Martyn Brown: Prosecuting the B.C. Liberals

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      A trial date has been set for the Clark government: it officially starts on April 11 and judgement will be passed on May 9, by thee and me.

      As you enter the ballot box, it might be easy to confuse that political trial with all of the other legal trials and tribulations that could be rattling around in your head.

      Don’t be confused.

      The B.C. Liberals’ executive director, Laura Miller, doesn’t even go to trial until September. She is facing charges of breach of trust, mischief in relation to data, and misuse of a computer system to commit the offence of mischief.

      Those charges relate to her conduct in Ontario’s McGuinty government, back in 2012—a scandal involving that premier’s former deputy chief of staff about which Christy Clark was well aware before she hired Miller in 2013. The announcement of those charges led Miller initially to step away from Team Clark before she was quietly rehired months later as someone who was too indispensible to the B.C. Liberals to be without.

      That issue is not to be mistaken with the Clark government’s own ''triple delete'' scandal. It already resulted in former ministerial assistant George Gretes being charged with lying while under oath to the freedom of information and protection of privacy commissioner, back in 2015.

      He pleaded guilty to that offence last summer. Despite the special prosecutor’s request to impose the maximum fine of $5,000, he was fined a whopping $2,500.

      Then, of course, there were the charges laid in 2014 by special prosecutor David Butcher against a corporation and two of its directors, for violating the B.C. Election Act in campaigning for the B.C. Liberals in the 2012 Port Moody–Coquitlam provincial by-election.

      That case, too, was resolved, last May. The company pleaded guilty to one count of making an unreported political contribution and was fined $5,000, while the remaining charges it faced and the charges against the two Liberal campaigners were stayed.

      Again, that case is not to be confused with the “quick wins” scandal that was overseen by that same special prosecutor.

      After a three-year investigation process, last May he also charged one of those same individuals with breach of trust under the Criminal Code for his role in the ethnic outreach scheme, as the former communications director for the Clark government's multiculturalism ministry.

      As we all know, just days ago, a special prosecutor was appointed “to provide legal advice to the RCMP in relation to an investigation being conducted into indirect political contributions and other potential contraventions of the BC Election Act”.

      The special prosecutor? Once again, David Butcher. So much to keep track of.

      No worries, Butcher’s on the case, and that’s probably enough for most voters to remember on May 9, in prosecuting the B.C. Liberals’ record in office.

      Prosecutors must prove their case in court beyond a reasonable doubt.

      Citizens can take matters in their own hands

      For that one fleeting moment, as you hold that pencil in your hand to mark your ballot, you hold the only power that matters as the one special prosecutor that will ultimately decide the Clark government’s fate.

      With the stroke of your pencil, you get to play “Butcher”, as it were. So it helps to know a bit about the role and purpose of special prosecutors.

      The B.C.'s Prosecution Service Information Sheet is instructive.

      It explains that special prosecutors are appointed where it is considered in the public interest to have independent, arm’s length advice to aid investigators, or to make charging decisions in prosecuting a case.

      However, “a special prosecutor does not control, supervise, or direct the investigation. It is up to the investigators, once they have received any advice, to independently decide whether and how they should conduct the investigation; who should be investigated; and what evidence to gather.”

      How, then, to politically prosecute any government at the ballot box? Maybe we need a formal guide for that.

      Best to stay at arms’ length from it, for starters, in rendering your charge assessment. That party membership card, if you have one, might cloud your judgement.

      The lack of perceived independence in the media from the Clark government is already an issue. It is too often insufficiently arms’ length from its subject for the public interest, as Bill Tieleman recently highlighted.

      “Today’s” B.C. Liberals’ roster reads like a who’s who of former media glitterati—Steve Darling, Jas Johal, Pamela Martin, Stephen Smart, Ben Chin, Rebecca Scott, to name a handful—their media relationships couldn’t be cozier.

      Further, as the Clark government’s special prosecutor, you will just have to accept the fact that you can’t control the investigative journalists who are the lead investigators into its actions, and upon whose research you so greatly depend to make informed decisions.

      If they don’t do their job, it makes your task so much harder.

      Sadly, for every award-winning Kathy Tomlinson there are many more others who are either too overworked, too jaded, or simply too inept to get to the bottom of matters as you might hope and expect.

      Take the current campaign finance scandal, for example.

      It has now been 30 days since the Globe and Mail’s March 3 exposé. It documented several specific instances of donations made to the B.C. Liberals and the NDP by lobbyists who were reimbursed by their companies and/or clients, dating back to 2005.

      Such indirect donations are illegal under the B.C. Elections Act. Hence the Elections B.C. investigation, which was subsequently turned over to the RCMP and is now being assisted by the special prosecutor.

      Somehow those types of unlawful donations escaped the scrutiny of Elections B.C. for over a decade, as did the illegal donations from charities that Vancouver Sun has unearthed.

      The law requires all donations made in contravention of the Election Act to be returned within 30 days of when a party becomes of aware of those infractions.

      So-called clerical error clouds issue

      The Globe story alone documented indirect contributions made by named individuals that were far in excess of the $93,000 in prohibited donations that the B.C. Liberals have so far returned.

      They are refusing to give back untold thousands of dollars of contributions that were falsely reported to Elections B.C. as having been made from individuals, which, as I understand it, they now say were inadvertently attributed to those people who actually paid for the donations with company credit cards.

      The Liberals say they won’t return that money, because they issued the tax receipts to those “actual” corporate donors. It’s all just a “clerical error”, they suggest, that was due to the design flaws for receiving donations that they solicited through their website, which they set up in the first place. Unbelievable.

      We don’t know how far back the Liberals’ “internal review” covers, or the names of the individuals and companies that were falsely reported.

      It seems pretty clear, they have no intention of telling voters anything more than they are forced to about their own wrongdoing, or the true value and extent of their unlawfully contributed and received piles of cash, so long as the RCMP investigation is underway. Which could take years.

      As political special prosecutors, we might want to “advise” our lead political investigators—a.k.a. the paid professional journalists—to probe a little deeper than they have so far.

      Have the parties proactively contacted their donors to apprise them of their obligations under the law? Have they advised them of the problems they have identified, or the appropriate course of action for any donor who might have contravened the Election Act?

      Evidently not.

      Our media investigators might go to each party leader and directly ask them: what period did those in-house "reviews" cover? The last year or longer? 

      I believe the NDP said they went back three years. Receipts need to be retained for at least the last five years.

      Don't the parties have a statutory obligation to ensure they didn't "unwittingly" accept illegal donations over that period at least, or better yet, back to 2005, given the information now on the public record and the questionable donations already identified since that time by the media?

      Are they not obliged to do that, if only to aid and expedite the RCMP investigation?

      Or has anyone advised them not to do this? And if so, who, exactly? Surely not the police.

      British Columbia's former “top cops” might have some interesting (and perhaps conflicting) opinions on the proper course of action by the parties and their donors. We know that one of those former solicitors general has been actively involved in the B.C. Liberals’ fundraising efforts. What is his advice? And what is his successors’ and predecessors’ advice on that score?

      The media might push Elections B.C. to also be more forthcoming and proactive.

      What is its position on this, specifically in regard to the parties' and donors' obligations and appropriate courses of action? Has it given any direction to the parties as yet, and if not, why not? Ditto for all of the listed donors, for whom Elections B.C. also presumably has contact info.

      What is Elections B.C.’s plan, timelines, and protocols to set the record straight for any donations that have been, or might yet be, identified as having been improperly reported in the annual disclosures?

      Does it plan to do anything in helping to clarify who wrongly, if not illegally, gave amounts recorded in other individuals’ or entities’ names dating back to 2005—the first year for which public disclosures are available? Does it plan to go back even five years?

      Does it not also have an obligation to ensure that any amounts unlawfully contributed to any party is returned within 30 days of that information first coming to light? What is it doing about that, besides pointing to the law and temporarily washing its hands of the matter?

      Does Elections B.C. not have an obligation to at least clearly tell all B.C. voters what it knows about any misreported donations before voting day? Will it commit to providing that information and to publicly correcting the donor record as it learns about any wrongly reported contributions?

      OK, so assume it’s May 9 and your investigative media has done its job. Now it’s up to you.

      Crown's guidelines offer useful advice to voters

      Assume you are well-armed with lots of information about your prospective political choices to prosecute your case for voting for or against each of them at the ballot box.

      Your decision is a double-edged sword that will necessarily oblige you to cast your vote for justice.

      As one of a couple million special political prosecutors, you might want to turn to the Crown counsel policy manual Charge Assessment Guidelines for guidance:

      “In discharging that charge assessment responsibility, Crown Counsel must fairly, independently, and objectively examine the available evidence in order to determine:

      1. whether there is a substantial likelihood of conviction; and, if so,
      2. whether a prosecution is required in the public interest.

      A substantial likelihood of conviction exists where Crown Counsel is satisfied there is a strong, solid case of substance to present to the Court.”

      If you just want to see the Clark government getting its just desserts, you might be tempted to simply respond, “case closed” at that point. If you are still undecided, you will proceed to the charge determination step.

      Looking at your range of choices on May 9, you might think of the “substantial likelihood of conviction” criterion from at least two angles.

      With the RCMP investigation on campaign finances hanging over the two main parties’ heads, the first sense of that phrase seems clear enough.

      But know this: “In determining whether this standard is satisfied, [the special prosecutor] must determine:

      1. what material evidence is likely to be admissible;
      2. the weight likely to be given to the admissible evidence; and
      3. the likelihood that viable, not speculative, defences will succeed.”

      The leaders’ debate should shed more light on those issues.

      You can bet that any material evidence covered by an ongoing RCMP investigation will be ruled out for discussion by the non-Green parties as “inadmissible”.

      You can also bet that Christy Clark is already counting on you and all voters to not give very much weight at all to the material admissible evidence that makes its own case against her government.

      Scandals, systemic secrecy, blatant misuses of public funds for political purposes, indirect tax hikes, hidden debt, perpetual failures in child protection, deteriorating services in health care, education, public safety, the housing crisis, transit problems—the weight of that evidence is overwhelming.

      But not if Premier Pixie Dust can once again coast to victory on promises of jobs that she knows are all fairy tales that will never materialize.

      Sadly, the historic evidence suggests that the likelihood of that politically viable and entirely speculative defence might once again succeed.

      A new Twitter account called @TruthPodium pokes fun at the government's sloganeering.

      Does the public want a party with convictions?

      Then again, in politics, the phrase a “substantial likelihood of conviction” has another connotation.

      Here you have to turn the criteria on its head, to prosecute those who lack conviction, and to reward those whose conviction is substantially likely to be proven if given a chance to govern.

      The Clark government’s utter lack of conviction on almost anything that does not advance its own partisan interests should be reason enough for voters to seek the maximum democratic punishment possible.

      The other parties, by contrast, both offer voters a substantial likelihood of conviction to their policies and positions, which in the Greens’ case is arguably more principled than pragmatic.

      I mean, you have to have the courage of your convictions to go into an election vowing to more than double the current carbon tax over the next four years—a policy that I applaud, whatever its political merits or drawbacks.

      The B.C. Liberals would have us believe that John Horgan’s lack of a substantial likelihood of conviction to resource development and job creation is what should really define him.

      The B.C. Greens would have us believe that it is his lack of conviction on climate action and environmental protection that should be put on trial. Conviction, after all, is hard to prove or to convict.

      Which takes us to the other key test for deciding how to vote: namely, whether a prosecution is required in the public interest.

      The Charge Assessment Guidelines say “It is generally in the public interest to proceed with a prosecution where the following factors exist or are alleged" [select list]:

      • the allegations are serious in nature;

      • a conviction is likely to result in a significant sentence;

      • considerable harm was caused to a victim;

      • the victim was a vulnerable person, including children, elders, spouses, and common-law partners;

      • the alleged offender has relevant previous convictions or alternative measures;

      • the alleged offender was in a position of authority or trust;

      • the alleged offender’s degree of culpability is significant in relation to other parties;

      • there is evidence of premeditation;

      • there are grounds for believing that the offence is likely to be continued or repeated;

      Choose your issue and evaluate the Clark government on those factors. Most of them likely apply.

      By the same token, some of the public interest factors arguing against prosecution might also tell us a thing or two about where the whole campaign finance fiasco might be headed.

      A partial list of those considerations advises that “It may not be in the public interest to proceed with a prosecution where the following factors exist or are alleged":

      • a conviction is likely to result in a very small or insignificant penalty;

      • there is a likelihood of achieving the desired result without a prosecution by the Criminal Justice Branch;

      • the offence was committed as a result of a genuine mistake or misunderstanding (factors which must be balanced against the seriousness of the offence);

      • the loss or harm can be described as minor and was the result of a single incident, particularly if caused by misjudgment;

      • the offence is of a trivial or technical nature or the law is obsolete or obscure.

      • the length and expense of a prosecution when considered in relation to the social benefit to be gained by it;

      • the time which has elapsed since the offence was committed; and

      • the need to maintain public confidence in the administration of justice.

      Stephen Hui

      Ballot-box prosecutorial path is clear

      We might not be wise to hold our breath waiting for the special prosecutor to make his decision. That is, if and when the RCMP completes its investigation and ultimately decides to even submit a report to Crown counsel for charge assessment and possible prosecution.

      Anyway, quite apart from that scandal, I’d say we have more than enough evidence to prosecute the Clark government.

      In the public interest. And also for the substantial likelihood of its lack of conviction in keeping its word, or to ever delivering on the hollow promises it has made and will yet make in the weeks ahead to buy our votes.

      It may not be guilty of any criminal conduct. But in the political sense, you don’t need to have a law degree to know when you’ve been had, or to understand right from wrong.

      At a minimum, the Liberals have lost their moral compass and deserve a harsh verdict on voting day.

      If we can’t throw the book at them, we can at least throw them out of office, special political prosecutors that we all are.

      Martyn Brown was former B.C. premier Gordon Campbell’s long-serving chief of staff, the top strategic advisor to three provincial party leaders, and a former deputy minister of tourism, trade, and investment in British Columbia. Contact Brown at