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Railgate Enters Twilight Zone

More weird twists as Basi-Virk trial pushed back again.

By Bill Tieleman 25 Feb 2008 | TheTyee.ca

Bill Tieleman is a regular Tyee contributor who writes a column on B.C. politics every Tuesday in 24 Hours newspaper. Tieleman can be heard Mondays at 10 a.m. on the Bill Good Show on CKNW AM 980 or at www.cknw.com. E-mail him at weststar@telus.net or visit his blog at http://billtieleman.blogspot.com.

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Robert Virk and David Basi.

"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.

Interjections.

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.

Interjections.

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.

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