Monday, March 05, 2007


Application for Disclosure publicly exposes highly placed elected officials


The Legislature "Raids" in B.C. 
Latest Developments: Smelling Rats.
By Robin Mathews

"Under a corrupt government all institutions become corrupt."

British Columbians live in a public world of calculated deceit, breach of trust, and the disintegration of democratic institutions.  That condition relates, most importantly, to the Gordon Campbell government and its manipulation of public trust.

That public world heaps profit upon many "trusted" public servants, private institutions, and corporations in pursuit of power, wealth, booty, personal gratification, and the imposition of a dirty, dangerous ideology of private corporate rule.

Nowhere is the condition more evident - strangely - than in the Supreme Court of British Columbia where, on February 26, 2007, "the Defence" (counsel for Udhe Singh (Dave) Basi, Bobby Singh Virk, and Aneal Basi concerning charges arising out of the RCMP search warrant "raids" on B.C. Legislature offices on December 28, 2003) filed an explosive Application for Disclosure of evidence that has not yet (after more than three years) been revealed to counsel to aid it in the defence of the accused facing (altogether) 14 charges laid against them. 

The material in the Application for Disclosure draws together and exposes publicly more tightly than before the relation of the men charged and some of their "handlers" - highly placed elected officials, highly placed political party members, and - as I have said before - Gordon Campbell himself, necessarily, as employer by Orders in Council of the men charged.

The game of legalisms is in its fourth year!  Madam Justice Elizabeth Bennett is growing old on the case.  I believe I detected (at the last hearing I attended) a line of gray where she parts her hair.  But we all know, don't we, that no expenditure of time is wasted in the pursuit of justice.

We know, too, that in the polluted game of "legalisms" no tactic will be unused in an attempt to prevent justice from being done.  (Conjure up in your mind, just for instance, a theoretical situation in which not one of the Defence, the Special Crown Prosecutor, nor the judge presiding wants justice done.  Then watch the "legalisms" unwind and unwind and unwind.) 

Basi, Basi, and Virk are  - all added up - facing about fourteen charges involving (largely) fraud and breach of trust offences while acting as cabinet officers planted firmly near and acting with people from the "the core" of Gordon Campbell government and the Liberal Party. Because their - apparently - relatively simple, allegedly actionable wrong-doings relate to the Gordon Campbell cabinet, to major provincial political figures, and to large
corporations the prime necessity was for clean, careful, and undelayed justice. 

Instead, the whole matter wades through gumbo, in a fog, drowned in a sea of nonsensical and endless chatter.  We are in the fourth year of, apparently, almost unbelieveable obstruction, delay, misinformation, apparent intentions to mislead, and abandonment of responsibility.

Who is to blame?

Defence counsel in their Application for Disclosure open areas (justifiably) to consider as entities to blame - the Special Prosecutor, William Berardino, and the RCMP (item 77, pp. 10 and 11).  Less emphasized perhaps in the document are the shadowy actions of the Gordon Campbell government and the federal Department of Justice. 

In item 77, however, another clause, (f), points in a further direction of possible blame.  Whether that clause is intended to invoke the Court itself is difficult to say because the quality of writing in the Application is not of a high order.  The clause in question reads that a stay of proceedings is sought, also, because of "(f) the delay to [sic] bringing this matter to trial which is fully attributable to the Crown."

The Crown in our system has two faces.  One of them in this matter is, of course, the Special Prosecutor, acting for the Crown.  The other face of the Crown is the B.C. Supreme Court itself, the appointed judges, who exercise the "Splendid Objectivity of Majesty" on behalf of Her Royal Highness and on behalf of the people who are her subjects in British Columbia. The capital letters are not meant in jest. One of the most important aspects of a judiciary is its objectivity, its service to law and constitution, its fairness and impartiality.  So hard is that to achieve and maintain, it is well described as the "Splendid Objectivity of Majesty".

The "Crown", we all know, has a contrary pair of faces, perhaps best illustrated by all the federal and provincial Attorneys General who are at one and the same time "the highest law officers of the Crown" and highly political cabinet members elected to office for one Party.  (Wally Oppal has found how easy it is to be publicly taunted as being more a crass "politico" than a restrained law officer objectively seeking justice.)  Fortunately, the judiciary is not elected by a Party, though it is appointed by a Party in Power.  Often by class interest and ideology, members of the judiciary find themselves automatically more in sympathy with the wealthy and powerful (however moral or immoral) than with the people.

And so, regrettably, the delay in bringing "this matter to trial ? fully attributable to the Crown" may very well involve Madam Justice Elizabeth Bennett, the judge presiding.

I argue that she has had a large role to play, from which she has all but stepped away.  Her primary task has been to see that justice is done. That means she should have, a long time ago, apprized herself of the all the forces in play.  She should then (on behalf of The Majestry of the Law and on behalf of the people of British Columbia and all Canada) have ordered the Special Prosecutor, the RCMP (naming as responsible the chief officer in B.C.), the B.C. government (naming as responsible the Attorney General or the Premier), and the federal Justice Department (naming the Minister of Justice) to provide ALL relevant material to the Defence, to do it within a generously measured time, or to face Contempt of Court charges with attached jail sentences.

If the Supreme Court of B.C. can repeatedly send a 78 year old woman, peaceful defender of the forests to jail for Contempt of Court, and if it can send an aged and sick Native woman - it would appear - to her death for refusing to apologize for defending wilderness land, surely that Court can send the Special Prosecutor, the senior B.C. RCMP officer, the Attorney General or the Premier of B.C., and/or the federal Minister of Justice to jail if they be found to be actively failing to produce evidence in matters relating to the most serious possibilities, at the highest levels, of breach of trust, subornation, bribery, and misuse of power - issues hugely more significant than preventing bulldozers from raping small parts of the landscape.

Madam Justice Bennett, we remember, presided at the trial of Glen Clark (which I call "the fraudulent investigation and trial of Glen Clark, B.C. premier").  She did so as if the trial were really about an argument over apparently free work done on an East End residence veranda in order to gain "favours".  Refusing to address the dubious and endless RCMP "investigation", the incredible search warrant "raid" on Glen Clark's home - RCMP officers accompanied by BCTV to "cover" the event, the origin in Gordon Campbell's constituency office of the charges against Clark, the evident triviality of the case, and the request by Clark's lawyer (on more than one occasion) to stay the proceedings as (in fact) vexatious, Madam Justice Bennett sat imperturbably while innocent Glen Clark was (I allege) maliciously destroyed and a B.C. political party maliciously crippled.

As I write, Madam Justice Bennett supports the dangerous, undemocratic, and (I allege) wilful protocol imposed on the Criminal Registry of the B.C. Supreme Court by Associate Chief Justice Patrick Dohm to deny information on the public record to British Columbians. By doing so, she may be reflecting her larger attitude to the law, to the constitution, and to the British Columbians she has been appointed to serve.

In their setting out of reasons for (a) further considerable disclosure of evidence and (b) a stay of proceedings, Defence counsel mix (as might be expected) solid reasons with some special pleading.  The latter is pretty obvious and needs no comment here. 

More important by far are the substantial reasons Defence counsel give for the Application.  I will cite only some of the most revealing ones. (1) They state that (item 38, page 5) "On November 17, 2003, the RCMP learned through a series of intercepted communications that Mr. Basi advised OmniTRAX that Minister [Gary] Collins, [minister of finance] had authorized a consolation prize [perhaps a veiled bribe?] for Omnitrax in exchange for them staying in the bidding process?"[for B.C. Rail]. [Negotiations with OmniTRAX for the Roberts Bank spur line were terminated later on advice from the RCMP that the matter was tainted.] Minister Collins met with omniTRAX representatives on December 12, 2003, (page 8, item 62) but "the RCMP elected not to conduct any further investigation of Minister Collins".

Defence counsel report a network of complications involved with "star" prosecution witness, Eric Bornmann and the Special Prosecutor.  They allege Bornmann's "story" has changed (p. 8, item 64), that the Special Prosecutor had taken actions that made it possible for Bornmann "to receive a benefit from this conduct of the Special Prosecutor". And that benefits were also received by Mr. Kieran who it is alleged "made an allegation of payment to Mr. Basi that would have been unlawful".(p. 10, item 71). Defence has not, apparently received "full disclosure from the Special Prosecutor of all dealings between [sic] the Special Prosecutor, the RCMP, Mr. MacIntosh [Bornmann's lawyer] and Mr. Bornmann" (page 10, item 72).

Defence counsel report that a large file of federal Liberal Party material is missing (p. 13, item 90).  And in that regard (p. 13, item 94), the "Special Prosecutor is also aware that key Crown witnesses who make the allegations of misconduct against the Accused were deeply connected to the Federal Liberal Party, as were the Accused".

Defence counsel report (p. 18, item 133) that statements made by Eric Bornmann against Bruce Clark [brother of - at the time - deputy premier, Christie Clark] "involve an allegation that Mr. Clark bribed Mr. Basi."  Needless to say, Defence is unable to get "the entirety of Mr. Bornmann's statements against Mr. Clark."

Defence counsel report that critically important documents about the sale of B.C. Rail are (so far) nowhere to be found.

Indeed, a continuing refrain in the Application is that Defence has been unable to deal with the charges because of the on-going, impenetrable mess created by a wholly unsatisfactory disclosure process over years. The February 26 Application lists an almost unbelieveable succession of materials undisclosed at this late date.

Observers in the courtroom were witness to one "disclosure fiasco". Attempting to be able to survey the materials necessary to the case, a great deal was made by Defence counsel about getting access to the famous "Project Room" of the RCMP  - though other places of storage were mentioned.  The Project Room was opened by Madam Justice Bennett (Nov. 14, 2006). A huge sigh of relief seemed to rise from Defence counsel. We much less experienced observers in court that day sat over coffee chuckling.  We were chuckling at the apparent ingenuousness of Madam Justice Bennett, and the remarkable patience of Defence counsel. We were confident all the material was not in the Project Room. The present Application for Disclosure reveals that at least two other places (and some unknown ones) contain information that Defence (and Madam Justice Bennett) accepted was in the "Project Room".

A quite simple question arises. Why couldn't Madam Justice Bennett "smell a rat" when average observers could see one lumbering across the desk directly in front of her?  The question is not, perhaps, an unimportant one.

Defence counsel declare (p. 13, item 93) that the fact of materials being completely missing from the Project room "is not only inconsistent [with] and contrary to what the Special Prosecutor advised this court, but also creates an enormous problem."  Quite apart from the problem it creates, what is Madam Justice Elizabeth Bennett going to do with the fact that the Special Prosecutor gave the court information which (to put the case gently) was simply untrue?  When are the people in this case going to face the kinds of Contempt of Court charges faced by humble, peaceable, environmental protesters?  Or do the Supreme Court and its judges wish to live blissfully and disgracefully in a world of double standards?

Complicating factors not mentioned by Defence enter the matter.  In early December, 2003, in relation to the investigation of Victoria police officer Dosanjh, William Berardino was appointed Special Prosecutor by then Attorney General Geoff Plant with whom Berardino had formerly been in practice.  Special Prosecutor of the different set of events leading up to the Legislature "raids" was David Harris (p.8, item 57). He advised on the day of the raids.  Then he apparently disappeared.  William Berardino then, apparently, added matters concerning the Legislature raids to his responsibilities.

When?  Why?

More, more, more, could be said.  But enough.  Except - can we see a pattern in the extraordinary Application for Disclosure of February 26, 2007?  To an average, concerned, and reasonably intelligent observer a pattern seems to appear throughout which suggests the Special Prosecutor has been utterly unable or unwilling to fulfill his responsibilities, and that the RCMP has been careless or purposefully obstructive in producing essential materials.  I would say it also reveals that the presiding judge has failed to be in control and to insist upon the speedy, competent, fair, and full opening up of materials essential to a trial of integrity.

Overall, the larger number of apparent oversights, lapses, failures to report, apparent obstructions, and seeming refusals to cooperate with Defence appear to provide protection from scrutiny to special people and to special areas. The sale process of B.C. Rail, the actions of cabinet members, the full involvement of the RCMP, and the role of highly placed Liberals outside the legislature have been skirted in a way that is indefensible.

The next-to-final question is a complex and painful one.  Has all of the above been acted out as part of a grand scheme to fence in the three men accused, to call them sharks, to prove them independently guilty, and to scapegoat them (however innocent or guilty) in an ocean teeming with sharks, as if the three men are the only sharks present?

An even worse question.  Is it possible that having stumbled into a situation in which it is impossible to separate "underlings" from "superiors", major people and major institutions have set to work to stall, delay, obstruct, pervert, and frustrate all legal processes until a mistrial, a stay of proceedings, or some other device may be called for in effect to terminate any significant examination of a large number of gravely serious criminal actions undertaken at the highest level of government activity in British Columbia?  And if that is the case, who are the actors involved in the work to stall, delay, obstruct, pervert, and frustrate all legal processes?
Thank you, Robin.


I find it ironic that on the one hand we are complaining about delays in this trial yet on the other we are publishing materials and innuendo that are directly responsible for those delays!

The defense strategy is simple now, search through every document try and find something embarrasing to the Government whether it is remotely related to the case or not. Once found, file it with the court and watch as the media and pundits spend weeks analyzing it and deflecting real interest from the case.

Even if Collins had authorized a consolation prize (everything I read by the way was heresey with no direct link to Collins and the comments), there is nothing illegal about it. Governments do not have to tender every agreement or contract. As a matter of fact, consolation prizes are routine not exceptions.

If we want to see this trial progress then we need to deny the defense the fruits of this tactic. Focus on the real issues of the case and leave the trial against Collins and the Liberals for a later date.

Anon (above), you want the people of British Columbia to remain silent because, you say, WE are causing these trial delays????

Give me strength.
Anon. If I recall, the tendering ofcontracts is always an issue, and all contracts over 25,000are supposed to be tendered. dl
With all due respect Anonymous, you make absolutely no sense.
Robin, your posting today on Mary's blog is absolutely brilliant. I don't want to use this word lightly, but I will say it again brilliant!

In my opinion we have to start pounding the table and demanding a public inquiry. This criminal case is becoming a farce with the prosecutor and rcmp dragging their feet and being deliberately obstructionist. Who are they trying to protect, as I said before what about the connecton we have discovered that exists between a key lead investigator and the bc liberals. What is this some banana republic!!

I look forward to your next installment. In the interests of justice the judge should demand the immediate release of all materials requested by the defence lawyers. For me it's the documents they want from the government that fascinate me.
To anon (at the top here)

You need to check your definition of hearsay (as well as your spelling); the information in the Notice of Application for Disclosure is based on authorized wiretaps and the people whose voices and words are the basis of the defence submission (as well as the basis for the raid on the legislature that followed - which wasalsoapproved by Supreme Court Justice Dohm) are principals in this case.

That's why this evidence is so persuasive - relative to Mr.Collins role. When these conversations were recorded, Basi and Virk weren't aware they were being recorded - they were, and this is the centre of the defence case if and when the evidence comes to court - doing their job and following orders. That's the heart of their case,  period.


You need to read those paragraphs again. Either that or you must really believe that Gary Collins' sudden departure from a position in this government he had, heretofore, said was everything he dreamed of doing was just a normal and unrelated happening.

There's something rotten 'outside' the state of Denmark, as Shakespeare might have put it and, increasingly, it looks like that includes the activities of the duly elected government of this province. Whether or not the horsemen flubbed a couple of passes in the first half, no one will ever look at the Campbell government quite the same way again.

I'm quite sure former FINANCE MINISTER COLLINS will have been talking to his solicitor.
What I suggested was that nowhere was Collins recorded authorizing a consolation prize. What was recorded was Basi stating that Collins had authorized it. You won't win in court with that evidence.

Governments do not have to tender every contract over $25K. There are lots of exceptions to this and those exceptions are used every day.

The original point was that we would all like to see the delays ended and the trial proceed.

Next logical step for the defence then, Anon, is to call Gary Collins to the witness stand and ask: did you or did you not authorize a consolation prize?

What do you think he will say?
Well Mary, I’m not sure what Gary Collins would say on the witness stand and I’d sure love to hear what it is, but, if anyone thinks that tape recordings played in court which have Gary Collins saying the things the defence alleges in its submission - particularly if they are backed up by documentary and testimonial evidence of another sort- will not reflect upon the activities of this government and its possible criminal collusion with a company to 'fix' the outcome of what was meant to be a legal and arms-length transaction in the commercial field they know little or nothing about either criminal or corporate law.

Anon (above), If you'd carefully read the document you'd realize that a few words may well cover a multitude of possibilities.

If nothing else, our government, that is the government of all the people of British Columbia, could well be shown to be at the heart of a criminal conspiracy with CN Rail to obtain a provincial asset that is actually worth a great deal more than CN paid for it.

Particularly given that during the period between the sale of BC Rail and today a number of very interesting opportunities for the enhancement of valuable rail services in this province may well have been lost.

This goes, if the defence can sustain its position, a lot further that a little story about the Basi Boys ever did.

Time to wake up.

There is nothing illegal about offering a consolation prize. Even if he did offer such a prize, it has nothing to do with the charges that have been laid against Basi and Virk.

I would hate to see Basi and Virk "get off" simply because the charges got diluted with allegations against Collins and the Liberals.

Try Basi and Virk and if others also broke the law then get them later.
Gee, I dunno Anonymous. If the consolation prize isn't yours to give? That's one problem.

Then, if it's supposed to be a bidding process? That's a problem too.

Then there's this other thing. I think it's called c-o-l-l-u-s-i-o-n. Where, for the peanut gallery, the deal is displayed as an auction but backstage it's being played like a poker game. That's gotta be a problem, too, don't you think??
If the Liberals were intent on "giving away" BC Rail to CN Rail then why would they be offering consolation prizes to Omintrax to try and keep them in the bidding process?

It seems more likely that they were trying to keep Omnitrax in play to extract a higher price from other potential bidders.
Jeez Anonymouse, not trying to get personal here, but use the grey matter just a bit, eh?

?If the Liberals were intent on "giving away" BC Rail to CN Rail then why would they be offering consolation prizes to Omintrax to try and keep them in the bidding process?"

How's about the easy answer? So it appears to the fools in front of the curtain that there IS A BIDDING PROCESS, even if there isn't.

You sound like a Mann Coulter fan!
"If the Liberals were intent on "giving away" BC Rail to CN Rail then why would they be offering consolation prizes to Omintrax to try and keep them in the bidding process?

I'll just stick with the easy answer, so as not to create head pain or anuerysms, okay?

So that to the fools (us) in front of the curtain - IT STILL LOOKS LIKE A BIDDING PROCESS, even if it really isn't. Just because it might be a deal cooked up by co-conspirators in some back-room, doesn't mean you don't try to make it look more shall we say, "respectable"
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