Whither The Status Of Special Crown Prosecutor In B.C?

                                            520 Salsbury Drive,

                                            Vancouver, B.C., V5L 3Z7,

                                            January 7, 2010.

The Honourable Michael de Jong,

Attorney General of British Columbia,

Post Box 9044 Stn Prov Govt,

Victoria, B.C.  V8W 9E2

                                                           Copies to: Robert J. Bauman,

                                                           Chief Justice, B.C. Supreme Court.

                                                           Gordon Turiff, president, Law Society

                                                           of B.C.

                                                           RCMP Deputy Commissioner, Gary

                                                           Bass.

                                                           Some others are listed at the end of the

                                                           letter.

Dear Mr. de Jong:

      Having examined with care the basis of Crown prosecution services in B.C. as well as the role of the Attorney General, deputy Attorney General, and assistant deputy Attorney General;

     and having, specifically, examined the purpose and role of Special Crown Prosecutor;

    and having in mind that such a one is appointed “where there is a significant potential for a perceived or real improper influence in prosecutorial decision making…;

    I request of you – formally with this communication – (1) that you remove or cause to be removed William Berardino as Special Crown Prosecutor in the Basi, Virk, and Basi (BC Rail Scandal) case presently before Madam Justice Anne MacKenzie;

   (2) that you strike a Commission of Inquiry to investigate  prosecutorial services in British Columbia and ALL Special Crown Prosecutor appointments since Gordon Campbell took office as premier of the province, and that the Commission be asked to recommend the continuation, modification, or the termination of the Special Crown Prosecutor system as it is employed in British Columbia;

    (3) that you make public every direction given to Special Crown Prosecutors appointed since Gordon Campbell took office as premier of the province.  In each case, I understand, your ministry sets out the terms defining the Special Crown Prosecutor’s mandate.  The reason ALL of those definitions of mandate must be made public will become clear.

I am writing to you as a British Columbian concerned that the administration of justice in the province be conducted “fairly, impartially, effectively and respectfully on behalf of the whole community”.  My experience attending the court processes concerning Basi, Virk, and Basi (a small part of the BC Rail Scandal) leads me to conclude that the administration of justice in the province is not fair, impartial, effective, and respectful and is almost openly contemptuous of “the whole community”.

Indeed, on the very subject of this letter, I wrote some months ago to Madam Justice Elizabeth Bennett and asked her what protocol is in place to review the appointment of Special Crown Prosecutors.  She would not even acknowledge my letter or have someone else do so.

I refer in this letter, specifically, to the Special Crown Prosecutor as a status in British Columbia law, and to the appointment – in the B.C Rail Scandal actions – of William Berardino as Special Crown Prosecutor.

All British Columbians should have been alerted to the deep flaws in the system when, recently, then-Attorney General Wally Oppal chose a Special Crown Prosecutor in the so-called Bountiful polygamy case.  William Blackmore and James Oler of Bountiful, B.C, were the subjects of polygamy charges laid on January 6, 2009.  For some years interest in the Bountiful community had caused wide comment and RCMP investigation.  CTV news reported on January 7, 2009, that “Oppal was under fire to investigate Bountiful by both politicians and activists….”

A reasonable person might be drawn to believe the Gordon Campbell cabinet saw a highly political way to gain the favour of and increased power from the British Columbia public by conducting a trial and gaining a conviction against alleged bigamists at Bountiful.  If that could be the case, a reasonable person might not be wrong to say that almost every action in the case – which must have had the approval of the cabinet and premier – has the potential to be perceived as political.

We know the story.  “B.C’s Crown prosecutors remained reluctant to lay polygamy charges.” (CBC News, Sept. 23 09)

Astonishingly, as a result, Attorney General Wally Oppal then appointed Special Crown Prosecutors – first Richard Peck, and later Len Daoust.  Both believed a Supreme Court of Canada ruling on the Charter of Rights and
Freedoms should be sought before proceeding with charges. 

And so Wally Oppal went to a third person, Terence Robertson, who agreed to be Special Crown Prosecutor.

As we know, Blackmore and Oler petitioned the court to stay the charges.  They argued successfully that Wally Oppal had gone “special Prosecutor shopping”.  The court scuttled the action, stopping it in September of 2009.

To reasonable and prudent Canadians, the cabinet of Gordon Campbell in the person of Wally Oppal might have the potential to be seen as engaging in a flagrant political determination to use the machinery of justice for political ends.

The Gordon Campbell cabinet in the person of Wally Oppal might have created the potential to be perceived as quite willing, first, to violate the integrity of B.C.’s Crown Prosecutors, and then to violate the integrity of the Special Crown Prosecutor institution for political advantage.

The CBC (Sept 23 09) comment is particularly ironic: “Special prosecutors are used in B.C. to replace regular Crown counsel in politically sensitive cases, to avoid the possibility of political interference”. 

In fact, the Bountiful polygamy case points to the very strong possibility that the cabinet of Gordon Campbell may be seen as having turned the Special Crown Prosecutor institution on its ear and may be perceived to be using it to assure it can interfere for political ends under the protection of a so-called independent and wholly unbiased machinery.

Your own comment that Mr. Oppal made a difficult decision with the best of intentions may have pleased members of the Gordon Campbell cabinet, but I doubt that it added luster to your reputation as an expert holding the position of First Law Officer of the Crown.

In fact the normal use of Special Crown Prosecutors - does not concern (or seem to envision) people like Blackmore and Oler.  They were in no way connected to politicians, civil servants, or police.  They were, in fact, precisely the kind of people who would, normally, be served by B.C.’s regular Crown prosecutors. Not getting regular Crown counsel to agree to undertake the case against Blackmore and Oler – it would seem – Wally Oppal turned to the Special Crown Prosecutor institution, which may be activated by the Attorney General. One begins to fear that use of that institution, as it was used in the Bountiful case, may have the potential to create perceptions that it may be used to carry out political intentions – to violate ideas of the fair administration of justice.

Madam Justice Stromberg-Stein in a tepid remonstrance saw the matter clearly.  “The harm of successive special prosecutors is that it undermines the administration of justice by leaving the perception, if not the reality, of political interference and of an oppressive or unfair prosecution.” (quoted in Keith Fraser, Vanc. Sun, Sept. 23  09).

Especially astonishing is that Wally Oppal was formerly a Supreme Court judge and an Appeals Court judge – over many years.  He of all people should have known – quite apart from politics – that the Special Crown Prosecutor institution should not be an instrument of personal choice. He of all people should have been armoured against the desire to use the prosecutorial system and the courts for political advantage – if that is how he used it.  It may be that his action simply expressed the willingness of the Gordon Campbell cabinet to violate - for political advantage - the rule of law and the fair administration of justice.

A brief look at a case in which a Special Crown Prosecutor was appointed in a political circumstance reveals an apparent chaos – perhaps a carefully orchestrated chaos - of prosecutorial behaviour in the province.

I choose the extraordinary Doug Walls case.  Walls was accused in 1998 of wrongful behaviour in the conduct of a car dealership in Prince George – involving “cheque kiting” between a credit union and CIBC, and he engaged, it is alleged, in questionable sale and lease of automobiles – and perhaps more.  In that year CIBC filed a lawsuit in the Supreme Court in Vancouver in relation to Walls and to a codefendant’s behaviour.

Walls was an officer in the Liberal constituency.  He was a relation by marriage to Gordon Campbell, premier.  The car dealership collapsed when the improper behaviour was terminated.

Despite the allegations and the case filed in B.C. Supreme Court, Doug Walls, soon after, moved into a complex set of profitable relations through – mostly – the Ministry of Children and Family Development.  The roles he played are not all clear to me.  But he is reported, variously, to have been connected to a debt of $400,000 incurred by CareNet a non-profit society for which he worked and which had relation to the Ministry.  The Campbell government forgave the debt.  He is said to have collected $214,000 for 14 months of work for the government as well as $100,000 in 2002 and 2003, and about $65,000 for untendered contract work.

He was, as well, named Interim Chief Executive Officer of the Authority for Community Living, an arm, I believe, of the Ministry of Children and Family Development.

The CIBC case against Walls was, of course, public knowledge.  The case was no deterrent to his work for the Campbell government.

As a result of the $400,000 forgiven loan – which apparently hadn’t been fully cleared – investigations were opened.  Walls’ relation with B.C. government was terminated.  The deputy minister of Children and Family Development was fired.  The Minister resigned. 

The machinery of the prosecution services lay idle.  No civil or criminal action or any kind was taken against Walls – or anyone else.  The deputy minister was paid more than a half million dollars in severance and holiday pay.

Out of the Walls matters a strange contradiction revealed itself.  The investigations which were undertaken led the Conflict of Interest Commissioner to conclude Walls had no privileged relation with Gordon Campbell, though Walls apparently name-dropped and emailed senior officials like Martyn Brown in charge of the premier’s office. The Conflict Commissioner wrote of “the somewhat remote connection by marriage” of Campbell and Walls.

But when Walls came to trial in 2007 in relation to the allegations of wrong doing made by CIBC, Walls' relation to Gordon Campbell did seem to have weight.  For a Special Crown Prosecutor was appointed – in a routine, white collar crime matter between a businessman and a bank.

In 2006 a report stated that Walls chose trial by a Provincial Court judge alone, and his co-defendant chose a Supreme Court trial by judge and jury. In the 2007 trial, however, both men were tried by Associate Chief Justice of the British Columbia Supreme Court, Patrick Dohm, and both were given two-years-less-a-day “conditional” sentences which meant neither man, apparently, served five minutes in jail.  CIBC is said to have lost more than a million dollars.  The people of British Columbia – when all was finished – lost a great deal more.

Why was a Special Crown Prosecutor. Josiah Wood, appointed in Walls’ CIBC case?  What reason was given by the Attorney General?  What was Josiah Wood, “mandated” (instructed) to do by the Attorney General?

The first of those questions would not be asked about the only case that has arisen from the BC Rail Scandal (the corrupt transfer of BC Rail from public ownership to ownership by CNR). The three men accused of wrongdoing are all cabinet appointees.  In their cases selection of a Special Crown Prosecutor is wholly consistent with prosecution services procedures.

But we must ask several questions.  First, was there in the Basi, Virk, and Basi matter – using the terms employed by Madam Justice Stromberg-Stein – a situation in which “successive special prosecutors” produced a condition which “undermines the administration of justice by leaving the perception, if not the reality, of political interference and of an oppressive or unfair prosecution?”

We are told Josiah Wood was, briefly, appointed Special Crown Prosecutor.  He was present at all-day meetings before he withdrew.  He withdrew on December 8, 2003, but he very likely had to hear discussion about the intended “raids” which were considered at least as early as October, 2003.

After Josiah Wood others were approached, apparently, to fill the position of Special Crown Prosecutor.  Who were they?  What were they mandated to do?  Rumour has it that one or more people did not “want to give up independence”.  What does that mean?

All of that activity occurred in relation to the whole BC Rail Scandal and other semi-related matters – before anyone was charged.  Basi, Virk, and Basi were not charged until more than a year after a Special Crown Prosecutor was appointed.

The people of British Columbia must be told how many and who were approached, what mandates (instructions) they were given, and – in all cases – why they did not choose to act, and why Josiah Wood withdrew after accepting the post.  Was Attorney General Geoff Plant (and his ministry) “special Prosecutor shopping”?  For political reasons?

That is the first question.  The second concerns the appointment of William Berardino as Special Crown Prosecutor.  I do not suggest anything negative or uncomplimentary about the professional competence, the honesty, or the integrity of William Berardino.  As far as I am concerned they are not in question.

Service by an ordinary British Columbian to the rule of law, the fair administration of justice, and to the freedoms of all Canadians requires that in all matters involved in the BC Rail Scandal the potential for perceptions of bias and/or the potential for perceptions of political interference in the administration of justice must be examined – especially since every British Columbian has been affected – many believe negatively – by the transfer of ownership of BC Rail.

William Berardino was appointed Special Crown Prosecutor by the ministry of the Attorney General when Geoff Plant was Attorney General and when Allan Seckel was deputy Attorney General. 

[Of interest is the memo sent from Gordon Campbell to ministers on June 25, 2001 in which he stated that the role of chief executive officer would not be performed by ministers but by deputy ministers who would be selected by the premier’s office.  That appears to have meant that Gordon Campbell was attempting to move from government by elected representatives to  government by appointed favourites.]

Whatever the June 25, 2001 memo meant, on January 1, 2004, Charlie Smith, journalist, reported that Special Crown Prosecutor William Berardino (appointed December 2003) was once a partner of the Attorney General, Geoff Plant, in the firm of Russell Dumoulin.

In fact, Geoff Plant and William Berardino were at Russell Dumoulin at the same time for many years – from 1989 to 1996, at which time Mr. Plant ran for political office.

In addition, the deputy Attorney General at the time of Mr. Berardino’s appointment was Allan Seckel.  Mr. Seckel’s earlier practice was almost wholly with Russell Dumoulin.  He became “deputy managing partner” there, and was a part of the firm, with Mr. Berardino, for eleven or twelve years.

Mr. Berardino left Russell Dumoulin in 2000 to go into Berardino and Harris LLP.  Mr. Harris had also been with Russell Dumoulin, where he was – before leaving – manager of the litigation department.

Allan Seckel, one biography reports, had worked in Geoff Plant’s election campaign to become an MLA.  In 2003 Mr. Seckel left Russell Dumoulin to become Geoff Plant’s deputy Attorney General.

The connections among Mr. Berardino, Mr. Plant, Mr. Seckel, and Mr. Harris cannot, I think, be ignored.  Mr. Seckel (we are told) assisted Mr. Plant in political matters before being appointed deputy Attorney General.  And Mr. Berardino was in long professional association with Mr. Seckel until only three years before being appointed Special Crown Prosecutor.  All three were in long association with Geoff Plant.

The purpose of the appointment of a Special Crown Prosecutor – especially in cases where politicians, civil servants, or police are involved with, or in some relation to, an accused – is to guarantee to the public the complete absence of bias and to assure the independence from (and therefore, I would say, all freedom from connection with) involved parties.

The Ministry of the Attorney General specifically records that “Special prosecutors are appointed where there is a significant potential for a perceived or real improper influence in prosecutorial decision making in a given case”.

The BC Rail Scandal presents a situation in which the three accused men were Orders in Council (premier’s office) appointees and – especially two of them – worked on the premier’s project to transfer the public ownership of BC Rail to the private possession of CNR – and, indeed, they face accusations in relation to that transfer. 

A connection to their superiors in cabinet, and elsewhere, is constantly and indefatigably argued by Defence counsel.  So much is that the case that Gordon Campbell and associates in the transfer of BC Rail to CNR are almost “ghost” participants in the Basi, Virk, and Basi case. Any lawyer – I suggest – having had close and/or long association with a member or members of Gordon Campbell’s cabinet or his senior civil service may have, as a result, the potential to be perceived in ways that do harm to the reputation of the administration of justice.

I believe reasonable and prudent Canadians – apprised of the information set out here – would have no doubt that the facts of the matter present a condition in which [despite his undoubted independence, honesty, and integrity] the potential for perceived bias and/or the potential for perceived political interest on the part of Mr. Berardino is inescapable.

I believe the condition described requires that Mr. Berardino step away from any involvement in the Basi, Virk, and Basi matter.

That whole matter, thirdly, is complicated by actions of Gordon Campbell, premier.  We must remember that on May 8, 2007, Gordon Campbell changed the operating and effective protocol for determining the status of cabinet documents sought in relation to the Basi, Virk, and Basi case.  Mr. Campbell stated that henceforth Allan Seckel would be responsible and he would work with the Special Crown Prosecutor to decide which cabinet documents relating to BC Rail should be deemed confidential.

Mr. McCullough for the Defence alleged on April 3, 2009, that Mr. Seckel had taken on a political role, and – in addition – was making political statements in defence of the Gordon Campbell government.  I believe Mr. McCullough’s statement has merit.  I believe that Mr. Campbell’s action on June 4, 2009 (in relation to the Basi, Virk, and Basi matter) creates the potential for perceived bias and/or the potential for perceived political interest in Mr. Campbell himself and in deputy Attorney General Allan Seckel – who might then have the potential to be perceived to employ bias in his relation with William Berardino … and, indeed, any others….

Mr. Seckel was thrust into a position, I believe, that had been fulfilled by people carefully insulated from political interference so that the disclosure of documents could be as uncontaminated as possible by political interests. 
We remember that on June 25, 2001 Gordon Campbell sent a memo to ministers saying that in future the role of chief executive officer would be filled not by ministers but by deputy ministers appointed from the premier’s office.

I wish that I could, but I cannot see how the long relation among Mr. Seckel, Mr. Berardino, Mr. Harris, and Mr. Plant can be brushed aside as irrelevant to the ‘mighty principle’ of unbiased independence in Special Crown Prosecutors.  Nor can I see how the description of the Special Crown Prosecutor set out by the Attorney General’s ministry can be said to be demonstrated – without the potential of being perceived adversely - by the appointment of William Berardino in the BC Rail Scandal matters.

The whole matter, in addition, fourthly, is complicated further in the method by which Madam Justice Elizabeth Bennett was removed to be replaced - after three years of detailed hearings - by Madam Justice Anne MacKenzie on the Basi, Virk, and Basi matter.  On June 4, 2009, Associate Chief Justice Patrick Dohm appeared in court to hear an application by Mr. Berardino that Madam Justice Elizabeth Bennett be removed in favour of a new (to be trial) judge.  I could not see a rational unfolding of meaning in that appearance.

Mr. Berardino argued that Mr. Dohm had the power to remove Madam Justice Bennett and to appoint a new judge.  Mr. Bolton for the Defence was of the opinion, expressed out of court in answer to questions, that Madam Justice Bennett had power over her situation – to stay or to leave. I never heard that difference resolved in discussion in the courtroom.

In court discussion the word “recused” was misused since Madam Justice Bennett had – in no way – any conflict of interest. 

Why then, I ask, did Mr. Berardino want her removed?

Mr. Dohm made statements revealing he believed he had power to remove Madam Justice Bennett and that he was going to assign the trial judge, but not now.  He said he knew who it was going to be.  But he would not name the replacement that day, he said, because he didn’t want to muddy the waters by appointing a trial judge while Madam Justice Bennett was still engaged with the matter of the case.

Mr. Berardino argued that Madam Justice Bennett couldn’t be in two places at once.  (She was recently raised to the Appeals Court.)  He also stated – as I understood him – that Defence had not been filing motions with all materials and all summaries of learned argument so the Prosecution could reply and respond.  He said that “we” have not been following that process in this case…. He seemed to imply that fact (if it was a fact, and I am reporting it correctly) indicated a failure on the part of Madam Justice Bennett. 

When Mr. McCullough rose to object, Mr. Dohm silenced him.  As I understand the process, no real argument on the motion happened or was permitted to happen.  Mr. Berardino seemed to me to be saying that one of the two reasons Madam Justice Bennett should be removed was that she was not assuring proper process in the hearings.  Mr. Dohm seemed happy to hear that said – and yet Madam Justice Bennett was promoted to the Appeals Court.  The hearing before Associate Chief Justice Patrick Dohm simply did not – to me – make sense.  I still cannot make sense of it.  And it was a very important hearing.

Madam Justice Elizabeth Bennett was removed in fact (as far as I could understand the process) – as a fait accompli – on June 4, 2009 in a brief hearing that was more like a press conference in which Mr. Dohm announced the change.  To this observer, there was no doubt in either Mr. Berardino’s or Mr. Dohm’s mind that Madam Justice Bennett would go.

The potential for a perception of bias was presented without disguise, I believe, when Mr. Dohm stated he knew who the replacement would be and would announce the name later, without, in fact, hearing any significant argument against replacement.  The whole event, to me, seemed “cooked up”.

I suppose there are cases in which Special Crown Prosecutors ask for the removal of judges long into the preparation of cases for trial, but I don’t know of any … others. 

Placing those four matters concerning the Basi, Virk, and Basi matter before you, as I have done, I believe that as Attorney General you should ask – for the reasons cited – that Mr. Berardino remove himself as Special Crown Prosecutor in the matters arising from the BC Rail Scandal, the matters involving Basi, Virk, and Basi. 

I request, secondly, that all instructions to all Special Crown Prosecutors since the election of Gordon Campbell as premier be made public.

I request in addition that you put in action an open, public, independent Inquiry into prosecutorial services in British Columbia, the Inquiry to recommend that the institution of Special Crown Prosecutor in the province be terminated, or continued as it is, or continued in modified form.

I have become convinced that the institution of the Special Crown Prosecutor has a strong likelihood to have become soiled, that it may be used (and seems, perhaps, on occasion to have been used) as an instrument by which to defeat the rule of law and irreparably to damage the administration of justice.

I will look with pleasure for your reply to this letter.

                                                                          Yours truly,

                                                                           Robin Mathews

Copies to: Madam Justice Anne MacKenzie, Madam Justice Elizabeth Bennett, Asssociate Chief Justice Patrick Dohm, William Berardino QC and Andrea MacKay, Michael Bolton QC and Claire Hatcher, Kevin McCullough, Janet Winteringham QC, Joseph Doyle, Robert J.C. Deane, George Copley QC, Mel Hurtig, Paul Palango, Paul Nettleton, Margaret Fulton, Michael Byers, John Calvert, B.C. Civil Liberties, Leah Herman, June Ross.

Vivelecanada.ca, the legislature raids site (BC Mary), Charles Boylan CFRO, K. Lapointe, Vancouver Sun; Bill Tieleman, West Star Communications; Mark Hume, Globe and Mail; Gary Mason, Globe and Mail; Lawrence Martin, Globe and Mail; Canadian Press, Dialogue Magazine, CKNW, Neal Hall, Vancouver Sun; CBC As It Happens, chinook62@gmail.com, kootcoot@hotmail.com, pacificgazette@yahoo.ca, record@cablerocket.com, Victoria Times Colonist.

Many others….