PART TWO. Who Is B.C. Supreme Court Associate Chief Justice Anne MacKenzie?

 PART TWO.  Who is B.C. Supreme Court Associate Chief Justice Anne MacKenzie?  A Reading of Her “Reasons for Judgement” (March 15 2011).

The wrongfully appointed Special (Crown) Prosecutor in the Basi, Virk, and Basi case applied [Feb. 16 2011] to have all materials that were disclosed to the accused and their lawyers delivered to the Office of the Special Prosecutor, to the RCMP, or destroyed. 

The judge to whom the application was made – Associate Chief Justice Anne MacKenzie - was fully informed of the wrongful appointment of William Berardino as Special Prosecutor. He was appointed in violation of the legislation covering such appointments.  She refused to act in any way to remedy the wrongful appointment.  She was willing to hear application and argument from someone she knew was wrongfully present in her court.

[Whether those matters bear, in any way, upon her decision about the application in question must be left up to the reader to decide.]

Her sixteen page “Reasons for Judgement” landed on a growing culture of corruption in the Province of British Columbia, in Canada, and in the world.  Serious observers of all those levels are pointing to increased lawlessness on the part of governments, police forces, and the courts.

Indeed, the Canadian Parliament has just been prorogued to make way for an election brought about for the first time in Canadian history by a declaration that the government in office is acting in “contempt of Parliament”. 

In a book entitled “Public Service, Private Profits” by John Loxley (2010), the author, reveals that the huge and powerful Public Private Partnerships lobby has had members deeply at work in British Columbia.  And … its present honorary Chair (in 2010) was Gordon Campbell, premier of British Columbia (at the time).  Breach of Trust among governing politicians is so rampant that the fact about Campbell was hardly noticed (but pointed to recently by Erik Anderson).

Associate Chief Justice Anne MacKenzie reports upon the application concerning the Basi, Virk, and Basi matter in her “Reasons for Judgement”.  She records her judgement, and itemizes her reasons for making it. 

A few general comments about the “Reasons for Judgement” document and its surround are in order.

One.  The BC Rail Scandal does not involve only the three men charged.  A complex pattern of corruption is involved.  The three accused men – as far as we know – had nothing to do with the withdrawal of CPR.  It alleged publicly that the bidding process for BC Rail was soiled, and it withdrew.  Burlington Northern and Santa Fe also made strong protestations about the bidding process. 

The three accused did not, either – as far as evidence revealed over the four years of pre-trial and trial showed – have anything to do with creating the alleged favouritism extended to the CNR whose top officer was, earlier, actively engaged in the political organization and political success of Gordon Campbell.  The accused had nothing to do with an allegation that Patrick Kinsella was “advising” the B.C. government (for lavish pay) at the same time as he was serving CNR (an allegation unproved before the trial was abruptly aborted).

In fact, reasonable people might come to the belief that at least four circles of corruption existed.  One involved the three accused and their actions, which were trumpetted as central.  The second – never addressed in accusations before the court – involved the soiled bidding process and all the people and actions related to it.  The third – also completely ignored in the accusations before the court – involved matters in which the actions of the three accused intersected with or bore upon or were related to the weightier “corruption” of the transfer of BC Rail to the CNR, and to manipulations allegedly undertaken to keep all bidders quiet during an allegedly “fixed” and predetermined “transfer” of assets to the CNR. 

The fourth – touchier because, in a way, extra to the three circles named – involves the role of the police, especially the RCMP in the “investigation” of all aspects of “the BC Rail Scandal”.  From almost the start Defence counsel used words like “targetting” and “tailoring” to describe investigation.  But the role of the RCMP may be summed up more simply. In every case in which the RCMP top officer for British Columbia, Deputy Commissioner Gary Bass, was formally requested to undertake investigation of matters relating to the actions of the Gordon Campbell group, he refused to do so.

That is the real world into which the case of the three accused was fitted.  It is a Scandal-filled world in which every British Columbian is a party because every British Columbian owned BC. Rail.

Two.  Although British Columbians were  - each and all – principals in the corrupt transfer of BC Rail to the CNR, my belief is that Associate Chief Justice Anne MacKenzie did almost nothing to facilitate their knowledge and understanding of the matters involved in the trial.

It is my belief that the principle of the ‘protection of the innocent’ was pushed to extreme limits in such ways as – by accident or intention - to keep information from the British Columbia public.

It is my belief that the hallowed principle of an “open court” - a trial conducted openly and before public observers – was scanted almost, it seemed, by intent.  I refer in Part One (as an extreme example) to Associate Chief Justice MacKenzie holding what I believe was a wholly unnecessary in camera (private) hearing. 

Three.  At no time in her period as judge in pre-trial and trial do I remember hearing Associate Chief Justice Anne MacKenzie ever take serious time to read into the record her concern that the public should be well informed, or that the it was a principal in the action before her, or that the allegations of much larger corruption that surrounded the accused called upon the court, the press, the electronic media and all others involved to extend themselves to guarantee the interests of the B.C. public would be well and honorably served.

Indeed, I believe Associate Chief Justice Anne MacKenzie worked to contain the trial within the narrow limits of the highly questionable limitation of accusations in the matter. 

The Document.

The nub of the application by the wrongfully appointed Special Prosecutor turns, I believe, on his assertion that the materials [in layman’s language] received by the accused were only provided to them for the use in their defence; and that use being ended by the suddenly aborted trial, all the materials must be returned.

The wrongfully appointed Special Prosecutor was backed in this assertion by the so-called “Executive Council”, in fact the cabinet of Gordon Campbell, allegedly the chief author of the corrupt transfer of BC Rail to the CNR.  The Special Prosecutor was backed as well by the BC Railway Company (which many believe facilitated the corrupt transfer of the BC Rail to the CNR).

In its argument the Crown dwelled a good deal on the “implied undertaking in civil proceedings” to return documents and not to use them for collateral purposes.  And it argued there is an “implied undertaking rule in British Columbia”.  Statements quoted appear to suggest Madam Justice Elizabeth Bennett also supported the “implied undertaking of disclosure”.

Associate Chief Justice Anne MacKenzie, then, ordered the delivery of all materials to the office of the wrongfully appointed Special Prosecutor, to the RCMP (under deep suspicion of conducting an inadequate investigation of BC Rail Scandal

matters), or she ordered the certified destruction of all those materials.

Everything about the actions leading to the document in question and the document itself gives the appearance of being “cut and dried”, of being lodged securely in tested precedent and easily administered law until a statement in the document leaps out of it and underscores what might be considered by some to be the continued “targetting and tailoring” of fact. 

Leading in to that statement Associate Chief Justice Anne MacKenzie refers (among other things) to the “high profile nature of the case” and “the number of third party interests implicated”.  And then she informs the reader that a reason for demanding the materials be returned (by order of the court) is, in fact, the guilt of two of the accused: “committing breach of trust, contrary to sections 121 and 122 of the Criminal Code, and the breaches of trust in question involved the disclosure of confidential information”. Unstated: they cannot be trusted with confidential material.

Comment.  At this point the huge imbalance of focus must be addressed, and larger jurisprudence must be consulted … specifically the matter of ‘equity’.  The word has many, many uses in law.  We need only be concerned with its very ordinary (but judicially explosive) use as set out by Lord Denning, perhaps the most influential English judge of the 20th century (1899-1999).

Denning was granted honorary degrees from the University of Ottawa and McGill University and was named a life member of the Canadian Bar Association.

Put simply, Lord Denning saw “equity” as fairness – a matter often completely ignored by judges.  Fairness in the minds of ordinary people.  Fairness in relation to the real world outside the courtroom.  Fairness in any particular case. ‘Equity’ is – in his context – the forcing upon precedent what reasonable and prudent men and women would consider is naturally just. In short, Denning would say, I believe, “yes we have a body of law and of precedent, but in this case only by departing from precedent can justice be done and be seen to be done”.

In the Basi, Virk, and Basi case Associate Chief Justice Anne MacKenzie – eyes glued to a list of (what I believe are) inadequate precedents – ordered all disclosure materials delivered to the office of a Special (Crown) Prosecutor who was appointed in violation of legislation governing the appointment process. (And, incidentally, a Special Prosecutor she, in fact, protected in her court.)

Failing delivery there, she ordered all disclosure materials delivered to the RCMP – a force simply not trusted by a large number of British Columbians AND a force especially suspected of inadequate investigation in the BC Rail Scandal.

Failing delivery there, she ordered all disclosure materials in the hands of the accused and their counsel … destroyed.  Thousands and thousands of (expensive) pages of sensitive evidence, tapes, and other things, for a case brutally terminated, wrongfully (in the eyes of many serious observers) aborted, cut off by a deal that stank to high heaven.  And, in the minds of many, many serious people it was a deal which perverted the administration of justice out of recognition.  For them, justice was neither done nor was seen to be done.

All of that happened with the easy and full approval of the judge presiding, Associate Chief Justice Anne MacKenzie.

Not only was the case not one between two parties – say a bank and a mortgagee who can’t pay.  It was, in fact, a criminal case, one between the Queen (regina) representing all the people of Canada and a set of wrong doers.

In this case principals in the case were all the people of British Columbia. It was not an action, I believe, that could be tucked away by a set of secretly arranged deals between a Special Prosecutor (and the Gordon Campbell government) and the accused.  And it was the role of the judge to make sure the trial proceeded until justice was done and was seen to be done.

She failed monumentally, I believe, to fill that role.

“Equity” would have demanded that she prevent the trial from ending as it did.  She writes in her “Reasons for Judgement” of “the inherent jurisdiction of the court to regulate its process”.  Why didn’t she use that power in the trial?

If she felt that she could not (for whatever reasons) insist the trial continue, then, in the name of equity, she could have disposed of the disclosure material very differently.  She could have said that “the high profile nature of the case”, “the number of third party interests” and the deep involvement of every British Columbian as principal in the case (to say nothing of the enormous expenditure undertaken to assemble the materials) demanded that the materials be kept, guarded, and maintained for possible future reference – and that they be placed in the care of the court for an unlimited time – not into the hands of dubious entities, and not destroyed.

She could have referred to the disgraceful end of the trial.  She could have referred to the visible decay of the higher courts in Canada.  She could have referred to uninvestigated wrong doing, and to the present, sad reputation of the RCMP. She could have referred to the wrongful appointment of the Special (Crown) Prosecutor.  She could have referred to the call for a Public Inquiry into the BC Rail Scandal.

She could have shown the people of British Columbia that she is deeply aware of their well-being, their concerns, and their democracy. Equity.

Instead, she zipped up the trial with her final “Reasons for Judgement” as if the whole affair was inconsequential.  And by doing so, she wrote down the reputation that will be hers forever.

And … I believe, deeply, that she gave a final stamp of approval by the Supreme Court of British Columbia to wrong doing by high placed officers holding Public Trust … wrong doing on a scale perhaps never before seen in Canada.