The Legislature Raids

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Salt Spring News - Tuesday, June 30, 2009
Regional News
http://saltspringnews.com/

Can anyone spell Watergate? Judge on BC Rail corruption case orders disclosure of MLA emails, part of materials the defence has spent years trying to force disclosure of.


Please click on: http://saltspringnews.com/ to see the photos of Nixon and Campbell.


You must pursue this investigation of Watergate even if it leads to the president. I'm innocent. You've got to believe I'm innocent. If you don't, take my job.
- Richard Nixon, 37th President of the United States (1969–1974) and the only president to resign the office.

Records that should be kept under the law have been kept.
- Gordon Campbell, 34th Premier of British Columbia, June 5, 2001 to the present.


JUDGE ON BC RAIL CORRUPTION CASE ORDERS DISCLOSURE OF MLA EMAILS
Steve Mertl
Canadian Press Canada - June 30, 2009

VANCOUVER, B.C. — A B.C. court has ordered the provincial government to turn over a potential trover of internal emails that could relate to the legislature raid case. The B.C. Supreme Court judge hearing the case Tuesday ordered the government to turn over MLA emails and other communications related to the controversial $1-billion sale of BC Rail to CN Rail in 2003. Justice Elizabeth Bennett will review the material to decide what's relevant to the corruption trial of three former government workers in relation to the sale, a case which now has dragged on for almost six years without going to trial. Bennett herself has been promoted to the B.C. Court of Appeal but the defence is demanding she stay on because she's issued a plethora of pre-trial rulings in the complex case. She's slated to hear their arguments later this month {snip} ...

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By Neal Hall
Vancouver Sun - June 30, 2009

Vancouver – The judge in the Basi-Virk case granted today a defence application to produce the e-mails of 15 MLAs and former MLAs, including Premier Gordon Campbell.

Justice Elizabeth Bennett's ruled that any e-mails are likely relevant involving contact with the government and the Pilothouse lobbying firm between Jan. 1, 2003 to Dec. 31, 2004.

The defence still has an outstanding application for disclosure of the premier's executive branch records, which will continue to be argued when the case resumes July 16 in B.C. Supreme Court.

"I have no idea how long it will take to get the records," the judge said Tuesday after making her ruling. "I guess it would take a month anyway."

Outside court, defence lawyer Michael Bolton said: "Overall, the defence is pleased."

He didn't know the volume of e-mails to be produced. "It could be huge," he said.

It was only the first stage of the third-party records application, which will continue Aug. 21, when lawyers for former and current MLAs can argue the issue of privacy rights.

The defence also will make an application July 20 for the judge, who was recently appointed to the B.C. Court of Appeal, to continue to sit as the trial judge.

The special prosecutor wants a new trial judge appointed as soon as possible.

A ruling made by Bennett last year in the Basi-Virk trial was appealed in April to the Supreme Court of Canada, which reserved judgment.

During her ruling Tuesday, Bennett said former deputy premier Christy Clark was served notice of the defence application but did not respond, so the judge assumes Clark is not asserting any privilege over her e-mails.

The judge pointed out that an e-mail already disclosed said Clark had contact with Erik Bornmann, one of the principals of the Pilothouse lobbying firm that was representing OmniTrax while it was bidding on the privatization sale of BC Rail in 2003.

{Snip} ...

The defence has also filed an application to seek the e-mails of the premier and cabinet ministers concerning the BC Rail sale.

A government lawyer told the court earlier this month that those emails may have been purged by the government's computer system.

Filed in court was an affidavit by Rosemarie Hayes, manager of the government's e-mail system, who said e-mails cannot be retrieved after 13 months.

The defence was shocked by the revelation but takes the position that the e-mails might still exist. The defence will likely call witnesses to hear how thousands of government e-mails could disappear.

nhall@vancouversun.com

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Vanished e-mails undermine trial

Editorial
TIMES COLONIST - JUNE 25, 2009


The apparent loss of four years of provincial cabinet e-mails strikes a blow at any notion that the B.C. Liberals see the need to be accountable for their actions. {Snip} ...

That e-mails written by cabinet ministers on key issues could have been deleted is almost unbelievable. The government has an obligation, after all, to retain important records. To that end, it backs up its electronic data, including e-mails, on servers housed in at least two locations in Greater Victoria.

If these cabinet e-mails are truly gone, that means there was a concerted effort to get rid of them. And that effort would have been made after the legislature raid and after the three men were charged. It would be hard to imagine that cabinet ministers did not discuss the central issue in the case, the $1-billion sale of B.C. Rail to Canadian National, either before or after the raid. {Snip} ...

Campbell says that all records that should have been kept under government laws, have been retained.

That provides no consolation, because the potential value of these records should have been noted by the government. Preserving them, rather than destroying them, should have been the priority. {Snip} ...

... cabinet e-mails reflect the reasoning of the most powerful people in the provincial government. These documents could have provided valuable background information that would give context for the actions of ministers. They could have made a huge difference in the court case as well. {Snip} ...

If cabinet communications, especially those potentially relevant to an ongoing criminal case, are not deemed worthy of retention, what is? And, more importantly, what else has been electronically shredded by the Campbell administration?

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The ruling on the broad MLA materials disclosure application by Defence was handed down today in Courtroom 43 by Madam Justice Elizabeth Bennett before ten lawyers and six or seven in the gallery.

Defence expressed general satisfaction with the outcome.

That in the midst of what the press appears to believe is a deepening of suspicion that Gordon Campbell is living his own "Watergate". Well-informed BC Rail Scandal journalist, Bill Tieleman, writes that the "parallels between the actions of the Gordon Campbell B.C. Liberal government and the Richard Nixon White House are becoming increasingly, disturbingly clear." (24 Hours, June 30).

Mark Hume,(Globe and Mail, June 30 09 S2) reports the request by NDP MLA Leonard Krog for an "independent and public investigation to determine the reasons for the disappearance of ...e-mails" that a government lawyer has just reported "disappeared" in the face of clear retention protocols and laws.

This morning, as if the e-mails are existent, Madam Justice Elizabeth Bennett ruled that in all cases where materials are related to lobbyists connected to Pilothouse, and those clearly connected to the allegations of fraud and breach of trust, documents are obviously relevant - not excluding those generated by Gordon Campbell.

That includes the Northern Caucus of MLAs, Gary Collins, Christy Clark, and others.

Madam Justice Elizabeth Bennett, however, appeared to draw a circle around Gordon Campbell, premier, and to suggest that apart from the potential connection stated, other relevance of his e-mails seems doubtful. The premier's materials, she ruled, with the exception of connection to Pilothouse, are not relevant.

The ruling today covered only the e-mail accounts of MLAs. Argument about the e-mail accounts of Gordon Campbell as premier and of the premier's office will be made by George Copley, lawyer for the Executive Council (premier and cabinet) and the Defence beginning on July 16 - Madam Justice Bennett to rule on relevance by July 20.

Postponed - perhaps until August - is the argument on the motion that Madam Justice Elizabeth Bennett be removed, and replaced as trial judge. The Crown argues that she has been promoted to the Appeals Court and should go. Defence argues that she has - for three years - been "seized" with the Basi, Virk, and Basi matter and cannot simply leave. Crown argues she is not "seized". The term usually means that the judge sitting has taken into his or her (almost) "ownership and responsibility" all matters related to the charges levelled against the accused. And there is every reason (I believe) - especially because of the number of applications for disclosure and decisions she has had to make - to say that she is, indeed, "seized" with the Basi, Virk, and Basi matters.

Moreover, the motion to have her removed might be seen by many to be on a parallel with the "disappearance" of four years of MLA and cabinet e-mails - a convenience that is altogether too fortuitous to be accidental. Michael Bolton for the Defence, outside the court, reiterated his belief that the person to rule on the motion for her removal is Madam Justice Elizabeth Bennett herself.

Her decision, when it comes, I believe will say volumes about "the interests" being served in the whole BC Rail Scandal. Many believe the RCMP has shown itself so biased in the Basi, Virk, and Basi matter as to be almost without credibility. The Crown seems, to some at least, to have been too ready to observe delays in disclosure with passivity and, perhaps, to further the delays.

No one who I know or have spoken to (those well informed) seems to believe that the case has been pursued with determination and efficiency. I have observed from time to time what I believed was a failure of Madam Justice Elizabeth Bennett to require timely and expeditious response to disclosure requirements.

Delay in the past has been "arguable". The so-called loss of four years of MLA e-mails cannot be placed in that category, nor (I suggest) can the motion to remove Madam Justice Bennett. They appear to me to be wide open signs of fear and near-panic among the Gordon Campbell forces. That, I believe, is why Bill Tieleman writes about Gordon Campbell's own "Watergate".

History, however, doesn't usually repeat itself. Gordon Campbel sold off BC Rail against all odds (and promises). He has managed to keep important terms of the sale secret from the people of B.C. for years. On July 14 there is every likelihood that he will alienate more of the BC people's assets to CN Rail - probably in secret, without intervention of the Opposition or anyone else.

I am saying: "Don't count Gordon Campbell out." Someone as willing as he is to manipulate, violate, and besmirch democratic protocols and procedures may still have considerable rope to pay out before he hangs himself.

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(Click on title to see article)

JUDGE ON BC RAIL CORRUPTION CASE ORDERS DISCLOSURE OF MLA EMAILS

By THE CANADIAN PRESS – 58 minutes ago (June 30, 2009

VANCOUVER, B.C. — The B.C. government has been ordered turn over more emails and other records connected to the privatization of BC Rail in the corruption trial of three former government officials.

Justice Elizabeth Bennett of B.C. Supreme Court has granted a defence application for access to communications by Liberal MLAs related to the $1-billion sale of the Crown-owned railway to CN Rail in 2003.

Most were members of the Liberals' northern caucus but the list includes cabinet ministers and Premier Gordon Campbell.

The decision covers MLA email accounts, and is separate from a defence demand for material from executive council email accounts given to cabinet ministers.

The defence had filed a broad application covering a period from June 2001 to the present but Bennett cut the time frame sharply to cover 2002 to the end of 2004.

{Snip} ...

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Blogger problems today ... but if you can access The Tyee, there's a good Bill Tieleman column and some cool comments. Here's the URL:

http://thetyee.ca/Views/2009/06/30/CampbellWatergate/

And don't miss Laila Yuile's column from yesterday, about the BCRail land issues. Laila couldn't get access to comment on Bill's Tyee story so I posted an intro for her story there, too.

Back soon, I hope, when Bloggerworld sorts itself out. Some things work, other things are frozen. Thanks to Bill Tieleman who told me that it's indeed "Bennett Day" in BC Supreme Court and that he'll attend later. - BC Mary.

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Walking among us, are many Canadians who believe that if the Campbell Capers were occurring anywhere within the actual borders of the U.S.A., there would be quite a few well-known B.C. personalities looking out from behind prison bars. This is the first time BC Mary has directly invoked the views of our southerly cousins. What do you think of this U.S. report and the subtlety of its concluding paragraph? - BC Mary.
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LEARNING FROM OTHERS' MISTAKES: A CASE FOR eDISCOVERY

By Marisa Peacock | Jun 30, 2009
http://www.cmswire.com/cms/enterprise-cms/learning-from-others-mistakes-a-case-for-ediscovery-004950.php


Tags: compliance strategy, ediscovery, enterprise cms, information management, records management


Canada has been gracious enough to offer themselves up as an example of why having an eDiscovery system in place is really important.

It has been reported that in British Columbia, many email correspondences that occurred between the executive branch and the cabinet during one of the biggest business deals in Canadian history: the sale of BC Rail to CN Rail have been accidentally or mistakenly deleted.

Wiped Out

According to The Globe and Mail, "Wiped out, according to George Copley, a lawyer representing the B.C. Executive Council, are four years of tapes covering the crucial period when the government negotiated the sale of BC Rail to CN Rail."

Not only is it embarrassing to admit that these errors occurred, it's also very expensive. This case has the potential to be one of the most expensive ediscovery cases ever in Canada.

Implementing eDiscovery for the enterprise creates some organizational challenges, such as whose responsibility is it to search and discover? Some point to IT, while others point to Human Resources. The truth is — as the Canadian government is learning — is that having a fast, dependable and well-organized compliance strategy to protect your company in the event of an eDiscovery request, is the responsibility of the enterprise period. [Need I add here, that this is a commercially-oriented news service? - BC Mary.]

Saving Face & Legal Trouble

Of course, eDiscovery isn't just about saving you time, money and embarrassment, it's about effectively managing, archiving and accessing all the information across the enterprise, in all formats so that it can be easily searched and tagged, hopefully saving your company from the possibility of litigation. A well organized company is not only a more productive one, it's one that is proactive rather than reactive.

As for Canada, considering that the defense argues the accused men were acting on the orders of their superiors — and maintain the e-mails could prove that, it's not hard to figure out why those deleted emails might have helped the prosecution build their case.

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Quote of the day

Rafe Mair in The Tyee: As the Basi-Virk case unfolds, as BC Hydro starts its inevitable break-up and the public learns the full truth about the government's appalling policy on fish farms and sees just what its rivers policy means, Campbell will be seen by all -- including his MLAs and supporters -- as the political fraud he is.

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Say it quickly and it might not seem so serious ... "BC Rail lands will be transferred to CN for $1. on the 5th anniversary ..." But while searching for THE agreement, trying to find exactly what's being promised and when it's promised, I found a DESCRIPTION OF LANDS at Schedule A in the 457-page "Revitalization Agreement".

There are 2,509 properties covering 101 pages under Part 1 - Fee Simple Lands. Frankly, I don't understand the "Note" which heads the listing. Readers should look this up HERE at Page 77, A-1, and decide for themselves. The geographical locations of the properties are as follows:



It was a betrayal of democracy which took the British Columbia Railway out of British Columbia hands against the majority wishes.

It was simple treachery which slipped this public asset into the private pockets of CN shareholders -- Bill Gates being the largest single shareholder -- in a secret agreement.

Five years later, it is an outrage that matters can get even worse if BCR lands are given to CN for $1. as a 5th anniversary memento.

Criminals are at work here, in all levels of society. The proof is that 4 years of evidence has been made to disappear during a Supreme Court trial which is so important to the province that it will demonstrate, once and for all, whether Beautiful British Columbia is a functioning democracy or a failed state operated by gangsters in Armani suits.

Every citizen can do something to stop the give-away of further BCRail lands, and to get the BC Rail trial under way in BC Supreme Court. All it takes is to shine a very bright light into all corners of the Gordon Campbell regime. And to keep asking the questions. - BC Mary.

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Copied, with permission, from Laila Yuile's blog:

Norman Farrell, on June 29th, 2009 at 2:36 pm Said:

Near the Britannia lands, starting south of the mining museum, was a 450 acre parcel known as the Makin lands. This included a good amount of developable land and waterfront including the best beach in the area. A family dispute had the property tied up in litigation for years and the lawyers and the receiver kept it that way until the family’s equity on both sides of the dispute was sucked away. Wow, were they effective running up millions in fees to “protect” the land and its value.

Howe Sound and Britannia is an obvious site for major residential and townsite development. Fortunes will be made in the area two and three decades from now. When we have squeezed out the last of the Fraser Valley ALR, those picturesque mountain slopes and ocean views will be very attractive in Howe Sound. Building lot values of ocean view properties will be $50 – $100 a square foot, in today’s dollars.

Back in the nineties, when I was loosely attached, BC Rail was the key landowner of the region between West Van and Squamish. Everyone who looked at future land use in the corridor had two questions. About zoning and road planning and they key one, “What will BC Rail do?”

Campbell and his pal Jim Moody knew the railway was the key to fortunes, if not for themselves and their friends, but for their children and grandchildren.

A move you will see before Campbell leaves office will be the establishment of new municipal or regional district structures so local impediments won’t stop the big boys from doing what they want.

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This is not funny. This may be comedic, satirical, but not funny. Excerpt from Oral Reasons for Judgment in Chambers, November 14, 2006 [Click HERE to see full document]:

[9] An information was laid in the B.C. Rail case in December 2004. Requests for disclosure were made by defence immediately. Apparently no disclosure was made when the charges were laid. The defence has characterized this as a “black cloud” that hung over the whole process. I do not find that it was a black cloud, given that it is not unusual that disclosure is not available the instant charges are laid.

[10] Disclosure commenced on January 20, 2005. A direct Indictment was filed on January 28, 2005, bringing the matter immediately to this Court without a preliminary inquiry in the Provincial Court.

[11] On March 10, 2005, a day prior to an appearance in this Court, 11,000 documents were disclosed. The disclosure is being provided electronically.

[12] In the appearance before Associate Chief Justice Dohm on March 11, 2005, the Crown advised the Court that the disclosure was substantially completed and final disclosure would be complete in two to three weeks.

[13] A trial date was fixed, at the urging of the Associate Chief Justice, for November 28, 2005. It was clear, shortly after that date was fixed, that disclosure was going to be an issue. There was no index for the 11,000 documents which had been produced. The software provided at the time did not have a proper search function. Apparently that issue has now been solved.

[14] Due to the diligence on the part of defence counsel in reviewing what was disclosed, Mr. McCullough discovered a number of documents missing from the disclosure package. These are listed in the many letters he sent to the Crown outlining his concerns regarding the disclosure process, and reference may be made to documents at tabs 14, 15, 16, 17, 18, 19 and 20.

[15] The defence is concerned that the Crown is not sufficiently involved in the disclosure process and has left the bulk of the disclosure to the police. This is supported in the affidavit of Corporal Mar wherein she states the procedure she and Constable Ma have followed to conduct disclosure. That is not to say that the Crown has not been actively involved. They have been. Further, it is not to say that the police should not be actively involved; needless to say, they must be. However, the state of the document disclosure suggests that at least initially the disclosure was being primarily performed by the police.

Many paragraphs later, the Honourable Justice concludes: "No need to cross-examine Constable Ma or Corporal Mar."

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Special thanks to North Van's Grumps for this link. He has provided more links in his comment following the Neal Hall posting below. - BC Mary.

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Q. If you were The Honourable Madam Justice Elizabeth Bennett, would you (a) choose to continue presiding over the BC Rail trial to the end? Or would you (b) choose to step up immediately into the BC Court of Appeal for a fresh start?

My answer is a guess: that if she steps aside at this point, it's a devastating indication of the flim-flammery of this tragic trial. If she decides to stay on as judge, I'll take that as a sign that somebody with integrity is willing to act in the public interest ... slow, indifferent, uber-tolerant as the process has been so far.

On Tuesday, June 30, 2009, in BC Supreme Court (Vancouver), in another pre-trial hearing for Basi Virk, we may hear her own answer to that question. - BC Mary.

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An interesting column about the duties and accountability of judges in Vancouver Sun - June 29, 2009: Lots of people make mistakes at work, but judges are rarely subjected to disciplinary measures no matter what the cost of their errors.

Read it HERE.

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An interesting comment made this morning, privately:

Is it the judge's jurisdiction to order charges for breaking the Records Act? WILFULLY breaking it? Seems like it should be the A-G or Crown Prosecutor, but I still don't get what the prescribed sentence would be....

The only remedies here may be post-facto, i .e. in terms of written history critical of what went down, it may be impossible to be preventive because of the cooptive nature of the entire political/policing/judicial process...

HOWEVER if collusion, conspiracy etc are ever proven, the whole contract could be revoked, even if the transfers have already taken place; unless that's exempted in the contract; in which case it's an illegal contract, which might be one of the reasons it's being kept secret, and why the Competition Bureau doesn't want to touch it...it's not like all this HASN'T been being discussed in Ottawa....

Between the nonsense about the deleted emails being unrecoverable (I'm sure they are, if someone really went at it right) and the Bill Gates linkage and the context of CN entering into a secret/fradulent contract with the BC government aimed at getting control of lands subject to aboriginal claims, I' ve been trying to figure what to say to Wired Magazine, or even just what to circulate on the many anti-Microsoft/anti-Gates blogs out there....hitting at CN may be easier than hitting at the BC govt.....and may help enlist the technical know-how to completely undo the claim the emails are unrecoverable; even if "illegally" recovered by a hacker, their contents could prove explosive....why else, after all, would they have been deleted?

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Thanks to "Eva", I was prompted to search for what has been posted on The Legislature Raids for times like this, when we are searching for information on the secret BCRail deal. I think it's important to review what the First Nations have said. - BC Mary.
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Received this morning, from Rafe Mair. I've already sent a message to him about BC Rail and
July 14, 2009. I hope many others will write to him - and write to others, too. Time is so short but e.mails are so fast. We can do this! - BC Mary.
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Hi everyone ... Rafe here asking a favour.

My website, www.rafeonline.com is humming again. I plan more than one blog per week in addition to my weekly article on www.thetyee.ca

Would you be kind enough to pass this on to your address book asking them to do the same?

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Source of insider BC Rail leak from cabinet questioned in court

VANCOUVER – The office of Premier Gordon Campbell controlled the controversial sale of BC Rail with an "iron hand," a lawyer alleged Thursday at the political corruption trial involving former government aides.

Kevin McCullough, the lawyer for Bob Virk, one of two senior former political aides accused fraud, breach of trust and accepting benefits in exchange for confidential information about the bidding for BC Rail, read out a series of e-mails leading up to the sale of the railway.

The lawyer pointed out that the premier's office sent an e-mail to Kevin Mahoney, a vice-president of BC Rail, suggesting who should be invited to the northern transportation conference in November 2002

"This is the set-up breaking the election promise," McCullough said, referring to the fact that the premier had won the election on a campaign promise not to sell BC Rail.

"The premier's office was engaged in substantial control of the BC Rail deal and the BC Rail agenda," the lawyer told Justice Elizabeth Bennett.

The lawyer was trying to show that the defence has some e-mails from BC Rail showing the involvement of the premier's office but is seeking further disclosure of e-mails from the premier, his chief of staff at the time, Martyn Brown, and other cabinet ministers.

The defence first has to convince the judge of the likely relevance of the e-mails before the judge will make a disclosure order.

But earlier this week, government lawyer George Copley revealed the e-mails being sought may have already disappeared.

Copley presented two affidavits to the court, including one from Rosemarie Hayes, manager of the government's e-mail system, who said e-mails cannot be retrieved after 13 months.

The defence applied in June 2007 to get Campbell's e-mails, as well as those of cabinet ministers related to the privatization sale of BC Rail, which was sold to CN Rail for $1 billion in 2003.

The missing e-mails pertain to 15 or 20 people who are on the Crown witness list.

On Thursday, Copley provided some further clarification, saying if the e-mails weren't printed off and put in files, they do not become part of the operational records of government.

Transitory material, which he described as "routine records of no value," are discarded or purged from the computer system, he said.

Copley said questionnaires have been sent to nine people who have searched the files and, once their answers are returned, "we will file nine separate affidavits" to try to answer some of the questions posed by the defence lawyers.

"There may be no explanation," the lawyer said. "No filing system is perfect."

Defence lawyers were shocked to learn that e-mails that could be crucial to the defence case may have been allowed to disappear.

Michael Bolton, the lawyer for Dave Basi, told the judge Thursday that administrative and operational records of government ministers, deputy ministers and assistant deputy ministers are supposed to be retained for 10 years.

He said the unprecedented police search of the legislature on Dec. 28, 2003, should have alerted the government and its staff to retain the records from that period.

At the time of the police raid, Dave Basi was a senior aide to then finance minister Gary Collins and Virk was a senior aide to then transportation minister Judith Reid.

Aneal Basi, who worked in government communications, is accused of money laundering.

The case has been adjourned until next Tuesday.

Earlier in the day, McCullough said the RCMP investigation found that government lobbyists were getting inside cabinet information about the pending BC Rail sale in 2003 but police never fully investigated the source of the leak.

"The Crown's theory in this case was that [Bob] Virk and [Dave] Basi were disclosing confidential documents for benefits," the lawyer told the judge.

"There were other sources of information," he said, reading out a series of emails involving Erik Bornmann, Brian Kieran and Jamie Elmhirst, who were partners in Pilothouse, a lobbying firm that in 2003 was representing OmniTrax, a Denver-based company that was bidding on BC Rail.

The e-mails quoted what was being discussed in cabinet meetings.

When Kieran was interviewed by the RCMP, he said Virk was the source of the insider cabinet information because transportation minister would "debrief" Virk after cabinet meetings, McCullough said.

And when police interviewed Bornmann, he said Basi was probably the source, the lawyer pointed out.

McCullough told Justice Elizabeth Bennett that police bluntly asked Bornmann if he had a source in cabinet and he replied no. But Bornmann mentioned that he had conversations with then deputy premier Christy Clark because Bornmann was a friend of Clark's husband, Mark Marissen, he added.

At the time, Bornmann and Marissen were deeply involved in the federal Liberal party – Marissen was B.C. campaign chair for Paul Martin's successful bid for the federal leadership and served as B.C. campaign co-chair for the 2004 and 2006 federal elections.

Clark quit provincial politics in 2004 and now hosts a radio show on CKNW.

McCullough said when RCMP interviewed the transportation minister, Reid, and the finance minister, Collins, in 2004, both adamantly denied they discussed confidential cabinet information with Basi and Virk.

"The RCMP goes to Collins, who denies telling information to Basi and Virk," the lawyer said.

"They never go back to Bornmann," McCullough said, adding the Mounties tailored their investigation to target Basi and Virk.

Neal Hall's full report is HERE.

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Read Bill Tieleman's column for today, June 25, 2009 HERE.

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See also "Delete my #'?*'ing expletives, Mr Premier" from North Shore News ... HERE.

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North Van's Grumps said... [on Bill Tieleman's blog]
Whats his name, the lawyer representing the interests of the Executive Council over the Courts [George Copley - BC Mary], stated that all of the emails have been deleted..... sooooooo at the Ministry of Labour and Citizens's Services at Records Management ...PAC Submissions and Approvals between 1997 to 2007, there hasn't been one submission made by the Executive Council to dispose of their documents between 2001 and 2007.

How did the emails get destroyed then if these people who serve on the Public Documents Committee which consists of the chief executive officer of the museum or a person designated by the chief executive officer, a person designated by the minister responsible for the administration of this Act, the Comptroller General, and 3 other persons to be named by the Lieutenant Governor in Council didn't elect for their disposal... which is then required to be approved by the Legilslative Assembly where the NDP and other like minded souls would vote AGAINST the destruction of the evidence.

NOTE:
The PDC meets regularly to review records retention and disposition schedules submitted by ministries and other government bodies for the Committee's approval. Representatives from ministries and government bodies, as well as the Corporate Records Management Branch, attend each meeting in order to answer questions from the members of the PDC. If the PDC approves, it submits the records schedule to the Select Standing Committee on Public Accounts (PAC), which is a Committee of the Legislative Assembly. The PAC in turn recommends approval of the records schedules to the Legislative Assembly.

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Years have passed. In 2009, we know Gordon Campbell much better. We know him as a micro-manager with an obsessive determination to have his own way. Given his style of leaving almost nothing written into the record on the BC Rail deal (not even the deal itself!) ... and given the deletion of 4 years' worth of relevant e-mails ... does it seem logical that Gordo sat with hands folded and a bag over his head for the 3 weeks in December 2003 during which he knew without a shadow of doubt that uniformed police would come looking for evidence? And while police were knocking on Christy Clark's door, Erik Bornmann's door and others' ... didn't any policemen show up at Gordo's door?? - BC Mary

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Reprinted from:
The Legislature Raids - January 16, 2008

By Three Concerned Canadians


During the month of December 2003, key people in the B.C. legislature knew that an unprecedented police raid was coming. The public ever since has been asked to assume that the Campbell government and staff sat meekly for 28 days, doing nothing to protect themselves. We question that assumption, in the light of the Special Prosecutor's continuing refusal or inability to disclose documents required by the Basi, Virk, Basi Defence.


Dec. 1, 2003 - B. C. Attorney General Geoff Plant is told by his staff that a case requires the appointment of a special prosecutor and may involve a search of the B.C. legislature.

Dec. 7, 2003 - Mandeep Sandhu is elected to the executive of the Liberals in Esquimalt-Juan de Fuca.

Dec. 9, 2003 - Police raid Mandeep Sandhu's home in Saanich. Police question Sandhu and seize a computer. Sandhu is later released. No charges are laid.

Dec. 11, 2003 - William Berardino is appointed special prosecutor to oversee an investigation involving a member of the Victoria police and appointees at the legislature.

From: IN DEPTH - B.C. RAIDS. CBC News Online, Sept 14,2004.

This CBC snippet says that the appointment of Berardino on December 11, 2003 involved a member of Victoria police (since charged and convicted of obstruction of justice); and that it also involved "appointees at the legislature". Does it matter whether the Special Prosecutor was David Harris or William Berardino? The point is: a special prosecutor was appointed without public knowledge of it. Hansard records the Opposition Leader's protests in the legislature, which will be mentioned later.

Complicating factors not yet mentioned by the Basi Virk Basi Defence team entered this scene in December 2003.

Bill Berardino was appointed by then-Attorney General Geoff Plant with whom Berardino had formerly been in practice. Is this an arm's length appointment? Or was it the basis for building a collegial team?

Special Prosecutor for the different set of events leading up to the Legislature “raids” was David Harris (p.8, item 57, Application for Disclosure). He was not at arm's length, either. Harris was the law partner of Bill Berardino. Harris was the one giving legal advice on the day of the raids. Was this a collegial team beginning its work?

And then there is the intersecting relationships between Plant, Berardino and Harris....when presto! Harris is strangely supplanted by Berardino. When? Why?

But then Harris seems to have disappeared. Bill Berardino, apparently, added matters concerning the Legislature raids to his responsibilities.

When? Why? asks Robin Mathews.

"Can we see a pattern in the extraordinary Application for Disclosure of February 26, 2007? To an average, concerned, and reasonably intelligent observer, a pattern seems to appear throughout which suggests the Special Prosecutor has been utterly unable or unwilling to fulfill his responsibilities, and that the RCMP has been careless or purposefully obstructive in producing essential materials. I would say it also reveals that the presiding judge has failed to be in control and to insist upon the speedy, competent, fair, and full opening up of materials essential to a trial of integrity." - Robin Mathews. Vive le Canada, March 5, 2007.

The word "collusion" springs to mind. In the month of December, 2003 -- even though the legislature came together on a special sitting of December 16, 2003 -- not a word was said about the appointments of two special prosecutors for two ongoing and intertwining investigations.

The list gets longer about the number of people who knew these investigations were underway before the raid on the legislature even took place. And it is really hard to imagine that the ever-controlling duo of Gordon Campbell and Martyn Brown were kept out of that loop. What it looks like -- dare we say it? -- is a team seemingly coming together ... doing what??

Now we should look at Hansard Debates. This quote from Hansard Debates is an important part to take into consideration. MacPhail begins a series of questions about what she calls the "secret appointment" of Berardino in early December.

From line 1920 to the end of the page is very interesting - (Coleman constantly tries to skirt the issue of the exact date of the appointment of Berardino). MacPhail does remember and she is clearly tying it into a memory of a special meeting of the legislature called about the IWA.:

J. MacPhail [Leader of the Opposition]: Yes, I know. The special prosecutor was appointed in early December, and clearly, the Solicitor General is saying that the Attorney General didn't tell him anything about that. What role, if any, is then required of the Solicitor General? The Legislature was sitting while the special prosecutor was appointed. We had a special sitting to deal with ordering IWA workers back. Cabinet was meeting, the building was busy, and there'd been a special prosecutor appointed that no one knew about — no one knew about.

The Hansard debate list for December 2003 reveals that the legislators break for Christmas holidays on December 2. Hansard clearly shows them wishing each other happy holidays, the Lt-Governor Campagnolo is called in to formalize the closure of the sitting, etc.

But then you will notice a "special" return of the legislature on Dec. 16 (just as Joy said) with the forest issues clearly on the agenda. (That may have been an oh-so-convenient excuse that allowed some of the BCLibs to assemble without people wondering why. This may be cynical - but on the face of it, the people of B.C. have lots of reasons to be cynical.)

Isn't it the appointment itself, without public knowledge of it, (and taking place before the raids) that is the essential question here? And that there was time to have tampered with documents held by the Ministry of Finance, the Ministry of Transport, or their Ministerial Assistants before the raid took place?

Because to launch their unprecedented raid, the RCMP had to seek the consent of the Speaker of the House in order to enter "his" House. Solicitor General Rich Coleman was aware of that. But it is not clear why he felt he had to accompany the RCMP on a flight to Kamloops to obtain Claude Richmond's signature. What was his role in this trip? Whose side was he protecting?

So a special prosecutor could have been appointed on or around Dec. 11, 2003, which is 17 days -- more than 2 weeks -- before the raids.

This was a government 2 years into its 4-year mandate with a massive majority of 77 Members and a 2-Member Opposition. Had they grown sloppy? Possibly. For example, Notice of Application for Disclosure, para 53 ... without specifying where the information came from ... does say this: "On the application for the search warrants, they advised Mr Justice Dohm that Minister Collins was not a target of their investigation." The astute observer might doubt that such a statement could have any credence on that date (December 12, 2003).

So if they had made some errors in judgment, would a powerful sitting government be eager to help in revealing any shocking displays of its own dirty laundry? We don't think so. We think there more likely would have been an almost irresistible urge to cover up evidence.

Look: There was time. There was a motive. There was opportunity. There was a team. There was the quietness of the Legislature at Christmas when many people were off duty. Survival -- even political survival -- creates strong temptations. The human mind might well consider tampering with documentary evidence in the offices of the Ministry of Finance, the Ministry of Transport, or their Ministerial Assistants with so much quiet time before the raid took place. Who would ever know?

The facts show that the police raid on the B.C. Legislature could not possibly have been a surprise to the sitting government for a full 28 days.

The facts show that the sitting government did not maintain an arm's length approach.

Consider this, by Robin Mathews:

"More important by far are the substantial reasons Defence counsel give for the Application [for Disclosure]. I will cite only some of the most revealing ones.

(1) They state that (item 38, page 5) “On November 17, 2003, the RCMP learned through a series of intercepted communications that Mr. Basi advised OmniTRAX that Minister [Gary] Collins, [minister of finance] had authorized a consolation prize [perhaps a veiled bribe?] for Omnitrax in exchange for them staying in the bidding process…”[for B.C. Rail]. [Negotiations with OmniTRAX for the Roberts Bank spur line were terminated later on advice from the RCMP that the matter was tainted.] Minister Collins met with omniTRAX representatives on December 12, 2003, (page 8, item 62) but “the RCMP elected not to conduct any further investigation of Minister Collins”.

So one day after the appointment of Berardino on Dec. 11, Collins is meeting with Omnitrax on Dec. 12 - and even with a special prosecutor in place, and the wiretap tip about Collins and the "consolation prize".... no further investigation of Collins is decided. (And it is quickly said after the raid that no government officials are involved.)

The heart of these questions: Could such matters be causing the bewildering efforts by the government, 4 years later, still desperately seeking to avoid disclosure?

Isn't it logical to assume that the same sitting government in 2008 would quite honestly be unable to provide documents which had been destroyed in December 2003? Do Basi, Virk, or Basi know? And if they know, will they break the logjam by giving that evidence?

The people of British Columbia must judge these matters for themselves as the pre-trial hearings continue: January 18, January 28, January 29, 2008. The trial for the 3 lesser players in these scenes, may begin on March 17, 2008. We hope so.
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I have found only one direct quote from Campbell: "I heard that it had to do potentially with money laundering and drugs. That's the extent of it," Campbell said of his briefing. "Everything the solicitor-general [Rich Coleman] did, was done with the approval of the RCMP." My hastily scribbled note says only "Page 3" indicating that it came from the 8,000-page document dump at the Basi Virk trial. - BC Mary.

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Called for 'thorough, complete, diligent investigation'

The destruction of thousands of government e-mails in the B.C. Rail scandal is astonishing and disturbing, especially when you consider the Liberals' years of assurances about the integrity of the investigation and the need to preserve evidence.

Immediately after the cops raided the legislature in 2003 it was Premier Gordon Campbell himself who said no stone must be left unturned in the search for truth and accountability.

"There is an ongoing investigation and I've told everyone to be as open and transparent as they can about the entire situation," Campbell said, while calling for a "thorough, complete and diligent investigation in the public interest." Job 1 of any thorough investigation is the preservation of evidence. But now Campbell is the same guy shrugging off the disappearance of thousands of e-mails with a lame "we followed the law" excuse.

If that's true, then the law is an ass. The government's own rules on the preservation of e-mail records is shot through with loopholes, allowing politicians and bureaucrats to permanently delete e-mails that are "temporary" or "transitory" in nature, whatever that means.

It's precisely because those vague terms are so wide open to interpretation that the law contains specific overrides, requiring the government to preserve records that have "legal" or "evidentiary" value.

So did the government really follow its own laws when it vaporized thousands of e-mails? You can bet a gaggle of lawyers -- all working on your dime -- will now have a grand old time arguing the point in court.

But it gets more pathetic than that: It was only a few weeks before the cops raided the legislature that Campbell's own top deputy was caught deleting e-mails to prevent their release to the public.

"I delete the stuff all the time as fast as I can," Ken Dobell admitted back then, earning himself a tongue-lashing from the province's freedom of information commissioner and a promise from the government that e-mails would not be destroyed.

"E-mails are documents of record and they should be treated accordingly," cabinet minister Sandy Santori scolded Dobell.

"It's a concern to me that he may not have had the knowledge in terms of what his responsibility was with respect to those documents." Santori subsequently resigned from the Campbell cabinet -- while Campbell put Dobell in charge of reviewing evidence in the B.C. Rail investigation before it was released to the police! Sadly, there are probably people in Victoria smiling from ear to ear about all this.

Despite Campbell's lofty talk about openness and transparency and a diligent quest for justice, the government secretly hopes this whole ugly corruption case goes off the rails and never makes it to court.

Whoever pushed the delete button on all those e-mails brought that possibility one step closer to reality -- and insulted all British Columbians, who deserve to know the truth about the B.C. Rail scandal.

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Suggestion: look up Michael Smyth's column in The Province today, and leave a comment. I did. I said thanks to Michael, and invited him to join us in our efforts to stop further BCRail giveaways on or before "BC Rail Day". Meantime, I thought it might be helpful to dig into the Archives here, and reprint the statement from "Three Concerned Canadians" who realized that the Campbell Gang had ample time ... before the police raided the Legislature ... to interfere with the BC Rail evidence.

- BC Mary.

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From Hansard - April 21, 2004.
Jenny Kwan, MLA (NDP), Paul Nettleton (Independent MLA for Prince George-Omineca and disillusioned BC Liberal), Kevin Falcon (Minister of Transportation) and Geoff Plant (Attorney-General).

B.C. RAIL AGREEMENT WITH CN RAIL
AND FIRST NATIONS CONSULTATION

P. Nettleton: Further to my question from earlier this week regarding the giveaway sale of B.C. Rail and the concerns raised by the CSTC chief, Harry Pierre…. In his letter I quoted, he goes on to say: "You should be aware that despite the recent amendments to the British Columbia Railway (Revitalization) Amendment Act, 2003, or Bill 89, a change in control or a transfer of rail tenures in the absence of the adequate consultation and accommodation with CSTC members is not only vulnerable to a legal challenge but will certainly pass a defective title which would become a liability to the acquiring company."

My question is: in this government's desperation to push this deal through, no matter what, has the minister considered the consequences of defective title being passed to CN Rail and the implications not only for CN but also for the provincial government, and its cumulative effect on the people of B.C.?

Let's face it: the government's B.C. Rail deal stinks. From every angle it was a bad deal when the Premier first suggested it, and it's an even worse deal now.

Interjections.

Mr. Speaker: Order, please.

P. Nettleton: Will the minister now do the right thing and scrap the deal while he has a chance?

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Mr Krog & Associates: It is now June 25, 2009 and I have had no response whatever to my urgent message sent 3 days ago, and copied below. Since the request is TIME SENSITIVE, and concerns British Columbia's future, please give this immediate attention.

After adding this note on 25 June 2009 (today), I re-sent my appeal for help but I am steamin' mad that these well-paid Opposition members haven't learned to do 2 or 3 things at once, let alone multi-tasking. We now have only 19 days before it's Game Over for BC Rail. Please, everybody: write to these people. To Krog. To Carole James. To your favourite journalists. Explain to them. Sheesh.

And by the way, other rumours say that no approval or consent was obtained for CN to be running trains across First Nations lands either ... another deal-breaker. God knows what else is in those secret contracts. So please write to Gordo too, and say "SHOW US THE CONTRACTS!" If that doesn't work (and I'm pretty sure it won't, but we gotta try everywhichway, if you get my drift) please help us get an injunction to stop further benefits from sliding into CN pockets until the people of BC actually SEE the contracts we're supposed to be agreeing to. And the deadline is now ... - BC Mary.
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Y'see, on Jun 23, 2009, I wrote politely, as follows:

Leonard Krog Opposition critic for the Attorney General
Dear Mr Krog,

It's only 21 days until July 14, 2009, the pivotal 5th anniversary of the BC Rail - CN deals.

The Privatization and Revitalization Agreements are still secret and that, in itself, cries out for redress. If rumour is true, further benefits to CN will be automatically triggered on that day without British Columbians even knowing. That is fundamentally a legal outrage.

According to rumour, there is a repossession option on a one-time-only basis, triggered on this date, too. I understand that CN is in default on at least one promise (to purchase 600 new railcars) which is a deal-breaker. How can British Columbians exercise their legal options if they have never seen the agreement? Another legal blasphemy.

Others, commenting on my web-site, are worried and angry about this situation. One of them has proposed what seems to be an excellent remedy and I ask your assistance: to seek an injunction before July 14, 2009 to stop any further activity on the BC Rail - CN agreements until:

* the terms of the deals are fully opened to the public,
* the public has time to consider the terms,
* it is proven that nothing illegal, no corruption or wrongdoing entered into that important agreement.

There is no time to lose. I ask you now, will you undertake immediately, on behalf of the people of British Columbia, to seek and obtain that injunction?

Mary Mackie.

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

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A CanWest newspaper is turning against the Campbell Government?
Times Colonist editorial - June 25, 2009

The apparent loss of four years of provincial cabinet e-mails strikes a blow at any notion that the B.C. Liberals see the need to be accountable for their actions.

The destruction of all provincial cabinet e-mails from 2001 through 2005 was revealed in B.C. Supreme Court this week, as part of the trial of three former government employees in a corruption case. The charges against them were laid in the wake of police raids on the legislature in December 2003.

Two weeks ago, defence lawyers sought the disclosure of e-mail records of several members of cabinet and Premier Gordon Campbell. In response, a lawyer for the executive council said the e-mails were not recoverable.

That e-mails written by cabinet ministers on key issues could have been deleted is almost unbelievable. The government has an obligation, after all, to retain important records. To that end, it backs up its electronic data, including e-mails, on servers housed in at least two locations in Greater Victoria.

If these cabinet e-mails are truly gone, that means there was a concerted effort to get rid of them. And that effort would have been made after the legislature raid and after the three men were charged. It would be hard to imagine that cabinet ministers did not discuss the central issue in the case, the $1-billion sale of B.C. Rail to Canadian National, either before or after the raid.

The e-mails might have provided information that would help the accused argue their case -- or that might have undermined their defence. The e-mails might have made politicians look wise or foolish. We will never know, because the evidence is gone.

Campbell says that all records that should have been kept under government laws, have been retained.

That provides no consolation, because the potential value of these records should have been noted by the government. Preserving them, rather than destroying them, should have been the priority.

The Document Disposal Act requires that electronic records be kept for seven years, unless they are purely temporary, such as a confirmation of a lunch date. We don't expect that every e-mail written or received by 30,000 government employees would need to be saved for future reference.

But cabinet e-mails reflect the reasoning of the most powerful people in the provincial government. These documents could have provided valuable background information that would give context for the actions of ministers. They could have made a huge difference in the court case as well.

The government has systems that allow the retention of records. All government employees -- and especially cabinet members -- need to be aware of them, as well as the need to retain documents that might be needed in a few months or a few decades.

What's gone is gone, unless backups can be found. But the government needs to ensure that other vital documents are not destroyed under its watch.

If cabinet communications, especially those potentially relevant to an ongoing criminal case, are not deemed worthy of retention, what is? And, more importantly, what else has been electronically shredded by the Campbell administration?

The full Times Colonist editorial is HERE.


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What does an ordinary British Columbian do "reporting" at the Basi,Virk, and Basi pre-trial hearings that the conventional press and media don't do? What is the ordinary British Columbian's role there?

I've asked myself that more than once. And I suspect there are readers who sometimes say, "Why does he focus on that, or those things?"

Let me explain how a "role" has shaped over the months and years.

I took it for granted at first that a person doesn't talk to lawyers for either side, but does a clean reporting job uncontaminated by the "bias" of either Crown or Defence.

But that was wrong.

It was wrong because counsel are chief actors, have loads of information (which they sometimes impart), and in the 'outside court' pauses are willing to put arguments in summary form for those who inquire. Except with a person like George Copley (lawyer for the Executive Council/premier and cabinet) who somehow thinks he is above discussion with (I mean it) representatives of the larger population, most will devote a serious few minutes to discussion. They often smile when being crowded to a position and are too smart to be trapped into the statement or admission someone wants to wring from them.

They are also valuable because of the complete collapse of "open court procedures" in B.C.'s Supreme Court system. I will return to that point - as a major one.

Who are the people in the courtroom?

To begin, they are the lawyers for the Crown, the lawyers for the Defence. They represent and work for their clients, first. The Great Theory is that they work for their clients, clinging to all the hallowed procedures, ethics, and ideals of our Majestic System - and by so doing they serve JUSTICE. Would that were true.

I would say (as an ordinary British Columbian reporting from courtroom 43) something, for instance, about Mr. George Copley's delivery of two affidavits with information that the government of B.C. permitted the disappearance of apparently absolutely crucial (2001-2005) evidentiary material connected to the accusations against Basi, Virk, and Basi.

I would say that the actions of Mr. Copley and those he represents must be suspected as opportunistic, dishonourable, and sleazy moves in a set of power plays that are intended to defeat justice in the province of B.C. (I said the actions "must be suspected as"....)

(Conventional journalists, incidentally, are very, very unlikely to make such a comment.)

The lawyers present also operate under the huge burden of the judge: his or her personality, political prejudices, ambitions, and moods - quite apart from the judge's real role of "judging" relevant material, relevant argument, relevant and reasonable objections...and more.

The legal "fraternity' is a close community. The ordinary Canadian sits in court, is distressed at the judge, and reports distress to the readers. Lawyers in the court are not so free. They may score against a judge today - but they may have to come before that judge (who wants revenge) over and over and over. And so lawyer willingness to call a judge into question is altogether too limited. Justice and the larger population lose.

But, you say, the press and media balance that. Sorry, they don't. If journalists work for a reactionary media chain like CanWest, the chances may be that owner-interest is to back corrupt administrations, corporations ... and courts. And, of course, reactionary media chains tend to employ reactionary writers and others. Just look at Maclean's Magazine which has become - to my mind - the sewer outlet for the flashiest, emptiest, Right-Wing drivel, since its re-birth on the Right.

There is also, here, a little of the lawyer problem. Members of the press and media want access, when necessary, to many, many things that need a judge's approval to free up those things. Naturally, journalists don't want to create blocage. And so, for instance, in the Basi/Virk/Basi pre-trial hearings, the only person to criticize the behaviour of Madam Justice Elizabeth Bennett has been ... me.

This is a truly delicate matter. I do not want, for a second, to misrepresent the behaviour of the presiding judge. But I believe any request that I might make for information on the public record would meet more difficulty than the same request from a 'compliant' journalist. I may be wrong. But the ravaging of "open court" proceedings has been so huge in B.C. it is hard to know exactly.

I have written again and again that the Patrick Dohm "secrecy" rules, called "practice directions" put in place by Associate Chief Justice Patrick Dohm - to prevent the public from having information in criminal trials - are oppressive. In a trial dealing with huge allegations of public corruption, possibly travelling all the way into the heart of the legislature and the cabinet, every effort should be made to make certain the population is as fully informed as possible. It is a matter of importance to every British Columbian, and "the court" should make every effort to supply information for that public. I would say that in the Basi/Virk/and Basi case the opposite has been true.

I believe that fact to be so obvious that a reasonable British Columbian might ask if "the court" (the judges involved) are not biased towards serving the interests of the Gordon Campbell power group.

In such a case - the Basi/Virk/and Basi case - NOTHING (I allege) has been done to show responsibility to the British Columbia population in the matter. I have lambasted both Patrick Dohm and Elizabeth Bennett on that matter. I AM THE ONLY ONE who has. I know that most people in the gallery, in this matter, believe the censorship, refusal to make documents public, and the lack of daily available print (or electronic) transcriptions of procedure are burdens that they should not, in a 'free society' have to carry.

I have seen no other observer in the gallery make that idea public.

I've answered the question I asked already.

No one, it seems, but an ordinary British Columbian as reporter is willing to pull at the powdered wigs of the judges to see if there is anything underneath. No one but that kind of reporter is willing to call into question the work and role of lawyers in the court. I have asked more than once if Special Crown Prosecutors undergo any kind of review to make sure they are not 'patsy' appointees of a government wanting (undisclosed) allies in court. I base the question, openly, on the appointment as Special Crown Prosecutor of William Berardino. I have asked that question in a letter to Madam Justice Elizabeth Bennett - who would not reply to my letter.

No one, it seems, but an ordinary British Columbian as reporter is willing to draw in tight and to ask searching questions about the relations of the press, lawyers, the court, members of government, and corporate/government policy.

To illustrate that point, I'll conclude with an observation. Mr. George Copley entered court with two affidavits from government employees upon which he based his statement that materials that might well be absolutely key in the defence of the accused in the Basi/Virk/and Basi trial - four years of them at least - have "disappeared". The Defence lawyers were "shocked", to put the matter mildly.

Madam Justice Elizabeth Bennett sat imperturbable, and said something trivial - if I remember correctly - like 'you can't know the relevance without seeing the documents'. I do not wish to report her incorrectly, but I believe a judge should have been astonished. I believe (with respect) she should have said right there and then: "I want the two writers of those affidavits in this court as soon as possible. I want them to state in this court, and on the record, how this happened and if there is any remedy available. Are there back-up records somewhere? In a number of places? Anywhere? Because", I believe she should have said, "the destruction of what may be relevant evidence is a most serious matter, and I - as judge on these pre-trial hearings - want everything possible about this extraordinary matter on the record as answers to MY questions as well as to those of the Defence counsel."

And I think she should have gone on to say the matter was not one simply for the Defence but a matter that makes a large impact upon the overall conduct of justice in Canada and she, herself, as judge, must be concerned with that fact and must take a major role in bringing the matter to close, public examination.

She did not say any of those things. It would be unfair (except metaphorically) to say that, instead, she yawned. I was surprised at her failure of reaction. I report that here. It seems that only an ordinary British Columbian acting as reporter in courtroom 43 has such reactions - and is willing to report them. Maybe, then, an ordinary British Columbian shouldn't be allowed to report?

Maybe Morley Safer was right when he said he would trust citizen reporters about as much as he would trust a citizen surgeon. Maybe he was right. But he might not be....

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‘At the moment, our view is that these must be recoverable,' attorney says

Mark Hume
The Globe and Mail - June 23, 2009

Vancouver — The loss of thousands of cabinet and executive branch e-mails concerning the biggest privatization deal in British Columbia's history is so shocking that defence lawyers in a politically charged trial still can't believe it has happened.

Both inside and outside the Supreme Court of B.C. yesterday, lawyers were expressing disbelief that e-mails from 2001 to 2005 related to the $1-billion sale of BC Rail could have been purged from the government's data system while a trial concerning the deal was before the courts.

“At the moment, our view is that these must be recoverable,” said Michael Bolton, who, together with other defence attorneys, has sent a letter to the government's lawyer asking for a detailed explanation of how a data search was done.

“We don't accept at face value that these things have been lost … because e-mails are recoverable as long as there are backup or storage tapes,” Mr. Bolton said.

Court was told on Monday that e-mails being sought by the lawyers defending three former provincial employees – Dave Basi, Bob Virk and Aneal Basi – are not recoverable because the government doesn't keep electronic backup tapes more than 13 months.

Wiped out, according to George Copley, a lawyer representing the B.C. Executive Council, are four years of tapes covering the crucial period when the government negotiated the sale of BC Rail to CN Rail.

Mr. Copley filed affidavits from government officials saying none of the e-mails can be recovered.

That would mean possibly tens of thousands of e-mails sent to and from those at the top executive level of the B.C. government have vanished, leaving a gaping hole in the official record of the BC Rail deal.

Mr. Bolton said it would be premature to speculate on how that might affect the trial, but he did say that other cases have collapsed when it was found important evidence had been destroyed.

“It's a serious matter if evidence that ought to have been preserved, that is relevant and material, has been allowed to disappear,” he said.

Mr. Bolton said at issue are the e-mail records of “15 or 20 key individuals – all witnesses in the case,” including Premier Gordon Campbell and his closest staff members.

Dave Basi and Mr. Virk are accused of leaking details about the pending rail deal to a Victoria lobbying firm that was representing a rival bidder to CN Rail.

But the defence is arguing the accused men were acting on the orders of their superiors – and they maintain the e-mails could prove that.

Kevin McCullough, who represents Mr. Virk, told court almost all the government information is in e-mail traffic.

“In the time period … we were fully engaged … in the electronic age, where e-mails really are the way individuals communicate. … The days of faxing [a document] or even mailing it were dead,” he said.

Mr. McCullough said there clearly was extensive e-mail traffic surrounding the deal, and he referred to a statement that David Morhart, an assistant deputy minister on the BC Rail evaluation committee, gave to the RCMP in 2004.

“I'm one that saves all my e-mail files. So there's some 2,000 documents there if you ever want them,” Mr. Morhart told police.

Those e-mails, however, are among the files the government says it can't recover.

Mr. Campbell said he wouldn't comment on the deleted e-mails because the case is before the courts.

“I'm not going to be talking about that,” Mr. Campbell told reporters.

He said the government has rules for storage of important documents, such as e-mail.

“The records that should be kept under the law, have been kept,” he said.

Court has not yet heard how and why the e-mails vanished from the government record.

With reports from David Ebner and Justine Hunter

See Mark Hume's article HERE.

And "Comments" to the article as follows:

BC Mary		6/25/2009 Many thanks, Mark, for another excellent report from the Basi Virk / BC Rail courtroom. It would be great if you'd write about the pivotal date - July 14, 2009 - when further outrages may be perpetrated upon British Columbians. The Campbell Government lost a railway (Canada's 3rd largest railway, in fact) and who knows, maybe the signed agreement(s) have been "lost", too. God knows, nobody has seen the agreement(s). They're secret. Imagine. But rumour has it that certain additional benefits are triggered on the 5th anniversary of the deal(s), namely, on July 14, 2009. For one thing, rumour has it that there's a re-possession clause. Re-possession for cause ... and that CN is in default on at least one such clause (promise to buy 600 new railcars). Rumour has it that BC Rail lands between North Vancouver and Squamish will be transferred to CN ownership for one lousy dollar. Yeah,$1.00 So I ask you, Mark: do you think it's legal to be giving away Crown assets under a deal we've never seen? [Reprinted here, in hopes of encouraging others to write, write, write in support of BC RAIL DAY and justice for British Columbians. - BC Mary]

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Missing Mails Crucial to Corruption Trial Involving Indo-Canadians

South Asian Observer - June 24, 2009
The First Online South Asian News Source in Canada

Vancouver - Three Indo-Canadians facing corruption trial concerning the biggest privatization deal in British Columbia's history, could have their case weakened considerably for the loss of thousands of cabinet and executive branch e-mails.

The defence lawyers for the three former provincial employees – Dave Basi, Bob Virk and Aneal Basi, in fact, believe the thousands of emails would have cleared their client in the case relating to the $1-billion sale of BC Rail. The e-mails could prove that the accused men were acting on the orders of their superiors, the defence maintains.

The leaked information actually came from inside cabinet because neither Basi nor Virk attended meetings where crucial information about the railway would have been discussed, according to the lawyer.

Basi was the ministerial assistant to then Finance Minister Gary Collins and Bob Virk was the ministerial assistant to then Transportation Minister Judith Reid in 2003 when the RCMP and Victoria police raided their offices in the B.C. legislature and seized documents relating to the privatization of the British Columbia Railway Co. Both were accused of leaking details about the pending rail deal to a Victoria lobbying firm that was representing a rival bidder to CN Rail. CN Rail eventually acquired BC Rail in 2003 for $1 billion.

{Snip} ...

See the full article HERE.

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Yesterday's news attracted press. Today eight lawyers were in court. Eight observers were in the gallery. At the morning break, Michael Bolton, for the Defence, answered press and TV questions and summed up what was said in this column yesterday and in Mark Hume's Globe and Mail report, front page, today.

In short, Defence is shocked at the statement by George Copley, counsel for premier and cabinet, that ALL the cabinet electronic records from 2001 to 2005 sought by the Defence are "not recoverable". Since Leonard Krogg (NDP Justice critic) states that such records must be kept for seven years, the news from Copley is even more incredible. For it means that the Gordon Campbell government appears to have brutally violated its own information management protocols, and, perhaps, the law.

In addition, Michael Bolton, for the Defence, declares that neither of the two affidavits submitted by Mr. Copley give any indication that search was made of individual computers or other record preservation sources.

Mr. McCullough, for the Defence, argued this morning that almost every action in relation to the Basi, Virk, and Basi matter undertaken by the Gordon Campbell government has been political - and that the pre-trial hearings must be, demonstrably, included. More of that later....

Close observers of the BC Rail Scandal were in a state of shock this morning, asking the questions that must arise from the incredible claim made by Mr. Copley. I said yesterday that the Gordon Campbell forces were cornered. If true, that would mean hard and dramatic choices had to be made. If the material sought was given up - would it condemn the Gordon Campbell forces to destruction out of hand?

Was the choice to say that none of the e-mail material sought from between 2001 and 2005 is recoverable a total desperation move that might well end (soon) in the dismissal of charges against the three accused (Basi, Virk, and Basi) But at the same time might it, also, prevent information from becoming public about the role (perhaps not legal) engaged in by the Gordon Campbell Forces? Information that would destroy the government?

I have said again and again this is the most important public corruption case in British Columbia history - and the Gordon Campbell forces appear to agree with me. And they appear to be willing to do almost anything to make a fair trial impossible.

We cannot, today, know what the next few weeks will bring.

Mr. McCullough argued, this morning, (aptly in the light of the Draconian move by the Gordon Campbell forces to deny mountains of evidence even exist) (A) that the response of the Gordon Campbell forces has been political throughout, and (B) that evidence in hand reveals - almost without question - those forces have failed to produce materials asked for, and appear to have failed to do so knowingly. McCullough hammered at those two themes all morning, and was expected to return to them this afternoon. No session is being held tomorrow.

He talked about how - in the key years - e-mail was a major way of communication, and he gave evidence from records of major participants in the BC Rail Scandal. He also recorded that at least one participant knew questions may be asked and recorded that he had kept copies if needed. He told the RCMP that he had all his e-mail files, some 2000 documents, "if you ever need them".

McCullough rehearsed the treatment of the Legislature (search warrant) raid to show how it was a highly political (even public relations) operation. For instance, where obvious leads should have taken the RCMP to interview and investigate certain parties, the RCMP did nothing. But the force did declare - well before all the seized material could be examined - that no elected official was under investigation or would be. McCullough spoke of a "tailored and targeted" investigation.

He looked closely at the Freedom of Information material delivered to journalist Bill Tieleman regarding the time spent in court by Mr. Chase who was gathering material for the government. McCullough wants to know who in government received Chase's reports. Mr. McCullough argued that his reports were highly political, not mere "court reports"; that they were written for specific readers; and that they were cut and vetted before being given to Tieleman in such a way as to exclude Chase's analyses - which were probably very revealing.

McCullough pointed out that a civil servant was sent on taxpayers' money to do much more than the press was doing - to provide his masters with a full accounting of the people in the room, their attitudes, press reaction...and more.

His argument, as I said above, that every move of the Gordon Campbell Forces was political - even to the point of sending a "spy" (my word) to the courtroom on behalf of his masters - is convincing. It is made the more convincing by the latest, astounding political move by the Campbell Forces. Information it was obliged by law to keep and which - anyhow - in the light of the case and the need for evidentiary material for the trial had to be kept was NOT kept but, wholesale, and covering all 33 people from whom Defence seeks records, was apparently permitted to be erased (or, the jaded might say, has been purposefully destroyed).

What can the Gordon Campbell forces do that is worse than that? Wait and see.

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Bill Tieleman's excellent column has further details from yesterday's Basi Virk pretrial hearing. Almost beyond belief.

See it HERE.

Then write to the premier and ask to see the agreements his government signed 5 years ago transferring BC Rail to CN. It's important.

- BC Mary.

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Thousands of government e.mails lost or can't be retrieved, Basi-Virk trial hears

Neal Hall
Vancouver Sun - June 23.

Full story HERE.

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Defence queries missing e.mails

Keith Fraser
The Province - June 23, 2009

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Electronic records requested by defence aren't recoverable, lawyer representing Premier in BC Rail case tells court

Mark Hume
The Globe and Mail — Monday, Jun. 22, 2009

Vancouver - The provincial government may have destroyed all cabinet e-mails between 2001 and 2005, opening a huge gap in the official record despite a law that electronic files must be kept for at least seven years, the Supreme Court of British Columbia has learned.

Michael Bolton, who is defending one of three former government employees in a political corruption case stemming from the sale of BC Rail, said outside court Monday he was stunned to hear the e-mails aren't available.

“This is troubling…this potentially is a very serious matter. We never expected this,” said Mr. Bolton, who is defending Dave Basi, who was a ministerial aid in 2003 when the government sold BC Rail to CN Rail for $1-billion. The controversial deal, which was the first big privatization undertaken by the B.C. Liberals, closed in 2004.

In an application filed two weeks ago defence lawyers sought the disclosure of the e-mail records of several members of cabinet, key executives, and of Premier Gordon Campbell, from June, 2001 to 2005.

But George Copley, a lawyer representing the Executive Council, which includes both the Premier's office and cabinet, told court the electronic records aren't recoverable.

Mr. Copley said officials who oversaw a search reported the material couldn't be found, implying it had all been purged from the data system.

“There are backup tapes. They are kept for a certain period of time…[but] in the normal course of operation they don't keep more than 13 months backup,” he told Justice Elizabeth Bennett.

Kevin McCullough, who is defending co-accused Bob Virk, a former aid to the transportation minister, told court he couldn't believe what he was hearing.

“It's vanishing point,” he said. “Everything is gone. The records are irrecoverable.”

Mr. McCullough said government officials should be called to explain why the material isn't available.

But Justice Bennett said she was reluctant to do that, because the defence has yet to establish that the material is relevant.

“I'm not keen on having these individuals [responsible for managing government records] cross-examined…If the documents are not recoverable it doesn't mean anything unless you [first] establish likely relevance,” she said.

Justice Bennett told the defence to argue the relevance issue Tuesday, while submitting a set of written questions to Mr. Copley to get more details on what exactly was done to search the government records.

Leonard Krog, NDP justice critic, said it is “extremely troubling” that important government files may have been destroyed.

“The Document Disposal Act requires that [electronic records] be kept for seven years,” he said. “It raises incredible suspicions and someone farther up the political chain that Mr. Copley is going to have to appear in court and explain what happened.”

The government of B.C. has a detailed protocol covering both the preservation and destruction of its records.

Formal records can be destroyed, but only after the action has been approved by a public documents committee, the legislative assembly or the attorney general.

The Corporate Information Management Branch, which provides guidelines for government employees, states that e-mails must be copied to a central document management directory before individuals delete them from their personal files.

The guidelines say only “transitory” e-mails, which are clearly trivial in nature, can be deleted by individuals.

“Examples of this type of e-mail would be ‘Is this morning's meeting still on?' ”

Mark Hume's full report is here.

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Today it happened. We've waited to see how - to see what the game plan would be. Increasingly, it's become clear the Gordon Campbell forces are cornered. What - we have wanted to know - will the snarl of the beast look like. Today we found out....

The most obvious sign, to date, has been what might be called 'lack of cooperation'. It cannot be repeated enough that if Gordon Campbell - in his full innocence - instructed all those responsible to him and cabinet to produce requested (evidentiary), Basi, Virk, and Basi materials without delay or obstruction, the disclosure fights would have been over at least six months ago, perhaps earlier.

It cannot be repeated often enough that the Gordon Campbell forces, in failing to produce, are - to my mind - obstructing justice and costing the taxpayers of B.C. huge, unnecessary sums. In short, you and I pay for the Gordon Campbell cover-up - in more than financial ways.

The Gordon Campbell tenure and the fights for what is called "transparency" (the public seeing and understanding what government is doing) have become an extended "Cops As Robbers" game. (No. Not "Cops AND Robbers".)

Cross the city briefly - to the Robert Dziekanski Inquiry - for another "Cops As Robbers" scene. A wonderfully thespian federal lawyer, Helen Roberts, poured down tears on Friday as she revealed - Surprise! - that a key e-mail between top Mounties had only just come to light. Implications for the Inquiry are huge and will delay matters ... of course .... (How to kill an issue of fundamental importance to justice and democracy in the province!) The point here, Commissioner Art Vertlieb said, "is that the RCMP did not flag the document for the Justice Department". Over in courtroom 43 we know all about that kind of behaviour.

This morning Mr. George Copley carried the can for the Gordon Campbell Forces. The materials requested (principally e-mail records) from the Premier's office, Public Affairs, Ministries of Finance, Transportation, Attorney General, Solicitor General, Education - involving of course particular and key people are "not" - Copley reported - "recoverable". Counsel for the Defence learned that claim for the first time and were "shocked".

Except for the fact that formalities are strictly observed in courtrooms, huge guffaws should have echoed through the Supreme Court building.

Mr. Copley, of course, could barely be heard. Madam Justice Elizabeth Bennett, of course, did nothing to make him speak so he could be heard. Why should either of them concern themselves about the public in the gallery - the canaille (as the French say). [meaning the rabble, the riffraff, the scum.]

The attitude of Copley and Bennett, I insist, is not a sign of benign neglect but a part of the "Cops As Robbers" game in B.C.

Mr. Copley, counsel for the cabinet, speaks almost in a whisper, as I have pointed out before. I believe the reason may be that he has engaged in so many conspiracies with members of cabinet that his natural speaking voice has become a whisper. That may be a reason why he had a Gordon Campbell good service medal conferred on him about a year ago. (I am not kidding: Joseph Stalin would approve.)

The sinuous trail to this moment doesn't matter. The fact that ten of the 33 people particularly of interest to the Defence gave one or more statements to the RCMP concerning the Basi,Virk, and Basi case doesn't matter. The fact that nothing was done "inside" to prepare for the disclosure request doesn't matter. The fact that Madam Justice Elizabeth Bennett suggested that the issue might be one best placed in the hands of "the trial judge" doesn't matter. The fact that Mr. Copley seemed to suggest that e-mails are not kept after 13 months doesn't matter - or that his statement implies that all the e-mail transactions of Gordon Campbell and the group moving to dump BC Rail on to CN - from 2001 to 2005 - are declared "not recoverable".

What matters, of course, is the sham of the whole proceeding.

In brief, government documents are not - in truth - the possession of those who create them. They are documents belonging to the province and to the people of the province. I don't believe for a minute they are "not recoverable". If they are really not recoverable, the Gordon Campbell cabinet works as a rogue force in B.C. democracy, acting as if its own interests come before the interests of the people of B.C., their democracy, and justice for the community.

Now, let us look at the claim of George Copley very briefly. Gordon Campbell calls in an aide. "I had an e-mail correspondence with the governor of the State of Washington in 2001, an e-mail exchange with the premier of Alberta about labour movement in 2002, a long exchange with men in Stephen Harper's PMO in 2003 about how to cooperate with them and double-cross the federal Liberals, and in 2004 an extended e-mail exchange with Native leaders about the possibility of a new policy. Get me all those e-mails." Does anyone believe the answer of the aide would be, "Sorry Gord, they are 'not recoverable', they've all been dumped?"

No one believes that. But - as a result of George Copley's whispering today - Defence must write a letter to him, setting out all the questions they have for the 33 key people so they may prepare answers. Mr. McCullough for the Defence declared those people will probably have to undergo cross-examination. And he declared that the original application will not be withdrawn, and Madam Justice Elizabeth Bennett will be called upon to rule on the "likely relevance" of the materials.

"There is no way we're not doing this application" is, I believe, what Mr. McCullough said.

Mr. Bolton added, from reading the affidavits on the matter submitted by Mr. Copley, that there is no way of knowing if individual searches of individual computers were made or if any such real survey was conducted.

Apparently, the relevance argument will go into next month, and then...and then...and then....

Whenever Gordon Campbell believes political dissent may be uttered or that demonstrations of disagreement with policy may surface, he arrives with a team of RCMP bodyguards. Strange behaviour. One might ask why the RCMP is willing to play personal-bodyguard to Gordon Campbell.

Can anyone explain?

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First, Leah said:

"Regarding the importance of July 14th, is there anything the citizens of the province can do legally to repossess BC Rail until such time as ALL information surrounding this debacle is brought to light?"


Then Kootcoot said:

Although IANAL (I am not a lawyer), this sounds to me like a textbook definition of what an injunction is designed to accomplish. Disregarding the fact that injunctions are generally used by the government-corporate (fascist) powers against the citizenry, in general they are to prevent actions from being taken until other legal issues are resolved.

The next question is who should, or can afford to, apply for an injunction to temporarily stop any further transfer of assets [from BCRail] to CN, until the legality of what has already taken placed is established. It would take a better liar than even anyone in our current government to say there are not any significant questions about the BC Rail deal, even though that is not officially before the courts, thanks to the obfuscation and down right obstruction of justice that has so far occurred.


And then BC Mary said:

You ask: "Who could apply for an injunction to temporarily stop any further transfer of assets [from BCRail] to CN, until the legality of what has already taken placed is established?" Who indeed but Leonard Krog, a lawyer, who is Opposition Critic for the Attorney General.

Koot (and everybody), please contact Leonard Krog today and demand that he undertake this action. Send a copy to the Leader of the Opposition, too. Time is short, they must act immediately!

Leonard Krog, critic for the attorney-general:
e.mail address: leonard.krog.mla@leg.bc.ca

Carole James, leader of the Opposition:
e.mail address: carole.james.mla@leg.bc.ca

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Time is so very short but, in my view, the injunction has a good chance of bringing the facts out into the open. So, thinking along those lines, I have also written as follows and I hope others will write too:


Dear Mr Campbell:
[e.mail address: premier@gov.bc.ca]


On July 14, 2004, your government signed agreements selling BC Rail to CN.

Those documents have been kept secret. This is not right. The BC Rail Revitalization Agreement and the BC Rail Privatization Agreement must be opened to the public before the crucial 5th anniversary.

Time is of the essence because rumours say:

* that the 5th anniversary of the signing activates a clause providing a one-time-only opportunity open to the people of BC to repossess their publicly-owned railway if CN has failed to honour all terms of the agreement,

* that the 5th anniversary of the signing activates a clause granting CN ownership of BCRail lands for the sum of $1.

There may be other clauses of grave concern.

It is wrong to prevent the public - who are the previous owners of Canada's 3rd largest railway - from seeing the documents and playing a responsible role as citizens of a democratic society. You must open the documents to public scrutiny without further delay.


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

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A commenter has sent us this copy of a letter to her local newspaper:

Dear Mr. Editor:

I am writing this in the hope that it may help unlock the logjam surrounding documents, emails, phone calls and other forms of communication regarding the sale of BC Rail. This has been going on for far too long now, it is costing the taxpayers of this Province hundreds of millions of dollars in lawyer’s fees alone. It has to stop.

One has to wonder why the government has done everything in their power to keep the sales documents from public view, it is after all the sale of public property, and we do have a RIGHT to know what has been/is being done to us, and in our name. This “sale” took place nearly 5 years ago, and we still don’t know what the sale entails?! Perhaps the government is waiting for a specific occurrence, before making just how much taxpayers have lost in this deal, apparent.

July 14, 2009 is the critical date. The date when one of two things may happen:
1. CN Rail will take possession of all BC Rail waterfront lands from North Van to Squamish for the princely sum of $1.00. Yes, you read that right, a dollar. What are those lands REALLY worth? Why would the Premier even consider something like that, and still call himself a businessman?

2. There is a rumour about that date that will be extraordinarily easy for the Premier to disprove by producing all documents relating to the sale…this is the date of possible repossession of BC Rail by the taxpayers of BC. Once this date passes, there is absolutely nothing taxpayers can do about the largest giveaway this Province has ever seen.

It is time for mainstream news media to begin digging and printing what they know. Newspapers across this Province have forgotten who they’re ultimately designed to serve, the people. You’re our eyes and ears in the legislature at the very least. Collectively you are failing us; above all, you’re failing yourselves.

"Leah" advises that this is a copy of the letter sent to her local newspaper for print this week. Next her local liberal MLA gets a phone call.

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Topics, dates, and times are flying thick and fast. Here's the schedule for this summer with special emphasis on one major un-scheduled event on July 14:

June 22. Madam Justice Elizabeth Bennett will hear defence application for disclosure of documents relating to the executive council including the office of the premier.

"Sometime before June 26", said Associate Chief Justice Patrick Dohm, there will be a hearing (Justice Bennett presiding) on the Defence application for Madam Justice Bennett to remain on the Basi Virk Basi / BC Rail Case. Actual date to be announced (I hope).

July 6 - Defence will file motions.

July 15 - Crown responds. McCullough for the Defence then said

July 17 should be left available for "other 3rd party issues".

BUT WAIT ... if we aren't super-careful ...

July 14, 2009 will slip by with scarcely a whisper that it's the 5th and pivotal anniversary of signing the still-secret BC Rail deal. This date is rumoured to have a repossession clause which becomes available to us on that date. But on the down-side, the 5th anniversary date also activates the transfer of BC Rail waterfront lands between North Vancouver and Squamish to CN for $1. One lousy dollar. July 14 should be BC Rail Day, highlighting the outrageous high-jacking of a public asset ... a pattern which became the template for more transfers of significant public assets in B.C. It is astonishing that another round of losses could be happening again, in secret, right under our noses, on that date: July 14, 2009.

July 23, 2009. Legal arguments on the 66 Kinsella documents.

August 18, 19, 20. The Kinsella documents.

September 4, when "everything must be finished," said Madam Justice Bennett, mysteriously.

September 2009 to February 2010 (5 months) during which the Defence and Crown lawyers have booked off all their other cases.

I've picked up on these dates by tracking what Robin Mathews, Neal Hall, and Keith Fraser have written, and have had the benefit of Bill Tieleman's generous additions as well. But this summer schedule for BC Supreme Court (Vancouver) is obviously a work in progress and subject to change, so anyone wishing to assist, please add your corrections or additions by clicking onto "Comments" (below) ... Thanks!

Another thought. Big Media and no doubt the government's Public Affairs Bureau have already begun to spin a new agenda. I think they want people to believe that nothing is happening with the BC Rail Case and for that reason the corruption trial should be dismissed. That would not serve the public interest.

If the deal was a wonderful deal, show us. Why is it still secret? and why is BC still making giant gifts, also in secret? If it was a crooked, corrupt deal, the facts must come out sooner, not later.

I sincerely hope that people will write their Letters-to-the-Editors or to the journalists who say these things and tell them that now is the time to push harder for the trial to begin, because things are happening. It would be too, too suspicious if the trial got stopped, at this stage. If anyone would like to use this schedule to make that point (especially concerning the July 14 issue), please feel free to use it. Good luck.

- BC Mary.

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Tyee Wins Top Canadian Prize - an excerpt
The Tyee - June 10, 2009

Quote:

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Ten lawyers were in the court. Two watchers were in the gallery.

Obviously the "big press" had the word that it would be a "haggle" day. And it was. Janet Winteringham argued for the Crown, Mr. Montague for the MLAs, and Clark Rogers for Gary Collins.

The morning was filled with objections to the Defence application for e-mail materials of MLAs. Arguments were made that the application is too broadly based, that it is not supported with affidavits, that it does not comply with "The Law", that its inferences from available materials cannot be drawn, that 'benefits' MLAs may have received do not parallel those of the accused, and that it is massive in the scope and work involved if successful, that some of the material sought is simply irrelevant. And more....

Ms. Winteringham even argued, I believe, that the application suggests allegations of corruption against the highest levels of government.

Mr. McCullough for the Defence stated he would argue this afternoon against all of the statements of the morning. The consensus is that argument will finish today, and court will reassemble on Monday to hear the inaudible George Copley, counsel for the Executive Council (the cabinet).

To this average British Columbian, ten legal salaries were being paid by you and me for an exercise in delay, gamesmanship, and sophisticated obstruction.

I repeat what I said in the last piece I wrote. If Gordon Campbell, premier of the province, had ordered real cooperation from all government agencies, MLAs, and other bodies over which he and cabinet have power, hearings could have ended months ago. British Columbians must know that not only is Gordon Campbell responsible for a huge amount of the delay, but taxpayers are footing the bill for the whole ... farce.

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The Basi Virk Basi / BC Rail pre-trial hearings continue in B.C. Supreme Court (Vancouver) today. Start-time is 10:00 AM. Open to the public.

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More Patrick Kinsella documents, more delays in Basi-Virk "trial that never ends"

Whatever "business advice" BC Rail paid BC Liberal insider Patrick Kinsella $297,000 for has produced another 66 documents that the defence in the BC Legislature raid case wants access to.

And once again developments in BC Supreme Court have resulted in yet another supreme delay in the proceedings.

With 10 lawyers in attendance, Justice Elizabeth Bennett heard extended arguments from the defence, Kinsella's legal counsel and BC Rail's attorney
{Snip} ...

... Wednesday [tomorrow, June 17] with lawyer Ed Montague, representing 17 BC Liberal MLAs - including Premier Gordon Campbell - responding to a defence request for their emails related to the BC Rail sale.

Bill's full report is here.

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More documents related to Liberal insider sought at Basi-Virk court case

BY NEAL HALL
VANCOUVER SUN - JUNE 16, 2009

VANCOUVER – A political corruption case was told Tuesday that 66 more documents have been located related to Liberal insider Patrick Kinsella that are being sought by defence lawyers.

The latest records are in the possession of BC Rail, B.C. Supreme Court Justice Elizabeth Bennett was told.

"I'm very concerned we have a moving target here," Kinsella's lawyer, James Sullivan, told the judge.

Bennett said she will view the documents and provide a descriptive summary of each document, which will provided to the lawyers before legal arguments on the matter are heard July 23. Three days have also been set aside on Aug. 18, 19 and 20.

{Snip} ...

The court case will resume Wednesday with legal arguments concerning the disclosure of documents and emails of the B.C. Liberal party caucus around the time of the BC Rail sale.

On Monday, June 22, the judge will hear submissions about the defence application for disclosure of documents related to the executive council, including the office of Premier Gordon Campbell.

"Everything's got to be done by Sept. 4," the judge told the lawyers Tuesday, an apparent reference to the fact that Bennett was appointed last May 15 to the B.C. Court of Appeal.

{Snip} ...

More details in Neal Hall's column here.

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Basi-Virk trial told of 66 Kinsella-related documents in B.C. Rail sale

A lawyer for B.C. Rail told the Basi-Virk corruption trial Tuesday that there are 66 documents that relate to B.C. Liberal Party insider Patrick Kinsella’s involvement in the controversial $1-billion sale of the railway company.

{Click} ...

The lawyers for the accused — David Basi, Bobby Virk and Aneal Basi — have suggested that the B.C. Rail deal was a fix from the beginning and that Kinsella played a key role in that sale, perhaps working for both B.C. Rail and CN, who made the eventual winning bid. Kinsella, former co-chair for the Liberals in two provincial election campaigns, has denied any wrongdoing.

The Kinsella arguments were adjourned until July 23, by which time the judge will have reviewed the new documents and will have provided a description of their contents to the various parties. Further arguments on the issue were scheduled for later in August.

On Wednesday, a lawyer for the Liberal caucus is expected to respond to a defence application for the e-mails of 17 MLAs, including Premier Gordon Campbell, relating to the sale.

{Snip} ...

Read Keith Fraser's full column here.

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Another pre-trial hearing for Basi, Virk, Basi is listed for today, Tuesday June 16, 2009 starting at 10:00 AM, in B.C. Supreme Court, Vancouver. Open to the public.

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B.C. Supreme Court Chief Justice Donald Brenner resigns

Ian Mulgrew
Vancouver Sun - JUNE 11, 2009

B.C. Supreme Court Chief Justice Donald Brenner has resigned after nine years at the helm of the province’s senior trial bench.

Justice Brenner said he will wrap up the few cases still on his desk and depart by the end of the summer.

“After 17 years as a judge of the Supreme Court of B.C., including the last nine years as chief justice, I have decided it is now an appropriate time for me to step down,” he announced Thursday.

“I will be leaving our court on Sept. 7, 2009.”

At 64, Justice Brenner could have continued sitting until 75, but he said he was looking forward to new challenges.

“I’ve had five careers, I think,” the former commercial pilot with Canadian Airlines said. “It’s time to reinvent myself again.”

He will leave a court that is administratively ship-shape and on the verge of adopting a new set of civil rules that will mark the first radical change in procedures since the litigation process was formalized in the 19th century.

“From his very first days as chief justice, it was clear that he was an exceptional appointment,” said Miriam Maisonville, president of the Canadian Bar Association’s B.C. branch, which represents a majority of the province’s roughly 10,000 lawyers.

“He is a brilliant, creative man, committed to making the justice system accessible to all. Don has been a compelling and effective chief justice, giving years of his life to the goal of improving the justice system. We have been very fortunate to have him at the helm for so long.”

Brenner was appointed chief judge in May 2000, replacing Bryan Williams, then 67, who resigned after four years in the post to spend more time with his family and work in alternative dispute resolution and mediation.

{Snip} ...

The son of a Second World War hero, Brenner learned to fly a helicopter when he was 16 to become the youngest pilot in the country at the time. He graduated from tony St. George’s in 1962 and obtained his law degree from UBC in 1970.

He articled at Shulman, Tupper, Worrall, Johnson & Laxton — following in the footsteps of former judge Tom Berger, retired B.C. Appeal Court justice Mary Southin and high-profile lawyer and former B.C. Hydro head John Laxton.

After his call to the bar in 1971, Brenner went into partnership with Brian Abraham, as Brenner & Abraham.

Throughout law school, articles and his practice, Brenner continued flying helicopters and fixed-wing aircraft, eventually as captain of a 737 jet.

He developed those two demanding disciplines into a highly respected niche practice in aeronautical and insurance law.

One of Brenner’s first big cases was the crash of a Pan Arctic Oil plane in the far north that killed 33 people. He later acted as counsel for Pacific Western Airlines after the horrific 1978 accident in Cranbrook that killed 42 of the 49 crew and passengers.

He was named Queen’s Counsel in 1987.

His former partner Brian Abraham said Brenner was an excellent businessman. Lawyer Ean Maxwell joined the firm at one point to practise family law, and Brenner followed the increase in costs with great interest.

He was often heard to remark that the greater part of the firm’s sudden increase in paper costs was for Kleenex for Maxwell’s clients upon seeing his bills.

His sense of humour is said to hold him in good stead on the golf course, where he is considered a talented lawyer.

During his years in practice, Brenner was chairman of the air law section of the Canadian Bar Association in B.C., and a director of the Air Transport Association of Canada, the B.C. Aviation Council, and the Lawyers’ Inn.

He participated in the Law Society’s governance as a member of the credentials committee. In addition, he was called to the bars of the Northwest Territories, Yukon and Alberta.

In 1992, Brenner, married with two grown daughters, was appointed to the B.C. Supreme Court, which handles the most serious crimes such as murder, extortion and sexual assault, as well as complex civil cases.

The court — which has a current complement of 81 full-time judges and 22 supernumerary judges — also hears most appeals from the provincial court and arbitrations.

Brenner is lauded for his even temper, legal acumen, compassion, integrity, and ability to relate to people from all walks of life.

He is particularly skilled in resolving complex commercial disputes by finding solutions in which both parties and their counsel have confidence.

Throughout his tenure, Brenner has been striving to improve the court’s efficiency and effectiveness with a view to improving access to justice.

He co-founded the court’s information technology committee and in 1999 he became chairman of the litigation management committee.

The court is one of the most technologically advanced in Canada — from computer-assisted research and electronic filing of documents to video-conferencing and litigation management systems. As well, Brenner believes the proposed new rules will bring its currently archaic procedures up to date.

There remains controversy about that, however, as some lawyers believe the rule changes are a mistake and will make it harder for ordinary people to get their day in court.

Brenner disagrees.

“I’ve signed off on them,” he said. “It’s now up to cabinet to adopt them.”

Judicial appointments such as this are made by the federal cabinet on the recommendation of Minister of Justice Rob Nicholson, MP for Niagara Falls, Ont..

{Snip} ...

imulgrew@vancouversun.com

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On June 4, 2009 Associate Chief Justice Patrick Dohm appeared in courtroom 43 of the Supreme Court of B.C. He was there in connection with the latest episode in the saga of the B.C. Rail Scandal.

He came to hear a strange motion from the Special Crown Prosecutor to remove the presiding judge before trial begins. That was offered as a simple matter of scheduling. But it may appear – in fact – to those of us who have sat through years of the hearings to be an explosive political move on the part of the Gordon Campbell forces to prevent an outcome destructive of their power.

If I appear to be suggesting it may be a horrendous violence done to judicial proceedings – and a sign of the gross decay of justice in Canada – that is precisely what I am suggesting.

The scandal involves the deepening story of the corrupt sale of BC Rail by the Gordon Campbell government, high-lighted by search warrant raids on B.C. Legislature offices on December 28, 2003, charges laid against three important cabinet aides a year later, and pre-trial hearings that – moving towards trial of the three men – are still in process six years after ‘the raids’ on the legislature.

Preparation for the trial – what is perhaps the most important public corruption trial in British Columbia (if not in all Canada) – is still being made. The significance of the case is not only signalled by the former positions of the accused and their closeness to top cabinet officers. But it is heightened by the growing suspicion that top cabinet officers – including the premier – Gordon Campbell – may have been implicated in the actions for which the three men stand accused – fraud, breach of trust, and money laundering.

The pre-trial hearings – as I have observed them – have been complicated because of a major thesis of the Defence. It is that the accused – whatever their actions – were “operatives” of the premier (especially Dave Basi and Bob Virk).

The men were appointed by Order in Council and were fired by the premier’s Chief of Staff, Martin Brown – not by the cabinet ministers for whom they, ostensibly, worked. Evidence of their centrality in the corrupt sale of BC Rail grows.

In brief, Defence argues that the actions of the accused were undertaken by orders from their superiors, and that fact must be demonstrated fully and clearly if a fair defence is to be conducted.

The B C Rail Scandal is a story beginning in the 1996 election which Gordon Campbell lost partly because of a declared intention to sell BC Rail. Between that election and the next one – which Campbell won in 2001 – two strange things occurred. Campbell publicly reversed his position on the sale of BC Rail.

As important, secondly, Glen Clark, NDP premier of B.C. was challenged by allegations (raised in the constituency office of Gordon Campbell) that he had acted fraudulently in the contract of work to have a deck added to his modest East Vancouver home. That work involved a sum of, perhaps, ten thousand dollars. (The major press made much more of the Glen Clark case than they have made of the billion dollar corrupt sale of BC Rail.)

Ujjal Dosanjh, Attorney General, announced the RCMP investigation, Clark resigned for the duration, was destroyed by mass media and the other enemies of the NDP, and left politics. Dosanjh became NDP leader, seemed (to me) to ‘not run’ in the 2001 election, lost to the Campbell Liberals, joined the Liberals very, very soon, and became a “dream-team” federal Liberal MP.

I protested to the Commission for Public Complaints Against the RCMP (PCC) about the conduct of the RCMP investigation of Clark. My complaint was closed without my consent. I pushed on. Three years later, PCC reported to me that the investigation I asked for had been “wrongfully” terminated. PCC did nothing, nor did RCMP.

In the court of Madam Justice Elizabeth Bennett Glen Clark spent 136 days of trial. He was acquitted of all wrong-doing. But he had been subjected to sleazy, relentless trial by press, media, and all the other anti-NDP forces in the province. He was ruined.

Gordon Campbell became premier, with a promise he would not sell BC Rail. As time and information (even in a limited way) comes available to average Canadians, the appearance is that Campbell set to work very, very early to sell BC Rail – and to sell it to CN (despite a “show” of fair bidding and outcome). Thousands of pages of information that are on public record have been kept from British Columbians.

Campbell early in office struck what appears to have been a “set-up” core review of the economy. Then he struck what also appears to have been a “sham” bidding process for the sale of BC Rail. Two bidders left the process declaring it soiled, CPR going public with its deep dissatisfaction, claiming as others did that CN was receiving secret and special treatment.

Part of the case against the accused rests upon allegations of bribery in relation to a bidder apparently being wooed to remain in the auction for appearances sake, with – it is alleged – promises of a consolation prize when CN was announced the winner. The matters in question being handled at the edges, the bidder is claimed – even by Defence – to have been ignorant of the machinations.

Those are, perhaps, the bare bones of the story. Overlaps from the investigation process have already seen a nine year drug sentence given to someone communicating with Dave Basi. Mr. Basi is accused with two others in a case involving land allegedly removed illegitimately from the B.C. Agricultural Land Reserve. That is a reserve set up by the NDP when in power which has been eaten away by the Gordon Campbell government.

Important as those cases most certainly are, the driving interest is in the BC Rail Scandal case. It involves the whole cabinet as part of a (secret) policy and practice which two bidders declared corrupt. That fact alone points to the suggestion that BC Rail may have been illegitimately and illegally sold.

Associate Chief Justice Patrick Dohm signed the search warrants for the “raids” of December 28, 2003. Not only did the raids involve legislature offices but also the homes of many others who were of interest in the investigation.

Asked to release the search warrants (as is customary after searches) Mr. Dohm was truculently aggressive in refusal. He sealed them all. Pushed by press and media, he later produced a summary, but did not unseal the warrants. Astonishingly, he did not prepare the summary himself. Instead, he showed an (unfortunate) relation to the Special Crown Prosecutor, William Berardino, by having him prepare the summary. The relation between a judge and “the Crown” (the prosecution) must always be handled with kid gloves. Mr. Dohm couldn’t be bothered, it seems, breeding consequences we shall see when he appeared in courtroom 43 on June 4.

Sometime later, Mr. Dohm unsealed the search warrants. The unsealing was a bad joke. The “unsealed” search warrants, by one jounalist’s reckoning, blank out 80% of the materials.

By, perhaps, astonishing coincidence, a number of cabinet ministers who might have continued in happy, profitable public service chose to go into private life as the election of 2005 drew near. Geoff Plant, Attorney General, who appointed William Berardino as Special Crown Prosecutor, left politics. So did Christy Clark, minister of education and deputy premier. So did Judith Reid, transportation minister. And so did Gary Collins, minister of finance, apparently under RCMP scrutiny before the search warrant “raids”.

Dave Basi was ostensibly in Mr. Collins ministry. Bob Virk was ostensibly in Judith Reid’s ministry.

It is alleged that Plant and Berardino were, at one time, business partners, or associates, or other. I wrote Madam Justice Elizabeth Bennett on the matter and asked her what review process exists to assure appointees as Special Crown Prosecutors are completely objective.

She did not deign to reply to my letter.

Why was Mr. Patrick Dohm in courtroom 43 on June 4, 2009? He was there at the instancing of Special Crown Prosecutor William Berardino who presented a motion which Mr. Dohm received there. Shortly after the matter of the search warrant raids and when charges were laid against the three accused, Mr. Dohm passed the matter of Basi, Virk, and Basi (and the charges against them) to Madam Justice Elizabeth Bennett. She has conducted three and a half years of pre-trial hearings which might terminate in the next several weeks. She has ploughed through mountains of documents, hundreds of hours of argument, and the bringing together of tenuous but significant relations among people and institutions.

To many observing the pre-trial hearings, delay has been the watchword. Because Defence argues the accused were doing the bidding of their superiors, materials around the sale of BC Rail and those involving the search warrant “raids” and the RCMP investigation of the whole matter must be produced.

My observations lead me to believe that the RCMP responded to requests (and orders) for disclosure very, very, very badly. Their material came late, came badly organized, came in fragments, or didn’t come at all.

As I observed matters, the Special Crown Prosecutor did little or nothing to assure prompt disclosure. And Madam Justice Elizabeth Bennett did not use her powers adequately to speed RCMP and other disclosure. What was the RCMP doing? What were its interests?

Delay was followed by delay. BC Rail did not throw open its records, as it had every reason to do. It has niggled. And, indeed, three binders of material were gathered by Freedom of Information from BCR. But – using a technicality – BC Rail has had them denied to public scrutiny.

Finally, and of absolute importance, Gordon Campbell could have ordered all ministries and all other governmental bodies to release requested material without impediment. Doing that, one would think, would be the instant action of an innocent man in the position of premier. Gordon Campbell has not done that, ever.

And so the delay process has gone on and on, and on. Important “third parties” (which is the hilarious designation of BC Rail) as well as individuals like BC Rail and (apparently) CN Rail employee Patrick Kinsella (and others) are contributing to delay.

That leads reasonable Canadians to ask if there has been cooperation in delay by all of what might be called “the Gordon Campbell forces”? And do those forces reach into the sacred and trusted precincts of British Columbia’s high courts?

We must remember that the strange unseating of Glen Clark as premier of B.C., the (I insist) bungled and protracted RCMP investigation of his actions, the raging attack on him by private corporate press and media, and the 136 day trial he sat through to be declared innocent of all charges – all give the impression of a co-ordinated attack by a vicious democracy-hating Right to destroy fair and reasonable party politics in British Columbia by every dubious and dirty tactic available. Former B.C. premiers asked for a public inquiry into the Glen Clark matter. But they had to ask the government of Gordon Campbell.

By a stroke of remarkable coincidence, Madam Justice Elizabeth Bennett ws recently named to the B.C. Appeals Court. Though she failed, in my eyes, to end court delay, she accepted applications for disclosure leading in all legitimate directions, even now into e-mail records of Gordon Campbell and major cabinet members.

Another judge – deftly and wrongly – might have cut off most of those applications.

Not perfect, not (I would say) properly responsive to the enormous public importance of this case, still Madam Justice Elisabeth Bennett may have offended “the Gordon Campbell forces”.

She cannot be fired for doing generally capable work. But she can be promoted “before she does more harm”. That may be sheer speculation. It may not be, because Stephen Harper and Gordon Campbell are clones – and her appointment to the Appeals Court is a federal appointment. Both Harper and Campbell want to sell off everything in public hands. (Harper is faking the sale of Atomic Energy of Canada and moving to sell off so-called “Crown Assets”. Campbell has, in fact, sold BC Rail, BC Hydro, Terasen Gas, and is now selling ALL B.C. rivers.)

It is at this point that Associate Chief Justice Patrick Dohm re-enters, to appear on June 4 in courtroom 43. Consider in the light of what has been written here the importance to Canadian democracy of the Basi, Virk, and Basi trial. Consider the importance of continuity and grasp of the years of information gathering.

On June 4, Associate chief Justice Patrick Dohm appeared to hear a motion by Special Crown Prosecutor William Berardino to remove Madam Justice Elizabeth Bennett as trial judge in the the BC Rail Scandal accusations against Basi, Virk, and Basi. She has been seized with those matters for more than three years.

Mr. Berardino cited two reasons Bennett should leave. The first was not a reason for him to adduce. The second was manifest nonsense.

So specious was Mr. Berardino’s presentation, I grow increasingly convinced that he and Associate Chief Justice Patrick Dohm may have reviewed the baselessness of Berardino’s position, earlier. And they may have decided – as we say – to “fake it”, to “bull it through”. I may be wrong.

When Mr Berardino said – to begin – that Madam Justice Bennett can’t be in two places at once, Mr. Dohm might well have said: (1) That is not for you to decide, and (2) schedulers under my authority will decide whether she will divide her time or finish this case and then move exclusively to Appeal Court matters.

Instead, Mr. Dohm said that he agreed completely with Mr. Berardino, as if the latter had established a difficult point in law. In fact, Berardino said nothing of substance.

Then Mr. Berardino presented his wholly specious point. He said that the mode in which the two parties (Crown and Defence) deliver requests, respond, and properly adhere to standards of procedure has never been followed in this matter. Naturally, Defence leaped to its feet to declare Berardino’s statement nonsense and to show that when due process failed, he – Special Crown Prosecutor – was the one to ignore, obstruct, delay, and retard process. But Mr. Dohm leaped into the action and stopped Defence from speaking.

And so, on the record, Mr. Berardino has said the hearings have never followed proper procedure – as a part of his complaint. Defence could not respond. Mr. Berardino’s wholly specious point was allowed by Mr. Dohm to be made and to stand uncontested.

After that, Mr. Dohm appeared to be (more or less) figuring out on what date and whether he would reappear – since Madam Justice Elizabeth Bennett is obviously in the midst of pre-trial applications for disclosure of third party records.

That, as I remember, was when Mr. McCullough for the Defence rose and suggested that perhaps Mr. Dohm should send a memo to all parties involved. Mr. Dohm did not say: “Thank you, Mr. McCullough, but I think we can work the problem out now.” (Since he very likely was play-acting and knew very well what he was going to do before ever entering courtroom 43.) Instead, he quipped back, insultingly (as I observed the moment), “I don’t send memos”. Ha. Ha. Some people laughed. It never hurts (those in the legal community) to laugh at Mr. Dohm’s bad taste intended as humour.

Associate Chief Justice Patrick Dohm did not, as I have written earlier, tell the assembled counsel and British Columbians why the removal of Madam Justice Elizabeth Bennett might be wise – or even absolutely necessary. Apparently, he considers such matters have nothing to do with the people the Supreme Court serves. Indeed, the Dohm “Practice Directions” to keep information on the public record from the public, the refusal to provide daily transcripts of “open court” proceedings, and (what seems to me to be) the arrogance of court officers like Mr. Dohm are dangerous to democracy. They lead, almost necessarily, to the suspicion that the higher court judges are lackeys to political masters.

In theory, according to Defence counsel Michael Bolton, the decision about whether she goes or stays is Madam Justice Bennett’s to make. Only if she rejects the Defence motion that she should stay for reasons can Mr. Dohm, then, name a new trial judge. I am not alone among those in the courtroom in believing Mr. Dohm came as close as he could to saying Madam Justice Bennett will go, and that he has already chosen a judge to replace her.

In what seemed to be alarm at the suggestion, Mr. Dohm spoke what I have earlier referred to as an irrelevance – that all judges are able to conduct criminal trials. That was not what the Defence motion is about. Defence counsel (and many reasonable others) believe Madam Justice Bennett should stay with the Basi, Virk, and Basi matter because she has been reviewing information for three and a half years and is the most qualified judge to try THIS matter.

But Mr. Dohm seemed uninterested in matters of substance. He spent his time in courtroom 43, it seems to me, uttering illogicalities, insults, and non sequitors – possibly as a way of avoiding the very real questions involved.

His behaviour made me question his good faith. Nothing about his appearance on June 4 increased my faith in the British Columbia higher courts. Rather it made me fear for the people of the province and for democracy here.

For vivelecanada.ca

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July 14, 2009 is only 32 days away. It's an important date in B.C. history because it's the 5th anniversary of the signing of the BCRail Corporation and BCRail Properties Ltd. transaction with Canadian National Railway Company (CN) on July 14, 2004.

Those agreements have been kept secret.

On March 31, 2005, Wayne Straeleff, Auditor General of British Columbia, provided some uncomfortable glimpses into that situation in his Report to the Legislative Assembly. Here are some excerpts:


26. Contingencies and Commitments

... As a result of the transaction the province and BCRC have provided commercial indemnities to CN with respect to the transaction and indemnities related to income tax attributes of BCRail Ltd. and BC Rail Partership at closing. The maximum present value (calculated at 9%) of amounts payable under the tax indemnities related to income tax attributes is $366 million ...

The maximum payable under the commercial indemnities - not related to income tax attributes - is limited to $263 million. There are certain other specific indemnities (including certain environmental indemnities and matters unrelated to the industrial freight rail business) for which there are no limits on the amount payable thereunder.

The province and BCRC believe it is unlikely that the province or BCRC will ultimately be held liable for any amounts under the commercial and tax indemnities other than the payment of $490,000 which was identified, except for the amount, prior to the transaction's financial close.

33. Significant events

British Columbia Railway Company (BCRC) Operations
On July 14, 2004, BCRC and BCRC Properties Ltd. completed a transaction with Canadian National Railway Company (CN) pursuant to an agreement signed between the parties on November 25, 2003 (the "BCRail/CN Transaction") Under the terms of the BC Rail/CN Transaction agreement, CN assumed BCRC's industrial freight railway business by purchasing the shares of BC Rail Ltd., the partnership interests of BC Rail Partnership, and railcars from a related entity (?) (collectively "BC Rail) for cash proceeds of $1.0 billion. The gain on the BC Rail/CN Transaction is $199 million, calculated as follows:

Proceeds: $1,000 million
Deposition costs: ($19 million)
Net assets of BC Rail transferred to CN including cash assumed by CN: ($782 million)
Gain on BC Rail/CN Transaction: $199 million

The proceeds from the BC Rail/CN Transaction were used to repay all outstanding debt due to the province at a cost of $510 million. The province, however, still retains the associated external debt and as a result the debt has been reclassified as taxpayer-supported debt. The proceeds were also used to pay a $443 million dividend to the province. The balance was retained by BCRC to pay transaction costs and fund future corporate requirements.

Prior to the BC Rail/CN transaction, BCRC and BCRail Partnership entered into a Revitalization Agreement, under which BC Rail Partnership leased the railbed and related infrastructure from BCRC under a long-term lease. BC Rail Partnership prepaid all lease payments under the Revitalization Agreement. The lease of certain items included in railbed assets is being accounted for as an operating lease. Assets under the operating lease include land, grade, ballast and track laying and surfacing. The remaining railbed assets and track infrastructure have been treated as a capital lease. CN assumed responsibility for the Revitalization as part of the BC Rail/CN Transaction.

The Revitalization Agreement has an initial term of 60 years and gives CN the option to renew the lease for an additional 30 years at no cost to CN, and allows for further extensions to the term of the Revitalization Agreement should BCRC not exercise its option to repurchase the rail operations. The maximum term of the Revitalization Agreement is 990 years.

The BC Rail net operating income for the 1206 days ending July 14, 2004 was $16 million ($86 million for the year ending March 31, 2004).

The province and BCRC have provided indemnities to CN with respect to the BCRail/CN Transaction (see Note 26).

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What lies buried under BC Rail's track beds?

Somebody had to have arranged for the huge profit CN quietly picked up on the side

By Kevin Potvin

The Republic - June 4, 2009

{Snip} ...

Even at the time of the auction, things looked strange. It was eventually sold to CN for $1 billion. The now-opposition NDP flew into a rage and the interior towns revolted. The government responded by insisting it had got a good deal for what had plainly been a money loser, as though it was the price they got and not the act of selling it that was the source of all the fuss

To allay these invented fears, Campbell hired the services of a third party auditing firm to test whether or not the government got a good deal. The tactic worked: the price became the issue. But even here, questions arose.

{Snip} ...

CN annually makes a healthy profit. Since its purchase of BC Rail, CN has been using up BC Rail’s losses against its own profits and saving, by the time it’s done, $1.3 billion in tax payments. It is the same, essentially, as profiting $1.7 billion, since the profit here is an after-tax profit. For this guaranteed $1.7 billion profit (there was no risk, after all, since the tax department would not likely change carry forward rules), CN paid the princely sum of $300 million. Let’s see: $300 million for a $1.7 billion guaranteed profit. The portion of the deal the auditor did look at, covering the cars and sheds, pales by comparison. We can see why the government failed to provide the auditor with sufficient information to be able to evaluate whether the public received fair value for the sale of the tax books portion of the BC Rail deal. Paying $300 million for something automatically guaranteed to be worth $1.7 billion is called theft, at least the way I was raised.

{Snip} ...

Not long after the closing of the deal, police showed up at the legislative building ...

CN walked away $1.4 billion to the good, and that whole part of the BC Rail deal has all along been obscured, distracted, and hidden, and remains to this day still largely unknown. It had to have taken a few of those thickened envelopes to so effectively paper over such a thing, I say to the grinning guy down the bar.

Read all of Kevin Potvin's excellent article HERE. He is referring to the Charles Rivers Fairness Report.

Special thanks to Anonymous whose comment tipped us off.

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Court dates? Every court in B.C. is listed today as

No sittings for this location.

And that's the listing for every court house in B.C.

Baffling.

So where do I turn? To Bill Tieleman, of course. I e.mailed:

Hi Bill,

Hope you're enjoying the sunshine.

Just wondered what you make of today's Court Listings (June 7).

I have never seen this phenom before. Every court I checked says "No sittings for this location" ... has somebody died? Is it a summer schedule? Are the judges on strike (har har)? Has swine 'flu taken them down?

God forbid that they should insert a few words to explain.

Mary.
______________________________________________


Bless Bill. He always comes through for us. He replied:

Just the usual incompetence and lack of respect for the public as far as I
can tell.

Here's my understanding of upcoming court dates ...

Monday, Tuesday June 8-9 - BC Rail FOIs

Wed/Thurs/Fri - OFF

Mon June 15-18 hearings on

Fri June 19 - maybe on maybe off

__________________________________________________________

Big thanks to Bill Tieleman.

Boo! hiss! and brraack! to the Court clerks. Surely to gosh a few courteous words of explanation would be more appropriate than outright false info.

________________________________________________________

So here we are, Citizens, hung out to dry. The Crown Prosecutor has the trial stalled due to his costly appeal to the Supreme Court of Canada (Ottawa) about a secret witness who may or may not exist. The Campbell Cartel has a lawyer in court arguing against allowing a few e.mails to be released to the Defence. Associate Chief Justice of the BC Supreme Court may decide to "promote" (i.e., remove) Madam Justice Bennett from the Basi Virk / BC Rail Case. Our Crown Prosecutor wants her gone, too, and wants a new judge to start all over from Day One.

And now, right in line with all this, the B.C. Supreme Court listing is telling the public to "Move along, folks, ain't nuthin' happenin' here ..." when, in fact, crucial pre-trial hearings are taking place.

At what point do the citizens of British Columbia start saying "We're mad as hell and we aren't going to take it any longer?"

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A note from DPL tells us that the Court listings did change, much later in the day -- that is, too late for people to attend. As for June 9, there's no listing for Basi Virk nor their File #23299. - BC Mary.

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When police raided legislature offices more than five years ago, Premier Gordon Campbell promised complete co-operation.

"I've told everyone to be as open and transparent as they can about the entire situation," he said from Maui. The government would co-operate fully as the process unfolded.

Campbell apparently needs to remind some party members of the commitment. The B.C. Rail corruption case continued its halting progress through B.C. Supreme Court last week.

Defence lawyers for Dave Basi, Bob Virk and Aneal Basi have been seeking e-mails from 17 current and former Liberal MLAs, including Campbell, that they believe might be relevant to the case. The indication from the lawyer representing the Liberal caucus was that all or some would fight disclosure.

It might be there is an argument around whether the documents are privileged. If so, the government can waive that without prejudice and provide the required evidence without setting a precedent.

This is a major criminal case that has cast a cloud over government and the three accused and consumed millions of taxpayers' dollars. More delays are not in the public interest.

Campbell promised complete openness. He should ensure all members of the government comply.

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It's remarkable that the Victoria Times Colonist should be commenting, ever so mildly, at this late date, on the Campbell government's failure in the Basi Virk (BC Rail) trial.

Three (3) years ago, on June 5, 2006, the trial of Basi, Virk, Basi was actually scheduled to begin.

A recent Bill Tieleman report mentions that the Basi Virk lawyers (defence and prosecution) have booked off all other work between September 2009 and January 2010. Mind you, we don't really know ... but this strongly suggests that the most important trial in B.C.'s history may take place during that time.

At this critical point, the classic diversionary tactic is to remove ... as in promote ... the judge. If that happens to Madam Justice Bennett in the Basi Virk case, the public will have one more reason to doubt the integrity of both the government and the judiciary in British Columbia.

Noted in passing: a guy named Saddam Hussein was charged, captured, put on trial, found guilty, hung, and forgotten in less time than it has taken to bring the Basi Virk / BC Rail Case to court. - BC Mary.

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Remember that great German philosopher who said we must hit bottom before we can climb to the top, or something like that. I figure a lot of us hit bottom on May 12, 2009 but I have very little patience (none, in fact) with anybody who parks his/her sorry butt at the bottom, wringing their hands, and crying "We're all gonna die!" Of course we are, you silly ass. It's what we do while we're alive that counts. But that's the thing: what do we do?

Practice question: why is it not OK for the public to own BC Rail, BC Hydro, PetroCanada but it's OK for us to own 12% of General Motors now?

Jim Travers is a national columnist who I pay attention to. He's thorough, well-grounded, experienced ... and tolerant. He has never come across like one of those CanWest trained poodles, partly because Toronto Star is known for its independence. You can see Jim Travers each Friday on Don Newman's "Politics" too (CBC Newsworld), always a rational analyst.

In this column, Travers is describing the national government which seems to have the same confused management style as the B.C. government has. Lately his tone has hardened, sharpened until he's been sending "John Ward" style messages which sound like warnings against our own governments. When John Ward said it on Dec. 29, 2003, I believed he might be correct. Now, 5 years later, when Travers says we've hit bottom, I believe him. What's more, I believe there's something we can do about it.

If you go to the original Toronto Star story, you'll see 28 comments. Judge for yourself, how quickly frightened citizens, while recognizing the truth of what he's saying, will simply keep whimpering: "We're all gonna die!" But there are also vigorous statements about how we're gonna live, to grieve, to face the facts, and to start again. - BC Mary.

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MPs not minding the store. So why are they there?

Ottawa bailed out General Motors to the tune of $10.6 billion June 1, 2009, a move done with little debate and less documentation, Jim Travers says.

Toronto Star - June 6, 2009


OTTAWA. Dysfunction is measured here in an Everest of Loonies. That already towering summit rose this week by 11 billion of them, give or take a few misplaced millions.

First, with little debate and less documentation, the federal government gave General Motors a $10.6 billion gift thinly disguised as a 12 per cent stake in the bankrupt company. Then from a secret briefing book came startling news that this year alone taxpayers are spending $315 million on the chronically ill Chalk River nuclear facility, cranking the total to some $1.7 billion since Conservatives came to power.

As much as rivals hope the problems stick to the Prime Minister, Stephen Harper didn't create either mess. Canada's auto sector is bleeding from multiple wounds, some caused by recession and seismic global shifts, some self-inflicted. Keeping the vintage reactor operating, let alone selling CANDUs and producing medical isotopes, is one of the inherited horrors that sap the fun from winning elections.

So the issue isn't blame, it's accountability. Members of Parliament weren't asked and don't know enough about the GM bailout to decide if it's the best possible way to spend more than $300 for every Canadian man, woman and child. And they certainly can't make rational decisions about the nuclear industry's safety or viability when the watchdog is sacked for doing her job and as long as following the money trail is a fruitless scavenger hunt.

What MPs don't know can hurt us all. They – and we – need more than a prime minister's assurance that buying a piece of GM is in the national interest. They – and we – need to know that having a seat at the boardroom table will give a voice strong enough to insulate jobs, investment and research from the forces of corporate desperation, a border thickened by protectionism and a Canadian dollar rocketing towards U.S. parity.

Inconvenient as ever, the awful truth is that those who make their living representing we-the-people know about as much about the GM bailout as they did about the Chalk River sinkhole before Natural Resources Minister Lisa Raitt's briefing book was left behind. Even more unsettling than that truth is another. It's no accident that the Commons is no longer capable of its defining task of overseeing public spending.

In the decades-long migration of power from Parliament to prime ministers, backbenchers were left out of the loop. Pressing issues once openly debated in the Commons were shuffled to committees where fluid membership, pinched resources and extreme partisanship guarantee the best questions are rarely, if ever, answered.

Here's how it worked – or didn't – in applying due diligence to the auto rescue. A sub-committee heard late-night testimony for a file-and-forget report pre-empted by cabinet's decision to impose a 60-day restructuring deadline. Or, put another way, MPs had no meaningful influence over a decision with profound implications and a price tag of roughly 20 per cent of this year's projected $50 billion deficit.

There's nothing new here about not knowing enough. A memorable example is the artful way Liberals lifted the rug to hide the cash that became the Quebec sponsorship scandal. But deficits for the foreseeable future bring fresh urgency for politicians to prove to citizens, taxpayers and voters that every cent is wisely spent.

A dilemma is created by the continuing failure to meet that minimum standard. If MPs can't do their most important job, why bother coming here at all?
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Comments:

Look at the BC Rail Case

I've wished a thousand times that the rest of Canada would begin to pay attention to the offences being committed against British Columbia. The whole sorry mess is being exposed by the trial in BC Supreme Court investigating how the Campbell government happened to lose Canada's 3rd largest railway. Millions of dollars are going down the drain as Crown Prosecutors and Campbell Cabinet ministers try to prevent the necessary documents from being read in court. The deal itself giving BCRail to CN remains secret after 5 years! There are connections from the accused to a sparkling array of Canadian political celebrities ... all of it ignored by the media and by the nation's leaders. Jim Travers asks why our MPs are there. I ask why CanWest is there. More's the point: I ask who's running this country?

Submitted by BC Mary at 9:56 PM Saturday, June 06 2009
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It's laziness and apathy. When you have a party like the (Reform/CA)Conservatives a party that DOESN'T believe in government you can expect a little bit of reluctance to step in and do anything. Why else would they be so eager to sell off Gov. properties so that they don't have to deal with them. The fact that a majority of the MP's are grossly unqualified like Flaherty we should be so lucky that not a lot of them are stepping in making things worse. They would have to care about ALL Canadians (and not certain provinces) to want to make a difference and govern.

Submitted by blueburn at 8:01 PM Saturday, June 06 2009
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Truth as we've seen it (past), governments 'buy' using public funds then 'sells' (says not profitable) to friends, relatives, cronies for a song! Grand theft and we stand by with our mouths hanging open doing nothing.

Submitted by rroarrrrrrrrrrrrrrrrr at 6:06 PM Saturday, June 06 2009

and 25 more comments before the Comments section was closed.

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The attendance of Mr. Sullivan, counsel for Patrick Kinsella, was, perhaps, the focus point of the day. But "shadow talk" may be even more important.

Mr. Kinsella - as we know - was campaign manager for the Gordon Campbell forces in at least two elections, is spoken of as "friend" of Gordon Campbell' received large payments over four years as 'advisor', 'lobbyist', 'consultant' or other for BC Rail in a key period of the BC Rail Scandal. Some suggest he was also - while in the employ of BC Rail - a consultant or other for CN Rail. Mr. Bolton for the Defence, suggested in his argument for the application to access Kinsella records, in fact, that the double role made Mr. Kinsella key in the so-called "sale" of BC Rail to CNR.

Mr. Bolton went on to argue that all of those facts are pertinent to the defence of the accused. He reasoned that the accused were merely a part of a process beginning well before the public knew of the possibility of the sale of BC Rail. One might say that a Gordon Campbell clique decided to sell BC Rail to CN Rail very, very early - after apparently adopting a no-sale election plank for the 2001 election.

As a result evidence in the famous 17 binders made public as a result of the Freedom Of Information request shows quite clearly early discussions about a sale and gives serious information that suggests CN Rail was early choice of buyer, that it was given special knowledge denied to other bidders, that those bidders may have been (without knowing it) used for sham purposes. (Two of them withdrew making clear they thought the bidding process soiled.) Defence even suggests (as I understood argument) that the Northern Caucus concerned about the possibility of a sale of BC Rail may have been used and not fully informed of the Campbell clique's intentions and actions.

Since, Defence argues, the circle of the clique spread outward, as it had to in order to get the results it sought, people like Dave Basi and Bob Virk were, as Mr. McCullough said a few days ago "operatives" who at all times were doing the bidding of senior politicians. Indeed, Mr. McCullough suggested in court that Bob Virk was important in the sale of BC Rail and was in direct contact with Gordon Campbell, though Virk was - on the face of it - an aide to Transporation minister Judith Reid.

Information about the proposed sale was, apparently, leaked to Pilothouse (lobby organization). Pilothouse was employed by a bidder, Omnitrax, to whom it is alleged a special consideration may have been promised if it stayed in the bidding, for appearances. Neither Basi nor Virk, Defence contends, leaked information to Omnitrax, but suggests that maybe the leak came from Christy Clark, Deputy Premier at the time. Bornmann (of Pilothouse) "elearly had certain cabinet sources", Mr. Bolton has said.

Sullivan, acting for Patrick Kinsella, questioned Madam Justice Elizabeth Bennett about her reference to Mr. Kinsella from the bench a few weeks ago. She explained to him her duty with regard to information that the case might need. She explained how she read in the paper that documents not mentioned in court were discovered in the Parliamentary Library (relating, I believe. to payments made by BC Rail to Mr. Kinsella). She pointed the article out to counsel.

She assured Mr. Sullivan she intended nothing more than to make the information known to counsel, and she apologized if her action has been misunderstood.

His argument against the application by Defence to see Kinsella records appeared at one point to be based upon the contention that Defence did not have the right to ask because the records were not relevant. Both Mr. McCullough and, by inference, Madam Justice Bennett suggested the argument was without merit because her ruling had made clear the terms of the relevance of third party records.

Outside the courtroom Mr. Sullivan suggested his argument for the rest of the time would be based largely on a contention that the inferences drawn by Defence counsel, based on materials they already have in their possession, are incorrect inferences, and so the records should remain private.

If the Kinsella forces have a bull-dozer with which to run over the Defence, it did not appear this morning - and does not promise to appear this afternoon.

"Shadow talk" in the hallways would be of as much interest to British Columbians, perhaps. It circled around the status of Madam Justice Elizabeth Bennett as continuing judge for the trail of Basi, Virk, and Basi.

Perhaps the substance of the matter can best be set out in points.

There are those who believe Madam Justice Bennett is "gone". At one point early this morning she said to Mr. Sullivan that he might like to take up a point in question with the trial judge (as if, perhaps, she does not intend to be trial judge).

Associate Chief Justice Patrick Dohm, as I said yesterday, appeared to talk out of both sides of his mouth. He would wait until she had made her decision on the motion by Defence that she stay. But he already has the person chosen to replace her. That he made quite clear.

As I said yesterday, Mr. Bolton stated that her staying or going is in her own power. If she decides the argument of the Defence for her staying is compelling and she decides to stay, she cannot be removed by someone else.

Shadow talk suggests she might want to be free of the case to pursue work as Appeals Court judge.

Shadow talk also wondered if her appointment is dependent upon taking up the new post within a certain time.

Defence, of course - for reasons I listed yesterday - wants her to remain. She has ploughed through mountains of material, mastered intricacies of the case, listened for hundreds of hours to discussion and argument, and is aware of arcane but important connections of forces in the matter.

Can a trial judge proceed without the kind of knowledge she has? Yesterday, Mr. Dohm said (with what I consider haughty irrelevance) that no one need worry because all the judges are well qualified to act - words to that effect. That argument proceeds on the assumption that once the pre-trial hearings are done, admissable evidence secured, and peculiarities ironed out or made clear - anyone can conduct the actual trial. Maybe. In theory.

There are other deeper and darker murmurings. Has Madam Justice Bennett been elevated to the Appeals Court to get her out of the way, to replace her with a judge who will protect Gordon Campbell interests? Her appointment is a federal appointment - but Gordon Campbell is closer - in many ways - to Stephen Harper than to the federal Liberals. Both men are dedicated to handing public wealth to private (often U.S.) owners. That is precisely what the "sale" of BC Rail was.

As I wrote yesterday, a change in judges cannot be seen as a simple act. Because the BC RAil Scandal trials are, perhaps, the most important corruption trials in British Columbia history any tampering with due process will be suspected by many.

Associate Chief Justice Mr. Patrick Dohm might have explained to British Columbians why transfer of Madam Justice Elizabeth Bennett is reasonable, at this time. But Mr. Dohm is not given to considering, I believe, that he has any obligation to British Columbians. He might have discussed the terms of her new appointment. But to do so would imply that British Columbians have a real meaning in court operation in B.C. I don't think such an idea ever enters Mr. Dohm's head.

Argument can hardly be made that she must be immediately removed from the most important corruption trial in British Columbia history to do work on inter-corporation arguments before the Appeals Court. So say nothing.

Indeed, no one suggested that Mr. Dohm probably should have appeared yesterday to hear Mr. Berardino's argument that Madam Justice Bennett cannot be in two places at once, and she should go now. And then, Mr. Dohm should - with his sharp and able tongue - have told Mr. Berardino that it is not a Special Crown Prosecutor's place to say where Madam Justice Bennett should be or should not be. (Mr. Dohm was fast on his feet snapping to Mr. McCullough that he doesn't write memos. Some of us think justice would be better served in Province if he took up the activity.)

No one is suggesting that Mr. Dohm should have said: "Madam Justice Bennett is not moving from this most serious matter. She is seized with it, and she is excellently informed about all its aspects. The work she would do on the Appeals Court that she cannot do in the meantime will be carried by others. This case, which goes to the very heart of our democracy and to the very heart of the responsibility demanded of the highest political actors in the Province must proceed, and it must proceed without any unnecessary changes or shifts."

No one suggested that is what should have happened yesterday. I am suggesting it is what should have happened. And I am suggesting that because it didn't happen, I am deeply uneasy about the good health of justice and the pursuit of justice in British Columbia.

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Patrick Kinsella's lawyer denies in court his client had anything to do with BC Rail sale; defence argues otherwise

A lawyer for BC Liberal insider Patrick Kinsella says there is "no evidence that he was part of the sale process" in the $1 billion BC Rail privatization but defence lawyers in the BC Legislature raid case argued otherwise Friday.

James Sullivan, representing Kinsella, was opposing a defence application in front of BC Supreme Court Justice Elizabeth Bennett to obtain the records of Kinsella's companies in connection to his $297,000 contract with BC Rail.

And defence counsel Michael Bolton, representing David Basi - the former BC Liberal ministerial assistant facing breach of trust and fraud charges along with fellow ex-MA Bob Virk - also said he wants any records Kinsella has connected to CN Rail as well.

Bennett heard spirited arguments from Sullivan, Bolton and Kevin McCullough, counsel for Virk, about the potential relevance of evidence Kinsella may posess.

"We're seeking from Mr. Kinsella records that relate to the Progressive Group and Progressive Holdings from 2001 to 2005, all communications, correspondence, invoices, cheques and briefing reports connected to Mr. Kinsella's dealings with BC Rail, connected to the sale of BC Rail and the divestiture of the Roberts Bank Subport," Bolton said ... {Snip} ...


Bill Tieleman's detailed report in full is HERE.

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Basi Virk trial judge to make her own call.

Keith Fraser report is here.

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I heard it on the grapevine yesterday and it's true! It's there in today's Vancouver Supreme Court listings: Basi Virk Basi hearing June 5, 2009 (that's today) with a start-time of 10:00 AM. Program looks the same: Full Disclosure and Applications for Records but from all reports yesterday, the topic of Kinsella does indeed light up Courtroom 43. - BC Mary


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Courtroom "Friends" Take The Gloves Off, and A Clash Of Legal Opinions

The morning opened with Associate Chief Justice Patrick Dohm on the bench to receive a motion by the Special Crown Prosecutor, William Berardino, to replace Madam Justice Elizabeth Bennett as the trial judge seized with the Basi, Virk, and Basi matters. As I understood his meaning, Mr. Berardino wished the new appointment to be made immediately.

Mr. Berardino offered the argument that Madam Justice Bennett cannot be in two places at once (acting as a Supreme Court judge and acting as a Appeals Court judge). Mr. Dohm agreed. Mr. Berardino argued that Mr. Dohm can appoint a judge to a case and he should proceed to do so.

There is more to the argument, as we shall see. But that first point is an oversimplification. Both courts are in the same building. A judge raised to the Appeals Court must have responsibility to cases in process with which he/she is already 'seized' (in a legal sense 'in possession of').

In a trial of the enormous public importance as the one swirling around the BC Rail Scandal, changing judges won't be accepted as "routine" but cannot help being seen by some as political manipulation for advantage.

Defence counsel pointed out the obvious - that applications were in process of argument regarding third party disclosure and much more - in mid flow.

Mr. Dohm asserted that he would not create a situation of two existing trial judges - meaning, I take it, that he would not appoint a judge for "down the road" while another judge (Madam Justice Elizabeth Bennett) is, in fact, seen as "trial judge". He would not, moreover, break into the present procedures underway.

Matters will proceed as they are until about June 26, much being cleared up of pre-trial activity by then. Then Dohm, as he said it, mighty step back in to make decisions. Mr Dohm said that depending upon what happens with the motion put forward by Defence that Madam Justice Elizabeth Bennett proceed to the trial he will "probably step back" in, an assignment of a judge will take place, and matters will proceed.

In a manner that had a certain grand theatricality about it, Mr. Berardino, Special Crown Prosecutor, stated that the tight process of what might be called 'address and response' between Defence and Crown has never been used in the Basi, Virk, and Basi matter (a good reason, apparently, to proceed with another judge). That brought the Defence lawyers to their feet, fit to burst....

They wanted to rehearse their sorry tale of Crown delay, failure to reply to requests, muddled replies, etc. etc. But Mr. Dohm stopped what would doubtless have led to top-rated entertainment, and even perhaps something worse.

Mr. Dohm appeared to speak out of both sides of his mouth. That is not to be unexpected. But the appearance, in this instance, may simply have been produced by misunderstanding. And there lies what I see as the Clash of Legal opinions. Mr. Berardino (to put the matter in rough words) seemed to be saying that Dohm has the power to change judges, without question. And he should set about doing it.

If that is the case, why does he wait until she assesses the motion put forward by Defence that she (Madam Justice Elizabeth Bennett) stay on. If Patrick Dohm makes the decision, why can't he make it now?

Asked outside court about this apparent contradiction, Michael Bolton for the Defence asserted that if the motion considered by Madam Justice Bennett carries a weight of argument that convinces her she should stay, her decision is final, and cannot be overturned by Mr. Dohm. Mr. Dohm did say that "depending what happens to that motion" he would step back in.

I asked Mr. Bolton if Mr. Dohm - who stated he already has the replacement judge, in fact, chosen - could exert influence on the independence of Madam Justice Bennett's decision. Mr. Bolton would not be drawn on the question (and, of course, quite rightly would not be drawn).

Defence counsel, of course, made the obvious argument for retaining Madam Justice Elizabeth Bennett. She has presided for three and a half years over hearings that have ploughed through mountains of documents and hundreds of hours of argument and review, to say nothing of a growing acquaintance with the connection of apparently widely dispersed forces acting upon the accused and their actions.

That may be, in sum, reason why some forces in society would want her removed. For my part - as a long time observer who has been one of the more severe critics of Madam Justice Elizabeth Bennett's mode of presiding over proceedings - I cannot see how, at this point, switching judges could be anything but a serious, foolish, and politically ill-advised move.

I believe, sincerely, that the people of the Province would not consider a change as anything but the effect of the long arm of Gordon Campbell reaching into the higher court system and forcing it to decisions that guarantee advantage to him and his fellows.

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Request for new trial judge for Basi-Virk denied

BY KEITH FRASER
THE PROVINCE - JUNE 4, 2009

A Supreme Court judge, whose job it is to assign judges their criminal cases, has denied an application by the special prosecutor in the Basi-Virk corruption case for a new trial judge ...

Yesterday special prosecutor Bill Berardino appeared before B.C. Supreme Court Associate Chief Justice Patrick Dohm to ask that a judge be appointed to replace Bennett ...

Lawyers for the three men accused in the case, however, said they opposed the move and noted that they have an application before Bennett for her to continue on as the judge ...

Dohm told the lawyers that he wasn’t going to announce the appointment of a new judge, though he has somebody in mind.

“The reason for that is very simple. I do not want two trial judges. This (case) has been a long time in getting this far and I’m not going to muddy the waters by appointing a second trial judge.”

Dohm ordered that the defence application for Bennett to remain be heard before June 26.

{Snip} ...

Keith Fraser's full report is HERE.

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BC Rail leak laid on minister
Details of confidential discussion on $1-billion privatization must have come from inside cabinet, court hears

Mark Hume
Globe and Mail - June 04, 2009

VANCOUVER - Details of a confidential cabinet discussion on the $1-billion privatization of BC Rail were leaked to a Victoria lobbying firm in 2003 while the deal was still being developed – and the source may have been a minister, the Supreme Court of British Columbia has heard.

Cabinet is the highest decision-making body in government, and it is a long-standing parliamentary convention that ministers swear to protect its confidentiality.

But in an application for the disclosure of the e-mail records of 17 former and present Liberal MLAs, defence counsel Kevin McCullough told court a police investigation concluded that neither Dave Basi nor Bob Virk, two former ministerial aides facing multiple charges of fraud and breach of trust, were responsible for the cabinet leak.

Mr. McCullough said the only logical conclusion then is that someone who was in cabinet passed on the information that was found in a briefing note at Pilothouse Public Affairs, a Victoria lobbying firm that represented OmniTRAX Inc., a U.S. company that failed in a bid for BC Rail.

“Some members of cabinet must have been the source,” he said, referring to both a Pilothouse internal note on the cabinet meeting and a subsequent report to OmniTRAX.

Mr. McCullough argued one possible source might have been then deputy premier Christy Clark. He read a Pilothouse e-mail that stated: “Yo bro, will you email me back the relevant insights from your chat with Christy.”

But Janet Winteringham, one of the special prosecutors, protested the assertion, which was made without the presentation of any evidence.

“He's asking you to draw inference, after inference, after inference on no affidavit information,” she complained to Madam Justice Elizabeth Bennett.

The judge agreed.

“I don't need to go there,” she told Mr. McCullough. “You are asking me to draw an inference when people are not present to challenge [it].”

She said all Mr. McCullough was required to do was to show why the e-mails of the past and present MLAs might be relevant.

Ms. Clark, who left office in 2004, is among the group of former Liberal MLAs from whom the defence is seeking e-mails.

Mr. McCullough's comments were made late Wednesday and he continued his argument Thursday.

Also Thursday, Associate Chief Justice Patrick Dohm took the bench briefly to hear submissions about a possible replacement for Judge Bennett, who was recently elevated to the B.C. Court of Appeal.

Special prosecutor William Berardino urged Judge Dohm to name a new trial judge as soon as possible, saying Judge Bennett can't be in two courts at once.

“I'm asking you to cut through all of the potential delay … to appoint a trial judge to set schedules and move this case forward,” he said.

Michael Bolton, a defence attorney, objected, saying he wants first to make a submission to Judge Bennett, in which he will argue that, after handling the matter for more than three years, she has become “seized with” crucial aspects of the case and should stay on.

“I know who the trial judge is going to be – but I am not making the assignment today,” Judge Dohm said.

“I do not want two trial judges in this case or any case … so I'm not going to muddy the waters by appointing a second trial judge,” he said.

Judge Dohm said he will make a decision after Judge Bennett has heard the defence argument for her staying on.

“Depending upon what she does with that motion I will then probably step back into the picture, the assignment will take place and matters will proceed,” he said.

{Snip} ...

Mark Hume's column HERE.
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BASI-VIRK - Defence alleges Christy Clark may have leaked confidential BC Rail information from cabinet to Erik Bornmann - lobbyist for OmniTRAX

Bill Tieleman - June 4, 2009

“For example, Christy Clark may have been the source within cabinet – certainly Mr. Bornmann was in contact with Ms. Clark” - Michael Bolton, lawyer for David Basi

Associate Chief Justice Patrick Dohm turns down Special Prosecutor request to immediately remove Justice Elizabeth Bennett as trial judge in case
By Bill Tieleman, 24 hours columnist

The defence in the B.C. Legislature raid case alleged Thursday that former B.C. Liberal Deputy Premier Christy Clark may have leaked B.C. Rail information to a lobbyist acting for one of the bidders in the $1 billion sale.

{Snip} ...

Bennett was told that two former BC Liberal MLAs, Karn Manhas and Paul Nettleton, have given their complete consent to release their emails but others have not.

Nettleton left the BC Liberal Party caucus in 2002 after strongly protesting the privatization of part of BC Hydro in an open letter to his colleagues. Nettleton then sat as an independent MLA and also opposed the sale of BC Rail.


Bill Tieleman's detailed column is HERE in full.

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Update from Bill Tieleman:
Just confirmed but it’s not online apparently. I’ll be there.
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Sorry, I don't have the start-time for Dohm's conference yet. - Mary.

1:30 pm ... now they tell us that things got started 3 hours ago! at 9:45 and 10:00 am and from there I can't make head nor tail of the Court Listings today, for example: the Reason for Being There (RSN) is PTC at 9:45 and CNA at 10:00 in Room 43 and REG. Go figure.

Times like this, its very clear how important the media is. Watch for Bill Tieleman's report. I hope Robin Mathews is in Courtroom 43 taking notes, right now too. Maybe Mark Hume as well. Keith Fraser. Neal Hall ...

We want to know all about it. What did Dohm say? Was Madam Justice Bennett there? Will she continue to be the presiding judge for the rest of the Basi Virk BC Rail Case? How many lawyers? Is there a trial date set? Was the Public Gallery filled to overflowing? What happens next ... ?

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To keep watch: go to the "Links" in the left margin of this page.

Click on BC Criminal Courts, then
Criminal, then
Adult Supreme Court
Vancouver Law Court (Supreme)

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Headliners in this morning session focus on Gordon Campbell and his relation with Bobby Virk (aide in Judith Reid's Transportation ministry) and with the importance of information that can be supplied to Defence by the accused.

The morning was given up, to begin (1) with discussion of the way e-mail materials sought by Defence can be efficiently made available - (if the application is granted). Defence suggests Mr. Webster - using the same protocol - be employed because he sifted the materials for the 17 binders of FOI material to everyone's satisfaction. (2) Mr. Montague, for the MLA's, reported that he cannot supply response until next week to the Defence application about MLA e-mails. (3) Mr. McCullough for the Defence made argument on the body of the Defence application(s) for access to e-mails of 17 MLAs. Defence will file application in a few days for access to cabinet e-mail sources. Clark Roberts, counsel for Gary Collins, was present at the proceedings.

Mr. McCullough made clear that the FOI materials recently made available couldn't include MLA e-mail material because that material, under the power of the Speaker, is not, by law, (as they say) FOIable (meaning it cannot be accessed by Freedom of Information request).

As a result, part of the present applications are intended to make available to Defence relevant MLA e-mail material.

That matter is complicated by the fact that what one might call the "e-mail system" allows for great variety. For instance, (using Gordon Campbell as example), Gordon Campbell has an e-mail address as Premier. He may have another as cabinet minister. He may have one as MLA (and does). And he (or his staff) may send out e-mails on the e-mail addresses of others. His cabinet e-mail material may be accessed by Freedom of Information. But his MLA e-mail use is not FOIable. What is more, people in his office may communicate by using his MLA e-mail - and such communication, of course, is not FOIable.

Campbell, apparently, is a blackberry user, and he can access any of the e-mail addresses on his blackberry.

It would never happen with a person as principled as Gordon Campbell, but if he wanted to conduct communication in an unexaminable way, he could use his MLA e-mail process.

Mr. McCullough was able to show that the application(s) being made have what he called the "air of reality" by producing e-mails already available that directly support the Defence position. The 17 MLAs will possess many commmunications with Virk, who was a key political operative in the BC Rail transaction, according to his counsel, Kevin McCullough.

Virk, in fact, had a position that might well appear to observers to be considerably more important than that of a "mere" aide in the Transportation ministry. Indeed, we remember that he and the two Basis (Dave and Aneal) were hired by Order in Council - not through civil service competition or such a screening process. They, in fact, might be considered to have been directly hired by Gordon Campbell. And when Virk was fired, he was not fired by his Minister (Judith Reid) but by Gordon Campbell through the chief of staff in the Premier's office.

The implications of those facts are enormous for the closeness of Gordon Campbell to the accused and to any actions in which the accused may have been engaged. And the implications are enormous for a theory that might suggest any Campbell cabinet is something of a sham, the real force in Victoria being Gordon Campbell and his personally hired agents and certain cabinet ministers who "can be trusted".

For instance, Mr. McCullough gave an example already in his possession of Gordon Campbell e-mailing (by his MLA account) Bob Virk to ask what the Minister of Transport wanted to meet about. (Campbell didn't contact the minister.) Virk replied to Campbell, telling him what the proposed meeting was about. And Campbell, in effect, replied soon after to kill the meeting in effect. I deduce that Campbell communicated with his own "employee" who he considered more important than the Minister holding the transportation portfolio. As Mr. McCullough put it, Bob Virk was Gordon Campbell's "operative".

Mr. McCullough pursued the idea to the point of suggesting Gordon Campbell "ran things" using, I gather, his own boys. What is more, all of the instance just reviewed was conducted through Gordon Campbell's MLA e-mail.

There seems to be little doubt that one or all of the accused were able to provide explanations of the structure of power in the Gordon Campbell operation preceding and during the sale of BC Rail. Any peculiarities in the process might well be known by the accused, who, according to Mr. McCullough's argument this morning, were far more than what might be suggested by the word "aide".

They appear to have been a closely operating part of Gordon Campbell's on-going actions in the sale.

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Defendants were 'operatives' for BC premier, lawyer argues
Mark Hume
The Globe and Mail - June 3, 2009.

Read the story HERE.

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e-mails between premier, accused cited by defence
Keith Fraser
The Province - June 4, 2009

" This document represents how this government operates ..."

Keith Fraser's full column HERE.

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A year ago, Leonard Krog wrote a letter to the RCMP regarding their investigation of the BC Rail Privatization deal.

Krog, as Official Opposition Critic for the Attorney General's ministry, wrote asking "that the RCMP begin a separate criminal investigation immediately" regarding four named officials who were required to swear an undertaking before the court to maintain confidentiality regarding any and all documents they reviewed and/or discussed. And who, according to Krog, had failed to do so.

According to the copies of documents attached to Krog's letter, the four named officials were George Copley, Nancy Reimer, Neena Sharma and Joy Illington.

Krog wrote: "This protocol was reviewed and signed off by the RCMP, the Special Prosecutor, the Deputy Attorney General, the Deputy Minister to the Premier and the Solicitor to the Executive Council. Judge Dohm approved of the protocol January 14, 2004 ... " Krog, a lawyer, carefully set out the case for due consideration before Gary Bass, Deputy Commissioner of RCMP Pacific Region.

Charges of Breach of Trust against David Basi, Bob Virk and Aneal Basi had been sworn December 21, 2004.

Krog's presentation continues: "On October 7, 2004, the Office of the Special Prosecutor wrote Mr George Copley seeking review of three documents (attached). According to the Special Prosecutor's letter the RCMP had indicated that they wished to interview Ministers Collins and Reid as well as three senior government officials about the documents. The Special Prosecutor also provided Mr Copley with the questions the RCMP intended to ask and he reminded Mr Copley not to share this information with any of the intended interviewees.

"Two of the documents were cabinet documents prepared by Minister Collins' ministry relating to the second round in the bidding process for the BC Rail assets. The third document was an email to Minister Reid regarding the Cabinet discussion of these documents. The documents appear to relate specifically to a key issue in the investigation: the actions the government did or did not take to ensure the second round of the bidding process was not compromised by the withdrawal of the bidders ...

"On November 24, Mr Copley wrote to Mr Ken Dobell in his capacity as Deputy Minister to the Premier [which] makes it clear that Mr Copley reviewed and discussed the documents with Mr Dobell. Further, it is clear that Mr Dobell was informed that the documents were to be the subject of RCMP interviews with the two ministers and senior government officials ...

"The meeting and discussion with Mr Dobell appear to be a violation of the protocol and the sworn undertakings not to disclose information regarding the documents seized by the RCMP ... The meeting and discussions with Mr Dobell - outside the confines of the protocol and sworn undertakings - makes it difficult to assert that there was no political interference in those interviews. That Minister Collins suddenly resigned three weeks later adds to rather than detracts from the suspicion of political interference."

Krog concludes: "I want to underline the fact that, not only were the parties to these events aware of the protocol and all the elements, they wrote it and signed off on it. It must be assumed that these senior government officials were fully aware of the implications of their discussions. Given the gravity of the implications of these facts I ask that the RCMP begin a separate criminal investigation immediately."

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Fascinating documents were attached to Krog's letter:

* Protocol regarding documents removed from the Legislature
* Undertaking in accordance with the protocol provided to Associate Chief Justice Dohm in this matter
* Letter from Andrea Mackay of Berardino & Harris to George Copley at the Ministry of BC Attorney General which names the three significant documents as:

1. Document 00280086: Memorandum dated August 5, 2003 to the Honourable Judith Reid, Minister responsible for BC Rail, from Joy Illington, Deputy Cabinet Secretary, with carbon copy to Chris Trumpy which discusses the minutes of the Cabinet meeting on July 23, 2003;

2. Document 00290376 to 00290378: title "BC Rail Company Freight Railway Partnership Process Second Round Criteria" and identified as "Confidential Draft - for Cabinet review only" dated July 16, 2003 and signed by the Honourable Judith Reid, Minister of Transportation; and

3. Document 00290224 to 0029238 and 0020071 to 0020085: titled "BC Railway Company Partnership Process Round Two Evaluation Criteria Background for Presentation to Cabinet for Decision" dated July 23, 2003.

The Mackay/Berardino letter goes on to say: The RCMP have advised that they would like to interview Garry [sic] Collins, David Morehart, Judith Reid, Chris Trumpy and Yvette Wells in relation to the above documents. We can advise that the following questions will be asked by the investigators:

1. Identify the document and comment on who authored the document, the purpose of the document, to whom it was distributed and when;

2. Comment on the significance, if any, of the document in the possession of individuals outside the government; and

3. Discuss how the possession of the identified document(s) effects the process of the sale of the BC Rail assets.


Next, a copy of the letter from George Copley to Ken Dobell who, at that time (Oct 7, 2004) was still Deputy Minister to Premier Gordo which constitutes a description of what it feels like to be left twisting in the wind of political events.

And finally a column dated May 9, 2008 by Mark Hume in The Globe and Mail in which Dobell defends his perusal of seized files in BC Rail probe.
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On the eve of Associate Chief Justice Patrick Dohm's appearance as presiding judge at a pre-trial conference in the BC Rail Case, here is Michael Smyth's informative opinion on the crucial points of "privilege" in The Province:

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For those Googling to find the complete documents mentioned above, please note Leonard Krog, MLA for Nanaimo, has written a 2nd letter, requesting another, separate investigation also about BC Rail but focused on the role(s) played by Patrick Kinsella who seemed to have been working for both BC Rail and for CN during the negotiations.

That CBC story is HERE.
BC NDP seeks police probe of controversial BC Rail sale
CBC - April 20, 2009

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Campbell government's refusal to co-operate with the Basi Virk Defence is becoming less and less credible; but this latest refusal tops everything. Even in a democratic society, all "gifts" to politicians mean something ... often the gift means something like a quid pro quo ... a deposit on some future event. To avoid any suspicions, all gifts should be declared freely and regularly, as a matter of accountability. Otherwise, who knows what kind of bribery might be going on? Let's hope that the Associate Chief Justice has something to say tomorrow in BC Supreme Court about this kind of sleazy argument. - BC Mary.
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Records on gifts to politicians may be viewed, says Basi-Virk trial judge

BY KEITH FRASER
THE PROVINCE - JUNE 2, 2009


The judge hearing the Basi-Virk corruption case has ruled that records related to gifts received by politicians are not protected by parliamentary privilege.

Lawyers for accused David Basi and Bobby Virk, who allegedly received a benefit from a bidder during the controversial $2-billion* sale of B.C. Rail, are seeking to prove that politicians routinely receive gifts and that their clients did nothing criminal.

They applied for disclosure of so-called third-party records held by B.C.'s conflict-of-interest commissioner.

A lawyer for the commissioner argued that all of the records held by the commissioner are governed by parliamentary privilege and that the privilege is absolute.

But B.C. Supreme Court Justice Elizabeth Bennett found that, in an unusual case, where the innocence of a criminal accused may be at stake, access to those records might be possible. The next step in the process will be to hear further arguments on whether to disclose specific records.

*error: should be $1 billion.

kfraser@theprovince.com
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Compare the proposed sale of Ridley Terminals against the 2003 sell-off of BC Rail.
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Battle brews as MPs oppose sale of BC coal terminal

PATRICK BRETHOUR
The Globe and Mail - May 21, 2009

VANCOUVER — Private companies are lining up to bid for the cash-strapped coal-shipping Crown corporation in Prince Rupert, potentially handing Ottawa as much as $131-million as it seeks to raise billions from the sale of government property this year.

But the $131-million offer for Ridley Terminals - one of four formal expressions of interest - is being stymied by government MPs worried about the effect of privatization on coal-mining firms in the B.C. Interior, says Daniel Veniez, the Conservative-appointed chairman of Ridley.

In an interview with The Globe and Mail, Mr. Veniez said the opposition has been spearheaded by Jay Hill, government House Leader and the member of Parliament for Prince George-Peace River, a riding that embraces a large swath of B.C.'s coal-producing region.

Members of the Conservative British Columbia caucus, including Mr. Hill, are also unhappy with Ridley's attempts to negotiate higher rates for the coal shipped from the Interior through its Prince Rupert facility, Mr. Veniez said. "We have not made their lives easy, we've run the place as a business."

But the conflict with Ottawa has taken its toll on Mr. Veniez and his board, who believe they have simply done the job they've been asked to do, and are now being caught in political crossfire.

"I can't keep my directors contained any more on this," the former forestry executive wrote in an e-mail to a senior adviser in the government earlier this month. "Our reputations have been dragged through the mud and we've been left hanging by the government."

In the interview, Mr. Veniez stressed that he does not believe Prime Minister Stephen Harper is aware of the simmering dispute.

For his part, Mr. Hill readily acknowledges his concerns about the future direction of Ridley, saying it would be "completely irresponsible" for him not to give voice to worries about the effect of privatization or higher fees on the coal industry in northeastern B.C. - and the hundreds of jobs that depend on those mining firms.

One of the larger firms, Peace River Coal, met with the B.C. caucus a month ago, an event that Mr. Hill said is not unusual. That is just part of his job as an elected representative, Mr. Hill said. "If someone is describing this as political interference, they don't understand the role of a member of Parliament."

The tug-of-war over Ridley is the latest chapter in the odd history of the terminal, which started life as a Trudeau-era Crown corporation in 1982, deliberately targeted at spurring the development of B.C.'s coal resources.

Ridley Terminals continually struggled, and had to turn to the government several times for loans. Finally, in 2005, Paul Martin's Liberal government decided to sell off the troubled asset to an Ontario-based coal-mining firm for a comparative pittance - just $3-million, far less than the $400-million that the federal government has sunk into Ridley over the past 27 years.

One of the first acts of the newly elected Conservative administration in 2006 was to cancel that deal.

A new board was put in place at Ridley, headed by Mr. Veniez, who went on to install new management and negotiate a long-term labour deal. Mr. Veniez said he was given the mandate to stabilize the business and allow the government the option of privatizing Ridley.

But the notion of selling off the terminal to a private company, which would charge higher market-based rates, is at odds with the vision (in line with the original Trudeau-era strategy) that sees Ridley as something more akin to a public service, providing reasonable shipping access to B.C. coal miners.

Mr. Hill, who supported the cancellation of the 2006 sale, said he still believes public ownership is appropriate for Ridley, perhaps through amalgamation with the Port of Prince Rupert, also owned by the federal government.

"I'm very supportive of it continuing as a Crown corporation," he said, noting it is an "anomaly" to have two Crown corporations so closely related operating separately.

The offers for Ridley come in the midst of an effort by Ottawa to sell $2-billion in government-owned property, including "enterprise" Crown corporations (a category that includes Ridley Terminals). Yet a government source said Ottawa is not "aggressively considering" the sale of Ridley.

Mr. Hill said he has not seen an offer - "certainly nothing in writing" - and that in any case he is not directly responsible for decisions on the strategic direction of Crown corporations.

The offers for Ridley are not final and the majority of the $131-million offer would be paid out over several years.

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A friend added this note:
The Harper Conservative government is not governing, they are in panic mode and don't know what the hell they are doing. It's bad (and dangerous) enough they've played around with a nuclear reactor, but now to consider selling to & involving a private company whose only concern is for the bottom line, is sheer madness of the highest order. Taxpayers will be on the hook for liabilities and toxic assets. Hopefully the Senate (Liberal Senators) will put a stop to this.

Full story: AECL's Viable Assets to be sold. By Ish Theilheimer, Straight Goods. Taxpayers will be on hook for liabilities and toxic assets.

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BC Rail was "privatized" during a period of Wild West madness, as well. Errors of judgment were made, or why else would the deal still be shielded from public access? Why are the terms still secret? Gordo's new government with its massive majority of 77 MLAs to 2 in Opposition pretended that they inherited a deficit in 2001 when they had inherited a surplus ... a surplus which they immediately gave away in tax cuts for big industry ... after which they claimed to be short of money ... and, as with Ridley Terminals, were forced to sell Crown assets to obtain fresh money. - BC Mary.

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Everything ugly about the BC Rail Scandal reared its head in today's messy exercise in barely disguised delay and (what I more and more believe is) calculated deception.

The insult to British Columbians in the conduct of the Basi, Virk, and Basi matters (the tip of the iceberg in the BC Rail Scandal) came on stage today, floundered like a large ling cod on a hot B.C. wharf, and left a sickly odour of rotting fish hanging in the air.

To be precise, the morning was stumblingly involved with matters of privilege. The matters are in such a mess (to be explained) that process has been put over until Wednesday morning. Then on Thursday morning The Honourable Associate Chief Justice Patrick Dohm (whom I have castigated for erecting what I consider a sham set of rules to prevent the public from knowing things it should know from Supreme Court procedures) will be present (in open court, counsel believe) to decide (in fact) the fate of the Honourable Madam Justice Elizabeth Bennett as judge seized with the Basi, Virk, and Basi matters. (That, too, will be editorialized upon.)

Madam Justice Elizabeth Bennett ruled that there is no blanket privilege attached to parliamentary privilege as it relates to the work and coverage of the Conflict of Interest Commissioner in the Victoria legislature. That is something "every school child" would know, I should think. Because MLA's can't hide behind privilege, say, to prevent, in a criminal trial, evidence being revealed that, say, civil servants were given orders by their cabinet bosses to commit crimes.

The simplest route to follow in the matter of MLA's e-mails is to get them to waive claims of privilege, showing their clear consciences, and making the matters speedily examinable.

Counsel for the Conflict of Interest Commissioner apparently applied for a ruling of blanket privilege. To many average Canadians, such an essentially stupid application would look like a delaying tactic - and a hope to get a crude reading of 'parliamentary privilege'.

Counsel for MLA's, Mr. Montague, looked a little like the ling cod mentioned above on the matter of the application by Defence for access to government server e-mails of seven people, including Gordon Campbell. The original appplication for MLA e-mails, according to Joseph Doyle for the Defence, surfaced in early March. Its existence might well have prepared people. The seven were named in early May, and yet Mr. Montague appears to be having extraordinary difficulty making contact with them and receiving their instructions. In this case, I believe, reasonable Canadians would grow furious at the needless expenditure of taxpayers time and money involved in what I believe reasonable Canadians might see as calculated attempts to defeat the course of justice.

We are in a world of blackberries, cell phones, e-mails, electronic everything - and Mr. Montague was frustrated at every turn in his sincere and perseverant attempt to get instructions from the seven. Two waived privilege.

Various forms of non or incomplete response came from Walter Cobb, Harris, Neufeld, Christie Clark, and Gary Collins. Since there was no palpable response with which to deal, counsel twiddled all of our thumbs for the morning. Mr. McCullough for the Defence suggested Mr. Montague could set to work in the next twenty four hours to solve the problems, but declines to do so. He added that Mr. Montague hasn't replied to the written arguments set forth by Defence for seeing the e-mails with a written argument to the contrary. Nor has he received instruction from his clients in a matter that involves political corruption.

Madam Justice Elizabeth Bennett would not comment on "Mr. Montague's predicament". Though she did at one point speak of another "road block put up", in talking of the delays. She listened sweetly to what many reasonable Canadians would think of as pure horse manure presented by those seemingly wishing to delay. Is that a sign in her of weakness or great strength? Keep reading....

All the goings-on this morning point to possible uglier developments. Mr. Montague did not say directly - but I inferred that he was communicating that Gordon Campbell and others will fight against the examination of their e-mails directly concerning the charges against the three men and the corrupt sale of BC Rail. From the highest officers of the legislature of British Columbia delay, sleight of hand, obstruction, failure to assist the pursuit of justice has been, to me more and more obvious.

On Thursday, as I have reported, a meeting will be held to decide if Madam Justice Elizabeth Bennett who has been seized with the Basi, Virk, and Basi matters will be shifted (on the argument that she has been named to the Appeals Court). The very notion of moving her would strike most reasonable Canadians as a piece of chicanery of the first order. The matter has been complex, with thousands and thousands of pages of material and intricacies of inter-related forces that cannot be mastered easily.

But pressure may have mounted to demand chicanery of the first order in the Basi, Virk, and Basi matter.

Consider. Madam Justice Elizabeth Bennett has allowed the opening of the matter by Defence, in pursuit of materials, into BC Rail offices, to the RCMP, to the legislature - and cabinet. She has been absolutely correct in doing so - though I have judged her slow, uninsistent upon response, and unwilling to make available to the B.C. public material that it has a clear right to have freely placed before it. My arguments that she has acted under (so to speak) the Dohm of court secrecy are real.

But consider. Her allowing Defence to pursue real avenues of investigation may have infuriated crass power in the Province. It is my contention that a tight brotherhood exists between top B.C. entities. RCMP top officer Gary Bass (who has looked into his coffee cup as killing after killing by RCMP officers has been claimed as murders by members of the public. He also looked into his martini glass while RCMP handled requests for disclosure very, very badly).

Associate Chief Justice Patrick Dohm who sealed and only barely allows peaks into ALL the search warrants in the present case. I claim Dohm's action is irresponsible. When he decided to do a summary for Press and Media pushing for release of the warrants, he didn't do it himself but, astonishingly, had the summary put together by Special Crown Prosecutor, William Berardino.

Mr. Berardino, incidentally is reported to want the removal of Madam Justice Bennett.

Gordon Campbell has solemnly asserted he will give every assistance to the work of the Basi, Virk, and Basi case while (as I see it) doing everything he can to delay, frustrate, and prevent the matter from proceeding in a timely and efficient fashion. To his occluded brain cells, the fact that the judge on the case has permitted a search for evidence that involves cabinet and other close colleagues (including himself) might well seem like the next thing to Sedition and the attempt at Armed Overthrow of Legal (?) Authority.

Those occupiers of the Throne Room have - it appears plainly - to be horrified that Madam Justice Elizabeth Bennett mentioned in court, quietly, reference to Patrick Kinsella in a news report. (Defence has applied for all the correspondence, I believe, of Kinsella in relation to the sale of BC Rail.) Kinsella appears to have been involved, and the request is perfectly in order. But steam is pouring out of the Throne Room. And, it is said, Kinsella's counsel - before Associate Chief Justice Patrick Dohm - will be taking a request that Madam Justice Bennett receive a stong slap on the wrist for her ... imprudence(?)

What the Throne Room people may well want is the dismissal of Madam Justice Elizabeth Bennett and her replacement with one of the judges kept in reserve. That judge will dismiss applications for disclosure, insist the "trial" proceed, bash Defence counsel into silence, read the charges as limited and in no way related to superiors giving orders, cabinet ministers and top civil servants apparently faking the BC Rail sale, or any such "extraneous" matters. And he/she will proceed to hammer Basi, Virk, and Basi - as, perhaps, was intended from the beginning.

Such a highly possible appointment makes Madam Justice Elizabeth Bennett look like the Joan of Arc of the B.C. Supreme Court (about to go to the stake!)

There are many more things to say. But two more only.

Whoever designed the regulations assuring that people who were in the positions Basi, Virk, and Basi were have the right to taxpayer-supported defence did not envision the Basi, Virk, and Basi cases. We can be almost sure the designers of that system did not intend a real, determined, taxpayer-permitted exposure of widespread incompetence, if not corruption, in the conduct of British Columbia affairs.

Secondly, an ordinary Canadian is educated by the matters presently under argument. The education consists of seeing legal rules and principles twisted and tortured and mangled in every possible way - in fact destroying them - in order to protect what appears increasingly (to me) to be an unprincipled and corrupt Establishment. Out of such behaviour, eventually, comes revolution of one kind or another as the only source of remediation.

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BC grants access to files in corruption case

By Mark Hume
The Globe and Mail - June 1, 2009

More about today's pre-trial hearing HERE.

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Today it's disclosure, disclosure, disclosure ... but on Thursday, June 4, watch for the big guns to roll out as Associate Chief Justice Patrick Dohm will preside over the big questions, such as what, if anything, happens now.

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