Wednesday, November 01, 2006

 

Special Prosecutor claims detailed accounting of 66,000 documents

By Mark Hume
The Globe and Mail
1 November 2006

VANCOUVER -- The special prosecutor of a case that involved a police raid on the provincial legislature defended the Crown's handling of massive document files yesterday in B.C. Supreme Court.

Responding to criticisms that the Crown had misfiled or lost key documents, Bill Berardino provided Madam Justice Elizabeth Bennett with a detailed accounting of how evidence has been processed and disclosed to the defence.

Mr. Berardino said that while a few of the tens of thousands of documents amassed in the investigation may have been labelled in a way that made them difficult to find, or they were released later than anticipated by the defence, none were lost, and the number of problems was minor when the massive nature of the file is considered.

He said defence attorneys for Dave Basi, Bobby Virk and Aneal Basi -- three men who are facing fraud, money-laundering and influence-peddling charges after a December, 2003, legislature raid -- have complained about difficulties concerning only about six or seven documents.

"If that's all there is in 66,000 documents disclosed . . . you cannot [say] . . . someone lacks control of the disclosure process," Mr. Berardino said.

He said the defence criticisms boil down to complaints about the timing of the release of documents and some problems with a search function on a software program.

Kevin McCullough, who represents Mr. Virk, told the court on Monday that the Crown had so badly mishandled the evidence by misfiling or failing to produce documents that it appeared the Crown had lost control of the disclosure process.

Michael Bolton, a lawyer for Dave Basi, called it "a prime example of a case that is a serious candidate for a miscarriage of justice or a mistrial down the road because of failures of disclosure."

But Mr. Berardino said all the documents have been accounted for and all those that are relevant, or not covered by privilege, have now been produced to the defence, together with a detailed index.

"There were not missing documents," he said, in reply to a complaint by Mr. McCullough that files couldn't be found.

"It should be noted that the very documents which the defence allege were 'missing' from the disclosure package and which the Crown says were always being prepared for disclosure independently of defence counsel complaint, were disclosed in September, 2005. That is some year and a half prior to the date now set for trial," the Crown states in written argument filed by Mr. Berardino and his assistants, lawyers Andrea MacKay and Janet Winteringham.

Mr. Berardino also told the court a huge electronic file that contained about 11,000 documents had caused some problems because of initial difficulties experienced with a search function on the software, which was prepared by the RCMP.

But he said that difficulty was subsequently fixed -- and part of the problem Mr. McCullough had in finding files was a result of technical difficulties with his own computer.

He said the Crown had RCMP data experts visit Mr. McCullough's office to help him get the software functioning properly, and they found part of the problem was that the defence lawyer's computer needed an upgrade.

Responding to a request from defence attorneys to get direct access to the RCMP "project room," where the documents are filed, Mr. Berardino told court he wouldn't agree to that without a court order.

He said that the files are intermixed with documents that contain sensitive information about informants, and that the project room itself is in a building that houses the nerve centre of police drug investigations in B.C.

Mr. Berardino said "it was physically impossible to reorganize the file in a way that would allow an inspection of it without prejudicing legitimate interests such as names of informants and other such information that is obviously irrelevant to this prosecution."

The search of the legislative offices of Dave Basi and Mr. Virk, who were both ministerial aides, took place after police who were investigating a drug case came across evidence they allege implicated the two men in acts of fraud and influence peddling.

Among other things, the two men had access to confidential government information concerning the selling of the Crown-owned B.C. Rail to CN Rail.

The trial is set to begin Dec. 4, but arguments over disclosure are expected to continue today.
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Only The Globe and Mail reported the pre-trial conference for Tuesday. Since Monday's West Coast newspapers emphasized the defence lawyer's complaints against the Special Prosecutor, you'd expect they'd give equal time to the Special Prosecutor's statement. But no mention of the hearing in Wednesday's Vancouver Sun or Victoria Times Colonist. Maybe later? - BC Mary.
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Comments:
Here is the 24 hours newspaper report today:

November 1, 2006

Defence aims at wiretap evidence

By IRWIN LOY, 24 HOURS

RCMP wiretaps used to snag three former government insiders accused of corruption will be attacked as part of the pending trial, a lawyer for one of the accused said yesterday.

Dave Basi, Bobby Virk and Aneal Basi were the three men charged in the aftermath of the high-profile 2003 raids on the B.C. Legislature.

Pre-trial motions this week revealed RCMP attempts to gain judicial authorization for cell-phone wiretaps.

According to Dave Basi's lawyer, Michael Bolton, the affidavits used to get that authorization were "misleading, misinformed and perhaps deliberately false."

Lawyers for all three of the accused say they haven't received full disclosure of the evidence - which involves tens of thousands of pages - in the much-delayed and often secretive trial.

"[This is a] serious candidate for a miscarriage of justice or mistrial down the road because of these failures of disclosures," Bolton said. "The last thing we want in this case is to get to the end of the trial to find there has to be a mistrial because of undisclosed documents."

But special prosecutor William Berardino insists there's been full disclosure.

Dave Basi was the senior aide to former B.C. Liberal Finance Minister Gary Collins. The closely watched trial, which was supposed to start last year, is now scheduled to begin in December.
 
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