Friday, November 16, 2007

Basi-Virk Case - Secret witnesses, 5,000 pages of new evidence, "rant and rave" accusations

Secret witnesses, 5000 pages of new evidence and accusations of defence “ranting and raving” equals another day of the BC Legislature raid case

By Bill Tieleman


Secret witnesses, 5,000 pages of new evidence and accusations by the Special Prosecutor that a defence lawyer was “ranting and raving” marked the latest BC Supreme Court hearing Friday in the BC Legislature raid case.

The testy pre-trial hearing saw verbal fireworks fly as the long-delayed trial of BC Liberal ministerial aides David Basi and Bob Virk on breach of trust and fraud charges heard more accusations of the Crown and RCMP failing to properly disclose evidence to the defence.

Virk’s lawyer Kevin McCullough blasted Special Prosecutor Bill Berardino after the defence received 5,000 more pages of evidence that had been ordered disclosed by Justice Elizabeth Bennett some months ago. McCullough said he had sent Berardino a lengthy letter complaining again of late disclosure.

“There are some monumental disclosure issues, extreme problems of disclosure,” an exasperated sounding McCullough told Bennett.

“We’re still dependent on the RCMP to decide what to disclose. When you hear about what the RCMP decide is relevant you are going to be very, very, very surprised,” McCullough said.

“We’ve just found there’s three more files, an inordinate amount of notes,” he said. “The [RCMP] Team Commander for 18 months – there is not a single note – nothing.”

That accusation brought Berardino to his feet.

“Mr. McCullough can get up right now and rant and rave but there’s a process and I will respond to his letter point by point. But I do not agree with his position,” Berardino said angrily. He told Bennett the Crown would need about 10 days to reply to McCullough.

The trial also heard that two witnesses have requested that their testimony be given in-camera so they could not be identified in the media.

“The in-camera application – I may hear arguments from media counsel and need some time for that,” Bennett said.

There was no indication as to who the witnesses might be or what evidence they might give in the case.

The 5,000 pages of new evidence – which comes on the heels of 25,000 pages of new evidence given to the defence in October – comprises over 4,000 pages from the Integrated Proceeds Of Crime [IPOC] investigation and another 800 pages of hard copy wiretap logs, the court was told.

Michael Bolton, Basi’s lawyer, said the defence was still working through the earlier disclosure, much of it related to the $1 billion privatization of BC Rail in 2003. Basi and Virk are accused of providing confidential government information about the deal to lobbyist Erik Bornmann, who was working for bidder OmniTRAX at that time. Bornmann is now the Crown's key witness against Basi, Virk and Aneal Basi, a former provincial communications aide.

“I’m still going through that material – much of it is significant. Parts of it are notes of officers and are relevant for our disclosure application,” Bolton said. The defence plans to file multiple applications at a scheduled hearing December 3.

But Justice Bennett again warned both Crown and defence that she would not tolerate any further delays.

“As long as we’re clear – motions are going to proceed on December 3,” she said.

The latest developments concerned MLA Leonard Krog, the New Democratic Party critic for the Attorney-General’s Ministry who observed the hearing.

“It’s very troubling when you hear defence counsel talking about ‘monumental problems with disclosure’, despite what Mr. Berardino says,” Krog said in an interview outside the courtroom. “This isn’t a break and enter – it’s a raid on the BC Legislature. People could go to jail. It’s hard to think about a case that’s more important.”

Krog, himself a lawyer, said disclosure is a critical part of any case.

“There’s a tremendous onus on the Crown and the RCMP to disclose everything,” he said. “One can only speculate but on the road to disclosure somebody’s holding it up.”

Bennett confirmed that another pre-trial hearing will be held on Friday November 23 at 9 a.m.


ADDITIONAL INFORMATION November 17:

Bolton told Bennett that part of the new information received includes material from Erik Bornmann's email account.

"It's important material. He's a central witness in this thing," Bolton said.

And McCullough alleged in court that the RCMP had wiretapped calls between the defendants and their lawyers, though he did not provide details.

"Solicitor client calls being listened to, passed on to other officers," he told Bennett.

Still looming is an abuse of process motion that Bolton, McCullough and Joe Doyle, Aneal Basi's lawyer, intend to file in an attempt to throw the entire case out of court.

The defence would argue that the failure of the RCMP and Special Prosecutor to provide timely and full disclosure of evidence has made a fair trial impossible.

Justice Bennett referenced that at an October pre-trial hearing:

"At some point your friends are going to bring in an abuse of process motion and I don't need to hear arguments from anyone today," Bennett said curtly to Berardino, using the court term "friends" to refer to the defence counsel. "I appreciate no one knew how many documents there were and I know everyone is working hard."

The new evidence presented to the defence this week came as a result of Bennett's sweeping order in June that the Crown disclose "every scrap of paper" related to the case after she heard about a wide variety of missing evidence, including RCMP officers' notes.

Bennett filed a 37-page decision at that time granting every one of the defence requests for disclosure.

"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 wrote in June.

" 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."

At the court Friday, MLA Krog said the lengthy delays and problems in getting to trial almost four years after the police raid on the Legislature paint a troubling picture of the whole justice system in BC.

"It says that we have some real problems in a case that is so important to the public," Krog said. "In fairness, maybe these guys [Basi, Virk and Basi] are innocent and four years later they haven even had a trial."

7 comments:

Anonymous said...

I trust that the hearing scheduled for next friday is going ahead as well?

I also read that Erik Bornmann's emails have only been disclosed this week! That is shameful and how can you defend that late disclosure?

I am anxiously awaiting Berardino's response.

BC Mary said...

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Many thanks, Bill. Your eyewitness account is much appreciated.

"It's hard to think [of] a case that's more important," says Leonard Krog.

I agree.

Looking forward to your next columns.

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Anonymous said...

Next stop in this saga will be last week of this month. and it does sound like the Judeg will be moving on so the rest had best pull up thier socks . Good coverage as always Bill.
DL

Anonymous said...

"The latest developments concerned MLA Leonard Krog, the New Democratic Party critic for the Attorney-General’s Ministry who observed the hearing.

“It’s very troubling when you hear defence counsel talking about ‘monumental problems with disclosure’, despite what Mr. Berardino says,” Krog said in an interview outside the courtroom. “This isn’t a break and enter – it’s a raid on the BC Legislature. People could go to jail. It’s hard to think about a case that’s more important.”

Krog, himself a lawyer, said disclosure is a critical part of any case.

“There’s a tremendous onus on the Crown and the RCMP to disclose everything,” he said. “One can only speculate but on the road to disclosure somebody’s holding it up.”



He's right, and one can be certain that the Supreme Court Justice can see what's going on...

Anonymous said...

This entire "trial" plays more like a never ending episode of Monty Python's Flying Circus.
"We" have either created an entire legal-system of idiots, or the political-legal-fix is in . . . to make sure no "connected" Grits will ever do time in BC.
Actually I figure it's both.

The GREAT SATAN

macadavy said...

I speculated on "an attempt to through [throw] the entire case out of court" in an earlier comment.
There is a very real possibility of this happening. Ask yourself: who would benefit (beside the defendants) if this case never comes to trial and none of the evidence is ever made public? I believe some people in high places would very much prefer such an outcome...

BC Mary said...

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Over at my place, we've been trying to guess who the Secret Witnesses may be. Gordon Campbell? Nahh. Disgruntled back-benchers who have seen things? Yeah, like that. Maybe even RCMP who can't hold back any longer?

Then it hit me. Wait a minute: just how does this SECRET witnessing happen?

Does it mean that there's a mini-trial in Justice Bennett's chambers, with no recorded transcript? And the people of B.C. will never know what was said? Never know who said it? Never know how this secret testimony influenced the Judge's decision(s)?

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