Tuesday, January 26, 2010
Courtroom 53, January 25, 2010. The BC Rail Scandal. Criminal Charges. Basi, Virk, and Basi
By Robin Mathews
A Five Minute Hearing At the Edge of Trial: or, The End Of Innocence. PART ONE.
The administration of justice – to the naked eye – moved with urbanity and smoothness at the brief and cordial hearing. William Berardino, Chief Crown Prosecutor, rose to inform Madam Justice Anne MacKenzie that counsel for the Prosecution and Defence are engaged in fruitful and constructive exchange.
Nearly all applications and/or motions outstanding that Defence has made or had announced intention to make – through agreement – he believed, may be rendered unnecessary. Non-litigable facts will be agreed upon. By February 8 and 10 Mr. Berardino hopes that sufficient agreement will have been reached that a trial date might, at last, be fixed.
Did anyone wish to add to the matter, Madam Justice MacKenzie asked? No one did. She commended counsel to continue their work apart from the court, and she secured February 8 and 10 for re-meeting, prizing the expectation that a trial date might be set then.
Mr. Berardino even estimated [perhaps a reckless thing to do at this stage] a trial of perhaps ten weeks. He was not – at that point – speaking for the Defence. But perhaps he wanted to evoke an aura of optimism as the interminable, closely-fought, unnecessarily delayed – if not purposefully obstructed - years of pre-trial hearings seemed, for the present at least, to be drawing to a close.
Hard as it may be to believe, some of the members of the Mainstream Media, it is said, saw several white doves appear behind Madam Justice MacKenzie, saw them fly upwards and over the heads of people in the court and the gallery, and saw them pass out through the Arthur Erickson windows at the end of the courtroom … to disappear somewhere in an uncertain blue beyond.
No member of the Mainstream Media reported the sightings. That is not surprising. Frequently members of the Mainstream Media consider facts and events occurring in the court too trivial, too fantastic, or too embarrassing to report.
The smoothness and the harmony which struck the naked eye in Courtroom 53, alas, masked contradictions, anomalies, irregularities, breaches – perhaps – in the administration of justice so large that one might speak (for British Columbians) of “Basi, Virk, Basi and The Loss Of Innocence”.
Indeed, one might not be incorrect in suspecting that - with Mr. Berardino in the role of Special Crown Prosecutor - the fair administration of justice cannot be perceived as being maintained but may be perceived by many as soiled, damaged in reputation, and otherwise vitiated as a key process in the life of British Columbians.
In the Basi, Virk, and Basi case Mr. Berardino took upon himself the role of Special Crown Prosecutor - a designation specifically created to signify independence, objectivity, freedom from relation with or bias towards the persons or the interests of any party in a criminal action or related to a criminal action. It is a designation, moreover, specifically created to obviate a perception of bias or even the potential to permit a perception of bias.
Indeed, the title, Special Crown Prosecutor, was specifically created to provide for the appointment from the ranks of illustrious counsel in private practice men or women who were certifiably free – as regular government-employed Crown Prosecutors might not be - of a perception or the potential of a perception of bias, relation to, or association with someone in a criminal case – especially with elected government officials, civil servants, or members of police forces.
That matter is clear and unequivocal.
Mr. Berardino, we now know, had been – at the time of his appointment as Special Crown Prosecutor – a seven year partner and colleague of Geoff Plant, the Attorney General whose ministry made Mr. Berardino’s appointment.
Mr. Berardino, we now know, had been – at the time of his appointment as Special Crown Prosecutor – an eleven-year partner and colleague of Allan Seckel, deputy Attorney General in the ministry which made Br. Berardino’s appointment.
Mr. Berardino was chosen to act as Special Prosecutor in a criminal case against cabinet aides who were in close association with cabinet members, civil servants, and non-governmental people in close association with cabinet members.
The “government” of Gordon Campbell was, from the outset, “interested” in the investigation of and the charges against Messrs. Basi, Virk, and Basi whose legislature offices, alone, were “raided” by police in the December 2003 search warrant “raids” on legislature offices. Carefully by-passed were the offices of closely-linked cabinet ministers Gordon Campbell, Gary Collins, and Judith Reid.
Mr. Seckel, we now know, had worked in the political campaign for the election of Geoff Plant to the legislature. Mr. Seckel, we now know, was appointed as Mr. Plant’s deputy Attorney General. And in 2007 Mr. Seckel was personally appointed by Gordon Campbell to replace a protocol assuring the unbiased assessment of cabinet documents requested by the Defence in the Basi, Virk, and Basi matter.
Mr. Seckel was to be the sole arbitrar of that matter in consultation with his former eleven-year partner and colleague, Special Crown Prosecutor William Berardino. Gordon Campbell’s highly political, unilateral decision to appoint Mr. Seckel drew Mr. Berardino ineluctably – as reasonable people may see it – into a situation charged with political implications.
With the very best will in the world, Mr. Berardino cannot be separated from the history of his long-term relation with the Attorney General and the deputy Attorney General in the ministry which appointed him Special Crown Prosecutor.
Reasonable and fair-minded Canadians, I sincerely believe, would have to admit – given full information – that Mr. Berardino’s appointment was a contradiction of almost everything intended in the creation of the office of Special Crown Prosecutor.
So flamboyant was the appointment – so astonishing – that (on January 7, 2010) I wrote to the present Attorney General, the Honourable Michael de Jong, to ask that Mr. Beradino, on the solid grounds set out here, be removed as the Special Crown Prosecutor in the Basi, Virk, and Basi case. I asked, further, for an open, independent Inquiry into the prosecutorial services and especially the institution of the Special Crown Prosecutor.
Not a single news organization connected to coverage of the BC Rail Scandal and the Basi, Virk, and Basi case has reported a word about the discovery of Mr. Berardino’s history of relation to key Gordon Campbell government officials. The failure condemns those news organizations to the suspicion they are playing the role of operatives employed to support the Gordon Campbell government in … whatever improper actions it chooses to undertake.
Mr. de Jong has, so far, refused even to acknowledge my letter. That is no surprise from a member of Gordon Campbell’s cabinet. I believe the only answer he could make is one which accepts the fact that Mr. Berardino must step down.
And so Attorney General de Jong won’t reply.
[Since writing the above, the Attorney General’s ministry has written to me. Since it has not addressed the primary questions I raise, I have not changed the text above. In effect, Mr. de Jong will not reply…. I include the letter from Mr, Gillen.]
Before Mr. de Jong, Wally Oppal was Attorney General. He is alleged to have so misused the function of Special Crown Prosecutor that he is being sued, now, for having – allegedly – acted in “a manner that was high-handed, arbitrary, reckless abusive, improper, and inconsistent with the honour of the Crown and the administration of justice”.
Before Wally Oppal, Attorney General Geoff Plant’s ministry appointed William Berardino as Special Crown Prosecutor. I believe many reasonable British Columbians would think that Geoff Plant’s ministry – in the appointment of William Berardino – was acting in a manner that was high-handed, arbitrary, reckless … and certainly inconsistent with the honour of the Crown and the administration of justice. The refusal of Attorney General de Jong to address that situation points to a deeper suspicion of corruption in the Gordon Campbell government.
British Columbians may – with reason – gain a perception that since the arrival of Gordon Campbell to political power the ministry of the Attorney General has become a major base of corruption in the B.C. government. And since the Attorney General is the protector of the rule of law in the province, British Columbians may perceive that the province has lost the rule of law to have it replaced by the caprice, the greed, the opportunistic manoeuvring for illegal advantage, perhaps criminal breach of trust, and self-serving actions of Gordon Campbell and his associates.
The five minute hearing in Courtroom 53 on January 25 brought into focus evidence to support the allegation that the administration of justice in British Columbia is, increasingly, a farce, a travesty, a mask for wrongdoing, an expensive undertaking to hide growing corruption and the misdeeds of a government determined to destroy democratic accountability in the province.
Look at an apparently unrelated event. The head of the Office of Information and Privacy, David Loukidelis, made a lightning transfer out of his job just a week ago, leaving the office without a Commissioner. Not until concern was expressed and publicized did the Campbell government move to fill the position – temporarily and in an unsatisfactory manner. Strange.
Even stranger … Mr. Loukedelis made his lightning move so that he could take the position of deputy Attorney General. (Was he ‘kicked upstairs’ as Madam Justice Elizabeth Bennett appears to have been in the middle of the Basi, Virk, and Basi pre-trial hearings to make way for a judge … more suitable to certain interests…?) Mr. Loukedelis was conducting a review of the Campbell government’s intention to expand personal information sharing, believed by some to be an Orwellian file-keeping on innocent citizens. Much will be put on hold at the (Freedom of) Information and Privacy office. Just by accident…?
In October of last year, Mr. Seckel, deputy Attorney General, was raised to the position of head of the Public Service by Gordon Campbell, and he is now deputy minister to the premier. (Can ambition reach higher?) Today the site of the deputy Attorney General lists “M. Gerry McHale” as acting deputy Attorney General – the name of Mr. Loukedelis is not yet posted. Will Mr. Loukedelis be able to match the superbly loyal character of Allan Seckel, his devotion to the wishes and needs of Gordon Campbell … before all else?
The administration of justice – to the naked eye – moved with urbanity and smoothness at the brief and cordial hearing on January 25 ….
Addendum: A reply to my letter to the Honourable Michael de Jong, Attorney General, by assistant deputy Attorney General Robert W. G. Gillen.
January 21, 2010.
Dear Robin Mathews:
I am responding on behalf of the Attorney General to your letter of January 7, 2010. As Assistant Deputy Attorney General, I am responsible for the Criminal Justice Branch within the Ministry of Attorney General, including the conduct and supervision of criminal prosecutions in British Columbia.
In your letter you ask that Mr. William Berardino be removed as Special Prosecutor in the case against Mr. Dave Basi, Mr. Bob Virk and Mr. Aneal Basi. The case is currently before the Court, so it is not appropriate to discuss or comment on the proceedings at this time.
You suggest the establishment of a Commission of Inquiry to investigate prosecutorial services in British Columbia and special prosecutor appointments. The special prosecutor structure in British Columbia is the result of the findings of the 1990 Owen Commission Report following the Discretion to Prosecute Inquiry. Commissioner Stephen Owen concluded that criminal justice in British Columbia is administered with integrity, professionalism and public confidence, but the system itself is vulnerable. He recommended a process to allow for the appointment of special prosecutors to strengthen the independence of prosecutorial decision-making from real or perceived improper influence.
Section 7 of the Crown Counsel Act (the Act) passed in 1991, authorizes the Assistant Deputy Attorney General (ADAG) to appoint a lawyer from the private Bar as a special prosecutor to carry out a defined mandate with respect to the approval and conduct of a specific prosecution when the ADAG forms the view that there could be significant potential for real or perceived improper influence in the administration of justice.
Special prosecutors are appointed by the ADAG on a case-by-case basis from a list of senior and experienced practitioners from the private Bar. All counsel on the special prosecutors list have been jointly approved by the President of the Law Society, the Deputy Attorney General (DAG) and the ADAG. This joint approval process insures a consistent high standard is applied to those sensitive cases which are referred to the special prosecutor.
You ask that every direction given to special prosecutors since Mr. Gordon Campbell took office as premier be made public. Section 7(4) of the Crown Counsel Act requires that when the Attorney General, the DAG, or the ADAG give a direction to a special prosecutor regarding any matter within the mandate of the special prosecutor, that direction must be given in writing and be published in the British Columbia Gazette. This procedure had been followed since the inception of the Crown Counsel Act.
Thank you for writing to the ministry about your concerns.
Robert W. G, Gillen
Assistant Deputy Attorney General
Criminal Justice Branch
* * *
That is PART ONE of A Five Minute Hearing At The Edge Of Trial, or The End Of Innocence. PART TWO will follow.
The Tyee - Jan. 26, 2010.
Click HERE to see Bill's column.
Reason 2: Railgate optics
What's more, Loukidelis takes over as the senior administrator responsible for dealing with FOI and other requests for government documents in the B.C. Legislature Raid case -- a disquieting prospect given that he has been ultimately responsible for FOI requests previously made by defence lawyers for David Basi, Bob Virk and Aneal Basi -- who face serious corruption charges.
Who recruited Loukidelis? The former deputy attorney general Allan Seckel, who is now Campbell's own deputy minister.
Just a little more fodder to let the masses know there are two tiers of justice in BC and Canada.
EOTFL. The recitation of the blanket excuse comes off here as somewhere between feeble-minded, disingenuous, and arrogant. He's not answering your question, he's answering a completely different question you hadn't asked. It's not the case you want comment on, it's resolution of Berardino's very clear conflict of interest that you want.
Berardino's resume and professional relationships at the time of his appointment have nothing to do with the proceedings-as-proceedings. The implication of this refusal, also, is it is inappropriate to switch Special Prosecutors while the proceedings are already undereway.....but they didn't have any problem switching judges did they?
The whole administration of this province is "before the courts" because of this case.
As my esteemed mother would say about someone who was bald-facedly lying or, as in this case, evading, "butter wouldn't melt in their mouths".
Their tongues are cold and hard. Their hearts, moreso.
This "assistant deputy Attorney General" seems to be another of the politically-co-opted ranks of the BC civil service, who have lost all sense of reason or public accountability, adn all of the informed public's trust.
One day The Economist or one of the US papers is going to pick up on this elaborate fiasco-cum-charade; the prorogation silliness is paltry by comparison. And if Her Majesty the Queen has been following these proceedings at all, I am sure she is not amused at the abuses taking place in her name....
If I were a religious person, I'd be wondering just how many people the anti-Christ has already influenced in BC's justice system.
"If I were a religious person, I'd be wondering just how many people the anti-Christ has already influenced in BC's justice system."
I usually refer to him as Lord Gord, Campbull or Gordo, but "anti-Christ" works for me.
It doesn't take much imagination to understand why the famous Shakespeare line from, I think, Henry the IV, "First we kill all the lawyers" resonates with people and lawyer jokes involve chains and the bottom of Lake Ontario. Talk about "special interest" groups - did somebody mention the Bar Association?
The reply from one of Ding Dong DeJong's minions to Robin must have been penned by someone who aced the law school course Writing w/o Communicating 101 and Obfuscation 320 (an elective for honour students and Law Review editors) recommended for those going into public service in fascistic regimes.
I fully realize that I am stating the obvious to my esteemed fellow posters, but I believe I must state it, so that it at least gets published, none-the-less. Mr. Gillen says all the legal hoops were jumped: "that when the Attorney General, the DAG, or the ADAG give a direction to a special prosecutor regarding any matter within the mandate of the special prosecutor, that direction must be given in writing and be published in the British Columbia Gazette."
I have had discussions about ethics with various lawyers, and all of them have told me that the bulk of work gets done behind the scenes - without a paper trail. Judging by the recent BVB announcements, it seems much of the argumentation between the prosecution and the defense has been done behind the scenes. I wonder what trade-offs were made?
I have also been told on several occassions that it is naive to believe that the law is about right or wrong: it is about using the law to win. I wonder why Special Crown Prosecutor Berardino was chosen from the list rather than anyone else? I further wonder why, if chosen, he did not recuse himself? Mr. Berardino was obviously in contraventon of the "at-arms-length" standard by which one would expect a Special Crown Prosecutor to maintain himself.
From the BC Law's Society
[Chapter 1 out of 14 chapters in the annotated] Professional Conduct Handbook
Cannon of Ethics:
"To the client ...
2) A lawyer should disclose to the client all the circumstances of the lawyer's relations to the parties and interest in or connection with the controversy, if any, which might influence whether the client selects or continues to retain the lawyer. A lawyer shall not act where there is a conflict of interests between the lawyer and a client or between clients."
retreived January 26, 2010, from
In the case of the Special Crown Prosecutor, the client[s] are the people of BC. We pay his wage; we are his employer. He should have disclosed to us that he had more than an arm's length relationship with those who are implicated as being tied to the defendants in the case.
Robin Matthews has, once again, provided the people of BC a wonderful service in making his findings public. We owe him our gratitude. He deserves our highest respect.
What is meant by those nine words is simply this:
Due to the efforts of yourself and those who are concerned enough to make the effort and contribute to this Blog it is my wish a political paradigm might come about and the awareness necessary for democracy to be a fully functioning political system emerges.
Of course for that to happen it will be necessary for each and every one of British Columbia’s citizens to take not only their own role seriously but to also see to it that they aid their fellow citizens in doing so as well.
INTRODUCTION, SECTION 1
On The Study of The Law*
“The science thus committed to his charge, to be cultivated, methodized, and explained in a course of academical lectures, is that of the laws and constitution of our own country: a species of knowledge, in which the gentlemen of England have been more remarkably deficient than those of all Europe besides. In most of the nations on the continent, where the civil or imperial law under different modifications is closely interwoven with the municipal laws of the land, no gentleman, or at least no scholar, thinks his education is completed, till he has attended a course or two of lectures, both upon the institutes of Justinian and the local constitutions of his native soil, under the very eminent professors that abound in their several universities. And in the northern parts of our own island, where also the municipal laws are frequently connected with the civil, it is difficult to meet with a person of liberal education, who is destitute of a competent knowledge in that science, which is to be the guardian of his natural rights and the rule of his civil conduct.”
I sent Robin’s article,
(Tuesday, January 26, 2010
Courtroom 53, January 25, 2010. The BC Rail Scandal. Criminal Charges. Basi, Virk, and Basi) off to one of my sources (a lawyer I am sworn to not revealing the name of) and received the following –
“Beradino and MacKenzie are insiders.
The case is being managed to protect the guys who fixed the sale of BC rail to CNR
David MacLean is one of hte bad guys”
Your comment has been forwarded to Robin ... a wonderful endorsement and tribute, Thank You.
Having respect for the purposes of language, I gotta say I don't quite see the necessity of
a) so few words (9 in total) which aren't clear,
b) so many words, which also aren't clear. I'm guessing that the b) meaning is that men, only men, and only gentlemen of liberal education, should take one or two courses in law to become responsible citizens. Check?
I'd still like to hear what YOU think.
Here's my definition: small children at play have a fair understanding of the rule of law. I think kids are born knowing how to shout "No fair!"
I think basic law is not only essential to a civil society but is accessible to all, rich or poor, gentlefolk or scholars.
For me, here in now, I think that basic law runs aground and needs rescue when somebody snatches a publicly-owned railway and secretly slips it into private pockets.
Especially when "somebody" made a solemn promise NOT to do that as the quid pro quo for BC citizens (the BCR owners) to elect him to high office. We kept our part of that bargain; Gordo turned rogue by pretending he hadn't promised, that the sale wasn't a sale, it was only a 900-year lease.
I think this is where your "guardian of his natural rights and civil conduct" comes in ... eh?
Well, yeah ... [chuckle],
your Learned Friend has pretty much stated the very thing most people are afraid of ...
which is why (to oversimplify the situation) it's important for the PUBLIC GALLERY to fill up with citizens who watch these proceedings, and who gain the additional perspective.
It seems to me that the judge, the Special Prosecution Team, and Defence lawyers also benefit from a tangible, visible sense that The People are involved ... concerned ... and watching.
Next session: Feb. 1.
Many thanks for your diligence, BC Born.
Just a quibble, and I hate to play schoolmarm, BC Born, but I think you mean ...it is my wish [that] a political paradigm SHIFT might come about
We are already in a paradigm, or witnessing the failures of one; to me that is what was once known as "responsible government" - technically that refers to the monarch/Crown assenting to whatever Parliament wants, but it came to be associated with "doing the right thing", and also the parliamentary principle that politicians tainted by scandal should RESIGN to avoid the cost to the public purse AND the embarrassment to their party of persisting in their nefariousness
Men and women of such honour are rare in British Columbia politics; the only Premiers to show any sign of it in recent memory were Mike Harcourt and Glen Clark, both of whom stepped aside for core parliamentary principles, but were flayed for it anyway; by a press that cares not for principle, but political expediency and loyalty to the empowered class. The pervasive involvement and cooptation of civil servants, and the civil process, has been added to the arrogance of politicians, who ignore both their responsibility to the dignity of the Crown, and their responsibility to their constituents.
Only drastic political/constitutional reform can end the kind of garbage politics we're seeing; thanks to the Trudeau Constitution any amendments to any part of it require an impossible mandate, and any discussion thereof remains under the control of those who are the problem. The foxes built this chicken coop, and police it with alacrity.
And Leah, yes, that Justice Mackenzie and the Special Prosecutor are "pleased" is a sign that the Powers-That-Be (whom they are manifest examples of) have won the day.
There are justices in British Columbia, but there is not justice.