The Week In Courtroom 54 Of The BC Supreme Court (June22-24)

The Week in Courtroom 54 of the B.C. Supreme Court (June 22-24)

and the Publication Ban in the BC Rail Scandal matter. The Publication Ban as Excuse ….

The publication ban on matters involving the Basi, Virk, and Basi trial (the BC Rail Scandal) when the jury is not present - imposed by Associate Chief Justice Anne MacKenzie (2010 – 03 – 18), retroactively and in the present – is, I believe, misunderstood and misapplied ... and, perhaps – as well – was too enthusiastically put in place by her ladyship.  It was, apparently, applied for neither by the Crown nor the Defence.

As a result, Mainstream Press and Media [MSPM] journalists are, I believe, self-censoring.  They cannot see clearly, it seems, what they learned outside of court in the past and what they learned in it – when the jury wasn’t present. [A very large amount of what has been said in pre-trial was said – in one way or another – in the legislature, and is recorded in Hansard (the legislature’s public record) from which anyone may quote freely]. Journalists of the MSPM often act as if all the information gathered in the last six to eight years is somehow prohibited from being referred to.

As a result the public is being denied core information in the most important public criminal trial in the history of the province.  And, more and more, anger is being expressed by ordinary people at the ban. The ban, in effect, denies the people of B.C. (and the rest of Canada) information they believe they have the freedom to receive. 

It would be, perhaps, seen as conspiratorial and neurotic to suggest the ban protects the Gordon Campbell forces especially.  But I think it does.

It would be, perhaps, conspiratorial and neurotic, as well, to suggest the ban permits the Mainstream Press and Media to avoid its obligation to inform the public of the full scope and significance of the BC Rail Scandal.  But it appears to do just that, too.  Not only does the MSPM refuse, for instance, to deal with the wrongful appointment of William Berardino as Special Prosecutor in 2003, it hides its head over his political donation (after appointment, in 2005) to the political campaign of Wally Oppal, successor to the Attorney General whose ministry made the wrongful appointment.

On June 23 the daily giveaway paper 24 Hours reported that the Law Society found no evidence of professional misconduct on the part of Mr. Berardino when he made the donation “to the Liberal party without making the appropriate disclosure”.  The report continued that the “Law Society has closed the file”.  Of course.  But the ladies and gentlemen of the MSPM shouldn’t have closed the file – and (of course) they have done so ... too.

As if to prove my general point, Will McMartin (on the 24th of May) wrote an article for the TYEE on the devious manipulations engaged in by Gordon Campbell and his crew to offload BC Rail.  The article is a close, chronological, step-by-step exposure of Campbell tactics, suggesting planned deviousness and deceit (perhaps criminal breach of trust) … the kinds of things one might expect to hear in banned times at the court.

McMartin uses phrases like the “disinformation campaign”, the operation of Campbell and his MLAs “to drastically distort and misrepresent BC Rail’s financial health”, Campbell’s “unfounded assertion that BC Rail had cost taxpayers a billion dollars in subsidies”, “his campaign of distortion” … and much more.  McMartin supplies chapter and verse to back those statements.  No one suggests he has violated the publication ban.

The consensus in the gallery, I believe, with respect, is that Associate Chief Justice MacKenzie tends to favour the Crown.  Indeed, her partiality is demonstrated, it might be claimed, by her refusal to address the fact that the Special (Crown) Prosecutor was appointed in violation of the legislation governing the appointment process.  Until she publicly addresses that huge anomaly, her objectivity and independence will remain under a dark shadow, sacrificing her own and the trial’s credibility.  She has been fully informed of the matter but chooses to ignore the information.

Married to her ‘appearance’ of favouring the Crown, the publication ban may excite a feeling of an unnecessary suppression of information.

The publication ban is related (and is in opposition) to the fundamental principle that the court must be open in order to guarantee a fair trial.  Secret trials (the wisdom of experience says) are unjust trials. Publication bans must be used, therefore, with restraint - to assure that the jury is not wrongfully led to bias. Since the accused are in the room when the jury is not, the major concern is with the jury – which (some experts suggest) is underrated in its ability to sift apparently contentious information and to make wise judgements.  The members of the jury are spoken of as intelligent people who may fulfill the burdensome task of weighing and sifting evidence.  At the same time they are cloistered from what some believe is random and contentious information as if they were inexperienced children.

Opinion, however expert, has not changed the rules of protection for the jury.

There is a lot of room between a fully open trial and a secret one.  Somewhere in the gap a good deal of manipulation may occur to deny the public information it should have the freedom to receive (without anyone being able to name the trial “secret”). That may be the case with the Basi, Virk, and Basi trial as it is presently being conducted.

If courtroom 54 were being run with full regard for the centrality of the people of British Columbia, many things would be different. Each day a printed transcript of the day’s proceedings would be easily available to anyone who wanted it.  Now, it is not available at all. Documents made public at trial would be available to acquire, not simply to look at in Criminal Registry. The publication ban would be governed by day-to-day consideration of the needs of the accused and the jury.  It would not be a blanket thrown over information that belongs to the people of the province. That means every meeting without the jury would not be automatically restricted but would be considered in the light of the public’s right to know and the degree to which the information might bias the jury. Again, however, Section 648 of the criminal code provides “an automatic publication ban”  

If it did not, it would mean the judge on the case would have – constantly – to consider the needs and the freedoms of British Columbians, which I believe she never considers. A very simple matter in that regard is the misunderstanding of the publication ban.  I believe she should have taken all the time necessary to discuss the ban in open court and to tell all in the gallery what she means by it.  The material published by the Supreme Court of Canada, Docket 32719, on the Basi, Virk, and Basi matter needs explanation. She has not taken time to explain it, and so – I believe – the ban is generally misunderstood.

From fear of being censured, journalists of the MSPM – and especially their editors – are self-censoring … ridiculously, I believe. And the self-censorship keeps work like that done by Will McMartin from ever seeing the light of day in the Mainstream Press and Media … which just happens to be what Gordon Campbell and his minions want.

The ban (though pursuant to Section 648) is not total.  It is on “the publication in any document or broadcast or transmission of evidence, submissions, rulings and reasons for judgement given in this proceeding in the absence of the jury”. The ban does not forbid reference to the matter of proceedings without the jury present.  It doesn’t forbid ALL matter “given in this proceeding in the absence of the jury”.  It SPECIFIES the matters banned.

This week – the people of British Columbia may be told – a few days were spent in wrangling, clarifying, investigating, and instructing the jury about the event on the sky train platform at the Patterson stop when a man approached two of the jurors and said something to them about the trial. As a result, everyone is much more aware of the need for those in the gallery to stay away from jurors.  The man in question – seen often in the gallery - was the father of one of the Prosecution team of lawyers.

Though the judge’s calling of the jury and her address to it in full court apparently “released” the matter of the Patterson sky train platform from the publication ban, there is every reason to believe it was NEVER covered by the ban - in the way I have reported it here. And yet all who report from the court said nothing about it until the jury was addressed in full court about the matter by the judge.

Many followers of the trial were asking – “Why the silence?”  “What’s going on?” As silence in a trial spreads, damaging speculation arises, speculation harmful to the administration of justice – and, perhaps, unfair to people involved in the process. In a democracy the public’s response to the suppression of trial information cannot be brushed aside as irrelevant.

By the same token, the other major occupation of the week was an on-going argument between Crown and Defence about the limits of the ‘admission of facts’, the agreement between the two made at the time when trial by judge and jury replaced the earlier election by Defence for trial by judge alone.  That document has played a large part in differences between Crown and Defence and will probably go on doing so. Depending on rulings made by Associate Chief Justice MacKenzie, the document governs (among other things) where Defence may go in search of corroboration of their major strategy and what kind of questions they may ask in certain circumstances. 

The people of the province have a right, I believe, to know about that aspect of the trial, which often requires the absence of the jury and much time to iron out disagreement – often, finally, through the instrument of a ruling by the presiding judge.  The people of the province - by knowing about that major source of difference - may come to understand why there are sudden and sometimes long stretches when the jury is not present – and when witnesses don’t appear to testify and be cross-examined.

Explaining that situation to readers does not expose “evidence, submissions, rulings and reasons for judgement given in this proceeding in the absence of the jury”. It shows respect for the public for whom, after all, the trial is being conducted!

I believe – and I am almost certain the trial judge will agree – that over the next months of trial those in the courtroom who write must tell the public a good deal more than we have been doing about the matters dealt with “in the absence of the jury”.  It is our responsibility to do so. And, I would add, I believe it is her ladyship’s responsibility to make clear to the press and media and members of the public in the gallery that they have larger scope to report and comment than they have, heretofore, believed.