VANCOUVER - The New Democratic Party 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.

The events were sparked by the submission of 15 affidavits about the emails from senior staff in Premier Gordon Campbell’s office and others.

Although the affidavits have not been made public, information read into the court record indicates they 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, and various ministerial assistants and department officials.

“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.

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: "...at 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.)

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.

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 a ministerial assistant 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.

Bill Tieleman is a regular Tyee contributor who writes a column on B.C. politics every Tuesday in Vancouver 24 hours. A version of this article will be published in Friday's edition of that paper. E-mail him at [email protected] or visit his blog at billtieleman.blogspot.com, where this article first appeared.