Crown prosecutors failed to prove corruption on the part of former B.C. legislature clerk Craig James, criminal defence lawyers argued to close a six-week trial in B.C. Supreme Court last week.
James is accused of three counts of breach of trust and two counts of fraud.
Defence lawyer Gavin Cameron argued James was subject to a political "crusade" by former Speaker of the House Darryl Plecas, who "polluted" Crown witnesses and propelled "sensational" media coverage against James who, at worse and if at all, committed some administrative errors.
"The evidence shows that Mr. James was transparent in relation to all of the alleged wrongful conduct, which precludes any finding that he deliberately, motivated by corruption and animated by deceit, by means of subterfuge or concealment, conferred benefits upon himself," Cameron told Associate Chief Justice Heather Holmes.
James terminated in 2018 following Speaker's investigation
James was escorted off the legislature's grounds by police in November 2018 following allegations of wrongdoing by Plecas. An independent investigation by retired Chief Justice of the Supreme Court Beverley McLachlin concluded James committed administrative misconduct. An RCMP investigation followed, leading to the criminal charges.
The Crown's allegations relate to a retroactive $257,988 retirement benefit James obtained by allegedly improperly using his de facto legislature CEO position. The allegations also relate to excessive travel expenses and the personal use of a legislature property, namely an infamous wood splitter and trailer.
"Yet, after more than three years of what can only be millions of dollars of investigative effort, leaving no stone or document unturned, the Crown cannot credibly suggest there was a personal collection of coins and stamps mounted in scrapbooks at Mr. James' home or forest in the backyard of his strata lot which was chopped down for benefit or gain," said Cameron. "There were no fictitious trips or fake expense claims designed to line his personal pockets, the type of conduct which one expects to see in prosecutions of this sort.
"This remains the infamous wood splitter trial," said Cameron.
Crown prosecutors Brock Martland and David Butcher painted a picture of James as someone who used his position to breach common standards of conduct for personal gain deliberately. Whereas Cameron told the judge, "The criminal law does not sanction breaches of codes of conduct, or acts of administrative indiscipline or administrative fault, even if deliberate."
Key to criminality, Cameron noted, is the intention or "mens rea" in legal terms.
"The question is whether his actions constituted a marked departure from the norm and were done with corrupt, dishonest or oppressive intent," said Cameron.
"The court must maintain a clear distinction between administrative fault and criminal fault," he argued.
"The Crown's case is overstated…" said Cameron, who put forth no case of his own.
Business expenses contested
Butcher began the trial trotting out souvenirs, books and trinkets from Britain to exemplify the personal nature of them. In total, about $13,000 worth of expenses is in question, from luggage to business suits.
Whereas prosecutors would suggest there's no purpose for Royal Monarchy items such as pillows and whiskey glasses to be expensed, Cameron said the legislature is tied to the Westminster Parliamentary System, birthed from said monarchy. And such items were used as gifts, as evidenced by Crown witnesses in some instances.
As for two business suits expensed by James, prosecutors argued the suits went beyond reasonable standards of expenses. They argued such attire is not chamber attire (black robe and white shirt), which would be a work requirement (as like a work uniform). Cameron argued that James intended to alter such attire via policy — like other legislatures or parliaments around the world — albeit unsuccessfully.
Furthermore, James submitted all his receipts; he didn't try to conceal the purchases, said Cameron. He said this flies in the face of trying to deceive the public purse fraudulently.
James in conflicts of interest?
The prosecutors argued James was in several conflicts of interest that he never stood down from. For example, the person approving his own expenses was his subordinate Hillary Woodward, the executive financial officer who worked alone in the clerk's office.
Cameron noted Woodward was a registered chartered professional accountant who was duty-bound to report wrongdoing — as were the other accountants processing his expenses.
Add to them, the respected Speaker of the House who oversaw the legislature and the high-ranking executive sergeant-at-arms position — and none filed a "single contemporaneous complaint of wrongdoing by Mr. James," noted Cameron.
In the few instances where James was questioned by legislature officials, such as a watch purchased abroad and a taxi fare, he immediately rectified his mistake, said Cameron.
"Two things are common to the entirety of these allegations: transparency and third-party approval," argued Cameron.
The wood splitter had 'red gas' in it when police seized it
Butcher and Martland submitted photos of the used wood splitter after James purchased it in 2017 and before it was returned to the legislature from his home a year after the fact.
It wasn't James' idea to buy the equipment, the defence team told the court. Instead, that was pitched by facilities manager Randy Spraggett. There was no proper place to park it at the legislature, argued Cameron, nor is there now, so keeping it at James' home (despite his wife's objections) was logical and certainly not criminal, court heard.
"One can in hindsight look at the acquisition of, and manner of acquiring and subsequently storing the wood splitter and trailer as being nonsensical — bureaucratic ineptitude in action," Cameron told Holmes.
Although seemingly slightly used, the defence argued the device had manufacturer fuel (red gas) in it. Cameron said there was never any direct evidence of use at James' home.
"There is no evidence Mr. James ever told a lie to anyone concerning the wood splitter and trailer. There is no evidence he acted deceptively. There is no evidence he was ever less than forthright and transparent with others about his actions and intentions regarding those items."
The two sides also waded through the fact there was no apparent policy for taking legislature property home.
Lawyer advised on retirement benefit
Cameron said James obtained the retirement benefit in February 2012 on the advice of a Queen's Counsel lawyer and at the approval of then-Speaker of the House Bill Barisoff. There's no evidence James acted with deceit to do so, noted Cameron.
The benefit is controversial because the lawyer, Donald Farquhar, was hired by James after retiring assistant clerk Robert Vaive demanded it retroactively. Muddying the waters for Holmes will be how a "capping" of the policy in 1987 may be interpreted. Cameron noted Farquhar testified he stood by his advice that all clerks, including James, would be eligible as the capping only applied to certain named clerks in a 1987 memorandum.
Cameron was critical of witnesses, such as payroll manager Dan Arbic, an accountant who admitted some errors of his own during his time at the legislature.
The defence lawyer also argued that James was trying to correct policy gaps; he pointed to James's audit working group.
Defence slams former speaker Darryl Plecas for allegedly 'polluting' witnesses, including new clerk
Cameron was deeply critical of Plecas, saying his report on James and now-former sergeant-art-arms Gary Lenz served to "save his political skin."
Cameron claimed many witnesses changed their stories on James because of Plecas, who Cameron described as being threatening toward them while investigating James.
Plecas was not called to testify by the Crown.
"The shambolic nature of that process and the pollution of witnesses it caused can and must be considered when assessing the credibility and reliability of the evidence at this trial," said Cameron.
Among the witnesses which Cameron cautioned against was existing clerk Kate Ryan-Lloyd.
"In relation to Ms. Woodward and Ms. Ryan-Lloyd, while it is not said that either set out to actively deceive the court, significant caution is required — both witnesses attempted to reconstruct history in a manner favourable to their personal interests and to put distance between themselves and issues which at the time were non-issue, but now have been subjected to a spotlight," said Cameron.
Cameron also mentioned how the entire matter has been subject to "sensational media coverage," starting from James being escorted out of the Parliament Buildings in front of T.V. cameras.
At one point, the defence team cited the case of former senator Mike Duffy, who, in 2016, was cleared of 31 criminal charges in a similar case involving alleged improper spending.
"The story the Crown wishes the court to accept is one which ignores and rewrites history, and stems from the release of a 'bombshell report' and associated media campaign…" submitted Cameron.