Is the Cullen Commission about to steamroll the Mounties?

In a previous blog your faithful and diligent blogger had opined about the state of white collar crime in this country and the obvious and pressing need to “follow the money”. Naturally, there seemed to be an obligation to follow the formal start of the Cullen Commission on Money Laundering in British Columbia. It will be one of the few government proceedings, where in essence, following the money will be the primary and necessary investigative step of the inquiry.

So for two and a half days this blogger watched the live streaming of the Commission, which began on February 24th, 2020, held in the bland and austere government appointed room at 701 West Georgia St. in Vancouver.

The pursuit of winding trails of money is almost always fascinating, although admittedly it is often easy to drown in the details. Understanding has to start with the basic but safe assumption that in our current society, that if there is money to be gained, and if you follow that money to the end, someone will have found either a legal or illegal advantage. Many, will be found to have tried walking that often moving line between fraud and simply taking advantage of ill-written policies, regulations, and lacklustre enforcement.

This commission is about to go down some roads built by political entities who were lured by the pursuit of unencumbered government revenues emanating from the vices generated by greed. The road will wind through the corridors of power once enjoyed by the Provincial Liberals, but likely will veer past the current governing New Democratic Party. The out-stretched political hands of British Columbia in recent years are to be sure a little dirty, stained possibly by a willingness to look the other way.

There is an old maxim that justice delayed is justice denied. This is rarely heeded by the variety of Commissions, Inquiries or government projects and this Commission will not be the exception. Headed by Judge Austin Cullen it is mandated to prepare a preliminary report in 18 months and a final report in two years. By the time this commission releases its preliminary report we may be in the middle of the next election in 2021. A report that has the real possibility of pointing a finger at the former Christy Clark Liberals will be just in time for the next election. Coincidence or good planning depends on your level of cynicism.

In their defence the terms of reference for this Commission are very broad; everything from gaming, horse racing, real estate, financial institutions, money services, luxury goods, and the legal and accounting communities will be examined.

Clearly, three days in, it is far too early to come to any conclusion on the possible findings by this Commission. But, what did become clearer, even at this early stage, was where the guns were soon to be pointing. Listening to the early proceedings was like being able to look through the sights of a long rifle, the targets evident, but somewhat blurry in the distance.

It was equally clear that those wearing the dark target circles on their chests know who they are. They have been preparing their defences and strategies for some time, having already hired their own hired guns. These are the ones that have applied and received “standing”.

You couldn’t swing a three ring binder in the somewhat austere courtroom without hitting a lawyer. The Cullen Commission itself has a total of nine lawyers, and there are twenty-four lawyers representing the eighteen parties who have been granted that “ standing “. Thirty-three lawyers and we are just getting started. The Commission is expected to incur costs of $15 million, with little doubt that the majority of the funds will be going to lawyer fees, as there is not much chance of anyone doing pro bono work here.

Charles Dickens said that “if there were no bad people there would no good lawyers”.

The British Columbia Lottery Corporation has already paid (up to March 2019), a total of $1.637 million to one of the Vancouver downtown firms: Hunter Litigation Chambers Law Corporation. This is for the services of high profile lawyer William Smart QC and Shannon P. Ramsay.

The fired, or let-go (depending on which version of the story you want to hear) former BCLC Vice- President Robert Kroeker has hired the high profile lawyer Marie Henein—who has been written about before by this blogger and her representation of Jian Gomeshi and Admiral Norman .

The current CEO of BCLC, James Lightbody, felt the need to hire his own personal lawyer; not satisfied with just the lawyers hired for his employer and instead has obtained Robin McFee QC and Jessie Meikle-Kahs of Sudden, McFee and Roes LLP. Mr. Lightbody is apparently currently away on medical leave.

These initial three days consisted of the respective lawyers for those with standing, making and reading scripted presentations. All, as expected, were self-serving documents defending of their own personal predicaments. The reading into the record, with an occasional question by Cullen was at times slow, tedious, and nuanced. But, there were some interesting takes and tidbits of truth buried under mounds of legalese and acronyms.

James Lightbody, ably represented by Robert McFee, began by outlining all the myriad duties and responsibilities his job entailed, and pointed out that he was always guided by the Board of Directors in terms of strategy and annual plans. He proclaimed that he was a stalwart defender of the “vision, mission and values” of the organization and that he had worked diligently to help fulfill “social responsibility”. That he shares the public concern and always recognized the threat brought on by money laundering.

It will be remembered that previously unnamed sources have alleged that senior management at BCLC had turned a blind eye to what was going on. Lightbody argued that the evidence will show otherwise, that he made “active efforts” and that he brought in greater co-ordination with law enforcement.

The lawyer was also quick to point out that the role of BCLC was one of “Detecting, reporting and supporting” the enforcement and regulatory government branches and added that he had been pressing for more resources since 2011. He said that through him BCLC had initiated a sharing agreement with RCMP in 2014 and that JIGET (Joint Intelligence Gaming Enforcement Team) was supported and partially funded by BCLC.

Then there was the statement of Robert Kroeker, who was represented by Christine Mainville of the firm headed by Heinen. Kroeker was the former head of Security and Compliance for almost four years, but left suddenly in July 2019. He was the fourth high level executive to suddenly leave the Corporation within a year. The others being Bohm, Delinski, and Hobson. All four were earning over $240,000 per year. There was no confirmation of their having been fired, but all this occurred after Peter German’s report in 2018. Kroeker was replaced by the Vice-President of Casinos Brad Desmarais.

As an aside. If these names seem familiar; Kroeker was a former RCMP officer and was the head of Security for Great Canadian Gaming Corporation which includes the highly profiled River Rock casino, before joining BCLC. Prior to that he was a former director of BC Civil Forfeiture office. Brad Desmarais was also a former RCMP and Vancouver City Police officer and and had overseen the bungled rollout of the anti-money laundering software in 2013. Kroeker had also been appointed to a chair at the Justice Institute from which he eventually resigned under pressure after the German report.

Former Mounties have their fingerprints everywhere. Kevin deBruyckere, also a former Mountie, who at one time headed up Commercial Crime and then went to HSBC, is now the the Director of Anti-Money Laundering and Investigations at BCLC.

It seems that BCLC became a second lucrative home to many of the executives of the RCMP. Even potential witnesses Fred Pinnock and Joe Schalk are former Mounties. Peter German of course is a former Mountie. And it is rumoured that former Liberal Cabinet member Rich Coleman is going to end up being the focus from the former Liberals. He too is a former Mountie. It all seems rather incestuous.

In any event, Kroeker his lawyer said, looks forward to testifying and also defending the various “false” assertions against him. Mainville indicated rather forcefully that her client will testify under oath.

She went on to outline how Kroecker was in charge of regulatory affairs from 2006-2012 and had worked “extensively” with police and that during his time the Director of Civil Forfeiture had recovered $30 million.

He claims to have called for a tracking and monitoring of STRs (suspicious transactions reports) and it was also his understanding that after the review by FINTRAC that all activities had been cleared of wrong doing. He pointed out more than once that all information was passed on to the “authorities.”

Kroecker said that he “tried” to get the police and the regulator to investigate through 2013 and onward. That he “urged” investigations and was told by “Senior RCMP management” that all things inside BCLC and the Casinos were fine —that they were doing their part in the battle of money laundering.

In June 2014 Kroecker said that under his direction an information sharing agreement with the police was constructed. That BCLC had been led to believe that the police would investigate and that they continually raised alarms. But that subsequently there was no evidence of police investigation, nor were any investigative steps being taken. Officers with police powers were needed, he underlined, to get involved— and they weren’t. Calls for investigation were repeatedly “ignored” according to Kroecker.

In one interesting side-bar, Kroecker indicated that he tried to implement a “chip replacement” program to counter the constant holding and misuse of casino chips. It needed to be done with some stealth but that the program was delayed by GPEB (Gaming Policy and Enforcement Branch) thus allowing some of the nefarious actors to get rid of the suspect chips.

Anon and malicious claims that he allowed “dirty money” to flow into casinos were patently wrong he said and that he has been cleared of this false allegation by GPEB. GPEB determined them to be “unfounded” and the “matter was now closed”. He expressed frustration that he had not been interviewed for the German report, which at first glance does appear to be a rather curious. An administrative fine against BCLC in 2010 was explained away as resulting from “technical deficiencies between FINTRAC and BCLC. He pointed out that the fine was eventually set aside.

There were other presenters.

Members of the Notaries Public appeared, clearly worried as to the allegations of impropriety in real estate transactions that have been alleged. Predictably they too claimed that they have been doing due diligence all along. They went further in saying that currently legal investigations and regulatory bodies are fundamentally “broken”. That through no fault of their own, money laundering convictions are rare. They said that the sharing of information with them was rare and would have gone a long way to make a dent in what was going on.

They mentioned being part of Project Athena, but this project got side-tracked when it took 11 months for the RCMP to get information from FINTRAC. They even implied that maybe the Stinchcombe decision on disclosure was hurting investigations.

The notaries expressed surprise that the Financial institutions were absent from the Commission. They opined that they needed and should be present and agreed with the Kroeker lawyer that money that was being laundered may be being done through banking institutions. They lamented that the financial sector have almost been ignored and may in fact be needed to help explain the problem of money laundering.

BMW was also granted standing and made a presentation that spoke about the “grey market” in high end luxury cars and the use of “straw buyers”. Money launderers were buying vehicles for shipping out of the country and then went on to describe a loophole allowing the funnelling of monies through these purchases and their subsequent applications for Provincial tax refunds. They stated that they too had passed on information to the authorities.

The Great Canadian Casino Corporation counsel also appeared. Part of its conglomerate is the River Rock Casino. They described a highly regulated industry that was at times audited by FINTRAC. They too spoke of the fact that they were not investigators, they had a duty to report, which they insisted they did profusely.

Of course the Provincial Government and the Federal Government were also present. Their presentations were guarded and as one listened you were left to wonder if there ever was a problem. All, according to these two presenters were functioning as designed and GPEB and FINTRAC were guarding our interests with diligence and concern. Acronyms and current bureaucratic buzzwords bounced off the walls with abandon, “best practises”, “working with stake holders”, and the “regime” of regulation and investigation. Of course there are the Committees, the many Committees, all designed to “educate” and involved in “intelligence gathering” and “sharing”.

The Feds did outline the vagaries of FINTRAC and outlined how a mind warping 2400 agencies and service providers reported to them. But then they reminded the Commission that they are about regulations and oversight and all criminal activities would be pointed to the Police and Crown.

At the end of the three days, where does all this predictable posturing leave the taxpaying public?

You are left with the impression that there are three spinning tops— three divided layers, none of whom seem to be interacting in anything approaching cohesion. The Federal government spins in their isolation, the Province is eager to point at the previous administration; and at the ground level are the Casinos, the racetracks, the car dealerships and the housing industry. Most will clearly point at the Police, FINTRAC and any one else charged with enforcement.

What is curious is that the RCMP did not ask for standing with the Commission.

This could either be explained by: their hope to hide behind the camouflage and obfuscation of the Federal bureaucracy, a common default position, or, that they are in denial of this Commission doing them any harm. Unfortunately, they may find there is little defence for dereliction of duty. Hopefully, they are now at least paying attention.

Photo courtesy of Images Money via Flickr Commons – Some rights reserved

Mixing Gender Politics with Sexual Assault

It was 1970 when Kate Millett wrote the book “Sexual Politics”, a book that would go on to become one of the bibles of the still burgeoning feminist movement. Suffice to say, it has been awhile since the process of recognizing women and their equal contributions to society began in earnest and now is still leading us into the 2020’s decade. All efforts have called for a dynamic reckoning; a need to recognize the goals of “equal pay for equal work”; greater representation in the boardrooms, courtrooms, and political offices of the country. It has reached into the very core of society, demanding fundamental change in the family structure, where sharing of responsibility is absolutely necessary in forming an equal partnership.

Many argue that the “glass ceiling” is still alive and well, despite notable progress and female politicians still wear the term “feminist” as a badge of honour. In this decades long continuum of proposed and achieved change, we have reached a point in this country, where it is now political suicide to suggest or propose anything that could, even in some obscure reference, be termed to be “anti-female”.

One must applaud the majority of changes which are enabling women to assume their rightful place in society –where nothing should be allowed to block them from reaching to the highest levels in whatever chosen endeavour.

The sexual politics of this country, historically, has been multi-layered and arriving in sporadic waves, sometimes taking a step back, only to go forward again. It seems that in all generational movements, not just the women’s movement, all change is pushed, at least at the outset, by the radical fringe which then draw in the reluctant middle majority. The fringe then becomes part of the new centre.

The Gloria Steinem‘s and the Ellen Willis’ of the world are needed to pull, prod, and chastise the non-conformers. Those who cling to past practises and policies are portrayed as “dated” — out of step with the basic tenet that everyone is created equal. The right to vote was an inalienable right, but just a single step to righting centuries of illogical, often inhumane and constricted female lives.

The #MeToo Movement is the latest incarnation or wave in this pantheon of women’s rights and it has in fact served a very real purpose. Reading Ronan Farrow’s recent book, “Catch and Kill” one can not help but be moved and angered by the still prevailing winds of male domination and entitlement that blow through, in this case, the news and entertainment industry. All males should and need to be embarrassed.

The likes of Bill Cosby, Matt Lauer and Harvey Weinstein, are the more notable recent American examples, all of whom needed to be pursued, outed and prosecuted. That process has begun in the United States and to a lesser less obvious degree in Canada. One wishes that the RCMP had taken such a hardened and exposing approach to cleaning out the male locker room of the RCMP.

The fact that the RCMP was often a cesspool of male domination was difficult enough to publicly absorb, but the real stain on the RCMP may be the decision to settle the class action suit(s). Thus effectively forever silencing the various allegations; which with little doubt reached the very top of the organization. The circumstances demanded radical surgery on the organization, a cut into the heart of the organization. It would have meant lengthy and costly investigations, but in the end it would have gone a long way in exposing and cleaning up the disease.

Justice was not served by payments of hundreds of millions of dollars, justice was in fact denied or at the very least diverted.

Women were paid to keep quiet about their allegations and all men, innocent or otherwise in this once proud organization were sloppily painted with the same brush. How this determinative action was going to change the “culture” remains undefined— in fact it may be the greatest cover-up ever pulled in Canadian history.

That all being said and despite the many wrongs, one must always be vigilant to the need for fairness, always seek the truth with the goal of ultimate justice. It needs to be recognized that change, or at least legitimate and broad change, takes time. One can not rush cultural change and any change which is patently unfair only sets the movement backwards.

All of which leads to a relatively recent troubling development in the area of sexual offences. To understand the problem you need to understand the current political environment.

The #MeToo Movement has an outer fringe who often take the view that if “she” said it, it is true. They are effectively ignoring that there is a tricky balance. On the one hand one is hearing from brave women talking about the wrongs from past years and only now are women, no doubt emboldened by this movement, have had the confidence to come forward.

The other darker side of the argument is that a wrongful allegation once made, especially in this 21st rush to judgement society could condemn an innocent person to jail. The accused ostracized to the point of being unable to function– their entire lives up-ended. The truism that holds that two wrongs don’t make a right should always be firmly in sight and one must always remember that the fundamental building block of our justice system is the “presumption of innocence”.

The current Liberal government has made over reaction into an art form. No trending cause is too small –if it polls with the right audience, then it needs to be enshrined in policy, regardless of the ultimate damage or outcome. No need for informed study, if it twitters favourably it must be good.

Hence, we now have a discombobulated piece of marihuana legislation and the idea has been born that individual cities should govern the banning of firearms, according to their own city views. These ideas and subsequent legislation gain favour and the head bobbing politicians standing behind the podiums go right along, seemingly undeterred by common sense or any thoughtful opposition. Millennial appeals to voters are good, outcomes the future and someone else’s problem.

The feminist movement, even in radical form, is just one of those causes which according to all the “progressives” can not be questioned. There are other examples like the indigenous, or climate change. No need for study, no need to question, no need for expertise.

In promoting the feminist cause, in their zeal, this government has brought us such things as: a new government department formed around the previous “Status of Women” counsel; “gender-based analysis” for the Federal budget, which among its mentions is that they codified the need for “more women in senior management positions”; Bill C-65 which governed the Federal government workplace, amending the Canada Labour Code focussing on the need to remove harassment and violence from the workplace.

All of this can or may be grudgingly accepted, as it is often difficult to argue against some of the intent of these enactments, however flawed in their application some of it may be.

But where the government overstepped was in the passage of Bill C-51. This was a piece of legislation also introduced by Jody Wilson-Raybould, often a martyr of the fringe, one who had no quibble with interfering with the justice system if it involved her pet causes.

Bill C-51 is an example of the fringe demanding and finding a receptive audience among the Liberals and those #MeToo members who believe that no woman can be deceptive, or less than forthright, about anything that purports to be some form of sexual assault or harassment.

For those who have not followed this Bill (which, it should be added, passed Parliament with All Party support) deals with future conduct for the trial of those accused of sexual offences and was designed primarily to further protect the victim or the accuser.

And if you are in the group of believers in the women’s right to allege and be always believed, than you need to consider the case of Jan Gomeshi. This bill, C-51 was, many have argued, in response to the subsequent total acquittal of Mr. Gomeshi and the fringe feminist public backlash at the results.

During the trial the two primary witnesses had their credibility totally destroyed by the uncovering of emails and text messages which they sent before and after the alleged assaults and rapes. They were confronted with this direct, difficult to deny evidence, by the more than capable lawyer, Marie Heinen. She personally took a great deal of heat from the “I believe accusers” group which included politicians such as Tom Mulcair. Paradoxically, she in her role, should have been heralded as one of the true examples of someone carrying the torch for feminism.

Bill C-51 came on the heals of the Gomeshi trial which pitted the arguments for a fair trial against the argument for the protection of the accuser victim. Bill C-51 passed in December of 2018. Jody Wilson-Raybould heralded it as the “first major update in 20 years”, while others quietly called it quite simply “unconstitutional”. As the bill now begins to be applied throughout the country it seems that the courts are now recognizing it as in fact being “unconstitutional”.

The bill in effect sets up a screening feature which necessitates that all defence records; things such as texts, Facebook entries and other social media, get to be scrutinized ahead of the accuser’s testimony in admissibility hearings. This has the effect of giving an alleged victim a sneak peak at the defence evidence which could have the obvious effect of allowing the Crown, and the accuser, to tailor their evidence in anticipation of that evidence. Effectively warning them in advance of something countering their evidence. It is “reverse disclosure”.

The Saskatchewan and Alberta Superior Courts now have stated that this Act violates Section 7 of the Charter of Rights which deals with the right to make full answer and defence, and it also contravenes Section 11 (d), which assures the right to a fair trial.

The Crown, obliging its masters argues that the Act is fair and Section 1 of the Charter allows for reasonable limits that can be justified in a free society.

The defence argues that this is going to lead to “wrongful convictions”.

In Parliamentary hearings groups such as the Womens Legal Education and Action Fund argued that this was “necessary”. Were they arguing the possibility of wrongfully convicting someone was “necessary”?

There is little doubt that this Act and its provisions will wind its way to the Supreme Court of Canada. Hopefully, even those Liberal leaning Justices may find that clearly weighting a case in favour of one side over the other, is a little too much bending in this era of professed enlightenment.

After the Ghomesi case, Peter Mansbridge interviewed Marie Heinen, in an interview which Mansbridge entered clearly in support of the leftist fringe on his cue cards. An interview intended to lament and repeat the fringe feminist maxim that all women accusers are right and truthful.

Heinen was forceful and deliberate in her counter-argument. She succintley pointed out that most evidence is circumstantial and thus often goes to credibility. The credibility of all involved; the Crown, the defence, the accused, the accusers, and the police. The central point being that all evidence needs to be tested.

Everyone needs to “get a fair shake”. She points out it is what separates our justice system from that of others and it is indeed what makes this country worth defending.

As to the feminist fringe who rage about the outcomes of any acquittal, she simply states “guaranteed results is not justice”. This is one defence counsel lawyer that every police officer should listen to, along with all of those in the feminist corner. We as a society must always be aware that legitimate progress requires full and honest examination. The price is too high otherwise.

Photo courtesy of gt8073c via Flickr Commons – Some rights Reserved