Wednesday, January 30, 2008

Basi-Virk: another suspiciously surreal chapter in a political scandal case

Railgate Just Got Weirder

Fast ferries, secret e-mails, mystery hard drives: Basi-Virk case's wild week.

By Bill Tieleman

Published: January 30, 2008

Secret e-mails about B.C. Liberal political operatives' actions in the sale of B.C.'s ill-fated fast ferries. E-mails the government wants to keep secret about the $1 billion B.C. Rail privatization. E-mails perhaps sent to the office of Premier Gordon Campbell.

And a mystery computer hard drive seized in the 2003 B.C. legislature raid and found in the wrong place in 2008 -- the B.C. Supreme Court Registry -- by the presiding judge herself!

Welcome to another suspiciously surreal chapter in the case of former provincial government aides David Basi, Bob Virk and Aneal Basi who face corruption charges, now entering its fifth year without going to trial.

But this week's B.C. Supreme Court pre-trial hearings opened up the intriguing possibility that evidence from up to 140 e-mails not previously disclosed to the defence will give the public another window into the operations of the Gordon Campbell government.

And for the first time, the subject of Virk's "running orders" as a political aide regarding the sale of B.C.'s controversial three fast ferries built under the previous New Democratic Party government's term was raised in court.

Virk's lawyer Kevin McCullough let slip that reference Tuesday when telling Justice Elizabeth Bennett that he wanted to ensure she saw both the e-mails and attachments to them because: "when something deals with the fast ferries and Mr. Virk's running orders...."

Just following orders: defence

Outside the courtroom, David Basi's lawyer Michael Bolton elaborated on what might be in the e-mails, which the defence has not seen but presumably the accused have some knowledge of, having received them while in government.

"The role of documents like that relates to the roles and functions of ministerial assistants regarding political initiatives," Bolton said. "It's relevant to the broader defence."

That defence, of course, asserts that Basi and Virk were merely pawns in a larger game played by higher ups.

Basi and Virk face charges of breach of trust and fraud for alleging giving confidential government documents on the B.C. Rail deal to Erik Bornmann, a lobbyist acting for OmniTRAX, in exchange for money and other benefits. Bornmann and Pilothouse Public Affairs lobbyist partner Brian Kieran have both turned crown witnesses and face no charges.

In a May 2007 court session, Bolton laid out the defence argument for Bennett.
"The case of the defence is that at no time did the accused do anything that was not explicitly or implicitly authorized by their political masters," Bolton said then.

Bolton argues that Basi and Virk merely facilitated a government-wide strategy to ensure B.C. Rail bidder OmniTRAX stayed in the dubious privatization process after fellow bidder CP Rail dropped out. Had OmniTRAX quit it would have left only the eventual winner CN Rail as a bidder, causing political turmoil for the B.C. Liberal government.

"What they did was critical to the survivability and electability of the [provincial] government," Bolton said in May, arguing that Basi and Virk are fall guys for politically more important or more connected players.

Government allegedly sitting on many e-mails

Details about those players and their role in the B.C. Rail sale may also come tumbling out -- if the defence is successful in having up to 140 secret e-mails connected to the deal disclosed to them.

Provincial government lawyer George Copley divulged their existence Monday and said the government is claiming either solicitor-client or cabinet privilege over them, meaning they should not be disclosed unless Bennett finds them relevant to the defence.

Copley's statement drew a frustrated response from lawyers for the accused.

"The net of it is the defence says we have a big problem," McCullough told Bennett. "These documents should be here right now, you should be reviewing them right now."

"This process has fallen down so badly that we have 100 to 140 e-mails that no one has reviewed," he said.

That led to another surreal scene, as Copley said that Associate Chief Justice Patrick Dohm, who had initially authorized the search warrants for the legislature, might have previously reviewed the e-mails and inadvertently misplaced them somewhere.

"So I should ask his secretary to search his office?" Bennett asked to much laughter in the courtroom.

But McCullough didn't find it a totally amusing suggestion.

"I appreciate the humour, but I don't think these e-mails ever went to Mr. Justice Dohm," he told Bennett. "That's outrageous. They dropped the ball and they want to suggest that maybe Mr. Justice Dohm didn't put some of them back in the envelope?"

Bennett decided the safest course was to indeed check with Dohm. She later reported back that, no, Dohm did not have the missing e-mails or recall reviewing them.

Hard drive turns up in wrong place

But on Tuesday Justice Bennett's perseverance in attempting to find out where the e-mails had been hidden for four years led to yet another discovery announced in court -- that she herself had located a mysterious computer hard drive possibly containing the original e-mails sitting undetected in the B.C. Supreme Court's registry.

"Can anyone shed light on the hard drive at the registry?" Bennett asked a courtroom full of surprised lawyers. "It shouldn't be at the registry -- that's about the last place it should be -- although it's safe there."

Bennett, a former prosecutor herself, wasn't kidding about the inappropriate location of the hard drive. Defence lawyer Bolton was aghast as well.

"We'll certainly be asking questions about how and why this came to be here," Bolton said outside court, adding that it appeared the hard drive had been there "for years."

"There absolutely is the possibility of a chain of custody issue," he said. "Very serious concerns were raised about the integrity of evidence."

In court, special prosecutor Janet Winteringham told Bennett she's not sure why the hard drive was at the registry or whether information it contained had been disclosed.

But Bolton said outside court that he believes the hard drive "certainly would appear to include the missing e-mails."

In court, McCullough raised another issue: he wants to know the names of everyone who actually received the e-mails, including those who may have had it forwarded to them.

"It's very helpful to see the forwards," McCullough said. "When a person you wouldn't think in the premier's office is getting it."

NDP on the attack

All of these developments combined to draw fire from the NDP opposition Tuesday. "The ongoing problems around disclosure raise suspicions these documents are compromising to the government," NDP MLA Mike Farnworth (Port Coquitlam -- Burke Mountain) said in a news release. "The only way to clear this up is to bring them into the public light as the premier personally promised."

A call to Campbell's communications director Dale Steeves was not returned by deadline, but in the past Campbell has declined to comment about issues related to the case, saying only that it is before the courts.

And defence lawyer Bolton ended the day by telling reporters he fully expects the trial to proceed as scheduled on March 17 this year despite disclosure problems.

"The judge is certainly doing everything she can to move the case along," he said when asked if the trial can start on time.

For wary reporters who have seen the trial date postponed half a dozen times and faced other regular and substantial delays, it was a rare bit of optimistic news, perhaps even as surreal a possibility as anything else in this strange case.

Related Tyee stories:

· Railgate: Unearthed E-mails 'Out of this World' Says Defence 'Very critical stuff' from premier's 'inner circle.'

· Railgate: Judge Blows Stack 25,000 new pages of evidence; defence pursues dismissal.

· Tieleman Hit by Break-In Reporter thinks intruders sent Railgate 'message.'


Anonymous said...

"The case of the defence is that at no time did the accused do anything that was not explicitly or implicitly authorized by their political masters"

Sounds like the "I was only following orders" defence at the Nuremburg Trials.

Anonymous said...

Are we comparing the accussed to mass murderers who tried to wipe out an entire race of people? Please use your words carefully. The facts will come out and then everyone will be able to judge themselves.

G West said...

anon 5:22 - hardly!

You may not be familiar with the tactic, but the so-called “Nuremberg Defense” is a popular legal ploy in which the defendant claims he/she was "only following orders" from someone with the authority to give them. I think that perfectly describes the defence theory of the case.

But, in a slightly more complex and elegant fashion, it also applies, mutatis mutandis, to the case of the ‘government’ as advanced by George Copley Esq. Q.C. and, to a lesser extent, by William Berardino.

Let me explain.

The tactic is often used by U.S. companies and U.S. government entities to defend themselves against charges of reverse discrimination. For example, they might claim that giving preference in hiring and promotion to certain, preferred races and ethnicities is, in fact, mandated by the government's civil rights laws and that they therefore cannot be held legally accountable for the alleged reverse discrimination. In other words, they were "just following orders".

Although the term "Nuremberg Defense" was originally used during the Nazi war crimes trials after World War II, it has proved to be quite effective in reverse discrimination cases if the reverse discriminator was, in fact, following government rules and regulations. Just as during various war crimes trials during the past 60 years, if the government at whose behest the alleged illegal act was committed happens to be in power, and happens to be running the court in which the case is heard, then the defendant (reverse discriminator) is generally granted immunity from the discriminatory effects of his/her actions.

I think, given some of the goings on in this case, that, one way or the other, the use of the term here is perfectly appropriate.

Don't forget that the individuals, all of them, who are arguing and/or serially delaying this case are exclusive appointees of the authority whose actions, all things being equal, are being called into question with (present company excepted) an appalling lack of diligence and dedication by the fourth estate.

The judge, by the way, does the judging in this particular case - there is no jury and the opinion of the people has little or nothing to do with it.!

I would have thought that was obvious by this time.

Anonymous said...

Hey Bill
Keep up the good work. Just finding out and reporting who produced what and when, and who sort of filed stuff in the wrong place is becoming a full time job. DL

Anonymous said...

Bill, can there be a reverse decision for this case to be heard before a judge and jury? Please explain, why & whom called for a judge only.

Budd Campbell said...

At the very beginning I expected that the lawyers for Basi and Virk would urge them to plead guilty in exchange for reduced or even dropped charges, provided they named higher-ups.

It now seems like a variant on that is the actual strategy, plead not guilty and keep reaching upwards looking to at least implicate their superiors, and hope that the case collapses from delays, motions, etc. The superiors, of course, share that hope and do whatever they can to enhance the delay factor.

Once it's all over, case dismissed, Basi and Virk can quietly go on to some new reward in Liberaland. And the 2009 election can concentrate on the real issue of The Best Place on Earth hosting The Olympics!

Bill Tieleman said...

In answer to the question about a jury trial, the defence has argued in a disclosure application filed February 26, 2007 that the defendants lost that opportunity wrongly. See point E below:

It is one of the grounds on which they ask for a stay of proceedings in the trial.

"77. Additionally, the defence seeks a stay of proceedings on the basis of an undermining of the Accused’s right to a fair trial in respect of: (a) the RCMP investigative conduct which irreparably damaged any ability of Mr. Basi and Mr. VIrk to make full answer and defence; (b) the conduct of the RCMP and Special Prosecutor in respect of the dealings with Erik Bornmann; (c) the conduct of the RCMP and Special Prosecutor in respect of the media releases; (d) the continued inability of the Special Prosecutor to provide full disclosure; (e) consenting to a re-election from a jury trial before full disclosure was complete; and, (f) the delay to bringing this matter to trial which is fully attributable to the Crown.