Saturday, March 03, 2007
On the Notice of Application for Disclosure
First Report on the Notice of Application for Disclosure
Contributed By Anonymous
The 32-page document that Robin couldn’t get from Court Registry is a public document with the look of legal seriousness about it. They design these things to fold nicely in three and fit into a lawyer’s pocket conveniently I guess. Of course, the document I have is a copy but, even so, it has the outline of a very official stamp on its cover page from the Vancouver Supreme Court Criminal Registry, dated February 26, 2007.
The very first line of this darn thing says:
TAKE NOTICE that an application for disclosure will be brought before the Trial Judge on behalf of the accused persons, Udhe Sigh (Dave) Basi, Bobby Singh Virk and Aneal Basi (collectively the “Accused”) on April 2, 2007, or as soon as practicable for Orders requiring the Special Prosecutor and the RCMP to provide full disclosure in this matter.
So, be that as it may, and I want to make it clear I am no lawyer, it doesn’t sound to me as if anyone should book their holidays for April and head on down to Vancouver to watch this little bun toss get started.
Still, this is a pretty interesting document. Moreover, since it’s the first real evidence the public has actually gotten to see since the raid on the Legislature in late 2003 and the subsequent laying of charges against the accused it’s worth some special attention.
Let’s just page quickly through it first to familiarize ourselves with the landscape.
First of all, as everyone has been saying and writing, there are 32 pages here and they consist mostly of 200 numbered paragraphs that are in turn divided into 7 sections or divisions labelled with Roman Numerals.
I – Introduction - Paragraphs 1 – 75
From a legal point of view this may well be the ‘introduction’ to the legal business that follows; from the neophyte observer’s point of view these items provide a useful primer to a case that has already been known by a variety of names in the popular imagination. Even the experienced ‘Raids’ aficionado will find things here he or she didn’t know – even someone who has been haunting Mary’s blog since May of 2006 may find things to learn here.
Paragraph 2, for example, tells us that the RCMP launched the investigation that eventually became this case ‘sometime in 2002’ – an operation that they called “Project Everywhichway” and that, by June of 2003 they had already decided that Udhe Singh (Dave) Basi was, in the usual usage of the force, ‘a person of interest in this investigation.’
The press has covered various bits and pieces of this narrative but we’ve never really seen the whole thing laid out like this. It’s quite a story and I wouldn’t be surprised if Mary will publish a lot of it over the next little while. But first, let’s finish our first calm walk through of the whole 32 pages.
Part II is labelled Disclosure Considerations includes paragraphs 76 – 78
These three paragraphs are important stuff – in fact this is the heart of the whole defence case. As such, I think it’s important to quote them whole. These four points will be, it seems pretty clear, the nominal default position for this trial if it ever does get started:
76. The defence intends to seek Charter relief in respect of: (a) the intercepted private communications pursuant to Part VI Authorizations P.67 and P. 73; (b) the searches of the Legislative offices of Messrs. Basi and Virk, and the residence of Mr. Basi.
77. Additionally, the defence seeks a stay of proceedings on the basis of an undermining of the Accused’s right to a fair trial in respect of: (a) the RCMP investigative conduct which irreparably damaged any ability of Mr. Basi and Mr. VIrk to make full answer and defence; (b) the conduct of the RCMP and Special Prosecutor in respect of the dealings with Erik Bornmann; (c) the conduct of the RCMP and Special Prosecutor in respect of the media releases; (d) the continued inability of the Special Prosecutor to provide full disclosure; (e) consenting to a re-election from a jury trial before full disclosure was complete; and, (f) the delay to bringing this matter to trial which is fully attributable to the Crown.
78. The defence takes the position that at no time did Mr. Basi or Mr. Virk act in a fraudulent, deceitful or criminal manner, but rather acted at all times under the direction of their superiors in the highly political circumstance of their Offices. Certain of the disclosure requests are crucial to determining whether Messrs. Basi and Virk had consent to act as they did. These issues in turn affect Aneal Basi. (all emphases are mine)
Part III comprises paragraphs 79 – 138 and is headed Disclosure Issues Arising From the Project Room Review.
There are several sub-headings in this section but you could really call these paragraphs the prima facie case for the defence attorneys’ strong suggestion that the crown – by that I mean the special prosecutor and the police – have not been playing ball. Of course, the prosecution will no doubt take issue with what the defence alleges but, based on this material, it’s hard to come to any conclusion other than that there’s been a lot of foot-dragging going on.
Part IV is called Outstanding Disclosure Requests. It includes paragraphs 139 – 169.
Let’s sum up for now with a simple observation: This is not trivial. A lot of explaining needed.
Part V includes Documents The Special Prosecutor Has Not Fully Disclosed Or Asserted A Privilege Over (The Vetting Application) and comprises just a few assertions from the defence in Paragraphs 170 – 178.
Among which are between 3 ? and 4 pages of columns of 8-digit reference numbers. I haven’t bothered to count them; suffice to say that these numbers represent a fair amount of material that the defence claims it hasn’t had a chance to even look at yet or material that has been partially redacted or withheld from them by the prosecution. This too is not trivial.
Part VI furthers the essential argument of the defence on behalf of their clients. It’s
titled the Position of the Applicants. Essentially it is a plea to the judge to acknowledge the non-performance of the prosecution and leads up nicely to the conclusion.
In Part VII, headed The Relief Sought, are the final remarks of the applicants in paragraphs 182 – 200.
I’ll come back to this outline to fill in some blanks and hopefully answer a few more questions in my next installment.
Many, many thanks to this Anonymouse. I'm looking forward to the next instalment. Meantime, I'm wondering if members of the public would be able to access this significant document at their Public Library? Perhaps Anonymouse will tell us, next time. - BC Mary.
In other words, Basi, Virk and Basi didn't "personally" committ any crimes. They only followed orders, given by the actual criminals. This isn't saying that criminal acts weren't committed, they are just claiming that the crimes were committed at a higher pay grade.
I can accept that. Drop the charges against B/V/B, and haul in the Soup Nazi, the Ferret and the rest of the Campbell Crime Family.
How do we know that there was not sanitizing of the political evidence that the RCMP handed over to the Special Prosecutor & for that matter, the defense? There are no coincidences . . . .Kootcoot you on on the right track re: Campbell & Cohorts.
Just a slight conflict of interest - How handy is it for the Campbell Libs to be cozy with the RCMP? Sure is a good way to deep six any misconduct at their choosing - stinky poo - there sure needs to be some airing on the truth.