Time to Demystify Canada's Judiciary
by Robin Mathews

Time to Demystify Canada’s Judiciary. Time to (re)Open Canada’s Courts.

Canada has long protected – by giving them a large measure of trust – a few special forces in our society. As long as they warranted the trust, the protection was well given. For Canadians have known that trust is the glue that holds difference together in democratic societies.

Canadians had trusted the RCMP, for instance, until recently when the brazen arrogance and privilege of some RCMP officers have broken the spell.

 

 

 

From Guiliano Zaccardelli (former head) in his expensive, collector boots, involved in the tragic torture fiasco of Maher Arar – and more -, to the astonishing shooting death of Ian Bush (and cover-up) in B.C., to the RCMP-involved, world-watched death of Robert Djiekanski in Vancouver International Airport (strangely misreported by the RCMP), the veils have not fallen but have been torn from the eyes of Canadians.

 

In that last case four RCMP officers tasered and physically subjected a man they had never laid eyes upon before in his first confused hours in Canada. Djiekanski died in their hands. Now the RCMP plans to visit Poland “to gather evidence on Mr. Djiekanski’s life that may be germane to an investigation by the RCMP Integrated Homicide Investigation Team” (Globe and Mail Jan.18 08 S2).

 

Does the RCMP think that even if they find evidence of quick-temperedness, easy anger, and on and on and on that it will make the slightest difference to their disastrous behaviour with Robert Djiekanski? Is the RCMP really going to send officers (on taxpayers’ money) to Poland in an attempt to throw sand in our eyes? Please.

It was Gary Mason, in the Globe and Mail, moreover, who studied Paul Kennedy’s (Chair, of the Commission for Public Complaints Against the RCMP) 86 page Report on the RCMP investigation of the RCMP shooting of Ian Bush. Mason described Kennedy’s approving Report (in gentle words) as not credible.

 

As I write, Tamara King (Globe and Mail, Jan 21 08 A9) reports a record number of perjury charges now being brought against police officers. James Morton, Toronto lawyer and adjunct professor at Osgoode Hall remarks revealingly:

 

• “It used to be that people just didn’t believe policemen would lie."

The Report of the Task Force on Governance and Culture Change in the RCMP (submitted in December) gives plenty of reason for the change in people’s attitude. The Task Force was set up by Stephen Harper, partly to prevent an investigation on the scale needed. Nonetheless, the Task Force found “there is a need to radically overhaul the way the RCMP is governed.”

 

It records “major problems with the discipline system, recruitment, performance evaluations, promotion and personal development.” And the Task Force didn’t even ask to hear from ordinary Canadians - the victims - often of a broken and decaying force.

The judiciary in Canada’s higher courts, sad to say, is travelling towards the condition of the RCMP. Given admirable discretionary powers, judges now sometimes abuse them. Permitted to withhold information on public record from the public in order to protect the innocent, they now frequently enforce irrational and unjust information bans denying information absolutely essential to the conduct of a free society.

 

Given positions of special trust, they sometimes turn them into positions of special privilege, making class-based decisions on behalf of wealth and power. Altogether too free of public examination, they sometimes form bastions of “class correctness” in which top positions are gained sometimes questionably and in ways that are far from democratic or open. Their “oversight” body, the Canadian Judicial Council, is a toothless tiger pressed into an operational space suitable for a small house kitten.

Consider the seemingly endless series of “hearings” purporting to lead to the trial of B.C. Gordon Campbell cabinet aides, Dave Basi, Bobby Virk, and Aneal Basi. Accusations against them arise out of the corrupt sale of BC Rail by the Gordon Campbell cabinet – involving the now-famous legislature search warrant “raids” of December 28, 2003.

Four things are striking about the court processes. (1) They never stop. They never get anywhere. (2) Increasingly, the Special Crown Prosecutor (appointed, effectively, by the Gordon Campbell cabinet), the government lawyer George Copley, the RCMP, and BC Rail seem – to some observers – to be acting very strangely, almost as if working to prevent justice from being done.

 

William Berardino, Special Crown Prosecutor, applied for in camera (secret) processes to hear testimony from a witness – without even Defence counsel present. Denied that request by Madam Justice Elizabeth Bennett, Berardino will drag the request through the B.C. Court of Appeal.

Making a tattered claim of “special privilege” concerning some cabinet documents wanted by the Defence counsel, George Copley evoked a question by Vancouver Province columnist Michael Smyth: “don’t the people of B.C. deserve to know the whole truth after their own house of democracy was raided by the police?” (Province Jan 20 08 A4) Apparently not.

If refused his claim for special privilege, will George Copley, like William Berardino, head to the B.C. Court of Appeal? (Remember that both lawyers have access to bottomless pockets perpetually filled by B.C. taxpayers.)

Smyth asks the question about what the B.C. people deserve, and he continues by saying Defence “lawyers suggest [the accused] were just following orders from their bosses in Victoria”. If that is true, of course, a lot more (and highly placed) people should be in the dock with Basi, Virk, and Basi. “It is easy to imagine,” Smyth writes, “why the government wants to keep the lid screwed down tight on this particular can of worms”.

(3) Following that, it is easy to imagine the avalanche of “disclosure” material dumped on the Defence may be part of keeping “the lid screwed down tight on this particular can of worms.” Defence has commented that it now has more pages of material than the nationally famous Air India case.

(4) Key to the movement of the court processes is, of course, Madam Justice Elizabeth Bennett. So far … so far, she has the confidence of the journalists from the monopoly corporate press. Recently she was described warmly by the Globe and Mail’s Norman Spector. Michael Smyth tells his readers that there is “hope for the truth … in the person of Justice Elizabeth Bennett.
The 'public interest in having this case heard outweighs just about everything else,’ she has said.”

Smyth doesn’t report that Madam Justice Elizabeth Bennett made that statement a long time ago. Nor does he report she has denied documents on public record (to the public) as an almost unbroken rule. She has closed the court (unnecessarily I believe) to argument for and against in camera (secret) testimony being permitted. She has failed, I believe, to demand expeditious delivery of materials from the Special Crown Prosecutor, the RCMP, and others. She has failed to require “rules of relevance” so that Defence can protest when it believes materials have been delivered, not relevantly but dumped on Defence like garbage. Finally, she has never hinted that what looks to some observers like intended obstruction will be disciplined if it does not cease. She has very large discretionary power which she has not used, I believe, to move the processes speedily, efficiently, and fairly ahead.

All that makes me look again at her statement quoted by Michael Smyth. “The public interest in having this case heard outweighs just about everything else.” Are we getting closer and closer to adding “except the wishes of the Gordon Campbell cabinet”?

Madam Justice Elizabeth Bennett is not in an enviable position. The Supreme Court of British Columbia of which she is a part is not held, universally, in high esteem. The criminal Practice Direction protocols set out by Associate Chief Justice Patrick Dohm – as I see them – deny the fundamental principle of open courts, and appear as if they are intended to do so. The selection of top judges needs serious restructuring to bring the ablest and most effective people forward. Lawyers will whisper about that need, but – having to appear before the judges – they don’t usually trumpet the message.

Conflict of interest, I believe, is a permanent resident in the B.C. Supreme Court because Wally Oppal, judge for many years, stepped away from the court and his close colleagues there to become the highly political Attorney General in Gordon Campbell’s government. In the action before Chief Justice Donald Brenner between the town of Kitimat and the combined forces of Alcan and the B.C. government, just for instance, Wally Oppal was a named respondent. Donald Brenner was a long time colleague of Oppal.

I believe the decision of Brenner on the case is questionable. I believe the statement by the Canadian Judicial Council in response to the complaint in that matter on the basis of conflict of interest is equally questionable. I have a perfect right to believe those things because Wally Oppal should never have been permitted to leave the B.C. higher courts and take the highly political position of Attorney General – a position closely connected to the operation of the B.C. higher courts filled with his former, long-time colleagues.

Where do we go to have all of those and such like matters widely, thoroughly, and publicly debated and examined. We go nowhere. And because there is nowhere to go, the Supreme Court of British Columbia (and some other Supreme Courts in Canada) will face growing problems of credibility.

Madam Justice Elizabeth Bennett is a part of those problems or she is a victim of them. Whichever is the case, she can’t escape involvement.

The time has come to demystify the judges of Canada’s Supreme Courts, to make them much more responsive to the sense of justice possessed by the larger population. Indeed, the time may be upon us when Chief Justices should be ordinary, responsible citizens never before connected to the Supreme Court, acting in rotating five year terms. In that way, the public sense of justice would be injected into the court operation and administrative decisions. And – for instance – if a Patrick Dohm attempted to close off matters on public record to the public, the Chief Justice would say something like “that might help your friends Patrick, but it doesn’t assist the pursuit of justice. So lay off.”

If you say that ordinary intelligent Canadians can’t understand the reasons for law and legal decision making, you are surrendering to the mystification. When I ask to see sworn affidavits of police officers sought by the Crown and filed with the court and I am refused access to them, I am not fooled. I know there is a charmed circle, a club, that wants to hold power over the information that should be available to any Canadian. And I have every right to suspect that I am being kept from seeing those affidavits because someone or some people are being especially protected from public surveillance by the very people who are supposed to be the insurers of the just administration of the legal system.

We do not have a “justice system” because it is impossible to systematize justice. We have a legal system which faultily fumbles towards justice. And until we re-think and re-structure our Supreme Courts, re-introducing genuine openness, introduce on-going checks and balances and publicly open reviews of judicial behaviour we will have murky and depressing and intolerable processes like the one that is presently being conducted as a result of the corrupt sale of BC Rail by the B.C. Gordon Campbell cabinet. And we will have an ever-enlarging public that – with perfect legitimacy – suspects the Courts are the playthings of the wealthy and the morally dubious.

 

“With perfect legitimacy” because if information on public record is kept from the public, suspicion is ignited. If court processes are increasingly shut away from the public which, in principle, they are intended to serve, suspicion is ignited. And if the processes of the legal system are used as obstructive instruments, the public will finally say “Enough!” and pull the system down.