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Railgate: Judge Blows Stack

25,000 new pages of evidence; defence pursues dismissal.

Bill Tieleman 29 Oct

Bill Tieleman is a regular Tyee contributor who writes a column on B.C. politics every Tuesday in 24 hours, the free weekday newspaper, also online at Tieleman can be heard every Monday at 10 a.m. on the Bill Good Show on CKNW AM 980 or at E-mail him at [email protected] or visit his blog at:

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December 28, 2003. Docs keep coming.

A massive 25,000 page disclosure of new evidence in the breach of trust trial of two former provincial government ministerial aides could impact current B.C. cabinet ministers, B.C. Supreme Court was told Friday morning.

And tempers flared as defence lawyers, the special prosecutor and even Justice Elizabeth Bennett all expressed frustration at lengthy delays that have stalled the pending trial, which began with a police raid on the B.C. legislature on December 28, 2003.

Kevin McCullough, lawyer for Bob Virk, the former ministerial assistant to then-transportation minister Judith Reid, told Bennett that current members of Premier Gordon Campbell's government may be affected when the new evidence is examined.

"There are certain documents that may have an impact on certain cabinet ministers and we may have to pursue those documents," McCullough said.

Massive disclosure

Earlier defence lawyer Michael Bolton, representing David Basi, former aide to then-finance minister Gary Collins, told the court that 13,000 pages of new evidence all connected to the BC Rail deal had been received by the defence this week. Another more than 11,000 pages related to a drug investigation that was linked to the case were also disclosed.

The massive disclosure of new material, ordered by Bennett in June in response to a defence request, has made it impossible for the defence to prepare planned court applications, an exasperated McCullough said.

"To give it all to us on the 22nd and 24th gives absolutely no time to review the file," McCullough said.

Bennett was also exasperated with the delays in the complicated case that began as an RCMP drug trafficking investigation but later branched off into a breach of trust action after wiretaps led police to look into the $1 billion privatization sale of BC Rail to CN Rail.

When counsel for the defence suggested it might need more time to prepare its applications in light of the new evidence, Bennett warned that she would not consider moving the planned Dec. 3 date scheduled in court.

"As long as everyone understands we're not moving the December 3 date. If I have to sit here in an empty courtroom myself, the matters are going to be heard," she exclaimed.

"I don't think any of us expected this volume of documents to show up. I didn't," she added.

'Abuse of process' motion expected

But McCullough intervened, placing the blame entirely on special prosecutor Bill Berardino and his team.

"There are no problems at the feet of the defence. One hundred per cent of the problem is at the feet of the special prosecutor," he charged, which prompted Berardino to fire back.

"If people are going to make a speech, I want to reply to that. You asked for every scrap of paper," Berardino started, referring to Bennett's own instructions previously in court.

But an angry Bennett refused to hear more.

"At some point your friends are going to bring in an abuse of process motion and I don't need to hear arguments from anyone today," Bennett said curtly. "I appreciate no one knew how many documents there were and I know everyone is working hard."

McCullough refused to drop the issue, however.

"We're quite prepared to set out for you that not one day of delay, not a single day, is due to the defence," he argued.

"I don't need to hear it," Bennett replied but McCullough persisted.

"The special prosecutor says they have complied with your order. I would like to review that," he said. "We have found hard copy call log summaries that we cannot find electronically. The special prosecutor cannot find them either and they can't explain it."

"It would be negligent of me to not raise the problems," he concluded.

Trial still set for mid-March

Outside the court Bolton repeated earlier statements that the defence will file an abuse of process motion which could potentially see the case dismissed without a trial, based on arguments against police conduct and problems with disclosure of evidence by the prosecution.

Bennett again warned both sides that delays are not acceptable.

"We need to accomplish something with this case so we can proceed in mid-March," Bennett said, referring to an anticipated trial date.

The pre-trial hearing marked the first appearance of legal counsel for BC Rail, with Robert Deane of Borden Ladner Gervais representing the crown corporation.

Justice Bennett set two further pre-trial hearing conferences for the case, one on Friday Nov. 16 at 9 a.m. to determine which matters can go ahead and what applications will be filed for the Dec. 3 date, and a second conference on Friday November 23 at 8 a.m.

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