Thursday, July 23, 2009

Defence alleges BC Liberal insider Patrick Kinsella paid over $175,000 by BC Rail without any invoices; Kinsella lawyer wants records blocked

UPDATE 12 p.m. Friday

The Province's Keith Fraser reports that Justice Elizabeth Bennett has ruled this morning that about half of the BC Rail documents connected to Patrick Kinsella are relevant to the defence and ordered them released, in particularl emails describing meetings being set up between Kinsella and BC Rail shortly after the election.

“Given that B.C. Rail was put on the market in 2002, and the charges come from that event, these documents are likely relevant. Mr. Kinsella does not have a privacy interest on the documents,” Bennett stated in court.

UPDATED 6 p.m. with new info from afternoon court session

The defence in the Basi-Virk case today alleged that BC Liberal Party insider Patrick Kinsella was paid over $175,000 in consulting fees without submitting any invoices for his work.

And Kinsella's lawyer James Sullivan argued in BC Supreme Court that about 108 BC Rail records, documents and emails connected to Kinsella should not be disclosed to the defence, saying they are either private and harmful to Kinsella's business or not relevant to the case.

In court Kevin McCullough, representing former BC Liberal ministerial assistant Bob Virk, alleged Kinsella played a key role in the $1 billion privatization of BC Rail and that he had significant communications with successful bidder CN Rail when the deal got into trouble after the sale was announced.

McCullough blasted the lack of invoices from Kinsella and his company the Progressive Group to BC Rail for what he said amounted to more than $175,000 of the $297,000 the former BC Liberal Party co-chair in 2001 and 2005 charged the Crown corporation for "business advice."

"The fact that we only have invoices commencing in July 2004 for all the Progressive Group when we know in excess of $175,000 was paid from 2002 to 2004 alone is significant to what Mr. Kinsella was doing for B.C. Rail," McCullough told Bennett in arguing for disclosure of the documents.

But B.C. Rail lawyer Robert Deane said this afternoon that there was “an explanation and it’s not sinister.”

Deane said CN Rail had taken over B.C. Rail documents in July 2004, so they were not in B.C. Rail’s possession.

Deane said an affidavit filed in June of 2009 explained that when the transfer of B.C. Rail to CN was completed in about July 2004, recoreds were transferred to the control of CN.

Outside court Deane declined to answer questions about why B.C. Rail still retained some records related to Kinsella but not others or whether B.C. Rail knows if the invoices exist and are in CN's control.

Sullivan said outside court he has no information on the invoices.

But earlier in court McCullough launched a blistering attack on Kinsella and his role at B.C. Rail.

"What did he do for $175,000 between 2002 and July 2004? We know he was campaign chair for Mr. Campbell in 2001. We know that CN was communicating with him directly....A reasonable inference can be drawn that something's not right," McCullough alleged, telling Bennett that Kinsella was retained by B.C. Rail chair John McLernan, a provincial political appointee.

"If Mr. McLernan hired a backroom Liberal lobbyist guy, that's highly relevant," McCullough said. McCullough at one point repeated the term "McLernan-hired, Liberal backroom lobbyist" four times in a row.

In court Sullivan argued that the B.C. Rail records connected to Kinsella should not be disclosed to the defence.

"Mr. Kinsella asserts that documents from B.C. Rail cannot possibly be relevant and also asserts privacy rights. Many of these B.C. Rail documents fall outside the time period where they would be likely relevant," Sullivan said.

And Sullivan told Bennett that release of the documents could be harmful to Kinsella's business.

"Mr. Kinsella is not a government official or a public figure. He's a private citizen who relies upon his good reputation for his business," Sullivan said. "Mr. Kinsella, it must be stressed, is not a party to these proceedings."

Sullivan said that if Bennett rules any documents related to Kinsella should be released, he would want to review them and make submissions on redacting some of the content.

NEW: Tempers flare on all sides in testy battles between lawyers and between lawyers and Justice Elizabeth Bennett

The afternoon session saw some of the testiest arguments yet seen in
court in over three years, with McCullough at one point seeming close to being ejected by an obviously angry Justice Elizabeth Bennett.

And Bennett repeatedly ordered Sullivan to sit down and stop interjecting, at one point warning him his actions could potentially result in grounds for an appeal in the case by the defence.

An exasperated McCullough attempted to make additional arguments in response to statements by
Special Prosecutor Janet Winteringham in support of Sullivan's position on disclosure of the Kinsella documents and after Sullivan accused the defence of going on a "fishing expedition".

"I have issues to reply to," McCullough said to Bennett despite being told not to rise. "You raised the CN-Kinsella relationship. There is evidence....

"No there isn't," Bennett cut in.

McCullough continued despite Bennett's indication to sit down.

"Can you stop talking please?" an irritated Bennett told McCullough.

When McCullough still continued, Bennett cut him off: "We're going to take a break - 15 minutes!" and then walked quickly out of court.

Earlier in the afternoon Michael Bolton, representing former ministerial aide David Basi, had also alleged that Kinsella played a critical role in the sale of B.C. Rail and that his records are therefore essential to the defence.

"At a political level, he's the man the government couldn't do this deal without," Bolton said of Kinsella's role as a paid consultant at B.C. Rail. "It's a matter of having a key political fixer on the payroll."

And Bolton had little sympathy for Sullivan's arguments to protect Kinsella's privacy.

"Mr. Sullivan argues correctly that his client isn't a public figure - that's true - he's a backroom guy, he's a political figure. It's a power broker role," Bolton said of Kinsella. "There's no doubt Mr. Kinsella would like to remain in the backroom but these documents are critical to the defence."

Winteringham appeared to argue against the defence and for Sullivan's position on the Kinsella documents, saying that defence lawyers had not made a case for extending the time frame for documents or proving likely relevance.

"If the defence is advocating the court consider that 'the fix is in' or "something is not right" the defence must establish that this defence exists at lawy and is of relevance," Winteringham said.

"The defence must move beyond speeches from the floor about likely relevance," she added.

But it was Sullivan's reply to the defence position that raised the most hackles.

"There were documents that were completely irrelevant and yet the defence has come to court and not only argued that they were likely relevant but that they were highly relevant," Sullivan said.

Referring to documents that connected Kinsella to political advice to B.C. Rail regarding the Waste Management Amendment Act of 2002, Sullivan said that despite it having no connection to the case, the defence argued it was relevant.

"The Waste Management Act has absolutely nothing to do with B.C. Rail except that it is a property owner," affected by the amendments, Sullivan said. "Frankly, that's absurd."

After terming the defence arguments a "fishing expedition" Sullivan said that Kinsella's privacy interest is "significant" and his connection to the accused was "remote".

Eventually Bennett allowed McCullough to reply but Sullivan repeatedly tried to object.

"Mr. Sullivan - criminal case - the accused's liberty is at stake - I'm going to let him speak," Bennett said.

When Sullivan later rose again, Bennett warned him strongly: "It doesn't help me if you object. Not letting the defence argue for disclosure is a clear grounds for appeal."

McCullough returned to Kinsella's alleged connection to CN.

McCullough said the Crown's own disclosure of a document seized from Pilothouse Public Affairs in which lobbyists Erik Bornmann and Brian Kieran - who alleged bribed Basi and Virk but are now key Crown witnesses - is where Kinsella link to CN came out.

"This document talks of Mr. Kinsella being CN's political advisor. The Crown relies on these two witnesses - they say Mr. Kinsella was CN's political advisor," McCullough alleged. "According to Mr. Bornmann and Mr. Kieran, Mr. Kinsella is CN's chief political advisor."

The defence has previously alleged that Kinsella may have also been working for CN as well as B.C. Rail but today Bennett said that: "There is no evidence that Mr. Kinsella worked for CN Rail."

McCullough also discounted Deane's explanation of the lack of invoices from Kinsella being in B.C. Rail's possession.

"Whether or not those documents existed and whether they were shipped to CN is another matter," he argued.

McCullough also said B.C. Rail-Kinsella documents related to the Waste Management Amendment Act were indeed relevant.

"The Waste Management Act was going to affect the cost to the buyer - that's why Kinsella was getting it from B.C. Rail," McCullough argued. This Act is going to impact the operating costs - it's obvious."

Bennett said she will rule at 8:30 a.m. Friday on which documents will be examined for likely relevance.

The pre-trial hearing will then be adjourned until August 17, when she is expected to rule on whether she will stay on as the trial judge despite her promotion to the Appeal Court of BC or not.

The court will also hear from BC government lawyer George Copley whether backup email tapes of cabinet ministers and staff that were sent to EDS Advance Solutions for destruction in early May still exist or not.



DPL said...

Glad to see you are on the job Bill.
Thes pretrial bits have more twists and turns that I figured was possible, so when lawyered up things do seem to enter endless circles.

Anonymous said...

another example of how campbell rewards his friends!

next we will hear that the BC Rail emails regarding Kinsella cannot be retrieved.

all of these contracts do not follow the government policy and guidelines.

Anonymous said...

boy oh boy he's worried about kinsella's business reputation ,if the email's are released?Based on that assumption alone something very wrong is in those puppies!I say throw him in jail to if he ripped us off!oh,and by the way we have every right to know what's contained in those emails he was hired on retainer although with a high conflict by the crown corp! being the chair of the campbell election team that alone should be investigated! pretty good rewards hey! thats what he was payed for!

Gazetteer said...

Of course Mr. Kinsella is a private figure.

No argument there.

But is not BC Rail, both then and now, a public company?

And does that not mean that any and all monies that Mr. Kinsella was paid while working for that company came from, well, you know....




Norman Farrell said...

DPL, it is not the acts of lawyering-up that causes endless circles.

It is the act of giving those lawyers unlimited access to the public purse that causes endless circles. Deceiver Campbell wants this to drag on endlessly, so do the lawyers. One avoids embarrassments, the others fill their pockets. The only losers are the citizens and they are used to it.

Anonymous said...

kinsellas lawyer sounds like a goof to me?with all that money you think he could hire a lawyer with a little more savvy don't you think?LOL he is a private company ya bozo dealing with a public corp fool!ROTFL!
Ya gotta do better than that to fool most of the people some of the time!who gave that guy a Degree!
unless kinsellas doing it on purpose to claim his lawyer as incompetent and retry it again thus more stonewallying and more delay rhymes with stay,just a thought.

Anonymous said...

Norman ,Im not a loser and neither are you,the only loser's are campbell forces do you really think hes sleeping soundly these day's?
evey time some news comes out it's like a beam of light piercing his dark sphere!

RollEyesNow said...

Excuse me?

". . . . BC Rail records, documents and emails connected to Kinsella should not be disclosed to the defense, saying they are either private and harmful to Kinsella's business or not relevant to the case.

Oh really . . . Why would they be "harmful to Kinsella's business? We are talking about a Publically owned Railway last time I checked.

Seems Kinsella's and his lawyer's perspective is just a tad self consumed: Me, Me Me. Therein lies the problem with this whole corruption case.

Experience with such matters of witnessing the whipping out of black felt pens and continual attempts to hide the docmented FACTS - is a sure sign of a COVERUP - protect the trail of linkages at ANY COST.

I agree, Anonymous 2:50 pm:

"something very wrong is in those puppies!! The rot runs wide and deep.

. . . the opertive question begs an answer:

Was this secret, Old Boys deal "harmful" to British Columbian's best business interests, as TAXPAYERS ASSETS were leveraged for this private Club's network's personal best interests . . . . 'everywhichway'?

Time to end the $$$$$ 'games' that have lined the pockets of this bunch of bandits for too many years, including their VANOC 'games' . . . . . same old gang playing with billions of dollars of Taxpayers Assets behind closed doors. Follow the $$$$ - it's a tried and true motive for a web of deceit.

What has been going on to destroy British Columbian's economic interests in PRIVATE boardrooms and the best restaurants in town? It is NOT limited to BC Rail.

Time to see every nook and hidden corner of this OLD BOYS TEAM's 'plays' (crossing party lines)and coverups exposed.

Thank you, Bill for attending pre-trial hearings. No doubt you have known A LOT surrounding Kinsella & Co. OTHER corporate connections for some time.

British Columbians have deserved better for decades. Bring it ALL to the light of day

Anonymous said...

Just like DEEP THROAT said to Woodward . . . FOLLOW THE MONEY !


North Van's Grumps said...

No invoices were submitted by Patrick Kinsella/Progressive(s), but he was paid from the bank account of BC Rail......?

Is there as double set of books in place here, one for the Auditor, one for the BC Liberals?

Gazetteer said...

Bill T.--

Great almost-live blogging of the blow-by-blows in the afternoon session.


But just wanted to check, right near the end, did you really mean to write the following.....

...but today Bennett said that: "There is no evidence that Mr. Kinsella worked for B.C. Rail."...


Anonymous said...

Bill, did you err in your column when you stated:

"Bennett said that: "There is no evidence that Mr. Kinsella worked for B.C. Rail."

That certainly contradicts what I have heard so far. Now I don't know what to believe anymore.

Bill Tieleman said...

Yikes - I repeated an error that Justice Bennett made in saying "BC Rail" when she and I meant "CN Rail" - thanks for spotting the obvious error which I've now corrected.

Gazetteer said...


Correcting mistakes, inadvertant or otherwise, when they are pointed out to them....

Who knew?

(I'd put a little smiley face thingy right here if I didn't hate them so - thanks again for the great reportage Mr. T.)

Bill Tieleman said...

ALSO - the item disappeared when I was adding to it - sorry.

And one posting I viewed as defamatory was rejected - please chose your words very carefully when commenting.

Angela said...

The more I think about it, the more I'm sure this will all end in a mistrial because of the "missing" e-mails. Campbell and the other government figures involved probably advised the defendants to sit tight while all the lawyers played stalling games. Now no-one can prove what was said and the destroyed e-mails remain a mystery, meaning they could have been key evidence for the defence or could have been meaningless and therefore legal to be destroyed as Campbell claimed, not mentioning that the key evidence has been "displaced". It's an old sleight of hand trick designed to show how every one of these alleged crooks could be innocent so they all get away with our tax dollars.

Anonymous said...

Why is Kinsella's lawyer arguing so vehemently that these documents are not relevant. If they are not relevant then the defence cannot use them ...right????

He seems to be greatly concerned about something in these documents.

Anonymous said...

In light of all the comings and goings of the Basi-Virk matter lately, I decided to rent and watch "All the President's Men".

I probably saw the movie 2x when it came out, but watching it again my eyes were so wide open that my head hurt.

I heartily recommend a re-watch of this movie I have a renewed appreciation of what Bernstein and Woodward did, and particularly the comment 'why did they do it--McGovern was going to lose anyway?'

Anonymous said...

“The defence has previously alleged that Kinsella may have also been working for CN as well as B.C. Rail but today Bennett said that: "There is no evidence that Mr. Kinsella worked for CN Rail."

Bill, does this mean that some of the defence allegations are untrue?

Bill Tieleman said...

To respond to Anonymous 11:03:

None of us can judge whether defence or crown allegations are true or not - we have yet to see a trial where evidence is presented and cross-examination takes place, where the media can look at the evidence rather than hear verbal reports.

That, in my view, is how the public can truly judge the veracity of any allegations.

But common sense can still apply to evaluation of the statements made in court in pre-trial hearings.

I have been, I hope, judicious in reporting all sides fairly as to what has been said in court.

I cannot tell anyone whether allegations are true or false.

But I can tell you to use your own common sense, weigh what you hear and see and form your own opinions based on what we do know.

I hope we will some day be able to have enough information to draw conclusions on this most important, complicated and confounding case.

Anonymous said...

quick question: did she decide if she will continue as trial judge? on wednesday, you mentioned that she will rule on that on thursday? is that happening on friday morning?

Bill Tieleman said...

Justice Bennett will rule on whether she will stay on as trial judge on August 17 - not Friday - but I believe there is almost no chance she will decide to hear this case.

Anonymous said...

I think most would want Bennett to continue on with this debacle, but one can certainly understand Bennett's desire to move on with her career. After all she's been at this for 5 years or so and the way things are going it could go on for another 5 years or more, or simply run of the rails so to speak when it's thrown out for abuse of process, or a miscarriage of justice simpley because it has gone on so long.

And the citizens of Toronto think it stinks back there! Come out here 'n' take a whiff!

Anonymous said...

11:31 Bill Tieleman wrote:

"I hope we will some day be able to have enough information to draw conclusions on this most important, complicated and confounding case."

May I draw your attention to another case, that has been reported in this morning's Vancouver Sun on Kash Heed, while Chief of Police for West Vancouver, now the Solicitor-General?

Premier Gordon Campbell stated: "I think its always a mistake to push to judgment on the basis of partial information" This from a government that appears to have stymied every call placed upon them by the public, and representatives of the courts, for accessing the flow of Freedom of Information requests.

If the Premier believes that judgement's should be based on full disclosure of evidence, why did someone from within government call for the destruction of evidence in early May 2009 after the files had been held in readiness for the Courts call?

As to Mr. Deane's statement in Court: "B.C. Rail lawyer Robert Deane said this afternoon that there was “an explanation and it’s not sinister.”
Deane said CN Rail had taken over B.C. Rail documents in July 2004, so they were not in B.C. Rail’s possession."

If the emails have been destroyed, does the Court have access to the BC Rail documents that were turned over to CN Rail, or will the public have to wait 900 years when the lease expires for the vault to be cracked open on the sale of BC Rail?

Anonymous said...

Boy this guy kin sella railway!

North Van's Grumps said...

Good Morning Bill,

I left this comment over at BC Mary's last night after doing a little (LOL) bit of research on the BC government websites.

It appears that the Document Disposal Act isn't the only criteria that has to be used when determining when not to shred/delete/destroy British Columbia historical writings. Future generations are entitled to see for themselves the good, the bad and the ugliness of political deeds.

10y = All executive records will be retained for a minimum combined active and semi-active retention period of ten years from the date of file closure. In some cases, a longer combined active and semi-active retention period may be required under ARCS or ORCS.

SR = The government archives will selectively retain executive records because of their significant operational, legal, historical, evidential, informational, or other values.

Executive records often document the development, implementation, operation, and evaluation of government legislation, programs, and services. Such records are unique primary source documents and will be retained.

The government archives will fully retain records which pertain to legal precedence, audits or special investigations.



Anonymous said...


Anonymous said...

Hi Bill,I have a question ,if the govt.was dissolved,could the person who ordered the destruction of the tapes be charged as a citizen and have no legislative immunity?

Bill Tieleman said...

There is no immunity from criminal prosecution for anyone in this situation.

Anonymous said...

Thanx,and I hope so!

Anonymous said...

Except for the Secret Witness that our Crown Special Prosecutor is protecting in front of the Supreme Court of Canada.

Just when is that decision going to be handed down?

右脳左脳チェッカー said...