The Honourable Mr. Justice Romilly has been appointed as the case management judge. Lawyers for the plaintiffs and the defendants have appeared before him on December 10, 2004 and February 17, 2005 to discuss procedural issues relating to the plaintiffs’ application to have the proceeding certified as a class action.

The Court has directed that a preliminary legal relating to the constitutionality of the Vancouver Jail’s strip search policy be addressed before the certification hearing itself. Lawyers for both sides are scheduling a date for the hearing of that issue, expected to take place before the summer.

Is a tuition fee increase from $7,000 to $28,000 an “adjustment”? That question may be considered by the Court of Appeal later this year.

Six MBA students from the University of British Columbia have filed an appeal from a decision of the Supreme Court of British Columbia dismissing their case against UBC. The students allege that the university had breached a contract when it quadrupled MBA tuition fees from $7,000 to $28,000 after they had accepted offers of admission indicating that tuition fees would be the lower amount. The university maintains, and the lower court found, that fine print in the offer enabled UBC to raise fees to any level it chose, even after the students had accepted the offers and sent in their non-refundable deposits. The contractual clause reads: “Fees for the year are subject to adjustment and the University reserves the right to change fees without notice.”

It may take some time before the students’ case will be argued, however. Lawyers for UBC have filed a motion asking the Court of Appeal to stay the appeal until the students post about ten thousand dollars in security for the University’s costs. (UBC has an annual budget of about $2.1 billion). That motion is scheduled to be heard at 9:30 a.m. on Wednesday, February 9, 2005 in Vancouver. A date for the hearing of the appeal on its merits will be set later.

Read the decision of the B.C. Supreme Court under appeal

The Court of Appeal has allowed the appeal of a homeless man from the granting of an interlocutory injunction that resulted in the arrest and imprisonment of 48 people who had been squatting in the abandoned Woodward’s building in Vancouver in the fall of 2003. The decision recognises that procedural rights must be afforded persons who are targeted by legal proceedings.

The Court also allowed the appeal of Provincial Rental Housing Corp., a Crown corporation that owned the building, from an order requiring it to pay $100 in court costs to each of the unrepresented persons who were arrested and later brought before the lower court.

Finally, in a separate decision, the Court of Appeal dismissed the appeal of other homeless people who had alleged procedural irregularities in the granting of the City of Vancouver’s application for a second interlocutory injunction.

The decision of the Court of Appeal to set aside the injunction is significant, in that the Court of Appeal acknowledged the importance of free expression and dissent and sharply criticised the manner in which the lower court enjoined the homeless people’s protest.

Injunctions, and the court’s power to punish for contempt if injunctions are disobeyed, are strong weapons that are often brought to bear on demonstrators in British Columbia. Examples of this practice, which some feel is draconian, are the Clayoquot Sound demonstrations, where some 900 people were jailed, and the case of Betty Krawczyk, the elderly activist who spent about 9 months in a jail cell after symbolically sitting on a public logging road and refusing to move. Her conviction for contempt of court is under appeal.

Read the recent Court of Appeal decisions:

2005 BCCA 36 Provincial Rental Housing Corporation v. Hall

2005 BCCA 37 Vancouver (City) v. Maurice

On Friday, January 21, 2005, Vancouver Police Chief Constable Graham arranged a news conference to discuss the adjudicator’s decision in the Police Complaint Commission Public Hearing in respect of Constable David Bruce-Thomas. The adjudicator determined that Cst. Bruce-Thomas did not use excessive force when he fatally injured Jeff Berg during an arrest on October 22, 2000. The complainant, Jeff Berg’s sister Julie Berg, is considering an appeal.

Some aspects of Graham’s diatribe are offensive, in that he publicly attacked the deceased victim, his sister and her lawyer. I find his conduct disappointing and do not propose to descend to that level.

However, some incontrovertible facts are worth pointing out:

The VPD internal investigation that purported to gather some of the evidence presented to the adjudicator was overseen by Inspector Rob Rothwell. On December 19, 2002 (two years and two months after Jeff Berg’s death), Insp. Rothwell advised Ms. Berg that “no further action is warranted”. Insp. Rothwell and Cst. Bruce-Thomas are not only long time VPD colleagues, they have raced together on the VPD’s “Pacer” racing team.

Jeff Berg was with three acquaintances the night he was fatally injured. None of the three were tried or convicted of a “home invasion” or any other criminal offence arising from the events that immediately preceded their arrests.

Jeff Berg had no criminal record, was unarmed and had no drugs or alcohol in his system when he was fatally injured.

Much has been made of a “replica handgun”. Jeff Berg had no weapons on him, replica or otherwise. A plastic toy gun, in several pieces, was located in the neighborhood. Sworn police testimony at the coroner’s inquest into Jeff Berg’s death confirmed that it had no connection to the incident.

If there was a “scuffle” between Jeff Berg and Cst. Bruce-Thomas, only Berg sustained injuries, including at least ten separate injuries to his face, head and neck. According to eyewitnesses and the pathologist, several of these were kicks inflicted while he was lying on the ground. Cst. Bruce-Thomas was completely uninjured.

As between Jeff Berg and Cst. Bruce-Thomas, only Cst. Bruce-Thomas had a documented record of violence as of October 22, 2000, having been found guilty of abusing his authority in assaulting an innocent woman in an alley a few years before. She also successfully sued him for damages for assault and battery. On December 18, 2000 (less than two months after after Jeff Berg died) Cst. Bruce-Thomas asked his Chief Constable to expunge the abuse of authority conviction from his disciplinary record. After a recommendation from the VPD’s Internal Investigation Section, then Chief Constable Blythe did so, on January 30, 2001.

Chief Graham has resorted to the time-honoured tactic of blaming the victim. Whatever Jeff Berg may or may not have done before he was killed (and I have yet to see admissible evidence that he was a “criminal” as Chief Graham has alleged) the question was whether Cst. Bruce-Thomas abused his authority in the way he performed the arrest. The adjudicator found he did not. Chief Graham also blamed Julie Berg for a four year “campaign” against Cst. Bruce-THomas. Much of this time period was due to investigative foot-dragging and inadequate work by the VPD investigators. One can hardly fault the dead man’s family for seeking answers, answers that were extraordinarily slow in coming through no fault of their own.

British Columbia’s system for processing complaints about municipal police officers is seriously flawed and needs to be reformed if it is to have any effectiveness. That is the gist of a letter we have sent to the province’s Premier, Solicitor General, Police Complaint Commissioner and others.

After giving the new system some six years to iron out its kinks, we have reluctantly concluded that, from the point of view of civilian complainants, it is simply not working. We have found fundamental flaws at each stage of the process.

After a complaint is lodged, it is investigated by police themselves, who often take over a year to reach the conclusion that the complaint is “unsubstantiated”. The investigative report is then delivered to the Police Complaint Commissioner and the Chief Constable of the police force involved, but kept secret from the complainant and the public. In the few cases where a public hearing is ordered, the complainant faces a completely one-sided and unfair hearing process. The complainant must deal with a battery of publicly funded lawyers representing the police interests and the Police Complaint Commission. No legal aid funding of any kind is available to the complainant, who is effectively excluded from participating as a result.

Effective civilian oversight is essential in any society that wants to ensure that police do not abuse their substantial powers. That oversight must be patently independent, transparent and effective. Right now, it has none of those attributes.

Read our letter to the Premier