Thursday, July 16, 2009

NDP wants Special Prosecutor to investigate possible destruction of email evidence, obstruction of justice in BC Legislature Raid case

UPDATED - Friday 2 p.m.


NDP requests Special Prosecutor after missing BC Rail emails ordered destroyed during May election - and asks who was responsible

By Bill Tieleman, 24 hours columnist

The New Democratic Party has today requested the appointment of a Special Prosecutor to investigate a possible obstruction of justice after government emails related to the B.C. Rail corruption trial were potentially ordered destroyed during the May provincial election.

And defence lawyers representing three former B.C. Liberal government aides facing corruption charges are asking B.C. Supreme Court Justice Elizabeth Bennett to issue a ruling that the missing emails are likely relevant evidence following submission of 15 affidavits from senior staff in Premier Gordon Campbell’s office and others about the emails.

The affidavits, which have not been made public, include statements from Campbell’s Chief of Staff Martyn Brown, Deputy Chief of Staff Lara Dauphinee, Deputy Chief of Staff for Issue Management Jay Schlosar, Tobie Myers, ministerial assistant to Housing Minister Rich Coleman, Natalie Poole-Moffat, ministerial assistant to Energy and Mines Minister Blair Lekstrom, Fraser Randall, ministerial assistant to Health Services Minister Kevin Falcon, Sandy Wharf, Director, Corporate Priorities and Performance Management in Campbell's office and Connie Richter, Executive Coordinator to Deputy Attorney General Allan Seckel, Glen Isaac, Acting Director, Corporate Records Management Branch of the Ministry of Citizens' Services, Lisa Dominato, ministerial assistant to Education Minister Margaret MacDiarmid, Carolyn M. Bell, a Freedom of Information contractor working for the Attorney General's Ministry's Legal Services Branch, [NOTE: earlier information incorrectly identifed someone with the same name in the Ministry of Health Services - I regret the inadvertent error] Gladys Michael, a former government employee responsible for Freedom Of Information requests in the Ministry of Human Resources who may have been working as a contractor and Linda Brandy, a former government employee responsible for Freedom Of Information requests in the Premier's Office, Ministry of Finance anod other ministries who also may have been working as a contractor.

[NOTE - The information regarding affidavits filed is based on names read into the court record, which have not been made public, and searches of the BC government directory and other sources. The individuals listed may have given affidavits because they may have been or were in different positions at the time of the BC Rail deal.]

“I want a court order!” demanded defence lawyer Kevin McCullough, representing former ministerial aide Bob Virk. “The more I learn from these affidavits, the more I don’t know what happened.”

McCullough said one affidavit filed by Rosemarie Hayes, the government’s director of Messaging and Collaboration Services, Workplace Technology Services, clearly shows that backup tapes of emails related to the $1 billion sale of B.C. Rail in 2003 still existed in May 2009 but were then sent to EDS Advanced Solutions – a government contractor – for disposal.

“They [the government] don’t know what EDS has done with them - destroyed them or not. They [the government] sent a letter saying ‘don’t,’” McCullough said.
Bennett said she will issue a ruling Monday morning at 9 a.m. on whether the emails are “likely relevant,” at which point the defence can then request they be produced.

NDP MLA Leonard Krog said outside court that he has asked Robert Gillen, the Assistant Deputy Minister of the Attorney General’s Criminal Justice Branch, to appoint a Special Prosecutor to investigate “potential obstruction of justice” in the disappearance of the emails.

“What happened today in court is extremely disturbing,” Krog said in an interview. “Allowing the tapes to be destroyed is astonishing.”

“This government is arrogant enough to think it can get away with covering up,” Krog added.

Defence lawyer Michael Bolton, representing former ministerial aide David Basi, said outside court that the decision to send the email backup tapes for destruction was: “An executive decision of government – who decided, we don’t know.”

“We’re very concerned as to what happened. It could affect the outcome of this case,” he said, noting that the defence has sought the emails for over two years.

McCullough told Bennett that the new affidavit dated July 14 from Hayes contradicts her previously court-filed version of what happened to the email backups.

“Ms. Hayes’ affidavit is completely, diametrically the opposite of what her first affidavit said,” McCullough said. “The scary thing is – I still can’t believe it – the records still existed and they shoved them off to a contractor – all of them – in May 2009.”

McCullough said they may need to cross examine some of those who filed affidavits to determine what happened.

The new information also
contradicts earlier statements in court from provincial government lawyer George Copley, who said emails from 2001 to 2005 could not be retrieved because backup tapes were only kept for 13 months.

Some of the details of the Rosemarie Hayes affidavit were leaked to Globe and Mail columnist Gary Mason, who published them today.

Mason says that Hayes, in her affidavit, states that: " the beginning of May of this year, her department requested that backup tapes of government e-mails created prior to May of 2004 be expunged from the system. The e-mails are the subject of a legal proceeding and as such should not have been deleted, according to the government's own guidelines."

Those guidelines are rather clear. The Information Management and Information Technology Management procedures manual states:

"Disclosure Requirements for Legal Proceedings

1.Ministries must list all relevant records in their custody or control under the Attorney General's discovery of documents.

2.Government records destruction schedules must be suspended during court orders for Demand of Discovery.

3.Records disposition must be suspended during legally mandated reviews (e.g., litigation, document discovery, and commissions of inquiry.)"

In court, Kevin McCullough made clear that he has no doubt Justice Bennett will rule that the emails easily meet the grounds for being "likely relevant."

"When I read some of the Dauphinee emails and the Schlosar emails, they go so much farther than the likely relevant test," McCullough said.

McCullough was also scathing about how Rosemarie Hayes new information contradicts earlier information from the government.

"The Hayes' affidavit - the first 24 paragraphs are spent correcting her June affidavit," McCullough said. "The net of it is the backup tapes did exist for sure through May 2009 for everybody. Then the government sent all of the backup tapes to EDS Advanced Solutions."

Basi was a ministerial assistant to then-Finance Minister Gary Collins in 2003 and Virk an MA to then-Transportation Minister Judith Reid when the $1 billion privatization of BC Rail took place.

Both men face breach of trust and fraud charges for allegedly passing confidential government information about the sale to Erik Bornmann, a lobbyist representing OmniTRAX - one of the bidders - in exchange for money and other benefits. Bornmann is the key crown witness in the trial and does not face any charges.

A third government aide, former communications officer Aneal Basi - a cousin to David Basi - faces money laundering charges in connection to the payments.

The defence's central argument against the charges is that the two ministerial aides were simply following directions from higher-ups to ensure that OmniTRAX didn't drop out of the bidding, as it was the last competitor to eventual winner CN Rail.

CP Rail and Burlington Northern Sante Fe Railway both dropped out, claiming the bidding process was "unfair" and that information about BC Rail had been leaked to CN.

Versions of this story will be published online at 24 hours website and in Friday's 24 hours newspaper.



Anonymous said...

This is a very sad day for all the citizens of the Province of BC.

Regardless of your political beliefs this is an astounding development. This government has lost any moral authority it had to govern.

I am ashamed and embarrassed to be a citizen of the Province of BC today!!

BC Mary said...


Blessings upon you: I think this is a good day - finally the official Cone of Silence is beginning to shatter.

Blessings upon Rose Marie, too. She apparently has the keys to the pulping room where vexatious government documents are destroyed. It sounds to me as if she has understood the call to a higher, better duty to the people of B.C.

Hats off to you, Bill, for a good report.

And blessings upon the media gods which have awakened right across the country -- they finally get it -- the stories are pouring in, even on Global but also on CBC. Whew.


Anonymous said...

I am looking forward to hearing how the Liberal lapdogs Baldrey and Palmer defend the serious contradiction in the position of the government.

Both Baldrey and Palmer had been quoted as saying that no one keeps emails around from 2002-2004, the critical period of time regarding the BC Rail deal. They have also stated that these emails are "transitory" in nature. Clearly relying on the messaging from the government spin doctors.

Well with the new revelation that the government only destroyed the emails 2 months ago ends the lie that the emails do not exist. It certainly opens up a series of questions about how the government conducted the integrity that are related to the selling of BC Rail.

The defence put the government on notice that they will be seeking emails from key players from the government in 2007. There is no plausible explanation to delete records that are relevant to a legal proceeding.

Mr. Baldrey and Mr. Palmer, please do not rely on the message of the government, rather do some research and find out the who, what and why of the issues behind deleting emails.

I also hope that they can find out why the government privatized the backup system of the government email system to EDS.

RossK said...


Who, precisely, knew that Mr. Copley's statements were, invadvertenly or otherwise, incorrect when he made them in open court last month?


Is that the same person or persons that ordered the Emails to be destroyed in May of 2009?


Does that mean that a person or persons did, indeed, actually actively move to protect those Emails in, say, May 2004 which would have been the period that the first of them would have been destroyed after '13 months' if Mr. Copley's statements had actually been correct?


Solocanoe said...

nice owrk Bill...btw...does a former premier have the authority to order government employees to do anything during an election campaign when the government is dissolved???

Angela said...

The bigger the cover up attempt, the bigger the mess this government must have got themselves into originally. Still we should all be proud to be citizens of BC, unless we voted Liberal in the last 3 elections.

DPL said...

Hey , it's about time that the mud is actually starting to stick.
Layers get to say the darndest things and somehow get away with it. Hope to see the principals ion the witness stand before too long.
It now seems that Krog is back in some folks good books on at least one blog

Anonymous said...

Destroy the tape; can you spell Watergate? If a massive scandal like that can unravel and bring down a president who felt himself omnipotent, then it will do the same to a B.C. premier. Watergate had Woodward and Bernstein. Railgate has Bill Tielman. Come clean Mr. Premier, or Tielman will dig and do it for you.

Anonymous said...

Thank you Bill!

Check out the competition at cbc bc the story has turned up (finally) and people are commenting in force!

Anonymous said...

Everyone envloved in this debacle should be quick stepped into jail forthwith. A few hours in the cooler will get a lot of them talking.If only we could.

The Crap appears, after 5 years, to have hit the fan. It will be interesting to see who it sticks to.
I am not holding my hands over my ass waiting for the truth to come out, the way Campbell and his thugs have controlled this thing with the help of a denutted media they will become a permanent patch.

Gordo has everything under control, after all what can happen to him over a few delated emails??

Anonymous said...

The NDP want to appoint a SPECIAL PROSECUTOR . . . they must mean "PROSECUTORS" as in dozens.

If you appoint one new legal butt-kisser every 12 months then with an on-retainer pool of say 25 you you might actually be able to start a trial about 2035.

By that time Kevin Falcon will be on his fifth term as BC Premier.


RossK said...

I think Angela, upthread, makes an excellent point.

Specifically, if a decision was made to destroy defense-requested Emails with malice aforethought during an election campaign that, in and of itself, speaks volumes.


Anonymous said...

Thank you Mr. Tieleman for informing us so well. A good percentage of the public knows nothing about this email matter as it has received minimum coverage in the CanWest papers.The government must give a complete account of this matter , if they practise the tenets of democracy which they avoid stringently when it suits them.

Anonymous said...

Thank you, Bill! Your untiring coverage of this case is appreciated by many British Columbians who want to save this province.

DPL said...

The Times Colonist has the tape story on the front page today, Friday . MInd you it's not as big as the one next to it telling us that home breakins is down and violent crime is up in the town

Deep Throat said...

As noted by Hall & Fowlie in the Victoria Times Colonist: "Asked if he issued any directives that e-mails be destroyed, Campbell said: "I don't issue directives with regards to that."" I guess he forgot to mention "pillow" talk.

Anonymous said...

Interesting that over at there's a story about government employees no longer being able to make anonymous posts to the intranet comments board Just because I'm paranoid doesn't mean someone isn't out to get me or us or you.

Anonymous said...


I would be interested in reading how Ms. Rosemarie Hayes' affidavit changed so dramatically. Was she asked to sign something without reading it?

more questions and she can provide answers.

Carmelized said...

Thank you Bill for writing about this outrageous scandal.One question-did anyone else have a copy of the emails such as a prosecutor or lawyer?

Anonymous said...

another special prostitute,pa-leeze give me a break if those creep's were doing there job's including the attorney general,a lot of politicos would be bent over a sink in jail getting what they did to us!Don't be ashamed at the people of BC,be ashamed at the media and rcmp and the court's for allowing this to drag on for so long!

Bill Tieleman said...

Many thanks for the kind comments once again! I truly appreciate them and it encourages me to continue covering this often frustrating but critically important case.

Anonymous said...

Hi Bill
Who are the lawyers that have been hired to provide cover up for this corrupt government? They have to be real low life trash.
There will never be justice in our courts if these people are allowed to exist

Jason said...

I will lose my freakin mind if the tracks are ripped out. Thats 2000km of rail line, gone. No matter what the circumstances, ripping out railway lines should be HIGHLY ILLEGAL.