Today in an unusual Monday column the Vancouver Sun’s provincial political columnist Vaughn Palmer explains the indemnity deal that prematurely concluded the BC Rail trial.
The column is based on an email Palmer received over the weekend from a clearly freaked out Ministry of Justice and the Attorney General. The email followed Palmer’s Saturday’s column, which raised questions about the authority the government used to pay the defendants’ $6 million legal debt, despite an indemnity that prevented the payment.
Working through the obscure legislation and even more obscure line of reasoning, the government’s case hangs on the timing of the deal: “The agreement to remove the repayment conditions was made before Basi and Virk pleaded guilty or were convicted,” Palmer quotes the ministry today.
Hence there was no debt facing the government, just an indemnity that needed to be reworked (contrary to government policy). And that was entirely within the purview of the Deputy Minister of Finance.
Case sort of closed.
Sort of, because it raises a completely new, and much more serious legal problem.
If the deal was made “before Basi and Virk pleaded guilty” how is that not an illegal inducement to plead guilty?
A federal Ministry of Justice paper on plea bargaining lays out this very serious problem:
“The most serious concern with the plea-bargaining process relates to the possibility that an accused who is in fact innocent will be induced to plead guilty. While it is a requirement of law that an accused admit his guilt before a court accepts a plea, other pressures may frustrate this principle.”
As even former Attorney General Geoff Plant admits $6 million would be a pretty hefty “pressure”.
But Plant claims that there was no inducement because the two deals – the plea bargain and the indemnity – were not connected.
Here’s how Plant puts it:
“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 . As a matter of law they were not connected. But that was of course the outcome. It was done very, very carefully, to make sure the rules were followed. But it was understood that with guilty pleas, the claim to fee recovery would be waived.”
But the government email puts the lie to that. We now know there was “a legally binding deal” approved by the Deputy Minister of Finance, providing an indemnity prior to the plea.
The defendants stood in court on October 19th, 2010 knowing the government would pay.
They were able to plead guilty knowing they wouldn’t be financially ruined, even if they believed themselves innocent.
If that’s not an inducement I don’t know what is.


