More "Stonewalling" about $6 Million Legal Fees for Dave Basi and Bob Virk
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| Lawyer Roger McConchie and BC Conservative MLA John van Dongen outside BC Supreme Court hearing into Basi-Virk indemnity legal fees payment - Bill Tieleman photo |
Auditor general, van Dongen battle lawyers to get to
bottom of legal bill payment by BC tax payers
Tuesday September 18,
2012
By Bill Tieleman
"Stonewalling is
a good term to use to describe this situation overall and in this case."
- John van Dongen, BC
Conservative MLA
How
did two former ministerial aides charged with breach of trust and fraud get
their $6 million legal fees paid by the B.C. Liberal government despite
pleading guilty in the B.C. Legislature
Raid case?
We
may never know, despite B.C.'s independent auditor general John Doyle
attempting to find out through a B.C. Supreme Court application heard for five
days last week.
And
the hallmark of the lengthy B.C. Legislature Raid case -- delay -- emerged
again, with Doyle's application first put off from June to September and now
recessing until early December for final arguments, meaning Chief Justice
Robert Bauman is unlikely to make a ruling until 2013.
The
issue arises from one of the province's biggest political scandals ever -- with
B.C. Liberal government political aides Dave Basi and Bob Virk charged with
leaking confidential documents in the $1 billion privatization sale of B.C.
Rail in 2003 to lobbyists for a losing bidder in exchange for money and other benefits.
Government
employees facing charges can have their legal defence bills covered under a
process called indemnification -- but only if they are acquitted.
But
Basi and Virk made a sudden surprise guilty plea in Oct. 2010 ending their
trial after hearing testimony from just two of an expected 40 witnesses --
including former and current top politicians and staff, possibly even Premier
Christy Clark and former premier Gordon Campbell.
Basi
and Virk had strongly protested their innocence since the case exploded with an
unprecedented police raid on the B.C. Legislature in Dec. 2003 to gather
evidence against the two men.
Doyle's
efforts to obtain the controversial Basi-Virk legal billings and those of about
100 other government officials whose costs were indemnified since 1999 are
being strongly opposed in court, primarily on the basis that solicitor-client
privilege blocks his access to the billings of lawyers.
Doyle's
legislative authority to conduct an audit and make recommendations to
government is also being questioned.
'An
incredible effort to avoid accountability'
Outside
a courtroom where government is funding up to eight lawyers to argue various
sides of the case, John van Dongen, a former B.C. Liberal solicitor general who
quit the party in March in part because of Basi-Virk, was "very
frustrated."
"There's
a fair question whether this issue should be in this courtroom at all and
whether it's properly motivated," van Dongen said in an exclusive
interview. "There's an incredible effort to avoid accountability and
transparency to taxpayers -- there's a problem here."
"Disclosure
has been avoided and covered up," said van Dongen, who was given
intervener status by Bauman on the grounds that his past position could add
information useful to the court.
While
van Dongen was a B.C. Liberal cabinet minister and insider for many years, he
says he found out about the $6 million payment of legal fees the same day as
the public did from then-B.C. attorney-general Mike de Jong, now finance
minister.
Veteran
lawyer Roger McConchie was retained by van Dongen at his own personal expense
to make submissions supporting the auditor-general's application and attend the
entire hearing, as did the Abbotsford-South MLA.
Perhaps
ironically given the importance of the principles involved, throughout the
whole hearing there were always more lawyers in the courtroom than media and
observers combined.
In
court, McConchie made a powerful argument that denying the auditor-general
confidential access to legal billings in indemnification cases was wrong.
"Where
the public interest cries out for investigation and audit, the court should be
able to permit access to privileged information," McConchie told Bauman.
And
McConchie said the "auditor-general plays an extremely important
role" in ensuring that government spending is accountable to taxpayers.
"An
audit has a sobering effect on conduct," McConchie said. "The
salutary deterrent effect is that a possible audit by the auditor-general can
have on ministries owes its effect to the possibility of a wide-ranging,
unrestricted audit."
Auditor
general's plea for access
McConchie's
50-page submission and arguments echoed those of the auditor-general's legal
counsel Louis Zivot, who filed a 111-page submission with hundreds of
references to case law and legislative authorities to back the application.
"It
was intended by the legislation that the Auditor general have full
access," Zivot told Bauman. "The legislation could have been drafted
to exclude legal expenditures."
"If
we have to negotiate with the attorney general as to what we can have and how
we can have it, it will impede the auditor general," Zivot said.
"It
is absolutely necessary that the Auditor general have access to all these
documents," he said. "While a good deal of focus is on Mr. Basi and
Mr. Virk... they are only two of the hundreds of recipients of
indemnities."
The
records that have been given to the auditor general have been severely severed
or redacted, effectively rendering many of them useless, Zivot said.
"Some
pages are virtually black -- you can't tell who conversations were with --
these are insufficient for auditing accounts," Zivot said. On
the lectern in front of Zivot observers could clearly see a document with
blacked out pages.
In
concluding, Zivot warned that a decision against Doyle would not only
negatively impact the B.C. auditor general's powers but those of other
provinces as well, who have very similar legislative authority.
"Essentially
this is a very important matter for the auditor general of British Columbia but
also for other auditor generals," Zivot said. "A finding that the
auditor general does not have these powers would have an adverse effect on the
[B.C.] auditor general, other auditors general and auditors."
The
other side
But
strong arguments against the auditor general's application for these files were
also heard in court.
While
the government has not taken a position for or against Doyle's application, an
amicus curiae or "friend of the court" was appointed by the court to
oppose the auditor general's application with all relevant arguments to protect
solicitor-client privilege.
Not
only were lengthy arguments made in an 88-page submission strongly fighting
Doyle's position but lawyer Michael Frey [pronounced Fry] previously opposed
van Dongen's application for intervenor status, saying the former veteran
cabinet minister had nothing to add to the case.
When
it came to the auditor general's application, Frey was completely dismissive of
its merits.
"The
Amicus's first and foremost submission to this court is that, as a matter of
statutory interpretation and law, the petitioner [Doyle] has no power to compel
the abrogation of solicitor client privilege. His general production power in
the [auditor general] act does not authorize the infringement of
privilege," Frey wrote.
"Further,
the amicus submits the petitioner has also significantly overreached in
claiming that the standards justify an interpretation of the act that empowers
him to compel abrogation of solicitor client privilege, or an absolute
necessity for compelled interference with the privilege on any basis in
connection with audit work," he continued.
Frey
noted in court that Doyle's office has received partial records of
indemnification legal billings that have been redacted -- or blacked out to
remove some details -- and could conduct his audit with those.
Justice
Bauman intervened to ask for clarification at that point.
"Is
your argument that what he [the auditor general] can get through redacted
material... ought to be plenty enough?" Bauman asked.
"Yes,"
Frey quickly responded.
Mysterious
Sandra Harper
Basi
and Virk are also opposing the auditor general -- at least in part. They have
given a partial waiver on access to those documents possessed by government --
but not the files of two lawyers retained to independently review the legal
bills of Michael Bolton, lawyer for Basi and Kevin McCullough, lawyer for Virk.
And
as always with the B.C. Legislature raid case, efforts to find out what
happened invariably uncover yet more mysteries.
One
of the lawyers attending the full five-day hearing was Sandra Harper, one of
the independent reviewers of Basi and Virk's legal costs.
Harper
took the stand briefly to explain her position: that she declined to provide
her files to the auditor general when he requested them, saying that while she
did not object, Virk did, and so Doyle should seek a court order for her to
produce them.
But
things took a strange turn in her testimony on Sept. 12.
"I
acted as the independent reviewer of counsel for the accused, Mr. Basi and Mr.
Virk, until Sept. 2010, when I resigned," she told Bauman.
What?
The only independent reviewer of the $6 million in legal fees for the accused
for five years quits just weeks before the actual trial starts in Oct. 2010?
Naturally,
I wanted to know why, and approached Harper as she left court on a break
Friday.
Tieleman:
"Bill Tieleman, with 24 hours newspaper and The Tyee, Ms. Harper -- may I
ask you one simple question?"
Harper:
"No."
Tieleman:
"But don't you even want to know the question?"
Harper:
"I won't be talking to the media. You may find out the answers through
others at the court."
And
with that she was gone, leaving the puzzle additionally intriguing.
But
wait, there's more.
Harper
also publicly opposed van Dongen's application for intervenor status when it
was made in May.
"It's
so politically motivated and so off topic that I'm very concerned that Mr. van
Dongen's real message is not inside court but outside court and there's a very
real concern of the application becoming politicized," she said then.
"The Basi-Virk matter has been political enough."
That
view didn't hold sway with Bauman, who granted van Dongen's request,
saying: "I am satisfied that a responsible intervention will be
made."
But
it's hard for this case to avoid being "political" when the
co-accused were both senior B.C. Liberal ministerial assistants who leaked
confidential government material not only to lobbyists Erik Bornmann and Brian
Kieran -- who were never charged and were slated to become key Crown witnesses
-- but also to Bruce Clark, the premier's own brother, who also was never
charged with any offence.
So
why is Sandra Harper not willing to tell the public why she quit as the
reviewer of Basi and Virk’s legal bills?
And
why did she openly oppose van Dongen's application for intervenor status?
Hard
to know when Harper won't even hear questions, let alone answer them.
But
there's no record of Harper making political donations to any party on the
Elections BC financial reporting website.
Fog
has yet to lift
And
so the mysteries continue nearly nine years after the Basi-Virk/B.C.
Legislature raid case first exploded into public view.
Since
that time the overall costs to the public have topped $18 million, including
prosecution and RCMP expenditures as well as Basi and Virk's legal bills.
Overall,
it's clear that win or lose, the auditor general's application will not be able
to answer the much larger questions of what happened when the government sold
the publicly-owned B.C. Rail that it has promised in 2001 to keep.
That's
why it's worth continuing to call for a public inquiry, which has been
supported by the B.C. New Democrats, the B.C. Conservatives and the B.C. Green
Party.
But until
and unless that inquiry takes place, there are too many mysteries and not
enough clues.
.
