BC Liberals

The Faux-Feathered Falcon

In the last year, business magnates of the province decided there was a better place for Kevin Falcon to perch than in offices of a wealthy property developer. When the former Cabinet Minister became leader of the BC Business Party (AKA BC Liberals), I asked Lew Edwardson to remind us of a case of political corruption that occurred when Falcon and associates had places at the provincial Cabinet table.

Years ago, Lew had been outraged by the corrupt sale of BC Rail, but more particularly by the coverup of machinations underlying the sale. He made himself expert on the subject and became an activist, politely asking government officials to remember that protecting the public interest was their duty. Those requests were were either ignored or scoffed at, so Lew addressed numerous members of corporate media, asking them to look beyond self-serving statements of participants and independently report facts about BC Rail and failures of the justice system. Those entreaties were equally unsuccessful.

Led by the accomplished but politically naïve Andrew Wilkinson, BC Liberals were crushed in 2020 by John Horgan, a man who was an opposite of the Opposition leader. That led to BC Liberal influencers deciding an old reliable was needed to regain days when the region’s government was of business, by business, and for business.

Democracy is targeted by rich and powerful groups determined to win at all costs. They are served by loyal agents moving in the halls of power.

To know where we might go, it is important to remember where we’ve been. Lew Edwardson helps us do that. His words follow:

It appears the BC Liberals have gone back to the future. They have reached into the costume closet and pulled out a Falcon with two right wings.

The mini-Gordon Campbell bird that brought us Total Recall, Have You Had Enough Yet?, Pay As You Go, Deregulation and many other insults is back, towing railcars filled with enough target baggage to keep the BCNDP fully supplied until and through the next election campaign.

On one morning in February, I happened to hear a radio interview wherein Kevin Falcon was ranting about principled leadership regarding equal application of the law. His general theme was that government had to respect and apply the law in all cases or society would not respect it. He is right of course but let us just think about his record and what it says about the likelihood he is the answer to straight and narrow governance. Speaking of railcars, here is a harbinger of what Falcon and his cronies will be up to if given one more last chance.

On December 28, 2003, the Royal Canadian Mounted Police raided the British Columbia Provincial Legislative Buildings. The offices searched were used by Udhe (Dave) Singh Basi, ministerial assistant to then-finance minister Gary Collins, and Dave Basi’s brother-in-law Bobby (Bob) Singh Virk, assistant to then-transportation minister Judith Reid.

By direct indictments on January 28, 2005, Basi and Virk were charged by a special prosecutor appointed under the Crown Counsel Act with accepting bribes, influence peddling, breach of trust and fraud related to their dealings with lobbyists for Omnitrax and with Bruce Clark, Deputy Premier Christy Clark’s brother.

Basi was also charged in an October 18, 2010 indictment regarding an information sworn April 3, 2006, with accepting a bribe in connection with purported aid in removing land from the Agricultural Land Reserve (ALR) on behalf of Shambrook Hills Development Corporation.

The two proclaimed their innocence for seven years and racked up over six million dollars in legal fees to defend their case. Then on October 18, 2010, in the Supreme Court of British Columbia, the defendants entered surprise guilty pleas pursuant to a court-accepted plea bargain with the special prosecutor. That afternoon, Basi and Virk were 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 Basi.

In her Oral Reasons for Sentence read to the assemblage, Associate Chief Justice MacKenzie made statements that indicate she and the special prosecutor were kept in the dark regarding material facts, preventing them from fulfilling their lawful duties. I will list the statements in question followed by my comments.

[2]               Their changes of plea are the result of a negotiated agreement between Crown and defence who make a joint submission to the Court; that is, Crown and defence counsel agree on what are fit sentences for these offences.

In fact, their changes of plea were the result of a negotiated plea agreement between defence and the Legal Services Branch under the direction of the Deputy and the Assistant Deputy Attorney General with the knowledge of the Attorney General and Deputy Minister of Finance. That deal involved the direct exchange of liability for $6.4 million in legal fees for guilty pleas. Defence counsel told the Auditor General’s staff they would not have even presented the Crown’s offer of a plea deal to the defendants until and unless they had the secretly negotiated deal in place, and the fact the separate and secret deal was kept from the court and special prosecutor was confirmed by both the Acting Auditor General and the Deputy Attorney General.

[14]           The Crown submits that the joint submission on sentence is in the best interests of the administration of justice because the defendants have come forward and unequivocally accepted responsibility for their transgressions. 

In fact, the defendants most definitely did not come forward and unequivocally accept responsibility. They proclaimed innocence for seven years and fought the case in court for five, acquiring well over $6 million in legal fees to do so. Those fees were legally part of the responsibilities they incurred through their transgressions. They refused to accept those responsibilities.

[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.

What she did not recognize (because she deliberately was not informed) were the plea negotiations behind the special prosecutor’s back. The special prosecutor was appointed under the Crown Counsel Act to protect the administration of justice from the very sort of interference that transpired, and the judge and special prosecutor (as well as an unsuspecting public) had every right to expect that all plea negotiations would involve the special prosecutor. Instead, a secret plea deal directly exchanging $6.4 million for guilty pleas was engineered with the defendants by the government and hidden from the court by the very government entity mandated to ensure that would not happen.

[29]           I have referred to the relevant principles of sentence in this case. 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. The default period, 18 months imprisonment, is substantial.

What do we suppose Associate Chief Justice MacKenzie would have said had she known that as she spoke those words, the defendants and their counsel were looking right back at her with straight faces and the full knowledge that by pleading guilty Mr. Basi was not only going to escape the legal liability he rightfully should have incurred for over $3 million in legal fees (dwarfing her fine), but gain a release whereby the government also agreed not to claim the fine she was imposing on him, no matter what amount? I have no idea (neither the current Attorney General nor Premier will tell me – I have asked) whether Basi ever paid the “fine,” but the terms of the release the government gave him and hid from the court say he did not have to. And how does just giving back the exact same amount he received in bribes amount to a denunciatory effect anyway? He broke even financially and received no greater time sentence than Virk, who was not even involved in the ALR caper. He essentially received no penalty for the offense, while the company that paid him the bribe received a $200,000 fine.

[34]           Joint submissions by experienced counsel are entitled to deference. In the present case, the joint submission neither offends the interests of justice nor is contrary to the administration of justice.

I beg to differ. The court has every right to expect the joint submission to be complete in all material respects. The material fact that there was a secret deal directly linking the waiver of liability for $6.4 million in accumulated legal fees to the guilty pleas, and without which the guilty pleas and joint submission never would have been offered the court, offends justice very much and is definitely contrary to the administration of justice.

In fact, the written offer made in writing by the government for acceptance by the defendants and tying the waiver directly to the guilty pleas was very likely an illegal inducement. Here are former Attorney General Geoff Plant’s thoughts on the matter as expressed in an open letter to former Solicitor General John van Dongen:

“What is clear is that there was no legally binding deal. There couldn’t be. The waiver of recovery of fees was not and could not be an inducement to plead guilty. As a matter of law, they were not connected.”

Well, as a matter of fact they were connected.

The natural course of justice in Canada provides that a defendant in a criminal trial be allowed to plead guilty or not guilty, but that the court may accept a plea of guilty only if it is satisfied that the accused is making the plea voluntarily, free of improper inducement or threat. A guilty plea is involuntary if it is made under hope of advantage held out by someone in authority.

In this case, as confirmed by the Auditor General, government authorities held out a hope of release of liability for over $6 million in legal fees and had the Deputy Finance Minister waiting with pen in hand for the pleas and resulting convictions before using it. They also held out the threat that if the guilty pleas were not entered on the counts and in accordance with the terms specified by the special prosecutor, or if the defendants or Mr. Basi’s wife told anyone about the deal, it was void.

Under section 606 of the Criminal Code the court may accept a plea of guilty only if it is satisfied that the accused is making the plea voluntarily.

Hiding the deal that gave life to the guilty pleas from the judge caused her to make statements she never could have made had it been revealed to her, caused her to consider mitigating factors in sentencing that were obviated by the secret deal, and kept her from exercising her duty under section 606 of the Criminal Code. Hiding that deal perverted the natural course of justice and brought its administration into disrepute.

As if that was not bad enough, the person waiting behind the scenes and watching proceedings with pen in hand to sign the release agreement on behalf of the government as payment for the guilty pleas lacked the requisite authority to do so. But he signed it anyway.

The government would have us believe that because the release was dated October 12, 2010, the Deputy could sign it at any time in the future because no liability had yet been created as of that date. There are at least two problems with that assertion.

First, the terms of the indemnity agreements between the government and the defendants created back in 2005 clearly established the nature of and liability for the legal fees accumulated by the defendants but paid by the government as the trial progressed. Any funds advanced for legal fees (paragraph 8) were deemed a loan (paragraph 9), to become due immediately in the event of a guilty conviction and the exhaustion of the defendants’ right of appeal (paragraph 12). In the event the defendants were acquitted, the government was responsible for the fees (paragraph 13).

Paragraph 15 of the indemnities is worth repeating in its entirety:

As security for money paid or payable under paragraph 8, the Indemnified person must give to the Province, in registrable form, a mortgage over and a security interest in all of his Property, which the Province may register and which shall constitute the Province’s Security in that regard.

The money paid under paragraph 8 in Basi’s regard was well over $3 million as of October 12, 2010 and was established as a loan to the extent a property mortgage was registered as collateral against that obligation. All parties to the deal knew that. The Deputy’s maximum signing authority to forgive loans and obligations was $100K. He did not have authority to sign on that or any other date.

Second, the indemnities were never formally amended as would normally be the case. The government just agreed not to pursue any claim related to their operation. The terms of the indemnities stipulated they continued in effect until the trial concluded and any appeal rights were exhausted. The lawyers still got paid under its terms for instance. So having agreed to give up their right of appeal as of October 12, 2010, the defendants were therefore immediately liable under the terms of the indemnities for $6.4 million in fees upon conviction on October 18, 2010. That is the date the indemnities expired. Any signatory after that date to authorize the government’s release required much more signing authority than possessed by the Deputy Finance Minister.

Think of it this way. Suppose a government bureaucrat wanted to have a $6.4 million structure built, but only had $100K authority. Would it be legal for that person to negotiate a contract to have it erected then wait until it was built to sign the contract, arguing that at the time the contract was negotiated there was no government liability because nothing had yet been built?

Someone wanted very much for that trial to end before politicians, bureaucrats, and their masters and cronies had to take the witness stand. Much of the province had been waiting five years to hear what they would have to say under oath about such things as Canadian Pacific and Burlington Northern Sante Fe railway companies withdrawing from the BC Rail bidding process with claims that the fix was in, and allegations of insiders jockeying in the shade for position at the trough. But the trial was ended prematurely without providing answers, and that raised more questions. Like who ordered the trial to be knocked on its head? And why?

One BC Liberal (and one only) caucus member tried to find out. Four-term MLA and former Solicitor General John van Dongen attempted to have the Deputy Attorney General and Deputy Finance Minister appear before caucus and explain what had happened. In an affidavit dated April 22, 2012 filed in Supreme Court in support of his application for intervener status in the lawsuit launched by the Auditor General to obtain records about the deal, he details his 2010 efforts involving Gordon Campbell, Cabinet, and other caucus members.

That affidavit should be required reading for anyone ever thinking of voting BC Liberal. Mr. van Dongen spent north of $200,000 of his own money, was ostracized by caucus, and ultimately lost his seat over his stance. Think what you will of him on matters of policy, but that showed principled leadership and a concern for the rule of law. Unlike Kevin Falcon, who as a member of Cabinet at the time remained tethered to his perch, feathers unruffled. And now he squawks about respect for the law?

This general disdain for rules or the law from the top matters very much. In addition to fostering a culture that infects mundane things at all levels, such as processing access to information requests or telling the truth in official publications (hello BC Hydro) it can have serious, even deadly consequences.

Falcon had to know much more than the average bird about the BC Rail saga. He took over as Minister of Transportation after Judith Reid was shuffled out after the raid on the Legislature at a time when the transfer to CN was underway, and he had to cancel the troubled bidding process for the Roberts Bank spur line, which critics said was being set up as a consolation prize for Omnitrax. He would know whether there were skeletons waiting to be found if the right closet doors were opened. Is that why he did not go to bat for John van Dongen in his quest for answers?

Whatever his reasons, he missed a chance to show principled respect for the law then, and nothing he has done since gives me confidence he would do it differently today. Had he supported the request it may have impacted the career paths of Attorney General de Jong and Deputy Finance Minister Whitmarsh enough to prevent them from later roles teaming up as Minister and Deputy Minister of Health and their oversight of the shameful witch hunt that resulted in the improper firing of eight health researchers and the suicide of Roderick MacIsaac.

So yes, Mr. Falcon. I have had enough.

Categories: BC Liberals, Corruption

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13 replies »

  1. I’m hoping that people haven’t forgotten. Haven’t forgotten all that those so called Liberals did over their time in office. Poor policy, poor legislation, poor leadership, poor management, poor sense of right and wrong, poor regard for the public purse, poor sense of what the electorate thinks is important and worthwhile.

    I hope the also that the NDP is up to the task of reminding is of these things and of giving us reasons not to want these faux liberals back. The best way would be to do a great job so that no one kind find much reason to change leadership. This is where the NDP is weak. This is where they are letting us and themselves down. Lately there have been too many simple, avoidable, own goal, mistakes. They should not hide information, they should treat the indigenous population much better and be more open to the change necessary, they should get far more organized and transparent about plans and reactions to the many environmental disasters we have faced the last couple years.

    I won’t go through a laundry list but suffice to say that while I vote NDP I am very afraid of them blowing it and allowing these cretinous people to get hold of the reins again and who knows what they have in mind this time. Most of the current governments mistakes are to do with bumbling around when we need action and not being forthcoming with information and plans. Put it all out there because sooner or later it is. Better to be in control of that release than to have it leaked.

    Come on NDP, we need you and we need you to do better.


  2. I wonder if there are any former Liberal MLA’s, under Campbell and Clark, who have any feelings of guilt, would like to come forward and share their knowledge and observations of that time?


    • Speaking out against party leaders ensures politicians will end up in an uncomfortable and potentially ruinous place. In Lew Edwardson’s article, he mentions that John van Dongen, upset by his party’s actions, “spent north of $200,000 of his own money, was ostracized by caucus, and ultimately lost his seat…”

      Think of the abuse heaped on Liberal MLA Darryl Plecas by colleagues when he decided that a functioning Legislature was more important than a failed leader’s plan to retain power, even while she lacked votes to sustain her position in the Legislature.

      Sadly, politics is a business where from the beginning, participants are taught that loyalties matter more than principles.


  3. The B.C. Lieberals must be in bad shape to dust off the Falcon and set him up on a perch. did make me laugh though.

    As I was going through my favorites list, I saw a number of blogs which were written during the time of B.C. Rail and all that surrounded it. Some of those bloggers have died but their work lives on. One last posted in 2014 but the post is as fresh today as it was then.

    Yes, here we go again. Wonder if they’ll run Coleman also, just joking I think.

    I remember the day they raided the B.C. Leg. It was a wonderful Christmas present.

    Given there isn’t much in the way of decent news on local stations these days perhaps I should re read all the blogs and posts from that Christmas through the Basi/Virk trails and then into B.C. Rail. Perhaps I need to re read Laila’s list of 100 reasons the B.C. libs ought not to be re elected.


  4. Some years ago, back in the desolate years of Campbell’s gutting of BC’s assets, by selling them off to corporate friends at deep discounted prices a long time Liberal acquaintance told me about both Clarke and Falcon, in a quote from Charles Dickens, A Christmas Carol.

    The ghost of Christmas Present’s orphans are a boy and a girl, with Falcon as the boy and Clarke as the girl.

    This boy is Ignorance. This girl is Want. Beware them both, and all of their degree, but most of all beware this boy, for on his brow I see that written which is Doom, unless the writing be erased. Deny it!”

    Falcon will complete his master’s rape of BC and doom the province to be an empty shell of what it once was.

    Falcon is Doom.


  5. The BC Rail get out jail free deal always stunk of corruption right into the house of the Attorney General and Justice Ministers office. Criminal politicians putting on a wasteful sham trial only to let their
    pals off at the last hour.


  6. Wasn’t it then Attorney General Mike de Jong who announced the shut down of the BC Rail file because of the cost to the taxpayer and the the deal made. What utter bullshit. What else couldvwe expect from that corrupt bunch. Attorney Generals, Ministers of Justice under the Liberals were nothing a waste of space and money as they seem to be today. But they were nothing but a corrupt cabal under the BC Liberals. Today its just a pack of spineless politicians in these positions who do nothing for public protection and service. They only play for politics and not justice.
    If the BC Liberals ever got in power again, would anyone really want to see the likes of some those people like Coleman , DeJong, Clark, and others be there to screw us again and jump in bed with bad guys.


    • Mr. de Jong advanced several self-contradictory versions of the deal. On the day of sentencing that marked the end of the trial (October 18, 2010), he asserted that he approved it after being presented with the facts. On January 04, 2011, after having over two months to get his story straight, and in the middle of his campaign for the BC Liberal leadership, he claimed the deal was in fact already done and approved by the special prosecutor before he learned of it. The very next day he issued a retraction, stating that the special prosecutor had not been involved in the deal.

      Deputy Attorney General Loukidelis issued a public statement on October 20, 2010 that contained this: “For clarity, neither the special prosecutor nor the Attorney General had any knowledge of the matter or any involvement in this.”

      As for special prosecutor Beradino, he was quoted on October 18, 2010 by the Globe and Mail as stating, “This was my decision. I made it on my own, full stop”, and, “I’d love to tell you the whole story but the law doesn’t permit it.”

      The spectacle of these guys busy duping each other would be comical if it wasn’t so sad. Because in the end it is the citizens of British Columbia that were duped; by their own government and justice system. There can be no doubt about that.

      The big question is why, and who ordered it to be done.


      • I’m of the opinion it had to come from the Premier’s office. It just had too. Things we’re getting to hot and to close for comfort for Campbell and the real BC Rail backroom deal and the big buyer. Who was the head cleaner or cleaners that helped wash away the dirt for Campbell and the government. Beradino was always interesting, as was Loukidelis
        It is disgusting when our so called political leaders and especially the so called leaders of justice are not that at all. This sounds more like some big criminal backroom deal made by a pack of corrupt thugs and then the trial being run by the same hoodlums. God, and these are the people the taxpayers voted in and relied on to serve them. And de Jong as is others are still sitting on the other side of the house that we’re there when they let this province go to crap with unaffordability, questionable off shore buy ups, money laundering, criminality and drug epidemics and letting there criminal corporate buddies and developers run roughshod over us. The cleanup is to great now, and the Jeannie is out of the bottle for good because of that stinking gang that we called our government at the time.
        Things aren’t perfect now with the Horgan bunch. They seem to be more a bunch of two faced liars and hypocrites than corrupt. But I wouldn’t want that Liberal bunch in again, especially when there’s still old vultures hanging around ready to dive and tear us and the province to sheds even more.
        I’ve been voting Green Party for awhile now and its going to stay that way just hoping that none of those bums on either side have any big majority. Not to say it would be any better, because we know these politicians always talk the talk at election time but mostly never walk the walk when governing. But there is something different about Sonia Furstenau in good ways. I think she carries a moral compass that seems to be unbreakable.


  7. Elections BC reports that Kevin Falcon’s financial agent failed to meet the legislated deadline for submitting the financial report related to Mr. Falcon’s election campaign for leadership of the BC Liberal Party. In other words, he broke the law. Specifically, section 211 of the Election Act. Now we get to see whether Mr. Falcon was serious when he was ranting about adhering to the rule of law. What are the consequences (other than the token $500 fine) for his agent? Was Falcon’s choice of agent a sign that he is a poor judge of talent? Or was the failure a sign that the culture of disregard for the law sticks to Falcon’s feathers? Watch and see.

    By the way, during the time that Mr. Falcon should have been focused on getting his financial reporting in order, he was instead busy publicly rebuking MLA Mike de Jong for supporting Pierre Poilievre in his federal Conservative Party leadership bid. He said on April 13th de Jong “should have known better”, and “we want to go back to what we’ve always done, which is staying out of federal politics.” Have a look at the picture of Falcon wearing a Maxime Bernier button and Bernier’s arm above to determine whether his words reflect a core Falcon principle, or like those on the rule of law are just expedient utterances.

    Hypocrisy and disdain for the law might make an ideal BC Liberal, but signal a poor and dangerous choice for Premier.


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