Friday, December 14, 2007

Basi-Virk defence alleges solicitor-client privilege claim instructions in case came from BC cabinet; may cross-examine Deputy Cabinet Secretary

Lawyers for the defence in the Basi-Virk case made strong allegations this afternoon that instructions to claim solicitor-client privilege over documents related to the $1 billion BC Rail privatization came from "cabinet" rather than from provincial bureaucrats in the Attorney-General's ministry.

And defence counsel questioned statements made in the BC Legislature by Premier Gordon Campbell about the openness his government was demonstrating regarding providing documents they say are needed to defend their clients, three former BC government aides.

Lawyers for David Basi, Bob Virk and Aneal Basi also gave BC Supreme Court Justice Elizabeth Bennett notice that they may seek to cross-examine both the current and the former Deputy Cabinet Secretary about their role in providing instructions on the privilege issue.

"The issue of who's giving instructions is significant," said Kevin McCullough, Virk's lawyer. "There's a real issue when the Deputy Attorney General was providing instructions and when instructions were provided by Cabinet."

McCullough said the defence may seek to cross-examine former Deputy Cabinet Secretary Joy Illington and current Deputy Cabinet Secretary Elizabeth MacMillan.

Outside the court, Michael Bolton, David Basi's lawyer, told reporters that the defence questions statements made by Campbell in the Legislature that had been quoted earlier today by George Copley, the government's lawyer.

"What we said was that Mr. Copley had quoted the Premier saying there would be openness about these documents and that's not consistent with the position taken," Bolton said.

In court McCullough made clear that he did not doubt Copley's integrity at all but he did question Campbell's statements in the BC Legislature during debate with New Democratic Party leader Carole James over the premier's office estimates that the Deputy Attorney General was dealing with issues of privilege in the Basi-Virk case. [See earlier report below for Hansard quotes]

"The instructions really are driving the way you ought to interpret the government's assertions of solicitor-client privilege," McCullough told Bennett. "The Deputy Cabinet Secretary is ultimately who's instructing Mr. Copley with respect to privilege."

Earlier Bennett agreed that the defence could cross-examine Nancy Reimer, an assistant to government lawyer George Copley, on Tuesday December 18 regarding an affadavit she prepared outlining privilege issues in the case from the province's perspective. Reimer was excused from the court for part of the afternoon because of that request.

The defence will make further arguments on Monday December 17 at 10 a.m. on the solicitor-client privilege issue.


Government lawyer in Basi-Virk case argues against releasing BC Rail privatization to defence but says "fully cooperating"

The government's lawyer in the Basi-Virk case argued in BC Supreme Court this morning that the defence should be denied documents related to the $1 billion privatization of BC Rail due to solicitor-client privilege.

But George Copley argued that the government was being "completely open and cooperative" in its approach.

And in a surprising move, Copley quoted an exchange in the BC Legislature on May 28, 2007 where New Democratic Party leader Carole James extensively questioned Premier Gordon Campbell about the government's cooperation in the case or lack thereof.

At issue are 17 documents that the government is claiming solicitor-client privilege over because they all relate to what it says is legal advice on the BC Rail deal received from law firm Borden Ladner Gervais.

The defence argues the documents should be released for several reasons - including that accused former BC Liberal ministerial assistant Bob Virk actually was provided with them in the course of his duties but now cannot access them; that co-accused David Basi and Aneal Basi should have equal knowledge to what Virk might have from having seen the documents; and that two or more of the documents were released to the defence separately through a Freedom Of Information request previously.

Copley argued the government's case throughout the morning, dismissing all grounds for disclosure and citing past case law to back up his position.

"We have attempted to be completely open and cooperative with the Court, the Special Prosecutor and defence counsel," Copley told Justice Elizabeth Bennett.

He later quoted both James and Campbell from debate in estimates on the premier's office budget.

"On May 28 the premier was responding to questions from the leader of the opposition," Copley said before quoting this segment from Hansard:

"C. James: My question would be to the Premier. Will he commit to releasing documents without invoking privilege?

Hon. G. Campbell: Again, I would go back and say that obviously there are issues with regard to cabinet confidentiality that must be and would be considered in these issues. Having said that, my goal and the objective of the government throughout has been to proceed with an unfettered and, frankly, independent process.

There's a special prosecutor in place, and I will not be involved in those discussions. That has been delegated to the Deputy Attorney General, and he will make those decisions as he sees fit."

Copley then continued to quote the premier's answer to another question:

"Hon. G. Campbell: I do want the Leader of the Opposition to understand what I've done here. In terms of the screening of cabinet documents, all those [ Page 8246 ] documents will be available to the Deputy Attorney General. He will make the decision vis-à-vis cabinet confidentiality or any of those issues in consultation with the special prosecutor."

Copley then interjected that: "I think the premier's not got that entirely correct" and then continued back to Hansard.

"He will make the decision without any further consultation with me or anyone in the Premier's office," the rest of Campbell's answer read.

BC Rail lawyer Robert Deane will also argue against disclosure in the afternoon, followed by defence rebuttal either Friday or Monday.


Anonymous said...

Hmmm...are they invoking solicitor client privilege or cabinet privilege? Which is it?

BC Mary said...

Special thanks, Bill, for permission to copy; and for posting so early. It's tense, waiting for news from what Pacific Gazetteer calls "Studio 54".

On George Copley's logic, though, I dunno. The way I read the unabridged excerpt from Hansard, it comes out meaning something quite different.

The whole excerpt is posted over at my place in ... ahem ... red text, for anybody wanting to evaluate the complete discussion for themselves.

The debate took place months ago. I can't believe that Premier Campbell is so rat-smart that he foresaw the need to register a handy, reversible, double-sided, which way is up? quote like that.

No wonder the Leader of the Opposition went back about 6 times and asked the question again, "Just so I understand ..."

BC Mary
The Legislature Raids



Anonymous said...

The Nixon White House argued "executive priviledge" for over a year until the Supreme Court ordered them to deliver the documents and tapes.

Strangely the cries for resignation, screamed so loudly by CanWest/Global over Glen Clark and his deck reno are completely muted around Gordo & his army of "Aging Socred Youth" and their Billion Dollar Privatization Scams.

People have to realize their "PREMIER" is not a crook and I'm no crook . . . Richard Milhouse Nixon


Anonymous said...

They're just 'invoking' on general's an old legal trick - throw everything at the wall and hope something sticks.

It must be embarrassing for someone like George - who retired after a distinguished career as a constitutional and administrative law specialist - to find himself trying to defend a premier who says one thing and does another; a government which turns the handling of the case over to a Special Prosecutor - and then sets up another government employee to supersede him.

I don't know who should be the most chagrined: Copley or Berardino...I do know who they're trying to screw.

Anonymous said...

Did the Premier mislead the legislature?

I guess after Reimer testifies under oath we may find out.

G West said...

"The instructions really are driving the way you ought to interpret the government's assertions of solicitor-client privilege," McCullough told Bennett. "The Deputy Cabinet Secretary is ultimately who's instructing Mr. Copley with respect to privilege."

Does this remind you of anything?

Make you wonder about the Premier's veracity?

Begin to make you think that there is one line for the public sphere and (when it comes to hiding things) another line entirely for the private one...the one Campbell runs off his own desk!

Anonymous said...

Been there and done that regarding lawyer's allegations on both sides of the fence. Certainly don't give much credence to any lawyer's allegations.

Look more towards Justice Bennett's daily decisions, esp. vis-a-vis this tidbit:

"Earlier Bennett agreed that the defence could cross-examine Nancy Reimer, an assistant to government lawyer George Copley, on Tuesday December 18 regarding an affadavit she prepared outlining privilege issues in the case from the province's perspective."

It certainly would help if a copy of that affidavit was posted herein for further analysis.

Deep Throat said...

Geez Bill, I thought my earlier question to you was very simple.

It looks like George Copley (who is representing the executive branch of government) is having trouble understanding it.

I wonder why?

Gazetteer said...


Who, precisely, is Mr. Copley working for at the moment?

Is it the AG?
Is it the executive branch?
Someone else?

Thanks in advance.


Gazetteer said...


Sorry to be so thick, but can you elaborate on how, precisely, Mr. Copley is representing the 'executive branch' of government?

(and am I correct in assuming you have raised this point because it would indicate that everything has NOT been left to the deputy AG to decide?).



Budd Campbell said...

I think it's one thing to claim solicitor client privilege in relation to the case in question, it's another thing to claim it in relation to a business deal that, officially at least, is not the subject of the trial.

Gary E said...

What am I missing here? Can anyone tell me why a BC Rail Lawyer is going to argue against disclosure?
What are they trying to cover up? The fraudulant sale of the railway in general? They don't have any cabinet documents.

Deep Throat said...


Copley has indicated to the Court that he is representing the executive branch of government - read - the Cabinet - read - THE PREMIER.

As to your question - yes - then read the Premier's numerous statements in Estimates wherein he assures the Assembly that the "call" on releasing documents would be left to the DAG.

So the questions remain:

Did the Premier mislead the Assembly?

Or, did he just recently change his mind and if so, why?

Does he have something to hide?

And yes, these are rhetorical questions.

Gazetteer said...

Thanks very much d.t.

I've think I've finally got it now.

Finallty, I have one more question, which you may choose NOT to answer if you like.

But here goes anyway.....

When you posted up the exchange between Ms. James and Mr Campbell from last May here at Mr. T's on Monday, was it just a lucky guess/coincidence or was it something more (ie. as in a move-of-the-plant-pot-on-the-balcony something more-type thing)?


BC Mary said...

There was one lone Citizen Journalist in Madam Justice Bennett's courtroom on Monday and Tuesday (when Bill was away, and Robin Mathews was busy elsewhere).

He/she posted an anonymous comment at my place ... the only news report the public heard of these critical conversations.

Anonymous said that Nancy Reimer wasn't called upon to testify, as it "wasn't necessary."

He/she didn't mention the affadavit.