Defence lawyers made powerful allegations in BC Supreme Court Friday that former government aides David Basi and Bob Virk may not have leaked confidential BC Rail documents - based on Freedom of Information request results from the office of Premier Gordon Campbell.
Basi and Virk face breach of trust and fraud charges for allegedly passing confidential government information to lobbyists representing one of the bidders in the $1 billion privatization of BC Rail.
But on Friday Virk's lawyer Kevin McCullough made the startling claim in pre-trial hearings regarding disclosure of evidence to the defence.
"The premier’s office documents – you see the degree of media monitoring going on," McCullough told Justice Elizabeth Bennett in discussing the results of FOI requests made by the defence for documents it has been so far unable to obtain.
Bennett questioned why that was surprising.
"I don't understand why - the premier's interest in the case - which would be normal after the Legislature was raided - has relevance to the case?" Bennett asked.
McCullough then alleged that the bidding for BC Rail may have been window dressing. In November 2003 the sale was down to just two bidders - eventual winner CN Rail and OmniTRAX, after CP Rail withdrew and complained to government that the bidding was unfair.
"Was the process effectively a shame?" McCullough asked. "Was OmniTRAX being kept in the bidding process artificially? All those issues are highly relevant to the defence."
McCullough then dropped yet another major bombshell, alleging that the very basis for charges against Basi and Virk - that they leaked secret government bidding documents to Erik Bornmann and Brian Kieran, the lobbyists for BC Rail bidder OmniTRAX, in exchange for money and favours - may be unfounded.
Referring specifically to documents the defence obtained through FOI requests to the premier's office, McCullough made this allegation:
“There was leaking that was un-attributable to Basi and Virk. Did Basi and Virk even leak documents to the lobbyists? That’s a live issue,” McCullough charged.
“The FOI documents show other individuals were doing that,” he continued, without naming anyone in the premier's office.
Later in the hearing McCullough warned Bennett that the defence might need considerable court time to argue release of the FOI materials - which provincial government lawyer George Coply said may be opposed on the basis of "cabinet confidence," "solicitor client privilege," "third party financial information," and/or "unreasonable invasion of personal privacy" - all relevant sections of the Freedom of Information and Protection of Privacy Act.
McCullough said it may take two weeks of court time in February to adjudicate the issues.
"I wouldn't want you to think that this is a short fight - because the information we've got - it's good stuff," McCullough told Bennett.
"In the third party information, in some cases we'll be bringing subpoenas," he said, presumably to force third party witnesses to testify as to why information should not be released to the defence.
McCullough told Bennett that the defence had received "two bankers boxes" full of documents obtained through FOIs and that there were about 139 government documents that may be disputed, plus an additional 480 BC Rail documents.
As usual in the pre-trial hearings, none of the material referred to in court is produced for the media or public to examine - and as always, it is to be remembered that these are merely allegations and remain unproven.
The hearing also heard examples from Copley of what kind of documents the defence has obtained from the premier's office and how the FOI Act severing of information may be handled.
"This is an email message from Michelle Leamy in the premier's office to several people," Copley told Bennett, referring to Campbell's Director, Executive Operations.
At a later point Copley discussed another email from the premier's office as an example.
"This is from [inaudible name] to Martyn Brown. Section 22 - personal information [would apply] - it attaches a resume and talks about that person. The whole resume is severed," Copley said, referring to Campbell's Chief of Staff.
Bennett will determine which documents obtained by FOI she feels are relevant or may be relevant to the defence and inform Copley, who will then consult the government on whether to oppose their release or not.
"How quickly can you get instructions on documents I believe are relevant," Bennett asked.
"Reasonably quickly - not a day but within a week," Copley replied.
But a further possible flaw in the process came when Lou Webster, who has been nominated as part of a court protocoal on review the FOIs, explained his role. Webster said he reviews all the documents produced by the government and indicates where the government has removed information he believes may be relevant.
And Webster indicated that the examples Copley gave the court were not typical of the documents he believed should not be severed.
"These documents are a very poor example of what I was opposed to redacting," Webster told Bennett, adding that he believes it will take her about 10 days to review the government and BC Rail documents.
The court also heard from lawyer Frank Falzon by phone from Victoria, regarding the position of the Legislative Branch of government, which he represents.
Falzon told Bennett that the defence had made FOI requests to the Conflict of Interest Commissioner and the Speaker and Clerk of the Legislature.
"The only issue my client is concerned about is Parliamentary privilege and the free speech of members and the control of documents," Falzon said.
"Does Parliamentary privilege apply to MLA correspondence with constituents? If so, it's not subject to judicial review," Falzon told Bennett.
Once again, a complex and at times bewildering amount of information was presented in a less than two hour hearing - and a hearing at which I was the only media representative present, along with one veteran observer.
Bennett is to rule on Monday on previously heard arguments on "litigation privilege" that affects up to 300 documents.
UPDATE NOTE - My apologies for the quick writing today - this hearing took place Friday, not Thursday - I was on autopilot and wrongly dated it - now corrected above!
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12 comments:
On a snowy Sunday we have finally learned why the Government has been very concerned with the release of Government information.
The judge has already ruled emails previously are extremely relevant and that some emails go to the "innocence at stake" regarding the accused.
Justice delayed is justice denied and the Government is more interested in more delay than more justice.
Thanks as usual Bill for the update. Monday might be interesting. Who said it that the case would not be be continued held till January? Duff Gen, as we used to call it.
It's nice to har what's going on from someone who is an observer on the scene, not supposition by some others
"the (release of) FOI materials - which provincial government lawyer George Coply said may be opposed on the basis of "cabinet confidence," "solicitor client privilege," "third party financial information," and/or "unreasonable invasion of personal privacy" - all relevant sections of the Freedom of Information and Protection of Privacy Act."
Given that the FOI information has already been released, presumably under the very same 'Freedom of Information and Protection of Privacy Act' that Mr. Copley is now citing retroactively, does that mean that he would, if forced to, perhaps resort to any and all available 'twinkie defenses' to protect his clients.....errrrrr.....bosses?
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Again, Again . . . I have told you the fix was in on Basigate and no one will ever do any time let alone wear the poop for this one.
In the end Basigate will drift away just like all the other Gordon Campbell scandals.
It doesn't matter if its City Hall, Maui or Victoria, Gordo owns the media, the courts and the cops in this province.
Remember the Grit motto . . . "We Only Cheat When We Can't Win"
The GREAT SATAN
You are a beacon of sunshine in an otherwise dark and bleak media scene, Mr. Tieleman.
Thank you.
Bill T...Why don`t you move on,you give us same story everyday,privalege,documents,delays, the story is getting old,when you have something substantial to report then report it,how much drivel can a reader take?
Why don`t you talk about 2 tier hydro robbing people,seniors freezing in the dark because they can`t afford their hydro bills,the 3.6 billion dollars to the builder of the sea to sky highway.
Maybe a story about the 10s of billions added to our BC debt,maybe try to find out out how much Emerson is being paid by Campbell,how about a story on the millions of tax payer dollars to advertise the BC Liberals "open platform" The web site isn`t open platform,it slags the NDP at every turn,spins,lies,and promotes the fiberals.
Where is the media screaming about tax dollars spent on a partisn elect Campbell web site!
Your becoming quite stale, this latest BC rail story could of been summed up in a few words, " More of the same"
Why don`t you tell the listeners of CKNW about the latest ferry fiasco,useless tied to the dock ferries that are vibrating themselves to death and guzzle fuel faster Campbell guzzles martini`s during lunch!
Are you getting any ideas yet bill?
I wonder if others noticed what Saltspring News said about news coverage of Basi & Virk incidents?
Monday, December 15, 2008
Regional News
Eye on Gordon Campbell's British Columbia: Did you know? We didn't. THREE Basi-Virk-related trials in 2008 ...
BC Mary The Legislature Raids British Columbia Canada December 13, 2008
Like a dog on a bone, BC Mary just won't give up. And like a dog on a bone she is cracking the hard outer vessel to extract the nutrients within—in this case, the nourishment of exposed, previously hidden, truths.
At times during 2008 there were THREE related Basi or Basi-Virk trials going on in B.C. courtrooms. Three.
Trial #1 was Regina vs Bains, the anxiously-awaited calling-to-account of the alleged Mr Big on the West Coast drug scene. Jasmohan Singh Bains was the significant "person of interest" whose many telephone calls to his cousin in the Ministry of Finance alerted police to more than the drugs trafficking. Including questionable aspects of the BC Rail sale. ...
Trial #2, the Basi Virk Basi BC Rail trial -- our own pointless Seinfeld sitcom which goes on and on about nothing with a few laughs from the lawyers (who are way too cheery if you ask me), a bit of impatience (Ol' Bill as George Costanza, who keeps wanting to launch a new show of his own), a Kramer or two, and Madam Justice Elaine presiding. ...
Trial #3 is sneaking up on us ... or so we may have thought. But much to my surprise, I learned last week that the [Agricultural Land Reserve Act] trial, of R. v. Udhe Singh (Dave) Basi, is well under way, movin' right along in pre-trial hearings in Victoria Provincial Court and -- get this -- protected by a publication ban. Who knew? ...
BC deserves some sort of award for having THREE separate courts on pretty much the same issues at pretty much the same time revolving around the same guy. At very least, we belong in the Guiness Book of Records. Also for the size of the legal bills. As for Big Media ... you'd think that every red-blooded journalist in the country would be onto this story, digging, drilling, deducing. Media and politicians are so quick to blame the public for apathy. Well, how can people care about issues they've never heard about. On the other hand, just imagine: police swoop down on a Legislature, carry off 32 boxes of files, and except for RCMP Staff Sergeant John Ward, nobody in authority knows anything. That's a story. News media, if you ask me, are the ones with the apathy. And that may be putting it much too kindly. ...
Amazing, eh? Three trials going on around Dave Basi's alleged activities.
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So ... as it turned out ... there was nothing going on today (Dec. 15) in the BCRail Case in BC Supreme Court.
Guess that January 5 date is correct after all.
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Anonymous 1:44PM
you just don't get it do you. Bill Tieleman is the only reporter in the courtroom most of the time. If we didn't have him and a few blogs like BC Marys or Robin Mathews who I suspect is the "veteran observer" we would basically have nothing.
Let me ask you this. Have you ever seen anything in the mainstream media before it was reported here? Or on the other blogs?
There would be absolutely no information forthcoming if it weren't for these formats. And Gordon Campbells' government would move under the radar with no one to hold them to account. In fact I allege that if it weren't for some of Bills scoops we wouldn't have anything. I have only been able to make it to court a couple of times. The first time there was 3 reporters besides Bill. And there was nothing in print of the goings on from that day except Bills. My second trip ( and it's 450 kms) I met Bill, saw Robin, and a huge backroom liberal boy whom I didn't recognize right away. There were no other reporters that I could see that day. But there was some thing in print. I suspect they got hold of the hearing transcript.
We have seen some amazing information given on this site, in the Tyee, on BC Marys blog, on the Gazetteer and the House of Infamy. Some of it from the average citizen who found the time to go to court and report back to us. The people of this province have a right to know what happened to their railway. It was not sold it was given away. They also have a right to know how that was done and the reporting by Bill Tieleman and others from the courthouse is doing just that.
What Gary E. said.....
And the work of the 'veteran observer', and the debt of gratitude the people of British Columbia owe him, cannot be overstated.
RossK
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Thanks for your kind comments Gary E.
The "veteran observer" is not Robin Mathews, whose presence I appreciate when it is possible. I know the gentleman's name but he has so far chosen to remain anonymous on these and other pages.
As to Anon 1:44 - you clearly don't read much of what I write or you'd know the breadth of coverage here and in 24 hours and The Tyee.
Those are all good topics and some excellent people are covering some of them, like Andrew McLeod at the Tyee on the German BC Ferries problems.
I also do not cover some topics - that's one of them - because my communications consulting clients are very involved and it represents too much of a conflict of interest.
But mostly I suspect you are just someone who would rather I not report on Basi-Virk in detail, especially when some days I'm the only journalist in the courtroom.
Hmmm... now why would you not want to hear that reported? And who might you be? Ha-ha.
1:44 PM
You ask about Emersons salary.
According to the local newspaper he is getting paid nothing to chair the committee. Mind you it didn't mention an amount for expenses, so he might be getting some there. And sometimes folks who work for free get some other form of benefits. But hope this answers your question on that one little point.
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