(b) The daims concerning the alleged mistrial
9. Mr. Pinkney alleges that prior to his arrest in
May 1976, he had spent over three months in Vancouver
compiling specific information on aheged smugghng ac
tivities of certain East Indian Asian immigrants in
Canada, involving smuggling out of Africa into Europe,
Canada and the United States, with the complicity of
Canadian Immigration officials. He maintains that he
was doing this work on behalf of the Governing Central
Committee of the Black National Independence Party
(BNIP) with a view to putting an end to these illegal ac
tivities, which he contends were to the detriment of the
economy of African countries. The author further in
dicates that, during the period prior to his arrest, he had
managed to establish contact with a relative of the per
sons involved in the smuggling of diamonds and large
sums of money from Kenya, Tanzania, Uganda and
Zaire into Canada. He states that the relative revealed to
him many details about these smuggling activities, that
he recorded this information on tape, that he made
copies of the letters showing dates and amounts of
transactions, names of people involved and other details
and that he placed this material in a brief-case kept in a
24-hour public locker. He asserts that in one of the let
ters which was copied reference was made to a gift in
cash to certain Canadian immigration officers for their
assistance and also to the necessity to pay more money
to a BOAC airline pilot for his help. The author main
tains that he periodically informed by telephone the
Central Committee of the BNIP and a security official
at the Kenyan Embassy in Washington of his investiga
tion and that he recorded these conversations and
placed the tapes in the brief-case. The author maintains
that after he was arrested, in May 1976, the brief-case
was discovered and confiscated by the police and that
the material necessary for his defence mysteriously
disappeared before his trial. He alleges that these facts
were ignored by the trial court, that he was accused of
having used the information in his possession with a
view to obtaining money from the persons allegedly
responsible for the smuggling, that evidence that he had
no intention of committing extortion was deliberately
withheld, and that he was convicted on the basis of
evidence which had been tampered with and distorted
but which was nevertheless presented by the police and
crown attorney.
10. From the information submitted to the Commit
tee it appears that Mr. Pinkney was convicted by the
County Court of British Columbia on a charge of extor
tion on 9 December 1976. The sentence of five years'
imprisonment was pronounced on 7 January 1977. On
8 February 1977, he sought leave to appeal against his
conviction and his sentence to the British Columbia
Court of Appeal. He argued that he had not been able
to make full answer and defence to the charge of extor
tion before the trial court because of alleged inability of
the authorities to produce the missing brief-case. His
appeal, however, was not heard until 34 months later.
This delay, which the Government of British Columbia
described as "unusual and unsatisfactory", was due to
the fact that the trial transcripts were not produced until
June 1979. Mr. Pinkney aheges that the delay in the
hearing, due to the lack of the trial transcripts, was a
deliberate attempt by the State party to block the exer
cise of his right of appeal. The State party rejects this
allegation and submits that, notwithstanding the efforts
of officials of the Ministry of the Attorney-General of
British Columbia to hasten the production of the trial
transcripts, they were not completed until June 1979,
"because of various administrative mishaps in the Of
ficial Reporters' Office". On 6 December 1979, that is
34 months after leave to appeal was applied for, the
British Columbia Court of Appeal heard the applica
tion, granted leave to appeal and on the same day, after
hearing Mr. Pinkney's legal counsel (i) dismissed the ap
peal against conviction, and (ii) adjourned the appeal
against sentence sine die, to be heard at a time con
venient for Mr. Pinkney's counsel.
11. Mr. Pinkney claims violations of article 14 (1)
and (3) ф) of the Covenant in that he was not given a
fair hearing or adequate time and facilities for the
preparation of his defence since he was denied the right
to produce the documents and tapes ahegedly proving
his innocence. He also claims that the long delay in
hearing his appeal has resulted in violations of article 14
(3) (c) and (5).
12. As to Mr. Pinkney's claim that he was denied a
fair trial because evidence was withheld which would
have proven that he had no intent to commit the crime
of extortion, the State party in its observations of 21 Oc
tober 1980 under article 4 (2) of the Optional Protocol
makes the following submission:
Mr. Pinkney was ciiarged under section 305 of tlie Criminal Code:
"305. (1) Everyone who, without reasonable justification or
excuse and with intent to extort or gain anything by threats, accusa
tions, menaces or violence induces or attempts to induce any per
son, whether or not he is the person threatened, accused or menaced
or to whom violence is shown, to do anything or cause anything to
be done is guilty of an indictable offence and is liable to imprison
ment for 14 years.
"(2) A threat to institute civil proceedings is not a threat for the
purposes of this section."
In order to prove that he had committed this offence, the Crown
had to prove beyond reasonable doubt:
(1) That the accused used threats to induce the doing of something;
(2) That he did so with intent to extort or gain something, and
(3) That he did so without reasonable justification or excuse.
In the present case the Crown met this burden of proof. Using tape
recordings (and transcripts thereof) of two telephone conversations
between Mr. Pinkney and his intended victims, it showed that he
threatened to turn over the content of a stolen file containing informa
tion on the smuggling of money from Kenya to Canada as well as an
application requesting that family allowance payments be made to a
person who was not entitled to receive them under Canadian law to
Canadian and Kenyan authorities unless he was paid the sum of
$100,000, later reduced to $50,000. His Honour Judge Mackinnon, of
the County of Vancouver, who presided at Mr. Pinkney's trial, in
dicated that, in the absence of any explanation, this evidence (which,
it should be noted, Mr. Pinkney agreed with) was sufficient to support
a conviction. Although Mr. Pinkney contended that when he threat
ened his intended victims he had no intention to extort money from
them, but merely wanted to substantiate the information found in the
above-mentioned file in order to maintain his reputation as a reliable
informer with the Kenyan Embassy in the United States, the trial
judge, after a study of the evidence adduced by both the Crown and
the accused, including testimony by the accused, concluded that the
communicant did intend to extort money. The trial judge noted that in
a written statement dated 7 May 1976 which he had made to the police
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