Tuesday, May 26, 2009

Basi-Virk defence applies to have Justice Elizabeth Bennett retained as trial judge despite her promotion to BC Court of Appeal

Basi-Virk Exclusive

Defence wants Justice Elizabeth Bennett to stay on case – but Special Prosecutor wants new judge appointed quickly, sparking battle in court

Justice Elizabeth Bennett also predicts no Supreme Court of Canada decision on secret witness appeal until end of October

By Bill Tieleman

24 hours newspaper

Defence lawyers for three former B.C. Liberal government aides facing corruption charges related to the $1 billion sale of B.C. Rail told a B.C. Supreme Court judge Tuesday they want her to hear the trial despite her promotion to a higher court.

But Special Prosecutor Bill Berardino made it clear that he wants a new trial judge appointed to replace Justice Elizabeth Bennett as soon as possible, setting up a difficult decision for either Bennett or her superiors.

Bennett’s appointment to the B.C. Court of Appeal was announced on May 15 but she has stated she will finish off some pre-trial disclosure applications in the case.

Michael Bolton, representing former B.C.Liberal ministerial aide David Basi, told Bennett in court that the defence will request that she stay on as the trial judge.

“I just want to be clear – we will be making an application that you continue to be the trial judge – it’s rather unprecedented,” Bolton said. “We’re concerned about the amount of time that’s gone into presenting evidence on our applications.”

But Berardino disagreed.

“The Crown’s position is that a new judge should be appointed. Bifurcating the process is a prescription for delay,” he said, adding that the rules of the court give Bennett the discretion to decide to continue or to not make that decision herself.

Bennett acknowledged the dilemma she faces after more than 100 days of pre-trial hearings on complex issues over three and a half years in a case where more than 300,000 pages of evidence have been disclosed.

“The problem is I’m the only person who knows best how to proceed,” she said. “Matters that I am seized off – if I walked away that would delay a trial considerably and I’m not prepared to do that.”

Associate Chief Justice Patrick Dohm will meet with all parties June 4 in a pre-trial conference to discuss the case.

Bennett also told the court she guesses that the Supreme Court of Canada will not make a critical ruling on Special Prosecutor’s appeal on the issue of secret witness testimony until the end of October, a decision which could possibly mean the case does not proceed.

“I don’t think you’re going to get a ruling from the Supreme Court of Canada till the end of October – I’m just guessing,” she said.

Pre-trial hearings will resume on Thursday May 28 at 10 a.m.



Kam Lee said...

God Bill! When will gordo allow the trial to go on without political interference. This is a five plus year journey, and they keep on slowing it down. I do believe that Berardino is doing the masters wish. Slow it down until the great unwashed forget about the raid. No wonder the criminals are not afraid of getting in front of the judges. They must be saying to themselves, "What me worry?" Just another quick question if I may... If gordo is found guilty of involvement in the sale, and the slowdown of this trial, can he still run the government from inside a jail?

Norm Farrell said...

I think Berardino is afraid that J. Bennett will spank him severely if she is still around when he stays the charges. She already made an implied threat.

Anonymous said...

A successor judge would really only need to have a sketchy view of the case. They don't have to read 300,000 pages of testimony and documents, because orders have already been made on same. Additional discovery motions are decided on their own merit (we hope).

I think the case will be tanked on Charter grounds, in short notice. Even if trial commenced next year, that would set up parties for numerous Voir Dires (evidence hearings), each of which would be subject to interlocutory appeals. In the event of a conviction, there would be further appeals. When the Feds saw similar minefields in the original Mulroney inquiry, they dumped the case and shelled out over $2,000,000 to the former PM, to pay for his legal fees.

The legal system is a farce. CJ Don Brenner allows only 425 trial cases per year, because HIS litigation industry makes more money in Motions court circuses, and FORCED settlements with ruinous costs imposed on victims of attorney parasitism. BC has 9000 Barristers, while the entire UK gets by with 1000. Our complacent media refuses to ask why government parties and corporations close to the the Lib monarchy, win nearly 100% of trials and motions.

DPL said...

I am reassured by the Judges comments which seems to indicate she wants things to advance with her doing the job. I still can't understand just who the Special Prosecuter is actually working for. It doesn't look like he is working for us. Maybe he figures he can drag it along till he finally retires or gets to be a judge

Anonymous said...

Since 2003 no one in BC's beautiful elite (especially its media) wanted Basigate to even exist.

This latest move is just another in an endless run of delays and dirty tricks by the Campbell regime and its aging and bumbling alumni of Paul Martin money-chasers to make Basigate go away.

"We Only Cheat When We Can't Win"


Anonymous said...

The only prescription for delay has been the handling of disclosure by the Special Prosecutor, Bill Berardino.

There is no doubt a new trial judge will affect the timing of a trial and on top of that, the uncertainty around the SCC ruling (where Berardino has stated he would drop the case) may complicate matters.

G West said...

I don't think the accused want the case 'tanked'.

They could have brought such a motion months ago if that was the objective.

I had a long dinner discussion about this case a few weeks ago with two veteran lawyers: their view, which I share, is that Basi, Virk and Basi can't clear their names if the case is vacated on Charter grounds.

They're jilted lovers, so to speak, and like the wounded party in a bitter divorce, the only way they can get satisfaction is for the whole sordid story to come out in court. That way, when they get an acquittal and the real facts are laid before the public, they can move on with their lives - unsullied and 'free' so to speak.

I expect the ALR case as well will, in the fullness of time, have a back story to it that implicated lots of higher-ups and leaves Dave Basi more or less unscathed.

These guys were loyal foot soldiers of the emperor - they see their predicament as a betrayal and they want their pound of flesh.

Look for this to go all the way - or, if dumped, to put all the blame on Berardino's shoulders.

My view, even Bennett realizes she shouldn't be severed from the case - the question now is, what on what instructions from Seckel (and others) is Berardino acting?

Stonewally's exit is going to make things even more difficult for the CEO - unless of course he makes Bill Bennett the new AG.

Boris Sitalie said...

Obviously the problem here is simply the length of the trial. The clear solution is to remove the person causing the hold-up, Justice Bennett. Granted she could have done a better job of halting Berardino's obvious stalling tactics but in the end she allowed them and she should take the heat. Naturally it was reasonable to give her a promotion for a job well done. This is how incompetence is handled in the elite segment of our society to ensure continuity of policy formation and legal structure.

DPL said...

Boris and I would disagree on who is slowing things up. The Judge has told the folks to get moving and even suggested it they don't show up she will. Is it more serious that some murder case or one that so seriously affects other people? Yes this case could be very serious. All judges know their work will be watched by others and of course her decisions could end up in the Appeals Court and aready has been sent up to the Supreme Court of Canada on the secret witness event. Judges have more than one trial going at the same time, as have lawyers so some time juggling has to be considered. The government has been stalling by not providing some documents. I vote for the judge.

Norm Farrell said...

Sorry Boris but blaming the Judge is just plain wrong. Here, the defense strategy is to fish endlessly for documents hoping to find a smoking gun to prove their guys were mere pawns in a politically, maybe criminally, motivated project. The Government is trying to limit disclosure, maybe to avoid discovery of criminality or maybe simply to keep embarrassing political details out of the public forum.

The Judge has to preside with an even hand and let the facts be revealed in due course. Were she to kick one side or the other and force them do something inappropriate, the entire case could be tossed. Judge Bennett wants a result but one accepted as fair and able to withstand all appeal challenges.

Reserve your anger for either the defense or the prosecution. Pick a side and criticize them for overreaching or hiding evidence but the problems lie there, not with the Judge.

Skookum1 said...

Commenting on G West's post about Basi et al. wanting to clear their names, I think that's on the mark. They, most of all, "can't comment because the matter is before the courts" and have a good legitimate reason for that - if they were to comment it could cause a mistrial.....

BUT, once it's all over, I suspect that Dave Basi may have a tell-all book waiting in the wings, sure to be a best-seller given what's likely to be in it. Perhaps never before has a lowly ministerial aide had so much to offer a publisher in teh way of prospective sales. Quite a departure from the usual memoirs put out by politicians, or about them...

If they want to redeem themselves to the British Columbia public, telling the whole truth and nothing but the truth is really the only way. And in doing so, in book form when the time comes, it could be quite profitable for them. There's big latitude for options on a screenplay, too, for any producer/director to want to take it on.....

Anonymous said...

Bill, I just read that Kinsella's legal counsel will also be asking to remove Justice Bennett (see robin mathews). How on earth is this possible?

For Kinsella and his legal team to jump on board with the Special Prosecutor strikes me as a cosy relationship that a truly independent Special Prosecutor would stay away from. More questionable behaviour from a Special Prosecutor who has attacked the trial judge in the Appeal Court of BC and the Supreme Court of Canada. Now he wants to remove the judge, with help from the top Campbell insider Kinsella.

The office of the Special Prosecutor should demand better and deserves better.

I hope that the people of BC will be able to read what occurs on June the 4th and that the counsel for Mr. Kinsella will answer the questions as to why he is demanding the removal of Justice Bennett.

Bill Tieleman said...

I recently rejected an Anonymous comment regarding the former Speaker of the BC Legislature - allegations of impropriety are actionable and won't be published here.

If you have what might be controversial information, give citations I can check or else I will not post it.