Wednesday, February 27, 2008

When Did The RailGate Deal Really Go Down?



The matter of documents, and in particular Emails, that current RailGate judge Elizabeth Bennett has already viewed and ruled could determine at least one of the defendent's guilt or innocence all comes down a matter of 'privilege'.

Not 'Cabinet' privilege, which British Columbia premier Gordon Campbell and government lawyer Mr. George Copley have already told everyone who will listen is not what is at stake for either the innocent or the guilty.

Instead, the thing that is, apparently, holding back the full and unfettered release of the Emails to the defense is a matter of 'Solicitor-Client' privilege.

What the heckfire is that you may be asking?

Well, we're not entirely sure, but in reading something called the 'Fairness Advisor's Report' (ie. a document commissioned by Mr. Campbell et al. that supposedly makes it clear that everything was on the up-and-up) we think it has something to do with preserving the confidentialty of advice given to the government by bankers and lawyers in the run-up to the deal going down.

And just who was giving that advice - well, here it is from the final Adivisor's Report:

For the BC Rail Freight Division restructuring process, the Province retained two key
transaction advisors. It retained CIBC World Markets (CIBCWM) to manage the transaction
process and Borden Ladner Gervais (BLG) to act as legal advisor.

Why was preserving the confidentiality of this advice so important?

Well, it's difficult to find that in the final Fairness Advisor's report (which itself is not easy to find - I have copies on my hard and thumb drives sent to me by Anon-O-Mice), but if you read the 'interim' report carefully it would appear that the confidentiality was required to make sure that none of the bidders on the deal at the time (ie. CN Rail, CP Rail, Omnitrax) received an unfair advantage from insider (ie. 'privileged') information:

Except for the initial RFP (Request For Proposals), which was made public, all other information was provided toproponents subject to the conditions of the confidentiality agreements they had signed. We understand that there were occasional concerns that a proponent had possibly contravened its confidentiality agreement. In each of these instances, the concern was investigated by CIBCWM (CIBC World Markets) and the proponent was formally reminded by CIBCWM of the terms of the confidentiality agreement, the importance of adherence to its conditions, and the potential sanctions for breaches.

Now, when you've waded through all of this stuff, it's hard not to ask yourself the following question:

"What's all the fuss about?"

Or, put another way, now that the deal is done, why do we need all this secrecy based on confidentiality and 'Solicitor-Client' privilege when there is no longer any competitive advantage to be gained by any of the bidders all these years later?

Well, we're really not sure, but according to what Deputy Attorney General Allan Seckel told Les Leyne of the Victoria Times Colonist earlier this week there most certainly was a need to keep the secrets by instituting a 'protocol' during the period immediately after the police raids on the BC legilslature:

There's actually a five-step process that was put in place in January 2004 to determine what information would remain secret.

That protocol involved reviews by the associate chief justice of any documents in dispute, and reviews by the deputy cabinet secretary to confirm they should remain confidential. It also provided for the deputy cabinet secretary asking permission of the chief justice to discuss a confidential matter with the cabinet.


Dragged into the fray, (Deputy AG) Seckel said Monday the protocol was set up soon after the raid because the B.C. Rail deal was still actively under consideration by cabinet. It hadn't been decided yet.

Which all seems very reasonable and sensible, right?

But, here's the thing.

As RailGate expert BC Mary has pointed out, this explanation makes very little sense at all if you've actually been paying attention, because......

The deal, in which BC Rail was sold to CN, was announced by the BC government on Nov 25, 2003 while the legislature raids, which resulted in the RailGate charges being laid, occurred on Dec 28, 2003.

Now, unless we've missed something, those dates would indicate that when the 'protocol' was set up the deal was most definitely NOT 'still actively under consideration by cabinet'.

Looks like somebody has some 'xplaining to do.

Of course, perhaps what was really under consideration by Cabinet at the time immediately after the Raids was not the Big 'mainline' deal but rather the smaller deal for the Roberts Bank Spur, a deal that was never consumated. And that, we would humbly suggest, just might be at the very heart of the matter.
Regardless all this, why, as Mike Smyth (but not Les Leyne), recently asked, was the above-mentioned 'protocol', in which Cabinet-oversight was most definitely a component, used for a further three years after the completion/cancellation of both deals?
There is one other wee thing of note regarding the 'protocol' ......At the time, judge Patrick Dohm was supposed to review documents them before passing them to cabinet secretaries to consider. In the case of at least some of the Emails under question it would appear that Mr. Dohm never saw them according to a previous report from Bill Tieleman (scroll down to the bottom).
Speaking of Mr. T (and Mary too).......


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