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Discipline Panel for Heed Prosecutor Smells Odd: NDP's Ralston

Whether to punish Kash Heed's exonerator for conflict was determined by, among others, a Liberal donor and former Liberal cabinet minister.

By Andrew MacLeod 8 Feb 2011 | TheTyee.ca

Andrew MacLeod is The Tyee's Legislative Bureau Chief in Victoria. Reach him here.

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NDP MLA Bruce Ralston: 'Law Society should have chosen someone else.'

Last May lawyer Terrence Robertson exonerated former solicitor general Kash Heed before realizing a donation his law firm made to Heed's campaign meant he should withdraw as special prosecutor from the case.

Now a Law Society process has found Robertson made a mistake but no further disciplinary action is needed. But the three members of that panel included a former Liberal cabinet minister and a Liberal Party donor.

An NDP critic says the Law Society's explanation for why people with those connections to politics would have been appointed to the panel smells odd.

Former employment and income assistance minister Claude Richmond, accountant Peter Lloyd and lawyer Richard Stewart sat on the panel that decided Robertson had "failed to meet the expected standard that requires a lawyer to disclose to his client previous connection to the parties in a matter."

The Society was satisfied Robertson regrets his actions, understands what he did wrong and steps had been taken to make sure it won't happen again, a Law Society announcement said.

No 'improper motive' found

"The results of Robertson's poor judgment have been widely reported in the media," said a conduct review summary.

"The committee concluded that Robertson is aware of and deeply regrets the damage his error in judgment made to the public confidence in the role of the special prosecutor and to Heed," it said. "Robertson unreservedly acknowledged his error of interpretation and judgment, and it was clear to the committee that he fully understands and appreciates the significant error that he made.

"There was no information to suggest, nor did the committee suspect, that Robertson accepted the appointment as special prosecutor for any improper motive, in particular to influence the outcome and protect Heed from prosecution."

Last May, Robertson wrote a letter to Robert Gillen with the criminal justice branch of the attorney general ministry. "I am a partner in the law firm of Harper Grey LLP," he wrote. "Sometime in May of 2009, shortly before the provincial election, my law firm made a political contribution of $1,000 to the BC Liberal Party, Kash Heed election campaign.

"I was aware of the contribution to the Heed campaign by my law firm, but did not believe that it was a conflict of interest that would preclude me from acting as Special Prosecutor."

The Law Society summary, by the way, said the firm's donation to the Liberals as $500. Elections B.C. records a $1,000 donation in 2009, but none for the amount quoted by the Law Society. Since 2005 the firm and its predecessor Harper, Grey, Easton have given over $24,000 to the Liberals.*

'I just follow orders': Richmond

Claude Richmond sat on the panel as a Law Society bencher, a non-lawyer representative of the public. Richmond was previously the MLA for Kamloops and besides serving in cabinet was speaker of the legislature. He did not run in the 2009 election.

"As an appointed bencher I can't comment on anything at all," said Richmond, reached by phone. "I just follow orders."

The Law Society's chief legal officer, Deborah Armour, defended the appointment. "Mr. Richmond is in a unique position to bring home to Mr. Robertson in a clear way the very serious consequences of his wrong doing," she said. "It's not about politics, it's about the government."

The purpose of the review was to make sure Robertson understood what he did wrong and the damage he did to the special prosecutor system, she said.

Since the client hiring Robertson was the government, it made sense to have someone like Richmond who served in government on the review panel, she said.

The panel also included Peter B. Lloyd and Victoria lawyer Richard Stewart. Elections B.C. records show Lloyd was an officer in a company that gave $7,500 to the Liberal Party in 2008. A Richard Stewart gave a total of $1,265 to the Liberals in four donations in 2006 and 2008, but the Stewart who was on the review panel said in a phone interview that it was not him.**

Armour said the Law Society took the unusual step of having two appointed representatives on the conduct review committee because of the "important public aspect" of the case. "We wouldn't typically have two. The significance of all this is really about public confidence, protection of the public interest," she said.

Richmond highly partisan: NDP critic

"I don't accept that explanation," said NDP finance critic Bruce Ralston, who is also a lawyer, when told the Law Society had said Richmond had insight into the damage Robertson had done to the government.

He wondered if the Society reached that conclusion when Richmond was appointed to the panel or only after the fact when his role was questioned. "It has that odour to it," he said.

"Claude Richmond is well recognized as a highly partisan Liberal," he said. The Law Society should have recognized that and chosen someone else for the review panel, he said. "The perception is not one that I think needed to be created."

Richmond, by the way, moderated a Liberal leadership debate in Kamloops on Feb. 2. He said he would not be endorsing any of the candidates since five of the six are friends. He met Parksville Mayor Ed Mayne only recently, he said, but thought he was well spoken.

On Robertson's advice, criminal and Election Act charges were Heed's campaign manager Barinder Sall. Also charged were the Heed campaign's financial agent Satpal Johl, and the owner of the North American Mailing company, Dinesh Khanna.

Cleared prosecutor cleared Heed

The charges related to an illegal brochure and alleged interference with the investigations into who was responsible. During the election, pamphlets emerged in the Vancouver-Fraserview constituency in both Chinese and English accusing the NDP of supporting death taxes and wanting to legalize drugs and prostitution. Elections B.C. forwarded the pamphlets to the RCMP because they did not meet the election advertising laws requiring a sponsor to be identified with contact information.

Robertson recommended no charges against Heed.

Heed resigned from cabinet when it became public that he was under investigation, was reinstated following Robertson's report, then stepped down again after Robertson withdrew.

A second special prosecutor, Peter Wilson, has since reopened the case, but has not yet said whether Heed will be charged.

The investigation led to an Elections B.C. audit of Heed's campaign expenses that showed "that the total campaign period election expenses for the Kash Heed campaign were $74,135.70, which was in excess of the legislated spending limit of $70,000."

A recently unsealed RCMP search warrant said a campaign volunteer told investigators he was paid out of Heed's constituency budget, which is public money, and not from campaign funds.

Elections B.C. has told Heed he has to file an updated expense report for the 2009 election or he could lose his seat in the legislature. Heed has petitioned the Supreme Court of B.C. to be excused from the requirement.

*A Law Society spokesperson says the $1,000 donation was to two candidates and the Heed campaigns share of it was $500.

**Elections BC records show Peter Lloyd as the principal officer with Capservco Limited Partnership, which gave the Liberals $7,500 on June 25, 2008. A Law Society spokesperson says Capservco and Grant Thornton are one in the same. Lloyd left the company in 2004 and had nothing to do with the donation, she said, adding it is "unfortunate" the corporate records were never updated.  [Tyee]

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