Tuesday, March 31, 2009

Justice Bennett rules more than 80 BC Rail documents "relevant" to defence in BC Legislature Raid case

BC Supreme Court Justice Elizabeth Bennett ruled Tuesday that more than 80 BC Rail documents are "relevant" to the defence in the BC Legislature Raid case.

Bennett's ruling means the defence can now attempt to win disclosure of the documents in the corruption charges trial of David Basi, Bob Virk and Aneal Basi.

The pre-trial hearing appeared as if a bingo game was being called but only the defence and crown had bingo cards, leaving media and public observers mystified as to what was being decided.

Very little detail was given as Bennett listed a series of exhibits and line items, only occasionally making any mention whatsoever as to the content of the evidence in question. But defence lawyers, prosecutors and lawyers for the government and BC Rail were all following along with descriptions of the documents only they possessed.

Bennett gave no clue as to how relevant a particular document might be nor what was contained within it, with a few exceptions.

One exception was that some of the documents are related to the so-called PATH process - the code name for the sale of BC Rail in 2003.

Other mentions by Bennett were to "a private citizen complaint" to police, a "revitalization" of the BC Rail Roberts Bank Port Subdivision, a "draft lease" and a "transcribed voice mail" that were all ruled relevant.

David Basi's lawyer Michael Bolton said the documents will demonstrate that a "political agenda" existed prior to the sale of BC Rail and will shed light on the lead up to the privatization and the aftermath.


BC Mary said...


This has to be one of your most significant columns yet. Like: a breakthrough moment in this awful wait.

Is it possible that the defence will now begin to reveal answers to the questions every British Columbian needs to ask?

As I said on my blog: Did the other shoe just drop??

Well done, Bill! And many thanks. Whew. So when's the next hearing?


Anonymous said...

Question - Will Campbell's political agenda to sell BC Rail, mesh with his reelection agenda?

Inquiring minds wants to know!

DPL said...

As Wally keeps saying. "It's all before the courts and that's where Kinsella( and a few others involved can be questioned). Wonder how many ex or present MLA's can get dragged into court.
It was sort of neat to hear that his interpretation of long standing court issues was dead wrong. He must know his words were not true. From Appeals Court Judge to a coverup man for the Premier. How he has fallen in so many folks opinion. The delta election might get very interesting

Anonymous said...

I have just read a Court decision that might be interesting. Duncan v. Mazurek,

2008 BCSC 1842


[16] The defendant also argues that the plaintiff could have applied for more full and better particulars of the generally described documents in the defendant's list, but it is common ground that she did not do so.

[17] There are a number of cases that discuss what is a proper description and what is not. In my view, in this case, neither party has properly described the documents or the reasons for their privilege, and it would have been extremely difficult, if impossible, for the -- for either party to have succeeded in getting a copy of the documents, or a very much more full description.

The description is deficient because there are a number of different privileges claimed and because all of the documents are claimed in the same way. It does not describe the type of document. It does not describe the date of the document and, I do not think under any circumstances would it describe or should it describe the persons who are parties to the document. So I do not include that.

[20] I turn to 26(14), which I consider to be applicable here. It is the subsection which indicates that where a party fails to make discovery as required by this rule, the documents may not be used in evidence or for cross-examination. I paraphrase. It does say “unless the court otherwise orders”.

[21] In my view, the words, "where a party fails to make discovery", and later in the same sentence: "as required by this rule", does not limit that subsection to where there has been no mention of the document whatsoever in the list. Rather, if it has not been properly described, it has then not been a document listed as required by the rule, and subsection 14 is, therefore, applicable.

[22] The burden in this case is on the party seeking to have the document declared as privileged and not required to be disclosed in a more descriptive way, and in other words, on the defendant.

[23] The defendant argues, I think properly, that there is a discretion in subsection 14, because of the words, "unless the court otherwise orders"; and that discretion should be exercised in a way that is best able to get at the truth. If that were the only overarching consideration, it would seem that I would permit the cross-examination. However, I prefer, and choose, to follow the reasoning of my sister Ross in the case of Ball v. Gap, 2001, BCSC 824, where she discusses whether or not the interests of justice required the admission of this document.

Note(20)It is the subsection which indicates that where a party fails to make discovery as required by this rule, the documents may not be used in evidence or for cross-examination.----

no need to publish this, FIO-EM

Anonymous said...

Kinsella will be called as a witness - mark my words

Anonymous said...

Anonymous 11:15 AM wrote: "Kinsella will be called as a witness - mark my words"

You are probably right: What are the odds that Kinsella will try to invoke some kind of parliamentary privilege while on the stand?