Wednesday, 28 March 2012

Basi-Virk: an open letter to John van Dongen


Dear John,
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.  
Sincerely,
Geoff
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. 

12 comments:

  1. I note that Kevin Falcon disagrees and says the decision to cover the legal fees was appalling. http://tinyurl.com/7zfvz98
    And I'm not sure the plea deal and the legal fee deal can be severed quite so cleanly. For the defendants, they were a package. Agreed on statement of facts and sentence recommendation, $6 million in legal fees, release from indemnity agreement, in return for guilty pleas. In terms of justice being seen to be done, there is a problem.

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  2. Geoff Plant is the epitome of hypocrisy for critizing the justice system because when he was Attorney General the Attorney General Ministry employees covered up major crimes by staff employees and the indirect result of that 30 people are now dead - some of them were criminals who were obstructing justice

    Learn more at http://www.waterwarcrimes.com

    and read about the 30 dead - murder victims ? - at the Graveyard of the Guilty

    http://www.waterwarcrimes.com/grave-yard-of-the-guilty---thirty-insider-witnesses--defendants-suddenly-die.html

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  3. What about that "Special Prosecuter?" Many people believe that he was improperly appointed.

    What about the sudden and improper replacement of Justice Elizabeth Bennett, just as she ruled in favour of the defence council to call Minister Gary Collins and Gordon Campbell to the stand. Replacing her with Anne MacKenzie, who ruled in favour of the Crown from the moment of her improper appointment?

    What about the relationship between the Liberal Party and the Investigating officer in the RCMP? What happenned to the wiretap evidence from the Gary Collins meeting in the italian restaurant?

    Which cabinet Minister leaked confidences of cabinet to the pilothouse lobbiests? Was it Christy Clark?

    We want a full public inquiry, with powers of subpeona.

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  4. Geoff, you actually passed law school and the bar? You sound more like you studied "communications" or went to spin doctor school. Being involved in appointing your former law partner (and former partner of another mucky-muck in your ministry)kind turns the oh so "special" prosecutor on its head, at least from what it was meant to do, wouldn't someone with and understanding of the law be appalled, oh that's right, YOU made the "illegitimate" appointment yourself, if I remember correctly.

    The six million pay out to cover the costs of Basi and Virk's defense, this from a government that insists on recovering overpayments to welfare clients, caused by agency errors is shameful, but compared to the real issues underlying the phoney BC Rail Trial is a small fish, of the red herring variety. The real issue is the use of the six million as essentially a bribe to shut down the trial (after spending at least thirty million on Wild Bill and his crew of substitutes and court costs)to protect the REAL culprits in the real crime, the THEFT of BC Rail from the people of BC (and the lies leading up to the giveaway as well)!

    You should keep your mouth shut unless you want to make sense and speak truth....and hopefully you will be speaking about these issues under oath someday along with Gary Collins, Gordon Campbell, Christy Clark and Pat Kinsella, just for starters.

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  5. "It’s worth emphasizing the point. What was offered were guilty pleas on behalf of the two key defendants."

    The point worth emphasizing is that the proper defendants were never charged, and rarely mentioned in this Kabuki excuse for a court case, and by the way, I assume we have an extradition treaty with the UK!

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    Replies
    1. "Kootcoot" - the proposition in your first reply with respect to the appointment of the special prosecutor is incorrect. I did not make - and had nothing to do with - that appointment. See section 7 of the Crown Counsel Act. Special prosecutors are appointed by the Assistant Deputy Attorney General, Criminal Justice Branch, who does not consult with the Attorney General or the Deputy Attorney General before making the appointment.

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  6. Okay Geoff, but tell me who was the Asst. Deputy Attorney General and who was he formerly law partners with? And even if he wasn't a partner in the SAME FIRM as you and one other (if he wasn't the other) government member of the Justice Department, can you really expect anyone with a brain to not at least see the "appearance" of impropriety, if not the actual evidence supported fact.

    It is my belief that the oh so special prosecutor process has been completely abused from Wally Oppal's prosecutor shopping in the Bountiful case to too many investigations (Heed, Les, Dobell for starters) in the last decade or so.

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  7. Mr. Plant first you state the following:

    "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."

    Then, in the next sentence you state:

    " But it was understood that with guilty pleas, the claim to fee recovery would be waived."


    Now.

    Based on those continguous statements, perhaps you could help me 'understand' the following:

    If it was 'understood' that guilty pleas would subsequently lead to the waiver being granted, does it not logically follow that there was, for all intents and purposes, a prior 'inducement' regardless how 'carefully' things were done to make sure 'the rules were followed'?

    Thanks.

    .



    .

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    1. Ross K, There was no "prior inducement". The offer of pleas was made first and entirely independently. The discussion about the fee waiver happened afterwards, and involved government, not the special prosecutor.

      Koot coot, One more go, even though I am breaking my self-imposed rule against responding to people who blog behind aliases. You ask who the Assistant Deputy Attorney General was. The answer is Bob Gillen, a career prosecutor and long time civil servant, who was, so far as I know, never a law partner with anyone.

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  8. Sorry, but the hairs are being split too finely. If there were genuine guilty pleas arranged in negotiations with the special prosecutor in place, then there was no need to break the policy on indemnities. The guilty pleas would have been secured, the trial ended and the taxpayers could have recovered at least some of the $6 million.
    If they weren't in place, then the $6 million was indeed a prior inducement because it came before the guilty pleas were actually secured.

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  9. Thanks very much for the clarification of your position Mr. Plant.

    However, I am still in complete agreement with Mr. Willcocks' point of view on the matter.

    More specifically, in my opinion a 'chronological' separation of the formal agreements does not, in and of itself indicate a lack of prior inducement if, as you say, the accused 'understood' (your term, not might) that the official waiver agreements would follow the official guilty plea agreements.

    .

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  10. Mark Twain and George Sand wrote behind alias' - I had and have my reasons for the nom de plume - the relevant thing is to have a consistent ID - BC Mary was my mentor on that. Actually there is one blogger who is fortunate I use an alias, because it saves his ass from a libel suit as he has only defamed and libeled my kootcoot persona, which I can handle without going to court. I have been to court and kicked ass on big time players, so as I said let's not sweat the small irrelevant stuff.....

    Even if no former law partner of you or the other functionary in the Justice Ministry that was also a partner with Berardino, actually made the appointment, the fact that TWO former partners, including yourself, were part of government taints the Berardino appointment in the eyes of anyone paying attention to appearances, which supposedly was at least part of the intent of the Special Prosecutor legislation.

    To anyone on the outside Special Prosecutors looked compromised in the Bountiful case, the Kash Heed Case, the John Les case and with Ken Dobell (or maybe in that case it was just the toothless nature of the lobbying oversight).

    Frankly the removal of Elizabeth Bennett from the BC Rail Trial stunk to high heaven as well as the late switch to trial by jury and subsequent and still for all practical purposes - gag order.

    Along with Ross from the Pacific Gazatte, I also appreciate the fact that you at least engage with critics, unlike many of your ideological brethren. It should be all about the discussion of ideas and facts, not personal attacks or biased moderation.

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