Friday, February 01, 2008

Basi-Virk Justice Bennett says some emails government claiming privilege over could be critical to defence

Justice Elizabeth Bennett has told defence lawyers that three of more than 100 previously missing emails in the BC Legislature case she has reviewed so far have "significant relevance" to the defence and one could affect "innocence at stake" - a legal term that would override provincial claims of privilege over the document.

Bennett made the comments Thursday January 31 in the course of a hearing that is preceding the trial of David Basi and Bob Virk, ex-ministerial aides, on breach of trust and fraud charges and Aneal Basi, a former government communications staffer, on money laundering charges.

"Anything to do with BC Rail I deemed relevant," Bennett said Thursday. Virk's lawyer Kevin McCullough said in court that 92 emails have so far been deemed "relevant" to the case.

But how important is the "innocence at stake" email?

The "innocence at stake" issue is an important one for claims of privilege. In Basi-Virk both solicitor-client and cabinet privilege is being claimed by the provincial government.

One of the key legal discussions came in R. v. McClure in 2001 in the Supreme Court of Canada, which canvassed the limits of solicitor-client privilege.

The following excerpts explain the concept:

"The solicitor-client privilege is a principle of fundamental importance to the administration of justice as a whole. Despite its importance, however, the privilege is not absolute and, in limited circumstances, may yield to allow an accused to make full answer and defence. The appropriate test for determining whether to set aside solicitor-client privilege is the innocence at stake test. The test is a stringent one.

The privilege should be infringed only where core issues going to the guilt of the accused are involved and there is a genuine risk of a wrongful conviction."

Before the innocence at stake test is even considered, the accused must establish that the information he is seeking in the solicitor-client file is not available from any other source and that he is unable to raise a reasonable doubt as to his guilt in any other way.

The test is applied in two stages in order to reflect the dual nature of the judge’s inquiry. At the first stage, the accused seeking production of a solicitor-client communication must provide some evidentiary basis upon which to conclude that there exists a communication that could raise a reasonable doubt as to his guilt.

At this stage, the judge has to decide whether she will review the evidence. The judge
must ask: 'Is there some evidentiary basis for the claim that a solicitor-client
communication exists that could raise a reasonable doubt about the guilt of the
accused?' It falls to the accused to demonstrate some evidentiary basis for his claim."

The pre-trial hearing resumes on February 18 at 9 a.m.


DL said...

Your explanation of some of those emails is certainly helpful. I hope some others on this and other sites site read the Supreme Court of Canada's ruling . It's too bad the information has to be dragged out of the crown especialy when the Premier went on and on about transparency in this case. Mind yu the cronw is doing what it's paid to do, make their client look like the innocent party, I look forward to the case actually getting underway

JD said...


The fact that the Judge herself has reviewed these emails and in her own words raised the "innocence at stake" argument bodes well for the defence.

Until Thursday, I cannot recall the defence using the term "innocence at stake".

I believe that they must have an idea what's in those emails and that explains why they have been chasing after disclosure so dilligently.



Anonymous said...

Bill I just read your new story. This takes this thing to another level completely! It is of significant importance when ajudge deems something so critical she states "innocence is at stake". Your legal research to explain this term is appreciated.

Thanks Bill.

Heaney said...

I think it one of my favourite judgments by the WHL's Calgary Cowboys former counsel - as he was once among other things ;) A tremendous, though strangely underrated, jurist and now fearless public inquiror.

Mme. Justice Bennett is not likely to have thrown the term around. Evidence that can provide a potentially complete defence and is not otherwise available to the accused is a pretty high test.

Deep Throat said...

Mr. Premier it is good to see you and thanks for letting me in today without prior notice.

That’s okay Clark; I have some time as I just put away that book on Watergate written by that guy that I think about it, looks a lot like know what’s his name...

Do you mean John Dean Mr. Premier?

Yea, that’s the know it recently occurred to me that if Nixon had just burnt those tapes on the White House lawn when he had the chance he would never have had to resign.

That’s strange that you say that because I came to see you today to talk to you about the Basi / Virk trial.

I am not sure if Martyn Brown or Coleman has told you but Justice Bennett thinks that three of those missing government e-mails have significant relevance to the Basi/Virk defense and that one could show that they are innocent of the charges against them!

Yea, I can’t remember which one but one of them came running in here the other day making a lot of noise about it...I can’t remember what was said other then I got very angry and shouted at him to just get on with know Clark sometimes this job just gets to you...

That’s okay Mr. Premier...can I refill you glass?

Yes, there is some twelve year old Scotch on the table over there...twelve time was twelve years ago that other Clark stole the election from me by lying about the budget...and he didn’t have to resign because of that...and because of that he made me wait four more years to get this job...that #^*&%^*!

Mr. Premier, I can see that you are upset but we must talk about Basi/Virk.

Mr. Premier, you just can’t keep stonewalling on this matter...given what Justice Bennett has said it would be extremely unethical to continue to try to block the release of these e-mails by claiming privilege...people would think you had completely lost your morale compass...for gods sake Mr. Premier Basi and Virk were your own “foot soldiers” what kind of message are you sending to your own political staff by holding to the strategy of claiming privilege and thereby denying Basi/Virk of the right to finally demonstrate that they are innocent of the criminal charges laid against them. Think of the hell that they and their families have been put threw over the past four years. You owe it to them to not let it go on!

Clark, you well know that; "I am not following it very closely...the prosecutors are doing their job, I'm sure the defense is doing their job...and I won't have anything at all to say about it until it is complete...That has been my position from the outset". Well perhaps and now that I think about it Clark...maybe I should drop the part about “...the prosecutors are doing their job...”

Mr. Premier, as I warned you last June there is a cancer in your I am counseling you that you are now ignoring that cancer at your own political peril...I know that Gary has done nothing illegal and I am sure that you have done nothing illegal so it is time to let the chips fall where they may...Mr. Premier it is now time to expunge the cancer from your Office!

Look Clark you need to leave now...I have the Terminator...I mean Governor Schwarzenegger on the can you refill my glass before you leave.

hj said...

al's statement made at 7:57 PM that the "cronw is doing what it's paid to do, make their client look like the innocent party" is fundamentally wrong. The crown is paid to seek out the truth for "the People"- In this case, the truth does not necessarily assume "innocence".

Anonymous said...

It is my belief the Defence counsel know exactly what that e-mails says and the only way they could know is through their clients. This explains, in a way, their continued pursuit of "documents". I do think they will want this case to go to court. It appears these documents are in the interest of the accused and just may drop the ball in someone elses lap. Joey

Gazetteer said...


'innocence at stake' could, maybe trump solictor/client privilege.

But what about the stone behind this particular paper-mache wall?

In other words, what about the still held in reserve 'cabinet' privilege?

How will it fare against the concept of 'innocence'?



kootcoot said...

As hj pointed out correctly, the possible "innocence" at stake here is that of Basis and Virks. The government is not on trial here, and maybe that is the biggest mistake of the whole investigation/pseudo-trial and Kabuki dance of which we occasionally get to see a flicker

dj NAILED it with:

"The crown is paid to seek out the truth for "the People"

And the commenter to whom he was responding was dl (not al).

I loved the imaginary conversation with Premier Campbell. Clark (?) seems to be very mellow and restrained since at no point in the conversation did he feel compelled to rip off Gordo's lyin' face.