PART TWO. A Society In Breakdown. British Columbia's Hip-High Corruption

PART TWO.  A Society in Breakdown.  British Columbia’s Hip-High Corruption.

Continuing revelations from the astonishingly brutal close-down of the BC Rail Scandal Basi, Virk, and Basi trial on October 18, 2010, underscore  gigantic questions about criminal behaviour (in one area only) of the Gordon Campbell government ... questions still unanswered.  The post close-down revelations provide, as well, more suggestions of a (purposefully?) botched RCMP investigation.

We remember that only one-and-a-half Crown witnesses were cross-examined by Defence counsel when trial (after more than three years of pre-trial hearings) was shut down.  About 30 more witnesses had been announced. Witness response came from Martyn Brown, long-time Gordon Campbell Chief of Staff. Brian Kenning, holder of directorships on BC Rail, BC Ferries, etc. etc. etc. and a key figure on the infamous BC Rail “Evaluation Committee”, didn’t finish.  Their behaviour under cross-examination appeared to many to have been ‘staged’, faulty, amnesiac, impossible to credit, ridiculous … growingly unbelievable. 

And then  – suddenly – the trial stopped, ended (in mid-questioning of Brian Kenning) with a huge “compromise” package of charges and withdrawal of charges almost, it seems, dictated by the accused. The Gordon Campbell government – fudging and disinforming and backtracking about the location of responsibility for the pay-out – paid the six million dollars of Defence costs.

PART ONE states that “in the light of the coming January 11, 2011 appearance of the Crown before Associate Chief Justice Anne MacKenzie to request the return of all disclosure documents by the Defence to the Crown, we should look at (a) the convicted, (b) the Crown, (c) the judiciary involved, (d) the RCMP, (e) the Mainstream Press and Media, (f) the Liberal Party, and (g) the NDP.”

PART ONE suggests the “three brown men” accused were ‘set-ups’.  If the trial had run to conclusion, evidence of the apparent entrapping of the men in order, it appears to many, to cover for guilty superiors, might very well have seen the jury bring down a NOT GUILTY verdict on all charges.

Is that one of the reasons the trial was brutally ended?

PART ONE also points out that the appointment of the Special (Crown) Prosecutor was effected in violation of the legislation governing the appointment process, and it claims, therefore, that the Special Prosecutor’s work, throughout, is invalid.  Moreover, Associate Chief Justice Anne MacKenzie (and Chief Justice, Robert Bauman) - fully informed of William Berardino’s improper appointment - refused to act to remedy the wrong. By failing to act, Associate Chief Justice Anne MacKenzie may sit, now, improperly on the BC Rail matter.

The long unfolding of judicial action (or inaction) in the BC Rail Scandal Basi, Virk, and Basi case, begins in 1999 (at least) with the resignation of NDP premier Glen Clark.  His resignation is a part of what I have always called “the fraudulent investigation and trial of Glen Clark”.

In answer to my complaint and continued insistence upon a review of RCMP behaviour at the time, the Commission for Public Complaints Against the RCMP took three full years to tell me the investigation I caused to be opened was “improperly” terminated by officers of the RCMP.

Glen Clark went to trial for 136 days concerning possible improprieties in the building of a $10,000 deck on his East Vancouver home.  Clark’s lawyer insisted the charges were vexatious (without foundation).  But Madam Justice Elizabeth Bennett drove the trial to its conclusion.  She was, later appointed as judge on the Basi, Virk, and Basi case.

Justice Bennett found Glen Clark innocent of all charges. We are invited to believe that justice was done.  Except that a combination of the RCMP, the trial, and a savage press destroyed the political career of an innocent man.

One of two reasons, moreover, may be suggested for the judgement made by Madam Justice Elizabeth Bennett in the Clark case.  The first is that, painstakingly, she brought truth to light, and served justice.  The other possible explanation is that she knew a finding of “guilty”, taken on appeal to the Supreme Court of Canada, would have been laughed out of court and the judge ridiculed for having permitted the case to continue in trial at the lower level.

That last (possible) explanation is dark.  But allegations swirled: that the original complaint against Clark came from Gordon Campbell’s constituency office; the head RCMP investigator had been at least twice asked by Gordon Campbell to run as a candidate for the legislature; that Ujjal Dosangh slipped into the NDP leader role with the help of IndoCanadian bulk memberships, that he fumbled the election (declaring a week before polling that he had lost!), and then moved effortlessly into the Liberal Party - with a ticket to Ottawa. And Gordon Campbell moved effortlessly into the position of premier of British Columbia.

Whatever the truth of the Glen Clark case, Associate Chief Justice Patrick Dohm – who granted search warrants in the case from a holiday location in another country, appointed Justice Bennett to the Basi, Virk, and Basi case.  Mr. Dohm first granted a fistful of search warrants for the “sweep” known as the search warrant “raids” on the legislature of British Columbia.  Only the offices of Dave Basi and Bobby Virk were “raided”, however. Those of their directing superiors and other cabinet members involved in the BC Rail Scandal were left untouched.

The investigation, which was called by the RCMP “everywhichway”, did not find it’s way to the offices of Gordon Campbell, Gary Collins, Judith Reid, Martyn Brown … or any others directing the actions of Basi and Virk.

Elsewhere, homes and offices were searched in Vancouver and Victoria. None of those searches eventuated in charges being laid.

Defence counsel for Basi, Virk, and Basi fought the case on simple bases.  They alleged the accused were “set up” to cover for others.  They alleged a “fix” was in to transfer BC Rail to the CNR under the cover of elaborate, widely spread activities, both legitimate and illegitimate.

They argued that the accused were part of a huge propaganda program and structure of deceit employed by the Gordon Campbell government, the men being instruments in the hands of their superiors to complete an improper “deal”.

To build their case, Defence counsel had to gain evidence through access to materials held by BC Rail, the RCMP, the cabinet, and others.  Over and over Defence had to apply to Madam Justice Elizabeth Bennett to get the materials. Defence counsel were, mostly, granted access … but slowly, and with excessive delay and improper delivery from the sources, and with apparent fudging of presentation and categorization by the Crown.

Madam Justice Elizabeth Bennett early stated that the process would be as open as possible to the public.  To my mind, it was not.  She granted  materials sought by Defence, but – to my mind – permitted excessive delay and fudging.  Transcripts of the “open” trial process were never made  available to the public, calling into question the “openness” of the process. The simplest matter – like the inaudibility of people in the court – was never remedied despite microphones in front of every speaker and requests to the judge. For the public to get access to any material – an ornate, involved, Kafka’esque, and time-consuming effort was necessary.

Through months and months of such behaviour, the Mainstream Press and Media remained mute.  Not a word was uttered – not one – by any member of that press and media about the conduct of the judge. And when I began to criticize the judge for permitting delay – one of the journalists warned me – three times – that such an exercise of freedom of expression would see me cited for contempt of court.

The Mainstream Press and Media failed consistently to report judicial behaviour, as if the judge could never be questioned and as if the court was territory outside the limits of public scrutiny.  More on that later.

Despite my criticisms of delay, the Crown prosecutor, apparently, didn’t like even the slow disclosure of materials needed for the Defence of the accused. 

To everyone’s surprise, nearly three years into the pre-trial hearings, Madam Justice Elisabeth Bennett was promoted to the Appeals Court.  Would she go, or would she complete the trial first – since the Defence had elected trial by judge alone and expected Justice Bennett to preside?  I was twice assured by Michael Bolton, Defence counsel, the decision was Bennett’s alone.

A strange event, however, occurred in the court.  Associate Chief Justice Patrick Dohm – like a bull in a china shop – appeared to hear a motion.  It was a motion by the Crown prosecutor, William Berardino, to have Madam Justice Bennett removed from the case.  The transcript of that day should be resurrected and closely examined.  Mr. Berardino argued that Justice Bennett couldn’t be in two places at once – which assertion was heartily endorsed by Mr. Dohm.

Then Mr. Berardino alleged, I believe, that Justice Bennett wasn’t following precisely correct procedures. Mr. Kevin McCullough, Defence counsel, rose – I presume to protest the statement – and was told roughly to sit down by Associate Chief Justice Dohm.  Mr. Dohm announced that there would be a change of judges; he had already picked the replacement; but he wouldn’t name the judge because he didn’t want two named judges as Justice Bennett was tying up loose ends.

And so Madam Justice Anne MacKenzie – soon to be named Associate Chief Justice of the B.C. Supreme Court - replaced Justice Bennett on the Basi, Virk, and Basi case.  And she seemed to set about to deny the Defence any further reaches for information.

That prompted the accused to apply to re-elect and have trial by jury.  Out of that came the Agreement of Facts in the case – and the weeks and weeks of later argument about what the document actually meant – just what was agreed upon.  If Justice Bennett had continued with the trial, none of that would have happened.

Justice MacKenzie, granting trial by jury, exerted a rigid and draconian retroactive publication ban on matters related to the trial.  She first, strangely, even banned reporting of the trial before the jury…an unheard of restriction.  A few days later she relented and softened the ban just a little.  Matters heard before the jury became reportable.

I believe the whole operation – confused by the shift from trial by judge alone to trial by jury – erred on the side of secrecy.  Secrecy is the enemy of just legal practice. As days went by without any report coming out of the wranglings and arguments in court – “in the absence of jury”, I scrutinized the publication ban.  I concluded the public had a right to know what was going on, even while respecting the publication ban. 

It stated that there was a ban of “publication in any document or broadcast or transmission of evidence, submissions, rulings and reasons for judgement given in this proceeding in the absence of jury”.

That did not say that the public could not know what the wrangling was about – which was interpretation of the Admission of Facts.  With the greatest care I wrote a column which I considered did NOT offend the ban but did give the public some idea of the basis of wrangling (and secrecy). The Mainstream Press and Media, of course, accepted the draconian ban … with passive obedience.

Like a bolt of lightning I received a notice from the court that I was offending the ban and would be hit if I didn’t cease immediately.  I believe the court was wrong – but didn’t see myself paying tens and tens of thousands of dollars to take the matter to the Supreme Court of Canada. That problem of cost is undoubtedly the cause of huge injustice done from within the courts.

I believe the public has no reason to have confidence in the actions of Associate Chief Justice Anne MacKenzie.  Indeed, the deafness of Supreme Court judges to the fact that the BC Rail Scandal trials were the most important criminal trials involving government in the history of British Columbia was, almost, astounding.  If they felt an obligation to have an open  examination of the public’s business, they did not show it.  In fact, the opposite. 

But Associate Chief Justice Anne MacKenzie did, as I see things, make a ruling that helped to bring the trial to its thundering stop.  In the argument about the interpretation of the Agreement of Facts, Crown and Defence disagreed hotly.

The Crown wanted cross-examination questioning to be severely restricted to – in effect – the circumstances of the charges against the three men.  As I analyse the matter, the Crown did not want Defence, in fact, to bring to bear the load of their Defence argument – involving the relations of cabinet to corporate actors, to friends of Gordon Campbell, to the inner workings of contact and connection.  Defence, in turn, called upon rulings made by Justice Bennett in pre-trials to bolster their demands.

As I see it, Associate Chief Justice MacKenzie ruled as reasonable the broad scope of cross-examination that the Defence counsel saw as necessary to the defence of their clients. 

That meant the Gordon Campbell parade – made up exclusively of paper tigers – was about to drenched with rain.  The inner workings of the corrupt transfer of BC Rail to the CNR were about to be bared. And that exposure promised to be so horrendous that there was every likelihood the accused would be acquitted of all charges against them by a jury grown more and more angry at government and corporate dishonesty, shenanigans, and targettting of Basi, Virk, and Basi as covers for the greater wrongdoing.

The trial had to be stopped.

And it was stopped.

Associate Chief Justice Anne Mackenzie accepted the outlandish agreement forged between the (improperly appointed) Special Crown Prosecutor and the accused (and their counsel) without question and without displacing a hair on her head.  The legal process that had been set in motion sometime in 2002, and which ran for the next eight years, was stopped in a moment by the rap of a gavel - without a single major question asked by British Columbians having received a meaningful answer.

PART THREE will continue examination  (in fact already begun) of the RCMP, the Mainstream Press and Media, the Liberal Party, and the NDP.