Jeremy Bentham, English philosopher and jurist in the late 18th century:
“In the darkness of secrecy, sinister interest and evil in every shape have full swing… Publicity is the very soul of justice…It keeps the judge himself, while trying, under trial.”
The Right Honourable Beverley McLachlin, Chief Justice of Canada
“The open court principle is thus a fundamental element of the law of many countries including Canada. . . Openness signifies that the public and the press have free access to the courts of justice and are entitled to attend and observe any hearing. It signifies that court records and documents are available for public examination. The rule of openness entails that reasons for judgment are public and, therefore, subject to the scrutiny of the parties, the media, the bar, legal scholars and, ultimately, the populace. And, under the open courts principle, the public and the press may freely discuss and publish accounts of court proceedings, hearings, examinations and decisions.”
I sense sad irony in the fact that Associate Chief Justice Anne Mackenzie made her ruling on Basi/Virk evidence shortly after the death of Donald Brenner. British Columbia’s former Chief Justice was widely respected for his effort to make the justice system more responsive, accessible and cost-effective. His work has been dishonored by a former colleague.
Justice Mackenzie’s conduct in the Basi/Virk case is in conflict with the principles expressed repeatedly by Justice Brenner and Canada’s highest Judge. Justice McLachlin believes it is important for judges to be open and forthcoming to media and says the public is entitled to know who their judges are and how they arrive at their decisions.
Mackenzie made a ruling aimed at preventing public access and destroying documents that should play a vital role in the investigation of an important political scandal. Further, she conducted the Basi/Virk trial in a manner that ensured important and legitimate questions about public business may forever be unanswered. She spat in the face of principles elucidated by legal scholars and judges of higher standing.
MacKenzie gave privileges and limited access to court documents to a small, self-selected media group, guaranteeing that the “soul of justice” was impaired. She denied other journalists the same access and privileges. She operated under the outdated assumption that journalists are only those delegated by the largest media participants, without testing their ability or willingness to act in the interest of the broad public.
Justice MacKenzie allowed the prosecutors to serve as officers of government, not officers of the courts. She took political direction and accepted an extorted plea bargain that was in the interest of suspect conspirators and not of the public, to whom she owed higher duty. Additionally, the plea agreement relieved Basi and Virk of millions of dollars in liability to the public and gave them no-custody sentences substantially below those appropriate, according to established sentencing guidelines. By this plea issue alone, MacKenzie encourages citizens to suspect she participates in a legal cover-up by which the government purchased the silence of those who may have conspired with people in government to engage in illegal acts.
Additionally, she allowed charges to be dropped against prominent individuals who had proffered bribes to Basi while he was a government official. She accepted instead guilty pleas from corporations controlled by the defendants, leaving the bribers free of criminal records. This extraordinarily soft treatment was done without public explanation or published plea agreement.
Because she disrespects the open courts principle, MacKenzie serves the interests of British Columbia’s citizens badly.