Wednesday, March 03, 2010
BC Rail: Dear Madam Justice MacKenzie, and my Lords: As amicus curiae (friend of the court) in the matter of accusations against Dave Basi, Bobby Virk, and Aneal Basi I am writing to you today, formally, as a British Columbian, to ask for judicial action and decision taken publicly and upheld publicly to remove William Berardino as Special Prosecutor in the case.
A violation of the terms of appointment for Special Prosecutors was almost certainly the case in the appointment of William Berardino in the BC Rail Scandal matter. The B.C. Attorney General's ministry refuses to discuss the appointment - on unacceptable grounds. In the following letter officers of the Supreme Court of British Columbia are requested to act.
Madam Justice Anne MacKenzie,
Associate Chief Justice Patrick Dohm,
Chief Justice Robert J. Bauman,
The Law Courts, 800 Smithe Street,
Vancouver, B.C. V6Z 2E1
cc. press, media, others….
Dear Madam Justice MacKenzie, and
As amicus curiae (friend of the court) in the matter of accusations against Dave Basi, Bobby Virk, and Aneal Basi I am writing to you today, formally, as a British Columbian, to ask for judicial action and decision taken publicly and upheld publicly to remove William Berardino as Special Prosecutor in the case.
If validation of my request requires that I undertake, in the Law Courts building, to complete forms and/or fulfill any other requirements, I will be happy to do so upon receiving your advice.
The matter I place before you is simple; it involves patently obvious violation of the primary intent and purpose – and the particular, unacceptable appointment – of a Special Prosecutor, specifically in the Basi, Virk, and Basi matter. The violation is so flagrant and damage to the reputation of the administration of justice in B.C. is so undeniable that remedial action must be taken, and without delay.
The crux of the matter is real or perceived conflict of interest and/or the significant possibility of a perceived or real improper influence on the prosecution process. The CBC (Sept.23, 09) put the matter in simplest terms: “Special prosecutors are used in B.C. to replace regular Crown Counsel in politically sensitive cases to avoid the possibility of political interference”.
The government of B.C. states, further, that historically, “special prosecutors have been appointed in cases involving cabinet ministers, senior public or ministry officials, senior police officers, or persons in close proximity to those individuals”.
It states as well, “where there is a possibility of a perceived or real improper influence on the prosecution process, the head of the prosecution service … will appoint a respected lawyer from outside the prosecution service as a Special Prosecutor to handle the case”.
Before the search warrant ‘raids’ on the legislature offices of Dave Basi and Bobby Virk, cabinet aides (Dec. 28, 2003), William Berardino was named Special Prosecutor. A year followed upon the raids, and charges were laid by the Special Prosecutor. During the more than three years of pre-trial hearings, William Berardino was Special Prosecutor as he is today in preparation for the beginning of trial on May 3, 2010.
The cabinet of Gordon Campbell, I insist, in the person of Attorney General Geoff Plant and in the actions of his ministry, appointed someone who introduced “a significant possibility of a perceived or real improper influence on the prosecution process….” To put the matter another way, they appointed someone in a politically sensitive case such as to introduce the possibility of political interference or the perception of possible interference.
From the beginning, cabinet ministers and highly placed civil servants were consulted by RCMP officers concerning the staging of the legislature ‘raids’ on the offices of the accused.
The three men accused were Gordon Campbell appointees carrying out cabinet policies and orders.
The three men accused were active in and charged with relation to a major cabinet policy and program – the corrupt transfer of BC Rail to CNR.
The cabinet, then – the whole cabinet, with focus on some individual members – was and is a deeply “interested” body in relation to the Basi, Virk, and Basi case, possessing individuals of especially “interested” concentration on the persons accused, on their activities while cabinet aides, on the knowledge they have of cabinet business and activities concerning the BC Rail Scandal, as well as on the conduct and the outcome of the all court processes involving them.
It was essential – without a shadow of a doubt – that the Special Prosecutor appointed should have no relation whatever to the three men accused or those in proximity to them.
It was equally essential that the Special Prosecutor appointed should have no relation whatever to members of cabinet or high civil servants or those in proximity to them.
Mr. Berardino we learn was a partner and colleague for seven years of cabinet minister Attorney General Geoff Plant whose ministry made the appointment naming him Special Prosecutor.
Mr. Berardino we learn was, in addition, a partner and colleague of the deputy Attorney General Allan Seckel for eleven years – Allan Seckel being deputy Attorney General in the ministry that appointed Mr. Berardino.
Mr. Seckel, we know worked in the first political campaign of Geoff Plant in his bid for election. Subsequently, Mr. Seckel was named Geoff Plant’s deputy Attorney General.
In 2007 when Gordon Campbell unilaterally replaced the screening process for cabinet documents sought by Defence counsel, he did so to general puzzlement. The system was working well. Nevertheless, he had hundreds of people he might have chosen to take up the task. He chose Allan Seckel, deputy Attorney General. Campbell said that Mr. Seckel would work with the Special Prosecutor on the matter – the two men, by the merest coincidence, having been partners and colleagues for eleven years.
Mr. Seckel publicly defended his role, giving assurance he had blocked no requests for documents. That fact is irrelevant. Why was the change made? Why was Allan Seckel appointed when the appointment clearly involved (a) perceived conflict of interest, or (b) real conflict of interest, or (c) a significant possibility of perceived or real improper influence….
William Berardino – before that time – had no reason to meet or to confer with Allan Seckel. Gordon Campbell set up a reason for the two to confer by making a sudden, inexplicable change to a process that was working and needed no change.
I am concerned here with fact that does not involve speculation.
I have provided it: in violation of all significant interpretations of the office and the terms of appointment of Special Prosecutors in British Columbia, William Berardino was appointed Special Prosecutor in the Basi, Virk, and Basi case.
His improper appointment has been further muddied by the action of Gordon Campbell in his unilateral appointment of Allan Seckel in 2007 to handle cabinet documents sought by Defence.
From the day of his appointment - because of his relation to key government officers – William Berardino’s every action in the Basi, Virk, and Basi matter is, by definition, inescapably open to suspicion.
The administration of justice cannot bear such a load. Remedial action must be taken without delay. That means, I believe, that William Berardino must be removed as Special Prosecutor in the Basi, Virk, and Basi matter.
That action might well entail, after it, an independent review of charges laid, independent investigation of evidentiary material - resulting in the laying of different and other charges involving people other than the presently accused. But that is speculation….
Whatever future actions might be taken, I do not believe that you – the judge on the case, and senior officers of the B.C. Supreme Court - can do anything but require the removal of William Berardino as Special Prosecutor.
If – by silence or spoken consent – you approve of him continuing in the role, I believe (with the deepest respect) you will be inviting a perception of the administration of justice in British Columbia as a corrupt political plaything of Gordon Campbell and his friends.
I am a little concerned though with the timing if they decide to remove Berardino now. Would that not cause another delay. Or could they just appoint Janet Winteringham as the lead? And I'm not sure that would be a good thing either.
"From the beginning, cabinet ministers and highly placed civil servants were consulted by RCMP officers concerning the staging of the legislature ‘raids’ on the offices of the accused."
Gary, I share you concerns about Ms. Winteringham if they remove Oh So Special Bill. However, I could handle a delay or even (as is such a popular refrain in Murcan Right Wingnut circles lately) a fresh start - if under a new Special Prosecutor more appropriate charges were contmplated or brought forward against shall we say, potentially more appropriate parties.
This whole stage managed affair from the raid through the interminable months, no years, of judicial smoke and mirrors has been little more than an attempt to contain the damage and blame it all on three relatively minor actors. I hope eventually Gordo and his merry band of thieves rue the day they forgot to consider that often the cover-up leads to more trouble than the original lapse of moral, ethical and perhaps legal principle.
Unfortunately it seems that the only lessons our current crop of thieves learn from examples like Watergate is how to (they hope -with fingers crossed) cover their tracks better.
What possible conflict would there be? HE IS NO LONGER A PARTNER OF SECKEL. He is NO LONGER A PARTNER OF PLANT.
So where is the conflict? In Mathews mind perhaps. Oh dear... !
Have I missed something...?
You'll find many explanations by Googling "conflict of interest". Here's one:
A term used to describe the situation in which a public official or fiduciary who, contrary to the obligation and absolute duty to act for the benefit of the public or a designated individual, exploits the relationship for personal benefit, typically pecuniary.
In certain relationships, individuals or the general public place their trust and confidence in someone to act in their best interests. When an individual has the responsibility to represent another person—whether as administrator, attorney, executor, government official, or trustee—a clash between professional obligations and personal interests arises if the individual tries to perform that duty while at the same time trying to achieve personal gain. The appearance of a conflict of interest is present if there is a potential for the personal interests of an individual to clash with fiduciary duties, such as when a client has his or her attorney commence an action against a company in which the attorney is the majority stockholder.
Incompatibility of professional duties and personal interests has led Congress and many state legislatures to enact statutes defining conduct that constitutes a conflict of interest and specifying the sanctions for violations. A member of a profession who has been involved in a conflict of interest might be subject to disciplinary proceedings before the body that granted permission to practice that profession.
Next time you drop in, please choose a User Name. Anonymous is too boring.
So other than that, where is the REAL conflict? Please be specific.
If anything, former partners may even have a dislike for one another. That is be unwilling to overlook a particular matter, as a favour. If you are aware of a conflict, Mathews should say so. But just becuase everyone has attended the same School, ate a McDonalds, and rubbed shoulders with politicians (so as to better themselves), isnt imho proof of anything other than effective networking.
Does MAthews know what conflict is? Conflict is a very serious matter. Yet I am unaware of Bernardino representing the Crown and any BVB family member at the same time, or did I miss something?
If there is real conflict, Mathews ought to provide such information to the BC Law Society; they would have something to say.
Has Mathews asked?
Check back on this blog and you will see what Professor Mathews has explained.
Btw, did you look up "Conflict of Interest" yourself?
Where ever I see a critique beyond 500 words I tend to shut down.
If you cannot make your point in less than a paragraph or two, that suggests the writer is trying to undermind something they dont understand or cannot prove even exists.
I think this applies in respect of Mathew.
Sorry, but if you have time to write stuff like this,
you have more than enough time to read a few things which would adequately answer your questions.
(2) All proceedings subsequent to the hearing or trial including the final order, except as otherwise provided, and on a rehearing must, if practicable and convenient, be before the judge before whom the trial or hearing took place.
The incovenience in this case, I allege, was manufactured by the Federal Government appointing Madam Justice Bennett to the Court of Appeal.
Had you been up to spped on this case you would have seen the reasons for appointment of a Special Prosecutor and thus would have known of what you speak. I'll find it again but the word PERCEPTION is used and I wouldn't like to misquote to a PAB Lackey.
Excellent points Professor Mathews.... absolutely a conflict of interest.
RE: conflict I wonder why you choose to be anonymous.Find a handle and ride the wave of discussion. BC Mary has a point, have you looked up conflict of interest?
Thank you Robin, for the attempt at trying to clean up the justice system in BC - and thank you Mary, for providing us with a forum for/of truth.
There is an old phrase - trotted out to every first year law student at least a dozen times during first term and repeated frequently thereafter.
Justice must not only be done, it must 'appear' or 'seem' to be done.
And that's the essence of the problem Professor Mathews is pointing out - in this case, from the very first application of the police for a search warrant to the assignment of a new judge this past summer, there has been at least the 'appearance' of interference.
Berardino should never have been considered for this job - not least because he had a personal connection to one of the crown's most important witnesses and informants. His relationship with Plant and Seckel and their connections with Van Faskin Martineau (formerly Russell DuMoulin) are the least of it.
He should never have taken the assignment in the first place.
This case will, no matter how it ends, never have the 'appearance' of being just. Everything about Basi / Virk smells….and I haven’t said a word about the withholding of information properly in the public realm or the involvement of a certain judicial figure at key points in the drama.
I expect that Berardino will not be removed, but it's a smart move to put the issue on the public record now. Even if he were removed, the systemic problem remains.
I hope in the next few days to initiate the process for the laying of a criminal charge against someone who works in the Ministry of A.G. I haven't any experience with criminal law procedure but I do have a plan.
This relates to the order recently issued by the OIPC denying me access to documents in the hands of the Ministry of A.G.:
The same adjudicator provided some useful information about the private prosecution process in his first two orders of this year, the second of which involved the Ministry of A.G.:
I therefore expect that the Ministry of A.G. will be able to intervene on its own behalf and will then stay the charge. My plan is to raise the issue of conflict of interest and insist that counsel must be brought in from another province. Last year there was an excellent precedent for this. Vancouver lawyer Richard Peck was retained to handle the prosecution against former Ontario A.G. Michael Bryant.
Just checked. PAB got a $1m increase.
Fuggettaboutit, the B.C. Liberals say – the Public Safety and Solicitor General’s budget goes up just $5 million – and then another $1 million two years from now.
And, 1m increase in their budget? Shameful!
Wanna bet that's for bonuses for the most talented trolls?
The only folks who might better themselves by rubbing shoulders with our current crop of politicians are those of the ILK of say Clifford Olsen or the Bacon Brothers (though they (Bacon Bros) might just feel as if they are with their normal crowd)
It is revealing that the new PABster (or same old under yet another name - some of these idjits should change their IP as well as their handle) expects us to read his drivel while he (supposedly) can't be bothered to inform himself by reading the information pertinent to the situation - of course his job isn't to understand but to sow mis-understanding and hide the truth.
Perhaps reConflict should not just look up the definition of "conflict of interest" but the meaning of the word "appearance."
If you cannot make your point in less than a paragraph or two, that suggests the writer is trying to undermind something they dont understand or cannot prove even exists.
I hadn't gotten to koot's last comment before deciding to comment on this passage. The idea that if something can't be summed up in 500 words it's not worth thinking about is a laughable product of the new mode of education (particularly for business, poli sci, and communications/journalism people). It's the ethic of the Know-Nothing, the well-dressed redneck "intellectual" who wears business clothes but thinks like a peasant.
"Duh, big words, no understand. Me think no good. Smarty pants talk to much, gotta shut 'em up. Too many words, Og not like...."
This is all the product of a deliberate dumbing-down of our education and media that began in the Miniwac II years.....and now we have a whole government department staffed by them.....
Thinking in point form. Spewing lies without even good grammar, complaining about people who can put more than two thoughts together without the aide of a style guide.....welcome to the 21st Century.....
Would you mind cutting-and-pasting "the racism theory" you keep mentioning?
Robin Mathews did ask a question as to whether race had been a factor ... but nowhere (that I can find) has he "advanced a racism theory" and it doesn't sound like him at all.
Also, have a look at the responses Robin has received so far (You say "I would be surprised if he receives one") ... what's with you, anyway?
"the setting upon three Sikh men by the RCMP and the Special Crown Prosecutor"
And his letter of the same date on vivelecanada:
Finally (c), and with considerable reluctance, I have come to believe the charges against the three accused alone may not only constitute what may be a huge miscarriage of justice but also, perhaps, a depressing act of Racism.
Appology please BC MAry?
Equivocators like to select picayune matters to blow out of proportion, all to not so much change the topic as destroy it.
Remember with Re Conflict that his attention span deficit means he hasn't read most of Robin's writings; but he does like to crow loudly about what he says in them.
The voice of a fool, on the payroll of cretins.
Mathers speculates the charges against BVB a result of racism. I find that absurd to say the least, and I betcha I am not alone. I have seen NO retraction of Mathews in this regard; if one exists, please provide the link.
This must come as an awful shock to you and many others; only 2 have commented after I posted the links requested by BC Mary. She too is oddly silent. I suppose she is stunned as you are by the evidence presented.
This may come as an awful shock to you, but nobody is breathlessly awaiting your next verbal gem.
As for me, I have been "oddly silent" for about 3 weeks now ... thank you for your good wishes and concern [Understand? ... that's sarcasm].
I may explain later.
Meantime, you might wish to chat about the vigorous editorial attack Rattan made in "The Voice" on the subject of racism in the arrest of Basi, Virk, Basi. Who, by the way, have every right to raise the question for discussion ... as does Professor Mathews.
An "interesting" world you live in...must everyone agree with what you think in order to be heard, and valued?
No, I'm not stunned at all by what Robin has to say. That's not the reason for my "silence"...the reason for that is that you've said nothing really worthy of full discussion.
As for Mary, she has a life separate and apart from this blog, though she has dedicated countless hours to bringing the truth about this sale, and the government who has done everything in their power (thus far) to insuring it's never known. A little respect goes a long way.
How many charges was SAM NAGRA facing... 24 counts involving fraud, impersonaltion, false pretences.
What ever happened to those charges? Was he found guilty and thrown in jail, or were the charges just more evidence of racism?
Nagra received a 15-month conditional sentence, 150 hours of community service, and was ordered to pay $10,000 in restitution.
Nagrea was the former Victoria [British Columbia, Canada] Sikh temple [gurdwara] president.
I showed you his statement. I provided the link.
Mathews words, " ... the charges against the three accused alone may not only constitute what may be a huge miscarriage of justice but also, perhaps, a depressing act of Racism." is not a question. Its a statement.
Funny how only I can clearly see that.
As for Leah, why are you trying to brow-beat me into submission? Respect goes both ways. Mathews has said what he has said and I just cannot agree with him that racism had anything to do with the prosecution.
As for Rattans voice, it doesnt change the fact that if an indo canadian is involved in criminal activity, and is charged with a crime and sent to jail, that the prosecution was necessarily motived by racism. Jails are over represented by native indians, not indo-canadians. At the same time, they are also over represented by criminals.
Warning: enough of your mischief.
We've listened patiently and politely to what you've had to say.
Now I say: enough.
Since you seem to feel that Robin has declared racism was/is a factor in the BVB case (though he only basically suggested it MAY be and echoed concerns expressed by other members of the Indo-Canadian community - here's my proposal.
You seem to think Robin can't even mention the possibility unless he can PROVE it is true. So if you insist it IS NOT true, please provide your proof - other wise all you are expressing is either your opinion (at best) or your ignorance (more likely) or your agenda (even more likely).
We are all entitled to our opinions, but if you could read more than a paragraph at a time, you would notice that facts are the meat of the Ledge Raids and so far the only facts you have presented are that you have an opinion and that Robin wrote a couple of sentences that don't even say what you imply they say!
You can't accept a point "taken", then not agree with "anything" [I] have said.
Logic and coherence are clearly not part of your thought process, nor are they part of your purpose here.
Wasting the time of others is.
We know you're making your living at this. How discouraging it must be to discover you weren't hired for your intelligence and erudition. They hired you because you're willing to be a stupid monkey. Understanding the subject matter is something you haven't tried; if you DID understand, you wouldn't want to work for them anymore.
Please check this blog for Jan. 2, 2007. You'll see an item written by an Indo-Canadian who fears that his community is being politically undermined. I wrote, at the time, "This is the only example I could find, in which racism is mentioned, as portrayed in Gary Mason's 23 Dec. 2006 story in The Globe and Mail."
The unabridged story is in the Indo-Canadian Voice OnLine (whose editor, Rattan Mall, kindly gave me permission to reprint in full) under the headline:
MARK MARISSEN CONTROVERSY
I had forgotten how fiery the Indo-voice can be, until this a.m. when I came across that old column about Mark Marissen.
The editor, Rattan Mall, has a slightly different slant on the topic of racism ... he believes that the ethnic group is used in questionable ways ... and I've had that impression too. How could the politicians manipulate the Indo-vote if they didn't know exactly where to lay hands upon those groups? and who to call?
I'm planning to re-post that item one day soon. I think it will surprise "re Conflict" and others ... me included.
I mean, isn't it astonishing how heartless ... and how incredibly kind ... human beings can be toward one another?