The title quote is from a radio interview Gary Mason (G&M columnist) gave with Alex Tsakumis at the time of the last Provincial election. He was referring to the Basi/Virk plea deal in which taxpayers picked up $6.2 million in legal fees in order to end a trial and obtain guilty pleas after a seven year process.
It feels like whistling in the dark to bring this up now, but I’m doing it for a reason. Lew Edwardson, frequent blog commenter and excellent person, has issued an open letter to new Solicitor General Mike Morris asking him to investigate aspects of that plea deal which exceeded the authority of Assistant Deputies Fyfe and Whitmarsh and were therefore illegal. That open letter is posted at the end of my thoughts below
I urge you to read through and contact your BCLiberal MLA about it.
Where I’m going with this is that we have to ask ourselves what the costs are as electors, citizens, and yes, taxpayers, when we let the polticians get away with such brazen stuff.. The political class is expert at delay , obfuscation, and survival by exhaustion of legal means and our public attention span. My own rage at the Basi Virk deal has long since moved on to other issues. It informs my distrust of this particular government and the individuals involved, but I’ve long since abandoned the notion that anyone will ever be held accountable for buying a guilty plea in the BCRail case.
Among the key points is one brought up in 2013 by former Solicitor General John van Dongen, who possessed more integrity than the entire BCLiberal caucus. That is, that there was no legal authority to forgive any debt over $100K…and certainly not $6M. Mike de Jong has never mustered up anything but word salad in response to this question or the question of how the Immaculate Conception of guilty pleas occurred without the dirty human business of the government offering a $6M inducement to plead.
I’m puzzled too… the sheets are dirty. (The sheets of paper in this case). The forgiveness of the indemnity was made known to the defendants just before the guilty pleas were entered in court. Imagine that.
But let’s read Lew Edwardson’s excellent letter below, and move on to other issues.
1: Special Prosecutor Butcher has been investigating the Quickwins scandal since July of 2013. Two prominent BCLiberals face charges so far, and I’d take a lot of convincing that investigation of this length will turn up nothing more. Mike Smyth of the Province points out that we are paying for legal counsel for a number of people in government while the investigation is ongoing..
Mark Robertson and Brian Bonney will face the court in the summer of 2016. If Mr. Butcher lays charges against others, it’s unlikely the court will hear cases prior to the 2017 election. That means the course of justice may span two elections, which may well be won by Premier Clark, whose operatives perpetrated crimes on the citizenry, the nature of which remains largely unknown and unproven.
2: A current case making news around the South Island is a judicial hearing into the granting of a permit to dump toxic waste near Shawnigan Lake. The issues are two-fold. First, the engineering firm hired by the proponent to do assessment of the site entered into a profit sharing agreement with the proponent. This is a breach of the Engineer’s code of conduct. The parties to the deal claim it was never acted on (the same line Christy Clark used about the Quickwins memo) . The court has to decide how this undisclosed financial agreement impacts the quality of the assessment work. (The deal was formally torn up in December of 2015, months after the EAB approved the permit and after the deal made the news.) It is conceivable that an action on fraud may separately succeed against the principals while the court decides the environmental approval stands as is.
The question for the voter is, how many other backdoor deals exist in BC which taint the process of environmental approvals? And why are the Minister of Environment Mary Polak, and Attorney General Suzanne Anton, so unconcerned?
3. Site C is a huge project. The BCLiberals have done everything to avoid explaining to us why we are spending approximately 10 billion to build it. Ex Hydro CEO’s are on record saying we don’t need it. It will cost ratepayers up to 40% increases on their monthly bills. The power isn’t required. Other greener options are available which will provide more jobs across the province and save us money. Keith Baldrey did a column over the weekend which made the true argument that it’s provincial jurisdiction and PM Trudeau’s power to stop it is constitutionally limited, but there is still a question of court cases derailing the project. To delay Site C until those court cases have finished might well save us money even if the court cases fail. Please read Laila Yuile on Site C here…
4. A Mark Hume G&M column brought to light very serious questions about a $ contribution announced in Massett to help fund a study of a school expansion in Haida Gwai . The school is federal jurisdiction as it’s on reserve land. Clark’s brother is pushing a wind farm project there. The funding for the school project was brought forward by a candidate for local election who had connected with the Province for the funding through Clark’s brother, and who supports Bruce Clark’s wind farm project.
No media outlet as far as I know, since that column was published, has asked a single question. Not one. There is to my knowledge, no precedent or parallel in terms of the Province of BC funding school projects on FN reserve lands.
5. The BCTF’s contract was stripped in 2001. The current legal standing of the argument is that the action taken by then Minister of Education Christy Clark was unconstitutional. That much is not in dispute, but the actions of the Province since are still fought about. The final ruling by the SCC may happen after the 2017 election, in which case it’s possible the BCLiberals could be elected for 4 terms while the teachers in the province waited for justice. 16 years.
I could go on and on and on… I could list 100 reasons to question the integrity of the 40 odd people who make the decisions in our legislature as Laila has done , but the picture is clear..I haven’t mentioned Mount Polley. Having “got away with something unbelievable” in the Basi Virk case, the gloves are off. The BCLiberals don’t care. They believe they are untouchable.
Given the slow pace of Canadian Justice, they may be right.
Here is Lew’s letter in full.
Open Letter To Solicitor General and Minister of Public Safety
18 January 2016
Honourable Mike Morris
Solicitor General and Minister of Public Safety
Room 028, Parliament Buildings
Victoria BC V8V 1X4
Dear Minister :
Congratulations on your appointment as Solicitor General and Minister of Public Safety.
In her statement announcing your appointment the Premier expressed confidence in your ability to be tough on crime. I write to gain assurance her confidence is well founded.
You were a member of the Select Standing Committee on Public Accounts considering the Auditor General’s December 2013 Audit of Special Indemnities in the spring and fall of 2014. Many serious questions arose out of that audit relating to the plea deal reached separately from the one reached by the special prosecutor to end the trial of Bob Virk and Dave Basi on the BC Rail matters. That separate deal was a primary focus of the audit.
Due to the serious nature of the questions, and the Committee’s inability to obtain answers from any of the available witnesses, MLA Corrigan moved to invite the former deputy ministers responsible for its arrangement and execution to appear and assist. You voted with your BC Liberal colleagues to deny the motion and the questions remained unresolved. That signaled to me a troubling lack of interest in administration of the law. You did however offer your assistance to the Committee as a former police officer with experience in plea bargains and I wrote the Committee in that respect. The letter read in part:
“…The Auditor General says in his report auditors were told that the guilty pleas negotiated between defence counsel and the special prosecutor would never have been entered by the defendants but for the prior plea deal (October 14, 2010) between the ADAG and the defendants.
MLA Morris says, “I think, to David Eby, that assumptions are made that this $6 million was used as an inducement to plead guilty. We don’t know the discussions that took place between counsel and the special prosecutor in this case, and they’re the ones that negotiated the guilty plea. We will never know what those discussions were all about.
As a former police officer, I’ve been intimately involved in plea bargaining in the past.”
The discussions between the special prosecutor and defence counsel are not the issue here. The issue is the October 14, 2010 plea deal between the defendants and the ADAG to extinguish the special indemnity agreements by way of an Agreement to Release in exchange for guilty pleas and how that affected the course of justice. And we do in fact know quite a bit about that agreement and the surrounding discussions from the Auditor General’s report.
Notwithstanding MLA Morris’ reference to the wrong discussions, he has tendered to the Committee his expertise as a police officer with intimate knowledge of plea bargains. Perhaps he would be prepared to assist the Committee’s understanding of how these work in practice by advising:
- how many plea bargains he witnessed or was a part of that involved securing guilty pleas through cash payments by the Crown to the defendants;
- the amount of the highest cash payment;
- whether the court was advised of these payments made in exchange for guilty pleas; and
- what action he took as a police officer regarding these payments.
In the event MLA Morris has no plea bargains of this nature to report in his experience, perhaps he could advise the Committee why that would be, whether one of that nature would be illegal, and what the duty of the Committee would be if it discovered through its deliberations on the Basi/Virk indemnities that government officials may have been party to such a plea bargain…”
You did not answer that letter, nor did you assist the Committee with the questions. Public trust in your new role might be enhanced if you answered the questions now.
There are other issues arising from that plea deal providing an opportunity for you to display your zeal for ensuring adherence to legislation in this province.
The original indemnities provided that the indemnified would be liable for the accrued legal fees if convicted and remained convicted after all rights of appeal were exhausted or extinguished. But as a condition precedent to having liability for their legal fees forgiven, the defendants were required by the October 14, 2010 agreement to sign a release agreement. Under that release, Mr. Basi and Mr. Virk agreed to give up their claim to any cause or right of action against the Province and all Province Entities, including all ministers, in any way related to or arising from their prosecution, effective October 12, 2010.
The BC Criminal Rules of Court stipulate that to appeal, a convicted individual must file Form 3 in the specified manner in the registry and that will constitute service on the Attorney General of British Columbia. Mr. Basi and Mr. Virk gave up the right to do so on October 12, 2010. Their right to appeal was therefore effectively extinguished and when they pled guilty and were convicted on October 18, 2010 they became immediately liable for approximately $6.2 million in accumulated legal fees. The Deputy Minister of Finance did not have authority to sign a document on October 20, 2010 retroactively forgiving a debt over $100K. Please investigate this issue.
The Agreement to Release did not amend discreet elements of the indemnity agreements, as a normal amendment would do. Under the release, the Province simply agreed not to continue or commence any claim it might have in any way related to or arising from the indemnity” whether known or unknown, present or future, at law, in equity or otherwise…” It did not amend the term of the agreement, for example. The indemnity therefore continued in effect until its term provisions caused it to expire. When the appeal rights were exhausted on November 17, 2010 by the BC Criminal Rules of Court thirty-day limit and the defendants remained convicted, the indemnities were still in effect despite the Province’s agreement not to commence a claim arising from them. At that time the indemnity provisions established a liability against the defendants for $6.2 million in accumulated legal fees. The Deputy Minister of Finance does not have authority to forgive a debt or obligation in that amount. Please investigate this issue.
The terms of the original indemnities identified the funds advanced as loans and established repayment conditions based on the outcome of the criminal proceedings. All parties to the indemnities clearly intended the funds to be loans and the government signatory possessed full authority to issue loans on behalf of the government. The Deputy Finance Minister purported authority to forgive those amounts (over $6.2 million) before the proceedings established liability through the indemnities. Please investigate this issue.
The following statement was included in a March 28, 2012 open letter from former Attorney General Geoff Plant to former Solicitor General John van Dongen concerning the Basi/Virk plea deals:
“What is clear is that there was no legally binding deal. There couldn’t be. The waiver of recovery of fees was not and could not be an inducement to plead guilty. As a matter of law they were not connected.”
The October 14, 2010 agreement signed by Assistant Deputy Attorney General Richard Fyfe and the defendants is a legally binding deal, and it connects the guilty pleas on the counts and terms as required by the special prosecutor directly to the waiver of recovery of fees. The offer to waive the fees only if and after the defendants pleaded guilty, were convicted, and kept quiet about the deal was made in writing and completely controlled by the government. If Mr. Plant is correct, (he has been described by the current Premier of British Columbia as one of the sharpest legal minds around), then an inducement to plead guilty appears to have occurred. Please investigate this issue.