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.

EARLIER REPORT FROM FRIDAY MORNING

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.