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.