Thursday, May 10, 2007

Justice Bennett in Basi-Virk case criticizes missing evidence

Judge scolds prosecution


An angry judge criticized missing evidence in the B.C. Legislature raid case as the defence pressed the prosecution for additional documents related to alleged B.C. Liberal Party media manipulation and dirty tricks.

Justice Elizabeth Bennett interjected several times as Special Prosecutor Andrea MacKay attempted to explain why several documents were neither disclosed to the defence nor identified on a "not disclosed" list.

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

Kevin McCullough, lawyer for former provincial ministerial aide Bob Virk, argued that "media monitoring" contracts between the B.C. Liberal Party and David Basi, Virk's co-accused in the breach of trust and fraud trial, must be disclosed.

McCullough has alleged that Basi, former ministerial aide to ex-Finance Minister Gary Collins, was paid $20,000 for media manipulation on talk radio shows and political dirty tricks connected to the $1-billion privatization of B.C. Rail.

"Why haven't we received that Liberal Party contract right now? Why not just give it to us?" he asked. Bennett agreed.

ADDITIONAL INFO not in 24 hours

“Can you give that to your friends before they reply?” Bennett asked MacKay, who said she would provide it. After lunch McCullough again asked why the Liberal Party contract had not been produced, with MacKay saying she had not been to her office over the lunch break to retreive it.

Earlier Special Prosecutor MacKay outlined that there were 78 documents not disclosed to the defence, including several in which solicitor-client privilege was being claimed.

"These documents were not on the 'not disclosed' list," McCullough complained.

In further discussion of the B.C. Liberal Party contract with Basi for 'media monitoring' MacKay said there was a "Report to Crown Counsel on the Liberal contract charge approval process."

"The Crown was taking the position that that document not be disclosed because it was not proceeding with charges," MacKay said.

"Then why wasn't it on the 'documents not disclosed list?" McCullough asked.

There was also a lengthy discussion of the contents of seven filing cabinets related to the drug investigation that originally brought David Basi to the attention of police. The defence argued that it should have access to at least an inventory of what is in the files.

"Not only have they [the Crown] not created an inventory, they haven't even looked at them," an exasperated McCullough told Justice Bennett. "That's based on a conversation I had at noon with my friend.

Special Prosecutor Janet Winteringham immediately objected.

"I never said I haven't looked at them. Ms MacKay has. I only said there was no inventory," Winteringham explained.

Bennett then interjected: "There are seven file cabinets in the drug room. Has the Crown looked at every single page of those documents?"

Mackay replied: "The Crown has not looked at every single document in those file cabinets. The file coordinator has seen every document."

That brought McCullough back to his feet.

"They haven't made an inventory of the drug file. They haven't been through it. They simply haven't done that. And I was led to believe the opposite," he said.

MacKay argued that there were concerns about the confidentiality of the files and the possibility that an RCMP drug informant could be identified if defence lawyers gained access to the files.

Later MacKay tested Bennett's patience again by attempting to take her through the details of a precedent setting case involving informants and privilege to access to their information.

"I've been involved in the leading case of [informer] privilege in this province," Bennett told MacKay.

Later MacKay drew the judge's ire again.

"Milady, I know you made an earlier decision but you are not bound by that decision..." MacKay started.

"I know that I'm not bound by my decision," Bennett firmly stated.

The defence disclosure application hearing continues Thursday and Friday at least in BC Supreme Court.


Serge said...


You are truly the eyes and ears of everyone in this province unable to attend this hearing. All the details that you include on your blog are valuable for people who want all the facts so that the reader can judge for his or herself.

I read with interest that the Special Prosecutor taught Erik Bornmann during the investigation in 2004. This is a perceived conflict in my opinion. Quite frankly I believe that this is the reason Mr. Berardino has not appeared in court as he wishes to avoid any questions on this issue.

This case continues to raise troubling questions about the conduct of the RCMP and Prosecution for the last 3 and a half years.

I can only hope that regardless of the final verdict, our system of justice has not been undermined.



Anonymous said...

Bill Berardino's continued absence from the Court is starting to create some serious problems - not least those that Neal Hall pointed out here:

Some of these questions, in my view, Mr. Berardino, Q.C. should be answering himself.

Gazetteer said...

And just were, exactly, is the lead SP again.........?

Anonymous said...

In my view ,as a person with no legal background but some time in assorted courts as a witness or observer,that the judge is getting fed up with both sides of the arguments. I don't think she needs to be told she can change her mind on what is evidence or is not. She made it clear in a memo to all concerned that thins get released when she authorises the release.The memo is in the public domain. As I understand it the subject of the special prosecuter giving a lecture with spider man in the crowd was discussed and neither side said it was a conflict. Percied or other wise.

Let's accpet the fact that the judge knows her job and needs no lectures from us or for that matter the lawyers on either side.

Better get a season's parking pass Bill. Looks like you have a long summer ahead of you. dl

Jake said...

Good comments DL. My take from reading the material Bill has posted and talking to friends who have taken in the hearing it is painfully obvious the Judge is losing it with the prosecution. When you have documents that have disappeared, other documetns magically appear, witnesses stepping forward to say they were interviwed and had unflattering things to say about the star witness, this is deeply disturbing. As Bill stated before, these are only pre-trial motions, we haven't even witnessed any cross examinations yet! They should sell tickets, this is going to be a show that could actually make some money to pay part of what must be astronimical fees to this prosecution team!