Tuesday, December 12, 2006
BC. Supreme Court Justice Bennett's ruling on disclosure of BC Rail Case documents
In the Supreme Court of British Columbia
Regina v. Udhe Singh (Dave) Basi, Bobby Singh Virk and Aneal Basi
Before The Honourable Madam Justice Bennett
Oral Reasons for Judgment [Excerpts]
In Chambers November 14, 2006
THE COURT: This case involves allegations of corruption regarding former ministerial assistants of the provincial government.
The defence brings an application which relates to the mechanics of disclosure in this case. The defence is not alleging breach of their constitutional rights at this point. The purpose of the application, in part, is to avoid the necessity of bringing an application alleging a violation of the accuseds' rights to make full answer and defence ...
Defence asks to be allowed into the R.C.M.P. "Project Room" where the documents are being held while the Crown and police perform a review of the documents to confirm that the defence have what they require.
As a result of the search [raid on the B.C. Legislature] and other investigative work, the initial investigation evolved into several separate investigations:
1) the drug investigation
2) the BC Rail investigation - which is this case
3) the Agricultural Land Reserve (A.L.R.) investigation
4) proceeds of crime investigation (I.P.O.C.)
An information [to obtain] was laid in the B.C. Rail case in December 2004. Requests for disclosure were made by defence immediately. Apparently no disclosure was made when the charges were laid. The defence has characterized this as a "black cloud" that hung over the whole process. I do not find that it was a black cloud given that it is not unusual that disclosure is not available the instant charges are laid.
Disclosure commenced on Jan. 20/05. A direct indictment was filed on Jan. 28/05 bringing the matter immediately to this court without preliminary inquiry in the Provincial Court.
March 10, a day prior to an appearance in this Court, 11,000 documents were disclosed electronically.
In the appearance before Associate Chief Justice Dohm on March 11/05, the Crown advised the Court that disclosure was substantially completed and final disclosure would be complete in 2 to 3 weeks.
A trial date was fixed for Nov. 28/05. It was clear, shortly after that date was fixed, that disclosure was going to be an issue ...
Defence is concerned that the Crown is not sufficiently involved in the disclosure process and has left the bulk of the disclosure to the police. This is supported in the affidavit of Corporal Mar wherein she states the procedure she and Constable Ma have followed to conduct disclosure ... suggest[ing] that at least initially disclosure was being performed primarily by police. Further disclosures:
Sept. 16/05 865 documents 4,489 pages
Oct. 21/05 on 6 CD ROMs 68,910 pages
December 05 16,066 pages
May, June, July/06
on CD or DVD disks, with index 10,000 pages
In her affidavit, Cpl. Mar states that up until May 23006, she was still rquesting notes, reports and documents from officers involved in the investigation. Thus, though charges were laid in December 2004, she did not depose that she had everything from the investigators 2-1/2 years after the warrants [to search the B.C. Legislature] were executed.
Defence counsel submit that because of the manner in which disclosure has occurred, the missing documents, the delayed disclosure without explanation, the improperly filed documents, the lack of a proper search function, and the lack of a proper index resulted in countless wasted hours and resources by the defence.
The defence submits that in light of all that has transpired, they cannot be confident that they have all the disclosure unless they do a document-by-document check with the Crown and the R.C.M.P. The defence is concerned that if more material surfaces later they will have to apply for a mistrial or worse: there will be a miscarriage of justice.
The defence is merely seeking to be present when documents are given a final review to satisfy themselves that they have all the documents which are located in the Project Rom that relate to the B.C. Rail case -- or at least are aware of documents that are not to be disclosed and the reason why.
I have outined the problems of disclosure in this case in terms of delay, electronic problems, and missing or mis-filed documents. I have concluded that the defence are not on a fishing expedition. There have been problems with the disclosure process, primarily because of the massive number of documents and the fact that the drug disclosure has required the attention not only of the Special Prosecutor but also of the Department of Justice.
... I find at this point that it cannot be said that basic disclosure has been met.
(Sgd.) Elizabeth Bennett
The Honourable Justice Elizabeth Bennett.
And 3 years later, we learn the name. This is The B.C.Rail Case.
That's how it will be remembered in British Columbia's history books.