Guest commentary by BC Mary
The Campbell Government is good at dating.
They nailed three election campaigns just right. They’ve managed to delay the date of the Basi Virk trial for 3 years and counting. Their CanWest minions made it clear, after July’s spectacular Supreme Court Sessions, that we could sleep peacefully on a beach until September and we wouldn’t even get sun-burned because nothing bad would happen all summer.
But things were happening all right. July saw the face-ripping sessions where the government’s own lawyer explained to Judge Bennett that all the e.mail evidence requested 2 years ago, have been “lost”. People’s eyes snapped open like daisies. Lost? How could the premier’s correspondence on a topic which is before the courts, and which had been ordered disclosed 2 years ago, suddenly go missing?
Eyes narrowed … Because we’d already been stunned by the news headlines on May 20, 2009 — 12 days after the BC election — telling us that the BC Rail trial judge was about to be taken off the case! Promoted to the BC Court of Appeal.Oh? Put those two items together, and howls of outrage drowned out the other news.
August 17 was jotted down on many a post-it note, taped to quite a few well-known desks.
On August 17 in BC Supreme Court, the judge who has presided over the Basi Virk / BC Rail Case for the past 3-1/2 years, will issue her ruling. Thankfully, she makes the final decision: will she see the case through to the end? or will she depart immediately for her promotion to BC Court of Appeal? She makes the decision … unless Associate Chief Justice Patrick Dohm thunders in, deciding otherwise. It could happen.
Many of us, including retired Professor Robin Mathews who has attended most pre-trial hearings, believe it’s important that Madam Justice Elizabeth Bennett stay on the BC Rail Case.
Strangely, it’s the Crown Prosecutor (presumably, representing the people of B.C.) who wants her gone … immediately. It’s the Defence team which wants Judge Bennett to stay with the trial. What’s with that, we ask ourselves.
So there will be historic fireworks in BC Supreme Court on August 17 as the Defence, the Crown, the special interest lawyers for Gordo, Gordo’s Cabinet, key lobbyists, and BC Rail … but strangely enough: nobody from CN, plead their cases for and against the obvious fact that Judge Bennett has absorbed 3-1/2 years of courtroom argument (little of which is written down) that cannot be effectively transferred to a new judge.
Besides, we ask ourselves: what’s to be gained by bringing in a new judge to start all over again?
Oh. You already guessed. Well, that’s our best reason for NOT bringing in a new judge.
As August 17 comes closer, eyes narrow again … because on August 17 when we should be paying attention to BC Supreme Court, the Campbell Gang is having a big party!!
No kidding. For the Canada Line’s inaugural trot from the airport to downtown.
Never mind that the Canada Line isn’t quite finished yet. Never mind that Gordo’s Gang may have “sold” Canada’s 3rd largest railway (our BC Rail) for $1B (we’re not sure – maybe he did, maybe he didn’t), the people now have a new railway to pay for! Instead of BC Rail’s 1,500 km of mainline track from North Vancouver to Fort Nelson, with branch lines to Mackenzie, Dawson Creek, Tumbler Ridge, Fort St James and Takla … the people now have an itsy-bitsy trolley operating between Vancouver Airport and downtown and a tax debt of $2 Billion. But hey! It’s party-time!
With some things on the Canada Line uncompleted, why the rush? Well, all I can say is that the government’s lawyer, George Copley , will be in BC Supreme Court that day too, trying to explain to Madam Justice Bennett what happened to those executive e.mails which have gone missing … but hey, look away!
Never mind that an embattled judge presides while a dozen angry lawyers engage in the fight of their lives: look away!
Will evidence be allowed in court even if it incriminates the guy who wanted to get rid of BCRail and build a downtown 20-minute railway? Look away! Free rides on the Canada Line at this critical junction of B.C. history.
I think that the biggest free ride in history may be happening right under our noses if we DON’T attend the August 17 pre-trial hearing on the BC Rail Case which is less and less about Basi, Virk, or Basi and more and more about the Executive Branch of this government … sorta like we always knew, you might say.
BC Mary is the creator and author of The Legislsture Raids – the one stop reference of anything pertaining to the Railgate scandal, including links to court documents, media coverage, dates, and commentaries.
Westcoast Views with Laila Yuile 
I believe that precedent dictates that a judge cannot be removed from a case for anything other than misconduct or conflict of interest. In other words, Justice Bennett cannot be removed from this case simply because anyone, including the Presumptive Chief Justice, is worried about the outcome.
Every Judge would lose real independence and the appearance of it if the sitting judge can be changed because those in authority fear a case result. J. Bennett is far smarter and more insightful than I am and she will not be taken off for the wrong reasons.
I think she will complete all pre-trial motions and deal with all known issues related to disclosure. She can then move into the new job and leave conduct of the trial to another. But, I’ll be she is having something to say about the replacement. They will not shuffle in an unqualified political hack. (Happily, there are fewer of those nowadays.)
Judge Bennett may not be large but she can be fierce.
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Norman,
Patrick Dohm has already asserted in court that he could return to make the decision … he has already muttered about having someone else in mind.
but his decision, as I read things, is simpler than you suggest. He could properly say “Madam Justice Bennett is needed in BC Court of Appeal NOW.” Or he could simply stay out of sight, saying nothing.
I hope he stays out of sight and says nothing.
Then, I hope, Bennett will announce her ruling: that she will see the trial through to the end.
Three years of pre-trial hearings … little of which is recorded … cannot realistically be transferred to someone else. Nobody could achieve the awareness that Judge Bennett possesses from simply being there.
It will be a far poorer process, in my opinion, if a new person attempts to take over the trial now. And note that the Defence team wants Bennett to stay.
Given the importance of this trial which Bennett herself dubbed “The BC Rail Case”, I think the very best outcome would be that she stays. To the very end.
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Agreed. And thank you for this wonderful commentary, BC Mary, I think it explains the importance of Bennett remaining on this case until the end. The alternative is not imaginable.
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IMO, Dohm thought he could move in and take control and a certain person stomped heavily on his toes. He had no business hearing that application.
Nevertheless, regardless of what happens in pre-trial motions, judges are expected to clear their minds and only rely on the evidence given at trial. The judge cannot use prior knowledge, intuition or unspoken evidence. The appeal courts look at transcripts so ultimately it is up to the prosecutor to place the facts at trial. I’m more concerned about that part of this process. Higher courts won’t look over Berardino’s shoulders to evaluate his performance. His meter ticks happily on and on.
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Norman … that’s an interesting concept: that Justice Bennett may be prejudiced because she has spent 3-1/2 years on this case. Justice may be blind, but it surely not be that blind.
I’m surprised that I have to tell you that I’m not suggesting “prior knowledge, intuition [whatever that may be, in this case], or unspoken evidence” … I certainly didn’t remotely suggest that “higher courts” would look over Berardino’s shoulders to evaluate his performance” … so would you make your opinion more clear: if you had the decision to make, would you keep Justice Bennett on the case? or not?
For example, would a reasonable understanding of BC Rail be prejudicial in a presiding judge?
I have come to an opinion based on Bennett’s performance: she is agonizingly slow, annoyingly unruffled, maddeningly patient, but she is leaving the least possible grounds for an appeal, mistrial, or dismissal. That’s what I’d like to see continue.
I’m impressed that the Defence team wants her to stay; and even more impressed that Prosecution team wants her gone, immediately.
Why do you feel it’s such a great move, to get Elizabeth Bennett off this case?
.
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Just to be clear. I prefer J. Bennett stay on the case and expedite the trial. Maybe she will. I do think that decision should be and will be hers to make.
Imagine a system that allowed easy removal of judges from cases involving political influence. It is vital that judges hold no other obligation except to the law and natural justice.
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Norman,
I like that concept a lot. And somehow I think the name of Madam Justice Bennett is written all over it.
Let’s watch, on Monday, to see why our Crown Prosecutor seems to have other ideas.
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We can only hope that Madam Justice Bennett remains seized of this trial, you can be absolutely certain there is a reason for wanting her gone. You can also be 100% certain that her leaving would NOT be in the best interests of BC’s citizenry. Unless of course, she were the Judge that had to hear the appeal. Which is another can of worms.
I’d be willing to bet that if she stays, the case will go to appeal…but if she goes, it won’t. They won’t want to run the risk of appearing before her in the Appeals court…after that court there’s no where else to go.
One thing is for sure, she doesn’t need to accept the “promotion” for the sake of her resume, and they know it. What frightens Berardino et al most, is the thoroughness, deliberateness, and intelligence of the woman behind the bench. They can’t control her, and what could possibly be worse than facing someone of her ability without having the upper hand?
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If our new economy can be characterized by the further distancing of the rich on the one hand, from the poor (welcome aboard middle class) on the other…then the people who have an inkling about politics in BC, and those who don’t( or have given up caring) can be likened to … umm…two people marooned on a distant island juggling a couple of coconuts, in a sea of undisturbed ignorance.
Maybe the harmony tax can shake things up…
(Even the deliberate dissembling of the gov’t health care system, at the behest of money-only-motivated corps…and the consequences to the public at large, does not register)
I realize (again) that a whole society can go mad – G.Campbell won the last election.
Laila Yuile for premier!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
(see? I’m mad myself)
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