A Missive for Mayday:
Robin Mathews, the dean of journalists, accreditated or not, covering the BC Rail trial also makes an effort to encourage public agencies like the RCMP or departments like the Canadian Judicial Council or the BC Supreme Court to honour their responsibilities to those they are supposed to serve. Many of these organizations, or those who speak for them, seem to be under the illusion that they are supposed to serve Gordon Campbell and his agenda of relieving the citizens of British Columbia of their legacy assets and either ignore Robin, or try to characterize him as some fringe voice howling in the wilderness.
Robin writes to Gary Bass of the RCMP to point out apparent violations of the law that he feels should be investigated. Mr. Bass gets back to Mr. Mathews with the news that it is up to Mr. Mathews to provide the RCMP with evidence or the RCMP can do nothing. Now I thought that was the job of the police, to investigate alleged wrong-doing and collect evidence if it exists. Indeed, for a civilian to get involved in such activity could violate the law in various ways itself. Would I have been allowed to take my shovel to the Pickton pig farm a few years back to see what I could dig up? I think not!
What follows is a letter from Mr. Mathews to the Canadian Judicial Council regarding the appointment of Bill Berardino as "special prosecutor" in the what has become the BC Rail trial. While I don't necessarily agree that the entire trial should be shelved at this time, I do feel that Robin raises some extremely valid points that should be considered, especially if the trial should seem to become a white wash. However, even with comporomised people in postions that could affect the outcome, the truth could prove to be impossible to conceal even in less than proper, fair and open conditions. I will bold at will parts that I feel like emphasizing. After all, it is a holiday, and I don't think Queen Victoria would be amused with the state of things in the town that bears her name.
XXX Salsbury Drive,
May 17, 2010
The Canadian Judicial Council,
Ottawa, Ontario, K1A 0W8.
Complaint concerning the conduct of Associate Chief Justice Madam Anne MacKenzie in relation to her conduct in the BC Rail Scandal case known as the case against Dave Basi, Bobby Virk, and Aneal Basi – commencing May 17, 2010 in the Supreme Court of British Columbia.
Ladies and Gentlemen of the Canadian Judicial Council:
The terms of complaint set out on the CJC website require that any complaint, to have substance, must be a complaint or complaints about “an individual judge’s inappropriate conduct”.
The Complaint in those terms is simple. In 2003, when the investigations of some matters concerning the corrupt transfer of BC Rail to the CNR were being pursued by the RCMP, a Special Crown Prosecutor was appointed by the ministry of the Attorney General under the prosecutorial legislation and especially the British Columbia legislation governing the appointment of Special (Crown) Prosecutors.
The essence of all the legislation, and especially that covering the appointment of the Special Prosecutor is the guarantee of independence. The legislation was specifically passed to assure that – to avoid the risk that regular Crown Prosecutors might have some contact with, might be influenced by, might show bias on behalf of government officers, civil servants, police, and such like people – an appointee would be found with no such risk, and who would not have even the potential for perception of bias through relation with any of the kinds of people named.
The appointment in the case, I allege, violates the fundamental purpose of the all the legislation and especially the legislation concerning the appointment of the Special (Crown) Prosecutor. The appointee, Mr. William Berardino, had been for seven years partner and colleague of the Attorney General in the ministry that made the appointment, The appointee, Mr. William Berardino, had been for eleven years partner and colleague of the Deputy Attorney General in the ministry that made the appointment. In 2005 Mr. Berardino is recorded as donating to the election funds of the successor to the Attorney General who appointed him Special Crown Prosecutor. In 2007, the premier of the province changed the working protocol for vetting disclosure materials sought by Defence counsel. In its place the premier appointed Allan Seckel, Deputy Attorney General (to work in consultation with the Special (Crown) Prosecutor). Allan Seckel and the Special (Crown) Prosecutor had been partners and colleagues for eleven years – not many years before.
So far in this letter, I have been providing the Canadian Judicial Council with background to the complaint.
When the facts of Mr. Berardino’s appointment (through my own research) became clear to me, I wrote to the Attorney General seeking a remedy. His assistant deputy wrote to me to say (incorrectly) that the appointment of 2003 was presently sub judice and he would not discuss the matter. I wrote again to the Attorney General Michael de Jong asking for a reply from him on the matter. Mr. de Jong refuses to answer my letter.
Any reasonable observer must know that a fair trial of the three accused men cannot take place under conditions in which the Special (Crown) Prosecutor has been improperly appointed. As the legislation makes clear, an improper appointment may have the heaviest and deepest implications – or it may provide only for the potential of a perception of bias. Even that last brings the administration of justice into disrepute as well as creating a condition in which no person may say, with certainty, that a fair trial has been conducted.
That being the case, I wrote as amicus curiae (friend of the court) to the Chief Justice of the B.C. Supreme Court, Robert Bauman; to the Associate Chief Justice, Patrick Dohm; and to the presiding judge in the Basi, Virk, and Basi case (March 3, 2010), Madam Justice Anne MacKenzie, and presented them with the evidence of wrongful appointment, and asked them to remove Mr. Berardino, (or to refuse him standing in the matter), or to undertake such action as would preserve the administration of justice in British Columbia.
An officer of the court wrote to me that none of the three addressed had anything to do with the appointment of William Berardino and would take no action whatever. And so I wrote back to the Chief Justice and to the Associate Chief Justice (now Madam Justice Anne MacKenzie) and the judge presiding at the Basi, Virk, and Basi trial (also Madam Justice Anne MacKenzie). I re-presented the information that I possessed – most of the information presented here about William Berardino in relation to his appointment as Special (Crown) Prosecutor. I asked Madam Justice Anne MacKenzie to remove Mr. Berardino as Special (Crown) Prosecutor. She has not answered me or had an officer of court answer me.
I have waited until today for an obvious reason – the expectation of an answer from Madam Justice Anne MacKenzie.
Unfortunately, I have to conclude that (a) Madam Justice Anne MacKenzie has been fully informed of the improper appointment of William Berardino. (b) She was a party to the letter I received from a court officer saying the senior judges of the Supreme Court of British Columbia would do nothing to assure that the trial of Basi, Virk, and Basi did not possess the taint of (at the very least) the potential for perception of bias in the proceedings. (c) She has not answered (or had answered) my last letter because she refuses (I believe) to acknowledge that the court over which she is presiding (in pre-trial hearings and in full trial, as of today) cannot conduct the proceedings without (at the very least) the potential for the perception of bias because of the improper appointment of William Berardino to the position of Special (Crown) Prosecutor.
Any school boy or girl would know that if a judge is informed that a major actor (and the Crown Prosecutor is always a major actor in criminal trials) is in court improperly filling the role of prosecutor by an improper appointment then the court cannot function as it must, the administration of justice cannot be fair and be seen to be fair.
The response I received from the Supreme Court of British Columbia and the refusal of response to my second letter to Madam Justice Anne MacKenzie is clearly, I allege, an act of misconduct on her part. She is saying, in effect, that WHOEVER is appointed Special (Crown) Prosecutor in a criminal case in the province of British Columbia is of no interest to the judge presiding at a trial or to the senior judges of the British Columbia Supreme Court. She is conducting herself in the matter irresponsibly, I allege, and in violation of her duty to the rule of law and to justice and to the people of British Columbia. And she is doing it in this particular case, with enormous implications if a precedent is permitted to be established.
I file this complaint today – the first day of the criminal trial of Dave Basi, Bobby Virk, and Aneal Basi. I ask the Canadian Judicial Council to act with dispatch, for the trial will be in progress as you receive this letter and gross injustice may be the result of any delay the Canadian Judicial Council permits.
Of course the points Robin makes above are not the only questionable aspects of this trial. We must question first the very choice of defendants and ask why were they the only people charged. Then there is the whole issue of Justice MacKenzie and her obvious bias against the defence being parachuted into this complex trial after years of pre-trial hearings, suggesting a high degree of co-operation between the forces of the Campbell regime and the Harper PsuedoCons. The first few days have already been quite interesting and I'm certain many of us are looking forward to listening to Martyn Brown spend more time pointing out all the things he wasn't aware of as the top political operative in the Campbell excuse for government. I'm gonna invest in British Columbia popcorn futures!