Crown prosecutors at the criminal trial for ex-legislature clerk Craig James said “new and surprising information” came to light Wednesday when lawyer Donald Farquhar took to the stand in B.C. Supreme Court to explain the legal advice he provided on a controversial retirement benefit.
At issue is whether James circumvented legislature policies to wrongfully obtain the $257,988 benefit retroactively from its apparent termination in 1987. This and alleged misspending of public funds on personal items are central to three breach of trust and two fraud charges against James, who denies all the allegations in the high-profile case before Associate Chief Justice Heather Holmes.
At the outset of his testimony, the veteran lawyer explained the legal opinion he provided in December 2011 that has since been claimed by James as justification for his own retirement benefit.
Farquhar said he was first asked by James to provide opinion on the retirement benefit for then-retiring assistant clerk Robert Vaive, who demanded it following a payout to then-outgoing clerk George MacMinn.
The retirement benefit had been issued to unofficial legislature employees — such as assistant and committee clerks, or "table officers" — who didn’t accumulate standard benefits prior to 1987. Legislature documents presented as evidence indicate the benefit was terminated and capped to years of service up to 1987, the year James started as a committee clerk. Many past legislature workers who have testified at the trial understood that moving forward from 1987 all clerks would receive the standard benefits.
But it had been understood by Vaive, who was intending to retire in 2011, that others received the benefit. One of those individuals was law clerk Ian Izard, who court has heard took the benefit on account he never accepted the normal employee benefit package.
Vaive, since deceased, is said to have threatened to sue the legislature over the payment and so James asked Farquhar, who had done previous legal work for the clerk’s office, to offer an opinion to Speaker of the House Bill Barisoff.
Farquhar said his advice was that the benefit program should be terminated as it was his interpretation that it had not been so in 1987.
Farquhar explained that he interpreted the 1987 termination memo differently than others have.
“Those who said so are wrong,” asserted Farquhar.
He explained that the wording of the termination memo only named specific table officers. The fact James was receiving the standard benefits did not arise in testimony.
Farquhar also explained that at no time did he offer an opinion on a benefit for James; he only dealt with Vaive, although he indicated verbally to Barisoff that others who are entitled to the benefit should also be paid out, alluding to the table officer positions.
Farquhar then recited a previously undisclosed email from James to himself in November 2011, wherein James inquires about the benefit for himself and then-deputy clerk Kate Ryan-Lloyd.
Farquhar said James wrote to him and inquired about how Vaive’s payout may affect himself and Ryan-Lloyd.
Farquhar responded to James saying that Vaive is entitled to the benefit as was any other table officer at the time.
Holmes stood down the trial to allow the Crown and defence teams to discuss how Farquhar’s emails would be entered into evidence. After the break it was decided the emails could be used in questioning but from Farquhar’s memory.
Crown prosecutor Brock Martland had Farquhar explain that the legal opinion he provided to Barisoff was verbal, not written.
“The whole thing is something they wanted to get done in quick order,” said Farquhar, referring to how Vaive was in poor health and threatening litigation.
Farquhar explained that he relied on Vaive telling him that ex-clerk MacMinn was paid the benefit.
“I accepted what was being told to me,” he said.
Nor did Farquhar explicitly reference James or Ryan-Lloyd’s situation.
“It was simply not an issue as far as my involvement goes,” said Farquhar.
“I didn’t say anyone in particular should be paid out. I said for those who are entitled should be paid,” he said, adding the finance department ultimately makes that determination.
However, at some point between his verbal advice in December 2011 and February 2012, it was agreed upon by Barisoff that the benefit be paid to Vaive, Izard, James and Ryan-Lloyd. Barisoff previously testified that Farquhar did provide an opinion on Ryan-Lloyd and James.
And after much back-and-forth legal conferences in the fall of 2011 Farquhar noted he was retained by James’ office for $4,000 per month, court heard.
When asked by Martland, Farquhar acknowledged both Vaive and James were not disinterested parties when they both asked about their own benefits.
Defence counsel Gavin Cameron cross-examined Farquhar to note his 45-year career as a lawyer at the time and how he was qualified to give oral legal opinions, which were common.
The trial remains in the evidence stage, which could conclude as early as Friday, at which point the defence will decide on its response.
