The Legislature Raids

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BASI, VIRK LAWYERS WANT ACCESS TO 'SMOKING GUN' DOCUMENTS

Gerry Bellett
Vancouver Sun - December 11, 2007

VANCOUVER - Lawyers for two men accused of political corruption in relation to the $1-billion sale of BC Rail to Canadian National Railway Co. are demanding the government produce 17 behind-the-scenes documents covering the controversial sale of the railway, which one lawyer described as the "smoking gun."

Former provincial government aides Dave Basi and Robert Virk are charged with accepting a benefit, fraud and breach of trust in relation to the sale of the railway.

Their lawyers were in B.C. Supreme Court today seeking an order from Justice Elizabeth Bennett for production of the documents, which are a combination of legal advice, comments and analysis of the sale made by a law firm hired by the government and BC Rail.

The government is claiming solicitor-client privilege in withholding the documents.

The Crown alleges Basi and Virk accepted bribes from a lobbyist representing OmniTRAX, one of the bidders for the freight division of BC Rail, which was sold for $1 billion to the successful bidder, CN Rail.

Basi and Virk allegedly leaked confidential government information about the bidding process. {Snip} ...

Kevin McCullough, acting for Virk who was a former assistant to then-transportation minister Judith Reid, said today the documents will explain Virk's role in carrying out the political agenda of the premier's office and the minister of finance as he was appointed to sit on the evaluation committee that was reviewing bids to buy BC Rail.


"He was placed on the evaluation committee to be the political eyes and ears on behalf of the premier's office and the minister of finance," said McCullough.

McCullough said Virk has a right to access the documents to defend himself because he was on the committee.

The documents, he said, would help explain Virk's actions in respect to the instructions he received from then-finance minister Gary Collins and the premier's office, which when put together form the "amalgam of the smoking gun."

McCullough said the documents would shed light on the part played in the sale by bureaucrat Chris Trumpy who is deputy minister of finance and secretary to the treasury board.

According to McCullough, Trumpy was appointed lead negotiator on the sale of BC Rail by Collins but at the time he was also chair of the B.C. Investment Management Corp., which was holding $350 million worth of CN Railway stock.

"The question in my mind was how was the government in a position to appoint someone who was chair of a Crown corporation holding a massive amount of CN stock to the B.C. Rail evaluation team and make him head negotiator dealing with CN Rail?" McCullough said.

"It's an obvious conflict and one which my client was very politically aware of. The question was: would the NDP get hold of it?"

Michael Bolton, acting for Basi, said it would be fundamentally unjust for his client to be deprived of access to the documents as his co-accused Virk clearly had a right to them.

While he was addressing Bennett, Bolton said he was of the opinion the government at one time contemplated forcing BC Rail into bankruptcy and placing the company into the Credit Company Arrangement Act as a sort of soft landing bankruptcy.

He also said it was apparent CN Rail's bid was the one favoured by the province over that of U.S. company OmniTRAX but that Basi was expected to encourage OmniTRAX not to drop out in order to keep up the "appearance of a fair and competitive bidding process."

Bolton said Basi's efforts resulted in OmniTRAX sending in a second bid that was $45 million higher than the original.

gbellett@png.canwest.com

http://www.canada.com/vancouversun/news/story.html?id=5c602e85-e9bd-4230-84b4-e3b4bc250585&k=52550

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This briskly informative Basi-Virk report is a rare sight in B.C.'s leading newspaper. Congratulations to the Sun editors would be in order ... if only Gerry Bellet's story had been in the front section ... not relegated to #3 spot in "West Coast News". But -- keeping a cheerful mind -- here's hoping this marks a turning point in CanWest coverage of the B.C. Rail Case. - BC Mary.

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Supreme Court list for today December 12, 2007: no mention of Case #23299. Click on Van Court - Direct in left margin, to keep checking throughout the day.

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Allan Seckel, Deputy Attorney General (DAG)

Allan Seckel, the Deputy Attorney General of British Columbia decides which documents are held in trust under Solicitor-Client privilege and which documents will be released to the lawyers in the BCRail Case. [Hansard May 28, 2007]

Seckel started the DAG job on April 17, 2003 which means that he was approved by the Gordon Campbell administration to take that sensitive post 3 months after police had raided the B.C. Legislature. Seckel worked with Fasken Martineau DuMoulin LLP, first as an associate and then as a partner. He had no experience in criminal law.

The Deputy Attorney General has a statutory and constitutional role as the government’s lawyer. His various responsibilities comprise of providing a range of civil and family law programs and services, including dispute resolution and legal aid. See the chain of command headed by the DAG:

http://www.ag.gov.bc.ca/public/AGOrgChart.pdf

Allan Seckel, QC is quoted as saying (Canadian Bar Association review, Feb. 2004) he believes that: " ... in terms of administration of the courts, I want the Ministry to work with the Judiciary to ensure that our courts operate effectively, affordably and in a manner that is accountable to the public, all the while preserving and protecting the independence of the judiciary to decide cases fairly and impartially."

Premier Gordon Campbell was questioned in the Legislature by Carole James, Leader of the Opposition, about who would be responsible for the release of government documents needed by the Basi Virk Basi / BC Rail Trial. The premier 's view of his Deputy Attorney General's role is recorded in HANSARD BLUES DRAFT TRANSCRIPT MONDAY, MAY 28, 2007, Afternoon Sitting, as follows. We might call it "The premier won't be checked with on this.":


"C. James: The Premier, as we know, is committed to having government do its part to ensure that we have a fair trial in the Basi-Virk trial, with full disclosure on the B.C. Rail corruption charges. Right now, as the Premier knows, the court is considering significant disclosure applications which include government documents that are not yet in the hands of the special prosecutor. In court, the special prosecutor's assistant said it was hoped that government would not seek to withhold documents using privilege arguments.

My question is to the Premier. Will the Premier commit to releasing all the documents that are being sought by the court?

Hon. G. Campbell: Since this issue first broke, I have said that I believe it is essential that there be an independent, unfettered investigation. There is a special prosecutor involved in this. The Premier's office does not have a direct input into that, certainly not with this government. It may have been different in previous governments, and the opposition leader may know about that.

I can tell you this right now, hon. Chair. This Premier's office is not involved directly in that. We will continue to follow the due process which is required under our legal system, and we will continue to allow that process to run its full course without interference from any of the elected political leaders in the province.

C. James: I certainly would expect that the Premier's office will be involved in deciding documents to go forward and not go forward. We've heard discussion previously about cabinet confidentiality and other questions that sometimes come up.

My question would be to the Premier. Will he commit to releasing documents without invoking privilege?

Hon. G. Campbell: Again, I would go back and say that obviously there are issues with regard to cabinet confidentiality that must be and would be considered in these issues. Having said that, my goal and the objective of the government throughout has been to proceed with an unfettered and, frankly, independent process.

There's a special prosecutor in place, and I will not be involved in those discussions. That has been delegated to the Deputy Attorney General, and he will make those decisions as he sees fit.

C. James: Just so I'm clear on how those decisions are being made, I understand, as the Premier pointed out, that a special prosecutor makes the decisions about documents to go. My question is around the Premier's office making sure that the special prosecutor has all the documents. The Premier said that that now is with the Deputy Attorney General, and they will make the decisions.

Is the Premier's office, then, not withholding any documents but handing them all over to the Deputy Attorney General so that the special prosecutor has all the documents to make the decision?

Hon. G. Campbell: I do want the Leader of the Opposition to understand what I've done here. In terms of the screening of cabinet documents, all those documents will be available to the Deputy Attorney General. He will make the decision vis-à-vis cabinet confidentiality or any of those issues in consultation with the special prosecutor. He will make the decision without any further consultation with me or anyone in the Premier's office.

C. James: I appreciate that clarification, but just a question again around the privilege or, as you said, determining whether there's cabinet confidentiality or otherwise. Does the Premier agree that preventing document release through privilege is interference?

Hon. G. Campbell: This is an important issue; there is no question about that. I think it's important for the Leader of the Opposition to understand that the government's only real direction with regard to this was, from the outset, that it should be unfettered and independent — that we would remain away from both the decisions with regard to whether or not a case should proceed. Certainly, we don't intend to comment on what's taking place within the court.
I have delegated the responsibility for screening of cabinet documents in this particular case to the Deputy Attorney General. He will make all of those decisions. He understands what the government's commitments have been to the independence and to the unfettered nature of the investigation that should take place.

He also has a responsibility to the institution he serves and to the public. He will work directly with the special prosecutor and make those decisions without consulting with me. It would be inappropriate for me to determine, prior to those decisions being made, what they should be or to try and characterize them in any manner whatsoever, so I won't do that.

I will be very clear. That will be a decision that will be made by the Deputy Attorney General, and the Deputy Attorney General will make those decisions without any consultation with the Premier's office.

C. James: Just so I'm clear then, did the Premier give very clear instructions to the Deputy Attorney General, written or otherwise, to say that he wanted documents to be released and that it was important for that process to be non-political and for unfettered — as he used that word — access to documents be available so that the court process could proceed in an open and transparent way? [Oh please, cue the hysterical laughter - BC Mary]

Hon. G. Campbell: Cabinet privilege actually comes from the common law in British Columbia and in Canada. I think the critical thing is that I did not provide instructions to the Deputy Attorney General. If I was going to provide instructions to the Deputy Attorney General, that would actually undermine the very principle that I'm trying to support here.

We have a professional public service. I think it's important for the Leader of the Opposition to recognize a professional public service. The role of the Deputy Attorney General is to protect the courts, to protect the legal process and to act according to the laws of British Columbia. I have confidence in the Deputy Attorney General — and the Attorney General, for that matter, but the Deputy Attorney General in this particular case.

What was important, I felt, was to make sure that in terms of the independence of this process it was done in the unfettered nature that we had hoped for within the constructs of the law that we currently live with in British Columbia — that there be no political interference.

The decision with regard to the screening of those particular documents — in this particular case, the cabinet documents…. The Deputy Attorney General has unfettered access to the cabinet documents. The special prosecutor will make the requests that he feels are required under this particular case. The Deputy Attorney General will determine who in fact and what kind of documentation will be made available within the confines of the law as it currently exists, and he will not consult with the Premier's office with regard to that.

That, it seems it me, maintains the independence that we're calling for. I think it recognizes the strength of a professional, non-partisan public service in protecting the public's interest. That's what I tried to establish with regard to that, and I believe that giving instructions would have been tantamount to undermining that very principle before it even began.

C. James: While I also support a professional civil service and the good work that they do on all our behalf, I certainly think people would expect that the Premier, in handing over the responsibility to the Attorney General and to the Deputy Attorney General, would give some kind of instruction about the fact that this should be, to use the Premier's words again, as unfettered a process as possible — that the Premier would want to make it clear from the Premier's office, to ensure that this process was open, to ensure that the court got all the documents that it needed, to ensure that this case continued in the way that it needed to do. Surely the Premier feels it important.

That's my question. Does the Premier feel it's important that those kinds of statements be made so that the Deputy Attorney General, yes, makes the decisions about the documents but understands that, from the point of view of the Premier's office, using privilege causes difficulties — that making sure this is as open a process as possible is something that the Premier would want on behalf of all British Columbians?

Hon. G. Campbell: I don't think I would support the approach that I believe the opposition leader is suggesting I take, where I would instruct the Deputy Attorney General of what his decision should be or should not be. The Deputy Attorney General takes an oath of office. The Deputy Attorney General is, frankly, a guardian of our court system.

What I have done in this particular case is I've said to the Deputy Attorney General: "You will have full access to all the cabinet documentation, you will make the decisions as to which documents should or should not go to the special prosecutor, you will work with the special prosecutor on this, and you will make those decisions without any political interference whatsoever from the Premier's office."

I think that's the appropriate approach to take, I think it's an approach that maintains the independence of the system, I think it's an approach that respects the professional expertise and responsibilities of the Deputy Attorney General, and I think it's the approach that protects the public interest.

C. James: Then just a follow-up question to the Premier. How is the Premier assured that the Deputy Attorney General will make a decision around cabinet confidentiality, for example, in a way that ensures unfettered access and ensures openness and transparency so that the court gets all the documents that it needs?

Hon. G. Campbell: I think what it really boils down to here is that I don't concur with the thought that's being put forward here by the Leader of the Opposition — that somehow the Premier's office should direct the Deputy Attorney General.

The Deputy Attorney General holds that position because he is recognized as a man of integrity, as a senior public servant who is in the service of the people of British Columbia. It would simply be wrong for me to direct the Deputy Attorney General in what I would like or not like to have happen in the undertaking of this responsibility that we have asked him to do.
I think the opposition leader is not correct that I should be directing or politically interfering in any way. I have great confidence in the Deputy Attorney General, and he'll make the right decisions in the public interest.

C. James: This isn't about direction or political interference with the Deputy Attorney General.

Now that we understand that the Deputy Attorney General is going to be making those decisions about which documents to release and which ones will be held back because of cabinet confidentiality or other decisions, my question to the Premier is: how is the Premier assured — not in direction — that the Deputy Attorney General is going to make decisions in the spirit of openness and transparency in releasing documents?

Hon. G. Campbell: I think the line of questioning at this point is actually calling into question the integrity of the Deputy Attorney General. I don't think that's appropriate.

He makes decisions every single day that are upholding the public trust. He's been asked to make a decision with regard to this particular matter. It's important that he exercise that independent judgment in the public interest. He will do that. He will do that, I'm sure, in consultation with the special prosecutor. He has responsibilities to the public.

Again, the Premier won't be checked with on this. The Premier's office won't be checked with on this. It will be his decision and his decision alone, and I have confidence that the Deputy Attorney General will make those decisions in the public interest."

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