Defence scores big win in BC Legislature Raid case disclosure application

By Bill Tieleman

Defence lawyers for David Basi, Bob Virk and Aneal Basi scored a major win in BC Supreme Court today when Justice Elizabeth Bennett ruled in their favour, ordering significantly increased disclosure of evidence.

Justice Bennett’s oral ruling was a blow to the Crown but also to the RCMP, whose conduct was found to be lacking.

The ruling means defence lawyers Michael Bolton, Kevin McCullough and Patrick Boyle will gain access to the “project room” where over 100,000 pages of evidence are stored in the aptly named “Project Every Which Way” investigation.

Justice Bennett ordered that the defence be allowed into the project room, where they will be able to ensure that all evidence relevant to the defence of their clients have been disclosed.

But the defence will not be allowed to review evidence unrelated to the breach of trust case charges, including evidence obtained by police in the original drug charges investigation that accidentally uncovered the allegations of influence peddling in the $1 billion BC Rail privatization deal.

“The law is clear…” Bennett told the Court, that disclosure of evidence is critical to the defence of the accused.

“I do not accept RCMP objections to the defence entering the project room,” she said. “Many of the descriptions are vague or have no details at all.”

“The defence are merely seeking to be present for the inventory of evidence,” Bennett continued. “This right is a constitutional one. It is set out in Section 7 [of the Charter of Rights]”

Bennett criticized the failure to adequately disclose electronic evidence, though she noted that “the Crown has worked diligently at disclosure” and specifically said she was not rebuking Special Prosecutor Bill Berardino.

“It may be the first electronic disclosure for these [RCMP] officers, however electronic evidence has been used for at least 10 years, case law shows. I’m not sure why many of these problems haven’t been resolved, for example, the lack of a proper search engine,” Bennett said.

Bennett then went on to laud the defence lawyers.

“The defence have demonstrated they are not on a fishing expedition. It was due to the diligence of the defence that these problems were disclosed,” Bennett said.
Following Justice Bennett’s ruling defence and Crown fired shots back and forth once again.

“My learned friends haven’t produced a stitch of the materials they promised to produce by this time,” said McCullough, who represents Virk. “My friend hasn’t been able to make any of the deadlines he set for himself.”

Berardino rejected McCullough and Bolton’s complaints, saying he was merely two day behind schedule due to problems with preparing information on the proceeds of crime evidence for the defence.

Following a break where the Crown and defence conferred on process, Berardino told Bennett that access to the project room would begin the following Monday or Tuesday.

He gave an estimate of 10 days as an approximate length of time to undertake the inventory but said both sides would report their progress at the next pre-trial hearing, scheduled for 9 a.m. November 24.

Bennett raised the possibility of further delay in the trial, currently scheduled to begin December 4.

“We will address on November 24 if we can proceed on December 4,” Bennett said. “It will be very unfortunate if we lose the dates in December.”

“There is a public interest in having this case heard, for everyone’s sake,” she said.

Outside the court McCullough and Bolton were all smiles with the decision.

“We’re pleased with it. It’s a step by step case,” McCullough said.

Bolton added that: “We expect to begin on December 4 with preliminary applications in respect of the wiretap evidence.”

And he noted that the RCMP project room inventory could be challenging.

“We actually don’t have any concept of what’s there until we get there,” he said.