The Legislature Raids

Auld Lang Syne
by Robert Burns

Should auld acquaintance be forgot,
and never brought to mind?
Should auld acquaintance be forgot
and days of auld lang syne?

For auld lang syne, my dear,
For auld lang syne,
We'll take a cup o' kindness yet
For auld lang syne


Doesn't make sense, does it. But the old song is part of our lives. Many of us will be singing it again tonight, standing in circles with linked hands. Here's a bit of family history.

When our daughter was born, only one name was ever considered: Nadina. When she was very small, she referred to Nadina Mountain as "My Mountain", as she was named for the mountain, the lake, the waterfall, the river, in north-central B.C., all beautiful. When she grew up, she seemed to have no difficulty in choosing her husband, whose name is Fraser. Nadina & Fraser, just like the two rivers -- Nadina River and Fraser River ... which also meet. There is even an intersection in the town of Fraser Lake where Nadina Street meets Fraser Avenue.

This has absolutely nothing to do with the topic of BC Rail, I guess ... or does it?

Maybe we're wrong to overlook the fact that many British Columbians carry a depth of feeling about this province. Maybe these personal things have everything to do with BC Rail and how we feel about losing that part of our heritage and having the doors slammed on us when we try to find out why our railway slid into private pockets. Auld lang syne.

And my name is ... smiling ... BC Mary.

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Five years after the legislature raid, a who's who guide to BC's biggest political scandal.

The Tyee - December 29, 2008
By Bill Tieleman

Don't miss it. In fact, I'll be printing out Bill's summary and referring to it often as the BC Rail Trial Encyclopedia. All those media monitors, lawyers, lobbyists, the accused, the politicians, the media, and even BC Mary are listed. Let's hope we need to refer to it often, very soon. See the full story here.

Here's a sample, under "C" ...

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- BC Mary.

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December 28, 2008 is the 5th anniversary of the shocking police raid on the BC Legislature. If CanWest wants to talk about "dismal failure" (see Times Colonist), they should look to the BC media for the evidence of that failure. With no shortage of legal and general issues, no lack of public opinion on the BC Rail Case (which grew out of the police raids), let the media answer the primary question here about its own performance: why has there been media evasion and media silence. Let's see what, if anything, they're saying today to mark the 5th anniversary. - BC Mary

* Victoria Times Colonist editorial: The Legislature Raids 5 years later. A dismal failure.

* Vancouver Sun, Vaughn Palmer:

B.C.'s political leaders a colourful bunch
Looking Back: Memorable stories gleaned from 25 years of reporting on provincial government

Excerpt:

Dec. 28, 2003. A slow day at the B.C. legislature. At least it ought to have been.

I was in the office picking up my mail when the phone rang.

Was I aware that the police are raiding the buildings, even as we speak? asked the voice at the other end of the line.

My reaction was the usual one for British Columbians when something unexpected -- cops, space aliens, Jackie Chan -- turns up in the vicinity: "They must be making a movie."

They weren't, though the fallout from the police raid has provided the political scene with its longest-running serial -- approaching five years and counting.

Keeping track of the goings-on is a full-time occupation for several journalists [huh?], one website, and more lawyers than you can shake a writ at. Will it ever amount to anything other than what must be a staggering number of billable hours? Only time will tell, as they say down at the courthouse.
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* Westcoaster (Camille Bains, The Canadian Press, 2007/12/27): Legislative Raid Case Hits Four Years ... excerpted from a year ago: Basi's A.L.R. trial (coming up on Jan. 12, 2009 in Victoria) concerns 4 fraud-related charges for allegedly taking $50,000. from developers so a 700-home project at Sooke could proceed with an application to remove protected farm land from the land reserve. [Although there's a publication ban on these pre-trial proceedings, I understand that the public is still entitled to attend. - BC Mary.]

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At the end of the day, I give up on finding anything in today's BC daily newspapers about the 5th anniversary of the historic police raid on the BC Legislature. Plenty of 5th anniversaries: the P.E.I. Confederation bridge; Vancouver InSite, first Same Sex marriage, the Great Toronto Black-out, Science on the Sidewalk (prostate cancer awareness), the Mississauga Marathon, etc etc ... but only these two Basi-Virk items with today's date, and one item from the 4th anniversary (above). I didn't want to believe it, but I did look twice when a commentor at Bill Tieleman's place complained "Campbell owns the government, the media, and the police." Can that honestly be true? Can we let that be true?? - BC Mary.

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Special thanks to "Rosario" whose kind note reminded us of this relevant report from Robin Mathews almost 2 years ago ... funny what a difference these months have made.

- BC Mary.
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SUBJECT: A NOTE ON BASI, BASI, VIRK

May 09, 2007

By Robin Mathews

The Crown has taken over at the Basi, Basi, Virk hearing (on whether more disclosure is required). It is arguing - as I have said - that everything is fine, that Defence has had good treatment, that disclosure hasn't been obstructed, that RCMP and Crown have worked to make a good electronic system and that the system to access evidence required has been open to Defence. Crown argues investigating police were in no way turned away from elected (Gordon Campbell Liberal) politicians, but followed evidence and came upon the three accused and no one else.

The Crown mentioned that the drug matter was very much a part of the investigations and alleges that Dave Basi was, allegedly, deep into drug operations and profits. But Crown is unsure if it will proceed with any charges in that matter. Pardon? No reason given, just a statement. A statement that isn't satisfactory and opens very large questions. "Tips from an informant suggested Basi was laundering money for Bains by purchasing real estate," Winteringham said. "The Crown said it has not decided whether it will approve any of the alleged drug charges against Dave Basi". Pardon? Is that a way of saying, 'we will besmirch him with a "tip" we got, but we don't think it has enough basis to lay charges'?

"Police found several confidential documents pertaining to the [BC Rail] deal at the homes and offices of Virk and Basi and the Pilothouse office in Victoria", Winteringham said. If Basi was a highly trusted key aide, and Virk was trusted and in the Transportation Ministry, why wouldn't those documents be in their homes and offices? Are we dragging a red herring across the issue here? Documents were also found, Wintergham reports, in "the Pilothouse office in Victoria". That's important. But isn't it also important that RCMP are said to have found confidential government documents in the home of Christy Clark's brother when they searched his home? What were those documents? Why have we heard no more about them? Where did Clark get them, and why did he have them? No answers.

The oils of the Crown are being poured on troubled waters. But they open yet another uncomfortable question - uncomfortable because a person is very hesitant to open it.

On Monday and Tuesday Janet Winteringham used one of the fourteen affidavits acquired by the Crown in the last little while in order to contest the allegations made by Defence. (As I have said I want to see those affidavits that absolutely should be available to Canadians, but Madam Justice Elizabeth Bennett is keeping secret from Canadians as much as she can of the Basi, Basi, Virk materials. On whose behalf I ask again?)

The affidavit most referred to by Winteringham in order to establish facts of investigation is the affidavit made by (now Inspector) Sergeant Debruyckere who was chief investigating officer much of the time. But that officer is the brother-in-law of a man who was Executive Director of the B.C. Provincial Liberal Party and on an election team with Gary Collins - and, Defence alleges, frequently in telephone conversation with Dave Basi. Defence also suggests that information from Debruyckere probably passed to Reichert, Executive Director, and, allegedly, made its way to cabinet. Crown reported that Debruyckere informed his superiors in December of 2003 of his relation to Kelly Reichert.

(1) At that point Debruyckere should have been taken off the case, without question. (2) That he was not taken off the case casts deep suspicion on him AND on his superiors. (3 ) Any affidavit he presents has to be seen in the light of his connection to a top Liberal operative at the time of the investigation involving top Liberal operatives in cabinet and outside it.(4) The present state of RCMP reputation across the country (and especially in B.C.) makes doubt a reasonable condition in the mind of any reasonable Canadian on the question of the validity of Debruyckere's affidavit.

What is in that affidavit, and what is in the 13 others? Did RCMP officers fully and objectively report their activities in those affidavits? It is a terribly, terribly sad fact that (in the light of the enormous doubts cast upon RCMP integrity in recent years) we cannot be sure.

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By Paul Willcocks
Paying Attention - January 14, 2004


VICTORIA - Judith Reid is right. The legislature raids don't mean the BC Rail sale should be stopped. But taxpayers should still ask for an independent review by the province's auditor general.

Deal opponents got a boost when police raided the legislature offices of Reid's aide Bob Virk and Finance Minister Gary Collins' powerful assistant Dave Basi. Police also searched the office of Erik Bornman, a federal Liberal wheel and a lobbyist who worked for OmniTrax, one of the unsuccessful BC Rail bidders. Virk was heavily involved in the sale. Basi worked closely with Collins, who co-chaired the sale steering committee with Reid. Bornman's company lobbied both ministers.

That's all we know. And it's not enough to suggest wrongdoing, or any reason for delay.

But there are still questions about the deal, separate from the investigation. And given the likelihood of more asset sales, it makes sense to make sure this one was done right.

Premier Gordon Campbell points to a review of the sale by a U.S.-based consultant and says it provides all the answers. That review, by Charles River Associates, found the process was fair and the price paid for the railroad was toward the top of the range you would expect. It is, overall, a positive report.

But it also raised questions suggesting that the way the sale was handled could have been unfair and cost taxpayers' money.

And with all respect to the company, it was paid $300,000 for the review, and likely hopes for more work. Its expertise is unquestioned - the consultants have helped governments around the world auction off assets and establish markets. It's reputation is important. But it was still paid by the government.

The consultants' report raised several questions.

They found that the $750 million CN Rail paid for the company was at the top of the expected range - good news for taxpayers. But Charles River didn't do any in-depth review of the fairness of the $250 million CN Rail paid to acquire the past tax losses of CN. Taxpayers don't know if fair value was delivered.

The consultant also found significant leaks. One of the finalists leaked information in violation of confidentiality agreements.

Another public leak revealed BC Rail management's forecast of the effects of the sale on the company and communities. That politically embarrassing leak sparked a big internal review, complete with forensic auditors, to find the source.

And in a third leak, the consultant said, information was sent to someone who shouldn't have had it. The report is irritatingly unclear about details. It says only that the lawyers involved promised the documents were returned or shredded. But were they forgotten? Were they important? The consultant says no, but doesn't give enough facts to support the conclusion.

Finally, the consultant raises concerns about the basics of the deal. The Liberals said they would evaluate proposals based on price and a range of other factors, from economic development to job preservation to benefits for First Nations.

But the fairness review says it was really all about the money. CP Rail and Omnitrax - unsuccessful bidders - complained that they couldn't get a handle on what the government really wanted. They put more emphasis on the entire package. After the decision, they realized the auction really focused on price. If they had better information, they might have offered more money.

These are all real concerns. And to make sure the mistakes aren't repeated - and to determine if taxpayers got a fair price for the tax losses - the auditor general should be provided with the funding needed to review the deal.

That's a problem. The government has foolishly chopped the auditor general's funding, despite warnings that critical reviews would be sacrificed. (The Alberta auditor receives almost twice as much money.)

Restore the funding. Support the review. We need the information.

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Re-printed here with the always-generous permission of Paul Willcocks, given on Christmas Day 2008. - BC Mary.

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Gary E said...

The questions Paul raises here, sre they from the actual report. I ask this because I have never seen the ACTUAL REPORT. I do have a copy of the watered down interim report and that says the full report will follow. The reason given was that government lawyers needed to go over it first. And that interference would not allow the report to be published on time. So we were given a watered down report. I would like to see the full version of the original if anyone can point me in that direction.

December 25, 2008

BC Mary said...

Gary E,

I have something called:

Report of findings: Fairness Evaluation of the Restructuring of the BC Rail Freight Division ... prepared for the BC Ministry of Transportation by Charles River Associates Incorporated, Boston, dated December 11, 2003.

Note two things:

1) that Charles River was also the "fairness advisor" in the matter of the negotiated sale, so how likely is CRA to report that their work was imperfect?

2) there was an earlier Interim Report (also by CRA) dated Nov. 14, 2003 ... which may be the report you have.

December 25, 2008

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From Les Leyne column: Lessons salvaged from a horrible year

Times Colonist - December 20, 2008


... As we prepare for the fun-filled fifth-anniversary celebration of the legislature raid on Dec. 28, it's important to remember this life lesson: Never underestimate the time it takes for the justice system to get anything done.

If you have any expectations about how long a matter will take, double it. Then double it again. Five years later and the system still hasn't even started hearing the corruption allegations against some aides who might or might not have been throwing their clout around a little too readily.

The Nuremberg war trials only lasted four years.

Why has it taken a half-decade just to prepare? Because it's mutually beneficial to the government and the defence to stall this to the limit of the judge's patience.

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Les Leyne said it. I didn't. - BC Mary.

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Apparently not. Bill Tieleman's update:

UPDATE - 2 p.m. Thursday

Futher to the item below, I have just spoken with Michael Bolton, defence counsel for David Basi.

Bolton confirms that Special Prosecutor Bill Berardino did request and receive an expedited Supreme Court of Canada hearing date on the secret witness issue.

"The Special Prosecutor sought an expedited hearing and the respondents, Basi and Virk, consented to an order for an expedited hearing," Bolton said today in an interview.

I hasten to point out that some posters on this blog and elsewhere have suggested the contrary - that the April hearing date could have been sooner if an expedited hearing was requested - that is simply inaccurate.

On other issues, Bolton confirmed that there was a very brief hearing on Friday December 12 and that further arguments by W.P. Riley, representing the Public Prosecution Service of Canada, will be heard on Monday January 5, 2009 at 10 a.m. When those arguments are concluded Justice Elizabeth Bennett will issue a ruling on claims of litigation privilege and on other disclosure issues.

Pre-trial hearings then resume again the week of January 19, 2009 and also January 26-29 to hear defence arguments that the RCMP should be seen to have deemed to waive privilege on some documents not yet disclosed.

Lastly, hearings on defence Freedom Of Information requests will begin on February 16.

I hope this clarifies some issues and ends speculation regarding the Supreme Court of Canada hearing date.
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BASI-Virk: Tentative date of April 22, 2009 has been set for the Supreme Court of Canada appeal by Special Prosecutor on secret witness issue ... Bill Tieleman's blog has the complete text from the Supreme Court of Canada's web-site.

Don't miss the comment contributed on Bill's site by "PG" who was asking the hard questions: why didn't Berardino accept an earlier date, when there were openings in February 2009? Why did he delay the Basi Virk trial until April 2009? Bill's response is shown above ... and "PG" has this to say in reply:


And an update from "PG" to Bill Tieleman:

Bill allow me to expand on my analysis regarding the setting of the SCC Appeal date.

On Nov 27, 2008 the SCC granted leave for the Appeal. By rule, the Appellant can file their factum within 30 days. The defence can then file their response within 30 days of that and then the Appellant can file a furthur response, if neccessary.

Within those timelines, the papers could be filed by early February, therefore allowing an Appeal to be heard shortly thereafter.

According to the SCC website, there are many dates available in February and March. Here is the link.

http://www.scc-csc.gc.ca/information/cms-sgd/hear-aud-eng.asp

That is my rational[e] along with of course, a check for the facts with some lawyers who have argued successfully at the SCC.

I would wonder when Berardino will file his factum in light of the deadlines.

Regardless, I think that you and your readers would agree that the 5 year delay in this case assist the government rather than the defence. My bet is that Berardino doesn't not want to bite the hand that pay him the $300-400 per hour he bills every month for the last 5 years.

PG

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Read more and have your say at Bill's place. - BC Mary.

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Interesting comments are coming in to The Legislature Raids, in response to the Berardino scheduling. G West asks serious new questions (below) and Bill Tieleman has given his reply at his place:

G West said...

Mary,
Despite Bill's demurrer concerning the suggestion that Berardino has been dragging his heels I find the assertion less than convincing.

He asserts that it can't be the case (that Berardino is delaying) because the defence hasn't 'complained' about it.

Doesn't this seem overly naive to you? Surely, since one of the already noted possible grounds for dismissal is exactly that - excessive delay - why would defence counsel do or say 'anything' which tended to negate that ground?

If delay is the trump they're planning on playing and the Spec Prosecutor is 'delaying' why would they object? This is a criminal case at the bar and defence counsel are going to use whatever means are available to get their clients out of this thing - preferrably WITHOUT an actual trial.

December 19, 2008 10:16 PM

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No Basi-Virk listing for Monday December 15, 2008 in BC Supreme Court,Vancouver.
No listing for Tuesday December 16 either.
Nope, no Basi Virk listing for Wednesday December 17.
No listings whatever for Thursday December 18.

Homework instead. Seriously. This is from BOUCK'S LAW BLOG
By the Hon. John C. Bouck - December 12, 2008

It deals with the issues around disclosure, and more specifically to Basi-Virk. Here's an excerpt:

" ... the test for disclosure is relevancy ... documents must be relevant to the case the Crown intends to prove. They also must be relevant to the defence the defendants will present at trial. But defence does not have to disclose their defence before the prosecution closes its case at the trial. Therefore it is impossible for prosecutors to know before trial whether a particular document should be disclosed or not ..."


Recommended reading. - BC Mary.

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Sunday, December 14, 2008

Defence alleges documents obtained through FOI of Premier Gordon Campbell's office show Basi & Virk may not have leaked BC Rail info

By Bill Tieleman


Defence lawyers made powerful allegations in BC Supreme Court Thursday that former government aides David Basi and Bob Virk may not have leaked confidential BC Rail documents - based on Freedom of Information request results from the office of Premier Gordon Campbell.

Basi and Virk face breach of trust and fraud charges for allegedly passing confidential government information to lobbyists representing one of the bidders in the $1 billion privatization of BC Rail.

But on Thursday Virk's lawyer Kevin McCullough made the startling claim in pre-trial hearings regarding disclosure of evidence to the defence.

"The premier’s office documents – you see the degree of media monitoring going on," McCullough told Justice Elizabeth Bennett in discussing the results of FOI requests made by the defence for documents it has been so far unable to obtain ...

Click on the hyperlink above to see the full story at Bill Tieleman's blog. - BC Mary.

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At times during 2008 there were THREE related Basi or Basi-Virk trials going on in B.C. courtrooms. Three.

Trial #1 was Regina vs Bains, the anxiously-awaited calling-to-account of the alleged Mr Big on the West Coast drug scene. Jasmohan Singh Bains was the significant "person of interest" whose many telephone calls to his cousin in the Ministry of Finance alerted police to more than the drugs trafficking. Including questionable aspects of the BC Rail sale.

The public was given very little information about Bains once he had been arrested; so of course, we knew absolutely nothing about the date, time, place, evidence, verdict, or sentence in "R. v. Bains" in B.C. Provincial Court, Victoria. I wonder if anybody ever sat in the public gallery, watching and listening.

As important as the Bains testimony appears to be, we would still know nothing further about the trial of R. v. Bains if a Citizen Journalist hadn't heard a reference to Bains in the Basi Virk pre-trial hearings, (Trial #2) and sent a one-line message to BC Mary about a 9-year sentence imposed upon Bains.

I was shocked ... and felt I could not publish this information without some corroboration ... as I certainly hadn't heard of a Bains trial at all; in fact, had regularly searched for news of it, to no avail. So I withheld that Citizen's comment for 24 hours while I searched for proof that such a significant trial had happened. I found that indeed, it had happened.

So I posted that tiny story exactly as our excellent Citizen Journalist had written it -- and I thank him/her once again.

But with that discovery came the inescapable truth that Big Corporate Media had let us down badly. It was very hard to accept. This is not how I want our news media to perform. Was it actually true, then, that there's a cloak of secrecy surrounding not only Basi, Virk, and Basi but also BCRail?

Trial #1, the Bains trial, is undoubtedly a significant issue arising from the raids on the Legislature. See the reference given below, where the Defence in Basi Virk is asking for Bains' evidence, and you'll see that it has importance to Basi Virk ... and to us.


Sample excerpt from an Application for Disclosure, suggesting the level of importance the Bains testimony may have in the trial of Basi Virk Basi:

Para. 8: On December 21, 2007, the Special Prosecutor [in the Basi Virk Case] provided the Applicants with disclosure of a disc entitled "Long Form Censis 1 & 2 Bains Missing Audios" and a second disc entitled "Court Ordered Disclosure Vetted and Court Ordered Disclosures Vetted 31b" (these discs have well in excess of 5,000 pages), one(1) page of notes from Inspector Dauk, three (3) pages of e.mails from Kelly Mobbs to DEB Fulks, DEB Scribner, and Inspector Cheney, a one(1) page document from Donna Dunlop, a two-page (2) continuation report, a 130-page document from Malcolm McDuff, a video cassette statement of Jas Bains, and a large poster-size RCMP chart outlining contacts between Mr Basi and others.


Thursday proved that one clear, honest line of information is worth more than a trainload of Public Affairs Bureau puffery about Golden Eras.

Trial #2, the Basi Virk Basi BC Rail trial -- our own pointless Seinfeld sitcom which goes on and on about nothing with a few laughs from the lawyers (who are way too cheery if you ask me), a bit of impatience (Ol' Bill as George Costanza, who keeps wanting to launch a new show of his own), a Kramer or two, and Madam Justice Elaine presiding.

As with the Seinfeld series, Basi-Virk has no dramatic high points or low points, except perhaps for the day John Preissell insisted upon being sworn in as he was totally fed up just waiting to give evidence. That was a good day. John's impressive testimony marked the actual start of the trial Regina v. Basi, Virk, Basi and it felt good ... but somehow after Citizen Witness John made his exit, the old gang reverted to having lunch, doing their laundry, and misunderstanding one another. Jerry Seinfeld has made doing nothing an artform, earning millions for doing so.

Trial #3 is sneaking up on us ... or so we may have thought. But much to my surprise, I learned last week that the A.L.R. trial, of R. v. Udhe Singh (Dave) Basi, is well under way, movin' right along in pre-trial hearings in Victoria Provincial Court and -- get this -- protected by a publication ban. Who knew?

The media can surely say, if they choose to, that R. v. Basi is actually proceeding in Victoria Provincial Court, can't they? Yes they can. I'm sure they can, as long as they don't reveal the evidence. They could even say "Come on down and listen for yourselves" can't they? Yes they can. But they don't. They don't even try to help us understand these issues. How helpful (to the public) is that? So are they a big part of the gang who doesn't want us to know?

And if we stop and think about that ... isn't the alleged betrayal of the Agricultural Land Reserve Act something of vital concern to the B.C. public? Just like BC Rail? Why shouldn't the public know how the A.L.R. issues are unraveling? What was the judge thinking, in this banning? Couldn't our media even tell us that? Yes they can.

There's a safety valve, however: the public can attend, can sit in the public gallery, can watch the proceedings and listen. Victoria might even get a few people together to observe from the public gallery whether justice is being done in R. v. Basi. Not sure, but I think we're still allowed to go back out on the street or home to our back porch and yell "We're mad as hell and we aren't gonna take it any more!" Yes we can!

BC deserves some sort of award for having THREE separate courts on pretty much the same issues at pretty much the same time revolving around the same guy. At very least, we belong in the Guiness Book of Records. Also for the size of the legal bills.

As for Big Media ... you'd think that every red-blooded journalist in the country would be onto this story, digging, drilling, deducing. Media and politicians are so quick to blame the public for apathy. Well, how can people care about issues they've never heard about. On the other hand, just imagine: police swoop down on a Legislature, carry off 32 boxes of files, and except for RCMP Staff Sergeant John Ward, nobody in authority knows anything. That's a story.

News media, if you ask me, are the ones with the apathy. And that may be putting it much too kindly.

I know what I think about all this ... but I'd rather hear what others are thinking. Isn't there something wrong with this picture? - BC Mary.

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Yesterday, the following comment was received here and the Anonymous sender may have thought I didn't appreciate it. Oh yes, I certainly did appreciate it ...

Anonymous said...

I heard that it came out in court today that Jasmohan Baines received a 9 year sentence after having been found guilty of conspiracy.

December 10, 2008 11:01 PM

but because I had seen no mention of this event in the news, I didn't know whether it was accurate or not, so I set out to verify the sources. Why was this important?

As you may recall, Jasmohan Singh Bains was one of the "persons of interest" arrested as a result of "Project Everywhichway", the raids on the Legislature. Bains was mentioned by Janet Winteringham in the Basi-Virk hearings in BC Supreme Court as follows:


Ms. Winteringham said the defence was simply wrong when it stated that the investigation, code named Project Everywhichway, suddenly veered off course to target Mr. Basi, who was an aide to then-finance-minister Gary Collins, and Mr. Virk, who was an aide to Judith Reid, the transport minister.

In fact, she said, Mr. Basi emerged as an early person of interest in a drug investigation that was triggered when informants told the RCMP that the arrest, in May, 2002, of U.S. drug dealer Cirilo Lopez had created an opening for a new drug boss on Vancouver Island.

"The word on the street was that Jas Bains was going to be the person taking over," Ms. Winteringham said.

Mr. Bains is Mr. Basi's cousin.

That drug investigation identified Ravinder Singh Dosanjh, who was then a Victoria police constable, and Mandeep Singh Sandhu as other persons of interest. Both are related to Mr. Basi.


So it was important to get it right, as to whether or not Jasmohan Bains had been convicted and sentenced to 9 years of imprisonment. It was important to know the charges, too ... as in "conspiracy" to do what? And in the end, I thought it was important to show the reasons in very human terms for the 9-year sentence. After a lot of help this past 24 hours, I can now report as follows:

Regina versus Bains File No. 127870C-3 took pace in B.C. Provincial Court, Victoria, B.C., on June 16 - 17 and 24-28, 2008.

Judgment was rendered on September 4, 2008 by R.A. Higinbotham.

Bains was charged with one count of conspiring to traffic in cocaine "with named and unnamed co-conspirators". The named co-conspirators relavant to the evidence introduced in this trial are Blythe Vernon, Brahm Mikol and John Scallon. [Unnamed co-conspirator(s) could possibly include the secret witness now being shielded by Special Prosecutor. - BC Mary]

The charge against Bains followed an investigation into the activities of the accused and his associates known as "Project Every Which Way". Investigators employed a variety of tactics in pursuing this investigation including the use of surveillance, controlled delivery of money, and judicially authorized wiretaps and searches ...

"In the face of a significant volume of evidence, I am grateful to counsel for the admissions made and the well-focussed closing submissions, which assist the court in isolating the key issues to be decided ...

All other potential issues have been conceded, including the accuracy of the transcripts of intercepted communications, [some portions of this evidence could conceivably be heard in the Basi Virk trial. - BC Mary] all relevant particulars relating to surveillance, continuity of seized exhibits, the nature of the substances seized and analyzed, and the identities of those arrested. The filed admissions do not concede the identities of the parties to the intercepted communications but Mr Bagnall [counsel for the defendant] confirmed during the course of his submission that this was no longer in issue ...

The evidence against Mr Bains is overwhelming and convincing. It leaves me in no doubt that he conspired with those named in the charge to traffic in cocaine and I find him guilty as charged.

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And now The Reasons for Sentence


Case Name:
R. v. Bains


2008 BCPC 261
File No. 127870-C3
Registry: Victoria
British Columbia Provincial Court
Victoria, British Columbia

R.A. Higinbotham Prov. Ct. J.

Heard: September 9, 2008.
Judgment: September 11, 2008.

REASONS FOR SENTENCE

1 R.A. HIGINBOTHAM PROV. CT. J.:-- I convicted Mr. Bains on September 4, 2008 of committing the offence of conspiracy to traffic in cocaine. The offence occurred approximately five years ago. In giving my reasons for judgment, I characterized the role of Mr. Bains in this conspiracy as follows:

* Mr. Bains had sent 12 kilograms of cocaine for distribution, and advised at least one of his co-conspirators that he could probably supply as many as 50 kilograms per week;
* He directed the operations of his co-conspirators in a broad sense, although he left the details of distribution within Toronto to (co-conspirators) Mikol and Scallon;
* The evidence does not reveal the existence of any person to whom Mr. Bains reported, but implies that no such person existed;
* Mr. Bains obtained the cocaine referred to in the charge through a cash purchase. He was not required to pass along any of the money he received;
* Mr. Bains had the power to authorize or approve changes in the price per kilogram for Toronto distribution purposes.

These factors, and the rest of the evidence taken as a whole, persuade me that Mr. Bains was the sine qua non of this conspiracy. He was the initiator, the driving force, and the chief executive officer of the trafficking enterprise, and he answered to no other person.

2 These findings constitute significant aggravating factors. Mr. Bains contributed in an important way to the infliction of untold damage on human lives through his distribution of this harmful drug. When I refer to this drug as harmful, I do not just refer to its impact upon individual users; I also refer to its impact upon society as a whole. Cocaine is not a purely "recreational" drug, as it was once thought to be. For many years now it has been capable of transformation into crack, a cheap and highly addictive form of cocaine that renders the addict incapable of little else but the all-consuming drive to get more. It leads to property and other crimes which affect all of society. The crack addict is unlikely to afford to feed this craving without resort to theft, breaking and entry, or robbery. There is a trickle-down effect resulting from Mr. Bains' conduct that hits the community as a whole.

3 The impact of this type of offence on the community has led appellate courts to conclude that deterrence and denunciation must be the primary considerations for a sentencing judge. That is my starting position.

4 During the course of submissions counsel made an effort to distinguish cases based upon the actual quantities and value of the drugs. In my opinion this type of analysis has limited utility once a certain threshold is reached. As it applies to this case, I consider it an aggravating factor that Bains sent twelve kilograms of cocaine to Toronto. That is a lot of cocaine, and if undetected, this shipment would have provided Mr. Bains with a cash inflow approaching $400,000, tax free. I consider it a further aggravating factor that he stated he was willing and able to provide up to fifty kilograms per week to a buyer located by one of his co-conspirators. Given the amounts referred to, the degree of culpability is very high, and no useful distinctions can be made by comparing this case with others where different, but also very significant quantities of cocaine were trafficked.

5 Crown counsel submitted that the range of sentence for cases like this is between ten and fourteen years imprisonment, while defence counsel argued the range is between five and eight years imprisonment. Both made valid arguments in support of their respective positions. When I examine the cases brought to my attention, I see consistency in the stated approach taken by sentencing judges as regards the principles laid down by the appellate courts, yet there is a greater than expected range in the actual sentences imposed. Perhaps that does nothing more than exemplify the human nature of the sentencing process. No two offenders are identical, and differences can always be found in the circumstances surrounding the commission of the offence. Judges are also human, and the submissions of counsel may strike more or less of a responsive chord with each of them.

6 I am grateful to counsel for the sentencing examples provided to the court. They provide a kind of standard, however broad, against which to measure the proportionality of any contemplated sentence in this case. Having said that, none of the cases fetter my discretion to impose a sentence that I deem fit, having regard to the sentencing factors set out in section 718 of the Criminal Code, and the penalty provisions set out for this offence in the Controlled Drugs and Substances Act.

7 Crown counsel outlined what he considered to be aggravating factors in this case, many of which can be found in my earlier comments and in my earlier decision on conviction. Crown counsel wishes to add that a further aggravating feature is that Mr. Bains was motivated entirely by greed, based entirely upon his personal choice, and not motivated by any circumstance over which he had little or no control. I prefer to think of this as simply denying Mr. Bains a potential mitigating factor.

8 In other cases, there is often evidence of the involvement of weapons, or violence, or threats of violence. There is none of that here to operate as a further aggravating factor, but the absence of evidence of those features is not a true mitigating factor either. I consider it neutral. The unquestionable impact of putting such a quantity of cocaine out on the streets is, in and of itself, the main feature of this case that demands a denunciatory sentence be imposed.

9 Despite the offence committed against the community, and Mr. Bains' key role in its commission, there are mitigating factors that must be taken into account. He is thirty-three years old, and has been facing this judgment day for almost five years, his initial arrest having taken place in December of 2003. He has no prior record of convictions. For four years he has been subject to release conditions and he has been compliant with those conditions.

10 During the period he has been on bail he has taken the opportunity to attend university and obtain a business degree. He has struggled to maintain his marriage and be a good father to his son, who will soon be turning six years old. I am particularly impressed by the recent letter written by his mother-in-law Sharon Ridley as to the changes she has seen in Mr. Bains, and particularly with her comments as to the quality of his parenting and his obvious love for his wife and son.

11 It should be noted that Mr. Bains also had a wife and one year old son when these offences were committed, and it most certainly cannot be said that he was then a good husband and father. What good husband and father would place his family at such risk by carrying on the business of a high level drug dealer?

12 I accept without equivocation that Ms. Ridley shares my view of her son-in-saw Mr. Bains as he was in 2003, and she has changed her view of him as he is now. I unequivocally accept her opinion that he has matured into a devoted family man with legitimate aspirations for the future. Her opinion is also supported by his good conduct on bail and his successful educational efforts.

13 Based upon the foregoing, and the presence of a strong and supportive extended family, I am of the opinion that Mr. Bains presents himself as having strong prospects for rehabilitation. His ability to reform is further enhanced by his intelligence and his entrepreneurial skills. While there is still a risk that these latter attributes, combined with his having had a taste of wealth, could plunge him back into the drug business, I think it unlikely, particularly given the impact of the sentence to be imposed.

14 In order to achieve a balance to the various aggravating and mitigating factors that apply here, I start with the premise that the circumstances of the crime itself, including the amount of drugs and Mr. Bains' lead role in its distribution, require not only a sentence that will convince him to never get involved again, but also a sentence that adequately reflects the community's abhorrence at his cavalier wreaking of misery upon the less fortunate members of our society.

15 From that starting point, I take into account the mitigating factors referred to above. They serve to reduce the sentence I would otherwise impose. In considering the case as a whole, I then look to other sentencing decisions with an eye to ensuring that the test of proportionality has been met. In particular, I compare the aggravating and mitigating factors in Mr. Bains' case to those that appear to have been taken into account in the sentencing of his co-conspirators. It has nothing to do with whether I concur with those decisions. The fact of the matter is that the sentence imposed on Mr. Bains must have an understandable relationship to the sentences imposed upon those who worked directly under him within the same conspiracy.

16 Finally, as a sentencing judge I must step back and consider whether a proposed sentence will have a crushing effect on the prospects for Mr. Bains' reform and rehabilitation.

17 The approach I have outlined above leads me to conclude that the sentence I am about to impose is the least possible that adequately reflects the sentencing principles of deterrence and denunciation. I have also come to the opinion that to impose a greater punishment would go beyond those principles and might crush any future prospects for rehabilitation. I sentence Mr. Bains to serve a sentence of nine years imprisonment.

18 I have been asked by defence counsel to make a recommendation to the corrections department that Mr. Bains serve his sentence at the William Head institution. While I am convinced that Mr. Bains' rehabilitation will be far better served with frequent and generous family contact, it is not my practice to make such recommendations, primarily because there are many other factors that corrections officials consider in order to classify inmates to which I am not privy. I am certain, however, that one amongst their considerations will be the findings I have made at this hearing.

19 The Crown further asks for an order of forfeiture of the sum of $12,718.11. These funds were seized from Mr. Bains' person and from his residence on the date of his arrest. I order that those funds are forfeited to the Crown under the provisions of Part 12 of the Criminal Code.

20 In addition, the Crown seeks a fine in lieu of forfeiture of funds received by Mr. Bains during the course of the investigation. The value of these funds is known to be $242,170.00, and due diligence has not discovered the location of those funds. It is not contested that these funds were proceeds of crime. I have little discretion in this matter, and this case does not fall within that narrow discretion. Further, the ability of the offender to pay is irrelevant. I must also impose default imprisonment of between two and three years, given the amount of the fine. My only real discretion is in determining the amount of time Mr. Bains will be given to pay the fine. I therefore order that Mr. Bains pay a fine in the amount of $242,170.00 in lieu of restitution pursuant to the provisions of Part 12 of the Criminal Code. He will have two years in which to pay the fine. In default of payment, Mr. Bains will serve three years imprisonment, consecutive to the term of imprisonment to which I have earlier sentenced him.

21 Finally, I impose a ten year firearms prohibition pursuant to section 109 of the Code.


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"in case anyone is interested, I heard that tomorrow's court session starts at 9 am and lasts until 1pm. "

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That's what I heard too, Anon. Bill Tieleman told us in his news report on December 9 (scroll down for that link). It's also embedded in the masthead (at the top of this page).

But before anybody takes the day off work and drives 300 or 400 miles to get to 800 Smythe Street, Vancouver, by 9:00 AM on December 11, 2008 ... maybe first of all, we should check the BC Supreme Court listings. Just double-click on "Van Court - Direct" in the left margin. The day's list is posted by about 6:30 AM and yes, I agree, it's a fat lot of help if you live in Prince George or Nelson or Port Hardy.

Meantime, Anon, thanks very much for the reminder. Did you happen to hear anyting -- anything at all?? -- about what went on with Basi-Virk in BC Supreme Court today?? I went back and forth and up and down the B.C. daily newspapers but found nothing. - BC Mary.

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CONFIRMED ... just as you said, Anon: it was a 9:00 AM start today Thursday December 11. Now the long wait to see if any red-blooded B.C. journalist has been allowed any space in a CanWest newspaper. - BC Mary.

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The BC Rail Scandal (Basi, Virk, and Basi) At Its Fifth Anniversary. The Supreme Court of B.C. Clouds of Suspicion.


Robin Mathews
Vive le Canada - December 10, 2008


The fifth anniversary date of the Search Warrant "raids" on B.C. legislature offices draws near, and the charges that have resulted continue in pre-trial hearings that go on and on and on - to the point that many observers believe skullduggery is at work in the, apparently, endless delay.

At the same time, Ontario has produced an important Report on such overly long and complex criminal cases it calls "megatrials". Written by a former top judge, Patrick LeSage, and a University of Toronto law professor, Michael Code, the Report, of course, is tailored to the precise state of Ontario's courts. But it addresses problems that any close observer of the Basi, Virk, and Basi pre-trial hearings recognizes in an instant.

In defence of choking courts, one must admit that the legal system has a tougher time getting trials through than in earlier years. Court cases have been driven into more complex form since the 1970s for real reasons: Charter of Rights and Freedoms challenges, increased criminal legislation, and new (and in some ways more uncertain) views of evidence and privilege.

But even so, the writers of the Ontario Report are not at all happy with what they call the "complacent culture" that has taken over the court system. In their long and serious Report - by the way - they never refer to the public, its right to know, and the increasingly private, secret, and shuttered activities Supreme Court criminal cases have become. That situation awaits another report.

The Basi, Virk, and Basi hearings have been plagued by failure, delay, and "confusion" in disclosure to the Defence. The Ontario Report focuses on the general problem - late disclosure of evidence to the Defence by police and Crowns - asking, in short, for change, now. It asks for what some of us have been calling for repeatedly in the local case: strict deadlines and "judicial intervention". They are saying that judges have a role to fill - and that they are not filling it. That has been clearly the case, I believe, in the Basi, Virk, and Basi case. Making an observation that is hardly shocking, the Ontario Report says that the "modern culture of delay causes great harm to public confidence in the justice system...."

Not only is "justice delayed justice denied", but justice delayed opens huge suspicions that various actors in the drama are simply dishonest, and are serving quite other ends than justice. That, unfortunately, is the case in the Basi, Virk, and Basi matter. Because the accused men were aides to cabinet ministers who, normally, gave them direction; because they have been arraigned at a period when the RCMP is under more suspicion of incompetence and corruption than perhaps ever before in its history; and because the "sale" of BC Rail was a promise broken to the B.C. public and effected in secret and under highly sleazy circumstances the court had to focus sharply.

It had to focus sharply because every British Columbian is - really - a participant in the case. Every British Columbian has been robbed of BC Rail and every British Columbian has suffered from alleged criminal actions involved in that sale - whether committed by the openly accused or by others being shielded from exposure.

The court - especially in this case - had to make all information possible available to the public. It has not done that. It has actively, I say, resisted doing anything like that. It should have insisted upon deadlined submission of all disclosure materials. It has not done that. Rather, it has been sunk in a culture of complacency as if this very probably most important case concerning government officials and breach of the public trust in B.C. history is "just another criminal case".

In general the Ontario Report asks for judges to exert their Common Law powers and to be the guarantors of the effective and timely movement of cases. Indeed, it reports that all "major studies have recommended much stronger judicial case management". Critics of the B.C. Supreme Court, in the conduct of the Basi, Virk, and Basi charges, have powerful backing from experts in Ontario.

British Columbians should take note of that. The courts in the nation are in bad shape. The RCMP as investigator and the framer of criminal charges is in bad shape. David Brown, who completed the most recent Report on the RCMP (June 2007), noted that the "picture of the RCMP and its culture that has emerged is one of mistrust and cynicism". And he called the RCMP "a horribly broken culture".

Suspicions surrounding the process of fixing upon the three accused in the Basi, Virk, and Basi case - by all police, judicial and legal actors - do not go away.

In addition, the B.C. method of appointing Special Crown Prosecutors may be proving unsuccessful. Begun to assure top ranking, objective prosecution in major cases involving public figures, the system risks creating a friendship group available to government to bail it out in times of trouble.

Most recently, the argument to keep a large number of documents in its possession "privileged" (secret) by the RCMP - fronted by Mr. Riley of the Public Prosecution Service of Canada - has seemed to me to be wholly unnecessary, a bureaucratic overload, a matter that should have been conducted much more speedily by the Special Crown Prosecutor.

The intervention by Mr. Riley may have massaged the ego of the PPSC and satisfied its desire to "declare turf", but I cannot see that it had any place in the efficient conduct of the case. Moreover, it echoed earlier claims of "privilege". Top legal experts have seemed unable to identify material for privilege - Madam Justice Elizabeth Bennett (in this instance) discounting over and over claims made by the RCMP and defended by Mr. Riley. Earlier, hundreds of pages of material claimed as "privileged" and held by the Special Crown Prosecutor were released to reveal very, very little that had the quality to invoke claims of "privilege".

This is not a criminal case involving the robbery of a gas station, or even (as in Ontario) a megacase of ten years involving police officers accused of engaging in drug activities - and then all action against them stayed because of delay and various kinds of incompetence.

This is a case that directly involves the lives of the people of British Columbia. Their possession - BC Rail - has been shadily (and, perhaps, stupidly and criminally) handed away. Personnel of their provincial government employed by cabinet have been accused of fraud and breach of trust in that matter. And - as regrettable as it must be to say so - huge suspicion of wrong-doing clings to the premier, Gordon Campbell, and to other members of his cabinet. This is a case being pursued at a time when the investigating body and the one which has been involved with the laying of charges is an RCMP with a hugely damaged reputation.

This case has required and requires scrupulous, timely, openly public, and effective treatment. As the fifth anniversary of the Search Warrant "raids" on B.C. legislature offices draws nigh, there are few in British Columbia, I believe, who would say the treatment of the case has come anywhere near the requirements.

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Thank you, Robin. - BC Mary

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Bill's blog (Dec. 9, 2008)

... The pre-trial hearing is scheduled to continue Wednesday December 10th all day, the morning only on Thursday December 11th and Friday December 12th through the day, when provincial government lawyer George Copley returns to the court after a long absence to deal with disclosure matters concerning his client.

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By Robin Mathews

Madam Justice Elizabeth Bennett gave her ruling concerning 29 documents for which solicitor/client privilege is claimed and will move to the question of litigation privilege this afternoon. As one journalist remarked, gathering information is difficult when nothing is revealed and we (the public) are unable to see a single document. At some point (?) documents have to be registered for trial and made available. But that day is not in sight.

In that regard we can register the fact that the judge may consult from time to time about materials and suggest they be released to the public. I do not know of a single occasion when Madam Justice Elizabeth Bennett has done so, and that is perhaps strange in what must be the most important trial in B.C. history involving criminal accusations closely connected to members of the provincial cabinet.

It might be said that the RCMP and the Special Crown Prosecutor are playing games with the case. Of over 300 documents claimed "privileged" two weeks ago, a very large proportion have been released voluntarily or are being ordered released as Madam Justice Elizabeth Bennett reads them and tests them for privilege. A simple person might well ask if the experts (?) with the Special Crown Prosecutor, the RCMP, and the Public Prosecution Service of Canada are really unable to know a "privilege" document when they see one. Or do they very well know one when they see it...?

Two questions arise under that heading. Who can intervene if it is suggested that the RCMP is purposefully obstructing process?

And ...the judge herself wondered - in matters of claims of litigation privilege - how one determines when RCMP material for investigation turns into RCMP material for litigation of a case arising out of investigation.

There is much to wonder at here - behind the droning voices naming Tabs, naming page numbers, assessing privilege or no privilege. One of those things to wonder at is the announced date of the Supreme Court of Canada appeal sought by the Special Crown Prosecutor concerning the 'secret informant' figure in the case. I believe there is real basis to criticize the category of the secret informer and to suggest it is outrageous that the officers of the court - the members of the Defence team - cannot be present at an in camera giving of testimony in which only, perhaps, the secret informer would be named. But more needs to be said on that later....

The announced date for the Supreme Court of Canada appeal is April 22. Consternation has been expressed, and questions have been asked about whether that is an "expedited" date so that the trial can proceed. To that end, I asked Janet Winteringham, representing the Crown this morning. Who I asked sets the date? The court, she replied. Can the Crown, I asked, request an expedited date?

Ms. Winteringham conveyed to me, as I understood her, that the Crown can do so. I asked her if the Crown intends to do that, and she could not give a certain answer.

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A big THANK YOU to Robin for doing this report for us. - BC Mary.

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Judge orders release of more documents in Basi-Virk case

By NEAL HALL
Vancouver Sun - December 8, 2008

VANCOUVER - The judge in the Basi-Virk case has ordered the release of more documents to the defence.

The RCMP had initially asserted a solicitor-client privilege over 36 documents.

Seven of those were dealt with since legal arguments over the documents began two weeks ago, leaving 29 remaining.

The judge ordered the release today of about 20 of those documents.

Justice Elizabeth Bennett of the B.C. Supreme Court went through each document today and ruled that some paragraphs of certain documents did engage a solicitor-client privilege, so those paragraphs were excluded from being disclosed to the defence.

Lawyers for the defence and the prosecution are continuing legal arguments on whether "litigation privilege" applies to less than 300 documents still in dispute.

Document disclosure has delayed the trial for years. So far, about 700,000 pages of documents have been disclosed to the defence.

The Basi-Virk case now is almost five years old - the RCMP executed search warrants on the legislature on Dec. 28, 2003.

{Snip} ...

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Thank you, Anonymous. - BC Mary

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And it's all about disclosure, disclosure, disclosure ...

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Anonymous comment on Bill Tieleman's blog, under the headline:

Basi-Virk anniversaries in Dec. show importance of case

Bill, why did Berardino announce the appeal to the SCC [Supreme Court of Canada]with only the Van Sun?

Did the Sun get the exclusive on the news that the SCC would hear Berardino's appeal in APRIL??

Something doesn't add up here. I hope that people understand that Berardino could have truly "expedited" this appeal if he wanted. Rather than mere weasel words, actions speak louder than his spin.

The appeal was granted on Nov 27. He can file his factum within 30 days. Then the defence can file within 30 days of that. This appeal could have been heard in Feb 2009!

No wonder he chose to take out the trash on a Friday night with the Van Sun - he wanted to avoid the tough questions.

Berardino deserves a lump of coal in his stocking this Christmas.

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Anyone? What do you make of this? - BC Mary.

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Anonymous has left a new comment on your post "Appeal could have been heard in Feb 2009":


I checked with a lawyer friend. This comment is true, Berardino acts as the Appellant in this action therefore he is in control of filing dates and the timelines as such.

There is nothing to suggest otherwise. It is common practice that the party who initiates the Appeal has the fiduciary duty to begin the process forthwith, considering that he is on record as agreeing with the defence to "expedite" this appeal.

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Absolutely unbelievable. Honest to gosh ... and then other comments came in ...

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As we all know, BC Mary and friends have been battling the Forces of Chaos, trying to get this small piece of BloggerEmpire to work properly. Finally, in desperation, I wrote to Neal Hall, at Vancouver Sun, as follows:


Neal,

I'm having Internet/Blogger problems ... then CanWest introduced grey type and a New Look so I can't read or even find specific items like Basi-Virk ... and neither Robin Mathews nor Bill Tieleman have attended recent hearings.

I'm left with the virtual bag over my head, knowing nothing.

Would you mind ... please? ... to tell me if it's true (as a commentor mentioned) that the Hearings have been wrapped up until December 8? Thanks, if you can.

BC Mary
The Legislature Raids
http://bctrialofbasi-virk.blogspot.com/



and Neal replied generously:


Yes, that's right, the Basi-Virk case returns to court Monday for more exciting legal antics.

After weeks of legal arguments, Justice Elizabeth Bennett is expected to rule Monday on the extent of the litigation privilege as it relates to about three hundred documents that remain in dispute. The judge will give a similar ruling on solicitor-client privilege.

Then, Friday morning, a scheduling hearing will be held to discuss a third-party records application related to BC Rail documents, which the government objects to handing over.
This matter will likely be argued some time in January.

And the Supreme Court of Canada has set a hearing date – April 22, 2009 – for the Basi-Virk informer privilege appeal sought by the special prosecutor.

That means the key trial voir dires on defence constitutional challenges of wiretap and search warrants won't be held until after the hearing in the nation's top court.

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Many thanks, Neal. - BC Mary

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Supreme Court to hear appeal in Basi-Virk Case
Financial Post (Dec. 6, 2008) Neal Hall:

The nation's highest court has set an expedited date of April 22 to hear an appeal involving a dispute over whether defence lawyers should be excluded from an in-camera hearing about a confidential informant in the Basi-Virk case ...

The appeal is expected to delay the timing of key voir dires, which will involve defence constitutional challenges of wiretap and search warrants, before the trial starts next year.

The Basi-Virk case will be back at the Vancouver Law Courts on Monday with an expected ruling by the trial judge on the extent of the litigation privilege as it relates to about 300 documents that remain in dispute. The judge is expected to make a similar ruling on solicitor-client privilege ...

Friday, a scheduling hearing will be held to discuss a third-party records application related to B.C. Rail documents, which the government objects to handing over. This matter will likely be argued some time in January.

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This Anonymous comment was posted here on December 4, 2008:



The Basi trial was adjourned on Tuesday [Dec. 2] until this coming Monday Dec 8. Then Justice Bennett will give her rulings on the soliciter client priviledge and litigation priviledge claims pertaining to the documents defense is seeking access to. Once this is done. the court will address waiver and innocence at stake issues.


A major THANK YOU to this Citizen Journalist ... and apologies for the technical difficulties which thwarted all efforts to post this comment here, until today. - BC Mary.

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While watching the two guys called "Steve" in Ottawa this past week, we may have temporarily lost focus on Basi Virk, BC Rail, BC Supreme Court and the BC Legislature. My blogger troubles aren't helping, either. Nor is the annoying new format of the CanWest newspapers which is hard to scan, hard to read (grey print on white??), making it difficult to know if anyone has been in BC Supreme Court the past few days. So, this week, most of us have given our undivided attention to Ottawa.

And it is a crisis. Somebody is trying to destabilize the Canadian parliament. I don't think it's the Coalition made up of Opposition parties. It may not even be the Harper government although they've made some very undemocratic choices. But something about these issues of money, media, and manipulation doesn't smell right.

What has worried me most about the current national crisis is that so many Canadians (Harper included) seem be trying to super-impose a U.S. model of government upon our own system of Canadian Parliamentary Democracy (Westminster model). Public puzzlement suggests that Canadians are overloaded with U.S. programming, which is leaving them unprepared to participate in our own system which does work well when there's goodwill on both sides of the House of Commons.

This scholarly article (below) provides the basic understanding of our parliamentary system which, despite its royal connection, has an astonishing capability of responding with a judicial fairness to every need -- including the current manufactured crisis. I wish Steve would read it too. - BC Mary.
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Towards a Progressive Coalition Government in Canada

by Helen Forsey

Global Research, November 30, 2008
Canadians for a Progressive Coalition


After our costly and frustrating October 2008 trip to the polls, Canadians are once again being held hostage to the notion that a government can never be defeated in the House of Commons without triggering an election. If Eugene Forsey were still alive, we would know that the weapon being held to our heads is only a toy gun.

The late Senator Forsey was widely recognized and respected as an expert on Canada's constitution. Whenever political dilemmas loomed or processes needed clarifying, politicians, media and citizens alike sought his lively and learned counsel. Today, with our country again facing the uncertainties of a minority government, a multi-party opposition and difficult times ahead, his input is urgently needed.

The first thing he would point out in our current situation is that our Parliamentary system provides safeguards against a series of unnecessary elections. One of those safeguards is the customary co-operation and negotiation among parties in the House of Commons which enables minority governments to work, often very well. The other is the constitutional right of the Governor-General, in certain circumstances, to refuse a government's advice to dissolve Parliament and instead to call on another party in the existing House of Commons to try governing.

If the Canadian public, the politicians and the media had understood these vital aspects of responsible cabinet government and invoked it early in the last Parliament, events would have unfolded very differently from what they did. The government, instead of declaring every bill a matter of confidence on which it would stand or fall, could have chosen to work with one or more opposition parties, as minority governments usually do, to amend or even withdraw legislation that a majority of MPs did not support. Failing that, opposition parties could have voted together against the government and defeated it.

This would not have had to mean an election. The Governor-General, rather than automatically granting a dissolution of Parliament, could have called on the Leader of the Opposition to form a cabinet and try to get the support of the House to govern. If the new government had then developed its legislative and budgetary measures in ways that would gain majority approval by our elected representatives, the 39th Parliament could have got on with its work, and quite possibly worked very well.

But nobody, from the Governor-General to the opposition politicians to the media to the general public, seemed to realize that this was an option! Now, after all the hassle and expense of the recent election, were back in essentially the same place. And the minute the PM decides that this new Parliament also isnt working as he wants it to, it could happen again - unless we start understanding and implementing the options our Constitution provides.

Backgrounder

If [a government] loses its majority support in the House of Commons, it must either make way for a government of the opposite party or call a fresh election, states Eugene Forsey in How Canadians Govern Themselves, his now-classic popular reference book published by the Library of Parliament. In Canada, the government and the House of Commons cannot be at odds for more than a few weeks at a time. If they differ on any matter of importance, then, promptly, there is either a new government or a new House of Commons.

Contrast this clear either-or alternative with the false assumption that if the Commons doesn't agree to the governments program, there has to be a fresh election. The Canadian Constitution very sensibly allows governments to appeal from Parliament to the people when the public interest so requires, the late Senator and constitutional expert explained. But it does not follow that it provides no means of protecting fundamental democratic rights against abuse of these powers. It does; and the means is the reserve power of the Crown as guardian of the Constitution.

Forsey defended those reserve powers as a pillar of our democracy. His PhD thesis on the royal power of dissolution of Parliament documented the constitutional precedents and the logic behind them, and demolished the popular but mistaken theory that the Crown is just a rubber stamp for Cabinet, or that if it isnt, it ought to be. In particular cases, he argued, the power of the Crown to refuse a dissolution may be all that stands in the way of a government spanking the electorate into submission by repeatedly forcing them back to the polls.

Unquestionably, the [reserve] power exists, he wrote, citing the instances of its use and the wide range of constitutional authorities and politicians who upheld its propriety. Unquestionably also, it is a power to be exercised only in very special circumstances: ordinarily the Crown must follow the advice of the cabinet. But many people feel that there must be no exceptions whatsoever. Is this in fact a safe doctrine?

One of the scenarios he used to make his case against the rubber stamp theory starts with a familiar situation. Suppose the government gets a dissolution, and no one gets a clear majority, he wrote. The government retains office and meets the new Parliament - as it has a perfect right to do - hoping to pick up enough votes to keep it in power. But the new Parliament defeats it. It declines to resign; governments don't automatically resign on defeat. Instead, it asks for a second dissolution, and upon a further defeat in the ensuing Parliament, a third, and so on, until the electors give in or revolt. Is the Governor-General bound to acquiesce in this game of constitutional ping-pong from electorate to Parliament, from Parliament to electorate again, back and forth interminably?

In 1926, Mackenzie King accused Parliament of having ceased to be in a position to make a satisfactory decision about who should govern. In 2008, Stephen Harper blamed a dysfunctional Parliament that wasn't working. Both meant the same thing: a Parliament which failed to do what they wanted it to do. And for both men, the prescription was also the same: get a willing Governor-General to dissolve the unsatisfactory Parliament and bring on another election.

Forsey called this a heads I win, tails you lose theory of the Constitution. It bears not the faintest resemblance to parliamentary government, he said. Yet on the rubber stamp theory of the Crowns powers there is no escape from it, no protection against the Cabinet dictatorship it would rivet upon the country.

It is the rubber stamp theory which is undemocratic, he concluded. It makes existing governments irremovable except by their own consent. Such a doctrine is a travesty of democracy. It delivers every Opposition gagged and bound into the hands of any jack-in-office. The jack-in-office may loosen the gag and the ropes - [perhaps] so much that we don't realize they're there. But he can tighten them again whenever he pleases, and as tight as he pleases. This is not democracy. It is despotism; more or less benevolent, perhaps, for the moment, but despotism none the less.

The antidote is an understanding of the reserve power of the Crown to refuse a dissolution, and the political will to demand that it be used when necessary.

All this is not to say that it would be simple for the Crown to refuse her cabinet's advice. As Eugene Forsey noted, a Governor-General would rightly be reluctant to do so without excellent reasons, and without a new cabinet willing to accept the responsibility. The reserve power on dissolution comes into play only in exceptional circumstances when the latest election is still relatively recent, no great new issue of public policy has arisen in the interim, and the makeup of the new Parliament provides the practical possibility of an alternative government.

But the fact that the reserve power exists is key to counteracting the paralyzing sense of helplessness that has turned so many Canadians off politics. It means we can choose to move from frustration and wishful thinking to the practical possibility of another government being formed from the opposition a majority in this new Parliament as in the last. The various parties would have to set partisan selfishness aside, but there would be no need for a formal coalition, just enough cooperation for each bill to pass. That, after all, is how responsible minority government works.

Democratic alternatives become real options when we understand and insist on the constitutional principles surrounding dissolution. Whether or not we like a particular government, having those options is essential to maintaining our democracy. We need not be hamstrung by the constant fear of another election. We must shake off our ignorance of the constitution and use the tools it offers to make our parliamentary system work for us.

Writer Helen Forsey is a daughter of the late Senator Eugene Forsey. She is currently working on a book about his legacy to Canadians.


Reference material:

Forsey, Eugene A., Freedom and Order, McClelland and Stewart, Toronto, 1974. See especially: The Crown and the Constitution (pp. 34-50), Mr. King and Parliamentary Government (pp. 87-109), and The Problem of Minority Government in Canada (pp. 109-123.)

Forsey, Eugene A., How Canadians Govern Themselves, Library of Parliament, 6th edition 2005. See especially pp. 28-29.

Forsey, Eugene A., A Life on the Fringe, Oxford University Press, Toronto, 1990. See especially pp. 102-108.

Evatt, H. V. and Eugene A. Forsey, Evatt and Forsey on the Reserve Powers, Legal Books, Sydney, 1990. This volume includes the entire text of Forseys The Royal Power of Dissolution of Parliament in the British Commonwealth, with his new Introduction, The Present Position of the Reserve Powers of the Crown.

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Governor General Michaelle Jean: An Unlimited Disaster

By Robin Mathews
Vive le Canada - December 7, 2008

The decision by Michaelle Jean on Thursday, December 4, 2008, to permit Stephen Harper to prorogue parliament in the face of a looming confidence vote is a gigantic disaster – a demonstration of her incompetence at least. It may be a demonstration of serious culpability. It provides the Harper wolves opportunity to tear more flesh from Canada’s already torn and wounded democracy.

Bob Rae is probably correct that Harper now heads an illegitimate government. I believe that as Harper seizes or wins more power he will continue his (already active) move towards a police state and the full destruction of Canadian democracy ...

Robin's full column is at ViveleCanada.ca

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