Monday, September 14, 2009

BASI-VIRK: Justice Bennett rejects defence request for Patrick Kinsella documents, testimony in her last appearance in case

Judge sides with BC Liberal insider Patrick Kinsella in dismissing defence bid to obtain his documents, force testimony

By Bill Tieleman, 24 hours columnist

In her last appearance as judge in the Basi-Virk corruption case Justice Elizabeth Bennett has dismissed defence applications to obtain private documents from B.C. Liberal Party insider Patrick Kinsella and have him testify in a pre-trial disclosure hearing.

"This will be the last time you'll see me on this case," Bennett told defence and Crown lawyers at B.C. Supreme Court, where she has presided over lengthy pre-trial hearings going back to early 2006.

Bennett has been promoted to the B.C. Court of Appeal and will be replaced by Justice Anne MacKenzie.

But before leaving Bennett dashed the hopes of defence lawyers for ex-B.C. Liberal government aides David Basi, Bob Virk and Aneal Basi, who face corruption charges related to the $1 billion privatization of B.C. Rail in 2003.

Lawyer Michael Bolton, acting for David Basi, said outside court that while the defence is disappointed with Bennett’s final rulings, they plan to call Kinsella as a witness and again ask the court to order production of his private documents.

“The defence still views Mr. Kinsella as a key figure in this matter,” Bolton said. “This application will without question reappear before the new trial judge.”

In her ruling Bennett said that despite defence allegations Kinsella may have been working for both B.C. Rail and its eventual buyer CN Rail at the same time, no evidence was produced to back that claim.

It was learned earlier this year that Kinsella was paid $297,000 by B.C. Rail for “business advice” from 2001 to 2005.

But Bennett said that if Kinsella did indeed work for CN it would open the door to defence applications.

“I remain firm that if Mr. Kinsella worked for both firms it has relevance to this case,” Bennett said. “That would make [his] documents likely relevant.”

Bennett also made a ruling that Kinsella’s lawyer James Sullivan had obtained transcripts of earlier hearings in the case in violation of a court order that they not be given to potential witnesses, but blamed the transcription company for the error, not Sullivan.

Bennett ordered production of a list of people who gained access to the transcripts be released to the defence.

Bolton called the transcript decision “very important” to the defence. Sullivan was not in court to comment.

NDP MLA Leonard Krog said Kinsella should not be breathing easier despite today's ruling.

"The judge may have closed the door on the defence today but highlighted that matters around Patrick Kinsella may be revisited," the NDP critic for the Attorney General said. "I am confident this isn't the last we'll hear on matters related to Kinsella and his involvement in the sale of B.C. Rail."

A version of this story will appear in Tuesday's 24 hours newspaper.



BC Mary said...

Many thanks for your sketch-outline of Anne MacKenzie's bio, Bill.

Seems like pulling hen's teeth (sorry for the inept pun) trying to extract Anne MacKenzie bio-data from the public record.

And it's not as if a few hundred thousand British Columbians and others, don't give a train-whistlin' hoot about who she is, and whether she can step into Judge Bennett's shoes quickly or easily.

In fact, I absolutely don't understand why MacK. is needed to step into Bennett's shoes ... sure, sure, I know about Bennett's appointment to the BC Court of Appeal ...

but there's also the CCC section 662.1 which stipulates that a judge stays with a case (once it starts) until it's completed. And Basi-Virk trial had started with the John Preissel testimony.

As you say, Bill, Bennett had the major creds in criminal trials. She was slow, slow, slow ... but left few (if any) errors which could have launched appeals.

Plus: it would've been quicker in the long run to keep a fully-informed judge on this important, complex case.

Just sayin' ...

kootcoot said...

"It was learned earlier this year that Kinsella was paid $297,000 by B.C. Rail for “business advice” from 2001 to 2005.

But Bennett said that if Kinsella did indeed work for CN it would open the door to defence applications."

How old is Justice Bennett, and should diminished mental capacity be considered. I'm not trying to be disrespectful but her comments in attempting to justify (unsuccessfully in my view) her decision to protect Kinsella and his paperwork from the mean defence team turns logic on its head.

Unless I am approaching dementia myself this is how I dissect the lack of logic in her reasoning(sic).

When Patrick Kinsella was collecting almost $300,000 from BC Rail, wasn't he actually working for us? If he worked for CN at the same time (or close enough in time to be suspicious) that would indicate "conflict of interest" but to suggest that the public is more entitled to information related to Mr. Kinsella's work for a Texas based private company than for information and documentation regarding his employment by BC Rail MAKES NO SENSE WHATSOEVER!!!

This is aside from the fact that I don't think anyone deserves the right to hide behind "privacy" or "privilege" when they, by their own choice, become involved in the work of the public, dealing with government and public assets.

And the whole notion articulated apparently by Madame Bennett that Kinsella wasn't required to "assist the defence" flies in the face of what would happen if I were a witness to an alleged crime.
Of course I assume that if this case ever gets to actual trial, then Kinsella could be compelled to testify.....if not him then I guess pretty much anybody could decline for pretty well any reason and things like subpoenas, court orders or charges of contempt of court don't apply, at least to certain people! One thing I do know is that if I refused to testify in court (other than against myself) I would find by rear end ensconced in a room with steel bars even if I would prefer wood paneling!

Richard Nixon would be jealous of the immunity Gordo and all his buddies seem to successfully claim and indeed might be remembered today as the Prez who went to China and Knows what else, instead of having to resign from office, if he had been as successful at hiding the truth as the Campbell regime has been so far.

In BC doo-doo process seems to have replaced due process!

DPL said...

Seems to me that the Judge has a considerable amount of legal background and I for one have no intent to try to second guess her. She says at present there isn't enough reason to have him assist, but leaves the possibility of changing the position if sufficient information surfaces. Sure the defence will complain but that's what she ruled, so we live with her decision which could also be appealed to higher court. Let's wait awhile longer to see what happens next.Eventually the folks involved, not just their lawyers will appear get sworn in and things will advance.THis is still a pre trial in the judges view.

Anonymous said...

Sounds like the defence strategy of allegations without evidence is slowly starting to unfold. Good on Judge Bennett for finally pointing out what time wasters these clowns really are. Another day; and still no smoking gun or evidence from the defence. But they likely ran the meter long enough for a few more thousands in fees today. Wonder what will be the next allegation with zero evidence. And who is paying for Krog’s expenses? Tell me it is not also the taxpayer….

Anonymous said...

some peoples children?

kootcoot said...

" Another day; and still no smoking gun or evidence from the defence."

What a surprise, with Patrick Dohm witholding 80% of the infomation (be redaction) used to obtain the search warrants STILL, the RCMP losing, mislaying and generally with-holding evidence and the government and cabinet of Gordo resisting disclosure and, in my view, very likely obstructing justice and destroying evidence -it shouldn't be surprising that it is difficult to produce evidence or a smoking gun.

The tactic of delay IS being deployed in this pretense of a legal action, but NOT BY the defense.

BTW, perhaps the anonymous commenter at 9:45pm should learn about government as well as the legal system before sharing his lack of understanding with the rest of us. As to who is paying Mr. Krog's salary, it is indeed the taxpayer, in case you hadn't noticed he is an elected MLA and the appointed (whether effective or not) justice critic. He would be remiss in his responsiblity as the justice critic for the LOYAL OPPOSITION if he wasn't at least giving the appearance of paying attention to the ongoing tavesty of justice taking place in the BVB farce.

If you look up the numbers you might discover that Mr. Krog doesn't make nearly as much at the taxpayer's expense as CEO Campbell or his trusty sidekick Lara Dauphinee - even Mr. Kinsella managed to get almost $300,000 from the taxpayer teat for doing whatever he did, which is apparently none of our business.

as to DPL and:

" Let's wait awhile longer to see what happens next."

Why not, it isn't like there isn't anything left to steal in BC still?After all, there's still a little bit of the soon to be bankrupted by design BC Hydro not in private hands and a few more assets to be given away. Also health care and education haven't been totally privatized in BC quite yet either.

SharingIsGood said...

Bill, I had to let you know that I found this article linked to via the Vancouver Sun!

My guess is that CanWest wants everyone to get this info - even if it comes from sources they don't normally link to for their point of view. I'm thinking they are thinking: "We may as well ease the common folk into the idea of the trial being thrown out so that, should the deed really be done, the anti-BC Lib talk will pass quickly and our world can get back on track with the next Neocon plan."