In essence Krog learned (as, apparently, did Defence counsel) that the protocol used by government to prevent non-disclosure of documents deemed privileged, which ran from early 2004 until May 2007, was changed by Gordon Campbell without consultation or explanation.
Krog asks (Feb 25 08) Allan Seckel eleven reasonable questions. What protocols have existed? Are there written copies? Who was involved? How many documents were reviewed by the Cabinet Secretary, the Deputy Attorney General, the Executive Council – and so on? Simple questions.
Allan Seckel replies from a very great height, it appears (Feb 26 08), fearing that Krog’s “letter and comments are politicizing my role” and - he suggests – may be even questioning his (Seckel’s) integrity! Go read the affidavits, Seckel writes to Krog, in effect, if you want an answer. Seckel doesn’t admit to a protocol change, though another was in effect before he “was given the power to decide cabinet privilege” by Gordon Campbell in May of 2007.
Krog’s questions, then, are without taint. And, indeed, if Gordon Campbell changed the protocol in May 2007, could he have done it for any other than political reasons? And if he did it for political reasons, could the actions of the Deputy Attorney General in the matter, thereafter, be anything else than political actions? As late as Feb 27 2007 George Copley was writing to the Attorney General’s office referring specifically to the steps of the first protocol (which apparently simply disappeared in May, 2007).
With the highest note of righteousness Seckel informs Krog that no document has been withheld under cabinet privilege. That cry of virtue is, however, slightly coloured by the materials somehow not released and by a transfer from cabinet to solicitor/client privilege.
Leonard Krog then found he needed to apply to the court to see the affidavits, since nothing in the matter may be released from Criminal Registry without the intervention of the court. (That is what is meant by the great, historic principle in Canada of “open courts”.)
Madam Justice Elizabeth Bennett declared that “anything released to Mr. Krog would be released to the public at large”. And that was done.
A point must be made over and over about the treatment of the open court principle (a freedom of information matter, in essence). Before an actual trial begins “the innocent” must be protected from libel and slander and ill-placed speculation, of course. But many believe that principle is used, often, to protect the powerful, and that a lid is put tightly on information in order to protect “insiders”, information which the public has a basic right to have. The truth of the matter is devilishly hard to determine (especially without benefit of the “withheld” information).
The documents in question amount to about 250 or 300 pages. Apparently to dissuade the Lower Classes and other Undesirables from acquiring copies, Madam Justice Elizabeth Bennett released them at one dollar per page. Since all of the pages without exception already existed in print form, the cost of reproduction couldn’t be more - stated extravagantly – then four cents per page. Previously released Defence Applications for Disclosure were provided freely to the public at large.
Suddenly, the affidavit documents would cost a serious, concerned Canadian between $250 and $300 to acquire. That is part, I suspect, of the tug-o-war to which I have already referred.
Moreover, I call them the “affidavit” documents, but many are not - as far as I can tell – parts of or all of affidavits. There are news stories in papers, letters to MLAs, applications (by Defence) for records, etc. Leonard Krog asked for specific things: affidavits, the original protocol agreement, and court records regarding the assertion of parliamentary privilege on behalf of the Speaker of the legislature. In fact, the protocol dating to the turn of the years 2003-2004 is there. But no explanation is there for the 2007 change. And not a lot more of consequence is revealed.
I believe, that without endangering his non-political sanctity, Allan Seckel could have produced what Leonard Krog asked for in one fifth the number of pages ‘dumped’ for this release of information. The question why the release has been made in the way it has been, at the cost levied, is an important question about the seriousness of the Gordon Campbell cabinet in its obligation to the B.C. public, to the Opposition in the legislature, and to the integrity of law and justice in British Columbia.
Very quickly, the nature of the tug-o-war becomes clear in the documents. How can it be explained?
The Crown wishes to try three men, former cabinet aides appointed by Orders in Council, charged with various acts of fraud and breach of trust in the conduct of their duties. Simple. So get on with it. The Crown, it says, has a case.
But since the actions with which the three men are charged almost all relate and/or are connected to distinct political operations of the Gordon Campbell government, the Defence asks how it can proceed with the trial until it sees all documents which may reveal that the men were ordered, directed, or otherwise instructed by their cabinet superiors to do one, some, or all of their alleged dirty deeds? Repeatedly, the Crown questions the relevance of applications for disclosure. Repeatedly, Defence makes the argument just described. To a reasonable and balanced observer, Gordon Campbell’s circle seems, constantly, to fear exposure. Otherwise wouldn’t it say: “Take anything you want. Look at it privately. You’ll see you’re wasting your time. But look at everything you want. If it helps you, take it for use at the trial. We have nothing to hide.”
And so on April 24, 2007, for instance, Michael Bolton, Defence counsel, writes to George Copley, counsel for the Gordon Campbell cabinet, telling him Defence wants “all materials in possession of the Provincial Government, including but not limited to materials from the Executive Council, Cabinet committees, caucus meetings, and all MLAs’ offices, relating in any way to the divestiture of the B.C. Rail Freight Division and the Roberts Bank Port Subdivision.” (The request was narrowed by agreement on August 24, 2007.)
Mr. Bolton, I suggest, is not “politicizing”, nor is he on a huge “fishing expedition”. For Gordon Campbell politicized the whole matter, flagrantly, by breaking his election promise not to sell and then selling BC Rail in a way that one contender, CPR, declared publicly, was tainted – as CPR withdrew from bidding. Then the Gordon Campbell cabinet, many believe, deliberately tried to mislead the public about the terms of the sale, parts of which (incredibly) are still secret. Evidence is extant that a part of the criminal matter alleged against one of the accused is connected to an allegation cabinet wanted a dummy bidder to remain in the competition. If those allegations have merit, then cabinet gets dangerously close to the charges against the accused.
The Gordon Campbell cabinet has given the impression to many that it has – one way or another – blocked movement of the court process. The unexplained shift in “privilege” protocol only heightens that impression. For that reason the request by NDP Justice critic Leonard Krog to have assurance that the protocols have always assured independence of decision is most timely. That he has not, to my mind, received a satisfactory reply is another matter, probably of at least equal importance.
Stumble It!