A Letter To Top Judges Of The B.C. Surpeme Court

                                                     520 Salsbury Drive,

                                                     Vancouver, B.C., V5L 3Z7,

                                                     March 3, 2010.

Madam Justice Anne MacKenzie,

Associate Chief Justice Patrick Dohm,

Chief Justice Robert J. Bauman,

The Law Courts, 800 Smithe Street,

Vancouver, B.C.   V6Z 2E1

                                                     cc. press, media, others….

Dear Madam Justice MacKenzie, and

my Lords:

As amicus curiae (friend of the court) in the matter of accusations against Dave Basi, Bobby Virk, and Aneal Basi I am writing to you today, formally, as a British Columbian, to ask for judicial action and decision taken publicly and upheld publicly to remove William Berardino as Special Prosecutor in the case.

If validation of my request requires that I undertake, in the Law Courts building, to complete forms and/or fulfill any other requirements, I will be happy to do so upon receiving your advice.

The matter I place before you is simple; it involves patently obvious violation of the primary intent and purpose – and the particular, unacceptable appointment – of a Special Prosecutor, specifically in the Basi, Virk, and Basi matter.  The violation is so flagrant and damage to the reputation of the administration of justice in B.C. is so undeniable that remedial action must be taken, and without delay. 

The crux of the matter is real or perceived conflict of interest and/or the significant possibility of a perceived or real improper influence on the prosecution process.   The CBC (Sept.23, 09) put the matter in simplest terms: “Special prosecutors are used in B.C. to replace regular Crown Counsel in politically sensitive cases to avoid the possibility of political interference”. 

The government of B.C. states, further, that historically, “special prosecutors have been appointed in cases involving cabinet ministers, senior public or ministry officials, senior police officers, or persons in close proximity to those individuals”.

It states as well, “where there is a possibility of a perceived or real improper influence on the prosecution process, the head of the prosecution service … will appoint a respected lawyer from outside the prosecution service as a Special Prosecutor to handle the case”.

Before the search warrant ‘raids’ on the legislature offices of Dave Basi and Bobby Virk, cabinet aides (Dec. 28, 2003), William Berardino was named Special Prosecutor.  A year followed upon the raids, and charges were laid by the Special Prosecutor.  During the more than three years of pre-trial hearings, William Berardino was Special Prosecutor as he is today in preparation for the beginning of trial on May 3, 2010.

The cabinet of Gordon Campbell, I insist, in the person of Attorney General Geoff Plant and in the actions of his ministry, appointed someone who introduced “a significant possibility of a perceived or real improper influence on the prosecution process….”  To put the matter another way, they appointed someone in a politically sensitive case such as to introduce the possibility of political interference or the perception of possible interference.

From the beginning, cabinet ministers and highly placed civil servants were consulted by RCMP officers concerning the staging of the legislature ‘raids’ on the offices of the accused.

The three men accused were Gordon Campbell appointees carrying out cabinet policies and orders.

The three men accused were active in and charged with relation to a major cabinet policy and program – the corrupt transfer of BC Rail to CNR.

The cabinet, then – the whole cabinet, with focus on some individual members – was and is a deeply “interested” body in relation to the Basi, Virk, and Basi case, possessing individuals of especially “interested” concentration on the persons accused, on their activities while cabinet aides, on the knowledge they have of cabinet business and activities concerning the BC Rail Scandal, as well as on the conduct and the outcome of the all court processes involving them.

It was essential – without a shadow of a doubt – that the Special Prosecutor appointed should have no relation whatever to the three men accused or those in proximity to them. 

It was equally essential that the Special Prosecutor appointed should have no relation whatever to members of cabinet or high civil servants or those in proximity to them.

Mr. Berardino we learn was a partner and colleague for seven years of cabinet minister Attorney General Geoff Plant whose ministry made the appointment naming him Special Prosecutor. 

Mr. Berardino we learn was, in addition, a partner and colleague of the deputy Attorney General Allan Seckel for eleven years – Allan Seckel being deputy Attorney General in the ministry that appointed Mr. Berardino.

Mr. Seckel, we know worked in the first political campaign of Geoff Plant in his bid for election.  Subsequently, Mr. Seckel was named Geoff Plant’s deputy Attorney General.

In 2007 when Gordon Campbell unilaterally replaced the screening process for cabinet documents sought by Defence counsel, he did so to general puzzlement.  The system was working well. Nevertheless, he had hundreds of people he might have chosen to take up the task.  He chose Allan Seckel, deputy Attorney General.  Campbell said that Mr. Seckel would work with the Special Prosecutor on the matter – the two men, by the merest coincidence, having been partners and colleagues for eleven years.

Mr. Seckel publicly defended his role, giving assurance he had blocked no requests for documents.  That fact is irrelevant.  Why was the change made?

Why was Allan Seckel appointed when the appointment clearly involved (a) perceived conflict of interest, or (b) real conflict of interest, or (c) a significant possibility of perceived or real improper influence….

William Berardino – before that time – had no reason to meet or to confer with Allan Seckel.  Gordon Campbell set up a reason for the two to confer by making a sudden, inexplicable change to a process that was working and needed no change.

I am concerned here with fact that does not involve speculation.

I have provided it: in violation of all significant interpretations of the office and the terms of appointment of Special Prosecutors in British Columbia, William Berardino was appointed Special Prosecutor in the Basi, Virk, and Basi case.

His improper appointment has been further muddied by the action of Gordon Campbell in his unilateral appointment of Allan Seckel in 2007 to handle cabinet documents sought by Defence.

From the day of his appointment  - because of his relation to key government officers – William Berardino’s every action in the Basi, Virk, and Basi matter is, by definition, inescapably open to suspicion.

The administration of justice cannot bear such a load.  Remedial action  must be taken without delay.  That means, I believe, that William Berardino must be removed as Special Prosecutor in the Basi, Virk, and Basi matter. 

That action might well entail, after it, an independent review of charges laid, independent investigation of evidentiary material -  resulting in the laying of different and other charges involving people other than the presently accused.  But that is speculation….

Whatever future actions might be taken, I do not believe that you – the judge on the case, and senior officers of the B.C. Supreme Court - can do anything but require the removal of William Berardino as Special Prosecutor. 

If – by silence or spoken consent – you approve of him continuing in the role, I believe (with the deepest respect) you will be inviting a perception of the administration of justice in British Columbia as a corrupt political plaything of Gordon Campbell and his friends.

                                                                          Yours respectfully, 

                                                                           Robin Mathews