The can of worms: BC Rail, Basi/Virk, anonymity, inducements to plead

I’m not surprised with the BC Supreme Court ruling on the Auditor General’s application for documents in the Basi Virk indemnity case.

My understanding is that some of the billings – the ones protected by privilege – might reveal the names of various government officials who – under the protection of anonymity – provided information to the defence.

It wasn’t just crazy bloggers who felt the BC Liberals were running a crooked process with the BC Rail sale.  There were unhappy campers inside the government.

So fair enough that those folks remain protected from retribution.  And we know that in this government there is lots and lots of retribution (see Rich Coleman).

The issue to me is whether the Auditor has access to the agreement itself and the documents – emails, memos etc… – that reveal how it came to be made.

Last year in a highly defensive post on his blog PlantRant, former Attorney General Geoff Plant put the issue clearly:  was the agreement an illegal inducement to plead guilty?

Plant, without access to the document, claimed it wasn’t because after all ‘how could they. That would be illegal.’

Here’s what the former Attorney General wrote about the plea deal:

“Government decided to release the three defendants from any claim for repayment of their legal fees.  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.”

Plant in effect claims that the government ‘guessed’ that all that stood in the way of the deal to end the trial with a guilty plea was the $6 million bill.  So it made the offer in the belief that a guilty plea would miraculously follow.

Of course that’s not what happened.

There was and is a legally binding deal.  Like others, I’ve seen what was claimed to be a copy.  The piece of paper I saw says if guilty pleas were entered, the guilty parties would not be obliged to repay the $6 million in legal fees.  As well as being written down it’s signed by both parties to the deal.

If the copy is real, Plant is wrong and the government provided an inducement to plead guilty.

That would open up a whole new can of worms.  Why was it necessary to induce a guilty plea?  Were they guilty? What was the government afraid of from the trial process?  Etc…  In other words it begins to look like a classic cover-up.

If the Auditor has the document he must make it public.  If he doesn’t his audit cannot be considered complete.

BTW, the document also has a non-disclosure clause.


Now where did that convenient little poll come from?

Mustel Research hasn’t been in the field publicly since last May.  Now they’ve popped up with a poll that makes the traditional outlier type poll look reasonable.

While every other public poll is showing a 13 to 15 point gap between the major parties Mustel shows 10.

Not that Mustel’s record is that good.   Last election Mustel was one of the least accurate polling firms, under-reporting the BC NDP by 4+ pts. and over-reporting the Green party by 4 pts.  They did get the BC Liberals close to right.

This latest poll continues the streak.  It shows the NDP 3-5 points less than all the other pollsters.  If you correct for Mustel’s traditional built-in bias, the poll shows a result consistent with Angus Reid’s 15 point difference.

Just think of them as BC’s version of Rasmussen in the US election.

PS. The methodology is unusual to say the least. It was taken with a small sample size over an unusually long period.

PSS.  Mustel’s built in bias couldn’t have anything to do with the fact that BC Lib MLA Joan MacIntyre is a former co-owner with Evi Mustel.  Or that the government and several of its agencies are big clients.

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12 Responses to The can of worms: BC Rail, Basi/Virk, anonymity, inducements to plead

  1. Maharg says:

    As usual Ian you are absolutely correct. “It wasn’t just crazy bloggers who felt the BC Liberals were running a crooked process with the BC Rail sale. There were unhappy campers inside the government.”

    At one time the BC Public Service was generally non-partisan; however, the BC Liberals have had 12 years to remove anyone in authority who wasn’t pro-liberal. They have done this with and without cause, so anyone left with any integrity is afraid to speak out. Of course, very generous remuneration has also quietened most of those in the know.

  2. Ray Blessin says:

    Canada’s Nate Silver.

  3. kootcoot says:

    “Last year in a highly defensive post on his blog PlantRant,”

    Plant continues his contrary ranting on Twitter (how appropriate for a Twit) from HuffPost:

    GeoffreyPlant – I wonder if BCs auditor general will waive solicitor client privilege and disclose his legal advice and bills in the Basi Virk case? #bcpoli

    It is difficult to believe this character passed the LSAT much less the bar!

  4. Ruth Hanson says:

    An outside observer might think this political interference with judicial process is something we would see in a third world country. The entire scandal is shameful.

  5. RossK says:

    Thanks for the info Koot , will have have a look.


    If the AG does not have a copy of the agreement how, do you think, he could go about getting it?

    Can he appeal and go back to the judge asking for that specifically?


    Would such a specific request result in an easy skate around (and/or other ‘privilege’ issues raised by those on the non-defendent side who actually signed the ‘alleged’ agreement)?



  6. Lew says:

    Ian, you say that if the copy is real, Plant is wrong and the government provided an inducement to plead guilty. But if they provided an inducement to plead guilty, then the contract did not have a lawful purpose, and is therefore by definition invalid and not legally binding. Which would render the non-dislosure clause invalid…

    Wouldn’t it?

  7. jeff says:

    If what you are saying is true – that you have seen a copy where it states “If” Basi and Virk plead guilty the government will waive repayment of their legal fees – this is a game changer. There can be NO doubt whatsoever this was a clear inducement to plead guilty and take the pressure off the government. Isn’t this illegal? Correct me if I am wrong but inducements offered to plead guilty bring the plea deal into complete disrepute!

  8. Scotty on Denman says:

    Ian: Thanks for pointing Mustel’s background out and “outlier” is the way to describe them.

  9. G. Barry Stewart says:

    Maybe the copy of the agreement is one of the bombs AGT has loaded and ready to drop.

  10. Arleigh Chase says:

    Regarding Bauman’s decision, I’d like to see proof that all parties falling under this umbrella of “solicitor-client privilege” have been contacted and are formally invoking this right. We still have the issue of Butler’s mea culpa affidavit to the Court and why he was seemingly attempting to hide information from both the Court and the amicus curiae.

    In actuality, the very fact that an amicus was appointed to this case suggests that not all parties have been contacted and made aware that they need to either invoke or waive their solicitor-client privilege. In fact, the amicus himself declared that he was acting for “unrepresented interests”. I would like to see affidavits filed by both Mr. Butler and the amicus that all parties with an interest in this case have been contacted and made formal declarations as to whether they are invoking or waiving solicitor-client privilege. Otherwise, Justice Bauman’s decision suggests that just another judicial smokescreen has been erected to obscure what really went on with this plea deal.

  11. unbeliever says:

    A non disclosure agreement being used to “cover ” an auditors request…sounds fishy to me. The entire optics of this whole mess is disturbing to say the least. It is my opinion that a “judicial enquiry” into a “perceived fraud”, might provide grounds, for the opening of such an agreement, in order to investigate a potential criminal act, having been perpetrated by officers’ of a serving government.

    While I’m not a lawyer by any means, the use of the judicial process, in any form, to cover a perceived crime by anyone, is in itself a questionable act. This opens a whole other area of integrity and transparency, in both the judiciary and governance.

    While all involved will end up in court, one way or the other, the public is left with the bill and ultimately the perception that the process is deeply flawed in the first place.

  12. Lew says:

    Ian, can you tell us who signed the agreement on behalf of the Crown?

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