“In its majestic equality the law forbids rich and poor alike to sleep under bridges, beg in the streets or steal a loaf of bread.”
Anatole France – 1894
Justice Anne Mackenzie had a meeting with Dave Basi today. Conditions of the convict’s house arrest were under review but a publication ban prevents release of information. Despite the ban, Neal Hall of the Vancouver Sun says that Basi’s conditions were tightened and the court will consider use of electronic monitoring. According to the Globe and Mail, Basi remains able to go out for work, exercise and grocery shopping. Apparently, he is also able to leave the house with immediate family members and for medical and religious reasons.
Justice Mackenzie leaves us in the dark on details of the offense(s) but CBC reported that house arrest terms may have been broken by TV interviews involving Basi. One was given on the street in downtown Victoria and another while Basi was in Bobby Virk’s house. Perhaps, he and Virk were exercising together and the TV cameras happened along during a rest break. Clearly, courts prefer that prisoners stay out of spotlights while on house arrest, even if conditions allow generous absences. Sentencing judges are embarrassed when culprits demonstrate so little regard for sanctions imposed.
Both the appointment process and performed work of Special Prosecutors have been questionable before but many lawyers are shocked at lax terms of the Basi/Virk and Young/Duncan/Shambrooke plea agreements. They are bewildered that a Supreme Court judge agreed to a settlement so evidently motivated by political considerations. That Basi was hauled into court days after sentencing suggests the judicial system is sensitive to the controversy and they ensured news of Basi’s court appearance was broadcast widely. That is ironic considering the court administration’s previous efforts to shield the case from public view through unpublished schedules and the like.
The public has been clear in expressing disapproval but so have many in the profession. Not only is the Supreme Court held up to public contempt in this case but the whole justice system faces growing cynicism. We heard conflicting explanation for the plea deals from the crown but the AG and staff should not have been skating. By tradition, that is one department of government that must be independent of politics. They failed that test badly and, by doing so, exacerbated public irritation. Under an outdated practice, the persons most involved, Special Prosecutor, defense lawyers and Justice Mackenzie, are not talking.
This ignores advice from Supreme Court of Canada Chief Justice Beverly McLachlin. She talks repeatedly about the need for accountability:
Judges are accountable. They are accountable to the Canadian public . . . For at the heart of the concern about accountability is the belief that in healthy democracies, power should not go uncontrolled. It must be responsible to and responsive to the community. . . .the judiciary, are expected to carry out their roles and responsibilities with integrity and efficiency, in the service of the public. They are expected to be accountable.
. . . Time was – not too long ago – judges were universally held in high esteem. And they were comfortable – dare I add – with their status.
. . . any notion that judges are above scrutiny has lost currency.
For the individual judge – looking at the matter in its most simple terms – accountability should encourage good decision making. A good decision is one that is just, according to law. The methods by which decisions are made must be seen to be transparent and fair. The decision maker must be seen to be independent and impartial.
Despite what Chief Justice McLachlan opines, in the absence of moral failure, judges of Canada’s Superior Courts are really only accountable to other judges, when decisions are reviewed by Appeal Courts, and then only on application of the crown or defense lawyers. In the cases under discussion here, no application will go forward. If both sides are party to error, the wrongdoing is unlikely ever to be corrected.
For the reasons expressed here, the Supreme Court of British Columbia needs to explain its performance in the Basi Virk situation. Justice Mackenzie could explain:
- Why Justice Dohm interfered with Justice Bennett’s initial conduct of the case;
- Why the Premiers’ staff member Ken Dobell was given access to sensitive documents without appropriate authority or pledge of confidentiality;
- Why the provincial government was allowed to break the law on document destruction, without sanction;
- Why the Judge did not ask RCMP to investigate possible obstruction of justice regarding disappearance of potential evidence;
- Why Anneal Basi was granted a stay as part of the other defendents’ plea bargain. If the case against him was unwarranted, why was he not released previously in the past seven years?
- Why was no statement of facts entered into the court record with respect to bribery charges against the Vancouver Island development company;
- Why individuals who gave bribes were allowed immunity or had charges dropped.