party denies any allegation of wrongdoing, negligence
or carelessness on the part of the Ministry of the
Attorney-General. It acknowledges that the delay was
due to "administrative mishaps in the Official
Reporter's Office", but submits that responsibihty must
nevertheless rest with Mr. Pinkney in that he failed to
seek an order from the Court of Appeal requiring pro
duction of the transcripts, as he was entitled to do under
the Criminal Code and the Rules of the British Colum
bia Supreme Court.
after his arrest, Mr. Pinlcney made absolutely no mention of Kenya,
smuggling activities or his attempt to verify information, but rather
referred to the attempted extortions as a "business deal". The judge
concluded that this ' 'can only be interpreted in this context as an ex
change of the file for m o n e y " and that he could "put no other ra
tional interpretation on this statement written by Pinkney
himself . . . " . Furthermore, he indicated that additional evidence of
Mr. Pinkney's intention could be found in various papers found in his
apartment and largely in his handwriting. On these papers were writ
ten specific ideas concerning threats, plans to pick up the money and
other matters which Mr. Pinkney denied having considered.
At the communicant's trial, the Crown showed that he had intended
to extort money. T o this effect, the 7 May 1976 statement which
Mr. Pinkney made to the police and the various papers found in his
apartment were particularly decisive. In the face of such evidence, the
defence of the accused failed. It is doubtful whether the alleged miss
ing evidence would have been of any assistance to Mr. Pinkney. The
trial judge was made aware, in the course of pleadings, of the smug
gling activities of Mr. Pinkney's intended victims. He also accepted
as a fact that Mr. Pinkney was in contact with a representative of the
Kenyan Embassy in the United States and that he had sent and in
tended to continue sending information to the Embassy. Part, if not
all of the evidence which the communicant alleges to be missing was,
therefore, available at the trial. Quite evidently, part of this evidence
was not pertinent: evidence of crimes which might have been commit
ted by other individuals in Canada or abroad does not assist
Mr. Pinkney in proving that he had no intention of committing an of
fence in Canada. The rest had some relevance to the accused defence
but did not succeed in creating in the mind of the presiding judge a
reasonable doubt as to the absence of criminal intent on the part of the
accused. Considering the overwhelming proof of criminal intent ad
duced by the Crown, this is not surprising.
16. In his reply of 22 December 1980, Mr. Pinkney's
lawyer submits the following:
(i) Missing
evidence
The following is a summary of evidence presented at Mr. Pinkney's
trial:
Mr. Pinkney was arrested by detectives and members of the Van
couver City Police at his apartment in the city of Vancouver on 7 May
1976. Just prior to that arrest, Vancouver police detectives conducted
a search of that apartment and seized a large number of documents
and other items. Subsequent to Mr, Pinkney's arrest, two black brief
cases belonging to him were seized as well by pohce from a bus depot
locker. Mr. Pinkney testified that he had been in possession of a grey
briefcase in addition to the two black briefcases prior to his arrest.
The briefcase that he alleges contained the materials vital to his
defence was one of the black briefcases seized from the bus depot
locker. He testified further that only the grey briefcase and one of the
black briefcases had ever been returned to him. Detective Hope
testified that he took two black briefcases to the police station in Van
couver, where the contents were cursorily examined. Detective Hope
further testified that no hst of the contents of those briefcases was ever
made, and also testified that while he did not personally recall seeing
any grey briefcase at the apartment of Mr. Pinkney and that he did
not himself seize such a briefcase, other members of the police were
present at that apartment and may have seized such a briefcase.
13. The State party also relies on the consideration
of the case by the Court of Appeal in dismissing the ap
peal against conviction. The Court of Appeal had gone
through the information and arguments about the
allegedly missing evidence. It held in this respect that "if
this matter had been as consequential as it is now sug
gested it was, much more strenuous efforts would have
been taken at every stage of the proceedings of trial to
endeavour to resolve the issue of the missing brief-case"
and that the information put before it was "altogether
too vague to support the submissions now advanced on
behalf of the applicant". The Government adds: "In
other words, Mr. Pinkney was unable to convince the
Court (of Appeal) that the allegedly missing evidence
existed, that it had been withheld by the Crown and was
in any way relevant."
There was evidence led at trial that indicated that both of the black
briefcases were at one point in time given into the custody of the Royal
Canadian Mounted Police, that the contents were photocopied by the
R . C . M . P . , and that both briefcases were then returned to Vancouver
City Police. There was as well testimony that other agencies had
shown interest in the contents of those briefcases, including the United
States Federal Bureau of Investigation, Canadian Immigration, and
the Royal Canadian Mounted Police Subversive Section.
While Vancouver police records indicated that both black briefcases
had been turned over to Mr. Pinkney's lawyer acting at that time,
Ms. Patricia Connors, Ms. Connors herself gave evidence at trial in
dicating that she had recovered one grey briefcase and one black brief
case, and that when she signed the police record indicating that she
had picked up two black briefcases, she had not carefully examined it
and had signçd it carelessly. Records from the Lower Mainland
Regional Correctional Centre (Oakalla) the prison where Mr. Pinkney
was detained pending his trial, indicated that one grey briefcase and
one black briefcase were received by them for Mr. Pinkney.
14. The Government's view is that the facts show:
(a) That in one form or another most if not ah of the
allegedly missing evidence was put before the trial judge
and found not to be relevant or pertinent;
Ф) That the communicant failed to exercise due
diligence in order to obtain the allegedly missing
evidence, evidence which he described as vital to his
case;
(c) That he failed to exhaust all local remedies when
he failed to ask the Supreme Court of Canada to grant
him leave in order to ascertain whether in the present
case there had occurred a breach of the rights to a full
defence and to a fair hearing which are protected by the
Criminal Code and the Canadian Bill of Rights.
Mr. Pinkney testified of extensive attempts made by himself and by
others on his behalf to recover the remaining black briefcase from the
police, all of which were unsuccessful. He testified that these attempts
commenced shortly after his arrest and well before his trial, and in
cluded an attempt to obtain the briefcase by order of a provincial
court judge at the time of Mr. Pinkney's preliminary hearing and an
attempt to seek the assistance of the Federal Minister of Justice
Basford via letter.
The foregoing summary of evidence led at Mr. Pinkney's trial is
substantiated by the transcripts of those proceedings. Those
transcripts are in the possession of ourselves as well as of represen
tatives of the Province of British Columbia. They comprise some nine
volumes, and can be made available to the Committee if requested.
This summary of evidence is submitted at this time in response to
the rather minimal summary provided in the State party's submission
at pages 7 and 8. In addition, it is clear that counsel for Mr. Pinkney
at trial sought an adjournment of that trial sine die on the basis of the
evidence adduced concerning the briefcases and their contents, on the
15. Concerning the issue of the length of the pro
ceedings before the Court of Appeal due to the delay in
the production of the transcripts of the trial, the State
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