“Near-Points” of the BC Rail Case

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The near-points.  What – for instance – Vaughn Palmer doesn’t tell his readers is that part of the deal made by October 18, 2010, was that the two main men accused – Dave Basi and Bob Virk – had charges against them significantly reduced.  They were found guilty … but not of what they were originally charged with in December 2004, and remained charged with until October 2010.

Suddenly, charges were reduced, jail time was out, fraud was removed … and the deal was made.

Near point #2.  From December 2004 until October 18, 2010, Aneal Basi was accused of receiving moneys from Erik Bornmann, and of depositing them in tranches in a Dave Basi account.  Aneal Basi was accused of money laundering – for six years.  If he is innocent (all charges erased against him on October 18, 2010), then the Crown (through the wrongfully appointed Special Prosecutor William Berardino) slandered and libelled Aneal Basi for six, highly publicized years.  What is to be done? What does the Crown owe him as remedy for a six year, highly public slander?

If Aneal Basi is not innocent, why were charges against him erased on October 18, 2010?  (No one mentions Aneal Basi anymore in Mainstream Press and Media reports.  Why not?)

Near-point #3.  As the trial closed, standing near William Berardino (wrongfully appointed Special Prosecutor in December 2003), I heard him reply to a question to the effect that he was responsible for all the terms of the deal that had been made.  Within hours that statement had holes shot through it – as responsibility for paying Defence the $6 million climbed further and further through the Gordon Campbell government.  Finally, it was pretty clearly revealed the payment had to be approved at the highest levels.

But the auditor general is alleging that it was not approved – as it had to be – by cabinet (in any recorded way).

A few key moments were played out before the final few weeks. Those moments point to the sudden, intense, back-room dealing that resulted in the final “deal”: Aneal Basi was wiped of all accusations; Dave Basi and Bob Virk received significantly reduced charges; B.C. taxpayers paid the $6 million Defence legal costs.

No one mentions that the Special Prosecutor – appointed in violation of the legislation governing such appointments – was paid, with his “team”, something like $12 million.

The appointment of William Berardino by a ministry whose Attorney General had been Berardino’s partner and colleague for seven years and whose Deputy Attorney General had been his partner and colleague for eleven years was plainly, outrageously wrongful. It was so wrongful that any British Columbian may believe Mr. Berardino was appointed for baldly political reasons – and that he did what he was appointed to do….

Any British Columbian may believe his payment was no more legitimate than the payment, by government, of Basi’s and Virk’s costs. The mainstream press and media do not mention Aneal Basi’s strange situation; the reduced charges against Basi and Virk; the wrongful appointment of the Special Prosecutor. The mainstream press and media don’t report facts British Columbians have a right to know.

It all began a long time ago, before Madam Justice Elizabeth Bennett was made judge on the Basi, Virk, and Basi case.  But we’ll begin there.

She had (I believe) blown the Glen Clark (NDP premier) case concerning payment for a deck on a modest, East Vancouver home, believing the RCMP presented clean evidence.  I believe the RCMP did not.  She believed the bases of the charges – which had their first suggestion from Gordon Campbell’s constituency office – were real.  She believed the chief RCMP investigator, an officer Gordon Campbell at least twice tried to woo to be a Liberal candidate, was squeaky clean.

In brief, she ran what I believe was a case based on a corrupt construction of evidence as if it were not.  Clark’s lawyer more than once argued that the charges were baseless and should be stayed.  She disagreed … and then came to the judgment that Glen Clark had done nothing that warranted conviction! (After 136 days of highly trumpetted trial.)

Two former premiers joined the call for a Public Inquiry into the case, an Inquiry that never happened.

Justice Bennett was then appointed judge in the Basi, Virk, and Basi case. (Her judgement in the Glen Clark case was made after he had been destroyed politically by what I believe were trumped up and falsely constructed charges. In a way, then, even innocent of all the forces at work, she did what was necessary to destroy Clark’s political career.)

Whether she saw into what I believe was the situation in the Glen Clark case, I cannot say.  Whatever the situation, she conducted the pre-trial matters of the Basi, Virk, and Basi case with great care.  I believe she conducted them too slowly, and with too lax a hand on the RCMP and the Special Prosecutor.  But she saw the Defence argument – that the case against the three men was “tailored and they were targetted” in order to narrow the case and to protect highly placed others.

She permitted evidence to pile up of tailoring and targetting. Because of what the Defence thought was her general fairness, they elected to have trial by judge alone – not judge and jury.

Then she was removed, promoted, appointed to the Appeal Court smack in the flow of the pre-trial process.  Her promotion had to be approved by Stephen Harper (who has just appointed Gordon Campbell as Canadian High Commissioner in London).  Observers may argue forever about whether she was removed to stop her from doing a fair job or for other, legitimate, reasons.

All I can say is that I asked senior Defence lawyer Michael Bolton on two separate occasions who could remove Madam Justice Elizabeth Bennett from the case, and Michael Bolton insisted only she had the power to remove herself.  But  - as I witnessed Associate Chief Justice Patrick Dohm at work in court – I became convinced that he removed her.

At this point the key to the “deal” struck on October 18, 2010, is revealed.

The appointee to replace Elizabeth Bennett was Anne MacKenzie – who very soon after became Associate Chief Justice Anne MacKenzie.  She terminated (quickly) the pre-trial process, and she was to sit as judge on the trial.

The Defence team became alarmed, I believe.  Observing the day-to-day process in the court, it believe I could see the Defence counsel coming to think that Associate Chief Justice MacKenzie would cut off all argument about “tailoring and targetting” of the accused, would confine all attention to the three accused in the small situation of the charges against them, and would prevent the larger picture of an alleged wholesale, corrupt, high-level transfer of BC Rail to the CNR to have any bearing on the case.

She would not let, it seemed to me observing, Defence argue that the accused three men were simply part of a huge, elaborate, corrupt activity in which others, very highly placed, were involved and even directing the three accused.

There was only one way, it seems, to stop Associate Chief Justice MacKenzie from riding rough-shod over the carefully prepared Defence case.  That was to put between her and the lawyers involved a jury of twelve ordinary British Columbians.  To do that, Defence would have to re-elect (not a common thing to do) to have a trial with judge and jury, not merely a judge.

After all, they had not elected to have Anne MacKenzie as sole judge, but Elizabeth Bennett – and she had been whisked away.
But to get the re-election they wanted, they were going to have to negotiate with the Special Prosecutor.  And they did.

One of the results of the negotiation was that the two sides in the case agreed to a statement of “Admission of Facts”.  That isn’t highly unusual.  It permits both sides to begin with a number of matters agreed upon.  The accused did this and this and this – all agree.  That saves time.

But the Special Prosecutor required that the accused refrain (it seems from what went on in court) from suggesting investigation was biased, that there were unseemly connections between people involved, and so on.  I have come to believe the Special Prosecutor required the accused to agree to things that, in fact, prevented reasonable defence – something no court could uphold – something that would prevent the fair administration of justice.

But the paper was signed by all concerned.

Then, as trial began, the accused would not agree that they had signed away some key rights to defence.  They interpreted the statements in the Admission of Facts differently – at first (it seems)  than their lawyers.

A real and total impasse occurred. The accused were advised to seek legal advice beyond their own counsel.  Time passed. Finally, the accused and their lawyers decided to proceed with the trial.

The cross-examination of the first witness, Martyn Brown, Gordon Campbell’s long-time Chief of Staff, brought everything to a head.
Defence counsel asked Martyn Brown what he knew about the relation between major investigator, RCMP officer Kevin DeBruyckere and his brother-in-law, Kelly Reichert, Executive Director of the B.C. Liberal Party.  (Could they have passed information on to Gordon Campbell? was asked or intimated.)

The Special Prosecutor stopped the action.  Defence counsel couldn’t ask such a question, Berardino alleged – as a result of the agreed Admission of Facts.  The judge had to rule.

She ruled, in short, that the question was valid, and that Defence could ask such questions.

That changed too much in the Prosecution strategy. The trial had to be stopped.  Nearly 30 highly placed politicians and corporate actors were to appear and to be cross-examined. They couldn’t walk through the trial, one after the other, in the state of amnesia that Martyn Brown had shown – to the wonder of even the mainstream press and media journalists who rarely wonder about anything.

The trial would turn into a blood bath.  It had to be stopped.  Either the witnesses would reveal things that would affect the jury (and the case) in highly significant ways – probably turning it away from the accused towards major political and corporate figures.  Or, I believe, all Crown witnesses would have to live in amnesia – which situation would become less and less and less convincing even to the sold-out mainstream journalists. Such repeated amnesia would turn the trial into a raging public farce.

It had to be stopped.  And so dealing went on.  Only one half of one more witness took the stand before all came to an end.  (Martyn Brown was suddenly transferred to a safe position as Deputy Minister of Tourism.) To get an end to the trial, charges against Aneal Basi had to be dropped completely.  Charges against Dave Basi and Bob Virk had to be cut down to anodyne levels. No jail term.  No fraud charges. The Gordon Campbell government agreed to pay all Defence costs – and not try to retrieve any of the money from the convicted men.

And so the trial was killed – with lightning haste.  It was killed –  with such haste and in such an unconventional way that the Auditor General of B.C. wants to know all about it.

Good luck to Auditor General John Doyle.

It seems to me the Gordon Campbell group that oversaw the corrupt transfer of BC Rail to the CNR – Christie Clark included – has so far escaped all serious examination.  Let us hope John Doyle can break through their defense and show the BC public why $6 million of its money was misused – as a beginning to showing how billions were misused – and perhaps criminally looted - in the transfer of BC Rail to the CNR.  

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