Who is Associate Chief Justice Anne MacKenzie of the British Columbia Supreme Court? PART ONE.
Associate Chief Justice Anne MacKenzie of the Supreme Court of British Columbia has ordered [March 15, 2011] that all materials of every kind disclosed to the Defence in the Basi, Virk, and Basi matter [the BC Rail Scandal] be delivered “forthwith to the Office of the Special [Crown] Prosecutor or the RCMP”, or that they be certifiably destroyed.
Who is Associate Chief Justice Anne MacKenzie?
Nine years of BC Rail Scandal concern have passed – four years of which involved pre-trial and trial concerning some of the matters (not all, by any means) in the corrupt transfer of BC Rail to the CNR. The trial ended in what many believe was as violent a wrenching of justice as can be imagined. The government of Gordon Campbell (which effected the corrupt transfer of BC Rail to the CNR) agreed to pay all the costs of the accused – though the accused admitted guilt and were sentenced. The “deal” protected high ranking politicians and corporate actors from cross-examination before a witnessing public.
Fact, analysis, and commentary have become, during that long time, inescapably entangled. For that reason, in this treatment – of the role especially of Associate Chief Justice Anne MacKenzie – I will separate fact from analysis and commentary.
Readers, as a result, will have facts before them, independent of analysis and commentary, upon which to form independent judgement.
Fact: Defence lawyers were satisfied with the work of Madam Justice Elizabeth Bennett, ‘seized with’ the Basi, Virk, and Basi matter. Prosecution – “the Crown” was dissatisfied with her work.
Analysis: [To be “seized with”, I take it, is an ancient term with the meaning ‘to be established in a position’ or ‘to have legal possession of’. In court activity, it is apparently intended to secure a judge ‘in possession’ of a case, and, therefore, not easily able to be removed scurrilously or out of prejudice.]
Fact: On two occasions, Defence lawyer Michael Bolton answered my question about who could remove Madam Justice Elizabeth Bennett with the answer that she alone could make the decision.
Fact: A few months before the ‘replacement’ of Madam Justice Elizabeth Bennett by Madam Justice Anne MacKenzie a session of the Basi, Virk, and Basi pre-trial matter was held with (then) Associate Chief Justice Patrick Dohm presiding. At that session Special Prosecutor William Berardino presented a motion asking for replacement of Madam Justice Elizabeth Bennett. He argued (a) that she couldn’t be in two places at once; and (b) – as I remember the event, that she had not fully satisfied procedures in the Basi, Virk, and Basi matter.
Fact: When Defence counsel Kevin McCullough rose – apparently to object to Mr. Berardino’s statements – he was ordered brusquely by Associate Chief Justice Patrick Dohm to sit down. No objection was permitted. The Associate Chief Justice declared he had Madam Justice Bennett’s replacement chosen but would not name the replacement judge at that time.
Fact: Shortly before the end of the pre-trial matters, Madam Justice Anne MacKenzie replaced Madam Justice Elizabeth Bennett. That transition moved the accused and their counsel to undertake a request to reelect from trial by judge alone to trial by judge and jury.
Fact: When Madam Justice Anne MacKenzie was appointed, questions were asked, generally, about her history. And so I wrote to the Court and asked to have – to provide to the public – a ‘professional resume’ for Justice Anne MacKenzie.
Commentary: Since the Basi, Virk, and Basi part of the BC Rail Scandal was believed by many to be the most important criminal trial of public officers in British Columbia history, the professional biography of the new judge on the case was something all British Columbians had a right to have.
Fact: The Court replied to me that they did not have such information and would send me nothing. They sent me nothing, and the report I wrote on Justice Anne MacKenzie was the result of private research on my part.
Fact: Not long after Madam Justice Anne MacKenzie took over the Basi, Virk, and Basi case, she was elevated to the position of Associate Chief Justice of the Supreme Court of British Columbia. Associate Chief Justice Patrick Dohm was reported to have retired.
Fact: The Court still did not publish a full professional biography of Anne MacKenzie.
Fact: The Mainstream Press and Media reported the retirement of Patrick Dohm without comment.
Analysis and Commentary: Patrick Dohm was connected to what I call “the fraudulent investigation and trial of Glen Clark” former NDP premier whose political career was ruined (between 1999 and 2002) in the process. Patrick Dohm signed search warrants in the matter from a holiday spa in a foreign country.
Mr. Dohm was also connected to the extraordinary Doug Walls incidents. Walls was involved in a cheque kiting activity causing losses to CIBC in 1998 in Prince George. Nonetheless, he made connections with the ministry of Children and Families after, probably because of his relation by marriage to Gordon Campbell, premier. He began connections, it is alleged, as early as 1999 through a professional connection with the deputy minister Chris Haynes. Some estimates of the losses to the Children and Families ministry reach well over a million dollars. Chris Haynes was fired [with a fat separation payment], and Gordon Hogg, minister, resigned.
No action of any kind was taken against Doug Walls. Gordon Campbell, it is reported, had stayed at his home in Prince George and rented a car from the Walls business.
If the British Columbia taxpayer could go unsatisfied in the matter, CIBC – it seems – was not so malleable. A criminal case was conducted against Doug Walls in Prince George where he had had his business and been a Liberal Party officer. In 2007 he was convicted, with another, and received a conditional sentence of two years less a day. CIBC is alleged to have lost around a million dollars in the matter, none of it recovered.
One interesting thing about the Prince George trial was that Josiah Wood was sent to Prince George as Special Prosecutor – Wood being a very experienced hand and called upon sometimes by the B.C. government. Why a case against Walls for alleged cheque kiting in Prince George involving CIBC would require a Special Prosecutor is not at all clear.
The judge on the trial in Prince George was … Associate Chief Justice Patrick Dohm.
Associate Chief Justice Patrick Dohm was also connected to the BC Rail Scandal, signing the many (about 20) search warrants that eventuated a few days later in the famous “legislature raids” (December 28, 2003) on the offices of Dave Basi and Bob Virk and searches of many other locations in Vancouver and Victoria. Mr. Dohm sealed the search warrants totally, then “released” them months later with about 80% of significant material still blacked out. They have never been released, uncensored, to the larger British Columbia population.
When he retired, the Mainstream Press and Media conducted no review of Patrick Dohm’s illustrious career as a judicial figure in the province.
Fact: As a result of the troubles named above in the ministry of Children and Families - as well as other troubles there – Ted Hughes (a former judge, etc.) was invited to conduct an Inquiry into the ministry. He terminated his inquiry early, recommended that no further investigation be conducted (?), and presented recommendations to be acted upon. One of them was for the appointment of something like a children’s ombudsperson.
The government agreed to act on all the recommendations, and it appointed, for a five year term, Mary Ellen Turpel-Lafond (in November of 2006) as B.C. Representative for Children and Youth.
Analysis and Commentary: Five years later the Gordon Campbell/Christie Clark government has not fulfilled its promise. Many of the recommendations are still ignored. And Mary Ellen Turpel-Lafond spends a stormy and publicly visible time battling the Gordon Campbell/Christie Clark government in attempts to protect – often mistreated – children and youth in British Columbia.
Fact: [to return]. “Shortly before the end of the pre-trial matters, Madam Justice Anne MacKenzie replaced Madam Justice Elizabeth Bennett.” Not a single explanation was given to the British Columbia public.
Analysis and Commentary: In what has been called “an advanced parliamentary democracy” – British Columbia in Canada – a key judge was removed, replaced by another on a major criminal trial with huge implications for the life and health of the province. Since BC Rail was owned by the province, every British Columbian was a principal, intimately concerned with the corrupt transfer of the railway to the CNR. Those British Columbians are treated by the Court as if they hardly exist.
Since higher court judicial appointments are within federal jurisdiction, Stephen Harper had to have a hand in the appointment of Madam Justice Anne MacKenzie to the position of Associate Chief Justice. Who recommended her to federal officials – and to which federal officials? What were the positive attributes she possessed put forward to place her in position for that appointment?
Not a word of explanation was given to the public.
Fact: On February 16, 2011, the Crown – the Special [Crown] Prosecutor, William Berardino made application to have all disclosure materials [described above] returned to the Office of the Special Prosecutor or RCMP.
Explanation: Strangely Mr. Berardino is not listed on the face of the application, because he did not show up at court. Assistants to him over the four years – Janet Winteringham and M. Sobkin are listed as “Counsel for the Applicant”. In fact, Ms. Winteringham, as I have said elsewhere, simply mouthed the words of William Berardino. He is Special Prosecutor, and he alone. That being the case, she could not say anything in her own person that would in any way contradict the intentions of William Berardino, and so it is fair to say she mouthed the words of William Berardino.
Fact: William Berardino QC was illegitimately appointed Special Prosecutor in December of 2003. His appointment was made in violation of the legislation governing the appointment of Special Prosecutors. The legislation insists upon the complete objectivity of appointees. It insists that they have no meaningful connections to elected officials, civil servants, police or like kinds of persons. It states that they may not have connections such that would give even the potential for the perception of bias.
In the Attorney General’s ministry that appointed him, Mr. Berardino had been for seven years the partner and colleague of Attorney General Geoff Plant. Mr. Berardino had been for eleven years the partner and colleague of the Deputy Attorney General Allan Seckel [now raised to the position of the highest civil servant in British Columbia serving the Gordon Campbell/Christie Clark government].
Fact: Mr. Berardino has never been a legitimate Special Prosecutor in the BC Rail Scandal and the Basi, Virk, and Basi matters.
Fact: I reported the clear information about Mr. Berardino’s wrongful appointment to the Chief Justice, the Associate Chief Justice (then Patrick Dohm), and the presiding judge (then Madam Justice Anne MacKenzie). The reply I received from the Court informed me that none of the three had been involved in the appointment, and so they would do nothing.
Fact: I, again, informed the Chief Justice and (now) Associate Chief Justice Anne MacKenzie (also the presiding judge on the Basi, Virk, and Basi case) of Mr. Berardino’s wrongful appointment. The answer from the Court to that formal letter was an acknowledgement of the letter and a refusal to say anything at all.
Fact: I informed the Attorney General, the top judges of the B.C. Supreme Court, the Canadian Judicial Council, and the “Reviewer” of the process of Special Prosecutor appointment in B.C. – Stephen Owen a UBC vice-president… asking in each case for action to remedy the wrongful appointment.
Analysis and Commentary: All – as I read the situation - did what they could to avoid the information, to ignore it, or to dissemble about it. All – unintentionally – gave ample evidence that they knew the validity of the information … which they refused to act upon.
Fact: The matter was presented to the Canadian Judicial Council as a complaint that the presiding judge, knowing of the illegitimacy of Mr. William Berardino, had an irrevocable obligation to act to remedy the matter. It stated that by not doing so, Associate Chief Justice Anne MacKenzie was conducting herself improperly as judge.
The reviewer of the complaint turned out to be someone who sits with Associate Chief Justice Anne MacKenzie on the Canadian Judicial Council. The reply on behalf of Neil Wittmann, Chief Justice of the Alberta Court of Queen’s Bench, made two points. One was that he did not judge that the complaint covered conduct of the judge in question, and so he could say nothing. Secondly, the replier stated that Chief Justice Wittmann had no opinion about the major fact of the complaint – that Mr. Berardino was wrongly appointed.
Analysis and Commentary: Chief Justice Wittmann, I believe, had that last statement put into the letter so that he could never be confronted with the fact that he had defended a lawyer who was improperly appointed. He had, the letter reported, not formed an opinion on that question.
In addition, the solid wall put up against any examination of the legitimacy of William Berardino in the role of Special Prosecutor, may, I believe, lead any British Columbian to believe the pre-trial and the trial of the three accused in the Basi, Virk, and Basi case WERE WHOLLY ILLEGITIMATE and that the illegitimacy has been, throughout, supported by Associate Chief Justice Anne MacKenzie.
We may conclude that the applicant, the Special Prosecutor, had no legitimacy to ask that all materials disclosed to the accused and to their counsel be delivered to the Office of the Special Prosecutor or the RCMP. And we may also conclude that the presiding judge, Associate Chief Justice Anne MacKenzie, had no legitimacy to make an order of any kind in the matter.
Fact: A “voluntary” committee of journalists from the Mainstream Press and Media, employed (in fact) by the Supreme Court of British Columbia, denied my application to be granted accredited journalist status in the Basi, Virk, and Basi trial. I had been reporting regularly on the pre-trial and related matters for three years.
Fact: The Committee whose spokesperson is Neal Hall of the Vancouver Sun was made up of three paid employees from CanWest and one from CTV. The denial of status prevents the person in question from using a recording device in the courtroom and from examining any materials from the trial placed upon “public record”.
Analysis and Commentary: It was my opinion that the Mainstream Press and Media were failing to report fairly the BC Rail Scandal and its Basi, Virk, and Basi part. I made that opinion clear to readers. Indeed, the creation of the site devoted to those matters run by “BC Mary” occurred largely because she was so frustrated at the failure of the Mainstream Press and Media to report on BC Rail Scandal matters.
I criticized the judicial management of the Basi, Virk, and Basi case when I believed that to do so was appropriate. I do not remember, over four years, a single critical comment about judges involved with the case from the Mainstream Press and Media.
I criticized Associate Chief Justice Anne MacKenzie, and I criticized (even before learning of his wrongful appointment) some of the actions of the Special Prosecutor.
I observed over many, many months that the Special Prosecutor seemed to favour Neal Hall of the Vancouver Sun, simply by going to him to chat when he wished to say something about the pre-trial in process. I would not call them ‘confidants’, but they had a visibly friendly relation.
When I applied for accredited journalist status (having written many scholarly articles over years, a textbook on Canadian culture and institutions for university use, many, many journalistic articles published across the country, and other books on Canadian matters, and having been one of the most faithful attenders and reporters of the three years of pre-trial Basi, Virk, and Basi matters) I was refused by the committee for which Neal Hall is spokesperson.
Fact: The grounds upon which I was refused, he told me, were – in sum – that I am not a “working journalist”. To him and his committee, a working journalist is one who makes his or her living from journalism.
Fact: I wrote to Associate Chief Justice Anne MacKenzie and protested, asking her to change the decision. She did not bother to have my request answered on her behalf.
Fact: I was sent forms by a Court Officer to fill in and begin the process of what would be an Appeal from the ruling of the Neal Hall committee. That would have involved a great deal of time, money, etc. and no assurance whatever that I would then be granted accreditation. I refused to have anything to do with an “Appeal” of the kind. Granting me status needed no complicated procedure, and I refused to enter one.
Fact: When on February 16 the application to “make public” the RCMP investigation materials - “the “everywhichway” materials - Janet Winteringham took special pains to ask that they only be released to “accredited journalists”. Defence counsel disagreed and said making the materials public meant to all of the public.
Associate Chief Justice Anne MacKenzie supported the Winteringham request, confining the release of materials to a very small group.
Analysis and Commentary: Sitting in the courtroom, I couldn’t help thinking the argument was over whether I would be allowed to see the RCMP materials.
If I had been permitted to do so, I have no doubt whatever that the “whitewash” engaged in by the Mainstream Press and Media would have been challenged … with hard facts from the materials. The RCMP materials were not made public. To say they were is simply a falsehood. The materials were released only to journalists “accredited” for the Basi, Virk, and Basi trial. Those journalists were – without exception – journalists, just for instance, who refused to report the wrongful appointment of William Berardino as Special Prosecutor.
They were what might be called “the housepets of the British Columbia Supreme Court and the Gordon Campbell government”.
Fact: At the time of the trial of Basi, Virk, and Basi, what I believe was the last report of lawyer Lou Webster to the court took place. Mr. Webster was a person accepted by all parties to weigh materials sought as relevant to the defence of the accused. When material sought was argued over, Mr. Webster would assess it and report to the judge whether, in his judgement, material was relevant. He would mark materials for the judge to make a final decision. Quite often, Madam Justice Elizabeth Bennett found materials to be of relevance to the Defence in its work for the accused. And she ordered their disclosure to the Defence.
The last appearance of Mr. Webster was before Associate Chief Justice Anne MacKenzie, now presiding judge. His appearance was noted on the court’s schedule. Since the jury would not be in attendance the draconian publication ban exerted by Associate Chief Justice Anne MacKenzie would be in effect. The public would be able to occupy the gallery and witness the proceedings. But it would be banned from reporting anything that occurred.
I arrived at the courthouse a little early and went to the courtroom in question. The doors were open and I could see Mr. Webster waiting for the ten o-clock beginning. Since there were some minutes before the hearing would begin, I wandered away. I came back shortly before ten a.m. Also appearing to witness the appearance of Mr. Webster before Associate Chief Justice Anne MacKenzie was Keith Fraser, reporter for the Vancouver Province.
To our surprise, the doors of the courtroom were closed and locked. There was no notice of any kind affixed to the doors. No explanation. What was to be a process under strict publication ban became, we had to conclude, a secret, private, in camera meeting.
Analysis and Commentary: Members of the public may think there is not much difference between a hearing with a strict publication ban in effect and a hearing held in secret, in private, in camera. If members of the public think that, they are wrong. For the wisdom of years has taught the best theorists and commentators about law and the courts that even with a publication ban, it is vitally important that members of the public witness the court in action.
In extreme cases, those people could give testimony to Public Inquiries or other fact finding agencies. Their mere presence in the courtroom, moreover, serves to prevent the actors in court from violating the democratic and legal rights of others. The people in the gallery are a part of the hallowed Canadian “open court” tradition, a primary protector of human rights and democratic freedoms. The pursuit of justice must be a publicly examinable pursuit.
Did Mr. Webster have nothing of significance to report? Did he wish to inform the court he had discovered highly relevant material that might well implicate the superiors of the accused? We shall never know.
But what we do know is that the doors of the courtroom were closed as in a Police State, without any explanation.
That was, for me, an exclamation point at the end of a very long sentence. It is my opinion that the public interest was ill-served by the judiciary in all matters of the BC Rail Scandal. It is my opinion, moreover, that the Mainstream Press and Media was a slavish servant of the judiciary (and the Gordon Campbell government) in those matters. It is my opinion, in addition, that Associate Chief Justice Anne MacKenzie was grossly insensitive to public interests in the Basi, Virk, and Basi matter. And I believe that she failed in her obligation to provide information to the public.
The British Columbia public was hugely cheated, I believe, in the Basi, Virk, and Basi part of the BC Rail Scandal matters.
Recently, in an appearance at a conference at the University of Toronto, the Chief Justice of the Supreme Court of Canada Beverley McLachlin stated that – because of exorbitant costs – a very large part of the Canadian population cannot use the courts of Canada in order to seek justice.
She might well have said that some higher courts in Canada appear to be so loaded with bias, favouritism, political loyalty, disregard for procedure, and contempt for the public at large that NO ONE can use them effectively (however much money they have) to seek justice.
[In PART TWO I will examine Associate Justice Anne MacKenzie’s document: “Reasons for Judgment” in her decision to order all disclosure materials held by the accused and their counsel to be delivered to the Office of the Special Prosecutor or the RCMP, or to show certifiably, that they have been destroyed.]
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