THE KING GOVERNMENT’S RESPONSE TO CMT’S APPEAL

All the Kings Horses Graphic

PREAMBLE

If you’ve been following this 25-part series on e-gaming, the CMT Securities Investigation, CMT’s lawsuit, and Judge Campbell’s September 25, 2019 decision to dismiss all claims by CMT against all defendants, then you’ll recall from my last episode (#22) that the King government was facing an important January 6, 2020 deadline to file a Response with the PEI Court of Appeal.

I have been receiving lots of inquiries about what happened on the 6th (Monday) – since, once again, sadly, there’s been no mention of any PEI government filing by any Island media. So, I thought I’d provide an update on that, as well as on a number of other aspects of my ongoing investigation.

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.

In this article I’ll provide updates on the following:

    1. The King Government’s Filing in the PEI Court of Appeal
    2. The Status of Several of my FOIP Document Requests
    3. What’s Remaining in my 25-part series: “Truth and No Consequences”
    4. My new 25-part Series: “All the King’s Horses: Then and Now”, and
    5. A Crowd-Sourcing Plan to Improve the Research

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  1. The King Government’s Filing in the PEI Court of Appeal

If I sue you, I’m the “Plaintiff” because I’m filing a “complaint” against you, and both words come from the same root Latin word “plangere” meaning “to strike, beat one’s breast, or lament.” I guess that’s why lawsuits can be pretty painful.

You disagree with my complaint and deny that you caused me any loss or damage and then mount a defense, so you’re the “Defendant”.

If the Judge throws out my case and I appeal, I now become the “Appellant” the one appealing the first Judge’s decision. You’re no longer defending your case – you won – but rather, the Judge’s ruling that said you won. You don’t file a defense to any new claims (they’re not allowed); you file a Response to the Appellant’s claims that the Judge erred in his or her judgment, so you’re now referred to as the “Respondent.” The Respondent is essentially “defending” the judge’s decision, arguing that he or she made no errors in law.

So you can see how this filing was the e-gaming “watershed moment” for Premier King and his Cabinet. It was a “pick-a-side” moment when Premier King had to decide whether he was going to: (1) marry himself to the same Liberal position presented by Counsel Coady to Judge Campbell or (2) take a stand in support of the PC Party position on the countless issues on which Campbell’s ruling erred, and stop refusing to produce scores of materially-relevant documents.

How is the Premier going to explain himself? So far, he hasn’t had to say anything. No one has asked a single question. Neither the Opposition Parties nor Media. In two full sittings of the Legislative Assembly. Not a single question.

Sometimes (not often) I dream that a reporter – or Opposition member – either mustered up the courage to ask or blurt out in “naivete,” like the little boy in the Emperor’s New Clothes, a question to Premier King about: (1) the e-gaming Court costs Island taxpayers are covering, or (2) missing government records or (3) why most of the same people the PCs demanded be ousted from positions of power for all their wrongdoings on e-gaming are still in government? and then I see an ominous pale descend on the Premier’s face, and, shuddering, and ever so slowly, he nervously and quietly says: “Unfortunately, since the matter is before the Courts….” and I wake up screaming with night sweats. Then I realize it was only a dream and tell myself: “deep breaths, no one’s going to ask the Premier anything that could prompt those words, and even if by some miracle someone did, well, that tired-old line isn’t going to cut it this time around.” I can usually calm myself in a few minutes and fall back asleep (But seriously, I’m really not sure I could survive him saying those words if asked a question in real life).

The next couple of months are going to reveal a lot more – but this article is to provide a 5000 ft. view of what’s ahead from now until the Hearing, as well as some additional background information. Things like how the case is structured in this action, e.g., not all Respondents have the same lawyers.

There are currently 13 “Respondents” in the PEI Court of Appeal hearing coming up in May 2020, but there are four “pairs” of lawyers/Respondents, each of which filed a separate response to CMT’s Appeal. Three filed late last week, and Jonathan Coady Q.C., filed this past Monday.

Jonathan Coady is counsel for the following Respondents:

Government of Prince Edward Island, (1) Wes Sheridan, (2) Steve MacLean, (2) Allan Campbell, (4) Chris LeClair, (5) Brad Mix, (6) Cheryl Paynter, (7) Melissa MacEachern, (8) Robert Ghiz, and (9) Neil Stewart.

The other three sets of “lawyers/defendants” are:

Gavin J. Tighe and Alexander Melfi – Lawyers for the Respondents, (10) William Dow and (11) Tracey Cutcliffe

R. Leigh Youd – Lawyer for the Respondent, (12) Gary Scales

Greg Temelini – Lawyer for the Respondent, (13) Steven Dowling

I have given the four factums a quick scan – more like a speed read – since I’m currently concentrating my efforts on finishing my first 25-part series. However, this much can be said from the outset: The King government now owns a scandal. The cover-up that the PC Party railed against the Liberals almost daily for first creating (Ghiz) and then covering-up and refusing to address (MacLauchlan) is now officially the legal property of the PC government. Only now, as time marches on, the “corruption and coverup” factor has spiked significantly.

The King government’s wholescale adoption of all the false claims made previously by the Liberals (many of which are now proven false with new documents from FOIPs) have, unbelievably, reappeared in the King/Coady Appeal Response. That, combined with the “avoidance” of countless issues that were previously at the top of the PC Party’s agenda and 2019 election platform will guarantee that the King government’s Appeal Response will signal the beginning of what will in time become known as the most blatant and all-encompassing “about-face” any government in Prince Edward Island has ever undertaken. I’ll explain why.

Flip FlopWhat’s happening here is not a “flip-flop” on one issue, but rather, a core betrayal on a global scale, something comprising so many individual “flip flops” that the only way to properly express that visually is to imagine a surprise announcement from the King government that his government was about to launch PEI’s very first “Flip-Flop Shops” franchise: if the franchise is the scandal, the items on the walls and racks would fairly represent the number of points, facts and positions experiencing a “flip flop”.

Flip Flop FranchiseApparently, all you need to get a Flip Flop Shops Franchise license is $100k. When Cheryl Paynter, Neil Stewart, David Arsenault, and Wes Sheridan needed $100k to pay off an old debt with McInnes Cooper [for work allegedly done AFTER the government canceled the e-gaming project] all that was required was an email saying “…send 100k for a future economic development project” and the grant was issued. So coming up with a Flip Flop Shops franchise fee shouldn’t actually be a problem for them. But I digress.

There are many more documents that the King government is continuing to withhold in additional FOIP requests. I know from Maine’s Affidavit filing (where he listed all those pages of information about different FOIP delays and Court Orders and Schedules for Release of those documents in Exhibits) that he has over a 1,000 pages that he’s still waiting to receive. It will be interesting to see if the King government complies with those Court Orders. As of this week, the King government is now in another “deemed refusal” position with one of my requests, but I’m going to give the government a little more time on that one.

I have a number of other FOIPs in the works which I haven’t provided information about, so I want to give you a summary overview of those active files so you’ll have some sense of what’s coming down the road.

Coady’s Factum not only completely denies just about everything the PC Party ever previously claimed they believed about e-gaming – which will be explained issue-by-issue in the new series – he also filed a separate motion asking the Appeal Court not to accept and consider Maines’ Affidavit and all those new FOIP documents!

Fresh evidence that Coady served CMT’s lawyer as a second Affidavit of Documents days before Judge Campbell’s ruling – but not the Court nor Campbell, as required by the Rules of Court, is neither included nor mentioned in his Response: those two documents were about Laslop (that add substantial weight to the documents that the PC Party was already satisfied were sufficient proof of a breach of the MOU).

Nor is there any inclusion nor mention of the other two documents in that second Affidavit of Documents, records withheld from Campbell that completely refute the conclusion he drew from the sworn claims of Wes Sheridan that he (Sheridan) didn’t have any further communications with Laslop after mid-September, 2012.

In fact, Coady is fighting to keep his own sworn supplementary Affidavit of Documents from the Appeal Judge’s consideration.

The first thing you learn reading laws is the fundamental distinction between “may” and “shall”. The meanings are obvious: if it says you “may” you have discretion; if it says you “shall” you have no choice, you must do what it says. Look for the word “shall” in the following section of PEI’s Rules of Court and ask yourself if there’s any confusion about whether Jonathan Coady should have produced (and given “consent” to submit the FOIP documents Maines had already obtained):

Rules of Court

The Coady/King Appeal Court Response is clearly not about truth and justice. It’s all about avoidance, misdirection, and relying on technical, legal ways to prevent the truth from coming out at the Appeal to serve justice.

In Episode #22 I pondered what position Jonathan Coady could conceivably take in his Response and came up with two possibilities: either he would (1) say he didn’t receive documents and information that he should have filed, thereby effectively throwing his client (PEI government and Defendants/Respondents) under the bus, or (2) blame CMT for not doing more to force him to produce materially-relevant documents that Coady was obligated to produce on his own. I know. It doesn’t really make sense, but that the option Coady chose to pursue in his “…we’re in too deep to go back….keep digging!” strategy.

So just to be clear, the King government’s Response filed Monday – in its entirety – is the post-election PC “antimatter” to the pre-election “matter” giving substance to the PC Platform. I honestly don’t know if it’s fact or fiction, but I seem to recall that the deadliest of all explosions happen when uncontained anti-matter comes in contact with matter. Brace yourselves!

2. The Status of Several of My FOIP Document Requests

It’s a constant struggle (and a lot of work) to get information and documents from the PEI government. I’ve been doing this investigative research for many years, and I’m sorry to have to report that it’s never been harder than since the King government has come into power. Here is a synopsis of the status of my active FOIP files and Information Commissioner reviews:

Access Request EGTC 2018-287 [OPIC # FI-2019-271]

This is the Brad Mix Missing Records Review with the Information Commissioner. This is a big one. I filed for records in October 2018 and began the review with the Commissioner’s office in January 2019. Since then, four of Paul Maine’s FOIPs that also led to reviews with the Information Commissioner have been “joined” to my initial review, and Ms. Rose is going to issue a Joint-Order sometime before June 2020.

The final step in the process is for the Public Body (King government – in this instance, the Deputy Minister of Economic Growth, Tourism, and Culture, Erin McGrath-Gaudet) to make a final submission to Ms. Rose by January 20, 2020. She had provided her with my submissions on the file :

Letter to Erin from Karen on 271, DecI’ll eventually be provided a copy of the Deputy Minister’s final submission, so that should be interesting.

Access Request EGTC 2019-199 [OIPC Review # FI-19-320]

On August 26, 2019, I submitted a request for:

MM

On October 25, 2019, I was informed that that information and documents were being withheld, and others were being sent to 3rd Parties for consultations (44 pages).

On November 1, 2019, I submitted a request to the Information Commissioner for a review of this FOIP on the following grounds:

199 review request

On November 26, 2019, I received a letter from the Public Body with the following news:

44

On December 19, 2019, the Information wrote to Deputy Minister Erin McGrath-Gaudet with a request to make submissions on the file, providing additional information about the search undertaken, and legal arguments for withholding information by January 24, 2020.

Access Request EGTC 2019-202 [OIPC Review # FI-19-312]

This request submitted on August 29, 2019, asked for the following:

Norman

On September 27, 2019, I received a letter indicating that the Department needed an extension of time to respond, but then on October 7, 2019, I received a letter from Deputy Minister Dan Campbell saying the search had “failed to retrieve any records responsive to your request”:

October 7

I already had a few documents from other FOIP requests that were “responsive” to this request and should have been provided to me, so I followed the same process I had embarked upon with the Brad Mix records and in a letter to the Privacy Commissioner sent October 10, 2019, asked that she investigates why these records are, apparently, no longer in the government’s possession.

The Commissioner opened a file on October 15. That same day she sent a letter to the King government with the following information:

202

I then received a letter from the OIPC saying there would be a further delay:
“Good afternoon, Dr. Arsenault.

Please be advised that the solicitor who usually drafts the submissions in relation to the above-referenced review is unexpectedly out of the office for the next couple of weeks.

The Commissioner has granted an extension to the Public Body to provide submissions to December 20, 2019. The submissions were originally due on November 29, 2019.”

Normally I would have received a copy of the Public Body’s response to the Commissioner by now; however, knowing how busy the people in that Office are at the moment, I’m not surprised I haven’t. Doing this summary has reminded me to pop an email to ask for a status update on this important file.

Access Request EGTC 2019-287

I filed this review asking for two things: (1) Board Meeting minutes for Innovation PEI for a specified time period; and (2) communications between the CEO of Innovation PEI at the time, Cheryl Paynter, and the members of the Board that make mention of the MOU and/or Trinity Bay (CMT/FMT). I wrote to the Information Commissioner on January 8 providing the following information:

As much as I hate to add anything to your workload, I received a response on EGTC 2019-287 indicating there were no responsive Records to my FOI request. I asked for the board minutes for Innovation PEI for a specified time period and was informed that the search found no records, but surely they must keep minutes of their meetings.
I’m not challenging the Public Body’s claim that there were no records related to communication between the Board members and Cheryl Paynter; however, my request for board minutes was totally separate from that – as is evidenced by the “Period” after the first four words: “Innovation PEI Board Minutes.” I would, therefore, ask for any board minutes and related preparatory documents.

The Commissioner responded the following day:

“I contacted APSO, who advise that while board minutes do exist, they were reviewed and found not to contain reference to the MOU referenced in your request. Based on the wording of your request, and your email, it sounds as though APSO may have misunderstood your intention with that part of your request.”

The Commissioner suggested I speak with the APSO worker handling the file for the Department. After a lengthy phone conversation with the APSO worker about the “meaning of the words” in my initial request, I was given one and only one option to get access to the Board Minutes: file a new request, which I’ve done.

There is likely important information in those minutes about what was said about the addition of “financial services” as a target sector for Innovation PEI recruitment during that period. We know from the Auditor General that proper authorization for the MOU wasn’t obtained; this request has now confirmed that there was NO communication between the CEO and Board members that a MOU was even in place!

Access Request 2019-254 EGTC

In this FOIP I filed on November 1, 2019, I requested:

“All records in all formats (electronic, paper, etc.) either received from Brad Mix or sent to Brad Mix by John Eden from January 1, 2011, to June 15, 2011.”

I received acknowledgment of receipt of my request on November 7, 2019, informing me that I could expect a response to my request by December 1, 2019, or sooner. I received a letter on November 29, 2019, informing me that the Department needed an “extension” indicating that consultations with 3rd Parties would be required and that “…a response to your request will be ready no later than December 31, 2019. It wasn’t.

On January 6, 2020, I sent the following email message to the APSO worker on this file:

“Can you kindly update me on the status of this FOIP (2019-254)? Your last communication on this file indicated that I would receive a response before December 31, 2019.”

I received a response on January 10, 2020, and was informed that the Department would need to undertake consultations – something that was supposed to have already happened – and she is now promising to provide me with a “final decision” on disclosure no later than February 10, 2020. This means that the Department is now in contravention of the law on this request and have been deemed to be refusing me these records.

The one encouraging thing in this particular FOIP process is that in the back-and-forth communication I learned that there are 113 pages of records. This is a bit of a surprise. Paul Maines had previously asked for essentially the same records for the same time period and was told that “no records exist”!

Access Request EGTC 2019-278

In early December 2019, I filed the following request with the Premier’s Office:
December 3, 2019.JPG

I was informed that I would receive a response to this request by January 23, 2020, or sooner.

Access Request EGTC 2019-299

On December 19, 2019, I submitted a request for the following records:

“All records in all formats (paper, email, text message, PINS, BBM, Fax) sent by Wes Sheridan to Chris LeClair, or received by Wes Sheridan from Chris LeClair, as well as records cc’d to Chris LeClair or mention Chris LeClair, Paul Maines, or Keith Laslop from September 1, 2011, to March 31, 2013.”

I received a response dated December 23, 2019, indicating that I could expect a response by January 18, 2020, or sooner.

Access Request EGTC 2019-300

On December 19, 2019, I submitted a request for:

All records in all formats (paper, email, electronic documents, BBMs, Text Messages, Faxes) of Neil Stewart that he either sent to or received from, Ed (Edward) Curran that make mention of either “Paul Maines” or “Steven Dowling” from July 1, 2012, to December 1, 2012.

I received a response dated December 20, 2019, informing me that I would receive a further response to the request by January 18, 2020.

In a more recent communication from the Information Commissioner, I was informed that her office is currently preparing a schedule on when Orders will be released, but that all Orders would be issued by June 2020.

3. What’s left in my 25-part series: “Truth and No Consequences”?

The main reason I’m posting this article rather than episode #23 is that the work I’m currently doing on this entire file is substantial, with the final three episodes requiring a couple of weeks of work.

Shane MacEachern 2
Shane MacEachern

Episode #23: Shane MacEachern: the “Broker of Record”. This issue aims to provide a “network” chart showing the “connections” between all the 36 investors. The aim here is to show how the “insider” information by a Deputy Minister on an “off the shelf” investment deal was an “opportunity” seized upon by a relatively tight-knit group of wealthy Islanders and their family and friends. A name that has yet to be mentioned but in passing – Shane MacEachern – will figure prominently in this episode.

I believe this episode is especially important for the CMT lawsuit because it not only proves that CMT had asked MacEachern to be the “Broker of Record,” but provides concrete evidence that claims by Paul Maines that he never solicited investments – the allegation that prompted the fatal PEI Securities Investigation by Steve Dowling in September 2012 – make perfect sense.

This episode will also reveal the basis for Campbell’s conclusion – stated emphatically – that Maines solicited investments, explaining how that so-called “direct evidence” (sworn statements in affidavits by PEI defendants) are baseless: not a single shred of actual evidence is provided to justify this incredibly serious conclusion. Lots of work left on this one!

Episode #24 is perhaps the most challenging of the entire series in that it attempts to provide arguments and evidence showing not only more of what happened behind the scenes during that fateful period when CMT/FMT was derailed from an imminent agreement with Innovation PEI to establish a financial transaction platform in partnership with the PEI government to build a “near-shore” financial services centre in PEI. It revisits those amazing series of “coincidences” surrounding the same day, September 6, 2012, when everyone involved believed the MOU was due to expire.

Episode #25 will be more of a “list” of all the findings from the 25-part series than an actual article. The focus will be on those conclusions that are materially relevant to the CMT now before the Courts.

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

Unlike the first 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; (3) direct video or print material will be provided 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); and finally, (4) direct quotations from the King government’s Response to CMT’s appeal Counsel Coady just filed, showing the PC government’s position on the very same issue NOW.

A Guide to Understanding the Graphic for This New Series

My graphic for this 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?
Wikipedia notes that Katherine Elwes Thomas in 1930 put forth a theory, later adopted by Robert Ripley, that Humpty Dumpty was based on King Richard III of England, who apparently was a hunchback.

The four unhappy and pretty worried-looking men in the picture 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, of course, 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 suddenly left standing around powerless and confused, able to do nothing but gaze upon their shattered dreams of a life in Cabinet for years to come, trying to understand how all their good intentions could have gone off the rails so badly 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 the story is that whenever politicians promise a stable government, we need to ask what kind of “stable” they’re talking about.

Notice the horse who’s been the stable stallion for many years – the guy who helped to create the mess (Dow) is smiling. The horse on the left, however (Coady) is not smiling. Coady, who recently crowned Lawyer of the Year and awarded the Queens Counsel designation, is likely pretty worried that his clean-up efforts and strategic legal decisions will have “consequences” that will not be pleasant.

But it was Humpty Dumpty’s dialogue with Alice on the meaning of certain words in “Through the Looking Glass” that really grabbed my attention and inspired the image. This very same citation actually became a popular citation 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).[27]:

“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.”

5. A Crowd-Sourcing Plan to Help Improve the Research

Investigative research is all about making connections to reveal the meaning of the events those facts are connected to, or understand the context of what you may “know” happened, but not “why” it happened, or “who” made it happen, or whatever. Making the right connections reveals new insights, which in turn assists in making further, and more targeted, discoveries.

Not many of us are inclined to start a 5,000 piece puzzle of an ocean scene with far too much calm blue water – it’s just too daunting a task to take on. But if your family was anything like mine, after one or two people worked for days to get the thing mostly together, leaving just a few hundred pieces, everyone walking by wanted to pull up a chair and stick in a few pieces before it was finished. So why not pull up a chair and see what we can figure out together to finish this investigative e-gaming puzzle?

Anyone with a conscience can do good research for justice with just three things: (1) time (2) the interest and willingness to use that time to ponder relevant source material; and, of course, (3) source material. It’s getting to the stage where you have easy electronic searchable access to a comprehensive body of source material that’s the really big challenge.

I’m currently in the process of putting together a collection of material I’m dubbing The E-gaming Chronicles. I’m creating PDF files of all my research articles and then merging them chronologically into one document. It will be completely searchable, with links on almost every page to source documents I’ve uploaded to my secure website archive, most of which are also searchable.

You might remember one of a thousand details from a previous article, or connect something I write to something you learned elsewhere, and that gives you an insight or hunch, and you find yourself asking: “I wonder if…?” or “Wasn’t his name on those meeting minutes, and now he swears he was never at that meeting?….or whatever, and you’ll be able to search every instance of that name or keyword in all the research I’ve published and source documents with one search.

If you then discover documentary evidence of significance that your hunch was correct, and it’s something not already in any of the articles, then you can either: (a) send it as a news tip to the local media; (b) start your own blog; or (c) send your research finding to me so I can incorporate it into the 52 blog postings I’m planning to post before the Appeal Hearing in May: [I didn’t use the reference to the “deck of cards” earlier solely as a metaphor, but as an actual statement of my plans].

So I’m challenging you to give some thought to this “sleuthing-made-easy” initiative – that way, I can perhaps play something a tad more interesting than “solitary” with those 52 cards.

And who knows? If our collective research efforts go well, maybe, in the end, all those individuals who should be held accountable for wrongdoings – as well as all those individuals in government who should be held accountable for the promises they made to deal with, and end, coverups, and corruption – will be forced to cooperate in a publicly-broadcast game of 52-card pickup.

Summary

As you can see, there is a lot going on behind the scenes. My work plan for the next couple of weeks is (1) finish the first series [I hope to have Episode #23 published in several days]; then (2) compile and make the E-gaming Chronicles available for the community research outreach project; then, (3) begin the next series.

Your comments, feedback, and corrections (public or private) are always appreciated!

Please share these articles. More Islanders deserve access to information that so severely affects the nature of our democracy and the quality of our life in Prince Edward Island.

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