Friday, June 27, 2014

Railgate Resurfacing (Again)....The 'Waiver' Wire.


They were actually talking Railgate, more specifically the six million dollar deal that suddenly ended the trial just as Gary Collins was set to take the stand, in the legislature this week.

And while the VSun's Mr. Palmer chose to focus on the apparent lack of 'political interference' and/or ministerial oversight into the making of the deal, what still sticks in my craw is how nobody in the corridors of power, the judiciary, or the puffed-up professional punditry seems willing to take real issue with the bolded bit below (taken from Mr. Palmer's latest):

...The auditor general reached a finding of “no political interference” in the decision to indemnify the duo with what amounted to a blank cheque for their legal costs and in the followup decision to waive repayment of those costs despite a pending guilty plea...

Why does the 'decision to waive repayment of...costs despite a pending guilty plea', in my opinion, stink to high heaven?

Because, as Mr. Geoff Plant wrote on his  blog back in 2012 when John van Dongen was raising the matter in the legislature, there was an 'understanding' about how it would all go down:

"...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..."


Go back up and read the bolded bit from Mr. Palmer's latest, above one more time. Please note that what actually happened was the opposite of what Mr. Plant said. Officially, the waiver of the fees came first and the guilty pleas came second.


Way back when (i.e. 2012) Paul Willcocks and I argued, in the comments to Mr. Plant's post, that, given the real order of things, the six million dollar deal/waiver was, in effect, a 'prior inducement' for the accused to plead guilty:

I note that Kevin Falcon disagrees and says the decision to cover the legal fees was appalling.

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.
  1. 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'?

Mr. Plant did not agree. He argued that what really mattered was not the order of how things actually when down but, instead, how they were 'offered' and 'discussed':

  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.

Don't you just love it when things get put on the record.

Paul and I responded 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.
  2. 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.
Why does all of this matter?

Well, in my opinion a prior inducement is akin to a bribe.

And that is why I'm still exercised about this thing.


Interestingly, one of the other things that came out during this week's discussions by the legislature's public accounts committee is that the apparatchik's came to so see the indemnity, wherein the accused would have to pay their court costs if they were found guilty, as an 'impediment' that they decided to 'remove'.

Again, back to Mr. Palmer's report:

...“There were conversations between defence council and the special prosecutor,” replied auditor general staffer Amanda Welch. “As we understand it — the special prosecutor approached with a suggestion. Defence counsel reported that although they did not think, even if the trial went through, their clients would be found guilty, they didn’t want to even offer the plea to Mr. Basi and Mr. Virk unless there was a (waiver). “

The defence then approached the legal services branch in the ministry of the attorney general, which had custody of the indemnity arrangement. “So legal services branch looked at it that the money that would be owed is actually an impediment to a plea deal,” continued Welch. “So they realized that, in some ways, indemnities are making a perverse incentive and agreed to remove that.”...

Seems to me that this aspect of the story actually supports my opinion given above in that the prosecutor came forward only with a 'suggestion' (i.e. not an actual plea 'deal') that led to a decision to remove the 'impediment'.

Especially when you recall the context of what was about to go down in the trial just before the plug was pulled.

That, of course, is missing entirely from Mr. Palmer's story who only notes that '42 witnesses' were still to be called.

We who would be cultists, however, do remember the actual names on that Railgate Top 40.


I wrote all about Mr. Willcocks' and my interactions with Mr. Plant, back in the day (other 'cultists' were there too)....Here.
Interestingly, the very fine public servant, Mr. David Loukidelis, who helped broker the deal, and whose written statement was the basis of Mr. Plant's argument, resigned just days after Mr. van Dongen brought the matter up in the ledge back in 2012...
Also interestingly, to the best of my knowledge no one in the proMedia has written about the fact that the other very fine (also now former) public servant who helped broker the deal, Mr. Graham Whitmarsh, once apparently worked at the very same, very fine (now no longer) local airline as the former finance minister who was all set to take the stand right before the deal went down... No potential conflictyness  there, right (that just might make all this current searching for ministerial connections by the Auditor General moot)?.....Of course not....
But, again, what do I know....After all, I'm just a cultist, not that there is, according to the good Mr. Palmer at least, 'anything wrong with cults'...



Anonymous said...

Of course, you are not the only one exercised about the deal. It was, and is until dealt with, a travesty. Its a huge blinking neon sign as to what has gone on and is going on in BC

Wayne in Victoria

Lew said...

Again, the “understanding” was not because of the Agreement to Release, as the Auditor General says. The Agreement to Release hadn’t and wouldn’t be signed by the Crown until and unless the defendants delivered their part of the contract by pleading guilty before the court. The “understanding” was because of the contract (the October 14, 2010 agreement) they had in their back pockets requiring the Crown to sign the agreement to release if they pleaded guilty and were convicted. That is the inducement; its offer made by the Crown in writing for acceptance by the defendants, and it was clearly concluded before the guilty pleas were offered to the judge, who was the only authority who could accept them.

Palmer’s current glossing-over of the real issues relates to the consideration of the Auditor General’s report on special indemnities by the Select Standing Committee on Public Accounts in Vancouver on June 24th. Take a Gravol before reading the transcript of the proceedings. Some of the committee members showed up to ask such probing questions as, “What’s a special indemnity?”, thereby revealing that they hadn’t bothered to read the audit report or the report conducted by Stephen Toope before struggling into the room. MLA Throness even attempted to have the committee congratulate the government on its role in creating this atrocity in the first place!

MLAs Eby, Corrigan, and Simpson were notably more interested in getting some answers, but let the witnesses get away with red-herring tosses that seemed well practiced, especially the nonsense claiming that the original indemnities did not constitute loans. Using the rationale provided, the Agreement To Release wouldn’t be valid either, but nobody took them to task on it.

kootcoot said...

It is difficult to believe that the previous Premier Clark would have enjoyed a waiver of his legal costs if he had been found guilty of anything to do with his deck in East Van. Indeed Gordo was up on his hind legs demanding that Glen repay his legal fees if found guilty.

But hey, there is one law for dippers and normal folk and essentially no law to which Gordo and his female doppelganger Christy are accountable.

RossK said...

Thank-you Lew, again, for your in-depth knowledge and clarity.



But will it ever...

Be 'dealt with', I mean.



Well, you know...

Mr. Campbell himself, despite having only having gone to law school for four days, is a doctor of laws now.


Anonymous said...

AGT used to do some SUPERB reporting on this (despite - or because of - his bombastic ego) before he left the public internet.

Some very revealing info in his archives that could have made for an eventful meeting... if only anybody had bothered to do their homework.

G West said...

Of course, simply looking at the words used by defence counsel would have been too difficult for either Mr Palmer (or, apparently, the auditor general's office). In fact, on the face of it there is no doubt that Basi and Virk pled guilty in a 'deal' for the forgiveness of their legal fees AND a minimal 'sentence' which would not (and has not) significantly hampered their ability to get on with their lives about which certain real estate professionals in Victoria could testify.

One does wonder though, whether or not the former occupant of the office of auditor general ( a certain Mr Doyle) whose contract was not renewed (and who is, i understand, currently in litigation with the crown) might have led his office to a different conclusion on this file.

Sometimes you just have to pay to get what you want!

RossK said...

Excellent point G West.

In an analogous way, it's pretty hard for anyone who has being paying attention to not wonder if the conflict commissioner's recommendations regarding Ms. Clark's 'activities' would have been different if his last name wasn't Fraser.