With various accusations of BC Liberal corruption being discussed, it is worth repeating how the first major one came to a highly unsatisfactory conclusion for taxpayers and anyone interested in honest administration of justice. The following was first published in 2014.
A study¹ in the Journal of Criminal Law and Criminology examined plea bargaining and innocence. It revealed,
“…that more than half of the innocent participants were willing to falsely admit guilt in return for a benefit. These research findings bring significant new insights to the long-standing debate regarding the extent of plea bargaining’s innocence problem.”
A widely accepted standard of law requires that guilty pleas shall not result from improper inducement, such as bribery. A publication by the Public Prosecution Service of Canada states,
“It is important to note that prosecution agencies and law societies across Canada, as well as the Criminal Code, provide some relevant guidance to lawyers working in the criminal justice system. For example, in the Deskbook of the Public Prosecution Service of Canada, the chapter concerning plea and sentence discussions and issue resolution indicates that Crown counsel’s approach to resolution discussions must be based on important principles, including fairness, openness and accuracy…”
In the BC Rail political corruption case, we are expected to believe that two separate plea negotiations involved Basi and Virk but that only one needed review by the trial judge. $6.2 million was paid by the Liberal Government to defendants, a move that ended the BC Rail trial “on the eve of what was expected to be explosive testimony by former finance minister Gary Collins.”
If Justice Anne MacKenzie did not know about the $6.2 M inducement, the test of fairness and openness was not met. If the judge did know that a substantial payment for the benefit of defendants was a vital element of the plea agreements, it should have been rejected, in accordance with Supreme Court of Canada directions. I believe MacKenzie chose to ignore the cash inducement and accept very lenient terms of sentencing so that the trial could end. Soon after, she was elevated to the B.C. Court of Appeal.
That Basi and Virk walked with a minimum of inconvenience is not particularly bothersome since they were in court as sacrificial lambs following corruption that extended broadly. However, it is entirely inappropriate that their political masters paid no price and now Liberals use control of the legislature to ensure a continued lack of transparency.
This week, NDP MLA Kathy Corrigan, a member of the Public Accounts Committee, made a motion,
That Mr. David Loukidelis and Mr. Graham Whitmarsh be requested to appear before the committee with respect to additional questions relating to the committee’s continued consideration of the Auditor General’s report titled An Audit of Special Indemnities.
The vote, with NDP MLA Bruce Ralston in the Chair, was predictable, with BC Liberals against and others in favour:
- email@example.com – LIB, Maple Ridge-Mission
- firstname.lastname@example.org – LIB, Shuswap
- email@example.com – LIB, Prince George-Mackenzie
- firstname.lastname@example.org – LIB, Port Moody-Coquitlam
- email@example.com – LIB, Vancouver-False Creek
- firstname.lastname@example.org – LIB, Chilliwack-Hope
- email@example.com – LIB, Richmond-Steveston
- Kathy.Corrigan.firstname.lastname@example.org – NDP, Burnaby-Deer Lake
- email@example.com – NDP, Vancouver-Point Grey
- firstname.lastname@example.org – NDP, Coquitlam-Maillardville
- email@example.com – NDP, Vancouver-Hastings
- firstname.lastname@example.org – IND, Delta South
Ms. Huntington, a thoughtful and effective independent MLA, said this to the committee,
Undoubtedly, the Auditor General’s office did an enormous amount of work. It was with a narrow question in mind, however. It did not pursue the relationship between the plea bargaining and the lifting of the indemnity — or the indemnity. Thus, it leaves open the questions that are being pursued right now.
All that being said and my discomfort that this committee would be pursuing it in this manner, I do think there are issues here that have never been explained to the public, which the public is deeply concerned about — always have been and still bring it up if the issue arises in any way, shape or form, at least to me.
I think there is an issue of transparency here that if we can resolve would be to the benefit of the public. As difficult as the decision has been to me, I will support it — the motion — because I believe the public deserves the transparency that this discussion might provide them.
Lew, a reader and occasional commenter, has been following this issue closely and expressing himself to members of the Legislature. I think his recent correspondence is worth repeating:
This is written in regard to the September 30, 2014 proceedings of the Select Standing Committee on Public Accounts considering the Auditor General Report: An Audit of Special Indemnities. You have all been previously copied on my January 20, 2014 letter to the Auditor General, and I wrote you on July 07, 2014 with further observations and questions, so I will not repeat them here.
When I wrote him with questions on his report, the Auditor General responded that he was not at liberty to provide any answers except to the Select Standing Committee on Public Accounts, within the scope of the audit or his mandate. I therefore forwarded my questions to the Committee with a request that my questions be asked. To this date the questions have not been asked of him, nor of any other persons before the Committee. In addition, several members of the Committee have expressed that they have outstanding questions. This is obviously a very unsatisfactory situation given the public’s right to know.
This morning [9/30] a motion was moved to take steps to assist in that regard but it was voted down by the BC Liberal members of the Committee.
To members Corrigan, Huntington, Eby, Simpson, and Robinson, I extend my appreciation for your efforts to date, and a hope that you do not consider this matter over.
To members Morris, Sullivan, Dalton, Kyllo, Throness, Yap, and Reimer, I would like to say that you have earned my contempt for your actions. My feelings would not be as strong if there were any of you who had answers the questions I have asked. But you do not and none of you appear interested in obtaining or sharing them in any event. That is contrary to your duty both as an MLA and as a Committee member.
There were two plea deals negotiated in this case.
- One between defence counsel and the special prosecutor involving pleas and sentencing recommendations, disclosed to the court through a joint submission and a Statement of Facts.
- And another between defence counsel and the government represented by the Assistant Deputy Attorney General (ADAG) dated October 14, 2010 involving guilty pleas in exchange for release of financial liability, which was not disclosed to either the special prosecutor or the court.
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.
¹Lucian E. Dervan and Vanessa A. Edkins Ph.D., The Innocent Defendant’ s Dilemma: An Innovative Empirical Study of Plea Bargaining’ s Innocence Problem, 103 J . Crim. L. & Criminology 1 (2013).
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