Gabriel Yiu: No "reliable, independent evidence” in the Kash Heed case?

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      Peter Wilson, the second special prosecutor assigned to investigate the Kash Heed affair, cleared the former solicitor general because “there is no reliable, independent evidence.” I find this conclusion intriguing.

      It’s because there is a huge discrepancy between the special prosecutor and the RCMP on the part that involved Heed. But Wilson has found no problem using the RCMP evidence to charge Heed’s campaign manager.

      Let’s recap what has been made known to the public.

      The first special prosecutor, Terrence Robertson, stepped down after he exonerated Heed, because of a conflict of interest. It was revealed that Robertson’s law firm had donated $1,000 to Heed’s campaign.

      The Law Society of B.C. assigned a three-member panel, which included former Liberal government cabinet minister Claude Richmond, to look into Robertson’s conduct.

      The law society has determined that no disciplinary hearing is required.

      After that, there was a breakthrough in the case.

      Sameer Ismail, a Heed campaign worker, came forward to the RCMP on his own initiative to admit his involvement in producing allegedly illegal pamphlets.

      He provided information to the police, which they would not otherwise have learned. He helped police to find out that Heed’s MLA constituency office had used $6,000 in public funds to pay the campaign manager, Barinder Sall, and Ismail.

      In the document—the information to obtain search warrants, dated October 25, 2010—Sgt. John Taylor laid out the evidence of the case thoroughly. He concluded that “Kash Heed committed the offence of breach of trust” and “took an active role in the presentation of false or misleading information in the election financing report” (page 88).

      The document that Taylor submitted in court was sworn to be the truth. He laid out the following direct and circumstantial evidence against Heed:

      1) Heed’s constituency office issued two cheques amounting to $6,000 to Sall and Ismail on June 24, 2009. The RCMP obtained copies of these cheques. The cheques were printed on the search-warrant document (pages 80 and 81).

      2) The amount written on Barinder Sall’s cheque was $4,000, whereas Ismail’s was $2,000. Both cheques were cleared on June 29, 2009 (page 77).

      3) Heed's constituency assistant told the RCMP “that [Kash Heed] knew what [the two cheques] were for” and Kash Heed knew they came from public funds (page 78).

      4) “Kash Heed told the police that he did not pay Barinder Sall for anything after the election, in any capacity, or for consulting, or for anything”¦” and “Sameer Ismail never did any work for the constituency, voluntary or otherwise, at any time” (page 63).

      5) “Sameer Ismail was a volunteer in Kash Heed’s election campaign; during the campaign, Sameer Ismail was asked to take on additional responsibility on behalf of the campaign, and to be accountable for this responsibility to Barinder Sall; Barinder Sall agreed to compensate Sameer Ismail in the amount of $2000.00 for his additional campaign work; this compensation to Sameer Ismail was not paid during the campaign”¦ Sameer Ismail received the $2000.00 constituency cheque from Barinder Sall, after it was signed by Keith Frew [Kash Heed’s constituency assistant] and Kash Heed, in payment of the services he had rendered during the campaign” (pages 62 and 63).

      6) The RCMP obtained a series of text-message exchanges between Sall and Ismail regarding when Heed’s constituency office would receive the government funds and when Ismail could get paid (pages 73 to 76).

      7) A newly elected MLA is entitled to receive $4,000 for furniture and $2,000 for an office startup (pages 71 and 72).

      8) Heed took over Wally Oppal’s constituency office in Vancouver-Fraserview. The RCMP compared the inventory list of both offices and found that “there is one less shredder, six more wastebaskets, one more chair, and one more credenza” at Heed’s office (page 72).

      9) For Heed’s constituency, after deducting the wages of the assistants, only “about $150.00 would go into the bank account on a monthly basis” (page 76). What that means is that $6,000 is not a small amount for Kash Heed’s office.

      10) On page 85, Sergeant Taylor wrote that “from reading Part 10 of the Election Act that: a. the payment to Sameer Ismail would represent an election expense; b. election expenses would have to be reported in the election financing report of the financial agent, Satpal Johl.” On page 86, Taylor stated that when Sall and Ismail got the cheques from Heed’s constituency office, there was a bank account named “BC Liberal Campaign to Elect Kash Heed”. The campaign account was open at the time with a $29,000 balance, which would have been an adequate balance to pay for Ismail. “If a cheque had been written to Sameer Ismail from the campaign account, this expense would have had to have been included in the report of Satpal Johl (financial agent).” And yet, Ismail was paid with Heed’s constituency cheque.

      Against that, the special prosecutor determined that there is “no reliable, independent evidence” against Heed. How did Wilson reach such a conclusion? He offered no explanation to the public at all.

      “Special Prosecutor Peter Wilson also considered whether under section 266 of the Election Act, Mr. Heed would be found to have committed the offence of filing a false Election Financing Report. Under that section of the Election Act, an individual is not guilty of an offence if that person did not know that the information in an election financing report was false or misleading and, with the exercise of reasonable diligence, could not have known that it was false or misleading. There is no reliable, independent evidence proving that Mr. Heed knew of, or could with reasonable diligence have learned of, any unreported election expenses.” (Statement by Criminal Justice Branch on Kash Heed investigation)

      However, did Kash Heed exercise reasonable diligence? The RCMP appeared to have a different opinion on this, too. On page 42 of the information to obtain the search warrant, it states: “In his second statement, Kash Heed said that he depended on the expertise of others to lead him through, to guide the campaign, and to make him successful as a candidate.” In addition, “Kash Heed was asked how closely he monitored the campaign finances during the election. He responded, 'I played no role in monitoring those finances. We had qualified people in place to do that.' ”

      It's interesting to note that when Heed was asked about his knowledge of the illegal pamphlets, he said that he knew nothing about them because he "depended on the expertise of others" and he "played no role in monitoring those finances".

      But in defence of his failure to file a false election-financing report, Heed exercised "reasonable diligence".

      So the RCMP spent one-and-a-half years investigating, but could not find reliable and independent evidence? Does it mean that the RCMP had done a bad job in their investigation? Otherwise, how come their evidence was determined as not “reliable" and "independent”?

      Why is only the part related to Heed problematic and yet his campaign manager was charged?

      Because of the investigation, the former solicitor general was forced to step down twice. His personal reputation as well as the government's, was in disrepute.

      Why does Wilson think “there is no reliable, independent evidence” in the face of the evidence cited by the RCMP? Was the RCMP in error? Or did the special prosecutor err in his judgment? Or, as Heed told the media, the RCMP was out to “discredit/sideline” him?"

      All these possibilities are matters of grave concern to the public; they are matters of fairness and integrity, and should be followed up. The matter cannot be given an abrupt end.

      In addition, the B.C. Liberal government owes it to the public to state clearly whether the $6,000 in Heed's constituency office has been misappropriated or not. Who should be responsible? Why is it that no one has been made responsible for it?

      The special prosecutor's pronouncement has not put an end to the Kash Heed affair; it raises more questions that are troubling to the public.

      Gabriel Yiu is a small businessperson and ran for the NDP against Kash Heed in Vancouver-Fraserview in the 2009 provincial election.




      Apr 12, 2011 at 8:14am

      It would in my opinion have to be outright evidence. Oh... didn't we have that in this case? Didn't we have that in the sale of BC Rail? Hmmmmmm....... something going on here I suspect.

      Keep it Real

      Apr 12, 2011 at 10:36am

      With all due respect to Mr. Yui, his comments indicate that he has little understanding of Canadian criminal law and what is required for a prosecution. The public shouldn't be too surprised here - Kash Heed is not dumb, he had 25+ years in policing, enough to figure out how to isolate himself from the backroom shenanigans that his campaign aids will now take tht fall for. What I can't believe is that the fact that this illegal pamphlet has been shown to come from Heed's campaign isn't enough to void the election results and force a by-election, which Mr. Yui would win, hands down.

      Taxpayers R Us

      Apr 13, 2011 at 12:05am

      Troubling to the public or just troubling to the Chinese Community?

      Concerned Group 2

      Apr 13, 2011 at 12:12am

      When a judge finds a person guilty or not guilty, the judge has to explained his/her ruling, whereas for the Special Prosecutor, he/she doesn't need to explain why a case would be discharged. Is there any wonder why all the Liberals who are lucky enough to have their case dismissed by the Special Prosecutor?