BC Rail: From the frying pan into the fire

Posted on May 7, 2012 by Ian

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.

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The BC Rail intrigue continues

Posted on May 5, 2012 by Ian

Last night there was an interesting twitter debate between David Schreck and Gary Mason regarding John van Dongen’s questions in the house last Wednesday.

If you recall, van Dongen asked AG – I can’t help but laugh – Shirley Bond under what provision of the Financial Management Act was the $6 million payment to the defence lawyers in the BC Rail trial authorized.

Bond refused to answer.

Following up van Dongen’s questions Gary Mason elaborated on the issue in his Globe column published last night.  And then he tweeted a link to the column.

The gist of the matter is this:

According to a statement by Deputy AG David Loukidelis, made shortly after the deal came to light in the hopes of putting a damper on media scrutiny, the payment was authorized by the Deputy Minister of Finance.

But van Dongen argued the relevant section deals with the payment of a debt – the indemnity created a debt – and the Financial Administration Act is far more stringent requiring cabinet approval on payments over $100,000.

There was no Cabinet authorization and the Deputy exceeded his mandate, was the implication of van Dongen’s questions.

Then it gets murky.  Clearly, under the indemnity originally offered by the government no payment could be made, because it was contingent on a not guilty plea.  A guilty plea meant the defendants had to pay their own legal fees, meaning sure bankruptcy for two of the three defendants.

So the issue wasn’t the payment.  For the payment to be made the indemnity had to be redone removing the guilty plea contingency.  And, as David Schreck pointed out in his reply on Twitter, the Deputy Minister has the authority to do that.

You can see why the AG, who has no clue, didn’t want to get into that.

It just raises another problem.  The timing of the whole thing works against this interpretation.

According to Loukidelis’ statement the guilty pleas were achieved before the indemnity deal was done.

And, as Geoff Plant has noted, it had to be that way because it’s illegal if it was done the other way around.  If the indemnity was provided prior to a guilty plea that would be an inducement, a big, criminal no-no.

But with the guilty pleas in hand there were 6 million reasons to reject a new indemnity that waved the stipulation of no payment if found guilty.

Unless the guilty pleas weren’t in hand.  Because what was to stop the defence from recanting on the guilty plea if the government did not find a way to pay the fees?  Indemnity despite the guilty plea was a non negotiable condition.

With the inducement, because that was what the new ‘after the fact’ indemnity appears to have been, incomplete so was the deal and it was that, not charity, that led to the scramble to complete the deal, provincial policy be damned.

And don’t forget, the defence is off the hook after the fact.  They were just working in the interests of their clients.  It’s the pile of politicians and political appointees who worked the rules to bring this off who are in danger.

Yesterday, before I could confim it, I cryptically noted that David Loukidelis had resigned as AG.  Apparently it’s been in the works and we should be hearing about a new career shortly.  But it’s interesting that it came about only two days after van Dongen questioned the highly questionable actions that shut down the BC Rail trial prematurely.

Van Dongen’s questions, as columnists are now finally saying, still haven’t been answered and are sure to be at the heart of the coming public inquiry that will be calling David Loukidelis to explain.

 

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Posted in BC Liberals, BC Politics, BC Rail, Christy Clark | Tagged | 19 Comments

Adam Yauch

Posted on May 4, 2012 by Ian

Adam Yauch died today, apparently of causes related to cancer.  A whole generation – like me for instance – made their way to rap through the Beasties.  Here’s a cut from the best record of 1989, Paul’s Boutique.

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Van Dongen Questions

Posted on May 4, 2012 by Ian

Geez, two questions in Question Period and two days later a principal resigns for greener pastures…

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NDP on top Nationally and in BC

Posted on May 4, 2012 by Ian

Two interesting polls, one national, the other provincial.

For the first time in maybe 25 years, the NDP is running first in a national poll.  Decima Harris, in this week’s poll for the Canadian Press shows the NDP at 33%, 3 points up on the Tories.  The Liberals trail at about 18%.

You have to harken back to a brief period under Ed Broadbent for a similar trend.  And that was fleeting.

Two things about this poll:  Mulcair has solidified the NDP lead in Quebec.  They are now 10 points ahead of the Bloc with the Tories way, way back in 4th place.  And there is surprising strength in Ontario where the NDP is second in a three way race for first.  The Liberals trail in 3rd.

More importantly overall, while the NDP gains little by little, the Harperites have lost one in four supporters since their win one year ago.  Clearly a significant number of their supporters in the last election thought they were getting the Conservative Party of the two minority governments.  Instead they got a Reform lite government and they are leaving in growing numbers.  I’ll go out on a limb here and guess that Liberals who went Con in 2011 are regretting their votes.

Will this hold?  You have to think that Mulcair was the Conservatives worst nightmare and if the Liberal strength in Ontario continues to weaken anything could happen.

But then you have to remember 1988 as well.

***

Here at home in BC a new Forum Research poll shows that there is a “unite something” movement going on.  But it ain’t “unite the right”.

No, it appears British Columbians prefer to unite against the Christy Clark Liberals.

Results taken after the overwhelming defeats suffered by the Clark government in two by-elections show the BC NDP up 2 points at 48%, the BC Conservatives down 4 points  to 19%, and the BC Liberals stable at 23%.  The NDP has increased its lead to 25% over the BC Liberals.

So as predicted, it’s the NDP not the Liberals who gain from a decline in Conservative numbers. Now these moves are small but still…

More telling, less than one in four Conservatives or about 4% of all voters support a union of BC Conservative and BC Liberal parties.  That means that right now, the unite the right folks are fishing in a pool of less than 30% of all voters.

John Cummins appears to know his own party well.  They despise the BC Liberals pretty much as much as the rest of us do.  Without reviewing the numbers in depth, I’d say it looks like any give on the Unite the Right foolishness by the BC Conservatives will drive more voters to the NDP than to the Liberals.

Forum president, Lorne Bozinoff told the Globe and Mail that “the only hope for the Liberals is to reinvent themselves with some bold measures they are going to have to roll out fast to somehow isolate the B.C. Conservatives, making it “too risky” to vote for them. They also have to recapture votes lost to the B.C. NDP.”

That advice comes despite the fact that there is no evidence in the poll that any strategy will work.  The poll, like every other poll taken in BC recently, suggests voters of every stripe want the BC Liberals to just go away and their ears are closed to just about every other notion.

Get ready for some really stupid Hail Mary moments in the next year.  Desperation abounds.

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Gaddafi is to Gwyn Morgan as Christy Clark is to?

Posted on May 3, 2012 by Ian

Gwyn Morgan!  She’s just another client.

A year ago the Globe and Mail saluted Christy Clark and singled out one man on her new team:  ”It is encouraging that Gwyn Morgan”, the Globe editorialist wrote, “the former CEO of Encana Corp., who contributed money to Ms. Clark’s campaign, is now part of her transition team”.

Today, Mr. Morgan is in Toronto to face outraged SNC Lavalin shareholders.  They want answers about the alleged $56 million in bribes and payments SNC – the company Morgan chairs – paid to the Gaddafi regime.

Some of the payments are alleged to be associated with the prisons SNC was to build for Gaddafi.  A former SNC VP is in jail awaiting trial in Switzerland and the RCMP recently raided SNC’s Montreal offices in connection with the scandal.

Gaddafi’s prisons!  Nice!  I wonder if Fazil Mihlar will commission an op-ed on what it’s like working with the world’s most reviled dictator.  Was Morgan sad when he was captured in the sewer pipe or was he just mad that all that money went down the drain.

And what kind of advice is he providing our Premier?

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Van Dongen keeps his promise

Posted on May 3, 2012 by Ian

John van Dongen has kept his word.

Upon exiting the BC Liberal caucus the Abbottsford MLA told the Legislature and media he was particularly troubled by the BC Rail scandal and the BC Liberal’s decision to cover the defendants legal costs – taken against government policy.

Van Dongen promised to pursue the troubling aspects of the payment both inside and outside the Legislature.  Yesterday he kicked off his campaign with a couple of interesting questions to Attorney General (yikes!) Shirley Bond.

Van Dongen, citing the Financial Administration Act, blandly asked “which section of the Financial Administration Act or Regulations legally authorized the Deputy Minister of Finance to forgive and extinguish Basi and Virk’s $6 million liability?”

In other words, he asked Bond if her government had done the deal legally.

In the Hansard video you can’t see former Attorney General Mike de Jong whispering the answer in Bond’s ear but you can bet he was there, guiding the awkward minister’s answer.

Bond, like every other BC Liberal AG before her, stonewalled.

Jonathan Fowlie posted about the exchange on his blog.  The story didn’t make the paper.  Mike Smyth devoted one line to van Dongen in his column but didn’t mention the substance of the question.  Other than that, silence in the media.

But the question is an interesting one.  Mike de Jong never could get his story straight on how the deal got done.  As I have noted before, basic questions like ‘how did the government know the prosecution was working on a sentence offer at the same time they were working the indemnity side of the deal’ have never been answered.

Van Dongen points to a different issue that’s been fudged but hasn’t been answered:   Did the government follow the rules when it overturned government indemnity policy and paid out on a guilty plea.   It’s a murky point but central to the cover-up.

Here’s the issue as straight up as I can make it.

The Financial Administration Act sets the rules for how the government spends its money.  It has a section on paying debts and a set of regulations about indemnities.

The regulations say that an indemnity can only be established by either the Minister of Finance or the Director of the Risk Management Branch or his or her designate.

It’s clear that the original indemnity agreement was made by the correct official.  But that original agreement nullified the indemnity in the event of a guilty plea.  So the question is ‘how did a new agreement get done in light of the guilty plea, that resulted in a payment of $6 million to the lawyers for the guilty party’.

In a statement released after Mike de Jong fumbled the ball in the fall of 2010, Deputy Attorney General David Loukedelis attempted to clarify the issue.

Loukedelis said that the matter “was referred to me and the Deputy Minister of Finance.  The Deputy Minister of Finance has authority under the Financial Administration Act respecting this matter.

Except he doesn’t have that authority on the face of it.  According to the regulations only the Minister of Finance or the Director of the Risk Management branch have the authority.  And you can bet in this highly charged political moment no director of any branch is going to authorize this kind of payment, against government policy, unless someone held a loaded gun to his head.

So the question remains for Bond and stonewalling doesn’t really cut it.  ”Who authorized the new indemnity agreement, the one without the guilty plea clause or was the deal done without any new authorization?

Good first set of questions and worthy of a follow up.

And if you follow the bouncing ball, you can see why the Auditor General is so interested.  After all, it’s his job to determine whether the Financial Administration Act is followed when the government pays out big chunks of cash in dodgy fashion.

All in all the best BC Rail questions in over a year.  The scandal still lives.

 

 

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Fazil Mihlar and his fake elite

Posted on May 2, 2012 by Ian

Don’t pay for the Sun.  There you have it.  If you read it – and I do for about five minutes a day – read it for free.

In my view the Sun is a mixed bag of boring and trite local news of the dog bites man variety, business boosterism, global cultural mediocrity and far right propaganda.   There are lots of good reporters and writers but few good stories.  Go figure.

Margorie Nichols would be ashamed to be seen with today’s Sun in her hands.  So would Jack Webster.

It’s the editorial pages that drive me around the bend.  The chairman of Ghaddafi’s favourite prison builder and alleged bribe recipient, SNC Lavalin – also Christy Clark’s advisor – is a frequently featured writer.  The Fraser Institute has a direct pipeline, as do unidentified lobbyists shilling in their clients’ interests.

And then there is the editorial pages editor Fazil Mihlar.  Did anyone besides me read his piece Monday?  My condolences to you.

There’s something about Mihlar’s writing that makes you cringe as soon as you start reading.  He’s like the guy at a party who makes a mis-timed, inappropriate and just plain bad joke every time he opens his mouth.  You know immediately he’s really screaming “like me, like me, I’m funny, I’m confident, I’m smart, I need a girlfriend.”

He’s the guy who coined the term “banana” to attack environmentalists.  Banana stands for something not very funny and very right wing that I can’t remember because it’s too cumbersome.   Isn’t that pretty much the definition of a bad writer?

Now it seems he’s dropped banana – praise the lord – in favour of another light, comedic approach to the topic of resource development.  He’s become the leader of a fake political party – although that’s what I thought his previous employer the Fraser Institute is.

His new fake party represents the 90 per cent against the ten per cent who are holding them down.

And the 10 per cent are?

The environmentalists, the labour unions, the non profits, the left wing policy institutes.  These are the new elite in Mihlar’s mind.  And he’s going to take them on.

Funny how his friend Gwyn Morgan from Encana isn’t among the elite.  Gwyn Morgan who’s made his millions and retired to a $30 million gated estate on the shoreline just outside of Victoria.

Gwyn Morgan’s no elitist because he’s a job creator.  A guy who provides the high income jobs of the future, like building those prisons in Libya for his business partner Ghaddafi.

This would all be pathetically funny in a kind of ‘what a pathetic goof he is’ way if it weren’t so untrue.  So patently false.

Over at Talking Points Memo, they’ve published a graph from a study of inequality in the US, a graph that closely mirrors the situation in Canada.  The graph illustrates the uncoupling of productivity gains and income gains that started in the 70’s.

Prior to that all shared in the economic gains that accrued through productivity gains.  Now, the benefits pretty much accrue to one small class at the expense of everyone else.

That’s the world Mihlar is lying about.  Without doing something to restore the connection between productivity growth and income growth, job growth alone won’t do a thing to change inequality.

The Northern Pipeline is a perfect example:  Many of the workers needed to build it will be imported – lets call a spade a spade – and it will take few workers to run it.  The profits will flow and will be reaped in the boardrooms alone, mostly abroad.  Finally, the commodity it supplies will be building someone else’s economy.

But British Columbians will bear the cost of any environmental damage from building the pipeline and operating it.

When Mihlar says he stands with the 90 per cent agains the 10 per cent opposing these kind of deals he’s lying on behalf of the real one per cent.  That’s not what an editorial page editor should be doing in a real newspaper.

Fazil Mihlar is no editorialist.  There’s a difference between editorialist and propagandist.  Mihlar is the latter.  Don’t forget it when you read him in the Sun you did’t pay for.

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Saving Christy Clark

Posted on April 30, 2012 by Ian

I was talking politics with a friend the other day.  Surprise.  In fact we were talking about Christy Clark.  Bigger surprise.

We were discussing Clark’s puzzling seismic shifts in rhetoric when he said to me, “nobody can tell what she stands for.”   And I said that I think its very clear what she stands for.  “What Christy Clark cares about is Christy Clark,” I said.  “End of story”.

He agreed.

And that’s where I disagree with Gary Mason.

Writing in Saturday’s Globe Mason says Clark has governed the last year with “no grand plan for what she wanted to achieve.”  Instead of working on her plan she’s spent the year playing politics.

So far so good.  He’s absolutely right.  There is no plan, no group of ideas and policies that reflect her political beliefs and her analysis of what BC needs.  She has offered nothing but words and campaigns all aimed at securing electoral success.

But then Mason veers off course.  The rest of his column reads like a doting grandfather providing wise advice to his wayward granddaughter.  Except the granddaughter is sitting on death row, covered in mutant tattoos with a sneer on her face and a smuggled knife in her hand.

“Try to do better, dear” he says as she prepares to take another hostage in an insane attempt to bust out of maximum security.  It’s the third attempt this week.

It’s pathetic.

Case in point is Mason’s head in the sand analysis of Clark’s problems with the electorate.  “It’s not because the public has a long list of reasons to dislike the Premier,” Mason writes with no idea of why the public dislikes Clark, “it’s because they don’t have a long list of reasons to like her”.

I love reading readers comments and this bit of absolution provoked lots of long lists of reasons the public has to dislike the Premier.

They all begin with the awful about face that was Clark’s pro HST campaign, a campaign that encapsulates everything that’s wrong with her government.  It started with a lie:  The campaign would just provide information.  It piled lie upon lie: It would be fair.  Both sides would be funded equally.

And the campaign ended with scare tactics.  The economy will die.  You’ll all rot in a PST hell if you vote to get rid of the HST.

And then there was the final lie.  It’ll take two years to undo.

Through the whole misconceived campaign the government proceeded to dump millions of scarce dollars into a round the clock defense of a discredited symbol of BC Liberal arrogance and lies.

The government’s HST campaign was the beginning of Clark’s fall and Mason doesn’t even bother to brush it aside.

The real problem that Mason doesn’t want to face is that Clark embraced Campbell’s policies while ditching his rhetoric.  And she did it badly.  She’s not even as competent as Campbell.

Mason’s view is that to turn this around Clark has to roll out her own program.  The BC Liberals only hope he claims “is by developing a new political manifesto that is substantive, innovative and broadly appealing.”

This is Mason telling the judge that the delinquent in front of him is “a good girl in her heart, just give her one more chance.”  And he fails to mention it’s at least her third try.

There’s nothing to suggest that any of it is true.  Dig below the talking points of the day and the most cogent felt thing Clark ever says is “we can’t afford the NDP.”  That’s it.  There is no plan except “I want to be in charge.”

The only MO that makes sense for Clark is “elect me so I can be in power.”

Here’s what usually happens when governments reach this point.  You don’t hold their hand and plead with them to develop a new plan.

You vote them out.  You send them to purgatory where, if they are to survive, they start to rediscover what they are all about, what they did wrong, and what values and ideas they stand for.

Then they find a leader who embodies those values and ideas.

In the BC Liberals’ case it won’t be Christy Clark.  And once they’ve done this hard work on their own time, they develop a plan.  If it’s decent and makes amends for their previous errors they might get elected.

In other words, the BC Liberals need to steal a page from the NDP’s playbook

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Another mea culpa

Posted on April 27, 2012 by Ian

Sorry for disappearing.  And over one of the more exciting couple of weeks in BC politics too.  What a sorry excuse for a blogger I am.

Here’s the mea culpa.

One of the things with long term cancer accompanied by tons of  ’interventions’ is that the body doesn’t bear up so well after a while.  It’s susceptible to a lot of fly by night ailments and I’ve had two recently.

Some of it’s my own damn fault.  Being 20km from the site, Paul and I – led brilliantly by my eldest – went to Coachella last weekend.

I like to think of myself as a ‘young at heart’, ’50 is the new 30′ kind of guy.  But after three days of alt punk rock dance party I can report that young at heart means young in the head, old everywhere else – and maybe not so young in the head after all.

Last Monday I could honestly say that I had never been more tired in my life.  Nor have I had a worse cold.  Thank you Tupac hologram guy.

The cold comes on top of a simmering then exploding infection on my palette, which is a patchwork quilt of operational scars.  According to my pain doc – I have a fabulous pain doc -the infection rather than the tumours may be responsible for the big jump in pain I am experiencing.  Let’s hope so and cue the medication boost.

I’m not trying to whine here.  This is nothing compared to last summer’s death watch but I  just want to say that while I’m on the mend I may continue to write a little less.

Not that there aren’t a million stories swirling around my head.  By-elections, crap polling, BC’s under-reported forestry disaster, PAVco, unite the right hail marys – while at the same time rhetorically tacking left: how much grist for the mill can there be?

And then there is the health thing.  You don’t really learn much about your body until it’s compromised in some way.  In good times it just is.

This is kind of trite and has probably been said a million times in a billion places but until living it I never really understood how the body is really it’s own ecosystem.  The walls between the various parts and functions are paper thin.  One failure leads to another etc… etc…

Rebuilding it has to take into account all the interactions.  Nothing is fast.

My new palette doctor can’t start fixing me until he talks to my radiation doc, my chemo doc, my infectious diseases doc and maybe my neurologist to figure out what’s happening with all the parts and systems that have been treated to date.

And I thought I could walk into the office, get diagnosed and prescribed some miracle medication that would clean up the infection in a week.

Instead, I’ll have a treatment plan that will prescribe the right medication, make the right cuts and administer the right clean up to ensure a bad situation isn’t made worse.  It’ll take some time.  To cover that time they’ve bumped the pain medication.

I think all of this is miraculous.  Unlike the boring Tupac hologram.  Thank God Eminem showed up to save that day.

 

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