Vaughn Palmer: Commissioner Cullen accepts one special standing, rejects another
Credit to Author: Stephen Snelgrove| Date: Tue, 29 Oct 2019 01:35:38 +0000
VICTORIA — Commissioner Austin Cullen handed down two rulings last week on applicants seeking special standing before the inquiry into money laundering, accepting one, rejecting the other.
Both decisions sent signals about the kind of inquiry that Cullen will be running — and also the kind he won’t be running.
On the positive side, Cullen granted participant standing to Jim Lightbody, president and CEO of the B.C. Lottery Corp. Though BCLC had already been granted standing, Lightbody persuaded the commission that his personal interests and reputation were at stake in the proceedings.
The commission has the power to make findings respecting “the acts or omissions of individuals” in contributing to money laundering in B.C. “and whether those acts or omissions have amounted to corruption.”
Lightbody, through his lawyer, noted how one of the foundation documents for the commission — the report of money-laundering expert Peter German — alleged multiple failings by the lottery corporation.
“All of Mr. German’s observations and criticisms occurred, it’s fair to say, on Mr. Lightbody’s watch,” his lawyer Robin McFee acknowledged. “Mr. Lightbody takes significant issue — significant issue — with a number of Mr. German’s observations and conclusions.”
The lawyer pointed out that if the chips were down the lawyer representing BCLC would owe his loyalty to the corporation, not necessarily to the CEO. Or, to put it less delicately, if someone at the lottery corporation were to be thrown under the bus, Lightbody might be a prime candidate.
The commissioner acknowledged that Lightbody might well be on the firing line as the evidence unfolds in public hearings scheduled to start next year.
“Because of his position, Mr. Lightbody may be subject personally to adverse comment or criticism arising from an adverse assessment of BCLC’s corporate actions,” wrote Cullen. “There is also a realistic prospect that advancing his individual interests or protecting his individual rights would place him in a position that is either incompatible with, or on a different trajectory from, BCLC.”
Cullen, who is a justice of the B.C. Supreme Court, emphasized that one of the guiding principles of the commission will be procedural fairness for those whose reputations may be at stake. So Cullen granted Lightbody limited standing “on matters involving consideration of his personal conduct and with respect to which his position clearly diverges from that of BCLC.”
The precise meaning of “standing” remains to be seen. Cullen hasn’t yet laid down the procedural rules for the commission hearings. However, in general, participants with standing get greater access to the proceedings in terms of legal representation than do those merely designated as witnesses.
Fred Pinnock, a whistleblower who led an enforcement team against illegal gambling in B.C. a decade ago, also sought standing. In a bid to strengthen his application to the commission, Pinnock submitted a summary of “his observations, recollections and opinions about certain political figures, bureaucrats and law enforcement officials in respect of gaming in B.C.”
But as Cullen noted, the material was of limited utility as evidence: “Mr. Pinnock is frank in stating that he personally has no documents or notes in support of any of the assertions made in this submission.”
The commissioner, finding Pinnock’s circumstances much different from those of Lightbody, rejected his application for standing.
“There is nothing to suggest that Mr. Pinnock’s reputational, legal or privacy interests are implicated in this Inquiry,” he wrote. “The thrust of Mr. Pinnock’s submissions is that he was attempting to overcome the apathy of those charged with the relevant responsibility; not that he was a part of it. In those circumstances, I am not satisfied that Mr. Pinnock has met the criteria for participant status.”
But if circumstances were to change, Pinnock would be free to reapply for standing.
Pinnock’s lawyer, Paul Jaffe, also argued that his client deserved standing based on his status as a whistleblower whose allegations led the New Democrats to appoint the inquiry.
“I don’t think one can overstate the importance that this commission be seen by the public as one that has a level playing field on which all the discrepant interests can be addressed,” argued Jaffe. “If (none) of the whistleblowers are able to be at the table and have the capability of participating whether through cross-examination or otherwise, it could, in my respectful view, be a problem for the commission down the road.”
But the commissioner turned the plea into a teachable moment about the nature of public inquiries.
“In light of Mr. Pinnock’s concern about levelling the playing field, it is important to clarify that public inquiries are not courts and that their function is different from that of a criminal prosecution or civil trial,” wrote Cullen. “The Inquiry is thus not adversarial and there is no need to level the playing field as between the participants.”
On the contrary: “It is customary, in public inquiries, that commission counsel are charged with the responsibility to obtain and adduce evidence in the public interest, which best equips the commissioner to discharge his or her mandate.”
The commissioner went on to say that Pinnock’s participation would be welcome in terms of “testifying, identifying other witnesses who may wish to give evidence or identifying documents that should be obtained and assessed.”
But “those efforts can and should be co-ordinated with commission counsel,” lest the whistleblower fails to get the message about how he does and doesn’t fit into the proceedings.