Monday, February 25, 2008

Basi-Virk case enters the Twilight Zone with disquieting questions in disclosure application

More weird twists as Basi-Virk trial pushed back again

View article plus Tyee reader comments here http:///News/2008/02/25/Railgate/

Published: February 25, 2008

"You're moving into a land of both shadow and substance, of things and ideas. You've just crossed over into . . . the Twilight Zone."

-- Rod Serling, The Twilight Zone

Submitted for your approval: the strange case of David Basi, Bob Virk and Aneal Basi, three former B.C. Liberal government aides facing corruption charges related to the $1 billion privatization of B.C. Rail way back in 2003 -- a case that has not -- and may never -- come to trial!

Whether or not the Basi-Virk case (otherwise known as Railgate) has truly entered the Twilight Zone, isn't yet clear.

But it is certain that British Columbia's longest-running political scandal case -- highlighted by a police raid on the B.C. legislature on Dec. 28, 2003 -- has been delayed once again by an extra two months due to additional problems with disclosure of evidence to the defence.

But not before yet more disquieting questions were raised about the behaviour of the RCMP and the provincial government in a new 15-page defence disclosure application that alleges the Crown has failed to comply with a clear order by presiding B.C. Supreme Court Justice Elizabeth Bennett.

Among the allegations: destruction of a witness statement by investigators; possible violation of the Charter of Rights in wiretapping conversations between David Basi and prominent Vancouver lawyer Lyall Knott; failure of the RCMP to provide a large collection of investigating officers' notes, e-mails, text messages, wiretap transcripts and other evidence; failure to provide inventories of evidence; and Crown refusal to turn over a "not disclosed" list of documents in the case.

Further allegations include the failure of Special Prosecutor Bill Berardino to provide details of the deal that turned provincial lobbyist Erik Bornmann into the key Crown witness against the accused.

Bornmann, a prominent BC Liberal Party activist who also once worked for former federal Liberal prime minister Paul Martin when Martin was finance minister, is alleged by police to have bribed Dave Basi and Bob Virk to obtain confidential government documents about B C Rail.

Bornmann and fellow Crown witness Brian Kieran, also alleged to have provided benefits to the two former ministerial aides, were principals of Pilothouse Public Affairs, a lobbying firm that at the time was representing OmniTRAX, a Denver-based American railway company that was one of the bidders.

Complaints department

Among the defence complaints: that the Crown provided the defence with DVDs and CDs containing more than 5,500 e-mails from Bornmann's computer without any index. "Each email must be opened individually to assess its content," the application states.

The remedy to disclosure problems, the defence argues, is to provide a massive amount of material.

The disclosure application, which was filed Jan. 4 but only made public Feb. 19, requests access to a variety of documents from the RCMP's Ottawa headquarters file, the RCMP's Vancouver headquarters, an RCMP Special I (Technical Covert Surveillance) file dealing with wiretap materials, the RCMP's legal applications support file and from the Drug Enforcement Branch.

It also details the alleged destruction of a witness statement from Darryl Black, whose name has never before come up in the case and whose connection to it is unexplained.

The defence says it learned of the circumstance from a project room review of the RCMP's "IPOC" or Integrated Proceeds Of Crime files.

In B.C. Supreme Court Feb. 18, defence lawyer Kevin McCullough made clear his frustration once again with the lengthy delays in obtaining Crown evidence in the case.

"The documents not disclosed list I've been trying to get for a month," McCullough complained. "Are there five of them or 10 of them? It sounds like a lot of them."

"These are documents they are refusing to disclose now that are clearly relevant that were not on their documents not disclosed list," McCullough said by speakerphone, his flight from Victoria having been grounded by fog. "I'm concerned."

"I didn't want you to think that everything's fine," McCullough later told Bennett.

"No, I didn't think that," Bennett replied with noticeable understatement.

But Special Prosecutor Berardino defended himself in court, telling Bennett that the Crown has worked hard to provide the evidence from a complicated and wide-ranging investigation.

"I'm now attempting to address all the issues and I've told the defence, if anything is wanting, I'll meet with you again," Berardino said.

"The clean up of all the disclosure will continue. The work should be completed, I would say, early April, mid-April is the realistic date, he said, noting that all but eight items requested by the defence had been provided and those would come shortly.

But there are still other problems that must be dealt with before the actual trial can begin.

BC's trial for a century?

One major monkey wrench thrown into the machinery has come from Berardino himself.

The Crown, he noted in court, is appealing a ruling by Bennett that the defence can be present in court when a secret witness gives testimony.

Berardino had requested that no one but Justice Bennett, the secret witness and the special prosecutor hear that testimony, an unusual request that drew strong objections from the defence and a publication ban on the media.

That appeal, Berardino said, will go before the B.C. Court of Appeal at a three-day hearing starting June 9.

"They've set a three-day hearing for this?" Bennett asked, again somewhat incredulously.

"There's reason for that," Berardino replied.

It remains unclear what impact the appeal will have, if any, in postponing the case.

And would the Crown apply for leave to take the matter to the Supreme Court of Canada if it loses in the B.C. Court of Appeal? That development could mean an extraordinary delay in getting to the trial.

Privileges have their membership

The Crown is not the only target of frustration by the defence.

The provincial government has to date refused to waive solicitor-client privilege over as many as 140 e-mails that relate to the B.C. Rail privatization.

On Feb. 18 government lawyer George Copley did have some good news for the defence. The province, he said, had agreed to waive cabinet privilege over contested documents in the case.

But the lengthy dispute over other documents the government has refused to release because it cites solicitor-client privilege remains.

And while Copley said he hoped the matter could be resolved, it in fact is being battled not only in court but in B.C.'s legislature itself -- the site of the original raid by police.

On Feb. 19, Leonard Krog, the B.C. New Democratic Party MLA for Nanaimo, targeted Premier Gordon Campbell on the matter. But once again it was Attorney General Wally Oppal, himself a former judge, who replied:

L. Krog: Early on in the B.C. Rail corruption investigation, a protocol was established to review all material evidence for cabinet, client and parliamentary privilege. The 2004 protocol said Justice [Patrick] Dohm would review documents for material relevance.

Mr. Copley would review any relevant material for privilege and then refer what he thought possibly privileged to the cabinet secretary.

The same protocol said that the cabinet secretary could consult executive council about these materials. I'll repeat that last part. The cabinet secretary could consult with executive council, the premier and ministers, before declaring privilege on documents that might be seen as evidence in the B.C. Rail corruption trial.

To the premier -- a simple yes or no: is that his understanding of the process?

Hon. W. Oppal: The member who asked the question is a lawyer, a member of the bar. I would have thought that he would know better than to ask that question. The matter is before the courts.


Mr. Speaker: Members.

Continue, Attorney.

Hon. W. Oppal: Madam Justice Bennett has conduct of the trial in the Supreme Court. It is totally inappropriate for any member of this assembly to comment upon anything that's before the Supreme Court. That member knows better.


Mr. Speaker: Members.

The member has a supplemental.

L. Krog: I wasn't aware that the Premier's understanding was before the courts.

Last week the Attorney General asserted that the process was an independent assessment of the evidence. He claimed that neither he nor anyone in cabinet had any involvement. But a 2004 Vancouver Sun article clearly laid out the process that I have described, a process the government then confirmed.

Since then the government has denied any involvement by cabinet, but now we know that cabinet could have a say in what documents would be kept secret.

Maybe the premier can answer this question. Can he tell this house how many documents the cabinet secretary consulted the premier and cabinet on?

How many documents vetted by the premier and cabinet will now be denied as evidence in the B.C. Rail corruption trial?

Hon. W. Oppal: The issue regarding the admissibility of documents and those documents that are clothed with privilege is a matter that will be decided by the Supreme Court.

And so it goes, leaving the issue to be resolved in B.C. Supreme Court at some time in the near, or perhaps distant future.

Still upcoming as well will be three defence Charter of Rights motions -- which could see the entire trial thrown out of court.

David Basi's defence lawyer Michael Bolton described them outside court, with one aiming to set aside wiretap authorizations, a second application to quash the legislature search warrants and a final third that could throw the case out based on abuse of process in the case.

Tantalizing glimpse

Regardless of the perambulations to come, once again a defence disclosure application has opened a small window on what may prove to be one of the most bizarre and frustrating cases ever to have taken place in the province.

Lastly, it would be wrong not to note that just trying to get a copy of this defence disclosure application itself was not dissimilar to a trip to the Twilight Zone as well.

Regular courtroom observer Robin Mathews, a retired professor who writes dispatches for Vive Le Canada and The Legislature Raids blog run by the tireless "B.C. Mary," wrote to the courts to request the application be released.

I made two trips in a similar mission to the B.C. Supreme Court Registry, where Justice Bennett has said documents would be made available in the case, and placed multiple phone calls to various court officials over two weeks.

In fact, I was sent to at least three different departments of the registry, and staff at each made phone calls to their supervisors, all for nought.

Finally on Feb. 19 the disclosure application was produced. All this despite clear statements from Justice Bennett that everything would be done to make documents public and an April 23, 2007 written protocol she developed for releasing information.

So for now, the ever-changing courtroom schedule appears as follows:

March 11 at 9 a.m. -- A court update hearing regarding disclosure issues will take place.

May 5 at 10 a.m. -- The court will sit for three weeks to deal with B.C. Rail "vets" -- a determination of which vetted or edited B.C. Rail sale-related documents will be disclosed.

But, as always, possession of a ticket is no guarantee you will get a ride.


BC Mary said...

Seems to me that if the presiding judge rules that the Special Prosecutor must produce a document, Bill Berardino had better produce a document.

I'd say that's the litmus test in this case: either Ol' Bill's team shapes up, or they take up residence at the Queen's Crowbar Hotel.

Why not, for gosh sakes??


Jeff Barkley said...

Thank you for another great article, Bill. I've got to admit, I'm really beginning to lose hope that democracy in Canada can be saved. The BC Liberals are so absolutely corrupt, and so smug and confident that their almost total control of a compliant press will allow them to blatantly break any law without so much as a wimper from the public, that I just feel sick. My entire life I have tried to stand up for freedom, democracy and fair treatment for all, and now, as I approach retirement age, I see it was all for nought. Facism is winning. Money and greed is all there is. Democracy is something that is bought and paid for, by those with superior resources, while normal working people have their rights and freedoms clawed back.

Perhaps we should take a page from the book of corporations. We want a CEO for a government leader. Now, don't think i've gone down the dumb*** road of the greedy right wing. A CEO is expected to provide the best he can for whatever company hires him, and he is held to task by his shareholders if he doesn't. Who would accept a CEO that removed money making ventures from his company's portfolio and sold them to his competitors at fire sale prices, keeping only the losing parts of his buisness? That's what Gordon Campbell and the "so called" Liberals have been doing. Our liquor stores, that provide good paying jobs and billions of profits that, in the past, provided necessary cash for our medical system and schools have been put into competition with private companies. Our prized BC Hydro that should be providing the people of BC with cheap, clean energy is being sold off, but, oh "we now have a choice" in what company we purchase our power from. What a great "spin", eh?

Our parks "privatized" so that it costs more to go on a family camping trip to a provincial park, than what it does to stay in a private campground. Our BC Ferry fleet "privatized" and now, rate increases follow each other so quickly, its difficult to keep track. P3P's, the current "big lie" scam for a never ending stream of revenue for private corporations, while we (the government) keep all the risk.

Those are only a few examples of what I see when I look toward Victoria......but now....this!!

We can no longer trust our courts to provide unbiased decisions on virtually anything. Justice Bennett is clearly a lapdog of the right wing and I don't particularly care what her reasons are. Her actions (or inaction) display a complete disregard for the hard working taxpayers of BC. We deserve better than this. If sitting like a "sock puppet" on the bench, ignoring the contempt of those who would not fulfill her orders is the best that she can do, then she should resign her appointment. The Province of BC deserves better than this, the People of BC deserve better than this, and the legacy of our forefathers deserve better than this.

Thanks again for providing the people of BC with real journalism, Bill. Its greatly appreciated by those of us as frustrated by this as I am.

Anonymous said...

Bill - in an earlier article written regarding the defence disclosure application you stated that Berardino is agreeing with the defence and will be complying with their application save for 8 areas.

That clearly means he agrees with the defence that disclosure has not been met except for 8 areas.

Why does it take him 5 months to comply with this application (January 5) and it will be close to a year from the June 4, 2007 order.

What is going on with the Special Prosecutors office?

Anonymous said...

Hey Bill,
Keep up the good work.
Could it be that that the Crown Prosecutor is being coerced by Gordo et al to withold relevant disclosure documents thus adding to the innumerable delays that may just result in the whole case being thrown out because of timeliness??!!
2 alleged co-conspirators walk,some politicos make obscene illegal $'s and we the taxpayers pick up a few $millions in court costs once again!
Give me a break. Remember the old saying "The law is an ass"!

Anonymous said...

Anonymous said...

Our local columnist Les Leyne is of the opion that few folks follow this case. After four years, the case really hasn't started yet

kootcoot said...

"What is going on with the Special Prosecutors office??

Could they be sitting around the office listening to Chrissie Hynde and the Pretenders doing "I'm Special" and thinking it's about them?

Anonymous said...

VANCOUVER — In one of the largest wrongful conviction settlements awarded in Canada, the federal government has quietly paid $7 million to a British Columbia man who spent more than seven years defending his innocence for a crime he didn't commit.
In a case that has received virtually no publicity, due to a publication ban, Mahmood Somani was exonerated by the Supreme Court of Canada and acquitted of all charges against him.

Mr. Somani, wiped away tears during the hearing, and later told reporters that without his lawyers intervention and faith in his innocence, “I probably would have gone to my grave with that charge stuck to my record.”

The prominent Vancouver lawyer that engineered the exoneration of Mahmood Somani –convicted in 2005 for selling corporate business cards and documentation – has now demanded an independent investigation into the manner in which the police handled the initial investigation.

“There needs to be a full investigation of how the investigation was handled by the investigating officers in late 2001,” said Ravi Hira, a Queens Counsel Vancouver lawyer with the firm of Watson Goepal Maledy LLP in the Defence of the Wrongly Convicted.

The sooner we understand that and conduct a real investigation, the sooner we can clear up whether there have been more miscarriages of justice in British Columbia,” he said.

Mr. Hira said that the “lessons to be learned” from the miscarriage of justice. “When mistakes such as this are brought to the court's attention, it is imperative …that we do what we can to correct them,” Mr. Hira said.

In a submission to the court, Mr. Hira urged the judges to use their ruling to illustrate the shortcomings of evidence and eyewitness testimony. The Somani case was a “textbook example” of the problem, he said, since the only evidence was false testimony by the investigating police officer. The violation of his sworn false testimony under oath involved punishment and disgrace to Mr. Somani.

Mr. Somani has suffered a great deal of emotional distress, mental anguish, loss of reputation, pain and suffering, mental distress; worry, emotional anguish, embarrassment, humiliation, loss of enjoyment of the normal activities, benefits, and pleasures of life; loss of well-being and affection suffered by the family members as a result.
The settlement is in the same league as those awarded to other men and women who were wrongly convicted of various charges.

Mr. Somani’s settlement will be revealed in the 2008-2009 federal public accounts as a single entry under payments for the wrongly accused. The award also includes an undisclosed amount to cover legal fees.
His lawyer Mr. Hira said Mr. Somani’s settlement is one of the few largest for a wrongful conviction. "There haven't been that many altogether and this is certainly significant," Mr. Hira said.
An aggravating factor for the judge who convicted Mr. Somani was his failure to confess, a refusal that he said made his defense more difficult, because he fought with his siblings and other family members who insisted he give up the fight and come clean.
"It was a daily grind of fighting with your family members, and trying to convince people you were innocent," Mr. Somani said.

He spent much of his time reading case law, and talking to law professors trying to get them to assist with his case. Finally, a Supreme Court of Canada decision seven years later proved what he knew all along -- he was innocent.
Mr. Somani said his life has been scarred by the trials and tribulations of his case, inability to trust anyone, and it will be a while before it brings back the happiness I had before I was charged, and has left me psychologically scarred for life" he said.
Department of Justice spokesman Raymond Patrick confirmed that few applications for compensation succeed.
Others who have received compensation include:
- Richard Norris, the Brampton, Ont., man who was awarded $507,000 in 1993 after being charged for a sexual assault he didn't commit. A decade after the attack, a friend confessed to Mr. Norris that he had committed the crime;
- Norman Fox, who was charged in Vancouver for rape and related offences. He was granted a pardon in 1984 after new evidence indicated he had been mistakenly identified and he was given $275,000 in compensation;
- Wilfred Truscott, who was convicted in 1984 in Alberta for assault and mischief by causing damage to personal property. It was later discovered that the complaint had been fabricated and the Alberta government awarded him $36,000 in 1986.

Anonymous said...

Bill, I have this very sick feeling that if the major electronic media including, CORUS, GLOBAL/CANWEST, etc. carried the "Railgate" story ad nasuem every night, like VanDerZalm and Clark before, this case would have gone to court and finished long ago!

I have this 'funny feeling in my tummy' that Campbell & Co. are calling in every political marker they have for the major media not to report on this most important case.

Is their political corruption or not and I'm afraid the slimy spectre of political graft and corruption has now spread to the media, who have collectively sold their souls for 30 pieces of silver.

The whole thing will be thrown out by 2009.