Basi-Virk defence demands BC government disclose secret documents; says still more emails missing

Lawyers in the B.C. Legislature raid case are demanding the provincial government waive assertions of privilege on a series of documents related to the $1 billion sale of B.C Rail that they says are critical to defend their clients.

And the defence says still more emails that should have been disclosed as evidence are missing. It was revealed early this week in B.C. Supreme Court that up to 140 emails had not been disclosed and that a hard drive apparently seized in the 2003 search of the Legislature was wrongly found in the court registry.

Former provincial ministerial aides David Basi and Bob Virk face breach of trust charges for alleging leaking confidential B.C. Rail documents to a lobbyist for one of the bidders.

Michael Bolton, counsel for Basi, said the government position argued by lawyer George Copley of claiming cabinet or solicitor-client privilege over the emails is delaying the trial.

“I am going to urge that the special prosecutor assert to the government, to the cabinet, to Mr. Copley that privilege be waived over these documents so we can get on with this trial,” Bolton said. “We’ve had serious, serious problems.”

Bolton said the trial had previously heard: “The premier’s comments in the House last May that there’s going to be openness and the special prosecutor will get what he needs.”

Virk’s lawyer Kevin McCullough argued that emails continue to be missing, including from personal Blackberry devices.

“There’s serious concern, looking at everything there, that there are emails missing,” McCullough said. "We don't have the Blackberry files."

The court also heard a clarification from Justice Elizabeth Bennett about how she had discovered a mystery computer hard drive in the Supreme Court Registry, which she reported on Tuesday.

"I did not go to the registry looking under a desk covered in cobwebs," Bennett said, adding that the registry clerk found the hard drive after Bennett called.

Crown prosecutor Janet Winteringham told Bennett on Thursday the hard drive is a "mirror-image" copy of other computers taken Dec. 28, 2003, when the B.C. legislature was raided. It was apparently booked into the registry's vault in March 2004 but should have been disclosed to the defence.

McCullough complained that there appear to be two standards for police when dealing with computer records, one for the accused and another for the two lobbyists accused of bribing Basi and Virk - Erik Bornmann and Brian Kieran - who turned key crown witnesses and face no charges.

"My client's position is going to be that emails are missing - that clearly indicates the originals must be checked," he said to Bennett .

"So are you saying that there was a flaw in the duplication process or that emails were deleted before the hard drives were seized," she asked.

"I don't know, milady," McCullough responded. "When it came to Mr. Bornmann and Mr. Kieran and a corrupted hard drive the police made no real effort to correct it compared to Mr. Basi and Mr. Virk's computers."

Then, referring to a third defence disclosure request for more evidence, McCullough seemed to warn of future fireworks in court: "I don't bring this application wihtout a mountain of problems to support it."

The hearing resumes February 18 at 9 a.m. for a one hour session to deal with the privilege questions over the emails. The trial remains scheduled to begin on March 17.

NOTE: A shorter version of this story was published by 24 hours newspaper Friday February 1, 2008.