“And what sort of a government do we have in BC when our top justice official, Attorney-General, Mike DeJong, can agree to pay the crooked officials’ million legal fees as part of a deal between a supposedly independent special prosecutor and the defense lawyers? What is the point of hiring an independent prosecutor in the first place, if at the end of the process the attorney-general – a a politician in the very government whose integrity the case brings into question – will be needed to approve such a massive carrot in the plea bargain”.

The Province then asks. “Have the payment of lawyers’ fees ever before been part of such an arrangement?”

The answer comes right from the Campbell government which, when Glen Clark was charged with a criminal offense, said they would pay the lawyer if he won, not if he lost. Under this precedent, the accused should not have had a penny paid by us the taxpayers.

The following is now clear – this bargain wasn’t made by Mr Berardino, the special prosecutor and his role was really a conduit between the Campbell government and the accused. Mr Berardino says that the deal was solely his. That, (forgive the legal jargon here) is bullshit. Clearly he didn’t have authority, on his own, to shell out this money but had to get that from DeJong, the attorney-general. Just as clearly, that authority had to come from cabinet, which is to say, Premier Campbell. Premier Campbell knew what the deal was and I suspect that he initiated the settlement proceedings.

This leads to one conclusion and one conclusion only – indeed I suspect that most people would agree – this trial ended because the next steps were to call witnesses that would badly hurt an already terminally wounded government.

To me there can be no doubt that this settlement was politically motivated.

I also have looked at this from a lawyer’s point of view.

Why would you stop a trial that has gone on when the end is in sight?

If it became clear that the accused would not be convicted then it would be the duty of Crown Counsel to stay the proceedings but that’s not the case here. Mr Berardino must have interviewed a number of future witnesses, including the former Finance Minister, Gary Collins and the Premier himself. If he knew from these witnesses that they were going to help the accused, he was bound by ethics to disclose this to their lawyers. One must, therefore, infer from this that the Crown witnesses to come, that is to say Messrs Collins and Campbell plus, no doubt other government insiders, would hurt the accused. With this reasonable and logical inference – and the decisions of the accused to cop a plea reflected this – then clearly Premier Campbell knew that it was time to bail.

If one does not assume that, one must assume that Mr Berardino, entirely on his own, made a deal where the accused would have all their legal fees paid and not go to jail and the government would have to pay $6 million dollars then after he had made the deal he told them what he’d done. If you believe that happened, I have a dandy bridge you might like to buy.

The only sensible conclusion one can come to is that this was not a legal decision and that that the government made a political decision to save the little that’s left of their bacon.

Of course there should be an investigation into the entire BC Rail issue.

When I finished the foregoing I felt a sense of emptiness then I realized what was bothering me – it wasn’t anger, and it wasn’t just embarrassment, though I certainly feel that.

No, for the first time in my life I felt thoroughly ashamed of my government.

Carole Taylor is to become the new Chancellor of Simon Fraser University for a three year term. I don’t believe that Ms Taylor woukld take that on if she had any interest in getting back into politics which vaults Diane Watts, the mayor of Surrey, into the favourite’s role in the contest for Pinocchio’s job. I think Ms Taylor knew enough about the BC Rail case to know it would stick to anyone who’d ever been part of a Campbell government.

By the same token, Ms Watts may well think that she really doesn’t need to voluntarily accept the poisoned chalice that is the leadership of the BC Liberal Party.

More and more the vacuum at the centre enlarges begging for a party of the middle will happen.

Apparently, according to some, what he meant by this is that he had not seen the signed copy and that he did in fact make the deal.

If I misled you, I’m sorry, but I apologize for nothing. If Mr Berardino had meant “I negotiated solely on behalf of the Crown but I didn’t see the actual signatures until the morning at 9:40 why the hell didn’t he say so?

I believe that on the plain words he spoke, my interpretation was the natural one. He spoke of “signed by the Crown” as if it were signed by somebody else than him. If he meant “I signed on behalf of the Crown”, again, why didn’t he say so?

While he accepts sole responsibility for the deal, that scarcely means he negotiated it alone.

If he does say he negotiated it alone – that is without consulting the government – I exercise my right not to believe him. I don’t believe that for two reasons;

1. This was the most notorious court case I can remember going back to and including the BC Electric takeover in the 60s and surely Berardino would understand that the public had a right to know how the deal was done and would have, as experienced counsel, issued a statement that was incapable of more than one meaning.

2. It beggars belief that he didn’t discuss the part of the deal that saw the entire legal tab, including the accused’s legal costs, with a member of the government or an agent of the government before making the deal. At the risk of being redundant, I remind all that we the taxpayers are paying for this.

Whether he spoke to the Attorney-General, the Assistant Deputy Attorney-General, Criminal Justice Branch or anyone else with the authority to throw away $6 million dollars, surely he had to first get their consent and in doing that would surely have to tell them what the entire deal was.

So now we have a new question for Mr Berardino – did you make the deal to forgo over $6 million dollars all on your own?

I must tell you again, if you say that, I don’t believe you.

If you got authority to make that deal you would have had to, obviously, disclose what the government was getting in exchange. That being the case, from whom did you get your authority?

If you wish, I will publish any statement you may have in reply to the same people receiving this and previous mailouts on this matter.

The question of what role the Judge played remains unanswered.

Prosecutor Bill Berardino says, in the Basi/Virk trial, that he didn’t see the “deal” until the morning it all happened. Here is a direct quote:

Berardino said outside court that he didn’t see a copy of the agreed statement of facts, signed by the Crown and defence, until 9:40 a.m. — 20 minutes before court was scheduled to resume hearing the testimony of a witness. Asked if there was any government pressure to end the trial, which had so far contained embarrassing allegations for the B.C. Liberal Party, Berardino said: “This is my decision. I made it on my own by myself”.

Mr. Berardino, if you didn’t make the decision, then who the Hell did? You were Crown Counsel and in your own words had complete control of the matter. Someone had to make this deal behind closed doors which you signaled about 10 days ago when you announced that you had shortened the list of witnesses.

Was it the Attorney-General or someone in his ministry that did the deal? Was it someone from the Premier’s office? Was it someone else on behalf of the government?

Mr. Berardino, this deal didn’t just float down the river on a piece of bark. Are you saying, perhaps, that the angel Gabriel made another trip to earth and gave you this deal?

This is a simple question, sir – you had to approve the deal at the very last minute. Who instructed you to do it?

Will you give your word of honour that from start to finish the government stayed right out of this case and by that I mean did members of the government, such as the Attorney-General or any representative of the government ever talk to you or in any way communicate with you about this case at any time? Did you ever give them a summary of what was happening? To whom did you report?

You, sir, were a special prosecutor, and had complete carriage of the matter (in the clumsy phrase we lawyers use) so that if you didn’t negotiate the deal, and if it wasn’t communicated to you until the day of the cop-out, this simple question – who made the deal and who gave you instructions to implement it?

Oh, yes, either the judge agreed with most unseemly haste with this awful cop-out. Was she part of it going back at least as far as your announcement that the witness list would be shortened? What role did she play in the negotiations and if it wasn’t with you involved, who was? Are you asking us to believe that she was surprised when the deal was announced and took no part in a deal that compelled her to assess mild penalties?

This is a public matter with your fee as well as many millions of dollars spent on the case paid for by the taxpayers and they’re entitled to answers to the questions above.

I guarantee that your reply will, like this note, be sent to my entire address book, and posted to rafeonline.com.

Over to you, Mr. Berardino, special prosecutor working on behalf of the citizens of BC.

Letter to Fazil Mihlar, editorial page editor for the Vancouver

Dear Mr. Mihlar,

Your editorial in the Vancouver Sun, October 19, 2010, was an utter disgrace and you and your paper owe the RCMP an unqualified apology. To blame this tawdry Basi-Virk deal on bad police work is, sir, disgusting.

It’s true that an RCMP statement back at the beginning, ”it was a cancer eating away at the social and moral fabric of British Columbia” might have been unwise hyperbole.

One the other hand it could have been true and I suggest to you, Mr Mihlar that we’ll never know because members of the government including the premier did not have to testify.

You say “They (police) may have been sniffing but based on the evidence that came out in court, they found nothing to back their allegations beyond the charges that were ultimately laid.” (my emphasis)

How in hell can you say that when the key witnesses who could have been asked the appropriate questions were all shielded by a cop-out?

Why don’t you ask why the politicians past and present were, in effect, protected, not blame the police because the prosecutor pulled the rug from under them?

We, the journalist deprived public, have been treated by your paper to one weasily defence of the Campbell government after another. You’ve stonewalled the fish farm case giving the industry and their flacks almost carte blanche to use your op-ed page and a shrill sheet.

With the exception of the occasional article by Scott Simpson you haven’t said a word about the sell out and ruination of our rivers and bankrupting BC Hydro in the bargain.

Mr. Mihlar, we know one another from your days as a guest on my radio show where you peddled your far right wing views in your capacity as a “Fellow” of the Fraser Institute. Evidently those views have been carried onto the Editorial and op-ed of your newspaper.

I have done many editorials critical of the police and my readers know that and can vouch for it. But to criticize the RCMP because Bill Berardino, QC, pulled the rug on the Basi-Virk case before any cabinet ministers before or now, and the premier, were examined and cross examined, is unfair in the extreme and you and the Vancouver Sun ought to withdraw from that disgusting editorial and make a full apology.

Yours very truly,

Rafe Mair

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.

This travesty is being played up as either a matter of following normal procedure or an error or both.

It’s clear that the government was under no obligation to delete this information.

Here is the sticking point for the government.

The Attorney General is the law officer of the Crown and has a duty to see that the administration of public affairs is in accordance with the law.

Here is what the Act, in part, says:

Duties and powers

2 The Attorney General

(a) is the official legal adviser of the Lieutenant Governor and the legal member of the Executive Council,

(b) must see that the administration of public affairs is in accordance with law,

(d) must advise on the legislative acts and proceedings of the Legislature and generally advise the government on all matters of law referred to the Attorney General by the government,

(f) must advise the heads of the ministries of the government on all matters of law connected with the ministries,

(g) is charged with the settlement of all instruments issued under the Great Seal of British Columbia,

Surely even the most narrow of interpretations of the above would compel the Attorney-General, from the outset to make it clear that all documentary evidence including emails, especially emails, must be retained and made available to Crown Counsel and, upon demand, by defense counsel.

I don’t say that the “fix was in” only that this is an interpretation one might suspect given that the case is an embarrassment to the government, at least one former cabinet minister is under a cloud, and that it would be in the government’s interest to have this case go away.

This simple question must be directed to former Attorney-General Wally Oppal “Did you, upon learning about the Virk/Basi case immediately advise all government ministries and, particularly Premier Campbell that ALL documents in possession of the government concerning this case be retained and made available to Crown Counsel?”

Whatever answer Mr Oppal gives will cast some light on whether or not the Campbell government behaved properly.