The Legislature Raids

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Morning in Courtroom 54.

By Robin Mathews 
September 21, 2010

Being in the courtroom frequently, a person can begin to forget what the reaction of other Canadians would be to activity there.  A person gets used to the formalities - rising for the judge and jury, the fine points of procedure (and behaviour) argued at length.  When the father of one of the prosecuting team spoke a few words to a jury member on a skytrain platform, the (possible) implications took a few days of court time to iron out.

Mr. Brian Kenning, a recent  director and Chair of the Evaluation Committee of the Board of BC Rail, is in his fifth day of cross-examination.  He doesn’t seem to be very comfortable.  Being cross-examined is not a picnic.

Nonetheless, it is easy to miss the big picture – and, sometimes – the lawyers miss the big picture, too, it seems.   Mr. Kenning was in a major position of trust, on the Board of Directors of a huge Crown Corporation.  He was appointed by the new Gordon Campbell government in 2001.  (And the gossip – fiercely denied – is that the board was chosen to dump BC Rail with all haste into the hands of the CNR.)

Indeed, this morning in testimony, Mr. McCullough, for the Defence, elicited from Mr. Kenning that Pat Bell a Northern MLA had made the allegation when the bidding for BC Rail was in process that Mr. Kenning was saying that CN would get BC Rail. Mr. Kenning denied the allegation.  Mr. Virk, too, Mr. McCullough said had spoken to Mr. Kenning about the possible problem of his bias.  Mr. Kenning remembered discussing the Pat Bell allegations with Mr. John McLernon, but remembered nothing about Mr. Virk.

Mr. McCullough asked why Mr. Kenning took so long to come round to remembering the Pat Bell event.  Such a question might be asked frequently.
Mr. Kenning, as I have written already, forgets a great deal.

It is possible, sitting in the court, to become absorbed in close details – like the revelation that many, many people had not signed confidentiality papers about the BC Rail transfer to private ownership.  Many who had access to computers and offices had not signed confidentiality papers.  The point being made by Defence is that sources of leaks were widely potential and are not easy to find – though sometimes they can be found.

Those are the face-to-the-glass details one sees easily.

Much more difficult to see is that Mr. Kenning was in – as I say – a position of great trust on the Board of BC Rail.  He was acting for all the people of British Columbia who needed to have their assets under impeccable stewardship.  But he told Defence counsel – as I understood him – that the Board of Directors and the Evaluation Committee (of which he was chair) listened to the recommendations of ‘management’ without questioning them and demanding hard responses.  They made no key decisions on the “sale” of BC Rail and did not intervene in negotiations the Campbell government was having with bidders and buyers.

In fact, only months after his appointment to the Board, Mr. Kenning joined the rest in recommending BC Rail be privatized, be handed it away from ownership by British Columbians.

Mr. Kenning and the other members of the Board of Directors didn’t, seemingly, question anything.  Guardians of a major asset of British Columbians, the directors didn’t even question the enormous interest of 9% on the tax loss revenues that might at some time fall as a debt on the shoulders of B.C. taxpayers!

If there were discussions of sale matters by the directors or the Evaluation Committee of BC Rail (of which he was chair), Mr. Kenning cannot remember any of them.  A Board of Directors of a Crown Corporation exerting no oversight over sale, making no interventions, asking no questions, simply ‘taking orders’ from ‘management’ and ‘government’ has no reason to remember … anything.

But British Columbians have many, many questions to ask.  Argument grows that the transfer of BC Rail to CNR was corruptly engaged in.  More and more people believe that the timeline of ‘sale’ properly seen began the first day Gordon Campbell took office  (or earlier), that all BC Rail appointments from the beginning were made to assure BC Rail would be privatized – and to CNR … and that all other explanations are so much spin and disinformation.  And, it happens, “all the other explanations” are those of the (mostly) major figures involved in dumping BC Rail on CNR.

If the growing sentiment has roots in the truth of the matter, then other questions arise.  Were the directors of BC Rail in Breach of Trust?  And if they were, was it Criminal Breach of Trust?  And were (and are) others who manipulated the transfer of BC Rail to CNR (if the transfer was done illegitimately) also in Breach of Trust, in Criminal Breach of Trust?

No one says that kind of thing in Courtroom 54, as day after day after day drags out in the trial of three Order in Council appointed aides: Basi, Virk, and Basi. The trial has to be – because of the history of the BC Rail Scandal – about their guilt or innocence.  No other people in the whole seamy dumping of BC Rail have ever been charged.  Perhaps a trial should be about the guilt or innocence of Gordon Campbell and his associates in the transfer of BC Rail - not excluding the Board of Directors of BC Rail.

That is why I have asked RCMP Deputy Commissioner Gary Bass to undertake a criminal investigation of Gordon Campbell and his associates in the “sale” of BC Rail – to clear the air for once and for all.  Mr. Bass refuses to undertake such an investigation.