Thursday, July 23, 2009

 

Live-blogging (almost) - Bill Tieleman reporting from BC Supreme Court on Kinsella

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And Kinsella's lawyer is trying to stop the defence from getting any BC Rail documents related to him - online now - going back to court and will update ... says Bill in an e.mail to BC Mary.

Bill Tieleman's morning report is HERE.

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Bill's afternoon report is HERE.

And "Judge Bennett to rule at 8:30 AM on Friday July 24 on the relevance of the Kinsella documents." [July 24 update: there is no BC Supreme Court listing for Basi-Virk today. - BC Mary.]

Thanks again, Bill !!

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Plus Bill's column in 24 HOURS for July 24, 2009

More Twists and Turns. See it HERE

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Kinsella's lawyer says client's emails not relevant to BC Rail corruption case.

Keith Fraser
The Province - July 3, 2009

Read about it HERE.

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Kinsella's position at BC Rail debated in court

By Mark Hume
The Globe and Mail - July 24, 2009

Vancouver Was Premier Gordon Campbell's long-time adviser Patrick Kinsella a strategic consultant for BC Rail, or a lobbyist and government insider who played a political role in the $1-billion sale of the railway?

Conflicting views on Mr. Kinsella were presented in the Supreme Court of British Columbia yesterday as lawyers argued over the disclosure of BC Rail records.

Mr. Kinsella's lawyer, James Sullivan, told Madam Justice Elizabeth Bennett that lawyers defending three former government employees on corruption charges should not be given access to the material, which includes e-mail exchanges.

Mr. Sullivan argued the material is not relevant to the case against Dave Basi, Bob Virk and Aneal Basi – who are accused of trading confidential government information about the BC Rail deal – and even if it were found relevant, it should be excluded because it invades Mr. Kinsella's privacy.

{Snip} ...

“I want to underscore … the political dynamics at work here and what we consider to be the very key role of Mr. Kinsella,” said Michael Bolton, Mr. Basi's lawyer.

He said some of the records will provide “graphic evidence to confirm the defence view … that the BC Rail divestiture to CN occurred at a very high and political level.”

{Snip} ....

Read Mark Hume's full column HERE.

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Liberal insider's e-mails not relevant to Basi-Virk case: lawyer

Patrick Kinsella was co-chair of two B.C. Liberal election campaigns, according to defence lawyer Kevin McCullough, including the one in which Premier Gordon Campbell promised not to sell BC Rail.

Patrick Kinsella was co-chair of two B.C. Liberal election campaigns, according to defence lawyer Kevin McCullough, including the one in which Premier Campbell promised not to sell BC Rail.

Photograph by: Glenn Baglo, Vancouver Sun files

VANCOUVER — A lawyer for Liberal insider Patrick Kinsella argued Thursday that his client's BC Rail e-mails are not relevant to the Basi-Virk political corruption case.The defence lawyer reminded the judge that an e-mail already disclosed, written by BC Rail vice-president Kevin Mahoney, refers to Kinsella as a "Liberal backroom guy" and a lobbyist appointed by the chairman of BC Rail.

{Snip} ...

McCullough said the e-mails being sought appear to include invoices for Kinsella's consulting work for BC Rail.

"The question in this case is: What is Mr. Kinsella doing for BC Rail?" the lawyer asked in court.

McCullough said Kinsella's invoices start in 2004, even though he began working for BC Rail in 2002. He estimated Kinsella had been paid more than $175,000 by BC Rail up to 2004.

McCullough pointed out that Kinsella was co-chair of two B.C. Liberal election campaigns, including the one in which Premier Gordon Campbell promised not to sell BC Rail.

Then, after Campbell won the election, the government decided to sell BC Rail to CN Rail for $1 billion in order to balance the provincial government books, the lawyer told the judge.

Neal Hall's complete column is HERE.

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Judge orders release of Kinsella e-mails 'relevant' to B.C. Rail case

By Keith Fraser
The Province - July 24, 2009


{Snip} ...

Several of the relevant e-mails describe the setting up of meetings between Kinsella and B.C. Rail, she said.

“The defence submits that it’s significant that B.C. Rail is meeting with Kinsella a few months after the 2001 election,” said the judge.

“The e-mails refer to meetings to discuss the plans for the 2004 railway.

“Given that B.C. Rail was put on the market in 2002, and the charges come from that event, these documents are likely relevant. Mr. Kinsella does not have a privacy interest on the documents.”

{Snip} ...

Read more Keith Fraser for July 24, 2009 HERE.

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See also:

Court orders some Kinsella records released, restricts access to others

By Mark Hume
The Globe and Mail - July 24, 2009

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It's becoming a bit difficult to keep the reports in sequence so I hope this will help people fill in Bill Tieleman's complete report:


UPDATE 12 p.m. Friday

The Province's Keith Fraser reports that Justice Elizabeth Bennett has ruled this morning that about half of the BC Rail documents connected to Patrick Kinsella are relevant to the defence and ordered them released, in particularl emails describing meetings being set up between Kinsella and BC Rail shortly after the election.

“Given that B.C. Rail was put on the market in 2002, and the charges come from that event, these documents are likely relevant. Mr. Kinsella does not have a privacy interest on the documents,” Bennett stated in court.


UPDATED 6 p.m. with new info from afternoon court session

The defence in the Basi-Virk case today alleged that BC Liberal Party insider Patrick Kinsella was paid over $175,000 in consulting fees without submitting any invoices for his work.

And Kinsella's lawyer James Sullivan argued in BC Supreme Court that about 108 BC Rail records, documents and emails connected to Kinsella should not be disclosed to the defence, saying they are either private and harmful to Kinsella's business or not relevant to the case.

In court Kevin McCullough, representing former BC Liberal ministerial assistant Bob Virk, alleged Kinsella played a key role in the $1 billion privatization of BC Rail and that he had significant communications with successful bidder CN Rail when the deal got into trouble after the sale was announced.

McCullough blasted the lack of invoices from Kinsella and his company the Progressive Group to BC Rail for what he said amounted to more than $175,000 of the $297,000 the former BC Liberal Party co-chair in 2001 and 2005 charged the Crown corporation for "business advice."

"The fact that we only have invoices commencing in July 2004 for all the Progressive Group when we know in excess of $175,000 was paid from 2002 to 2004 alone is significant to what Mr. Kinsella was doing for B.C. Rail," McCullough told Bennett in arguing for disclosure of the documents.


But B.C. Rail lawyer Robert Deane said this afternoon that there was “an explanation and it’s not sinister.”

Deane said CN Rail had taken over B.C. Rail documents in July 2004, so they were not in B.C. Rail’s possession.


Deane said an affidavit filed in June of 2009 explained that when the transfer of B.C. Rail to CN was completed in about July 2004, recoreds were transferred to the control of CN.


Outside court Deane declined to answer questions about why B.C. Rail still retained some records related to Kinsella but not others or whether B.C. Rail knows if the invoices exist and are in CN's control.

Sullivan said outside court he has no information on the invoices.

But earlier in court McCullough launched a blistering attack on Kinsella and his role at B.C. Rail.

"What did he do for $175,000 between 2002 and July 2004? We know he was campaign chair for Mr. Campbell in 2001. We know that CN was communicating with him directly....A reasonable inference can be drawn that something's not right," McCullough alleged, telling Bennett that Kinsella was retained by B.C. Rail chair John McLernan, a provincial political appointee.


"If Mr. McLernan hired a backroom Liberal lobbyist guy, that's highly relevant," McCullough said. McCullough at one point repeated the term "McLernan-hired, Liberal backroom lobbyist" four times in a row.

In court Sullivan argued that the B.C. Rail records connected to Kinsella should not be disclosed to the defence.

"Mr. Kinsella asserts that documents from B.C. Rail cannot possibly be relevant and also asserts privacy rights. Many of these B.C. Rail documents fall outside the time period where they would be likely relevant," Sullivan said.

And Sullivan told Bennett that release of the documents could be harmful to Kinsella's business.

"Mr. Kinsella is not a government official or a public figure. He's a private citizen who relies upon his good reputation for his business," Sullivan said. "Mr. Kinsella, it must be stressed, is not a party to these proceedings."

Sullivan said that if Bennett rules any documents related to Kinsella should be released, he would want to review them and make submissions on redacting some of the content.


NEW: Tempers flare on all sides in testy battles between lawyers and between lawyers and Justice Elizabeth Bennett


The afternoon session saw some of the testiest arguments yet seen in
court in over three years, with McCullough at one point seeming close to being ejected by an obviously angry Justice Elizabeth Bennett.

And Bennett repeatedly ordered Sullivan to sit down and stop interjecting, at one point warning him his actions could potentially result in grounds for an appeal in the case by the defence.


An exasperated McCullough attempted to make additional arguments in response to statements by
Special Prosecutor Janet Winteringham in support of Sullivan's position on disclosure of the Kinsella documents and after Sullivan accused the defence of going on a "fishing expedition".

"I have issues to reply to," McCullough said to Bennett despite being told not to rise. "You raised the CN-Kinsella relationship. There is evidence....


"No there isn't," Bennett cut in.


McCullough continued despite Bennett's indication to sit down.


"Can you stop talking please?" an irritated Bennett told McCullough.


When McCullough still continued, Bennett cut him off: "We're going to take a break - 15 minutes!" and then walked quickly out of court.

Earlier in the afternoon Michael Bolton, representing former ministerial aide David Basi, had also alleged that Kinsella played a critical role in the sale of B.C. Rail and that his records are therefore essential to the defence.


"At a political level, he's the man the government couldn't do this deal without," Bolton said of Kinsella's role as a paid consultant at B.C. Rail. "It's a matter of having a key political fixer on the payroll."


And Bolton had little sympathy for Sullivan's arguments to protect Kinsella's privacy.

"Mr. Sullivan argues correctly that his client isn't a public figure - that's true - he's a backroom guy, he's a political figure. It's a power broker role," Bolton said of Kinsella. "There's no doubt Mr. Kinsella would like to remain in the backroom but these documents are critical to the defence."

Winteringham appeared to argue against the defence and for Sullivan's position on the Kinsella documents, saying that defence lawyers had not made a case for extending the time frame for documents or proving likely relevance.

"If the defence is advocating the court consider that 'the fix is in' or "something is not right" the defence must establish that this defence exists at lawy and is of relevance," Winteringham said.

"The defence must move beyond speeches from the floor about likely relevance," she added.

But it was Sullivan's reply to the defence position that raised the most hackles.

"There were documents that were completely irrelevant and yet the defence has come to court and not only argued that they were likely relevant but that they were highly relevant," Sullivan said.

Referring to documents that connected Kinsella to political advice to B.C. Rail regarding the Waste Management Amendment Act of 2002, Sullivan said that despite it having no connection to the case, the defence argued it was relevant.

"The Waste Management Act has absolutely nothing to do with B.C. Rail except that it is a property owner," affected by the amendments, Sullivan said. "Frankly, that's absurd."

After terming the defence arguments a "fishing expedition" Sullivan said that Kinsella's privacy interest is "significant" and his connection to the accused was "remote".

Eventually Bennett allowed McCullough to reply but Sullivan repeatedly tried to object.

"Mr. Sullivan - criminal case - the accused's liberty is at stake - I'm going to let him speak," Bennett said.

When Sullivan later rose again, Bennett warned him strongly: "It doesn't help me if you object. Not letting the defence argue for disclosure is a clear grounds for appeal."

McCullough returned to Kinsella's alleged connection to CN.

McCullough said the Crown's own disclosure of a document seized from Pilothouse Public Affairs in which lobbyists Erik Bornmann and Brian Kieran - who alleged bribed Basi and Virk but are now key Crown witnesses - is where Kinsella link to CN came out.

"This document talks of Mr. Kinsella being CN's political advisor. The Crown relies on these two witnesses - they say Mr. Kinsella was CN's political advisor," McCullough alleged. "According to Mr. Bornmann and Mr. Kieran, Mr. Kinsella is CN's chief political advisor."

The defence has previously alleged that Kinsella may have also been working for CN as well as B.C. Rail but today Bennett said that: "There is no evidence that Mr. Kinsella worked for CN Rail."

McCullough also discounted Deane's explanation of the lack of invoices from Kinsella being in B.C. Rail's possession.

"Whether or not those documents existed and whether they were shipped to CN is another matter," he argued.


McCullough also said B.C. Rail-Kinsella documents related to the Waste Management Amendment Act were indeed relevant.


"The Waste Management Act was going to affect the cost to the buyer - that's why Kinsella was getting it from B.C. Rail," McCullough argued. This Act is going to impact the operating costs - it's obvious."

Bennett said she will rule at 8:30 a.m. Friday on which documents will be examined for likely relevance.

The pre-trial hearing will then be adjourned until August 17, when she is expected to rule on whether she will stay on as the trial judge despite her promotion to the Appeal Court of BC or not.

The court will also hear from BC government lawyer George Copley whether backup email tapes of cabinet ministers and staff that were sent to EDS Advance Solutions for destruction in early May still exist or not.

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Comments:
If Kinsella is clean, I would think he would have his lawyer say, "sure Judge, we'll get the correspondence to you for you to see that he did absolutely nothing wrong with respect to the BC Rail sale while his firm was being paid by both, the BC Gov't and by CN Rail. After you see for yourself, Judge Bennett, you will of course respect that which should remain confidential and has no bearing on this BC Rail deal. And, as Mr. Kinsella was paid by the taxpayers, the taxpayers have a right to know what they got for their money. We wish everything to be cleared up and out in the open."
 
SIG--

Agreed.

Based on Mr. Tieleman's reportage so far, it would not be unreasonable for a reasonbale person to conclude that Mr. Kinsella's lawyer appears to be asking the judge to protect his client's reputation from his client's own deeds and actions.

Bizarre.

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what happened on bills blog kinsellas piece is gone ?
 
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I can only guess ... and my guess is either:

somebody is working on it, and it will be replaced soon,

or

Bill wrote something which worried the lawyers so their initial response is to remove the post. I doubt very much that this happened though.
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Probably just working on it to add the "More Later" When you edit the post it is removed from the web so that the changes can be made.
I also note that I commented on it around 4:30 and haven't seen the comment yet. Of course it may have been edited out for some reason. I'm sure bill will tell me if it has.
 
Thank you Mary hope fully some day you'll receive,some kind of recognition or award for you endless vigil!
 
Well, if they do result in a mistrial (as "we" have always worried about), at least it's a very spectacular raison de jeter and not a procedural blip.

But if emails that would implicate the Premier and Cabinet (and the "private", though living-on-the-public-teat citizen non-registered-lobbyist Mr. Kinsella) do exist, it begs the question what else might have implicated these pillars of the community that's in the still-sealed boxes.

And if Basi, Virk and Basi made these statements to the RCMP, by way of legal bargaining (which got Kierans and Bornmann off the hook for any charges), why were not investigations against the higher-ups in this sale never proceeded with? Why did it take these guys' defence strategy to bring the matter to light? Were RCMP investigators so inept that they couldn't see the writing on the wall of all the mass of evidence that they hauled out of the Legislature. Why go to all that bother, if you weren't going to examine things closely enough to make sure the right people were charged? And not just their underlings?

In other words, just because Regina v. Basi, Virk and Basi gets tossed out of court because of destroyed evidence, and even if the RCMP and Crown get off their asses and come up with charges related to destruction of evidence and obstruction of justice, that still doesn't exonerate those guilty of conspiring to "fix" the sale of BC Rail to CN Rail (that term borrowed from The Province's article) of criminal wrongdoing.

THAT investigation is the real elephant in the court room. i.e. fraud, collusion, racketeering, conspiracy, sale of benefits, accepting/making bribes, illegal contracts, abuse of office etc. - by "three individuals or more", which is the Criminal Code definition of a "gang" and/or "organized crime".

Digi-torching a pack of emails is by comparison a trivial crime, though still serious in being obstruction of justice. But "in for a penny in for a pound", they've already knowingly broken lots of laws, why not just one more? - especially, as might have been surmised in May, one that could have the trial shut down and further damaging information kept from getting out. More charitably, it was just bloody stupid and asking for trouble....

The emails are just the tip of the iceberg. The iceberg itself is how CN came to own what it now owns, and whether it achieved that ownership legally. I still think that FTA, GATT, SEC and other trade regulations may apply to this deal, given the skewed bidding process, if the right interventionary bodies are put on its trail (since BC and Canadian authorities have been so loathe to act....
 
Man these lib's are shit magnet's now kash heed is involved in yet another scandal,is there none clean in govt?and the same mo refuses to talk .Sorry about being off topic,but this truly is getting a bit over the top!When will the media step up?
 
Skookem 1 said,
"The emails are just the tip of the iceberg. The iceberg itself is how CN came to own what it now owns, and whether it achieved that ownership legally. I still think that FTA, GATT, SEC and other trade regulations may apply to this deal, given the skewed bidding process, if the right interventionary bodies are put on its trail (since BC and Canadian authorities have been so loathe to act...."

What an Astute 1 as well as Skookem 1 you are; this deal does cross international borders. Perhaps, if justice is not being served in BC, BC Mary can send the contents of her blog to some bodies that are more than an arm's length away.
 
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Good, strong, skookum point that Skookum1 made ... and I wonder if SIG might bring this to the attention of Leonard Krog ...

no, I am not kidding. This is his job, after all. For which we pay him a fat salary. But more about Krog later.

Thanks, Skookum & SIG.
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Friday, 11am.....

Today's Ledgie Boy report, which just might be the final one ever, is now up.

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Over at my place, for anyone interested.

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Hume's latest report on the release of Kinsella emails.
http://www.theglobeandmail.com/news/national/court-orders-some-kinsella-records-released-restricts-access-to-others/article1230396/

And, yes, Mary, I wil write to Krog as well as a few others with this idea.
 
re GATT, FTA, SEC - the phrase "unfair competition" stands out in my mind as a clear rationale for investigation by the tribunals attached to GATT and the FTA, and also to the investigations branch of the SEC.....
 
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N.V.G.,

You really are something special.

Thanks very, very much.

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