One of the B.C. Supreme Court’s top judges reserved judgment May 27 on whether to quash one of the charges against the disgraced former Clerk of the B.C. Legislature.
Associate Chief Justice Heather Holmes is considering an application from Craig James’s lawyers who want her to drop the first of six counts against their client. Gavin Cameron and Kevin Westell argued count 1 of the Dec. 17, 2020 indictment is too broad and opens up James to being convicted twice for the same offence.
That count specifically says that James, during his career as Clerk from Sept. 10, 2011 and Nov. 21, 2018 “committed breach of trust in connection with the duties of his office by using his position to advance his own personal interests over the public good” contrary to the Criminal Code.
James faces four counts of breach of trust by a public officer and two counts of fraud over $5,000. Counts 2 through 6 on the indictment deal with shorter time periods and allege specific acts were illegal, such as James’s purchase of a wood splitter, his travel expense claims and the crafting of a $258,000 pseudo-pension for himself.
Special prosecutor Brock Martland told Holmes that count 1 is necessary to the case, to span the entirety of James’s career and alleged wrongdoing.
“The Crown should be entitled to not only have the close-up, zoom-in shot, but have the broad panoramic shot, to be able to say the cumulative effects of a body, of a pattern of conduct, of a pattern of evidence,” Martland told Holmes.
Holmes halted submissions numerous times to question lawyers for both sides. Though, she had more questions for Martland. She wondered how keeping count 1 would affect the admissibility of evidence on the other five counts. She also wondered how she would instruct the jury at the end of the trial, should James maintain his election for a trial by judge and jury.
“How can count 1 possibly allow for a broader range of evidence be admitted than counts 2 through 6 do?” she said. “If it does, think about this, would that evidence be admissible only in relation to count 1 or rather in relation to all the counts? And then, take it a step further, if the answer is well, it would be admissible only in relation to count 1, but not in relation to the other counts, wouldn’t that allow for a situation where a jury or a judge could convict on count 1 and acquit on all the other counts?”
Cameron told the court that count 1 goes beyond strange to being “fundamentally wrong and contrary to principle.” He worried James would not get a fair trial and said there is greater stigma in being found guilty twice, rather than once, “particularly given the notoriety of this matter.”
“When there is no authority in the Crown’s ledger, and the Crown is reduced to saying ‘we have discretion and it’s rare to quash an indictment’ as being the only arguments in their favour, the answer must be plain. The [defence] application ought to be allowed.”
The trial is tentatively set for the first quarter of 2022, though the venue and dates have not been formally reserved.
James and Sergeant-at-Arms Gary Lenz were immediately suspended and escorted out of the Legislature on Nov. 20, 2018. On that day, British Columbians learned that Speaker Darryl Plecas had called the RCMP after he and his Chief of Staff Alan Mullen found corruption in the offices of the two most-senior permanent officers at the seat of government.
Plecas, who was speaker from 2017 to 2020, released details and evidence of the spending scandal in early 2019.
No charges were announced for Lenz on Dec. 18, but the investigation continues.
Almost two weeks before the May 27 hearing, Martland and Cameron were adversaries in another forum: the Cullen Commission on money laundering in B.C.
Commission counsel Martland questioned Cameron client and former BC Liberal Deputy Premier Rich Coleman under oath during the final day of witnesses on May 14.
Holmes, meanwhile, was presiding over the James case on the first anniversary the most-famous ruling of her career: to proceed with the extradition case against Huawei executive Meng Wanzhou.
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