EPISODE #3: FOX DEMANDS “CRIMINAL INVESTIGATION” OF GHIZ & STEWART

Cover for Episode 3

PREAMBLE

Episode #2 explained how the King Government’s position on Robert Ghiz and Neil Stewart deleting government records is NOW sadly the same as that of Judge Campbell and the two previous Liberal Governments.

The PC Government is now asking three PEI Appeal Court Judges to believe that neither Robert Ghiz nor Neil Stewart did anything wrong when they ordered all government records belonging to the Chief of Staff and a former Deputy Minister involved in e-gaming to be destroyed without first backing up those records for the Provincial Archives as the law requires.

How can the King Government expect the Appeal Court Judges to believe Ghiz and Stewart were simply following the same “standard procedure” in place at the time for all employees leaving their jobs in the PEI Government when the PC MLAs never believed that themselves and still don’t!  CMT’s best “witnesses” against the King government’s filed statements on this issue would actually be PC MLAs being asked to read aloud to the Court from their own statements in Hansard!

The PC MLAs were not only aware that provincial laws had been broken and policies and procedures circumvented when Ghiz and Stewart ordered records destroyed – they already knew that much in 2017, as is evident from the video clips of Myers in the previous episode – but came to believe there were grounds to believe each had committed a crime by destroying records. 

By early 2018, the PC Caucus had acquired a good deal of additional information and evidence and had come to believe that sufficient grounds existed to warrant a criminal investigation into the deletion of records by Ghiz and Stewart, which they demanded Premier MacLauchlan launch. 

The following three clips are from the Spring, 2018 sitting of the Legislative Assembly and feature PC Opposition MLA for Borden-Kinkora, a former Chief of Police, and Justice Critic for the PCs at the time, Jamie Fox. 

What Fox had to say THEN raises the question of why the King Government is not NOW doing what the PC Party was demanding from the MacLauchlan Government less than two years ago:  launch a criminal investigation into Ghiz and Stewart’s destruction of government records?

That could still happen if the political will existed within the King Government to act on what it promised it would do in response to government corruption and coverup.  Keep all of this in mind as you watch the following three clips.

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1coverpageMr. Fox relied on documentation contained in a report that I had just published titled “Did Robert Ghiz and Neil Stewart Commit a Crime?”.  That report contained information about the recent conviction of David Livingston in Ontario. Livingston had been sentenced to 4 months in jail for destroying provincial government records in the Premier’s Office to cover up a Liberal scandal.

My research concluded that sufficient grounds exist to believe that criminal intent motivated both Robert Ghiz’s and Neil Stewart’s respective decisions to destroy sensitive government records on a “secret” government file operating outside the normal framework of Government. That conclusion was based on many facts, documents, and arguments, most of which related to one of two things:

  1. The laws, policies, procedures, processes, and people involved in the management of PEI Government records. This revealed that deliberate planning and circumvention of those laws and procedures would have had to have happened intentionally; and,
  2. The legal arguments and principles in the recent precedent established in the Ontario case where former chief-of-staff, David Livingston was found guilty of an “Attempt to Commit Mischief to Data” for illegally destroying government records in contravention of Ontario’s provincial Archives and Records Act.

That’s where my research began – studying the Livingston file and the legal process and outcome – and that’s where Fox’s questioning of the Premier on the similarity between what Livingston, Ghiz, and Stewart all did began as well, followed with a question to the Premier on whether he would call for a criminal investigation of Ghiz and Stewart based on this new evidence. Other questions not included in this post had to do with whether the PEI government would consult with the OPP who had expertise in investigating government record deletion about the PEI situation and perhaps contract them to do an investigation. This first clip is where Fox mentions the Livingston case.

 

 

Fox followed up with a question asking whether the Premier was concerned that senior people could so easily get away with breaking the law and destroying the government records of other senior bureaucrats – two of whom were in conflict of interest situations on the e-gaming case – with absolutely no consequences. Fox again equated those acts with the criminal act of “mischief to data” for which Livingston was sent to jail.

 

 

Fox had anticipated that Premier MacLauchlan would simply defer to the authority and expertise of the Auditor General and the RCMP and had a third question ready on the inadequacy of the RCMP’s investigation.  The Premier’s claim that the AG didn’t find any grounds for “criminal charges” to be laid was entirely inaccurate and misleading.

We don’t yet know exactly what the Auditor General told the government regarding concerns around the potential for criminal activity. Any such concerns would have been communicated in that infamous “Management Letter” she sent to Premier Maclauclan which has never been made public.  Paul Ledwell in the Premier’s office recently told me that the letter couldn’t be located after I submitted a FOIPP request asking for it, and the matter is currently under investigation with the Information Commissioner.

It should also be pointed out that the AG did tell members of the Public Accounts Committee about her concerns over potential “insider trading” and “conflict of interest” when she discovered, for example, Billy Dow had invested in an egaming company on a file he was working on at the time, something else for which there have been no consequences. That was something she told the Committee members that she had included in the Management Letter to the Premier and that she also had direct communications about with the Department of Justice.

Yet MacLauchlan said she never said there was anything “criminal” – something completely outside her capacity and mandate. What was within her mandate was to bring “possible” criminal activity to the attention of authorities in the Department of Justice and Attorney General’s Office which she did.

And the AG did confirm with the Public Accounts Committee that concerns about deleted records and conflicts of interest were shared with the Department of Justice in the course of her audit.

As for Premier MacLauchlan’s expression of satisfaction that the RCMP did a thorough investigation of the matter and found no grounds to lay any charges, that response was just an attempt at deflection from the fact he had just heard from Fox; namely, that I had learned that the RCMP did not do any investigation into PEI Government record management policies, procedures, and laws, and could therefore not have drawn any conclusions about there being no grounds for criminal behaviour…sure, they could accurately say that they didn’t find any grounds to lay criminal charges, but probably should have added that they didn’t look very hard.

Ignore the heckling comments and mocking laughter from the Liberal side of the House when Fox mentions my name. Focus instead on the fact that the PC Caucus THEN – comprised of members who are NOW Cabinet Ministers in the Government –  believed that my research and documentary evidence was credible enough to table my report in the PEI Legislative Assembly and spend two days asking the Premier questions based on that research. 

 

 

MacLauchlan said he didn’t have much to say about the “source” of the information he just heard from Fox about how the RCMP admitted they did not conduct an investigation into the record management practices of the government – he actually didn’t have anything to say.  He completely ignored what Fox reported Sgt. Shaw had said as if it wasn’t true, but it was true then and it is true now.

Here is a verbatim section of the transcript of my interview with Sgt. Shaw. Ask yourself if what he says gives you any confidence that a “thorough, thorough, investigation” happened:

Me: “So your conclusion was that they were deleted accidentally?

Sergeant Shaw: “No”.

Me:  “Because of some protocol that was perhaps misread?”

Sergeant Shaw:  “I’m not certain what the mechanism….I’m not sure what the mechanism was, ya know specifically, for them to be, whatever information to be deleted.”

Me: “But why would they destroy such sensitive documents when the law says they have to be retained and in fact, they were compelled to allow that decision to be made by the Archivist and…”

Sergeant Shaw: “…the provincial government have standard operating procedures and things that I’m not privy to, I don’t know how the government works, but where they keep things for certain periods of time, they retain certain stuff, but you can’t’ keep everything all of the time…”

But that’s pretty much where the PC push to have the Government initiate a criminal investigation ended – they knew that was never going to happen under Premier MacLauchlan.

It was at that point I undertook a much more thorough investigation of the matter which eventually led to me filing a private criminal prosecution against Ghiz in the Provincial Criminal Court.  The evidence in the brief that I had prepared for that Court Hearing was far more detailed than the report Fox tabled in the House.

But Judge Orr shut that down in the blink of an eye and even denied my request for a copy of the transcript, so I couldn’t really take the matter any further. But the PC Government could, and should, based on the strong position the PC Party previously took on this matter.

I don’t believe there is any “Statute of Limitations” to contend with, and there remains more than sufficient evidence that Ghiz and Stewart each committed a crime of causing “mischief to data”, so the proper course of action now that the PCs are the Government is for the Premier to announce the criminal investigation NOW that the PCs called for THEN.

It’s Time the Actual Evidence on Deleted Records Mattered!

To prove criminal intent is no easy matter. It is necessary to prove “beyond a reasonable doubt” that the act of destroying records was done with the intent to cause “mischief” to data, as the Criminal Code explains.  Notwithstanding the very high bar, I believe the evidence I prepared in a 60-page brief [Submitted to Judge Nancy Orr in August 2018] provided sufficient evidence to meet that bar, or to at least warrant a trial. The “test” for going to trial is not as high as the actual “reasonable doubt” test at trial, but only that there is a reasonable likelihood of success at trial.

The Hearing held before Judge Orr was ‘in camera’.  Judge Orr began by asking me to produce my phone, which was removed from the Courtroom.  The Federal Prosecution Office had intervened in the case and the Head of the Atlantic Region Federal Prosecution office was the only other person in the Courtroom besides Judge Orr and me.

I’m not going to tell stories about the abusive treatment I endured that day, constantly being asked questions then being interrupted after I’d get about four words into my answer, over and over again. It was extremely frustrating.  Essentially I was told by Judge Orr that my submission “wasn’t evidence” [which the Federal Prosecutor, to his credit, explained may not be “direct first-hand evidence” but was nonetheless valid “circumstantial” evidence].  Enough said.

Judge Lipson went out of his way to explain that it was  “circumstantial” documentary evidence that decided the Livingston case – documentary evidence that was clear and convincing, and did not suffer from “conflicting’ direct testimony accounts, thereby providing even stronger proof than direct evidence.  The following information was in my legal brief to Judge Orr explaining this was the basis for Lipson’s decision as well:

My evidence is almost entirely “circumstantial,” as was the case in the criminal prosecution of former Chief-of-Staff to former premier Dalton McGuinty, David Livingston, in a recent case in Ontario where he was found guilty of “attempting to commit mischief to data.” for destroying documents in the notorious “gas plant” scandal. As Judge Lipson clarified in his decision in that matter (R. v. Livingston, 2018 ONCJ 25):

“[73] The Crown has presented a circumstantial case against the defendants and urges the court to conclude beyond a reasonable doubt that Mr. Livingston and Ms. Miller had the required intent to destroy data without authorization or colour of right. There is no direct evidence that they had such an intent. Since the Crown’s case depends on circumstantial evidence, the court must be satisfied beyond a reasonable doubt that the only reasonable inference that can be drawn from the circumstantial evidence is that the defendants are guilty.” [Tab 4; p.. 39]:

There is a common misconception that “circumstantial” evidence is less reliable and much inferior to direct evidence (i.e.., first-hand witness testimony); however, depending on the nature of the decisions, events, and circumstances of a given matter, in many cases the opposite is actually true.

Livingston was found guilty on the basis of circumstantial documentary evidence, something Judge Nancy Orr told me she was not willing to recognize as “evidence” at all – saying she needed “first-hand” testimony, basically, someone willing to swear they watched him hit the delete button or send sheets through a shredder. Ridiculous!

But I actually did have some “first-hand” evidence of sorts as well – a statement from the Records Management Liason Officer (RMLO) in Premier Ghiz’s Office declaring that she had absolutely nothing whatsoever to do with the destruction of LeClair’s and Beck’s records, and was never involved in any way.

Perhaps more important than that discovery, was Ms. Long’s confirmation that she had been involved with the management and disposition of other employees leaving positions in the Premier’s Office, and that she had filled out schedules and liaised with the Public Archives and Records Office regarding the disposition of those employees records, but just not with Ghiz and Beck.

As Jamie Fox explained in the above clip, I had an extensive interview with Sgt. Graeme Shaw with the RCMP and it soon became clear to me that the RCMP investigation really didn’t go beyond interviewing scads of people who all said everything was cool and above board.

When I tried to talk to him about how the policies and procedures required conscious decisions to “circumvent” the normal and legal processes and procedures – which showed “intent” – the response I received was the RCMP didn’t look into record management laws, procedures, policies, etc.

MacLauchlan saying the RCMP undertook a thorough investigation is simply not true. At some point, I believe the research and documentation in my 60-page brief will become relevant and of interest to those who want to know the truth. So I’m putting a link to it here (note: some hyperlinks to PEI government documents no longer work) with the index of topics covered.

Judge Orr blocked this case from proceeding to trial, but I’m convinced the evidence continues to warrant charges being laid against former Premier Ghiz and the current Senior Director responsible for the PEI Government’s substantial involvement in the Charlottetown Area Development Corporation, Neil Stewart.

brief 1brief 2Brief 3

This is not the place to attempt to restate all the facts and arguments in this 60-page brief. I’m only pointing out that this important documentary evidence and information remains relevant but continues to be ignored by Government:  Despite the PC Caucus proudly  tabling the document and using its contents as ammunition against the Liberals as PC MLAs in the Legislative Assembly,  the King Government has abandoned its support for these legal and logical conclusions in favour of this lie: what Ghiz and Stewart did when they ordered the destruction of records was done in the “normal course of business.”

Here is a link to my full brief. But let me leave you with this important revelation that I uncovered in my preparation for the Pre-Enquete Hearing.

On August 14, 2018, I called Rose Long, the Records Management Liason Manager in the Premier’s Office at the time Beck and LeClair’s records were destroyed. Ms. Long had recently retired from a 30-year career working in the Premier’s Office shortly after Wade MacLauchlan was elected Premier.  I told her I wanted her to be a witness at the Pre-Enquete Hearing.

Unfortunately, Ms. Long and her husband were booked to be overseas on vacation at the time of the Hearing. After a couple of discussions over the phone, Ms. Long agreed to provide me with a letter explaining that she had no knowledge or involvement with Rory Beck’s and Chris LeClair’s records; however, that she had been involved in the management and disposition of other employee records.  That is important evidence of a premeditated attempt to circumvent the normal record management procedures that were in place in the Premier’s Office and Executive Council at the time.

Letter from Rose Long

This direct first-hand evidence highlights how the RMLO was deliberately excluded from any involvement in the disposition of LeClair’s and Beck’s government records – which was against the Departmental Record Management policy, Treasury board Directives, and the Archives and Records Act.

It stretches credulity to believe that Ms. Long was excluded from the management and disposition of Beck and LeClair’s records,  but was NOT excluded for the disposition of files of other employees leaving the employment with the Premiers Office and Executive council, as an oversight or accident [at that time, the same RMLO (Rose Long) was responsible for both the Premiers Office and the Executive council].

In contrast to Campbell’s opinion on destroying government records, read what Judge Lipson said in his ruling regarding how public officials destroying  government records subvert democracy, which was, in his mind, “the most serious aggravating factor in the case” leading to his 4-month jail sentence:

Livingstone

It can’t be allowed that such en masse destruction of government records by a Premier (Ghiz) and Deputy Minister (Stewart) is dismissed as insignificant and accepted as “standard practice” with government record-management.  As Judge Lipson states so eloquently, the public has a right to expect the “court’s protection” to establish confidence that our government and judicial institutions are operating independently and democratically.  

I trust the Appeal Court Judges will recognize the PC Government filing for what it is – the same position of the former Liberal Government full of statements, claims and denials that the PC MLAs know to be absolutely false and will NEVER say a single word publicly to defend! Like I said, I trust the Appeal Court Judges will recognize the PC Government filing for what it is…..a shameful betrayal of the basic principles of democracy and justice that all PEI residents expect and deserve.

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#18

 

 

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EPISODE #2: MYERS ON GOVERNMENT RECORDS DELETED BY ROBERT GHIZ & NEIL STEWART

Myers pic #17

PREAMBLE

The most glaring example of blatant bias in Judge Campbell’s ruling, in my opinion, is his refusal to properly address both the “facts” and the “law” relating to CMT’s claims of “spoliation” of PEI Government documents by former Premier Robert Ghiz and Deputy Minister of Innovation and Advanced Learning, Neil Stewart.

It’s also one of the most glaring examples of an unscrupulous and blatant betrayal by the King Government in this whole affair.

I’ll be honest. I find this particular betrayal by the King Government one of the most difficult to write about because the facts and legal arguments have already been so well established, and should have resulted in Robert Ghiz and Neil Stewart serving jail sentences by now.

That’s exactly what happened when the Chief of Staff for former Ontario Premier Dalton McGuinty, David Livingston, deleted government records from a harddrive: he served 4 months in jail. Ghiz and Stewart wiped out all the records in every possible format, BlackBerry Messages on Government-issued devices; Text Messages, Emails, Electronic files on network drives, laptops, desktops, paper files….EVERYTHING!

What makes this PC flip-flop especially shocking is that by the Spring of 2017 the PC Caucus was not only convinced that Ghiz and Stewart had destroyed records illegally, but by early 2018 had come to believe there were sufficient grounds to believe that both Ghiz and Stewart had committed a “crime”.

Based on the new documentary evidence I had uncovered and published in a report, which the PCs tabled in the House, they demanded Premier Maclauchlan initiate a criminal investigation into the matter. That will be my next episode, with a couple of short clips from then PC Justice Critic, Jamie Fox.

This post (with two video clips in the final section from Myers from the Spring, 2017) shows that by the Spring of 2017 – after more than a dozen Public Accounts Meeting on E-gaming – there was absolutely no doubt in any PC MLA’s mind that Robert Ghiz and Neil Stewart had illegally deleted important government records.  The PC MLAs made strong statements time and again in the House during that Spring sitting calling for such acts of document destruction to carry severe consequences.  At a minimum a heavy fine and LOSING one’s employment; and possibly, depending on circumstances, criminal prosecution.

Note: Premier King recently appointed (this was not, to my knowledge, announced publicly) Neil Stewart to a Senior role within the Department of Economic Growth, Tourism and Culture:

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1.  KEY ISSUE –  DESTRUCTION OF GOVERNMENT RECORDS

The Auditor General made it abundantly clear in her e-gaming report that PEI Government law and policy make it illegal to destroy government records, or to direct ITSS to delete records, without first backing those records for proper disposition by the Provincial Archivist:

Section 7.11: We noted instances where the e-mail accounts of senior government officials, who were key participants in the E-gaming initiative and/or the establishment of a financial services platform, were removed after leaving government. We requested information and were not provided with any e-mail or other records for these individuals. We concluded that government records existed at one time in these e-mail accounts because we received relevant government records from other public bodies and sources external to government that should have been retained in accordance with legislation and policy.

The AG elaborated on the broad “scorched earth” nature of the destruction of the e-gaming records belonging to Chris LeClair; Rory Beck and Melissa MacEachern at the February 15, 2017, Public Accounts Committee Meeting:

Public Accounts Committee Chair: Right. I guess I just fail to understand why someone is not being taken to task because all correspondence from these individuals was essentially expunged, it disappeared, whether it was deleted as an email or it was taken out to a shredding machine, that none of these records were available to be given to the Auditor General who is directed by the Premier of Prince Edward Island to do a thorough audit of this file.

Jane MacAdam: Yeah, it was concerning for sure, and that’s why it’s in the report. We did not get any records for these individuals from the relevant public body. Like I said before, we got the other end of some emails that were given to us from other sources, from other public bodies or sources outside government. [Public Accounts, Feb. 15, 2017, p. 137].

Both Minister Doug Currie and Premier MacLauchlan misled the Legislative Assembly and all Islanders by saying that the records and email accounts were removed in the normal course of business. However, after hearing from ITSS experts, the Provincial Archivist, and the Auditor General many times at Public Accounts meetings over the winter of 2016/17,  by the time the House opened in the Spring of 2017, every PC MLA knew full-well that the deletion of LeClair’s, Beck’s and MacEachern’s files was not something executed in the “normal” course of business, but were deliberate and “illegal” acts for which there should be legal consequences in a court of law.

2.  JUDGE CAMPBELL ON DESTRUCTION OF GOVERNMENT RECORDS

With such overwhelming evidence of illicit behavior in the destruction of records, it’s truly amazing that Judge Campbell found that the ridiculous testimony of both Ghiz and Stewart, in their sworn statements on the matter, [statements they made that totally excused themselves of having done anything wrong of course] is indefensible.

Only Supervisors can authorize the destruction of records, and in this case, both the supervisors of Chris LeClair (Ghiz) and Melissa MacEachern (Stewart) did exactly that – without first copying the records which they’re legally required to do. That’s against the law, but that fact was apparently of no consequence to Judge Campbell.

As far as the evidence provided by the Auditor General on this matter is concerned, I’ve dealt with that in detail in previous articles, and how Judge Campbell misreads what she says and cherry-picks one sentence in section 7 out of context.  How Judge Campbell justifies ignoring the several references by the AG  regarding the legal requirement to copy all Government records for the Public Archivist before deleting them is inexcusable. 

Both Ghiz and Stewart were acting in their authority of being supervisors when they signed those ITSS orders to delete the files and emails, and both also had obligations and duties under the Act. The AG was very clear about all of that; however,  if Judge Campbell had consulted the law and policies in effect within Government at the time, he would have immediately realized that what Ghiz and Stewart did was illegal, and possibly criminal.

At no time did the Auditor General ever say – as Campbell strongly suggests by what he cites from her and what he leaves out – that what Ghiz and Stewart did was a “normal” course of action for Government when employees leave the government.

3.  KING GOVERNMENT ON DESTRUCTION OF GOVERNMENT RECORDS

In the Response to CMT’s Appeal filed with the PEI Court of Appeal, the King Government has adopted exactly the same position on the destruction of records as that of Judge Campbell.  In a very discouraging flip-flop, the King Government has now abandoned everything it previously stated and absolutely knows to be true. They knew THEN that those records had been deleted illegally – and likely “criminally” as well – and that they were to be copied for the Provincial Archives, and handled by the Departmental Records Management Liason Officer. None of that happened.  That records are to be copied for disposition by the Provincial Archivist –  that’s what was normal practice.

In the Appeal filing, the King Government not only argues against what the PC MLAs previously argued in the House,  it adopted Campbell’s insulting (and unethical in my opinion) “misreading” of what the AG said about document deletion to suggest (as Campbell had done) that what Ghiz and Stewart did with those records was “normal practice”.   Paragraph 252(d) of the Government’s filing makes the following statement:

Paragraph 252A little further in the Response to CMT’s Appeal, both Ghiz and LeClair are completely excused as having done nothing wrong by the King Government, but simply did what they believed they were supposed to do with the emails and files of former employees:

Ghiz understood

For the PC Government to have filed such shameful statements in Court after everything they previously said in the Legislative Assembly amounts to a betrayal of both the truth, those hurt by the coverup and denial of the truth, and the people of PEI. How else can it be understood?

To wrap up, watch and experience what certainly seems to be a sincere and passionate response to the Government’s plan to amend the Archives Act delivered by Steven Myers – on behalf of the PC Caucus –  about how Ghiz and Stewart should have been treated for what they did to government records in a bid to keep the e-gaming and financial transaction platform scandal and coverup secret. As he stated so cogently back THEN, Islanders are sick of the corruption and coverup.

“What say ye NOW, Minister Myers?”

4.  PC STEVEN MYERS ON DESTRUCTION OF GOVERNMENT RECORDS

I’m presenting two short clips from Steven Myers in this post. The first is his response to the Ministerial Statement by the Minister of Education at the time, Hon. Doug Currie, announcing amendments to the Archives and Records Act, and the second are comments he made during the debate on the amendment of the Bill.

By that time, the PC Caucus had received briefings from the Auditor General, the Director of ITSS, and the Provincial Archivist on various aspects of the Record Management system at Public Accounts Committee meetings and had learned that all the records of Beck, LeClair, and MacEachern had been deleted illegally.

The PC MLAs learned that although all accounts are “disabled” to remove access by the former employee, in most cases the accounts remain “disabled” and are never “deleted”, leaving all the emails intact. In fact, Scott Cudmore, the Head of ITSS at the time, indicated that there were at least 4,000 “disabled” accounts of former employees with all the emails still on the system.

The other thing known by the PC Caucus at the time amendments to the Archives and Records Act was introduced by the Liberals is that a well-developed policy had been implemented BY THE GHIZ GOVERNMENT in 2007 called, Record Information Management: Managing Electronic Mail.  That Departmental Policy Document not only offered clear guidelines regarding the procedures and protocols to be followed for the classification, storage and deletion of government emails and electronic records but explicitly tied those guidelines to both Treasury Board’s Recorded Information Management (RIM) Directives [5.01 – Introduction; 5.02 – Policy Responsibilities; 5.03 – Core Program Elements] and statutory provisions in the Archives and Records Act.

“In requiring that records not be destroyed without proper authority, the legislation recognizes that those who work and make decisions in the public interest must be accountable for their actions and decisions. The saving of records is an essential component of accountability.” (p. 5).

That quotation is in the 2007 Ghiz document on managing electronic documents and emails and was based on the following provision in the Act, cited in the same document:

19-1 prohibition

Immediately following the release of the AG E-gaming Report in the Fall of 2016, Premier MacLauchlan and Minister Currie continually tried to sell the idea that improvements were needed to bring in a new record management regime.  However, besides the need for some additional record management resources and an actual “legal consequence” to go along with the prohibition in the Archives Act forbidding the destruction of government records, the PCs were aware that Ghiz had himself implemented an extremely well-organized Government-wide system that was in place when the records were deleted. 

As Myers correctly says in this April 5, 2017 response to Hon. Doug Currie’s Statement introducing Amendments to the Archives and Records Act, the problem was that those laws and policies were not adhered to by people who wanted records destroyed:

When the amended Archives and Records Act was being debated, Myers spoke to the Bill and repeatedly expressed the PC Party belief that a penalty not more than a maximum $10,000 fine was a woefully inadequate response. Referring to a Premier and Deputy Minister destroying Government Records and essentially getting away with it because there was no “penalty” in the Archives Act, Myers, called for much stronger measures in the Bill that would see people lose their jobs and go to jail for breaking the law and trust of Islanders:

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#17

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EPISODE #1: Compton’s Question to MacLauchlan Now Needs an Answer from King!

Compton - All the Kings Horses

PREAMBLE

This is the first of  25 posts in this new series. A quick recap of the format:

  1. A KEY ISSUE in the CMT v. PEI Government lawsuit and appeal will be identified and briefly summarized.
  2. JUDGE CAMPBELL’S POSITION on the issue will be succinctly stated.
  3. Information will be provided to show how the KING GOVERNMENT’S CURRENT POSITION on the issue supports Judge Campbell.
  4. A VIDEO CLIP FROM PC MLAs expressing a contrary position on the issue from that of Campbell and the current King Government is provided.

It is now possible to say a lot more in far fewer words about the e-gaming scandal and Government coverup.  The conclusions and proven facts uncovered, verified and documented in approximately 800 pages of previous research can now simply be stated. Consequently, the “style” of writing in this series will be decidedly different from all my previous published research. It is no longer necessary for me to provide pages and pages of background documentary evidence and explanations proving the legitimacy of those facts and conclusions.

With this inaugural episode, I’ve chosen a relatively short clip from our current Deputy Premier, Hon. Darlene Compton.  I’m not going to follow the format outlined above that I’ll try to adhere to for the remaining episodes. Rather, this first clip looks at the core issue of deception and coverup at the foundation of a number of the other issues and legal matters that will be dealt with in subsequent episodes.  

Finally, you’ll find an “updated” APPEAL OF MISFORTUNE contest board and episode tracker at the end of this article with the 16th letter added – an “a”.  If you think you might be getting close to figuring out the phrase and winning the $100 prize, and you need “just one more letter” to be sure…then you might want to get that letter as soon as a new episode is posted.  If you type in your email address in the subscribe line on the right-hand side of this page, near the top, and click “Follow” (I don’t share emails with anyone) you’ll get an email notifying you of each new post as soon as they are published.

ISSUE

There were numerous Defendants in the CMT lawsuit dismissed by Judge Campbell.  The claims that CMT is making against each of the Defendants fall into several categories or types, one of which is “spoliation”. I’m not going to go into the law or details of what constitutes “spoliation” other than to say that it involves the willful destruction of records for which there are legal consequences.

CMT’s claim of spoliation is directed primarily against former Premier Robert Ghiz and Neil Stewart, who were responsible for ordering the destruction of all the electronic and paper records of the Chief of Staff, Chris LeClair, (Robert Ghiz) and the Deputy Minister of Innovation and Advanced Learning, Melissa MacEachern (Neil Stewart). 

PC MLAs had a lot to say in the Legislative Assembly about the destruction of Chris LeClair’s and Melissa MacEachern’s emails and government records. I’ll present clips in subsequent episodes that zero-in on the particulars of Ghiz and Stewart ordering records destroyed, and the PC’s awareness of the “illegality” of their doing so and the need for Government to recognize that and ensure there are appropriate consequences.

In this kick-off video, however, I want to give you a sense of the raw, visceral outrage that our current Deputy Premier, Hon. Darlene Compton expressed on behalf of the PC Caucus, and all Islanders, to Premier MacLauchlan for his Government’s coverup of the hiding, destroying and withholding of documents related to the e-gaming scandal. She delivered this powerful message during the afternoon Question Period on May 3, 2017.

What has changed Minister Compton? Are these fundamental issues of injustice, coverup, deception, and corruption no longer of interest to you and your Government? Why has your Government now embraced the Liberal position on each and every one of these issues and gone completely silent on these matters?  Why has the King government abandoned the action the PC Party demanded so passionately and unreservedly from the MacLauchlan Liberal Government?

The answers to such questions may not be obvious, however, what is clear is that the PC Party has – since becoming the King Minority Government – taken the “withholding of information and documents” related to the very same information and documents Minister Compton is referring to in this video clip to a whole new level with:

  1. Multiple, illegal FOIPP Act breaches (there was a new illegal “deemed refusal” as of February 20, 2020);
  2. Multiple reviews underway with the Information Commissioner;
  3. Multiple breaches of PEI Supreme Court-enforced Orders, and
  4. A PEI Supreme Court Hearing scheduled for March 11, 2020, where three Contempt Motions filed against the PEI Government by Paul Maines will be heard.

There once was a very powerful opposition willing to do some research, search for information and answers, submit FOIPPs, and ask tough questions of the government in power orchestrating and managing the e-gaming coverup.

Such an Official Opposition has unfortunately disappeared from the political landscape.

The good news is we humans usually are inclined to take our own advice over others –that is, when we don’t allow our attention to somehow never be turned in that direction – so the best possible message the King Government could take to heart as it ponders a go-forward action strategy is its own Party’s message which has apparently been forgotten.

I honestly don’t know how this collective amnesia affecting all PC Government MLAs happened, however, I’m making no judgments. I’m treating the lot of them like family members emerging from comas after a totally “off-the-rails” and bizarre accident that no one can even explain, with memory loss. They may no longer remember me, what they believed, or even who they really are, but I’m not giving up on them!  Miracles can happen.

I believe that by showing these old (not that old actually) family videos, something will “click” that will reignite that sense of moral awareness, realign the attention, rekindle the spirit, and put the whole PC crew on the road to recovery from this all-too-common and debilitating communicable bacteria called “Comatosia Silencethecaucus” causing calamitous consequences for calculating Conservative characters who get a little too crafty with constituents.

The phrase has exactly 51 letters and one comma, with NO spaces between words. You only get one guess – email your guess to kja321@gmail.com

 

#16 (1)

 

 

 

 

 

 

Posted in E-gaming | Tagged , , , , , , | Leave a comment

“Appeal of Misfortune” – An Online Investigative E-game That Doesn’t Involve Kicking

New Tracker copy

PREAMBLE

In my last article, I characterized the recent decision by the Department of Economic Growth, Tourism and Culture to kick three of my FOIPP requests for Government documents past the upcoming May 19, 2020, CMT Appeal Court Hearing date as “FOIPP-BALL” – the King Government’s favorite new “e-game.”

I’ve come up with of an e-game of my own for readers – and I’m happy to report that it doesn’t involve kicking anything I’m supposed to give to someone else anywhere!

If you have a bit of sleuthing inclination and solve the puzzle first, well, there’ll be a $100 prize coming your way via e-transfer, thanks to a donation a friend kindly made after I shared my idea for this contest-episode tracker with him.

Along with announcing this contest, I’m also launching a new 25-part series later this week l first announced back in early January that I want to reintroduce to readers.

Finally, I’ve made a few modifications to my roll-out plan for publishing the findings from my research that differs somewhat from what I first said I’d be doing back in early January, so I want to provide an update on how I’ll publish the remaining articles before the Appeal in May.

But first, a few words on why I believe this issue is important enough for me to make such a concentrated effort to make this information public in the coming weeks.

1.  The January 2020 Court Filing and PC Betrayal on E-gaming

On January 11, 2020 post titled The King Government’s Response to CMT’s Appeal, I provided a significant amount of background information on the status of my current investigative work, including an overview of several pending FOIPP requests.  I wrote that article immediately after reading the King Government’s Response to CMT’s Appeal that had just been filed with the PEI Court of Appeal.

That filing was evidence enough for me to abandon any remaining hope that the King Government, and the PC Party MLAs in Government, would reject the legal defense advanced by the MacLauchlan Government, almost every aspect of which PC MLAs had previously challenged as false when sitting as the Official Opposition.

The moment the King Government filed that fateful Court Document, the PC Party officially – signified by an official PEI  Court of Appeal Stamp on the cover page – gave birth to what I’m certain will soon become known as the single-biggest betrayal of the electorate by an incoming Government ever witnessed in PEI.

The Government’s Appeal Court Response left me pondering what the fallout would be for the PC Party for completely abandoning the entire moral ground upon which it previously stood on the e-gaming scandal and claims made in the CMT lawsuit. How would PC MLAs explain all those powerful statements and claims they previously made, supported with documentary evidence revealing major problems with the Liberal position on the file, responses that were recorded in the official Hansard Record?  Are the PC MLAs counting on most Islanders not being aware of what they previously said, or if they once were aware, now forget?

My new series exposes the hypocrisy of this massive PC Party “flip-flop” by showing Islanders what the PC Party truly knows and truly believes about this issue, yet advanced the opposite in their court filing.  My new series will contrast, on an issue-by-issue basis:

(1) What the PC Government just swore in its Appeal Court filing;

WITH

(2) What PC MLAs said in the House as Official Opposition on these same issues.

This issue is far too important to let it quietly slide into the dustbin of history – the stakes are just too high.

Each and every PC MLA has “sheepishly” gone on the “lam”  so to speak – where “mum” is the only word allowed.   We’re facing a “Silence of the Lams” scenario every bit as ominous and deserving of a dedicated investigation as the Hollywood blockbuster. Only we need to track down an answer to the question of why the PC Government’s actions on this file are so completely out of sync – in fact, completely opposite to – their words and promises before becoming government, not to mention what they still know to be true.

Complete silence on one of the most scandalous and important political issues of our time is simply not an option for long. It will eventually have to end. The King Government has both a civic and moral obligation to explain to Islanders why it made a sudden and complete “about-face flip-flop” that feels no less creepy and threatening than suddenly slipping into the “upside-down” in Stranger Things.

I held out a good bit of hope that there would be a respectable response from the PC Government on this e-gaming scandal. To say I was disappointed with what the Government filed with the Appeal Court would be an understatement. This truly tragic, collective act of cowardice on the part of our newly-elected PC Government simply can’t be allowed to win the day. It’s wrong. It’s anti-democratic. It’s hypocritical –  and a text-book example of “corruption in politics.”

CMT lost the Government’s Motion to Dismiss largely because of Jonathan Coady’s decision to keep materially-relevant documents from the eyes of Judge Campbell. That strategy broke the Rules of Court – and there will likely be consequences for Jonathan Coady and/or Stewart McKelvey for taking these actions at some point down-the-road.

Having said that, I suspect the Government and Stewart McKelvey law firm are still hoping that the Appeal Court Judges will be bound by the requirement to rule only on “legal errors” in Campbell’s ruling, and that there might still be a chance that CMT’s Appeal will not be successful.  Coady didn’t disclose materially-relevant documents, that’s one issue, but a ruling based on insufficient evidence may not constitute a legal “error” by the Judge, or that’s what they’re liking counting on happening.

Wishful thinking that a technical legal escape hatch is going to cheat Lady Justice on this trip around the Courtyard is well, just that, wishful thinking. There are just too many eyes watching what’s happening; too many people aware of (and increasingly concerned about) the continued corruption in our Government, with mostly the same players at their stations under King as under the Liberals, and now a doubled-down “coverup’ response from Government, with more missing records and refusals to release Government records. This ridiculous line of ‘wishful thinking’ is little more than a desperate legal maneuver doomed to fail.

Most important of all, there are now far too many awake AND disgusted Islanders with a keen sense of what  “access to justice”  is supposed to look like, and who also know enough about the facts and the circumstances of this case to know that access to justice has so far not been provided to Maines and CMT.

There are countless legal errors in Campbell’s decision based on documentary evidence that was before Judge Campbell and he either chose to ignore or misinterpreted – stuff like thinking that an incredibly valuable, world-renowned “Claims Processing Software Stack” on the SIMPLEX Global Transaction Platform that was 100%-owned by CMT/FMT was a UK company.

I expect the PEI Court of Appeal Judges will quickly see that a sufficient quantity of relevant material was put before Judge Campbell that he didn’t address in his ruling to have warranted a trial. There are many other issues as well I won’t get into here, like a “Supplementary” Affidavit of Documents served on CMT’s lawyer by Coady, but not filed with Judge Campbell, again, something contrary to the Rules of Court.

The principles of natural justice enshrined in the Canadian Charter guarantee all Canadians access to justice within our judicial system, including here in PEI. I believe the evidence will convince the Appeal Court Judges that Paul Maines and CMT have so far been denied due process and “access to justice,” which will result in an Appeal Court decision to allow a fair adjudication of the company’s claims in a trial.

It’s impossible to even speculate on what was in the headspace of the PC MLAs who (apparently) calculated that betraying everything they had previously declared to be true about e-gaming was in any way a politically-astute or morally-justifiable thing to do, or that it could ever be successful in ending the e-gaming fiasco and allow PC MLAs to move on with their new political careers governing PEI.

I have absolutely no clue how many individual PC MLAs were – or even now “are” – aware of, or were/are actively involved in this latest e-gaming “system reboot” scandal with the King Government turning everything on its head. It really doesn’t matter.

What’s important now is whether PC MLAs are willing to defend the Liberal position the King Government has now fully embraced in its Appeal Court filing, or honour the words they spoke in the Legislative Assembly: they can’t do both!

Every single elected PC MLA, including the Premier, knows full-well that there’s nothing they can say to Islanders to defend what they filed in Court. It’s a stretch to expect another “about-face” by the government, or even any individual MLAs leaving the PC Cabinet or caucus, so I expect that not a single PC MLA will speak a single word to explain themselves, but I’d love to be proven wrong

After reading the Appeal Response filing from Government, I decided to see if I could somehow resurrect all the great work and insightful conclusions the PCs had presented to the MacLauchlan Liberals in the Legislative Assembly during Question Period. I had watched those sessions before  – and had even helped the PCs with research and question preparation on a few occasions, sometimes texting information during Question Period.

The PC caucus relied on research in a report I had written about the deletion of Government e-gaming records titled: “Did Robert Ghiz and Neil Stewart Commit a Crime?” finding it compelling enough to have PC Justice Critic, Jamie Fox, ask questions of Premier MacLauchlan from my research for 2 days, and tabling the Report in the Legislative Assembly.

I wonder how many Islanders know how persistently and extensively the PC MLAs who are now Cabinet Minister fought for justice on the e-gaming issue in the Legislative Assembly? Well, they’re sure not pounding the desks anymore. The PC MLAs and King Government have now gone completely dark, like a submarine on the ocean floor, huddled and hushed together awaiting the passage of time with a prayer the threat will disappear on its own and normal operations will resume.

This “false hope” is unfortunately founded on the belief that with the normal human process of “public forgetting” of scandals over time, when all the contradictions, betrayals, and legal problems will eventually disappear, and that’s just not going to happen with the ongoing legal cases in the news for the next few months. So there’s a window of sorts between now and the upcoming Appeal to learn just how extensive the flip-flops have been, how complete the betrayal, and I’m sorry, there is no other honest word I can use. 

When the PEI Government filed that document in the Appeal Court, I decided I’d dedicate a few months to making available to the public as much additional information and findings from my research as possible.  Islanders need to know that on the flip side of the total silence from the PC King Government on all of this, there is a complete abdication of everything the PC Party previously stood for and said against the two former Liberal Governments about the e-gaming scandal and coverup.  I’m hoping to fill in some of these “gaps in information” with my new 25-part series.

In my early January article, I made the following statement:

“I want to also let you know how I plan to present further results from my investigation on a go-forward basis. The Appeal is set for mid-May. The King government and Jonathan Coady have now played their last card with this filing. I, on the other hand, have a full deck in my back pocket I’ve yet to take out of the box.”

I wasn’t using the “deck of cards” reference solely as a metaphor. My plan was to post at least 52 articles before the May 19, 2020 Appeal Hearing.  That number would comprise: (1)  25 episodes in the new series “All the King’s Horses: Then and Now”;  and (2) an additional 27  articles on e-gaming, FOIPPs, or CMT Court-related matters. Since that time, I’ve published 15 non-series articles.

I had originally intended to complete the last two episodes in my first 25-part series “Truth and No Consequences,” but there’s been so much else happening since early January, I decided it makes a lot more sense to put those episodes last. Those two episodes aim to “finish” the story and sum up the main findings – at least as far as that’ll be possible at that point in time – so with additional FOIPP documents yet to be released, I want to wait to read as many documents as possible before publishing those wrap-up articles.

Episodes #24 and #25 will, therefore, be the last two posts in my planned 52 Pre-hearing posts before, but probably quite close to, the May 19th Appeal Court Hearing.  In the rest of this article, I’ll explain how the e-game contest works, and how it also acts as an episode tracker.

But first I want to say a few things about the challenges and limitations of presenting complicated, technically-precise, and factual information in a way that is both clear and entertaining.  Both clarity and entertainment are important; however, it’s the “entertainment” part of that equation that can be problematic with this kind of writing.

I’ve received quite a few suggestions about my writing style. which are often helpful and always appreciated, so I thought I’d share a few thoughts about that before introducing the rules of the contest I’m officially launching with this post. There are already 15 letters on the 52 letter board from the 15 non-series posts from the time I first made that commitment, so you can start trying to figure out the phrase right away, but think hard before you email me the answer –  you only have one stab at getting it right.

2.  The Challenge to Make Investigative Writing Entertaining

I receive many interesting comments and helpful suggestions on how I might improve my writing on the e-gaming and CMT lawsuit issues. They usually have the aim of better capturing the attention and interest of readers. But I get conflicting advice on that. Some say my style should remain as legal, precise, dry and professional as possible, and that I should stop trying to be funny or entertaining, definitely kill the dad-joke-like puns, and present yourself as a true professional.  Hmmm…

Most people tell me I need to do the opposite: put more “storytelling”  into my writing.  I fully agree that the more narrative the better – stories are the authentic matrix connecting people in all truly human communication – and the better the story, the more engaged the reader: narrative bring images, smells, sights, and sounds that pull readers into the unfolding series of events – life scripts – so that it’s not simply information entering into the head as “data” but a much fuller “lived” experience that stays in the heart as images and dramatic mental videos that are far more powerful. permanent and transformative than simple data in the brain.

Unfortunately, I can’t risk obscuring the line between “fact” and “fiction” by putting a lot of that powerful “narrative” stuff in my writings, as much as I might want. It’s imperative that nothing is left ambiguous and able to be misinterpreted. Unfortunately, the algorithm governing that goes like this: “the more narrative storytelling detail in the writing,  the greater the likelihood of confusion about what is true and what is imagined.”

Others have told me I should try to put more humour into my writing.  Although sarcasm and satire can indeed be powerful and insightful literary devices, they carry far too much emotion, which also muddies things up, often raising questions in the mind of the reader about the strongly expressed “feelings” of the writer, generating idle and distracting speculations about possible ulterior motives of the investigator. In this way, attention gets shifted from what’s important (making sense out of the documented sources, facts and explanations) to fruitless imaginary musings.  Using humour also often creates befuddlement, giving rise to the question: “Is what I just read factually correct? Or was he just trying to make a point with humour?”

I can sometimes slip in a few dad-joke-like puns or quasi-comical analogies without fear of confusing the issues, but most people don’t go too far out of their way to hear dad-joke-like puns and quasi-comical analogies.

So because this stuff is pretty dense and requires a real commitment on the part of you, the reader, to stay with it and try to make sense out of who’s who, who did what when, how what was done impacted and connected to other events, etc, and because I can’t use embellishments to beef up the storytelling, and I can’t use satirical comments without putting a note in brackets to clarify that I was just trying to make a point, not be factual, so I’m thinking that at the very least, readers can perhaps squeeze a bit entertainment out of this phrase-guessing game.

3.  An “E-Game” that’s Legal and Free [And no, it’s not FOIPP-Ball]

Episode Tracker

The Jeopardy Board graphic for this post also has a very practical purpose.  Just like a deck of cards, the Jeopardy board has exactly 52 spaces for Letters. Who knew?

I’ve come up with a phrase, and the first person who emails me a correct answer will get an email transfer of $100. There is already a letter on the board for each of the 15 articles I published since January 11, 2020, to give you a headstart on solving the puzzle. Here are the rules for this game:

  1.  You only get one guess – email me with your answer (kja321@gmail.com).
  2.  Another letter will be added to the board with each new article posted.
  3. The updated chart will appear at the end of each new article.
  4. The phrase has exactly 51 letters and one comma, and no spaces between words.
  5. Letters will either be blue for episode posts or yellow for non-episode.

The following section is taken from my article back in early January. I’m including it here for the benefit of any readers who may not have read that article. I plan on launching this new series later this week.

4.  My new 25-part Series: “All the King’s Horses: Then and Now”

Unlike the first 25-part series of “episodes” which provided a substantial amount of information, this new series will provide much shorter pieces (3-5 pages) on targeted “issues.” I’ll be following a very simple format:

  1.  A key issue in the CMT lawsuit will be identified.
  2.  A minimum amount of information will be provided to explain why the issue is key for understanding the e-gaming scandal;
  3. Direct video clips from Question Period from one or more of the four King’s men (Aylward; McKay; Fox; and Myers) stated position of the PC Party THEN (before the election last April  – there will also be “guest” appearances from other PC MLAs) speaking to that particular issue; and finally,
  4. Direct quotations taken from the King government’s January Response to CMT’s appeal Counsel Coady just filed, showing the PC government’s position on the very same issue NOW.  If anything, the graphic is even more fitting now than it was when I first came up with it a month ago.

A Guide to Understanding the Graphic for This New Series

All the Kings HorsesMy graphic for this new series is very deliberate. You might think the play on words in the analogy is flawed: Egghead Humpty Dumpty wasn’t a “King” was he? Well, as it turns out, he apparently was.

Wikipedia notes that Katherine Elwes Thomas put forth a theory in 1930, later adopted by others, that Humpty Dumpty was based on King Richard III of England, who was a hunchback and apparently resembled an egg.

The four unhappy and pretty worried-looking men in the graphic are NOW four prominent Cabinet Ministers in the King government. THEN they were PC Party Opposition MLAs – and three of them held interim and/or permanent roles as PC Party leaders (Aylward, Myers, and Fox). These four individuals were the principal spokespersons on the e-gaming issues for the PC Party.

The two main lawyers working on e-gaming – Billy Dow (who helped to create the whole e-gaming mess) and Jonathan Coady (the “fixer” called in from Stewart McKelvey to make the mess disappear) – are the horses. Why? Because people (politicians) ride horses (lawyers) in this analogy to giddy-up to where they want to get (in power) – not the other way around.

When the peasants (Islanders) revolt (have an election) and Humpty goes Dumpty, all the King’s men are left standing around powerless and confused, unable to do anything but gaze upon their shattered dreams, trying to comprehend how all their good intentions could have gone so badly off the rails so soon after having just achieved their long-sought dream of becoming Government.

But guess what? When the peasants remove the King and his men (and women) from the castle, and new people take up residence, they’ll saddle up the very same horses as the previous tenants because they don’t live in the palace where people come and go, they live in the stable. The moral of this story is: “When politicians promise a stable government, be sure to ask what kind of “stable” they’re talking about!”

Notice the horse who’s been the stable stallion for years – the guy who helped to create the mess (Dow) – is smiling. The horse on the left, however, (Coady), is not smiling. Coady (who was recently crowned Lawyer of the Year and awarded the Queens Counsel designation) now looks a little worried that his clean-up efforts and strategic legal decisions might bring some unpleasant “consequences” for him and his law firm.

But it was Humpty Dumpty’s dialogue with Alice concerning the assigned meaning of certain words in “Through the Looking Glass” that really inspired the image for this series. The following citation became popular in United States legal opinions, appearing in 250 judicial decisions in the Westlaw database as of 19 April 2008, including two Supreme Court cases (TVA v. Hill and Zschernig v. Miller). It seemed a fitting observation for the PEI e-gaming scandal and coverup situation, where the essential meaning of words now seems so malleable with the King Governement:

“I don’t know what you mean by ‘glory,’ ” Alice said.
Humpty Dumpty smiled contemptuously. “Of course you don’t—till I tell you. I meant ‘there’s a nice knock-down argument for you!’ ”
“But ‘glory’ doesn’t mean ‘a nice knock-down argument’,” Alice objected.
“When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean—neither more nor less.”
“The question is,” said Alice, “whether you can make words mean so many different things.”
“The question is,” said Humpty Dumpty, “which is to be master—that’s all.”

 

Posted in E-gaming | Tagged , , , , , , | 1 Comment

FOIPP-BALL – The King Government’s Favourite New “E-Game”

FOIPPBall

PREAMBLE

Last Wednesday (February 12, 2020) I received an email from the APSO Coordinator with the Department of Economic Growth, Tourism and Culture, with three attached letters, one for each of the Access to Information requests with the Department, all of which were coming up to their “final release” dates soon. It wasn’t good news.

The final release dates for those three requests were: March 4, 2020, for one request; and February 20th for the other two.  The three virtually-identical letters each informed me that the Department would be taking a further 3-month extension on each request, making the new dates: June 2nd for one; and May 20th for the others.

All three were kicked through the CMT Appeal Court May 19, 2020 Motion Hearing Date Goal Posts – two of them just barely, landing the very next day

I didn’t think the Department had the legal right to take more time extensions on these three requests, but as you’ll see if you keep reading, I was wrong.

I thought I had covered all my bases to ensure I would get the few documents from these last requests precisely because there were only a few documents, and it would not take a lot of time to process. I could see no reasonable grounds upon which the Commissioner would feel compelled to grant an extension. Like I said, I was wrong.

The King Government is clearly now “all-in” with the Liberal secret e-gaming denial and coverup strategy playbook.  The Response filed with the Appeal Court by the King Government signified the “point of no return” for me. Once the King Government filed the very same Liberal legal arguments and positions advanced by Stewart McKelvey lawyer, Jonathan Coady, Q.C., under MacLauchlan….well, everything was certain to go down-hill for the PC Minority Government from that point on, and it has, and it will continue to go in the same downward direction. Why?

Because, both sadly and ironically, when you’re heading in the wrong direction and you’re either unwilling or unable to change direction, instinct says “go faster” in a bid to escape entirely. But given certain circumstances, it’s sometimes impossible to go fast enough to escape the inevitable.  Consider the following analogy.

Imagine a daredevil on a motorcycle racing down the departure ramp en route to jump an impressively wide and deep canyon. Half-way down the launch ramp he glances down and sees a 130 km per hr reading on the speedometer. He’s not smiling: he realizes that the needle needed to be up to at least 180 km per hr by that point if he was to have any chance of landing safely on the other side of the gorge. What does he do? He guns it. What does that accomplish?  Absolutely nothing, other than making the trailing sound of his out-of-control racing engine plummeting to the Canyon floor below all the more dramatic in the evening news footage.

It would seem reasonable to expect that with everything that’s been going on with Court Orders, and upcoming Contempt Motions, there would have been new directives issued to public employees, APSO workers, legal counsel, etc. to start “doing the right thing” immediately. At an absolute minimum, not to further compound the problem with more FOIPP delays, deemed refusals, or the clever use of loopholes to block the release of documents in blatant violations of both the spirit and intent of the FOIPP Act

In other words, that our elected MLAs and/or Premier would have issued orders to government employees to abide strictly to the “duty” expressed in section 8 in the FOIPP Act charging the pubic body with the obligation to assist applicants “openly, accurately and completely”. 

Duty to Assist

But when you’re all in, I guess you’re all-in.  And the King Government is clearly now all in. The more of the coverup that gets exposed, the deeper the PEI Government seems to dig, doubling-down on its coverup strategy.

This last ploy using a loophole in the FOIPP Act is nothing short of a bully tactic, revealing that the Government is now willing to employ any and all means at its disposal to prevent the release of those key government records…at least before the upcoming Court Appeal, which the PEI Government obviously hopes will put an end to the CMT legal case against the province once and for all.

I honestly didn’t know there was a “loophole” in the FOIPP Act that the Government could exploit, kicking these three FOIPP-balls through the CMT May 19th Appeal Court Hearing Goal Posts.

But even if I had known about that loophole, given all the details and particulars of my three FOIPPs, I still would never have believed the King Government would have the audacity to stoop to using such a loophole for those tiny requests.  It reeks of desperation to me.

I can’t exactly “prove” the Government didn’t need this extension of 3 months,  but I’m nonetheless certain they didn’t need that extra time, and I want to explain a bit about how I know that by contrasting my past experience with the FOIPP process under the MacLauchlan Liberals with my more recent experiences with the King Government today; explaining in the process how things have worsened under the King Government when they should have improved.  But then again, I do believe I’m getting closer to the motherlode, so there may only be a few documents now, but it’s likely the motivation to keep them secret is much greater now as a result.

I also want to say a few things about each of the three targeted FOIPPs, and my Letter to the Information Commissioner seeking clarification on the permission she gave the Department to take a 3-month extension on each of those FOIPPs.

Finally, I’ll provide a few summary comments.

Oh yeah, and there’s a video clip of our Premier at the very end talking about transparency and the need for Government to trust Islanders with knowledge about what Government is doing, so Islanders get the power that comes from such knowledge making us able to act responsibly as informed and engaged citizens. Be sure to watch it. Very inspiring!

++++++

 1. Government: “Tell Islanders the Truth: You Don’t Need More Time!

When I first made a dedicated effort to uncover the truth about the e-gaming scandal a little over two years ago, I knew then that I was looking at a 2-3 year information-gathering strategy.  It takes a long time to “zero in” on the truly relevant documents in a case this complicated, stretching over several years.  You start with big sweeps, sift through the reams of documents to find clues, submit more targeted requests based on those hunches and clues, and then repeat the process until you either come to a dead-end or hit the motherlode. 

But here’s the thing. When I began that process under the MacLauchlan Government,  “fishing with a dragnet” so to speak, submitting FOIPP requests that generated hundreds of responsive records, requiring a significant number of “hours” of search and processing time which, in some cases, I was asked to pay for…but still, the deadlines were always met.

Now, under the King Government, with these last three VERY NARROW requests [one has just a single document; one has just “three” documents, and the other is asking to search communications between two people over a few-month period that can be easily searched electronically using a few key words], yet the King Government tells me another 3 months PAST the date I was supposed to receive those documents is now required?

Government: Tell Islanders the truth! You don’t need more time, you’re violating section 8 of the FOIP Act and blocking access to government records.

I was very confident my FOIP strategy was working. I was sure I hadn’t misread the timelines and deadlines I’d have to meet to get those final documents, so it was really disappointing (maddening even) to get those letters last Wednesday kicking all those FOIPPs past the upcoming Appeal Court Motion date.

In retrospect, I see that I, unfortunately, made two mistakes: (1) I underestimated the lengths the King Government is apparently now willing to go to prevent the release of those key documents to protect secrets and maintain the coverup; and (2) I failed to fully educate myself about the existence of that clause in the FOIPP Act allowing the public body (in this case, the Department of Economic Growth, Tourism, and Culture) to take additional time – a considerable amount of additional time – whenever there are “concurrent” requests from the same applicant, no matter how little work and time responding to those concurrent requests might entail.

 2.  FOIPP #015: Was the MOU Factored into Innovation PEI’s Plans?

That’s the main question I was trying to answer with this targeted request. I only wanted one record, the presentation the CEO of Innovation PEI at the time, Cheryl Paynter, made to the Board of Directors on August 13, 2012:Cheryl Paynter Presentation Letter from APSOHere’s just a bit of the context out of which this FOIPP request came. I had already discovered that neither MOU, nor CMT, nor Trinity Bay had ever been mentioned in the Board minutes. This seemed really strange, since, in the April 4, 2012 Throne Speech, the Ghiz Government announced it was adding “Financial Services” as a targeted sector for recruitment efforts:

“Biosciences and Information Technology will remain important sectors for Prince Edward Island. As well, my Government will expand its strategic focus on the growing Financial Services sector…” [Hansard, April 4, 2012, p. 6]

With the FMT Project formally “on the books” with Innovation PEI, and the plan to make FMT the “hub” for the transaction platform, what was contained in that presentation would tell a lot about what the Board was being informed of and what the Board members were being kept in the dark about.

There were significant recruiting efforts with gaming and financial services companies already underway, so they were likely considerably intensified.

Paynter’s presentation to the Innovation PEI Board Members was in mid-August, 2012 – when the MOU was in effect – but that wasn’t the first document produced by Innovation PEI that undoubtedly contained important information about the reorganization underway at Innovation PEI, but more importantly, the recruitment work with the newly-targeted financial services sector; which leads me to my next FOIPP-ball the PEI Government successfully kicked past the May 19th Appeal Hearing Field Goal Posts.

3.  FOIPP #031: What Was Mix’s “Prospecting Work Plan” for 2012?

That’s the question I was trying to answer with this second targeted FOIPP request. I learned of three work plan presentations prepared by the Directors of three Divisions within Innovation PEI in early June, 2012 – a month before the MOU was signed – so I asked for the three of them, but I really wanted the one from Brad Mix:

031 request 3 workplansI’ve learned my lessons the hard way with FOIPP request wording. Now I  submit very precise wording, with as much detail as I can to eliminate all ambiguity or any possible confusion about what I’m asking for so it can’t be misinterpreted. This detail and precision also make the search easier for APSO and the public body by pointing out the exact event, dates, individuals, and documents. It’s actually not uncommon to receive a request for further clarification with FOIPP requests, which only delays things further, so it’s always best to cover all the bases from the get-go.

There would undoubtedly be critically-important information in Brad Mix’s work plan: (1) what would it say about the FMT Project, if anything? (2) what would it say, if anything, about his registration for the SWIFT Conference in SIBOS Japan? His boss, Cheryl Paynter only heard about it for the first time in August 2012, when Mix requested travel budget and permission from her to go to the conference in October 2012, and (3)  given the pending MOU. there was a need to put any recruitment plans that were already underway on hold or cancel plans altogether if necessary since the focus at that time was on moving forward with the FMT Simplex Global Transaction Platform Project.

That’s the kind of information I expected to find in Mix’s “Recruitment Plan” for 2012.  If you recall from the second-last blog article, it was the 2011 “Project Chart” from brad Mix that confirmed the existence and official Government Project status of the Virgin Gaming and FMT Projects with Innovation PEI.

Well, the King Government sent this FOIPP-Ball through the May 19th goalposts as well.

4.  FOIPP #2020-016: Did Innovation PEI Recruiters know about the MOU?

The question my 3rd FOIPP request attempted to answer involved a straightforward search of communications between the Innovation PEI authorities and the recruiters during a 5 month period.016 Description emails between

What this would involve would be a review of the recruitment staff (there are only a few people in that division) emails and paper records for a 5 month period using two keywords or phrases to search: Memorandum of Understanding (MOU) and Trinity Bay Technologies.

If the “FMT Project” had evolved to the point where there was apparently such confidence in the project that to keep CMT from establishing elsewhere it was decided to put legally-binding “exclusivity” and “confidentiality” clauses in the MOU Agreement, then there should have been lots to say about FMT and the transaction platform project: was it discussed? 

I had already discovered in another FOIPP request that there was no mention of the MOU Agreement in the official board minutes, or in official communications between Paynter (the person who signed the MOU agreement on behalf of Innovation PEI) and the recruitment staff. But that doesn’t really prove a lot – it was a “secret” file, after all, there could have been an agreement not to mention anything about the plans with FMT and Virgin Gaming as they worked secretly toward a big announcement in the Fall.

That presentation is a different kettle of fish.  Did Paynter talk about the reorganization of Innovation PEI to accommodate the new focus on recruiting financial services companies? Did she discuss the dilemma created by effectively “shutting down all discussions and recruitment efforts” with financial services companies as a legal requirement of the MOU signed with FMT?”

Did  Paynter discuss how those quite extensive recruitment efforts with financial services companies (like RBC Financial) had to be ended or put on hold until after the expiration of the MOU?  You can see why that document is a key document – secret file or not, Ms. Paynter either hid the reality of what was taking place within Innovation PEI in that presentation to the Board, or she addressed some of those core questions I just presented.

I was supposed to receive a “final response”  to this FOIP request on February 20, 2020 – which should have meant a copy of that single presentation in some format – but was informed in another letter received last Wednesday that the King Government had scored another field goal and the new date was the day after the Appeal, May 20, 2020.

5. My Letter to the Information Commissioner

Each of the three letters – one for each FOIPP request –  had the following sentence:

“We have consulted with the Information and Privacy Commissioner who has given permission to extend the time for responding to your request.”

For a number of reasons, I decided to write to the Information Commission, and those reasons are explained in my letter:

kevin letter1Kevin letter2Kevin Letter3

Kevin letter5

I figured there must be something I was missing, and there was. I received a response from the Information Commissioner the following day explaining that section 12.2 in the FOIPP Act provided legal grounds for the public body to take a further extension, based on the claim that the heavy workload resulting from multiple concurrent requests requires such an extension:Multiple Concurrent Requests

I suspect that this is a long-standing precedent and that whenever the public body makes such a request to the Information and Privacy commissioner it’s assumed legitimate, and approved, presuming it meets the “multiple concurrent requests” requirement.

I also suspect the Commissioner only receives information about the number of multiple concurrent requests, not the expected time/work associated with those requests.  Like I said in my letter to the Commissioner, the time it took the Department to request that extension kicking three field goals to block access likely exceeds the time it would have taken for the Department to have located, processed and provided me access to the records. Clearly, there is no evident willingness or intention with the Government to provide me with those records.

The Auditor General was aware that Innovation PEI had a mandate that made it “…responsible for growing the strategic sectors of…..financial services…” yet was suddenly legally obligated to cease all financial services recruitment efforts underway and not undertake any further activity in this sector when the MOU was signed, and [unamed] senior officials of Innovation PEI had concerns, but the time period when those concerns were raised is not provided:

Section 5.11: Further, clarification on the terms and conditions in the agreement was not obtained. This was particularly important for Innovation PEI because the wording of the exclusivity section was very broad. Financial service was a key sector identified by Innovation PE for economic development in the province. Innovation PEI senior officials advised that they were concerned about the exclusivity clause and how it would impact their work.

It’s not like there isn’t already more than ample evidence to prove a breach of the MOU; however, the documents I’m here being denied would likely have provided official confirmation that the necessary measures required to prevent violations of the exclusivity and confidentiality clauses in the MOU were not taken, making a “breach” of those legal requirements unavoidable, given the heightened focus on recruiting financial services companies within Innovation PEI.

Summary

This whole e-gaming and FOIPP mess the King Government now finds itself in only confirms what informed Islanders already know: (1) Senior bureaucrats under former Premier Wade MacLauchlan, who Premier King kept in their positions; (2) along with the same external legal counsel representing the former Liberal government (Stewart McKelvey) together remain in complete control of this file,  and apparently, the FOIPP processes within Government as well.

Unless there is a complete “about-face” with the direction the PEI Government is going (as well as an honest ‘confession’ of some kind) there really isn’t much else the King Government can do to address this extremely embarrassing, legally-troubling, public-optics nightmare that won’t make it worse.

Here’s a video clip from the Premier speaking about transparency, how Government information is power, and how the citizenry has a right to that information. He said he understood all that very well as a former Journalist – it’s time our Premier puts those words into action in honour of both the people of PEI and, of course, his own words that helped to make him Premier. Like he correctly says, “Islanders are demanding transparency.”

 

Posted in E-gaming, Provincial Politics | Tagged , , , , , , , , | 3 Comments

GHIZ’S PEI GOVERNMENT RECORDS CONFIRMED MISSING: (New Review Launched with Information Commissioner)

fOIPP PLAYBOOK

PREAMBLE

Paul Maines shared a letter with me that he recently received from the Premier’s Office as a final response to his FOIPP request for records from former Premier Robert Ghiz. The response he received now answers a question I unsuccessfully tried to answer over a year ago:

Did someone delete former Premier Robert Ghiz’s most sensitive emails and government records?

The answer is “Yes” – however, nothing much else is known at this point beyond the confirmation that a request for what should have returned hundreds – if not thousands -of documents came back “No Records Found.”

I’ll provide the details on Maines’ recent request for Ghiz documents, but first I want to tell the story of how my own efforts to answer this same question a year ago were ultimately frustrated by Paul Ledwell in the Premier’s office, who failed to undertake the search I had requested, which is explained below.

I did learn one important thing from that largely fruitless effort though: Premier Wade MacLauchlan had authorized the deletion of all of Ghiz’s electronic files and emails just days after being elected Premier in May 2015.

Ghiz gave sworn testimony in cross-examination about his decision to authorize the deletion of all of Chris LeClair’s files and emails, claiming that he never made that decision, despite signing the form.

This is a good time to remind ourselves that ONLY the Provincial Archivist and her staff at the Provincial Archives and Records Office (PARO) have the legal authority to destroy government records. As Premier, Robert Ghiz must surely have known that it was the responsibility of the Record Management Liason Officer (RMLO) in his office to manage the disposition of all documents in the Premier’s Office, which was all clearly mapped out in Treasury Board Directives and Departmental policy.

As LeClair’s supervisor, Robert Ghiz was the ONLY person authorized to make the decision to send instructions to Information Technology and Shared Services (ITSS) to remove and/or delete LeClair’s electronic records and accounts – hence Robert Ghiz’s signature on LeClair’s Employee Removal Form. Yet Ghiz swore that he didn’t “tick” the boxes on that form that told ITSS staff to delete all the files, emails and accounts. How did Ghiz explain his actions?

Ghiz’s story was that his assistant apparently decided to destroy all of Chris LeClair’s files and email documents on her own, without first copying them in accordance with the law. When she executed this strategy, she used Ghiz’s computer (so he says) but apparently failed to inform Premier Ghiz what she was doing when she asked Premier Ghiz to sign that one-page form. Ghiz said he signed that form without reading it, because he trusted his employees, and that he didn’t know that his signing that form would result in the destruction of all of his Chief of Staff’s electronic emails and Network files.

Ghiz has never answered for how all of LeClair’s “paper” documents also went missing and how could he swear in his Cross-examination that he had no idea who “wiped” LeClair’s desktop computer when that very statement was the only note in the Comments field on LeClair’s Employee Removal Form that Ghiz signed, about an inch above his signature.

Ghiz’s elimination of LeClair’s files would prove useless in the coverup strategy in the long run if Ghiz’s own electronic and paper files on those same secret projects remained intact. My suspicion that my search for egaming and FMT-related files in Ghiz’s records would ultimately prove fruitless was not without grounds.

When I filed a FOIPP, I was contacted and told there were “18 boxes” of paper records, but no electronic records, so FOIPPs would need to be done manually. Section 3 below deals with my subsequent attempt to get paper Ghiz records on egaming and CMT/FMT-related matters.

What we now know for sure is that for the 6 month period leading up to his abrupt exit from the PEI Government:

  1. LeClair had engaged in “insider trading” with an egaming investment, which he first denied in Court filings, then later admitted;
  2. LeClair was a “Contact person” on the Innovation PEI “Virgin Gaming/FMT” Project team at Innovation PEI, the same project which LeClair had invested in; and
  3. LeClair was not only a member of the Virgin Gaming/FMT project team but also the conduit of communication between the team members and Premier Ghiz on the FMT/Simplex initiative.

There is not a SINGLE document exchanged between Chris LeClair and Robert Ghiz [the Chief of Staff and his Premier] for at least the entire 6 month period prior to LeClair’s exit from government, or any document that even mentions LeClair.

That’s essentially the punchline for this article. The rest provides background detail and documentary evidence showing: (1) how former Premier Maclauchlan destroyed all Ghiz’s electronic records, and (2) how it is now confirmed that untold numbers of official Government Ghiz records were either never copied for archiving, or were destroyed after they were copied.

I’ve broken the material into the following four sections:

  1. A Chronology Leading to the Destruction of Ghiz’s Electronic Records
  2. Considerations on the Deletion of Ghiz’s Electronic Records
  3. My failed FOIPP attempt to obtain Ghiz Paper Records
  4. Maines’ Successful FOIPP Proving Missing Paper Records

++++++

1. A Chronology Leading to the Destruction of Ghiz’s Electronic Records

It’s important to situate MacLauchlan’s destruction of Ghiz’s electronic records within the proper historical and chronological context. There were lots of key events happening in late 2014 – 2015 that I’m sure most Islanders would remember being in the news, including:

  1. The surprise resignation of Ghiz in late 2014;
  2. The equally surprising coronation of MacLauchlan as the Liberal leader;
  3. The release of the CMT investigative report exonerating Maines and CMT;
  4. The publication of the Globe and Mail exposé on the e-gaming scandal,
  5. The election of MacLauchlan as Premier;
  6. The abrupt resignation of Wes Sheridan from the new MacLauchlan Liberal government, and;
  7. The immediate request by Premier MacLauchlan to the Auditor General to undertake an investigative audit of e-gaming, including the relationship the government had with CMT and Simplex, resulting in an “it’s before the Auditor General” non-response from the government to all e-gaming questions for the following year and a half.

Putting events in a timeline helps to grasp “what” likely contributed to “what” in the dynamic sequence of events, so let’s start at the beginning:

October 24, 2014 – Former RCMP officer and Private Investigator, Bruce MacDonald, sends a letter to Wes Sheridan, then Minister of Finance under Robert Ghiz, along with an executive summary of his completed Investigative Report (over 2,000 pages with the attachments) which revealed that Minister Sheridan…

“…was in possession of sufficient knowledge to inform either Mr. Hasmi, Mr. Curran or Mr. Dowling of the legitimate business dealings of CMT and their representatives. Such information could and should have prevented the needless investigation by the PEI Securities Commission.”

November 13, 2014 –– Robert Ghiz abruptly announces his resignation as Premier of PEI;

November 14, 2014 – Bruce MacDonald releases his Investigative Report to the media and general public, exonerating CMT and completely refuting any grounds or factual basis for the pernicious rumour that Paul Maines had bilked an old woman dying of cancer out of her life’s savings;

February 21, 2015 – Wade MacLauchlan is appointed Leader of the Liberal Party and Premier of Prince Edward Island. Robert Ghiz officially resigns.

February 21 – March 3, 2015 – Within 10 days of becoming Premier, Wade MacLauchlan “… had a meeting with the public archivist, Jill MacMicken-Wilson…and was given a complete briefing on the regime and the protocols regarding official records.”

February 24, 2015 – Wade MacLauchlan removes Wes Sheridan as Cabinet Minister and Sheridan resigns as an MLA the same day;

February 27, 2015 – The Globe and Mail published the results of its extensive investigation into the e-gaming scandal in PEI: “Small island, big bet: How PEI lost its online gambling gamble.”

March 4, 2015 – Premier Maclauchlan sends the controversial e-gaming file to the Auditor General for review;

Early March 2015 – Then PC Leader Rob Lantz sends a letter to Premier MacLauchlan demanding that he release all “e-gaming records.” He receives no response;

April 6, 2015 – Premier MacLauchlan launches an election campaign. The e-gaming scandal, concerns about government corruption, and a lack of openness, transparency, and accountability are prominent issues in the election campaign;

April 9, 2015 – CMT files a $25-Million lawsuit against government officials, including Chris LeClair, Robert Ghiz’s Chief of Staff. Jonathan Coady, legal counsel for the PEI government, files the government’s “Statement of Defense” just hours later, denying virtually all allegations.

April 13, 2015 – PC Leader Rob Lantz goes public about the letter he sent to Premier Wade MacLauchlan more than a month earlier demanding that he now release all “e-gaming records,” including thousands of e-gaming documents that had been “sealed” by the PEI Securities Commission;

May 24, 2015 – Wade MacLauchlan appoints Brian Douglas (Deputy Minister of Agriculture at the time) as Clerk of Executive Council;

May 29, 2015Brian Douglas signs the Employee Removal Form instructing ITSS to delete all Robert Ghiz’s files in his Network Drives and emails in his GroupWise email account.

2. Considerations on the Deletion of Ghiz’s Electronic Records

Normally, an “Employee Removal Form” is completed immediately after individuals cease to be employees of the PEI government. This is because it is necessary to ensure that they no longer have access to network drives and email accounts. However, record management laws and policies strictly forbid the “deletion” of these files and government records until such time as they are copied and/or otherwise protected and preserved.

Premier MacLauchlan had been thoroughly briefed on this matter. He informed the Legislative Assembly (November 30, 2016, p. 1933) that he was made fully aware of the laws and procedures governing record management and retention by the Provincial Archivist, Jill MacMicken-Wilson:

Premier acknowledges knowledge fo record management briefing

The normal “procedure” that is followed when ITSS is initially contacted and asked to ensure that employees who have left their jobs can no longer access their accounts is for them to simply “disable” the accounts, leaving the files of those employees (especially more senior-level bureaucrats and elected officials ) fully intact. In this way, new employees filling those positions can be given “proxy” access to those accounts so they can then access all the files and emails they’ll need to carry on with projects, discover what has already been done on files, etc.

This normal process was explained to members of the Standing Committee on Public Accounts by Scott Cudmore, head of Information Technology Shared Services (ITSS) on February 15, 2017, as follows:

Scott Cudmore: “When we disable an account, what that means technically, is that no one in the email system will have access to that account except for a system administrator of GroupWise themselves, or we have another special type of access called a proxy. All a proxy is, is it allows somebody else other than the previous owner or the owner of the account to gain access to that account. When the account is disabled, you can no longer send email, you can no longer – sorry, you can only read the email. One of the reasons why a department would want to have that proxy access is in a transition of responsibilities, for example, where emails were used to conduct business. If somebody leaves, somebody else comes along and takes their place, replaces them, it’s often necessary for that individual who’s replacing the person to have that access to those emails. When an email account is disabled, it can always be re-enabled and restored. In other words, disabling the account does not remove any email.”

The files and emails in Network or email accounts which are only “disabled” remain fully intact FOREVER and are not automatically “deleted” after one year, as the former Liberal Minister responsible for the Public Archives and Records Office (PARO), Doug Currie, indicated when he misled members of the Legislative Assembly in response to a question concerning normal record management procedures (see: Hansard Transcript, December 1, 2016, p. 1629].

Premier MacLauchlan did the same thing several weeks later when he misled Islanders in his 2016 year-end interviews with both the Guardian and CBC (see for example: “From Donald Trump to the Hells Angels: Wade MacLauchlan on 2016,” CBC, December 29, 2016).

Scott Cudmore clarified these matters for members of the Public Account Committee on February 1, 2017, by explaining that: “Currently, we have about 10,000 active users in our email system and we have about 4,000 disabled accounts” [Transcript; p. 99] and later during the same meeting, reiterated that same claim, clarifying that the emails in those 4,000 disabled accounts were still intact and accessible: “I’d mentioned there were 4,000 disabled accounts so that their emails are still available” [Transcript; p.103].
How is it that a person with a background in environmental technology and agriculture gets appointed to be the Clerk of Executive Council on a Sunday, then signs a form instructing ITSS to delete all of Robert Ghiz’s electronic network files, documents and emails just five (5) days later?

Given the sheer gravity of that decision, it is not reasonable to assume that he made that decision without direction and authorization from Premier MacLauchlan.

Ghiz Employee Removal Form.jpg

Given the obvious importance of so many of the issues, documents, and files in which Premier Ghiz would have been involved right up to the time Wade MacLauchlan was elected Premier – not least of which was PNP and the “e-gaming” file, which was at that time a matter before the courts and a major public issue both here and across Canada – why would Premier MacLauchlan immediately deny himself easy and immediate “proxy access” to those extensive electronic files? That decision doesn’t come close to passing the smell test.

Electronic files can be searched and located far more efficiently than paper files stored in boxes, so why would Premier MacLauchlan want them deleted from the system entirely, huddled together in some locked storage unit, filed under general subject headings in file folders?

If Ghiz’s files were destroyed without first being copied and protected, and someone was to file an Access request asking for any of those records, that person would simply receive a response indicating that no records were found, and that would be the end of it.

If Ghiz’s electronic files had not been deleted, and the computer accounts had simply been “disabled” – and someone was to file an Access request, any responsive records would have to be printed and provided to the person making the FOIPP request. But Premier MacLauchlan had been informed of the benefits of leaving electronic files intact for proxy access long before he decided to delete all of Ghiz’s emails, files, and accounts.

Wade MacLauchlan had received a “joint briefing” covering both the Provincial Archives and Records Office (PARO) and the Freedom of Information and Protection of Privacy Office (FOIPP), as was learned at a later Public Accounts Meeting held on February 1, 2017, p. 92] within a week or 10 days of becoming Premier, so he would have been fully aware of the legal requirements to protect these records and have the Record Management Liason Officer (RMLO) in his office make paper copies, complete schedules, and transport records to the Public Archives and Records Office (PARO) for disposition (either ‘archiving’ or ‘deletion’):

Premier's briefing on Foipp

The ITSS Employee Removal Form for Robert Ghiz indicated that all of Ghiz’s network files and emails had been destroyed on May 29, 2015. When I discovered Ghiz’s electronic files had been deleted, I wanted to confirm whether those records had first been copied and archived by MacLauchlan, so I submitted a FOIPP request.

3. My Failed FOIPP Request for Robert Ghiz’s E-gaming Paper Records

When Capital Markets Technologies and Paul Maines were hit with a Securities Investigation, a Private Investigator was contracted by CMT (RB Mac Consultants). The investigator, a retired RCMP Officer, Bruce MacDonald, submitted a number of FOIPP requests, one of which was for records in the premier’s office relating to an egaming event in which Premier Ghiz was involved. This was the final response he received:

June 11 2014 FOIPP by Bruce McDonald

There should have been records responsive to this request, but I learned from Ghiz’s Cross-examination transcript that he had great trouble recalling just about everything he was asked about, including when he first heard about CMT/FMT. Ghiz was certain about one thing, however, at the time Chris LeClair exited Government in October 2011, Ghiz had never heard of CMT/FMT.

CMT’s lawyer John MacDonald read from Ghiz’s sworn Affidavit, then asked him when he had first heard about CMT and FMT (764):

No Knowledge of CMT or FMT

No knowledge of CMT or FMT on October 19, 2011? That was a bald-faced lie. Ghiz participated in the major “Get to know CMT/FMT and the Secret Financial Transaction Platform Project” event at Crowbush in May 2011, so that sworn claim was clearly a lie. And Chris LeClair was involved in organizing that event and delivering briefing notes to the Premier on FMT – 6 months before he left Government. But after LeClair leaves Government, and Ghiz deletes all his records, and he is asked if he ever heard of CMT or FMT, he proceeds to swear that a lie is the truth. With no consequences. What a mess!

CMT’s private investigator was actually asking for records associated with another much later meeting that took place in the Premier’s office on February 9 and 10, 2012 – where documents show a PowerPoint on the Simplex Global Transaction Platform Project was presented.

A little over a year ago, I decided to try to obtain documents from Ghiz’s archives. I received the following response to my request in late January, 2019:

February 15, 2019 Letter from Kathyrn Dickson

I purposefully submitted this as unreasonably-broad so I could have a discussion with the APSO Coordinator about “narrowing” the search with more specific search criteria. If I received such a reply, that would suggest there were paper records organized in folders to search, only instead of “keywords” for electronic searches, I expected I would be asked for subject headings for file folder tabs. I wanted more information about how the files were organized before deciding on search criteria. Sure enough, I received a request to narrow the search a short time later:

March 7, 2019

After receiving this email, I called Ms. Dickson and gave her three “subject headings” for the FOIPP search, but then realized I hadn’t specified that now that “subject” heading was being searched on just three headings, I wanted all the 18 boxes searched for records with those subject headings, and sent a follow-up email:

March 7 email from Kevin to Katthyrn Dickson

Concerned that I had heard nothing back confirming that the scope of my request would be changed from one week to the entire scope of Ghiz’s tenure as Premier, I sent another email to Ms. Dickson four days later:

March 11, 2019

I received the following response the same day:

March 11, 2019 Kathyrn to Kevin

Ms. Dickson was in touch with me by phone to assure me that she passed on the amendment to the FOIPP request scope to the public body.

On April 8, 2019, I received a final decision letter from the Premier’s Office. The first thing I noticed is that they did not search as per the scope of my request, but used the three search terms FOR ONLY ONE WEEK:

April 8

Notwithstanding the fact that the public body did not amend my initial request as per the new search scope, the final response letter referred to my request as a “revised” request. Not surprisingly, having limited the search to just five business days, nothing was found:

Not only was the search unilaterally restricted to one week, despite my revised search scope, it apparently didn’t even involve an actual search of the hardcopy records, but only checked “a list documenting the former Premier’s records” to see if my search terms were on the list. Unbelievable.

The electronic search shouldn’t have taken 20 minutes. In fact, it shouldn’t have taken any time at all: Ghiz’s electronic documents and emails – his e-gaming files included –had already been ALL deleted back in May 2015. I suspect that Mr. Ledwell didn’t realize I already knew that, and 20 minutes seems excessive to me to search an archive that doesn’t exist.

My principal aim was to determine whether those electronic records were “backed up” and stored for the Provincial Archives in accordance with the law, but I was unfortunately no further ahead knowing that, with that non-response to my request. Being busy with other things at the time, I did not resubmit the FOIPP with clear terms that couldn’t be misinterpreted or ignored, nor did I request a review of that FOIPP request with the Information Commissioner. Fast-forward to December 2019.

4. Maines’ Successful FOIPP Proving Missing and/or Deleted Ghiz Records

Paul Maines submitted a FOIPP request for Ghiz documents, which was received by the Premier’s Office (PO) on December 9, 2019. The APSO Coordinator in the PO then wrote to Maines on January 10, 2020, indicating that a time extension was required, and that the new response date would be February 7, 2020:

January 10 letter from PO to Maines

The Premier’s Office sent Maines a final response letter on February 3, 2020, indicating that no records had been found:

Unlike my request for Premier Ghiz’s egaming records using three “subject headings,” Maines’ request was very broad, asking for ANY records mentioning either Paul Jenkins or his own Chief of Staff, Chris LeClair for the ENTIRE last 6 months LeClair was in the Premier’s Office. The Premier’s Office only searched a “list” with my request, but with Maines’ FOIPP the search was with the actual “…archived files including correspondence and reports dated from May 1, 2011, to November 1, 2011.”

HOW IS IT POSSIBLE THAT NOT A SINGLE RECORD BETWEEN THE PREMIER AND HIS CHIEF OF STAFF EXISTS FOR THE ENTIRE LAST 6 MONTHS CHRIS LECLAIR WAS IN THE PREMIER’S OFFICE?

Section 8 of the FOIPP Act requires the public body to explain to the applicant why records that were once in the possession of the public body are no longer in the possession of the public body, and Maines immediately filed a review with the Information Commissioner’s office based on Section 8. Ms. Rose has since notified the Premier’s Office that an OIPC review on this FOIPP is underway and has requested the file:

February 12 letter from karen rose to pb

It is worth noting that it was Paul Ledwell who (1) responded to my request for Ghiz records in the Premier’s office under former Premier Wade MacLaughlan and that it was also Paul Ledwell who (2) responded to Maine’s request for Ghiz records in the Premier’s office under our current Premier, Dennis King. It seems continuity does indeed ensure consistency in outcomes!

It will be interesting to see what Ms. Rose uncovers in her investigation into Ghiz’s missing records. Of even more interest will be how Premier King is going to explain these missing Ghiz records.

Summary

There have been at least three targeted requests for e-gaming and/or CMT/FMT-related documents associated with dates and meetings when it was known that former Premier Robert Ghiz was involved with the PEI Government-FMT project: Bruce MacDonald, me, and Paul Maines. Not a single page of records was produced in any of them.

It seems nearly everywhere Paul Maines and I have looked for records related to the e-gaming and financial transaction platform projects that should exist we find the same thing: records have gone missing, or in some instances, there’s official confirmation that records were mysteriously, but permanently, deleted – by someone not authorized to do so, otherwise there would be schedules and documentation on the record disposition process for those deleted records – and that those records are now unrecoverable from backup tapes (electronic records) or were destroyed (paper records).

This problem is clearly endemic – not to mention criminal. This shameless disrespect for maintaining and making available to Islanders a truthful historical record of Government’s activity has been a festering pus-filled wound sickening our entire democracy for far too long. It urgently needs excising!

The Green Party, our Official Opposition, have yet to say anything about this rampant document destruction, missing records, repeated refusal to release documents in FOIPP requests, leading to numerous reviews at the Information and Privacy Commissioner, then Consent Orders, Court Orders, and now several PEI Supreme Court Motions that will be heard in early March 2020, including a Motion seeking a ruling against the King Government of “Contempt” for breach of a Supreme Court-enforced Order that the PEI Government, ironically, asked for, then completely ignored.

What has the King government said to explain itself? Nothing of any substance. The only justification provided in the legal defense filed on Maines’ initial Motion attempting to justify this egregious and unlawful behavior covering up information and documents was: “We’ve been busy as heck, and it seems there just aren’t enough hours in the day…but don’t worry, we’ll get to it eventually.”

Can you imagine you or I saying such a thing to a Supreme Court Judge after breaching an Order that same Court issued “Ordering” you or I (that’s what Orders do) to do something by a certain date? I know I wouldn’t say I was busy and just couldn’t get around to it, or at least not without having a packed bag with fresh socks and underwear in hand for the ride out to Sleepy Hollow.

What has the Official Opposition done to call the Government to account on this extremely disturbing trend of denying access to and/or destroying Government records? What has Peter Bevan-Baker said to coax the King government to start trusting Islanders as the PC Party promised it would and provide a public explanation for the unprecedented way in which the PEI Government is blocking Islanders from accessing what our PEI laws declare we have a right to access? Nothing. Absolutely nothing. Not a single word.

What has the leader of the NDP, Joe Byrne, had to say about all of this? Quite a lot, actually, but few Islanders would be aware of that. Byrne was the only politician to attend the recent PEI Supreme Court Motion Hearing and has published two excellent News Releases in recent weeks, [Byrne Challenges King Government on Transparency on E-gaming File {January 22, 2020} and Byrne Calls for Action on Missing E-Gaming Records (November 28, 2019)].

Unfortunately, when I asked Byrne at the Court House last week why he hadn’t sent those two News Release to the media but had only posted them on the NDP Webpage, he told me that he sent both of them to all media, but neither the Guardian, Journal Pioneer, Eastern Graphic, West Prince Graphic nor CBC published either of them.
Saltwire: You want to be the news source in PEI with the “most local”? Then publish what’s local!
CBC: You want Islanders to respect you as our “public” Broadcaster? Earn it……start reporting news from Joe (public).

Whoever is making decisions to crumple up Byrne’s news releases and toss them in the garbage should be ashamed of themselves! Have they not noticed? Joe is the only leader of a PEI political party that has been so far willing to call Government to account and offer information for Islanders about this extremely serious matter. Yet PEI’s self-proclaimed “most local” daily newspaper monopoly, as well as our “public broadcaster,” won’t let him. That’s a pretty sad state of affairs if you ask me.

Islanders were promised a fair, open, honest and transparent Government with an unmatched degree of passion and sincerity never before seen in an incoming Government.

The brutal denial of access to information and documents by the King government -coupled with the shameless silence by the Official Opposition on these historically-significant issues – has created never-before collusion on the pretense of collaboration, covering corruption that’s now obvious, blatant, continuing, and unprecedented in our political history.

When all is said and done, when the dust finally settles and the full truth is revealed about who really runs this province, the logical prediction would be that the PC Minority government won’t survive this scandal. Then again, will Islanders want the Greens in power when they either (1) haven’t had the insight to recognize the incredible political significance of what is happening that needs to be fully exposed and challenged, or (2) they don’t have the courage to rock the powers clearly pulling the strings with the King Government.

What kind of a Government would the Greens make when they can’t even find the muster to mount an effective Opposition?

And given the fact that it was the Liberals who conceived, gave birth, then hid this egaming demon child in the shadows for years….well, they can forget about being the government until this generation dies off.

So that’s my prediction: the Minority government will survive because all three political parties know they have all lost the confidence of Islanders and are terrified to tell them the truth about their impotence – the only thing left for them to do to regain some power. I suspect no PEI politician has anything they believe worth taking to the polls.

You would think the Greens would realize that they have absolutely nothing to lose by raising this issue in the public sphere, but so far, it appears that Peter Bevan-Baker’s philosophy is: “There’s nothing to fear but [the public] sphere itself!” when it comes to speaking publicly on this anti-democratic and illegal control strategy with FOIPP Act violations to keep sensitive Government documents hidden.

Perhaps if more Islanders started writing letters to the editors, short pithy ones with one or two really clear questions for the Government or Opposition Party, it might get the media ball rolling on this major story in the making that no media outlet seems to want to report. I personally think it’s time for some of the national media people I know are following this blog to put their pen to paper.

Posted in E-gaming | Tagged , , , , , , , , , , | 2 Comments

The Meddler’s “Shallow” Take on Deep-Water Wells: Two Responses

iRRIGATION

Preamble

Below is a response from David Weale to Alan Holman’s (the Meddler’s) Guest Column in last Saturday’s Guardian posted on his Facebook Page.

You can read a copy of the Meddler’s Guest Column Here

And you can read a copy of Weale’s Guardian Guest Opinion Here

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Facebook Response to the ‘Meddler’ – by David Weale

“I am writing in response to Alan Holman’s column in last Saturday’s Guardian in which he wrote dismissively about the passionate concern of those Islanders alarmed about the connection between high-capacity wells and the continuation and expansion of industrial farming on the Island.

At one point he referred to “industrial agriculture” as though it were a term we just made-up because we don’t like potato farmers, when actually it is a very accurate, straight-forward description of what has happened across the Island for decades.

What do you call it Alan?

What do you call that ‘get-big-or-get-out’ process that has contributed to the elimination of 10,000 farms on the Island over our lifetime?

And what do you call a process that has increased dramatically the amount of commercial/industrial fertilizer pesticide used, and decreased dramatically the amount of organic matter in the soil, to the point where some biologists have declared that much of the earth on the Island is approaching a condition where it cannot be accurately identified by the word ‘soil’.

What term might you employ to describe that process? Some crass individuals call it “progress.” Don’t tell me you are one of those. Unfortunately, it rather sounds that way. At the very best you came across as a fatalist, resigned to the Irving hegemony over the Island countryside.

You have spoken disparagingly of the deep concern of many Islanders for the health of the soil and the well-being of rural culture. Indeed, you attempted to make it sound as if such concern were a tad silly, or overly dramatic.

But I have a question for you Alan. What do you care about? Where is the line in the sand for you, where inaction seems unthinkable and resistance essential?

I think perhaps it is a question you should answer for otherwise many will be left with the niggling suspicion that you care more about the monoculture of the Irvings than about the need for a diversified, more sustainable agriculture; and more about length of french fries than the shortness of the time we have to clean up our ecological act in this province.

And perhaps I am over-reacting! After all, you do call yourself ‘the Meddler” and perhaps that’s all you were doing; having a little fun meddling, and the worst I should say is, “go meddle someplace else,” where the stakes are not so high.”

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My Facebook Reply to David Weale’s Response to the Meddler

 

Brilliant response to the Meddler David Weale! I have posted your response to Holman (and what follows) in a blog post.
 
David, you speak from the heart, with an obvious intention to heal. It’s not clear from where, exactly, the Meddler is speaking. Nor is his intention clear. And those are indeed the tools employed by “meddlers” – e.g., entering public discourse to deflect attention away from more-sincere efforts underway to discover the root causes of significant social problems.
 
Meddlers deflect away from solving problems pretending they don’t exist, with questions like: “It doesn’t really matter how much extra water we take from our groundwater to grow potatoes for processing…..there’s lots of fresh groundwater in our aquifers to go around.” The really important problems with Island agriculture are totally ignored with this line of reasoning – completely camouflaged. Now that’s meddling!
 
So why do processing potato growers need more water? PEI has been losing the “water-holding capacity” in topsoil at an alarming rate over the past number of decades from a steady and truly alarming loss of Soil Organic Matter. Can the volume of water that is lost in an acre of topsoil with a 1% drop in Soil Organic Matter be calculated? Yes.
 
An article by the Natural Resource Defence Council titled “Organic Matter Can Improve Your Soil’s Water Holding Capacity,” calculated the amount of additional water retained from an increase of 1 percent SOM based on a number of reasonable assumptions: “If an acre of soil is 820,264 kg, then 1 percent organic matter would be 8,202.6 kg/acre…. If we make the assumption that organic matter holds 10 times its weight, or 82,026 kg (180,836 lbs) of water. There are 8.3454 lbs in a gallon, so that is 21,668 gallons of water.”
 
21,668 additional gallons of water per acre from a 1% increase in SOM is significant!
 
When the Pat Binns Government first implemented the ongoing Island -wide Soil Organic Matter Quality study in 1999, the first round of testing discovered a significant rate of decline in the health of PEI soil. No one argued about the source of the negative trend-setting problem – it was being caused by intensive farming methods associated with industrial agricultural farm practices. A minimum acceptable level of 3% SOM was established by Binns.
In the first Island-wide testing results in 1999, it was discovered that only 20% of PEI soil had really good 4% SOM or higher soil, and 38% of PEI farmland was below what was regarded as the minimum 3% SOM level required for farming. Anything below that requires much higher doses of chemical fertilizers to maintain yields.
 
Things have gotten much worse since then! A target was set by Binns to bring 90% of PEI Soil to 3% by 2010, but that didn’t happen. By 2017 there was no longer any PEI farmland with 4% SOM or higher soil, and by 2017 only 24 percent of PEI farmland sampled had 3% or higher SOM. Please allow me to repeat that in a slightly more deliberate and enunciated voice: BY 2017 ONLY 24% OF PEI FARMLAND SAMPLED HAD 3 PERCENT OR HIGHER SOM.
 
As Ian Petrie concluded in a recent article in the Eastern Graphic (shared on Vision PEI’s Facebook page) declining soil quality and the need to restore soil health now makes a strategy to address depleted SOM a priority. I came to the same conclusion as a result of my Farmland Bank study, making the restoration of soil health the priority policy objective informing all other policies and programs.
An Idea for Meddler’s Next Guardian Column
 
Start by calculating the total volume of water wasted in PEI over the last 20 years in PEI, based on the rate of loss of water from decreased SOM in each acre of farmed land each year.
 
Then explain to Islanders how massive volumes of additional water to flush more and more pollutants and toxins into both our groundwater (lower SOM lowers the water-retention capacity of soil) and surface water (lower SOM increases erosion, run-offs, and contamination of streams, rivers, lakes, and estuaries.
 
 
If you’re going to meddle in these historically-significant social issues Mr. Holman, why not meddle by shedding light on the true problems not only seriously affecting our environment from industrial farming but how allowing processing growers to have as many deepwater wells will not be in any way a remedy to the ills from which David Weale seeks relief on behalf of us all, nor an answer to the relentless stress and financial hardships on farmers leading to the continual reduction in the number of family farms. Perhaps you are unaware of all that…meddlers seldom get the whole story.
Posted in Agriculture | Tagged , , , | 3 Comments

New Deemed Refusal FOIPP Document Exposes PEI Government “FMT Project” Cover-Up

New Cover for FOIPP Document Post

PREAMBLE

I received a single page  – actually, two rows in a chart – on Wednesday of this past week (February 5, 2020) that proves beyond a shadow of a doubt that both the PEI Government and Legal Counsel in the CMT lawsuit (Stewart McKelvey law firm), have been jointly-involved in a massive cover-up in the e-gaming scandal, and that the heart of that cover-up has been a complete denial of the Pre-MOU business relationship the PEI Government had with Paul Maines and CMT/FMT.

This new document (and other documents cited in this article supporting what is contained in that new FOIPP document) should change everything with the CMT Appeal on a go-forward basis. We’ll see.

Part of that cover-up involved the PEI Government’s outside legal counsel on the CMT lawsuit, Stewart McKelvey, keeping documents and information from the eyes of Judge Gordon Campbell by failing to disclose materially-relevant documents.  The documents that were not submitted in the lawsuit had to do primarily with events in the Pre-MOU period. That left Campbell free to rule on just one thing: whether the PEI Government breached the MOU signed with FMT in July 2012.

Although there were a few documents relating to events in the Pre-MOU period (any time before July 2012) that had been entered into the Court Record by CMT’s lawyer, as well as allegations of wrongdoing contained in CMT’s Statement of Claim for various Pre-MOU events, Judge Campbell, nonetheless, completely ignored those claims in CMT’s filing, as well as PEI Government documents obtained through FOIPP requests that CMT also filed in support of those claims.

Most of the documents revealing what truly happened between CMT/FMT and the PEI Government in the Pre-MOU period were never entered into the Court Record by the PEI Government’s legal counsel, Jonathan Coady, and were not, until very recently, even known about until they were obtained through FOIPP requests. These documents, especially the one I just received, change everything.

To distinguish between (a) the government documents entered by CMT’s lawyer that Judge Campbell ignored; and (2) the documents Coady never allowed Judge Campbell to see, because he didn’t disclose them, and only became known through FOIPPs, I’ll either put a [Not Produced] or [Ignored] beside each document listed in this post. In this way, you can get a better sense of what Judge Campbell knew about the business relationship between the PEI Government and CMT/FMT during the pre-MOU period when he made his ruling.

It is important to properly “re-situate” and explain events in the light of the information in this new document that now proves unequivocally that a massive cover-up was architected by the PEI Government and is now exposed, as of today.

Whether this news is identified as the “breaking news” it truly is by the local media is of little consequence now; nothing will change the fact that this new revelation will undoubtedly guarantee a win for CMT at the Appeal Hearing in May 2020 and bring a whole heap of legal hurt on both the Government and its outside legal Counsel on this case, Stewart McKelvey.

Because the information in this document serves as a “key” of sorts, unlocking the true significance of other events – it is now possible to make far more powerful connections with more astounding revelations.  For example, this document identifies an FMT – Government Project, with “Contact People” forming the core team, moving the project forward – something you’ll recall Judge Campbell said never existed.

So these two key PEI Government employees who mysteriously had their documents go missing for the entire 2-year e-gaming “pre-MOU” period [Brad Mix], and the other Government employee who had all his records – electronic and paper – destroyed by his Supervisor, the former Liberal Premier of PEI, Robert Ghiz, while serving as his Chief-of-Staff at the time [Chris LeClair]: WERE ALSO THE TWO PEI GOVERNMENT “CONTACTS” ON THE PEI FMT PROJECT!

This is a long article because with this new revelation it is now possible – and important – to make a number of other connections, rewrite the false narrative, and reveal, once and for all,  how Campbell’s ruling has missed so much truth, and is riddled with so many errors, that the Chief Justice should step in and save Island taxpayers the cost of an appeal.

The article has the following sections:

  • Section 1: The Long FOIPP Journey to Obtain this Document 
  • Section 2: What I Found in the New Document
  • Section 3: FMT’s “Pre-MOU” Business Relationship with the PEI Government
  • Section 4: Another Look at What Judge Campbell said about FMT
  • Section 5: The FMT Project “Contacts” and Deleted & Missing Records

Section 1 sheds light on the effort and sheer doggedness it currently takes to obtain documents through the FOIPP process with the King Government. I offer a chronological review of the communications only from January 5, 2020, to February 6, 2020, on this one FOIPP request which finally produced this one key document.

I initially filed for these documents on November 8, 2019, and later received a letter indicating an extension would be taken, but things went silent until the Department failed to meet its final deadline on January 5, 2020. I’ll pick it up from there, so what I cover as far as communications on the file covers just one month. If you really don’t care about how I finally got that single document proving a multi-leveled, multi-year cover-up by multiple Governments, you can skip ahead to section 2.

  ++++++

1.   The Long FOIP Journey to Get This Document

I’ll pick up at the date (January 5, 2020) when I should have been provided this document. When the King Government failed to respond, it created another “deemed refusal”.

On January 16, 2020, I posted an article titled Update on the 5th Deemed Refusal by King Government concerning this particular FOIP.  I included a letter in that post that I had just sent to the Information and Privacy Commissioner, Karen Rose, seeking a Consent Order.

++++++++++

January 6, 2020: I wrote to the Information Commissioner requesting a Consent Order after the PEI Government failed to respond by the deadline prescribed in the FOIP Act.

January 10, 2020: I received an email from APSO Coordinator, Mary-Lynn Smith, providing a “response” to the FOIP request, thereby bringing the Department of Economic Growth, Tourism, and Culture out of an illegal “deemed refusal” situation and back in line with the FOIP Act:

January 10 from Mary-Lynn to Kevin

January 10, 2020: I emailed the  FOIPP Coordinator (and cc’d the Information Commissioner) requesting that I be provided with the pages not needing to be sent to third parties for consultations.

January 10 from Kevin to Mary-LynnJanuary 16, 2020: I received a copy of a letter sent by the Information Commissioner to Deputy Minister McGrath-Gaudet informing her that a review of this FOIP was underway, with the Commissioner noting: “I will be monitoring the continued process of this access request.”

January 16 letter from Rose to GaudetFebruary 2, 2020: I emailed the  Information Commissioner about getting a Consent Order, having received no response to my January 10 email request to Ms. Smith that the severed pages not needing 3rd party consultations to be sent to me

Kevn to Karen, Feb 2February 3, 2020: I received an email from the Information Commissioner concerning information she obtained from the FOIPP Coordinator informing me that I would be (if I already hadn’t been) contacted by the public body, and sent 166 pages “Immediately”:

Karen Rose to Kevin Monday February 3February 3, 2020: That evening, I thought I should let the Commissioner know that I had heard nothing from anyone in Government, nor had I received the promised 166 pages. I again brought up my interest in obtaining a “Consent Order”.

February 4, 2020: I received an email from Karen Rose with further information about the status of the release of 166 pages. I also learned from the Commissioner that she cannot “compel” the Department to sign a Consent Order.

Feb 4

February 5, 2020:On Wednesday, I received an email from Ms. Smith with attached records:

February 5 from Mary-Lynn to Kevin

2.  What I found in the New FOIP Document

Scrolling through the documents (all contained in one pdf) the first thing I noticed was that there were actually very few “records” – there were a few large reports that would take absolutely no time to decide could be made public immediately, and a few unrelated emails concerning other Government projects. When I reached the last page, it appeared there was absolutely nothing of value to my investigation in what I had received.

In the February 3, 2020 email from the Privacy Commissioner, I was told there would be 166 pages released immediately, and another 103 pages that had gone to two different 3rd party consultations, for a total of 166 + 103 = 269. I received 269 pages from the FOIPP Coordinator on Wednesday, yet in the email, Ms. Smith said: “We received input from one of the two parties and have included the related records in this package.”

How many pages are still with the “second” third party consultation?  I have no clue, but based on what I was told previously, there shouldn’t be any.  Then again, in the January 10, 2020 email from Ms. Smith I was told there were just 113 pages.

Receiving conflicting and contradictory information from the public body on FOIPs – that then requires followup correspondence for clarification – is an all-too-common part of the FOIP journey with the PEI Government, at least with the kind of records I’m asking the Government to produce.

After that first read-through, I immediately started thinking about other documents in my possession from either CMT’s court filings, or other FOIPP requests, that may have had some “overlapping” documents with this request. I was sure there should have been many more emails, so I figured I’d see if I could find some such emails in my documents, and then submit them to the Information Commissioner as evidence that I did not receive “responsive” email records that I should have received from the public body with this request. Before moving on to that task, however, I decided to give the PDF one more scan.

Scrolling through the pages a second time, I stopped at a chart I had skipped over on the first pass (because I couldn’t make it out to read) and stared at it trying to focus in on the characters to figure out what the pixelated text said.

Here’s a scan of one of the three pages as it appeared when scrolling through the documents. I hadn’t noticed the Chart title on the first go-through either, and seeing “Brad Mix – My Projects xlsx” certainly piqued my curiosity.  Nor had I noticed that the date that APSO had actually processed this record was November 8, 2019:

Mix Work Plan

The first column had a different company with an active project file with Brad Mix’s Recruitment Division at Innovation PEI. The 6th row from the bottom of page 2 of the chart caught my eye: it appeared there were only three letters in the company name, so I magnified the text and saw this:

FMT

No question that was “FMT”. Although it was possible to decipher most of the pixelated text in the columns by magnifying the text, I decided to send an email to the APSO Coordinator to see if I could get a legible copy of the document.

I created a three-page PDF of that chart and sent it to  Ms. Smith with this request on February 6, 2020, just before heading into the PEI Supreme Court to attend Paul Maines’ Contempt Motion Hearing against the same Department of Economics Growth, Tourism, and Culture:Kevin to Mary-Lynn February 6

I received an email from Ms. Smith approximately three hours later:

Mary-Lynn to Kevin, Feb 6

Here is the same page presented above, only in perfectly legible condition:

Legible Chart

I couldn’t help but wonder why I was sent an illegible copy of this document, stuck in the middle of 269 pages of useless information and reports when the Department could have just as easily sent me this version in the first place.

Whether there was a deliberate attempt to increase the odds that I would not detect the significance of those two rows in that three-page pixelated chart is irrelevant: I now have a perfectly legible copy of those two key rows in Brad Mix’s Work Plan from May 2011, and that information truly does expose a massive, on-going, and very corrupt cover-up by the PEI Government.

That cover-up involved:

  • (1) Destruction of Records of ALL the key players in the FMT-PEI Government Financial Transaction Platform project, as listed in the “Contact” field of the Project in Brad MIx’s  May 2011 Work Plan: Chris LeClair; Paul Jenkins; Brad Mix; and Patrick Mason [See: section below];
  • (2) Systematic and Deliberate withholding of ALL documentation from the Courts by the PEI Government’s legal Counsel, Jonathan Coady, of the four named “Contacts” on the FMT Project, documentation detailing the long-standing and extensive business relationship between FMT and the PEI Government in the Pre-MOU period, starting in the late summer of 2010; and
  • (3) Systematic Delay and/or Withholding of documents related to numerous e-gaming-related FOIPP requests, by the PEI Government, in contravention of the FOIPP Act.

two rows with heading

Although the text in the chart is perfectly legible, it needs to be made bigger to see clearly, so I’ve typed what’s in each row of the chart:

(A) Virgin Gaming

    • Project: Virgin Gaming
    • Description: Toronto Based company provides online gaming tournaments for money.
    • Status/Issues: Seen as the first step in getting an electronic gaming sector here.  They would be listed as a financial services company  
    • Contact: Brad Mix, Paul Jenkins, Patrick Mason, Chris LeClair
    • Pressing Needs; Waiting for a 2 pager from them on what they will do, and what they want.  This is expected this week

(B) FMT

    • Project: FMT
    • Description: An Investment Group that has money in some Middleware Companies that provide billing services to Credit Card Companies, Banks, and others.
    • Status/Issues: Company is looking at putting an office in PEI to be close to a payment chain that would be needed if an online gaming cluster is located in PEI.
    • Contact: Paul Jenkins, Pat Mason, Brad Mix
    • Pressing Needs; Waiting for a 2 pager from them on what they will do, and what they want.  They are here this week

I couldn’t find a date on the document; however, in an email from John Eden, there’s an attachment with the same document name dated May 20, 2011.

My projects

From a few documents obtained in other FOIPs that pertain to information in this chart it is clear that it was May 2011:

  1.  May 1, 2011, Paul Jenkin’s email that references a meeting with John Eden and Brad Mix;
  2.  May 15. 2011 email from Paul Jenkins discussing the delivery of a “two-page” document; and
  3. May 16, 2011 email that John Eden sent to confirm receipt of the FMT 2-pager mentioned by Brad Mix in his Workplan Chart.

That 2-page document was mentioned by Campbell as the document Maines used to solicit investments, relying on the false sworn testimony of Steven Dowling. That 2-pager was written by Paul Maines to meet the request from the PEI Government Project Contacts/Team members and forwarded to Team members by Paul Jenkins.

How sadly ironic that Paul Maines wrote that 2-pager at the request of PEI Government staff (Brad Mix) then had the PEI Government (Steve Dowling) turn around and swear an affidavit that Maines used that document to “solicit investments” when the CMT investment plan was initiated and driven by Paul Jenkins:  the “soliciting” was undertaken by Jenkins and his broker buddy Shane MacEachern at RBC Financial in Charlottetown, mostly among their family members, friends and insider connections, as is abundantly evident from the list of 36 investors.

Justice Campbell then takes that false sworn testimony and repeatedly claims, stating unequivocally, yet without a shred of evidence other than Dowling’s false testimony in his Affidavit from the PEI Securities Commission investigation, that Maines used that 2-page document to solicit investments DESPITE THE FACT THAT ALL THREE PEOPLE DOWLING CLAIMED TO HAVE TOLD HIM MAINES HAD SOLICITED THE INVESTMENTS THEY MADE each swore an affidavit SWEARING Paul Maines did not solicit their investments.

As you can see, that 2-pager was written by Maines to explain the business model, services the financial transaction platform offers, etc.  that document had nothing to do with soliciting investments at all, and again, the PEI Government requested that information for the FMT- PEI Government Project!   Here’s the first page of that 2-pager…see for yourself:

Page 1

This Work Plan chart from Brad Mix confirms that the PEI Government was actively working on two Projects with FMT, one directly with FMT, and another with Virgin Gaming via FMT’s recruitment work, something highlighted by Patrick Mason in his FMT Feasibility study (see below) as an important component in the plan to establish FMT as the deliverer of a successful FMT SWIFT-accredited Global Transaction Platform for North America from PEI. Paul Maines was actively involved with the recruiting work, while Paul Jenkins liaised with Government officials. Virgin Gaming was the first successful recruiting effort by FMT in early 2011.

This “Workplan Chart” document listing active projects with companies is unambiguous documentary evidence of a cover-up and gives formal and official structure and credence to what I have indicated in previous posts: that it was indeed FMT (Paul Maines and Paul Jenkins) that recruited Virgin Gaming to PEI in keeping with the expectations laid out in the Recruitment Package provided to FMT. One of the “contacts” listed for the Virgin Gaming Project was Paul Jenkins, representing FMT – which was 100%-owned by CMT – revealing in an official Government document FMT’s core involvement in the Virgin Gaming Project.

3.  FMT’s “Pre-MOU” Business Relationship with the PEI Government

The information in Brad Mix’s Workplan on the FMT project wasn’t discussing a project “possibility,” but rather, an active project that had been underway for months. One would not have learned about that from the obviously “scrubbed” documents that the PEI Government did disclose to Judge Campbell. The documents cited below were obtained in FOIP requests by Paul Maines or me and were either (1) filed with the Court by CMT’s lawyer (but ignored by Campbell), or (2) obtained SINCE Campbell dismissed the case in FOIPP requests, but not disclosed by PEI Government’s Counsel, therefore they were never seen and considered by Judge Campbell.

January 30, 2011: Email from FMT director, Paul Jenkins, to Patrick Mason [IGNORED] informing Mason that he had met with Chief-of-Staff Chris LeClair and LeClair gave approval for Patrick Mason to undertake “an analysis for FMT,” specifically, “…how FMT fits into the payment chain and should be the provinces favored claims adjudication engine for new business.”

January 30 email from pj to pm

January 31, 2011: Email from Patrick Mason to Philip Walsh.  [IGNORED] Mason informs Philip Walsh (CEO of Simplex) that the province is interested in exploring having the Simplex Global Transaction Platform established in PEI (through FMT). but adds that “…their [the PEI Government] is still moving business, jobs, and revenue to the Province.”  It was for this reason Paul Maines (as CMT’s VP of Business Development) was engaged in recruitment efforts at this time – to bring additional clients to FMT’s platform.

 “A payment platform that could provide services to multiple clients would be of interest to the province as their ultimate goal is still moving business, jobs, and revenue to the Province. The fact that you have gaming clients today is good, and I think we would also need to look at our ability to interoperate with Continent 8. I don’t have much on them technically, but I would assume this would be possible. Paul Jenkins is to advise me this week that he has obtained funding to engage my consulting company to proceed with a small investigation into the opportunities and benefits associated with moving a payments business to PEI.”

February 11, 2011: A 9-page Contract [NOT PRODUCED] between Innovation PEI and Patrick Mason, signed  by Brad Mix, titled, “Market Intelligence and Claims Processing Feasibility.”

February Mason Contract

Project Description

The “establishment of a “back office centre” for the “financial services/gaming sector” here refers to the establishment of a SWIFT-accredited Global Transactions Platform by FMT.  Claimatrix is listed in the description as a “company” but is actually one of the main “stacks” on the Platform (100%-owned by CMT).  Virgin Gaming was the first major client that would connect to FMT’s platform, recruited by Paul Maines, and Ethocia was a credit-card security company that was going to provide that service for the Financial Services Platform. FMT would also, however, be bringing CMT/SIMPLEX  existing clients using the Simplex Global Financial Transactions Platform as well.

There has been a very deliberate decision by the PEI Government to never acknowledge that Paul Maines or CMT or FMT had anything to do with the PEI Government before signing the MOU in July of 2012.

March 4, 2011: Email from Brad Mix to Paul Jenkins and Patrick Mason [IGNORED] concerning a “co-investment fund” that he wanted Patrick Mason to include in his FMT Project analysis.

March 4 email from brad to paul jenkins

March 4, 2011:  Email from Paul Jenkins to Paul Maines, Philip Walsh [IGNORED] informing CMT and Simplex about the “matching” co-investment fund available to FMT.

March 4 email from PJ

March 14, 2011: Recruitment Package [IGNORED]. Along with other significant commitments made to FMT in the requirement package was the following assurance that FMT would have a “first-mover” advantage on PEI as the “provider of choice”:Firsst mover May 4, 2011: Email from Melissa MacEachern to Paul Maines.  When MacEachern learned from Maines that CMT/FMT could deliver the Loyalty Card Program through the transaction hub, MacEachern contacted Paul Maines, who provided her with an extensive overview of “go-forward” plan with the necessary elements needed for the Loyalty Card Program.   MacEachern responded on May 4 with a simple “Very High-Level Thought,” but later gave the project the “go”…in an email to Eddie Francis, who Paul Maines hired to work on the Loyalty Card Program for CMT.

May 15, 2011: Email from John Eden to Neil Stewart re: FMT (cc’d to Brad Mix)  [NOT PRODUCED] It was at this juncture that the FMT project team began informing more people about FMT, introducing the company as “…part of the secret gaming file.…”

May 16

May 16, 2011: Email from Shane MacEachern to Paul Jenkins [IGNORED] MacEachern was not only Jenkin’s personal broker but worked closely with Jenkins on more than investments, here sending a “ruff draft” of briefing notes for the meeting that was planned between CMT/FMT/SIMPLEX and Premier Ghiz in conjunction with the Crowbush event.Premier's Briefing NotesMay 20, 2011: Paul Jenkins attended the May 2011 secret “e-gaming committee” meeting with Paul Maines and Philip Walsh.  Jenkins’s sole purpose in attending was to introduce Philip Walsh to the committee. Jenkins was at all times acting as the local face for FMT to the PEI Government and Gaming Committee members.

May 18, 2011:  The PEI Government hosted CMT and Simplex at Crowbush [IGNORED]  It’s surprising that Judge Campbell made no mention of this event in his Ruling, given the very public exposure this event received – explicitly tying FMT/CMT/Simplex to what appeared to be business dealings with the PEI Government.  Then-PC Opposition member Steven Myers tabled documents obtained through a FOIP request about the event. This is from the December 8, 2016 Hansard:

no one froom mi

May 15, 2011: Email from Paul Jenkins to Shane MacEachern [RBC Broker acting as CMT’s “Broker of Record” – fraudulently, however – since his supervisor had declined his request to act in that capacity – with the heading “FMT visit,” revealing that it was primarily Shane MacEachern, Paul Jenkins and Paul Maines who were involved in planning the Crowbush event.

May 15

There was an ongoing working relationship between FMT and the PEI Government right up until the Fall of 2012, and I could easily extend this chronology of “significant dates” in the FMT – PEI Government project; however, this article is already very long, and the substantial evidence from the earliest period establishing a dynamic and ongoing business relationship and plan to establish a financial services centre should suffice to show how what really happened was kept hidden and systematically covered up on a comprehensive – but so massive scale – that it’s almost incomprehensible it has been successfully in play for so many years.

4.  Another Look at What Judge Campbell said about FMT in his Ruling

The Plaintiff in the lawsuit dismissed by Campbell was FMT (sometimes also referred to as 764, or Trinity Bay Technologies).  Campbell concluded that FMT/764 had nothing to do with the e-gaming project file nor PEI Government.  Consider the following:

Paragraph 20: …. Financial Markets Technologies and FMT were unregistered “trade names” used interchangeably at times by both the plaintiffs, CMT and 764. At all material
times, CMT owned 100% of the shares of 764. The use of Financial Markets Technologies and FMT was eventually dropped in favour of the name Trinity Bay Technologies, or TBT, which was used as a trade name for 764.

Paragraph 17: Neither CMT nor 764 were ever involved in any way with the so-called e-gaming project. However, some of the statements in the amended statement of claim referred to events during that time period.

Paragraph 128: Neither of the plaintiffs, CMT or 764, were identified as having any
contractual arrangement in relation to the e-gaming project, and based on the Auditor General’s examination she “could not substantiate that there was an ownership interest between CMT and Simplex before the end of December 2012”, which was long after the e-gaming project had been terminated, and after the MOU had fully expired on October 10, 2012.”

Talk about showing your bias! Why would Judge Campbell rely on the AG (when he elsewhere says many times that CMT can’t rely on the AG) when all he’s citing is what she admits she didn’t fully investigate. She didn’t say CMT didn’t have an ownership interest, and, in fact, CMT held significant ownership and “veto” voting rights on the Simplex Board at the time.

Paragraph 256:… As I set out earlier in this decision, CMT and 764 [FMT] were not involved in the e-gaming project. 

Paragraph 361: Further, paragraph 21 of that same affidavit confirms that Simplex was the company involved in the development of a loyalty program for the Department of Tourism and Culture. Neither CMT, 764, or Maines were mentioned as being involved in those contracts.

The response to my complaint against Billy Dow from the PEI Law Society deliberately refused to acknowledge that my complaint was situated in the “Pre-MOU” period, and that was also clearly a part of this cover-up.  My complaint was not tied to the MOU at all, but rather, to Billy Dow’s work on the E-gaming and Financial Transaction Platform project files beginning in 2010. This Chart gives credence to that substantial activity in an official “on the books” FMT – PEI Government project.

The big “attraction” making the recruitment of major financial services and online gaming companies possible in PEI (and a part of the overall plan with FMT) was FMT’s ability to establish a near-shore North American SWIFT-accredited financial transaction platform center in PEI. CMT had exclusive rights to provide the SIMPLEX Global Platform (SWIFT Accredited) and CLAIMATRIX claims services cloud-based software in North America. That’s what the FMT – PEI Government project was all about!

Judge Campbell never acknowledges any of this in this ruling. He denies any pre-MOU business relationship ever existed between FMT and the PEI Government. Those two rows in the chart now provide the official Government “matrix” situating all the other communications and points of “connection” between FMT and the PEI Government in the proper context, giving them new significance and power.

5.  The FMT Project “Contacts” and Deleted & Missing Records

Now that we have a clearer understanding of exactly who the key contacts on the FMT – PEI Government project to establish a financial transaction platform in PEI were [Brad Mix; Patrick Mason; Chris LeClair; and Paul Jenkins], a direct correlation between the two key Government individuals on this FMT Project team and deleted and missing e-gaming records becomes obvious, further raising the issue of possible motivation and intent behind those missing and deleted e-gaming records.

The deleted and missing PEI Government records were from the same government employees who were the contacts for the Virgin Gaming and FMT projects: Chris LeClair and Brad Mix. 

Patrick Mason was an independent contractor, so any communications he had would have been with one of the other contacts listed on Mix’s Workplan. Keep in mind as well:

Not a single document from Paul Jenkins, Chris LeClair or Brad Mix from the 2010-2012 e-gaming period, when this FMT-PEI Government Project was active, were produced by Counsel for the PEI Government, Jonathan Coady, in the dismissed CMT lawsuit. All of the Government Records cited above that were put before Campbell by CMT and came through FOIP requests. 

Let’s look at what’s been said by those behind the destruction of these records who have been called upon to explain either how the records came to be missing (Brad Mix) or deleted (Chris LeClair).

Chris LeClair’s Deleted Records:

Premier Ghiz signed a one-page “Employee Removal Form,” for Chris LeClair’s records 8 days after LeClair left government in October 2011. He then sent that form to Information Technology and Shared Services (ITSS) for processing.  The two options on that form are to either (1) “save the records,” and give proxy access to the accounts to someone else, or (2) delete the accounts and records.

If the box on the form saying “delete” is ticked, the law says that those records MUST first be backed up and stored for archiving with the Public Archives and Records Office (PARO) as per the Archives and Records Act. 

Ghiz swore in his Defence filed with Judge Campbell that he didn’t understand what he authorized ITSS  to do when he signed the form with the “Delete all the records and emails” box checked off, claiming that he “…had no knowledge of the procedures followed by ITSS after a Form was received.” Ghiz Affidavit Paragraph 8

This is what Ghiz swore under oath when Cross-examined by CMT’s lawyer about the deleted emails:

Premier Ghiz Should have known that what he was instructing ITSS to do with his Chief-of-staff’s files was illegal. After all, it was his Government that brought in new Departmental procedures in 2007 on managing electronic emails and files [See:
Record Information Management: Managing Electronic Mail]. Yet Robert Ghiz claimed – swore in fact – that he didn’t know ITSS would destroy those records if the “destroy those records” box was ticked on the one-page form he signed.

ITSS would never have destroyed those government documents if Ghiz had told them up-front that he hadn’t actually copied the files for safe storage in the archives, as he was legally required to do.  Or at least that’s what the head of ITSS, Scott Cudmore, told members of the Public Accounts Committee on February 1, 2017:

“….the assumption on the part of IT Shared Services at the time was that records [ordered destroyed by Ghiz] had been retained according to records management policy” [p 106].

In a baffling interpretation of these facts and events, Campbell ignores the fact that the law was clearly broken with Ghiz’s authorization of the deletion of all of Chris LeClair’s emails and documents saying:

Paragraph 118: The matter of records management was also addressed. The Auditor General found that not all government records were being managed and safeguarded as required by legislation and policy. She noted that the Archives and Records Act, R.S.P.E.I. 1988, c. A-19.1, requires every public body having custody or control over government records to “prepare a schedule for the retention and disposition of those records”. However, she also found that “When an employee leaves government, normal practice is to have the e-mail account removed. We were advised by ITSS that after a period of one year, an account that has been removed cannot be recovered.”

Paragraph 622: I note that the Auditor General concluded in her report that, “When an employee leaves government, normal practice is to have the email account removed.”

Campbell totally ignores what the Auditor General said about the legal requirement to COPY RECORDS before authorizing their deletion by ITSS, and deliberately cites only the later part of what she said about this in his paragraph 118 (which he repeats in Paragraph 622).  The Blue part of the AG quotation is what Campbell quotes, the red part about following the law, by ensuring the records are copied before they are deleted,  is what he ignored:

Section 7.10:  “A significant volume of records were provided to us from employees’ email accounts. Certain e-mail messages can be considered government records. These must be printed and/or stored accordingly by the government employee to help ensure government records are properly managed and to prevent the records from being deleted when an employee leaves the government. When an employee leaves government, normal practice is to have the e-mail account remove. We were advised by ITSS that after a period of one year, an account that has been removed cannot be recovered. Consequently, if the employee does not manage his/her e-mail records in accordance with policy, government records can easily be destroyed.”

That’s “cherry-picking” at its finest.  There’s absolutely no confusion on this point in the law, Treasury Board Policy, or Departmental record management policy with the PEI Government.

At the top of ITSS’s LAN Removal Form for Employees leaving Government, the following explicit instruction is given to the Supervisor [Robert Ghiz in Chris LeClair’s case] authorizing the deletion of an employees accounts and electronic files and emails on the Government server:

Note: It is the responsibility of the Supervisor to Forwarding, Print, or Archive GroupWise email before an account is deleted”

Ghiz had a duty to know what he was instructing and authorizing ITSS to do with his Chief-of-staff’s files since it was illegal. ITSS technicians would never have destroyed LeClair’s government elecronic documents if Ghiz had told them up-front that he hadn’t actually copied the files for storage in the archives, as he was legally required to do.  Or at least that’s what the head of ITSS, Scott Cudmore, told members of the Public Accounts Committee on February 1, 2017:

“….the assumption on the part of IT Shared Services at the time was that records [ordered destroyed by Ghiz] had been retained according to records management policy” [p 106].

Brad Mix’s 2 years of Missing Records

Jonathan Coady filed no Brad Mix documents. When asked at Cross-examination if he had produced all his records, Coady jumped in before Mix could speak and answered for him saying “I believe so.”

In July 2019, with the new Government keen to “do things differently,” Matthew MacKay, Minister of Economic Growth, Tourism and Culture, and his Deputy Erin McGrath-Gaudet, were somehow able to squeeze a confession out of Brad Mix about those 2-years of missing records, which I acknowledged at the time in a blog article titled “Kudos to Deputy Minister Erin-McGrath Gaudet!” Read the response Ms. McGrath-Gaudet provided to question six from the Commissioner:

Commissioner’s Question #6. Did you interview Brad Mix relating to these missing records? If so, did he provide an explanation for the missing emails? E.g Did these time periods correspond with a change of position for Mr. Mix or a period of absence from work?

Erin McGrath-Gaudet Answer: “Mr. Mix reports that in 2015 he was looking through his archive for emails. It was at this time he discovered that emails in his archive for periods of time appeared to be missing. Mr. Mix states that he did not understand what had happened as he could not locate emails for many files and contacts throughout 2011 and 2012. Although Mr. Mix advises that he does delete some transitory emails that he won’t use again (as he is permitted), he unequivocally states that he has not and does not intentionally delete other emails. He states that he was distressed by the discovery of missing emails.”

CMT’s lawyer was able to have Brad Mix’s ITSS incident report about those missing records entered into the record after the Motion Hearing to Dismiss in April 2019; that’s why Campbell dealt with Brad Mix’s missing records in his ruling:

Paragraph 648: The ITSS report of March 2015 confirms that emails sent by Mix between June 12, 2010, and April 11, 2012, were not contained in the archived records of his emails. Other emails remained intact. It appears from the report that efforts to recover the sent emails or to explain why they were not archived, were unsuccessful. According to the report, the ITSS technician assigned to respond to the request attempted to locate another archive that might contain the files but found none. He attempted to re-create the archive and allow it to be opened in GroupWise (GW), but the emails were not re-created. The report concluded with the statement that, “He [Mix] got a new BB [BlackBerry] in August 2012 so it’s possible emails got deleted accidentally at that time”. The report offered no further conclusion to explain the absence of the emails, other than the suggestion they may have been accidentally deleted during a technology upgrade.

Campbell makes an excellent point by saying that “The report offered no further conclusion….” because that investigation and review by the Information Commissioner is still ongoing. I was provided a copy of that July 10, 2019 letter Ms. McGrath-Gaudet sent to Ms. Rose – because it was in response to a letter I had filed with the Commissioner that she had provided to Ms. McGrath-Gaudet, and most of the Commissioner’s questions to the Deputy Minister came from my prior submissions. Four of Paul Maines FOIPP reviews on Brad Mix-related requests with the Information and Privacy Commissioner have since been “joined” to my Brad Mix review, and all these FOIP reviews will be dealt with in one Order.

Campbell’s obvious awareness that as of yet “no conclusion” about those 2-years of missing records [Judge Campbell is, by the way, unaware that since his Ruling I have learned that Brad Mix actually had TWO separate archives for that same 2-year period mysteriously go missing – what’s the probability of that happening from a blackberry upgrade?].

As well, accidentally deleted emails on the Government’s Groupwise email system can be restored from backups for exactly 1-year. No one is going to convince me that Brad Mix lost two years of his emails – sent and received – and he didn’t notice it for more than a year.

And the suggested possibility of a “blackberry” upgrade as the reason for the missing records would have made record restoration possible if, in fact, that had been the cause of the records going missing. Mix noted that the upgrade happened just several months before he noticed missing records and filed an incident report with ITSS, well within the year allowing for backup restoration.

Campbell apparently had no interest in waiting for the outcome of the Information Commissioner’s Review to see what she says in her Order – which I have recently been informed will be issued in April or May.

Knowing that Brad Mix was the main contact on the FMT – PEI Government Financial Transaction Project that was being kept secret; that Coady produced NO emails or records whatsoever from Brad Mix for this 2-year period; and that several months AFTER the Motion Hearing to Dismiss CMT’s lawsuit had already happened [none of this was known to CMT’s lawyer or Paul Maines at the time of the Hearing to Dismiss] well, this new revelation about the FMT – PEI Government Project referenced in Brad Mix’s Work Plan, makes all those Brad Mix records “materially-relevant,” and a trial should now be a certainty.

One can only speculate what would have happened at the Motion Hearing to Dismiss last April if information about those 2-years of missing Brad Mix records had not been deliberately kept from me. I filed my FOIPP request for Brad Mix’s records in October 2018, and was led to believe there were records to search, but that the search for the particular records I was asking for from that e-gaming time period didn’t reveal any responsive records to my particular request. That was complete deception.

Judge Campbell didn’t only fail to appreciate the significance of  LeClair’s deleted files and emails; he got it completely wrong and said it was normal.

Paul Jenkin’s Deleted Emails:

Other than Patrick Mason – the person contracted to undertake the FMT feasibility study – the other “contact” on the FMT project was not a Government employee. He was representing FMT.   Why bother getting rid of the evidence if there were copies of it all in Paul Jenkin’s Gmail account that could be accessed by Paul Maines?

Well, as it turns out, all of Paul Jenkin’s emails for that same 2-year period when he was representing FMT as the sole director with the PEI FMT Project were also destroyed under mysterious circumstances. 

After Steven Dowling began his Securities Investigation against Paul Maines and CMT in September 2012, Jenkins quickly “jumped ship” with FMT, and tendered his resignation as the sole director, boldfaced lied to the public, claiming that he didn’t know anything about anything, and even accused CMT and Maines of “using him” for his contacts (See: Business partner in e-gaming firm claims he was ‘left out of the loop’ after being used for his P.E.I. contacts, Guardian, December 7, 2018). Well, you can see from the documents cited above that Paul Jenkins was by no means “left out of the loop” but was driving the bus he later threw Maines under.

This claim that someone “hacked” his Gmail account and destroyed all his emails for the 2-year e-gaming period is so far beyond being “coincidental” or “reasonable,” and from my investigation, even “possible” to be given a second thought as having any credibility.  All Paul Jenkin’s emails were from his Downtown Pharmacy Gmail account. I’m told emails deleted from a local server or computer are not deleted on Google’s servers; e.g, a ‘hacker’ doesn’t get through Google’s firewall to destroy Paul Jenkin’s emails no matter what Paul Jenkins says.

It appears to me that Paul Jenkin’s decision to betray Maines and CMT/FMT wasn’t maliciously motivated; it was entirely a business decision. Not a very “ethical” business decision mind you. And if lying to a lawyer conducting an investigation for the PEI Securities Commission is illegal in PEI, or if lying to a lawyer representing a group of elderly Catholic nuns selling their Convent is illegal, well then, Paul Jenkins could be in some legal trouble.

Jenkins wanted to buy the Mount and had made an offer. In a communication from Pam Williams, a lawyer who was representing the Sisters of St. Martha at the time (now Premier King’s Chief of Staff) to Paul Jenkin’s lawyer, Ms. Williams raised concerns about Paul Jenkin’s possible involvement in CMT/FMT (which Ms. Williams obviously knew little or nothing about, given her consistent use of CTM instead of CMT, other than that it was under investigation by the PEI Securities Commission).

By implication, if Jenkins hadn’t disavowed any premeditated or conscious involvement with CMT/FMT or Paul Maines, it appears his offer to purchase the Mount would not have been acceptable to the Sisters of St. Martha. So he lied to Dowling, and he lied to the Sisters.

Somewhat surprisingly, after completing his Mount deal, he was then willing, to tell the truth about his extensive involvement in CMT in a sworn Voluntary Statement, and settle with Maines and CMT.

In this marked-up version of a letter that Pam Williams sent to Jenkin’s Lawyer, James Travers, a request was made for a statutory declaration or affidavit response to a series of questions about his relationship with CMT and Paul Maines. This letter provides very convincing grounds explaining why Jenkins abandoned Paul Maines, CMT and completely forgot the truth in favour of saying and writing and swearing what he had to say to ratify that real estate deal with the nuns.

Jenkins 1jenkins 2

The other reason why I say I don’t think there was any real malice or ill-intent on Paul Jenkin’s part in his betrayal of Maines and CMT, I doubt he thought through all the implications of that at all, being so focussed at the time on pulling off the Mount property deal, is because once he got the Mount, he settled with Maines and CMT (he is no longer a defendant) and offered a “new” Voluntary sworn statement telling the truth.

You can read the entire  Voluntary Statement yourself if you’re not already tired reading, but it basically tells the truth, which also amounts to a confession that he lied to the PEI Securities Commission and the Catholic Sisters, but he must have had some assurance there wouldn’t be any consequences if he did, because he did tell the truth, and there haven’t been any consequences..yet:

“So from there, we invested in, the first of September and, you know, we continued on to work, with Big Paul and their group, Philip Walsh and, and Simplex, to introduce the Island opportunity.  And that, that resulted in a whole bunch of different things. One was, you know, did, you know, is there, was there an opportunity to recruit businesses to P.EI. using the P.E.I., kind of, advantages on, you know, innovation and such like that; labour force; et cetera. Another arm of it really was the CMT, the transaction piece, in creating a transaction hub. So I would introduce Big Paul [Maines] and the group to, you know, various people that I knew inside the community and try to move that business  forward.”

This is the same guy who earlier wrote the following letter to Steve Dowling  so he could provide a falsified Declaration or Affidavit to Pam Williams and the Sisters of St. Marthas to buy the Mount:

Jenkins to Dowling

How could he write: “As I have advised you previously. I have not had any involvement in this company since its incorporation in September 2010?” and still look himself in the mirror is beyond me.

So when Paul Jenkins tells you his Gmail account was “hacked,” and that all of his emails for a 2-year e-gaming period in which he had no involvement whatsoever are “gone,” well, what do they say about a “grain of salt”?

At any rate, notwithstanding the fact that Paul Jenkins was the “contact” on the FMT/PEI Government Project with Innovation PEI representing FMT from the outset until he frantically attempted to “resign” when the Securities Investigation commenced in September 2012, Judge Campbell never once mentioned Paul Jenkins in his 172-page ruling, nor did Legal Counsel for the PEI Government, Jonathan Coady, provide any documents from Paul Jenkins, despite his formal participation in a Government project. Count how many times Paul Jenkins either sent, received or was copied on an email in this article to realize how off-side Campbell’s complete ignorance of Paul Jenkin’s central role in the FMT project really was.

Summary Observations

There have been numerous “mini-bombs” in this investigation that have repeatedly flipped the prevailing narrative about Paul Maines and CMT’s lawsuit on its head.  It’s amazing how far things have moved in such a short time as more revelations reveal more light that makes new connections, offers new insights, and fits more pieces into the puzzle, which is actually getting closer and closer to being completed!

Maines’ public reputation was harmed by the PEI Government back in 2013 when the PEI Securities Commission issued a News Release telling Islanders that if they are approached by Paul Maines, and he mentions investments, they are to call the PEI Securities Commission immediately.  That happened despite the fact that Maines did NO soliciting of investments at any time, and there is no evidence whatsoever that he did, despite Judge Campbell repeatedly making that claim (as if there was evidence to prove it) throughout his decision.

Meanwhile, Paul Jenkins can file a completely fraudulent letter swearing off any involvement with CMT/FMT/PAUL Maines to Steven Dowling – which Dowling must surely have realized was completely fabricated and false, and that Jenkins had the most central and busy role in FMT from the time he flew to Ottawa with Maines to incorporate FMT; the liaising with Chris LeClair and Brad Mix to get Patrick Mason to do the feasibility study on FMT; getting the funding from Chris LeClair for that study approved; planning the Crowbush event; helping to draft the Financial Services Platform Briefing Notes for Premier Ghiz…etc.,  Paul Jenkins was at all times the FMT connection with the PEI Government at every single significant event in the business relationship between FMT and the PEI Government, starting in the summer of 2010. He was not mentioned once by Campbell.

The other evening on CBC Compass Maines was standing up for all Islanders demanding that a corrupt Access to Information system is fixed,  and that the PEI Government be held accountable for breaking its own law.  It is so rewarding for me to finally see a measure of vindication. There is nothing more devious than attempts to falsely besmirch a person’s good name.

I once heard a story about a catholic man who had lied about someone in the community and went to confession to “clean his soul” and the priest heard his private confession, then said nothing. The man asked: “Aren’t you going to give me absolution for my sin?” and the priest responded, “Of course…once you do one thing.”   The man listened eagerly.  The priest handed the man a pillowcase full of feathers and told him to go to the belltower, dump the bag of feathers out the window, then go collect them and bring them back to him, then he will give him absolution.”

A false claim of alleged fraudulent activity (fueled by a rumour that an old lady with cancer was bilked of her life’s savings by Maines) –  when issued by a trusted authority like the PEI Securities Commission –  is no less difficult to “undo” than spilling feathers into the wind from a belltower.

Thankfully, we’re now on the cusp of that happening for Maines, who absolutely didn’t deserve what has been heaped on him since the PEI Government’s betrayal and denial of a 2-year business relationship with him and CMT/FMT. Totally scandalous!

I know Minister MacKay very well.  I have the highest regard for him and consider him a friend. I don’t know Ms. McGrath-Gaudet personally (we introduced ourselves to each other for the first time at the Courthouse the other day) but I’m certain Minister MacKay (and I trust Ms. McGrath-Gaudet) are honourable, and have nothing but the best of intentions.

I attribute no malfeasance, immoralities, illegalities or even incompetence to either of them. I honestly don’t know what’s going on in the Department, or how much information either the Deputy Minister and Minister are receiving, or who they can trust.  They’re both in a tough spot right now I’d say, because, on the one hand, they have to rely on their staff and trust what they are doing and saying, on the other hand, they both see things unraveling more and more from day-to-day.

This new revelation should change everything. It really should be front-page news. The leader of the Official Opposition should be shouting from the rooftop that this now exposed, multi-year cover-up must come to an end now. People need to be held accountable in the courts; however, people need to be held accountable within the government as well. Will that happen?

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Yesterday’s Supreme Court Motion Hearing was a Good Day for Democracy in PEI!

Hands towards the sun

PREAMBLE

Before you jump to any conclusions – which would be understandable, given my headline – here’s a spoiler alert (if you haven’t already heard the news from the CBC or Guardian): the Judge presiding at yesterday’s Motion Hearing in the PEI Supreme Court did not rule on the Contempt Motion Paul Maines filed against the PEI Government.

What did happen in those few minutes in Court yesterday – in my opinion – is even bigger news than a ruling in favour of Maines on that particular Motion would have been.

It’s important to know from the outset that the King Government tried to have yesterday’s Motion Hearing canceled. A “heads up” on that strategy was included in the Defendant’s Defense filing:

anticipates

Now moot? Before the Hearing date even arrived? And before Maines received any records? That was a pretty confident, but perhaps slightly over-played strategic move on the part of Defendant’s Legal Counsel.

As it turned out, the Defendant did not provide Maines with all the records by yesterday, with a few hundred pages remaining to be disclosed to Maines. So the Defendant’s stated “assurance” gives the Judge some first-hand experience of how “assurances” to produce records from the Department of Economic Growth, Tourism and Culture get translated into actions in real life.

The Court Hearing yesterday, and all that Hearing and all the Court Orders entail, is just one story currently unfolding with this entire e-gaming and CMT lawsuit file. There are many other things going on behind the scenes as well. So much, in fact, that it’s been difficult for me to find enough time to keep readers up to speed with these blog articles.

The rest of this post will, therefore, offer a summary update on a few key issues, providing some of the most important information, and some analysis and commentary on the following:

    1. Yesterday in Court: Why it was a good day for democracy in PEI
    2. Maines files a “Second” Contempt Order against the PEI Government
    3. The King Government’s Defence for Yesterday’s Motion
    4. What’s Coming Next?

+++++++

1. Yesterday in Court: Why it Was a Good Day for Democracy in PEI

judge-gregory-cann

The Motion Hearing convened at 1pm yesterday (February 6, 2020). The only politician in the gallery was Joe Byrne, Leader of the PEI NDP.

We rose, sat down, then Judge Cann, who, incidentally, is the Judge appointed to the PEI Supreme Court in 2018 to replace Judge Campbell [See: “Gregory A. Cann appointed P.E.I. Supreme Court judge – Replaces Gordon Campbell, who became a part-time judge in January” August 31, 2018] immediately directed his attention to Maines. He said he understood that Maines had filed four separate Court Orders relating to four different FOIPs – which Maines confirmed – and that he had also filed a new Motion earlier in the day (February 6th) on one of those other three Orders, which Maines also confirmed.

The Judge then asked Maines if he expected he would be filing additional Motions related to the case before him. Maines indicated there would likely be one more Motion on the particular Order in front of him, but added there would also be Motions on other Orders as well. How many would depend on what the Defendant withholds or redacts in documents he has yet to receive.

Judge Cann then referred to a Rule of Court which allows a Judge to combine multiple Motions on related matters into one Motion Hearing. He then asked both Maines and O’Shea if either of them had any objection to him postponing dealing with the Motion before him, and proceed to combine all the Motions after the last Motion is filed, then schedule one Motion Hearing to deal with everything at once. Neither Maines nor O’Shea objected.

The Judge then asked Maines when he would be done filing Motions – and this is the beauty part, and part of the reason why I think today was a major win for democracy in PEI – to which Maines replied that it depends entirely on when the government provides the remaining documents which – he then added – he expects will be heavily redacted.

The Judge seemed completely fine with all of that, and simply told Maines to contact the Court to schedule a date for a “Motion Hearing” to deal with everything at once after he had filed his final Motion.

In my opinion, this is very good news for Paul Maines – and extremely encouraging news for all Islanders – for many reasons. A few that come to mind are:

(1) The Motion that Maines filed with the PEI Supreme Court yesterday morning was scheduled to be heard by Nancy Key on February 20th. Two different judges hearing Motions on the same case is not at all ideal, and not nearly as preferable as one Judge hearing all the Motions together. These issues are all interrelated, and the judge looking at all the FOIP Orders together and dealing with all the issues raised in all the Motions at one time is much more likely to bring forth a more complete understanding of the truth needed for a Judge to deliver a truly “just” ruling that serves the Common Good based on the law.

(2) Judge Cann’s decision on how to proceed immediately puts the King Government on notice that anything Maines raises in future Motions regarding anything the King Government does with respect to any remaining documents yet to be released in any of these four FOIP requests will almost certainly find it’s way into a Motion and end up under the eyes of the Judge hearing all the Motions at the yet to be determined future “Mega-Motion Hearing”. David Bowie’s song “Under Pressure” comes to mind.

(3) To me, the manner in which the Judge has established what I would consider to be an extremely fair process and procedure that allows Maines the freedom and time he needs to advance his best legal efforts in these matters is, what’s the word….”refreshing!” Attention on the need to keep the judiciary completely separate and unbiased from any Government influence (especially when Government is the “Defendant” in the legal action) is absolutely essential, and I’d say, with the process established here, is likely to be assured in the adjudication of this matter.

I’ve been receiving a lot of excellent articles recently from a couple of friends with an interest in the relationship between Government and the Judiciary which all speak about the importance of keeping the judiciary completely separate and untarnished from influence from Government to protect democracy. One such article was Chief Justice Richard Wagner on our democracy and the rule of law (27 Jan 2020 ) which you might like to read

(4) The ball is now squarely in the King Government’s court, and it could, and should, do what it could, and should have done a very long time ago: put as many people on the file as necessary to get every one of those records that don’t seriously violate personal privacy to Paul Maines – unredacted – immediately.

The PEI government has spent, and continues to spend, untold and significant amounts of taxpayer monies defending rogue actors. If the King Government is true to itself and Ministers were at all sincere in their peak as Official Opposition, they would follow the Act and release documents accordingly. Who are they protecting and why? Islanders can handle the truth – and accordingly, people can be held accountable. Hiding the truth is as bad as the original actions themselves, and possibly worse because those actions provide undeserved security and cover for wrong-doers which almost certainly guarantees similar scandals in the future.
The message I took from those few minutes in Court yesterday was as if the Judge had said: [Warning – heavily paraphrased NOT a direct quotation]:

“Yes, you are going to get your day in Court Mr. Maines, I’ll make sure of that, but let’s get this right o.k.? Figure out all the issues you need to address, file whatever you need to file, take as much time as you need, which I understand depends on how the Defendant acts on a go-forward basis, and then we’ll see you back in Court to deal with all your legal issues together at the same time.”

Perfect. And the public doesn’t yet fully appreciate just how those issues keep piling up. The second Contempt Motion already filed is, in my opinion, far more important than the Motion Hearing that was to take place yesterday and didn’t. The King Government will need to file a legal defense to that Motion soon, so I want to give a quick overview of what that second Motion entails.

2. Maines files a “Second” Contempt Order against the PEI Government

If you’ve been following my posts on e-gaming and the CMT lawsuit, you may recall from a recent post Do They Not Realize the Danger They’re In? that it is entirely possible that the PEI government used the “solicitor-client privilege” provision in the FOIPP Act inappropriately to hide information. I called that section of my article: “3. Solicitor-Client Privilege: The Government’s “Panic Room” & Escape Hatch.”

This is the only provision in the FOIPP Act that permits the PEI Government to withhold documents that no one – other than a Judge – not even the Information Commissioner, can see to verify that the privilege “attached” to particular documents meet the clearly-defined legal principals and conditions which determine legitimate solicitor-client privilege.

I wrote the following words about the use, and possible abuse, of the solicitor-client privilege by the PEI Government on these sensitive e-gaming files through this option in the FOIP ACT in my previous blog post, mainly because neither of the two individuals exchanging emails is a lawyer, something that is required to claim privilege:

“Is it possible that the lawyer drafting documents for Ms. Gaudet never considered that a Judge might want to see whether those documents were in fact what they were claimed to be? Most definitely…when was the last time an Islander filed a Contempt Order Motion against the PEI Government? I’m sure no one saw that coming, but here we are.”

It was therefore not at a surprise to learn Maines had filed a Motion to have the Judge evaluate whether the legal test for the solicitor-client privilege was indeed met in each case where this ground for withholding information was employed by the Defendant.

This second Motion is with a different Court Order than the first, and that Order has 36 pages completely withheld relying on solicitor-client privilege on communications between non-lawyers. Is there any possibility it could meet the test? Maybe.
Imagine for a moment that one non-lawyer party “emailed” the other non-lawyer party an attached document that was identified as a “solicitor-client” privileged document. Even if such a document was attached, it is unlikely that privilege applies. Normally, when client-solicitor privileged documents are provided to a third party voluntarily (even a fellow government employee in another department, as is the case with this second Motion) client-solicitor privilege is “waived”.
I’m looking forward to reading the Government’s Defence on this second Motion.

3. The King Government’s Defence for Yesterday’s Motion

What kind of a Defence do you file when you don’t have a Defence that makes any sense? The correct answer is as simple as the answer to that Acorn Stairlift TV commercial that incessantly reminds us daily during CBC Compass that the answer to the question: “How do you keep from falling downstairs?” is “Just don’t fall!” Well, in this case, the correct answer is just as simple: “Just don’t file!”

Unfortunately, when you’re a government-salaried in-house lawyer instructed to file a Defence by your client who is also your employer, and you want to keep your job, well, you actually don’t get to decide whether you file a ridiculous defense, your employer decides that for you. All you get to decide is whether you want to keep your job.

The Defendant’s legal counsel, Mitchell O’Shea, filed said “ridiculous” Defence and showed up in Court yesterday with Deputy Minister Erin McGrath-Gaudet, so we know what decision he made. And we also know what decision his client and employer made.

If the Government wasn’t prepared to admit the obvious, (that it is in contempt of the Orders) then there was really only ONE possible legal argument available to O’Shea for a Motion Record filing, so I’m not blaming Mitchell O’Shea or judging his legal abilities based on this one case (I imagine his hands were trembling and beads of sweat were dripping from his brow as he typed and watched the weakest possible legal argument imaginable slowly appear on the page).
We’ll get to what that “one argument” is in a minute, but let’s back up a step first, and put this whole matter in the proper context to get the correct perspective on the most important details, facts, and events.

After multiple broken deadlines to produce records on this particular FOIP request, first filed in May 2019; and despite repeated assurances that he would get a response by a certain date, then each of those dates would come and go, Government had finally exhausted all legal means to delay things any further and found themselves, by the public body’s own admission, “outside the scope” of the FOIP ACT (which is, of course, a euphemism for “Breaking the Law”).

It was the PEI Government that approached Paul Maines to ask if he would be willing to sign those Consent Orders. And it was the Defendant who decided the dates by which it was confident it could provide Maines with a response. The dates chosen by the Government were then written into the Order by the Defendant’s legal counsel who drafted the terms and conditions of the Consent Order.

The choice facing the King Government now is to either fess up that the Government breached the Orders and is thereby in contempt of those Orders, or else to argue it didn’t really know what the Order required Government to do. That’s a tough sell given the facts.

Might there be some “technical” legal escape route buried in the law that will get the Government out of this serious legal conundrum?

I think both the law and factual evidence is clear as a bell to anyone with a brain in this case. It really should be an open-and-shut case. But I’ve been fooled in Court before, confident I had “sure” legal wins that did not materialize in the decision. I’ve earned a fair measure of respect for the amazing ways wiley lawyers can pull obscure legal principles or technical rules out of little known, seldom-referenced legal precedents and steal the prize. Did O’Shea find such a legal nugget to win this Motion? Nope.

To find someone in “contempt” of an Order it is necessary to prove three things: (1) that the person had knowledge of what the Order required; (2) that what the Order required to do was clear and not vague; and (3) that there was a deliberate choice by the person not to do what the Order required, or to do what the Order forbid the person to do. Counsel for the Defendant cites the precedents establishing these three elements:

Unclear Order

The Government lawyer admits knowledge of what the Order required but then goes on to argue that WHAT the Order required was vague and unintentionally misunderstood by the Defendant and that there was no INTENT to deliberately “not comply” with the Order.

What’s vague to the Government about the following wording in the Consent Order? Especially given that it was the Government that both requested this Order, determined the date it effectively imposed on itself, and then drafted and signed the Consent Order saying:

applicant agrees

The language “Responding to the Applicant” is very deliberate here, because that’s what the King Government had to do in order to come back in line with the FOIP Act. At the end of the Consent Order, the Information and Privacy Commissioner then added the following wording above her signature:

Respond by January 7

That January 7, 2020, date was explicitly noted for this FOIP Order in the Consent Order by the public body, and then a second time by the Information Commissioner,; that’s twice on a one-page document. It’s simply not credible to believe the Defendant was “vague” about when the King Government was to do what the Order required the King Government to do… and that date was January 7, 2020.
As well, how is it possible to conclude that there is any “vagueness” about what the public body was to do? It had to do one thing: “respond to Paul Maines”. That’s all the Order required: a simple response from the King Government to Maines on that particular May 2019 FOIP request by January 7th. Again where is there anything vague about that?

So we have that one possible legal framework and argument – with three conditions needing to be met – the first of which the Defendant admits (having knowledge of the requirement in the Order).
The second condition (that the requirement in the Order is clear and not vague) the Defendant disputes. Given the laser-like precision with both the exact date and the exact requirement (a simple “response” to Maines) let’s assume that the judge is not going to accept the “vague” legal argument advanced by O’Shea. It appears the Defendant’s Counsel assumed as much himself when he wrote the following paragraph into his Defence:

Intention 1

intention 2

I’m putting my money on the Court finding the Consent Order to be “clear and unambiguous”.

Which leaves just that last condition needing to be met: “Intention” to prove breach of the Order and contempt.

The defendant’s Counsel, first of all, reminds the Judge that the full onus to prove intention – beyond a reasonable doubt – lies entirely with the Plaintiff. Why? Because a Contempt Order is a “quasi-criminal” offense, which O’Shea rightly says establishes a very high bar for the Plaintiff to prove that a breach happened intentionally with deliberation. O’Shea argues the Plaintiff fails to prove such intention.

The Defendant’s Counsel goes on to talk about how the Judge can, upon ruling that a person is found in contempt of an Order, impose any of the following consequences:

Consequences

There’s no question that a finding of Contempt is indeed a very serious legal offense that carries equally serious penalties and consequences. But what exactly defines or constitutes “proof of intent”? Well, to find that answer we need look no further than the legal precedent O’Shea cites in his own Defence:

Intentionality

We see here that a person can be in breach of an order in one of two ways: (1) the person intentionally “does” the act that the order prohibits; or (2) a person intentionally fails to do the act the order compels. We’re obviously dealing with the second situation here, but because the Defendant was the party that determined, drafted and ratified the Consent Order, the “intentionality” expressed in the Consent Order by the Defendant stands on its own and does not need to be proven. In other words, the Defendant declared its “intention” (compelled to be done by the Order) itself:

confirm its intention

By saying it was “confirming its intention to provide responsive records” as per the specified timelines (January 7, 2020 for this Motion) by signing the Order, the Defendant is thereby confirming that the formal expression of intention embedded in the Consent Order was premeditated and ratified legally.

The public body clearly did not “act” in accordance with that expressed intention, which demonstrates that at some point a decision was made to abandon the commitment made to respond to Maines by January 7, 2020, and replace it with the opposite intention – not to comply – which in fact was even clearly expressed in writing when, with no prior communication about a decision to unilaterally take more time, the public body casually informed Maines in a written communication after breaking the January 7th deadline that he could expect to get a response in two more months. Intentional? Absolutely!
Missing the January 7th deadline was no accidental oversight or a result of insufficient resources. It was a very deliberate decision to power kick the release date for the records another two months down the road. Don’t forget that Maines has an Appeal of Judge Campbell’s decision to dismiss CMT’s lawsuit coming up in May. The public body has delayed the release of records that would have helped Paul Maines until after important Court dates before, so there is no reason to believe it isn’t trying to do the same thing with these documents.

The King Government has so far treated this matter as if it was of no consequence ignoring what the Consent Order required the Government to do: respond to Maines by January 7th.

This is a matter of slightly more consequence than, say, forgetting to pick up a loaf of bread on the way home from work…THIS IS A PROVINCIAL GOVERNMENT BEING IN CONTEMPT OF A CONSENT ORDER THAT IT ASKED FOR FROM THE APPLICANT, SO AS TO STOP BREAKING IT’S OWN LAW, THE FOIPP ACT. It’s really that simple.

As Mr. Maines explains so simply in his CBC Compass interview, that if after all he’s been through to get records, with challenges and reviews to the Information Commission, and now Supreme Court legal actions….if all that has not yet provided him with the documents he has a right to receive under the law, then what possible chance do any of us have of getting Government documents in the future if the Government can simply get away with either indefinitely delaying production, or withholding documents entirely without consequence? The FOIPP Act will be less than completely useless because it will maintain the perception that it does something that it can not do!

It was good to see this story covered on Compass and within the Guardian. I’m sure many Islanders were learning about this for the first time. These stories probably left people who are unfamiliar with the details of the case with the impression that it was just a staffing and “resource” issue. It was really disappointing for me to hear the Government use that disingenuous line. That’s not how the system works.

I had an access request assessed at over $4,000 a couple of years ago. I challenged it and eventually only paid about $600. The public body’s assessment of $4,000 was based on a staff wage rate per hr. x number of hours for search and processing, plus photocopies if hardcopy records are requested.

The FOIP Act only allows for a few hours of search and records, unless the public body (in this case, the Department of Economic Growth, Tourism and Culture) decides not to request payment from applicants. At no time on any of these four Court-enforced Orders did the Public Body seek resources from the applicant which they were entitled to do under the Act. Now the reason the Government is telling Islanders why it didn’t give Maines the documents is that there was a resource issue? I don’t believe Islanders are that gullible.

4. What’s Coming Next?

I’ve written about a FOIP case of mine that was in “deemed refusal.” I currently have a review underway with the Information Commissioner on that file, and although some documents are yet to be provided to me, I did receive over two hundred pages on Wednesday of this week. There was just one page that was important – but it was REALLY important, and I’m going to write a post about that in a day or two.

I’ve decided that my two “wrap-up” articles in my first 25-part series will be the last of the 52 promised articles I plan to post prior to the May Court date, because they are really the “sum up” articles, and there’s so much additional information coming out as the focus gets honed, and the really important documents, at least some of them, are beginning to slip from Government’s clutches and enter the public domain.

Until then, if you’d like to read what Maines filed for yesterday’s Motion Hearing that has yet-to-be heard, as well as the Motion Record of the Defendant, have at it:

Maines vs PEI Dept of Economic Growth & Tourism. Contempt of Court Order Motion Record
Government Defence Motion Record
Posted in E-gaming | Tagged , , , , , , | 5 Comments

Information and Privacy Commissioner Acts Swiftly on “Missing” E-gaming Management Letter

graphic for next post This morning, I received a copy of a letter dated February 3, 2020, that the Information and Privacy Commissioner, Karen Rose, sent to Paul Ledwell in the Premier’s Office to inform him that she is conducting a review of my FOIP request (PO-2019-298) seeking the E-gaming Management Letter that the Auditor General sent to Premier Wade MacLauchlan. She requested that a complete copy of the file be sent to her office by February 19, 2020.

Paul Ledwell

By way of background, I received a letter from Mr. Ledwell on January 30th on this file at exactly 4:30pm, the last minute before the Government was about to enter the illegal and dreaded “deemed refusal” zone.

I was all prepared to inform Islanders that the PEI Government had a 7th deemed refusal FOIP to add to the pile – wherein the Premier’s Office would have been breaking the FOIPP Act by refusing to respond to me by the deadline prescribed in the Act – then an email arrived with an attached letter.

pAUL BIO

But Mr. Ledwell’s response wasn’t really a response at all. I didn’t get any documents, just a letter stating that there are no documents to provide to me:  “I am writing to inform you that a search of the Premier’s Office has failed to retrieve any records relating to the subject of your request.  A staff member of the Premier’s Office conducted a 135-minute search of contents of many file folders that included correspondence and reports dated between October 2016 and April 2017.”

I immediately filed a request for a review with the Information Commissioner, a copy of which I included in my article What Happened to the AG’s E-gaming Management Letter.

Below is the letter Ms. Rose sent to Paul Ledwell yesterday, in response to my request for a review:

Letter from Karen Rose, February 4, 2020Notice that Ms. Rose mentions an “addendum,” something I added to my original January 30th letter requesting a review.

A person doesn’t always notice things upon first or even second reading, especially when those things are not expected to be found. I pointed out in my initial request for records that because the Premier was wearing several hats at the time, it might be necessary to search three different possible locations.  I initially didn’t notice that only ONE location was searched. Here is the text of the “addendum” added to my review:

AddendumIt is important to know that Section 8, the provision of the FOIPP Act upon which the Commissioner is basing her review, requires that the PEI Government provide an explanation for any missing Government records.

I’m still baffled why the Premier’s office hasn’t simply called the Auditor General’s office requesting copies; that is, I’m baffled whenever I tell myself the Government truly wants to give me the documents to which I’m entitled under the law and just can’t find them, after all, the Act makes it a duty to assist me to get the records I’m requesting and a phone call to the AG doesn’t seem too onerous a task.

But it’s not really baffling at all when I consider everything else that’s happening: no matter how unbelievable or bizarre, I can’t help but think that the information I’m looking for is never likely to be voluntarily shared with Islanders by government.

Think about it: I filed a request for the Management Letter on December 3, 2019.  Two months later, I’m told nothing was found after a 135-minute search in just one of the three locations in which it might have been filed.  This accomplishes two things for the department (1) avoided falling into another deemed refusal, thereby breaking the FOIP ACT, and (2) being able to kick the can down the road for at least a month or maybe much longer, with absolutely no consequences.

A couple of people have suggested that I file a FOIP with the Auditor General’s office to get a copy of the Management Letter directly from her.   The AG doesn’t fall under Government but is an Office of the Legislative Assembly, so the FOIPP Act doesn’t apply to the Auditor General’s Office.

The Legislative Assembly could, however, request copies in a minute; that is if the Opposition Parties thought it is something that should be made public, but (1) with the e-gaming monster having been birthed by the Liberals in the first place, you’re not likely to hear anything from Liberal MLAs, and (2) with all the hugs and kisses going on between the PCs and Greens lately, I’d be surprised (pleasantly, though) if Peter Bevan-Baker was to lead the charge on having the Legislative Assembly request the letter from the Auditor General.  She may say it was confidential and require the permission of the Premier for her to release it, and that would be fine, we’d just ask the Premier to give it, and the Management Letter would then be a public document.

No, I think it’s pretty clear that – at least when it comes to fulfilling the promise to ensure transparency and accountability  – unless there’s a “three-times larger” Grinch-like change of heart with Government,  it could be a very loooooong (and ultimately unsuccessful) effort to obtain a copy of the E-gaming Management Letter. 

Posted in E-gaming | Tagged , , , , , , | 3 Comments

What Happened to the AG’s E-gaming Management Letter?

Tipping pointIn my recent blog post – Will the King Government Release the Auditor General’s E-gaming Management Letter? –  I explained how the Premier’s Office had narrowly missed falling into another “deemed refusal” with one of my FOIP requests.   This particular request is asking for the E-gaming Management Letter, and related documents, from the Premier’s Office.

At the last minute, literally, I received a letter on January 23rd telling me that the Premier’s Office would be taking another week before responding and that I would receive a response no later than January 30, 2020.

I included two quite lengthy videos in my previous blog post where Steven Myers asks two sets of targeted questions to the Premier (on two different days) about the AG’s Management Letter, demanding that he table it in the House making the document public.

The PCs tried – as the Official Opposition –  for two full years to squeeze this same Management Letter from the Liberal government, and many other e-gaming documents, repeatedly calling out MacLauchlan for covering up the e-gaming scandal and failing to honour his oft-stated commitment to be open and transparent with Islanders.

The PCs spoke forcefully and convincingly that  this time, THIS TIME…..if Islanders would only put aside their cynicism one last time, THIS TIME, it really was going to be different. Islanders would finally get to see what real transparency looks like!

Given such a strong, persistent and consistent message about being different, THIS TIME, and the constant demands to produce e-gaming documents and information that the PCs made on the Liberals, after the PCs formed government, I had visions of the PCs dancing in the streets parading behind the Premier, waving the Management Letter in the air as throngs of Islanders cheered from the sidelines.  What happened?

There has never been any mention of the Management Letter whatsoever since the PCs became Government, nor any word of other missing e-gaming documents, for example,   two years of missing Brad Mix’s records, only discovered in July, after the Tories took power, or; how much the lawsuit cost taxpayers (something else the PCs hounded the Liberals for day-after-day).  In fact, the word “e-gaming” hasn’t even been mentioned.

With no documents being waved in the air, I endeavoured to get the Management Letter myself, in accordance with one of our laws that even elected officials forming Government are required to follow.

Some nine months later, I really didn’t know what to expect from the Premier’s office.  After speculating and discussing what I might expect by way of a response with friends during the past week, I concluded that one of the following three things would occur:

  1.  I don’t get a response, in which case, it would be a “deemed refusal” and I would seek an Order from the Information Commissioner to compel the release of the records in accordance with the law;
  2. I get the Management Letter, and possibly some other documents, but they are heavily redacted.  If that happened, a review would be requested with the Information Commissioner to verify legitimate grounds for withholding information.
  3. I get all the documents I should get under the FOIPP Act, without redactions.

None of these three things happened.

I’m actually still trying to process the response I received – something I never once imagined happening – but you can read it for yourself, then read the letter I wrote to the Information Commissioner requesting a review of this matter under Section 8 of the FOIPP Act.  But I’ll give you the guts of it with the following sentence from the Letter:

“I am writing to inform you that a search of the Premier’s Office failed to retrieve any records related to the subject of your request.”

Things are getting serious folks! It looks to me like we’re at a tipping point: Islanders will finally find out the true nature and character of both the Government and the Official Opposition based on responses to this situation.

Peter Bevan-Baker should be calling for a full and independent investigation of these missing files from the Premier’s office immediately.

Premier King should be announcing such an inquiry immediately.

These questions MUST be answered: (1) Did the Liberals destroy these documents on the way out?  (2) Did the PCs destroy them on the way in?; and (3) did someone in the King government know about these missing documents, but said and did nothing?

As noted in my letter to the Information Commissioner below, it is simply not believable that the Management Letter and related documents somehow went missing “accidentally” – someone made sure that the contents of those incredibly important documents remain secret.   

If the King Government was willing to make these records public, a simple phone call to the Auditor General with a request for copies is all that is required.  Unfortunately, the Auditor General doesn’t fall under the FOIPP Act, so if the Government doesn’t ask for copies of the documents, it falls to the Legislative Assembly, to which the Auditor General answers.  Islanders, we can not let this stand.

Letter 11

Letter 12Letter 13

+++++

I have already filed a review with the Information and Privacy Commissioner, Karen Rose:

me 1me 2

 

Posted in E-gaming | Tagged , , , , , , | 8 Comments

Do They Not Realize the Danger They’re In?

Danger they're in

Preamble

On February 6, 2020, the PEI Supreme Court will hold a Hearing on a Contempt Order Motion filed against the PEI government by Paul Maines.

Maines is claiming that the Department of Economic Growth, Tourism and Culture failed to comply with a PEI Supreme Court-enforced Order issued by the Information and Privacy Commissioner compelling the Department to release e-gaming documents.

The case concerns documents that Hon. Matthew MacKay’s Department staff – and his Deputy Minister, Erin McGrath-Gaudet – have been refusing to release to Mr. Maines, despite having no legal grounds to continue to withhold them, resulting in the Department being in breach of a Court Order. Ms. Gaudet signed the Consent Order and is the named “Defendant” in the legal action representing the PEI Government.

The PEI Government must file a defense not later than February 2, 2020, and I imagine lawyers are in the process of drafting that document at this very moment.

I also suspect Ms. Gaudet and Minister MacKay have no real idea of the legal quicksand they are currently standing in with this case.  I hope they are becoming aware of how they have been supporting a ridiculous and untenable response by the lawyers and APSO staff on this file, with illegitimate reasons being given for failing to release these records in accordance with the law, leading to the Court-enforced Order from the Information and Privacy Commissioner.

I believe what’s been happening on this file has been largely catching MacKay and Gaudet “off-guard” so I’m providing some background information for consideration with the hope that it might help to ensure that Minister MacKay’s Deputy Minister doesn’t swear to things in that Defence that may not be completely true.

Stu Neatby tweeted that he had received a response from the government on this matter, saying that he was assured that the government intends to give Maines all 1400 pages of records:

Neatby Quote

The Department is trying to sell the public the line that the only reason Maines hasn’t received the records to date is that the Department has been just too darn busy and there are too few resources. There’s no ill-intent or bad will; it’s purely an issue of too little time and too few resources.

The truth is that the lawyer drafting those letters and legal documents for the Deputy Minister’s signature has been continuously advancing bogus arguments and claims to justify withholding documents which are very deliberately being kept secret, and all indications are that if the powers that be (operating largely behind the scenes) have their way, those documents will be kept secret until at least the end of time.

Minister MacKay needs to get on top of this file immediately, and not simply trust the lawyer drafting the Defence for his Deputy Minister to sign and file on February 2nd.

Because this is now before the Supreme Court, the Judge has far greater powers than the Privacy Commissioner. There is no chance of using bogus grounds to withhold some of those 1400 pages of e-gaming documents, such as has often been used in the past. I am currently dealing with a Review of a FOIP with the Commissioner citing “client-solicitor” privilege when it impossible that such is in fact the case. I’ll explain more about that in a minute.

Because the PEI Government broke its own consent Order, I don’t see how anything else but the Judge ruling that the Government has to provide the 1400 pages immediately to Maines will be the outcome of this legal action.

Before taking a closer look at the “legal” basis upon which MacKay’s department has been arguing to withhold records on this case – and will likely continue to argue in the defense they will soon file – let’s review the history of communications between Maines and the Department on this file.

1.  A Chronology of Broken Promises to Produce Records

The chronological summary of communications below makes it clear that Paul Maines was misinformed and made to believe the Department was processing his FOIP request when they had done absolutely nothing at all. Maines was informed on December 20, 2019, that the Department had only released the documents to the APSO worker for processing on December 6, 2019! 

What that means is that EVERYTHING said about progress on processing the records since the FOIP was first filed in May was insincere.  See for yourself.

May 14, 2019: Paul Maines filed a FOIP request with the Department of Economic Growth, Tourism and Culture seeking the following:Contempt Foip

May 23, 2019:  Paul Maines agreed to a plan presented by the Department with a projected response date of July 22, 2019.

July 30, 2019: Maines receives a letter indicating that the Department would be taking a further extension that would “...allow the Department of Economic Growth, Tourism and Culture to provide you with a complete response to your request, which will be ready no later than August 21, 2019. We will try to respond sooner, if possible.”

August 21, 2019: Paul Maines received no response or communication by the promised deadline, and filed a review with the Information Commissioner under section 9(2) of the FOIPP Act, where the public body is “deemed to have refused access to responsive records.”

September 20, 2019:  Maines receives a “proposal” from the Department requesting a further extension on this FOIP request – and three others with firm deadlines for the release of records. The Department acknowledged that they were breaking the law, and wished to sign a Consent Order that would bring them back into compliance with the FOIP Act, and allow additional time for processing. [remember – no processing had taken place because the records hadn’t been provided until December 6, 2019].

September 23, 2019: Maines agrees to a Consent Order formalizing a commitment made by the Department to provide him with responsive records in accordance with the FOIP Act, on or before January 7, 2020.

October 9, 2019: The Consent Order from the Information and Privacy Commissioner was first proposed by the Department, then agreed to by Maines, and was then executed and signed by the Commissioner, Maines and Ms. Gaudet. That Order included the following words from the Commissioner: “I require the Department of Economic Growth, Tourism, and Culture to respond to the Applicant in accordance with subsection 8(1) of the Act on or before January 7, 2020.”

October 9, 2018: Following the signing of the Consent Order, Maines filed the Order with the Supreme Court of PEI, receiving court file # S1-GS-28824.

December 18, 2019: Maines received an email from the FOIPP Coordinator handling the file for the Department asking him to contact her the following morning to discuss the Consent Order relating to this particular FOIP request.

December 19, 2018: Maines phoned the FOIPP Coordinator, as per her request the previous day, and was informed that the Department would not be meeting its January 7, 2020 deadline and needed more time to process the records. Maines requested that she email him to indicate how much additional time she was requesting.

December 20, 2019: The FOIPP Coordinator emailed Maines stating the following: “As we discussed, I received the responsive records fon December 6, 2019, after removing duplicate records, 1400+ pages remain to be processed. I confirm that third party consultations will be required. I also confirm that the public body intends to disclose any records not requiring third party consultation as soon as the records are processed, so as not to have you wait for us to complete the third party consultation requirements…..At this stage of processing, I know that I will not be able to achieve the deadline of a January 7, 2020 response…..I am not yet in a position to advise of an estimated date for response, nor an estimate of the number of records requiring third party consultations…..I will contact you on or before January 10, 2020, with this information.”

January 10, 2020: Paul Maines received an email from the FOIPP Coordinator Ms. Smith stating: “Good evening Mr. Maines…I have continued my review of the responsive records to this access request, approximately 400 pages. Based on my progress this week, I estimate a response to this request will not be possible before the end of February 2020.”   Maines did not accept the terms of any extension for the Department and filed his Contempt Order with the PEI Supreme Court.

2.  A few Comments on What You Just Read

To me, it is absolutely bizarre that the King government allowed itself to be summoned to the PEI Supreme Court on a Contempt Order for breaking its own FOIP Act, given the history of this file.

The idea that it takes months to process 1400 pages (not records) is ridiculous.  In keeping with nearly every other e-gaming FOIP request I’ve ever filed, I can only conclude there has been a very concerted effort not to release documents that should be released because of the information in those documents.

Think about it –  the Department admitted to breaking the law, and before having to face potentially far direr legal consequences from Maines, asked him to consent to a Court-enforced Order wherein they were legally obligated to provide him with the records by January 6th. He complied and consented to that arrangement voluntarily.

Then, after Christmas, they have the audacity to – in an “ah…it’s no big deal,” cavalier kinda way that feels incredibly rude to me – inform Maines that they’ve changed their mind and he might get them in another 2 months.

Any chance an attempt might be in the works here to push the release of these records past the upcoming Appeal Court Hearing in May?  That’s exactly what happened with a number of other FOIP requests for e-gaming records prior to the 4 days of Court last April that resulted in Campbell dismissing the case.

The most blatant example of that was my FOIP for Brad Mix records submitted in October 2018.  I endured months of “string-along” lies, then finally, in a review with the Information and Privacy Commissioner, learned that the Department knew the entire time there were no records, but just wouldn’t tell me that, and never mentioned that 2 entire years had gone “missing”.  The person doing the lying to me was the person that used to sit in Ms. Gaudet’s chair and is now a DM in another department, David Keedwell.

If the processing of those records was that much work – which I don’t for a minute believe, based on the time frame for processing similar or much bigger bundles of documents from past experience with FOIP requests –  the PEI Government could have easily assigned one or more workers on the file to avoid what’s fast-shaping up to be a National embarrassment.

3.  Solicitor-Client Privilege: The Government’s “Panic Room” & Escape Hatch

Apart from the upcoming Court Hearing on this FOIPP request, the Information and Privacy Commissioner is continuing with her review of Paul Maines challenge to the Department’s decision to withhold a number of records on several enforcement Orders.  The Department has been doing everything it can to keep certain information secret, and I suspect that they were intending to withhold some records when they eventually release those 1400 pages claiming “solicitor-client privilege”.

The lawyer working the file for the Deputy Minister knows that the Information Commissioner’s hands are tied when it comes to documents claimed on the basis of “client-solicitor” privilege. In fact, the Department doesn’t even have to give those documents to the Information Commissioner for review. The Department can claim solicitor-client privilege on anything they want, actually, and Ms. Rose has no choice but to accept the Deputy Minister’s word that they are solicitor-client privilege (which the DM will swear in an Affidavit presented to the Commissioner) EVEN when NONE of the three conditions in the “legal test” determining whether a legitimate case of “solicitor-client” privilege exists.  And in this case, none of those three conditions exist.

In this way, the PEI Government can get away with withholding records that contain information it doesn’t want to release, even when there are no legitimate grounds for doing so, and that’s obvious to anyone who understands the conditions that have to be met to legitimately constitute solicitor-client privilege.

I regard this as a major “loophole” in the FOIP Act that can easily be exploited by dishonest and unscrupulous lawyers. Whether MacKay and Gaudet realize that’s what’s happening in many instances, I honestly don’t know, but I suspect not.

Now that this case is before the Supreme Court, it may be that the Judge will want – or be asked – to take a look at those documents to see if any are “solicitor-client” privileged. If the claim is made, the judge might just say that they clearly don’t meet the Solosky test based on the nature of the documents and expose the scam to hide the information.  Consider the following from an article titled: Solicitor-Client Privilege and Demands for Disclosure

Solicitor-client privilege applies to communications:

      1. between a client and a solicitor,
      2. made during the course of seeking or giving of legal advice, and
      3. which are intended to be confidential by the client and the solicitor.

Keeping in mind how ALL of these three conditions must be met, not just one or two, consider how NONE are met in this case:

  1. Neither of the Parties in this Foip Request is a lawyer.  There is, therefore, no communication “between a client and a solicitor”;
  2. Let’s assume the communication was “cc’d” to someone who is a lawyer. How is communication between two people who aren’t lawyers – even though it may be shared with a lawyer – capable of meeting the condition that it was during the course of seeking or giving legal advice?; simply “sharing” communication with another person who is not a lawyer is neither seeking nor receiving legal advice; and,
  3. It is very likely that none of those documents were ever initially intended to be “client and the solicitor” privileged, and were never identified as such, and that fact could easily be determined upon inspection. 

I suppose from the point of view of a clever departmental lawyer claiming “solicitor-client” privilege on documents your client asks you to find a way to not disclose represents a good legal strategy, that’s if you don’t think about how “aiding and abetting” a further cover-up of such information in such a manner is unethical and illegal.

I truly suspect when that strategy is employed by the Department it is whether the documents are truly solicitor-client privileged or not, that will never be discovered by the Commissioner that, since only a Judge can make that determination, as the Solosky Ruling makes clear:

“As Mr. Justice Addy notes, privilege can only be claimed document by document, with each docu­ment being required to meet the criteria for the privilege—(i) a communication between solicitor and client; (ii) which entails the seeking or giving of legal advice; and (iii) which is intended to be confidential by the parties. To make the decision as to whether the privilege attaches, the letters must be read by the judge, which requires, at a minimum, that the documents be under the jurisdiction of a court. Finally, the privilege is aimed at improper use or disclosure, and not at merely opening.”

Is it possible that the lawyer drafting documents for Ms. Gaudet never considered that a Judge might want to see whether those documents were in fact what they were claimed to be? Most definitely…when was the last time an Islander filed a Contempt Order Motion against the PEI Government? I’m sure no one saw that coming, but here we are.

I honestly don’t know whether that issue falls within the scope of the Motion, but I know if I was Paul Maines, I’d be looking for a way to have the Judge review any records the Department might claim are “client-solicitor” privilege.

3. Do you Realize the Danger You’re In?

I honestly don’t believe either Minister MacKay or the Deputy Minister are behind (or even fully aware of) all the irregularities and shenanigans with this file. I suspect that they have both been led to believe all along that it’s not really a big deal, and that the lawyers working on the file have everything in hand. They do not.

I put this post out today hoping that this information might help to ensure that whatever ends up being filed in the PEI Supreme Court as the King Government’s Defence on this issue – that will be sworn and signed to by Minister MacKay’s Deputy Minister, Ms. Gaudet – will be truthful and just, and fully honour the passion and commitment Minister MacKay so courageously displayed as an Opposition MLA regarding the obligation government has to release e-gaming documents to the public.

 

 

 

Posted in E-gaming, Provincial Politics | Tagged , , , , , , , | 2 Comments

Will the King Government Release the Auditor General’s E-gaming Management Letter?

PREAMBLE

Yesterday was the deadline for the Public Body to respond to a FOIP request I had submitted to the Premier’s office on December 3rd, 2019. I thought I’d be posting an article today announcing that the King government was in another “deemed refusal” when 4:30pm rolled around yesterday, then heard a ‘ding’ on my computer. I received the following letter at exactly 4:30 pm via email – another minute and it would have technically been another “deemed refusal”.

Dickson email

dickson 1

Dickson 2

Dickson 3

On December 19, 2019, I received a letter from the public body indicating that additional time would be required and that I would receive a response by January 23rd (yesterday). This letter yesterday only bought the Premier’s office a few more days (not sure what’s taken so long to process so few documents) and kept the Government within the scope of the law. But the time the Act allows is fast running out, and they are now promising to respond by January 30th.

The Department can technically take up to 60 days to respond to applicants but must receive permission from the Information Commissioner for an extension beyond that time, except when 3rd parties are mentioned in the documents and need to be consulted, in which case the public body can take another 20 -30 days.

Why is that Management Letter from the AG to the Premier so important? Because if my hunch is correct, information concerning the PEI government’s outside legal counsel, Billy Dow’s insider trading was in that letter, and not just around the time of the MOU. If it is, then it was — and still is – the Premier’s duty to do something about it.

That crucially-important document – and the response from the Premier to the AG that was supposed to follow her letter – has never been tabled in the House or made public and now I am supposed to get that document (and others related to it) by next Friday.

If I don’t receive the documents, it will be another illegal “deemed refusal” for which I’ll be filing a review with the Information Commissioner.

In the meantime, you should know how hard the PCs worked to force the Liberal Government to disclose that Management Letter from the AG (unsuccessfully), and how it is now the King Government’s turn to honour what they said in the Legislative Assembly about Islander’s right to full transparency and disclosure. As Steven Myers stated so eloquently in the final video in this Post:

“The Time for Answers is Now: This is your Opportunity!”

Although Myers is addressing Premier MacLauchlan in the two video clips in this post, when the Camera is on Myers speaking, it’s hard not to picture Premier King on the other side of the House taking the pummelling as Myer’s steely gaze and laser-sharp sense of ethical and political responsibility drill deep into the Premier. Ah…the good ole days!

Important stuff, and pretty interesting given the count-down to getting an answer to the big question next week: Will Premier King give me the Management Letter?

1. The AG’s E-Gaming Management Letter to the Premier

The Standing Committee on Public Accounts first learned about that Management Letter that the Auditor General sent to the Premier during a meeting on November 10, 2016. The Management Letter came up in a response from the AG to a question about Billy Dow’s investment in CMT, which she referenced in her E-gaming Report as having the “appearance” of a conflict of interest. Committee members were asking about that, and the discussion moved to who was responsible for what (AG vs. Government) and the Management Letter.

Note that his broker for that investment wasn’t Paul Maines [Shocker] but Shane MacEachern at RBC Financial.

The Committee members pressed the AG on why she thought Dow was in a conflict of interest, but the AG was very clear that it was not her role to determine wrongdoing of third-parties with Government, but only to provide relevant facts she uncovered in her Audit about more serious matters which the Government needed to address, and that information was transferred in the form of an audit “Management Letter”.

As you can see – despite what Minister Roach says in one of the videos several times – the full onus to take action on any serious issues identified by the AG – even matters she may have determined were illegal or criminal – knowing that if any further investigation into whether anything illegal or criminal occurred was to take place, that decision would have to come from the Premier:

Beyond our mandate

We don't conclude

Dow Engaged by Government

Jane last

Shortly after that Public Accounts Committee Meeting, Steven Myers raised the issue of the Management Letter in Question Period. It’s about 7 minutes long but worth watching in its entirety:

The Premier may not have brought the evidence that was in that Management Letter to the PEI Law Society, but in the course of my investigation into the money-side of the e-gaming scandal, I had uncovered new evidence that I suspect the AG knew and had also put in that letter: namely, that Billy Dow was conflicted and engaged in insider trading at the time he made the investment – not just a year later when he worked on the MOU.

But just like Judge Campbell in his ruling to dismiss CMT’s lawsuit, it appears some kind of “pact” occurred that no matter what, no one was to acknowledge EVER that there was any possible wrongdoing, or even “relevance”, to events in the Pre-MOU period.

It happened to CMT with the PEI Supreme Court case; it happened to me with the Billy Dow Complaint to the PEI Law Society.

2. My Law Society Complaint Against Billy Dow

Prior to my complaint to the PEI Law Society, Michael Redmond, when Leader of the NDP, had filed a complaint. They sound a lot the same, but they’re totally different due to two key things (a) different time period, and (b) different legal relationship causing the “conflict of interest” with a different legal entity. Not to go too deep into it, but I’ll try to explain the essential differences.

In the response to Redmond’s complaint, Billy Dow stated– as he had previously claimed in a 2015 Letter he sent (via email) to Globe and Mail reporter Robyn Doolittle – that he was totally unaware that TBT was a wholly-owned subsidiary of CMT in 2011, and when he became aware in September 2012, he took immediate steps to remove himself from the file.

Redmond initially filed a complaint with the Secretary-Treasurer of the PEI Law Society, who ruled there was no conflict of interest.
He subsequently appealed that decision to the PEI Law Society’s Disciplinary Committee. In its Decision, the Committee also concluded there was no conflict of interest and that no disciplinary action against Dow needed to be taken.

During the part of my e-gaming investigation into how the e-gaming loan and grants were all obtained fraudulently, I discovered that Billy Dow figured prominently in that story – not only in his capacity as outside legal counsel for Innovation PEI, a Crown Corporation, but also outside Legal Counsel for the PEI Government on the e-gaming file since February 2010.

I provided documentary evidence demonstrating that fact to the Law Society, along with other documentation revealing Dow’s intimate knowledge and involvement in the entire gaming file, including the plan for CMT to transition into a local PEI company FMT (called “Trinity Bay” when the MOU was signed).

I had posted a blog article in my e-gaming funding series on April 2, 2019, titled, “Complaint Letter to the Law Society against Billy Dow,” which followed another article documenting Dow’s unethical and (I believe) illegal involvement in that e-gaming $1 million dollar loan fiasco: “A Conspiracy to Commit Fraud: The Full Story on the E-gaming Loan.”

When I filed my complaint with the Law Society on April 3, 2019. I expected I would receive a response to my evidence from Dow -that’s how it should work, and that’s the process mapped out on the PEI Law Society website :

“The lawyer involved will be sent your complaint and asked for a response within 2 weeks (or longer in appropriate circumstances). Once the lawyer’s response is received, a copy will be sent to you. Along with the lawyer’s response, you will be given an opportunity to make additional comments. At this point, you may be satisfied with the lawyer’s response. “

That never happened.

Dow likely received a copy of all my material, but I never heard anything back from anyone until I received the Decision Letter from the Law Society Secretary-Treasurer, Susan Robinson.

I filed an extensive body of information and research with a complaint letter, and I was extremely careful to draw attention to how my complaint differed completely from the complaint Redmond filed and had dismissed. You can read the entire letter here, but for the purposes of this article, the following three paragraphs are the important ones:

coplaint letter to law

Susan Robinson

Susan Robinson, Secretary-Treasurer and Executive Director of the PEI Law Society

The Secretary-Treasurer of the PEI Law Society handling the file was Susan Robinson.

I can’t say I was very hopeful I’d get anywhere with my complaint, but I really wanted to see what Billy Dow would say about the new evidence I had submitted.

Despite my efforts to ensure clarity concerning how my complaint was entirely different from Redmond’s, there was ABSOLUTELY NO REFERENCE WHATSOEVER to the substance of my complaint in Robinson’s decision letter. She treated my complaint as if it was exactly the same complaint made by Redmond. Read what Ms. Robinson wrote in her letter to me, keeping in mind what I wrote in my letter to her, in those paragraphs cited above:

“The allegation of conflict of interest has already been dealt with by this office and confirmed by a Discipline Committee in August, 2017. I repeat the findings here.”

I gave up on the idea of trying to take things further with the PEI Law Society.

I had uncovered documentary evidence that Billy Dow was involved with the gaming file as outside legal counsel from early 2010, so I figured the Auditor General likely had that same information as well. My thoughts immediately turned to that Management Letter. I eventually got around to submitting a FOIP for it.

Now I’m finally going to get to see whether Premier MacLauchlan knew Billy Dow was indeed involved in Insider Trading in a Conflict of Interest situation with CMT and the gaming file and chose to cover up that information to protect him.

It’s important to realize that the AG was not really at liberty to speak about the contents of her Management Letter sent to the Premier. It was, as she put it to the Public Accounts Committee – outside the scope of her Mandate. Her role was to notify the government of important management/governance issues, which she did in that Management Letter.

The Premier’s role was – and still is – to “act” on the information provided by the Auditor General in that Management Letter.

Will the PC government chalk up another “deemed refusal” on January 30th?

Or will the Premier decide to finally make this key document public and display concrete evidence that his commitment to be open and transparent is sincere?

I’ll end with another video clip of Myers talking about the Management Letter: An important historical record for sure.

Pay attention to how Minister Roach misleads the House by saying that the AG found nothing “criminal” in her investigation/audit, or else she would have said something – not true! She might have found something she believed was indeed criminal, but she wouldn’t have put that information in her E-gaming Report, but rather, her Management Letter to the Premier.

Summary

Will the King government release this public document to me by January 30, 2020, in accordance with the law?

I really hope he has a chance to view this next video of Myers talking about releasing these documents. In the first video, Myers launches into a passionate plea for the Premier to not treat senior bureaucrats, lawyers, and politicians “differently” from the rest of Islanders when it comes to illegal activity, or not following government policy [e.g., MacLauchlan explained it well by saying that the “consequences” for white-collar crime is apparently for the rest of us to try harder to, essentially, ” make it harder for senior bureaucrats, lawyers, and politicians to get away with it next time” by improving laws and policies]. These guys didn’t slip through cracks and loopholes; they broke laws, and when that happens, consequences should fall to the lawbreakers.

How insulting to the rest of us Islanders who would get dragged off to Sleepy Hollow in the blink of an eye for doing a lot less damage to the moral fabric of society!


Remember: Despite all the promises by the previous government to release that Management Letter and supporting documentation, nothing was ever tabled in the House nor made public. Nor was there any response by the Premier to the AG – again, promised to be made public, nor any information on the “steps” the government took, if any, to address the concerns documented by the AG in her Management Letter. In fact – to this day – we don’t know what those concerns were exactly – perhaps we will find out next week.

Posted in E-gaming | Tagged , , , | 3 Comments

CBC Responds…..Sort Of

Halifax CBC

It seems that the Senior Manager of CBC – PEI, Jim Ferguson, won’t be responding to my complaint about the failure of CBC-PEI to report on the e-gaming scandal and CMT lawsuit after all – it got bumped up to a higher level at CBC overnight.

This morning I received an email from Nancy Waugh – cc’d to Jim Ferguson and Donna Allen – who identifies as the Managing Editor of CBC Atlantic. I don’t get a sense from what she wrote that she’s conceding there’s any legitimate basis for my complaint…what do you think?

cbc email

It’s reassuring to know that it will be Ms. Waugh – someone who doesn’t live in PEI – who will eventually respond to the Ombudsman. I’m sure she’s more in touch than me – I only live here.

Her telling me that she’ll be responding to the Ombudsman, well, I take that to mean that she isn’t willing to acknowledge there’s any legitimate basis whatsoever for my complaint. I expect I’ll get more of the same nonsensical nonsense in her response to the Ombudsman that she provided to me in her email today.

Do these high-paid Managers in off-Island cities really believe there’s that much happening on PEI that dozens of people working at CBC in Charlottetown are too overwhelmed chasing down more-important stories to take a minute to tell Islanders about the upcoming PEI Supreme Court Contempt Motion Hearing against the PEI Government scheduled for February 6th? Or the growing number of “deemed refusals” being chalked up with e-gaming FOIP documents being illegally withheld by the King Government?

Consider the top five breaking news stories on CBC PEI’s website I just took a screen capture of:

CBC Lineup

I’m interested in knowing if CBC is interesting in knowing what you would like to see reported with CBC news. I’ve embedded a poll (you can check back later to see how the results are shaping up) and I’ll send the results to Ms. Allen in a couple of days.

Should I Sue Hannah Bell for Libel?
The Two Most Important Stories for CBC-PEI to Cover?
The Two Most Important Stories for CBC-PEI to Cover?
The Two Most Important Stories for CBC-PEI to Cover?

Let’s help Donna Allen figure out what Islanders truly want our public broadcaster to keep us informed about – perhaps in the process we can also reduce the anxiety and stress that CBC reporters are apparently experiencing constantly trying to figure out what’s going on out in the real world in PEI politics outside the CBC bubble.

Knowing that – as Ms. Waugh states so beautifully in her email – at the CBC “…the needs of the audience are always at the centre of our thinking,” then why not exercise your democratic right as a member of the audience and cut and paste the following message to communicate your “needs”.   Here is Ms. Allen’s email address [Donna Allen], paste the content, add your own personal touch if you want, then click “send.”

Send Donna a message and you’ll accomplish two amazing things: (1) you’ll have helped to ensure that democracy is still (at least for the time being) alive and well in PEI; and (2) you’ll have hopefully helped CBC Management to better grasp the true meaning of the phrase: “YOU HAD ONE JOB!”

Dear Ms. Allen:

Could CBC please start covering the e-gaming CMT stories in a regular and in-depth way that truly informs Islanders of the many recent and important revelations revealing what is really going on with that ongoing scandal?

And could you also start reporting about the ongoing refusal of the PEI government to abide by the FOIP law? Including perhaps interviewing the Premier – or at least asking him a question – about the upcoming February 6th PEI Supreme Court Contempt Hearing against the PEI government and why his government is refusing to release documents in accordance with the law?

Sincerely

Very Concerned Islander

Posted in E-gaming | Tagged , , , , , , | 5 Comments

Dear CBC-PEI…Enough is Enough

CBC

CBC is supposed to be our “public broadcaster” protecting our constitutional rights and freedoms, with a mandate that ties “informing Canadians” to fostering an open, transparent and democratic society.

It’s no secret to those following the e-gaming and CMT lawsuit stories that CBC PEI is failing us badly with fairly and diligently telling Islanders the truth about what’s been going on behind the scenes.

I have been keeping a log of just how poor a job our public broadcaster has been doing on this story, and I was just about to file a complaint with the CBC Ombudsman, but then realized that the first step in that process is to “complain” to the local CBC Manager.

I sent the following letter to Senior Manager, Jim Ferguson, today. I think a week should be a reasonable amount of time to wait to receive a response. If I don’t get a satisfactory response by then, I’ll be filing the more documented and detailed complaint with the CBC Ombudsman. I’ll let you know what happens.

+++++++

jim letter 1Jim Letter 2Jim letter 3

Posted in E-gaming | Tagged , , , , , , , , | 6 Comments

King Government Continues Breaking FOIP Law with 6th “Deemed Refusal”

access deniedIt’s hard to know what’s going on inside the hallowed halls of government these days. After the Guardian published a front-page article informing the public that the King government must appear before the PEI Supreme Court on February 6 to explain why it first broke the FOIP Act, and then ignored a Supreme Court Order to turn over those e-gaming documents to Paul Maines, as per the terms of a Consent Order signed by Paul Maines, the Information and Privacy Commissioner (Karen Rose) and the Deputy Minister of Economic Growth, Tourism and Culture, Erin McGrath-Gaudet, well, you’d think things would be improving. They’re not.

Maines has 4 Court Orders against the PEI government on four separate FOIP requests for which the King government is refusing to release e-gaming documents. Last week, I reported that there was now a 5th FOIP request for which the Dennis King Government is breaking the law.

I’m sad to report that there is now a 6th deemed refusal “non-response” from the King government, with another one of my FOIP requests.  That request, as well as the letter I sent to the Information and Privacy Commissioner, Karen Rose, this morning, are included below.

As more has been discovered in the investigation, these last FOIP requests have been very focused on getting additional documentation pertaining specifically to those “cover-up” things that have come to the light of day.  I expect there are lots of new bombs ready to go off in those documents, and I’m starting to think one may have a nuclear warhead!

There must be some truly shocking information in those e-gaming documents for the newly-elected Premier  – who so forcefully promised so recently to finally deliver true transparency and access to information to Islanders – to have made a name for himself, in such a short time, as the Premier who rules as if PEI had no Freedom of Information Act at all.

+++++++++++++++++++

300Letter to Karen Rose, January, 2020

Posted in E-gaming, Provincial Politics | Tagged , , , , , , | 1 Comment

Episode #23: Shane MacEachern – The Hidden E-Gaming Power Broker No One Knows About

PREAMBLE

Episode 23 (2)

Gordon Campbell        Robert Ghiz                     Shane MacEachern           Wes Sheridan                      

This episode revisits issues dealt with in previous episodes concerning the Securities Investigation against Paul Maines and CMT initiated in September 2012 by Steven Dowling, a PEI Government Department of Justice lawyer at the time.

We’ll be looking at those players, actions, and events with new glasses, however, as revelations over the past couple of months shed new light on those actions and events. Things not considered “significant” just weeks ago have suddenly become incredibly important, providing new keys to unlock puzzles making sense out of more and more things, and the connections between them, providing a clearer understanding of what really happened and why.

Such is the case with Shane MacEachern.  Never once mentioned in the local media in connection with the e-gaming scandal, Paul Maines, CMT, the Securities Investigation, CMT lawsuit, or the bid to establish FMT as the local company delivering the CMT/Simplex Global Transaction Platform for North America in PEI. 

Nor was MacEachern ever called before the Public Accounts Committee investigating e-gaming. He was referred to just once in the Auditor General’s report, but only as a faceless “broker” handling the RevTech reverse-takeover Investment money-raise; his name wasn’t provided.

The Significance of the Pre-MOU Period

More and more pieces of the investigative e-gaming scandal puzzle are now coming together. As sections of those pieces are linked, they reveal what was really going on behind the shroud of secrecy which the PEI government draped around its business relationship with Paul Maines and CMT/FMT.

That Shroud is comprised of materials like (1) a “scorched-earth” policy of e-gaming document destruction; (2) unexplained missing records; (3) non-disclosure of materially-relevant documents to the Court; and now, (4) contempt of a PEI Supreme Court Order to release government documents to Paul Maines requested in a FOIP request, which Maines has a legal right to obtain under the FOIP Act, and which the PEI Government had finally agreed to provide when Deputy Minister Erin McGrath-Gaudet signed a Consent Order issued by Information and Privacy. Commissioner, Karen Rose.

In this quite extensive article, I’m providing a substantial amount of new information within a new framework and context, so it really was impossible to keep this episode any shorter. I was considering breaking it up into a “mini-series,” but the information is best kept together.

The conclusion from the documentary evidence will – if you’re able to persevere through the 20 pages or so – leave you completely gob-smacked.  There truly has been so many “shocking” scandals identified within the entire scandal, however, for this one, it’s important to carefully work through that new information leading to the conclusion, not present the conclusion and then see how it was reached; there’s too much new material to cover.

In this episode – which is really the second-last in the series – since episode #25 will be a synopsis of the key findings from all previous episodes – I want to show how the PEI government’s business relationship with CMT/FMT started, in earnest, in the Fall of 2010, gained significant momentum over the winter, leading up to a big, expensive, and secret  “gala event” with CMT/Simplex at the provincially-owned Crowbush golf course (as Steven Myers put it in the video clip I present a little later in the episode) back in May 2011.

The truth is that CMT/FMT had a dynamic business relationship with the PEI government since 2010, and there were several early “stages” of development in that working business relationship that had been identified, agreed upon, initiated, and in some cases, achieved (such as CMT’s success in recruiting Virgin Gaming to PEI as a major client for the FMT Global Transaction Platform).

‘There were ongoing discussions and negotiations aimed at eventually reaching a formal agreement, and there were even hopes that progress could lead to a major public announcement later in 2011 to inform Islanders that FMT would be hosting a SWIFT-certified Global Transaction Platform in North America from little ole Prince Edward Island, and Virgin Gaming, a global gaming leader, would be relocating to PEI as a major client on the Platform.

The ridiculous narrative presented by Justice Campbell in his nearly 200-page ruling dismissing the CMT lawsuit rests entirely on two foundational factual errors:  (1) that neither Paul Maines nor CMT/FMT/764 had anything to do with e-gaming, and (2) that FMT/764 had absolutely no business relationship with the PEI government prior to the signing of the MOU in July 2012.

Here are just two examples of statements that show how Campbell effectively “severed, then discarded” anything that happened outside the MOU period (60 days + a 30-day extension):

Paragraph 17:  Neither CMT nor 764 were ever involved in any way with the so-called e-gaming project.

That’s why those two years of missing Brad Mix records (the ones related to the Order on my review which the Information and Privacy Commissioner will be issuing soon) were deemed to be totally “irrelevant” by Judge Campbell.  It didn’t matter to him what was in the documents, they were of no value to the plaintiff, in Campbell’s view, because they fell outside the time scope of the MOU period:

Paragraph 652: …The claims against Mix specifically relate to actions occurring “during the course of the MOU” or “during the period of exclusivity”, which is the same period of time as the MOU was in place. The issue regarding non-archived sent emails relates to a period well before that, being between June 2010 and April 2012. The claims against Mix do not relate to matters in 2010, 2011, or prior to July 6, 2012. No relevance has been shown to Mix’s emails from earlier periods.

What a completely wrong-headed way to look at those missing records. Limiting the scope of consideration on whether those records were of “relevance”  to specific “claims” against Brad Mix completely fails to acknowledge that Brad Mix was a key player throughout that entire 2 year period, both sending and receiving many key documents that would shed light on countless issues, including claims against other named Defendants. Tying those key documents to only Brad Mix is a misdirection away from, well, everything that’s about to follow in this article.

Campbell puts the complete onus on Maines to prove that Brad Mix’s emails from the pre-MOU period are relevant, but how exactly was Maines or his legal Counsel supposed to do that when: (1) information was not produced and made available to the Court by Counsel Coady, denying the Plaintiff’s knowledge of the particulars and details of those materially-relevant emails and documents that existed; (2) Coady had stated during Brad Mix’s Cross-examination last January 2019 that he believed he had received all of Mix’s emails; and (3) Coady had already told the Court that he had disclosed all relevant documents, yet, in fact,  did NOT inform the plaintiff or Court that 2 years of missing records from Brad Mix that were once in the possession of the government were missing, something he was required to do by law; and (4)  particular Brad Mix emails eventually identified in inbox’s of other government employees with whom Brad Mix worked on the file, and requested through targeted FOIP requests, are being illegally withheld by the King government.

Judge Campbell’s refusal to acknowledge the 2-year relationship between CMT/FMT and the PEI government – and everything that transpired between them since 2010, all of which paved the way for the MOU in 2012 – was made easier by Coady withholding documents that would have swiftly and unequivocally demolished Campbell’s rationale for concluding nothing of importance happened before the MOU was signed in July 2012.

In previous episodes, specific issues in Campbell’s ruling were addressed. In this episode, I’ve structured it to show how Campbell’s reckless “severing” of the pre-MOU period represents a fatal flaw in both his legal argument and his ability to tell a truthful story.

To correct Campbell’s distorted narrative, it’s necessary to start from the beginning and tell it the way government documents say it happened. When you’ve finished reading this episode, I want you to remind yourself of this one thing: Absolutely everything discussed in this episode happened in the pre-MOU period.  They say if you want to get to the bottom of a covered-up secret scandal just follow the money.

Follow the Money

follow the moneyBut first, we have to understand why there was a need for money. To grasp that, we need to recall how and when CMT/FMT first became engaged with the PEI government.

For the purpose of this article, I’ll provide only as much information from previous episodes as needed to provide sufficient context to support the claims being made, and the conclusions that are drawn.

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1. Genesis of the “CMT/FMT-PEI Gov’t” Business Relationship

Garth Jenkins introduced Paul Maines to his cousin Paul Jenkins at a meeting at Smitty’s in the summer of 2010 – 2 years before any talk of a MOU. In a July 16, 2010 email, Garth suggested Paul meet Maines:

Raymond James

I’ve already provided the documentation on that initial meeting in a previous episode, but again, with a different purpose in mind: previously it was to show how Paul Jenkins became aware of the CMT investment opportunity from his cousin Garth Jenkins, not Paul Maines.

We revisit that meeting with an eye to understanding the money trail, why the money was being raised, who was involved in raising the money, who actually invested, and how those people became aware and involved so they could invest, i.e., investigate whether there were any “connections” between all of those investors and if so from whence they sprang as the initial source of information about the money-raise.

Spoiler Alert: Undertaking this investigation on the “investment” side of the story revealed that Paul Maines was never traveling on that yellow brick road – it was initiated by Garth and Paul Jenkins, and from the get-go involved Paul Jenkin’s good friend and “Broker,” who was best friends with Premier Ghiz, Shane MacEachern.   All that happened before Paul Maines even met Paul Jenkins.

We need to back up a step.

When Garth Jenkins was pitching PEI to Paul Maines as the ideal place for CMT/Simplex to locate its North American financial transaction platform, Garth had already forwarded CMT’s confidential company financials to Paul Jenkins, and Paul Jenkins, in turn, and unbeknownst to Paul Maines at the time, forwarded them on to his Broker, Shane MacEachern:

555

Why would Paul Maines be so naive to think that just because his “relation-through-marriage”  (Garth Jenkins) was well-connected to key players in the PEI government he’d be able to convince the Boards of Directors of CMT and Simplex that PEI was the place to establish its North American Financial Transaction Hub?

Well, here’s another part of the story that’s never been made public. Garth Jenkins was a major player (VP of Business Development, the same role Maines had with CMT) in a company called Ventis, that offered exactly those kind of services:

VentisGarth Jenkin’s “bio” certainly would have given Maines a sense of confidence, given Jenkin’s past success in pulling off major financial deals such as was being considered with locating the CMT/Simplex Global Platform in PEI:

ventis 2

When Garth Jenkins passed the information on to Paul Jenkins about the CMT/Simplex location in the North American plan and the possibility of that happening in PEI, with government cooperation, as well as the money-raise with Raymond James (a brokerage firm in Toronto), Paul Jenkins expressed strong interest in spearheading the venture, as we know in retrospect.

Garth contacted the person managing the fund at Raymond James to inform him that his cousin (Paul Jenkins) was not only interested in making an investment in CMT, but had knowledge of potential “shell” companies to target for a takeover.July 14, 2010 email from garth jenkins to peter marshall

Just a month later, in an August 19, 2010 email from Garth Jenkins to Philip Walsh, (also cc’d to Paul Jenkins and Paul Maines), we see just how far things had moved down the road with the PEI Government plan to recruit and establish FMT in PEI for CMT/Simplex’s planned launch of the Global Transaction Platform/Claimatrix in North America. FMT had been incorporated, and hundreds of thousands of dollars had already been raised for the initiative:

“PJ [Paul Jenkins] and Paul [Maines] will see Gary [Jessop, CMT’s lawyer] in Ottawa. The only thing to do now is for Gary to clarify the steps for completing the transaction and to come to agreement/decision on the allocation of the initial CDN $300k in funds…We have prepped the PEI government to the fact that we will have a business plan for submission by mid-Sept. As well, the financial budgets are 90% complete. For the business plan, we will just need your final budget for work in the UK.”

Garth Jenkins went on to explain how the money that was being raised would be divided up and allocated: a 1/3 component was to go to the RevTech Shell Company purchase.burn rate

It was, in the beginning, Garth Jenkin’s connection with Paul Maines that gave birth to the idea that the CMT/Simplex Global Transaction Platform presented a huge opportunity for PEI.

It was both Garth and Paul Jenkin’s connections with certain key individuals in the government that gave rise to the secret CMT/FMT Simplex Global Transaction Platform initiative beginning in July of 2010, two full years before the MOU.

It was especially the “Jenkins” direct line to Premier Ghiz through Jenkin’s Broker that clearly expedited the process, without question. Things moved quickly, and by early 2011 the due diligence on CMT/Simplex and the PEI government had contracted an expert to undertake a study of the feasibility of the CMT/Simplex Platform locating in PEI.

February 28, 2011: Innovation PEI signs a contract with Patrick Mason on February 28, 2011, authorized by Brad Mix and then-CEO of Innovation PEI, Neil Stewart.

March 14, 2011: Paul Jenkins emails Paul Maines (CMT), and Philip Walsh (Simplex), to say that Patrick Mason’s report on FMT (100%-owned by CMT) on the PEI Government potentially locating the Simplex Global Transaction Platform in PEI through FMT (CMT had exclusive North American rights to distribute the Simplex Global Platform) was completed.

big doc

Following the completion of Mason’s “big doc” report, FMT was formally recruited to establish in PEI. Innovation PEI provided a tailored recruitment “package” with details on what the PEI Government was offering if FMT decided to establish the Transaction Hub in PEI, including the following:

First Mover AdvantageThere was growing enthusiasm about the prospect of getting an internationally-recognized SWIFT-accredited financial services platform established in PEI and “all systems were a go” for FMT to establish the Financial Transaction Platform.

May 4, 2011 – Melissa MacEachern, still the Deputy Minister of Tourism, contacted Paul Maines and learned that FMT could deliver a Loyalty Card Program through the Transaction Platform. MacEachern’s “it’s a go” email response to Eddie Francis (Maines hired Francis to work on the Loyalty Card Program, on behalf of CMT) was a testament to the confidence MacEachern had that the FMT deal was also “a go,” and that her view was that it would just be a matter of working out the details. She was obviously counting on the Platform being in place by the time the program was developed and ready for roll-out in about a year – without the Platform, there could be no Loyalty Card.

MacEachern’s contact with Maines on the Loyalty Card Program wasn’t just a question of getting an opinion from Maines, but I’d say some pretty high-level thoughts. Here’s some of what Maines provided MacEachern in response to her inquiry:

Loyalty

What was MacEachern’s response? Pretty much exactly the same as mine:

high leve

The pace at which things were moving forward for CMT/FMT from late summer, 2010 to early Spring, 2011 was actually quite remarkable.

The recruiting package provided to FMT stipulated the need to establish a local company with local investors and local representation on the board, and from all appearances, Maines and others with CMT and Simplex were satisfied that Paul Jenkins was doing what they expected him to do: establish FMT (raising money for the Shell company takeover) and move things forward with the PEI government.

Paul Jenkins seemed to have everything under control and headed in the right direction. He was working with his trusted “Broker of Record” Shane MacEachern, money was being raised with all the paperwork in order, and up until September 2012, there were simply no red flags that might have alerted Paul Maines that all was not as it seemed when he learned of the “Keith Laslop” Newco sabotage from Tracey Cutcliffe in September 2012.

Everything was going so well by May 2011, Ghiz apparently offered his buddy MacEachern the Crowbush Golf Course to wine and dine CMT/Simplex on the very day before the golf course was scheduled to open to the public, allowing a select group of Island individuals to socialize with CMT and Simplex on the greens while working out a game-plan for the eventual rollout of the transaction platform.  The Agenda shows there was also a scheduled meeting with Premier Ghiz with prepared “briefing notes”.  

2.  Remember Crowbush?

Let’s start with a video clip of Steven Myers asking Allen Roach about that CMT/Simplex get-together on the greens at Crowbush with PEI government personnel (and others) at the Crowbush golf course that took place in May 2011. That event only became public knowledge in 2013, when the PC Official Opposition obtained e-gaming documents from a FOIP request:

Yes, the Loyalty Card Program was a part of the discussion, but the Crowbush event was not happening because of the Loyalty Card Program. And no, efforts to establish gaming on PEI had not ended – it had been “married” to the Financial Transaction Platform project just after Neil Stewart informed Wes Sheridan about Virgin Gaming, a client of CMT/FMT, deciding to relocate to PEI.

The only thing that “ended” with the drive to establish gaming was the illegal scheme by the “gaming committee” [Gary Scales; Don McKenzie; Mike O’Brien, Wes Sheridan, and Chris LeClair] to regulate online gaming and collect tax revenues, which was deemed in contravention of the Canadian Criminal Code and should never have been initiated in the first place.

The plan to recruit a financial transaction platform to host gaming companies, financial institutions, etc. was actually intensifying at the time, and the assumption was that FMT was going to be that Transaction Platform company.

Melissa MacEachern had contacted Maines in May 2011 to inquire about FMT/Simplex’s capacity to deliver a Loyalty Card Program for Tourism PEI [She was still Deputy Minister of Tourism in the Spring of 2011] BECAUSE she knew things were moving forward with the FMT Platform.  The Crowbush event planning was already well underway by that time, and, as you’re about to see, the discussion was all about the platform, not the Loyalty Card Program as Roach stated.

Notice that the date on MacEachern’s email to Maines was May 4, 2011. That was the very same time the Crowbush plans were coming together, and lots of chatter was happening amongst the e-gaming secret society members, one of whom was Melissa MacEachern. Consider the following email sent on May 5, 2011, the day after MacEachern’s email to Maines: