” I believe in truth. I believe in truth and honesty, and in doing the right thing. Most of all, I believe in justice…”
It is interesting to note that all lawyers who appear in the Supreme court, refer to each other as ” My friend/s” .
This became an increasing source of amusement for myself during the Basi/Virk/Basi hearing Monday, because clearly, no love was lost between any of the mornings participants: not those representing the Crown, nor the defense , nor the attorney representing businessman, and alleged key player in the deal, Patrick Kinsella.
By a sheer stroke of fate, I found myself free of obligations Monday morning and able to watch the mornings court proceedings – which did not disappoint by any means. When reading accounts of the Railgate hearings thus far, I’ve often wondered about the stories behind the stories, the details and minutia that go unreported in traditional reporting because of time and editorial restraints. Often,it is the same stories that go unreported that offer the most insight into cases like this, becausethey give the reader a fuller, richer depth of understanding of how these cases work and proceed.
It was extremely wonderful to have another set of eyes and ears alongside in my fellow blogger GAB, and I do hope that she offers her viewpoint on the mornings work as well. I suggested we sit in the back row of the gallery so that I could watch the reactions and interactions among others in attendance – a lesson passed onto me by a senior investigator during my career in financial investigations. You might laugh at this, but watching the interaction between people, and the minute responses we all exhibit involuntarily has, in the past, lead me in new directions that enabled me to either resolve a clients file, or give them enough to prosecute it successfully. And while nothing of the sort was pertinent yesterday, it was interesting to note the people who were in the gallery, as well as who were not. I noted immediately the presence of Susan Heyes, the Canbie street Davidwho took on Goliath government in the fight of her life – and won. More on that later
Everyone rose as Justice Bennett entered the room, and I for one,was surprised at her appearance and demeanor. Wearing street clothing rather than the traditional judge garb, I found her to be a not-very-imposing figure in the courtroom, and at times I strained to hear her soft voice even in an otherwise silent room. She is very keen and observant, and several times I saw her eyes dart back to watch the gallery. With no preamble, she immediately began her address to the court by reading the reasons behind the defenses application and the opinion of the Crown. Although Bennet did not announce it immediately, it was apparent within minutes that she would not be continuing as the presiding judge in this trial by the direction and tone of her address. She stated that although she had viewed thousands of pages in applications, no charter applications had yet been heard, and that she fully expected the case would not resolvefor at least another year- at the earliest. Even this time frame would be dependant on any future charter applicationsthat could be presented.
She continued by pointing out that no evidence had been heard, nor had she taken any pleas- she has only heard disclosures and applications,and again she mentioned, no evidence. As Bennett spoke, I often watched Justice critic Leonard Krog and although I could not see his face from my vantage point, he often stroked his beard as if in deep thought. When the decision finally came: ” I am unable to continue as trial judge…”, she immediately went into her reasoning’s in detail, giving examples of similar situations in previous trials. Bennett was quick to point out that she must set the way for ease of a new job, for a new judge,and that she would not have accepted her new appointment if the trial had been further along. She paused for a moment, looked up briefly over top the glasses perched upon her nose, then said that the only way she would have remained is if she felt that another judge could not have given a fair trial to the defendants. She finished her address by simply stating that she could not continue as trial judge pursuant to Section 669.2 of the Criminal Code.
Without delay, the hearing proceeded as James Sullivan- lawyer for Patrick Kinsella- stood to speak to their motion for an adjournment so he and his client could review 65 new pages of material they had just received – stating that he ” needs time to consider how they( the defense) will be using those documents.” because the defense tends to let their imaginations run wild.
(Audible snickers rose from the gallery at this with a fair degree of head shaking and eye-rolling occurring)
Sullivan said he needed time as well as, to further review the application to subpoena and cross-examine Kinsella. Sullivan’s style was all prime time drama as he continued in his reasons for adjournment, stating that the defense seemed to be using American stye litigation tactics of private, third party cross-examination. ( more noise from the gallery at this ) It seemed that Sullivan went on far too long about how he didn’t know what the defense planned to do with these documents – as if the defense would lay all their cards on the table at this point.
Sullivan continued , repeating that this was new information,and he absolutely needed more time to review it before responding, although the look on defense lawyer Kevin McCullough said this was a bunch of poppycock.
Defense layer Michael Bolton stood to oppose the adjournment of the motions, stating that in actuality, very little of those 65 pages is new at all, and in fact, they simply re-affirm the role Patrick Kinsella is alleged to have played in the planning the railway deal. He specifically pointed out an email from Mahoney to Trumpy, relating to problems with the transaction, that says: ” I’ll do a bit of checking with Kinsella to see what he’s hearing.”
Bolton went on to mention other inferences and mentions of Kinsella within the documents, and asked Bennett to consider that it is truly reasonable for one to consider that Kinsella had knowledge of the deal. Bennett seemed to become impatient with Boltons rather long-winded and choppy address, interrupting him at times to remind him that she had seen particular document he was referring to and that there was no need to read them again. Bolton wrapped it up and sat again, and GAB seemed to sum it up well by saying that he appeared to be sandbagged.
If ever I am in need of a defense lawyer, ( of course, I won’t be, but I’m just saying) Kevin McCullough would be the man I would want on my side. This fellow has the passion and tenacity needed to do the job, and is not afraid to address the court with that heated passion in full display. You could see the intensity on his face as he approached the bench with a rather massive binder in hand, and the fireworks began within moments.
McCullough’s passionate argument against the adjournment also centered on the fact that very little of the 65 pages Kinsellas lawyer claimed he needed time to review was new, but he also targeted the handwritten notes of two Crown witnesses, Brian Kieran and Erik Bornmann. These notes, he pointed out, do nothing but confirm that Kinsella had been working for CN during the time of the deal.
McCullough referred Bennett to several pages within a journal of handwritten notes made by Brian Kieran, where the notes indicate that Kinsella was contacted for information and updates on the deal. This is where Bennett asked McCullough what Kierans first name was, and the name ” Bruce” came up.
From BC Marys comment section, a bit from my new friend, GAB, who attended with me:
” One thing that came up today though – there was materials submitted that include a notebook of Brian Kieran from 2003 – connecting Kinsella to CN Rail.
The defence responded that they THINK they know who Bruce is but the judge cut him off saying she didn’t need to know right now.
At one point, the judge asked Kieran’s first name (Brian) and then she said, oh-, not Bruce? There’s a Bruce mentioned here. Who is Bruce?
So….Who’s Bruce? ”
( Good question- who is Bruce? One name that comes to mind is Bruce Clark, whose alleged connection to the sale is detailed in Bill Tielemans A to Z article on all the key players in this case HERE – )
INSERT from GAB, who was in the courtroom with me. GAB has notes( in blue) to the dates mentioned by the defense in those key documents that indicated Kinsella’s involvement with CN during the dea, as well as covering Erik Bornmanns ability to verify the origin and validity of some of the documents- I’ve added notes in black:
The journal pages mentioned ( by McCullough in his passionate submission to Bennett-LY) :
P 37 – cover of the notebook
P 39 – May 18 Saturday (see page 59)
P 59 – front of calendar for May 2002 showing that May 18 is infact a Saturday. (Proving the year from which the notebook came)( Bennett was treating this information as quite dubious, because McCullough used the court calender as additional referance to prove that date. She was enamoured of this whatsoever and there was quite a bit of frustration exhibited by McCullough as a result- LY)
P 62/63 – May 19 Kinsella working for CN ( I had written in my notes that it was August 19, but rereading my notes, I have just now had doubts as to whether the date I had written, but based on the Emails mentioned and the date references from the notebook, I believe in fact the date was May 19 and I was having an excitement induced blonde moment)( HEY GAB- go easy on us blondes won’t you? – LY ; )
The other reference to Kinsella working for CN was mentioned. I am not certain, but I seem to recall it was on page 60. I couldn’t speculate on the date.
A few other thoughts…
The judge mentioned that Bornmann has immunity and she wanted to know why the defence hadn’t just asked him outright about the source and validity of information in a typed document previously presented. Apparently, the source of the document was originally in question as it was typed, but in the materials submitted on Monday, Bornmann’s notes for the document were included and aparently, they are almost word for word the same as the typed document. If I recall correctly this document also indicates Kinsella’s connection with CN. This document was authored by bornmann between Feb 20 and June 17, 2003 based on calender entries. This according to pp34/35 of an afidavit by someone named Hammerton. ( I believe that Bennett also told Bolton that he should ask the RMCP to question Bornmann immediately on that- but please correct me if this is wrong)
Bolton stated that based on the information in the submitted materials, Kinsella’s involvement was crucial over a period of weeks rather than days as previously thought.
One other note I took regarding contents of Kieran’s notebook before the page/date references (during Bolton’s submissions):
Ref: his understanding that kinsella is lobbying for CN
Ref: Kinsella assisting BC Rail.
McCullough was heated and impatient with Bennett as he took her through the pages of his binder to show again and again the references to Kinsella with regards to the deal. He stated there was no way not to make an inference that he had intimate knowledge of how the deal was proceeding , and stated vehemently: ” Clearly there is a relationship between Mr. Kinsella and CN.”
( one of the dates mentioned in the above mentioned journal was page 59, from May 2002- to be honest, McCulloughs argument was so riveting that at times I found myself simply watching and stopped taking notes- GAB will hopefully assist here with more dates of reference to those documents)
At one point, McCullough seemed to become almost completely impatient with Bennett as made his argument against the requested adjournment, reminding her how long this has been going on, and that clearly Sullivan was trying to delay the case. His argument was followed by a brief appearance of defense lawyer, Joe Doyle, and then of course, Kinsella’s lawyer stood again to seemingly plead for time to review this new information, making reference again to the defense alleged imagination- to which McCullough responded out of turn with a snarky retort heard by all. This was followed immediately by another comment by Sullivan and Justice Bennett interjected sharply: ” You don’t need to take pot shots at each other!” to which McCullough responded: ” He’s posturing!” ( again, more raised eyebrows and noise from the gallery)
In the end,and despite excellent arguments from the defense, Bennett granted the adjournment, asking Kinsella’s lawyer how long he needed to review the material and respond if needed. He said he could not have it done by Wednesday’s date, and she told him that her calender was open for the weeks of September 8th and the 14th.
May I say, to no one’s real surprise, Kinsella’s lawyer stated quite genially( although somewhat apologetically) that unfortunately those dates wouldn’t work because he was supposed to be in Toronto and New York those two weeks…( wow, what a coincidence, eh?) The gallery again erupted into quiet laughter and groans of disbelief. If I were the judge I would have asked to see his itinerary and tickets…Is this not a common stalling tactic in court rooms? Previously arranged plans?
Bennett peered at him over the top of her glasses with a less than amused expression and told him he better do something about that, because other than those dates , her calender wasn’t open again until December, and so that leaves him with September – or Wednesday( today). Clearly, although Bennett granted Sullivan time to review and respond to the new documents, she is not about to accept a lengthy delay in hearing from Mr. Kinsella. And rightly so.
While I’ve heard criticism of Bennett’s approach in the courtroom throughout this trial, I cannot say that I saw any evidence of this during my brief visit into the Basi-Virk hearings. As mentioned above in this post, I’ve had experience with Supreme court actions while working as a financial investigator, and in my opinion – although some may not agree- she is following the law to the letter to avoid giving any reason for an appeal or dismissal. In other words, she is doing what a good judge is supposed to do, whether or not the defense likes it, or those who wish this case to come to a quick conclusion might. However, if her demeanor is any indicator, I sense Kinsellas lawyer is testing her patience with this current motion. One can expect that he will do everything he can to avoid having Kinsella set foot in the courtroom, but I suspect that the current documents presented are more than enough to make a reasonble argument to force Kinsella to answer the questions everyone has been asking.
Now for the story inside the story….
As mentioned above, there was another individual quite familiar with the legal maneuverings of the provincial government in the courtroom that morning, none other than Susan Heyes- the Cambie street merchant who took on the provincial government and Translink in her fight for damages sustained during the Canada Line construction -and won.
How fitting that on the day that somewhat infamous Canada Line opened, Susan sat in the courtroom to witness what some say is a pivotal point for the continuation of the Basi/Virktrial. I caught up with Susan after the morning session adjourned and we talked for some time in the lobby below before her appearance on the Christy Clark show.
I asked Susan why she was came to sit in the courtroom on this particular day and she looked at me with eyes shining. ” I came because I believe in truth.” She leaned forward intensely, a clear expression of pride and fierce determination shone on her face. ” I believe in truth, and honesty, and in doing the right thing. Most of all, Laila, I believe in justice. I believe in justice for the little guys out there, the ones being stomped on, the small businesses, the unimportant people and all the other Susan Heyes of this world…”
Wow. Pretty powerful, and a pretty damn fitting finale for this post. Susan Heyes sitting in on the Basi/Virl trial on the opening day of the Canada Line that damn nearly ruined her life.
I took it as a sign that justice will prevail in this case as well.
The people will not have it any other way, Campell.
( now,in a related Susan Heyes story, things must be getting pretty warm in the Premiers office- and I’m not referring to the weather…..I’ve heard that they fought tooth and nail to prevent the release of the following information, and although I haven’t seen anything in the locals, a Kelowna newspaper is running this story, which I include here in full with the link ( because sometimes these links disappear)
One wonders why the government would try so hard to keep this all a secret. no? Read it for yourself at : http://www.kelowna.com/2009/08/18/canada-line-operator-ordered-to-reveal-its-deal-with-translink-freedom-of-information-office-rejects-firms-claim-of-security-risks-and-financial-harm/
Freedom of Information office rejects firm’s claim of security risks and financial harm on Translink
Tuesday, August 18th, 2009 | 6:05 am
Canwest News Service
The operators of the Canada Line have been ordered to reveal all the details of their agreement with TransLink, despite claims by Canada Line Rapid Transit Inc. that it would lead to an increased risk of terrorism and cause financial harm.
Celia Francis, senior adjudicator for the Freedom of Information Office, said Canada Line Rapid Transit and InTransitBC did not provide sufficient evidence to “establish a reasonable expectation of harm flowing from disclosure.”
She ordered all information of the concession agreement be made available to lawyer Cameron Ward, who filed the FOI request, within the next 30 days. He argued the project involves a “massive amount of public funds” and details should be available to the public.
Ward represents former Cambie merchant Susan Heyes, who successfully sued TransLink, InTransitBC and Canada Line Rapid Transit for $600,000 in damages after losing business as a result of tunnel construction along Cambie Street.
Ward could not be reached Monday.
According to Francis’s report, InTransitBC claimed it withheld some some information from the agreement because it could prejudice its competitive interests, while Canada Line Rapid Transit argued disclosure could open Canada up to a terrorist attack in light of attacks in London and Madrid.
Canada Line’s case said disclosure of the information it withheld could “reasonably be expected to harm the security of the line and ultimately the physical safety of passengers, law enforcement personnel and others.”
But while Francis agreed “the possibility of a terrorist attack on public works carries with it the threat of serious and significant harm to public safety,” she said there was no evidence of how a terrorist would exploit the information.
The information being withheld included the level of police and communications personnel, the operation of the CCTV system, the tunnel-ventilation system and the communications systems and equipment.
Canada Line also refused to release a diagram titled Basic Layout of the Control Room, a diagram of the “Proposed Cross-Section of One Bored Tunnel under False Creek and Downtown Vancouver” and more than 400 pages of drawings.
“Canada Line did not provide evidence that is detailed and convincing enough to establish specific circumstances for the harm it argued could reasonably be expected to flow from disclosure of the information in question,” she wrote.
She also dismissed Canada Line’s arguments that releasing the information would harm conduct of aboriginal relations, saying they were “vague, speculative and hypothetical” and that she was not persuaded of the threat of financial or economic harm.
InTransit BC, she said, also failed to provide sufficient evidence to support its arguments on the reasonable expectation of “significant” harm to its own competitive or negotiating position or that of others.
TransLink itself did not oppose releasing the agreement details.
*** I’ve obtained a copy of the FOI order and you can read it in PDF format here: OrderF09-13