Wednesday, June 23, 2010

Stamping Out A Potential RailGate Tampdown?



Things have gone from weird to truly bizarre.

Keith Fraser in The Province is reporting that two RailGate jurors were approached by the father of one of the prosecutors at a skytrain station and, as a result, the judge has gone out of her way to assure the entire jury that it was not anyone associated with the defense and that it will not happen again:

....Two jurors in the Basi-Virk trial were approached outside court and spoken to by the father of one of the prosecutors in the case, but the trial judge assured the jury Wednesday that it won't happen again.

The trial had been delayed Tuesday for submissions in the absence of the jury, submissions that cannot be reported on due to a publication ban imposed by B.C. Supreme Court Associate Chief Justice Anne MacKenzie.

Submissions continued on Wednesday and then the judge addressed the 12-member jury about the incident which occurred near the Patterson SkyTrain station last Wednesday, June 16.

MacKenzie didn't say what the man said to the jurors, making it clear that it was the dad of one of the three prosecutors and not anyone connected in any way with the three accused on trial.

"Such an incident won't happen again," the judge told the jury. "You are not to draw any negative inference from this."

Perhaps bizarre was too mild a descriptor.

Because, especially if it turns out that there was any 'intent' involved whatsoever, it borders on the truly unbelievable.

And, again......

According to the judge this had nothing whatsoever to do with the defense, which is also being confirmed by Citizen J. from Courtroom 54 over at Mary's who also makes the excellent point that there would be heckfire to pay if, say, a blogger were to approach any member of the jury while the trial was going on.

According to Mr. Fraser it was the jurors themselves that brought this up with the sheriff (ie. it was NOT the prosecution that brought it to the court's attention).
And, finally, the jury has been given the rest of the day off......So.....No reportable testimony today either....Which means it's pretty well another week shot.....Sheesh.



G West said...

And exactly how, Madame Justice MacKenzie, can you assure ANYONE that this '...won't happen again'?

This seems the height of arrogance and foolishness. This trial and its preliminary hearings - including a change in the judge hearing the case AND the move from judge alone to judge and jury as well as references to both the court of appeal and the Supreme Court of Canada - has been one long string of incidents that shouldn't have happered.

The facile suggestion that the current incident of family misbehavior will be the LAST is risible!

Grant G said...

Ross K...Riddle me this...How did the father know who the jurors were unless the father of the prosecutor has been attending court and physically recognized the jurors?

And or vise versa, the jurors would only know who the father of the prosecutor was if he was attending court.....

But from the little teaser you gave Ross, it was the former, the father knew who they were, the "father approached"

Curiouser and curiouser...Were they setting up a potential MISTRIAL...MISTRIAL...MISTRIAL.

Me thinks so!

Grant G said...

And further to my last post...

Prosecutors aren`t first year law students, they are seasoned lawyers that become prosecutors, are you trying to me that that the father of a seasoned lawyer/prosecutor DIDN`T KNOW BETTER!

I surmise Ross...The jurors spoke up....

If the jurors didn`t speak up, and this was brought up later, if the defense found out about it....

If you were on trial Ross K..And you found out the father of the person prosecuting you was talking outside of court to the jurors would you not ask your lawyer to have it thrown out! MISTRIAL...

And...The fact that it was the "prosecutors father"(father)Key in on the word father! ...No REAL BLAME could be attatched to the crown for the mistrial...

What if the jurors never mentioned but it was leaked later...

Sorry folks, time to start over with a fresh jury!

Eyes Wide Open

RossK said...

GW and GG--

I must confess.....This one has me completely flumoxed.

Even more so given that it wasn't the SP who told the judge based on the fact that, I can only presume, the jurors must have taken umbrage which, one would expect, likely would have alerted the father to tell his child what happened, especially given all that the judge has done to attempt to shield the jurors from contamination....

Instead, it had to come from the jurors themselves.

I can hardly even begin to fathom what is going on here. And why were there no consequences for the member of the prosecution team involved?

Imagine, if you will, what the judge would have done if, even inadvertenly, one of the defendent's fathers had approached members of he jury and the judge got wind of it?


cfvua said...

Ross, I'd go with "Instead"

North Van's Grumps said...

"Sheesh" is exactly what a Defense lawyer said, outside of the court room, of course.

The defense team just wants to get on with the trial, you can just sense it.

paul said...

Very bizarre.
Justice Anne MacKenzie needs to rethink the sweeping publication ban. Protecting the rights of the accused must be the priority.
But surely MacKenzie can give the public statements about the issues before the courts or reasons for delays. Public confidence in the justice system is at stake.

RossK said...

I hear you cfvua


Point taken Paul.

Ian said...

Judge MacKenzie spoke to all teh jurors about this incident and I believe the ban is therefore not in place as the jurors are fully aware of the incident and its conclusion and implications.

What I find more interesting is that the gentleman in question has attended regularly, in fact almost daily, for several years. Since the start of the actual trial he generally sits directly behind the defendants box, which is a nasty place to hear the substance of the trial as the glass blocks sound from the front.

I often sat behind him but have adjusted my seating since the start of the trial because I want to hear the very low voices at work.

From his position you can hear one group quite clearly: the conversations of the three defendants. How about that?

Now the gentleman has given his assurances that he will no longer attend. We'll see if someone takes up his place.

I'm having trouble spotting the PAB guy, who I spotted and identified in the pre-trial... He walked away one day in front of me and into the government offices at 888 Hornby. Bingo. Alas Stuart is no more.

I'm sure it will come to me, even if I have to follow all the folks there. There is a student attending on behalf of the SP but usually in a place that allows him to observe the jury.

It's a snakepit in there RossK!

Oh and Brown won't make it back this week. Last Thursday you'll recall that the SP objected to a line of questioning regarding the relationship between RCMP Team Commander Kevin Debruyckere and BC Liberal Party Executive Director Kelly Reichert.

The jury left the room following that objection and has not returned. The substance of the matter before the court now is covered by the publication ban. Like the rest of the trial it sure is interesting.

RossK said...

And sorry - didn't mean to infer a father/child relationship....Should have said father/grown-up, experienced lawyer, daughter or son relationship.

Which reminds me....Would this be a good time, now that he has been cleared of any impropriety by the Law Society, to once again bring up the fact that while the head SP, Mr. Berardino, is an extremely experienced trial lawyer, he is not, by all accounts, an extremely experienced criminal trial lawyer.

Which has me wondering, all over again, why he was appointed the SP by his former law partners, former Deputy AG Allan Seckel (now Deputy Minister to the Premier) and former AG Geoff Plant, for such a complicated criminal case in the first place?


RossK said...


Are you saying that this particular regular attendee was essentially, for all intents and purposes, 'banished' from the courtroom after admitting to contacting the jurors outside the courtroom?

And did this request to no longer attend the proceedings come from the judge?

If this is, indeed, the case on both counts, I think that any reasonable person could easily come to the conclusion that there was, indeed, concerns about 'intent' in the judge's mind.

And if that is all true, should we too not be concerned that there really distinct possibility of a mistrial with the currently constituted jury? I mean, how many strikes does the prosecution get before the defense is able to make a credible case that the jury's objectivity has been compromised, not by the media but by the actions of the prosecution itself (ie. by being completely unrealistic about the trial's timeline originally) or it's associates (ie. a close relative who has willfully approached members of the jury outside the courtroom when he must have known that those jurors had been instructed not to discuss matters related to the case outside that courtroom)?


Grant G said...

Exactly Ross....

Ian said...

I have to clarify. The Judge told the jury the incident would not be repeated. The judge attributed no intent on the part of the individual.

solocanoe said...

We need to know what was said to the jurors I think. Does the defense know?

If so why not the public. If not I would demand to know if I were the defense.

And I want to know as the public too!

It should be a point of law for the defense to be able to question the jurors.

RossK said...

Thanks for the clarification Ian.


slocanoe - sorry, I don't know enough about the law to give an informed acomment..... Is there precedent for such a course of action in (admittedly bizarre) situations such as this?


lynx said...

"From his position you can hear one group quite clearly: the conversations of the three defendants. How about that?"

Wow.....thanks for that, Ian.

RossK said...

Skookum1's Comment (editted slightly)

The judge attributed no intent on the part of the individual.

Well, it's not like he was offering them ice cream, was it? If the judge can't or won't attribute intent, that leaves it all wide open not just to speculation but to logic. What intent could he have in talking to people he knew were jurors? I mean, it's not that difficult of a question to answer, and I'm boggled that the judge would be so disingenuous about it.

It's interesting how the news reports - and all of us - are not using his name (Mr. XXXXXXX, isn't it?). And, other than the interesting observation that he appears to have been posted (by whom?) to sit within earshot of the defendants, who is he? Is he a lawyer? A janitor? A retired shoe salesman?

I don't know about a mistrial - and kudos to the jurors for shrugging him off, and for telling the sheriff - but I do wonder about contempt charges for this guy. "It will not happen again" and he has been "banished" just don't cut it. Punishment is in order, and the nature of any discussions he has had with his offspring about what he's heard while sitting behind the defendants would seem to be of import.

This is getting interesting enough I may actually return from Nova Scotia just so I can sit in the courtroom throughout; I have eidetic memory so perhaps I could function as Robin's "tape recorder".

I'm curious about the publication ban....does it include unwritten conversations made, say at a Starbucks within earshot of the public, or to private dinner conversations held between, say, a prosecutor and her father? Can people who were jointly in the courtroom when the jury was absent discuss what they've heard with each other, or is ordinary speech also banned?

But to the core point - has the prosecutor in question broken the publication ban and crown confidentiality by discussing the case with her father?

As with destroyed evidence, there's enough here to suggest the need for a criminal investigation for tampering, but the RCMP of course aren't interested in anyone other than who they've already targeted. How ironic all this has come up during a discussion of the relationship between the Horsemen and the BC Liberals....

SiteOwner's Note: Hope you don't mind Skookum, but I 'X'ed out the name you originally had inserted above....The reason being that we're pretty sure of the person's surname, but we're not absolutely sure and I wouldn't want to improperly impune anyone as that would be something ruthless 'media monitors' might do - but not us.


lynx said...

Just thinking.... and I freely admit I don't like this growing cynicism of mine... I'll blame it on years of following this case. ;-)

I, too, like Grant G, wonder about a scripted mistrial:

As Grant G. notes:

"And...The fact that it was the "prosecutors father"(father)Key in on the word father! ...No REAL BLAME could be attatched to the crown for the mistrial..."

And once again it involves "two jurors"... and I would just like to know if it is the same two jurors who needed time to decide if they would remain as part of the jury.

I realize they reported this info to the judge and part of me says "good on you"... and part of me cynically, and perhaps unfairly, wonders if this theater of the absurd, ("Staged" 54) requires actors on all sides.

How many "events" before a convenient mistrial comes into play?

lynx said...

There is this one bit of information about this strange incident involving two members of the jury that I haven't read about anywhere else - it's from Neal Hall (credit due where credit due, I guess)...

It's a subtle bit of information but worth considering:

Hall writes:

"There was no mention of what the prosecutor's father said to the jurors, but the judge told the jury that it has already heard those details from the two jurors.

The comment suggested the jury had discussed the matter in the jury room.

MacKenzie informed the jury that she had called the two jurors into court separately on Wednesday and asked some questions about the incident.

The two jurors did the correct thing by advising a sheriff about the incident, which was then brought to the judge's attention, the judge added."

As Hall notes, the comment "suggested the jury had discussed the matter in the jury room"...and that the jury knows the details of what the prosecutor's father said.

Whether this discussion took place before or after they reported the incident is not made clear.