Tuesday, June 30, 2009


Can anyone spell Watergate? Salt Spring News shows us how, in photos


Salt Spring News - Tuesday, June 30, 2009
Regional News

Can anyone spell Watergate? Judge on BC Rail corruption case orders disclosure of MLA emails, part of materials the defence has spent years trying to force disclosure of.

Please click on: http://saltspringnews.com/ to see the photos of Nixon and Campbell.

You must pursue this investigation of Watergate even if it leads to the president. I'm innocent. You've got to believe I'm innocent. If you don't, take my job.
- Richard Nixon, 37th President of the United States (1969–1974) and the only president to resign the office.

Records that should be kept under the law have been kept.
- Gordon Campbell, 34th Premier of British Columbia, June 5, 2001 to the present.

Steve Mertl
Canadian Press Canada - June 30, 2009

VANCOUVER, B.C. — A B.C. court has ordered the provincial government to turn over a potential trover of internal emails that could relate to the legislature raid case. The B.C. Supreme Court judge hearing the case Tuesday ordered the government to turn over MLA emails and other communications related to the controversial $1-billion sale of BC Rail to CN Rail in 2003. Justice Elizabeth Bennett will review the material to decide what's relevant to the corruption trial of three former government workers in relation to the sale, a case which now has dragged on for almost six years without going to trial. Bennett herself has been promoted to the B.C. Court of Appeal but the defence is demanding she stay on because she's issued a plethora of pre-trial rulings in the complex case. She's slated to hear their arguments later this month {snip} ...



Basi-Virk: Judge orders e-mails of 15 MLAs be disclosed to defence

By Neal Hall
Vancouver Sun - June 30, 2009

Vancouver – The judge in the Basi-Virk case granted today a defence application to produce the e-mails of 15 MLAs and former MLAs, including Premier Gordon Campbell.

Justice Elizabeth Bennett's ruled that any e-mails are likely relevant involving contact with the government and the Pilothouse lobbying firm between Jan. 1, 2003 to Dec. 31, 2004.

The defence still has an outstanding application for disclosure of the premier's executive branch records, which will continue to be argued when the case resumes July 16 in B.C. Supreme Court.

"I have no idea how long it will take to get the records," the judge said Tuesday after making her ruling. "I guess it would take a month anyway."

Outside court, defence lawyer Michael Bolton said: "Overall, the defence is pleased."

He didn't know the volume of e-mails to be produced. "It could be huge," he said.

It was only the first stage of the third-party records application, which will continue Aug. 21, when lawyers for former and current MLAs can argue the issue of privacy rights.

The defence also will make an application July 20 for the judge, who was recently appointed to the B.C. Court of Appeal, to continue to sit as the trial judge.

The special prosecutor wants a new trial judge appointed as soon as possible.

A ruling made by Bennett last year in the Basi-Virk trial was appealed in April to the Supreme Court of Canada, which reserved judgment.

During her ruling Tuesday, Bennett said former deputy premier Christy Clark was served notice of the defence application but did not respond, so the judge assumes Clark is not asserting any privilege over her e-mails.

The judge pointed out that an e-mail already disclosed said Clark had contact with Erik Bornmann, one of the principals of the Pilothouse lobbying firm that was representing OmniTrax while it was bidding on the privatization sale of BC Rail in 2003.

{Snip} ...

The defence has also filed an application to seek the e-mails of the premier and cabinet ministers concerning the BC Rail sale.

A government lawyer told the court earlier this month that those emails may have been purged by the government's computer system.

Filed in court was an affidavit by Rosemarie Hayes, manager of the government's e-mail system, who said e-mails cannot be retrieved after 13 months.

The defence was shocked by the revelation but takes the position that the e-mails might still exist. The defence will likely call witnesses to hear how thousands of government e-mails could disappear.



Vanished e-mails undermine trial


The apparent loss of four years of provincial cabinet e-mails strikes a blow at any notion that the B.C. Liberals see the need to be accountable for their actions. {Snip} ...

That e-mails written by cabinet ministers on key issues could have been deleted is almost unbelievable. The government has an obligation, after all, to retain important records. To that end, it backs up its electronic data, including e-mails, on servers housed in at least two locations in Greater Victoria.

If these cabinet e-mails are truly gone, that means there was a concerted effort to get rid of them. And that effort would have been made after the legislature raid and after the three men were charged. It would be hard to imagine that cabinet ministers did not discuss the central issue in the case, the $1-billion sale of B.C. Rail to Canadian National, either before or after the raid. {Snip} ...

Campbell says that all records that should have been kept under government laws, have been retained.

That provides no consolation, because the potential value of these records should have been noted by the government. Preserving them, rather than destroying them, should have been the priority. {Snip} ...

... cabinet e-mails reflect the reasoning of the most powerful people in the provincial government. These documents could have provided valuable background information that would give context for the actions of ministers. They could have made a huge difference in the court case as well. {Snip} ...

If cabinet communications, especially those potentially relevant to an ongoing criminal case, are not deemed worthy of retention, what is? And, more importantly, what else has been electronically shredded by the Campbell administration?



Robin Mathews: June 30, 2009 in Courtroom 43

The ruling on the broad MLA materials disclosure application by Defence was handed down today in Courtroom 43 by Madam Justice Elizabeth Bennett before ten lawyers and six or seven in the gallery.

Defence expressed general satisfaction with the outcome.

That in the midst of what the press appears to believe is a deepening of suspicion that Gordon Campbell is living his own "Watergate". Well-informed BC Rail Scandal journalist, Bill Tieleman, writes that the "parallels between the actions of the Gordon Campbell B.C. Liberal government and the Richard Nixon White House are becoming increasingly, disturbingly clear." (24 Hours, June 30).

Mark Hume,(Globe and Mail, June 30 09 S2) reports the request by NDP MLA Leonard Krog for an "independent and public investigation to determine the reasons for the disappearance of ...e-mails" that a government lawyer has just reported "disappeared" in the face of clear retention protocols and laws.

This morning, as if the e-mails are existent, Madam Justice Elizabeth Bennett ruled that in all cases where materials are related to lobbyists connected to Pilothouse, and those clearly connected to the allegations of fraud and breach of trust, documents are obviously relevant - not excluding those generated by Gordon Campbell.

That includes the Northern Caucus of MLAs, Gary Collins, Christy Clark, and others.

Madam Justice Elizabeth Bennett, however, appeared to draw a circle around Gordon Campbell, premier, and to suggest that apart from the potential connection stated, other relevance of his e-mails seems doubtful. The premier's materials, she ruled, with the exception of connection to Pilothouse, are not relevant.

The ruling today covered only the e-mail accounts of MLAs. Argument about the e-mail accounts of Gordon Campbell as premier and of the premier's office will be made by George Copley, lawyer for the Executive Council (premier and cabinet) and the Defence beginning on July 16 - Madam Justice Bennett to rule on relevance by July 20.

Postponed - perhaps until August - is the argument on the motion that Madam Justice Elizabeth Bennett be removed, and replaced as trial judge. The Crown argues that she has been promoted to the Appeals Court and should go. Defence argues that she has - for three years - been "seized" with the Basi, Virk, and Basi matter and cannot simply leave. Crown argues she is not "seized". The term usually means that the judge sitting has taken into his or her (almost) "ownership and responsibility" all matters related to the charges levelled against the accused. And there is every reason (I believe) - especially because of the number of applications for disclosure and decisions she has had to make - to say that she is, indeed, "seized" with the Basi, Virk, and Basi matters.

Moreover, the motion to have her removed might be seen by many to be on a parallel with the "disappearance" of four years of MLA and cabinet e-mails - a convenience that is altogether too fortuitous to be accidental. Michael Bolton for the Defence, outside the court, reiterated his belief that the person to rule on the motion for her removal is Madam Justice Elizabeth Bennett herself.

Her decision, when it comes, I believe will say volumes about "the interests" being served in the whole BC Rail Scandal. Many believe the RCMP has shown itself so biased in the Basi, Virk, and Basi matter as to be almost without credibility. The Crown seems, to some at least, to have been too ready to observe delays in disclosure with passivity and, perhaps, to further the delays.

No one who I know or have spoken to (those well informed) seems to believe that the case has been pursued with determination and efficiency. I have observed from time to time what I believed was a failure of Madam Justice Elizabeth Bennett to require timely and expeditious response to disclosure requirements.

Delay in the past has been "arguable". The so-called loss of four years of MLA e-mails cannot be placed in that category, nor (I suggest) can the motion to remove Madam Justice Bennett. They appear to me to be wide open signs of fear and near-panic among the Gordon Campbell forces. That, I believe, is why Bill Tieleman writes about Gordon Campbell's own "Watergate".

History, however, doesn't usually repeat itself. Gordon Campbel sold off BC Rail against all odds (and promises). He has managed to keep important terms of the sale secret from the people of B.C. for years. On July 14 there is every likelihood that he will alienate more of the BC people's assets to CN Rail - probably in secret, without intervention of the Opposition or anyone else.

I am saying: "Don't count Gordon Campbell out." Someone as willing as he is to manipulate, violate, and besmirch democratic protocols and procedures may still have considerable rope to pay out before he hangs himself.



BC Rail: Justice Bennett orders MLA emails to be disclosed

(Click on title to see article)


By THE CANADIAN PRESS – 58 minutes ago (June 30, 2009

VANCOUVER, B.C. — The B.C. government has been ordered turn over more emails and other records connected to the privatization of BC Rail in the corruption trial of three former government officials.

Justice Elizabeth Bennett of B.C. Supreme Court has granted a defence application for access to communications by Liberal MLAs related to the $1-billion sale of the Crown-owned railway to CN Rail in 2003.

Most were members of the Liberals' northern caucus but the list includes cabinet ministers and Premier Gordon Campbell.

The decision covers MLA email accounts, and is separate from a defence demand for material from executive council email accounts given to cabinet ministers.

The defence had filed a broad application covering a period from June 2001 to the present but Bennett cut the time frame sharply to cover 2002 to the end of 2004.

{Snip} ...


Basi Virk today, on Justice Bennett's decision to stay or step out of the picture

Blogger problems today ... but if you can access The Tyee, there's a good Bill Tieleman column and some cool comments. Here's the URL:


And don't miss Laila Yuile's column from yesterday, about the BCRail land issues. Laila couldn't get access to comment on Bill's Tyee story so I posted an intro for her story there, too.

Back soon, I hope, when Bloggerworld sorts itself out. Some things work, other things are frozen. Thanks to Bill Tieleman who told me that it's indeed "Bennett Day" in BC Supreme Court and that he'll attend later. - BC Mary.



B.C., an embarrassment to Canada


Walking among us, are many Canadians who believe that if the Campbell Capers were occurring anywhere within the actual borders of the U.S.A., there would be quite a few well-known B.C. personalities looking out from behind prison bars. This is the first time BC Mary has directly invoked the views of our southerly cousins. What do you think of this U.S. report and the subtlety of its concluding paragraph? - BC Mary.


By Marisa Peacock | Jun 30, 2009

Tags: compliance strategy, ediscovery, enterprise cms, information management, records management

Canada has been gracious enough to offer themselves up as an example of why having an eDiscovery system in place is really important.

It has been reported that in British Columbia, many email correspondences that occurred between the executive branch and the cabinet during one of the biggest business deals in Canadian history: the sale of BC Rail to CN Rail have been accidentally or mistakenly deleted.

Wiped Out

According to The Globe and Mail, "Wiped out, according to George Copley, a lawyer representing the B.C. Executive Council, are four years of tapes covering the crucial period when the government negotiated the sale of BC Rail to CN Rail."

Not only is it embarrassing to admit that these errors occurred, it's also very expensive. This case has the potential to be one of the most expensive ediscovery cases ever in Canada.

Implementing eDiscovery for the enterprise creates some organizational challenges, such as whose responsibility is it to search and discover? Some point to IT, while others point to Human Resources. The truth is — as the Canadian government is learning — is that having a fast, dependable and well-organized compliance strategy to protect your company in the event of an eDiscovery request, is the responsibility of the enterprise period. [Need I add here, that this is a commercially-oriented news service? - BC Mary.]

Saving Face & Legal Trouble

Of course, eDiscovery isn't just about saving you time, money and embarrassment, it's about effectively managing, archiving and accessing all the information across the enterprise, in all formats so that it can be easily searched and tagged, hopefully saving your company from the possibility of litigation. A well organized company is not only a more productive one, it's one that is proactive rather than reactive.

As for Canada, considering that the defense argues the accused men were acting on the orders of their superiors — and maintain the e-mails could prove that, it's not hard to figure out why those deleted emails might have helped the prosecution build their case.


Monday, June 29, 2009


Campbell ... the political fraud

Quote of the day

Rafe Mair in The Tyee: As the Basi-Virk case unfolds, as BC Hydro starts its inevitable break-up and the public learns the full truth about the government's appalling policy on fish farms and sees just what its rivers policy means, Campbell will be seen by all -- including his MLAs and supporters -- as the political fraud he is.


Sunday, June 28, 2009


BC Rail Lands ... attention, please!

Say it quickly and it might not seem so serious ... "BC Rail lands will be transferred to CN for $1. on the 5th anniversary ..." But while searching for THE agreement, trying to find exactly what's being promised and when it's promised, I found a DESCRIPTION OF LANDS at Schedule A in the 457-page "Revitalization Agreement".

There are 2,509 properties covering 101 pages under Part 1 - Fee Simple Lands. Frankly, I don't understand the "Note" which heads the listing. Readers should look this up HERE
at Page 77, A-1, and decide for themselves. The geographical locations of the properties are as follows:

North Vancouver, Ambleside, West Bay, West Vancouver-Piccadily N., Horseshoe Bay, Watts Pt., Coffee, Lions Bay, Cheakamus, Brunswick, Koster, Porteau, Britannia, Shan Fls., Squamish Site B,
Squamish (North Yard), Squamish downtown, Squamish (Brackend), Culliton Creek, Garibaldi, Whistler (McGir), Whistler (Alpha),
Whistler (Mons), Whistler (Wedge), Green River, Tisdall, Pemberton, Evans, Creekside, Birkenhead R., Birken, Gates, Darcy, Ponderosa, Marne, Seton, Shalalth, Retaskit, Lilloet, Polley, Fountain, Gibbs,
Glen Fraser, Pavilion, Moran, Kelly Lake, Lime, Clinton, Graham, Potter, Lone Butte, Canim, Edmund, Exeter, Tatton, Lac la Hache, Wright, Enterprise, Johnson, Onward,
Williams Lake, Meldrum, Mackin, Hawks, Hawks Creek, Soda Creek, Gibralter, MacAlister, Mackenzie, Alexandria, Windt, Australian, Kersley, Dragon, Westply, Quesnel, Baker, Barlow, Cottonwood, Bellos Creek, Greening, Dunkley, Colebank, Strathnaver, Hixon, Woodpecker, Crysdale, Stoner, Red Rock, Cale Creek, Tabor, Prince George, Quaw,
Salmon Valley, Nukko, Odell, Summit Lake, Barney, Hart, Killy, Valde, McIntyre, Tacheeda, Wakely, ANZAC, Firth, Hodda, Chinka, Kennedy, Garbitt, Lemoray, Falls, Hulcross, Pinesul, Dokie, Chetwynd, Bond, Worth, Septimus, Teko, Taylor, Baldonnel, Fort St John, Murdale,
Blue Hills, Buick, Snyder, Zeke, NIG, Beatton, Silver Lake, Tamarack, Gotah, Sikanni, Niteal, Needley, Fontas, Ekwan, Elleh, Klua, Fort Nelson, Odell, Merton, Liersch, Bugle, Carp, Fort St James, Tachie, Grand Rapids, Kuzkwa River, Takla Lake, Trembleur, Middle River, Natazulko Creek, Leo Creek, Takla Landing, Bluff, Lovell, Driftwood, Tetana, Azuklus Lake, Tsaytut Bay, Bear Lake, Bear River, Sustut Ridge, Goad, Gataiga Creek, Wabi, Perry, Sundance, Foss, Groundbirch, Tremblay, Progress, Kiskatinaw, Urquhart, Dawson Creek, Wakely, Parsnip, Klua, Boulder, Whitford, Azouzetta Ln, Sukunka, Wolverine, Tumbler Ridge, Teck, Murray, Quintette.

It was a betrayal of democracy which took the British Columbia Railway out of British Columbia hands against the majority wishes.

It was simple treachery which slipped this public asset into the private pockets of CN shareholders -- Bill Gates being the largest single shareholder -- in a secret agreement.

Five years later, it is an outrage that matters can get even worse if BCR lands are given to CN for $1. as a 5th anniversary memento.

Criminals are at work here, in all levels of society. The proof is that 4 years of evidence has been made to disappear during a Supreme Court trial which is so important to the province that it will demonstrate, once and for all, whether Beautiful British Columbia is a functioning democracy or a failed state operated by gangsters in Armani suits.

Every citizen can do something to stop the give-away of further BCRail lands, and to get the BC Rail trial under way in BC Supreme Court. All it takes is to shine a very bright light into all corners of the Gordon Campbell regime. And to keep asking the questions. - BC Mary.

Copied, with permission, from Laila Yuile's blog:

Norman Farrell, on June 29th, 2009 at 2:36 pm Said:

Near the Britannia lands, starting south of the mining museum, was a 450 acre parcel known as the Makin lands. This included a good amount of developable land and waterfront including the best beach in the area. A family dispute had the property tied up in litigation for years and the lawyers and the receiver kept it that way until the family’s equity on both sides of the dispute was sucked away. Wow, were they effective running up millions in fees to “protect” the land and its value.

Howe Sound and Britannia is an obvious site for major residential and townsite development. Fortunes will be made in the area two and three decades from now. When we have squeezed out the last of the Fraser Valley ALR, those picturesque mountain slopes and ocean views will be very attractive in Howe Sound. Building lot values of ocean view properties will be $50 – $100 a square foot, in today’s dollars.

Back in the nineties, when I was loosely attached, BC Rail was the key landowner of the region between West Van and Squamish. Everyone who looked at future land use in the corridor had two questions. About zoning and road planning and they key one, “What will BC Rail do?”

Campbell and his pal Jim Moody knew the railway was the key to fortunes, if not for themselves and their friends, but for their children and grandchildren.

A move you will see before Campbell leaves office will be the establishment of new municipal or regional district structures so local impediments won’t stop the big boys from doing what they want.



Constable Ma said to Corporal Mar

This is not funny. This may be comedic, satirical, but not funny. Excerpt from Oral Reasons for Judgment in Chambers, November 14, 2006 [Click HERE to see full document]:

[9] An information was laid in the B.C. Rail case in December 2004. Requests for disclosure were made by defence immediately. Apparently no disclosure was made when the charges were laid. The defence has characterized this as a “black cloud” that hung over the whole process. I do not find that it was a black cloud, given that it is not unusual that disclosure is not available the instant charges are laid.

[10] Disclosure commenced on January 20, 2005. A direct Indictment was filed on January 28, 2005, bringing the matter immediately to this Court without a preliminary inquiry in the Provincial Court.

[11] On March 10, 2005, a day prior to an appearance in this Court, 11,000 documents were disclosed. The disclosure is being provided electronically.

[12] In the appearance before Associate Chief Justice Dohm on March 11, 2005, the Crown advised the Court that the disclosure was substantially completed and final disclosure would be complete in two to three weeks.

[13] A trial date was fixed, at the urging of the Associate Chief Justice, for November 28, 2005. It was clear, shortly after that date was fixed, that disclosure was going to be an issue. There was no index for the 11,000 documents which had been produced. The software provided at the time did not have a proper search function. Apparently that issue has now been solved.

[14] Due to the diligence on the part of defence counsel in reviewing what was disclosed, Mr. McCullough discovered a number of documents missing from the disclosure package. These are listed in the many letters he sent to the Crown outlining his concerns regarding the disclosure process, and reference may be made to documents at tabs 14, 15, 16, 17, 18, 19 and 20.

[15] The defence is concerned that the Crown is not sufficiently involved in the disclosure process and has left the bulk of the disclosure to the police. This is supported in the affidavit of Corporal Mar wherein she states the procedure she and Constable Ma have followed to conduct disclosure. That is not to say that the Crown has not been actively involved. They have been. Further, it is not to say that the police should not be actively involved; needless to say, they must be. However, the state of the document disclosure suggests that at least initially the disclosure was being primarily performed by the police.

Many paragraphs later, the Honourable Justice concludes: "No need to cross-examine Constable Ma or Corporal Mar."


Special thanks to North Van's Grumps for this link. He has provided more links in his comment following the Neal Hall posting below. - BC Mary.


Q. If you were The Honourable Madam Justice Elizabeth Bennett, would you (a) choose to continue presiding over the BC Rail trial to the end? Or would you (b) choose to step up immediately into the BC Court of Appeal for a fresh start?

My answer is a guess: that if she steps aside at this point, it's a devastating indication of the flim-flammery of this tragic trial. If she decides to stay on as judge, I'll take that as a sign that somebody with integrity is willing to act in the public interest ... slow, indifferent, uber-tolerant as the process has been so far.

On Tuesday, June 30, 2009, in BC Supreme Court (Vancouver), in another pre-trial hearing for Basi Virk, we may hear her own answer to that question. - BC Mary.


An interesting column about the duties and accountability of judges in Vancouver Sun - June 29, 2009: Lots of people make mistakes at work, but judges are rarely subjected to disciplinary measures no matter what the cost of their errors.

Read it HERE.


An interesting comment made this morning, privately:

Is it the judge's jurisdiction to order charges for breaking the Records Act? WILFULLY breaking it? Seems like it should be the A-G or Crown Prosecutor, but I still don't get what the prescribed sentence would be....

The only remedies here may be post-facto, i .e. in terms of written history critical of what went down, it may be impossible to be preventive because of the cooptive nature of the entire political/policing/judicial process...

HOWEVER if collusion, conspiracy etc are ever proven, the whole contract could be revoked, even if the transfers have already taken place; unless that's exempted in the contract; in which case it's an illegal contract, which might be one of the reasons it's being kept secret, and why the Competition Bureau doesn't want to touch it...it's not like all this HASN'T been being discussed in Ottawa....

Between the nonsense about the deleted emails being unrecoverable (I'm sure they are, if someone really went at it right) and the Bill Gates linkage and the context of CN entering into a secret/fradulent contract with the BC government aimed at getting control of lands subject to aboriginal claims, I' ve been trying to figure what to say to Wired Magazine, or even just what to circulate on the many anti-Microsoft/anti-Gates blogs out there....hitting at CN may be easier than hitting at the BC govt.....and may help enlist the technical know-how to completely undo the claim the emails are unrecoverable; even if "illegally" recovered by a hacker, their contents could prove explosive....why else, after all, would they have been deleted?


Saturday, June 27, 2009


BC Rail: Union of B.C. Indian Chiefs say Province wilfully mislead or withheld information about BC Rail

Thanks to "Eva", I was prompted to search for what has been posted on The Legislature Raids for times like this, when we are searching for information on the secret BCRail deal. I think it's important to review what the First Nations have said. - BC Mary.

Originally posted: Sat Apr 24, 2004

UBCIC Critical of Proposed merger of BC Rail with CN Rail

Sheridan Scott
Commissioner of Competition
Competition Bureau, Industry Canada
21st Floor, 50 Victoria Street
Hull, Quebec K1A 0C9
Facsimile: (819) 953-5013

April 23, 2004
Attention: Sheridan Scott, Commissioner of Competition

Dear Commissioner Scott:

Re: Proposed merger of BC Rail with CN Rail

The Union of B.C. Indian Chiefs (UBCIC) is concerned that the province
of B.C. may have willfully mislead or withheld information from the
Competition Bureau regarding the proposed merger of BC Rail and CN Rail.

Instead of meaningfully addressing its fiduciary legal obligations to
Indigenous Peoples, the government of B.C. has engaged in fraud and
deceit: details of the deal between B.C. and CN Rail (the
“Revitalization Agreement”) were kept secret, while the province gave
assurances that no Aboriginal Title or Rights would be impacted by the
Agreement. These assurances are blatant lies. Recently leaked portions
of the Revitalization Agreement indicate that the Agreement is for up to
a period of 900 years, and that B.C. may transfer Crown Lands (where
Aboriginal Title continues to exist and has not been ceded or otherwise
addressed) to CN Rail for $1.00 (one dollar).

We wish to draw your urgent attention to information that the
Competition Bureau is bound to consider in rendering a decision on
whether or not to approve the proposed merger (de facto sale) of BC Rail
and CN Rail:

a) Aboriginal Title and Rights exist along the BC Rail corridor, and are
constitutionally protected under s. 35(1) of the Constitution Act, 1982;

b) The BC Rail line and other operations run directly through the
reserve lands of twenty-five Indigenous communities in British Columbia;

c) The province of B.C. has legal fiduciary obligations to meaningfully
consult with Aboriginal Peoples prior to undertaking or authorizing land
transactions that will impact Aboriginal Title and Rights;

d) Indigenous Peoples and communities along the BC Rail corridor will be
severely and negatively impacted by this transaction;

e) The province of B.C. has not meaningfully consulted with Aboriginal
Peoples about the proposed merger (sale) of BC Rail to CN Rail, and
instead has engaged in fraud and deceit with the aim of withholding the
details of the agreement, and its full impact, from Indigenous Peoples;

f) The province of B.C. is not in a legal position to enter or complete
this transaction without engaging in good faith consultations with
Indigenous Peoples.

Below, we set out further information regarding governments’ legal
obligations to Indigenous Peoples, and why we believe the Competition
Bureau must consider these facts prior to rendering a decision.

A. Aboriginal Title and Rights and Lack of Meaningful Consultation

The BC Rail corridor and rail bed are on Aboriginal Title Lands, and
it’s operations impact Aboriginal Rights. Both Canada and the province
of B.C. have fiduciary obligations to Indigenous Peoples regarding
Aboriginal Title and Rights in the BC Rail corridor which have not been

The province alleges that there are no Aboriginal Title or Rights issues
raised by this transaction, and therefore no duty to consult with, nor
to meaningfully address and accommodate Indigenous Peoples’ rights.

The province argues that there is no need to consult about the BCR/CNR
transfer because there is no “new” interest being created, merely the
continuation of an existing use. This is not a legally correct position.
The long-term lease (for a period of up to 900 years) transfers
effective ownership and control of the rail bed and rail line from B.C.
to CN Rail, and a transfer of this magnitude triggers a legal obligation
to consult. Any purported transfer of Aboriginal Title lands requires
the consent of Indigenous Peoples.

Indigenous communities who live alongside the BC Rail line have their
rights impacted daily, the building and on-going operation of the rail
line continue to impact upon Aboriginal Title and Rights and the use
that Indigenous Peoples can make of Aboriginal Title lands. A transfer
of effective ownership and operation of BC Rail from the provincial
Crown to a private corporation engages issues relating to fiduciary
obligations over the ongoing operation. Indigenous communities along the
BC Rail corridor adamantly oppose the transfer on their assessment that
this transfer will result in the violation of their Aboriginal Title and
Rights. This Indigenous opposition has been ignored, at the same time
that the Aboriginal Title and Rights impacts of this transfer have been

The Supreme Court of Canada has interpreted the constitutional
protection afforded to Indigenous Peoples rights under s. 35(1) of the
Constitution Act, 1982 and has said that meaningful and good faith
consultation is required where governments take actions that will impact
upon Aboriginal Title and Rights: Delgamuukw v. B.C.[1] The
Supreme Court has also said that Aboriginal Title includes the right to
choose to what uses these lands can be put. Where a transaction will
significantly impact the Aboriginal Title of Indigenous Peoples, as this
transaction will do, the consent of Indigenous Peoples is required.

In Haida Nation v. Weyerhaeuser,[2] the Haida Nation challenged the transfer and renewal of an existing Tree Farm Licence. The B.C. Court of Appeal held that there was an enforceable consultation duty on transfers or renewals of existing interests if they might impact upon
Aboriginal Title or Rights. The Haida and Taku River Tlingit v. Ringstad[3] cases clearly found a consultation duty on government prior to the proof of Aboriginal Title and Rights in court. Subsequent to the Haida and Taku decisions, the issue of whether government can approve transfers of corporations, without consultation, where Aboriginal Title and Rights will be impacted was considered in Gitksan and other First Nations v. B.C. (Minister of Forests),[4] where the B.C. Supreme Court ordered government to engage in good faith consultations with the aim of seeking “workable accommodations” of the Indigenous Peoples’ rights.

There has been no consultation with Indigenous Peoples. Instead, the province has acted in bad faith by keeping the details of this Agreement secret from Indigenous Peoples.

B. Interests in Reserve Lands

Where BC Rail operates on rights-of-way running through reserve lands
there are significant questions regarding the legality of B.C.’s
proposed transfer or long-term lease of these rights-of-way. The wording
of the right-of-way grants may prevent this transfer of effective
control and usage. The federal government must approve these transfers
as they hold reserve lands in trust for Indigenous Peoples, and the
consent of Indigenous Peoples is required.

As the full contents of the Revitalization Agreement have been kept
secret we cannot comment on the full impact, but it is likely that
conditions of the grants creating the province’s rights-of-way may
prevent a transfer of the nature contemplated by the Revitalization
Agreement. This issue affects interests in reserve lands, directly
engages federal fiduciary obligations, and must be addressed prior to
approval by the Competition Bureau.

C. Competition Bureau’s Legal Obligation to Consider government’s
failure to consult:

The UBCIC is concerned that the province of B.C. may have mislead the
Competition Bureau by claiming an exclusive right to transfer its
interests in BC Rail without first addressing the constitutionally
protected rights of Indigenous Peoples. In making the decision of
whether or not to approve the merger (transfer) of BC Rail to CN Rail
the Competition Bureau is under an obligation to inquire into the full
extent of governments’ consultations with Indigenous Peoples.

The Supreme Court of Canada has found that federally-created tribunals
must consider whether or not government has fulfilled their fiduciary
legal obligations to Indigenous Peoples in rendering their decisions. In
Quebec (A.G.) and Grand Council of the Crees v. Canada (N.E.B.)[5]
<#_ftn5> the Supreme Court said that the National Energy Board “must
exercise its decision-making function, including the interpretation and
application of its governing legislation, in accordance with the
dictates of the Constitution, including s. 35(1) of the Constitution
Act, 1982.”

The constitutional rights of Indigenous Peoples must be addressed. In
the absence of evidence of consultation this transaction cannot be
approved. There has been no consultation; Instead, the province of B.C.
willfully mislead and lied to Indigenous Peoples about this transaction.

The Competition Bureau must be mindful of existing constitutional rights
and consider the privatization deal from the perspective of the impact
that it will have on Aboriginal Title and Rights. Absent proof of
government’s fulfillment of its legal obligations to Indigenous Peoples,
this merger (transfer) cannot be approved.

D. Recommendations:

The UBCIC recommends that:

1) The Competition Bureau require both the federal and provincial
governments to show evidence that they fully and meaningfully consulted
with Indigenous Peoples about the impact of this Agreement on Aboriginal
Title, Rights and interests in reserve lands including a full and complete disclosure of the details of the transactions, so that Indigenous Peoples can fully assess its impact;

2) The Competition Bureau advise the province that it considers the
application incomplete absent evidence of full, meaningful, and good
faith consultations with Indigenous Peoples, including a full disclosure
of all details of the agreement; and

3) That the Competition Bureau undertake a full public inquiry about
this matter, or request that the Competition Tribunal do so. Hearings
should be held in the Indigenous communities along the BC Rail corridor
whose Aboriginal Title, Rights and interests in reserves lands will be
directly and significantly affected.

The Competition Bureau is under a legal duty to refuse to approve this
transaction absent evidence that the federal and provincial governments
have fulfilled their fiduciary obligation to consult with Indigenous
Peoples. That consultation has not occurred. We urge the Competition
Bureau to hold the federal and provincial governments to account for
their failure to address the Aboriginal Title and Rights impacted by the
BC Rail/CN Rail deal.

We look forward to hearing from you how the Competition Bureau is
considering and addressing the constitutional rights of Indigenous
Peoples in its assessment of the BC Rail/CN Rail transaction. We would
be pleased to provide you with further information if this would be of

Yours truly,

Union of B.C. Indian Chiefs
[Original signed by Chief Stewart Phillip]
Chief Stewart Phillip

C.C.: Union of BC Indian Chiefs’ Chiefs Council
First Nations Summit, Task Group
Vice-Chief Shawn Atleo, Assembly of First Nations, BC Region
National Chief Phil Fontaine, Assembly of First Nations, Ottawa

Honourable Lucienne Robillard
Minister of Industry
11th Floor, CD Howe Building
235 Queen Street
Ottawa, Ontario K1A 0H5 Facsimile: (613) 992-0302

Competition Tribunal
Thomas D’Arcy McGee Building
90 Sparks Street, Suite 600
Ottawa, Ontario K1P 5B4 Facsimile: (613) 957-3170


More here, where I found this quote:

Chief Phillip concluded, "We recognize that the Agreement represents much more than the consolidation of two railways. Rather, it is a massive land swap from a former provincial crown corporation to a private third party interest ..."



Ask Rafe to help. Others, too

Received this morning, from Rafe Mair. I've already sent a message to him about BC Rail and
July 14, 2009. I hope many others will write to him - and write to others, too. Time is so short but e.mails are so fast. We can do this! - BC Mary.


Hi everyone ... Rafe here asking a favour.

My website, www.rafeonline.com is humming again. I plan more than one blog per week in addition to my weekly article on www.thetyee.ca

Would you be kind enough to pass this on to your address book asking them to do the same?


Thursday, June 25, 2009


Basi-Virk. BC Rail leak from cabinet questioned

Source of insider BC Rail leak from cabinet questioned in court

VANCOUVER – The office of Premier Gordon Campbell controlled the controversial sale of BC Rail with an "iron hand," a lawyer alleged Thursday at the political corruption trial involving former government aides.

Kevin McCullough, the lawyer for Bob Virk, one of two senior former political aides accused fraud, breach of trust and accepting benefits in exchange for confidential information about the bidding for BC Rail, read out a series of e-mails leading up to the sale of the railway.

The lawyer pointed out that the premier's office sent an e-mail to Kevin Mahoney, a vice-president of BC Rail, suggesting who should be invited to the northern transportation conference in November 2002

"This is the set-up breaking the election promise," McCullough said, referring to the fact that the premier had won the election on a campaign promise not to sell BC Rail.

"The premier's office was engaged in substantial control of the BC Rail deal and the BC Rail agenda," the lawyer told Justice Elizabeth Bennett.

The lawyer was trying to show that the defence has some e-mails from BC Rail showing the involvement of the premier's office but is seeking further disclosure of e-mails from the premier, his chief of staff at the time, Martyn Brown, and other cabinet ministers.

The defence first has to convince the judge of the likely relevance of the e-mails before the judge will make a disclosure order.

But earlier this week, government lawyer George Copley revealed the e-mails being sought may have already disappeared.

Copley presented two affidavits to the court, including one from Rosemarie Hayes, manager of the government's e-mail system, who said e-mails cannot be retrieved after 13 months.

The defence applied in June 2007 to get Campbell's e-mails, as well as those of cabinet ministers related to the privatization sale of BC Rail, which was sold to CN Rail for $1 billion in 2003.

The missing e-mails pertain to 15 or 20 people who are on the Crown witness list.

On Thursday, Copley provided some further clarification, saying if the e-mails weren't printed off and put in files, they do not become part of the operational records of government.

Transitory material, which he described as "routine records of no value," are discarded or purged from the computer system, he said.

Copley said questionnaires have been sent to nine people who have searched the files and, once their answers are returned, "we will file nine separate affidavits" to try to answer some of the questions posed by the defence lawyers.

"There may be no explanation," the lawyer said. "No filing system is perfect."

Defence lawyers were shocked to learn that e-mails that could be crucial to the defence case may have been allowed to disappear.

Michael Bolton, the lawyer for Dave Basi, told the judge Thursday that administrative and operational records of government ministers, deputy ministers and assistant deputy ministers are supposed to be retained for 10 years.

He said the unprecedented police search of the legislature on Dec. 28, 2003, should have alerted the government and its staff to retain the records from that period.

At the time of the police raid, Dave Basi was a senior aide to then finance minister Gary Collins and Virk was a senior aide to then transportation minister Judith Reid.

Aneal Basi, who worked in government communications, is accused of money laundering.

The case has been adjourned until next Tuesday.

Earlier in the day, McCullough said the RCMP investigation found that government lobbyists were getting inside cabinet information about the pending BC Rail sale in 2003 but police never fully investigated the source of the leak.

"The Crown's theory in this case was that [Bob] Virk and [Dave] Basi were disclosing confidential documents for benefits," the lawyer told the judge.

"There were other sources of information," he said, reading out a series of emails involving Erik Bornmann, Brian Kieran and Jamie Elmhirst, who were partners in Pilothouse, a lobbying firm that in 2003 was representing OmniTrax, a Denver-based company that was bidding on BC Rail.

The e-mails quoted what was being discussed in cabinet meetings.

When Kieran was interviewed by the RCMP, he said Virk was the source of the insider cabinet information because transportation minister would "debrief" Virk after cabinet meetings, McCullough said.

And when police interviewed Bornmann, he said Basi was probably the source, the lawyer pointed out.

McCullough told Justice Elizabeth Bennett that police bluntly asked Bornmann if he had a source in cabinet and he replied no. But Bornmann mentioned that he had conversations with then deputy premier Christy Clark because Bornmann was a friend of Clark's husband, Mark Marissen, he added.

At the time, Bornmann and Marissen were deeply involved in the federal Liberal party – Marissen was B.C. campaign chair for Paul Martin's successful bid for the federal leadership and served as B.C. campaign co-chair for the 2004 and 2006 federal elections.

Clark quit provincial politics in 2004 and now hosts a radio show on CKNW.

McCullough said when RCMP interviewed the transportation minister, Reid, and the finance minister, Collins, in 2004, both adamantly denied they discussed confidential cabinet information with Basi and Virk.

"The RCMP goes to Collins, who denies telling information to Basi and Virk," the lawyer said.

"They never go back to Bornmann," McCullough said, adding the Mounties tailored their investigation to target Basi and Virk.

Neal Hall's full report is HERE.



Bill Tieleman: May be "no explanation" for missing e-mails and more ...

Read Bill Tieleman's column for today, June 25, 2009 HERE.

See also "Delete my #'?*'ing expletives, Mr Premier" from North Shore News ... HERE.


North Van's Grumps said... [on Bill Tieleman's blog]
Whats his name, the lawyer representing the interests of the Executive Council over the Courts [George Copley - BC Mary], stated that all of the emails have been deleted..... sooooooo at the Ministry of Labour and Citizens's Services at Records Management ...PAC Submissions and Approvals between 1997 to 2007, there hasn't been one submission made by the Executive Council to dispose of their documents between 2001 and 2007.

How did the emails get destroyed then if these people who serve on the Public Documents Committee which consists of the chief executive officer of the museum or a person designated by the chief executive officer, a person designated by the minister responsible for the administration of this Act, the Comptroller General, and 3 other persons to be named by the Lieutenant Governor in Council didn't elect for their disposal... which is then required to be approved by the Legilslative Assembly where the NDP and other like minded souls would vote AGAINST the destruction of the evidence.

The PDC meets regularly to review records retention and disposition schedules submitted by ministries and other government bodies for the Committee's approval. Representatives from ministries and government bodies, as well as the Corporate Records Management Branch, attend each meeting in order to answer questions from the members of the PDC. If the PDC approves, it submits the records schedule to the Select Standing Committee on Public Accounts (PAC), which is a Committee of the Legislative Assembly. The PAC in turn recommends approval of the records schedules to the Legislative Assembly.



Before the 2003 police raid on the B.C. Legislature, Gordo knew they were coming and there was time to destroy evidence

Years have passed. In 2009, we know Gordon Campbell much better. We know him as a micro-manager with an obsessive determination to have his own way. Given his style of leaving almost nothing written into the record on the BC Rail deal (not even the deal itself!) ... and given the deletion of 4 years' worth of relevant e-mails ... does it seem logical that Gordo sat with hands folded and a bag over his head for the 3 weeks in December 2003 during which he knew without a shadow of doubt that uniformed police would come looking for evidence? And while police were knocking on Christy Clark's door, Erik Bornmann's door and others' ... didn't any policemen show up at Gordo's door?? - BC Mary

Reprinted from:
The Legislature Raids - January 16, 2008

By Three Concerned Canadians

During the month of December 2003, key people in the B.C. legislature knew that an unprecedented police raid was coming. The public ever since has been asked to assume that the Campbell government and staff sat meekly for 28 days, doing nothing to protect themselves. We question that assumption, in the light of the Special Prosecutor's continuing refusal or inability to disclose documents required by the Basi, Virk, Basi Defence.

Dec. 1, 2003 - B. C. Attorney General Geoff Plant is told by his staff that a case requires the appointment of a special prosecutor and may involve a search of the B.C. legislature.

Dec. 7, 2003 - Mandeep Sandhu is elected to the executive of the Liberals in Esquimalt-Juan de Fuca.

Dec. 9, 2003 - Police raid Mandeep Sandhu's home in Saanich. Police question Sandhu and seize a computer. Sandhu is later released. No charges are laid.

Dec. 11, 2003 - William Berardino is appointed special prosecutor to oversee an investigation involving a member of the Victoria police and appointees at the legislature.

From: IN DEPTH - B.C. RAIDS. CBC News Online, Sept 14,2004.

This CBC snippet says that the appointment of Berardino on December 11, 2003 involved a member of Victoria police (since charged and convicted of obstruction of justice); and that it also involved "appointees at the legislature". Does it matter whether the Special Prosecutor was David Harris or William Berardino? The point is: a special prosecutor was appointed without public knowledge of it. Hansard records the Opposition Leader's protests in the legislature, which will be mentioned later.

Complicating factors not yet mentioned by the Basi Virk Basi Defence team entered this scene in December 2003.

Bill Berardino was appointed by then-Attorney General Geoff Plant with whom Berardino had formerly been in practice. Is this an arm's length appointment? Or was it the basis for building a collegial team?

Special Prosecutor for the different set of events leading up to the Legislature “raids” was David Harris (p.8, item 57, Application for Disclosure). He was not at arm's length, either. Harris was the law partner of Bill Berardino. Harris was the one giving legal advice on the day of the raids. Was this a collegial team beginning its work?

And then there is the intersecting relationships between Plant, Berardino and Harris....when presto! Harris is strangely supplanted by Berardino. When? Why?

But then Harris seems to have disappeared. Bill Berardino, apparently, added matters concerning the Legislature raids to his responsibilities.

When? Why? asks Robin Mathews.

"Can we see a pattern in the extraordinary Application for Disclosure of February 26, 2007? To an average, concerned, and reasonably intelligent observer, a pattern seems to appear throughout which suggests the Special Prosecutor has been utterly unable or unwilling to fulfill his responsibilities, and that the RCMP has been careless or purposefully obstructive in producing essential materials. I would say it also reveals that the presiding judge has failed to be in control and to insist upon the speedy, competent, fair, and full opening up of materials essential to a trial of integrity." - Robin Mathews. Vive le Canada, March 5, 2007.

The word "collusion" springs to mind. In the month of December, 2003 -- even though the legislature came together on a special sitting of December 16, 2003 -- not a word was said about the appointments of two special prosecutors for two ongoing and intertwining investigations.

The list gets longer about the number of people who knew these investigations were underway before the raid on the legislature even took place. And it is really hard to imagine that the ever-controlling duo of Gordon Campbell and Martyn Brown were kept out of that loop. What it looks like -- dare we say it? -- is a team seemingly coming together ... doing what??

Now we should look at Hansard Debates.
This quote from Hansard Debates is an important part to take into consideration. MacPhail begins a series of questions about what she calls the "secret appointment" of Berardino in early December.

From line 1920 to the end of the page is very interesting - (Coleman constantly tries to skirt the issue of the exact date of the appointment of Berardino). MacPhail does remember and she is clearly tying it into a memory of a special meeting of the legislature called about the IWA.:

J. MacPhail [Leader of the Opposition]: Yes, I know. The special prosecutor was appointed in early December, and clearly, the Solicitor General is saying that the Attorney General didn't tell him anything about that. What role, if any, is then required of the Solicitor General? The Legislature was sitting while the special prosecutor was appointed. We had a special sitting to deal with ordering IWA workers back. Cabinet was meeting, the building was busy, and there'd been a special prosecutor appointed that no one knew about — no one knew about.

The Hansard debate list for December 2003 reveals that the legislators break for Christmas holidays on December 2. Hansard clearly shows them wishing each other happy holidays, the Lt-Governor Campagnolo is called in to formalize the closure of the sitting, etc.

But then you will notice a "special" return of the legislature on Dec. 16 (just as Joy said) with the forest issues clearly on the agenda. (That may have been an oh-so-convenient excuse that allowed some of the BCLibs to assemble without people wondering why. This may be cynical - but on the face of it, the people of B.C. have lots of reasons to be cynical.)

Isn't it the appointment itself, without public knowledge of it, (and taking place before the raids) that is the essential question here? And that there was time to have tampered with documents held by the Ministry of Finance, the Ministry of Transport, or their Ministerial Assistants before the raid took place?

Because to launch their unprecedented raid, the RCMP had to seek the consent of the Speaker of the House in order to enter "his" House. Solicitor General Rich Coleman was aware of that.
But it is not clear why he felt he had to accompany the RCMP on a flight to Kamloops to obtain Claude Richmond's signature. What was his role in this trip? Whose side was he protecting?

So a special prosecutor could have been appointed on or around Dec. 11, 2003, which is 17 days -- more than 2 weeks -- before the raids.

This was a government 2 years into its 4-year mandate with a massive majority of 77 Members and a 2-Member Opposition. Had they grown sloppy? Possibly. For example, Notice of Application for Disclosure, para 53 ... without specifying where the information came from ... does say this: "On the application for the search warrants, they advised Mr Justice Dohm that Minister Collins was not a target of their investigation." The astute observer might doubt that such a statement could have any credence on that date (December 12, 2003).

So if they had made some errors in judgment, would a powerful sitting government be eager to help in revealing any shocking displays of its own dirty laundry? We don't think so. We think there more likely would have been an almost irresistible urge to cover up evidence.

Look: There was time. There was a motive. There was opportunity. There was a team. There was the quietness of the Legislature at Christmas when many people were off duty. Survival -- even political survival -- creates strong temptations. The human mind might well consider tampering with documentary evidence in the offices of the Ministry of Finance, the Ministry of Transport, or their Ministerial Assistants with so much quiet time before the raid took place. Who would ever know?

The facts show that the police raid on the B.C. Legislature could not possibly have been a surprise to the sitting government for a full 28 days.

The facts show that the sitting government did not maintain an arm's length approach.

Consider this, by Robin Mathews:

"More important by far are the substantial reasons Defence counsel give for the Application [for Disclosure]. I will cite only some of the most revealing ones.

(1) They state that (item 38, page 5) “On November 17, 2003, the RCMP learned through a series of intercepted communications that Mr. Basi advised OmniTRAX that Minister [Gary] Collins, [minister of finance] had authorized a consolation prize [perhaps a veiled bribe?] for Omnitrax in exchange for them staying in the bidding process…”[for B.C. Rail]. [Negotiations with OmniTRAX for the Roberts Bank spur line were terminated later on advice from the RCMP that the matter was tainted.] Minister Collins met with omniTRAX representatives on December 12, 2003, (page 8, item 62) but “the RCMP elected not to conduct any further investigation of Minister Collins”.

So one day after the appointment of Berardino on Dec. 11, Collins is meeting with Omnitrax on Dec. 12 - and even with a special prosecutor in place, and the wiretap tip about Collins and the "consolation prize".... no further investigation of Collins is decided. (And it is quickly said after the raid that no government officials are involved.)

The heart of these questions: Could such matters be causing the bewildering efforts by the government, 4 years later, still desperately seeking to avoid disclosure?

Isn't it logical to assume that the same sitting government in 2008 would quite honestly be unable to provide documents which had been destroyed in December 2003? Do Basi, Virk, or Basi know? And if they know, will they break the logjam by giving that evidence?

The people of British Columbia must judge these matters for themselves as the pre-trial hearings continue: January 18, January 28, January 29, 2008. The trial for the 3 lesser players in these scenes, may begin on March 17, 2008. We hope so.

I have found only one direct quote from Campbell: "I heard that it had to do potentially with money laundering and drugs. That's the extent of it," Campbell said of his briefing. "Everything the solicitor-general [Rich Coleman] did, was done with the approval of the RCMP." My hastily scribbled note says only "Page 3" indicating that it came from the 8,000-page document dump at the Basi Virk trial. - BC Mary.



Delete button wipes out 'transparency' in government

alled for 'thorough, complete, diligent investigation'
Province provincial affairs columnist Michael Smyth

The destruction of thousands of government e-mails in the B.C. Rail scandal is astonishing and disturbing, especially when you consider the Liberals' years of assurances about the integrity of the investigation and the need to preserve evidence.

Immediately after the cops raided the legislature in 2003 it was Premier Gordon Campbell himself who said no stone must be left unturned in the search for truth and accountability.

"There is an ongoing investigation and I've told everyone to be as open and transparent as they can about the entire situation," Campbell said, while calling for a "thorough, complete and diligent investigation in the public interest." Job 1 of any thorough investigation is the preservation of evidence. But now Campbell is the same guy shrugging off the disappearance of thousands of e-mails with a lame "we followed the law" excuse.

If that's true, then the law is an ass. The government's own rules on the preservation of e-mail records is shot through with loopholes, allowing politicians and bureaucrats to permanently delete e-mails that are "temporary" or "transitory" in nature, whatever that means.

It's precisely because those vague terms are so wide open to interpretation that the law contains specific overrides, requiring the government to preserve records that have "legal" or "evidentiary" value.

So did the government really follow its own laws when it vaporized thousands of e-mails? You can bet a gaggle of lawyers -- all working on your dime -- will now have a grand old time arguing the point in court.

But it gets more pathetic than that: It was only a few weeks before the cops raided the legislature that Campbell's own top deputy was caught deleting e-mails to prevent their release to the public.

"I delete the stuff all the time as fast as I can," Ken Dobell admitted back then, earning himself a tongue-lashing from the province's freedom of information commissioner and a promise from the government that e-mails would not be destroyed.

"E-mails are documents of record and they should be treated accordingly," cabinet minister Sandy Santori scolded Dobell.

"It's a concern to me that he may not have had the knowledge in terms of what his responsibility was with respect to those documents." Santori subsequently resigned from the Campbell cabinet -- while Campbell put Dobell in charge of reviewing evidence in the B.C. Rail investigation before it was released to the police! Sadly, there are probably people in Victoria smiling from ear to ear about all this.

Despite Campbell's lofty talk about openness and transparency and a diligent quest for justice, the government secretly hopes this whole ugly corruption case goes off the rails and never makes it to court.

Whoever pushed the delete button on all those e-mails brought that possibility one step closer to reality -- and insulted all British Columbians, who deserve to know the truth about the B.C. Rail scandal.


Suggestion: look up Michael Smyth's column in The Province today, and leave a comment. I did. I said thanks to Michael, and invited him to join us in our efforts to stop further BCRail giveaways on or before "BC Rail Day". Meantime, I thought it might be helpful to dig into the Archives here, and reprint the statement from "Three Concerned Canadians" who realized that the Campbell Gang had ample time ... before the police raided the Legislature ... to interfere with the BC Rail evidence.

- BC Mary.



"The BC Rail deal stinks." Hansard record of debates in the BC Legislature. April 21, 2004.

From Hansard - April 21, 2004.
Jenny Kwan, MLA (NDP), Paul Nettleton (Independent MLA for Prince George-Omineca and disillusioned BC Liberal), Kevin Falcon (Minister of Transportation) and Geoff Plant (Attorney-General).


P. Nettleton: Further to my question from earlier this week regarding the giveaway sale of B.C. Rail and the concerns raised by the CSTC chief, Harry Pierre…. In his letter I quoted, he goes on to say: "You should be aware that despite the recent amendments to the British Columbia Railway (Revitalization) Amendment Act, 2003, or Bill 89, a change in control or a transfer of rail tenures in the absence of the adequate consultation and accommodation with CSTC members is not only vulnerable to a legal challenge but will certainly pass a defective title which would become a liability to the acquiring company."

My question is: in this government's desperation to push this deal through, no matter what, has the minister considered the consequences of defective title being passed to CN Rail and the implications not only for CN but also for the provincial government, and its cumulative effect on the people of B.C.?

Let's face it: the government's B.C. Rail deal stinks. From every angle it was a bad deal when the Premier first suggested it, and it's an even worse deal now.


Mr. Speaker: Order, please.

P. Nettleton: Will the minister now do the right thing and scrap the deal while he has a chance?



Mr Krog, it's now 3 days later ...

Mr Krog & Associates: It is now June 25, 2009 and I have had no response whatever to my urgent message sent 3 days ago, and copied below. Since the request is TIME SENSITIVE, and concerns British Columbia's future, please give this immediate attention.

After adding this note on 25 June 2009 (today), I re-sent my appeal for help but I am steamin' mad that these well-paid Opposition members haven't learned to do 2 or 3 things at once, let alone multi-tasking. We now have only 19 days before it's Game Over for BC Rail. Please, everybody: write to these people. To Krog. To Carole James. To your favourite journalists. Explain to them. Sheesh.

And by the way, other rumours say that no approval or consent was obtained for CN to be running trains across First Nations lands either ... another deal-breaker. God knows what else is in those secret contracts. So please write to Gordo too, and say "SHOW US THE CONTRACTS!" If that doesn't work (and I'm pretty sure it won't, but we gotta try everywhichway, if you get my drift) please help us get an injunction to stop further benefits from sliding into CN pockets until the people of BC actually SEE the contracts we're supposed to be agreeing to. And the deadline is now ... - BC Mary.


Y'see, on Jun 23, 2009, I wrote politely, as follows:

Leonard Krog Opposition critic for the Attorney General
Dear Mr Krog,

It's only 21 days until July 14, 2009, the pivotal 5th anniversary of the BC Rail - CN deals.

The Privatization and Revitalization Agreements are still secret and that, in itself, cries out for redress. If rumour is true, further benefits to CN will be automatically triggered on that day without British Columbians even knowing. That is fundamentally a legal outrage.

According to rumour, there is a repossession option on a one-time-only basis, triggered on this date, too. I understand that CN is in default on at least one promise (to purchase 600 new railcars) which is a deal-breaker. How can British Columbians exercise their legal options if they have never seen the agreement? Another legal blasphemy.

Others, commenting on my web-site, are worried and angry about this situation. One of them has proposed what seems to be an excellent remedy and I ask your assistance: to seek an injunction before July 14, 2009 to stop any further activity on the BC Rail - CN agreements until:

* the terms of the deals are fully opened to the public,
* the public has time to consider the terms,
* it is proven that nothing illegal, no corruption or wrongdoing entered into that important agreement.

There is no time to lose. I ask you now, will you undertake immediately, on behalf of the people of British Columbia, to seek and obtain that injunction?

Mary Mackie.

BC Mary
The Legislature Raids



Basi Virk / BC Rail - in BC Supreme Court today (June 25) starts 10:00 AM. Open to the public.


Vanished e-mails undermine trial

A CanWest newspaper is turning against the Campbell Government?
Times Colonist editorial - June 25, 2009

The apparent loss of four years of provincial cabinet e-mails strikes a blow at any notion that the B.C. Liberals see the need to be accountable for their actions.

The destruction of all provincial cabinet e-mails from 2001 through 2005 was revealed in B.C. Supreme Court this week, as part of the trial of three former government employees in a corruption case. The charges against them were laid in the wake of police raids on the legislature in December 2003.

Two weeks ago, defence lawyers sought the disclosure of e-mail records of several members of cabinet and Premier Gordon Campbell. In response, a lawyer for the executive council said the e-mails were not recoverable.

That e-mails written by cabinet ministers on key issues could have been deleted is almost unbelievable. The government has an obligation, after all, to retain important records. To that end, it backs up its electronic data, including e-mails, on servers housed in at least two locations in Greater Victoria.

If these cabinet e-mails are truly gone, that means there was a concerted effort to get rid of them. And that effort would have been made after the legislature raid and after the three men were charged. It would be hard to imagine that cabinet ministers did not discuss the central issue in the case, the $1-billion sale of B.C. Rail to Canadian National, either before or after the raid.

The e-mails might have provided information that would help the accused argue their case -- or that might have undermined their defence. The e-mails might have made politicians look wise or foolish. We will never know, because the evidence is gone.

Campbell says that all records that should have been kept under government laws, have been retained.

That provides no consolation, because the potential value of these records should have been noted by the government. Preserving them, rather than destroying them, should have been the priority.

The Document Disposal Act requires that electronic records be kept for seven years, unless they are purely temporary, such as a confirmation of a lunch date. We don't expect that every e-mail written or received by 30,000 government employees would need to be saved for future reference.

But cabinet e-mails reflect the reasoning of the most powerful people in the provincial government. These documents could have provided valuable background information that would give context for the actions of ministers. They could have made a huge difference in the court case as well.

The government has systems that allow the retention of records. All government employees -- and especially cabinet members -- need to be aware of them, as well as the need to retain documents that might be needed in a few months or a few decades.

What's gone is gone, unless backups can be found. But the government needs to ensure that other vital documents are not destroyed under its watch.

If cabinet communications, especially those potentially relevant to an ongoing criminal case, are not deemed worthy of retention, what is? And, more importantly, what else has been electronically shredded by the Campbell administration?

The full Times Colonist editorial is HERE.


Wednesday, June 24, 2009


Robin Mathews: An Ordinary British Columbian and The BC Rail Scandal


What does an ordinary British Columbian do "reporting" at the Basi,Virk, and Basi pre-trial hearings that the conventional press and media don't do? What is the ordinary British Columbian's role there?

I've asked myself that more than once. And I suspect there are readers who sometimes say, "Why does he focus on that, or those things?"

Let me explain how a "role" has shaped over the months and years.

I took it for granted at first that a person doesn't talk to lawyers for either side, but does a clean reporting job uncontaminated by the "bias" of either Crown or Defence.

But that was wrong.

It was wrong because counsel are chief actors, have loads of information (which they sometimes impart), and in the 'outside court' pauses are willing to put arguments in summary form for those who inquire. Except with a person like George Copley (lawyer for the Executive Council/premier and cabinet) who somehow thinks he is above discussion with (I mean it) representatives of the larger population, most will devote a serious few minutes to discussion. They often smile when being crowded to a position and are too smart to be trapped into the statement or admission someone wants to wring from them.

They are also valuable because of the complete collapse of "open court procedures" in B.C.'s Supreme Court system. I will return to that point - as a major one.

Who are the people in the courtroom?

To begin, they are the lawyers for the Crown, the lawyers for the Defence. They represent and work for their clients, first. The Great Theory is that they work for their clients, clinging to all the hallowed procedures, ethics, and ideals of our Majestic System - and by so doing they serve JUSTICE. Would that were true.

I would say (as an ordinary British Columbian reporting from courtroom 43) something, for instance, about Mr. George Copley's delivery of two affidavits with information that the government of B.C. permitted the disappearance of apparently absolutely crucial (2001-2005) evidentiary material connected to the accusations against Basi, Virk, and Basi.

I would say that the actions of Mr. Copley and those he represents must be suspected as opportunistic, dishonourable, and sleazy moves in a set of power plays that are intended to defeat justice in the province of B.C. (I said the actions "must be suspected as"....)

(Conventional journalists, incidentally, are very, very unlikely to make such a comment.)

The lawyers present also operate under the huge burden of the judge: his or her personality, political prejudices, ambitions, and moods - quite apart from the judge's real role of "judging" relevant material, relevant argument, relevant and reasonable objections...and more.

The legal "fraternity' is a close community. The ordinary Canadian sits in court, is distressed at the judge, and reports distress to the readers. Lawyers in the court are not so free. They may score against a judge today - but they may have to come before that judge (who wants revenge) over and over and over. And so lawyer willingness to call a judge into question is altogether too limited. Justice and the larger population lose.

But, you say, the press and media balance that. Sorry, they don't. If journalists work for a reactionary media chain like CanWest, the chances may be that owner-interest is to back corrupt administrations, corporations ... and courts. And, of course, reactionary media chains tend to employ reactionary writers and others. Just look at Maclean's Magazine which has become - to my mind - the sewer outlet for the flashiest, emptiest, Right-Wing drivel, since its re-birth on the Right.

There is also, here, a little of the lawyer problem. Members of the press and media want access, when necessary, to many, many things that need a judge's approval to free up those things. Naturally, journalists don't want to create blocage. And so, for instance, in the Basi/Virk/Basi pre-trial hearings, the only person to criticize the behaviour of Madam Justice Elizabeth Bennett has been ... me.

This is a truly delicate matter. I do not want, for a second, to misrepresent the behaviour of the presiding judge. But I believe any request that I might make for information on the public record would meet more difficulty than the same request from a 'compliant' journalist. I may be wrong. But the ravaging of "open court" proceedings has been so huge in B.C. it is hard to know exactly.

I have written again and again that the Patrick Dohm "secrecy" rules, called "practice directions" put in place by Associate Chief Justice Patrick Dohm - to prevent the public from having information in criminal trials - are oppressive. In a trial dealing with huge allegations of public corruption, possibly travelling all the way into the heart of the legislature and the cabinet, every effort should be made to make certain the population is as fully informed as possible. It is a matter of importance to every British Columbian, and "the court" should make every effort to supply information for that public. I would say that in the Basi/Virk/and Basi case the opposite has been true.

I believe that fact to be so obvious that a reasonable British Columbian might ask if "the court" (the judges involved) are not biased towards serving the interests of the Gordon Campbell power group.

In such a case - the Basi/Virk/and Basi case - NOTHING (I allege) has been done to show responsibility to the British Columbia population in the matter. I have lambasted both Patrick Dohm and Elizabeth Bennett on that matter. I AM THE ONLY ONE who has. I know that most people in the gallery, in this matter, believe the censorship, refusal to make documents public, and the lack of daily available print (or electronic) transcriptions of procedure are burdens that they should not, in a 'free society' have to carry.

I have seen no other observer in the gallery make that idea public.

I've answered the question I asked already.

No one, it seems, but an ordinary British Columbian as reporter is willing to pull at the powdered wigs of the judges to see if there is anything underneath. No one but that kind of reporter is willing to call into question the work and role of lawyers in the court. I have asked more than once if Special Crown Prosecutors undergo any kind of review to make sure they are not 'patsy' appointees of a government wanting (undisclosed) allies in court. I base the question, openly, on the appointment as Special Crown Prosecutor of William Berardino. I have asked that question in a letter to Madam Justice Elizabeth Bennett - who would not reply to my letter.

No one, it seems, but an ordinary British Columbian as reporter is willing to draw in tight and to ask searching questions about the relations of the press, lawyers, the court, members of government, and corporate/government policy.

To illustrate that point, I'll conclude with an observation. Mr. George Copley entered court with two affidavits from government employees upon which he based his statement that materials that might well be absolutely key in the defence of the accused in the Basi/Virk/and Basi trial - four years of them at least - have "disappeared". The Defence lawyers were "shocked", to put the matter mildly.

Madam Justice Elizabeth Bennett sat imperturbable, and said something trivial - if I remember correctly - like 'you can't know the relevance without seeing the documents'. I do not wish to report her incorrectly, but I believe a judge should have been astonished. I believe (with respect) she should have said right there and then: "I want the two writers of those affidavits in this court as soon as possible. I want them to state in this court, and on the record, how this happened and if there is any remedy available. Are there back-up records somewhere? In a number of places? Anywhere? Because", I believe she should have said, "the destruction of what may be relevant evidence is a most serious matter, and I - as judge on these pre-trial hearings - want everything possible about this extraordinary matter on the record as answers to MY questions as well as to those of the Defence counsel."

And I think she should have gone on to say the matter was not one simply for the Defence but a matter that makes a large impact upon the overall conduct of justice in Canada and she, herself, as judge, must be concerned with that fact and must take a major role in bringing the matter to close, public examination.

She did not say any of those things. It would be unfair (except metaphorically) to say that, instead, she yawned. I was surprised at her failure of reaction. I report that here. It seems that only an ordinary British Columbian acting as reporter in courtroom 43 has such reactions - and is willing to report them. Maybe, then, an ordinary British Columbian shouldn't be allowed to report?

Maybe Morley Safer was right when he said he would trust citizen reporters about as much as he would trust a citizen surgeon. Maybe he was right. But he might not be....


Tuesday, June 23, 2009


Missing files leave lawyers for Basi, Virk in disbelief

‘At the moment, our view is that these must be recoverable,' attorney says

Mark Hume
The Globe and Mail - June 23, 2009

Vancouver — The loss of thousands of cabinet and executive branch e-mails concerning the biggest privatization deal in British Columbia's history is so shocking that defence lawyers in a politically charged trial still can't believe it has happened.

Both inside and outside the Supreme Court of B.C. yesterday, lawyers were expressing disbelief that e-mails from 2001 to 2005 related to the $1-billion sale of BC Rail could have been purged from the government's data system while a trial concerning the deal was before the courts.

“At the moment, our view is that these must be recoverable,” said Michael Bolton, who, together with other defence attorneys, has sent a letter to the government's lawyer asking for a detailed explanation of how a data search was done.

“We don't accept at face value that these things have been lost … because e-mails are recoverable as long as there are backup or storage tapes,” Mr. Bolton said.

Court was told on Monday that e-mails being sought by the lawyers defending three former provincial employees – Dave Basi, Bob Virk and Aneal Basi – are not recoverable because the government doesn't keep electronic backup tapes more than 13 months.

Wiped out, according to George Copley, a lawyer representing the B.C. Executive Council, are four years of tapes covering the crucial period when the government negotiated the sale of BC Rail to CN Rail.

Mr. Copley filed affidavits from government officials saying none of the e-mails can be recovered.

That would mean possibly tens of thousands of e-mails sent to and from those at the top executive level of the B.C. government have vanished, leaving a gaping hole in the official record of the BC Rail deal.

Mr. Bolton said it would be premature to speculate on how that might affect the trial, but he did say that other cases have collapsed when it was found important evidence had been destroyed.

“It's a serious matter if evidence that ought to have been preserved, that is relevant and material, has been allowed to disappear,” he said.

Mr. Bolton said at issue are the e-mail records of “15 or 20 key individuals – all witnesses in the case,” including Premier Gordon Campbell and his closest staff members.

Dave Basi and Mr. Virk are accused of leaking details about the pending rail deal to a Victoria lobbying firm that was representing a rival bidder to CN Rail.

But the defence is arguing the accused men were acting on the orders of their superiors – and they maintain the e-mails could prove that.

Kevin McCullough, who represents Mr. Virk, told court almost all the government information is in e-mail traffic.

“In the time period … we were fully engaged … in the electronic age, where e-mails really are the way individuals communicate. … The days of faxing [a document] or even mailing it were dead,” he said.

Mr. McCullough said there clearly was extensive e-mail traffic surrounding the deal, and he referred to a statement that David Morhart, an assistant deputy minister on the BC Rail evaluation committee, gave to the RCMP in 2004.

“I'm one that saves all my e-mail files. So there's some 2,000 documents there if you ever want them,” Mr. Morhart told police.

Those e-mails, however, are among the files the government says it can't recover.

Mr. Campbell said he wouldn't comment on the deleted e-mails because the case is before the courts.

“I'm not going to be talking about that,” Mr. Campbell told reporters.

He said the government has rules for storage of important documents, such as e-mail.

“The records that should be kept under the law, have been kept,” he said.

Court has not yet heard how and why the e-mails vanished from the government record.

With reports from David Ebner and Justine Hunter

See Mark Hume's article HERE.

And "Comments" to the article as follows:

Many thanks, Mark, for another excellent report from the Basi Virk / BC Rail courtroom.

It would be great if you'd write about the pivotal date - July 14, 2009 - when further outrages may be perpetrated upon British Columbians.

The Campbell Government lost a railway (Canada's 3rd largest railway, in fact) and who knows, maybe the signed agreement(s) have been "lost", too. God knows, nobody has seen the agreement(s). They're secret. Imagine.

But rumour has it that certain additional benefits are triggered on the 5th anniversary of the deal(s), namely, on July 14, 2009.

For one thing, rumour has it that there's a re-possession clause. Re-possession for cause ... and that CN is in default on at least one such clause (promise to buy 600 new railcars).

Rumour has it that BC Rail lands between North Vancouver and Squamish will be transferred to CN ownership for one lousy dollar. Yeah,$1.00

So I ask you, Mark: do you think it's legal to be giving away Crown assets under a deal we've never seen?

[Reprinted here, in hopes of encouraging others to write, write, write in support of BC RAIL DAY and justice for British Columbians. - BC Mary]

Missing Mails Crucial to Corruption Trial Involving Indo-Canadians

South Asian Observer - June 24, 2009
The First Online South Asian News Source in Canada

Vancouver - Three Indo-Canadians facing corruption trial concerning the biggest privatization deal in British Columbia's history, could have their case weakened considerably for the loss of thousands of cabinet and executive branch e-mails.

The defence lawyers for the three former provincial employees – Dave Basi, Bob Virk and Aneal Basi, in fact, believe the thousands of emails would have cleared their client in the case relating to the $1-billion sale of BC Rail. The e-mails could prove that the accused men were acting on the orders of their superiors, the defence maintains.

The leaked information actually came from inside cabinet because neither Basi nor Virk attended meetings where crucial information about the railway would have been discussed, according to the lawyer.

Basi was the ministerial assistant to then Finance Minister Gary Collins and Bob Virk was the ministerial assistant to then Transportation Minister Judith Reid in 2003 when the RCMP and Victoria police raided their offices in the B.C. legislature and seized documents relating to the privatization of the British Columbia Railway Co. Both were accused of leaking details about the pending rail deal to a Victoria lobbying firm that was representing a rival bidder to CN Rail. CN Rail eventually acquired BC Rail in 2003 for $1 billion.

{Snip} ...

See the full article HERE.