On Dec. 14, 2004 Gary Collins suddenly announced his resignation as Finance Minster in the BC Liberal government. Collins also announced he wouldn’t be running for a third term in the upcoming election, scheduled for May 2005.
The announcement shocked BC’s political establishment. Collins had given no indication that he was unhappy. In fact he had led the government response to the Legislative Raids, defending the government’s decision to sell BC Rail to CN despite the scandal hanging over the sale.
Collins resignation has never been fully explained, but the answer may lie in documents, released during the trial that point to a violation of investigative protocols reaching into the Premier’s office, a violation that was “scrutinized” by the RCMP “for potential contraventions of the Criminal Code including obstruction of justice as well as the possibility of a finding that the action complained of constituted a contempt of court.”
On November 24th, three weeks before Collins resigned, George Copley, the lawyer representing Cabinet in the BC Rail case wrote to Ken Dobell, the deputy to the Premier, to confirm that he met with Dobell earlier that day and shared “certain confidential documents” requested by the RCMP as part of their continuing investigation into the BC Rail sale.
The documents Copley shared with Dobell were highly sensitive to the investigation and Copley had been informed that the RCMP intended to ask Garry Collins four specific questions about the documents.
In his email of November 24th Copley asks Dobell to confirm that he had reviewed the documents and instructed Copley to waive privilege and provide the documents to the RCMP to assist their interviews.
There was one problem with this. Dobell was not permitted to see the documents. He was not permitted to know that the RCMP was seeking those documents as part of its investigation. He was not permitted to know who the RCMP would be interviewing about those documents.
That’s because early in the investigation, knowing that many of the documents involved would be under cabinet privilege, Chief Justice Dohm of the BC Supreme Court established a Protocol that was applied to all privileged documents required by the investigation. That protocol specified five people only could view documents and they all had to sign a legal undertaking not to disclose the nature of those documents.
The point was to maintain the integrity of the investigation, while still allowing officials to determine cabinet privilege.
Dobell was not one of the five and he never signed an undertaking not to disclose the nature of the documents.
Why does all of this privilege and non-disclosure stuff matter?
Because someone like Dobell who knew what the documents said and who they affected and who the RCMP wanted to interview about them was not under any obligation to keep quiet about all of that. That means the RCMP investigation could have been compromised by Mr. Dobell either accidently or deliberately.
In May 2008, NDP Attorney General Critic Leonard Krog wrote RCMP Deputy Commissioner Gary Bass to seek an investigation of the violation of the protocol by Mr. Dobell. Superintendant GC McRae wrote back in June to say the “fact pattern was scrutinized for potential contraventions of the Criminal Code including obstruction of justice as well as the possibility of a finding that the action complained of constituted a contempt of court.”
Supt. McRae noted that RCMP lawyers had determined that Mr. Dobell “in his capacity as Deputy Minister to the Premier, would be considered to be a member of cabinet.” Therefore Mr. Dobell was able to view the documents.
Of course that’s wrong. The Constitution of BC sets out who is a member of cabinet. Staff to Cabinet are not Cabinet members under the constitution and Krog informed Deputy Commissioner Bass of their constitutional error in a letter June 2, asking the RCMP to proceed with the investigation of potential contraventions of the Criminal Code.
Deputy Commissioner Bass wrote back on June 18th. “As the very issue raised in your correspondence is actively before the Court”, Bass wrote, “I agree with Superintendent McRae that any criminal investigation at this time is premature and not in the public interest. It is my position that we should await the outcome of the application in this matter before making any final determination with respect to entering into a criminal investigation into this matter.”
Well it’s over now. So where’s the investigation into obstruction of justice and other violations of the Criminal Code with respect to the Premier’s office handling of documents at the heart of the investigation?
What we really need to know is this. Could Dobell have warned Gary Collins that he was about to be interviewed by the RCMP regarding key documents in the case? After all he met him in cabinet at least once a week. And doesn’t that constitute contempt of Justice Dohm’s order? Or maybe even obstruction of justice?
Gary Collins was supposed to be next up. Wouldn’t those be questions the defence might have wanted to ask? How convenient for the Premier’s office that that won’t take place now.