Friday, April 03, 2009

Defence alleges possibility of political interference by Premier Campbell through Attorney General's ministry

The defence in the BC Legislature Raid trial today raised in BC Supreme Court the possibility that Premier Gordon Campbell used the attorney general's ministry to politically interfere with the case.

Defence lawyer Kevin McCullough alleged in a combative presentation that Justice Elizabeth Bennett should disclose additional documents from the attorney general's ministry that would let the defence potentially argue political interference in the case.

"The point of these submissions is to put documents in front of you to draw inferences related to political interference," said McCullough, who is acting for Bob Virk. Virk, David Basi and Aneal Basi face corruption charges connected to the $1 billion privatization of BC Rail in 2003.

"That political interference is rooted in the fact that the premier, the premier's office, the politicians were using the attorney general's ministry as a political arm in this matter, and particularly, that this necessarily conflicted the attorney general's ministry in their role," McCullough alleged.

"The defence will argue there are fundamental conflicts - the attorney general's minister had dealings with the accused to determine if they would be funded at all for their defence," McCullough said, referring to indemnification agreement the accused have to cover their legal fees if found not guilty.

McCullough alleged that Deputy Attorney General Allan Seckel was put into a potential conflict of interest position by Campbell when he was made responsible for giving directions to government lawyer George Copley on which documents could be disclosed to the defence and which should be withheld on the basis of parliamentary or cabinet privilege.

"The real thing that makes this documents relevant is that the deputy attorney general ought not to have been deciding on assertions of privilege whe that same ministry and people were deciding how much money, if any, they would give the accused to defend themselves," McCullough said. "That we allege, our argument is that it creates poltiical interference."

McCullough also alleged that the defence still has not been able to obtain government documents it needs.

"There are myriads of missing documents - where are they all? an exasperated McCullough asked Bennett when she asked: "Hasn't the government not blocked your access to documents?"

McCullough's approach brought warnings from Bennett on several occasions and objections from Copley.

McCullough said in his presentation that Copley had written he received his instructions from the cabinet secretary in July of 2007 but that later in the Legislature Campbell had said he had assigned Seckel to deal with cabinet privilege instructions.

"The premier is making it up on the fly, he's making it up as he goes along," McCullough claimed.

That brought Copley to his feet.

"The wording is very careful. What I don't say specifically [in the letter] is whom I am taking instructions from," Copley said, bringing objections from McCullough.

But Bennett was having none of it. "Sit down, Mr. McCullough," she demanded.

McCullough returned to his central theme however, that the attorney general's ministry should not have been dealing with document disclosure issues when it was also responsible for indemnification of legal fees for the accused.

The premier's office created has created a natural conflict - the same person deciding on funding for the accused's defence is the one deciding on release of document's," he alleged.

McCullough quoted at length from Province newspaper columnist Michael Smyth's column of February 22, 2008 in which both Campbell and Seckel made statements about the Basi-Virk case.

"I don't hear 'no comment' there," McCullough said, referring to the fact that Campbell, Attorney General Wally Oppal and other government members have said they can't answer questions about a wide range of issues, including the role of BC Liberal insider Patrick Kinsella in the BC Rail deal, because it's before the courts.

And McCullough alleged that Seckel was inappropriately speaking for the government about the case's political aspects.

"The deputy attorney general is saying the government has done nothing wrong, everything right, there is no political interference - to the press," McCullough said. "Do you not see that as a political statement on behalf of the government?"

McCullough then produced a copy of Campbell's personal agenda and said that between June 2005 and March 2007 there were 50 meetings or phone calls between Campbell and Seckel, drawing a skeptical response from Bennett.

"Having worked for many years in the attorney general's ministry, that's not uncommon," Bennett said.

"You got calls from the premier?" McCullough asked.

"No, but I wasn't the deputy attorney general," Bennett replied.

Earlier Bennett released a number of documents sought by the defence related to to BC Rail deal.

"Justice Bennett released first round bid documents and accepted defence submission that they were relevant to the accused to defend themselves," Michael Bolton, David Basi's lawyer, said outside court.

The bids were from the four initial bidders, Bolton said, CN Rail, CP Rail, OmniTRAX and Rail America.

The defence took the position that the bidding process was illusory - that CN was the predetermined winner," he added.

The pre-trial hearing is now adjourned until May 4, when the defence will make arguments to receive third party records from the office of the speaker and the clerk of the Legislature and from individual BC Liberal MLAs.

And on April 22, the Supreme Court of Canada will hear an appeal by the Special Prosecutor to overturn to BC lower court decisions regarding the possible appearance of a secret witness in the trial. That decision, which could dramatically affect the case, could be made quickly or take months.


Anonymous said...

Why should anyone even be surprised by any of this since after eight years of BC Lie-beral corporate dictatorship the Campbell Plutocrats are "above the law" . . . if you don't believe me go ask Dennis Skulsky and CanWest/Global.

Simply put . . .
"WE ONLY CHEAT WHEN WE CAN'T WIN" the official motto of the BC Liberal Party.


Anonymous said...

With the integrity of the Premier's office in doubt and now the Attorney General's office caught in this contemptible corruption: I wonder if StoneWally will even bother to have election signs printed? - or will he join Gordon Campbell in stepping aside 'for-the-good-of-the-party'?

RossK said...


Kind of makes one wonder if the time has come to revisit the possibility that there may be 'tapes' and/or 'notes' of the conversations that took place between Mr. Smyth and the Premier and the Deputy AG.



DPL said...

Slightly off topic but it was great to hear today that the Appeals Court is not about to overrule the judge on the gag law.
Wally isn't doing too well lately

BC Mary said...

Top-notch report, Bill ... many thanks indeed.

I just don't get Judge Bennett's attitude ... so slow, so indifferent, until the Defence shows some natural impatience and then boing! right on the nose, every time.

Has she no understanding of how bad this Gong Show looks?


Anonymous said...

I'm trying to be objective and follow this but I don't see how this relates to the case. The whole article reads much better if you insert Carole James' name for McCullough's throughout. If Mike Smyth's column was so damning in terms of Campbell speaking out on the case, why has the NDP not used this before? McCullough seems to be trying to divert attention from the real issue - this tactic works in the court of public opinion but not in a court of law. I'm surprised the judge doesn't tell the lawyer to get on with it.

Anonymous said...

The other issue is that McCullough is arguing basically that the premier's office is interfering in how his legal fees are covered. In the event of a loss, no govt support for the defendants' legal fees. Presumably they will declare bankruptcy and McCullough will not get paid so much. If I have this right, he's in a conflict of interest focusing more on how he's getting paid than getting on with teh job at hand. Very costly line of reasoning, especially if he loses.

Anonymous said...

McCullough going on and on makes me wonder about how big this legal bill is going to be? And it also made me think, who can afford this defence? Only millionaires, lawyers and govt employees. The cost must be outrageous for Basi et al. I thought, if this ever happened to me, I would just roll over and not contest it. Who can pay the money? What kind of a justice system is this?

A. G. Tsakumis said...

The really glaring issue from all of this is, notwithstanding Tieleman's first rate coverage, no one else bothered.

Not if, but when this trial explodes, and it may well not be before the election, CanWest will have to do some explaining to the public because to cover the story as it goes thermonuclear will have the public naturally asking, "where the hell were you when the pot was boiling over?"

Tremendous work Bill. If the Webster's don't give you something this year, with special recognition, they should be ashamed.

No one has produced better legal journalism in the last ten years, at least.

Anonymous said...

Annon - 11;33, 11:37, and 11:39.

The NDP did raise the issue of political interference in 2008. The NDP even asked the Speaker for a ruling that the Premier mislead the Legislature.

The real issue at hand is why Allan Seckel was put in charge of the disclosure of documents that the defence has been asking for years now.

Knowing how the premier micromanages the affairs of the province, there is no doubt that he is being fully briefed on this file.

The Public Accounts has listings for all of the counsel involved. While these lawyers may be conducting other business on behalf of the Province, Mr. Berardino and his legal team have received large cheques from the province. I would draw the inference that these funds are directly related to the BC Rail corruption trial.

Mr. Berardino's delays will cost the taxypayer millions. Just ask yourself what the cost will be to fight the Appeal of the secret witness issue in Ottawa? That junket will be billed to the max and will cost huge dollars.

In the final analysis, the real cost will be the lengthy delay that throws this case out.

RossK said...

For Anon-Above--

Ms. James did raise the issue before, in the House, some time ago.

In fact, it was because of her questioning that Mr. Campbell was prodded into giving us an actual 'answer' (imagine that.... in question period!) that revealed what he, himself, termed the 'independent process' involving the Deputy AG.


Anonymous said...

! B ! O ! O ! M !

Gary Mason drops a live grenade into Camp Campbell's BC Rail yard.

Well worth the read - here's a taste: "The Globe and Mail has now learned that Mr. Kinsella signed a confidentiality agreement with BC Rail that bound him not to disclose the contents of any discussions he might have with parties related to the sale of the railway.

This document would now appear to provide irrefutable proof that Mr. Kinsella was paid by BC Rail to provide counsel and trouble shooting advice in connection with the sale."


"Why would Mr. Kinsella be asked to sign this confidentiality agreement if, as he and BC Rail insisted in statements released two weeks ago, he was paid for work that wrapped up months earlier and that was seemingly unrelated to the sale of the rail line?"

Can the BC Liberals win the May election without their disgraced leader?

Anonymous said...

So when does the Prosecution get to tell the other side of the story ?

If; and I say if; the Crown produces some fairly damming evidence that Basi and Virk actually took bribes what happens next ? Do these defence lawyers really not get paid ?

Skookum1 said...

Is it just me, but given all that's come out in the barrage of bizarre information in the newly-released documents, which surely the commercial crime squad must have examined in detail - or not? - doesn't it seem that the RCMP charged the wrong people? And that charges for the REAL crimes haven't been laid. Isn't holding a false auction, a rigged bidding process - isn't that fraud? And also breach of trust, considering it was a public asset at stake? And collusion, since the whole Liberal caucus were party to the necessary charade, and had been instructed to deceive their constituents in the perpetration of the fraduulent bal masque? Could it be that the entire Basi-Virk trial has been a smokescreen, meant to keep the documents and proceedings sealsd so the truth of the matter could not come out? Could it be that the RCMP chose not to proceed with any of this, and picked relatively more venal prosecutions instead? And if so, why, and for whose benefit? Oh, never mind, we already know for whose benefit. but why were only petty underlings charged, and not the puppeteers? Could there be still more conflict of interest and irregular use of influence in how it was decided what charges would be laid, and which wouldn't? Which wouldn't even be looked at? Could it be that I should worry about my own safety for even asking such questions? These days, who knows? When a billion dollar deal with a multinational company is at stake, anything is possible. Between Bill 42's attempt to silence/control political discourse during an election, and the former seal on these court proceedings, and still-unrevelead reams of documents, and the secret witness proceeding and its too-late appeal....could it be that this country isn't an open democracy? And never really has been?

Could it be that the public will still vote these guys back into office anyway? THAT is the real scary part of this - the public, for the most part, doesn't want to care, doesn't even want to know, even if we had an open media that would tell them what they need to know. Could it be they just want to be able to keep on shopping, and are more worried about crime in their neighbourhoods than crime in the corridors of power?

This country needs an independent constitutional court that can order resignations, or at least suspensions, once suspicious information about elected officials surfaces. Because we know they won't resign on principle, out of respect for the constitution, as is supposed to be the case? But who would appoint them? And who would appoint such a body's investigative arm, which would pick up in cases like where the RCMP, for whatever reason, choose not to act.

Sticking my neck way too far out, as usual. I'm past being bitter or shocked about Railgate4, but I am very curious about why so much wrong-doing was not properly investigated, and only the lesser of all the players in the game were investigated, or charged. Shouldn't the federal courts have overseen this all along, rather than risk conflict of interest with the investigation and the prosecution coming from the A-G's and Premier's offices?

Just asking, but not expecting answers, as I know there are no easy ones. And people like easy answers. Which is why they'd rather go shopping....

Anonymous said...

Check out today's Vancouver Sun for how a real newspaper reports on all this. At page A2 under the heading MONDAY AT A GLANCE NEWS ON THE GO is this

"A defence lawyer in the Basi-Virk corruption trial alleged Friday that Premier Gordon Campbell and his government have been involved in political interference in the case, but the trial judge was unimpressed."

Go to page A7 for this under the heading IN BRIEF METRO VANCOUVER:

Judge ignores accusations against Liberals

"A defence lawyer in the Basi-Virk corruption trial alleged that Premier Gordon Campbell and his government have interfered in the case, but B.C. Supreme Court Justice Elizabeth Bennett said she couldn't see the relevance of his argument."

Did anyone at the Sun even write this or was this just passed on to the Sun from Public Affairs Bureau?

Anonymous said...

Political interference with justice? How about political control? I would like to think that the dictatorial tendencies of the Lib Govt, would be the central issue in the election. In fact, I was present today when Stonewally set up shop at Robson Square to use his propaganda agency to conduct pre-electioneering, at public expense. He wants to expand the Vancouver Police controlled city lockup on Main Street, so that cops can waste further resources on jailing non-violent persons (Crown Counsel refuses to register charges against 1 of every 3 incarcerated persons). Unfortunately, last Friday, the NDP's James-Kwan-Farnsworth told a Victoria Drive meeting that the province should hire another "168" cops. We should rename the party of Tommy Douglas and Dave Barrett, the Echo-Party.

Today, a Vancouver Sun columnists did the type of exposure of Lib totalitarianism, that the opposition won't touch.


Jenny Kwan doesn't criticize Vancouver's brutal cops, because she is a Criminologist who was once in their employ. It makes little sense to attack Lib oligarchism, when there are rightists in the NDP.

Anonymous said...

Someone mentioned Bernandino' billing. He would bill through his firm, and a good estimate would be: $1000 per hour. The litigation "boutique" that he works for rakes in millions from government and Lib supporter firms. That could end at any time, if Stonewally is displeased. The AG loved his Special Prosecutor's positions on issues relevant to the B-V-B defence.


Anonymous said...

Well, Stonewally is a ex Appeals Court judge. Am I the only one who has noticed that government parties and corporate parties close to the Libs, are winning 100% of trials and motions in the high courts? That is an actuarial impossibility, given the general incompetence of Crown operations. And need we ignore - as do Carol James and Len Krog - the fact that some cause has resulted in the Supreme Court permitting only 425 trials last year. Private claims are routinely squelched, and much of same is done by Court Masters with ZERO jurisdiction to do that.

Why didn't the Queen of the North sandbag, serve as a smack in the head to Carol James? For those who trust the impartiality and objectivity of our politically appointed judges, I will remind you that in the past 15 years the City of Toronto shelled out over $30,000,000 to settle claims for excessive force and false arrest by cops. In the same period, Vancouver paid less than $30,000, in spite of running a Gestapo like police service. In all BC there has been only 1 successful suit for false arrest in the period, and in deciding for the victim, the judicial officer felt a need to provide mitigating testimony for the victimizer. The Opposition needs to express disgust at the work of our paid fact-finders.