A Five Minute Hearing. The BC Rail Scandal. PART TWO

Posted on Monday, February 01 at 12:41 by Robin Mathews

A Five Minute Hearing At The Edge Of Trial, or The End Of Innocence.

PART TWO: Feb.1, 2010


Trial in the Supreme Court of British Columbia is imminent for Dave Basi, Bob Virk, and Aneal Basi facing (variously) fourteen counts of fraud, breach of trust, and money laundering as part of the BC Rail Scandal (the corrupt transfer of BC Rail to CNR by the Gordon Campbell government).  The January 25, 2010 brief hearing in B.C. Supreme Court set the gears turning for an announcement on February 8 or 10 of trial to begin … soon.


On the surface all is well; “appearances” are being kept up by those involved.  Beneath the surface, however, a very different condition exists, revealing, I believe, that the legal and court system in British Columbia is in almost complete breakdown.  PART TWO examines that condition. 


Surprisingly – there is a comic aspect to the devastating story of increasing  breakdown of the rule of law and the administration of justice in British Columbia.  It comes in the person of celebrated criminologist at SFU, Professor Neil Boyd.  As if on schedule his Report for the Canadian Bar Association has been made public just before (it seems) the Basi, Virk, and Basi trial. 


With the dead reckoning of a top stand-up comic, Boyd suggests there is nothing really wrong with the legal system in B.C. [Laughter] Moreover, a little education of the population, he believes, is all that is needed to erase what is, in fact, the highest dissatisfaction in all Canada with the legal system. [More laughter]  Then, says Boyd, a series of meetings should be held, including RCMP, (Special?) Crown Prosecutors, the judiciary, the Attorney General’s ministry, the Solicitor-General, and others.  All the people, in short, who I see as hard at work destroying the administration of justice in B.C. should gather together to create a Public Relations booklet intended to boost public confidence, dramatically, in the legal system. [Loud laughter that softens, and then turns into weeping].


Professor Boyd cannot have been paid highly enough for his work.  It is of priceless value to Gordon Campbell and his associates, right now.


In PART ONE I demonstrated that the appointment of William Berardino as Special Crown Prosecutor in the Basi, Virk, and Basi matter should never have taken place.  British Columbians can be content, I believe, that the Special Crown Prosecutor in the case should not be there.  Because of his unacceptable ties to the Gordon Campbell ministry that appointed him, whatever he does in the trial will not only rest under continuing suspicion; it will be, I believe, fundamentally illegitimate.  He should not be there.


When assistant deputy Attorney General Robert Gillen wrote me an absurd reply to my letter asking the Attorney General, Michael de Jong, to remove Mr. Berardino, Mr. Gillen was smoother and more slippery than a snake. (See PART ONE).


He wouldn’t say Mr. Berardino is acceptable as Special Crown Prosecutor – because I believe he knows he isn’t. Assistant deputy Attorney General  Gillen refused to discuss the matter.  Had Berardino’s been a legitimate appointment, I’m pretty certain Mr. Gillen would have written to tell me that in no uncertain terms. 


Instead, he refused to discuss the matter!


Mr. Gillen made what must be accepted as the formal response of the Attorney General of British Columbia.  Presented with substantial evidence of the unacceptability of a Crown Prosecutor in a case upon which the survival of the Gordon Campbell government may hang because of its probable involvement in illegal activities, Mr. Gillen simply refused to engage.


Apparently, several people were approached to take the role of Special Crown Prosecutor.  Among them, Josiah Wood filled the position for several days, withdrawing before the appointment of William Berardino.  I requested the Attorney General to make public all of the people approached and their reasons for refusing appointment.  There may have been “special prosecutor shopping” by the Attorney General’s ministry such as brought the judge in the case of the accused men from Bountiful, B.C. to stop that action.


The assistant deputy Attorney General refused even to refer to my request.


He refused, as well, to confront the larger issue of manipulation by the Attorney General’s ministry of prosecutorial appointments for political gain - for which there is growing allegation. The case just launched (by one of the Bountiful accused) against the former Attorney General alleging that he 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” is one example.  An open Public Inquiry into prosecutorial services in British Columbia is absolutely essential.  As long as it is refused by the Gordon Campbell government, reasonable British Columbians may assume the present system is maintained to violate the rule of law and to undermine the administration of justice. 


Defence counsel has used the phrase “the fix was in” to describe the early drive by Gordon Campbell to transfer BC Rail to CNR.  The Gordon Campbell team, it is alleged, pretended there was an open auction for BC Rail, a fair competition.  But “the fix was in” says Defence counsel.  BC Rail – before ever being announced as “for sale” - was going to go to CNR whatever happened.


I believe the whole process involved the Gordon Campbell team in criminal Breach of Trust. The “fraudulent sale” of BC Rail involved that team, I believe, in calculated lying to the public, in “scuttling” BC Rail to destroy its value, in paying huge sums of money to prepare the fraudulent evaluation for the sale, and then to conduct a fraudulent, expensive, “open, public auction”.


I believe Defence counsel in the Basi, Virk, and Basi pre-trial years have brought a great deal of evidence together pointing to the validity of those allegations – material now in the hands of lawyers and the courts.  The evidence awaits the natural next step, which is for the RCMP to conduct a criminal investigation of Gordon Campbell and all his associates connected to the corrupt transfer of BC Rail to CNR. 


I wrote to RCMP Deputy Commissioner Gary Bass requesting a criminal investigation.  He refused.  And he did so, I believe, because he is protecting Gordon Campbell and his associates.  The answer from Deputy Commissioner Bass was characteristic, I believe, of corrupt police forces.  He said, in effect, “You get the evidence for us” – knowing I do not have the power to investigate.


The refusal of Gary Bass takes the story back to the early investigations by the RCMP in the BC Rail Scandal and to the appointment of William Berardino as Special Crown Prosecutor. 


Court affidavit materials gained by NDP justice critic Leonard Krog reveal that top civil servants were having unrecorded conversations with RCMP about the issues involved and the forthcoming RCMP search warrant raids on legislative offices.  Strategy meetings were held, one at least attended by then-RCMP Deputy Commissioner Beverley Busson.  Moreover, we are led to believe that communications went between RCMP and Solicitor General Rich Coleman. Indeed, during pre-trial hearings, Michael Bolton for the Defence suggested that Coleman had a role in shaping the form police investigation would take – with the implication that Coleman steered investigation away from Campbell and associates – as a member of cabinet. 


What is more, police notes - Defence argues - refer to “investigation” of Gary Collins then-finance minister, as late as December 12, 2003.  At the conclusion of the “raids” (Dec. 28, 2003) however, with heaps of unexamined materials around them, RCMP announced that no elected officials were being or would be investigated. 


The RCMP “raids” that had just been made on legislature offices were only made on the offices of Dave Basi and Bob Virk, cabinet aides.  No RCMP “raid” was made on the office of Gary Collins, boss of Dave Basi, even though Collins was noted by RCMP as being investigated and being under  surveillance just a few weeks before.


All involved apparently knew the offices of Basi and Virk were going to be raided.  All also had to know that William Berardino had been a long-time partner and colleague of Attorney General Geoff Plant and Deputy Attorney General Allan Seckel (who appointed him as Special Crown Prosecutor before the raids).  It is in the realm of real possibility that Mr. Berardino advised on the nature and target of the raids - which went nowhere near the offices of the three cabinet ministers closest in work to Basi and Virk, the offices of Gordon Campbell, Judith Reid, and Gary Collins.


During the long pre-trial hearing period in which counsel for the accused were seeking evidence to use in the defence of their clients, delay, delay and botched disclosure marked the response of the RCMP – so much so that Madam Justice Elizabeth Bennett showed distinct impatience.


When Mr. George Copley, counsel (in fact) for the cabinet reported the extraordinary, historic event – that key e-mail records of cabinet matters related to the BC Rail Scandal had been, inexplicably, destroyed, the Attorney General’s office snoozed, initiating no action.  British Columbians who expected the RCMP to move on the matter with the speed the Force had used to taser Robert Dziekanski and to shoot Ian Bush through the back of the head in the Houston, B.C. police station were disappointed.  The RCMP did … nothing.


In the courtroom, Defence counsel asked Madam Justice Elizabeth Bennett to summon to the court without delay, for cross-examination, the actors involved in the destruction of what may be key evidence.  Madam Justice Bennett refused to summon them … at all.


Over time, some of the lost material was retrieved (causing delay and additional expense).  But only SOME of it was retrieved.


British Columbians will never know how much or what material was improperly destroyed.  They may be excused if they have a perception of the RCMP in British Columbia as the servant of the Gordon Campbell government in any matter – legal or illegal –in which that government chooses to engage.


Indeed … the refusal of RCMP Deputy Commissioner Gary Bass to undertake an announced criminal investigation of Gordon Campbell and associates in the transfer of BC Rail to CNR may, in fact, be – in itself – a criminal dereliction of responsibility.


[All of that is written with a profound sense that in the RCMP there are men and women of the highest probity who are presently almost invisible and unable to stem the increasing corruption of the Force.]


As a result of the refusal of the RCMP to investigate Gordon Campbell and associates, the trial of Basi, Virk, and Basi – except as it shows the embarrassing corruption of the Gordon Campbell forces – will be largely a phony, sand-box game.  It will be as if the famous Nuremburg Trial of Nazis at the end of the Second World War was conducted – but with only a few foot soldiers taking the stand as accused people.  And it may be as if the prosecutor was from the Nazi high command, happy to use a few foot soldiers to be sacrificed for “the men who really matter”.


Some of Special Crown Prosecutor William Berardino’s actions in the Basi, Virk, and Basi matter bring us up against the B.C. Supreme Court structure in an embarrassing way.  That structure looks increasingly as if it is a corrupt playground of corrupt politicians.


To begin, Associate Chief Justice Patrick Dohm has played a disturbing role in the BC Rail Scandal from the beginning.  Signing all the search warrants for the RCMP “raids” on legislature offices in 2003 as well as on private offices and homes, his behaviour since has been strange. I have come to believe that he works actively to shield Gordon Campbell and his associates from the investigative scrutiny they should undergo.


For the years I have observed the pre-trial hearings involving Basi, Virk, and Basi I have believed Mr. Dohm’s so-called “Practice Directions” (issued to all relevant court officers) suppress information the British Columbia public has a right to receive openly.


When the search warrants from all the RCMP “raids” should have been made public, Mr. Dohm sealed them.  I believe he did so illegitimately.  When he – after public pressure – released them to the public, the release was a farce.  Most of the material was censored by heavy black erasures of most of the text.  He did not, in effect, ever release the search warrant material related to anyone but the (later) accused.


If the search warrant raids were just, fairly undertaken, and properly planned, why are the search warrants still censored?  They are conventionally considered public property. The only full information released is that covering the (later) accused men, almost as if focussing attention away from others searched.


When pressed for information about the warrants in the period during which he had completely sealed them, Mr. Dohm responded.  His response was to have William Berardino prepare a report on them, in the place of Mr. Dohm,  for members of the press.  That was an astonishing action. The relation between judges and prosecutors should always be handled with kid gloves.  Judges and prosecutors should not be, and should not even seem to be, working together.  Prosecutors ARE NOT the same things as, or the equals of judges.  Associate Chief Justice Dohm seemed to say “to hell with that principle.  William Berardino and I are working hand in glove, with exactly the same aims”.


Mr. Dohm’s most egregious action – in my experience – was his buffoon-like appearance in court in June, 2009, to hear Mr. Berardino’s motion to have Madam Justice Elizabeth Bennett removed from the Basi, Virk, and Basi matters.


I am convinced there was no sound reason to move Madam Justice Elizabeth Bennett.  Start there.


Mr. Berardino looked foolish, saying she should be removed because she couldn’t be in two places at once (to which comment Associate Chief Justice Patrick Dohm responded with enthusiasm).  Mr. Berardino also said – opening a serious, unchallenged allegation – the court process had not been conducted as it should have been.


Associate Chief Justice Dohm asked no questions.  When Defence counsel rose to challenge Mr. Berardino’s statement, Mr. Dohm shut up the speaker, forbidding him to speak.  Then Mr. Dohm said he had Madam Justice Elizabeth Bennett’s replacement already chosen, and that he would be back – apparently to announce the name.  He never returned.  His short time in court was the ugliest event I have witnessed in the Basi, Virk, and Basi pre-trial hearings.


From then on, Madam Justice Elizabeth Bennett slowly evaporated from the case.  Her removal is deeply disturbing.  It looks improper.  It appears to be the result of a kind of unsavoury collaboration between the Associate Chief Justice and the Special Crown Prosecutor – setting up a “process” that was in fact no process at all.  If Madam Justice Elizabeth Bennett was removed for reasons other than the half-baked ones given at the time – what were the reasons?


The answer may lie in the arrival of Madam Justice Anne MacKenzie in Justice Bennett’s place.  She has acted to prevent Defence counsel from getting access to materials – as I see the situation – that might call into question the actions of Gordon Campbell and associates in the BC Rail Scandal and their relation to the accused. 


Madam Justice Elizabeth Bennett permitted disclosure applications that might reveal material relevant to the Defence of the accused – in a quite wide-ranging way.  As a result important, relevant materials were obtained, material of real use to the Defence. The applications for disclosure revealed again and again that Defence counsel were not on “fishing expeditions” but following logical lines of investigation.


Justice Bennett, too, however, appeared to me to push Defence counsel away from key cabinet officers involved with the RCMP search warrant “raids” on legislature offices.  People like Rich Coleman, Solicitor General at the time, for instance.  (I registered criticisms of her failure to end RCMP delay by firm action.) But she was otherwise, mostly, open to requests for disclosure.  Madam Justice Anne MacKenzie has not been so.


It is almost as if Associate Chief Justice Patrick Dohm said: “someone has  to get to Madam Justice Elizabeth Bennett and close her down – and I’m just the man to do it.  To hell with the fair administration of justice”.  No proper and full explanation has been given for the removal of Madam Justice Bennett as far as I’m concerned.


The implications of what I have just written are massive.  I am suggesting that – as fairly and clearly as I have been able to observe matters – I believe there has been improper judicial interference with the administration of justice in the Basi, Virk, and Basi case.  I have come to believe that the appointment of Madam Justice Anne MacKenzie was undertaken not impartially but with an intended partial – that is biased – intention. 


I believe that – to this date – she has fulfilled that purpose.  As Keith Fraser (Vancouver Province) commented a short time ago, Madam Justice Anne MacKenzie hasn’t once found or ruled or decided in favour of Defence counsel wishes since she took over from Madam Justice Bennett. 


Madam Justice MacKenzie has changed the character and direction of pre-trial hearings in the Basi, Virk, and Basi matter.  Her task has seemed to be – as I have said – to prevent Defence from high-lighting connections among cabinet policy, members of cabinet, cabinet actions and the behaviour of the accused. 


I expect that she will use all her judicial power in the trial to serve the same ends, which are – briefly, as I see them – to protect Gordon Campbell and his associates in the corrupt transfer of BC Rail to CNR from being closely connected to the accused and/or examined, themselves, in answer to allegations of criminal behaviour.


If what I have said in this review is correct, the RCMP has failed, seriously, in its role.  The judiciary has failed.  The Attorney General’s ministry has failed in the appointment of a Special Crown Prosecutor – and, perhaps, has engaged consciously in behaviour that is improper.


The trial, then, will be prosecuted by a Special Crown Prosecutor whom I believe was wrongfully appointed (see PART ONE). It will be – in my opinion – based upon evidence (for the prosecution) gained by RCMP officers sometimes deliberately biased in their investigation, sometimes refusing to investigate leads to possible evidence of (connected) wrong-doing among senior elected politicians.  It will be a tiny case which will be conducted – and has been so set up by judiciary and prosecution, I believe – to draw attention away from the fact that parallel cases, now, should be being conducted against highest ranking (present and past) political actors.


It will be conducted by a judge whose grasp of the case (because of her sudden, late appearance in the pre-trial processes) is, I believe, necessarily limited.  That judge will act, I believe, under the suspicion that she is a political appointee sent in as an instrument to serve the will of forces that cannot be fully identified.


The trial of Basi, Virk, and Basi will, I believe, be a grand pretence.  As a game of pretending it will be faultless.  The conventional press and media will pretend the Special Crown Prosecutor is totally legitimate.  They will pretend that the evidence he brings forward and the witnesses he produces are truly what a full and fair investigation of all the linkages to Basi, Virk, and Basi would produce. (Those linkages, properly pursued would, I allege, ineluctably draw in related people and highly complex actions by senior government officials in the transfer of BC Rail to CNR that would suggest the need for additional accusations.)


The Special Crown Prosecutor may even produce specially selected RCMP investigating officers as witnesses to corroborate what I believe will be the sham being presented.  RCMP Deputy Commissioner Gary Bass, I believe, will have been fully cooperative in the matter, fulfilling – what I believe - is the primary role of “E” Division (the B.C. RCMP) - to protect Gordon Campbell and his associates before all else … in whatever improper actions they choose to undertake.


Professor Neil Boyd, celebrated criminologist at SFU, may even use the trial as an example of the superb operation of our legal system.  If he does, he ought to be paid richly for a ringing endorsement of what I believe will be (from the side of the prosecution) a wholly “manufactured” trial.
















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