Monday, December 28, 2009

Basi-Virk: 6th Anniversary of BC Legislature Raid - 2010 will either see full trial or nothing

- Stephen Rees photo

This Is the Year of Decision for BC Legislature Raid case, Basi-Virk or Railgate to be resolved

Six years after Legislature searched by police, case finally will be cracked open and it will be "like Christmas every day" for political observers - or thrown out of court

By Bill Tieleman

The Tyee December 28 2009

"If I have to sit here in an empty courtroom by myself, the matters are going to be heard."

- Justice Elizabeth Bennett on the Basi-Virk case, Oct. 26, 2007.

Today marks the astonishing sixth anniversary of the unprecedented police raid on the British Columbia legislature -- and the sixth year without a trial in what may be the biggest political corruption case in the province's history.

The case involves blockbuster allegations that two former B.C. Liberal government ministerial assistants gave confidential government information about bids for the $1 billion 2003 privatization of B.C. Rail to a lobbyist representing one of the bidders, while a third former government aide laundered bribe money.

It also features defence allegations of a massive cover-up to protect current and former top B.C. Liberal cabinet members while hanging the government political staffers out to dry -- and allegations of political dirty tricks directed straight from staff in the office of Premier Gordon Campbell.

For political observers, a lengthy trial featuring witnesses potentially including Campbell himself would be like Christmas every day, with startling allegations and grueling cross examinations of major political figures.

And the trial of David Basi, Bob Virk and Aneal Basi -- the accused three -- will either begin, or be dismissed, in 2010.

Won't it?

It's become an annual ritual to predict when the charges of breach of trust and fraud against David Basi and Virk and money laundering against Aneal Basi will start -- a prediction without success for anyone covering or following the case.

But as the quote above illustrates, even then-trial judge Bennett's fondest wishes to get things moving were thwarted by circumstances beyond her control.

"We need to accomplish something with this case so we can proceed in mid-March," Bennett said on Oct. 26, 2007, referring to an anticipated trial start in 2008.

Why 2010 is decisive

So what makes 2010 different?

Several important factors, not least being the disposition of a Supreme Court of Canada appeal by special prosecutor Bill Berardino on the key issue of whether testimony about and by a secret witness could take place with the defence lawyers, media and public excluded.

That testimony by a police informer will be allowed, the nation's highest court ruled, ending perhaps the most significant delay in a case marked by seemingly endless legal road blocks.

Also key may be the replacement of Bennett, who was promoted to the B.C. Court of Appeal, by Justice Anne MacKenzie. The new judge's no-nonsense approach has frustrated the defence team, as they have lost several rulings on disclosure of evidence.

Lastly, the Court of Appeal for Ontario made a potentially precedent-setting ruling that may ensure the Basi-Virk case goes to trial when it overruled a lower court decision to stay charges in a complicated police corruption case because it would have been 56 months before that trial could have been completed.

If nearly five years of delay is not enough to stop an Ontario case, can the defence expect MacKenzie to rule a similar length of time from charges to trial in a far more complex case is an "unreasonable delay"?

Defence has a few hands to play

But the veteran lawyers representing the accused have two kicks at the can in attempting to have charges against their clients stayed -- the legal term for not proceeding with trial without the charges being dropped.

The defence begins a Charter of Rights application on Jan. 11, 2010, on its contention that the trial has not begun because of "unreasonable delay."

But the defence will also argue an abuse of process application, presumably alleging that the police investigation was unfair and conducted inappropriately based on a wide variety of strange circumstances.

Those allegations include the fact that a senior RCMP investigator in the case, Inspector Kevin DeBruyckere, is the brother-in-law of B.C. Liberal Party executive director Kelly Reichert; that David Basi's mother sold a house to RCMP officer and prominent case investigator Andrew Cowan prior to the raid that Cowan was unhappy with; that the defence alleges the RCMP were asked by Reichert not to press additional charges against Basi because they would "embarrass" the party; and allegations that the RCMP knew key Crown witness Erik Bornmann -- a former lobbyist and both provincial and federal Liberal Party insider -- lied to the media in saying he had been cleared of any wrongdoing despite his own allegations that Basi and Virk were paid bribes for supplying him with confidential government information.

Notwithstanding the possibility of charges being stayed and the case coming to a shocking and complete halt, if the trial proceeds many devastating questions will be answered and the fate of several political careers quickly decided.

Here are just some of the outstanding issues that a trial may resolve.

Plea bargain?

Perhaps the biggest question will be answered before a trial begins -- could there still be a plea bargain by the accused to avoid a trial -- and possible jail time?That seems unlikely.

While the B.C. Liberals would desperately love the case not to proceed, special prosecutor Bill Berardino is an independent prosecutor who does not answer to the government, nor is he likely to want to approach the end of a lengthy courtroom career with a plea bargain in a case he thinks he can win.

It would also appear difficult to negotiate a plea bargain that would ensure the defendants legal costs are paid by the B.C. government despite their accepting any responsibility for the actions they are alleged to have taken.

Because all three were government employees, they have an indemnification agreement which means if found not guilty, their legal costs are paid for by the province -- if judged guilty, they are on the hook for massive legal fees on top of sentencing.

Provincial Liberal Party implications

The trial will feature considerable testimony on the role of the B.C. Liberal Party in paying David Basi an alleged $20,000 outside of his government position for "media monitoring" that the defence claims is a euphemism for political dirty tricks.

The defence made a series of bombshell accusations in court in the spring of 2007, including that Basi coordinated phony callers supporting the B.C. Liberals to flood radio talk shows; that he organized phony protests outside the B.C. Federation of Labour convention and hecklers to disrupt an environmental protest against salmon fish farms; that Campbell knew of Basi media interventions on his behalf; that Campbell's former press secretary Mike Morton and former caucus communications director Mike McDonald were directly involved with Basi's talk radio actions; and much more -- some of it allegedly intercepted by police wiretaps.

But perhaps an allegation that Reichert and the RCMP discussed additional criminal charges against David Basi over political dirty tricks -- with Reichert asking they not be pursued and that Campbell was informed -- could be the most explosive of all.

Virk's lawyer Kevin McCullough told the court on May 15, 2007, that he was reading from an RCMP report titled: "Kelly Reichert -- Do Not Disclose" that was eventually disclosed to the defence.

"Careful consideration will have to be given to the wishes of the victim. The likelihood of successful charges versus the embarrassment to the victim," McCullogh said the RCMP report stated, referring to the B.C. Liberal Party as the victim.

"The wishes of the Liberal Party and Mr. Reichert, the same day he notifies the Premier, all came true," McCullough concluded, noting that charges were indeed never approved against Basi for those activities.

"We have the effort by Reichert to not have the charges approved. That reeks of political interference," McCullough alleged.

It should be noted, as with all allegations made to date, that they have not been proven or contested in court. Both Reichert and several spokespersons for the B.C. government have repeatedly declined comment on the case, saying it is "before the court."

Federal Liberal Party implications

While the B.C. Liberals have been in the crosshairs of defence attacks for some time, the news of the B.C. legislature raid initially appeared to involve the federal Liberal Party -- a separate organization from the provincial party -- far more.

David Basi first came to my attention before the raid because of his activities on behalf of then-federal finance minister Paul Martin in his war to replace Prime Minister Jean Chretien as Liberal Party leader.

Basi was alleged by former federal Liberal cabinet minister Herb Dhaliwal to have been the organizer behind taking control of his riding association on behalf of Martin.

Erik Bornmann, the Crown's key witness who allegedly provided money and benefits in exchange for information on B.C. Rail, was a former Martin aide in Ottawa and an executive member of the federal Liberal Party in B.C. Bornmann's home and the Victoria office of his lobbying firm Pilothouse Public Affairs were searched by police seeking evidence.

Bornmann's lobby business partner Brian Kieran is also now a key Crown witness, while a third partner, Jamie Elmhirst, has previously been subpoenaed to testify. Elmhirst is a former Liberal Party of Canada -- B.C. branch president.

Police went to the house of key Martin supporter Mark Marissen and his then-wife Christy Clark -- Campbell's former deputy premier and now a CKNW talk show host -- to ask questions about Basi and Virk -- Marissen has made clear that he cooperated fully and his home was not the subject of a search.

The home of Bruce Clark -- Christy's brother -- was the subject of a search warrant by police at the same time as the legislature. Bruce Clark also served as a Liberal Party of Canada -- B.C. branch executive member and key fundraiser, as well as a Martin supporter. As recently as February 2009, Clark was still involved in high-level fundraising for the federal party.

The defence can be expected to focus heavily on federal Liberal Party connections to the accused and key B.C. Liberal government officials, including Christy Clark and former finance minister Gary Collins, who hired David Basi as his ministerial assistant.

Agricultural Land Reserve case

And almost forgotten is another upcoming trial -- again of David Basi on allegations that he illegally assisted Victoria developer Jim Duncan and business partner Tony Young in getting land removed from the Agricultural Land Reserve for a housing development in Sooke between 2002 and 2003.

Duncan and Young also face trial in Victoria on charges that they paid Basi $50,000 in connection with building the giant Sunriver Estates project of 650 residential units on 382 acres being built in five phases through 2007.

The outcome of those charges may also raise a host of unseemly issues and unwanted attention for the provincial government.

A lengthy trial looms

If and when the actual trial commences, expect it to last for months. This summary of some aspects of the case is merely the proverbial tip of the iceberg for a trial the defence says "millions" of pages of evidence have been disclosed.

And still to be resolved is whether or not the defence will request a change in the trial from judge-only to judge-and-jury, as well as a possible application for a change of venue for the trial -- which could mean it takes place in Victoria rather than Vancouver.

But one thing is clear in the B.C. legislature raid case -- which I have previously described in The Tyee as entering the Twilight Zone -- predicting what will happen next -- let alone the actual outcome -- is completely impossible.

Buckle up for another wild ride -- or the most unsatisfying end imaginable to the most captivating show on B.C. politics we've seen in decades.


Ron said...

An excellent summary Bill.

As you rightly point out, both the federal and provincial Liberals are implicated.

With a federal election within a year and a half - and a provincial in 2013 - can the Fiberals cause further delays until 2014?

Somehow I suspect that there will never be a trial.

Anonymous said...

People really need to wake up to the current reality that the Federal Cons are negligibly different (if at all) from the Federal Libs. Similarly there may still be some that have not realized that Gordon Campbell et al. do not represent the BC Liberals of 30 years ago.

In fact as people like Rafe Mair have pointed out - the current BC NDP is further right than WAC Bennet ever was...

Frankly we need more Bill Tieleman's to point out the realities of current politics without the influence of $$$pecial interests.

Gary E said...

I think Bill, the abuse of process should include the fact that only the recipients of the bribe were charged. Bornmann aside, somebody had to give him the money. Why weren't they charged. Money talks?

G West said...

Sadly, it's hard not to come to the conclusion that the current judge is not invested with the same determination to effect full disclosure that Justice Bennett seemed to possess.

At the same time, I can't see how a change of venue AND a switch to a jury trial would speed things up at this stage.

We're dealing with a very flawed process, including a good many valid and largely unexplored questions about the commitment of the prosecution to an appropriate disposition of the charges in a full blown trial of any kind...

Harder and harder to be any more positive about this than the critical observer can be about the state of the economy, the justice system AND the general culture of the province. At the end of the year one would hope to look forward to something better, something positive.

Even the spun-sugar sweetness of the upcoming Olympics promises to be short lived and unsatisfying.

Thank you Bill for your dedication to the cause - like BC Mary, you haven't let down the side.

Keep up the good work.

Anonymous said...

If any of the Federal Grit stuff involving drugs, US guns & money being used to make Paul Martin Jr. "leader" and by default Prime Minister can be finally proven . . . it could finish the Liberal Party of Canada in BC for decades.

There were lots of jokes going around LPC/BC in 2000 about boats "passing in night" along the east side of Saanich on Vancouver Island.

As for the "BC Power Couple" the plug was pretty much pulled on them six years ago today.


Anonymous said...

Just wondering who's paying the bills for these defence lawyers six years on? They can't eat promises and maybes.

Bill, you'd be more believable and trustworthy if you asked those lawyers why they are working for free or who's paying them now? Let's get an article out there on who's paying them. Use your sleuthing skills to find out where the money's coming from.

Follow the money, as you no doubt have said in following this case for six years now. Jeez, if only we had a bunch more of these kind of cases, think of how much more money people like you would be making.

Skookum1 said...

It's the unlaid charges in this scandal that are the real scandal. Not just that Basi, Virk and Basi were singled out of a whole rat's nest of wrongdoing; their malfeasance only has to do with the OmniTRAX "arrangement".

The corrupted bidding process for BC Rail implicates not just elected officials and high-ranking political staffers and a "certain lobbyist" (actually, technically, he's not a lobbyist, though he behaved - and billed - like one), as well as CIBC World Markets, Charles River Associates, and others who fabricated or misrepresented information, or released it unfairly to the "favoured bidder" (aka the pre-arranged buyer).

A fraudulent bidding process, and intentionally misrepresenting data concerning same, are far, far, far more serious than a comparatively piddling 120,000 pay-off.

The further scandal, which also needs charges, is the very clear evidence of an elaborate but not invisible cover-up....and then there's those emails that were done away with to prevent their being used as evidence, or rather to prevent, apparently, information which would criminally implicate "those in charge". Paul Nettleton's allegation of "collusion" by the whole of cabinet and caucus can be extended to the mainstream media, the RCMP, are maybe the most severe of all - and if brought to bear, would mean the dissolution of CN's acquisition (which under US law, would have been suspended years ago....)

off-the-radar said...

great article Bill. Really clearly outlines this complicated case.

@anonymous 11:34 pm: That's your best attempt at a red herring?

Rod Smelser said...

There's been a curious desire on the part of some in the Ontario NDP to shield the Federal Liberal Party from any kind of serious embarassment from either this case or other criminal cases.

When a BC union official who had contributed to the Stephane Dion Leadership Drive (a Mark Marissen operation) was arrested in Washington State for smuggling drugs across the border in the Okanagan Region, I made some statements about it on Buzz Hargrove's Rabble/Babble chat site. I was immediately told by other posters, including a former NDP Federal candidate, that this was a very stupid thing to bring up, there could be valid reasons for disliking either the Liberals or Dion, but that this was NOT ONE OF THEM!!!

Frankly, I thought the reaction was odd and strained to the point of being more than just a little bit curious, and I still do. To some degree it may just be an extension of the long-standing Ontario NDP habit of regarding Liberals and Liberal voters as "friendlies", not to be fired upon, no matter what. But there was something in the urgent tone of "don't go there" that seemed to go beyond that.

I wonder if it's common knowledge in Ontario that criminal connections could eventually become - if widely publicized - the H-Bomb that totally nuclearizes the entire Liberal Party vote base from coast to coast. And should that bomb ever go off, there would be an immediate vacuum in Canadian politics that would probably be filled in the first instances at least by a massively enlarged Conservative Party? And if that eventuality is not welcomed, ... then don't let the bomb go off or do anything that could set it ticking.

Anyway, hopefully we will have a trial this year, and at least find out how some people have avoided prosecution even though the theory is that they offered the bribes in question. Perhaps it's just a historical coincidence that the same pattern was followed in the Sommers case in the 1950s. Those in the forest industry who were alleged to have offered payments were never charged, only those in public life who received them. A B.C. curiousity perhaps.

SharingIsGood said...

Great end of year article, Bill! Also, thank you G West and Skookum 1 for your astute remarks. With all of our technology and all of our citizenry being literate, why have we so little democracy? How can we have so much of the public's business hidden from the public by those elected to work for the public? How do we let them get away with it?

Crankypants said...

If the defendents choose to a trial by jury, how will the secret witnesses' testimony be handled? Would the jurors just be given a transcript of the information? Also, how does the defense cross-examine any of this information if they cannot be present while he or she is giving their testimony?

Can anyone enlighten me?

Anonymous said...

NOTE: Edited for language - f-word and others are not acceptable here - BT.

G West,we are not just observers we are the citizens of this province and are being duped by the media, and this criminal government it's about time the police and court's did there f***ing jobs and arrest these perpetrators before there's nothing left!

To pay for there over inflated checks for doing nothing and don't think for one minute,one billion plus in blackmail wages for ehem,Olympic security has nothing to do with it!!!!!!

Anonymous said...

I expect the Campbellite league of plutocrats will attempt to fog-up the media message in the lead up to and certainly during the trial.

For example...Francis Bula's absolutely shameful new B.J. piece in BC Business on why Kevin Falcon should be BC's next Premier.

Francis is obviously doing a Peter O'Neil sequel when he did his bit in 2003 to make Paul Martin, Mark Marissen & Christy Clark into Canada's political saviours on the orders of Dennis Skulski and Lenny the putz Asper.

In this case, I think a rather rotund gentleman at CTV/NW ghost wrote the Falcon piece for Francis.

But we shouldn't be surprised since the by the time the trial (if ever) actually stars people in BC won't know night from day.


Anonymous said...

If you're really struggling to use a swear word that is acceptable in this day and age, try using "Freaking" otherwise Bill T will convert it to f***king... which doesn't leave to much of an imagination to know what the missing letters were before it was edited.

Same goes for who was really behind the manipulation of David Basi and Bobby Virk in the sale of insider information on BC Rail to a third party with lots of cach.

We've said it enough times, mentioned the same names, repetitively, and used the initials or acronyms as well. If you think it was the NDP behind the sale, then you've been out of touch with reality for the past seven years, guess again. If you think and write BC L*****ls then we all know what you are talking about, and agree with you.

Say Freaking enough times, the OTHER word will not be forgotten, eh. They end up just meaning the same thing.

If you're going to edit a comment Bill, try to be a little bit more ........ oh what's the word I'm looking for.... creative, that's what the BC L*****ls did six years ago in their bookkeeping to justify the SALE to CN Rail.

BC Mary said...

To Rod Smelser,

A fascinating comment. Much is said about "elephants in rooms" ...

that's gotta be the biggest elephant of all ... representing the huge whack of cash commerce that goes on in B.C. annually for BC bud alone ...

does nobody wonder where it all goes? how it gets there? who's running the massive laundry? what effect it has on provincial trade and commerce? on elections?

Of course we wonder.

One concern was a freighter of the Canadian Steamship Line ship arriving in Sydney, N.S. from South America. Big news announcement: large shipment of cocaine was found bolted to the exterior of the ship's hull. It was a miracle that somebody noticed it ... blah, blah, blah ... end of story.

But what an odd thing to do: to announce the arrival of the cocaine. Why didn't the ijits set up a police surveillance team to arrest the criminals who would arrive to pick up their contraband?

That the CSL ship (named the Sheila Ann for Mrs Paul Martin) belonged to Paul Martin's sons, who took over when Paul became P.M. Doesn't that raise an alarm? But no. There the story died.

Basi & Virk were deeply political ... so there are many connections, many implications, many danger signals which we're expected to ignore ... why? Is this smart? Is this wise? Or isn't it possible that the province is being weakened, dismantled, trussed up like a turkey ready for the oven? Seriously, I do wonder.

Anonymous said...

The continuing sell-off of this province and its immense resources is indeed the real story, and BC Rail is just a small part of the overall scam.

Run of river power, loss of agricultural land, the failure to create a sustainable forestry industry, decimation of our salmon stocks ... these are all huge changes to our way of life, and every single action of the BC Liberals has hampered our province's ability to care for its own people.

BC Mary said...


Anon 10:06 said,


The continuing sell-off of this province and its immense resources is indeed the real story, and BC Rail is just a small part of the overall scam.

The loss of BC resources is indeed immense, I couldn't agree more. But BC rail is very special in that picture because it was a big public asset functioning as a vital instrument of the provincial economy. BC Rail is also special because it was the first public asset to slide swiftly and secretly into private pockets.

It established the pattern for all the subsequent losses -- especially BC Hydro, but even BC Ferries.

Once we know the full story of how BC Rail was lost, we'll know if there are viable remedies.

So it definitely isn't "a small part" of what ails B.C. these days. It's the KEY to what ails B.C.

Anonymous said...

As bad as everything has been since 2001, 2010 will be even worse for BC.

The mega tax bill, (the 2010 BC budget) for Gordon Campbell's Olympic-Ego drunk-up, all the in-house crap . . . political, legal and media will all come due this year.

Finally this province won't be able to dodge the BS any longer.

No matter how much spin Bill Bad, Pamela Botox and their Campbell plutocrat buddies at CanWest/Global try to spin it . . . 2010 is judgement year.


Anonymous said...

Why are you socialists always such a miserable unhappy lot? Almost every comment on here is complaint related. You should all make a New Year’s resolution to quit complaining so much and get out more.

DPL said...

I for one don't take any suggestions from someone called anon very seriously. You know of course that it's fairly common to track down your actual connection number.
As for being unhappy, well maybe it's becasue our resources are being or have been sold to someone out of the province and we believe the price was too low,there was some shady dealing along the way and maybe the fact that the cops raided the legislature of BC, something never done before is making us a bit upset. Chnage your name to Little Mary Sunshine if you figure all is well in BC

BC Rale said...

So DPL doesn't take any suggestions from someone called anon very seriously.

I guess the same could be said about someone calling themselves DPL, or Skookum1, or G West, or Gary E, or BC Mary either.

Yes you have registered handles but most of them dead end as your profile having been disabled by yourselves AND if do allow the General Public to see who you are, we still aren't told your given names. Well I don't want to tell you my given names either so in the spirit that DPL believes only those with something other than Anonymous have something valuable to say... on the topic of BC Rail and the sale thereof.... and here's where I'm starting feel like I will be taking pot shots at windmills, you may call me

DPL said...

By calling oneself just about anything it seperates all the anons. It's interesting to notice that one anon might be very much for one side of a discussion and the other way off to the other side.Or one may be on both sides of a discussion. Not a big deal to call oneself anything to identify one from the other. Most folks don't go through life being a non person but as I said before, I do find it hard to go along with someone with no identified mark.The one I use is my initials maybe you could try the same. I do take positions as do most people who write on blogs rather than be an anon. By the way, I have not got a "profile" but notice some folks here do have them. BC Mary for example has had a blog running for years on the BC Rail case. I don't always agree with some of her stuff but at least I know it's her stuff.If I took a strong position against what she writes I would let her know, as would I let Billl Tieleman know if I disagree with his writings. These are people we can all attack or defend as they have a name, real or otherwise. Aned lets face it, some blogs don't accept anons. This particular site obviously does.

BC Mary said...

DPL, thanks for your patient explanation.

I understand that the Gordo Government has about 200 of these well-paid employees ... is it really possible that we pay people to go around messing up blog comments this way?

While good kids out in the real world are lucky to get legitimate work @ minimum wage of $6. an hour.