Sunday, April 01, 2007
Part VI - Notice of Application for Disclosure
Since last Sunday, when Part V of this analysis went up, several things have happened:
There has been activity in Madame Justice Elizabeth Bennett’s court. It is apparent that some kind of foot-dragging is going on in terms of the Crown filing their promised response to this defence notice. Where exactly that reluctance comes from is uncertain.
We have learned that there are serious management and ethical issues among senior staff at Headquarters Division of the RCMP and Stockwell Day has appointed an ‘inquiry-lite’ to look into these matters. Robin Mathews is still awaiting documents at Supreme Court Registry in Vancouver and Gary Mason has favoured his readers with a report on a certain fishing trip that took place sometime in 2002.
All these reports are available here at ‘The Legislature Raids’, or, as it had come to be known, BC Mary’s blog. I trust that a wide range of interested parties as well as many a new observer has taken advantage of the opportunity to learn what little the public can know definitively about this important case as it moves forward into its critical final phase.
Continuing with a complex and confusing section of the notice, readers will remember that Part V brought the narrative up to the actual raid on the Legislature itself on December 28, 2003.
¶ 59 describes what the author of the notice calls “…a major communications and public relations strategy to be executed following the search of the Legislature.” This included the obvious media hook of a reference to the “cancer of organized crime” which was meant to be connected with the raid itself. According to this paragraph, the special prosecutor – Mr. David Harris – was consulted about this and was fully aware of the strategy. Paragraph 59 concludes with this sentence: “The connection between organized crime and the search of the Legislature was false and misleading and completely deleterious to the fair trial rights of the Accused.”
Without offering an opinion on the generality of that statement, it seems quite clear from subsequent events that the ‘organized crime’ emphasis, at least as it concerned drugs and related activities, the charges for which have all been dropped, was both problematic and entirely speculative.
As to other kinds of organized crime, particularly that involving aspects of the ‘sale’ of the ‘BC Rail asset’, well, that is still an open question.
¶ 60 re-emphasizes the organized crime part of the media campaign and adds a reference to Messrs Basi and Virk as ‘political’ operatives; which, no doubt they were.
¶ 61 refers briefly to a televised briefing for the press held on December 29, 2003 after the raid had been completed.
¶ 62 is a key element in the Defence case, as such, I’ll quote it in full:
¶ 62. Notwithstanding the exculpatory nature of the November 17, 2003 call between Messrs. Basi and Virk vis a vis Minister Collins’ approval of the Consolation Prize and the meeting between Minister Collins and the two OmniTRAX Executives on December 12, 2003 the RCMP elected not to conduct any further investigation of Minister Collins.
Can this be true? How is it possible that, after learning that Minister Collins was involved in a prima facie case of tampering with the bidding process and offering a reward to a third party for participating in this activity, that the RCMP were not investigating Collins' role in this? It stretches the imagination to the breaking point to understand why the Debruyckere team would continue with the elaborate and costly surveillance operation at the Villa Del Lupo to monitor Minister Collins’ meeting with Broe and Johnson if he were not still a suspect, or at the very least a target of interest whose involvement might implicate others in these matters.
It simply cannot be, in the light of what we know from the partial disclosure already effected, that Minister Collins was not under suspicion. Furthermore, in order to maintain such a position in light of the next few paragraphs, it is a position almost impossible to sustain.
If there has been some doubt about the behavior of the RCMP up to this point in the defence narrative, the level of doubt is about to multiply significantly.
¶ 63 again makes the point that Sergeant Debruyckere was the officer in charge of this stage of the investigation and its aftermath. Mentioning again the fact that the Sergeant is related to Mr. Kelly Reichert, the Executive Director of the B.C. Liberal Party – someone who sat on the B.C. Liberal Party Election Campaign Team with Finance Minister Collins and who was the acting Director of the B.C. Liberal Election Team at the time (¶ 50 and 51) – is a good way to bring reader up to speed.
¶ 64 re-introduces Erik Bornmann, an individual who was mentioned in ¶ 29 as a principal of the lobbying firm Pilothouse Public Affairs, which had been retained by OmniTRAX to “assist them in their bid for the BC Rail asset” and who was also (as laid out in ¶ 30) heavily involved in federal Liberal politics.
¶ 64 also reveals that Sergeant Debruyckere’s RCM Police team exercised a search warrant on the offices and residence of Mr. Bornmann on December 28, 2003 and that, at that time “…Mr. Bornmann made a statement to the RCMP that Aneal Basi was a bona fide contractor working for him.”
In ¶ 65 we learn that Erik Bornmann engaged the services of a Mr. George MacIntosh, Q.C. to represent him subsequent to the execution of the warrant mentioned above.
¶ 66 refers to Mr. MacIntosh’s effort to negotiate a deal with the Special Prosecutor such that Erik Bornmann would exchange ‘information’ about the Accused in exchange for ‘immunity’ from criminal prosecution.
¶ 67 and ¶ 68 detail the fact that the defence has tried unsuccessfully to obtain details of the ‘deal’ worked out between the Special Prosecutor and Mr. Bornmann; add the information that this ‘arrangement’ was not finalized as late as the end of 2004 and further specify the claim that “…the Special Prosecutor has advised defence counsel that Mr. Bornmann continues to this day (presumably the 26th of February 2007) to have the threat of criminal charges brought against him until after he testifies.”
¶ 69 also informs the reader that the current Special Prosecutor, Mr. Berardino, lectured to a ‘small group’ law course that Mr. Bornmann was taking, a fact which Mr, Berardino claims he was not aware of at the time.
¶ 70 and 71 deal with media issues and problems concerning the unsealing of the search warrants executed on December 28, 2003. Given the media campaign launched by the RCMP and the intense public interest in a case which involved a raid on the Legislative buildings in Victoria, this is hardly surprising.
In fact, ¶ 71 is one of the most problematic in the whole document. As such, I will quote it in its entirety before making any observations about the material it contains and the questions that arise from this content:
¶ 71 The Special Prosecutor has disclosed to the defence that his office notified Mr. Bornmann of the media applications (for unsealing the warrants) as they were brought. It is unknown whether the Special Prosecutor also notified Mr. Bornmann of the positions he would be taking at the media applications. Mr. Bornmann, Mr. Kieran, and Mr. Elmhirst (partners in Pilothouse Public Affairs, a lobbying firm and persons with connections to both the BC Liberals and the federal Liberal Party) continued to engage in the business of lobbying the Provincial Government and in April 2004, the media reported Mr. Bornmann had been given the “all clear” by the Special Prosecutor. RCMP Briefing Notes at the time indicated that the RCMP recognized this as false, and that Mr. Bornmann was behind the release of this information. Given that most of the media applications occurred after Mr. Bornmann made statements to the RCMP as part of his deal, the statements that he had bribed Mr. Basi, and given that the Special Prosecutor has advised the defence that he specifically declined notifying the government of same, Mr. Bornmann received a benefit from this conduct of the Special Prosecutor. Mr. Kieran in his statements to the RCMP in 2004 also made an allegation of a payment to Mr. Basi that would have been unlawful. Mr. Kieran also received the benefit of the Special Prosecutor failing to notify the Provincial Government of this conduct. Again, this allowed Mr. Kieran free(sic) to continue lobbying the Provincial Government. This conduct of the Special Prosecutor again resulted in a substantial benefit to Mr. Kieran. It is notable that Mr. Kieran announced his retirement from lobbying at the time this Court ordered the release of search warrant information in March, 2006. It is also notable that Mr. Bornmann was applying to become a member of the Law Society of Upper Canada in 2006, wherein that organization was not notified by the Special Prosecutor of the circumstances of Mr. Bornmann’s allegations of bribery. Again the Special Prosecutor specifically declined to make this notification.
(Statements in parentheses are mine.)
Clearly the questions raised by the material in this paragraph are many. We know that Mr. Kieran and Mr. Elmhirst continued to lobby the Provincial Government and Mr. Bornmann continued with his legal education and undertook articles with a Toronto Law Firm. Much more than that, of a certainty, cannot be said until the Crown provides the full disclosure the defence has repeatedly mentioned.
¶ 72 Here we are told that the accused were finally charged in December of 2004 and that, since that time, the Defence has consistently sought, and not received, full disclosure of all dealings among and between the Special Prosecutor, the RCM Police, Mr. George MacIntosh, Q.C., and Mr. Bornmann.
Despite disclosure ‘packages’ provided in seven phases between January 19, 2005 and February 15, 2007 (laid out in ¶ 73) and a subsequent series of “trial dates” (¶ 74) having been set, the defence still had, at the time the Notice of Application for Disclosure was filed (February 26, 2007), significant Disclosure Considerations. These items were briefly mentioned in Part I of this discussion and we will begin with them in more detail later this week in Part VII.
Of course such comparisons are just hypothetical but, can you imagine what someone like Patrick Fitzgerald would do if he were in Bill Berardino's position?
I think it's clear that Mr. Berardino is being strung along by a group of people within the upper levels of the BC government over full disclosure. You can't fault the Defence on this file - they've been doing everything they can to get the information they need to present a case before Justice Madame Bennett. I think, confronted with a similar situation in the States, that Patrick Fitzgerald would know what to do.
If Bill Berardino can't get the documentation released NOW he should be going to the press, his legal colleagues and the public. He should declare that the people whom are withholding this information are in CONTEMPT of court and ask the Judge to order immediate compliance. Then, if that won't get this turkey to shift into high gear he should RESIGN in protest. Very publicly – as part of a carefully planned and managed media campaign.
That no one in the mainstream media has picked up this refrain before now is a mystery.
After the content of today's Supreme Court Lists are up and public it won't be a mystery any longer - it will be a crime of omission.
How can these people call themselves professionals?
Many thanks for some serious thinking about the current stalemate in the B.C. Rail case.
What scares me is that if Bill Berardino resigns ... that would bring on another lengthy delay ... and Justice Bennett will receive a Charter challenge saying that Basi, Virk, Basi have suffered too long so the whole trial should be dismissed. Then what??
What's worrisome is that the public interest seems to be ignored. What if we never find out what happened to B.C. Rail? What if corruption does exist within the Legislature and we do nothing about it? And do we patiently absorb all the costs of this bungled trial and carry on saying "Business as usual, Serenity Now!"?
This really IS too much and it has gone on for too long.
Have you seen any coverage of the 70 questions in the Sun, the Times Colonist or the Globe?
Notice I didn't include the Province, asking for a miracle is pretty pointless at this stage of the game.
I think Robin Mathews has been making some of the same points about what's wrong with the justice system at Vive.
You should have a look Mary.