Citation:

HMTQ v. Pilarinos and Clark

Date:

20020829

 

2002 BCSC 1267

Docket:

CC001402

Registry:  Vancouver

IN THE SUPREME COURT OF BRITISH COLUMBIA

 

HER MAJESTY THE QUEEN

     

AGAINST

DIMITRIOS PILARINOS AND GLEN DAVID CLARK

     

 

 

REASONS FOR JUDGMENT

 

OF THE

 

HONOURABLE MADAM JUSTICE BENNETT

 

 

Counsel for the Crown

W. Smart, Q.C.,
J. Esson
& J. Austin-Olsen

 

Counsel for the Accused, Pilarinos

 

I. Donaldson, Q.C.
& D. Clements

Counsel for the Accused, Clark

D. Gibbons, Q.C.,
R. Fowler
& M. Nathanson

 

Date and Place of Trial:

September 10, 2001 to

June 28, 2002

 

Vancouver, BC

 

[1]            Glen David Clark is the former Premier of British Columbia.  Dimitrios Pilarinos is a former friend and neighbour of Mr. Clark.  They face charges of corruption arising from Mr. Pilarinos' failed attempt to obtain a licence to operate a casino from the government of British Columbia.

[2]            Mr. Pilarinos faces nine counts on the indictment and Mr. Clark faces two.  The counts are as follows:

COUNT 1:

 

DIMITRIOS PILARINOS, between December 1, 1997, and October 1, 1998, at or near Vancouver and Penticton and elsewhere in the Province of British Columbia, while having dealings with the Government of British Columbia relating to an application for a casino licence, gave to an official of the said Government, to wit, GLEN DAVID CLARK, Premier, President of the Executive Council and Member of the Legislative Assembly of the said Government, or to a member of the family of the said Clark, a reward, advantage or benefit, to wit, improvements to real property, as consideration for co-operation, assistance or the exercise of influence in connection with the granting of a casino licence, being a transaction of business with or a matter of business relating to the said Government, or a benefit that Her Majesty in right of the said Government is authorized or entitled to bestow, CONTRARY TO SECTION 121(1)(a) OF THE CRIMINAL CODE.

 

COUNT 2:

 

DIMITRIOS PILARINOS, between December 1, 1997, and October 1, 1998, at or near Vancouver and Penticton and elsewhere in the Province of British Columbia, while having dealings with the Government of British Columbia relating to an application for a casino licence, gave to a minister of the Government of British Columbia or an official of the said Government, to wit, GLEN DAVID CLARK, Premier, President of the Executive Council and Member of the Legislative Assembly of the said Government, a reward, advantage or benefit, to wit, improvements to real property, as consideration for co-operation, assistance or the exercise of influence in connection with the granting of a casino licence, being a transaction of business with or a matter of business relating to the said Government, or a benefit that Her Majesty in right of the said Government is authorized or entitled to bestow, CONTRARY TO SECTION 121(1)(e) OF THE CRIMINAL CODE.

 

COUNT 3:

 

DIMITRIOS PILARINOS, between April 1, 1997, and January 31, 1999, at or near Vancouver and elsewhere in the Province of British Columbia, offered to give to an official of the Government of British Columbia, to wit, GLEN DAVID CLARK, Premier, President of the Executive Council and Member of the Legislative Assembly of the said Government, a reward, advantage or benefit, being a 15-per-cent interest in or share in the proceeds of the operation of a licensed casino, as consideration for co-operation, assistance or the exercise of influence in connection with an application for a casino licence, being a transaction of business with or a matter of business relating to the said Government, or a benefit which Her Majesty in right of the said Government is authorized or entitled to bestow, CONTRARY TO SECTION 121(1)(a) OF THE CRIMINAL CODE.

 

COUNT 4:

 

DIMITRIOS PILARINOS, between April 1, 1997, and January 31, 1999, at or near Vancouver and elsewhere in the Province of British Columbia, while having dealings with the Government of British Columbia relating to an application for a casino licence, offered to give to a minister of the Government of British Columbia or an official of the said Government, to wit, GLEN DAVID CLARK, Premier, President of the Executive Council and Member of the Legislative Assembly of the said Government, a reward, advantage or benefit, being a 15-per-cent interest in or share in the proceeds of the operation of a licensed casino, as consideration for co-operation, assistance or the exercise of influence in connection with an application for a casino licence, being a transaction of business with or a matter of business relating to the said Government, or a benefit which Her Majesty in right of the said Government is authorized or entitled to bestow, CONTRARY TO SECTION 121(1)(e) OF THE CRIMINAL CODE.

 

COUNT 5:

 

DIMITRIOS PILARINOS, between December 1, 1997, and October 1, 1998, at or near Vancouver and Penticton and elsewhere in the Province of British Columbia, while having dealings with the Government of British Columbia in relation to an application for a casino licence, conferred a benefit with respect to those dealings, being improvements to real property, on an official of the said Government with which he was dealing, to wit, GLEN DAVID CLARK, Premier, President of the Executive Council and Member of the Legislative Assembly of the said Government, directly and through a member or members of the family of the said Glen David Clark, without the consent in writing of the head of the branch of Government with which he was dealing, CONTRARY TO SECTION 121(1)(b) OF THE CRIMINAL CODE.

 

COUNT 6:

 

DIMITRIOS PILARINOS, between April 1, 1997, and March 2, 1999, at or near Vancouver, Burnaby and elsewhere in the Province of British Columbia, having or pretending to have influence with the Government of British Columbia or with a minister or official of that Government, to wit, GLEN DAVID CLARK, Premier, President of the Executive Council and Member of the Legislative Assembly of the said Government, accepted a reward, advantage or benefit, to wit, a share in a company or the right to share in the proceeds of a proposed casino, as consideration for co-operation, assistance or the exercise of influence through the said Clark, in connection with an application for a casino licence, being a transaction of business with or a matter of business relating to the said Government, or a benefit that Her Majesty in right of the said Government is authorized or entitled to bestow, CONTRARY TO SECTION 121(1)(d) OF THE CRIMINAL CODE.

 

COUNT 7:

 

DIMITRIOS PILARINOS, between April 1, 1997, and March 2, 1999, at or near Vancouver, Burnaby, Victoria and elsewhere in the Province of British Columbia, for a fraudulent purpose, did conceal something, to wit, the participation of one PASCHOS KATANAS as legal or beneficial owner of shares in a company seeking a casino licence, or participant in the proceeds of the operation of a proposed casino, such thing being concealed from the Ministry of Employment and Investment of the said province in connection with an application made or pending for a licence to operate the said casino, CONTRARY TO SECTION 341 OF THE CRIMINAL CODE.

 

COUNT 8:

 

DIMITRIOS PILARINOS, between April 1, 1997, and March 2, 1999, at or near Vancouver, Burnaby, Victoria and elsewhere in the Province of British Columbia, with intent to defraud, omitted a material particular from a document, to wit, an application to the Ministry of Employment and Investment of the said province for a casino licence, such material particular being the fact that one PASCHOS KATANAS was a principal or partner in the proposed casino, or legal or beneficial owner of shares in the company seeking the said licence, CONTRARY TO SECTION 397(1)(b) of THE CRIMINAL CODE.

 

COUNT 9:

 

DIMITRIOS PILARINOS, between December 1, 1997, and March 5, 1999, at or near Vancouver, Penticton and elsewhere in the Province of British Columbia, did commit the offence of breach of trust in connection with the duties of the office of an official of the Government of British Columbia, to wit, GLEN DAVID CLARK, Premier, President of the Executive Council and Member of the Legislative Assembly, in relation to an application made to the said Government, by 545738 B.C. Ltd., a company in which DIMITRIOS PILARINOS held an interest, for a Government licence to operate a casino; and in particular:

 

      (a)   by providing benefits to Glen David Clark in relation to renovations done on Mr. Clark's Vancouver residence and his Penticton summer cottage while the application, by the said company in which Mr. Pilarinos held an interest, for a Government licence to operate a casino was under consideration by the Government; and

 

      (b)   requesting and/or encouraging Glen David Clark to render assistance with respect to the said company's casino application;

 

CONTRARY TO SECTION 122 OF THE CRIMINAL CODE.

 

COUNT 10:

 

GLEN DAVID CLARK, between December 1, 1997, and March 5, 1999, at or near Vancouver, Penticton, Victoria and elsewhere in the Province of British Columbia, did commit the offence of breach of trust in connection with the duties of his office as an official of the Government of British Columbia, to wit, Premier, President of the Executive Council and Member of the Legislative Assembly, in relation to an application made to the said Government by 545738 B.C. Ltd., a company in which DIMITRIOS PILARINOS held an interest, for a Government licence to operate a casino; and in particular:

 

      (a)   by accepting benefits from Dimitrios Pilarinos in relation to renovations done on his Vancouver residence and his Penticton summer cottage, while the said application was under consideration by the Government of British Columbia;

 

      (b)   by failing to inform the Minister of Employment and Investment that Dimitrios Pilarinos was doing, or had done, work on his Vancouver residence and Penticton summer cottage and that he had received benefits in relation to that work from Mr. Pilarinos;

 

      (c)   before, during, or after receiving the said benefits from Mr. Pilarinos, by assisting 545738 B.C. Ltd. and Mr. Pilarinos in various ways in advancing his casino licence application, including: disclosing to Mr. Pilarinos the official "scores" assigned to 545738 B.C. Ltd.'s application and that of its competitor and exerting influence, directly and/or indirectly, on the Minister of Employment and Investment, Michael Farnworth, to approve the application by 545738 B.C. Ltd. and to facilitate the said company in changing the location of its proposed charitable casino;

 

      (d)   after receiving the "Karmelita" fax in February 1999, by procuring or permitting the use of the influence of his office in order to protect his personal interests rather than those of the public, including: delegating to George Ford responsibilities with respect to the said fax without disclosing to him his true involvement in connection with the casino application by 545738 B.C. Ltd.; and

 

      (e)   after receiving the "Karmelita" fax in February 1999, by failing to ensure that the contents of the said fax were disclosed to the police or to the Ministry of the Attorney General or to GAIO or to Minister Farnworth or to those assisting the Government in dealing with the casino application by 545738 B.C. Ltd. and by acting contrary to the public interest in advising Mr. Pilarinos that one or more Greek "informants" were providing information to investigators concerning the casino application by the said company and thereby jeopardizing ongoing police and GAIO investigations.

 

and in so doing breached the statutory, expressed, implied or accepted rules, guidelines or terms of office applicable to him as Premier, President of the Executive Council and Member of the Legislative Assembly, including the oaths of office taken by him and the provisions of the Members Conflict of Interest Act, CONTRARY TO SECTION 122 OF THE CRIMINAL CODE.

 

COUNT 11:

 

GLEN DAVID CLARK, between December 1, 1997, and October 1, 1998, at or near Vancouver and Penticton and elsewhere in the Province of British Columbia, being an official of the Government of British Columbia, to wit, Premier, President of the Executive Council and Member of the Legislative Assembly of the said Government, accepted or agreed to accept directly or indirectly from a person having dealings in regard to an application for a casino licence with the said Government, to wit, DIMITRIOS PILARINOS, a reward, advantage or benefit for himself or through a member of his family, to wit, improvements to real property, without consent in writing of the head of the branch of the said Government of which he was an official, CONTRARY TO SECTION 121(1)(c) OF THE CRIMINAL CODE.

 

[3]            The Criminal Code provisions relating to the charges are as follows:

Section 121.(1) Frauds on the government

1)    Every one commits an offence who

            a)    directly or indirectly

 

                  (i)   gives, offers or agrees to give or offer to an official or to any member of his family, or to any one for the benefit of an official, or

 

(ii)  being an official, demands, accepts or offers or agrees to accept from any person for himself or another person,

 

a loan, reward, advantage or benefit of any kind as consideration for cooperation, assistance, exercise of influence or an act or omission in connection with

 

(iii)  the transaction of business with or any matter of business relating to the government, or

 

(iv)  a claim against Her Majesty or any benefit that Her Majesty is authorized or is entitled to bestow,

 

whether or not, in fact, the official is able to cooperate, render assistance, exercise influence or do or omit to do what is proposed, as the case may be;

 

(b)   having dealings of any kind with the government, pays a commission or reward to or confers an advantage or benefit of any kind on an employee or official of the government with which he deals, or to any member of his family, or to any one for the benefit of the employee or official, with respect to those dealings, unless he has the consent in writing of the head of the branch of government with which he deals, the proof of which lies on him;

 

(c)   being an official or employee of the government, demands, accepts or offers or agrees to accept from a person who has dealings with the government a commission, reward, advantage or benefit of any kind directly or indirectly, by himself or through a member of his family or through any one for his benefit, unless he has the consent in writing of the head of the branch of government that employs him or of which he is an official, the proof of which lies on him;

(d)   having or pretending to have influence with the government or with a minister of the government or an official, demands, accepts or offers or agrees to accept for himself or another person a reward, advantage or benefit of any kind as consideration for cooperation, assistance, exercise of influence or an act or omission in connection with

 

(i)   anything mentioned in subparagraph (a)(iii) or (iv), or

 

(ii)  the appointment of any person, including himself, to an office;

 

(e)   gives, offers or agrees to give or offer to a minister of the government or an official a reward, advantage or benefit of any kind as consideration for cooperation, assistance, exercise of influence or an act or omission in connection with

 

(i) anything mentioned in subparagraph (a)(iii) or (iv), or

 

(ii) the appointment of any person, including himself, to an office;

 

      Breach of trust by public officer

 

122.  Every official who, in connection with the duties of his office, commits fraud or a breach of trust is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years, whether or not the fraud or breach of trust would be an offence if it were committed in relation to a private person.

 

      Fraudulent concealment

 

341.  Every one who, for a fraudulent purpose, takes, obtains, removes or conceals anything is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.

 

      Falsification of books and documents

 

397.  (1) Every one who, with intent to defraud,

 

(a)   destroys, mutilates, alters, falsifies or makes a false entry in, or

 

(b)   omits a material particular from, or alters a material particular in, a book, paper, writing, valuable security or document is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.

 

[4]            Corruption of government employees and government officials is rampant in some parts of the world.  Fortunately, Canada has had few allegations of corruption at any government level.  No doubt this is due mainly to the honesty and relative prosperity of Canadians.  However, it is also due to the fact that the police in this country are free to investigate government corruption unfettered from interference by the state.  British Columbia’s legislated requirement of retaining a special prosecutor outside of the employ of the government further protects the ability of the authorities to investigate and proceed with appropriate charges without fear of reprisal from government.  Also, our corruption laws place a high standard of behaviour on government officials and employees, one that is not required of the general public.

[5]            Regardless of the outcome of this trial, our free and democratic society requires such allegations be investigated and a prosecution undertaken if there is evidence which meets the threshold required for charges to be laid.  Anything less would bring the administration of justice into disrepute.

Overview of the Facts

 

[6]            Mr. Clark and Mr. Pilarinos met as a result of their respective wives' participation in their local pre-school.  The families struck up a friendship and they, along with several other families in the neighbourhood, would meet several times a month for potluck dinners.

[7]            Their relationship was one of “good neighbours” and they did not socialize together outside of their circle of family friends.  At the time of the alleged offences, Mr. Clark and Mr. Pilarinos had only known each other for three or four years.  They had little in common except for the shared activities of their children. 

[8]            Mr. Clark was the Premier of the Province of British Columbia.  Mr. Pilarinos, at the time, was involved in the construction industry.

[9]            Mr. Pilarinos was also a friend of Steve Ng and Paschos Katanas (who is also referred to as Paskalis and Paskali).  Mr. Ng owned several hotels in the Lower Mainland, including the North Burnaby Inn and the Marble Arch Hotel.  Mr. Katanas operated the Lumbermen’s Social Club out of the North Burnaby Inn.  The Lumbermen’s Social Club ran an illegal gambling operation and Mr. Katanas had come into conflict with the Gaming Commission as a result. 

[10]        Mr. Pilarinos knew both Mr. Katanas and Mr. Ng, likely meeting when Mr. Pilarinos did some renovation work on the Lumbermen’s Social Club (as conceded in the argument of Mr. Pilarinos). 

[11]        In March 1997, the provincial government announced its intention to expand gaming in British Columbia and the creation of the Lotteries Advisory Committee (LAC).  A “Request for Proposals” (RFP) was distributed later that summer inviting proposals for destination casinos, charity casinos and bingo halls. 

[12]        In June 1997, 545738 B.C. Ltd. was incorporated.  This company was held by Steve Ng, Paschos Katanas and Dimitrios Pilarinos.  On October 21, 1997, 545738 B.C. Ltd. registered with the LAC under the RFP process indicating an interest in applying for a casino licence.  The application itself was long and detailed.  Appendix G of the application requested detailed personal information from the applicants, including information regarding any previous gambling experience.  A partially completed Appendix G in the name of Mr. Katanas was seized at his home.  It was dated October 25, 1997.

[13]        On October 30, 1997, Mr. Katanas was removed as a director of 545738 B.C. Ltd.  Mr. Pilarinos and Mr. Ng became the sole directors.  On November 24, 1997, the company submitted its application for a charity casino to be operated at the North Burnaby Inn.  The application was professionally prepared.  A large local law firm and an accountant represented 545738 B.C. Ltd.  The application was accompanied by fees of $18,000.00.

[14]        In spite of being removed as a director, the wiretap evidence showed that Mr. Katanas continued to be consulted about matters relating to the casino application.  He was also observed by police surveillance officers several times meeting with Mr. Ng and Mr. Pilarinos.  The Crown contends that Mr. Katanas was a silent partner in the casino operation but was removed from the application because of his previous difficulties with the Gaming Commission.  This allegation is the substance of Counts 7 and 8.

[15]        Local municipal government support (called “Host Local Government Support”) was mandatory before the provincial government would consider an application.  The proposed host municipality was required to indicate whether it supported gambling (or in some cases, increased gambling) in its community.  Once a municipal government supported gaming, it had no control over where a facility would be located, except within its ability to zone.

[16]        After some confusion, the City of Burnaby agreed to expand gambling in its community and accepted charity casinos and bingos.  It did not approve destination casinos.  However, Burnaby was strongly opposed to a casino located at the North Burnaby Inn.  The North Burnaby Inn location was not zoned for a casino and the City had no intention of changing its zoning.  This position was clearly communicated to the provincial government.   The City had already zoned a location on Halifax Street for a casino.  The owner of this location, Derrick Luu, was also applying for a casino licence in Burnaby.

[17]        All proposals had to be evaluated by the Gaming Audit Investigation Office (GAIO), an investigative body under the auspices of the Attorney General's Ministry whose task it was to investigate the suitability of proponents to operate gaming facilities.  GAIO performed a thorough investigation of all aspects of the application, including an investigation into the personal integrity of the applicants.  Only applicants who received GAIO approval could receive a licence. 

[18]        In January 1998, the assigned investigator of the North Burnaby Inn proposal, Mark Everitt, decided to postpone the investigation of the application because he considered it unlikely that the proposal would receive approval-in-principle from the provincial Cabinet. 

[19]        In the meantime, Glen Clark had a leak in his roof.  Mr. Clark was in Victoria and Mrs. Clark called Mr. Pilarinos to look at the leak because she was concerned that it might cause electrical problems.  The Clarks postponed repairing the roof because they wanted to renovate the upstairs of their home, which would require the installation of a new roof.  Thus, in the spring of 1997, Mr. Pilarinos was aware that the Clarks had a leaky roof and that they were considering a renovation.

[20]        Mr. Pilarinos went to an architect, Edward Palad, with the plans of the Clarks’ home and retained him to prepare designs for the renovation.  He did this, according to the Clarks, without their knowledge or permission.  There is no evidence of where Mr. Pilarinos obtained the plans.  It is possible he obtained them from City Hall.

[21]        Mr. Palad provided Mr. Pilarinos with the designs on December 10, 1997 and testified that it takes him about two weeks to prepare design plans.  Mr. Pilarinos therefore likely met with him around November 26 or 27, 1997.  Thus, Mr. Pilarinos was obtaining designs, unsolicited, for Mr. Clark, within days of the submission of his casino application on November 24, 1997.

[22]        On December 17, 1997, Mr. Pilarinos applied for a building permit for the renovations to the Clarks’ house.  The estimated value of the renovation on the building permit was $9,586.00.   He made this application without the knowledge of the Clarks.  Mr. Pilarinos arrived at the Clarks' house just before Christmas with an equivalency permit and advised them that they owed him money for this permit.  Mr. Clark gave Mr. Pilarinos a cheque for $310.00 on or around December 24, 1997.  Mr. Clark was unhappy about this, as it was an unexpected expenditure just around Christmas.

[23]        The Clarks had considered hiring Mrs. Clark’s cousin as the contractor for their renovation.  When they learned that he was not available, the Clarks decided to retain Mr. Pilarinos.  There was no written contract between them.  Mr. Clark testified he told Mr. Pilarinos he wanted everything above board.  He was concerned that the GST might not be paid as construction workers have a reputation for working for cash.

[24]        Mr. Clark wrote a cheque to Mr. Pilarinos on February 22, 1998 for $574.00 as reimbursement for the building permit.

[25]        The renovation occurred during three weeks in June 1998, commencing June 8, and was substantially completed by June 29.  Some finishing work was completed in July.  [Ex. 38 Tab 7].  The renovation consisted of adding a dormer to an upstairs bedroom, building a small deck off this bedroom, installing a gas fireplace, and moving a window.  A new floor and closets were installed and the roof was replaced.  It was a relatively small renovation.  Mrs. Clark was responsible for organizing and supervising the renovation since Mr. Clark was seldom home, except on weekends.

[26]        By mid-July, the Clarks had paid Mr. Pilarinos $8,000.  He told them he thought they owed an additional $2500-3000, but he did not have all of the outstanding bills.   The Clarks thought they should pay him more because the job took longer than anticipated.  They decided to give him a cheque for $5,000.00.  Dale Clark gave the cheque to Mrs. Pilarinos sometime between July 24-31, 1998.  Around August 5, 1998, Mr. Pilarinos went to Mr. Clark’s house, said the cheque was too much and produced his itemized bill for $11,200.00.  This amount did not include the bill of $400 for the design work, which Mr. Clark testified, he paid Mr. Pilarinos for in cash.  Mr. Pilarinos ripped up the cheque that had been given to him by Mrs. Clark.  After satisfying himself that Mr. Pilarinos felt he had been paid, Mr. Clark wrote Mr. Pilarinos a cheque for $3,200.00.  The difference between the two cheques was $1,800.00.  Mr. Pilarinos told Mr. Clark, “if you want to do anything, give me some chickens.  That’s what we do in Greece”.  Mr. Clark later gave Mr. Pilarinos a unique Inuit hunting knife. 

[27]        The Crown called two quantity surveyors to testify regarding the value of the renovation.   Their evidence was thoroughly and effectively challenged in cross-examination.  Mr. Sanft’s report was so replete with errors in calculations that I cannot give it any weight at all.  Mr. Stregger’s report was more helpful, especially the summary of invoices, which analyzed all of the receipts of the purchases made by Mr. Pilarinos or Mr. Clark from which the progress of the renovation could be tracked.  However, Mr. Stregger also made several errors. 

[28]        The renovation was done as economically as possible.  Mr. Clark helped install the floor and painted the house.  Sub-contractors did much of the work and their work and materials are accounted for with receipts.  I find that the cost of the renovation was $11,200.00 (rounded up) as noted by Mr. Pilarinos in his informal bill to Mr. Clark, save and except the architect's designs and Mr. Pilarinos' labour, neither of which were included in the bill.  The amount paid for the renovation by the Clarks was also $11,200.00.  There was no mark-up on any of the materials that could have accounted for Mr. Pilarinos' compensation, nor was there any contractor fee charged. Based on a “cost-plus” arrangement, Mr. Pilarinos did not receive payment for his work.  The renovation took approximately three weeks.  Mr. Pilarinos arranged for numerous sub-trades, including drywall, plumbing, gas fitting and electrical.  Mr. Pilarinos also worked on the job himself doing tear down, installing flooring and some carpentry.  Based on a fixed estimate, Mr. Pilarinos was overpaid, as the estimate was $10,000.00.  There was no direct evidence of what arrangements were made between Mr. Pilarinos and Mr. Clark, other than that Mr. Clark said he wanted to ensure that Mr. Pilarinos was compensated for his work. 

[29]        Mr. Clark acknowledged at trial that Mr. Pilarinos was not compensated for his work.  Mr. Clark said that when he looked at the bill, there was no payment for Mr. Pilarinos.  Mr. Clark said he pressed him on this, but Mr. Pilarinos was adamant that the bill reflected all that was owed and that he would not accept any more money.  Mr. Clark said it was not clear when he wrote the cheque for $3200 that Mr. Pilarinos was not paid for his labour.  Mr. Pilarinos was persistent and Mr. Clark eventually relented and accepted that $3200 was what he owed Mr. Pilarinos.

[30]        There is no direct evidence of how many hours Mr. Pilarinos worked on the project.  In cross-examination, Mr. Stregger, one of the quantity surveyors, agreed that an estimate of the hours Mr. Pilarinos worked could be in the range of 108 hours, which would be valued at approximately $2000.00.

[31]        If Mr. Pilarinos charged a percentage of the job as a contractor, the amount could range from $1,120.00 as a 10 per cent fee to $2,240.00 as a 20 per cent fee.  The sum of $1,800.00 is a 16 per cent fee.  Mr. Stregger used 15 per cent as the contractor’s mark-up.  I find that it is reasonable to value the work done by Mr. Pilarinos, not compensated by the Clarks, at $1,800.00.  The Clarks obviously intended to pay Mr. Pilarinos more than the estimated price for the job.  The evidence thus suggests that this was not a fixed price contract.

[32]        Meanwhile, the North Burnaby Inn casino application was proceeding through the government approval process.  The personal data (Appendix G) had been sent to GAIO, though, as noted, the application was not given immediate attention by GAIO, as it was not considered likely to receive Cabinet approval.

[33]        On February 18, 1998, Michael Farnworth was appointed Minister of Employment and Investment by Mr. Clark.  This was a promotion for Mr. Farnworth.  This Ministry included the Gaming Portfolio.  When he was appointed, Mr. Clark advised Mr. Farnworth that Mr. Farnworth, in essence, served at Mr. Clark’s pleasure.  Mr. Clark also mentioned to Mr. Farnworth that he had a friend who was applying for a casino licence.  Mr. Clark told Mr. Farnworth that he did not want to be involved in the decision-making process with respect to the casino applications.  It is after this date that Mr. Clark paid Mr. Pilarinos for the building permit.  The evidence is not sufficient to say with any certainty whether the Clarks had finally settled on Mr. Pilarinos for their renovation by the February 1998 meeting with Mr. Farnworth.

[34]        On April 10, 1998, the appointments to the Lotteries Advisory Committee lapsed and on April 28, 1998, the Gaming Policy Secretariat was created.  Mark MacKinnon was the Executive Director. 

[35]        The casino licence applications were thoroughly scrutinized by initially the Lotteries Advisory Committee and later the Gaming Policy Secretariat.  A system of independent evaluation was in place, designed by Robert Scarpelli from PriceWaterhouseCoopers Inc.  The applications received scores based on a number of different criteria.  Neither the Derrick Luu application nor the North Burnaby Inn application received a good score.  Out of a possible 190 points, the Luu application received 56 points and North Burnaby Inn application received 88 points. 

[36]        Once the scores were tabulated and a report on each application was prepared, the matter was submitted to the Minister, Mr. Farnworth.  He initially brought his recommendations to Cabinet and Cabinet would determine whether to grant approval-in-principle.  The approval-in-principle did not mean that the proponents were granted a licence, but it did mean that their application would continue through the process.  An applicant also had to receive approval from GAIO before a licence would be granted.  Once those hurdles were overcome, the applicant still had to negotiate an agreement with the Lottery Corporation.

[37]        A Cabinet meeting was held on May 6, 1998, during which several casino applications from northern British Columbia were granted approval-in-principle. The next Cabinet meeting was at the end of July.  Sometime in June, Mr. Farnworth met with Adrian Dix, who was Mr. Clark’s principal secretary, confidante and good friend.  Mr. Farnworth told Mr. Dix that Mr. Clark was a friend of one of the proponents.  Mr. Dix replied, “I hate friends of the Premier”.  Mr. Dix did not give evidence on this point, thus, although I accept this statement was made, it is not evidence of the truth of the contents.

[38]        Mr. Dix said he met with Mr. Clark on July 13, 1998.  Mr. Clark told him that one of the applicants, Mr. Pilarinos, was  a friend.  Mr. Clark told Mr. Dix to ensure he was kept out of the process surrounding Mr. Pilarinos’ application.  Mr. Dix said he spoke to Mr. Farnworth on July 17, 1998 and they agreed that Mr. Clark would play no role in the decision with respect to Mr. Pilarinos’ application.  Mr. Farnworth did not recall this part of the conversation, but I am satisfied that it occurred as it is consistent with the conversation Mr. Clark had with Mr. Farnworth in February.  I find that this was the same meeting referred to by Mr. Farnworth, although their recollections differ. 

[39]        In September or October, Mr. Dix typed up his notes, backdated the typed memo to July 17, 1998 and endorsed it with an official stamp.

[40]        Mr. Farnworth had reviewed the Lower Mainland applications and had decided not to recommend the North Burnaby Inn proposal.  In his view, it was not a very good application.  It had troubles in terms of zoning from the City of Burnaby, and he felt that the political optics were not good given Mr. Pilarinos was a friend of Mr. Clark.

[41]        It is interesting to note that Peter Clark, who was the person in charge of the LAC at the outset, testified that there were other applicants who had close connections with the government.  He said there would be very few proponents if they had cut out all of the applicants who knew people in government.

[42]        Mr. Farnworth was not aware that the North Burnaby Inn application had not been processed through GAIO.  Mr. Farnworth told Mr. Dix that he was only recommending a casino in New Westminster and a bingo in Burnaby.

[43]        Few Lower Mainland casino applications were going to be recommended by Mr. Farnworth.  The Tsawwassen Indian Band had a good proposal, but had too many difficulties with the adjacent community, Delta.  Similarly, the Musqueam Band had difficulties with Richmond.  The only facilities which Mr. Farnworth was going to recommend for the Lower Mainland were the Star of Fortune Casino in New Westminster and a charity bingo in Burnaby.

[44]        A few days prior to the July 29 Cabinet meeting, Mr. Clark and Mr. Farnworth met to discuss the agenda at Mr. Farnworth’s request.  Mr. Clark was unhappy that few casinos were going to be recommended for the Lower Mainland, as the government needed the additional revenue.  New Westminster, Richmond, Delta and Burnaby were the only municipalities that were prepared to accept more gaming.  Except for the bingo in Burnaby and the Star of Fortune in New Westminster, the applications for casinos in these municipalities were either poor or did not have municipal support.  Mr. Farnworth was essentially told by Mr. Clark to review the proposals and approve another casino in the Lower Mainland.  Mr. Clark did not tell him which casino to approve.

[45]        Mr. Farnworth testified that Mr. Clark asked him during this meeting if the North Burnaby Inn application could move or if anything could be done about the zoning.  Mr. Clark mentioned that the company could strengthen its management.  He also mentioned Metrotown in the discussion of this casino.  Mr. Clark denied having this detailed conversation with Mr. Farnworth about the North Burnaby Inn.  Mr. Clark acknowledged that he thought Mr. Pilarinos was looking at locating the casino in Metrotown at some point (he thought early on).  He also agreed that there was a discussion about the fact that generally the Lower Mainland applications were not very good.  I accept the evidence of Mr. Farnworth regarding the discussion at this meeting.  I note that Mr. Farnworth could not have known anything about Metrotown unless Mr. Clark mentioned it to him. 

[46]        Most of the discussion at this meeting centered on the application by the Penticton Indian Band, which Mr. Farnworth supported and Mr. Clark vehemently opposed.

[47]        Mr. Farnworth left this meeting knowing that he would have to find another casino in the Lower Mainland.  He was aware that the government’s policy was to have casinos in the Lower Mainland in order to generate maximum revenue from gambling.  However, Mr. Farnworth did not feel that he had to approve a particular casino since Mr. Clark had told him that it was “up to you.”

[48]        At the time of this meeting, Mr. and Mrs. Clark had already paid Mr. Pilarinos $5,000.00 to cover the final costs of the renovation.  There can be no suggestion that Mr. Clark felt an “indebtedness” to Mr. Pilarinos at the time of this meeting with Mr. Farnworth.  Mr. Pilarinos, as far as Mr. Clark was concerned, had been paid for his work.  Mr. Pilarinos had not yet returned the $5,000.00 cheque.

[49]        The discussion regarding casinos at the July 29th Cabinet meeting focussed almost entirely on the issue of the application by the Penticton Indian Band.  At the end of this meeting, in which the Lower Mainland proposals were not discussed, Cabinet apparently delegated the ability to grant approval-in-principle to Mr. Farnworth.  Mr. Clark was not aware of this delegation.  He may have been out of the room when it was made.

[50]        Mr. Farnworth publicly announced approvals-in-principle for several proponents on August 14, but not the North Burnaby Inn application.  He announced that seven applications were still being considered, including the North Burnaby Inn.

[51]        After this press release was issued, the City of Burnaby wrote again to the Minister advising that it would not support a casino at the North Burnaby Inn.  Mr. Farnworth knew it was not likely that Burnaby would change its position on zoning.

[52]        The options for Mr. Farnworth with respect to Lower Mainland casinos were the Tsawwassen Indian Band whose application was opposed by Delta, the Musqueam Indian Band and the two applications from Burnaby.  The following is an excerpt from the evidence of Mr. Farnworth:

A     I spent the rest of the summer figuring out what are my options and what can I do, how to achieve this.  The premier said, look, it’s up to you and so I went back and I went through the different applications and I thought, you know, what are my options.

 

         I spoke to the mayor of Delta and it became apparent that it really would not fly, despite, you know, knowing that it was a good application, it was not going to fly.  Richmond also would not work, that left me with the two in Burnaby and so I looked at the two of them and neither one is particularly good, one is a friend of the premier’s and one has a very poor score in comparison to the other.  If I were to do –- and if I were to do one of those two it would be the higher scoring of the two, at the same time I knew that Burnaby was opposed to it and, you know, I don’t have many choices here, I’ve got not very good options.

 

        So I figured, well, if I approve the Luu application then the questions are going to be well, this is the lowest scoring one so why that one, and I decided okay if I approve the other one what will be the effect of myself doing that, if I approve it as is, it’s a friend of the premier and the City of Burnaby is opposed to it, so that’s going to cause a lot of problems right there, if I make it clear to Burnaby that the rezoning is up to them that sends a very clear signal to them that I’m not forcing this on them, that this is an application progress, it still has a long way to go but, you know, if they decide not to zone it then it doesn’t get zoned.  At the same time I also know that it’s a friend of the premier and I looked at all the different permutations and I decided that I would let it continue subject to –- give it approval in principle subject to City of Burnaby saying yes to the zoning.

 

          And I figured a number of things would happen with that.  One, I knew that Burnaby would say no.  Two, I figured that, well, the premier will be able to tell his constituent that, sorry, its had consideration but Burnaby says no, it says no and he’s no longer, you know, it’s –- he’s got something he can tell his constituents.  I know the ministry is going to be happy because they are –- they didn’t think it was a good application and I’m happy because it solves my problem.

 

Q     What is your problem?

 

A     Finding another casino in the Lower Mainland.  That’s why I did it that way.  I saw all the different components and I figured this solution would deal with it. 

 

Q     Do you recall, Mr. Farnworth, that you had a discussion with the mayor of Burnaby a week before or shortly before you announced approval in principle?

 

A     Yes.

 

Q     Was there any change in their position?

 

A     No.

 

Q     Now, you just went through with the court the four applications that you considered, there would be no change in Delta’s position about the Tsawwassen band’s application?

 

A     That’s correct.

 

Q     Did you –- from your meeting with Mr. Clark did you believe you had the support of Mr. Clark to approve Delta -– Tsawwassen without Delta’s approval?

 

A     My sense was that Mr. Clark would support that application if you could resolve the Aboriginal issues, if you could resolve the outstanding issues, if you could resolve things with Delta and that’s how I viewed it too.  In fact, I knew cabinet would view it the same way.

 

Q     What about the Richmond application, from your discussions with Mr. Clark did you believe he would support the Richmond application?

 

A     My sense he would support any application that I showed him there was support from the community and particularly with the Aboriginal side of things where the community and the band were together.

 

Q     Did you think there was support from the community for the North Burnaby Inn application?

 

A     Not as it was, no, but I felt that the option around it, it was you’re dealing with one level of government, you weren’t dealing with two, two operating levels of government.

 

[53]        Thus, Mr. Farnworth approved the North Burnaby Inn application in spite of the unlikelihood of Burnaby changing the zoning.  One reason was because he was only dealing with one level of government (Burnaby) rather than two.  The First Nations bands were considered independent governments for the purpose of the casino applications.  Mr. Farnworth testified that approving the North Burnaby Inn application solved his problem regarding finding another casino, however, given Burnaby’s position, it did not in fact solve anything.  I find Mr. Farnworth’s reasoning in this regard illogical.

[54]        In mid-August, Mr. Pilarinos and his family spent approximately a week at the Clarks’ cabin near Penticton.  Mr. Clark and Mr. Pilarinos drove up together.  Also staying at the cabin were Mr. and Mrs. Morrison, their son and his friend.  All three families worked at the cabin and built a new deck.  Mr. Pilarinos did most of the work and provided some used lumber that he brought up from Vancouver.  Mr. Clark paid Mr. Pilarinos for the new lumber, but not the used lumber.  The deck, which was built without a permit, took two days to substantially complete.

[55]        After the police investigation, the local building inspector advised that the deck was unsafe.  As a result, it had to be rebuilt.  Taking this into account, the value of the work done by Mr. Pilarinos was actually next to nothing.

[56]        On August 21, 1998, Dimitri Vrahnos went anonymously to the office of the opposition leader, now Premier, Gordon Campbell.  Mr. Vrahnos was a friend of Mr. Pilarinos.  Mr. Pilarinos had asked Mr. Vrahnos to help him fill out the casino application.  Mr. Pilarinos had discussed the application with Mr. Vrahnos and had told him that Mr. Katanas was involved with the proposal. 

[57]        In the 1960s, Mr. Vrahnos had vigorously opposed corruption in the Greek government. He testified that he was disturbed by rumours that Mr. Pilarinos was receiving assistance from Glen Clark to move his casino application through the government process.  Needless to say, this evidence is not admissible for the truth of its contents against either accused.  As a result of hearing these rumours, Mr. Vrahnos spoke to Mr. Pilarinos and told him to stop involving Mr. Clark.  Mr. Vrahnos also advised Mr. Pilarinos to end his involvement with Mr. Katanas. 

[58]        When Mr. Vrahnos learned that Mr. Pilarinos had not severed his relationship with Mr. Katanas, he decided to go to the Liberal Party and relate the rumours he had heard, as well as the information told to him by Mr. Pilarinos.  Mr. Vrahnos spoke with Rachel Barkey, who worked for Mr. Campbell, on three occasions in August and September, 1998.  She reported the information to the police. Mr. Vrahnos, however, wished to remain anonymous. 

[59]        In October 1998, Mark Everitt received word from his superior, Rick Saville, via Minister Farnworth’s office that the North Burnaby Inn application was being considered for approval-in-principle.  GAIO then began its investigation of the proponents, which quickly unearthed a possible connection to organized crime.  This concern was passed on from Mark Everitt to Rick Saville.  Mr. Saville advised Mark MacKinnon of the Gaming Policy Secretariat that there were serious concerns regarding the application, but did not go into detail.  Mr. MacKinnon testified that on more than one occasion he advised two of Minister Farnworth’s assistants that GAIO had serious concerns regarding this application.  Minister Farnworth testified that he was never advised of these concerns.  Neither of Mr. Farnworth’s ministerial assistants testified.  Registration was refused by GAIO, but not until April 28, 1999.  Thus, regardless of the approval-in-principle or what might have occurred in terms of the zoning or a change in venue, Mr. Ng and Mr. Pilarinos would never have received a casino licence.

[60]        In early December, Mr. Farnworth met with Mr. Pietro Calendino, who was the MLA for North Burnaby.  Mr. Calendino opposed a casino at the North Burnaby Inn.  Mr. Farnworth suggested that Mr. Calendino talk to Mr. Luu (the proponent at the Halifax Street location) and Mr. Ng and Mr. Pilarinos about joining together on an application.

[61]        On December 17, 1998, the North Burnaby Inn application received approval-in-principle, subject to zoning approval by the City of Burnaby.  It had not received GAIO approval.  Approval-in-principle without GAIO's endorsement was highly unusual. 

[62]        Mr. Farnworth testified that if the Luu application had received the higher score, he would have approved the Luu application.

[63]        On December 18, 1998, Mr. Farnworth was at the barber when he received a call from an angry and upset Mr. Clark.  Mr. Clark was upset that the approvals of the casinos had been announced as he was under the impression that the applications had to return to Cabinet.  Mr. Farnworth told Mr. Clark he did not tell him about the approvals-in-principle because Mr. Clark had told him he did not want to be involved.

[64]        After approval-in-principle was granted, Mr. Ng and Mr. Pilarinos commenced inquiries to see if they could move the location of their casino as a means of addressing the zoning issue.  They began dealing with Derrick Luu, the other Burnaby proponent, who had been refused approval-in-principle.  Mr. Luu’s location on Halifax Street was zoned for a casino, and a deal was struck to sell Mr. Luu’s property to Mr. Ng and Mr. Pilarinos for $3 million.  They also obtained the assistance and support of Mr. Calendino, the MLA for North Burnaby.

[65]        Around this time, Mr. Pilarinos began going to Mr. Clark’s house on a frequent basis.  Mr. and Mrs. Clark confirmed the repeated contact and it was also observed by police surveillance.  Mr. Clark was also seen going to Mr. Pilarinos’ home.

[66]        Mr. Clark and Mr. Farnworth had a further meeting in January 1999.  Mr. Clark denies that this meeting occurred.  However, Mr. Farnworth testified that Mr. Clark told him that his constituent was “bugging him” because he could not move.  In his statement to the police, Mr. Clark said that Mr. Pilarinos was agitated and was phoning him a lot.  He told the police that Mr. Pilarinos, “started to bug me”.  Mr. Farnworth could only have learned about Mr. Pilarinos’ conduct from Mr. Clark.  I accept Mr. Farnworth’s evidence and recollection of this meeting.  I find as a fact that there was a meeting and that the North Burnaby Inn application was discussed.  I am aware of the fact that Mr. Farnworth did not recall this meeting when he first was interviewed by the police.

[67]        Mr. Farnworth suggested that Mr. Clark tell Mr. Pilarinos to send him a letter setting out what he wanted to do regarding a move and that Mr. Farnworth would submit it to the Ministry and see what developed from there.  Mr. Clark agreed with this approach.  Mr. Farnworth testified, “I did not feel under any pressure.  I didn’t feel uncomfortable.  I felt that what was done was the appropriate thing”.

[68]        Mr. Clark did tell Mr. Pilarinos to write a letter to Minister Farnworth requesting a change of venue, but his recollection is that the letter was his idea.  This letter was sent on January 25, 1999.

[69]        Mr. Farnworth received the letter on January 27, 1998, and set it aside for a few days before he sent it on to his staff.  He felt the tone was a little presumptuous because it set out the steps they had taken to facilitate a move, rather than first ask for permission.

[70]        On February 10, Mr. Clark received what has been called the “Karmelita fax”, sent anonymously by Mr. Vrahnos, which warned him of a police investigation arising from his association with Mr. Pilarinos and the application for the casino.  Mr. Clark asked Mr. George Ford, who was the head of the Civil Service, to investigate the allegations.

[71]        The request of Mr. Ng and Mr. Pilarinos to move had been referred to Mark MacKinnon.  Mr. MacKinnon concluded that the proponents should not be allowed to change the venue under the RFP process.  He was concerned about the Luu and Ng/Pilarinos applications fusing.

[72]        Mr. Ford discussed the application to move with Mr. MacKinnon.  Mr. MacKinnon, who is also a lawyer, testified that he was under no pressure from Mr. Ford.  Each application to move under the RFP was considered on an individual basis.  One application in Wells had been granted permission to move while another application in Campbell River was refused.

[73]        A letter denying the request of Mr. Ng and Mr. Pilarinos to change the venue of the casino was sent on February 17, 1999, just before Mr. Ng and Mr. Pilarinos were required to give Derrick Luu a substantial non-refundable deposit for the purchase of the Halifax Street site.

[74]        Although the RCMP had been aware of the anonymous allegations reported by Ms. Barkey, nothing was done until the approval-in-principle was granted on December 17, 1998.  At this point an investigation commenced, and the police attempted to learn the identity of the person who visited Ms. Barkey.

[75]        Mr. Vrahnos had sent an anonymous letter to the Vancouver Sun newspaper when he learned of the approval-in-principle.  This letter was forwarded to GAIO by a Sun reporter, Rick Ousten.  Steve Letts, who headed GAIO, brought this letter to the attention of the Assistant Deputy Attorney General, Mr. Quantz.  Mr. Quantz appointed a special prosecutor to review the case. 

[76]        Mr. Vrahnos was identified and interviewed by the RCMP in early February.  Electronic and physical surveillance of Mr. Pilarinos and others was conducted from January to early March 1999.   Search warrants were executed on March 2, 1999 on the home and office of Mr. Clark, Mr. Pilarinos, Mr. Ng and Mr. Katanas. 

[77]        Throughout the trial, there was evidence that a Burnaby City Councillor, Jim Young, was also involved in the casino application.  It was alleged that he would receive a share of the casino if he assisted in moving the casino application through the hurdles it would face at City Council.  There were a number of meetings between Mr. Young and Mr. Pilarinos which were observed by the RCMP surveillance team and one meeting, held in the Blue Button Club, was recorded. 

Evidence Relating to Dimitrios Pilarinos

 

[78]        Most of the evidence implicating Mr. Pilarinos is found in the wiretap evidence, seized documents and the evidence of Dimitri Vrahnos.  I add parenthetically that, unless otherwise noted, the evidence of Mr. Vrahnos, the conversations recorded on the wiretap and seized documents as between individuals other than Mr. Clark, are not admissible against Mr. Clark for the truth of their contents. 

[79]        Mr. Pilarinos called one witness, Douglas McLean, a former police officer with an expertise in photography.  Photos were taken of the area around Mr. Clark’s home in an effort to demonstrate that some of the police surveillance officers could not have seen what they claimed to have seen.  The photos were taken in May 2002, three years and several months after the police observations, which were made in January and February of 1999.  The foliage on the trees and the size of the trees would naturally differ between the two periods of time.  Further, what is shown in a photograph in terms of distance, perception, detail and size of the subject is quite different from what can be seen while at the scene.  Niagara Falls is quite different in real life than in a photograph.  I did not find the photos helpful.

[80]        The Crown did not call Steve Ng, Jim Young or Paschos Katanas at trial.  None of these men gave their version of events.

[81]        As noted above, Mr. Vrahnos was a friend of Mr. Pilarinos.  They had known each other since the early 1980s.  Mr. Pilarinos, Mr. Katanas and Mr. Vrahnos are all from Greece.

[82]        In 1992, Mr. Vrahnos bought a home in east Vancouver.  While it is not clear who moved in first, Mr. Pilarinos and a number of his relatives also had homes within a short walk of each other in the same neighbourhood.  During the mid-1990s, Mr. Vrahnos saw Mr. Pilarinos often.

[83]        The evidence of Mr. Vrahnos is attacked on two bases. First, the defence argues that he is not a credible witness. Mr. Vrahnos clearly dislikes Mr. Katanas and was strongly opposed to his involvement in the casino business.  The defence points to an incident in late June 1998 when Mr. Vrahnos was ejected from the Lumbermen’s Social Club.  Mr. Vrahnos complained to the police about this incident, but his complaint was not taken seriously.  Mr. Katanas was not present when Mr. Vrahnos was ejected from the Club, and there is no evidence to suggest that Mr. Katanas had anything to do with the conduct of his employee, other than by virtue of his ownership of the Club.  I find that Mr. Vrahnos was not motivated to lie by the incident at the Lumbermen’s Social Club.  Mr. Vrahnos stated other reasons for his dislike of Mr. Katanas.  Mr. Vrahnos was told that Mr. Katanas was running an illegal gambling operation and that he was laundering money.  Mr. Vrahnos referred to Mr. Katanas as a “gangster”.  This evidence is hearsay as Mr. Vrahnos heard it from someone else.  It is not admissible for the truth of its contents, but is admissible to demonstrate his state of mind and therefore the motivation behind his actions.

[84]        A review of Mr. Vrahnos’ evidence demonstrates that although his information was occasionally factually wrong, his evidence was corroborated on a significant number of points.  I will review some of the important evidence and relate the corroborative evidence where it exists. 

[85]        There is no doubt that Mr. Pilarinos often spoke to Mr. Vrahnos and told him many things about his casino application.  I find that Mr. Vrahnos is an honest and credible witness.  This finding of honesty does not necessarily lead to proof beyond a reasonable doubt in relation to each count on the indictment.  Needless to say, the whole of the evidence must be considered and weighed before coming to a final conclusion.

[86]        Mr. Vrahnos testified that Mr. Pilarinos told him that he had formed a partnership with two other people and they were applying for a casino licence.  He told him that the partners were Paskalis (another name for Mr. Katanas) and Mr. Ng.  The evidence obviously supports that Mr. Pilarinos and Mr. Ng applied for a casino licence.  Further, the original incorporation documents of 545738 B.C. Ltd. listing Mr. Katanas as a shareholder, a partially completed Appendix G in Mr. Katanas’ name found by the police  (Ex. 62-39), and surveillance observations, faxes and Mr. Pilarinos’ conversations recorded in the wiretap corroborate the evidence that “Paskalis” was also a partner in the casino application.

[87]        Mr. Pilarinos asked Mr. Vrahnos to review the application.  It is not entirely clear when Mr. Vrahnos reviewed the application; however, there can be no doubt that he did review it and that he saw it more than once.  He described the RFP application in considerable and accurate detail.  He also recalled seeing a letter from a woman who was to be involved in the casino operation.  See Ex. 59-1, which is the proposal and Ex. 61A-9, which is a letter from Janet Fraser who was to be employed to run the casino.  Mr. Vrahnos was aware of the details of both of these documents.  I am also satisfied that Mr. Vrahnos saw at least one earlier draft of the proposal.

[88]        Mr. Pilarinos told Mr. Vrahnos that he was receiving help from a councillor in Burnaby.  The surveillance, the wiretap evidence and the conversation recorded at the Blue Button Club strongly suggest that Mr. Young was assisting Mr. Pilarinos in some manner with the casino application.

[89]        Mr. Pilarinos told Mr. Vrahnos that his lawyer withdrew because of a conflict of interest with the government, which was true.  Mr. Pilarinos showed Mr. Vrahnos the letter of withdrawal.

[90]        Mr. Pilarinos told Mr. Vrahnos that the group went to a meeting in Victoria and brought their lawyer and accountant.  This also is accurate.

[91]        Mr. Pilarinos told Mr. Vrahnos that the location of the casino at the North Burnaby Inn was a problem and they were looking at other locations, including Metrotown.  The North Burnaby Inn location was not acceptable to the City of Burnaby.  Real estate documents relating to a Metrotown location were seized from Mr. Pilarinos.  Mr. Clark also mentioned Metrotown in his July 1998 meeting with Mr. Farnworth.  Mr. Clark said that Mr. Pilarinos had mentioned Metrotown in connection with his casino application.

[92]        Some things that Mr. Pilarinos reported to Mr. Vrahnos were not accurate.  For example, Mr. Pilarinos told Mr. Vrahnos that Glen Clark had arranged a meeting in Victoria.  In fact, all the proponents attended a meeting.  Mr. Pilarinos said that Mr. Katanas had a criminal record but no criminal record was uncovered. 

[93]        Mr. Pilarinos told Mr. Vrahnos that Mr. Katanas once had a licence for a gambling facility but got into difficulty with someone involved in licencing whose name began with “Mc” or “Mac”. Mr. Katanas previously had a licence for a social club, but his licence was revoked when it was apparent that illegal gambling was occurring on the premises.  Although Mark MacKinnon was the Executive Director of the Gaming Policy Secretariat, the person who dealt with Mr. Katanas and was involved in the revocation of his licence was Mr. Saville.

[94]        Mr. Vrahnos testified that Mr. Pilarinos told him his and Derrick Luu’s scores on their respective applications.  Mr. Vrahnos could not recall Mr. Pilarinos' score, but recalled that it was under 90, and that he had rounded it up to 90.  He said that the Luu application scored 40.  The scores, Mr. Vrahnos said, were either out of 150 or the applications had to receive 150 points.  Two weeks after Mr. Pilarinos told Mr. Vrahnos the scores, Mr. Vrahnos told Rachel Barkey, Gordon Campbell’s assistant, that Mr. Pilarinos’ score was 87.  He told Ms. Barkey that the Luu application received between 40-50.  Mr. Vrahnos testified that he was trying to be accurate when he talked to Ms. Barkey, but he did not recall exactly what he said to her.  The conversation with Ms. Barkey is not admissible as past recollection recorded because it is not close enough in time to the original statement.  It is, however, circumstantial evidence that Mr. Pilarinos told Mr. Vrahnos his knowledge of the scores prior to August 21, 1998.

[95]        A news release was found in documents seized from Mr. Pilarinos.  On the news release, which stated which proposals were still being reviewed, the number 87 was noted beside the North Burnaby Inn proposal and 52 beside Derek Luu’s proposal.  [Ex. 59-11].  The North Burnaby Inn proposal in fact scored 88 out of a possible 190 points or 46%.  Derek Luu’s proposal scored 56 out of 190 points or 29%.  [Ex. 64-39].  The evidence is clear that someone had given Mr. Pilarinos information about the scores of the evaluations and that Mr. Pilarinos told Mr. Vrahnos.  I will return to this evidence when discussing the counts that specifically raise this issue.

[96]        Mr. Vrahnos testified that over a period of two weeks in August he repeatedly told Mr. Pilarinos to drop Mr. Katanas as a partner.  Mr. Vrahnos was upset that the Premier appeared to have been compromised.  Mr. Pilarinos referred to these discussions in a conversation overheard on the wiretap [Call 52].

[97]        Mr. Vrahnos gave evidence that Mr. Pilarinos told him that he had concerns about Mr. Katanas because he was running out of money.  Mr. Pilarinos was also overheard saying this on the wiretap.

[98]        Mr. Pilarinos told Mr. Vrahnos that he had “worked his ass off” at Mr. Clark’s summer cabin building a new deck.  He also told Mr. Vrahnos that Mr. Katanas had provided some lumber.  Indeed, Mr. Pilarinos did help Mr. Clark build a new deck, and he provided some used lumber. 

[99]        When the approval-in-principle was granted, Mr. Pilarinos told Mr. Vrahnos that Mr. Clark "came through for him".  He told Mr. Vrahnos that he was looking at possibly leasing a site in Metrotown or buying Derrick Luu’s site.  He later told Mr. Vrahnos that they were working out a deal with Mr. Luu to buy his property for $3 million dollars.  He said the property was not worth that much, except that it had the proper zoning.  Mr. Luu confirmed that without the zoning, the property was worth about $1.5 million and he in fact eventually sold it for $1.25 million.  Mr. Pilarinos told Mr. Vrahnos that Mr. Luu would carry $700,000 of the mortgage.  This is precisely the terms of the agreement found at Ex. 62-29. 

[100]    Mr. Pilarinos also told Mr. Vrahnos that Mr. Clark would help him change the venue.

[101]    On January 27, 1999, Mr. Pilarinos arranged a meeting with Mr. Young and Mr. Ng from Mr. Vrahnos’ home.  He had earlier told Mr. Vrahnos that Mr. Young had a 10% share in the casino, and that Mr. Katanas, Mr. Ng and Mr. Pilarinos each had a 30% share.  He told Mr. Vrahnos that he delayed calling Mr. Katanas about the meeting so that Mr. Katanas would be unable to make the meeting.  He said he did not want to be seen with Mr. Katanas because he had been left off of the application.  Mr. Pilarinos, Mr. Young, Mr. Ng and Mr. Katanas were often seen meeting in various combinations of the four by police surveillance officers.

[102]    Mr. Pilarinos told Mr. Vrahnos that he offered Mr. Clark a 15% share in the casino but that Mr. Clark refused and said “No, this is not what I do it for”. 

[103]    Mr. Vrahnos sent the Karmelita fax to Mr. Clark on February 9, 1999, warning him about the casino application.  He also sent a warning letter to Mr. Pilarinos and put Mr. Pilarinos’ father-in-law’s address as the return address.  Mr. Pilarinos showed this letter to Mr. Vrahnos.  At the same time he showed him a letter he received from GAIO requesting additional financial disclosure [Ex. 79-9].

[104]    Mr. Vrahnos raised with Mr. Pilarinos the issue of doing free work for Mr. Clark, and Mr. Pilarinos told him that he had done work for two other neighbours and had not accepted money, so it would appear normal.  Mr. Pilarinos had done work without charge for Mr. Tigchelaar in July 1998.  He had also done some work for another neighbour.  Neither job was as extensive as the work done for Mr. Clark.

[105]    The defence submits that Mr. Vrahnos could not be telling the truth when he said Mr. Pilarinos dropped by on Boxing Day and immediately offered to repair Mr. Vrahnos’ furnace.  Mr. Pilarinos’ relatives lived very close to Mr. Vrahnos and he would drop by to see Mr. Vrahnos when he was visiting them.  Mr. Clark testified that Mr. Pilarinos was the kind of person, who, if you said you wanted a window in your house and left the room for a drink, would have chain sawed a hole in your wall by the time you returned.  Thus, insisting on repairing the furnace on Boxing Day is perfectly consistent with the other evidence.

[106]    In attacking his credibility, the defence also points to the fact that Mr. Vrahnos did a renovation on his own home for which he did not obtain a building permit.  The defence submits that his explanations for not obtaining a permit are sufficient to undermine the truthfulness of his evidence.  I do not accept this submission.  His answers regarding the permit are not false, nor do they undermine his evidence, which is corroborated in many ways.

[107]    The defence further argues that Mr. Vrahnos has a fluctuating moral code that also undermines his credibility.  Mr. Vrahnos was asked whether it offended his moral code if the employees at the Lumbermen’s Social Club also claimed welfare.  His response was that it depended on the circumstances.  He was not prepared to judge someone who had a family to feed and collected welfare while working, in terms of his personal moral code.  This is hardly evidence that would undermine the credibility of a witness.

[108]    The defence submits that Mr. Vrahnos only learned about Mr. Pilarinos' application for a casino in August 1998, after the incident at the Lumbermen’s Social Club, and only then began to cause trouble.  This is flatly contradicted by Mr. Vrahnos’ clear and accurate description of Mr. Pilarinos’ application for the casino that was submitted in November 1997.

[109]    The defence also submits that Mr. Pilarinos would not have confided in Mr. Vrahnos because he knew he was an informer.  There are two aspects to this submission in the evidence.  First, Mr. Vrahnos wrote a letter to the CRTC regarding a Greek radio station.  This is hardly something that would stop his friend, Mr. Pilarinos, from speaking to him.  Second, Mr. Vrahnos said that Mr. Pilarinos’ aunt thought he was an informer because she thought he worked for immigration and turned in Greek immigrants.  After Mr. Pilarinos learned that a Greek person had informed the government of problems with his application, he and his brother Dennis Pilarinos were overheard in the wiretap speculating about Mr. Vrahnos and, for the first time, they raised concerns about him.  However, the wiretap evidence also is crystal clear that Dimitrios Pilarinos had been discussing the casino application with Mr. Vrahnos.   

[110]    The defence argues that Mr. Pilarinos was an experienced businessman and would have had no reason to seek assistance from Mr. Vrahnos.  The evidence of Mr. Vrahnos is that Mr. Pilarinos did not read English very well and was relatively unsophisticated.  His use of English in the wiretap demonstrates a poor mastery of English grammar.  He had no experience in the gaming industry.   Mr. Vrahnos is university educated in Canada, a government employee and obviously intelligent.  There is every reason why Mr. Pilarinos would have gone to him for assistance in filling out a government application for a casino licence.

[111]    Mr. Vrahnos did not want to see Mr. Pilarinos or Mr. Clark involved with people he referred to as “gangsters”.  He did not want to see “gangsters” involved in the gambling industry, a concern also apparently shared by GAIO.  He did not want to go to the police and I accept he did not want to involve Mr. Pilarinos or Mr. Clark in a prosecution.  This is the last thing he wanted to happen.  He wanted Mr. Katanas out of gaming and nothing more.

[112]    Mr. Vrahnos was not forthcoming with the police about the Karmelita fax.  This does not undermine his evidence.  In some ways, it supports his assertions that he did not want to co-operate with the police from the first instance and that he did not want Mr. Clark or Mr. Pilarinos prosecuted.

[113]    This is not an exhaustive review of Mr. Vrahnos’ evidence, but a review to demonstrate that it is clear that Mr. Pilarinos was telling Mr. Vrahnos a great many things about his casino application

[114]    I also note that many times Mr. Vrahnos’ evidence had the clear ring of truth.  He was a careful and thoughtful witness.  He testified that he was concerned that some of his evidence may have been affected by his reading media reports.  His prior statements confirmed his recollection before the media blitz of this case in March 1999. 

[115]    The second basis upon which Mr. Vrahnos' evidence is attacked is that Mr. Pilarinos was not telling the truth to Mr. Vrahnos or was exaggerating his true relationship with Mr. Clark in order to create a more grandiose image of himself.  There are some things said by Mr. Pilarinos that were not factually correct.  While it is possible and perhaps probable that Mr. Pilarinos lied about the extent of his relationship with Glen Clark, that does not necessarily mean he is exonerated.  Mr. Pilarinos repeated some of the statements he made to Mr. Vrahnos to his brother and other persons who were overheard on the wiretap.  The statements by Mr. Pilarinos were against his interest and it is difficult to say why Mr. Pilarinos would falsely inculpate himself.  Some statements, such as “Clark came through for me”, are not evidence of the truth of the fact, but are evidence of Mr. Pilarinos’ belief of the situation.  I do not accept that all of what Mr. Pilarinos told Mr. Vrahnos was simply hyperbole.

Wiretap and Surveillance Evidence 

 

[116]    A police surveillance team commenced surveillance on January 15, 1999.  Observations by the police along with evidence from electronic surveillance form part of the evidence implicating Mr. Pilarinos in the offences charged.

[117]    Friday, January 15: Mr. Pilarinos and Mr. Katanas were seen leaving the North Burnaby Inn together.  That evening, one of the group potluck dinners occurred at Mr. Pilarinos’ home.  Mr. Clark was observed on the premises.

[118]    Sunday, January 17: Mr. Pilarinos went to Mr. Clark’s house several times during the day.  He also went to the Marble Arch Hotel, which was owned by Steve Ng.

[119]    Monday, January 18: Mr. Pilarinos was seen meeting with Mr. Young.  Later, he met with Mr. Katanas.

[120]    Tuesday, January 19: Mr. Pilarinos was at the North Burnaby Inn working on the roof.  Mr. Katanas was also at the Inn.

[121]    Thursday, January 21: Mr. Katanas was at the North Burnaby Inn.  Mr. Pilarinos and Mr. Ng went to Starbucks together.  Later, Mr. Katanas, Mr. Ng and Mr. Pilarinos, along with a woman and child, were seated at a table in the North Burnaby Inn restaurant.

[122]    Friday, January 22: Mr. Ng, Mr. Pilarinos and Mr. Katanas were sitting and talking together at Starbucks on East Hastings.

[123]    Saturday, January 23: Mr. Pilarinos spoke to Mr. Clark for about 25 minutes behind Mr. Clark’s house.  They looked at a letter-size piece of paper. 

[124]    Sunday, January 24: Mr. Pilarinos met with Mr. Ng at the North Burnaby Inn and they went to Starbucks.  Mr. Pilarinos was seen with some letter-sized papers.

[125]    Monday, January 25:  Mr. Ng and Mr. Pilarinos sent their request to move to Mr. Farnworth.

[126]    Thursday, January 28: Mr. Pilarinos met Mr. Ng at the North Burnaby Inn.  Mr. Katanas' vehicle was also present in the parking lot.

[127]    Sunday, January 31:  Mr. Pilarinos went to Mr. Clark’s house.

[128]    Wednesday, February 3: Mr. Pilarinos met with Jim Young at the Knight & Day Restaurant.  Later that afternoon, Mr. Ng arrived at Mr. Pilarinos’ house.

[129]    Friday, February 5:  Another pot-luck dinner was held and was attended by Mr. Pilarinos and the Clarks.

[130]    The wiretap interception began on February 15, 1999.

[131]    Monday, February 15:  A conversation between Mr. Ng and Mr. Pilarinos was intercepted.  They discussed whether Mr. Katanas counted as a partner in the company.  Mr. Ng assured Mr. Pilarinos that it was not necessary to mention him as a partner, and that everything had been disclosed.  This discussion occurred after Mr. Vrahnos had sent Mr. Pilarinos his warning note about “criminal elements in the gambling business”. 

[132]    Wednesday, February 17: Mr. Ng met with Derrick Luu at the Knight and Day Restaurant around 1:30 p.m.  At 1:41 p.m., the fax from Mr. Farnworth denying the change of venue arrived at the Marble Arch Hotel.  Mr. Ng called Mr. Pilarinos and Mr. Pilarinos said he would go to the North Burnaby Inn.  Mr. Pilarinos and Mr. Ng went to Starbucks and then returned to the North Burnaby Inn.  Mr. Pilarinos called Mr. Katanas wanting to know where he was.  Mr. Katanas said he would be by shortly.  Mr. Pilarinos left the North Burnaby Inn.  At 5:42 p.m., Mr. Pilarinos called Mr. Ng and Mr. Ng said, “As soon as you finish talking with your friend, if you talk to him, give me a call, okay?” 

[133]    The evidence at trial clearly establishes that Mr. Pilarinos’ “friend” is Mr. Clark.  The defence submits that it could also be Mr. Young.  I find as a fact that it is Mr. Clark.

[134]    At 5:49 p.m., Mr. Pilarinos drove to Mr. Clark’s house.  A few minutes later he left carrying a piece of paper. 

[135]    At 6:40 p.m., Mr. Ng called Mr. Pilarinos and they discussed the RFP.  Mr. Pilarinos said, “Well, my friend is here okay.  I just talked to him … I’m going to see him later on when he gets home … from the sound of it uh, I don’t think he knows anything … I don’t think he has any idea at all."

[136]    There were several more calls between Mr. Ng and Mr. Pilarinos that evening.  At 8:45 p.m., Mr. Clark drove up to Mr. Pilarinos' house.  He went in and remained until 9:16 p.m.  At 9:15 p.m., Mr. Ng called Mr. Pilarinos.  Mr. Pilarinos said, “he just came by … I just talked to him”.  Because he was on his cell phone, Mr. Ng called Mr. Pilarinos back on a land line at 9:28.  Mr. Pilarinos explained his conversation with his “friend”.  To summarize the conversation: Mr. Pilarinos’ said his friend was really surprised too.  He told Mr. Ng that it looked like the decision might be final.  He said that his friend told his people that, “I know this person, and uh he talked to me about it and all that” and they put a note to this effect in his file.  (Adrian Dix, Mr. Clark’s assistant, testified that he prepared a memo in September regarding Mr. Clark's friendship with Mr. Pilarinos and put it in a file.  This is the memo Mr. Dix backdated to July 17.)  Mr. Pilarinos said that his friend was not at the Cabinet meeting to vote for it.  His friend had told Mr. Farnworth not to tell him anything from that point on because he did not want to be involved, so when he saw Mr. Farnworth earlier that day they did not speak about it.  Mr. Pilarinos said that the reason his friend no longer wanted to be involved was that he thought Mr. Pilarinos was home free.  He [Mr. Clark] said he would talk to “him” and see what was going on.  [The "him" I find is Mr. Farnworth].  His friend did not think that it was Mr. Farnworth’s idea and thought that it was because of the lawyers.  Mr. Pilarinos told Mr. Ng, “You know he said, he says when I talked to him the last time I thought it was a deal done because he told me there should be no problem.  It was his idea to happen that way.  You know what I mean.  So, I don’t know what to say he says he will phone him and give me a call”.  Mr. Pilarinos said to Mr. Ng, "But you know, I, I said to him well what I'm really surprised is he didn't mention to you anything before he would send a letter.  He [Mr. Clark] says the reason he [Mr. Farnworth] never did is because I [Mr. Clark] told him I don't want to know nothing from now on."  Following the conversation, Mr. Ng headed over to Mr. Pilarinos’ house.

[137]    Mr. Clark was aware that Mr. Farnworth was going to turn down the application to move, but he did not tell this to Mr. Pilarinos.

[138]    Thursday, February 18: The flurry of phone calls between Mr. Pilarinos and Mr. Ng was continuing.  Mr. Katanas and Mr. Pilarinos were together in the same car for a short time.

[139]    At 8:36 p.m., Mr. Pilarinos asked Mr. Ng to take notes of what his lawyer told him during the meeting he had scheduled the following morning because he wanted to show them to his friend to “force him to the bone”.

[140]    Friday, February 19: Mr. Pilarinos told Mr. Ng that he was going to meet Mr. Young, and that he hoped to see his friend that weekend.  Mr. Pilarinos and Mr. Young met at the Blue Button Club from noon until 1:21.  The conversation at the Blue Button was recorded.  Mr. Young and Mr. Pilarinos discussed the casino application and the change in venue.  Mr. Pilarinos theorized about what went wrong.  He told Mr. Young that his friend told him that he put a note in his file that said he knew Mr. Pilarinos in case something went wrong later on.  Usually when something went wrong his friend said, “let me see what I can do, let me see what I can do” but this time he said nothing.  Mr. Pilarinos said that his friend’s staff might have thought he was in danger.  Mr. Young had offered to try to talk to Mr. Farnworth. 

[141]    Mr. Pilarinos continued telling Mr. Young that what happened was "his" idea (I find he is referring to Mr. Clark) and that he said that it was "no problem".  Mr. Pilarinos said he was outside his [Mr. Clark's] house that morning when he was sleeping. 

[142]    Later Mr. Pilarinos said, “I mean I, just the work I did at his house … I … [ten second interval] Plus, … [unknown] apply.  I don’t care about that.  I did it because I believe it.  I believe it with all my heart, I don’t mind doing this for a friend.  Honest to God, I don’t.  I do work for friends all the time.  And I don’t have a penny, I never ever took a penny for my trouble.  Never.  I do it because I believed it.  I never did it because I wanted to, see, this is the whole idea, I never did his house … I never did.  This one was his choice, it wasn’t my choice.  I had to do nothing for him because … Nothing.  And I told him that.  When I, if I do your house or anything like that I don’t want you to feel obligated to me because I didn’t, I don’t.” 

[143]    After they left the Blue Button Club, Mr. Pilarinos called Mr. Ng and arranged to meet him at the North Burnaby Inn.  At 3:51, Mr. Pilarinos, Mr. Katanas and Mr. Ng walked from the North Burnaby Inn to Starbucks on East Hastings.  They talked for about 15 minutes, and went to Subway where they continue talking for about forty minutes. 

[144]    At 9:58, Mr. Ng called Mr. Pilarinos and asked if he had heard from his friend yet.  Mr. Pilarinos replied that he expected to speak to him on Sunday.

[145]    Saturday, February 20: Mr. Pilarinos pulled up in the lane by Mr. Clark’s house.  Mr. Clark was on his bicycle with several children and spoke to Mr. Pilarinos for about a minute.  Later, Mr. Ng called Mr. Pilarinos and Mr. Pilarinos told him that he had spoken with his friend that day.  He said he did not think his friend knew what was going on.  Mr. Pilarinos said that his friend asked why the investigation had not occurred earlier and was told that it was not anticipated that the application would go through.  (This relates to the GAIO investigation that was delayed until October 1998).  He said his friend thought that as soon as Mr. Farnworth received the letter (requesting a move), he passed it on to Mr. MacKinnon and that Mr. MacKinnon’s “guys” were the ones who said no.  (This is accurate, according to Mr. MacKinnon).  Mr. Pilarinos told Mr. Ng that his friend was trying to find a way to get around this but did not know how easy it would be.  Mr. Pilarinos said Gateway (another gambling establishment in Burnaby) was trying to stop them.

[146]    In his evidence, Mr. Clark said that Mr. Pilarinos did come by several times after he received the letter from Minister Farnworth.  Mr. Clark said he told Mr. Pilarinos he would see what he could do, but in fact did nothing and intended to do nothing.

[147]    Sunday, February 21: Mr. Pilarinos was seen at Mr. Clark’s house around 12:30.  Mr. Pilarinos later spoke to one Aris, who asked if he had “gotten together with Clark”.  Pilarinos told him that he had and that Clark wanted to find out what had happened, as he did not know.  Later Mr. Pilarinos called Mr. Ng and told him that he talked to "him" and that he still wanted to find out what happened first.

[148]    Monday, February 22: Mr. Ng and Mr. Luu met.  Mr. Pilarinos was seen with Mr. Katanas at 1:46 p.m. and then they went to the North Burnaby Inn.  Mr. Ng arrived and he and Mr. Mr. Pilarinos went to Starbucks. 

[149]    Tuesday, February 23: Mr. Pilarinos was at the North Burnaby Inn and was seen driving Mr. Katanas’ car.  He later met with Jim Young at the Pantry Restaurant in Coquitlam.

[150]    At 9:41 p.m., Mr. Pilarinos had a conversation with a person named Terry.  Terry asked if any of Mr. Pilarinos’ partners had any pull because of their money.  Mr. Pilarinos replied, “That doesn’t have significance.  I have a bigger pull than him … These things don’t happen if you don’t have pull, nothing is going to happen, Terry."  Mr. Pilarinos told Terry that he had an acquaintance in government who would see if anything could be done to change the decision to deny permission to relocate.  He also talked about how difficult it was to know who to buy.

[151]    There is no evidence that Mr. Pilarinos knew anyone on a personal basis in the provincial government, except Mr. Clark.

[152]    Wednesday, February 24: Mr. Ng called Mr. Pilarinos. Mr. Pilarinos told him that Mr. Young was having a hard time contacting Mr. Farnworth.  At the Blue Button Club, Mr. Young had offered to try and speak with Mr. Farnworth, as his son Scott knew him.

[153]    At 7:58, Pilarinos spoke with Aris Economou and told him that he had not seen his “guy” or gotten anything from him, and that his guy had put a note in his file to cover himself.

[154]    At approximately 8:00 p.m., Dale Clark returned a call to Mr. Pilarinos.  He asked her to have Mr. Clark call him when he returned.

[155]    At 10:05 p.m., Mr. Pilarinos called Mr. Clark again and spoke with him.  He told Mr. Clark he had something important to show him.  Mr. Clark said, “the situation is”, however he was interrupted by Mr. Pilarinos, who did not want to talk on the telephone.  They agreed to meet at 8:00 a.m. the next morning.  Mr. Clark told Mr. Pilarinos that it was not good news. 

[156]    At 10:43 p.m., Dimitrios Pilarinos called his brother Dennis Pilarinos and told him how he was not permitted to move locations, notwithstanding that his guy had arranged for it to be okay to move.  He told Dennis how his guy put a note in his file about knowing Mr. Pilarinos and that he told the Minister not to tell him anything to protect him.  He said he spoke to his guy that evening and had arranged to meet him at 8:00 a.m. the next morning.  Mr. Pilarinos told Dennis that he met with Mr. Clark one morning to ask him to advise him immediately if he thought he, Clark, was in danger so he, Pilarinos, would not spend any more money on the project. 

[157]    Thursday, February 25: Mr. Pilarinos went to Mr. Clark’s house at around 7:47 and left at 8:38.  At 8:45, Mr. Pilarinos was seen pacing around inside his house, picking up his phone and then putting it down.  He then left and went to the Allegro Café.  It appears that Mr. Pilarinos was at the Café most of the day talking with other persons in Greek.

[158]    At 7:54 p.m., his brother Dennis called Mr. Pilarinos.  Dennis asked him “what happened with Clark?”  Mr. Pilarinos said that it was over.  He said that Mr. Clark was not looking to cover himself, and that it was Mr. Pilarinos' decision.  He said that two Greeks went to the investigation officer and told them that Mr. Pilarinos had Mr. Katanas as a “silent partner”.  They discussed how Mr. Vrahnos was the likely informant. 

[159]    Glen Clark denied telling Dimitrios Pilarinos about the Karmelita fax.  The wiretap evidence is not admissible for the truth of its contents against Glen Clark, however, I ruled earlier in these proceedings that the fact of Mr. Pilarinos’ knowledge of certain things was circumstantial evidence that was admissible against Mr. Clark.  Mr. Pilarinos knew of the allegation of a “silent partner”, which was referred to in the Karmelita fax.  Very few people knew about the contents of the Karmelita fax or the Ousten letter.  There is no evidence that any one else privy to the contents of Mr. Vrahnos’ allegations spoke to Mr. Pilarinos.  However, nothing in the Karmelita fax refers to “Greeks informing”.  The only similarity between the information told to Dennis Pilarinos by Dimitrios Pilarinos and the Karmelita fax is the reference to a silent partner.

[160]    Friday, February 26: Mr. Pilarinos called his brother Dennis again.  He told Dennis that his guy told him not to tell anyone anything and that “they” were Greeks and close friends of Dimitrios Pilarinos.  He said his friend told him not even to tell Arestia.  Mr. Pilarinos spoke to Mr. Katanas.  Later, Mr. Ng, Mr. Young and Mr. Pilarinos met at the Pantry Restaurant for about 50 minutes. 

[161]    Sunday, February 28: Dimitrios Pilarinos spoke with Dennis Pilarinos and they again discussed the possibility that Dimitri Vrahnos was the informer.

[162]    Monday, March 1: Mr. Pilarinos spoke to Mrs. Ng about the collapse of the casino application.  She said that it was not worth pursuing the matter further as his friend would get into trouble.  Mr. Pilarinos agreed.  There were several conversations between Mr. Ng, Mr. Pilarinos and Mr. Katanas that afternoon.  Mr. Ng met with Mr. Pilarinos around 4:46 p.m. 

Evidence regarding Mr. Clark

 

[163]    Some of the evidence I have already reviewed also applies to Mr. Clark.

[164]    A number of statements by Mr. Pilarinos are in evidence.  These statements are not admissible against Mr. Clark unless they fall within the co-conspirator’s exception to the hearsay rule, and, pursuant to my ruling of June 7, 2002, (2002 BCSC 0855), are found to be necessary and reliable.

[165]    The Crown takes the position that I should not infer an agreement between Mr. Pilarinos and Mr. Clark unless I am satisfied beyond a reasonable doubt that Mr. Pilarinos is guilty of aiding and abetting Mr. Clark in committing a breach of trust, as alleged in Count 9 of the indictment.

[166]    I prefer to approach the issue a different way because in my view, a finding that Mr. Pilarinos is a party to the breach of trust count does not inevitably lead to a finding that there was an agreement between the two men.

[167]    As there is no jury, I will apply the test in R. v. Carter (1982), 67 C.C.C. (2d) 568 (S.C.C.), before I turn to consider whether the statements are necessary and reliable. 

[168]    In Carter, the Court developed an approach to the admission of hearsay evidence that was intended to safeguard against the admission of the evidence against someone who was not a co-conspirator.  This analysis is not limited to conspiracy charges and applies to any offence where it is alleged that the accused were engaged in a joint criminal enterprise.

[169]    The three-steps in the Carter test are as follows:

i)                the Crown must prove beyond a reasonable doubt, based on all of the evidence, that a conspiracy existed.  If not, the jury must acquit.

ii)            if there is proof beyond a reasonable doubt that a conspiracy existed, then on the basis of evidence directly admissible against the accused, it must be shown on a balance of probabilities that the accused was a member of the conspiracy.

iii)        if so, the trier of fact is entitled to consider the hearsay exception and consider the evidence of the acts and declarations performed and made by the co-conspirators in furtherance of the objects of the conspiracy as evidence against the accused on the issue of guilt.

[170]    This approach has faced considerable criticism, as noted in my earlier ruling in this case found at 2002 BCSC 0855.  There is a live issue regarding what evidence may be considered during the first stage of the analysis.  This trial court is not in agreement on the issue.  See R. v. Wiggins. [1986] B.C.J. No. 2477 (S.C.)and R. v. Chan [2001] B.C.J. No. 1689 (S.C.).  The first stage may be considered in this way – if based on all of the evidence, the trier of fact would not convict, then there is no need to consider the admissibility of the hearsay evidence.  While this is a straightforward analysis for a judge to apply, it may be a difficult task for a jury, given what is required of them in the next step, the disregarding of evidence they have already considered.  This is the strength of the argument for the “gatekeeping” function of the judge at step 1.  

[171]    With deference to those who think otherwise, I find that the wording of the Carter test is clear.  Whether it should be reconsidered is another matter.  The first stage of the Carter test requires the trier of fact to determine, based on all of the evidence, including the statements allegedly “in furtherance of the conspiracy”, whether the Crown has proved a conspiracy beyond a reasonable doubt.  I add, parenthetically, that “all of the evidence” does not literally mean “all of the evidence”.  It would not, for example, include a confession made by a co-conspirator.  I agree with the observations of David Paciacco and Lee Steusser in The Law of Evidence, 2nd. ed. (Toronto:Irwin Law, 1999) at p. 104:

As can be seen, the “co-conspirator exception” applies only when the trier of fact is satisfied as to the existence of the conspiracy and there is probable evidence that the accused was a member.  The phrase “all the evidence” in step 1 should not be taken too literally.  For example, it would be improper to use the confession of a co-conspirator against the accused, while it would be proper at this stage to consider all the evidence admitted “in furtherance of the conspiracy”.

 

[172]    In his ruling in Carter, Justice McIntyre made this observation, at p. 573:

In attempting to deal with this question, judges are confronted, on the one hand, with the well-settled rule that recognizes the agency principle in connection with the conspiracy at criminal law, but must, nonetheless, be deeply sensible of the grave injustice which could result from the application of the co-conspirator’s exception to the hearsay to a person not, in fact, shown to be a member of the conspiracy.

 

[173]    Statements of an alleged co-conspirator are hearsay evidence untested by cross-examination, and are tendered by the Crown for the truth of their contents.  Unlike other examples of hearsay evidence, the statements of a co-conspirator generally do not have the air of “reliability” that accompany other categories of hearsay evidence.  The Carter test, in spite of its difficulties in application, was established as protection for the accused faced with an allegation of conspiracy.

[174]    The Crown submits that an implicit agreement or understanding evolved over time between Mr. Clark and Mr. Pilarinos.  The Crown points to the meetings between Mr. Clark and Mr. Farnworth as evidence in this regard.  Mr. Clark testified that no such agreement existed.

[175]    There is considerable evidence suggesting the existence of a conspiracy, involving not only Mr. Pilarinos but also several persons who are not indicted.  I am satisfied beyond a reasonable doubt that a conspiracy existed.  However, I am not satisfied, on a balance of probabilities, based on the admissible evidence against Mr. Clark, that he was a member of that conspiracy.  Therefore, the statements made by Mr. Pilarinos are not admissible for the truth of their contents against Mr. Clark.

[176]    This ruling does not affect my earlier ruling that some statements demonstrating Mr. Pilarinos’ state of knowledge in relation to certain information are admissible as circumstantial evidence with respect to the case against Mr. Clark.

[177]    Before leaving the overview of the facts, I wish to make this observation: during the trial, repeated allegations of misconduct were made against Staff Sergeant Peter Montague.  The defence theory was, in part, that Staff Sergeant Montague drove this investigation for political motives as he had been approached by the provincial Liberal Party to run as a candidate.  At the outset of the trial, the defence said it wanted to cross-examine Staff Sergeant Montague.  Later in the proceedings, the Crown said that he would produce Staff Sergeant Montague for cross-examination.  The defence advised that they did not want him called as a witness.  The Crown had no other reason to call him and he did not testify.  At the end of the trial, the defence again raised the fact that Staff Sergeant Montague had not been called and had to be reminded that it was their decision that he not testify.  I find this conduct by the defence, of making serious allegations regarding matters that go directly to the professional character of a person and then refusing to take any steps to back up the allegations, unacceptable.  The defence is given wide latitude in terms of mounting the defence of an accused person, and for good reason.  However, it must stop short of  allegations of professional misconduct which it is not prepared to substantiate.  The defence pointed to the interview of Mr. Farnworth as an example of Staff Sergeant Montague attempting to influence the evidence of a witness.  It is clear that no such thing occurred.  No doubt Staff Sergeant Montague made Mr. Farnworth uncomfortable, however, that does not amount to attempting to manipulate the evidence.  As Lamer J.(as he then was) said in R. v. Rothman, [1981] 1 S.C.R. 640, the police are not obliged to play by the Marquess of Queensbury rules.

[178]    I find that there was no evidence in this trial that substantiated any of the allegations made against Staff Sergeant Montague.  Whether there was in fact substance to the allegations cannot be determined because of the defence’s decision not to cross-examine Staff Sergeant Montague.    

The Law

General Principles

[179]    The burden is on the Crown to prove each essential element of an offence beyond a reasonable doubt.  This onus rests with the Crown and never shifts to the accused.  However, the Crown is not required to prove each fact that makes up its theory beyond a reasonable doubt.  See R. v. Morin (1988), 44 C.C.C. (3d) 193 (S.C.C.), R. v. Arp (1998), 129 C.C.C. (3d) 321 (S.C.C.). 

[180]    Mr. Pilarinos did not testify.  He had no obligation to do so, and his failure to testify cannot be placed on the scales to assist the Crown in the proof of its case.  See R. v. Francois (1994), 91 C.C.C. (3d) 289 (S.C.C.).

[181]    A number of Mr. Pilarinos’ statements are in evidence, including those asserted by Mr. Vrahnos and the wiretap.  Obviously those statements are admissible not only against Mr. Pilarinos, but also for him.  For example, in the conversation between Mr. Pilarinos and Jim Young at the Blue Button Club on February 19, 1999, referred to above, Mr. Pilarinos’ statement about renovating Mr. Clark’s home and not asking for anything in return is exculpatory.

[182]    Mr. Clark testified.  His counsel argues that if I believe Mr. Clark, or if his evidence at least raises a reasonable doubt, I must acquit him.  He relies on R. v. D. (W.) (1991), 63 C.C.C. (3d) 397 (S.C.C.) in this regard.  The formula found in D.(W.) is not so simply applied.  The analysis is correct in the context of one person’s version of events as against the accused’s or another witness’ version of events.  However, even an honest witness may not necessarily exculpate themselves.  Indeed, sometimes honest witnesses incriminate themselves.

[183]    Another basic principle is that I can accept all, part or none of any witness’s testimony.  

[184]    The law in relation to each count on the indictment will be discussed in the context of that count.

Dimitrios Pilarinos

 

[185]    Mr. Pilarinos is charged with two counts each pursuant to s. 121(1)(a) and 121(1)(e), and one count pursuant to each of s. 121(1)(b), 121(1)(d), s. 341, and s. 397(1)(b).  He is charged as a party with respect to s. 122.  I intend to deal with this last count when I address the charges against Mr. Clark.

Counts 1 and 2:

 

[186]    For convenience sake, I will repeat those counts here.

COUNT 1:

 

DIMITRIOS PILARINOS, between December 1, 1997, and October 1, 1998, at or near Vancouver and Penticton and elsewhere in the Province of British Columbia, while having dealings with the Government of British Columbia relating to an application for a casino licence, gave to an official of the said Government, to wit, GLEN DAVID CLARK, Premier, President of the Executive Council and Member of the Legislative Assembly of the said Government, or to a member of the family of the said Clark, a reward, advantage or benefit, to wit, improvements to real property, as consideration for co-operation, assistance or the exercise of influence in connection with the granting of a casino licence, being a transaction of business with or a matter of business relating to the said Government, or a benefit that Her Majesty in right of the said Government is authorized or entitled to bestow, CONTRARY TO SECTION 121(1)(a) OF THE CRIMINAL CODE.

 

COUNT 2:

 

DIMITRIOS PILARINOS, between December 1, 1997, and October 1, 1998, at or near Vancouver and Penticton and elsewhere in the Province of British Columbia, while having dealings with the Government of British Columbia relating to an application for a casino licence, gave to a minister of the Government of British Columbia or an official of the said Government, to wit, GLEN DAVID CLARK, Premier, President of the Executive Council and Member of the Legislative Assembly of the said Government, a reward, advantage or benefit, to wit, improvements to real property, as consideration for co-operation, assistance or the exercise of influence in connection with the granting of a casino licence, being a transaction of business with or a matter of business relating to the said Government, or a benefit that Her Majesty in right of the said Government is authorized or entitled to bestow, CONTRARY TO SECTION 121(1)(e) OF THE CRIMINAL CODE.

 

[187]    The Crown and the defence differ significantly regarding the essential ingredients of this offence.  The defence submits that the beneficiary of the benefit must agree to deal on behalf of the government for consideration.  In other words, he says that a quid pro quo agreement is a necessary element of the offence.  In contrast, the Crown submits that this offence does not mandate a quid pro quo.  The Crown says that the beneficiary need not accept the benefit.  The essential ingredient is the intent to influence or reward the official.  Both parties rely on R. v. Cogger (1997), 116 C.C.C. (3d) 322 (S.C.C.), in support of their argument.

[188]    In Cogger, L’Heureux-Dubé J. clarified some of her earlier comments in R. v. Hinchey (1996), 111 C.C.C. (3d) 353 (S.C.C.), where she had identified the differences between s. 121(1)(a) and s. 121(1)(c).  Section 121(1)(a) requires that the actual integrity of an official have been compromised, in contrast to s. 121(1)(c), which is primarily concerned with the appearance of integrity.  She referred to her Reasons in Hinchey, where she had stated at para. 21: 

This section [s. 121(1)(a)] clearly tries to preserve the actual integrity of government employees by deterring them from taking benefits in return for giving, or promising some sort of reward to the benefactor.  It is noteworthy that no actual return need be made to be trapped under the section.  It is sufficient for culpability if the gift was given for an ulterior purpose, in that it was designed to compromise the integrity of the employee.  The purpose behind the section recognizes that the integrity of government employees can be compromised when they accept rewards because of their position in government.  This is in stark contrast, however, to s. 121(1)(c) which does not explicitly require the reward to come as a result of the employee's position.  It does not have to.  This is not the evil the section is designed to prevent. [Emphasis in original.]

 

[189]    However, in Cogger, L’Heureux-Dubé J. modified her position.  She stated at para. 22:

At first glance, this excerpt would appear to support the respondent's position.  Still, the judgment must be read in its entirety and also in light of this Court's other jurisprudence on s. 121(1)(a).  As stated at the outset, the object of s. 121(1)(a) is to prevent government officials from taking benefits from a third party in exchange for conducting some form of business on that party's behalf with government.  The essence of the section, therefore, is the quid pro quo arrangement, which is not a required element under s. 121(1)(c).

 

[190]    In Cogger, the Court was considering s. 121(1)(a) in relation to an official accused of accepting a benefit in exchange for assistance with government.  The Court held that what was required was that the accused commit the prohibited act with knowledge of the circumstances which are necessary elements of the offence.  In that case, the elements of the offence included that the accused official must know that the benefit is in consideration for co-operation, assistance or exercise of influence in connection with the transaction of business with or relating to the government.  However, there was no requirement for the official to act in response to the benefit, only to accept the benefit knowing the reason behind the benefit.  Thus, quid pro quo refers to the intention behind the benefit or the demand for a benefit.  I refer to benefit as that is what is alleged in this indictment.  This reasoning encompasses all aspects of the provision, which includes a loan, reward, advantage or benefit. 

[191]    Thus, under s. 121(1)(a), it is sufficient if the government official accepts the benefit knowing that it was given for an ulterior motive, even if no return is ultimately made.  Reciprocally, the giver may be culpable if the benefit was given for “an ulterior purpose” even if there is no acceptance of the benefit by the official or return by the official.  As noted in Hinchey, supra, this section is aimed at protecting actual integrity, as opposed to the appearance of integrity. 

[192]    If a quid pro quo agreement were necessary, as argued by the defence, then an individual who offers an official a benefit in return for assistance or the exercise of influence will not be culpable in the event the official declines the offer, as in such circumstances there would be no quid pro quo.  Similarly, an official who demands or offers to accept a benefit in exchange for assistance will escape culpability where such a demand or offer is rejected. That does not seem to be a sensible result.  Given that the section is aimed at preserving the actual integrity of government officials it must have been intended to capture this type of conduct.

[193]    Further assistance is found in s. 426(1) of the Criminal Code, which prohibits secret commissions.  The language mirrors that of s. 121(1)(a):

(1)   Every one commits an offence who

(a)   corruptly

(i)   gives, offers or agrees to give or offer to an agent, or

(ii)  being an agent, demands, accepts or offers or agrees to accept from any person

any reward, advantage or benefit of any kind as consideration for doing or forbearing to do, or for having done or forborne to do, any act relating to the affairs or business of his principal or for showing or forbearing to show favour or disfavour to any person with relation to the affairs or business of his principal;

[194]    The Ontario Court of Appeal considered this provision in R. v. Wile and Cappuccitti (1990), 58 C.C.C. (3d) 85 and said as follows at p. 94:

The secret commission offence provided for in this section of the Code is made out when a person corruptly offers (or gives or agrees to give or offer) a benefit to an agent as consideration for doing or forbearing to do something in relation to the affairs or business of his principal.  While the Crown must, of course, prove that the person who was offered the benefit was in fact an agent, in our opinion the agent need not have a specific principal at the time the prohibited offer was made.  Nor need the agent intend to carry out the purpose for which the offer was made.  The gravamen of the offence is the offer to the agent and the corrupt intention accompanying the offer. [emphasis added] 

 

[195]    The Court, at pp. 94-95, cited a passage from Laskin J.A.’s judgment in R. v. Reid, [1969] 1 O.R. 158 at 168, 2 C.C.C. 31 at 41, wherein he said:

…I am in no doubt that there may be a corrupt giving within s. 368(1)(a)(i) [s. 426(1)(a)(i)] even though it turns out that the receiving agent did nothing untoward but merely acted in the ordinary course.  The clause under discussion does not demand proof that the agent acted disloyally; rather, it fastens on the purpose of the accused to influence such a result or to reward such a result.

 

[196]    Further, in R. v. Kelly (1992), 73 C.C.C. (3d) 385 (S.C.C.), the Supreme Court considered the elements of s. 426(1).  Cory J., writing for the majority (along with L’Heureux-Dube J.), held as follows on the issue of whether a corrupt bargain is necessary, at 405:

Is the Crown required to prove that there was a corrupt bargain between the giver and the taker of the benefit?  I think not…

 

The requirement of both a corrupt giver and a corrupt taker collapses the two independent provisions of s. 426(1)(a).  The use of the disjunctive “or” in s. 426(1)(a) must mean that the section applies to either the giver or the taker.  The provision need not apply to both at the same time.  This interpretation I believe is supported by the obvious intent and aim of the section itself.

 

[197]    In Cogger, supra, L’Heureux-Dube J. focused on the acceptance of a benefit by an official.  However, the offence can be committed in many other ways.  Thus, I do not think that Cogger stands for the proposition that there must be a quid pro quo arrangement between the giver and the taker before the offence is made out.

[198]    The elements of this offence as it relates to the allegations here are:

Dimitrios Pilarinos

i)                gave a reward, advantage or benefit, to wit, improvements to real property,

ii)            to an official, Mr. Clark, or any member of his family,

iii)        as consideration for cooperation, assistance, exercise of influence or an act or omission,

iv)            in connection with the transaction of business with or any matter of business relating to the government, to wit, the application for a casino licence.

[199]    The Crown need only prove that Mr. Pilarinos intentionally committed the prohibited act with a knowledge of the circumstances that are necessary elements of the offence.

[200]    It is not contested that Mr. Clark is an official.

[201]    Counsel for Mr. Pilarinos concedes that by working on Mr. Clark’s home and not accepting payment, Mr. Pilarinos conferred a benefit on Mr. Clark.  Mr. Clark, however, does not concede that he accepted a benefit from Mr. Pilarinos.

[202]    Although it is conceded by Mr. Pilarinos, I must at some point determine whether Mr. Pilarinos conferred a benefit on Mr. Clark, as Mr. Clark is charged with accepting a benefit from Mr. Pilarinos.  The Crown submits that there are two discrete times at which Mr. Pilarinos conferred a benefit on Mr. Clark.  The first is in relation to the renovations performed on Mr. Clark’s home when Mr. Pilarinos was not paid for his labour.  The second is the work performed by Mr. Pilarinos at Mr. Clark’s cabin.

The House Renovations on Anzio Drive

 

[203]    In R. v. Hinchey, supra, the Court was aware of the danger of convicting someone for accepting a small or trivial gift and stated that s. 121(1) was not enacted to criminalize such conduct.  A gift must constitute a benefit to form part of the actus reus of the offence.  All of the circumstances must be objectively assessed when determining whether a gift is a “benefit”.  The majority of the Court referred to some guidelines to consider in making this determination, including:

i)    the relationship between the parties.  Are they friends or business acquaintances? Is there a history of reciprocal arrangements, such as buying each other lunch or dinner?  Was the gift in the context of an on-going friendship, such as a birthday gift?

 

ii)   the size or scope of the benefit.  Is it a cup of coffee or a car?

 

iii) the manner in which the gift was bestowed.  Was it done in secret or in the open?

 

iv)   the official or employees' function in government

 

v)   the nature of the giver’s dealings with the government

 

vi)   the connection, if any, with the giver’s dealings and the official or employee’s job

 

vii)  the state of mind of the receiver and the giver (as it relates to the actus reus)

 

[204]    Mr. Clark and Mr. Pilarinos were not close friends.  There was no evidence of a history of reciprocity between them except for potluck dinners with their neighbours.  The gift of free labour was significant, amounting to some $1,800.00.  It is not a huge sum; nor is it a paltry or trivial sum.  Mr. Clark was not directly connected to the casino application process, but he was the Premier of the Province.  It is clear from the evidence that Mr. Pilarinos thought Mr. Clark had input into the casino licensing process.  Although the work itself was done in the open, Mr. Pilarinos did not disclose the work in a follow-up request from GAIO for more information about his work history.  I am satisfied beyond a reasonable doubt that the renovations performed by Mr. Pilarinos were a “benefit” within the meaning of s. 121(1) that he conferred on Mr. Clark and Mr. Clark’s family.

The Penticton Cabin Deck

 

[205]    The work on the deck was performed under different circumstances.  The deck ultimately had to be ripped down because it was not safe.  Therefore, at the end of the day, there was no actual benefit to Mr. Clark or his family.  Although Mr. Pilarinos did the bulk of the work on the deck, the Clarks and the Morrisons, (friends who were also staying with the Clarks), also helped to build the deck.  The value of Mr. Pilarinos' work was not significant.  The value of the lumber he provided was also not substantial, particularly given the Clarks paid close to $1,000.00 for material for the deck.  The Pilarinos family was invited to the cabin by Mrs. Clark, stayed with the Clarks for over a week and paid no rent.  It is fair to say that the work on the deck was, in some ways, a reciprocal arrangement for the Pilarinos’ vacation at the lake.  Everyone worked or helped out when they visited the Clarks’ cabin.  This is a common occurrence that no doubt occurs at thousands of cottages and cabins across the country.  For some reason, people buy cabins so they can work on them.  Mr. Clark said that if visitors did not help out, they were not invited back. 

[206]    I conclude that the work performed at the cabin and the used lumber provided do not constitute a “benefit”. 

[207]    The Crown must also prove beyond a reasonable doubt, not only that a benefit was conferred, but that the benefit was conferred to an official (Mr. Clark) as consideration for cooperation, assistance or the exercise of influence in connection with the granting of the casino licence.  

[208]    The testimony of Mr. Vrahnos, the correspondence between Mr. Ng and Mr. Pilarinos and the wiretap evidence overwhelmingly support the conclusion that Mr. Pilarinos conferred the benefit on Mr. Clark with the ulterior motive of obtaining Mr. Clark’s assistance in obtaining the casino licence.  He told Mr. Vrahnos that Mr. Clark was doing things for him, that Mr. Clark had come through for him, that he had done renovations for Mr. Clark for free because Mr. Clark was helping him, and that he did free work for other people so that it would not look bad for Mr. Clark.  The work was done close in time to when the application was under consideration.  He tore up the cheque given to him by Mrs. Clark.  He did not charge the Clarks for his work and that is reflected in the bill that he provided to them.  I have considered the conversation between Mr. Pilarinos and Mr. Young in the Blue Button Club.  However, this statement does not raise a reasonable doubt in the face of the other evidence.

[209]    The evidence demonstrates beyond a reasonable doubt that between December 1, 1997 and October 1, 1998, Mr. Pilarinos intentionally conferred a benefit on Mr. Clark with the intention that the benefit would be consideration for Mr. Clark’s assistance or the exercise of influence in the granting of the casino licence.

[210]    I find Mr. Pilarinos guilty of Count 1.

[211]    Count 2 is similar to Count 1 and its elements overlap.  The distinction is that Mr. Pilarinos must have had dealings with the government relating to the application for a casino licence at the time the benefit was conferred.  It is not contested that Mr. Pilarinos had dealings with the Government of British Columbia relating to an application for a casino licence during the time on the indictment.  It is not contested that Mr. Clark was an official.  Mr. Pilarinos conceded that the renovations were a benefit, and I have found that the renovations in Vancouver were a benefit.  The renovations are improvements to real property.  I have found that the benefit was intentionally conferred by Mr. Pilarinos and it was intended as consideration for Mr. Clark’s assistance or exercise of influence in connection with the granting of the casino licence.

[212]    I find Mr. Pilarinos guilty of Count 2.

[213]    Counts 3 and 4 are as follows:

COUNT 3:

 

DIMITRIOS PILARINOS, between April 1, 1997, and January 31, 1999, at or near Vancouver and elsewhere in the Province of British Columbia, offered to give to an official of the Government of British Columbia, to wit, GLEN DAVID CLARK, Premier, President of the Executive Council and Member of the Legislative Assembly of the said Government, a reward, advantage or benefit, being a 15-per-cent interest in or share in the proceeds of the operation of a licensed casino, as consideration for co-operation, assistance or the exercise of influence in connection with an application for a casino licence, being a transaction of business with or a matter of business relating to the said Government, or a benefit which Her Majesty in right of the said Government is authorized or entitled to bestow, CONTRARY TO SECTION 121(1)(a) OF THE CRIMINAL CODE.

 

COUNT 4:

 

DIMITRIOS PILARINOS, between April 1, 1997, and January 31, 1999, at or near Vancouver and elsewhere in the Province of British Columbia, while having dealings with the Government of British Columbia relating to an application for a casino licence, offered to give to a minister of the Government of British Columbia or an official of the said Government, to wit, GLEN DAVID CLARK, Premier, President of the Executive Council and Member of the Legislative Assembly of the said Government, a reward, advantage or benefit, being a 15-per-cent interest in or share in the proceeds of the operation of a licensed casino, as consideration for co-operation, assistance or the exercise of influence in connection with an application for a casino licence, being a transaction of business with or a matter of business relating to the said Government, or a benefit which Her Majesty in right of the said Government is authorized or entitled to bestow, CONTRARY TO SECTION 121(1)(e) OF THE CRIMINAL CODE.

 

[214]    These allegations are founded on the evidence of Mr. Vrahnos that Mr. Pilarinos offered Mr. Clark a 15% share in the casino, but that Mr. Clark refused the offer.  Mr. Clark denied that Mr. Pilarinos offered him 15% of the casino. Although I accept the evidence of Mr. Vrahnos that Mr. Pilarinos said this to him, I find that Mr. Clark’s evidence raises a reasonable doubt on whether Mr. Pilarinos actually made this offer to Mr. Clark.  See R. v. D. (W.), supra.

[215]    Therefore, I find Mr. Pilarinos not guilty of Counts 3 and 4.

COUNT 5:

 

DIMITRIOS PILARINOS, between December 1, 1997, and October 1, 1998, at or near Vancouver and Penticton and elsewhere in the Province of British Columbia, while having dealings with the Government of British Columbia in relation to an application for a casino licence, conferred a benefit with respect to those dealings, being improvements to real property, on an official of the said Government with which he was dealing, to wit, GLEN DAVID CLARK, Premier, President of the Executive Council and Member of the Legislative Assembly of the said Government, directly and through a member or members of the family of the said Glen David Clark, without the consent in writing of the head of the branch of Government with which he was dealing, CONTRARY TO SECTION 121(1)(b) OF THE CRIMINAL CODE.

 

[216]    Sections 121(1)(b) and 121(1)(c) are broader in their scope than s. 121(1)(a) or (e).  These provisions are designed not only to preserve the actual integrity of government, but also to maintain the appearance of the integrity of government.  See R. v. Hinchey, supra. Section 121(1)(b) is aimed at the “giver” of the benefit, while s. 121(1)(c) is aimed at the recipient.  The sections are capable of capturing conduct that Parliament never intended to be criminal.  Indeed, it is difficult to see how many public service employees could avoid violating the law if it was broadly construed.  On the other hand, government officials and employees have considerable power and authority.  Their conduct must be above reproach in relation to their employment and office.  See R. v. Pilarinos and Clark, 2002 BCSC 452, in relation to the overbreadth analysis.

[217]    The law also limits the ability of persons to be generous with a government official and it means that the officials cannot make mistakes in judgments.  The question is at what point is the line crossed from a breach of government policy or provincial legislation, which may carry censure, to conduct which deserves the full force of the criminal law?  This is the difficult question in a case such as this where the conduct alleged is subtle and not related to the government official directly involved, but to a government official who has general supervisory authority over all aspects of government.

[218]    The essential ingredients of s. 121(1)(b) in relation to this case are as follows: 

Dimitrios Pilarinos,

 

i)    having dealings with the Government of British Columbia in relation to an application for a casino licence,

 

ii)            conferred a benefit, being improvements to real property,

 

iii)        on Glen Clark, an official of the government with which he deals,

 

iv)            with respect to those dealings,

 

v)                without the consent in writing of the head of the branch of government with which he deals.

 

[219]    I am satisfied beyond a reasonable doubt that Mr. Pilarinos had dealings with the government by virtue of his casino application.  Indeed, this fact is not disputed.

[220]    I have found that Mr. Pilarinos conferred a benefit on Mr. Clark by doing renovations on his home on Anzio Drive, Vancouver, B.C. and not accepting payment for that work.

[221]    It is clear from the evidence of his discussions with Mr. Vrahnos, Mr. Ng and Mr. Young, that Mr. Pilarinos thought Mr. Clark had input into the casino licensing process.

[222]    There is no issue that Mr. Clark was an official and that Mr. Pilarinos did not have consent in writing to confer a benefit on Mr. Clark.  I find that Mr. Farnworth was the only individual who could have provided consent, given Mr. Clark’s position as Premier.

[223]    The Crown must prove beyond a reasonable doubt, not only that a benefit was conferred, but that the benefit was intentionally conferred with respect to those dealings, here, the casino application.  See R. v. Cooper (1978), 34 C.C.C. (2d) 18 (S.C.C.). 

[224]    The testimony of Mr. Vrahnos, the correspondence between Mr. Ng and Mr. Pilarinos and the wiretap evidence overwhelmingly support the conclusion that Mr. Pilarinos intended to confer the benefit on Mr. Clark with respect to his dealings with the government.  The evidence in support of this finding is discussed in reference to Count 1 and I need not repeat it here.

[225]    The evidence demonstrates beyond a reasonable doubt that Mr. Pilarinos intentionally conferred a benefit on Mr. Clark with respect to the dealings relating to the casino application without the consent of Mr. Farnworth.  Thus, Mr. Pilarinos is guilty of Count 5.

COUNT 6:

 

DIMITRIOS PILARINOS, between April 1, 1997, and March 2, 1999, at or near Vancouver, Burnaby and elsewhere in the Province of British Columbia, having or pretending to have influence with the Government of British Columbia or with a minister or official of that Government, to wit, GLEN DAVID CLARK, Premier, President of the Executive Council and Member of the Legislative Assembly of the said Government, accepted a reward, advantage or benefit, to wit, a share in a company or the right to share in the proceeds of a proposed casino, as consideration for co-operation, assistance or the exercise of influence through the said Clark, in connection with an application for a casino licence, being a transaction of business with or a matter of business relating to the said Government, or a benefit that Her Majesty in right of the said Government is authorized or entitled to bestow, CONTRARY TO SECTION 121(1)(d) OF THE CRIMINAL CODE.

 

[226]    The theory behind this count arises from the evidence of Mr. Vrahnos that Mr. Pilarinos told him that he had a 30% share in the casino and that his contribution was whatever money he had along with his connection to “his friend”, Mr. Clark.  The defence submits that the only evidence supporting this count is the testimony of Mr. Vrahnos.  The defence further argues that there is no evidence of Mr. Pilarinos having had any discussions with Mr. Clark in the summer and fall of 1997, when the casino proposal was submitted.

[227]    The Crown says that Mr. Pilarinos had no gambling experience, did not have a great deal of liquid assets, and was not a sophisticated businessman.  Mr. Ng was the financier behind the proposal, while Mr. Katanas had experience in the gambling business.  Accordingly, the Crown submits, the only rational explanation for Mr. Pilarinos' participation in the proposal as an equal partner was his connection with Mr. Clark.

[228]    The wiretap evidence shows that Mr. Pilarinos was of the view that he could influence government through his connection with Mr. Clark.  For example, he stated on a number of occasions that he would try to speak to “his friend” when things were not going well. 

[229]    In a wiretap conversation with Aris Economou, Mr. Economou said that one had to have a “big shark inside”.  Mr. Pilarinos replied, “Any bigger shark than the one we have does anyone else have?”

[230]    And later, in a conversation between Mr. Pilarinos and one Terry:

T:    And, the other, he doesn’t, let’s say, have any pull with the money, one or another, doesn’t he have…

 

DP:   That doesn’t have significance.

 

T:    To oil someone in there, something like that.

 

DP:   That doesn’t have significance.  I have a bigger pull than him, but

 

T:    Ah, you have a bigger pull?  But

 

DP:   These things don’t happen if you don’t you have pull.  Nothing is going to happen Terry.

 

DP:   Well, I have an acquaintance there to see if he can’t do anything to change the decision you know.

 

T:    Well in there with money can’t you do anything there?

 

DP:   It’s not the easy, you

 

T:    It isn’t huh?

 

DP:   You don’t know who to buy or who not to buy, you understand?

 

T:    Yeah, yeah.

 

DP:   If you don’t go to the right person fine, if you don’t you’re screwed.

 

This conversation, along with the other evidence, supports the inference that Mr. Pilarinos was of the view he could exercise influence within the government through Mr. Clark.

[231]    After Mr. Pilarinos and Mr. Ng received the February 17 letter from Mr. Farnworth, Mr. Ng looked to Mr. Pilarinos to get advice from Mr. Clark and repeatedly asked whether he had met his friend.  The frequency of Mr. Pilarinos’ contact  with Mr. Clark increased and his purported discussions with Mr. Clark were reported back to Mr. Ng and others.   

[232]    In addition, Mr. Pilarinos repeatedly spoke to Mr. Ng and others about protecting Mr. Clark and ensuring that he was not in any danger when things began to fall apart in February 1999.

[233]    Therefore, there is more evidence than just that of Mr. Vrahnos to support the charge as alleged. 

[234]    This offence applies to people outside government, not just those inside government.  See R. v. Giguere (1983), 8 C.C.C. (3d) 1 (S.C.C.).  However, section 121(1)(d) is limited to those who have, or pretend to have, a significant nexus with government and is not intended to capture minor dealings such as the arranging of a meeting or the "opening of doors".  In Giguere, the Court held, at p. 12:

…[A] person having influence with government is a person who could affect, for example, a decision by government to award a contract, and correspondingly a person who pretends to have influence is a person who pretends he could affect such a government decision.

 

[235]    The elements of this offence as alleged are:

Dimitrios Pilarinos

i)                having or pretending to have influence with Glen Clark,

ii)            accepted a reward, advantage or benefit, being a share in a company or the right to a share in the proceeds of a proposed casino,

iii)        as consideration for co-operation, assistance or the exercise of influence through Glen Clark,

iv)            in connection with the application for a casino licence, being a transaction or matter of business with the Government of British Columbia.

[236]    The first issue is whether the Crown has proved beyond a reasonable doubt that Mr. Pilarinos could affect or pretended he could affect the decision to award the casino licence.

[237]    There is little, if any, evidence that Mr. Pilarinos could affect the decision to award the casino licence.  There is a plethora of evidence, some referred to above, that he pretended he could affect the decision to award the casino licence.  I am satisfied beyond a reasonable doubt that Mr. Pilarinos intentionally pretended to have influence with Mr. Clark.

[238]    The next issue is whether he accepted a share in the company or the proceeds from the proposed casino as consideration for co-operation, assistance or the exercise of influence through Mr. Clark in connection with the application for a casino licence.

[239]    The evidence on this issue is primarily that of Mr. Vrahnos, which I accept.  There is also the evidence that Mr. Pilarinos was pretending to have influence with Mr. Clark, together with the evidence that Mr. Pilarinos had no other significant contribution to the casino proposal.  I do not accept the defence submission that Mr. Pilarinos had sufficient assets to support his involvement in the casino.  His assets were primarily his home.  He had some cash savings, but nothing of the magnitude required to financially support the opening of a casino.

[240]    The whole of the evidence leads me to conclude, beyond a reasonable doubt, that Mr. Pilarinos was to receive a 30% share in the proposed casino in exchange for the influence he pretended to have with Mr. Clark, who was the Premier of British Columbia, in connection with the North Burnaby Inn application for a casino licence.

[241]    I find Mr. Pilarinos guilty of Count 6.  

COUNT 7:

 

DIMITRIOS PILARINOS, between April 1, 1997, and March 2, 1999, at or near Vancouver, Burnaby, Victoria and elsewhere in the Province of British Columbia, for a fraudulent purpose, did conceal something, to wit, the participation of one PASCHOS KATANAS as legal or beneficial owner of shares in a company seeking a casino licence, or participant in the proceeds of the operation of a proposed casino, such thing being concealed from the Ministry of Employment and Investment of the said province in connection with an application made or pending for a licence to operate the said casino, CONTRARY TO SECTION 341 OF THE CRIMINAL CODE.

 

[242]    This offence is what is known as fraudulent concealment.  The Crown alleges that Mr. Pilarinos did not disclose the existence of Mr. Katanas as a “silent partner” in the casino application because of Mr. Katanas’ prior conflicts with the government in relation to gaming.

[243]    The essential ingredients of this offence as alleged are:

Dimitrios Pilarinos

i)                concealed the participation of Paschos Katanas as a legal or beneficial owner of shares in a company seeking a casino licence, or as a participant in the proceeds of the operation of a proposed casino,

ii)            from the Ministry of Employment and Investment of British Columbia,

iii)        in connection with an application made or pending for a licence to operate the casino,

iv)            for a fraudulent purpose.

[244]    The evidence in relation to this count comprise the following.  Mr. Pilarinos told Dimitri Vrahnos that Mr. Katanas was involved in the casino as a partner.  Mr. Vrahnos testified that Mr. Pilarinos refused to “drop Mr. Katanas" despite his urging.  Mr. Katanas was the only one of the three principal partners with gambling experience.  A partially completed Appendix G was found in Mr. Katanas’ home which suggests that Mr. Katanas began filling out the application, but stopped when he was required to disclose prior gambling experience.  Mr. Katanas was removed as a shareholder five days after the date noted on his Appendix G.  Mr. Pilarinos and Mr. Ng discussed the disclosure of Mr. Katanas in their application after Mr. Pilarinos received his anonymous warning letter from Mr. Vrahnos.  There are references in the fax documents sent between Mr. Ng and Mr. Pilarinos regarding consultations with Mr. Katanas about the casino after he was removed as a shareholder (Ex. 62-23).  There is evidence of conversations between Mr. Ng, Mr. Pilarinos and Mr. Katanas after receipt of the “no move” letter.  Mr. Vrahnos testified that Mr. Pilarinos notified Mr. Katanas of a meeting with Mr. Ng and Mr. Young hoping it was too late for him to attend as Mr. Katanas was not on the papers and they did not want to be seen with him.  There was a meeting of the three after Mr. Clark left Mr. Pilarinos’ home on February 17.  At a meeting at the Pantry Restaurant on February 26, 1999, between Mr. Ng, Mr. Pilarinos and Mr. Young, the following conversation was recorded:

Pilarinos:     And it's not like they know for sure Pascali’s in.  What they do know is, because the proposal has to be in North Burnaby Inn, so they’re all guessing that Paskali’s the owner.

 

      And shortly after, in Mr. Pilarinos’ presence, and, I find, adopted by him:

 

Mr. Young:       Well, whatever works out for you two,

                 I ---- I certainly want to ---

 

Mr. Ng:         How, how it works out for all the four of     us.

 

[245]    The first issue is whether Mr. Pilarinos concealed “the participation of Paschos Katanas as legal or beneficial owner of shares…” in the casino company or as a “participant in the proceeds of the operation of a proposed casino”.  The evidence clearly establishes, beyond a reasonable doubt, that Mr. Katanas was still involved as a concealed partner in the casino application and that Mr. Pilarinos knew this and intentionally concealed Mr. Katanas’ involvement from the Ministry of Employment and Investment, who was investigating the application for the casino licence.

[246]    Detailed personal information regarding all persons involved in the application was mandatory as part of the application process.  Appendix G had to be filled out for each person, including Janet Fraser, who was the proposed manager.  No Appendix G was submitted for Mr. Katanas.

[247]    The next issue is whether this was done for a fraudulent purpose.  There is no question that if Mr. Katanas had been named on the application it would have not passed a GAIO investigation.  The application did not pass GAIO, in part, because of the concerns about illegal gambling at the Lumbermen’s Social Club.  Mr. Katanas was left off of the application because Mr. Pilarinos (and no doubt others) was concerned that his connection would defeat the application.

[248]    Fraud may be committed by a mere omission, particularly when silence hides from someone fundamental and essential information, and misleads the reasonable person.  See R. v. Emond (1997), 117 C.C.C. (3d) 275 (Que. C.A.), leave to appeal to S.C.C. refused at 117 C.C.C. (3d) vi. There is no question that Mr. Katanas’ participation in the proposed casino was concealed to intentionally mislead the Ministry of Employment and Investment, or in other words, for a fraudulent purpose.

[249]    I am alive to the fact that Mr. Ng had a criminal record for a morals related offence, which he disclosed, and which might have been of concern to the applicants.  However, the application could not go forward without Mr. Ng as he was providing the finances.  It could go forward without disclosing Mr. Katanas.

[250]    I am satisfied beyond a reasonable doubt that Mr. Pilarinos acted with a fraudulent purpose when he concealed the information about Mr. Katanas from the Ministry of Employment and Investment.

[251]    I find Mr. Pilarinos guilty of Count 7.

COUNT 8:

 

DIMITRIOS PILARINOS, between April 1, 1997, and March 2, 1999, at or near Vancouver, Burnaby, Victoria and elsewhere in the Province of British Columbia, with intent to defraud, omitted a material particular from a document, to wit, an application to the Ministry of Employment and Investment of the said province for a casino licence, such material particular being the fact that one PASCHOS KATANAS was a principal or partner in the proposed casino, or legal or beneficial owner of shares  in the company seeking the said licence, CONTRARY TO SECTION 397(1)(b) of THE CRIMINAL CODE.

 

[252]    This count also relates to the concealment of the participation of Mr. Katanas in the casino application from the Ministry of Employment and Investment.

[253]    The elements of this offence as alleged are:

Dimitrios Pilarinos

i)    omitted a material particular, that Paschos Katanas was a principal or partner in the proposed casino or legal or beneficial owner of shares in the company seeking the licence,

ii)   from a document, the application to the Ministry of Employment and Investment for the casino licence,

iii)  with the intent to defraud.  

[254]    In their evidence, the GAIO investigators, Thelma Siglios and Mark Everitt, indicated in the course of their investigation that they look for undisclosed partners.  Mark Everitt testified that undisclosed partners would be a concern for him.  He would consider this a material matter.

[255]    Given this evidence and the findings of fact from Count 7, I am satisfied beyond a reasonable doubt that Mr. Pilarinos intentionally omitted a material particular, that is, the participation of Mr. Katanas, from the casino application.  Further, I am satisfied beyond a reasonable doubt that this was done with the intent to defraud.  Although Mr. Pilarinos asked Mr. Ng about the disclosure of Mr. Katanas, his other acts and statements referred to above demonstrate beyond a reasonable doubt that he acted intentionally with knowledge of the circumstances.

[256]    I find Mr. Pilarinos guilty of Count 8.

COUNT 9:

 

DIMITRIOS PILARINOS, between December 1, 1997, and March 5, 1999, at or near Vancouver, Penticton and elsewhere in the Province of British Columbia, did commit the offence of breach of trust in connection with the duties of the office of an official of the Government of British Columbia, to wit, GLEN DAVID CLARK, Premier, President of the Executive Council and Member of the Legislative Assembly, in relation to an application made to the said Government, by 545738 B.C. Ltd., a company in which DIMITRIOS PILARINOS held an interest, for a Government licence to operate a casino; and in particular:

 

      (a)   by providing benefits to Glen David Clark in relation to renovations done on Mr. Clark's Vancouver residence and his Penticton summer cottage while the application, by the said company in which Mr. Pilarinos held an interest, for a Government licence to operate a casino was under consideration by the Government; and

 

      (b)   requesting and/or encouraging Glen David Clark to render assistance with respect to the said company's casino application;

 

CONTRARY TO SECTION 122 OF THE CRIMINAL CODE.

 

[257]    This count alleges that Mr. Pilarinos was a party to the offence of breach of trust.  I will refer to this count when I deal with the breach of trust charge against Mr. Clark.

Glen Clark

 

[258]    As I have found that there is no evidence that Mr. Clark was a member of a conspiracy, the statements made by Mr. Pilarinos are not evidence of the truth of their contents against Mr. Clark.

[259]    The evidence for and against Mr. Clark primarily includes, but is not limited to, the circumstantial evidence from the knowledge of certain facts by Mr. Pilarinos, the evidence of police surveillance officers, Michael Farnworth, George Ford, Adrian Dix, and Dale Clark, as well as Mr. Clark’s statement to the police and his evidence at trial.

[260]    I will deal with Count 11.

Section 121(1)(c)

 

COUNT 11:

 

GLEN DAVID CLARK, between December 1, 1997, and October 1, 1998, at or near Vancouver and Penticton and elsewhere in the Province of British Columbia, being an official of the Government of British Columbia, to wit, Premier, President of the Executive Council and Member of the Legislative Assembly of the said Government, accepted or agreed to accept directly or indirectly from a person having dealings in regard to an application for a casino licence with the said Government, to wit, DIMITRIOS PILARINOS, a reward, advantage or benefit for himself or through a member of his family, to wit, improvements to real property, without consent in writing of the head of the branch of the said Government of which he was an official, CONTRARY TO SECTION 121(1)(c) OF THE CRIMINAL CODE.

 

[261]    The actus reus of the offence is set out in R. v. Hinchey at para. 41:

(a)            the giving of a “commission, reward, advantage or benefit of any kind" by a person having "dealings with the government";

 

(b)            the receipt of that "commission, reward, advantage or benefit of any kind" by a government employee; and

 

      (c)   the absence of the consent of the government employee's superior to the receipt of the "commission, reward, advantage or benefit of any kind".

 

[262]    As noted above, I am satisfied beyond a reasonable doubt that Mr. Pilarinos, a person having dealings with the government, gave Mr. Clark a benefit.  Mr. Clark received the benefit and there was no consent from the appropriate person in government.  Thus, the elements of the actus reus have been proved.

[263]    The mens rea of this section is set out in R. v. Hinchey, supra, at para. 71:

(a)            an employee’s conscious decision to accept what in all of the circumstances is found to be a “commission, reward, advantage or benefit”, and

 

(b)            knowledge (or wilful blindness) at the time of the receipt that the giver was having dealings with the government and that the employee’s superior had not consented to his or her receipt of the “commission, reward, advantage or benefit of any kind”.

 

[264]    A majority of the Court also held in Hinchey, supra, at para. 78 that the Crown must also prove that the accused knew that he had received a form of benefit, but that it does not have to prove that the accused knew the benefit was received because of his position in government.

[265]    The Clarks had paid Mr. Pilarinos $8,000 before the renovations were complete.  At the end of the project, he told them they owed him around $2,500-3,000 more, as he had not yet received the final bills.  The Clarks decided to write Mr. Pilarinos a cheque for $5,000 to cover everything, as the renovation had taken longer than predicted.  Mr. Clark testified that there was no magic in the amount.  The Clarks were “trying to be nice”.

[266]    Dale Clark gave the cheque to Mrs. Pilarinos.  A week or so later, Mr. Pilarinos went to Mr. Clark’s home and told him he paid too much.  Mr. Pilarinos tore up the cheque the Clarks had given to him.  He produced a hand-written bill for the sub-contractors and materials that totalled $11,200.  Mr. Pilarinos repeatedly told Mr. Clark that was all he owed.

[267]    Mr. Clark wrote a cheque for the amount Mr. Pilarinos requested. 

[268]    In cross-examination of Mr. Clark, the Crown pointed out that Mr. Clark was no shrinking violet and during his term of office as Premier was prepared to take aggressive stands on a number of issues, including against the Federal government and the American government.  The Crown argued that it was ludicrous to believe that Mr. Clark could not convince Mr. Pilarinos to accept payment for his labour.  However, people often act differently in their professional as opposed to their personal life. 

[269]    Mr. Clark paid what he thought was full value for the renovations.  Mr. Pilarinos refused to accept payment and insisted that he had been overpaid.  The estimate for the renovation, both from Mr. Pilarinos and on the building permit was $10,000.00 and this supports Mr. Clark’s assertion that it appeared that Mr. Pilarinos had been paid.

[270]    I have not overlooked Mr. Clark’s evidence that when faced with Mr. Pilarinos’ hand-written bill, he knew there was no money for Mr. Pilarinos’ labour.  It is important to carefully review Mr. Clark’s evidence on this point, because it is not as cut and dried as the Crown submits.  I add that I accept this aspect of Mr. Clark’s evidence.

[271]    Mr. Clark testified that this was a five-minute conversation with Mr. Pilarinos.  Mr. Clark told Mr. Pilarinos that it did not appear that there was anything there for him.  Mr. Clark was concerned about exploiting his friendship with Mr. Pilarinos, as Mr. Pilarinos had a reputation for helping neighbours.  While it did not appear from the list that Mr. Pilarinos had billed for his time, Mr. Pilarinos was adamant that was all that was owed.  He refused to accept any more money.  Mr. Clark testified that eventually he relented and wrote a cheque for the amount requested by Mr. Pilarinos.  He accepted Mr. Pilarinos’ word regarding what he owed.

[272]    Mr. Clark did not know the value of Mr. Pilarinos’ work.  He was not there during most of the renovation.  Similarly, Mrs. Clark was at work during the day.  For all Mr. Clark knew, Mr. Pilarinos could have spent a few hours calling sub-contractors and dropping by the site.  He gave Mr. Pilarinos a unique gift valued at a few hundred dollars.

[273]    It was not unreasonable for Mr. Clark to accept the assertions of Mr. Pilarinos that he had been paid, especially given the original estimate for the project.

[274]    A month of evidence in this trial resulted in widely disparate estimates from experts regarding the value of the renovation.  One could not expect Mr. Clark, who had little experience in the area, to know that he owed Mr. Pilarinos more money or how much.

[275]    In light of this evidence, I am not satisfied beyond a reasonable doubt that Mr. Clark consciously accepted what he knew was (or was wilfully blind or reckless with respect to) a benefit from Mr. Pilarinos.

[276]    There is no question Mr. Clark exercised poor judgment in hiring Mr. Pilarinos to do renovation work for him when Mr. Pilarinos had an application for a casino licence before the government.  However, there is nothing in his conduct that crosses the line from an act of folly to behaviour calling for a criminal sanction.

[277]    I find that Mr. Clark is not guilty of Count 11.

[278]    The fact that Mr. Pilarinos has been convicted of conferring a benefit on Mr. Clark, while Mr. Clark has been acquitted of accepting that very same benefit is not an anomalous result in the circumstances of this case.  I have found that Mr. Pilarinos knowingly gave Mr. Clark the benefit of his free labour for the purpose of obtaining Mr. Clark’s influence or assistance with respect to his casino application.  Mr. Pilarinos was aware of the value of his work on the renovation.  I have also found that Mr. Clark did not accept that benefit within the meaning of the law since he was under the impression that he had fully compensated Mr. Pilarinos.  Mr. Clark did not know the value of Mr. Pilarinos’ work on the renovation.  The different states of mind of Mr. Pilarinos and Mr. Clark with respect to the benefit explain the different outcomes.

Section 122

 

COUNT 10:

 

GLEN DAVID CLARK, between December 1, 1997, and March 5, 1999, at or near Vancouver, Penticton, Victoria and elsewhere in the Province of British Columbia, did commit the offence of breach of trust in connection with the duties of his office as an official of the Government of British Columbia, to wit, Premier, President of the Executive Council and Member of the Legislative Assembly, in relation to an application made to the said Government by 545738 B.C. Ltd., a company in which DIMITRIOS PILARINOS held an interest, for a Government licence to operate a casino; and in particular:

 

      (a)   by accepting benefits from Dimitrios Pilarinos in relation to renovations done on his Vancouver residence and his Penticton summer cottage, while the application was under consideration by the Government of British Columbia;

 

      (b)   by failing to inform the Minister of Employment and Investment that Dimitrios Pilarinos was doing, or had done, work on his Vancouver residence and Penticton summer cottage and that he had received benefits in relation to that work from Mr. Pilarinos;

 

      (c)   before, during, or after receiving the said benefits from Mr. Pilarinos, by assisting 545738 B.C. Ltd. and Mr. Pilarinos in various ways in advancing his casino licence application, including: disclosing to Mr. Pilarinos the official "scores" assigned to 545738 B.C. Ltd.'s application and that of its competitor and exerting influence, directly and/or indirectly, on the Minister of Employment and Investment, Michael Farnworth, to approve the application by 545738 B.C. Ltd. and to facilitate the said company in changing the location of its proposed charitable casino;

 

      (d)   after receiving the "Karmelita" fax in February 1999, by procuring or permitting the use of the influence of his office in order to protect his personal interests rather than those of the public, including: delegating to George Ford responsibilities with respect to the said fax without disclosing to him his true involvement in connection with the casino application by 545738 B.C. Ltd.; and

 

      (e)   after receiving the "Karmelita" fax in February 1999, by failing to ensure that the contents of the said fax were disclosed to the police or to the Ministry of the Attorney General or to GAIO or to Minister Farnworth or to those assisting the Government in dealing with the casino application by 545738 B.C. Ltd. and by acting contrary to the public interest in advising Mr. Pilarinos that one or more Greek "informants" were providing information to investigators concerning the casino application by the said company and thereby jeopardizing ongoing police and GAIO investigations.

 

and in so doing breached the statutory, expressed, implied or accepted rules, guidelines or terms of office applicable to him as Premier, President of the Executive Council and Member of the Legislative Assembly, including the oaths of office taken by him and the provisions of the Members Conflict of Interest Act, CONTRARY TO SECTION 122 OF THE CRIMINAL CODE.

 

[279]    This count alleges that Mr. Clark committed a breach of trust in connection with his duties as Premier.  The Crown has particularized five ways that it alleges Mr. Clark committed breach of trust. 

[280]    The elements of the actus reus of the offence of breach of trust are found in R. v. Perrault (1992), 75 C.C.C. (3d) 425 at 442 (Que.C.A.):

1.                that the accused be an official (civil servant);

2.                that the impugned act be committed in the general context of the execution of his [or her] duties;

3.                that the act constitute a fraud or a breach of trust.

Now to identify the necessary conditions for this third constituent element in the case of a breach of trust, it appears that the following conditions must be met:

1.                The accused did an act or failed to do an act contrary to the duty imposed on him [or her] by statute, regulation, his [or her] contract of employment or directive in connection with his [or her] office.

2.                The act done must give him [or her] a personal benefit directly (for example: pecuniary compensation, an advantage in kind, in services, etc.) or indirectly (for example: an advantage to his spouse, a member of his family, or even in certain cases a third person).  This benefit may be direct (for example: the payment of an amount of money) or indirect (for example: the hope of promotion, the desire to please a superior).

The existence of a real prejudice or a loss to the public or to the state is not an element of the offence according to the jurisprudence which is unanimous in this regard.   

[281]    Baudouin J.A. continued discussing the elements of the offence, with particular emphasis on defining the offence.  In order to limit its ambit, he included the element of “receipt of some benefit”.  His discussion on this point, at p. 443, is apposite, and I can do no better than to repeat it:

[W]here this element is not required, this would have the effect of having the criminal law and its repressive mechanism come into play in areas which have nothing to do with it.  As the Law Reform Commission of Canada said so well, in the fundamental document, Our Criminal Law, pp. 19-20 (Ottawa, 1976):

 

      If criminal law’s function is to reaffirm fundamental values, then it must concern itself with “real crimes” only and not with the plethora of “regulatory offences” found throughout our laws.  Our Criminal Code should contain only such acts as are not only punishable but also wrong – acts contravening fundamental values.  All other offences must remain outside the Code.

 

.  .   .   .   .   .

 

      To count as a real crime an act must be morally wrong.  But this, as we said earlier, is but a necessary condition and not a sufficient one.  Not all wrongful acts should qualify as real crimes.  The real criminal law should be confined to wrongful acts seriously threatening and infringing fundamental social values.

 

The purpose of the criminal law is to sanction serious violations, which derogate from fundamental social values.  The making of a personal profit from the exercise of a public office is certainly one of these.  However, the criminal law need not sanction a mere technical breach of conduct, an act of administrative indiscipline or administrative fault, even if deliberate.  The sanction of these comes within the domaine [sic] of administrative law, perhaps even civil (private) law.  If it were otherwise, the criminal law would be constantly on the look-out for comportment which is of course reprehensible, undoubtedly blameworthy, obviously irregular, but which has nothing criminal about it.  It would be necessary to sanction the police officer who had received specific orders to intercept all vehicles exceeding the speed limit fixed by regulation and who proceeds to make selective arrests.  It would be necessary to condemn as criminal the civil servant who, according to the regulations, is required to receive members of the public in the order in which they arrive and who despite this, gives preference to and precedence to an older person, etc.

 

[282]    Some of the duties of Mr. Clark are set out in the Members’ Conflict of Interest Act, RSBC 1996, c. 287.  The relevant sections are:

s. 2 Conflict of Interest

 

(1)            For the purposes of this Act, a member has a conflict of interest when the member exercises an official power or performs an official duty or function in the execution of his or her office and at the same time knows that in the performance of the duty or function or in the exercise of the power there is the opportunity to further his or her private interest.

 

(2)            For the purpose of this Act, a member has an apparent conflict of interest if there is a reasonable perception, which a reasonably well informed person could properly have, that the member’s ability to exercise an official power or perform an official duty or function must have been affected by his or her private interest.

 

s. 3 Conflict of interest prohibition

 

      A member must not exercise an official power or perform an official duty or function if the member has a conflict or interest or apparent conflict of interest.

 

s. 5 Influence

 

      A member must not use his or her office to seek to influence a decision, to be made by another person, to further the member’s private interest.

 

s. 6 Activities on behalf of constituents

 

      This Act does not prohibit the activities in which members normally engage on behalf of their constituents.

 

s. 7 Accepting extra benefits

 

(1)            A member must not accept a fee, gift or personal benefit, except compensation authorized by law, that is connected directly or indirectly with the performance of his or her duties of office.

 

[283]    The mens rea of the offence of breach of trust is that the official must know (or be reckless or willfully blind) that by his or her conduct (a breach of duty) he or she will receive a benefit.

[284]    In other words, the official must intentionally do an act that breaches a duty connected with his or her office knowing (or being reckless or willfully blind) that he or she will receive a benefit, as defined in Perrault, supra, as a result.

[285]    The fault element does not include an intent to commit a breach of trust or to act dishonestly.  The official does not have to know that the act is a breach of his or her duty.  See: R. v. Pilarinos and Clark, 2002 BCSC 452, (March 26, 2002).

[286]    The Crown has particularized several ways in which it alleges a breach of trust occurred.  The Crown has particularized these allegations in the indictment and therefore they become elements of the offence that must be proved beyond a reasonable doubt.  Only one of the five allegations need be proved.

[287]    The first allegation, found in paragraph (a) of Count 10, is the same delict as the allegation in Count 11.  The mens rea for s. 122 requires more subjective knowledge than is required for s. 121 (1)(c).  Having already found that the Crown has not proved Count 11 beyond a reasonable doubt, this allegation is similarly not proved.

[288]    The allegation in paragraph (b) is that Mr. Clark did not tell Mr. Farnworth that Mr. Pilarinos had done renovations on his home and cabin and that Mr. Pilarinos was not paid for his work.  Mr. Farnworth testified that if he had known this he would not have approved the casino application because of “optics”.

[289]    When Mr. Clark spoke to Mr. Farnworth in July, he had paid Mr. Pilarinos full value for the renovation.  No further conversations occurred between Mr. Clark and Mr. Farnworth regarding the Lower Mainland casinos until after Mr. Farnworth granted approval-in-principle to the North Burnaby Inn.  There is no evidence that Mr. Clark knew that Mr. Farnworth would not grant approval-in-principle if he knew Mr. Pilarinos performed the renovations.  Indeed, Mr. Clark thought the matter had to be returned to Cabinet for approval.  I do not see how the failure of Mr. Clark to tell Mr. Farnworth that Mr. Pilarinos was not paid for his work on the renovation, in these circumstances, breached a duty imposed on Mr. Clark in connection with his office.

[290]    More importantly, there is no benefit accruing to Mr. Clark as defined in R. v. Perreault, supra, as a result of not disclosing to Mr. Farnworth that Mr. Pilarinos did not accept payment for his part of the renovations.  If a benefit did accrue, indirectly to Mr. Pilarinos, a third party, there is no evidence Mr. Clark was aware of this as he thought the proposal had to be returned to the Cabinet. 

[291]    I conclude that the Crown has not proved that this conduct amounted to a breach of trust.

[292]    There are three separate allegations within paragraph (c).  The first allegation is whether Mr. Clark told Mr. Pilarinos the scores.  The evidence is clear that someone told Mr. Pilarinos something about the scores.  Mr. Vrahnos had a close, but not completely accurate, knowledge of the scores.  The news release in Mr. Pilarinos’ home had a close, but not accurate, notation of the two scores.  Mr. Clark had the Cabinet document that referred to the scores and he acknowledged in his statement that he saw the scores on this document.  In his statement he said he did not recall telling Mr. Pilarinos the scores.

[293]    Many people were aware of the scores, including a number people Mr. Pilarinos had contact with as a result of the approval process.  The scores were to be kept confidential, however, confidentiality is almost impossible when so many people had access to the information.  I cannot say that I am satisfied beyond a reasonable doubt that Mr. Clark told Mr. Pilarinos the scores.

[294]    The next allegation within paragraph (c) relates to the allegation that Mr. Clark exerted influence directly or indirectly on Mr. Farnworth to approve the North Burnaby Inn application.  Mr. Farnworth testified that his July 29 meeting with Mr. Clark indirectly led to the approval-in-principle of the North Burnaby Inn application. 

[295]    It is important to examine the July meeting.  First, Mr. Farnworth went to Mr. Clark, despite acknowledging that Mr. Clark had told him that he did not want to be involved with the casino applications.  Mr. Farnworth discussed the problems with the North Burnaby Inn application, but he also discussed the problems with the other two feasible Lower Mainland applications.  It was clear that the government was increasing gambling in order to increase revenue.  Mr. Farnworth testified that the whole object of the exercise of increasing gambling was to get more gaming in the Lower Mainland where the population was based.  That could best be accomplished by adding casino facilities in the Lower Mainland.  Mr. Farnworth left the meeting with Mr. Clark knowing he had to find another casino.  He did not have any further conversations with Mr. Clark about the Lower Mainland casinos until after the approvals-in-principle were announced in December.

[296]    Mr. Farnworth first tried to persuade the Mayor of Delta to co-operate with the Tsawwassen Indian Band application.  Indeed, a draft memo was prepared approving the Tsawwassen casino, subject to the resolution of infrastructure issues between Tsawwassen and Delta.  This proponent was clearly the first choice of the Ministry.

[297]    Mark MacKinnon testified that the North Burnaby Inn proposal was not finally “on the table” for approval-in- principle until after a meeting of the Treasury Board on December 15, 1999.  There was no evidence of what occurred at this meeting.  There was, however, a draft agenda for a meeting with Minister Farnworth in November, 1999, which indicated that the Treasury Board had requested a presentation outlining the options for increasing gaming revenue.  I infer that pressure was coming from the Treasury Board to increase gaming revenue.

[298]    When Mr. Farnworth was unsuccessful with the other applications he decided to approve the North Burnaby Inn application, albeit knowing that Burnaby would not change its position on zoning.  Mr. Clark exerted influence on Mr. Farnworth to approve another casino in the Lower Mainland, but I am not convinced, when taking into account all of the circumstances, that he exerted influence on him to approve the North Burnaby Inn application in particular.  The bow cannot be stretched so far as to conclude that because Mr. Clark insisted on another casino in the Lower Mainland he indirectly influenced Mr. Farnworth to approve the North Burnaby Inn application.

[299]    The next allegation within paragraph (c) is that Mr. Clark exerted influence on Mr. Farnworth to facilitate the move of the North Burnaby Inn casino.  The meeting in January wherein the discussion of the move occurred was resolved in a manner that Mr. Farnworth found appropriate.  Mr. Farnworth struck me as an individual who tries to do “the right thing”.  He was an experienced politician.  He was aware of and concerned about “optics”.  He felt comfortable with the conversation with Mr. Clark regarding the issue of the move.  He referred to Mr. Pilarinos as Mr. Clark’s constituent, which he was.  The inquiry made by Mr. Clark was one that was consistent with an inquiry that a politician might make on behalf of a constituent, which is permissible under s. 6 of the Members’ Conflict of Interest Act.  The decision regarding a move was in the hands of Mr. Farnworth and his Ministry.  Further, Mr. Farnworth himself, before any conversation with Mr. Clark, had suggested to Mr. Calendino that the Ng/Pilarinos group get together with the Derrick Luu group, obviously contemplating a move.

[300]    Mr. Calendino testified that he did speak to Derrick Luu and suggested that he talk with Mr. Ng about joining their respective applications.

[301]    I find that Mr. Clark did not exert influence directly or indirectly on Mr. Farnworth regarding the proposed move of the casino from the North Burnaby Inn location to Halifax Street.

[302]    The next allegation in paragraph (d) relates to Mr. Clark’s conduct after he received what has been referred to as the “Karmelita fax”.  This is the fax that Dimitri Vrahnos sent anonymously to Mr. Clark on February 9, 1999 and was first seen by Mr. Clark on February 10, 1999.  The specifics of this fax are relevant to this allegation and the allegation in paragraph (e).  The contents of the fax are set out below:

 

PREMIERE

 

THIS IS URGENT IF YOU WANT TO SAVE YOUR ASS

Fact: You broke rules to help Pilarinos and Ng get a casino license

Fact: You consider Pilarinos friend and supporter

Fact: Pilarinos did free construction work for you

Rumor:      You have a piece of the action in the casino

Fact: Pilarinos and Ng are not the only partners.  They have “one more silent partner” with a long criminal record.  You have been used to accommodate the entrance of gangsters in the casino business in B.C.

Fact: The story is out.  A lot of people have been indiscreet

Fact: The Liberals know the story

Fact: A special criminal investigation has targeted you, Pilarinos, Ng and their gangster partners.

To save your reputation and your government:

(a)   Kill the casino application IMMEDIATELY

(b)   ‘Clean’ your home and all offices of any evidence IMMEDIATELY

(c)   Careful how you use your telephone and faxes

(d)   Destroy this piece of paper NOW – I risk my career to save your sorry ass.

You owe me big time you jerk

Remember the name ‘Karmelita’

[303]    This fax was sent to Mr. Clark’s constituency office in Vancouver and forwarded to Victoria.  It was given to Mr. Dix who showed it to Mr. Clark.  They decided to ask George Ford to look into the allegations contained in the fax.  Mr. Ford was the Deputy Minister to the Premier.  In this position, he was the head of the Civil Service and held the highest non-elected and non-political position in government.  Although he had held this position only since December 21, 1998, he had held a similar position for Premier Harcourt and for Premier Pawley in Manitoba.  Mr. Ford was a well-respected and experienced civil servant.

[304]    Adrian Dix contacted Mr. Ford shortly after 8:00 a.m. on February 11, 1999.  Mr. Ford was asked to meet Mr. Dix and Mr. Clark at his office.  When they met Mr. Dix gave Mr. Ford the Karmelita fax.  Mr. Clark told Mr. Ford that he knew Mr. Pilarinos and that Mr. Pilarinos had done a small renovation for him.  Mr. Clark said he had paid for the materials and the contractors.  He had tried to pay Mr. Pilarinos, but he would not take the money. Mr. Clark bought him a hunting knife.

[305]    Mr. Ford said that Mr. Clark strongly denied being involved in the casino application and had taken steps to remove himself from the process.

[306]    Mr. Ford was told that there were two applications for casinos in Burnaby and that neither was good.  He was told that Mr. Farnworth had been delegated the decision to approve the applications and had approved Mr. Pilarinos’ application, but had made it subject to zoning by the City of Burnaby. 

[307]    He was told that the North Burnaby Inn applicants had an option to purchase the Halifax Street property.  This information was in the letter that was sent to Mr. Farnworth.  It is also information that I have no doubt Mr. Pilarinos told Mr. Clark.

[308]    Mr. Clark did not mention that Mr. Pilarinos also helped him build a deck on his summer cabin in Penticton or that Mr. Clark had discussed the North Burnaby Inn application, amongst others, with Mr. Farnworth.

[309]    Mr. Clark told Mr. Ford to do whatever was appropriate with the fax.

[310]    Mr. Ford spoke with Mark Mackinnon and Minister Farnworth.  He learned about the process for casino applications, including the GAIO procedure.

[311]    He also spoke with the Deputy Attorney General, Maureen Maloney.  GAIO was set up as an independent body, and Ms. Maloney told Mr. Ford that he should not contact GAIO as it would appear that the Premier’s Office was interfering with the process. 

[312]    Mr. Ford testified that he did not show the Karmelita fax to Ms. Maloney as he believed that she would feel that she had to turn it over to the Assistant Deputy Minister, Mr. Quantz, who had the responsibility of appointing special prosecutors when allegations were made against elected officials.

[313]    Thus, aware that the Deputy Attorney General would have likely given the fax to Mr. Quantz, Mr. Ford decided not to do so.  He testified that it was a very close decision and any further information would have compelled him to forward the fax.  He said that if he had know about the summer cabin or the conversations Mr. Clark had with Mr. Farnworth, he would have sent the fax on to the Attorney General’s Ministry.   

[314]    Mr. Clark did not tell Mr. Ford all of the details surrounding his involvement with Mr. Pilarinos.  The question is whether by withholding this information he used the influence of his office to protect his own interests rather than the public interest and whether this is a breach of trust. 

[315]    The delegation of the investigation to George Ford was appropriate.  The issue is whether Mr. Clark hid his “true involvement”.  The first question is what was his true involvement.  I have found that Mr. Clark did not know he had  accepted a benefit from Mr. Pilarinos.  Mr. Ford was not told about the cabin in Penticton or about his conversations with Mr. Farnworth.  I have found that the work performed at Penticton was not a benefit.  I also have found that Mr. Clark did not influence Mr. Farnworth with respect to the North Burnaby Inn application. 

[316]    Mr. Ford testified that if he had known about either the cabin or the discussion with Mr. Farnworth, he would have referred the matter to the Assistant Deputy Attorney General.  However, based on the information provided by Mr. Clark, Mr. Ford believed the Deputy Attorney General would send the fax forward.  In spite of this, he did not send the fax to Mr. Quantz.  This judgment call by Mr. Ford cannot be laid at the feet of Mr. Clark.  Mr. Ford had carte blanche from Mr. Clark to do what he thought appropriate.

[317]    Mr. Clark was asked by the police whether he considered giving the fax to the Attorney General.  He said he assumed George Ford would give it to the Attorney General if he thought it necessary.

[318]    Given the findings regarding the scope of Mr. Clark’s conduct and the unlimited delegation to Mr. Ford, it cannot be said that Mr. Clark used the influence of his office to protect his own personal interests rather than those of the public, as alleged in paragraph (d).

[319]    Finally, allegation (e) is that Mr. Clark did not disclose the Karmelita fax to the police, GAIO or the Attorney General and that he told Mr. Pilarinos that one or more Greek informants were providing information to investigators concerning the casino application and thereby jeopardized the ongoing police and GAIO investigations.

[320]    I will deal with the last point first.  This allegation is essentially that Mr. Clark told Mr. Pilarinos some of the contents of the Karmelita fax in order to explain why they were refused permission to move by Mr. Farnworth.

[321]    The wiretap revealed a conversation Mr. Pilarinos had with his brother on the evening of February 25, 1999, the day he had met with Mr. Clark.  Mr. Pilarinos had considerable information regarding Greek informants providing information about a “silent partner” and related this information to the anonymous letter he had received (also from Mr. Vrahnos), which he knew was sent by a member of the Greek community.  Mr. Vrahnos had put Mr. Pilarinos’ in-laws’ address as the return address on the letter.  At first blush, it appears that Mr. Pilarinos must have learned this information from Mr. Clark.  However, when one looks at the Karmelita fax, there is reference to a “silent partner”, but nothing regarding Greek informants.  There is more detailed information in the so-called “Ousten letter” (which Mr. Vrahnos had provided the Vancouver Sun), but there is no evidence that Mr. Clark had ever seen the “Ousten letter”.

[322]    Further, Mr. Clark has denied providing Mr. Pilarinos this information.  Indeed, it does not make sense that Mr. Clark would give Mr. Pilarinos any information once he had seen the allegations in the Karmelita fax.  I cannot conclude that Mr. Clark gave Mr. Pilarinos any information from the Karmelita fax.

[323]    Finally, Mr. Clark did not ensure that the Karmelita fax was disclosed to the police, the Ministry of the Attorney General, GAIO, Minister Farnworth or his staff dealing with the casino applications.  The question is whether he had a duty to pass the fax along, or whether his delegation to George Ford was sufficient.  He implicitly gave Mr. Ford the authority to do all of the above.  Therefore, I find that Mr. Clark had no duty to disclose the Karmelita fax beyond the delegation of the investigation to Mr. Ford.

[324]    The Crown in its argument also alleges that Mr. Clark disclosed other confidential information to Mr. Pilarinos, including that the “move letter” was being referred to Mark McKinnon, that GAIO did not investigate them initially because it did not think their application would receive approval-in-principle and that Mr. Clark’s staff had put a memo in his file regarding his relationship with Mr. Pilarinos.  The Crown submits that this was in breach of his oath of confidentiality.

[325]    All of the information, except the “Dix” memo to file, may be attributable to sources other than Mr. Clark.  I find that Mr. Clark told Mr. Pilarinos about the memo to file.  However, I do not consider this disclosure a breach of confidentiality as it related directly to Mr. Pilarinos’ application.  

[326]    I conclude that the Crown has not proved the breach of trust count beyond a reasonable doubt.

[327]    I find Mr. Clark not guilty of Count 10.

[328]    I return to Count 9 as Mr. Pilarinos is charged as a party to this offence.  There are cases where a party is convicted of an offence when the principal is acquitted.  See R. v. Hick [1991] 3 S.C.R. and Remillard v. The King (1921), 35 C.C.C. 227 (S.C.C.).  However, in the circumstances of this case, where the Crown has not proved that Mr. Clark committed a breach of trust, I cannot find that it has proved that Mr. Pilarinos was a party to a breach of trust.

[329]    I find Mr. Pilarinos not guilty of Count 9.

[330]    In summary, Mr. Pilarinos is guilty of Counts 1, 2, 5, 6, 7 & 8.  He is not guilty of Counts 3, 4 & 9.  It may be that the principle in R. v. Kienapple (1975), 15 C.C.C. (2d) 524 (S.C.C.) applies to some of these counts and I will hear argument shortly with regard to whether a conditional stay should be entered on any of the counts.

[331]    Mr. Clark is not guilty of Counts 10 and 11.

“E.A. Bennett, J.”
The Honourable Madam Justice E.A. Bennett