Basi-Virk - Justice Bennett written decision on disclosure of Premier Gordon Campbell, cabinet emails

I am indebted to BC Mary at The Legislature Raids and to regular poster North Van's Grumps for finding the link to Justice Elizabeth Bennett's written ruling of July 20, 2009 on the Basi-Virk defence disclosure application.

While I reported on this decision at the time, I believe the full version is of sufficient interest to my readers that I am pleased to include it in full below.

Lastly, while as always this is a free speech blog, I caution any and all posters from drawing conclusions or making comments that are defamatory about any of the information below - they will not be published.

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Regina

v.

Udhe Singh (Dave) Basi, Bobby Singh Virk
& Aneal Basi

Before: The Honourable Madam Justice Bennett

Oral Ruling on Application for Third Party Records

In Chambers
July 20, 2009

Counsel for the Crown
W.S. Berardino, Q.C.

& J. Winteringham, Q.C.

Counsel for the Accused, Dave Basi
M. Bolton, Q.C.

& C. Hatcher

Counsel for the Accused, Bobby Virk
K.G. McCullough

Counsel for the Accused, Aneal Basi
J. Doyle

& E. Dance

Counsel for the Executive Council and Her Majesty the Queen in Right of the Province of British Columbia

G. Copley, Q.C.

The Nominee
L. Webster

Place of Hearing:
Vancouver, B.C.

[1] THE COURT: This is the second in a series of applications by the defence for the disclosure of third party records. The application relates to the records of the Executive Cabinet. The application was filed on June 11, 2009, in response to an order I made on March 12, 2009, requiring that the application that was then presently before the Court be narrowed and defined.

[2] The present application reads as follows:

1. That all records, documents and information, including information in electronic form (collectively "the Records") held in any office, storage facility or repository by or on behalf of:

a. the Office of the Premier located in Victoria and Vancouver, particularly the records of Premier Gordon Campbell, Martyn Brown, Mike Morton, Lara Dauphinee, Ken Dobell, Brenda Eaton, Cynthia Haraldsen, Jay Schlosar, Dave Cunningham, Neil Sweeney, Tom Syer and Jessica McDonald;

b. the Public Affairs Bureau, particularly Stuart Chase;

c. the Ministry of Finance, particularly the records of Minister Gary Collins, Paul Taylor, Chris Trumpy, Dave Morhart, and Yvette Wells;

d. the Ministry of Transportation, particularly the records of Judith Reid, Minister Kevin Falcon, and Dan Doyle;

e. the Ministry of the Attorney General, particularly the records of Geoff Plante, Allan Seckel, and Rob Lapper;

f. the Ministry of the Solicitor General, particularly the records of Minister Coleman and Assistant Deputy Minister Kevin Begg;

g. the Ministry of Education, particularly the records of Minister Christy Clark and Ministerial Assistant Kim Haakstad;

h. the Ministry of Advanced Education, particularly the records of Minister Shirley Bond; and

i. the Ministry of Energy and Mines, particularly the records of Minister Richard Neufeld;

which relate to the divestiture of BC Rail Freight Division (hereinafter "BC Rail") and the proposed divestiture of the Roberts Bank Port Subdivision (hereinafter "Roberts Bank") and the bidding process related to same, including but not limited to the BC Rail Steering Committee and the BC Rail Evaluation Committee. The applicants seek such records during the time period from June 5, 2001 to the present;

(ii) the selection of, and duties assigned to Ministerial and Executive Assistants and, in particular, all records relating to efforts of Ministerial and Executive Assistants to influence public opinion through the media with regard to Provincial Government policies or initiatives. The applicants seek such records during the time period of June 5, 2001 to the present;

(iii) the strategy policy and any related decision-making pertaining to the influencing, gauging or monitoring of public opinion through the media and other public forums. The applicants seek such records during the time period of June 5, 2001 to the present;

(vi) public opinion polling reports, including those provided by the B.C. Liberal Party to the Executive Branch of Government, including the Executive Council and the Office of the Premier which pertain to public opinion on transportation, finance and budget surplus and deficit issues, and further, including but not limited to the divestiture of BC Rail and the balancing of the provincial budget. The applicants seek such records during the time period of June 5, 2001 to the present;

(v) the provision by the Executive Branch of Government to Members of Cabinet and their Ministerial and Executive Assistants of cellular telephones, Blackberries, computers and other personal digital assistants, email accounts and other communication devices. The applicants seek such records during the time period of June 5, 2001 through to the cessation of employment of the individuals named at paragraph 1(a) through (i) above, with the Executive Council;

(vi) the provision by the B.C. Liberal Party to Cabinet Ministers and their Ministerial and Executive Assistants of cellular telephones, Blackberries, computers and other personal digital assistants, email accounts and other communication devices. The applicants seek such records during the time period of June 5, 2001 through to the cessation of employment of the individuals named at paragraph 1(a) through (i) above, during the same period of June 5, 2001 through to the cessation of the individuals' employment with the Executive Council;

(vii) any communications between Cabinet Ministers and their Ministerial and Executive Assistants and lobbyists Brian Kieran, Eric Bornmann, Jamie Elmhirst, and their companies, including but not limited to Pilothouse, Kieran Consulting, Pacific Public Affairs, K&E Consulting and their respective staff. The applicants seek such records during the time period of June 5, 2001 through to the cessation of the employment of individuals named at paragraph 1(a) through (i) above, with the Executive Council;

(viii) the acceptance or receipt of any gift or benefit by a Cabinet Minister, Ministerial Assistant or Executive Assistant, including but not limited to:

(1) Vancouver Canucks tickets or seating in private boxes;

(2) B.C. Lions tickets or seating in private boxes;

(3) the use of any facilities at General Motors Place;

(4) tickets or admittance to the Cirque de Soleil; and

(5) Famous Players "Big Card".

The applicants seek such records during the time period of June 5, 2001 through the cessation of the employment of the individuals named at paragraph 1(a) through (i) above with the Executive Council;

be produced to this Honourable Court for review pursuant to the procedures set out in R. v. O'Connor, [1995] 4 S.C.R. 411 (S.C.C.).

2. An Order that such portions of the said Records that this Honourable Court may find likely relevant to an issue at the trial of this matter be produced to the applicants.

[3] The factual matrix for this application and the legal principles applicable are set out in R. v. Basi, June 30, 2009, 2009 BCSC 907, in relation to the third party records of the Members of the Legislative Assembly. I need not repeat them here. This decision should be read in conjunction with that decision.

[4] This is stage one of the O'Connor application. At this point the defence only needs to show that the documents sought are likely relevant to the case before the Court and then the documents will be produced to me. The threshold is low and the defence need not specify the use to which the document may be put (see R. v. McNeil, 2009 SCC 3; 301 D.L.R. (4th) 1). At this stage, I am not dealing with whether the documents still exist or have been destroyed.

[5] This application is similar in wording to the application brought for production of the records of the Members of the Legislative Assembly. Although broadly worded, the records sought, I am told, are emails.

[6] The essence of the charges against the accused is that they accepted gifts from lobbyists Brian Kieran, Eric Bornmann and Jamie Elmhirst, their companies, including Pilothouse, Kieran Consulting, Pacific Public Affairs, K&E Consulting, and their respective staff. When I refer to the lobbyists, it is this group to which I refer. They are also charged with allegations of leaking confidential documents to the lobbyists, again in exchange for gifts and promises of employment.

[7] The charges, and in particular the fraud charges, are broadly worded and encompass a potentially large factual matrix.

[8] The defence says that if they accepted gifts, (which is denied), then it was in the ordinary course of business for Government. I pause to say that I am not commenting on the validity of any defence at this point. Further, the defence says that if Government documents were leaked to the lobbyists, then someone else leaked them. Finally, anything that the accused before the Court did was at the direction of their "political Masters", a term that remains undefined. I assume that it refers to the Minister for whom each worked, as well as the Office of the Premier.

[9] Part of the background for the defence is the contention by the defence that CN Rail was always going to be the successful bidder for BC Rail and that the accused were directed to make efforts to keep OmniTrax in the bidding process to ensure that the bidding process looked legitimate. The lobbyists worked for OmniTrax. This allegation, which has been supported to a degree by documents suggesting that other proponents were concerned about the fairness of the bidding process, makes the process leading up to the sale of BC Rail relevant, including the core review. Further, it is alleged that OmniTrax was to be the successful proponent in the sale of Roberts Bank Port Subdivision (“Roberts Bank”) as a consolation prize for staying in the BC Rail bidding process. Mr. Virk and Mr. Basi are charged with fraud in relation to the Roberts Bank bidding process. As a result, this brings into focus the relevance of the documents relating to the proposed sale of Roberts Bank.

[10] The Crown concedes that any email communication between the lobbyists and Christy Clark, Richard Neufeld, Gary Collins, Judith Reid and Paul Taylor are likely relevant. The Crown submits that the rest of the application should be dismissed.

[11] The defence point to a number of emails which it received from BC Rail to or from a number of Government officials, both elected and non-elected, which were not received by the defence as a result of the Freedom of Information and Protection of Privacy Act, R.S.B.C. 1996, c. 165 [FOI] process. This point is well taken. In spite of what appear to be extensive and lengthy efforts by the Government officials to comply with the FOI request, a number of records were not uncovered.

[12] It is important to understand the thrust of the defence in relation to the fraud counts, and that is the question of whether the bidding process was not legitimate from the outset. As noted, there is some documentation which suggests that others were concerned about the same thing.

[13] Thus, documents in relation to the divestiture of BC Rail and the process affecting Roberts Bank will meet the low threshold established in O'Connor and recently affirmed in McNeil. There is evidence filed to support the request for emails on this point from the following people: Premier Gordon Campbell, Martyn Brown, Mike Morton, Lara Dauphinee, Ken Dobell, Brenda Eaton, Dave Cunningham, Tom Syer, Jessica McDonald and Jay Schlosar. There is not a sufficient basis to order the production of the records of Cynthia Haraldsen and Neil Sweeney.

[14] Further, in relation to the divestiture of BC Rail and the sale of Roberts Bank with respect to the Ministry of Finance, there is a sufficient evidentiary basis to find that the emails of Gary Collins, Paul Taylor, Chris Trumpy, Dave Morhart and Yvette Wells are also likely relevant. Mr. Collins was the Minister of Finance at the time and involved in the sale. Chris Trumpy was on the Evaluation Committee and many of his emails have already been produced through BC Rail. Mr. Morhart was also on the Evaluation Committee and advised the police that he retained thousands of his emails. The police did not seek to recover the emails at that time. Ms. Wells has already produced a number of documents through the FOI process, and if she has emails on this subject they also meet the threshold test of likely relevant. Mr. Taylor was the Deputy Finance Minister at the time and was apparently a friend or neighbour of Brian Kieran.

[15] With respect to the Ministry of Transportation, Ms. Reid was the Minister of Transportation at the time of the sale and the Minister who was thought to be in charge of the sale of BC Rail. This concept is challenged with some support. In any event, any email communication by Ms. Reid regarding the divestiture of BC Rail and the sale of Roberts Bank also meets the likely relevant standard. However, the same cannot be said for Mr. Falcon or Dan Doyle. The evidence is insufficient to show that either of these people would have emails that would be likely relevant to the matter before the Court.

[16] The records of the then Attorney General Geoff Plante, the Deputy Minister, Allan Seckel, and Robert Lapper are also sought. The evidence does not support a finding of likely relevance for these records. There is nothing in the documents to suggest that any of these three people communicated information by email that would be likely relevant to any issue before the Court.

[17] The defence also requests the emails of Solicitor General Rich Coleman and Assistant Deputy Minister Kevin Begg. The material filed shows the involvement of some degree by the Solicitor General and Mr. Begg in the search of the Legislature. The evidence supports the fact that any email communication by either of these two individuals relating to the search of the Legislature with anyone, including the RCMP, is also likely relevant.

[18] Ms. Clark was the Deputy Minister and may have expressed concern over the CN Rail dealing at a Cabinet meeting. Further, there is some evidence that indicates that she may have had some dealings with Pilothouse. Emails of Ms. Clark relating to the divestiture of BC Rail and the sale of the Roberts Bank, as well as any contact with Pilothouse, are likely relevant. However, there is insufficient foundation to order that emails of her assistant, Kim Haakstad, be produced.

[19] Ms. Bond and Mr. Neufeld both had significant interest in the BC Rail deal as part of the Northern Caucus and may have been lobbied by Pilothouse, thus any email relating to either the areas of the BC Rail and sale of Roberts Bank and Pilothouse are likely relevant.

[20] A number of documents were obtained by the defence from a news reporter who obtained them pursuant to an FOI request. These documents relate to the conduct of the Public Affairs Bureau of Government and the coverage of this case by Stuart Chase on behalf of the Public Affairs Bureau. Much was made of the fact that Mr. Chase was covering the applications in Court. However, nothing in the material suggests that Mr. Chase's conduct is likely relevant to the issues which will eventually be raised at trial. Simply because something is characterized as political does not make it relevant.

[21] The same may be said for the extensive requests by the defence for the Government's media policy and public opinion as set out in paragraphs 1(ii), (iii) and (iv). Whatever the Government's plan was with respect to the media and the public opinion has little, if anything, to do with the charges before the Court and the defences put forward.

[22] The defence also requests information regarding the supplying of electronic communication devices to Cabinet Ministers and their Assistants by either the Executive Branch of Government and the B.C. Liberal Party. There is insufficient evidence to support this request.

[23] In summary, the emails from the following persons in relation to the divestiture of BC Rail and the proposed sale of Roberts Bank are likely relevant:

the records of Premier Gordon Campbell, Martyn Brown, Mike Morton, Lara Dauphinee, Ken Dobell, Brenda Eaton, Jay Schlosar, Dave Cunningham, Tom Syer, Jessica McDonald, Gary Collins, Paul Taylor, Chris Trumpy, Dave Morhart, Yvette Wells, Judith Reid, Christy Clark, Shirley Bond and Richard Neufeld, but not Cynthia Haraldsen, Kevin Falcon, Dan Doyle, Kim Haakstad or Neil Sweeney. The dates within which these records are to be found likely relevant is the parameter of January 1, 2002, to December 31, 2004, for the same reason as stated in the MLA application.

[24] Likely relevance has not been established for the records of Stuart Chase from the Public Affairs Bureau.

[25] Likely relevance has not been established for Geoff Plante, Allan Seckel or Rob Lapper. Likely relevance has been established for the records of Rich Coleman and Kevin Begg from December 1 to December 31, 2003 in relation to the obtaining and execution of the search of the Legislature.

[26] The records of the following are likely relevant with respect to communications with Pilothouse: Christy Clark, Richard Neufeld, Gary Collins, Judith Reid, Paul Taylor and Shirley Bond.

[27] The remainder of the application is dismissed.

This morning when I gave these reasons I overlooked Premier Gordon Campbell’s emails, if any, with the lobbyists. These were found likely relevant on June 30, 2009, in his capacity as an MLA. I intended to include the emails as a member of the Executive Cabinet.

“E. Bennett J.”

___________________________________

The Honourable Madam Justice Bennett