Monday, August 31, 2009
Basi Virk: A day in Courtroom 44
The Day in Courtroom 44, August 31, 2009
By Robin Mathews
Courtroom 44 attracted a larger than usual gallery (12 people) today. That was probably because the fate of the Defence application to have Patrick Kinsella appear, by subpoena, was decided. Defence wants to ask Kinsella about his relation to CN Rail and to the corrupt sale of BC Rail to CN. Was he employed by CN Rail during the period of negotiation and sale?
In the face of the most important public criminal trial in B.C. history, CN, apparently, will not confirm or deny that it employed Patrick Kinsella.
The court maintained its impassive demeanour in the face of a staggering accumulation of fact, increasingly pointing to a planned and carefully executed intra-agency manipulation to off-load BC Rail to CNR based upon a spurious and jigged set of facts.
Kinsella himself has turned aside all questions about his role. He is the very public person who managed two Gordon Campbell elections, is known to be close to Campbell, is known to have engaged in communications among CN, BC Rail, and, apparently, the office of the premier during "sale"negotiations. He is confirmed to have been paid a large sum (of your and my money) for "advising" BC Rail during critical years.
This very public man, touching very dubious events, claims unmitigated rights of privacy in the matter - as a "third party".
Defence was refused the right by Madam Justice Elizabeth Bennett to have Patrick Kinsella called to court to face cross-examination on the critical matter. It is critical, Defence believes, to an understanding of how much and at what high levels decisions were made that would show the three men accused of fraud, breach of trust, and money laundering in relation to the BC Rail Scandal were - in fact - mere aides and adjuncts to policy formed carefully by policy-making superiors.
Madam Justice Elizabeth Bennett continued - as I see it - to blossom in her "culture of complacency". That is a phrase used by a commission in Ontario looking into a demonstrably failing higher court system there. The phrase fits the B.C. Supreme Court well, and Madam Justice Elizabeth Bennett - like a glove.
An insane situation exists. The criminal charges shaped in the BC Rail Scandal seem to come nowhere near touching - apparently - many real breach of trust crimes committed. For that reason officials of BC Rail who may be agents in the spurious sale and preparation for sale are defined - legally - as "third party". That is - because they are far enough away from the actions alleged to have been engaged in by Basi, Virk, and Basi, the BC Rail officials are protected in many ways by the law.
The same may be said for Patrick Kinsella.
In fact, the case may be that RCMP and the Special Crown Prosecutor - by ignorance or design - framed charges in the BC Rail Scandal that relegated to third party status people who may be seen by some as people who should be considered seriously in any criminal actions pursued in the matter of the corrupt sale of BC Rail.
It is here, I suggest, Madam Justice Elizabeth Bennett dwells in a culture of complacency.
Today in court counsel for Patrick Kinsella conducted a somewhat learned argument. That argument suggested that "third parties", "witnesses" and such like are under no compulsion "to assist the Defence". The inviolable rights of Mr. Kinsella, a legally defined private person (as the case has been constructed) cannot be arraigned before the court, counsel argued. The application of the Defence, therefore, possesses no shred of legitimacy.
(It may be said here that many Canadians - as well as many professionals at law - hold there is a great difference between the privacy owing to ordinary people (your dentist, roofer, real estate agent) and people who take public office, high profile publicly-involved service jobs, lobbyist positions and so on.)
Defence, I take it, made the application believing it had merit. Madam Justice Elizabeth Bennett curtly dismissed the application (after a lunch break of deliberation). When Defence counsel Kevin McCullough rose, seemed anxious to speak, quickly reconsidered, and said something like:"I take it you don't want to hear from me," Madam Justice Elizabeth Bennett replied simply: "No".
And well she might have done to stop further submissions or argument. For she was interpreting legal precedent (which she might, on the face of it, have interpreted differently - as Defence counsel did).
But there is, I believe, much more she could have done. She was, as I say, interpreting - in one way - legal precedent. But she had, I also believe, power given her to appeal to justice and equity. To put it another way, she could have paid the highest regard to the written and precedent law. At the same time, she had power to appeal to equity. "The public interest" and "equity" are not far apart. When the issues at stake in a criminal trial (especially one with huge public implications) are hedged in, are - in fact - framed in such a way as to defeat the pursuit of justice, then a judge may rule that "equity", fairness, and duty to produce a just conclusion require a different decision.
In this case she might say the highly active Liberal, the clearly involved cabinet policy associate, the person employed to advise B.C. Rail, the twice election campaign manager for the Gordon Campbell forces cannot be deemed a private citizen in ordinary terms. To name him that would be an absurdity that no reasonable Canadian could accept.
For that reason, she could have decided, Mr. Kinsella must answer questions agreed upon by the court or he must appear for cross-examination. The questions would find if he worked for CNR, what his position was if he did, what his relation was to Gordon Campbell cabinet policy on BC Rail, etcetera.
Madam Justice Elizabeth Bennett could, I believe, have answered the Defence application affirmatively within its own terms. But she could also have taken the position on justice and equity that I have suggested. As I see it, she chose to remain in her culture of complacency. She chose to confine herself to matters of printed precedent - and to interpret those matters narrowly.
At the very best, I would say she chose law before justice.
In doing so, it is my belief, she underscored the determination of the court to avoid the most serious issues that have burst open as disclosure materials have given more and more evidence of high-level, organized manipulation to achieve what I allege are corrupt ends.
To me she appears to be saying: "these three men have been accused of the 14 crimes. Don't tell me about anything else. Don't ask if wrong-doing suggests accusations should be spread more widely. For though defence of the three men must be based in part on the relation of their actions to other agents and, especially, to agents in superior positions, I won't be dragged in that direction, even if it is the direction most likely to assure that justice will be done."
Madam Justice Elizabeth Bennett will disclose the reasons for her decision to deny the application by the Defence on Wednesday, September 2.
".....Besides, since he is now divorced, he may be lonely.
August 31, 2009 10:04 PM"
The real question, disregarding his marital status which is off limits, he is no longer a public figure, is what part is he playing in government so soon after losing the election..... is he doing a Geoff Plante where he was invited back into the fold to run various ..... commissions?
Wally Oppal: Delta South needs a strong voice in government
"By Wally Oppal
After many years advocating for social justice issues and over 20 years as a judge at the county court level, the Supreme Court level and finally the Appeal Court level, I wanted to give back to my province and community in a different way.
That’s why I was proud to accept the invitation of Premier Gordon Campbell to seek public office with the B.C. Liberals. I’m equally proud to be running this time where my family and I call home—Tsawwassen."
April 30, 2009 Georgia Straight
and now that I have peeled myself off the ceiling,
I do believe the anonymous suggestion you refer to, may have been simply a suggestion for somebody to try talking to Stonewally ...
to see if he's the guy who will explain a few unsolved crimes for us,
by means of which we could possibly obtain Instant Recall.
what do you think?
To me, Wally Oppal has been an anomaly ... I mean: who, in their right mind and of their own free will, would join Gordo's Gang?
who would step down (down, way way down) from the BC Court of Appeal, to join Gordo's Gang?
who would then as an A.G. start blathering in the Legislative corridors about his thoughts ...
until after deciding that nobody should say anything in answer to real questions surrounding BC Rail ... he earned the title of "Stonewally"...
sorry, but ... aaarrrggggh!!!
But if Stonewally feels the urge to share his thoughts, The Legislature Raids is always open.
Even if without wrongdoing themselves, CN is liable for being in possession of illegally-acquired and illegally-sold property, effectively being in possession of the procedes of crime....CN should be forced to come clean; including on the issue or whether or not Mr Kinsella was simultaneously working for themselves as well as the vendor And that he didn't have a license to do so?
You mean that you,
CN, know whether or not he broke the law, but you feel no onus to talk about it? Even though there are suggestion by by dint of testimony and evidence, that you also were doing wrong?
You're taking the 5th Amendment effectively ,except we don't have that in Canada. What we have apparently is privilege, and not all of it contained to the cabinet chamber. Apparently it applies also to campaign managers.
What an interest in constitution we have, where overt wrongdoers are not require to tell the truth.
Then there's Mr Kinsella: "I was only a middleman", a third party, an innocent bystander who profited handsomely from the arrangement, who said nothing about what was clearly wrongdoing, or at least is to anyone with a sense of public morality or conscience. "I feel that my role in this is private" even though matters of the public interest were what you were trading in? Trafficking in?
The court does not want to discuss the ramifications of the defence argument that it was their superiors who are actually guilty, and is not interested in pursuing the question of whether or not they should be charged even though it clearly seems that they should, likewise Mr Kinsella?
Mr Kinsella could certainly be charged for something (of many conceivable charges); but even then I supposed he COULD refuse to take the stand.....
Rather reminds me of Ollie North bringing up "the secret government" and having it ruled out of ordr by the Iran-Contra Hearings panel....
The law makes it just as illegal for a rich man to sleep beneath a bridge as a poor one. NO doubt a less influential (=rich) man, implicated as a third party in a crime, who benefited from the transaction,....I wonder if he would have had the same immunity from being cross-examined. Maybe this is a different kind of bridge someone's sleeping under?
With simple questions like "was the sale to CN pre-ordained" ... Did you have any contact with Messrs Basi and Virk in relation to the deal?" ... "You were on BC Rail's payroll (yes)? ... Were you in acceptance of payments from CN? ... What were they for? I see, lawn ornaments and children's toys......
Did you take part in any cabinet or party meetings concerning the sale of BC Rail? Campaign strategy meetings?
Here's a thought - what if Paul Nettleton comes forward and offers to testify about backroom dealings/conversations/threats in/from cabinet/ caucus.....
CN should not have this option; there should be recourse to a higher court to overturn Justice Bennett's ruling on this issue.
Kinsella should be charged with lobbying without a license (then both his CN and BC Rail contracts can come under scrutiny...his own website promos and corporate letters of introduction make it clear that he and/or his firm offer lobbying services, if not by that term; yet he has no license to do so, much less advertise himself as specially plugged into the provincial government.....
And Lara Dauphinee should be called as a witness, too; since she was the "fly on the wall" at Gordo's side throughout......
And I'm wondering if that "Marketplace" program could take a complaint about this, about how the public of BC let a government be in charge of a public asset, and they sold it without any benefit to the public and apparently via illegal means. "Will you help us get it back?" Dale Goldhawk and Hannah Gartner to the rescue.....
That wrongdoers would be able to claim "third party" status in relation to things they were clearly involved in, or are clearly alleged to have been (by Basi, Virk & Basi)...if there is no compunction on men like him to admit to their role in the mishandling of public assets and the improper use of political power; then there is no hope whatever for this country, none at all.
How can legal precedents apply to something which clearly has no precedents, no comparable political or criminal precedents?
If such legal precedents exist, or those invoked are actually sufficient in terms of existing jurisprudence, then they have no more moral depth or political validity than this government, the party forming it, or the circle of self-interested bandits in charge of this whole circus.
In other words, whatever reasons Mme Justice Bennett comes up with to justify this decision can not be viewed as credible; they are equivocation, rationalizations of the clearly irrational sideswiping of the proper conduct of the public's business? Yes, perhaps she's leaving the case because she doesn't want to be associated with its outcome; but to exonerate a major player, or any major player, on her way out the door is tragic. If she was trying to avoid ignominy, she just failed miserably.....
Wouldn't you say that there are similarities between the Basi Virk case and the Robert Somers trial?
It was early days for W.A.C. Bennett and he managed to delay the proceedings ... well, you'll know the history. What do you think?
Trying to wrap my head around something else to do with this ...
Crown has a witness they want to testify who won't testify if they have to identify themselves. Won't identify themselves even to the defense? Yet the witness the defense wants, who their client says was involved, is not required to testify and his word alone is sufficient to maintain that his dealings with the government, BC Rail and CN are all "private"?
Crown can have secret witnesses, and witnesses who shore up the targeted charges who were themselves part of the wrongdoing, but defence cannot have witnesses whose testimony would help the defence?
And that the judge will not entertain the notion, or entertain any investigation, of the defence position that their clients' employers and associates are the truly guilty party?
Cherrypicking evidence, and giving hall passes to people whose crimes seem to be far worse than that of the defendants, is what I see going on here....
At least the defence is fishing. The bench, and the Crown, are refusing to put out the nets....
Perhaps the worst thing we can do to the whole lot of them is pray - that what goes around, truly comes around one hundred fold. Yes, I do believe in Karma.
My volunteer job is to keep a spotlight shining on that courtroom scene ...
and with a lot of help from others, to keep asking the questions ...
nothing would please Gordo more than to see us give up. Nope. No way. Pleasing Gordo is far, far away from my plans for the future.
No matter how this ends, we need to be able to say "We did our best, when the chance was there."
For that, we need you with us, Leah. OK?
And for all we know about the future, vindication may be ours one day, any day, soon.
No way can we quit now. We've already done good work ... and we can do more.
The difference with the Sommers scandal is that at least one of the truly guilty parties was charged. And convicted.
And though it took until conviction-day for him to resign (which he should have done when the charges were laid!!), at least he didn't try and offload the guilt on his staff.
And to my knowledge, his party's campaign manager wasn't part of the equation....
but W.A.C. kept on getting re-elected and skating backwards for about 5 years, just like the Basi Virk affair, even though it was an M.L.A. (Gordon Gibson, Sr.) who blew the whistle on Somers ...
revealing that W.A.C.'s Minister of Lands & Forests, had accepted bribes for granting a perpetually renewable Timber Sale Licence for half of the the Clayoquot -- largest temperate old growth rain forest on earth -- to a major B.C. forestry company (MacMillan Bloedel). Again, in 1956, Somers granted logging rights to B.C. Forest Products for the other half of this prized region known as Clayoquot Sound. These licences alone were extremely valuable. The forest companies made huge profits on the sale of shares issued after each licence was granted -- before even a single tree was harvested.
When W.A.C. finally stopped skating and Robert Somers went to trial, it wasn't long before Somers was in jail and Mrs Somers went to work in a sawmill to support their family.
Movies should be made about these BC events, instead of BC being rented out as background for other people's movies.
Until then - I hope Karma visits every government, and quasi government body (as in person) that had anything to do with this crap! If it doesn't that's ok too...I'm a real patient type. :)
Not quitting Mary, not even close. It's too interesting now. I can't wait to see exactly how they're going to deliberately drop the ball, and use legal reasons to justify it. One way or another the entire planet will view the corruption of this province, and the systematic rape of its citizens.
Too bad we can't find international bloggers willing to carry this story too - the whole shebang. They might be shocked to find that Canada ain't what she used to be, and is in competition for third world position politically, to say nothing of our legal systems.
Where is another Jack Webster when you need him?! I know, I know...the mold was broken... .
Obviously being a "public" figure of the Liberal persuasion means your marital status is off limits too...unless your a Lib out to destroy someone else's life that is. (Think Wilson/Tyabji, and who benefited from that directly.)
What other reason could there be for the deafening silence of the MSM??
Sorry to have to bit your head off Mary, but such claims are relative and extremely hyperbolic and exaggerated in nature. The same claims are made about the Tongass National Forest, and are currently being made about the so-called Great Bear Rainforest (known to real people as the Central and North Coasts). The environmental movement commits an awful lot of information sins; one is overblowing descriptions. Clayoquot Sound was an is part of one of the largest temperate rainforests on the planet, namely the coast of North America from California north to Alaska; our arbitrary boundaries and definitions placed on it are meaningless.
The Cowichan basin, the north end of the Island, the Squamish basin - and more - these were all also "large temperate rainforests". Really, in this part of the world, there is only one. And there simply are no others as large (in Japan/Russia or Chile or Tasmania). Repeating stuff like that ad nauseam and without context just cheapens the argument. Clayoquot is only special because it got on TV cameras; it doesn't have a boundary other than the one we give it; it's just part of the same "temperate rainforest" as the rest of the Island and the Coast. Really it's the same temperate rainforest as on Moresby or Revillagigedo Island or the Olympic Peninsula.
And IIRC it's not just Clayoquot that were the stakes in the Sommers Affair, either.
Two ideas after Bennett's decision to loose the reins on Kinsella:
1. We should all donate to Basi-Virk legal bills on condition they carry this through to the bitter end, so we can know the exact details as to how the BC Rail deal came down.
2. We are in desperate need of a whistle-blower with a conscience who will spill the whole barrel-load of beans.
I cannot believe there is no-one in a position to do that.
Good to have your comment.
Now you've got me thinking along that path: a message from us to Basi & Virk ...
First of all, about donations, I think the BC Taxpayers are already paying the Defence bills ... certainly we pay the full invoice if the 3 accused are proven innocent,
you speak of a quid pro quo ... whereby Basi & Virk provide the BCRail information we need to hear, and the taxpayers provide funding.
This proposition makes the case for sending direct appeals to the lawyers asking them to speak out, in the public interest.
I wrote such an editorial 3 years ago (see "Why Basi & Virk are important to us") ...
but there's the launch of a whole new idea in what you say now.
How would you feel about that?
Skookum 1 at 10:42 ...
Are you tryin' to tell me that the Somers Affair did not arise out of one heckuva big chunk of prime BC timberland
a priceless public asset
which was virtually given away
by locking them into tainted contracts
after only 5 years
just like BC Rail?
That's the point here.
But thanks for the corrected geography lesson.
Having taught at WWU I use the US model. Sorry if I offended someone about Waffling Wally. His story in the Straight in spin. So is what we are getting from Gordo, Kinsella, Falcon, and that "How neat is my hair" finance minister.
Whistle blowers are probably frightened to speak out. Look at the harassment Chris Shaw and 20 others got from the men in suits.
I don't know about others but I wasn't exactly offended ... just repulsed.
If I thought Stonewally still had a career, I'd ask more about what you know on that score.
Thanks for the update.
So I said "Tell you what, who is going to win the fed. election. You can answer that."
So he said "conservatives."
My source regarding his marital status and where he was living during the prov. election is someone at the local CMHA office.
I got the distinct impression that he was missing chatting with journalists. Tieleman told me he used to always blab to journalists when he was a judge. That's why I think now is a good time for an eager reporter to go and chat him up.
It highlights, I think, what Robin Mathews notes in his article about law and "justice":
"For the uninitiated the whole hearing was just one monotonous bore, a chain of repetitions. For those who were clear about what was really happening, it was a purely absurd, formalistic stage play. The last thing I remember from it all was that as I was leaving, an elderly court official came over to me unbidden and declared, utterly shaken, that he had never witnessed the like in a courtroom. (I'm eternally grateful to him: he gave me the idea for the Servant of Justice in Moment of Freedom.)
Since then I've come to see the necessity in the whole method; a judicial system's first task will always be to secure and protect itself: the judicial system must necessarily regard itself as justice and the rule of law incarnate, and it thus becomes entirely logical that defense of the judicial system must have the very highest priority—followed by protection of the state and its officials and civil servants. The inevitable consequence will be that the judicial system and its administration will comprise the very skeleton of society, its innermost, immutable, reactionary mineral core. The circle is complete: the prosecuting authority can only be reported to the prosecuting authority, whereupon the prosecuting authority “rejects” the accusations and declares the prosecuting authority free of any guilt.
It cannot be otherwise."
I would just add:...... that is, not unless justice trumps all.
Having seen both in action, I'd be more inclined to hire McCullough - that is if I couldn't get Cameron Ward.
A similiar transaction was proposed on the Arrow Lakes, but was amended due to intense public resistance from the community of Nakusp. As the deal was originally set up, all monies from the sale of formerly forest land was to flow to Wall Street, leaving the logging contractors owed money by Pope and Talbot to lose their equipment and in many cases, homes. The end result while still not perfect, at least didn't leave the locally owed contractors last in line with empty hands while satisfying hedge fund operators and Wall Street brokers.
How is it possible that the impending announcement of a staggering, multi-billion-dollar B.C. budget deficit by the less than forthright Liberal government receives nary a mention on the front page of the Sept. 1 paper?
Similarly, how is someone like Patrick Kinsella allowed a free pass on testifying at a trial that should be proceeding with the express intent of ensuring that the taxpayers' best interest and the government's fiduciary obligation to represent those interests are in fact being faithfully carried out? Page 13? Come on! We deserve better than that and you can do better than that.
Curtis Smith, North Delta
All I am seeing from the Libs and their politically appointed judges is: concealment and Treason.
How do you get to be a judge in BC? I was present at a UBC seminar where the SCBC's Brenner (retired) and Frame (retiring) and PCBC's Stansfield (deceased) and Dossa, told us how a demonstrable ability to work in a "collegial" environment was of the essence. Further elist spews almost made me hurl.
(March 12, 2008 "You Be The Judge")
Anyone who holds Canada's judiciary in respect, is either complicit or not paying attention. They are a disease.
The Socreds allowed Sommers to use his ministry to conceal inculpatory evidence. But, the real delays were facilitated by the judiciary. In spite of Sommers having filed a patently frivolous defamation suit against his accusers, judges let that dirty baloon float.
Please don't let Somers be the last! I think quite a few current and former Cabinet Ministers in BC deserve the same and I hate to say it but most likely would be in the neighboring country to our south!
When the US stands as a beacon of justice compared to here, it is clear that our justice system is broken. Accenture is blacklisted from doing business with the state of California, but to our BC liaRs, their criminality is a recommendation and thus they handle the books for BC Hydro's billing - the same BC Hydro that the Campbell government is trying to bankrupt and hand over to private sector "friends." First it needs to be bankrupted or appear to be a money loser (like the way BC Rail was dishonestly portrayed as a loser) so that the "friends" can acquire the former jewel at fire sale prices.
Yes, Gillian Guess had a mere association with a trial defendent; Kinsella's relationship with the Libs, on the BC Rail tender, was integral. He was in a position of public trust and a close associate in some aspects, with Basi-Virk parties.
However, Breach of Trust has been butchered by the Supreme Court of Canada. Since the "Boulanger" case conviction requires a "marked departure" from administrative practices.
As you can see, in Boulanger a cop was acquitted by judge-law that relied on the fiction that Boulanger did not act "with the intention to use his or her public office for a purpose other than the public good, for example, a dishonest, partial, corrupt, or oppressive purpose."
Okay, so this is GOOD, under judge-law:
"Mr. Boulanger, director of public security, was charged with the offence of breach of trust by a public officer under s. 122 of the Criminal Code for using his authority to order a subordinate officer to prepare a supplementary accident report on an accident involving his daughter which, when forwarded to his insurance company, resulted in cancellation of an insurance deductible of $250."
Note-"Director of Public Security" should have been translated: Chief of Police.
The Boulanger' mentality was manifest in the creative acquittal of Ottawa mayor, Larry O'Brien.
Red flag: in nearly 100% of criminal determinations, judges put the facts first, and legal interpretations afterward. I have no problem of accusing the high court of partiality, in that they benefit from a high charge-threshold in Breach of Trust cases. Que bono from "Boulanger"? Officers of the court. Including judicial officers of the court. What do we have when the judiciary legalizes conduct to the detriment of the over 99% of Canadians who are neither politicians nor court officers? We have an insurrection as yet unapprehended.
It would seem to me that if one chooses to MEDDLE in the public's business, and be involved in disposal of public assets, one has foregone the right to privacy in these dealings. Of course the Gord and gang obviously feel otherwise and their view is that the public's business is none of the public's business.
I agree, Koot ... especially if the people of BC have paid the guy $300,000. for doing whatever the heck it is that he did. For us. Yeah, that's right, whatever he did for the public interest.