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December 27, 2003 raid

Raid on the offices of the Minister of Finance and Minister of Transportation

What a grand day for the BC Liberals! What a great relief to former Minister Gary Collins! I can’t wait to hear Gordon Campbell praise the Crown, Crown Counsel Berardino and the Justice system! The Crown bails out of the Basi Virk trial! How does that grab you?

Meanwhile I, as a lawyer, feel sick. I kid you not, when I received the news I felt a wave of nausea.

Before going further, it’s not uncommon to “cop a plea”. It’s a gamble the Crown and defense play when the Crown isn’t sure it can make the charges stick, and the defence, knowing full well that they’re guilty as hell, want to make the best of it. BUT, copping a plea usually comes at or near the beginning of the trial, not after years have passed and millions have been spent.

Now, if the accused were not guilty and at this advanced stage of the case Crown was unsure of its case, that would be one thing, but for God’s sake, the accused pled guilty! Not to a reduced charge but what they were charged with!

What then could the Crown have been thinking? What motivated this bizarre, quick ending?

I don’t know the answer, but this much is true: the appointment of Mr. Berardino in the first place has been criticized as putting him in at the very least a perception of conflict of interest. This calls into question the confidence the public has in the ability of the assistant deputy minister of the Criminal Law Division to appoint Crown Counsel without any outside interference. It’s not that I don’t trust the assistant deputy – it’s his boss and his boss’s boss I don’t trust to behave properly.

He’s Crown Counsel selected under the Crown Counsel Act, used when the accused is high profile and it’s desirable that there be no question of the Crown Counsel being in any way compromised. Here’s what the Criminal Justice Branch of the Ministry of Attorney General says “The Criminal Justice Branch operates independently of government and within the justice system. They do not represent the government, the police or the victim of an offence.” (My emphasis)

The reality of it is that Mr. Berardino, whether he knows it himself, was acting for the government in the sense that the government had a huge interest in the outcome. That interest was not as a bystander wondering if Basi and Virk would be convicted but whether or not the evidence pointed to wrongdoing by the government, any of its ministers, even the premier. Surely no one not having just arrived from Mars would doubt that this trial was the political trial of all political trials. Assuming that Mr. Berardino knew this, surely it’s fair to question his judgment in taking the case in the first place.

(I digress to make this point. Lawyers are fond of saying that their code of independence is such that even in a case where conflict appears, they can be counted upon to be the very soul of impartiality. If that’s so, why did we need a Crown Counsel Act in the first place?)

I cast and intend no inferences – I have no evidence that Mr Berardino has ever felt any pressure by the government, make no such allegations, nor ask that any adverse inferences be drawn.

What I do say is that it looks like hell and the “appearance”, the “perception” is awful. Surely common sense would say that since Mr. Berardino acts for the Crown and is paid by the government regularly, he cannot be counsel when that same government has a massive interest in the outcome of the case.

Let’s pause for a moment. It’s important to note that the “Crown” and the “government” are not the same thing. In the old legal saw, “the Crown neither wins nor loses – it simply places the evidence fairly before the court.” The question is not whether or not Mr. Berardino should have acted for the Crown but should he have acted where the evidence might embarrass the Crown’s agent, the provincial government?

The law is abundantly clear on the test to be applied: here is the oft cited aphorism of Lord Hewart from Rex v. Sussex Justices; Ex parte McCarthy:

“… it is not merely of some importance but is of fundamental importance, that justice should not only be done, but should manifestly and undoubtedly be seen to be done.” (Emphasis mine)

As a consequence of this “deal” these things have happened:

  1. Basi and Virk, on very serious charges which one would think should have brought serious consequences, plead guilty as charged but all but get off scot free.
  2. Gary Collins, then Minister in charge of the “lease” of BC Rail to CN, does not have to give evidence
  3. Gordon Campbell will not have to testify which, considering his difficulty with the truth in other matters, avoids what for him might take considerable exertion
  4. A case bringing more and more uncomfortable evidence by the day for the Campbell government is suddenly over
  5. What really happened in this matter can only be speculated upon

I leave it with you, the citizens of British Columbia – was the settled test as enunciated by Lord Justice Hewitt, namely, “justice should not only be done, but should manifestly and undoubtedly be seen to be done” met in this case?

I doubt that even the 9% of the public that supports Mr. Campbell would think that it was.

12 Responses to “Shocking End to Basi-Virk Makes Me Sick – Literally!”

  1. G Ruiz says:

    Gordon Campbell is the most corrupt premier in the history of BC. Though he must be very happy that the BC Rail Trial is over, the public knows that justice was not served.

  2. Terrence says:

    This “judgment” stinks to high heaven! What a farce!

    I agree entirely with G Ruiz – Campbell is the most corrupt premier in the history of BC; but I would “and in the history of Canada”. Juts when you think Gordo and company can sink no lower, they pull it off and sink way, way, way lower than would have been thought possible.

    The words “disgust” and “contempt” do not convey my opinion of Gordo and company.

  3. Olivia says:

    I understand within a matter of days (or tomorrow)all the evidence related to Basi/Virk will be shredded or destroyed by the RCMP. Is there anything that can be done to stop that do you know (being a lawyer and all) I find this very disturbing that they are going to do this.

  4. Hixxville says:

    Good. Just so’s we’re not getting all emotional and hyperbolic about unfolding events.

    What’s so hard to believe about self-important people in minor positions of influence taking tickets to sports events and bribes as they come? Do you think ANY organization would set itself up with that as Standard Operating Procedure? No, of course not.

    A couple of dickheads got caught with their hands in the cookies jar. Nothing they were doing would in any way have helped to government position in events either publicly or privately. Why so hard to believe they were totally ‘off the reservation’ on this?

  5. Hixxville says:

    Good. Just so’s we’re not getting all emotional and hyperbolic about unfolding events. -rolls eyes-

    What’s so hard to believe about self-important people in minor positions of influence taking tickets to sports events and bribes as they come? Do you think ANY organization would set itself up with that as Standard Operating Procedure? No, of course not.

    A couple of dickheads got caught with their hands in the cookies jar. Nothing they were doing would in any way have helped to government position in events either publicly or privately. Why so hard to believe they were totally ‘off the reservation’ on this?

  6. Ed Seedhouse says:

    Perhaps Rafe, as a lawyer, could explain how it could be that Basi and Virk could have, in the words of the Premier, “acted alone”.

    I mean, if as has admittedly happened, someone is guilty of accepting a “benefit” musn’t some one else, ipso facto, have been guilty of offering that benefit? Isn’t this, at a minimum, a two party crime?

    Yet, scour my memory as I will, I cannot remember anyone being charged with offering that benefit! Is my memory wrong here, am I going senile? If so a correction is something I would be grateful for.

    But if I am not, do not Basi and Virk now know who offered them the “benefits” that they illegally took? And if the police asked them who this was would they not be legally obligated to reveal it?

    Or did the “benifit” come from no one, from the universe at large, from out of thin air, or from the deity herself?

  7. Kim says:

    Hixxville, way to parrot the party line! The people of BC have been played for fools by this regime, but we are not fools and this is not over, not by a long shot! What about the indemnity? It is not legal when the representatives are found guilty. The Special Prosecuter cannot change the act, so is the AG lying? Or did the order come from the top?

    Rumours of document destruction abound, but Ian Reid has slipped in an FOI request, which was received. We have archives on hard-drives all over the province. Justice has not been done, yet. Rafe, great job!

  8. […] Mair weighs in with Shocking End to Basi-Virk Makes Me Sick – Literally! (Oct 19 2010). What a grand day for the BC Liberals! What a great relief to former Minister Gary […]

  9. Audrey Laferriere says:

    Justice was not done or seemed to be done in this case or in a recent case I was involved in. BC Housing v. DERAH and DERA. The DERAH Board signed a secret agreement with BC Housing early this year so that the E/D or any member of the board would not be criminally prosecuted. The only problem with that was that I as a director was not part of the secret agreement. BC Housing has a $1 billion yearly budget and there is no checks and balances like a director asking questions about why the financial statements for DERAH were never given to any of the directors; only given to BC Housing and the E/D. etc. What is really happening with all the monies given to non-profits who are given the responsiblity of looking after the marginalized.

  10. Audrey Laferriere says:

    When I was at the hearing I asked the Judge if I would speak and after he asked the lawyers for BC Housing and DERAH, both of them said no, I was not allowed to speak and the judge did not know that I was a director nor did he know that I was not party to the secret agreement. The judge couldn’t have read the mountain of documents in front of him as he instructed the parties to go outside and settle the matter. Boughton and Co. had five of its lawyers there to DERAH’s 90 year old chair, Sister Elizabeth Kellier. DERAH’s lawyer dropped out after Boughton and Co. found out that he lied to the court. It was a slaughter. White collarcrime involvilng societies should be prosecuted to the fullest as it is a violation of the public trust.

  11. Hixxville says:

    Axioms of Politics
    © Rafe Mair 1998
    I. You make a very serious mistake in assuming that people in charge know what the hell they are doing.

    With that in mind; is it so hard to believe that those in charge would know what their underlings were doing for their own benefit? I fail to see how that observation could be either ‘towing party line’ or particularly favourable to any party involved.

    The electorate in ANY jurisdiction in a democratic system are played for fools in every election. It’s just a choice of which fools you want leading the parade, the crooked ones or the stupid ones.
    EG: “vote Liberal and gas will NEVER go over a dollar a gallon”:Pierre Trudeau
    “When elected we will rescind the GST”: Jean Cretien
    ……and on and on.

    As to the matter at hand and the futility of getting emotional about it; you will be constantly angered until you come to terms with the fact that we have a System Of Laws. Not a System Of Justice.

  12. Joe Boulter says:

    If my memory is correct, when Glen Clark went on trial the arrangement was that if he wins then the taxpayer pays his legal fees but if he’d lost then he’d have to pay his own legal fees. As it turned out he won so we paid his legal fees. In the case of Basi-Virk they plead guilty and we’re still on the hook for legal fees. Something’s not right. If I’m mistaken about Clark, will someone please correct me.

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