Friday, November 17, 2006
Third Part. RCMP Raids on B.C. Legislature. The Tide of Corruption. By Robin Mathews
The Tide of Corruption, and the Basi, Basi, and Virk trial.
In Courtroom 75 of the B.C. Supreme Court on November 14, 2006, lawyers - like small, soberly-coloured beetles - scurried in the Chamber, apparently intense, apparently at odds with one another in the adversarial tradition of cases in the Canadian legal system. It would be wrong to call it "the Canadian justice system", for Canada has a "legal system" out of which justice very, very rarely comes in matters of corporate and political corruption. The lawyers were there to hear the decision made by Madam Justice Elizabeth Bennett on an application for disclosure - specifically, a request by the Defense to be present at the RCMP Project Room when materials were identified and described, one by one, to make sure all evidence in the hands of the Crown will be known to the Defense.
Were the lawyers in the Chamber really at odds? Or were the nine people (all men) in the Gallery, in fact, witnessing what was a charade, an exercise in smoke and mirrors? Were the actors in the apparent drama unfolding before us enacting a moment of theatre whose outcome had already long been determined? Or were they totally unconsciously being manipulated by unseen puppeteers "pulling the strings" that were giving movement to the beetles scurrying in the Chamber? Or were we facing the real prelude to a real trial in which justice would genuinely be sought, and done?
Hints of answers to those questions may be found on at least three levels. The meeting in Chambers on that morning provides one level. The forces at work outside the Chamber provide the second level. And the history of the institutions involved provides the third.
The key issue in the Application for Disclosure, as I have written above, was the request by the Defense to be admitted to the RCMP Project Room or rooms containing evidence in order to assure themselves that all relevant materials were listed and fairly described - even when they were denied to Defense for appropriate reasons. But in just what place access is to be granted is, in fact, in a confused state - at least to journalists reporting on the hearing.
Mark Hume of the Globe and Mail reports it is "the room" where the "more than 11,000 documents" are stored, which, he reports, Special Prosecutor William Berardino described as "in a four-story building in Vancouver". (Nov 15 06 S3)
For Ian Mulgrew, a Vancouver Sun columnist who writes frequently about legal matters, access is granted "to special police evidence rooms" where material is "stored in high-security locations somewhere in Victoria". (Vanc Sun Nov 15 06 B1,B8).
During the week of October 30, Defense suggested that the affidavit sworn by RCMP Corporal Mar on October 30, 2006 about the preparation and selection of documents placed on discs concerned two project rooms. Corporal Mar's affidavit states clearly that materials in Surrey were scanned in and delivered to Victoria storage and that materials were also gathered elsewhere on the lower mainland and so treated. Defense found the affidavit inadequate partly because of great difficulties connected to the process of disclosure (of which much has been made), and, perhaps, because of doubts that arose from those difficulties about the expertise of the two corporals who did the work.
Defense stated more than once that the people who could most competently and thoroughly describe the preparation of documents and their whereabouts were the two corporals, Ma and Mar. Defense asked to cross-examine Corporal Mar. To a reasonable observer that seemed the quickest and surest way to clear up the uncertainties that seemed dense but may not have been.
Corporal Mar could not only have answered questions about the location and methods of scanning materials but could also have demonstrated personal and system adequacy in the task.
Without giving a reason, and in a single sentence, Justice Bennett refused to permit examination of Corporal Mar. Equally a mystery, she did not ask to be assured that all relevant RCMP materials are and will be available in the room she is ordering to be opened to Defense. She did not question the existence of the Surrey Project Room and especially whether the court will be able to be sure all documents from there have found a place in Victoria.
If I seem to be questioning the quality of the decision by Justice Bennett, that is because I am doing so. She presented a written ruling which she read to those gathered in the Chamber. Her wording, I suggest, needs very close examination. And her intentions in making the ruling the way she did invite close scrutiny. As with other important public documents, however, this one is denied the scrutiny of Canadians who have a perfect right to appear at Criminal Registry in the B.C. Supreme Court and ask to examine it or to have a copy.
By edict, Associate Chief Justice Patrick Dohm, has denied ALL SUCH DOCUMENTS to Canadians. The clerk at Criminal registry informed me, upon inquiry, that I could not have a copy and could not see one. Finally, she informed me that I might request a copy from William Berardino, Special Prosecutor for the Crown. Who delegated to William Berardino the right to grant or to withhold permission for me or any other Canadian to see a decision made and publicly delivered by Madam Justice Elizabeth Bennett? Are we living in a madhouse?
Madam Justice Bennett and all the lawyers participating in the hearing are officers of the court. They have an obligation to the court to uphold its values and its reason for being. They are all complicit in the Directive made by Associate Chief Justice Patrick Dohm to keep information from Canadians - information that Canadians have a right to have access to simply and easily from Criminal Records of the Supreme Court of British Columbia.
Mr. McCullough, for the Defense, approached me on November 14 and apologized for his insulting behaviour to me during the week of October 30 hearings. The incident should never have occurred and it was not explained even minimally by Mr. McCullough to my satisfaction. I was being insulted by an officer of the court for attempting to ask, courteously, a question. McCullough cast opprobrium upon himself AND upon the Supreme Court. Officers of the court - and Mr. Justice Patrick Dohm is one of them - have deep obligations (which they are loathe to acknowledge) to the people of Canada.
All the officers of the court who accept Mr. Justice Dohm's denial of rights to Canadians participate in Dohm's denial. I believe that by failing to make her decision available at Criminal Registry, by failing to make copies available in courtroom 75, by failing to place the decision on the Supreme Court website, Madam Justice Elizabeth Bennett indicated she intends to keep Canadians from - and to frustrate them in their desire to have - access to information rightfully theirs, particularly in matters concerning this (potentially) highly incendiary trial and its "surround". I said in an earlier column that Associate Chief Justice Patrick Dohm sits astride a system which is irrational, capricious, discriminatory, elitist, and unjust. Madam Justice Elizabeth Bennett assists him in upholding that insulting and discriminatory system.
The question of access obviously dogs and has dogged this whole matter - so much so that a reasonable and prudent Canadian might strongly suspect evidence has been denied, delayed, and otherwise mishandled by some forces in order to provide sufficient bases to invalidate all the proceedings.
What is more, access to information about the - perhaps - illegal activities of others than the three men charged is not even discussed, not even dreamed of as a possibility, not on any kind of agenda, not considered a part of the issue.
In addition, what could be more alarming - not to say confusing - than for the Attorney General of B.C., Wally Oppal, to say he has met with the prosecution team in the trial of William Picton (a first degree murder trial) because "As Attorney General, I'm the Chief Prosecutor". I'm clearly on one side here." And more. "The task is unbelieveable. I wanted to give them support." Oppal referred, as well, to a serious problem of disclosure, and said he wanted to commend the Crown prosecutors on that matter. (Globe and Mail Nov 15 06 S1)
I asked in an earlier column if Wally Oppal, as Attorney General, is a dangerous clown? Now I ask if he is a carefully designing person? New Democratic Party MLA Leonard Krog pointed out that the Attorney General spoke imprudently. "The duty of the Crown is to prosecute the case fairly. It is not really a question of taking sides. The Attorney General is on the side of justice, one would hope." (Globe and Mail Nov 18 06 S1).
Attorney General Oppal has taken an opposite position in the extremely complex case arising out of the raids on Legislature offices on December 28, 2003. Unlike the Picton case, the one arising out of the raids on Legislature offices has the potential - depending of course upon evidence that may be presented - to bring down the Gordon Campbell government (of which Wally Oppal is a part).
If an Attorney General truly wishes to see justice done in the courts in which, as Wally Oppal says, he is "Chief Prosecutor of the province", then the Crown in the Basi, Basi, and Virk trial has needed a heavy presence of the Attorney General to assure processes run smoothly, simply to demand and to make sure that justice may be reached in the case. Instead, Wally Oppal recently gossiped with journalists in a way that has been interpreted as tending to undermine the Crown and its prosecution. It would seem that in the Picton trial Wally Oppal is "on the side" of the Crown prosecuting. Can it be true that in the Basi, Basi, and Virk trial, on the other hand, he is on the side of the Gordon Campbell cabinet of which he is a part and which he wants to protect from criminal charges that should perhaps be laid against certain cabinet members past or present and certain outside associates?
In addition, have some RCMP officers been deliberately obstructive and inactive in laying charges? Has influence from some sources in the Gordon Campbell cabinet been deliberately obstructive? Has the monopoly press and media in B.C. been deliberately uninformative and uninvestigative? Have some agents of the Crown at all levels of the process been less than diligent, less than effective in their tasks?
A serious question must be asked again. Is there strong intention to derail and to wreck scrutiny of the whole structure of scandalous behaviour which is being focussed upon Basi, Basi, and Virk? And do the actions of Madam Justice Elizabeth Bennett, the Criminal Registry machinery in operation under Associate Chief Justice Patrick Dohm, and the actions of Attorney General Wally Oppal - just for instance - lend credibility to the claim that there exists an intention to destroy the whole issue before it can be fairly and judiciously examined?
Nine people? Only 9 people from the general public were in the public gallery to witness this historic trial? What better evidence is there, that public access to the Court Registry's on-line system isn't working?
Thank you, Robin. This is so important, we're lucky to have your reports.
- BC Mary
Hume reports that Berardino stated that the evidence is in a 4 story building in Vancouver.
Mulgrew says that the evidence is in Victoria - which makes sense with the entire investigation taking place at the Provincial Legislature.
Can someone tell me which way is up?
Nine isn't a lot of folks but if they are all working for assorted newspapers and are reporting what they see and hear, maybe just maybe they have a better understanding of the legal system than us. They are there for stuff that makes news, and increase sales. If they come across as a bit loony, they don't stay at their jobs very long. Don't get upset with the folks who report what they see. When the legal dancing is over, the trial date will be set. At that time it should get interesting. The issue about one of the witnesses was in the Globe today. Would we have rather the Judge didn't bother to have that sorted out. Let's not get into the stage of. Hey they are guilty, fire the government and sometimes later let's have a trial. ON a earlier date some folks sort of indicated collusion between the two sides. I'd leave that alone for sure. But who am I just a citizen who like you wish the case was behind us. But I do often read up on Cases that interest me. Have done so since they were put on line. Doesn't take long to start understanding how things work. It's free to do so on the court web sites. Used to be a trip to the court library and a pile of quarters to copy the stuff.The government for whom I have nothing to like, could shut down that service if they wanted to. dl
The government for whom I have nothing to like, could shut down that service if they wanted to. dl
They can do anything they want once we roll over and say do it do us - more and better. They operate at our discretion - in our service - and they and also apparently you forget that simple fact.
I do agree with you though that I prefer the judge to be very careful to do everything correctly. However I also unfortunately need to clarify that when I say correctly, I mean in the Public Interest, not in the interests of co-conspirators in the ripping of the assets that rightfully belong to the people of our fine province.
I leave it at that and will post no additional information to this blog. In fact what I write goes to BC Mary's email address not the blog in case she might think it's too controversial. If I was still in vancouver I'd be at the court house as well dl
"Law society in Ontario should delay hearing for B.C. informant" ... at:
By the way ... just so you know that the door is open for readers to comment here ... my blog publishes your comments instantly; a copy is sent to my e.mail address at the time it's published.
Globe and Mail, Page A07, 18-Nov-2006
Law society in Ontario should delay hearing for B.C. informant
By Gary Mason
Erik Bornmann wants to practise law in Ontario. But it appears he wants to delay when the public gets to find out what he's been up to in British Columbia.
The Law Society of Upper Canada has a hearing scheduled for next Tuesday to determine whether Mr. Bornmann is called to the bar and permitted to practise law in Ontario. A lawyer representing Mr. Bornmann has asked that either the hearing be held in secret or a ban be placed on any evidence that might be disclosed.
This is absurd, if what Mr. Bornmann doesn't want getting out is information relating to an upcoming trial in B.C. stemming from the RCMP's spectacular raid on the provincial legislature in December of 2003. You see, Mr. Bornmann has a starring role in the affair.
A political lobbyist at the time, he says he paid a government official in exchange for confidential information pertaining to the proposed sale of the B.C. Rail line. An offence also known as bribery.
Three people were charged - David Basi, Bob Virk and Aneal Basi - their lives and reputations very much ruined by the allegations levelled against them. Mr. Bornmann, meantime, has been living the life of Riley, excused of any criminal prosecution.
To which I must ask: Why?
This is, after all, someone who says he paid tens of thousands of dollars to Mr. Basi in exchange for insider information.
The last time I looked, the illegal offering of money or benefits to a public official was contrary to the Criminal Code.
Mr. Bornmann has apparently also admitted to having created false employment for one of the accused in order to siphon the money to Mr. Basi.
Again: Why has Mr. Bornmann not been charged with anything?
Could it be that he worked out a sweetheart deal with the Crown in exchange for his testimony? If so, was one of the conditions Mr. Bornmann set that he'd testify only if the Crown agreed not to charge him with anything? That way, his dreams of becoming a lawyer one day would not be derailed.
I phoned the RCMP to ask if charges against Mr. Bornmann were ever recommended. The Mounties did not respond.
I asked Crown prosecutor Bill Berardino why Mr. Bornmann has been not charged with anything. He said he couldn't comment because the matter was before the courts.
Mr. Berardino, it should be noted, is also taking the position that he cannot co-operate with the law society in terms of providing any information about Mr. Bornmann's role in the cash-for-secrets deal. He cites Crown privilege. Personally, I think that's a cop-out.
I'm no expert on Crown privilege, but I'd like it explained to me how that prevents Mr. Berardino from assisting the law society in its investigation of whether a self-confessed lawbreaker is suitable to become a practising lawyer in Ontario.
A law society prosecutor has filed a notice of motion asking that the hearing be delayed until next spring. I think it should. By then, Mr. Bornmann will have testified in the corruption trial and his full and complete role in the dirty affair will be a matter of public record.
Only then should the law society hold a hearing to decide whether Mr. Bornmann is of suitable character to be called to the bar.
There will be another pretrial hearing next month relating to the legislature-raids trial. The defence will be looking for some answers regarding the deal Mr. Bornmann struck with the Crown that gave him absolute immunity.
Questions the defence may ask: Why did Mr. Bornmann receive special treatment? Did his desire to become a lawyer influence the special prosecutor's office in its decision? Was there a quid pro quo whereby the Crown agreed not to press charges against Mr. Bornmann in exchange for his crucial testimony?
The defence says it will also be asking questions about a trial advocacy course that Mr. Bornmann took in the fall of 2004 while attending law school at the University of British Columbia. Mr. Berardino was a teacher in the course at the same time as he was special prosecutor in the legislature-raids case.
The defence is concerned that Mr. Bornmann was a student in Mr. Berardino's class at the same time as he was negotiating an immunity deal with the special prosecutor's office. Does this represent a real or perceived conflict of interest?
Mr. Berardino refused to comment on the matter when I spoke with him late Thursday.
If the deal was indeed struck, it would indicate that there must be a lot riding on Mr. Bornmann's testimony in the legislature-raids trial. This well might explain why he was able to extract such a wonderful arrangement out of the Crown in exchange for it. There will be many waiting to hear what Mr. Bornmann has to say.
The Law Society of Upper Canada should wait, too, before making any decisions on his future as a lawyer.
That was great! Big heartfelt thanks to you for this.
I even sent a Thank-You to Gary Mason, saying B.C. had waited a long, long time for that kind of writing.
Just a minute ago, I was prowling around the Archives hoping, with Randy's help from House of Infamy, to renovate this blog so that old items can be more easily accessed.
I managed to get the archives into 1-week segments and maybe that's enough. Gotta say, I was somewhat impressed by some good info in those old posts.
I hope others will dip into the weekly Archives, and tell me if I should remodel things a bit more, so that each title is listed in a column beside the main text, where you'd just have to click on a title of your choice.
Of course, even with Randy's help, I may implode the whole blog before I accomplish that. Is it a case of leaving well enough alone?
Meantime, thanks again, Tim ... the Bornmann issue is so important. Also the issue of whether the defence got a copy of his 28-page statement given to police on the day they raided the Legislature. Who was it, commenting on this blog, who said that there's a precise immediacy to that kind of statement ... revealing much.
"I asked Crown prosecutor Bill Berardino why Mr. Bornmann has been not charged with anything. He said he couldn't comment because the matter was before the courts.
Mr. Berardino, it should be noted, is also taking the position that he cannot co-operate with the law society in terms of providing any information about Mr. Bornmann's role in the cash-for-secrets deal. He cites Crown privilege. Personally, I think that's a cop-out.
I'm no expert on Crown privilege, but I'd like it explained to me how that prevents Mr. Berardino from assisting the law society in its investigation of whether a self-confessed lawbreaker is suitable to become a practising lawyer in Ontario."
This may be a huge opportunity to hear details about this case before the trial.
Mary, do you know anyone in Toronto? What about the CBC - will they send someone. Or Bill Tieleman?
It is in the public interest that we have people present!
J. MacPhail: I really do need to know how this splitting of duties works in the best interest of the public. Can the minister tell me — I just simply can't remember the exact date, but it was in December sometime — when the special prosecutor was appointed in this matter? I think his name is Mr. Berardino. When was he appointed?
Hon. R. Coleman: The member is correct: it was in December. I actually don't know the date. I'm sure I can ask and get you the date from the public record, because I'm sure that's in the public record from the Attorney General, but I was not involved in that process whatsoever.
J. MacPhail: Yes, I know. The special prosecutor was appointed in early December, and clearly, the Solicitor General is saying that the Attorney General didn't tell him anything about that. What role, if any, is then required of the Solicitor General? The Legislature was sitting while the special prosecutor was appointed. We had a special sitting to deal with ordering IWA workers back. Cabinet was meeting, the building was busy, and there'd been a special prosecutor appointed that no one knew about — no one knew about.
What exactly did the police tell the Solicitor General? Did he have any words with the Attorney General about lack of information on his side? If the Solicitor General is truly the chief cop, chief police officer — sorry, Mr. Chair — shouldn't those details have been known between the two at least? What if files went missing? What if activities were put at risk while the Legislature was actually sitting?
Hon. R. Coleman: I have the responsibility for policing, not prosecution and not courts. Frankly, a special prosecutor being appointed is not necessarily something that somebody should advise me of. I don't think anything could have been compromised by the special prosecutor having been appointed in December or whenever that took place. That would happen with regard to a file, so the police would be in a position to discuss the file and what they needed to accomplish with it with the special prosecutor as they went forward with whatever procedure relative to things like search warrants or whatever the case had to be done.
The fact that the special prosecutor was appointed is simply because that, as I understand it, is the way it's done with regard to certain types of cases where law enforcement goes to Crown and they move in this direction. I would be concerned, frankly, if people felt they had to advise me when a special prosecutor was being appointed and that I should have that person's name or have any discussions with them. Under no circumstances would I do that, simply because that is the reason to insulate a case with the special prosecutor — so no minister of the Crown has any input into the preparation of the case.
J. MacPhail: I'll go in exactly the opposite direction of the Solicitor General. I think the public should have been informed that a special prosecutor was appointed. In fact, I'm appalled that the government didn't let the public know that a special prosecutor had been appointed. I can absolutely guarantee that if the previous administrations — any previous administration — had kept the appointment of a special prosecutor secret, this member and his leader would go absolutely nuts in crying foul.
We know nothing happens in this government without his imprimatur.
Why can't the Vaughn Palmers and the Bill Tielemans start pushing that question at every politician and hired political gun involved in this matter?
Clearly Coleman hasn't a clue.
So press his boss.
That is the same publication ban the Basi-Virk-Basi defense fought so hard to put in place. It is ironic that it will now also prevent a hearing regarding the crown's witness from being held in public.
i never knew that the publication ban will be used by Bornman's lawyers. This is the first I have heard of it.
Where do you get this information?
Are you involved in this trial?
All one can do from my position is speculate based on what information has been available, no matter how hard it might be to actually you know, find. I personally dare you to approach the Court Services Online pages without specially obtained instructions and not wind up looking at the court lists we found. Then to find two or three defendants sharing in the same set of charges, only under an obvious cover name, well, the option would be to have clear simple intuitive site navigation that explains what is there and where it is.
btw, your comment following illustrates some serious misunderstanding of who government is, and who WE are.
"It doesn't run for free. we get access for free."
Everything the government does, WE pay them to do one way or another either through taxes, service charges or even more taxes down the road to pay off debt. So spare me the sorrowful picture of Gordo digging into his pocket to pay for something for me or you. I'm not even considering here the other shall we say.....perks - which may or may not be directed into the pockets of politicians or their cronies, if you hae never heard of this type of behaviour, I'd like to do some business with you.
Oh yeah, I think if you check the election figures you will probably find that Mr. Campbell and his jolly band of Pirates slithered into office with much less than a majority of BC Voters. Majority usually means how old you have to be to drink or 50 percent + ONE.
And as Charlie Smith reported in the Georgia Straight some years back:
"On June25, 2001, Gordon Campbell wrote a letter to all his cabinet ministers stating that Martyn Brown, his chief of staff, would "structure and staff" all their offices. He added that they were not to act like the chief executive officers of their ministries as this role would be filled by deputies, selected by premier Gordon Campbell himself."
With that kind of dictatorial oversight how would Gordon Campbell not know what was happening? Doesn't the different punishments meted out to Basi and Virk, (the firing of one and not the other) reveal that someone knew enough to make a distinction between the two in order to make that decision?
Premier Tied To Hires
Georgia Straight, 2003-12-31
Premier Gordon Campbell's chief of staff, Martyn Brown, was responsible for hiring two political assistants, David Basi and Robert Virk, whose legislature offices were raided by the RCMP on December 28.
On June 25, 2001, Campbell wrote a letter to all cabinet ministers telling them that Brown would arrange the "structuring and staffing" of their offices. Campbell also instructed ministers not to act like the chief executive officer of their ministries, adding that this role should be performed by their deputies, who would also be selected by the premier's office.
Veteran political journalist Jim Hume wrote a column for the Canoe News Web site [www.canoe.ca] on July 7, 2001, saying veteran cabinet ministers from previous B.C. administrations "expressed indignation" over the language in Campbell's letter. Hume added that cabinet ministers traditionally recommended deputy ministers to the premier, usually resulting in a simple endorsement from the premier.
"Only on extremely rare occasions, however, has the premier of the day interfered with decisions on a minister's personal office staff, let alone granting the authority to one of his own appointees, a non-elected staffer, to dictate to a minister of the crown," Hume wrote.
Meanwhile, the RCMP's December 29 news release announcing the police raids at the legislature used the term organized crime eight different times. Basi, who was fired as ministerial assistant to Finance Minister Gary Collins, issued a news release later that day denying wrongdoing. Virk, who worked for Transportation and Highways Minister Judith Reid, was suspended with pay.
Robert Gillen, assistant deputy attorney general, appointed special prosecutor William Berardino, who was once a partner of Attorney General Geoff Plant at Russell & DuMoulin (now Fasken Martineau DuMoulin).
Isn't it startling, how clearly journalists wrote, at the time of the raids on the B.C. Legislature? And how their pens have been blunted and blurred, as time drags on? So it's good to look back on these reports. Thanks, Lynx.
- BC Mary