“For example, Christy Clark may have been the source within cabinet – certainly Mr. Bornmann was in contact with Ms. Clark” - Michael Bolton, lawyer for David Basi
By Bill Tieleman, 24 hours columnist
Associate Chief Justice Patrick Dohm turns down Special Prosecutor request to immediately remove Justice Elizabeth Bennett as trial judge in case
[A shorter version of this story will appear in Friday’s 24 hours newspaper]
The defence in the B.C. Legislature raid case alleged Thursday that former B.C. Liberal Deputy Premier Christy Clark may have leaked B.C. Rail information to a lobbyist acting for one of the bidders in the $1 billion sale.
Michael Bolton, acting for David Basi – one of two former provincial ministerial aides facing corruption charges – alleged in B.C. Supreme Court that Clark may have been a cabinet source for Erik Bornmann, a lobbyist for OmniTRAX who is now the key Crown witness in the case.
“Pilothouse internal briefing notes appear to reveal sources in cabinet,” Bolton told Justice Elizabeth Bennett, referring to Bornmann’s lobbying firm. “Bornmann clearly had certain cabinet sources.”
“For example, Christy Clark may have been the source within cabinet – certainly Mr. Bornmann was in contact with Ms. Clark,” Bolton said.
Clark declined to comment on the allegations, which are unproven.
Earlier, Associate Chief Justice Patrick Dohm turned down a request by Special Prosecutor Bill Berardino to replace Bennett immediately as trial judge on the case because she has been appointed to the B.C. Court of Appeal.
“You have the authority under the Supreme Court Act to appoint a trial judge,” Berardino argued. “I’m asking you to cut through all the potential delay…to move this case forward. Madame Justice Bennett cannot be in two places at once.”
Dohm initially seemed receptive. “Agreed,” he interjected.
Bolton argued against Bennett’s removal, saying the defence has an application in front of her later this month that requests she stay on for the trial because of her three and a half year involvement in lengthy pre-trial hearings.
“This case has been constantly going on,” Bolton said, noting that the defence and Special Prosecutor team have booked off any other cases from September 2009 to January 2010 for an anticipated long trial.
“That’s very clever on the part of the defence, because you’re going to require that time,” Dohm responded.
And Dohm said he would make inquiries to see if he can discover any “indications” as to when the Supreme Court of Canada will rule on Berardino’s appeal of two lower BC Court rulings regarding a potential secret witness, saying it would “make my life easier” if the decision were known by the end of June.
But while Dohm rejected Berardino’s request to immediately replace Bennetti, he also appeared to all but say Bennett will be removed soon.
“I know who the trial judge is going to be but I’m not announcing that today,” Dohm said. “You have no concern about who I’ve chosen – they are completely conversant with all Criminal Code matters.”
“I’m not going to muddy the waters further by appointing a second trial judge,” he said.
Bennett has already said she will “remain seized of” – continue to hear - several pre-trial disclosure applications from the defence before possibly exiting the case.
Dohm said that: “It is hoped that the matters before Justice Bennett will be completed or mostly completed by late June.”
The court is scheduled to sit for most of the remaining days of the month on several outstanding matters, including BC Rail Freedom Of Information requests by the defence to be heard next week.
Berardino and defence lawyer Kevin McCullough, acting for Bob Virk, then got into a heated exchange in front of Dohm.
“I request a specific date for counsel to file all applications, all legal arguments, so we have fair opportunity to respond to them – that hasn’t been happening in this case,” Berardino said.
“That’s very unfair, very unfair to the court,” McCullough objected.
“I’m not going to be interrupted Mr. McCullough,” Berardino shot back.
Then Bolton interjected: “It’s completely inaccurate to suggest…”
But Dohm stopped him, saying: “No, we’re not going to argue it now.”
The pre-trial hearing continues Friday with a legal application from a lawyer representing Patrick Kinsella, the former B.C. Liberal Party campaign co-chair in 2001 and 2005. Kinsella’s lawyer James Sullivan has objected to defence references to his client in relation to his alleged involvement in the sale of B.C. Rail in 2003.
Kinsella was paid $297,000 by B.C. Rail for “business advice” from 2001 to 2005. Sullivan rejected “spurious and unfounded allegations” in court by McCullough that Kinsella was involved in the sale of B.C. Rail.
Sullivan has also demanded an apology from the B.C. New Democratic Party for similar allegations but NDP leader Carole James has refused to retract them.
The court also heard continuing arguments from the defence and Ed Montague, legal counsel for several BC Liberal MLAs, about obtaining emails from them that may be of relevance to the accused.
Bennett was told that two former BC Liberal MLAs, Karn Manhas and Paul Nettleton, have given their complete consent to release their emails but others have not.
Nettleton left the BC Liberal Party caucus in 2002 after strongly protesting the privatization of part of BC Hydro in an open letter to his colleagues. Nettleton then sat as an independent MLA and also opposed the sale of BC Rail.