Friday, September 14, 2012

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


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...


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)


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....


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.


Friday, March 30, 2012

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


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.


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."


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'?


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. 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. 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.

*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....


Anonymous said...

I'm not a lawyer either but it is clear to me that there was an inducement for Vasi and Virk to plead guilty. After all, it was done "...very, very carefully to ensure the rules were followed." To me that meant Basi and Virk were not eligible to have their legal costs covered. But, it seems there was a side deal and those "rules" were in fact waived to make the following statement ring true "But, it was understood that with guilty pleas, the claim to fee recovery would be waived." That is precisely the kind of statement that you could take to the bank.

Grant G said...

Absolutely correct Ross...Geoff Plant states that the defendants knew guilty pleas meant legal fee forgiveness..

What is this bafflegab about negotiating after-the-fact- on details on legal fee forgiveness..

Which came first, the chicken or the egg...

The only other scenario that exist, the ministry of the attorney general:IE Government: talked about legal fee forgiveness with the defendants, meaning Government offered the deal before the special prosecutor cut the deal...

Nothing else makes sense..

And..It makes no sense that a brand new hire in Loukedalis made a $6 million dollar decision in his training period..

Ian said...

The key, RossK is the agreement signed by B&V and the government. I believe the confidentiality of that doc is directly related to the language that will show an inducement.

RossK said...


Kinda makes you wonder, doesn't it, if there was a 'third man' who helped make that 'side deal' clear to the defendents, eh?


My take....The bafflegab is legal cover for something not so.

(legal I mean)


If that is, indeed, the case wouldn't that mean that Mr. Plant is wrong re: his 'facts'?

And given that those 'facts' came from Mr. Loukidelis, well....?


Eleanor Gregory said...

Here are my thoughts.

The fees for the defence lawyers were paid by government as the trial dragged on and on. At the end of the day, it wasn't as though Basi, Virk et al were facing a multi-million dollar bill from the lawyers. The lawyers had been paid. What remained for government to do (if the boys were found guilty or pleaded guilty) was to get reimbursed for what it had shelled out. What the boys were facing was a collection proceeding against them. By all accounts, what assets these guys had would only have put a dent in the amount of money government shelled out. Taking collection proceedings might have cost government more than it could have collected.

So wink-wink, nudge-nudge do you see how this movie was destined to end?

Oh BTW I have to confess that I am a lawyer.

RossK said...


Very interesting.

So, if so, that would mean that there are itemized invoices of the lawyers' fees in the hands of the gov't.

With subtotals and everything.

That should add up to the magic number, right?

Sure hope Mr. Doyle gets those/that.

On the wink-wink/nudge-nudge matter...If that really did happen (which is what Mr. Plant, in effect, says did happen) would that not mean that the boys were, in effect, offered money for their plea, before the fact.

So, from the perspective of you lawyerly types...

If it really happened like that, would it be legal?


off-the-radar said...

I must respectfully disagree with your comments.

If the government could have punitively stripped Basi and Virk of every asset they would have. This is a government which chases down welfare recipients for every nickle and dime, regardless of costs expended in the clawback effort.

Basi and Virk were paid off so the trial wouldn't continue.

kootcoot said...

Eleanor, IANAL also, but I'm with off the radar......they go after welfare and disability clients for overpayments that are due to government error, and these are people who can hardly afford to LIVE...........The costs of recovery must heavily outweigh the amounts recovered!

If only the hounded welfare client could blackmail the Welfare worker or supervisor, then we would have a Basi-Virk Situation. Then maybe the recovery would be waived way down the ladder of authority!

Ross, I was wondering if you (being in medical research and all) had any opinion about this recent wave of firings in the Ministry of Health, which seems to me to be possibly getting rid of some who were thorns in the side of Big Pharma.

Colin E said...

The 'soft' sentences of 2 years less a day to be served 'at home' with all kinds of stepping out provisions also stinks. If B & V were acting alone, they should have been sentenced to serve time in custody. The forgiving of their legal fees, the soft sentences, the signing of non-disclosure documents and all just before key 'former' Liberal cabinet ministers were about to testify under oath casts a dark pall over Collins, Reid, Clark, Campbell 'et al'.

G West said...

There is no doubt that:
(a) The defendant's lawyers provided itemized bills for their time on a monthly basis. The Ministry has a protocol for establishing a retainer agreement for legal services and, in every case, spells out very carefully the way in which these accounts are to be paid. It establishes the hourly amount paid to each lawyer, each legal assistant, how much can be billed for travel, printing, photo copying & etc.

The monthly interim bills are submitted by a date certain (usually the 10th of the month following) and are required to contain details of the work done and the hourly (and part hourly) amounts billed.
(b) There is also no doubt that these conversations - about guilty pleas (as Plant's own words prove) were initiated by the prosecution...
(c) Anyone who believes that there is no connection between the forgiveness of the indemnity (which had been registered against the property and future earnings of the accused and is another integral part of the agreement under which the defence lawyers were paid)) and the negotiation of the guilty pleas (and the sentence) is naive.

RossK said...


An interesting point of view that is hard to argue with...Presumably an important part of any and all wink-winking and nudge-nudging that may, or may not, have occurred (and showed up in the agreed to 'statement of facts')


Thanks for the info GWest. Is it your understanding that those itemized bills are a part of what Mr. Doyle is requesting?


Lew said...

Mr. Plant says, “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.”

How does Mr. Plant know this? Was he there; or is he taking someone’s word for it as we have been asked to do after first guessing whose competing word to trust? Did he get access to documents not available to the public or the Auditor General? Under what authority?

He says the fee waiver discussion was entirely separate from the special prosecutor. Let’s pretend he is right. The special prosecutor was appointed under the Crown Counsel Act, and was given a specific mandate in writing to conduct that prosecution. The Act stipulates that any subsequent direction with respect to any matter within that mandate must be in writing and must be published in the Gazette. It also stipulates that the decision of a special prosecutor with respect to any matter within his or her mandate is final.

It appears then, that rather than instruct the special prosecutor to handle the plea considerations (Plant says that there is no way the defendants would have pled guilty without the waiver), and risk his decision to deny the deal, they simply kept the information from him. Hiding it from him also removed the bothersome lawful obligation to publish it in the Gazette. Or did it? Isn’t negotiating separately with the defendants on plea considerations without telling the special prosecutor who has that mandate contrary to the intent of section 7 of the Crown Counsel Act?

The point is that the determination of whether there was prior inducement shouldn’t be up to us to decipher from snippets of what we’re allowed to see. It should have been up to the trial judge when determining whether or not to accept the pleas. But they simply held the information from her too. They must be really proud of themselves.

RossK said...

Thanks very much for your detailed and well thought-out opinion Lew.

Regarding the last part about the possibility that someone was keeping stuff from the judge...I must confess to not being up to speed on that aspect of things. Can you fill us in a little more on why you've come to that conclusion?

Thanks again.


RossK said...

This just in from noted digger, blogger, and sometime commenter 'round here, NVG...

May we take a small step back here RossK?

For example, back on the day that The Honourable Associate Chief
Justice MacKenzie made her decision on sentencing of Basi and Virk,
she said:

"2] Their changes of plea are the result of a negotiated agreement
between Crown and defence
who make a joint submission to the
Court; that is, Crown and defence counsel agree on what are fit
sentences for these offences."

"..are the result of a negotiated agreement"!!!!

And, in just over a month from now, Dave Basi and Bobby Virk,
walk away, FREE.

(apologies for posting NVG's comment myself. Seems there are gremlins in the spam catching apparatus...will try to fix. If anyone else is having trouble with that, please give me a shout - Email address is on the profile page which you can reach at the top left corner of the front page.

Lew said...

The Assistant Deputy Attorney General informed me in writing that “I can confirm that the plea deal was arranged by the special prosecutor who had no knowledge of any discussions regarding the issue of legal fees for the two defendants.”

The oral reasons for sentence given by Justice Mackenzie include:

“25] The law requires that a sentencing judge accord a considerable degree of deference to a joint submission. I recognize that the joint submission in this case was the product of lengthy negotiations over a considerable period of time by experienced counsel.”

How could the judge know about the waiver, and decide whether it affected the pleas if it wasn’t stated in the submission? It is abundantly clear that the swap of legal fees for guilty pleas was not entered into court, because the judge made absolutely no reference to it anywhere in her reasons for judgment, despite canvassing all manner of other factors (such as remorse) which affected the pleas. She said, “I am satisfied that the fine imposed on Mr. Basi is an appropriate form of punishment. In addition to having a denunciatory effect, it provides a means by which he is required to take responsibility for the consequences of his conduct, and it provides at least a partial means by which his rehabilitation may be measured.”

If she thought $75,000 was denunciatory and provided a means for him to take responsibility, don’t you think she might have taken $6,000,000 into account on the other side of the ledger had she known about it?

kootcoot said...

Of course Mr. Beradino's appointment as "oh so" Special Prosecutor (more like Campbell Gang Consigliere) was questionable, at the least, like pretty well all SP's under the Campbell Government who basically exonerated all MLAs or Cabinet Ministers under investigation.

Of course it also seemed a little too convenient that Justice Bennett (who had perhaps lost brownie points by acquitting Glen Clark, who we should remember we were reminded OVER and Over would need to pay his legal expenses if found guilty - and pleading guilty is a finding of guilt, even an Alfred plea. The whole tone of the trial changed with the arrival of Annie Mack as well as the public's access to information concerning this theft of public assets.

The whole Ledge Raid and resulting Kabuki play stunk up the province from the get go, as soon as Anneal, Dave and Bob were treated differently months before charges were laid (some on paid leave for a few months and at least one fired outright and immediately - by a premier who had no idea about anything, so what was the criteria?), and the stench hasn't gone away.

I've always been astounded that Paul Nettleton was able to support Christy for leader of the party, since he was the only LIEberal to question the deal and she was in it up to her fat little neck.

Meanwhile, Ding-Dong Jr., John van Dongen who sat silent for years about BC Rail is now leading the effort to get to the bottom of at least part of the stinky situation.

RossK said...

Thanks Lew.

I had forgotten that passage in the 'letter'.


Anonymous said...

Anyone with an eye and an asshole who had followed this sorid mess for the years leading up to the corrupt court debacle knew the fix was in when the case was delayed just as Gary (the ferret)Collins was about to testify. He and the slimeballs in Government and the Courts knew the jig was up if he was forced to answer any questions. The Liberls were run to the edge of the cliff by defendents lawyers and the tax payers were taged with 6 million in lawers fees. Two defendants were given a token house arrest and the third defendant, who possibly could have blown the case out of the water, was given nothing.

Anonymous said...

In a word, Yes...

G West

cfvua said...

Let's just hope that something is unearthed that will lead to convictions through a thorough judicial/public inquiry. Enough material exists right now for any breathing resident to decide for themselves that the process was crooked from the very start. Remember, Campbell and Mclean had the whole affair planned prior to 1996. The payoff for silence still pales in comparison to the Great Train Robbery. That we were lied to about in 2001.