Thursday, November 6, 2014

The Basi Virk $6,000,000 Exemption Rule Book

UPDATE:  OCTOBER 9, 2015: BC Mary Post:

Tuesday, October 19, 2010

As for the "accredited" others, I'll only  cite Bruce Hutchison writing in National Post specifically because his column dated Oct. 18, 2010  titled "Too quick, too easy end for BC Rail trial" contains this honest remark:

... For their defence strategy, reliant on rumours, innuendo, and one or two malleable members of the press whom they used to promote an agenda of obfuscation outside the courts ...

In the Settlement of the Plea bargain by Basi and Virk, was the Treasury Board asked to turn a blind eye to the $500,000 limitation?
Note I:  the Limit during the Basi Virk settlement was $250,000

Note II:  The required bump up, effective October 2 2014 to half a million dollars, is it due to a before-the-court case regarding  eg.  Health Ministry firings?

eg.  Information and Privacy Commissioner Decision

June 24, 2014   Public Accounts:
The following witnesses appeared before the Committee and answered questions relating to the Office of the Auditor General’s Report An Audit of Special Indemnities (December 2013).
Office of the Auditor General
• Russ Jones, Acting Auditor General
• Sheila Dodds, Assistant Auditor General
• Amanda Welch, Manager, Legal Services

Ministry of Justice
• Richard J.M. Fyfe, Q.C., Deputy Attorney General

BC Public Service Agency
• Lynda Tarras, Deputy Minister

Ministry of Finance
• Linda Irvine, Executive Director, Risk Management Branch

K. Corrigan: I wanted to ask a couple of questions specifically about appendix B: "Administration of the special indemnities for Mr. Basi and Mr. Virk." It says: "Based on our interviews and file reviews, we found no evidence of political involvement in the decision to amend the indemnities to release Mr. Basi and Mr. Virk from the obligation to repay the indemnity costs if they were found guilty." [0955] It also says the following sentence. This is on page 46: "Our review also found evidence of public servants diligently keeping the decision to amend the indemnities separate and distinct from the plea negotiations with the special prosecutor that concluded the trial." I have a couple of questions on that. The first one is…. It's very clear earlier on page 44 — and I just want to publicly get it on the record — that if the agreement had not been reached that they would not have to pay back, that they didn't get a special indemnity, then the guilty plea would not have happened. Is that correct?

R. Fyfe: I am actually not in a position to answer that question. I understand that the requirement to repay was viewed as an obstacle to discussions with the special prosecutor, but they were conducted separately.

K. Corrigan: Perhaps I can ask the Auditor General, because this report makes it clear that there was an obstacle and that there wouldn't even be discussion of a plea negotiation if this matter, the issue of having to repay legal costs, was not dealt with. I'm just wondering how the Auditor General's office came to that conclusion then, because it's included in the report.

 A. Welch: We did meet with Mr. Basi and Mr. Virk and counsel for the purpose of clearing the report, which is a solicitor-client privilege. We did confirm, both in the evidence that we had during the audit and with counsel, that this was the case.

 K. Corrigan: So that was in a direct conversation with Mr. Basi and Mr. Virk, that if they had not received that information, if they had not received that assurance, they would not have pled guilty.

A. Welch: Well, as we make clear in the report, the counsel negotiated the amendment to the special indemnities before the plea deal was even presented to their clients.

K. Corrigan: Before it was presented.

A. Welch: That's right.


Choo Choo Thing


BC Rail Related Comments
  by Lew: 

 The Six Million Dollar Deal...The Order Matters

Keep it Real     Harvey Oberfeld 

Full BC Rail Story NOT Yet Told

January 9th, 2014 · 34 Comments


  Alex G. Tsakumis

Lew says, alex g. tsakumis, bc rail


Norman Farrell 

Lew says, Northern Insight / Perceptivity, BC Rail


Laila Yuile

Lew says, No Strings Attached, BC Rail


Ian Ried

The Real Story 

Van Dogen's BC Rail Questions


Norman Farrell



Lew said...

You're on the mark regarding the need to bump up the threshold due to the health ministry shenanigans, but I'm intrigued by the implication the Crown Proceedings Act came into play in the Basi/Virk payoff. That would have to mean there was a claim or action brought against the Crown for the $6.2 million.
Is there evidence of that?

North Van's Grumps said...

Jones said between 1996 and 2011, B.C. governments spent more than $11 million on special indemnity agreements approved for just over 100 people, of which $6.4 million went to defend Basi and Virk.


"In the case of Mr. Basi's and Mr. Virk's indemnities, senior public servants deliberately didn't consult with ministers or the premier prior to making these indemnity decisions because they did not risk compromising the administration with political influence,"

Lew, surely the money wasn't turned over to Basi and Virk to pay their lawyers, it had to go through the Court????

Are we looking at a similar/same criteria for senior public servants in the Health Ministry firings? Will they be making, have made, the indemnity decisions by settling out of Court? Right now there's a sense of political influence already.

Anonymous said...

Lew said...

The counsel for Basi and Virk were paid under two separate agreements set up as schedules to the indemnity agreements. There were legal representation agreements set up with defence counsel to establish the conditions and rates. And there was a review agreement set up with an independent lawyer in Victoria to review the invoices submitted for payment as the trial progressed. At no time did the defendants pay any money to their defence counsel. The legal fees were all paid by the government under the terms of the three separate agreements as the trial progressed.

The issue is that under the terms of the original indemnities those amounts (eventually $6.2 million) were considered a loan to be repaid if the indemnified were convicted and remained convicted after all rights to appeal were exhausted. But Graham Whitmarsh signed two Agreements To Release that bound the Province to give up any claim to the $6.2 million that had been paid to defence counsel on behalf of the defendants. He did so as a result of the obligation established by the October 14, 2010 agreement signed by the Assistant Deputy Attorney General and the defendants wherein they agreed to plead guilty in exchange for the waiver of the accumulated legal fees.

There are many problems with the way this was done, and the Auditor General’s report on it was nothing more than a long luxurious kiss of the government’s nether regions. And as you know, there are a lot of nether regions involved. I sent him a fifteen-page letter of questions on it, to which he replied that he could not answer except to the Legislature through the Select Standing Committee on Public Accounts. I sent the Committee those questions, along with about ten more, and they were stymied by the BC Liberal majority from asking those questions. MLA Corrigan moved a five-page motion attempting to have Whitmarsh and David Loukidelis appear to answer questions arising from the audit, but it was voted down by the Liberals.

So, with questions about the unauthorized forgiving of a $6.2 million loan, the serious questions about a probable illegal inducement, an evident conspiracy to withhold material information from the court, and the fact that the way the waiver was accomplished leaves serious doubt as to whether Whitmarsh had the requisite authority to sign the releases which “had the effect” of amending the indemnities, the Committee is powerless to get us any answers.

I am currently pursuing other avenues to redress that outrageous circumstance

North Van's Grumps said...

Agreements To Release, Graham Whitmarsh, Basi, Virk

Public Accounts Committee, 40th Parliament - Legislative ...

W for Whitmarsh, Graham Role in government coverage of Basi-Virk legal fees (Corrigan)

9:0955-1000, 9:1040, 9:1330 (Dodds, S.) 9:0955-1000, 9:1315 (Fyfe, R.) 9:1010 (Simpson) 9:1010

A. Welch: We did meet with Mr. Basi and Mr. Virk and counsel for the purpose of clearing the report, which is a solicitor-client privilege. We did confirm, both in the evidence that we had during the audit and with counsel, that this was the case.

K. Corrigan: So that was in a direct conversation with Mr. Basi and Mr. Virk, that if they had not received that information, if they had not received that assurance, they would not have pled guilty.

A. Welch: Well, as we make clear in the report, the counsel negotiated the amendment to the special indemnities before the plea deal was even presented to their clients.

K. Corrigan: Before it was presented.

A. Welch: That's right.

K. Corrigan: I want to ask a question. I'll get back to that, and I'm sure my colleagues will have more questions on that. The statement "We found no evidence of political involvement" — I'm wondering who exactly the Auditor General's office talked to about that, that could allow the Auditor General to come to that conclusion. I guess very specifically, were there discussions with Mr. Loukidelis, Mr. Whitmarsh, and were there discussions with the minister?

North Van's Grumps said...

Then there is another "W" under Hansard:

Welch, Amanda regarding Basi/Virk exemption along including questions, observations from David Eby.

Eby, David listed words of wisdom .....

Lew said...

It’s interesting that defence counsel, the Auditor General’s Manager of Legal Services, former Attorney General Geoff Plant, and anybody with an IQ over room temperature knows that there was no way Basi or Virk would have pled guilty without the fee waiver. But Mr. Fyfe, who signed the agreement binding the Province to kiss off $6.2 million of our money if they entered guilty pleas and kept silent about the deal, says he can’t answer the question. Wouldn’t you think he would have nailed that down unequivocally to his satisfaction before signing the agreement? Why blow off the money if there was a chance they’d take the special prosecutor’s deal without his?

I wonder if it has anything to do with the fact that when somebody won’t do something you want them to, and you send them a letter offering something they want if they’ll do it; it might rightly be viewed as an inducement.

North Van's Grumps said...

Basi and Virk are free men, now. Why doesn't some enterprising, young, no baggage journalist ask them if they were induced to plead guilty?

Lew said...

The special prosecutor and the defendants and their counsel placed a statement of facts and a joint submission in front of the judge. Neither included the fact that the defendants and the Assistant Deputy Attorney General had signed a separate plea agreement involving $6.2 million, and if that agreement had not been in place, there would be no guilty pleas. The judge stated in her oral reasons for sentence, “I recognize that the joint submission in this case was the product of lengthy negotiations over a considerable period of time by experienced counsel,” and “Joint submissions by experienced counsel are entitled to deference. In the present case, the joint submission neither offends the interests of justice nor is contrary to the administration of justice.” She also said, “I am satisfied that the [$75,695] fine imposed on Mr. Basi is an appropriate form of punishment.”

What would she have said had she known that the joint submission omitted the fact that there was another plea deal worth over $6 million in the defendants’ favor tied directly to the pleas and the guilty pleas would never have been entered except for it’s existence?

Had she known about the October 14, 2010 agreement, the judge’s duty under section 606 of the Criminal Code of Canada would have required her to make a very important determination in order to legally accept the guilty pleas. She would have had to decide whether the written agreement for waiver of $6 million in legal fees only if Basi and Virk entered guilty pleas and only if they remained silent about it rendered the pleas involuntary by legal definition. There is substantial legal precedent that holds a plea involuntary if it is obtained by hope of advantage held out by a person in authority. The judge did her part by asking each of the accused if they were making the pleas voluntarily, and they both answered in the affirmative.

Assuming Basi and Virk were well advised by their counsel, one could ask whether the defendants answered truthfully. That might affect their answers if approached by an enterprising, young, no baggage journalist. If such a person even exists these days.

North Van's Grumps said...
Pleas permitted

606. (1) An accused who is called on to plead may plead guilty or not guilty, or the special pleas authorized by this Part and no others.
Marginal note:Conditions for accepting guilty plea

(1.1) A court may accept a plea of guilty only if it is satisfied that the accused

(a) is making the plea voluntarily; and
(b) understands

(i) that the plea is an admission of the essential elements of the offence,
(ii) the nature and consequences of the plea, and
(iii) that the court is not bound by any agreement made between the accused and the prosecutor.

Marginal note:Validity of plea

(1.2) The failure of the court to fully inquire whether the conditions set out in subsection (1.1) are met does not affect the validity of the plea.

North Van's Grumps said...

Pleas involuntarily Hmmmm which leads to 3.7 Resolution discussions Section 29 which is linked to this: 3.4.1. Scope of sentence discussions

Lew said...

These are the type of discussions relied upon by the judge when she stated she was satisfied that the joint submission in this case was the product of lengthy negotiations over a considerable period of time by experienced counsel.

The issue is that the results of those discussions would not have even been presented to the defendants unless separate discussions between defence counsel and the Attorney General’s officials resulted in a deal tying the acceptance of the special prosecutor’s discussions and silence about it to a waiver of $6.2 million. That is a material fact that was withheld from the court. The court is entitled to rely on the fact that when a special prosecutor is appointed, he or she will handle the plea negotiations. All of the plea negotiations; not just those that defence counsel and the Attorney General’s ministry want disclosed to the court.

If the defendants would not have pleaded guilty unless the $6.2million was waived, and the agreement for the waiver of the $6.2 million was conditional on the guilty pleas on the counts and terms as required by the special prosecutor, the guilty pleas entered before the court were inextricably linked to the waiver of $6.2 million. And the judge should properly have been informed accordingly.

This reminds me of various times as my children and grandchildren were growing up, and the inevitable day arrived when the training wheels had to come off their two-wheel bikes. Much trepidation ensued on the first ride, but dad and later grandpa would always run along beside, with a hidden hand on the back of the seat providing undisclosed stability. The special prosecutor in this case had undisclosed hands on his prosecution when he thought he was doing it all by himself.

John's Aghast said...

I haven't the legalize to follow this dialogue, but I am EXTREMELY happy that somebody is still pursuing this investigation.
May I still entertain a smidgeon of hope that some person(s) will pay this huge misappropriation of justice?

I want my railroad back!

North Van's Grumps said...

John's Aghast

The rail bed is still OURS; the rail traffic upon which CNR rides could, should have been TOLLED per rail car passing specific geographical points (distance). Gordon Campbell's $1 (billion) is peanuts compared to that of a per crossing Toll over 990 YEARS.

John's Aghast said...

NVG: I understand about the road bed. What about all the adjoining real estate?
And I don't believe we ever received the billion dollars. Something about a tax credit with the feds? Where we put up a $250 million indemnity bond to ensure CN got their tax relief.
Is there any way we can determine what we really did receive?

And is it really, even remotely, possible that anyone will ever pay for this crime?

North Van's Grumps said...

Adjoining real estate to PGE?

PGE 1929 Report Part 1 229 pages with plenty of photographs too. The heavy lifting of just how much resources were available, starts on page 23.

CPR and CNR received 20 miles in real estate width on either side of the rail lines. So that they could cut down the forests to make rail ties, rail bridges and shoring for tunnels. Of course there were 'other' resources within those 20 X 2 = 40 mile width.... like gravel and the Arbutus Corridor.

North Van's Grumps said...

John's Aghast:

multiple Photos within 322 pages of the PGE land

North Van's Grumps said...

Everyone on the BC Liberal side of the BC Rail trial, including the Independent?? Auditor General, said that there was no political interference.....

Globe and Mail - Mark Hume - No wrongdoing in BC Rail.... 2013

"....An auditor appears to have written the final chapter in a corruption case that shook the government of British Columbia and dragged on through the courts for years.

In a report released Wednesday, B.C. Auditor-General Russ Jones concluded there was no political interference when the government decided to pay to pay $6-million in legal fees for Dave Basi and Bob Virk, two former ministerial aides who cut short what promised to be a sensational trial when they pleaded guilty to breach-of-trust charges in 2010."

How much information was required, relayed from the public servants, to the BC Liberal Government so that they "decided to pay"?

Or was it simply a matter of signing a blank cheque to get them off the hook?

How many other times has public servants, independent of elected officials, acted to help the BC Liberals out of their own self-made quagmire?

How many times has their decisions been used in the firing of Health Researchers?

John's Aghast said...

Thanks for the reference NVG. Unfortunately I'm out in the boondocks and don't have enough capacity to download the information.
I'm well aware of the gifts to CPR and CNR, but that was THEN. This is NOW. Circumstances change. But apparently not.
I've been reading and attempting to understand this case since it started
I thought it was a slam dunk that several people would be held responsible (whether they would be 'punished' was another issue)
Just how many countries do we have Consulate positions available? Enough to handle all the upcoming candidates?

North Van's Grumps said...

John's Aghast:

Google Search Criteria: Robin Mathews, BC Mary, BC Rail, Dave Basi, Bobby Virk

North Van's Grumps said...

John's Aghast:

"Robin Mathews", BC Rail Trial

Ray Blessin said...

The "Right Wing" figured out a long time ago that they can do what ever they want and it all "goes away".
There were right. We're done.

Lew said...

Like all of the traditional media types, Mr. Hume in the Globe article you cite simply leaps on the Auditor General’s report as vindication of the government without any critical thought. I had fifteen pages of questions on it, and lots more for the Legislative Committee. I copied Mr. Hume on my questions and asked him if he had the answers. He asked me to let him know what the Auditor General’s response was. Not helpful. Here are just a couple of quotes from his article:

“The two men pleaded guilty only after the government waived the repayment requirement, but Mr. Jones said the waiver and the plea bargain were handled separately.”

WRONG. The government waived the repayment requirement only after the two men pleaded guilty, as spelled out clearly in the October 14, 2010 contractual agreement. It’s an important aspect of this issue. The agreement specifically stated the guilty pleas had to be made first, on the counts and terms as required by the special prosecutor’s plea bargain. And since the waiver agreement incorporated the special prosecutor’s plea bargain and defence counsel negotiated both agreements, “handled separately” is a stretch.

“The audit team found consistent evidence that decisions were made by public servants, independent of elected officials, and that ministers were informed of decisions only after the decisions were made and implemented.”

WRONG. The Deputy Attorney General provided a public statement on October 20, 2010 in which he says he informed the Attorney General on October 08, 2010 about his decision to recommend that liability for defence costs be exchanged for guilty pleas. On that date the decision was far from being implemented, and according to the audit report, negotiations hadn’t even begun. Between that date and the date the deal was finalized to accomplish the exchange, the Attorney General had the authority, opportunity, and perhaps the duty, to act. He was involved by being informed; the question is what influence he had on the deal, either through acquiescence or otherwise.

The Special Prosecutor was appointed in accordance with the Crown Counsel Act under provisions designed to remove any suspicion or opportunity for political involvement in prosecutorial matters, especially by the Attorney General. But nothing in the Act precludes the Attorney General from involvement. Section 5 of the Act states:

5 If the Attorney General or Deputy Attorney General gives the ADAG a direction with respect to the approval or conduct of any specific prosecution or appeal, that direction must be
(a) given in writing to the ADAG, and
(b) published in the Gazette.

So he could have acted despite the existence of a Special Prosecutor if he was not comfortable with removing the liability in exchange for the pleas. And he had almost a week at minimum to act. But the Auditor General didn’t interview the Attorney General, Deputy Attorney General, Assistant Deputy Attorney General, or Deputy Finance Minister, who were the key officials involved in the deal. That’s the equivalent of looking for your car keys under a streetlight where the light is better when you know damn well you lost them down the block where it’s dark.

Anonymous said...

What would of happened if BCRail trial went to court without plea.

Why did the judge get parachuted out,promoted,during trial.

Any Basi/Virk interview recently.

Lew said...

Q. What would of happened if BCRail trial went to court without plea.
A. Some big players would have been forced to testify under oath about their roles in the sale.

Q. Why did the judge get parachuted out,promoted,during trial.
A. To be fair, that was a long trial, and it may have been unreasonable to impair her career progression because of it. I would be more inclined to have a critical look at the actions of her replacement; especially with respect to the plea deal.

Q. Any Basi/Virk interview recently.
A. None reported. They have a lot of reasons to keep a low profile. And they have fiercely resisted any information being released regarding the deal, involving lawyers to fight me and at least one other applicant last year in a written inquiry by the Information Commissioner into access to related documents. They won that battle. But the war isn’t over.

John's Aghast said...

Hang in there Lew. I'm sure that I'm not the only one pulling for you.

North Van's Grumps said...

@Lew Would it be acceptable to you if I were to gather up all of your comments on BC Rail, no matter which blog? eg. BC Mary, Laila Yuile, RossK (the Pacific Gazetteer, Northern Insight / Perceptivity, Harv Oberfeld, Ian Reid, and either add it to THIS Post, or create a new POST?

Lew said...

@ North Van's Grumps:

No objection here. It should be noted however that this is an ongoing saga, and earlier posts were made with the info available at the time. For example certain writings to me from the ADAG in 2011 proved less than reliable and it was only later that I determined I'd been misled. I mistakenly assumed the Attorney General's ministry could be trusted. Silly me; but you know the saying - "Fool me once...

North Van's Grumps said...

The dust settled on Basi and Virk shoulders on October 18, 2010. I was in the Court Room on that fateful day which was loaded with RCMP officers who were BANNED from entering the room by the original Judge, which meant of course that there was a conclusion coming the same day.

Who told the RCMP that they could be in the Court room? and When were they told?

There was two weeks of delays before October 18. September 30 would have been the last day of sitting, a Thursday, not Garbage day Friday. Could it be that negotiations for a change of Pleas happened a week or two earlier or more?

Here is the money quote from Neal Hall's first-past-the-post report in the VSun:

"The Crown has just advised that they are reorganizing their case to decrease the length of this trial substantially," B.C. Supreme Court Associate Chief Justice Anne MacKenzie explained to the jury.

North Van's Grumps said...

Vancouver Sun

Lew said...

What we were told by Deputy Attorney General Loukidelis is that defence counsel showed up October 05, 2010 at Legal Services Branch with a proposal from the special prosecutor in hand. Presumably the special prosecutor would have been working on the details for some time before presenting it to them, and they would have taken time to carefully consider it before approaching Legal Services. So it is not unreasonable to assume the plea deal was under consideration in September.

On October 12th the judge says the special prosecutor advised the court he would be drastically reducing his witness list and folding his tent early. Why October 12th?

The evidence from several sources says there was no way the defendants would plead guilty unless the $6.2 million was waived. The Auditor General says the defendants didn’t even see the Special Prosecutor’s proposal until after the waiver for the $6.2 million had been negotiated (not agreed to by the defendants, but negotiated). The Agreements To Release attached to the October 14th waiver agreement were dated October 12th.

The Auditor General’s report states, “On October 20, 2010, the Deputy Minister of Finance signed the Agreements to Release, the last step required to conclude the changes that had been negotiated between Legal Services Branch and defence counsel over the preceding two weeks.”

There were a lot of negotiations going on involving defence counsel and Legal Services Branch between the time the special prosecutor tendered his plea proposal and the pleas were entered in court. The Auditor General bends over backwards in his report to support the special prosecutor’s assertion he was completely unaware of any of this. So what did he think was going on all that time?

The inescapable conclusion must be that he assumed the defendants and their counsel were not willing or ready to accept his offer as it stood, and negotiations between his office and the defendants were still on. Indeed, MLA John van Dongen swore an affidavit that Virk told him he did not agree to plead guilty until 20 minutes before the start of Court on October 18, 2010 and he did so extremely reluctantly. And the special prosecutor himself says that he didn’t see a copy of the agreed statement of facts, signed by the Crown and defence, until 9:40 a.m. — 20 minutes before court was scheduled to resume hearing the testimony of a witness.

Did the special prosecutor, not aware his original proposal was acceptable to defence counsel except for the fact it would trigger liability for the $6.2 million, sweeten his proposal during the time the defence was negotiating separately with legal services? In other words, did Legal Services’ meddling in plea negotiations not only constitute an inducement, but also result in a better deal for the defendants on sentencing recommendations than necessary over the one originally offered?