Why the BC Rail deal sucks. And why you should care

Special Prosecutor Bill Berardino

It all started with a question from Michael Bolton – representing David Basi – to Martyn Brown late last June.

Bolton began asking Brown about the relationship between lead RCMP investigator Kevin DeBruyckere and BC Liberal Party Executive Director Kelly Reichart.  They are brothers-in-law.

Immediately Special Prosecutor Bill Berardino jumped up to object to Bolton’s questioning.  The jury was excused and the longest legal wrangling delay in the trial began.  With the jury excused the wrangling was under publication ban.  What happened that last week of June in Courtroom 54 has never been reported.

I believe it set the stage for the deal consummated Monday morning, the deal that paid off the defendants and stopped the trial.

Berardino’s argument behind closed doors?  He claimed that the pre-trial agreement signed by the defence meant questions about investigative bias were inadmissible.  Berardino went further.  He claimed the pre-trial agreement severely limited the defence’s ability to raise any bias issue, any issue about defective process, any issue that undercut the prosecution’s statement of facts.

Regarding the deBruyckere/Reichart relationship Berardino declared that “the issue of effective bias of the investigation is not before the jury” as a result of the pre-trial agreement.

That meant the defence couldn’t make a point of the close familial relationship between deBruyckere and Reichart.  They couldn’t argue that the relationship was a conflict of interest that skewed the investigation.  Couldn’t enter supporting evidence such as wiretaps or evidence of deBruyckere meeting Reichart and Reichart subsequently meeting with Premier Campbell to debrief him on the state of the investigation.

The same was true, argued Special Prosecutor Berardino, for much of the defence’s case, such as the questionable nature of the Bornman immunity agreement – the one that allowed him to escape a criminal charge of offering a bribe, in return for testimony against the defendants.

Bolton’s response behind the closed doors of Courtroom 54 was that the Special Prosecutor was misreading the pre-trial agreement in an attempt to restrict the defence and ensure large chunks of the defence’s case – and supporting evidence – was ruled inadmissible.

As the defence put it, the pre-trial agreement was “not meant to fetter the cross examination for example regarding Mr. Bornman’s immunity agreement, you want to be able to ask Mr. Bornman about his immunity agreement.”  Berardino argued that kind of questioning was inadmissible.

A week later, with the jury back, Michael Bolton got up and asked Martyn Brown about Kelly Reichart and Kevin de Bruyckere.  The defence won the closed door argument about admissibility.  The Special Prosecutor lost.

That meant the way was clear for the defence to question Gary Collins, even Gordon Campbell amongst others, about these issues.  The way was clear to ask about Reichart and deBruyckere and about the RCMP steering the investigation away from Gary Collins.  More importantly, the way was clear to introduce evidence supporting the claim.

We know that there are wiretaps of Collins.  We know he was a subject of the investigation in 2003.  Then he wasn’t.  We know that he was to be questioned over Christmas of 2003 then he wasn’t.  We don’t know why.

Are there wiretaps of Reichart and Collins?  Is there an RCMP report regarding the deBruyckere and Reichart relationship?  What about the evidence the RCMP gathered at the Villa Del Lupo meeting with Omnitrax?  What was it that the defence wanted to ask Gary Collins?  What evidence did they have to support their questions?

There’s no doubt they had some.  Justice Elizabeth Bennett ruled that much of what the defence had received from the government was relevant to the case.  Some went directly to the question of innocence.

With the end of Brian Kennings pitiful testimony, Gary Collins was next on the stand.  The prosecution knew when they lost the admissability argument in June that this was going to be a difficult moment.  And in a two-week period leading up to the October 18 trial resumption they lowered their plea bargain offer from four years in federal prison to two years of house arrest with lots of allowances, while the government kicked in $6million and a non-disclosure agreement to sweeten the deal.

Here’s why you should care.

This smells, more than Gomery, more than Mulroney/Schrieber.  This stinks. The government used $6 million of your money to make a deal that shut down a trial and kept them out of trouble.

Shutting down the trial means you will never be able to know what really went down with the BC Rail privatization.  You’ll never know whether the deal was above board or whether the BC Liberals worked the deal to hand your railway to CN, a company chaired by Gordon Campbell’s chief fundraiser.

And the hysteria from Gordon Campbell and government defenders like Ian Mulgrew?  That shows the smell has even reached them.

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13 Responses to Why the BC Rail deal sucks. And why you should care

  1. lynx says:

    Outstanding work and analysis, Ian.

    ” He claimed the pre-trial agreement severely limited the defence’s ability to raise any bias issue, any issue about defective process, any issue that undercut the prosecution’s statement of facts.”

    This restriction regarding the mention of bias in the pre-trial agreement is monumentally revealing in itself – even in terms of the Special Prosecutor. As Robin Mathews has often noted;

    “the violation of process in his appointment makes his every action in the case possess the potential for the perception of bias on his part by observers. That ‘potential for the perception of bias’ on his part makes (and made) his presence in the courtroom improper and unacceptable, for justice must be done and it must be seen to be done and cannot be so if there is the potential for the perception of bias in the actions of the Special Prosecutor.”

    Bias ( the stacking of cards) has pervaded the selling of BC Rail and the BVB Corruption Trial from beginning to end, no wonder the mention of it is taboo. Bias: Influence, sway, slanted, one-sidedness, partiality, prejudiced. That what’s this house of cards has been built on, including the injustice system of BC.

  2. RossK says:

    Thank-you Ian.

    Absolutely the best post-publication analysis of what went down while the ban was on that I have read so far.

    And once again, it just begs the question…..Will Mr. Collins, now that the legal restrictions of the case being ‘before the courts’ have been removed, once again call upon the Crown to release all of the wiretaps involving his conversations with OmniTRAX, as he did in May of 2007 through his lawyer, Mr. Clark Roberts, so that he can fully clear his good name?

    .

  3. Rod Smelser says:

    Yes, Ian, an excellent read. The implication is that Berardino as much the government’s protector as its prosecutor.

    There was an interesting article in the G&M today on the two homes, one valued at $850K and the other about a half million, that Basi owns. Why isn’t he paying at least some portion, say a few hundred thousand, of the six million in legal fees?

    I think I remarked the other day about how stunning Mulgrew’s response was. There is no need for an inquiry, there’s nothing pointing to the government and there never was despite all that mountainous disclosure. Does anyone know what he really thinks?

  4. PG says:

    You state the facts and the government can hide. Why not release the agreement and people can see for themselves whether the guilty pleas were tied to the $6 Million dollar payoff.

  5. Ian says:

    Thanks Rod. Yes there are assets, but sometimes this isn’t even about the asset. For example, this could set an astonishingly costly precedent. And Mulgrew – he’s a better thinker than that piece. He can’t really believe what he wrote.

  6. LRob says:

    This is an excellent article that clearly describes the process leading up to, what must be, the most blatant manipulation of justice by a sitting government in Canadian history … certainly in my lifetime.

    I do not know if the precedent exists, but a complete review by federal Dept. of Justice prosecutors would seem justified for this perversion of the administration of justice.

  7. PG says:

    This plea bargain had less to do with justice ad more to do with closed door talks about money.

  8. m smith says:

    thanks ian!
    your last few postings have been great reading and have been asking and attempting to answer the questions that i’ve been thinking about since the start of the investigation.

  9. Tim says:

    Thank you Ian Reid for taking the time to attend the trial and report the facts!! Unlike Ian Mulgrew who couldn’t be bothered to dutifuly attend the trial and report the facts as opposed to the drivel that he attempts to spin as legitimate media commentary.

    Thank you Ian!!

  10. Ian Mcleod says:

    Thanks for the great article. I hope that the guilty plea will make the sale of BC Rail null and void.The Liberals sold it for pennies on the dollar to CN Rail. Can the people of BC sue Gordon Campbell for selling BC Rail for 2 to 3 billion below market value?

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  12. BC Mary says:

    Very interesting comment by LRob:

    I do not know if the precedent exists, but a complete review by federal Dept. of Justice prosecutors would seem justified for this perversion of the administration of justice.

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