Opinion

Hung out to Dry

Basi and Virk are guilty of being pawns in a much bigger game that others won.

By Bill Tieleman 26 Oct 2010 | TheTyee.ca
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Robert Virk and David Basi: Rosencrantz and Guildenstern?

"Tell him his commandment is fulfill'd,
That Rosencrantz and Guildenstern are dead:
Where should we have our thanks?"

-- William Shakespeare, Hamlet: Act IV, Scene 2

David Basi and Bob Virk are guilty alright -- guilty of being unwitting pawns in a much bigger chess game where all the other players came out winners.

Former BC Liberal ministerial aides Basi and Virk do not deserve to spend a single day under house arrest, let alone the two years less a day they were sentenced to last week under a guilty plea bargain agreement admitting to reduced breach of trust and fraud changes for leaking confidential government information on the sale of B.C. Rail to lobbyists for a bidder.

Like the ill-fated Rosencrantz and Guildenstern -- a pair of minor actors working for the corrupt King Claudius who are sent off unsuspectingly to their deaths by the scheming Danish prince Hamlet -- Basi and Virk were simply hung out to dry after police raided the B.C. legislature on Dec. 28, 2003.

At the heart, this case is about Premier Gordon Campbell and BC Liberal MLAs breaking their 2001 promise to voters not to sell publicly owned B.C. Rail.

The real breach of trust was a political one that came from the premier and his government, who committed it against British Columbians who expected and deserved better.

What the case was about

This case is about selling a profitable railroad serving the public to CN Rail, a company that has contributed over $300,000 to the BC Liberal Party since 1994 and whose chairman, David McLean, is a close personal friend and long-time backer of Campbell.

Basi-Virk is about two different reputable rail companies -- Canadian Pacific and Burlington Northern Santa Fe -- dropping out of the B.C. Rail bidding process because they said it featured a "lack of fairness" and was "fundamentally flawed" with "blatant favouritism" shown to the successful bidder CN.

Basi-Virk is about the astonishing disregard for good judgment repeatedly demonstrated by the RCMP. Lead investigator superintendent Kevin DeBruyckere continued on through the case despite disclosing to the force early on that his brother-in-law is BC Liberal Party executive director Kelly Reichert.

RCMP officer Andrew Cowan, another key investigator, actually had bought a house from David Basi's own mother a few years before the raid and had direct dealings about it with Basi himself yet also stayed on the case.

RCMP notes titled "Kelly Reichert -- Do Not Disclose" that the defence obtained through tenacious court action alleged that Reichert was briefed by officers on key aspects of the case, which he allegedly passed on to Campbell.

According to Virk's lawyer Kevin McCullough, reading from the RCMP document, Reichert was even asked if additional charges against Basi should be pursued or whether that would be "outweighed by the harm of embarrassment" to the BC Liberal Party. But because the trial ended, none of those documents were ever filed in court and remain unproven allegations.

Forget the noise being made in the media and opposition about the government giving up any chance to recover the $6 million in legal fees the province already paid Basi and Virk's lawyers by not taking away Basi's house and garnisheeing their future wages.

Those legal fees are mere chump change compared to what British Columbia lost in the $1 billion B.C. Rail privatization that still lies at the dead centre of this travesty.

B.C. Rail produced net profits in 18 of the 21 years between 1980 and 2000 and in all the three years it didn't the reason for losses was due to "special charges" against the railway, as The Tyee's Will McMartin ably pointed out.

That meant B.C. Rail contributed $137.8 million to the provincial treasury but Campbell's chief of staff Martyn Brown maintained in testimony June 10 that he was "not aware" of that.

"I'm aware of the problems they were having... My understanding was they were saddled with debts, saddled with costs," Brown swore.

Media quick to close the book

Disregard media claims that a case which began publicly with a police raid on the B.C. legislature on Dec. 28, 2003 was merely a "grubby little episode" where the guilty confessed to being "small-time shakedown artists" -- conclusions drawn by two pundits who together spent less time observing proceedings in B.C. supreme court over five years than Campbell's chief of staff Martyn Brown did in his short testimony this spring as the first of only two witnesses.

Ignore Premier Gordon Campbell last week oozing disdain for Basi and Virk, calling them "criminals" and saying they only have themselves to blame.

"Two people acted on their own and acted criminally. And I think unfortunately for seven years they've claimed innocence, and their lawyers have pretended that they were innocent when they knew they were guilty," Campbell told reporters. "They dragged their families through this for seven years."

It's a little tough to take this premier expressing real concern for anyone's family when his province has the highest child poverty rate for those same seven years running.

And if Basi and Virk "acted on their own," then why did Campbell and attorney general Mike de Jong both instantly reject calls from the NDP opposition and media for a public inquiry, saying it would be a waste of money when justice has run its course?

They couldn't have anything to fear in that case.

Or could they?

Pressures on the defendants

First -- consider why the two aides might have made the guilty plea bargain.

Basi was fired from his well-paid government job as ministerial aide to then-finance minister Gary Collins nearly seven years ago, Virk as ministerial aide to then-transportation minister Judith Reid almost six years ago.

Basi and Virk each have a wife and two young children. Neither has earned any significant income since then, doing odd jobs and receiving financial support from their families.

Had the trial continued through to April 2011 as planned, they would have been dealing with this case for eight years before resolution.

If found guilty by a jury on multiple breach of trust and fraud charges they faced a jail term of up to five years, plus responsibility for their legal fees that were already $3 million each -- with six months of trial to go -- plus potential fines.

Both men would have faced personal bankruptcy and in Basi's case, loss of his family home. Basi also faced additional charges -- to which he also pled guilty -- of breach of trust in receiving $50,000 from Victoria development company Shambrook Hills for help getting land removed from the Agricultural Land Reserve. He has been fined $75,695 in total in both case, representing all the money he wrongly received.

How many people would gamble everything they own, risk five years in jail and ensure their family was reduced to poverty -- after already living through seven hard years of limbo?

Especially when your alternative to disaster is two years less a day house arrest, multi-million legal fees paid off and the ability to work while living with your family.

Under that kind of extended, excruciating financial and psychological pressure, it's hardly surprising Basi and Virk took the deal.

And it also explains Basi's post-sentencing statement that: "I want my kids to know that their dad had integrity, that their dad does sleep with a clear conscience at night. I know some people who don't, I'll tell you that much, and they're very relieved today."

One could argue that Basi is merely another guilty criminal spinning a self-serving story. But why would he bother to go to those lengths and dare talk about integrity after confessing?

In the crosshairs

Then consider the defence arguments throughout this case -- that Basi and Virk were simply political staffers who were told by their superiors to keep OmniTRAX in the B.C. Rail bidding at all costs to make it look competitive, especially after Canadian Pacific dropped out before the decision was announced.

Michael Bolton, Basi's lawyer, and McCullough argued that the RCMP investigation was tailored and targeted at their clients and away from any other political figures.

And they alleged that OmniTRAX was offered a lucrative "consolation prize" worth up to $70 million -- the B.C. Rail Roberts Bank port subdivision spur line that was also up for sale -- if the company stayed in the bidding.

Needless to say, those allegations were never proven in court. The premature end to the trial made sure that any documents, wiretap transcripts or other evidence that might have supported defence contentions will never see the light of day.

And it all happened just before Collins was slated to testify.

The RCMP was at great pains to point out early on after the B.C. legislature raid that no elected officials were under investigation.

It turned out later, however, that Collins had been the subject of an intense video surveillance operation in Dec. 2003, when he met with officials of losing bidder OmniTRAX after CN had been awarded B.C. Rail.

The agreed upon statement of facts signed by both the defence and special prosecutor Bill Berardino is revealing on both counts.

"After the Freight Division bidding process concluded, Basi set up a dinner between Dwight Johnson and Pat Broe of OmniTRAX and minister Collins at the Villa del Lupo. Basi told the OmniTRAX representatives that minister Collins would be discussing with them some form or consolation prize such as another opportunity to do business with the provincial government as a reward for their participation in the bid," the statement reads, referring to owner Broe and top executive Johnson.

"At no time did minister Collins offer a consolation prize to OmniTRAX. Minister Collins' meeting with Mr. Johnson and Mr. Broe occurred after CN had been announced as the successful bidder on the Freight Division," it says.

One can only ask why this level of detail is included in the agreed-upon statement of facts. Was this a key point in the defence-Crown negotiations, to ensure that the term "consolation prize" was accepted as a fact even if it was also accepted that Collins did not offer one?

Mysterious motivations

And what were the enormous benefits that Basi and Virk obtained as bribes for attempting to illegally throw a $1 billion deal to one of the bidders?

A total of $25,695 was paid to Basi. And Basi, Virk and their wives got a trip to see a Denver Broncos football game in the company of an OmniTRAX executive, something worth $3,000.

Who in their right mind would risk losing their well-paid jobs and spending serious time in jail all for less than $30,000 on a $1 billion deal?

Who in their right mind, given all the evidence obtained by police and the pending testimony on behalf of the prosecution by the two lobbyists who provided the bribes, would hold out for six years of court proceedings constantly proclaiming their innocence?

Unless, perhaps, the defence argument actually made sense.

It should be noted that the third accused -- former government communications staffer Aneal Basi, David's cousin -- had his charges of money laundering in connections with those benefits stayed last week as part of the guilty plea bargain deal.

Aneal Basi's charges should have been dropped long ago. Instead he was left on the hook for seven years and had to pay his own legal bills for defence lawyers Joe Doyle and Erin Dance. Ironically the least involved of the three accused is the only one who paid for his own lawyers.

New facts in statement of facts

The statement of facts surprisingly raises new issues not previously disclosed.

It notes previously disclosed information that Bruce Clark -- a long-time executive member of the federal Liberal Party in B.C. and brother of ex-BC Liberal deputy premier Christy Clark -- was in possession of documents "improperly disclosed to Clark" by Basi and Virk regarding the B.C. Rail Roberts Bank subdivision.

But it states -- for the first time to my knowledge -- that Clark was working for the Washington Marine Group, the owner of Vancouver Shipyards, as a consultant and that his employer was interested in acquiring the spur line.

And notwithstanding ex-Pilothouse Public Affairs principal Brian Kieran's recent charm offensive blaming business partner Erik Bornmann for much of his troubles, the statement of fact says Kieran -- not Bornmann -- was given the bid values for CN's, CP's and OmniTRAX's bids by Virk three days before the government's evaluation committee learned them.

The resolution of the charges still leaves many other questions unanswered, making the call for a public inquiry all the more salient.

Gordon Campbell and other officials in his government repeatedly refused any comment on a series of questions about the role Basi played in BC Liberal Party dirty tricks, even though no charges were laid in connection to any of them.

Defence lawyers alleged in court hearings that Basi was involved in stacking paid callers to radio talk shows, including to hosts Jon McComb at CKNW AM 980 and Ben Meisner in Prince George; that Campbell knew of Basi's interventions; that Basi organized counter farmed salmon protests; that he set up a protest outside the B.C. Federation of Labour convention and that his actions were directed or known by staff in the office of the premier.

It was revealed in court hearings that Basi held two $10,000 contracts with the BC Liberal Party for so-called "media monitoring" that appeared to be about media manipulation.

There is no legal reason on earth now for Campbell and others not to answer those questions -- but it may take the compulsion of a public inquiry to get them -- unless the premier's Wednesday night prime time television address is to tell the whole truth about this sordid affair.

What was the Grit connection?

Also unclear is why so many of the key players in this case had strong connections to the federal Liberal Party of Canada during a period in which Paul Martin and his supporters successfully worked to dethrone Prime Minister Jean Chretien.

Former cabinet minister Herb Dhaliwal blamed Basi for organizing the takeover of his then-Vancouver South riding association, where membership jumped from 500 to 4,000, and criticized Campbell's government for not reining in its staff from interfering in federal politics.

Basi was allegedly just part of the Martin-ite takeover led by B.C. lieutenant Mark Marissen that saw federal Liberal members in B.C. jump from about 4,000 in 2001 to more than 37,000 by Jan. 2004, primarily through new memberships sold in the South Asian community. At $10 per adult member, the Liberals raked in over $300,000.

While federal Liberal leadership has since changed from the hapless Martin to the more hapless Stephane Dion to the becalmed Michael Ignatieff, some things haven't changed much. After running the surprisingly successful Dion leadership campaign in 2006, Marissen is currently doing contract pre-election field work for the Liberal Party.

And as recently as Feb. 2009, Bruce Clark was chairing the federal Liberal Party's high-dollar Laurier Club fundraising efforts in B.C. although he no longer holds that position.

Where are they now?

Lastly, it is sadly unavoidable to ask the question why the only players in this vast scandal who have been punished by the courts are two Indo-Canadian men, while Caucasians who were also deeply involved have avoided that fate.

Those who admitted to paying bribes and receiving the bids -- Bornmann and Kieran -- became Crown witnesses and were never charged.

Bruce Clark, according to the statement of facts, was in possession of confidential government information but was never charged.

OmniTRAX and its executives hired the lobbyists who paid the bribes -- something OmniTRAX denies any knowledge of -- but no one faced charges.

Then there are the other players who have all done very well despite this political corruption scandal landing on their doorsteps.

Despite breaking his solemn promise to voters not to sell B.C. Rail, Premier Gordon Campbell survived two elections before the trial began. And he will likely retire soon with a lucrative, publicly financed pension and multiple corporate directorships from a grateful business community.

Ex-finance minister Gary Collins is a well-paid senior vice-president for Belkorp Industries, a prominent B.C. firm.

David McLean remains chair of CN Rail and a wealthy businessman.

OmniTRAX was never charged with anything and issued a statement saying it was not ever under any police investigation

Patrick Kinsella co-chaired two BC Liberal Party election campaigns and was paid $297,000 for B.C. Rail consulting work alone over four years, despite some senior executives not knowing what he did there. Today he is a registered provincial lobbyist.

Brian Kieran has started a political blog and last year said he was opening a new business providing communications and public affairs advice, including "monitoring the provincial legislative agenda."


Erik Bornmann completed law school at the University of B.C. and, astonishingly, may become a lawyer in Ontario if he can pass a "good character" hearing by the Law Society of Upper Canada.

RCMP superintendent Kevin DeBruckyere was promoted during the course of the case.

But after seven years in legal limbo, Basi and Virk are under house arrest for two more. And their future job prospects are dubious at best, given the admission of guilt in a political corruption case.

Fleeting prize

After nearly seven years of covering this case from day one, breaking many stories and having my own office broken into and trashed because of my coverage, I have just one lasting image in my mind.

It's the picture of two young Indo-Canadian political aides and their wives sitting in VIP seats at the Denver Broncos football game in 2002 with then-OmniTRAX chief operating officer Gary Rennick, thinking to themselves: "We've finally made it -- we're part of the elite now! It just gets better and better."

And all the while, neither Basi nor Virk knew that their world would soon collapse and they would likely never again cross the U.S. border due to their criminal records.

Like Rosencrantz and Guildenstern, these two minor players who inconveniently got in the way have been dispatched from the scene forever.  [Tyee]

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