Friday, March 13, 2009


Robin Mathews: Friday morning in Courtroom 66 - Basi Virk pre-trial hearing.

Friday the 13th of March 2009 in BC Supreme Court, Vancouver

Mostly a quiet morning happened, with explosive implications. On the surface all was philosophical. Underneath the air was tense with conflict and frustration... as will become clear.

The day opened with seven counsel in court and one person in the gallery. It remained that way except for a few flurries of students. They arrived to taste The Noble Institution That Supports Our Living And Breathing And Robust Democracy.

This report will demonstrate the truth of those capitalized words.

Mr Frank Falzon continued his argument regarding the absolute sanctity of the legislature and its ineradicable privilege which the courts may not lift or interfere with. Nothing can change that, he averred, not even the Charter of Rights and Freedoms. Mr. Falszon's clients are the Speaker of the House, the Conflict Commissioner, and the Clerk. His argument, which seemed to dwell on a high, philosophical plain may have had other more soiled purposes.

Madam Justice Elizabeth Bennett worked, it appeared, to find a way by which the Defence could get access to materials (produced by MLAs) - Falzon claims - under absolute lock-up because of infrangible parliamentary privilege. She was fully present, seeking to understand argument and to work to find ways to secure the needs of Defence - bringing up the wonderful 'break-through' concept of "innocence at risk' - a legal concept that thrusts aside many barriers to release of evidence if it may be claimed a person or persons will be called guilty when evidence to prove them innocent exists but is withheld.

All was appearance today. Reality, alas, dwells, perhaps, at a deeper level. Her efforts are commendable - on the level of appearances.

Justice Bennett was, indeed, the one, the other day, to raise the matter of newspaper reports of the NDP's discovery that Patrick Kinsella (high-profile Liberal) was paid close to $300,000.00 in the employ of BC Rail between August 2001 and September 2005. Uncharacteristically, she referred to a news item in the print media as court opened on that day. I erred in my last report, believing she became engaged, later, when Kevin McCullough for the Defence brought up an e-mail between two top BC Rail officers questioning a large payment to Kinsella. More will be said about that e-mail, I understand, as pre-trial court argument proceeds.

The battle which ensued over the Kinsella post blew into such a storm around the legislature and the tattering reputation of Attorney General Wally Oppal that the Corporation issued a note yesterday to admit Kinsella was employed in those years by BC Rail "to provide strategic advice to our new President, Board of Directors and Chair" No one will doubt, I am sure, that Patrick Kinsella possessed in those years far greater expertise in railway operation than any of the people he was hired to advise. If anyone has any doubts, his salary of $6000.00 per month will erase them.

After Mr. Falzon completed his argument, Joseph Doyle, for the Defence, embarked on his presentation. His argument struck at the absolute claim and suggested, moreover, that the Conflict of Interest Commissioner has many documents that don't fall into Falzon's categories. He argued, further, that gifts which are recorded as received by cabinet members might well set a pattern for gifts received by their employees - getting at the argument that the accused were showered with uniquely conferred "gifts".

Calling upon common sense which often mirrors the Common Law, he explained that "privilege" grew up to prevent all kinds of interference with the independence of legislators. But, he insisted, the privilege must be reasonable and relate. We know there is no privilege that shields legislators from criminal action, and so Mr. Falzon's arguments don't hold.

Mr. Doyle was to continue his argument for the rest of the day.

Something in the air - as I have suggested - conveyed a sense that we were watching a surface performance, the meaning of which lay below the surface. At one point Defence Counsel Kevin McCullough rose to point out that days and days and days have been spent on solicitor/client privilege, litigation privilege, third party privilege, and...and...and now parliamentary privilege. Madam Justice Bennett waved her arm as if to say, perhaps, she didn't want to hear that, or to say that Destiny must play itself out.

Except Destiny has many faces. The argument over the kinds of privilege the RCMP could claim was exhausting. None of it - NONE OF IT - was necessary. NONE OF what is going on today is necessary.

And this is where we must see that the day was - almost certainly - given up to make-believe, to choreographed delay, to the calisthenics of robots, to what I believe is a plan to undermine the very integrity of the courts. I wrote a note to myself during the morning events. It reads: "the extraordinary fact is that defence of men accused of criminal actions is peeling away the legitimacy of those who are (in fact) preferring the charges".

"No. No." you say. "All that activity cannot be sham, cannot be choreographed beforehand."

Early in the investigation (back in 2003) Gordon Campbell said that every assistance would be given. Plainly, he did not mean what he said. For if he and Gary Bass, top RCMP officer in B.C., had issued clear instructions that REAL cooperation must take place, all the nonsense about privilege, almost all the fabricated delay in disclosure would have been erased. Why should the RCMP wish to keep investigative information from Defence? Why should Gordon Campbell and Liberal MLAs want to prevent Defence from knowing what they were doing and saying through the time of the sellout of BC Rail and the accusations against Basi, Virk, and Basi? Why would Gordon Campbell wish BC Rail Corporation to hide its communications during the time of the sellout?

Anyone familiar with criminal trials knows that almost always the Crown gathers evidence it believes Defence will need. The Crown genuinely assists with disclosure so that trial may be fair, competent, timely. The Crown, sure of its case usually, has no fear that Defence will surprise knowledge into the light that throws the Crown's whole purpose out the window - and if, in the rarest of cases, that does happen, the Crown is easy because it doesn't want to engage in illegitimate convictions.

But in this case, I believe it is reasonable to say that the Crown, the RCMP, the cabinet, and BC Rail, through almost all their agents, have worked against providing the materials that could make a trial happen with fairness, efficiency, and timeliness. Think about that.

Think about courtroom 66 today where, if I am correct, a theatrical presentation is taking place - which intends to supplant reality with fantasy and to convince British Columbians that the fantasy world of Gordon Campbell must be the real world in which all of the rest of us dwell.


As always Robin, an excellent report. It has been interesting to note that when the crap hit the fan last week and Stonewally said it was before the courts again and again, Kinsellas situation wasn't actually. It wasn't before the courts until Justice Bennett put it there. And I remember her admonishing someone about something she had read while in Quebec. She read it in a Quebec newspaper and said at the time she didn't read the news before the courts in local papers in Vancouver. Wonder what changed her mind?
For those seeking answers as to Kinsella's lucrative $6,000 a month contract with BC Rail Directors for 50 months, look to MMK Consulting Inc. as a model BC company that didn't gouge the taxpayers (single shareholder BC Government). The $$$numbers are all there in the Financial statements during Progressive's contract and after it ran out.

British Columbia Publications Index for: British Columbia Railway.

2004 - two payments to two different entities owned by Kinsella: Progressive Holdings Ltd. and The Progressive Group

2005 - cover Progressive Group alone
NOTE: go to the last two pages of each document of the financial pages and the information is all there.

2006 - Progressive is not on the books, but MMK Consulting is.

2007 - no one to advive the Board of Directors.

MMK Consulting Inc. has their own web pages where they outline exactly what they have done for their clients, one of which is the BC Government, on many fronts including PP3 projects.

Whereas Kinsella's has had to have the ire of the public, demanding to know what he did for $297,000, to get a response. A monthly retainer of $6,000 is not an answer that we want to hear, especially in light of the Hughes Report where the Judge declared that the BC Liberals "took the knife too far" when it came to children.
Robin, I feel that the Appeal to the Supreme Court of Canada is the means to end this case for Bill Berardino. Remember his comments where Berardino vowed to not breach informer privilege.
Great, great stuff Robin.

And fantastic digging NVG.

And just so everybody knows..

It would appear that Harvey O has just jumped on the Train

(and it looks like, maybe, that it was Mary who sold him his ticket and Ian Mulgrew who punched it)


Friday the 13th. How appropriate. The only thing missing is one more "6" in the Courtroom make it 666 the biblical mark of the beast.
November 25th, 2003 was when the BC Liberal government made the annoucement that CN Rail had won the bid to take over BC Rail... but on November 20th, 2003 the union representing the workers of BC Rail had published their document which is still available at the BC Legislative Library, AND the links have been published here on BC Mary's blog already.

The library still holds the leaked document in its establishment dated May 2003, and here's the good part.... its not exactly like the BC Liberals can crow over the way the City of Vancouver managed to keep track, lost track, no pun intended, of their In-Camera documents just before their municipal election because the leaked document that CIBC was holding in trust for the BC Liberals had the same sort of layout on the cover stating: "COPY #______", was blank, the audit trail of possibly tracing who's document it was, is not known.

For all three documents at one spot: Just ask your local Librarian via the internet LOL
Keep this in mind: the right to a full and fair defence in a criminal process, is absolute. The ex-prosecutor heavy Bench gets around that by using the lame "minimal impairment" sandbag as a means to make said right merely relative. The integration of police, prosecutor and judicial offices is near complete in BC. Too bad few can comprehend the implications of same.
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