Meanwhile I, as a lawyer, feel sick. I kid you not, when I received the news I felt a wave of nausea.
Before going further, it’s not uncommon to “cop a plea”. It’s a gamble the Crown and defense play when the Crown isn't sure it can make the charges stick, and the defence, knowing full well that they’re guilty as hell, want to make the best of it. BUT, copping a plea usually comes at or near the beginning of the trial, not after years have passed and millions have been spent.
What then could the Crown have been thinking? What motivated this bizarre, quick ending?
I don’t know the answer, but this much is true: the appointment of Mr. Berardino in the first place has been criticized as putting him in at the very least a perception of conflict of interest. This calls into question the confidence the public has in the ability of the assistant deputy minister of the Criminal Law Division to appoint Crown Counsel without any outside interference. It's not that I don't trust the assistant deputy - it's his boss and his boss's boss I don't trust to behave properly.
He’s Crown Counsel selected under the Crown Counsel Act, used when the accused is high profile and it’s desirable that there be no question of the Crown Counsel being in any way compromised. Here’s what the Criminal Justice Branch of the Ministry of Attorney General says “The Criminal Justice Branch operates independently of government and within the justice system. They do not represent the government, the police or the victim of an offence.” (My emphasis)
The reality of it is that Mr. Berardino, whether he knows it himself, was acting for the government in the sense that the government had a huge interest in the outcome. That interest was not as a bystander wondering if Basi and Virk would be convicted but whether or not the evidence pointed to wrongdoing by the government, any of its ministers, even the premier. Surely no one not having just arrived from Mars would doubt that this trial was the political trial of all political trials. Assuming that Mr. Berardino knew this, surely it’s fair to question his judgment in taking the case in the first place.
(I digress to make this point. Lawyers are fond of saying that their code of independence is such that even in a case where conflict appears, they can be counted upon to be the very soul of impartiality. If that’s so, why did we need a Crown Counsel Act in the first place?)
I cast and intend no inferences – I have no evidence that Mr Berardino has ever felt any pressure by the government, make no such allegations, nor ask that any adverse inferences be drawn.
What I do say is that it looks like hell and the “appearance”, the “perception” is awful. Surely common sense would say that since Mr. Berardino acts for the Crown and is paid by the government regularly, he cannot be counsel when that same government has a massive interest in the outcome in the outcome of the case.
Let’s pause for a moment. It’s important to note that the “Crown” and the “government” are not the same thing. In the old legal saw, “the Crown neither wins nor loses – it simply places the evidence fairly before the court.” The question is not whether or not Mr. Berardino should have acted for the Crown but should he have acted where the evidence might embarrass the Crown’s agent, the provincial government?
The law is abundantly clear on the test to be applied: here is the oft cited aphorism of Lord Hewart from Rex v. Sussex Justices; Ex parte McCarthy:
“... it is not merely of some importance but is of fundamental importance, that justice should not only be done, but should manifestly and undoubtedly be seen to be done.” (Emphasis mine)
As a consequence of this “deal” these things have happened:
- Basi and Virk, on very serious cases which one would think should have brought serious consequences, plead guilty as charged but all but get off scot free.
- Gary Collins, then Minister in charge of the “lease” of BC Rail to CN, does not have to give evidence
- Gordon Campbell will not have to testify which, considering his difficulty with the truth in other matters, avoids what for him might take considerable exertion
- A case bringing more and more uncomfortable evidence by the day for the Campbell government is suddenly over
- What really happened in this matter can only be speculated upon
I leave it with you, the citizens of British Columbia - was the settled test as enunciated by Lord Justice Hewitt, namely, “justice should not only be done, but should manifestly and undoubtedly be seen to be done” met in this case?
I doubt that even the 9% of the public that supports Mr. Campbell would think that it was.
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