Monday, March 12, 2007

Basi-Virk Case - Disclosure, Delay and Documents

Basi-Virk Case Tests Citizens' Patience

Frustrates even trial judge with its delays, disclosure issues.

View full article and comments here

By Bill Tieleman

Published: March 12, 2007

"Just so we're clear, the public interest in having this case heard outweighs just about everything else."

-- B.C. Supreme Court Justice Elizabeth Bennett

Over three years after the Dec. 28, 2003, police on raid the B.C. legislature and with the long-awaited breach of trust trial of former provincial government ministerial aides David Basi and Bob Virk still not underway, presiding Justice Elizabeth Bennett is understandably frustrated.

That's what led to Bennett's somewhat exasperated statement at the conclusion of another lengthy B.C. Supreme Court hearing March 7, where both defence lawyers and the special prosecutor explained why the case could not begin April 2 as planned but needs to be delayed by weeks more.

And much of the court session revolved around the thorny issues of disclosure -- of evidence and to the media. On Feb. 26, the defence had filed a lengthy application for disclosure and the hearing was to discuss related issues and the upcoming trial.

Justice Bennett began by expressing her unhappiness with the fact that while on business in Quebec last month she read a Globe and Mail newspaper report outlining a defence disclosure application before she had even seen it herself.

It briefly thrust blogger Robin Mathews, a retired Canadian studies professor who has intently followed the Basi-Virk investigation, into the spotlight after he sent a personal letter to Bennett complaining that he could not get access to the defence application through the court registry while the media obviously had the document the day it was filed.

But it was lawyers for the defence who raised the most vexing disclosure problems -- their claim that the RCMP and special prosecutor Bill Berardino continue to fail to adequately disclose evidence they have gathered so that the defence can prepare its case.

All in all, par for the course of one of the most delayed, difficult and yet ultimately extremely important cases on the court docket.

Media? What media?

Perhaps that's why there were more reporters present for The Tyee than for B.C.'s dominant newspaper chain, CanWest Global, publishers of the Vancouver Sun, Province, Victoria Times-Colonist and National Post combined. That would be me.

And just maybe that's why the day after the hearing, only five B.C. newspapers bothered to report on the latest developments: The Globe and Mail, 24 Hours -- my newspaper -- plus the Prince George Citizen, Nelson Daily News and The Daily News of Kamloops, the last three relying on Canadian Press reporter Camille Bains's filed coverage.

Or perhaps it's because a case that involves the B.C. government's controversial $1 billion privatization of B.C. Rail, charges against government aides who were highly politically active in both the federal and BC Liberal parties, allegations of connections to drugs and organized crime, claims of RCMP conflict of interest and a bungled investigation and an increasingly clear defence argument that the accused were merely following provincial government orders isn't worth reporting on.

To be fair, the Sun's Vaughn Palmer weighed in with a full column on March 10, and CanWest Global's John Daly of BCTV attended the hearing but the media turnout and subsequent reporting was sparse.

Disclosure? What disclosure?

"There's an issue I need to raise with you."

Definitely not the first words either a defence lawyer or special prosecutor want to hear from the presiding judge.

But that's exactly what Justice Bennett said to a group of about 10 assembled lawyers representing the defendants, prosecution and the federal and provincial government, as well as about six media representatives and a few observers.

"I read a lengthy report in The Globe and Mail in Quebec about the application before I received it," Justice Bennett continued. "I have a letter from a member of the public asking why he can't have access to the document."

One of those observers sitting next to me was in fact the letter writer -- Robin Mathews -- and his intervention in the case was a welcome reminder that the public does indeed have a right to know what goes on in its courts, a right that Justice Bennett amplified on considerably.

"These proceedings have to be as open as possible," she said, noting that in the most high-profile case she has previously adjudicated, the trial of former premier Glen Clark and Dimitrios Pilarinos, the building contractor and Clark's neighbour who hoped to influence a casino application, Bennett had set up a simple system to ensure access to court documents.

"Media access also means general public access," Bennett continued. "There's a presumption in the law of public access."

When special prosecutor Berardino mildly objected: "The presumption is public access but there will be documents with third-party information that...," Bennett cut him off.

"Let me be clear -- I will deal with this on a document by document basis," she said curtly.

Papers? Show me your papers

And documents there will be aplenty.

Previously in court it has been stated that over 100,000 pages of evidence have been produced, and counting.

But apparently not all the pages that the defence has been counting on.

That much was obvious when an angry Kevin McCullough, counsel for Bob Virk, lit into the special prosecutor's tardy disclosure of evidence.

"There are disclosure issues in this case that must be resolved," McCullough said. "There are several investigations of Mr. Basi and where one stops and the other one starts is very difficult to tell. There are many investigations going on."

"We've got disclosure problems and they're big problems and they've got to be dealt with. Milady, I apologize for the frustration but when my friend says he needs 13 days..."

McCullough was referring to his "friend" -- in the courtroom parlance of bonhomie -- special prosecutor Berardino, who had just told Bennett that he needs 13 business days in order to file a response to the defence disclosure application.

That's a full 13 days after the defence supplies Berardino with background to its disclosure request, because Berardino told the court that: "There is no material in support of the application."

So, who's not disclosing?

Well, Basi's own lawyer, Michael Bolton, laid the blame at Berardino's doorstep.

"The material that gave rise to the disclosure application arises predominantly from the disclosure received from the Crown," he told Bennett. It's important because it will let the defence know and the court know the Crown's theory, for example."

"What is the nature of the benefit?" he asked, referring to the allegation that Basi and Virk were to receive a benefit in exchange for providing lobbyist Erik Bornmann with confidential government information about the B.C. Rail deal for his client OmniTRAX, one of the bidders.

Bolton claimed that the original Crown theory that Basi and Virk were getting jobs in Ottawa with the federal Liberal government under then prime minister Paul Martin "seems to have been discarded."

Bolton continued by stating that a Crown failure to disclose evidence was hampering the defence case.

"The problems with pursuing the goal is that we're still receiving disclosure," he said. Bolton claimed that the defence had received a "statement from one of the key Crown witnesses, Mr. Erik Bornmann, in 2005 -- we got it in 2007."

Bolton also said that two wiretap applications the defence had been seeking for two years had only been received on Jan. 10, 2007.

And McCullough ended his exasperated appeal by stating that: "We've received critical notes from senior police officers just now."

But Bennett wasn't overly sympathetic.

"Mr. McCullough, there's nothing I can do about that now. You've received them," she said.

And Berardino defended the Crown's position. "There's a fundamental difference of opinion on disclosure," he told Bennett.

Relations? We have provincial and federal relations

While the defence and Crown sparring provided most of the sparks, legal counsel for the province gave a little levity to the proceedings.

George Copley, appearing for the "Executive Council of British Columbia" -- in other words, for the provincial government, addressed the potentially thorny issue of "privilege" -- the legal right of both cabinet privilege and solicitor-client privilege when it comes to disclosure of evidence involving cabinet members.

"I don't know how much background you know," Copley quietly began.

"Assume I know very little," Bennett replied, to muffled laughter in the courtroom.

Copley outlined that a sensitive procedure had been developed under Associate Chief Justice Patrick Dohm to ensure evidentiary documents seized from the B.C. legislature where privilege was claimed were examined to see if they were deemed relevant to the case.

Copley's low-key presentation revealed little of great interest -- with one prominent exception.

"Borden, Ladner, Gervais were the solicitors for the B.C. Rail deal," Copley said. "We may have to involve them."

Dates? We got dates

That left it to Justice Bennett to determine a new schedule for the now-delayed trial.

Another hearing on progress on the pre-trial preparations will be held at 9:30 a.m. on April 2.

Then, after a series of responses from defence and Crown on the disclosure application, the defence will file its Charter of Rights application on April 13.

That application -- originally expected to be filed March 21 -- is expected to ask that Justice Bennett throw the entire case out of court over the validity of search warrant applications obtained by RCMP.

And then on April 16 Justice Bennett will hear the actual arguments on the defence disclosure application in what will take up to 15 days in court.

After that the case is expected to continue on into the summer months, with Bennett noting that she is scheduled to teach a course in the second week of July but will forego it if necessary if the trial requires it.

Expect a long, hot summer of evidence -- if the case goes ahead.

Related Tyee stories:
Will BC Rail Bomb Explode?
Leg Raid Hearing Intrigue
'Spiderman' in a Web of Intrigue

Bill Tieleman is a regular Tyee contributor who writes a column on B.C. politics every Tuesday in 24 Hours, the free weekday newspaper, also online at Tieleman can be heard every Monday at 10 a.m. on the Bill Good Show on CKNW AM 980 or at E-mail him at or visit his blog at:


KD said...

so...who is Berardino trying to protect? The government or key witnesses Bornmann, Kieran, and Elmhirst

Anonymous said...

Hmmmm.... borden ladner and gervais want to get involved, as lawyers in the bc rail deal, over the process of access to what seems like very important and key documents. Sounds like somebody in government wants to keep certain documents out of the public domain!

Budd Campbell said...

Ladner, Borden, Gervais has a pretty big labour/employment practice in which they act solely for employers, advising them on such US style topics as defeating unionization votes and promoting de-certification exercises.

It's a bit of a tipoff as to where the Campbell Govt really stands on labour relations that this law company was chosen to act for the Govt in the BC Rail deal.

Dawn said...

Very well written and insightfull Bill. I have a simple solution that will save hundreds and thousands of dollars, give the accused the documents they need and lets get on with it! There is no need, if this deal is so open, transparent and good for the taxpayers to keep these documents under lock and key. The government and the prosecutor should stop hiding behind technicalites and get on with the job.