I understand that one of the issues which caused you to leave the BC Liberal caucus and party is your continuing unhappiness about the so-called plea deal in the Basi Virk cases. Apparently you have even hired a lawyer at your own expense to investigate your concerns. I don’t know all of the questions that you want answered. But I am hoping you might answer one of mine.
Before I pose the question, let me set the stage.
On October 18, 2010, as you know, Dave Basi and Bob Virk, two former BC Liberal political staffers usually described in the media as “the two men at the centre of BC Rail corruption case” pleaded guilty in B.C. Supreme Court in Vancouver to four criminal charges. They admitted providing insider information to interested parties in the 2003 sale of BC Rail and receiving benefits for the information, including money and a trip to an NFL game in Colorado.
They were sentenced to house arrest and Basi was fined $75,600, equal to the amount he admitted he was paid in exchange for the information.
Lesser charges against Aneal Basi, who was accused of money laundering, were stayed, bringing an end to the trial.
Later that day the government announced it had agreed to waive its claim against the three defendants for their legal fees amounting to nearly $6 million. There was a strong public reaction to this announcement. So strong, that two days later, on October 20, 2010 Deputy Attorney General David Loukidelis felt compelled to release a public statement. A copy of that statement is readily accessible on the Internet. I found it at this site: http://www.cope378.ca/sites/all/files/Loukidelis_BasiVirk_Statement_20Oct%2010.pdf
It needs to be read in full, and carefully. So far as I am aware, no one has ever credibly suggested that this statement is factually incorrect.
To summarize, guilty pleas had been proposed. Discussions ensued about the fees. The special prosecutor was not involved in those discussions. Government decided to release the three defendants from any claim for repayment of their legal fees. The defendants pleaded guilty. 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. But that was of course the outcome. It was done very, very carefully, to make sure the rules were followed. But it was understood that with guilty pleas, the claim to fee recovery would be waived.
The facts which have been publicly reported about the net worth of Basi and Virk make it plain that there was not the slightest chance that government would ever recover from them any more than a small fraction of the $6 million their lawyers had already spent. And of course, that number was bound to increase if the trial continued. $6 million would become $7 million, perhaps $8 million, perhaps more, and no chance of getting any of it back.
People were (and still are) outraged that government waived the fees. But if government had said, “no thanks, we won’t forgive the legal fees”, do you think there would still have been guilty pleas? Of course not. Why would there be? There was nothing preventing the defendants from pleading guilty any time they wanted to. What they wanted was to be released from responsibility for their legal bills. No release, and the trial continues. On and on, no end in sight, the legal expenses mounting, and no certainty of conviction.
It’s worth emphasizing the point. What was offered were guilty pleas on behalf of the two key defendants. Admissions of criminal wrong-doing. The very object of the entire exercise. This was not an open-ended public inquiry where all the issues about the BC Rail deal were being investigated. It was a criminal case, in which the only issue at the end of the day was the guilt or innocence of the three defendants. No one and nothing else was on trial.
If this had been a civil case, you’d express the option this way: “I get a court decision in my favour, and all I have to do is relinquish a claim for money I could never collect anyway?” Because it’s a criminal case, it’s more complicated, but in the end, that’s as good a way as any of understanding it.
So here’s the question. What would you have done?
In politics and the law, like life, there are rarely any moral absolutes. More often than we would wish, there are just difficult choices among imperfect options. Sometimes the decisions are very, very hard, because there are (with apologies to Yogi Berra) truly pros and cons to both options. This was surely one of those cases.
As for me, however, I know what I would have done if I had been presented with that choice in October 2010. I would have chosen guilty pleas and closure. The $6 million, quite frankly, is and was beside the point. It had been spent, and there was no chance of getting it back.
So, John, I look forward to your answer to this question. And I will watch you with interest in your new role.
PS. Does $6 million in defence costs feel like a lot to pay for a couple of convictions? Most certainly. It makes me angry just to think of it. But governments don’t run criminal trials; lawyers and judges do. Don’t blame government for the $6 million. Blame the justice system. Congratulate the government for having had the wisdom and the courage to seize an opportunity to bring the case to an end.