The BC Rail Scandal: A Test Of The BC Higher Courts

Posted on Friday, February 26 at 10:55 by Robin Mathews

The BC Rail Scandal: A Test of the BC Higher Courts

The pre-trial hearings in the one criminal case arising out of the BC Rail Scandal have exposed the soft underbelly of power in the province. May 3 will begin trial of the three cabinet aides accused of criminal wrongdoing in the corrupt transfer of BC Rail to CNR by the Gordon Campbell government.  The administration of justice in British Columbia has been shaken to its roots in a pre-trial process marked by delay, apparent obstruction, the erasure of disclosure material by government, the de facto refusal to release search warrants, juggling of judges – and more.

Many are talking and writing about the shameful secrecy of the BC higher court system, about its irregularities, inconsistencies, inefficiencies, exorbitant costs, and … more.

The inadequacies, I believe, are orchestrated from the premier’s and the Attorney General’s offices to protect what I hold is mounting criminal breach of trust on the part of the Gordon Campbell forces.

In a burst of (mock?) concern present Attorney General Michael de Jong recently announced a number of reform things he might do – garnering him much press coverage.  He will do none of them, I believe, because the Attorney General’s ministry is a key location from which, I allege, law and judicial proceedings are manipulated to cover what I believe are Gordon Campbell government criminalities.

More on that in coming columns.

For now, look at a very small corner of the territory.  Madam Justice Elizabeth Bennett  - three years in pre-trial hearings involving applications for disclosure, arguments of the disputing parties, etc. was (I believe) “manipulated” out of the job.  In her place Madam Justice Anne MacKenzie was, I believe,  “manipulated” in.

I have already written about what I consider the “unsavoury” hi-jinks of Associate Chief Justice Patrick Dohm and Special Crown Prosecutor William Berardino in that regard.  Their’s was not behaviour, I think, what reasonable Canadians would find satisfactory. 

The BC Rail Scandal case is perhaps the most important public-interest criminal trial in the history of B.C.  It not only involves the three accused men – cabinet aides appointed by Gordon Campbell.  But it also seriously links the alleged actions of the accused to cabinet and other top-ranking public personalities.  And it provides reasonable grounds for speaking of the corrupt transfer of BC Rail to CN Rail by the Gordon Campbell government.

The ‘provenance’ of the trial judge, then, is an important matter, especially since she was brought in (without sound reason, I believe) to replace her predecessor.

Whatever location she started from, little could be found out about Madam Justice Anne MacKenzie by those looking for “background”.  And so, a reasonable Canadian, I wrote to Associate Chief Justice Patrick Dohm, Madam Justice Anne MacKenzie herself, and the Law Courts Librarian and asked for her professional resume (curriculum vitae).

 The Supreme Court of B.C. must possess such a thing, or something close to it.

None of the people addressed, of course, answered my letter.  I received a reply from what one might call “an in-house lackey”, or a “cover-up aide”.  He wrote, in short, that they wouldn’t give me what I asked for.  He didn’t say: “but here is a brief professional biography”.  Nothing. He provided nothing – on the orders of senior court officers, obviously.

The action of the court officers (Madam Justice Anne MacKenzie included) was, I insist, stupid, insulting, and irresponsible.  What’s more, it was an example of the enormous arrogance of the “power clique” in B.C. in the face of an absolutely legitimate public interest in public affairs.  The vaunted “Open Court System“ of our tradition is dead in B.C. I would say that any reasonable Canadian might assume all the three written to – to use street language – “are in the pay of Gordon Campbell and his friends”.

The refusal to supply the information was, further, I say, an infantile expression of the wholesale violation of the administration of justice characteristic of anyone within the farthest radius of Gordon Campbell power.

The response of the court officers meant a few people would have to do a lot of research in order to tell British Columbians just the bare bones of information about Madam Justice Anne MacKenzie.  Think of it. Imagine.  A judge of the Supreme Court of B.C., presiding at a major trial, has to be privately researched to gain basic information about her – because top officers of the court, and the judge herself, refuse to make any reasonable information public.

Now some has been gathered.  What I believe might be embarrassing personal information – if pushed to further investigation – I will not mention since I only asked to be given (and was flatly denied) information that might be considered relevant to the appointment of Madam Justice Anne MacKenzie to the BC Rail Scandal case.  I was denied, I allege, information that should be available to any British Columbian who asks for it.

Madam Justice Anne Winter MacKenzie is approaching sixty years.  She was born in New Westminster and lived her early life in the lower mainland of B.C.  Like Madam Justice Stromberg Stein, Madam Justice Anne MacKenzie was made a Supreme Court judge in 1990.

Earlier, she attended the University of British Columbia and has proficiency in the French language.  She took a B.A. degree in 1973, an LL.B in 1977, and she was called to the bar in 1978.  She soon joined the Criminal Law section of the federal Department of Justice where she acted as a federal crown counsel in Vancouver. 

At university she met and married (lawyer) Roderick (Roddy) MacKenzie.  They produced three children.  They live in West Vancouver. 

Roderick M. MacKenzie was, for a time, City Solicitor for the city of New Westminster.  He continued to show interest in municipal government and its problems.  In 1980 he was re-elected national secretary of the municipal law section of the Canadian Bar Association.  He left the role of City Solicitor, went into private practice in Vancouver (with partners), and is, presently, I believe, practicing alone from a downtown Vancouver office. 

In 2008 Madam Justice Anne MacKenzie received some criticism for her handling of a Hell’s Angels matter.  On May 15, 2009, Madam Justice Elizabeth Bennett was appointed to the B.C. Court of Appeal.  That was one of the pretexts (a baseless pretext, I believe) for removing her from the Basi, Virk, and Basi case.

Very shortly after the announcement of Justice Bennett’s new appointment, Associate Chief Justice Patrick Dohm, in what I thought was a crude and inelegant appearance in court, stated he had chosen Madam Justice Elizabeth Bennett’s replacement, but would not name the person.  In September, Madam Justice Anne MacKenzie took over the Basi, Virk, and Basi case.

As I perceived her actions, she immediately began cutting off all Defence access to disclosure materials that might involve highly placed government and other officials.  Early in her tenure as presiding judge she wondered, as I remember, whether justice could be afforded in the case – but she soon removed herself from that patch of quicksand.  She did, however, make a statement – when rejecting a Defence request for more complete disclosure – that society expects a fair trial … not a perfect one.

She is correct.  Canadian society is remarkably reasonable on the whole.  But I don’t think any informed Canadian will expect a fair trial in the Basi, Virk, and Basi case. 

Judicial figures have, it seems to me, parried attempts to widen, properly, the range of the accused – in effect protecting Gordon Campbell.  The RCMP has failed to investigate political figures almost certainly involved in the corrupt transfer of BC Rail to CNR. RCMP Deputy Commissioner Gary Bass has refused to undertake investigation when asked to do so, as if there is no basis for investigation. 

The “independent”, “objective”, and “unbiased” Special Crown Prosecutor was appointed by an Attorney General who had been for a long-time his partner and colleague.  The cabinet of which the Attorney General was a member was (and is) a deeply interested party in the case before the court. The present Attorney General’s Ministry has refused to discuss the appointment of the Special Crown Prosecutor on the specious grounds that the matter is “sub judice”.

That specious claim has been made over and over by both Gordon Campbell, premier, and recent Attorney General, Wally Oppal, whenever asked about the BC Rail Scandal.  The latter, Wally Oppal, is presently facing a civil suit for, in fact, misuse of the powers of Attorney General.

And the deputy Attorney General at the time of the appointment of the Special Crown Prosecutor had been for an even longer time partner and colleague of the person appointed.  For his excellent work Allan Seckel was recently appointed to be Deputy Minister to the premier Gordon Campbell, Cabinet Secretary, and Head of the British Columbia Public Service. 

The trial of Dave Basi, Bobby Virk, and Aneal Basi for (variously) fourteen counts of fraud, breach of trust, and money laundering begins on May 3, 2010.  It will probably be bizarre, dramatic, macabre, fascinating, and endlessly intense.

But it will not, I allege, be a fair trial. 

And I suspect Madam Justice Anne MacKenzie knows that very well.  It will be a trial, I believe, of three men – innocent unless proved guilty.  They, I allege, make up only a very small portion of a much larger number who should been charged in relation to the corrupt transfer of BC Rail to CNR, but who have been almost ubiquitously protected by all the forces that should have been serving law, the administration of justice, and the people of Canada.

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