Basi-Virk Case: Missing evidence, missing prosecutors, missing Crown witness immunity agreements

Basi, Virk 'Hung Out to Dry': Lawyer
But Crown says aides acted on their own.

View full article and comments here http://thetyee.ca/News/2007/05/14/BasiVirk/

By Bill Tieleman

Published: May 14, 2007 TheTyee.ca

Two key documents in the B.C. Legislature Raid case are missing, according to defence lawyers. And perhaps it's not surprising in such a politically-charged trial that one piece of evidence is connected to the federal Liberal Party of Canada, while the other relates to the B.C. Liberal party.

David Basi and Bob Virk are the two former B.C. Liberal ministerial aides charged in B.C. Supreme Court with breach of trust and fraud for allegedly leaking confidential government documents to OmniTRAX, a bidder in the $1 billion privatization of B.C. Rail.

And both Basi and Virk were not only government political staff for the B.C. Liberals but also worked heavily on the federal Liberal leadership campaign of Paul Martin, the former prime minister. Aneal Basi, who is charged with money laundering for allegedly passing bribes to his cousin David, was also a federal Liberal party supporter.

The missing federal Liberal Party of Canada BC evidence is from an RCMP "tip file" consisting of Liberal membership and donor databases seized by police in a spring 2005 visit to LPC BC headquarters and donor lists for the Paul Martin Liberal leadership campaign, the defence says.

The missing provincial BC Liberal party document is the so-called "media monitoring" contract between the party and David Basi, who was allegedly paid $20,000 for stacking talk radio and televisions shows with paid callers, including himself, and for organizing dirty tricks such as phony protests with paid attendees all to prop up the B.C. Liberals.

Not just defence concerned

And it wasn't just the defence upset about lost documents. Justice Elizabeth Bennett made clear her own views.

"The concern is that despite checks and balances, a number of documents have gone missing in this case," she said May 9.

Both documents will likely resurface under defence pressure. The B.C. Liberal contract was supposed to be provided to the defence late last week and may be discussed when the case resumes Tuesday, May 15, at 9:30 a.m.

But the fact that evidence linked to the two separate parties went astray draws attention to the intensely political nature of the trial.

Political connections

The court proceedings are also making clear the strong political connections that abound in this case.

For example, the key Crown witness against Basi and Virk is Erik Bornmann, a provincial lobbyist and past federal Liberal party executive member in B.C. Bornmann worked closely with Basi and Virk in both provincial Liberal party campaigns and on the federal leadership campaign of former prime minister Paul Martin. Bornmann was also an aide to Martin when he was finance minister.

Defence lawyer Michael Bolton, acting for David Basi, had no hesitation in drawing attention to the myriad of political connections between the accused, Crown witnesses like Bornmann and his Pilothouse Public Affairs co-owners Brian Kieran and Jamie Elmhirst, who will also testify, and others related to the investigation.

"All of the principle players in this case, including the three Pilothouse partners, Basi and Virk were all very, very active in the Paul Martin leadership campaign," Bolton told media outside the court on May 1. "At the same time of the B.C. Rail bids, the Paul Martin campaign was going on. You'll see a great deal of the connections between the Paul Martin leadership campaign and the B.C. Rail bidding process."

'Who's scratching whom?'

Kevin McCullough, defence lawyer for Virk, also raised the political connections in relationship to what's termed: "Tip 3756 B.C. Federal Liberal Party."

McCullough said the tip was missing from the RCMP project room of documents and criticized senior Special Prosecutor Bill Berardino for telling the defence in a letter inquiring about the evidence that it was "not relevant" and therefore not disclosed.

"The membership list that they go seize of the Liberal donors -- who's scratching who and the vast sums of money some of them give is not relevant?" McCullough asked incredulously. "That, milady, makes absolutely no sense."

McCullough argued that Berardino has abdicated disclosure of evidence to the RCMP instead of taking charge of it.

"It's the RCMP controlling the disclosure. The Paul Martin campaign donor list and the federal Liberal party donor list. How can Mr. Berardino say it is not relevant when Mr. Bornmann was communication director for the Paul Martin leadership campaign [in B.C.]? Mr. [Mark] Marissen ran the campaign in B.C. and Mr. Basi was the key political operative."

"Mr. Collins at the time was thinking about running for the federal Liberals," McCullough alleged.

"It's important to understand the interconnectedness of the parties," he said. "It's all about a bunch of federal Liberals who are involved provincially and the double dealings that are going on."

Collins told of pro-Martin tactics

Bolton furthered the argument in court on May 2. "Basi and Virk are tied to Erik Bornmann not only because of his lobbying for OmniTRAX but because Bornmann was heavily involved in the campaign to select Paul Martin as leader of the Liberal party and Mr. Basi was a key political operative in gathering support for that party in communities where he had influence,"

Bolton used an intercepted police wiretap on a cell phone call between Basi and Gary Collins on December 3, 2003, to demonstrate how the federal party campaign tied in with provincial politics.

Basi: "Hi boss."

Collins: "Hi."

Basi: "We took over a [federal] Victoria riding association."

Collins: "You did?"

Basi: "We took 14 of 18 positions. We killed them. They only had 20 people and we had 60. We didn't take out the president or vice-president but we took everyone else out."

Collins: "Okay, great!"

Bolton said the call shows how Basi was used by Collins for "all sorts of political matters."

"Collins was very much behind the manipulations or activities of Basi and Virk to maintain the optics of the B.C. Rail freight division sale," he said.
Masters and servants?

"The case of the defence is that at no time did the accused do anything that was not explicitly or implicitly authorized by their political masters," Bolton said, arguing the defence thesis that Basi and Virk were merely the agents who facilitated a government-wide strategy to keep OmniTRAX in the bidding to legitimize an already-criticized privatization process.

Bolton also says Basi and Virk became fall guys for politically more important or more connected players, the soldiers taking the bullet for the generals, in effect.

"What they did was critical to the survivability and elect-ability of the [provincial] government," Bolton said. The botched Coquihalla highway privatization had been "a bit of a disaster for the Liberals."

"The B.C. Rail freight division sale was therefore critical. Northern MLAs had concerns about that privatization and how it would be handled," he continued. "In certain circles it was a fait accompli, a certain fact, that CN would be the winning proponent in that auction."

As a key player for Finance Minister Gary Collins, who was lead minister handling the privatization, David Basi was under enormous pressure, Bolton said.

"There were concerns about the appearance of a real and contested auction for the freight division. CP left the auction, asserting it to be a fixed process."

"Mr. Collins said he considered Mr. Basi to be his eyes and ears, appropriate to meet lobbyists for proponents, including OmniTRAX," Bolton said.

"OmniTRAX was widely believed by insiders in the Liberal party and cabinet to be being used as a 'stalking horse' -- deployed in effect as a bidder where there would appear to be a competitive bid."

"There's nothing wrong in law in using a corporation as a stalking horse in this way -- but the RCMP seemed to think otherwise," Bolton said, which led to the investigation and subsequent arrest of the defendants.

"Basi and Virk, in my respectful submission, have been hung out to dry," Bolton concluded.

The Crown fights back

But the special prosecutor's team was not about to shed legal tears for Basi or Virk.

Special Prosecutor Janet Winteringham, taking the lead for senior Special Prosecutor Bill Berardino, who is inexplicably absent from the entire hearing to date, gave for the first time a detailed accounting of what documents the Crown says were leaked by Basi and Virk to Bornmann and Kieran of Pilothouse Public Affairs, the lobby firm retained by OmniTRAX for nearly $300,000.

"Basi and Virk provided Mr. Bornmann with information from May 2002 to December 2003," Winteringham began and then outlined what else RCMP say they found and where:

• "Found in both Virk's office and the Pilothouse office was a letter from CN to Judith Reid."
  
• "And an e-mail sent to Virk from Mahoney of CN with a draft communications strategy." [A Kevin Mahoney was CN Vice-President Corporate Affairs and involved in the B.C. Rail bid at that time but was not identified specifically as the "Mahoney" by Winteringham.]
  

CORRECTION: I was informed Monday by CN that Kevin Mahoney has never been employed by the company. Mahoney was in fact B.C. Rail Vice-President Corporate Affairs at that time and is now B.C. Rail President and CEO. I apologize for the inadvertent error.

• "May 20, 2003 -- legal advice from Borden Ladner Gervais located at Pilothouse." [Borden Ladner Gervais were legal counsel to the B.C. government on the B.C. Rail deal.]
  
• "A [government] briefing note on bids located at Pilothouse."
  
• "A confidential memo from Ms. Illington to Judith Reid located at Pilothouse and Basi's residence." [Joy Illington was secretary to the Cabinet in 2003.]
  
• "One of the documents was the first round of indicative bids from CN, CP, OmniTRAX, Rail America and Genesee & Wyoming. Virk supplied the indicative bids to Bornmann."
  
• "A guide to negotiations for cabinet, a draft was found at Basi's house and Pilothouse."
  

Did Basi and Virk act on their own?


Winteringham also worked hard at connecting Basi and Virk -- and them alone -- to the leaking of government documents.

And in an interesting twist, Winteringham said neither Basi nor Virk were the major players in the B.C. Rail deal that the defence has claimed, suggesting a Crown argument that they merely took advantage of access to government information for their own gain.

"It will be the Crown's submission that Mr. Basi did not have that significant a role," Winteringham told Bennett. "Virk's role in the sale was far less significant than what's been described by defence counsel."

She added that Basi was not involved in the cancelled sale of the B.C. Rail Robert's Bank Port Subdivision, another privatization worth up to $70 million that the defence has alleged was a "consolation prize" that OmniTRAX was supposed to get for staying in the bidding process.

The defence alleges that Gary Collins approved of the "consolation prize," an assertion strongly denied by Collins.

"It's anticipated that you'll hear Mr. Basi had no significant participation in the sale at the Port Subdivision and that Mr. Basi had no reason to have information related to that sale," Winteringham concluded.

Winteringham also refuted earlier defence allegations that RCMP Insp. Kevin Debruyckere had steered the police investigation towards Basi and Virk and away from Collins because Debruyckere's brother-in-law is B.C. Liberal Party executive director Kelly Reichert.

In fact, Winteringham argued, Debruyckere himself believed Collins was under investigation, while other RCMP investigators felt he was not.

Both sides hitting hard

But like a professional tennis match, both sides volleyed hard back and forth at length.

Bolton particularly attacked Special Prosecutor Berardino for allowing key Crown witnesses Bornmann and Kieran to continue their high-priced business lobbying the provincial government even after allegedly admitting their role in bribing Basi and Virk to get secret provincial documents.

Bolton and Virk's defence lawyer Kevin McCullough were particularly exasperated May 10 after Winteringham told them that no written immunity agreement exists with Erik Bornmann.

McCullough had previously argued at length that Berardino had left a voice mail for Bornmann lawyer George Macintosh canceling the immunity agreement after Bornmann had "self-exonerated" himself by telling the media he was neither charged nor under investigation back in 2004.

That allowed Bornmann and Kieran, McCullough argued, to continue his lucrative lobbying business and also to attend law school at the University of B.C. in his attempt to become a lawyer.

Justice Bennett asked about the immunity agreement.

"The only question I had -- was there an immunity agreement as outlined in Crown policy and the answer is there was not. But there's no written agreement signed by Mr. Bornmann?" Bennett said.

"No, there's not," Winteringham replied.

McCullough asked what kind of immunity agreement must exist if it isn't in writing.

"If they don't have a signed agreement, then is it on the down low, on the QT?" he asked.

Bolton said the situation creates yet more questions for the defence.

"What were the inducements in this deal to Mr. Bornmann to change his [original police] statement and give the statements he gave in April implicating my client? I need that in order to properly defend my client," he said.

And he served notice that the defence would demand Berardino explain the deal.

"There's got to be full disclosure of the deal between Mr. Bornmann and Mr. Berardino on immunity. In my respectful submission, Mr. Berardino is going to have to make a statement on this." Bolton concluded.

Winteringham said she will fight that.

"Just so it's clear, the Crown opposes an order to have Mr. Berardino make a statement on this issue," she said. "I've spoken to Mr. Berardino, since he can't be here, and that is his position."

Missing political party evidence, missing Crown witness agreements and missing special prosecutors. Anyone missing the Basi-Virk trial is clearly missing a lot.