Tuesday, June 05, 2007

Defence wins big in Basi-Virk disclosure application - Bornmann deal details, all RCMP notes to be produced

Judge in Basi-Virk Case Rips RCMP, Special Prosecutor

Sweeping order to cough up documents.

View full article and comments here http://thetyee.ca/News/2007/06/05/Disclosure/

By Bill Tieleman

Published: June 5, 2007


B.C. Supreme Court Justice Elizabeth Bennett delivered a scathing and far-reaching decision Monday that not only embarrassed the RCMP and special prosecutor in the Basi-Virk case, but likely sent a chill through the B.C. Liberal provincial government.

By ordering widespread disclosure of evidence not previously made available to the defence -- or the public -- Bennett has opened up what could be a Pandora's box for Premier Gordon Campbell.

The decision guarantees the court will hear new information about a controversial immunity agreement granted to key Crown witness Erik Bornmann, the former provincial lobbyist and activist in both the B.C. and federal Liberal parties.

Bornmann is alleged to have bribed former ministerial aides David Basi and Bob Virk in order to obtain confidential government documents about the $1 billion privatization of B.C. Rail in 2003 for his client OmniTRAX, which was one of the bidders. Ex-communications officer Aneal Basi is charged with money laundering in connection with payments made by Bornmann.

And the condemnatory language in Bennett's 37-page written decision will also encourage new criticism of how both the RCMP and Crown have handled the highly charged case that impacts a wide range of prominent political players.

'Substantial failure to respect disclosure rights'

"The defence is entitled to disclosure in a timely fashion. This rather extensive review of the many problems with this case demonstrates that disclosure has not been sufficiently made in a timely way," Bennett read in court.

"I regret that I must make the following order in such broad and sweeping terms. However, given the substantial failure to respect the disclosure rights of the accused, this order is the only way I believe I can ensure that no miscarriage of justice will occur."

Bennett also ordered Special Prosecutor Bill Berardino -- missing from the entire disclosure proceedings, including Monday's session -- to provide written answers to questions from the defence on the immunity agreement with key crown witness Erik Bornmann, which will see the former provincial lobbyist testify against his former friends.

Details of that agreement will now be revealed, after special prosecutors said there was no written document -- even though it is Crown policy to make such agreements in writing.

Justice Bennett was unequivocal about lack of disclosure on the Bornmann deal:

"There is no question that the defence is entitled to all of the details of any arrangement with Mr. Bornmann. Such arrangement is generally not protected by any privilege," Bennett wrote.

"There have been too many wrongful convictions based on informant information which was obtained in dubious circumstances. I do not make such a link at this time; however, that is the reason that the defence is entitled to full disclosure when dealing with immunity agreements," she said.

Questions about star witness

It may be telling that Bennett expressly states that she does not link "wrongful convictions based on informant information which was obtained in dubious circumstances" with Bornmann's expected testimony "at this time."

The questionable circumstances of the deal with Bornmann, an aide to Paul Martin when the former prime minister was federal Liberal finance minister and a major player in Martin's leadership campaign, received additional scrutiny from Bennett.

"I have concluded the Crown must answer the following questions," Bennett writes, noting that it can be done in writing and that the defence can renew its application to call Bornmann's lawyer George Macintosh if it is not satisfied.

One of those questions gets to the heart of the defence's argument that Bornmann was given privileged treatment as a Crown witness, allowed to continue his lucrative lobbying business despite allegedly admitting to bribery, and also allowed to finish his law school studies at the University of B.C. and start articling with prestigious Toronto law firm McCarthy Tetrault in order to become a lawyer in Ontario.

[Bornmann only left McCarthy Tetrault after I revealed his position there in an article in 24 Hours newspaper, which the defence noted in its application.]

Bornmann's 'false exoneration'

In April 2004, Bornmann issued a statement to the media that he had been exonerated in relation to the B.C. legislature raid case, a statement that was widely reported.

But Bennett called that a "false exoneration" and ordered an answer to this question:

"Did Mr. Berardino tell Mr. Bornmann, either through the police or Mr. Macintosh, that Mr. Berardino would not correct the falsity of the exoneration; that he would not advise the government in order to stop the lobbyist activities; or that he would not advise the Law Society of Upper Canada regarding the admission made by Mr. Bornmann? In other words, did Mr. Bornmann, in any way, know Mr. Berardino's policy of not interfering with his employment?" Bennett wrote.

"I order that anything relating to Mr. Bornmann's agreement, whether in the hands of the police or the special prosecutor, is to be disclosed to the defence."

'Submit every piece of paper'

But that was far from Bennett's only order.

During the disclosure application in April and May the court heard several instances where the defence argued that RCMP officers had not produced their notes or that important reports had simply gone missing.

Bennett was annoyed at the time and that annoyance became a direct order to the RCMP to cough it all up.

"In terms of police notes, I make the following order: Every police officer or civilian who touched or spoke about this investigation, regardless of what branch of the investigation they were involved in and regardless of rank or role undertaken will review every piece of paper he or she has and ensure it is submitted to the Crown forthwith. This includes but is not limited to notes, briefing notes, continuation reports, e-mail and anything marked 'not for disclosure'," Bennett wrote.

Calling the Commissioner

Those police notes that must be produced go right to the top of the RCMP food chain -- Bennett even ordered a briefing note to former RCMP commissioner Giuliano Zaccardelli be provided to the defence.

Bennett also ordered that the defence have access to review seven file cabinets full of information related to the drug charges file that first triggered the B.C. legislature raid, when police wiretaps in a trafficking investigation picked up David Basi talking to one of the suspects.

While the defence will not be permitted to view the documents themselves, they will be able to know what documents are there and whether the documents have either been disclosed or appropriately marked not for disclosure.

Needless to say, defence lawyers Michael Bolton, Kevin McCullough and Joe Doyle and their associates were all smiles after hearing Bennett's decision.

"We're very pleased with this result," said Bolton, lawyer for David Basi. "Disclosure is absolutely critical to a fair trial. Missing evidence can be the difference between a fair trail and an unfair trial."
Smiling New Democrats

McCullough declined to comment, but the huge cigar he lit outside the courtroom and the equally large grin he sported said it all.

Looking equally happy were Leonard Krog, the New Democratic Party MLA for Nanaimo and critic for Attorney-General Wally Oppal, and David Perry, chief of staff to NDP leader Carole James, who both attended B.C. Supreme Court.

Krog said the decision should force Premier Gordon Campbell and Attorney-General Wally Oppal to stop stonewalling on questions arising from the testimony, which included defence allegations that Basi worked with officials in the premier's office on media manipulation and dirty tricks.

"The pretence they continue to hold won't stand public scrutiny. They have to answer questions," said Krog, himself a lawyer, outside court. "This whole story is disappointing from start to finish. I have to commend the defence on the job they're doing."

"If I were Mr. Campbell I wouldn't want to be going into the next election without a decision on this case," Krog said.

Can I get a witness?

The defence also complained that the Crown had not provided it with a comprehensive list of the witnesses and witness statements.

Bennett agreed again and set a deadline of July 15 for the Crown to "provide to the defence the statements or will say statements of the witnesses it knows at this point it intends to call at trial."
While not all witness are yet known, that witness list will include some former key players in the B.C. Liberal government.

Already named as witnesses are Bornmann; former finance minister Gary Collins, who David Basi worked for; former transportation minister Judith Reid, who was Virk's boss; Brian Kieran, the former Vancouver Province political columnist turned lobbyist who owned Pilothouse Public Affairs together with Bornmann; and business partner Jamie Elmhirst, the former federal Liberal Party B.C. branch president who was subpoenaed to testify.

'Open as possible'

The defence and special prosecutor team will be back in B.C. Supreme Court on Thursday, June 7, at 10 a.m. to deal with further defence motions, including presumably scheduling for a Charter of Rights application that will ask Bennett to throw the whole case out of court over abuse of process and other complaints.

Another application Bolton said the defence intends to file shortly will ask for government documents relating to the B.C. Rail privatization deal, and could reach into very politically sensitive files, right into the office of B.C. Premier Gordon Campbell.

Expect a vigorous objection from the provincial government on that request.

But as has been proven repeatedly, Justice Bennett meant what she said in March when she gave her view on how this case should be handled.

"These proceedings have to be as open as possible. There's a presumption in the law of public access."

That degree of openness and public access is going to be a serious test for a provincial government that is trying hard not to answer a series of uncomfortable and potentially politically damning questions.

Related Tyee stories:

Wiretap Said to Tie Collins to Media Tricks
Premier Alleged to Know of Paid Media Scam
Basi-Virk Defence: Bold Allegations
'Spiderman' in a Web of Intrigue


Anonymous said...

Nice report Bill. Can you remember what, exactly, George Copley did when he appeared before the Judge in late February or early March?

I have some vague recollection that he addressed the judge after one of defence counsel vouched for him. Do you know if it related to government documents he had vetted for various legal and FOI reasons?

I can't help but think that the Premier's oft-repeated refrain about 'disclosure subject to FOI' in the House this past couple of weeks had some sinister implication.

Bill Tieleman said...

Thanks for the kind comments.

George Copley is legal counsel for the "Executive Council" - i.e. the BC government. He is responsible for dealing with issues of cabinet privilege and parliamentary privilege regarding release of documents in court.

I'm sorry, I can't recall anything of significance regarding a Copley appearance at an earlier court date.

But you can be assured that the government's instructions to Copley will not be to give up privilege on some key BC Rail documents.

Budd Campbell said...

But you can be assured that the government's instructions to Copley will not be to give up privilege on some key BC Rail documents.

This is the point I have been trying to make. Indeed, generally speaking, there doesn't seem to be a regular system in place for releasing BC Cabinet documents even after 25 or more years as there is at the Federal level.

Perhaps the BC Cabinet has been run in such an amateurish, seat of the pants fashion that there are no interesting or historically relevant documents to reveal?

Anonymous said...

Thanks for trying Bill. Here's the reference I was thinking of. It's from BC Mary's blog and was written by Robin Mathews after that court hearing.

I am quoting:

"In a few moments of almost digression, George Copley and Valerie Anderson, apparently representing the Province, appeared. Their appearance concerned documents reviewed, or privileged and declared irrelevant and documents apparently involving client privilege (as I understood their interventions). McCullough, for the Defence, intervened and said all the documents were the responsibility of the Special Prosecutor, that he was claiming "standing" in the court for Copley who, in effect, has no standing, and the documents should simply be disclosed. The Court appeared to agree with the burden of the statement by Defence."

Robin, despite his generally-jaundiced view of the courts, has been a very accurate reporter on this file. I believe, although I'm not able to access my files from this computer that a further confirmation of what I've posted here also was printed in either the Globe (Mark Hume) or possibly the Sun.

I'll check back later.

And you can see, from that, Budd, why I took the position I did at Tyee.


Budd Campbell said...

Gerry, ... er, ... not entirely. There's still the issue of what documents one is referring to? Those seized in December 2003, or others.