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Railgate Just Got Stranger

Fast ferries, secret e-mails, mystery hard drives: Basi-Virk case's wild week.

Bill Tieleman 30 Jan

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 E-mail him at or visit his blog at

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Robert Virk and David Basi.

Secret e-mails about B.C. Liberal political operatives' actions in the sale of B.C.'s ill-fated fast ferries. E-mails the government wants to keep secret about the $1 billion B.C. Rail privatization. E-mails perhaps sent to the office of Premier Gordon Campbell.

And a mystery computer hard drive seized in the 2003 B.C. legislature raid and found in the wrong place in 2008 -- the B.C. Supreme Court Registry -- by the presiding judge herself!

Welcome to another suspiciously surreal chapter in the case of former provincial government aides David Basi, Bob Virk and Aneal Basi who face corruption charges, now entering its fifth year without going to trial.

But this week's B.C. Supreme Court pre-trial hearings opened up the intriguing possibility that evidence from up to 140 e-mails not previously disclosed to the defence will give the public another window into the operations of the Gordon Campbell government.

And for the first time, the subject of Virk's "running orders" as a political aide regarding the sale of B.C.'s controversial three fast ferries built under the previous New Democratic Party government's term was raised in court.

Virk's lawyer Kevin McCullough let slip that reference Tuesday when telling Justice Elizabeth Bennett that he wanted to ensure she saw both the e-mails and attachments to them because: "when something deals with the fast ferries and Mr. Virk's running orders...."

Just following orders: defence

Outside the courtroom, David Basi's lawyer Michael Bolton elaborated on what might be in the e-mails, which the defence has not seen but presumably the accused have some knowledge of, having received them while in government.

"The role of documents like that relates to the roles and functions of ministerial assistants regarding political initiatives," Bolton said. "It's relevant to the broader defence."

That defence, of course, asserts that Basi and Virk were merely pawns in a larger game played by higher ups.

Basi and Virk face charges of breach of trust and fraud for alleging giving confidential government documents on the B.C. Rail deal to Erik Bornmann, a lobbyist acting for OmniTRAX, in exchange for money and other benefits. Bornmann and Pilothouse Public Affairs lobbyist partner Brian Kieran have both turned crown witnesses and face no charges.

In a May 2007 court session, Bolton laid out the defence argument for Bennett.

"The case of the defence is that at no time did the accused do anything that was not explicitly or implicitly authorized by their political masters," Bolton said then.

Bolton argues that Basi and Virk merely facilitated a government-wide strategy to ensure B.C. Rail bidder OmniTRAX stayed in the dubious privatization process after fellow bidder CP Rail dropped out. Had OmniTRAX quit it would have left only the eventual winner CN Rail as a bidder, causing political turmoil for the B.C. Liberal government.

"What they did was critical to the survivability and electability of the [provincial] government," Bolton said in May, arguing that Basi and Virk are fall guys for politically more important or more connected players.

Government allegedly sitting on many e-mails

Details about those players and their role in the B.C. Rail sale may also come tumbling out -- if the defence is successful in having up to 140 secret e-mails connected to the deal disclosed to them.

Provincial government lawyer George Copley divulged their existence Monday and said the government is claiming either solicitor-client or cabinet privilege over them, meaning they should not be disclosed unless Bennett finds them relevant to the defence.

Copley's statement drew a frustrated response from lawyers for the accused.

"The net of it is the defence says we have a big problem," McCullough told Bennett. "These documents should be here right now, you should be reviewing them right now."

"This process has fallen down so badly that we have 100 to 140 e-mails that no one has reviewed," he said.

That led to another surreal scene, as Copley said that Associate Chief Justice Patrick Dohm, who had initially authorized the search warrants for the legislature, might have previously reviewed the e-mails and inadvertently misplaced them somewhere.

"So I should ask his secretary to search his office?" Bennett asked to much laughter in the courtroom.

But McCullough didn't find it a totally amusing suggestion.

"I appreciate the humour, but I don't think these e-mails ever went to Mr. Justice Dohm," he told Bennett. "That's outrageous. They dropped the ball and they want to suggest that maybe Mr. Justice Dohm didn't put some of them back in the envelope?"

Bennett decided the safest course was to indeed check with Dohm. She later reported back that, no, Dohm did not have the missing e-mails or recall reviewing them.

Hard drive turns up in wrong place

But on Tuesday Justice Bennett's perseverance in attempting to find out where the e-mails had been hidden for four years led to yet another discovery announced in court -- that she herself had located a mysterious computer hard drive possibly containing the original e-mails sitting undetected in the B.C. Supreme Court's registry.

"Can anyone shed light on the hard drive at the registry?" Bennett asked a courtroom full of surprised lawyers. "It shouldn't be at the registry -- that's about the last place it should be -- although it's safe there."

Bennett, a former prosecutor herself, wasn't kidding about the inappropriate location of the hard drive. Defence lawyer Bolton was aghast as well.

"We'll certainly be asking questions about how and why this came to be here," Bolton said outside court, adding that it appeared the hard drive had been there "for years."

"There absolutely is the possibility of a chain of custody issue," he said. "Very serious concerns were raised about the integrity of evidence."

In court, special prosecutor Janet Winteringham told Bennett she's not sure why the hard drive was at the registry or whether information it contained had been disclosed.

But Bolton said outside court that he believes the hard drive "certainly would appear to include the missing e-mails."

In court, McCullough raised another issue: he wants to know the names of everyone who actually received the e-mails, including those who may have had it forwarded to them.

"It's very helpful to see the forwards," McCullough said. "When a person you wouldn't think in the premier's office is getting it."

NDP on the attack

All of these developments combined to draw fire from the NDP opposition Tuesday. "The ongoing problems around disclosure raise suspicions these documents are compromising to the government," NDP MLA Mike Farnworth (Port Coquitlam -- Burke Mountain) said in a news release. "The only way to clear this up is to bring them into the public light as the premier personally promised."

A call to Campbell's communications director Dale Steeves was not returned by deadline, but in the past Campbell has declined to comment about issues related to the case, saying only that it is before the courts.

And defence lawyer Bolton ended the day by telling reporters he fully expects the trial to proceed as scheduled on March 17 this year despite disclosure problems.

"The judge is certainly doing everything she can to move the case along," he said when asked if the trial can start on time.

For wary reporters who have seen the trial date postponed half a dozen times and faced other regular and substantial delays, it was a rare bit of optimistic news, perhaps even as surreal a possibility as anything else in this strange case.

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