The Legislature Raids

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By Robin Mathews

The BC Rail Scandal – At Trial. (At Last!).  Were There “Criminals” in the Corrupt “Sale” of BC Rail to the CNR?

A program of spectacular delay ended on Tuesday, May 18, in B.C. Supreme Courtroom 54 – when the most important public criminal trial in B.C. history (really) began.  Its importance may lie in an allegation that the government of B.C. practiced (and is practicing) to deceive, with the support of the RCMP and the high courts. But whatever is found in that direction  – without doubt revelations will arise in the trial that could well wound the political and social life of B.C. for decades to come.

The BC Rail Scandal trial is named that because it arises from the corrupt transfer of BC Rail to the CNR by the Gordon Campbell government over a period stretching from 2001 to 2004.

Original police investigations began at least as early as 2002.  They refocussed and changed and shifted “everywhichway”.  Then they seized public attention at the time of the RCMP search warrant raids of the B.C. legislature offices of cabinet aides Dave Basi and Bobby Virk on December 28, 2003.

Investigations eventuated in charges against the three accused men on December 22, 2004 – all charges relating to the transfer of BC Rail to the CNR.

The trial began with a packed gallery, with legal tempers alight, with procedural and evidentiary wrangling, with more media representatives gathered than ever before in the case – and, then, with focus on the first Crown witness – perhaps the most powerful civil servant in the province.  The trial may be of three (once almost unknown) ‘junior’ government appointees, but the implications of the charges against them reach and focus upon the premier, his office, and his associates in the BC Rail Scandal.

[About the ‘raids’ on legislature offices, Martyn Brown, the B.C. premier’s Chief of Staff and top political advisor, recalled in court speaking, on the day of the raids, to Gary Bass – now top RCMP officer in B.C. – who refuses to undertake a full, public, criminal investigation of the major actors in the corrupt transfer of the railway.]

Casual comments, comments dropped within hailing distance of the courtroom convey a state of mind to the effect that Defence counsel have delayed and delayed the trial.

The opposite, I believe, is the case.  Observers of the more than three years of pre-trial hearings remember application upon application by the Defence for disclosure of ’relevant’ materials from major areas of action in the ‘transfer’ (“sale”) of BC Rail.

I remember delays of many kinds by the RCMP and others called upon for disclosure.  Delay was not delay on the part of the Defence.

Over and over (during the nearly three years Madam Justice Elizabeth Bennett presided) important relevant material was unearthed and disclosed.  That process stopped with the ‘replacement’ (?) arrival (never fully explained) of Madam Justice Anne MacKenzie in September 2009.  Stopped abruptly.  Stopped almost completely. She stopped it.

The significance of the call for disclosure of materials related to the corrupt “sale” of BC Rail flashed before observers almost from the start of the trial and the cross-examination of Gordon Campbell’s Chief of Staff, Martyn Brown.

To begin, remember, all the accused plead ‘not guilty’ to all charges of fraud, breach of trust, and money laundering – variously laid against the men.  The charges relate to allegations of activities the three men are alleged to have engaged in as a direct part of the corrupt transfer of BC Rail to the CNR.

Defence (obviously) wants to show the innocence of the men charged.  And in that regard, the cross-examination of Martyn Brown in the first few days of trial revealed the immense importance of the disclosure materials gained.

Employing documents ‘disclosed’, Defence counsel Kevin McCullough sought to know the true state of BC Rail – a sale or a 900-plus year lease? He sought to know if policy makers (Gordon Campbell and others) had employed a “Failure Strategy” – a calculated process of degradation and misrepresentation of BC Rail in order to dump it?  He sought to know why Dave Basi was fired on the day of the raids on the legislature offices, but that Bobby Virk was kept on, removed, but at full pay until a year later, December 22, 2004, the day upon which he was charged.

Mr. McCullough would ask the judge to mark a document for identification (for the jury) or as an exhibit (a part of evidence).  She would agree or disagree.

In the first few days, Crown counsel and Defence counsel, the accused in their glass box, the public attending, more members of the press and media than have ever appeared before, and the jury members – all – began to find a rhythm and pace and a shape to the proceedings.

The shape so far is one that has been building since December 22, 2004 … and earlier.  The primary questions have become clearer and clearer, I believe.  In the language of ordinary people – “Who are guilty in the BC Rail Scandal?”  “Were major crimes committed at highest levels … and covered?” “Were the three accused men ‘targetted’ by RCMP and the Special (Crown) Prosecutor, and did the RCMP and the Special Prosecutor choose to ignore other targets they should not have ignored?”  “Was BC Rail really put through a meat grinder by a policy of deception, manipulation, mismanagement, and amputation, and … more … to prepare it to be dumped?” “Was BC Rail, as an on-going policy – prepared, carefully, from the start, to go to CNR?”  “Were all the ‘public relations’ about a standard, fair bidding process for the freight division (‘the sale of BC Rail’) a structure of intended falsehood? And did CPR believe that was the case when it publicly withdrew and called the bidding process tainted?”

Questions put in the language of ordinary people are at the heart of the Basi, Virk, and Basi case, I suggest.  If the questions do characterize the heart of the matter, where do the (accused) two ministerial aides and the communications employee fit?

If what I write here makes sense, then so does an objection raised this week by Special (Crown) Prosecutor William Berardino.  Annoyed that counsel for Bobby Virk (Kevin McCullough) should be pressing questions upon Martyn Brown about the alleged, possible organization by the premier’s office of an alleged anti-protest against fish-farm protesters in November of 2003, Mr. Berardino rose.

At issue, he said, are the charges against the accused.  What Mr. Berardino asked – in effect – have fish farms got to do with the charges against the accused?

The answer given after the jury was asked to leave the room is under publication ban.

We don’t have to refer to the answer given then.

Mr. Berardino’s question reveals that the Crown wants to focus all attention on the localized alleged wrongful actions it wants to prove to the jury.  Mr. Berardino’s question reveals, also, that the Defence believes that the alleged, localized wrongful actions did not take place, but inasmuch as the accused undertook any actions in the long process of the transfer of BC Rail to CNR, they did so acting from policy, direction, and instruction given to them by their superiors who may have been acting (at the very least) unethically.  I presume Defence wants to prove something like that.

Gary Mason, columnist for the Globe and Mail (May 20, 2010) writes that the Defence in the case has decided – as a tactic – to “make this case about Gordon Campbell and his government as much as possible”.  And Mr. Mason suggests in the article, I believe, that Defence will use that line – one might say – whether it fits always or not.

We may, however, have to come to another conclusion – that the trial IS about Gordon Campbell and his government.  The three accused men did not go through normal employment channels to be hired, but were (apparently) recommended for political work done, and were appointed by Orders in Council (in fact, choices made in the premier’s office).

This case, in fact, may be, properly, “about Gordon Campbell and his government”.  The three men were, by appointment, a part of his government in the fullest sense of the word.

What has been said about the making of charges against the three men and the field of battle – courtroom 54 in the Supreme Court of British Columbia – is complicated by the fact that the Special (Crown) Prosecutor was appointed in December, 2003, in what I think has to be granted as a clear violation of the legislation governing such an appointment.  The Attorney General of the province will not deal with the matter.  Senior judges of the British Columbia Supreme Court will not face and deal with the matter. The Mainstream Press and Media are mute.  Associate Chief Justice Anne MacKenzie presides at the trial as if the glaring anomaly doesn’t exist.

What other dark creatures lurk in the shadows of the trial being conducted against Dave Basi, Bobby Virk, and Aneal Basi? Certainly, in this case, aspects of the administration of justice are in shadow.  The administration of justice in British Columbia is, I insist, as much on trial in this case as are the three men formally accused (and, perhaps, it is on trial more importantly and legitimately than they are.)