Over a month ago, former BC Liberal Attorney General Geoff Plant argued that the $6 million payment authorized by the Campbell government that led to the sudden end of the BC Rail trial was done perfectly.
According to Plant the deal skirted the legal problem of inducement while ending up somehow with guilty pleas. “What is clear,” Plant argued, “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.”
Yesterday, John van Dongen put the lie to that with his question to BC Liberal Attorney General Shirley Bond.
Here’s the transcript:
GRANTING OF INDEMNITIES
IN B.C. RAIL COURT CASE
J. van Dongen: Mr. Speaker, on May 2, I asked the Attorney General which section of the Financial Administration Act legally authorized the Deputy Minister of Finance to forgive and extinguish Basi and Virk’s $6 million legal fees liability, given the specific limitations imposed by section 18. The Attorney General did not answer my question.
Two days later an unattributed e-mail was sent by the Ministry of Justice to the media “on background only.” Contrary to the October 2010 public statement by Deputy Attorney General Loukidelis, the Justice Ministry e-mail claimed there was no legal liability prior to the guilty pleas. The e-mail goes on to state: “Section 72 provided the legal authority to modify the Basi and Virk indemnities by removing the repayment conditions.”
My question to the Attorney General: can the Attorney General confirm to this House that section 72 of the Financial Administration Act did in fact provide the legal authority to remove the repayment obligations that were originally agreed to in the Basi-Virk indemnity agreements?
Hon. S. Bond: Yes.
Mr. Speaker: The member has a supplemental.
J. van Dongen: The Justice Ministry e-mail states that section 72 of the act provides the government with the legal authority to grant indemnities. That authority includes the setting of terms and conditions. But then the e-mail advances the notion that the authority of section 72 to grant indemnities on terms and conditions also includes the authority to change or remove conditions. There is no specific authority written into section 72 to change or remove obligations from indemnity agreements.
There is a simple way for the Attorney General to earn the public trust on the issue of statutory authority. Rather than sending an anonymous e-mail, will the Attorney General release today the written legal opinion that persuaded her that section 72 legally provided the authority to remove the obligations that Basi and Virk repay their $6 million of legal fees?
Hon. S. Bond: To the member opposite: the government does have legal authority to grant indemnities under section 72 of the Financial Administration Act. The authority includes the setting of terms and conditions that could, as in the case of Basi-Virk, include a condition that you would be able to modify. So in fact, the authority to grant indemnities on terms and conditions includes the authority to change or remove those conditions.
Bond claims that the section of the Financial Administration Act that gives the government the authority to pay the legal expenses of a government employee also gave the government the authority to change the legally binding terms of the specific indemnity agreements covering the Basi Virk charges.
And Bond agrees that her ministry used that authority.
They threw government policy out the window and removed the clause that said the indemnity was void in the instance of a guilty plea. The altered indemnity was a legally binding agreement that waived the $6 million of debt owed by the defendants to the government, who had covered their legal fees.
And the ministry admits they did that prior to the guilty pleas.
Van Dongen, referenced a ministry email that says the indemnity was changed prior to the guilty pleas and that meant the defendants’ $6 million liability was waved before their guilty pleas: “Contrary to the October 2010 public statement by Deputy Attorney General Loukidelis, the Justice Ministry e-mail claimed there was no legal liability prior to the guilty pleas.”
Attorney General Bond agrees that’s what happened. The change to the indemnity was completed prior to the guilty pleas utilizing the government’s perceived power to amend indemnities.
BC Attorney General Geoff Plant argued on his website that such an arrangement would be wrong: “What is clear,” he claimed, “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.”
But what is now clear is that Plant was wrong about the timing. There was a legally binding deal delivered by the Criminal Justice Branch prior to the guilty pleas.
Using his own logic doesn’t that mean the altered indemnity was an illegal inducement to plead guilty?
Or to be more precise, doesn’t that mean the BC Liberals used $6 million of taxpayers money to illegally shut down the BC Rail trial?