So, the plot thickens and bit by bit we extract the truth out of the back-pedalling,
inkfish tactics being used by the Campbell government to explain the Basi-Virk bribe
– for bribe it was.

We started with Crown Counsel telling us, as the disclosure of the bribe was made,
that he did it all himself. He must have grossly underestimated the intelligence of
the BC people. As some teeth were extracted we learned that no, it wasn’t all by
himself, but from the Deputy Attorney-General, Criminal Justice Branch (ADAG).

Pause for a moment. The ADAG is a special role and not really part of the civil
service, this from a release by the Attorney-General’s Ministry:

“The responsibilities of Crown counsel are defined in the Crown Counsel Act. The act
ensures the independence of the prosecution service. Prosecutors are guided by the
policies of the Criminal Justice Branch and they are ultimately accountable to the
assistant deputy attorney general (ADAG). Under the act, the ADAG is head of the
Criminal Justice Branch and is responsible for the administration of the branch and
the day-to-day operations of the prosecution service. While the Attorney General is
responsible for overseeing the administration of justice in the province, the
Attorney General does not normally become involved in prosecution decisions relating
to individual cases.”

Now, as I’m sure you’re asking, how can the ADAG get instructions for settlement
without going to his boss, the AG?

The answer is that he can’t, nor, as we will see, can the AG make that decision.
Stay tuned.

Today we learn the key to the bribe when we’re told that the Deputy Finance Minister
was part of the negotiations which went back, incidentally, nearly three weeks
before the announcement. The Deputy Finance Minister is a public servant, under
Order-in-Council and reports to the Finance Minister. He chairs what is known as
Treasury Board Staff, better known as “Little Treasury Board”, which – and again
this from the AG’s office – “is responsible for developing and reviewing
government’s economic, fiscal and taxation policies. It provides analysis and advice
toTreasury Board (the Cabinet committee responsible for budget and management
matters) and to the Minister of Finance” through Treasury Board”, which is chaired
by the Finance Minister, Colin Hansen, and is comprised of Hansen and 7 senior
Cabinet ministers.

Pause. Now the path becomes a little clearer. Crown Counsel needs two things:
authority to make the deal in the first place, and $5 million in hush money. There
is no way the ADAG can make that decision and provide the money which is how the
deputy Finance Minister gets in the act. He has no authority to make this decision
either so he must go to Treasury Board, C.Hansen prop., and both ask for the money
and convince the Board that it’s needed. There is no way in the world that Hansen
with or without Treasury Board could make this decision, so the matter goes to
Cabinet, chaired by one Gordon “Pinocchio” Campbell.

There is another cute little fact finally disclosed: despite earlier denials, Basi
and Virk had to sign a confidentiality agreement – they couldn’t talk or the deal
was off! And who was that to protect?

It sure as hell wasn’t the public who had every right to know all the details.

Remember that Crown Counsel Berardino was winning the case and if he wasn’t sure of
that, he had to be when the accused offered to cop a plea. But follow me carefully
from here: If his remaining witnesses, Collins, Campbell, et al. would help Basi and
Vick’s case, Berardino was obliged to reveal that to the accused’s lawyers. We
therefore know that these witnesses to come would make Crown Counsel’s case all the
stronger.

Why then would Mr. Berardino want to bail out?

There are but two possibilities: either Berardino is as dumb as a sack full of
hammers and doesn’t understand these things, or he was told to settle on orders from
Gordon Campbell. In helping you make your choice, let me tell you that Mr. Berardino
is a very clever lawyer, one of the best courtroom lawyers in the province.

Clearly, this confidentiality agreement was intended to protect the political asses
of Messrs Campbell and Collins and other Liberal insiders.

Conclusion:- The $5 million bribe to Basi and Virk was authorized by Premier Gordon
Campbell who was in the negotiations from the beginning and knew that he and former
Finance Minister Collins and other key people in his clique, were going to be called
as witnesses which is why the bribe was paid.

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.

The document below – obtained recently by The Common Sense Canadian – is a slap
in the face to the many British Columbians who are all to familiar with this ruling
government’s secretive ways. Authored in 1998 by Campbell himself whilst Leader of
the Opposition, to the then director of the BC Freedom of Information and Privacy
Association, the letter slams the NDP government of the day for not being more
“open” with the public.

“Open government is the hallmark of free and democratic societies,” he begins.
“Regrettably, the NDP have abandoned their commitment to open government.
Expenditure cuts, the threat of fee increases, and the excessive reliance on FOI as
the only way of obtaining routine government documents are all evidence of a
government which prefers the practice of concealment to the culture of openness.
This is unacceptable.”

And on that one note, we wholeheartedly concur. If only Campbell hadn’t followed
this rant with the most secretive, obstructionist, and anti-democratic government in
the history of our province, we could now applaud his bold statement in hindsight.
But on the heels of the infamous Hansen HST memos – obtained only by FOI long after
the fact, and full of large tracts of white space covering up redacted text – it
reads now like a bad, Orwellian joke.

In the spirit of openness, see for yourself…