William Berardino And The BC Rail Scandal Case Against Basi, Virk, And Basi

Posted on Saturday, January 16 at 10:09 by Robin Mathews

The Strange … Strange … Strange Appointment of William Berardino as Special Crown Prosecutor in the BC Rail Scandal (Criminal) Case Against Dave Basi, Bobby Virk, and Aneal Basi.

In all criminal cases in Canada the Queen – ‘Regina’ (Elizabeth ll) – acts against the accused.  We speak of ‘the Crown’.  ‘Regina’ is represented in every criminal case by her prosecutor.  That’s why all prosecutors in criminal cases in Canada are called Crown Prosecutors. 

A reader might think that’s old, dusty symbolism without meaning.  A reader would be wrong.  ‘Regina’, and The Crown stand (in Canada as in Britain) for “the nation at its best”.

In criminal trials (as distinct from civil trials) the wrong done is not only to the person murdered, or robbed, or beaten, or hurt by the criminal breach of trust of a public officer (say Gordon Campbell), etc.  The wrong is done to everyone – to “the nation at its best”.  And so a representative of “the nation at its best” conducts the prosecution.  He or she is the “Crown Prosecutor” – the prosecutor for ‘Regina’, the Crown, “the nation at its best”.

Because the prosecutor represents “the nation at its best”, he or she has a complicated task to perform.  He or she must want a conviction of the accused – if the evidence points without question to guilt.  But since “the nation at its best” also includes the accused, who is innocent until proved guilty, the prosecutor must not work from bias, must conduct a fair trial.  He or she must not act in a prejudiced way towards the accused, and must share evidence gathered with the accused.  The accused – given a chance to see the “evidence” - may find many, many things wrong about the evidence.

“The nation at its best” wants to give the accused a fair chance to prove the accusations are wrongly placed.

The Crown Prosecutor, plainly, is not just an attack agent wanting a conviction.  In fact, the Crown Prosecutor doesn’t want, primarily, a conviction.  He or she, representing “the nation at its best” wants a fair trial,  wants the administration of justice to be unblemished, wants justice to be done and be seen to be done – wherever justice is found to lie.  If the “evidence” doesn’t lead to a conviction in a fair trial, The Crown Prosecutor is content.  Justice has been done.

In a civil case the contest is party against party, plaintiff and defendant,  each seeking predominance and victory.  In a criminal trial the situation is somewhat different.  The prosecution (“the Crown”) is both contestant and “the nation at its best”.  It seeks to “prove” the justice of accusation, but it also seeks balance, the rule of law, fairness, and honourable process.  If the prosecutor (“the Crown”) acts out of predetermined loyalties, biases, and/or prejudices related to some force other than loyalty to the rule of law and the fair administration of justice, then the reputation of the administration of justice comes into disrepute and loses its credibility among the population upon whose trust it depends.  As trust is withdrawn the system collapses.

In British Columbia – apparently in pursuit of a guarantee of fair trial and justice - the status of Special Crown Prosecutor has been added to the status of Crown Prosecutor.

When first thought about, that very suspect addition was said to have a clear purpose.  (It doesn’t exist in a number of other provinces.) There is, we know, a pool of prosecutors maintained by the government – men and women of undoubted probity.  But they are employed by government, in fact.  And they deal with police frequently in sometimes necessarily close relation.

And so if a politician, or a civil servant, or a police officer is charged, or is close to, or related to, or in business with someone charged, such as to suggest that bias or prejudice might enter into the decisions made by a regular prosecutor in dealing with the matter, then a person qualified should be sought out of private practice, it is argued, who is unbiased and independent of all parties involved.  He or she is named a Special Crown Prosecutor.

The beautiful idea does not, in every case, seem to have a beautiful conclusion.  In fact, more and more, evidence may be being accumulated which shows that Special Crown Prosecutors may be appointed to assure that politicians or civil servants or police officers are protected from fair trial and from the unblemished administration of justice.

As I write I have before me news in the Globe and Mail (Jan 14 10 S3). It relates to the case begun against two men from the Bountiful, B.C. community accused of polygamy.  The case against them was stopped by the judge in answer to a motion from the accused, and they have replied by a suit against Wally Oppal, former Attorney General. The piece in the Globe and Mail is written (it seems to me) to obscure the real question – has the position of Special Crown Prosecutor been violated?  We are pulled through a bath of polygamous information and such – without the matter of the Special Crown Prosecutor even being mentioned.

Never mind.  What is in question is the use of the Special Crown Prosecutor. In fact the allegations brought by the two men from Bountiful are based on the belief that Wally Oppal, Attorney General at the time, approached more than three prosecutors before he found one who would willingly conduct a case against the two accused men from Bountiful.  That might mean Mr. Oppal was not interested in the rule of law but in a political desire to try the men.  The statement of claim against Oppal, filed in recent days, alleges Oppal acted in a manner “that was high-handed, arbitrary, reckless, abusive, improper and inconsistent with the honour of the Crown and the administration of justice”.

If there is truth to the allegations, we have evidence of the Special
Crown Prosecutor being used for exactly the opposite purpose than the purpose for which the institution was created.  But the allegations haven’t, of course, been proved.

In the case of the Bountiful men accused of polygamy none of the men invited to be Special Crown Prosecutor was in any way connected to them.   The Crown prosecutor office and two Special prosecutors simply did not think a case should be taken until the polygamy question in the Charter of Rights and Freedoms was pronounced upon by the Supreme Court of Canada.  Which is why the judge who stopped the trial of the men used the phrase “special prosecutor shopping”.  There are, perhaps, 11,000 lawyers practicing in B.C. and so it shouldn’t be hard for the Attorney General’s office to find unbiased, independent Special Crown Prosecutors. And, apparently, Wally Oppal did find a few, but moved from them, it would seem, when they did not believe charges should have been proceeded with.

In the BC Rail Scandal criminal case [for fraud, breach of trust, and money laundering] three cabinet aides are the accused civil servants who were appointed (in fact) by Gordon Campbell and who worked in close relation to cabinet members.  They provide every reason, clearly, for the appointment of a Special Crown Prosecutor.

As we remember, 20 months of police investigation was conducted – beginning, apparently, with drug matters.  The investigation spread – everywhichway – as the RCMP put it: drug matters, ALR matters, illegal proceeds of crime, and activities related to the transfer of BC Rail from public ownership to ownership by CNR.  That last was a major policy undertaking of Gordon Campbell and his cabinet, and it eventuated in allegations of favouritism and secrecy – one major bidder publicly declaring the bidding process tainted. (At least one other protested less publicly about the process.)

At least two of the accused men were involved with the cabinet policy of effecting the transfer to CNR.

A short time before the now-famous search warrant raids on B.C. legislature offices (December 28, 2003), William Berardino was appointed Special Crown Prosecutor. 

British Columbians have a hazy idea that legislature offices in general were “raided” on that day.  They weren’t.  The search warrant raids were targetted on the offices of Dave Basi and Bobby Virk only.  Dave Basi worked for Gary Collins, minister of finance.  Bobby Virk worked for Judith Reid, minister of transportation.  Gordon Campbell had (in fact) appointed the two aides.  All three of those cabinet ministers had to be considered principals in the transfer of BC Rail to CNR. 

None of their offices was approached by police.

At the end of the raids – in the midst of unexamined file cabinets, computer hard drives, and materials gathered from private offices and homes – the police announced that no elected official was under investigation.  A year later the three cabinet aides were charged – for wrongs in which they are alleged to have been engaged connected to the transfer of BC Rail to the CNR – a major activity of Gordon Campbell and important people in his cabinet.

The situation obviously bristles with connections.  Basi, Virk, and Basi were connected to cabinet.  All three – in greater or lesser degree - were connected to the BC Rail transactions.  The charges against them would almost certainly involve some mention, some discussion, even perhaps some allegations concerning their connection to cabinet, cabinet policy, cabinet members, government committees, and to other highly placed people involved with the “sale” of BC Rail.

Scrupulous care would have to be taken to find a Special Crown Prosecutor with no connection to any of Basi, Virk, and Basi.  Scrupulous care, too, would have to be taken to find someone free of any connection to Gordon Campbell, members of cabinet, influential civil servants – anyone in government who might be seen to be capable of or possessing the potential to influence or bias prosecutorial decisions taken by the Special Crown Prosecutor.

After some false starts, apparently, and some refused invitations – which the public needs to be fully informed about, but has not been – William Berardino was chosen to be Special Crown Prosecutor by the ministry of the Attorney General.  The three key people in such an appointment are the Attorney General, the deputy Attorney General, and the assistant deputy Attorney General – in the last case, he is a man who spent years working up through the ranks to become assistant deputy. 

What do we know about William Berardino in this regard? 

I had heard, quite early in the process of pre-trial hearings, that he had once been in some sort of relation to the Attorney General in the ministry that appointed him.  I took that to be something very inconsequential – like spending a year in the same firm at the beginning of his career … something like that.  I held that view because the very purpose of the Special Crown Prosecutor and the description of that role on the Attorney General’s site is clearly concerned that no suggestion of the possibility of bias or perception of bias will be present in the appointee.

In a few pieces I wrote, I remarked that if the allegations that the two were connected were true, everything Mr. Berardino did in the case would be suspect.  I meant that, even thinking Mr. Berardino’s connection with the Attorney General must be/must have been very slight.

I was – as readers must be – alarmed when I researched and found the degree of connection.  William Berardino had been for many years a partner and colleague of Geoff Plant, the Attorney General, whose ministry appointed Mr. Berardino Special Crown Prosecutor.  Mr. Berardino also had been a partner and colleague (for more years) of Allan Seckel, the deputy Attorney General in the ministry that appointed Mr. Berardino.

Allan Seckel is said to have worked on the first election of Geoff Plant to the B.C. legislature.  He was named Mr. Plant’s deputy Attorney General. And, it seems, three years after Mr. Seckel and Mr. Berardino ceased being partners, Mr. Berardino was appointed Special Crown Prosecutor by the ministry in which Allan Seckel was (and is) deputy Attorney General. 

By a fiat of premier Gordon Campbell in 2007, moreover, a careful protocol for screening cabinet documents for disclosure to the Defence in the Basi, Virk, and Basi case was changed.  Mr Seckel was placed in charge and would – the premier said – work with the Special Crown Prosecutor on relevant matters.  Two men – long in association as partners and colleagues in private practice - would be placed in charge of what (because of Gordon Campbell’s intervention in the disclosure matter) could very easily be perceived as a highly political matter concerning the criminal trial of Basi, Virk, and Basi.

In the three years I have sat in court through pre-trial hearings in relation to the accusations against Basi, Virk, and Basi, I have (probably quite naturally for a layman in a complicated procedure) been unsatisfied with the conduct of Mr. Berardino, thinking he might be delaying disclosure sought, that he might be claiming privilege for documents not really privileged, and so on.

Now I believe that I cannot be contradicted when I state that (possessing the knowledge I now possess of Mr. Berardino’s relations with a cabinet member - Attorney General - in Gordon Campbell’s government, and with a deputy Attorney General in that government) I am free, reasonably, to believe that I perceive evidence of bias exercised by Mr. Berardino in pre-trial hearings.  I hold that - whether or not Mr. Berardino has shown bias - his relation to people in the Gordon Campbell government – responsible for appointing him Special Crown Prosecutor - opens the door, inevitably, to the potential for such perceptions on my (or any one else’s) part.

That is why Special Crown Prosecutors are expected to be independent, unbiased, and free of the potential to be perceived as possessing bias or predetermined loyalty:  so that the administration of justice cannot fall into disrepute even by perceptions which may be misperceptions.

As a result, I believe, the process cannot go ahead further with Mr. Berardino in place.  I believe that is so because ‘the situation’ is one in which the reputation of the administration of justice is at risk.  ‘The situation’ produces a condition, ineluctably, that cannot be dismissed as unimportant to the rule of law.  It produces a situation in which reasonable men and women, I believe, might believe that it is impossible for justice to be done  - and to be seen to be done.

For that reason I wrote to the present Attorney General of B.C., the Honourable Michael de Jong, on January 7, 2010, asking that Mr. Berardino step down as Special Crown Prosecutor in the Basi, Virk, and Basi matter.  Mr. Berardino’s appointment, I believe, was highly imprudent (if not improper), to say the least.  I believe it was inconsistent with the honour of the Crown and the administration of justice.

I asked Mr. de Jong to put in place a fully independent, open, public Inquiry into prosecutorial services and, especially, the institution of the Special Crown Prosecutor.  Mr. de Jong has not yet replied to my letter. 

If any reader believes the actions I request should be taken, the e-mail address of the Attorney General is ag.minister@gov.bc.ca, the postal address is Box 9044, Stn. Prov. Govt., Victoria, B.C., V8W 9E2. ( If writers will send me a copy of communications to the Attorney General, I will be grateful.)

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