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Railgate: Secret Witnesses?

Two ask to testify beyond media glare.

Bill Tieleman 19 Nov

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 or visit his blog at:

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Raid day: Dec. 28, 2003.

Secret witnesses, 5,000 pages of new evidence and accusations by the Special Prosecutor that a defence lawyer was "ranting and raving" marked the latest B.C. Supreme Court hearing Friday in the B.C. Legislature raid case.

The testy pre-trial hearing saw verbal fireworks fly as the long-delayed trial of BC Liberal ministerial aides David Basi and Bob Virk on breach of trust and fraud charges heard more accusations that the Crown and RCMP failed to properly disclose evidence to the defence.

'Rant and rave'

Virk's lawyer, Kevin McCullough, blasted Special Prosecutor Bill Berardino after the defence received 5,000 more pages of evidence that had been ordered disclosed by Justice Elizabeth Bennett some months ago. McCullough said he had sent Berardino a lengthy letter complaining again of late disclosure.

"There are some monumental disclosure issues, extreme problems of disclosure," an exasperated sounding McCullough told Bennett.

"We're still dependent on the RCMP to decide what to disclose. When you hear about what the RCMP decides is relevant you are going to be very, very, very surprised," McCullough said.

"We've just found there's three more files, an inordinate amount of notes," he said. "The [RCMP] Team Commander for 18 months -- there is not a single note -- nothing."

That accusation brought Berardino to his feet.

"Mr. McCullough can get up right now and rant and rave but there's a process and I will respond to his letter point by point. But I do not agree with his position," Berardino said angrily. He told Bennett the Crown would need about 10 days to reply to McCullough.

Witnesses want shielding from media

The trial also heard that two witnesses have requested that their testimony be given in-camera so they could not be identified in the media.

"The in-camera application -- I may hear arguments from media counsel and need some time for that," Bennett said.

There was no indication as to who the witnesses might be or what evidence they might give in the case.

Grinding through mountain of evidence

The 5,000 pages of new evidence -- which comes on the heels of 25,000 pages of new evidence given to the defence in October -- comprise over 4,000 pages from the Integrated Proceeds of Crime (IPOC) investigation and another 800 pages of hard copy wiretap logs, the court was told.

Michael Bolton, Basi's lawyer, said the defence was still working through the earlier disclosure, much of it related to the $1 billion privatization of BC Rail in 2003.

Basi and Virk are accused of providing confidential government information about the deal to lobbyist Erik Bornmann, who was working for bidder OmniTRAX at that time. Bornmann is now the Crown's key witness against Basi, Virk and Aneal Basi, a former provincial communications aide.

"I'm still going through that material -- much of it is significant. Parts of it are notes of officers and are relevant for our disclosure application," Bolton said. The defence plans to file multiple applications at a scheduled hearing Dec. 3.

No more delays: judge

But Justice Bennett again warned both Crown and defence that she would not tolerate any further delays.

"As long as we're clear -- motions are going to proceed on December 3," she said.

Bolton told Bennett that part of the new information received includes material from Erik Bornmann's e-mail account.

"It's important material. He's a central witness in this thing," Bolton said.

And McCullough alleged in court that the RCMP had wiretapped calls between the defendants and their lawyers, though he did not provide details.

"Solicitor client calls being listened to, passed on to other officers," he told Bennett.

NDP's Krog: 'Very troubling'

The latest developments elicited concern from MLA Leonard Krog, the New Democratic Party critic for the Attorney-General's Ministry who observed the hearing.

"It's very troubling when you hear defence counsel talking about 'monumental problems with disclosure,' despite what Mr. Berardino says," Krog said in an interview outside the courtroom. "This isn't a break and enter -- it's a raid on the B.C. legislature. People could go to jail. It's hard to think about a case that's more important."

Krog, himself a lawyer, said disclosure is a critical part of any case.

"There's a tremendous onus on the Crown and the RCMP to disclose everything," he said. "One can only speculate but on the road to disclosure somebody's holding it up."

Gambit to toss case

Still looming is an abuse of process motion that Bolton, McCullough and Joe Doyle, Aneal Basi's lawyer, intend to file in an attempt to throw the entire case out of court.

The defence would argue that the failure of the RCMP and Special Prosecutor to provide timely and full disclosure of evidence has made a fair trial impossible.

Justice Bennett referenced that at an October pre-trial hearing:

"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 to Berardino, using the court term "friends" to refer to the defence counsel. "I appreciate no one knew how many documents there were and I know everyone is working hard."

Judge slammed Crown

The new evidence presented to the defence this week came as a result of Bennett's sweeping order in June that the Crown disclose "every scrap of paper" related to the case after she heard about a wide variety of missing evidence, including RCMP officers' notes.

Bennett filed a 37-page decision at that time granting every one of the defence requests for disclosure.

"The defence is entitled to disclosure in a timely fashion. This rather extensive review of the many problems with this case demonstrates that disclosure has not been sufficiently made in a timely way," Bennett wrote in June.

"I regret that I must make the following order in such broad and sweeping terms. However, given the substantial failure to respect the disclosure rights of the accused, this order is the only way I believe I can ensure that no miscarriage of justice will occur."

At the court Friday, MLA Krog said the lengthy delays and problems in getting to trial almost four years after the police raid on the legislature paint a troubling picture of the whole justice system in B.C.

"It says that we have some real problems in a case that is so important to the public," Krog said. "In fairness, maybe these guys [Basi, Virk and Basi] are innocent and four years later they haven't even had a trial."

Justice Bennett confirmed that another pre-trial hearing will be held on Friday Nov. 23 at 9 a.m.

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