a recent Ontario study of higher courts “a culture of complacency”. Because of all of those things I feel I am, with the greatest respect, constrained to make this application. 

                                                          Respectfully,

                                                          Robin Mathews