BC residents who read comments here and like places in social media will be familiar with the very articulate Lew Edwardson (@valtamtech on Twitter). Lew has had an interest in general matters of public integrity and in particular, the mouldering case of BC Rail.
Lew tried to interest politicians and corporate media members in examining facts he’s assembled but they’ve ignored the BC Rail scandal for years and are determined to continue in states of purposeful ignorance.
I invited Lew to make a contribution here. His lengthy but carefully constructed article follows.
The Tracks of Our Tracks
The BC Rail Trial
R. v. Basi, 2010 BCSC 1622
In 2003, British Columbia Premier Gordon Campbell broke a major 2001 campaign promise and took steps to divest the province of the publicly owned British Columbia Railway. The Canadian National Railway Company, chaired by David McLean, one of Gordon Campbell’s biggest and most long-standing financial supporters, was the successful bidder for the public asset in a process that other bidders openly termed “rigged”, and “unfair”. Canadian Pacific and Burlington Northern Santa Fe railway companies dropped out in protest during the process, leaving Omnitrax as the only other bidder.
On December 28, 2003 the Royal Canadian Mounted Police raided the British Columbia Provincial Legislative Buildings. The offices searched belonged to Dave Basi, ministerial assistant to then-finance minister Gary Collins, and his brother-in-law Bobby Virk, assistant to then-transportation minister Judith Reid.
Basi and Virk were subsequently charged by a special prosecutor appointed under the Crown Counsel Act in January 28, 2005 direct indictments with accepting bribes, influence peddling, breach of trust and fraud related to their dealings with lobbyists for Omnitrax. Mr. Basi was also charged in an October 18, 2010 indictment (subsequent an information sworn April 3, 2006) with accepting a $50,000 bribe in connection with purported aid in removing land from the Agricultural Land Reserve (ALR) on behalf of Shambrook Hills Development Corporation.
The raid on the Legislature resulted from a pursuit of information obtained by police wiretaps in an investigation into drugs, money laundering, and organized crime. One of the major players in the drug investigation was Mr. Basi’s cousin Jasmohan (Jas) Bains, who was sentenced to nine years in prison as a result of charges laid following the investigation. Basi was charged with drug offences in 2004 but they were stayed in 2005.
Paragraph 41 in this search warrant information provides a window into some of the pursuit. https://beta.images.theglobeandmail.com/archive/01068/Search_Warrant_App_1068802a.pdf
This article provides some insight into why Mr. Basi and his connections were of interest:
Preliminary hearings in the BC Supreme Court proceedings dragged on and were sealed from the public until the fall of 2008 when the presiding judge struck down the publication ban. In February of 2009 the judge released approximately 8,000 pages of documents relating to the legislature raids to the New Democrat Party Official Opposition.
The documents raised serious questions about how the sale of the railway was conducted, including who was involved and whether their involvement was appropriate or legal. No government officials, elected or otherwise, would comment about the case, maintaining that it was before the court and the public would get the details at and after trial. When the trial finally began on May 17, 2010 the public had been waiting for six years to get answers about the tainted sale of a major public asset and the unprecedented police raid on their legislature.
On October 18, 2010 the defendants Basi and Virk entered surprise guilty pleas subsequent a court-accepted plea bargain with the special prosecutor and were immediately sentenced on reduced charges to two years less a day to be served under house arrest, some community service, and a fine of $75,695 ($50,000 related to ALR charge) for Mr. Basi.
Rather than provide much-anticipated answers about the sale, the trial ended with none and raised many more questions. To make matters worse, the same government officials who had refused to answer questions prior to and during the trial now reneged on their promises to speak to the matter after trial.
Public anger about this increased when it was learned that although the terms of indemnity agreements granted Basi and Virk after charges were laid in 2005 stipulated they were liable for the legal fees if convicted, the government had entered into a secret October 14, 2010 legal agreement with the defendants to forgive liability for over $6.4 million in accumulated legal fees for their defence counsel only if and after the defendants pleaded guilty, were convicted, and did not disclose anything about the agreement to anyone.
Government officials and the defendants and their counsel had conspired to withhold that information from the special prosecutor and the judge until after the trial’s conclusion.
Had the trial judge known that any right to claim recovery of the advanced fees had been exchanged for the guilty pleas, in accordance with a written offer made in writing to the defendants during the trial by the government without the special prosecutor’s knowledge or involvement, she would very likely have been precluded from accepting those guilty pleas under section 606 of the Criminal Code.
On October 20, 2010 the Deputy Attorney General issued a public statement declaring that he and the Deputy Minister of Finance had made the decision to waive the legal fees because it would save money by shortening the trial and there was little hope of collecting much from the defendants anyway. He said no one else outside of the Legal Services Branch had any knowledge or involvement in the decision, which he communicated to the Attorney General on October 08, 2010. He ended the statement with this paragraph:
“A letter is being sent today to counsel for Mr. Basi and counsel for Mr. Virk releasing them and their clients from the October 14, 2010 condition that required they not discuss the above financial matters and that they refer all inquiries to the Ministry of Attorney General.”
Any attempt to explore every detail or answer every question about the sale of the railway and the trial in this forum would be futile. It couldn’t even be done in a single book; it would take a chronology, and even then would probably never succeed. Please accept that as an excuse for the failed attempt to be brief in this effort. Following are some facts, some questions, and some assertions. Anyone who might wish to add details, challenge anything, or answer the questions is invited to reply in this forum or reach me in confidence at email@example.com
If I’m wrong please tell me: but please explain why.
- There were two plea agreements.
- The joint submission to the court only revealed one; the special prosecutor’s plea agreement.
- The agreement not revealed involved secret and material plea negotiations with the defendants without the knowledge of the special prosecutor mandated under the Crown Counsel Act to conduct those negotiations, and required the defendants and their counsel not to reveal it to anyone.
- The public, special prosecutor, and the judge were deceived by the Ministry of Attorney General.
- Former Attorney General Geoff Plant wrote publicly that as a matter of law there couldn’t be a legally binding agreement connecting the guilty pleas to the waiver (Agreement to Release), otherwise it would constitute an inducement.
- The agreement not revealed was a legally binding agreement connecting the guilty pleas to the waiver.
- Guilty pleas would not have been entered except for the agreement not revealed.
- #7 above is a material fact.
- Material facts were withheld from the judge and special prosecutor.
- The Agreement to Release was a consideration under the agreement not revealed.
- Defendants’ execution of the release was a condition precedent to the Province’s execution of the release.
- Under the Agreement to Release, the defendants released the Province and all Province Entities from and with respect to any Claim in any way related to or arising from their prosecution.
- The defendants gave up their right to appeal sentence by signing the release.
- Under the terms of the indemnity, the advanced legal fees were considered loans and the defendants were immediately liable for their accumulated legal fees upon conviction and exhaustion of their appeal rights.
- The defendant’s accumulated legal fees were approximately $6,000,000 at the time of their convictions.
- Under the Agreement to Release, the Province released the defendants from and with respect to any Claim in any way related to or arising from their conduct as ministerial assistants in any way connected with the BC Rail matters or the ALR matters, or their indemnity agreements or the province’s security.
- At the time the Deputy Finance Minister retroactively signed the Agreement to Release according to the province’s obligation under the October 14, 2010 agreement, the defendants stood convicted and with their appeal rights exhausted.
- The Deputy Finance Minister only possessed authority to forgive debts and obligations to the Crown up to $100,000.
- The agreement not disclosed contained a clause declaring the release by the Province of no force or effect if Mr. Basi, his wife, or Mr. Virk breached the non-disclosure clause or failed to instruct their counsel to also observe the non-disclosure condition.
- The Deputy Attorney General stated he informed the Attorney General of the decision to waive the legal fees on October 08, 2010.
- The only persons who had authority to prevent the agreement not disclosed from implementation and that didn’t already know of it were the special prosecutor and the judge.
- Two days after the trial ended, the Deputy Attorney General released the defendants and their counsel from the non-disclosure condition.
- The special prosecutor informed the court the defendants came forward and unequivocally accepted responsibility for their transgressions.
- The defendants and their counsel participated in 5 years of pre-trial wrangling costing $18.3 million in public money, would not accept responsibility by pleading guilty unless secretly relieved of liability for $6.4 million in legal fees caused by their transgressions, and resisted coming forward until 20 minutes before court.
- The judge accepted as a mitigating factor in sentencing the submission stating the defendants came forward unequivocally to accept responsibility and by doing so would save the public from a costly trial.
- By the time the defendants and their counsel were free to disclose the agreement not disclosed without voiding it, neither the special prosecutor nor the judge could alter their uninformed actions.
- The Acting Auditor General oversaw an audit of special indemnities.
- In late May of 2013 the Acting Auditor General told the Vancouver Sun the Basi/Virk special indemnity waiver would probably not figure in his findings at all and his report would be released in July.
- The Acting Auditor General’s report wasn’t released until December, and the Basi/Virk waiver was its centerpiece.
- The Acting Auditor General’s report used the same criteria to accept the external Agreement to Release as an amendment to the indemnities as it did to deny the creation of loans through the inherent indemnity structure and authorization.
- The Acting Auditor General’s report stated “This release agreement was kept distinct and separate from Mr. Basi and Mr. Virk’s negotiations and agreement with the Special Prosecutor.”
- The results of the negotiations and agreement with the special prosecutor were a condition precedent in the plea agreement dated October 14, 2010.
- Execution of the release agreement dated October 12, 2010 was a specified consideration of the plea agreement dated October 14, 2010.
- The release agreement owed its life to the negotiations and agreement with the special prosecutor and it would not have otherwise existed.
- The Acting Auditor General’s report contained inconsistencies of fact and logic.
- The Acting Auditor General’s report was accepted without any critical analysis by all of the traditional media organizations.
- The BC Liberal majority on the Select Standing Committee on Public Accounts blocked MLA Corrigan’s motion to have the two deputies who purportedly approved the secret deal appear to answer questions about their role.
- Basi was convicted of accepting benefits from Shambrook Hills Development Corporation contrary to the Criminal Code in the ALR matters.
- Principal officers of Shambrook Hills Development Corporation were criminally charged in the ALR matters but those charges were eventually dropped.
- Shambrook Hills Development Corporation was fined $200,000 for bribing Mr. Basi in the ALR matters.
- Basi was fined $50,000 for accepting the bribe in the ALR matters.
- Basi and Mr. Virk were convicted of accepting benefits from Pilothouse Public Affairs Corporation contrary to the Criminal Code in the BC Rail matters.
- None of the principal officers of Pilothouse Public Affairs Corporation were charged or the corporation fined for bribing Mr. Basi or Mr. Virk.
- Basi and Mr. Virk were convicted of disclosing confidential information to Bruce Clark, a consultant to Washington Marine Group, in the BC Rail matters.
- No charge of accepting benefits was made in the case of information provided to Bruce Clark.
- Bruce Clark is the brother of then Deputy Premier Christy Clark.
- The NDP promised a public inquiry into the BC Rail affair in its 2013 election platform.
- I sent John Horgan a 42-page submission on October 02, 2017 requesting his assurance that the secret agreement and waiver are legal. Have also asked him over 50 related questions via Twitter.
- Horgan has not responded.
- Jon McComb of CKNW has described the BC Rail affair as the worst political scandal in the history of British Columbia.
- I sent Jon McComb and his producer at CKNW the same submission as I sent Mr. Horgan. I also sent the same 50 Twitter questions as to Mr. Horgan, plus 25 additional. He refuses to respond despite direct requests of him to at least acknowledge receipt of my submission.
- What was the duty of the Attorney General when he learned of the deal? (Facts 1-4)
- Is former Attorney General Plant’s legal assessment correct? (Facts 5-6)
- Did deliberate withholding of material facts from the court pervert the course of justice? (Facts 7-9)
- What Financial Administration Act authority did the Deputy Finance Minister use to retroactively forgive liability for over $6 million in obligations to the Crown? (Facts 10-18)
- Why was disclosure of the agreement so critical it would have voided the agreement on October 14, 2010 but of no consequence on October 20, 2010? (Facts 19-22)
- Would the special prosecutor have negotiated his plea deal differently or made submissions to the court differently had he known his plea deal would only be accepted because the defendants had a secret $6.4 million deal in place? (Facts 23-26)
- Would the judge have accepted the joint submission plea deal or the special prosecutor’s mitigating factors statement had she known of the agreement not disclosed? (Facts 23-26)
- What happened to alter the scope and focus of the Acting Auditor General’s report after May of 2013? (Facts 27-37)
- Why would the media overlook obvious inconsistencies in the audit report and then refuse to answer questions about those inconsistencies? (Facts 27-37)
- Was blocking MLA Corrigan’s motion in the public interest? (Facts 27-37)
- Why did Mr. Basi and Mr. Virk feel comfortable in illegally providing documents to the Deputy Premier’s brother? (Facts 38-46)
- Why did Mr. Basi and Mr. Virk require benefits from all who were illegally provided information, except for Bruce Clark? (Facts 38-46)
- Why is the NDP ducking the BC Rail issues?
- Why are Jon McComb and CKNW running scared from the BC Rail issues?
- Do the actions of the NDP and Jon McComb further the public interest?
- The evidence indicates that defence counsel and officials in the Legal Services Branch of the Ministry of Attorney General formed an opinion that Mr. Basi and Mr. Virk would not plead guilty based on the special prosecutor’s offer. They then conspired to arrange an inducement in the form of a quid pro quo designed to get Mr. Basi and Mr. Virk to accept that offer. They also conspired to withhold that information from the special prosecutor and the judge. The effect of their actions was to render the guilty pleas involuntary, and to pervert justice by hiding that fact from the court. The special prosecutor and the judge had every right to expect all material plea negotiations or agreement with the defendants would be done with the special prosecutor and revealed in the joint submission to the court.
- The sequencing of delivery for the considerations under the October 14, 2010 agreement and the loan provisions of the indemnities themselves left the Deputy Minister of Finance without the requisite authority to forgive the debts and obligations of the defendants at the time of his execution of the Agreement to Release.
- The judge declared in her reasons for sentence, “ I am satisfied that the fine imposed on Mr. Basi is an appropriate form of punishment. In addition to having a denunciatory effect, it provides a means by which he is required to take responsibility for the consequences of his conduct, and it provides at least a partial means by which his rehabilitation may be measured.” If Mr. Basi paid the $75,695 fine, it wasn’t because he had to. The Agreement to Release forgave the province’s right to any claim in any way related to or arising from their conduct as ministerial assistants in any way connected with the BC Rail matters or the ALR matters. That would appear to include the fine, and the judge might have wanted to know that.
- The NDP and CKNW are shirking their duty to the public by not providing assurance that the actions of defence counsel and officials in the Ministry of Attorney General with respect to the waiver of liability for the BC Rail legal fees are legal in all respects.