Judge Campbell’s Flawed E-gaming Ruling throws Auditor General Under the Bus

Judge Campbell

“A former provincial Liberal Party president and chairman of several election campaigns, Judge Campbell said that some critics cling to a ‘ridiculous’ belief that politically active lawyers always keep one eye trained on a judgeship. ‘I was involved in politics because I loved it,’ said Judge Campbell, who was appointed in 2001 by former prime minister Jean Chrétien’s Liberal government. ‘In PEI, politics is in your blood. It’s the provincial sport. Nobody is looking at whether they will get this or that reward.’ “

[Globe & Mail, “Appointment of Judges too Political, Critics Say,” May 16, 2005]

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Campbell’s Liberal connections certainly didn’t hurt his chances of getting appointed to the bench, especially given that he had just a few years earlier – as a practicing lawyer – pleaded guilty to assault after punching a CBC producer in the face, a crime for which he was granted an “absolute discharge.”

In an award-winning article Paul MacNeil published in “Grassroots Editor” by the International Society of Weekly Newspaper Editors titled, “Are Gordon Campbell’s Robes Tainted?” he begins with some pretty strong words:

“The Appointment of Gordon Campbell to the PEI Supreme Court is a mockery to the justice system he now serves.”

You should read the entire article, but here’s an excerpt to give you the guts of the story:

MacNeil Article on Gordon Campell

What really makes a mockery of the justice system is Judge Campbell’s 172 page ruling last week against Capital Markets Technology (CMT) dismissing their lawsuit. I was shocked to see how blatantly obvious Campbell’s bias against CMT was in his reasons for dismissing CMT’s action. Campbell’s decision appears to have been written with one aim in mind: to protect the named defendants in the lawsuit, especially the former Liberal Premier Robert Ghiz.

I’ll provide just a couple of examples of Campbell’s flawed reasoning in this article:

  1. GHIZ’S ORDERED DESTRUCTION OF GOVERNMENT RECORDS:

Campbell’s total acceptance of Ghiz’s “sworn testimony” about authorizing the deletion of all his chief-of-staff’s records without first copying them as required by law is laughable.

The normal policy after people leave government is to copy or somehow “back up” all government records before asking ITSS to delete the electronic files and accounts.  The head of ITSS told members of the Public Accounts Committee that if the person doing the work had known the records had not been backed-up as required by the Public Archives and Records Act, ITSS would not have deleted them. The law completely forbids the wholesale deletion of important government records, but Campbell falsely declares that Ghiz followed standard procedure.

If you want a full explanation for why Ghiz shouldn’t be excused for ordering the destruction of government records read the Brief I submitted to Judge Orr in 2018, and you’ll see how wrong Judge Campbell is to say that what Ghiz did was done in the course of “normal business”.

2.  CMT’s INVOLVEMENT IN E-GAMING AND THE LOYALTY CARD PROGRAM

Note: This is a pretty long story in itself, but it ends with Judge Campbell throwing the Auditor General under the bus by discrediting the findings of her E-gaming report, so bare with me.

In CMT’s Statement of Claim, Paragraph 127 we read:

127.  In October of 2011, the Loyalty/VIP Program was given approval by the Department of Tourism and Culture and representatives of CMT created a survey to determine what local business operators would be looking for in such a program.

The government’s lawyer, Jonathan Coady responded in paragraph 32 of his Statement of Defence claiming government had “no knowledge” of any Loyalty Card Program.

I published an October 20, 2018 article titled “Government Amnesia and the Loyalty Card Program” after receiving Loyalty Card documents through an Access to information request, proving Coady’s claim false. Those documents were subsequently made public and entered into the CMT court record.  Judge Campbell nowhere mentions that those records prove that Coady’s claim that government had “no knowledge” of the Loyalty Card Program is completely false.

Campbell then mistakenly dismisses the entire issue of CMT’s involvement in the Loyalty Card Program by concluding that CMT had nothing to do with the Loyalty Card Program, only Simplex. Yet, the Auditor General confirmed CMT’s involvement in the Loyalty Card Program in many sections of her report, including section 4.3:

4.3 In May 2011, the former Deputy Minister of Tourism [Melissa MacEachern] contacted the Vice President of Business Development [Paul Maines] regarding the establishment of a loyalty card program for PEI. The work on the loyalty card overlapped the E-gaming initiative and involved both Capital Markets Technologies and Simplex.

And in section 4.6 the AG further states that: “These two companies [CMT and Simplex] worked together to assist government in the development of the Loyalty Card Program.” 

And in section 4.4 she provides additional details about CMT’s lead role in the project: TestThat local consultant mentioned was Eddie Francis, who was hired by CMT and took direction from Paul Maines. All the communication from the PEI government was with CMT in those 207 pages before Judge Campbell, and an email from the Deputy Minister (Melissa MacEachern) to CMT employee Eddie Francis confirming that the Loyalty Card Project “was a go” was also in front of Judge Campbell. If CMT wasn’t involved in the Loyalty Card Program, then how does Campbell explain that email? Eddie Francis worked for CMT, not Simplex.

Campbell completely fails to acknowledge the fact that CMT had exclusive North American rights to the Simplex Financial Transaction Platform and Simplex was CMT’s “technology partner,” as the Auditor General confirms in section 6.15 of her report.

Attempts to establish Simplex’s financial transaction platform in PEI were for both the e-gaming and loyalty card programs – and “overlapped” as the AG puts it – because both those initiatives would be with CMT if either were to go forward. That’s why the government negotiated the MOU for the establishment of the Financial Transaction Platform with CMT, not Simplex.

So, despite overwhelming evidence to the contrary from both the documentation and the Auditor General’s report, Campbell nonetheless makes the following outrageous claim [764 was a 100%-owned subsidiary of CMT]:

Not involved in Claim

Here’s how the AG describes CMT’s ongoing business relationship with the PEI government:cmt

Throwing the Auditor General under the bus probably wasn’t the smartest strategy for Judge Campbell: her fact-finding mission uncovered 10,000 e-gaming documents, even though she was denied access to many more, and many others were destroyed.

But here’s the thing: only a small portion of the 10,000 records were produced for Court, to say nothing of the thousands more the AG couldn’t access – and they continue to be withheld from CMT’s lawyer.

Perhaps if all those documents were produced – notwithstanding the thousands more that have been destroyed or have mysteriously “gone missing” – we might finally begin to see a more complete and truer story about what happened with the secretive and corrupt e-gaming fiasco.

A Two-fold Cover-up

The PEI government and its legal counsel (Stewart-McKelvey) have worked diligently over the past year to keep the most important documentation about what really happened with e-gaming from being entered into the court record for consideration by Judge Campbell in his decision.

Brad Mix – who was then (and still is) the Director of Business Attraction with Innovation PEI, and was heavily involved with CMT – had two years of his records mysteriously go missing (Mix believes a phone upgrade somehow wiped select years of files off the government server) during the key e-gaming period (2010-2012), and government was aware that they were missing even before the court case began.  That information was not disclosed, in violation of the Rules of Court.

When I asked for Brad Mix records in October, 2018 I wasn’t told they were missing, I was led to believe there never were any records after months of waiting. It was only much later (July, 2019) that it was discovered by the Information Commissioner that the government knew since 2015 that two years of Brad Mix’s records (during the period when Mix was heavily involved in e-gaming) were gone, and government knew that fact since at least early 2015.

In addition, hundreds of new e-gaming records identified through Access to Information requests continue to be illegally withheld by the government.

A cover-up has so far been achieved to some extent at least in two ways: (a) government failed to disclose relevant and material e-gaming documents and information about documents to the court; and, (b) government refused to release e-gaming records in compliance with the FOIPP Act in time to be considered in the lawsuit. 

The government is currently refusing to release Access records in accordance with the FOIPP Act with a number of e-gaming Access Requests, and there are at least four reviews of such requests with the Information Commissioner on the never-before used grounds in section 9(2) of the FOIPP Act, which amount to an unjustified refusal to release records: e.g., there are no legal grounds to withhold the documents – and the government isn’t arguing there are any grounds – government just won’t release the records.

But how does this government cover-up involve Judge Campbell?

Judge Campbell was repeatedly alerted to the fact that the Defendants to the initial action were refusing to produce thousands of e-gaming records by CMT’s counsel, John McDonald.  I sat through 3 of the 4 days of the Motion Hearing in April and heard first-hand how frustrated CMT’s counsel was that Jonathan Coady wouldn’t produce the government documents which MacDonald had identified as likely being material and relevant to the case.

MacDonald asked the Judge to accept some records that had come from Access Requests, explaining that his plan “B” was to get access to at least some of those undisclosed e-gaming records through a number of targeted Access Requests which had already been submitted many months earlier by Maines, but government was not releasing those documents despite a legal requirement to do so, so MacDonald was left to argue that to put his “best foot forward” he needed access to the records. Campbell wasn’t swayed.

In response, Campbell ruled that he would not receive or consider any new evidence or documentation. Ironically, just days after releasing his ruling, a number of those key Access documents were released by government, and over a thousand more are yet to be released.

I expect the Notice of Appeal which CMT has promised to file soon will contain a very long list of inaccurate claims, biased and selected reasoning, cherry-picking facts, and countless instances where important information relevant to the issues and arguments in Campbell’s ruling is completely ignored.

Campbell was a “case management” judge charged with moving the action along to some conclusion. Instead, he has failed to ensure a just hearing for CMT which indeed makes a mockery of our justice system.

If the Appeal Court doesn’t overturn Campbell’s decision and allow this matter to go to trial, then I’ll be satisfied that our judicial system in PEI is corrupt from top to bottom, inside and out.

 

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5 Responses to Judge Campbell’s Flawed E-gaming Ruling throws Auditor General Under the Bus

  1. David Griffin says:

    The wheels of Justice move slow. Mr Maines has his legal right to an appeal. We will wait and see the outcome.

  2. Barb MacFarlane says:

    What a shame that our justice system has come to this. Shame!

  3. fromawaysite says:

    Kevin, Thank you for all your hard work . From a young child raised in a small farming town by hard working parents , my dad a vet and a mother who left school in grade 8 to take care of her brother and three sisters during the depression years who later on would return to school earning a degree at age 43 the seeds of hard work reaps rewards and the respect of Law n Order , Right n Wrong became the foundation in the civil society in my life and Canada. Sadly we are witnessing those values torn asunder under the Law , even what is more disturbing that it’s out in the open now for those that have their eyes open. Quote ” It has converted plunder into a right, in order to protect plunder. And it has converted lawful defence into a crime, in order to punish lawful defence .” Unquote Frederic Bastiat 1800-1849.

  4. William A Burden says:

    The mere fact that a judge (lowercase used out of disrespect), with such a LIberal Party pedigree can even rule on this case, is overtly suspect. People like to point the finger south of the border – this action proves how corrupt our system of justice is and has become, which comes as no real surprise. Thank you Kevin for shedding light on corruption in our Province as more and more people become aware.

  5. Karl Proude says:

    Still I wonder what Brother Robert Campbell is thinking as he runs for the Federal PC Party in Charlottetown. Somedays I just can,t confirm that I am A ProudeIslander

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