Saturday, March 03, 2007


Part II on Notice of Application for Disclosure

Second Report on the Notice of Application for Disclosure

By Anonymous

As promised, I’m back with some more explication of that 32-page opus that landed on Judge Bennett’s table ( I guess that’s how they do these things) and, through the agency of defence counsels’ generosity got into the hands of the working media in Vancouver last Monday. How do ordinary mortals like members of the public manage to get their hands on such things? Well, that’s a long story and I think I’ll leave it for Robin to tell that one. We have enough to do right here to deconstruct those pages without worrying about where they came from – or at least how ONE member of the public got his hands on a public document.

Part I – the Introduction. “Project Everywhichway”

As I mentioned earlier, this is the real meat of the document from the public’s point of view. Here, laid out in precise detail, step-by-step, is the way this case started – accelerated into the major climax of the actual raid on the legislature and has, since that time, been echoing, in a variety of ways, through the legal, political and media hallways of the province. Some of this was undoubtedly part of the material withheld by Mr. Justice Patrick Dohm and some of it, no question, is going to come up again before this story reaches a conclusion.

First of all, a caution. This is the defence version of the libretto and it’s undoubtedly the one Gary Mason’s been singing from. As Mary’s posted below – thanks again to Bill, there will be an opportunity for the other side – the prosecution, to weigh in on all these issues. I’m not going to try and point this out at every step of this narrative, but it’s a good idea to keep the notion in the back of your mind; after all, a place like the rockpile in James Bay does have a street address that’s hardly a secret. But, we’ll let the RCMP, the Crown and Gary Mason argue about that.

Let’s get started.

As I mentioned in the first installment, the RCMP called their investigation “Project Everywhichway” and their focus, from the start, was Dave Basi. The same Dave Basi who was, if you’ve forgotten, the Ministerial Assistant to the Minister of Finance and Government House Leader, Mr Gary Collins. (¶ 2).

As part of the investigation the RCMP decided to obtain court authorization for a DNR (Digital Number Recorder) warrant(s) for Mr. Basi’s cell phone(s). (There is some confusion in the text about whether or not the singular or plural is correct.)

Her Honour Judge Ehrcke is reported to have rejected the initial requests for a DNR warrant on the basis of possible ‘Parliamentary privilege’. This happened, apparently, at least twice in the period from August to September 2003.(¶ 3 - ¶ 8).

Before a third DNR warrant application was presented, this time to a Justice of the British Columbia Supreme Court, the police changed gears and brought application before Mr. Justice Patrick Dohm for a Part VI Authorization to Intercept Private Communications, “P.67” – for two DNR warrants – which were approved. (¶ 9 - ¶ 10)

Defence makes much of the fact that the Police may not have given appropriate notice to the authorizing judge, although, as a lawyer friend commented, it may well not have been required. Another curious fact hides in ¶ 11 where we’re told that the RCMP did not heed legal advice from their own lawyer, one Les Rose. Again, my lawyer friend commented, ‘That’s curious, how did the defence get that information? It would normally be covered by solicitor-client privilege.” Which I thought was a very good question.

But, despite this foreplay, the P.67 Authorization was signed by Mr. Justice Dohm on October 10, 2003 and the Mounties started monitoring both the Cell phone and the Office phone of Dave Basi on October 13, 2003. (The initial authority covered the period until December 11, 2003)

From ¶ 24 onwards, the document begins to deal with the actual results of the RCMP’s surveillance of Mr. Basi’s Ministerial Office and Cell phone conversations. Paragraphs 24 – 29 contain some of the information about which the public, and those of you who’ve been reading Mary’s blog regularly, have been wondering about ever since December 28, 2003.

I think they may be worth transcribing in full – again, keeping in mind that this is the defence version of this little drama.

¶ 24. As a result of listening to Mr. Basi’s intercepted private communications, the RCMP were aware that Mr. Basi was working on the sale of the BC Rail asset for Minister Collins.

¶ 25. As a result of significant information gathering, the RCMP knew that the sale of BC Rail was a highly political matter in which the Government was seen to be breaking a key election promise.

¶ 26. There were originally five (5) bids tendered in the BC Rail bidding process. In the final analysis, only three bids were competitive; those were CN Rail, CP Rail, and OmniTrax.

¶ 27. Through the interception of communications, the RCMP learned that one of the final bidders, CP Rail, was dropping out of the bidding process because of their belief that the process was flawed and that it had been predetermined that CN Rail would be the successful bidder.

¶ 28. In early November 2003, as a result of listening to intercepted communications on the Ministerial Cell Phone, the RCMP learned that OmniTRAX was considering dropping out of the process for precisely the same reasons cited by CP Rail.

¶ 29. Through intercepted communications, the RCMP learned that OmniTRAX had retained the services of Pilothouse Public Affairs Group (hereinafter “Pilothouse”), a British Columbia based lobbying company, to assist them in their bid for the BC Rail asset. Pilothouse at the time was made up of three principal partners, Brian Kieran (hereinafter “Mr. Kieran”), Erik Bornmann (hereinafter “Mr. Bornmann”) and Jamie Elmhirst (hereinafter “Mr. Elmhirst”).

I hope you agree that’s enough for this installment. We’ll take this up right here, tomorrow. I think everyone, especially considering the safety audit that was finally made public yesterday, might want to have a few hours to think about what's happened to the “BC Rail Asset” since the time when the events we’re looking back on actually took place.

Many, many thanks for this, Anonymouse. - BC Mary.

To Quote The Zalm b/w Country Joe and The Fish.....


Thanks Anon.

Thanks Mary. There are three sections I wanted to elaborate on for your purposes. Lets start with Section A. I have gone through the documents several times. The street address of the Parliament buildings was inserted when the rcmp decided to make basi a "primary target" in October 2003. On two previous occasions when they tried to get a DNR warrant they were upfront with the judge telling her basi worked in the parliament buildings and the phone was attached to that building. On both occasions the judge refused to grant the warrant citing parliamentary privilege. On the the third occasion the rcmp went to a different judge and did not tell this judge what the previous judge did on two seperate occasions, denying the DNR warrants. This is the critical point in law, the rcmp was legally required to tell the judge on the third attempt to wiretap basi's phone what the previous judge had said. They not only did not tell the judge they also changed any reference to the parliament buildings and listed the street address instead. I have called several friends in victoria nobody knows the street address for the parliament buildings. When people send mail they address it to the Parliament Buildings. This is a major point that will not go away and cannot be dismissed. I have spoken to senior criminal lawyers who have all stated this is a serious breach.

In Section B it should be noted Basi did not become a target until October 2003. This is a minor point.

In Section C it is uncorrect to say the rcmp were not required to notifiy the judge on the third attempt to wiretap basi's phone about the first judge who denied the attempts. This is a well establsihed fact in law and goes to something called bad faith. Judges do not like to be misled by anybody, let alone the rcmp. Remember what happened in Ontario when the finance minister over there was able to have the search warrants against him thrown out because of bad faith. The judge chastized the rcmp for this. The Finance Ministers name was Sorbara.

The key to the documents that have been filed, in my opinion is the stuff on bc rail and what was happening behind the scenes. I don't think the defence lawyers would have put that into these documents if they were trying to make this go away. The parts that deal with bc rail are very explosive and have the potential to really make the government look bad

I will continue to get more information and send it to you. But I really think we need to keep our focus on the bc rail deal and what was really happening behind the scenes. I was fascinated by the documents defence lawyers want from the government that are specifically related to the bc ral deal. All this other stuff is background noise to me.

Let me know what you think. I think we need to support the call for a full public inquiry. Hopefully the defence lawyers will do the same thing which will then open this up once and for all. Maybe I am engaging in wishful thinking.
Anonymous (4 March)

Many thanks for the time and effort you've put into this, it's much appreciated.

Q. Did I miss something? Is there actually a call for a "full public inquiry"?? Is it to find out exactly how ownership of B.C. Rail was transferred from public to private ownership?

Is a public inquiry intended as a fail-safe measure if the Basi, Virk, Basi trial is going to be dismissed?? Or is it something in addition to the trial?

I'm probably not the only one who is keenly interested in this idea.
Thanks anon (above), the commentary is mine.

I think there are examples available that indicate speech and other such things are NOT always protected outside the strict confines of the chamber especially if the intent, or pith and substance of what is going on is illegal. I'll have a bit more to say when I send Mary part 3.

As to the requirement to notify Dohm, one also has to take into consideration that the type of warrant being applied for at the Supreme Court was not the same as the one they were seeking at the Provincial Court level - that's what legal distinctions are all about. I'd be surprised if the legal department at the RCMP (which I still can't believe is very happy about their solicitor/client privilege being thwarted so cavalierly by defence counsel) didn't give the requesting officers a lot more advice than you and I know about.

No doubt it will be argued before Madame Justice Bennett - and the defence would be crazy not to mention it - which is why it's in the application.

I don't really disagree with your point about Judge Bennett. But, I'd also say that if Patrick Dohm doesn't know the address of the Legislature we are in real trouble.

Further, what our friends "think" is of no importance - it is legal precedent and accepted practice that matter. If the address of service is properly specified, it may well be all that's required. In any case, the courts will decide...and wishful thinking is pretty much a waste of time.

This is why I put that wording in about this being the defence submission - they are making their strongest possible case - the other side will have its own take on each of these items - It's like getting a book for Xmas but finding every other chapter is nothing but blank pages.

I do think it's very interesting for the public to actually 'see' some of this stuff for the first time.
A full public inquiry is essential. In my view the defence are making the case for this by laying out in detail what was happening behind the scenes. I think we need to start an online petition demanding a full public inquiry.
I agree.

After all, we are much more likely to learn the whole story through an inquiry than a criminal trial.

(which, of course, is why I'm pretty certain Mr. Campbell et al. will do everything they can to make sure one doesn't happen).

Hi, RossK and the Anons:

Watch for Robin Mathews latest column tomorrow morning, right here. It's a block-buster.

Then on Wed., 7 March, perhaps Fate will smile upon all of B.C. and we'll find out whether there's a hope in hell of this issue going to trial on 2 April 2007 ... 2008 ... or 2009.
Good - looking forward to it Mary.

This is fast becoming the place to be.

To swipe a phrase....

It's must-blog-see for B.C.

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