Why the BC Rail deal sucks. And why you should care.
It all started with a question from Michael Bolton who was representing David Basi. He addressed the question to Martyn Brown, Premier Gordon Campbell’s chief of staff, late last June.
Bolton began asking Brown about the relationship between lead RCMP investigator Kevin DeBruyckere and BC Liberal Party Executive Director Kelly Reichart. They are brothers-in-law.
Immediately, Special Prosecutor Bill Berardino jumped up to object to Bolton’s questioning. The jury was excused and the longest legal wrangling delay in the trial began. With the jury excused, that wrangling was under publication ban. What happened that last week of June in Courtroom 54 has never been reported.
I believe it set the stage for the deal consummated Monday morning, the deal that paid off the defendants and stopped the trial.
Berardino’s argument? He claimed that the pre-trial agreement signed by the defence meant questions about investigative bias were inadmissible. Berardino went further. He claimed that the pre-trial agreement severely limited the defence’s ability to raise any bias issue, any issue about defective process, any issue that undercut the prosecution’s statement of facts.
Regarding the DeBruyckere/Reichart relationship Berardino declared that “the issue of effective bias of the investigation is not before the jury” as a result of the pre-trial agreement.
That meant the defence couldn’t make a point of the close familial relationship between DeBruyckere and Reichart. They couldn’t argue that the relationship was a conflict of interest that skewed the investigation. Couldn’t enter supporting evidence such as wiretaps or evidence of deBruyckere meeting Reichart and Reichart subsequently meeting with Premier Campbell to debrief him on the state of the investigation.
When contacted by VO, DeBruyckere, brother-in-law of Liberal Party Executive Director Kelly Reichart, said, "The suggestion that I did, or even could do, what they had suggested in their submission is ridiculous. There is absolutely no substance to their submission. There was no influence in any matter whatsoever."
Neither Reichart nor Berardino responded to VO's request for comment.
Special Prosecutor Berardino argued that much of the defence’s case, including the questionable nature of the Bornman immunity agreement – the one that allowed him to escape a criminal charge of offering a bribe, in return for testimony against the defendants - was restricted by the pre-trial agreement.
Bolton’s response behind the closed doors of Courtroom 54 was that the Special Prosecutor was misreading the pre-trial agreement in an attempt to restrict the defence and ensure large chunks of the defence’s case – and supporting evidence – was ruled inadmissible.
As the defence put it, the pre-trial agreement was “not meant to fetter the cross examination for example regarding Mr. Bornmans immunity agreement, you want to be able to ask Mr. Bornman about his immunity agreement.” Berardino argued that kind of questioning was inadmissible.
A week later, with the jury back, Michael Bolton got up and asked Martyn Brown about Kelly Reichart and Kevin DeBruyckere. The defence won the closed door argument about admissibility. The Special Prosecutor lost.
That meant the way was clear for the defence to question Gary Collins, even Gordon Campbell amongst others, about these issues. The way was clear to ask about Reichart and DeBruyckere and about the RCMP steering the investigation away from Gary Collins. More importantly, the way was clear to introduce evidence supporting the claim.
We know that there are wiretaps involving Collins. We know he was a subject of the investigation in 2003. Then he wasn’t. We know that he was to be questioned over Christmas of 2003 then he wasn’t. We don’t know why.
Are there wiretaps of Reichart and Collins? Is there an RCMP report regarding the DeBruyckere and Reichart relationship? What about the evidence the RCMP gathered at the Villa Del Lupo meeting with Omnitrax? What was it that the defence wanted to ask Gary Collins? What evidence did they have to support their questions?
There was never any evidence or proof in court that any elected individuals including, Gary Collins, were involved in the commissions, DeBruyckere told VO. "The only proof of anything is that the agreed statement of facts are consistent with the police's theory in the fall of 2003. So despite all of the disclosure that was done as a result of the disclosure orders, we came back to what was the original police theory," he said.
But Justice Elizabeth Bennett ruled that much of what the defence had received from the government was relevant to the case and some of what they received went directly to the question of innocence.
With the end of Brian Kenning's pitiful testimony, Gary Collins was next on the stand. The prosecution must have known when they lost the admissability argument in June that this was going to be a difficult moment.
What we do know is in a two-week period leading up to the October 18 trial resumption, they lowered their plea bargain offer from four years in federal prison to two years of house arrest with lots of allowances, while the government kicked in $6 million and a non-disclosure agreement to sweeten the deal. And that was good enough to collapse the trial.
Here's why you should care.
This smells, more than Gomery, more than Mulroney/Schrieber. This stinks.
Shutting down the trial means you will never be able to know what really went down with the BC Rail privatization. You'll never know whether the deal was above board or whether the BC Liberals worked the deal to hand your railway to CN, a company chaired by Gordon Campbell's chief fundraiser.
And the hysteria from Gordon Campbell?
You be the judge.
Editor's Note: This story will be updated if further information or comments become avaliable. VO reached DeBruyckere after this story was originally published.