The outrageous special deal for Basi and Virk – REPLAY

First published January 7, 2011:

A reader pointed us to a recent BBC News report about a British politician convicted of financial fraud. Please compare this legal action to outrageous conduct witnessed in the Basi Virk trial related to BC Rail et al. Ex-Labour MP David Chaytor was jailed for 18 months for fraudulently claiming more than £20,000 in expenses. The former MP is now facing a large legal bill for both his defence and the costs of bringing the prosecution against him.

Mr Justice Saunders said that the public was entitled to expect honest treatment of public funds. He said Chaytor could not attract sympathy for having limited means, that these kind of offences are difficult to detect and amounted to a serious breach of public trust:

“MPs are trusted by Parliament to make honest claims and the rules make that abundantly clear. The foreword by the Speaker to the Green Book which sets out the Rules says that ‘Members are responsible for ensuring that their use of allowances is beyond reproach’. It is right that MPs should be trusted. They hold an important position in our constitution. These false claims were made in my judgment in breach of a high degree of trust placed in MPs to only make legitimate claims.”

The sentencing guideline in Britain for this level of crime against public trust was two years imprisonment. Chaytor was allowed a 25% reduction for pleading guilty. Had the size of the fraud been larger, the prison term would have been longer. For breach of trust involving £1 million, the guideline is ten years in jail.

Ordinarily in Canada, fraud involving breach of public trust is a very serious offense carrying lengthy terms in custody. The Basi/Virk case resulted in very mild punishment and a $6 million cash payment by the public for the benefit of the convicted men. Additionally, the BC Government released without compensation real estate held as security for defendant’s legal costs.

There is a prima facie case that BC Liberals provided Basi and Virk with a sweetheart deal in exchange for guilty pleas that allowed the trial to be ended. The prosecution had hoped to keep government documents out of the hands of defence lawyers but prosecutors lost that issue through rulings from the bench. Many documents were said to be destroyed but, through electronic recovery, these became part of the evidence. With those documents, Basi and Virk might not have proved themselves innocent of wrongdoing but the people directing their actions would have been exposed as well. That is why the Liberals wanted to stop the trial and explains why the defendants were willing to accept a conviction that involved only symbolic punishment.

The rest of this article was written in October. I think it is worth re-reading because this, the largest issue of political corruption in BC history, is still unsettled.

____________From Oct 19/10 ____________

Despite claims this week by mendacious politicians, the Basi/Virk case ended because Liberals deemed the consequences of halting the trial to be less damaging than harm from continued testimony or claimed memory losses by a parade of insiders certain to be embarrassed by indisputable documentary evidence.

For years, Basi and Virk claimed innocence, saying that they were acting on instructions of political superiors. Now those same bosses have facilitated a deal that allowed the convicts to avoid significant punishment, to have millions of dollars in legal costs paid by taxpayers, to have certain charges reduced or abandoned and to walk away without further public explanation or examination.

The Special Prosecutor admits he never saw the settlement agreement until minutes before it was announced in court. The judge claims she had no part in negotiating a plea arrangement but she took only moments to consider and approve settlement and decide penalties of a complicated prosecution that had dragged on for seven years. The Attorney General states his government agreed to pay millions in fees to the defendants’ lawyers – among the highest priced defense counsel in the province – but was not motivated by self-protection. The Government waived its right to recover legal fees from personal assets owned by Basi and Virk and avoided embarrassment of testimony that then Liberal Finance Minister Gary Collins was under RCMP surveillance when he met with BC Rail bidders.

This new policy of paying trial costs of employees, despite conviction, is contrary to usual government practice. Attorney General de Jong said public payment was dictated by the special circumstances of today’s “mega-trials.” However, in the infamous Pickton serial murder case, the BC government was less generous:

“The B.C. government registered a $10-million mortgage against the [Pickton Family] property on Feb. 28, 2003, as security for payment of legal fees for Mr. Pickton’s defence against the homicide charges.” Robert Matas, Globe and Mail.

We know the Basi/Virk defense cost more than $6 million. The prosecution, conducted by a former partner of senior Liberals, including advisor and former AG Geoff Plant and former Deputy AG and Gordon Campbell’s present Deputy Minister Allan Seckell, cost over $5 million. Add the many internal government, court and investigatory expenses and losses to the taxpayer for this travesty rise to over $20 million.

Consider that two senior government officials are convicted of accepting bribes to subvert sale of a valuable public asset. They breached, among other things, their oaths of office. They resisted prosecution for seven years, substantially compounding the taxpayer losses. Under the criminal codes, breach of trust is a very serious crime:

Every one who, being a trustee of anything for the use or benefit, whether in whole or in part, of another person, or for a public or charitable purpose, converts, with intent to defraud and in contravention of his trust, that thing or any part of it to a use that is not authorized by the trust is guilty of an indictable offence and liable to imprisonment for a term not exceeding fourteen years.

This is the maximum penalty available in the Canadian Criminal Code, short of life imprisonment. Proposed amendments under Bill C-21 would impose a mandatory sentence of two years imprisonment for fraud over $1 million. Basi and Virk walk away with conditional house arrest for two years less a day, a term that  keeps them in the provincial system, away from the federal correctional authorities. To soften that inconvenience, the Judge said they can travel to and from work, go outdoors for physical activity each day and participate in activities with their children. Since these conditions will be almost impossible to police, it is equivalent to a fully suspended sentence.

Basi, despite being convicted of a separate and additional offence of receiving a $50,000 bribe from a land development company seeking release of property from the agricultural land reserve received no additional time on his conditional sentence.

It is interesting to note that in Britain the sentencing guideline for breach of trust involving losses of more than one million pounds is 10 years or more of custody. Former newspaper baron Conrad Black, convicted in the USA of fraud involving $6.1 million received a prison term of 78 months. Clearly, the punishment of Basi and Virk is mild, outrageously mild.

BC did not always tolerate breaches of public trust. Robert Sommers, a BC cabinet minister in the W.A.C. Bennett government, convicted in 1958 of receiving fraudulent benefits totaling about $7,000 was sentenced to five years in jail. What a difference.

People who formerly had faith in Canada’s police and judicial system and British Columbian taxpayers are the losers in this whole affair.  Dishonest political operatives made off with valuable public assets. The perpetrators and those that facilitated the coverup were enriched. For example, the trial judge earned a promotion and the trusted Special Prosecutor billed millions. Despite having little experience or qualification for criminal prosecution, he had close business connections to senior Liberals. The defense teams were not limited to typical Legal Aid rates and restrictions; they made their own lucrative deals for public funding.  The Premier that orchestrated the corrupt sale of the BCR decides that no public inquiry will be allowed to inquire into his government’s misconduct.

By the time a new Government is in position to appoint an inquiry commission, remaining evidence will no longer exist. You can bet that shredders and degaussers worked overtime, at our expense. Thieves and fraud artists have been directing the BC Government for ten years and the master criminals remain in charge.

Categories: Basi/Virk, BC Rail, Justice

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21 replies »

  1. Ian. I was surprised by a few things including Hume's statement that he didn't report on the prosecutor's conflict of interest because it didn't “gain traction.” Might it have gained traction if it had been reported?

    The conditional sentence of two years less a day, which is nearly incapable of supervision because they can leave for a variety of reasons, is highly unusual for breach of public trust. That has always been considered among the most serious criminal offences. Only Tieleman addressed that and he was mistaken about the maximum penalty for fraud through breach of trust. The fact is their “house arrest” will have little impact on the lives of Basi and Virk


  2. It is not as if BC willingly tolerates this level of corruption nowadays. It is that the systems in place to prevent it have also fallen into this pool of corruption. The RCMP is supposed to investigate and then have the Crown approve charges. The very fact that Campbell takes care of his friends shows just how calculating he is.

    91% of BC citizens want an enquiry. If those same 91% took some action of some sort, say boycotting newsmedia who support this sleaze, then that would be one less tool at Campbell's disposal. Massive protests to gain international attention may help to bring in outsiders to clean up this province.

    How else can we get rid of the rot?


  3. How on earth can there be such a silence from thelegal community as a whole? we the common people with no power and no voice are just sickened by this travesty. surely there has to be some people with a public voice that`s disgusted enough to speak up.where are the rcmp? billions of tax dollars spent to deploy them and the body armour and billy clubs against any citizen that dares act on their conscience and shows dissent by being in the public domain but they can`t touch these dispicable theives.heaven help us!


  4. The legal community in BC in particular is complicit in the corruption of the justice system. Silence rules. Just like with the medical community. Doctors never go after another doctor, even when lives may be at stake. Their careers could be (and are) derailed if they make waves. Ditto lawyers. Ditto police. Ditto bureaucrats.

    It's commonplace to hear people talk about the fraudulent and unethical treatment they got at the hands of their own lawyers. Commonplace.

    Why? Self-regulation does not work. It's an oxymoron.

    As we see with doctors and police, all those “professional” groups do is protect each other, first and foremost. Self-regulation is the reason they can get away with it.

    Sooner or later, if no one is minding the store, then someone is going to start taking liberties. And then another someone else, … and then the miscreants find out they can get away with it, with just a slap on the wrist, if that, and then … well by that time corruption is well entrenched.

    That's the BC justice and legal community's character at the moment.

    We can only hope that those lawyers and judges who are sick at what is happening will start to rebel. They are victims too. Too bad there aren't very many of them.

    One thing gives me hope – these things never stay the same, they grow and grow and grow, and then one day — BAM! the whole thing explodes (or implodes), and the pendulum moves to the other extreme. The only thing we have to bear though, is how long will it take before these vermin are eradicated, the corrupt “pillars” of BC governance and authority?


  5. This practice of “Criminal Breach of the Public Trust” has a lengthy history here in BC. It has been rampant and Ongoing, without consequence.
    Two other cases in point. In Maple Ridge, back in the early 1990's we had a Municipal Manager, name withheld, who actually bought off three Councillors in order to give away Prime Municipal Land to a friend in the Development Business. He then turned around and awarded a contract to that same Developer to build a Downtown Core Re-Vitilazation Project which, in the end, saddled the people of Maple Ridge with a Lease Agreement we could not get out of. It was proven he “Bought the Votes” necessary to give away the land.
    Nothing happened to him.
    Secondly, there was the case with the GVRD where a welding contractor was found to have been given $600,000.00 for work he did not perform. the person who awarded the money to him was his best buddy, the man responsible for signing his daily work authorizations. When it was all proven with the appropriate documentation, the welding contractor was let go and the person who unlawfully signed the daily work authorizations was promoted.
    Keep in mind, Gordon Campbell got a lot of his sinister education while he was the Chair of the GVRD.


  6. Norman,

    This information is SO valuable … thanks to you, and your commenters.

    I'd like to borrow some segments to re-post at my place … especially with January 11, 2011 looming on the horizon,

    surely we can't just sit quietly while the Crown once again uses BC Supreme Court to try grabbing all the documents? This threat alone is enough to warrant a Third Party Review which would protect the documents for a while longer.

    Perhaps by the time the review of the $6 payoff is complete, it will be obvious to all — why we need a Public Inquiry

    with appropriate criminal charges laid, as a result.

    Meantime, next Tuesday, January 11, seems like the perfect time for some information pickets on the sidewalk in front of The Law Courts, Vancouver.


  7. Oh dare I bring this up, somewhere I've heard that the Justice system in BC is not connected to the politicians, however money must be allocated in some form via the Legislative Assembly to pay the bills that Judges rack up. And who's in between the MLAs and the Judges, the Treasury Board issuing Directives like the one they did in 2006, Fiscal year 2007. Why is there such a short list of them, 36 Directives, that's all. I don't know, maybe its censorship, but here's the source of the list:

    Check out Directive 1/07 “Authorization of expenditures for the Judiciary”

    I realize that we had a change of Judges in the BC Rail trial and the Directive is quite specific as to what level of Judge may hand out the funding, so my question to the forum here is ….. was it Mike de Jong, AG, who said he thought that it was a great idea to stop the trial now because of limited court funding or was it the Judges who stopped the trial based on their appropriations or was both of them or was it the Treasury Board who wrote an as yet unpublished directive? eh.


  8. Very interesting. 'Follow the money' is always a valid line of inquiry.

    If people wonder why the RCMP went from the role of low/mid level investigators to a role of high level damage control officials, follow the money. Think 20 year contract. Think one third of the entire organization staying or disappearing. Think common interests.


  9. Awesome article! This Premier was trusted and elected twice with the help of many lies and the convenient reply of any questions concerning BC Rail being “it's before the courts”…..HE was the man in charge. He is STILL the man in charge. Why can't he be asked questions NOW? He has only stepped away from the spotlight.Stepped down from questions. That is not right, and the public is still paying him big time(helping pension benefit numbers?) so ANSWER the public and authorities, Mr.Campbell.


  10. As you point out Norm, the speed with which the judge was able to prepare her reasons for sentence on October 18, 2010 after supposed surprise pleas is remarkable.

    There is an exchange between her and the special prosecutor just at the end of the transcript of her oral delivery that is also worth some thought. It concerned whether there would be a fine in lieu of forfeiture and she said she’d imposed the fine because “that’s what your words were.” But no matter what the judge imposed, the government had already agreed effective October 14, 2010 to sign a release effective October 12, 2010 absolving the defendants from any liability or future liability in any way related to or arising from their conduct as sworn out in the direct indictment respecting BC Rail or the information sworn on the A. L. R. matters if she convicted the two as a result of their guilty pleas. In other words, although she gave it considerable weight as punishment and imposed a $75,695 fine, the government had already agreed not to collect it.

    Anyone know whether it was it ever paid?


  11. I don't know of any way of determining if a fine is paid or, if paid, by whom.

    Another question worth millions of dollars is,

    “Who paid income tax that would ordinarily be applicable after an employer paid legal costs so that an employee could defend against criminal charges arising from actions that were not part of job duties.”

    There was probably a clause in the settlement agreement where government agreed to pay the taxes or arrange for them to be waived.


  12. [25] The law requires that a sentencing judge accord a considerable degree of deference to a joint submission. I recognize that the joint submission in this case was the product of lengthy negotiations over a considerable period of time by experienced counsel.

    When did the negotiations begin? Was there an inducement first?


  13. Any parallels to the current fraud vis a vis the LFG fiasco and the fraudulent electioneering by the honourable Chrispy? Make me feel sick.
    Words fail me!
    Have a good day British Columbia!


  14. The joint submission did not mention the secret plea deal. The judge was ostensibly referring to the negotiations between defence counsel and the special prosecutor. She and the special prosecutor were just as ostensibly not aware of the secret negotiations between the Attorney General’s Legal Services Branch and the same defence counsel, which resulted in the special prosecutor’s deal being incorporated into their October 14, 2010 secret letter of agreement. Those negotiations (if we are to believe the Acting Auditor General, the Deputy Attorney General, and the evidence) probably lasted four days, but six days at most, and using the opinion of Geoff Plant, who was the Attorney General at the time of the original charges, resulted in an inducement. The Attorney General and his staff stood by while the judge gave deference to a joint submission they knew did not tell her all the material facts she should have had when deciding whether she could legally accept the guilty pleas.

    Let’s say you approach me and inform me that you are a contractor in negotiations with my neighbor to erect a fence along our common property line. You say you want to do business with him but you know your tradesmen definitely won’t build the fence for what he’s offering, but might if induced with sufficient extra funds from me. For reasons related to my relationships with my neighbor and the two tradesmen, I offer to pay the tradesmen separate money if they build the fence, and stipulate that I will pay them only after the fence is built strictly to my neighbor’s specifications, his independent inspector accepts the completed fence, and they don’t tell anyone including him or the inspector of our deal or that they wouldn’t have otherwise built the fence. They accept my offer, build the fence to his specifications without telling anyone of our deal, and the inspector accepts it. I then pay the men according to our agreement.

    Were your men induced to do something they would not have otherwise have done, and did we act to ensure the inspector didn’t know about it?


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