By Bill Tieleman, 24 hours newspaper
A defence lawyer in the B.C. Legislature raid case Monday accused the RCMP of “cloaking duplicity” in not disclosing evidence to the accused, drawing strong objections from the Special Prosecutor.
Kevin McCullough, representing Bob Virk, one of three former B.C. government aides facing corruption charges connected to the $1 billion B.C. Rail sale, alleged that the RCMP failed to fully disclose a key memorandum from their lawyers regarding wiretap applications at the Legislature.
“The RCMP are cloaking duplicity,” McCullough said, prompting an angry Special Prosecutor Janet Winteringham to leap to her feet in B.C. Supreme Court during a pre-trial hearing.
“Objection! This submission is premature and the issue goes to innocence at stake,” Winteringham told Justice Elizabeth Bennett. “Maybe down the road but not today.”
Bennett agreed with Winteringham, telling McCullough he will have a later opportunity to argue RCMP abuse of process during the actual trial.
But McCullough repeated his accusation against the RCMP again, drawing another objection from Winteringham.
“How many other documents are there that we aren’t pursuing because we don’t know they even exist?” asked an exasperated McCullough.
The "innocence at stake" reference is to a court term that is a test of whether there are grounds sufficient to set aside solicitor-client privilege - one of the strongest protections the courts allow. Only in cases where the innocence of the accused may be at stake is that privilege overruled.
Earlier Michael Bolton, representing David Basi, argued that the RCMP had wrongly avoided obtaining the Legislature’s Speaker’s permission to place wiretaps on Basi’s cell phone and phone in the office of then-Finance Minister Gary Collins.
Bolton said the date of the memorandum in question - which the defence has part of - was December 22, 2003 and that it appeared to be faxed from Special Prosecutor Bill Berardino's law office to "Kevin".
"I assume it was faxed to Kevin DeBruyckere, the RCMP officer in charge of the investigation," Bolton told Bennett.
McCullough drew Bennett's attention to the circumstances at the time of the memo, which apparently provides the RCMP with legal advice about wiretap applications it was making.
"The context, milady, that I think you should see these documents in is that in August 2003 the RCMP was trying to get a DNR on the cell phone of Mr. Basi and the Finance Ministry office," McCullough said, using the term DNR to refer to a Dialed Number Recorder - a type of device that records all dialed numbers and is often a precursor to a wiretap.
"Their application was twice declined by the judge on Parliamentary privilege grounds," he said, noting that the RCMP did not seek the consent of the BC Speaker.
It was then that McCullough triggered objections from Winteringham, by saying that another lawyer who mentored him early in his career told McCullough that "when dealing with police duplicity, it is usually hidden by olice procedure" and other tactics to avoid disclosure.
Winteringham objected quickly and added that if McCullough was alowed to continue the argument: "We're going to have to stand down and deal with allegations of duplicity."
Bennett agreed, saying: "You can't argue innocence at stake at this point."
Addressing McCullough directly, she continued: "I understand the context. I understand the importance. I understand the issue with the DNR."
But McCullough wasn't letting go.
"The RCMP are guarding vetting in this case in an extreme way," he replied. "We know for certain the RCMP have these three pages."
"Where's the fairness in us not having the remainder of the document? When we are assessing conduct we need the document in full."
"In light of the RCMP changing course, not getting the Speaker's permission ....there was talk of getting another wiretap... the RCMP are cloaking duplicity...." McCullough continued but Winteringham's second loudly exclaimed "Objection!" stopped him.
"Objection again. This goes to innocence at stake and can't be dealt with now," Winteringham told Bennett.
"I'm not sure where you're going," Bennett said to McCullough.
"They changed tactics and instead of getting another wiretap, they raided the Legislature," McCullough replied, suggesting for the first time in court that the RCMP raid of December 28, 2003 may have been borne out of frustration with failed wiretap applications.
Then McCullough launched into his complaint that the RCMP and Special Prosecutor were not providing full disclosure.
"Where are these two documents on the Documents Not Disclosed List? And how many other documents are there that we aren't pursuing because we don't know they even exist?" he asked. "We rely on tht Documents Not Disclosed List to determine what to pursue."
"The fact that I figured there were two of them doesn't solve the problem and begs for an explanation," he concluded.
[I should note here that I missed the beginning of the morning session due to my appearance on CKNW's Bill Good Show and am at this point unclear what second document is being referred to.]
McCullough then referred to "a legal opinion written by a lawyer named Jody Puscas" whichm he said Berardino claims is protected by the rule of privilege.
The Puscas opinion has been mentioned only in passing at recent previous hearings.
McCullough then prompted another objection from Winteringham by telling Bennett that: "This is the context of documents we had been seeking for three and half years."
"Hold on. If we're going to argue the whole disclosure..." Winteringham started, but McCullough continued.
"...documents we should have received three and a half years ago," McCullough finished.
"Objection!" Winteringham almost shouted.
Bennett intervened: "I would not have expected an argument now that the documents should have been provided three and a half years ago. I could have expected that in your abuse of process application."
"You want to keep me happy and I suggest you not ask me to deal with that today," Bennett concluded to McCullough.
Unstated but lying heavily over the proceedings was one fact - that the RCMP had never sought the permission of the Speaker of the Legislature - then BC Liberal MLA Claude Richmond - for placing wiretaps in the Finance Minister's office where David Basi worked and on Basi's cell phone.
Richmond gave his consent to the police raid on the Legislature in an unusual meeting with RCMP senior officers at the Kamloops Airport on December 27, 2003, but not to electronic eavesdropping.
The defence, of course, will argue that those wiretap applications should never have been granted by a judge without the Speaker's approval - and that will form part of their arguments to have wiretap evidence ruled inadmissable - a decision that could deal a fatal blow to the prosecution.
NOTE: Neither Special Prosecutor Bill Berardino nor Special Prosecutor team lawyer Andi MacKay were present for today's hearing. There were no media except myself and Robin Mathews and no observers either.
A shorter version of this story will be published in Tuesday's 24 hours newspaper.