Friday, October 29, 2010

Judges "must be seen to be independent and impartial" - Beverley McLachlin

"In its majestic equality the law forbids rich and poor alike to sleep under bridges, beg in the streets or steal a loaf of bread."
 Anatole France - 1894


Justice Anne Mackenzie had a meeting with Dave Basi today. Conditions of the convict's house arrest were under review but a publication ban prevents release of information. Despite the ban, Neal Hall of the Vancouver Sun says that Basi's conditions were tightened and the court will consider use of electronic monitoring. According to the Globe and Mail, Basi remains able to go out for work, exercise and grocery shopping. Apparently, he is also able to leave the house with immediate family members and for medical and religious reasons.

Justice Mackenzie leaves us in the dark on details of the offense(s) but CBC reported that house arrest terms may have been broken by TV interviews involving Basi. One was given on the street in downtown Victoria and another while Basi was in Bobby Virk's house.  Perhaps, he and Virk were exercising together and the TV cameras happened along during a rest break. Clearly, courts prefer that prisoners stay out of spotlights while on house arrest, even if conditions allow generous absences. Sentencing judges are embarrassed when culprits demonstrate so little regard for sanctions imposed.

Both the appointment process and performed work of Special Prosecutors have been questionable before but many lawyers are shocked at lax terms of the Basi/Virk and Young/Duncan/Shambrooke plea agreements. They are bewildered that a Supreme Court judge agreed to a settlement so evidently motivated by political considerations. That Basi was hauled into court days after sentencing suggests the judicial system is sensitive to the controversy and they ensured news of Basi's court appearance was broadcast widely. That is ironic considering the court administration's previous efforts to shield the case from public view through unpublished schedules and the like.

The public has been clear in expressing disapproval but so have many in the profession. Not only is the Supreme Court held up to public contempt in this case but the whole justice system faces growing cynicism. We heard conflicting explanation for the plea deals from the crown but the AG and staff should not have been skating. By tradition, that is one department of government that must be independent of politics. They failed that test badly and, by doing so, exacerbated public irritation. Under an outdated practice, the persons most involved, Special Prosecutor, defense lawyers and Justice Mackenzie, are not talking.

This ignores advice from Supreme Court of Canada Chief Justice Beverly McLachlin. She talks repeatedly about the need for accountability:
Judges are accountable. They are accountable to the Canadian public . . . For at the heart of the concern about accountability is the belief that in healthy democracies, power should not go uncontrolled. It must be responsible to and responsive to the community. . . .the judiciary, are expected to carry out their roles and responsibilities with integrity and efficiency, in the service of the public. They are expected to be accountable.

. . . Time was – not too long ago – judges were universally held in high esteem. And they were comfortable – dare I add – with their status.

. . . any notion that judges are above scrutiny has lost currency.

For the individual judge – looking at the matter in its most simple terms – accountability should encourage good decision making. A good decision is one that is just, according to law. The methods by which decisions are made must be seen to be transparent and fair. The decision maker must be seen to be independent and impartial.
Despite what Chief Justice McLachlan opines, in the absence of moral failure, judges of Canada's Superior Courts are really only accountable to other judges, when decisions are reviewed by Appeal Courts, and then only on application of the crown or defense lawyers. In the cases under discussion here, no application will go forward. If both sides are party to error, the wrongdoing is unlikely ever to be corrected.

For the reasons expressed here, the Supreme Court of British Columbia needs to explain its performance in the Basi Virk situation. Justice Mackenzie could explain:
  • Why Justice Dohm interfered with Justice Bennett's initial conduct of the case;
  • Why the Premiers' staff member Ken Dobell was given access to sensitive documents without appropriate authority or pledge of confidentiality;
  • Why the provincial government was allowed to break the law on document destruction, without sanction;
  • Why the Judge did not ask RCMP to investigate possible obstruction of justice regarding disappearance of potential evidence;
  • Why Anneal Basi was granted a stay as part of the other defendents' plea bargain. If the case against him was unwarranted, why was he not released previously in the past seven years?
  • Why was no statement of facts entered into the court record with respect to bribery charges against the Vancouver Island development company;
  • Why individuals who gave bribes were allowed immunity or had charges dropped.
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7 comments:

  1. I agree 100% with everything you have presented here. Nothing in this case can be 'seen as independent and impartial' due to Madam Justice MacKenzie's lackadaisical handling of crown witnesses and evidence (destruction of documents on part of government accepted without sanction).
    This trial is a transparent affront to B.C. justice system and to taxpayers of this Province who paid for this travesty. After 6+ years of pre-trial proceedings under her belt, it would seem that Justice Bennett would have been the most qualified to preside in this multi-million dollar case.

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  2. Thanks for this article Norm. It is so very important to keep reminding people of the failing BC Supreme Court.

    You have done so succinctly, and in terms that anyone can understand. Oh, if only the mainstream media would perform such a feat.

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  3. A thought just occurred to me: Why was reporting of Basi's original sentencing not banned, but Basi's re-sentencing is banned?

    Am I wrong in thinking that the media and others were allowed to report freely on Basi's sentencing?

    It's not as if the jury is coming back; the trial is over. So, why is the judge still continuing with a ban, for something ostensibly so simple?

    The stench, I can smell it starting to rise again...

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  4. Norman,

    This is an outstanding essay on the thorny topic of whether BCSC made itself accountable to the people of BC who had owned the railway named in the BC Rail Political Corruption trial.

    I must admit that I find it increasingly outrageous that Big Media is suddenly all over Case #23299 when, for the past 4 years, they've largely ignored the trial.

    I can't help feeling as if Big Media is, once again, playing stenographer to the Campbell Gang. Gordo Himself seemed especially pleased to be focusing blame on the "criminals" ... over there, over there ... who had acted alone etc.

    I keep looking up terms like "Unindicted Co-Conspirator" and wondering if I'm the only one who looks at that $6million pay-off of Basi & Virk as just another bribe only much, much bigger than the ones Dave Basi pocketed in 2003.

    But I digress, a bit.

    Norm, I'd like to ask permission to post your "Judges must be seen to be independent" essay at my place. And thanks again for the work you did, producing it.

    .

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  5. Mary, of course you may republish. Your site, The Legislature Raids, is the only site that holds a complete record of the BC Rail theft.

    Canary, they would say that the review of Basi's status is continuing. Clearly though, this is a public relations move.

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  6. Thanks Norm for the insight.

    I still have one question though. I thought the publication ban was put in place to ensure the jury could do their job properly, and that the ban applied only to things discussed when the jury was out of the courtroom.

    So, are you saying the jury is still active, and that it hasn't been dismissed?

    Or, was the rationale for the publication ban just a ruse by the judge?

    Or, is the BC Supreme Court just making things up as they go along, and hoping no one will notice?

    It may well be that Basi's "status is still continuing" but I don't believe the jury is still active and awaiting recall with respect to Basi's "status", do you?

    I'm just trying to figure this out.

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  7. Campbell accusing Basi/Virk of being criminals, is the chuckle of the month. There is no-one more corrupt than, Campbell, Hansen, DeJong and the phony BC Liberals. Campbell was the corrupt, unprintable, that thieved the citizens BCR and sold it. BC people know, Campbell is the one who should have gone to trial. BC is the most corrupt province, in all of Canada. Campbell's Liberal governing officials, are the most corrupt entity, that dictates and works against the people. The BC Liberal Party, should be dissolved. Campbell is despised, and so is everything he stands for.

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