Saturday, June 23, 2007

 

Basi-Virk-Basi full text defence disclosure application, as filed June 4, 2007

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The mainstream media's bleak no-news period in the B.C. Rail Case, provides an opportunity to review the disclosure application generously provided by Bill Tieleman. Dates to note: Update in Supreme Court is expected on July 16. The next stage begins August 13. But please see also the footnote here, in which a Citizen Journalist reports hearing other court dates mentioned. If nothing else, this illustrates the difficulties the public is having in accessing information on this important case. - BC Mary


BASI-VIRK DEFENCE DISCLOSURE APPLICATION FILED MONDAY JUNE 4, 2007 IN B.C. SUPREME COURT AND RELEASED ON THURSDAY JUNE 7, 2007.

The following is the complete document filed by defence lawyers for David Basi, Bob Virk and Aneal Basi as obtained today through the BC Supreme Court registry office.

It is being posted here as a public service to those interested in this important case. I take responsibility for any inadvertent typographical or spacing errors.

- Bill Tieleman

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JUN 04, 2007 Court File No. 23299
Vancouver Registry

THE SUPREME COURT OF BRITISH COLUMBIA


BETWEEN:

REGINA
Respondent

AND:

UDHE SINGH (DAVE) BASI, BOBBY SINGH VIRK, ANEAL BASI
Applicants

NOTICE OF APPLICATION FOR PRODUCTION OF RECORDS IN THE POSSESSION OF THE PROVINCE OF BRITISH COLUMBIA

TO: George Copley, Q.C. Counsel for the Record Holder, the Province of British Columbia
6th Floor - 1001 Douglas St
Victoria, B.C. V8W 9J7


AND NOTICE TO:

William Berardino, Q.C. Special Prosecutor
Hunter Litigation Chambers
2001 — 1040 W. Georgia Street
Vancouver, B.C. V6E 4H1

TAKE NOTICE that an application for records in the possession of the Province of British Columbia will be brought before Madam Justice Bennett on behalf of the accused persons, Udhe Singh (Dave) Basi (hereinafter, “Mr. Basi”), Bobby Singh Virk (hereinafter, “Mr. Virk”) and Aneal Basi (hereinafter, “Mr. A. Basi”). This application is returnable for June 7, 2007 at 10:00 a.m at the Courthouse located at 800 Smithe Street, Vancouver at which time a date will be fixed for the hearing of the application.

The Applicants are seeking the following Orders:

1. That all records, documents and information, including information in electronic form (collectively, the “Records”) held in any office, storage facility or repository by:

a. Premier Gordon Campbell and the Premier’s Office including the Correspondence Branch and Cabinet Operations, and all other deputies and staff of the Premier’s Office, including but not limited to Martyn Brown, Brenda Eaton, Ken Dobell, Tom Syer, Jay Schlosar, Dave Cunningham, Hazel Mitchell, Sam Marja, Cynthia Haroldsen, Lara Dauphinee and Mike Morton;

b. former Minister of Finance Gary Collins (hereinafter, “Minister Collins), his Office, his deputies, assistants and staff including but not limited to Paul Taylor, David Morhart, Chris Trumpy, Adam Buchanan, Robert Paulizyn and Melanie Hughes;

c. former Minister of Finance Colin Hansen, his Office, his deputies, assistants and staff;

d. current Minister of Finance Carole Taylor, her Office, her deputies and staff;

e. former Minister of Transportation Judith Reid (hereinafter, “Minister Reid”), her Office, her deputies, assistants and staff including but not limited to Dan Doyle and Kathie Miller;

f. current Minister of Transportation Kevin Falcon, his Office, his deputies, assistants and staff;

g. former Solicitor General Rich Coleman (hereinafter, the “Solicitor General”), his Office, his deputies, assistants and staff including but not limited to Tobie Myers;

h. Assistant Deputy Minister and Director of Police Services Kevin Begg (hereinafter, the “Assistant Deputy Minister”), his Office and staff;

i. current Solicitor General John Les, his Office, his deputies and staff

j. former Speaker of the House, Claude Richmond (hereinafter, the “Speaker”), his Office, his deputies and staff;

k. current Speaker of the House, Bill Barisoff, his Office, his deputies and staff;

l. Clerk of the House, E. George MacMinn, Q.C., his Office and his staff including but not limited to Ian Izard, Q.C.;

m. former Attorney General Geoff Plant, Q.C., his Office, his deputies and staff;

n. current Attorney General Wally Oppal, Q.C., his Office, his deputies and staff;

o. Crown Counsel Robert Gillen, Q.C. and Geoff Gaul and their respective Offices;

p. the Executive Council and its Offices and staff, including but not limited to Joy Illington;

q. the Offices of all Cabinet Ministers and Members of the Legislative Assembly for the Province of British Columbia from June 5, 2001 to the present day;

r. all Cabinet and Caucus committees from June 5, 2001 to the present day;

s. all government research, policy and communications offices, including but not limited to the Public Affairs Bureau from June 5, 2001 to the present day;

t. the Crown Corporations Secretariat including but not limited to the Offices of B.C. Rail; and

u. the Office of the Conflict of Interest Commissioner (collectively, the “Government Offices”),

which relate to:

(i) the divestiture of B.C. Rail Freight Division (hereinafter “B.C. Rail”) and the proposed divestiture of the Robert’s Bank Port Subdivision (hereinafter, “Robert’s Bank”) and the bidding processes related to same, including but not limited to the B.C. Rail Steering Committee and the B.C. Rail Evaluation;

(ii) the selection of, and duties assigned to, Ministerial Assistants and in particular all Records relating to efforts of Ministerial Assistants to influence public opinion through the media with regard to the provincial government or its ministers, policies or initiatives;

(iii) the strategy, policy, and any related decision-making pertaining to the influencing, gauging or monitoring of public opinion through media and other public forums;

(iv) public opinion polling and reports, including by the B.C. Liberal Party, which pertain to public opinion on transportation, finance and budget surplus and deficit issues, and further including but not limited to the divestiture of B.C. Rail and the balancing of the Provincial Government budget;

(v) the provision by the B.C. Liberal Party or the Provincial Government to Provincial Liberal Cabinet Ministers and Members of the Legislative Assembly and their staff of blackberries, computers, cellular phones or other PDAs (Personal Digital Assistants);

(vi) any communications between Provincial Liberal Cabinet Ministers and Members of the Legislative Assembly and their staff and lobbyists Brian Kieran, Erik Bornman, and Jamie Elmhirst, their companies including but not limited to Pilothouse, Kieran Consulting, Pacific Public Affairs, K&E Consulting and their respective staff

(vii) the acceptance or receipt of any gift or benefit including but not limited to:

(1) Vancouver Canucks tickets or seating in private boxes;

(2) B.C. Lions tickets or seating in private boxes;

(3) the use of any facilities at General Motors Place;

(4) Tickets or admittance to the Cirque de Soleil; and

(5) Famous Players “Big Card”

(viii) the investigation of alleged criminal activities of Minister Collins, Mr. Basi, Mr. Virk, and Mr. A. Basi, including but not limited to:

(1) the proposed and actual interception of private communications within the precincts of Parliament, including communications over the telephone lines (250) 387-3751 and (250) 213-5098;

(2) the search of the Legislature on December 28, 2003;

(3) the issue of whether and to what extent members of the Provincial Government, including Minister Collins were under investigation;

(4) all communications pertaining to the timing of R.C.M.P. interviews of Members of the Legislative Assembly and Cabinet Ministers, including Ministers Collins and Reid; and

(5) all communications pertaining to the issue of Parliamentary and Cabinet privilege in respect of R.C.M.P. interviews of Members of the Legislative Assembly and Cabinet Ministers, including Ministers Collins and Reid be produced to this Honourable Court;

2. That such portions of any of the Records held by the Government Offices in relation to any of the above-noted matters be produced to the Applicants.

THE GROUNDS FOR THE APPLICATION ARE:

1. The Applicants are charged on a multi-count Direct Indictment principally alleging fraud and breach of trust offences in respect of the provincial government’s divestiture of B.C. Rail and Robert’s Bank, including the cancellation of the latter.

2. The divestiture of B.C. Rail and the Robert’s Bank was a complex and highly political process, which involved and affected many Ministers, Agencies, and Departments of the Provincial Government.

3. On December 28, 2003 the R.C.M.P. with the assistance of the Victoria Police Department, executed Search Warrants at the Legislature, and specifically, upon the offices of Ministerial Assistants Messrs. Basi and Virk.

4. Documents and materials were removed from the offices of Messrs. Basi and Virk and from no other offices or locations in the Provincial Legislature.

5. There was considerable strategic discussion and planning by the R.C.M.P. in the preparation, application and execution of the Search Warrants. The R.C.M.P. consulted and liaised with the Solicitor General and his Assistant Deputy Minister before and during the execution of same.

6. The involvement of the Solicitor General and Assistant Deputy Minister in the criminal investigation continued after the search of the Legislature and until at least February 13, 2004, and this involvement consisted of collaboration with, and direction to, the R.C.M.P. with regard to the timing and content of the R.C.M.P. interviews of Ministers Collins and Reid.

7. The Applicants believe that the Search Warrant application procedure lacked transparency and that the R.C.M.P. deceived the Authorizing Judge with respect to, inter alia, the procedures and protocols that needed to be followed in order to enter the precincts of Parliament, including obtaining the informed consent of the Speaker.

8. The Applicants believe that the Government Offices contain records of likely relevance to material issues in this matter, which would be relevant to the cross-examination of key witnesses with regard both to the credibility of these witnesses and the potential identification of evidence to be tested by the Applicants at trial.

9. The Applicants require access to information contained in the Records held by the Government Offices in order to make full answer and defence to the charges against them pursuant to s. 7 of the Canadian Charter of Rights and Freedoms (hereinafter, the “Charter”).

10. The Applicants similarly require access to these Records in order to apply to set aside the Search Warrants and Authorizations to Intercept Private Communications on the basis of a breach of s. 8 of the Charter, and in order to apply for a stay of proceedings pursuant to ss. 7 and 24(1) of the Charter on the basis that, inter a/ia, the involvement by the Solicitor General and Assistant Deputy Minister in the search of the Legislature and criminal investigation of the Applicants, and the media relations campaign of the R.C.M.P. constituted an abuse of process.

11. Such further and other grounds as counsel may advise and this Honourable Court may permit.

IN SUPPORT OF THIS APPLICATION THE APPLICANT RELIES UPON:

1. This Notice of Application; and

2. Such further and other materials as Counsel may advise and this Honourable Court may permit.

THE RELIEF SOUGHT IS:

1. An Order that all Records held by the Government Offices be produced to this Honourable Court for review pursuant to the procedure set out in R. v. O’Connor (1995) 4 S.C.R. 411 (S.C.C.) (hereinafter, “O’Connor”).

2. An Order that such portions of the Records held by the Government Offices as this Honourable Court may find likely relevant to an issue at trial.


Names and Addresses of Counsel:

P. Michael Bolton, Q.C
Claire Hatcher
Bolton & Muldoon
Banisters & Solicitors
360- 1122 Mainland Street
Vancouver, B.C. V6B 5L1
Tel. 604 687-7078; Fax 604 687-3022


Kevin McCullough
Kristy Sim
McCullough Blazina Dieno
Banisters & Solicitors
2~ Floor, 1011 Fort St.
Victoria, B.C. V8V 3K5
Tel. 250-480-1529; Fax 250-480-4910


Joseph Doyle
Johnson Doricic Doyle
Banisters & Solicitors
2nd Floor, 195 Alexander St.
Vancouver, B.C. V6A 1B8
Tel 604 688-8338; Fax 604 688-8356

Posted by Bill Tieleman at http://billtieleman.blogspot.com/

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Outside court on June 4, Basi's lawyer Michael Bolton said: "We're very pleased with today's result because we're going to get the disclosure we were seeking." But the price of disclosure is delay.

Madam Justice Bennett directed both sides to appear
July 16 for an update on progress and suggested the next stage in the case will not begin until August 13, when the disclosure application will be heard.


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Please note the following report from a Citizen Journalist, Gary E:

Back in April I had been in Court for a day. I reported here that Court discussions had been around Disclosure dates, other court matters that may cause adjournments, Trial date, and summer break. Justice Bennett was musing over a trial date of July 9th. With this application we can assume that the trial date she wanted is blowing in the wind. She then suggested (or set) August 3rd for the summer break adjournment. My thoughts now are: If the next stage is to begin Aug. 16th does that mean there will be no summer break? Or, will they be using the time between July 16th and August 13th for the summer break? Or,and this I think is the most likely considering how the delays have been mastered so far: Will they sit only on August 13th then break for the summer?

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Comments:
Back in April I had been in Court for a day. I reported here that Court discussions had been around Disclosure dates, other court matters that may cause adjournments, Trial date, and summer break.
Justice Bennett was musing over a trial date of July 9th. With this application we can assume that the trial date she wanted is blowing in the wind.
She then suggested (or set) August 3rd for the summer break adjournment. My thoughts now are:
If the next stage is to begin Aug. 16th does that mean there will be no summer break?
Or, will they be using the time between July 16th and August 13th for the summer break?
Or,and this I think is the most likely considering how the delays have been mastered so far: Will they sit only on August 13th then break for the summer?

Another question is: Do all these delays in Disclosure count for a Constitutional Challenge on a swift trial? Or is disclosure counted as part of the trial?
 
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Gary E,

What I'll do, Gary E, since we have no way of verifying any court dates until 6:30 AM of the day they happen, is ...

I'll add your information to what Bill Tieleman provided.

It surely gives a fuller dimension to the public confusion over these simple questions of court dates.

Thanks, as ever, Citizen Journalist.

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Reading the list of documents requested I forgot who it was that is actually on trial.

Can't blame the defense for asking for everything but the kitchen sink but realistically what does 90% of this have to do with Basi and Virk accepting a bribe?

Even if is was shown that the Liberals enganged in some dirty tricks or took freebies does that mean that Basi and Virk are off the hook?
 
Anon 12:35.

I had asked myself the same question some months ago. After reading volumes of information put forward by BC Mary, Bill Tielman, Robin Mathews, and a few other blogs as well as The Tyee I detected a pattern. Someone was implicated in a phone tap regarding a drug deal which led to ministerial assistants offices being raided. This presumably was done by the drug cops. From the original wire tap came a tap on the phone of a ministerial assistant. Minister Collins was using that phone to talk to others including the Premier. Now comes the bribery part. Collins was at a meeting with Omnitrax and was under a huge blanket of surveilance. Omnitrax is the "concillation prize winner" in the BC Rail sale which was won by CN Rail. We don't know all the specifics on this yet and the lawyers are trying to get to the bottom of it. As I see things with all the allegations in court the defence may be trying to deflect the bribery charges to others. They need all the information requested to see if the bribes were taken with the full knowledge of these mens' superiors. Further, and this is a real problem for us getting more information, is the possibility that the wiretap on the phones in the Legislature was possibly illegal as it was obtained under questionable circumstances. Now, all the people that are implicated in this fiasco are either related, employees of ministers, or ministers and former ministers themselves.

All that being said we now have a special prosecutor, who takes his direction in writing from the Assistant Deputy Attorney General, or the Deputy Attorney General, or the Attorney General from the bottom up. The special prosecutor in this case not been forthcoming in his disclosure of evidence in this case (and furthermore has been absent from court for most of the disclosure so far).The judge is to say the least a little miffed and she has ordered this evidence to be given to the defence. Although she had made a broader order earlier not much was brought forward. It seems to me unless people are specific they won't get what they asked for.
On top of all this, we as the public can't get any "public information" that is on record in the public domain in this case because of some gag order by Justice Dohm. I personally haven't looked into that part but others may be able to explain it. I know Robin Mathews has been a pitbull on the matter.
What is happening here is a massive cover-up of the sale (leasing for 999 yrs) of BC Rail.
No contract has ever been shown to the public and the implications of a dirty deal have now been mentioned all the way to the premiers office.

Thats the way I see things.
 
Excuse me, Anonymous 12:35 . . . "Can't blame the defense for asking for everything but the kitchen sink but realistically what does 90% of this have to do with Basi and Virk accepting a bribe?". Please think again!

"Realistically" it has everything to do with this case, given what has been uncovered, to date, in the disclosure of evidence & what has not. What other dirt lurks in the nooks & crannies of the Govt. & RCMP?

The lawyers for the Defence see that there is MUCH MORE involved than what their clients have been charged with; almost like a smoke screen in itself.

What the Defence is painting is the key bigger political picture of abuse of office/process & dirty deals by persons in high political office above these two underlings in the food chain.

The perception is that there was concerted effort to protect the politicians as this investigation proceeded between senior, elected politicians & the RCMP based on evidence to date.

WHO ordered the cessation of investigating Collins? Was the Premier involved? It seems the Solicitor General's Ministry WAS chatting up the Asst. Dep. Comm. of the RCMP. Yet, DeBruyckere & his team WANTED to pursue the political big fish. Who else was whispering sweet suggestions into whose ears in this cozy circle?

Simply put: Basi & Virk may be guilty of misconduct; however, the tentacles of political misconduct over the BC Rail 'deal', a huge public asset sold off to linkages to the Premier, appear to go much deeper into high political office. Political rot, by the very nature of the GAME, involves many players on many levels - all linked.

For instance, all Legislative Committee are under the Clerk's Office, headed by Liberal MLAs appointed by Martyn Brown in the Premier's Office; as are all of the political staff of each Minister. Basi & Virk look like tiny minnows in this context; perhaps unethical operatives up to the job of following their political masters agenda.

In the pretrial that previously undisclosed evidence suddenly came forth during the pretrial. Clearly the Defence want ALL the evidence, not just the sanitized version. Why should their clients take the heat when the net can bag bigger fish?

If I were the Defence I'd be asking for the "kitchen sink", too!
 
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