One of the crime scenes

Monday, October 29, 2007

There's Court Orders,
and then There's Court Orders

Back on June 4, 2007, almost three and one half years had passed since the unprecedented search and seizure of "evidence" from the offices of high level aides to the BC Liberal Government. Since December 28, 2003 the people of British Columbia as well as apparently the defendants and their counsel have had to beg, plead, submit applications and generally just hurry up and wait to learn what this case is about. Compared to the Glowball TeeVee video tape loop of the "raid" on Glen Clark's "illegal" deck and the Soprano types exiting the North Burnaby card room (perhaps enroute to a modern day St Valentine's Day Massacre or in search of a horses head for a friend), the void of information or follow up on this extraordinary event was simply stunnining.

A Nod to Franz K.

While comparisons to Guantanamo might be a bit far-fetched and over the top, the case definitely deserves to be called Kafka-esque. Besides the defendants aren't being water boarded and assaulted with loud Heavy Metal music and /or German Shepherds while they wait to learn about the evidence the prosecution theoretically has against them. Indeed as Gary Mason, former sports writer turned puff piece author, pointed out in his touching little story last Christmas, David Basi lives pretty happily in his nice Vancouver Island home, with his nice family and even gets to spend "quality/private" time with his nice wife on mornings when the nice children are nice enough to sleep in. Of course there is that nasty little black cloud hanging over him and his co-defendants that tends to spoil the otherwise idyllic sounding lifestyle. I have no doubt every resident of Guantanamo Bay or the un-named protagonist of The Trial by Mr. Kafka, would gladly trade places with Mr. Basi in the blink of an eye.


Now disclosure by the prosecution (sometimes called "discovery") isn't a special favor to those charged with a criminal offense. Indeed, it is a normal step in any criminal (or civil) matter. Right along with habeas corpus, the accused and his counsel are entitled to see the evidence against them in order for them to prepare a defense, should they choose not to plead guilty. If this evidence is particularly damning and impossible to refute, this alone could lead to disposition of the case by some plea other than not guilty. The defense is also by law entitled to see any evidence uncovered by the police or prosecution, that tends to exonerate the defendant as well, but it is even more common for the prosecution to "accidentally" not disclose this type of information.

A Legal Scavenger Hunt

So in just over three and a half years the defense, and sometimes the public, has been able to learn, but not all at once, 75% - 80% of the information used to obtain the search warrants for December 2003 and to delve through piles and boxes of documentation stored at what is still an unknown (to me anyway) number of locations and "special rooms." To the casual observer the defense team might seem to be whiners, but when days, weeks, months and years go by and you still haven't been provided the materials necessary to defend your client, it really isn't whining. It's more a case of acknowledging that something is rotten about the case and/or the way it is being handled. As an added mysterious factor is the fact that Bill Berardino the "Special Prosecutor" seems to only appear in court half the time, give or take. If he was supposed to be at school, he'd likely need to take the grade over. Unsurprisingly, in this case anyway, there has never been any illness or other pressing "more important" matter mentioned to explain why the man chosen to represent the people of BC in this case finds his attendance at pre-trial hearings and such so un-necessary and goes missing so often.

Back to: June 4, This Year

Monday the fourth of June was the day that Justice Bennett ruled on the major application for documents filed by the defense. As Mark Hume put it in an article now buried deep behind the pay wall at the Globe and Mail:

A political corruption case that has been slowly unfolding in the Supreme Court of British Columbia took a dramatic turn Monday when Madam Justice Elizabeth Bennett delivered a disclosure order that was stunning in scope. {Snip} ...

“Every police officer or civilian who touched or spoke about this investigation, regardless of what branch of the investigation they were involved in and regardless of rank or role undertaken, will review every piece of paper he or she has and ensure that it is submitted to the Crown forthwith. This includes but is not limited to notes, briefing notes, continuation reports, e-mail and anything marked ‘not for disclosure.'”

The Meaning of Forthwith (in Lawyer Speak!)

Now I highlighted the word forthwith, because Justice Bennett used that word in her order. We've all seen what forthwith, prompt and other such words mean in the case of people like Betty K or Harriet Nanahee (the Eagle Ridge grannies), or even the BCTF when their strike action was designated "illegal" and in the space of one month the court blocked the picketers from collecting strike pay and fined the union itself a cool 1/2 million dollars, after the teachers had returned to work. These court orders were issued AND enforced in about three weeks with a small number of court sessions - sessions where things actually happened, though not necessarily in the teacher's interests.

Forthwith - In the Fourth Month?

Last week on the 22nd and the 24th the Crown delivered approximately 25,000 documents to the defense. So after four months of forthwith efforts to comply with Justice Bennett's "order," two or three days before the next court appearance the defense is buried in the equivalent of multiple copies of War and Peace, Anna Karenina and Remembrance of Things Past, though likely not as well written prose. I guess Mr. Berardino, who, by the way, was even there on Friday felt proud of his compliance in fact, if not spirit. According to our witness at the courtroom the invaluable Robin Matthews (from my previous post from him - Ankles Awash....):

Why? Didn't Defence want the material? Didn't they ask for it? In the witty words (?) of Special Crown Prosecutor, William Berardino quoted by Bill Tieleman on his blog, didn't the judge ask, in her order, for every scrap of paper. Ha. Ha.
Ha. Ha.

When is a Court Order just a "suggestion?" By last week there had been about 120 days since June 4. Would bringing the 25,000 pages of evidence to court on Friday have counted as "complying forthwith?" Of course it goes without saying that disclosure should have be completed even before June 4, 2007 or perhaps a stronger suggestion/order (demand?) could have been issued much earlier. After all much of the evidence was gathered on December 28, 2003, and the case is about, among other things, acts that took place even before December 2003.

Instructions to OUR ATTORNEY

Mr. Berardino, if I understand your role as Special Prosecutor, you, my esteemed fellow, represent ME and the rest of the people of British Columbia. However, it certainly doesn't appear that my interests and those of my fellow citizens in justice are foremost in your approach to this admittedly difficult job. It isn't a sign of mental instability or paranoia if one might suspect some other party's interests are the ones being looked after here. And I wouldn't dare use the term "Obstruction of Justice" here like an accusation, because that is a legally defined criminal act and IANAL. However the performance of my legal team these last four years in this case has been conspicuously free of any evidence of any attempts to expedite the search for truth and justice. If you and Ms. Winteringham were really my lawyers and I was picking up the tab directly, rather than just chipping in with the rest of the taxpayers, I would be looking for new and better representation, and considering filing a malpractice suit.


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