RailGate Re-Rising....The Indemnities Have It.

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ForTheSupremesVille


British Columbia's auditor general, John Doyle, is in court trying to get the Campbell/Clark government to give him the documents that explain just exactly how the six million dollar deal that ended the Railgate trial really went down.

And, apparently, according to Bill Tieleman and John van Dongen, there are lawyers, lawyers everywhere...

Anyway.

At this point, it might be worth returning to a 'blogpost' that a certain lawyer and former Attorney General in the Campbell/Clark government, Mr. Geoff Plant, wrote a few months ago in the form of a 'Dear John' letter to Mr. van Dongen. In my opinion, the following is the 'money' quote:

"...To summarize, guilty pleas had been proposed (to the defendants). 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..."

(stuff in brackets mine)

Now.

Go back and read that bolded part of the quote again.

"...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..."

I am not a lawyer, but when Mr. Plant wrote that I surmised that, regardless the chronology of the official offers, if it was 'understood' that 'with guilty pleas' that 'the claim to fee recover would be waived' later....

Well....

That would be a prior inducement for the defendants to plead guilty, would it not?

And I (and Paul Willcocks) told Mr. Plant as much.

To his credit, Mr. Plant was good enough to respond, for the record.

However, after carefully considering Mr. Plant's response, it is still my opinion that, if things really went down as described by Mr. Plant (who underpins his opinion with the written statement of the then Deputy Attorney General who helped broker the deal in the fall of 2010, Mr. David Loukidelis), then there was a prior inducement for Mess'rs Basi, Virk and Basi to plead guilty such that they would subsequently be off the hook for their legal fees.

Below is the post I wrote at the time that explains my position more fully.

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Friday, March 30, 2012

The Six Million Dollar BC Rail Deal....Mr. Plant Answers My Question.

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ButNoTimeToEatLunchVille

It's noon on Friday, and the former BC Liberal Party government Attorney General, Mr. Geoff Plant, has been gracious enough to answer my question regarding his interpretation of the propriety of the 'Six Million Dollar Deal' that, in my opinion, effectively ended the BC Rail Trial of Mess'rs Basi, Basi and Virk with much haste.

Recapping.......

A few days ago Mr. Plant wrote a 'Dear John' blog post in which he asked Mr. van Dongen what he would have done differently with regards to the 'deal' itself.

In the preamble to actually asking that question of Mr. van Dongen, Mr. Plant also wrote a number of things as a preamble.

And one passage in particular led me to leave a question for Mr. Plant in the comments as follows:

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.

I then wrote my own blog-post about this, here, if you would like more background and exposition.

****

Importantly, Mr. Plant has taken the time to respond to my question, also in the comments over at his place:

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.

Paul Willcocks, who has been following this also, responded to Mr. Plant's response thusly:

1. 
   paulMar 30, 2012 08:33 AM

   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.

And while I too sincerely appreciate Mr. Plant's efforts to explain the situation more fully, I still do not understand his position based on how he laid things out in the original post, which is explained by my response to both his own response and Paul's:

1. 
   RossKMar 30, 2012 12:35 PM

   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 mine) that the official waiver agreements would follow the official guilty plea agreements.*

   
   

And with that, it's over to you all....

I sure would like to hear other folks' opinions on this matter, especially from folks with a legal background, as I am speaking purely as a layperson in that regard here.

Thanks all - and thanks to Mr. Plant and Mr. Willcock's too. This kind of discussion is most helpful on myriad levels.

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*In my lunch hour haste there were a couple of typos in my original comment which I've cleaned-up here....And now...back to work!....Look forward to any comments you might have later in the day....

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