Monday, September 14, 2009

 

Bennett's final rulings on Basi-Virk

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Judge rules Kinsella's documents not required in Basi-Virk trial
Court says defence didn't prove Liberal insider played a major role

BY KEITH FRASER
The Province - SEPTEMBER 14, 2009


A judge has ruled that Patrick Kinsella's records are not necessary to the current trial that's underway.

B.C. Liberal party insider Patrick Kinsella will not have to disclose his personal documents related to the sale of B.C. Rail, the judge in the Basi-Virk case ruled Monday.

Lawyers for three men accused in the government corruption case had made a third-party application to get access to Kinsella’s records.

They argued that there was evidence that Kinsella, who was the co-chair of the Liberal campaign in 2001 and 2005, had played a significant role in the controversial $1 billion sale of B.C. Rail to CN Rail.

Their working theory is that the sale, which broke a Liberal campaign promise in 2001, was rigged from the beginning and that anything the accused did in connection with the deal was for the benefit of their political masters. They argued that Kinsella had worked for both B.C. Rail and CN.

But B.C. Supreme Court Madam Justice Elizabeth Bennett, appearing in the case for the final time Monday, found that the defence had produced nothing to prove that Kinsella played a major, political role in the sale.

She noted that the application might be renewed before the new trial judge, Madam Justice Anne MacKenzie, if further evidence is produced.

Michael Bolton, a lawyer for accused David Basi, said outside court he was disappointed with the ruling and added there was “no question” the defence continues to believe Kinsella was a “key figure” in the deal.

“This particular application will without question resurface before the (new) trial judge,” he told reporters.

Bennett had in July ruled that B.C. Rail documents that mentioned Kinsella were likely relevant to the defence and ordered that they be produced.

Obviously the judge sees there’s a gap that needs to be bridged before his personal documents can be found to be relevant and ordered produced, said Bolton.

Bennett also ruled that Kinsella’s lawyer had violated a court order not to provide access to transcripts of earlier hearings in the case and ordered that a list of the people who got access to the transcripts be released. {Snip} ...

kfraser@theprovince.com
Read more HERE.

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Judge bars access to Kinsella documents in BC Rail case

Madam Justice Elizabeth Bennett leaves door open for future application

Mark Hume

Vancouver —
Globe and Mail - Monday, Sep. 14, 2009

The Supreme Court of British Columbia has rejected a defence application to get access to documents held by a former political strategist for Premier Gordon Campbell.

But in turning down an application for the records of consultant Patrick Kinsella, Madam Justice Elizabeth Bennett left the door open for the issue to be revisited later in the BC Rail case – if new evidence can be found to support claims by defence lawyers.

Madam Justice Bennett, making her last ruling in the case before leaving the Supreme Court for promotion to the Court of Appeal, said on Monday that she wasn't convinced by arguments put forward by defence attorneys for Dave Basi, Bob Virk and Aneal Basi.

The defence for the three former government employees, who are facing fraud and breach of trust charges, was seeking access to records held by Mr. Kinsella that relate to the government's $1-billion sale of BC Rail to CN Rail in 2003.

Justice Bennett said she had not heard any evidence to support a defence allegation that Mr. Kinsella, who helped run the Liberal election campaigns in 2001 and 2005, was working for both railway companies at the time the deal was done.

She said if evidence can be found to firm up that link, then the defence would have grounds for obtaining the documents and could make another application.

“If Mr. Kinsella was working for both BC Rail and CN Rail ... it might raise concerns about the validity of the [government's] bidding process,” she said.

“If Mr. Kinsella worked for both companies. . .that would make [those] documents ... relevant,” said Justice Bennett.

She read from several e-mails placed before the court in which BC Rail and CN Rail officials mention Mr. Kinsella, and a briefing note in which a lobbyist speculates that Mr. Kinsella worked for both rail companies.

But the judge said the material is too thin to make a solid link.

“It is not evidence he was working both sides,” she said. “There is nothing to suggest that Mr. Kinsella played a key role in the sale.”

The defence has long argued that the government “fixed” the BC Rail bidding process.

But Justice Bennett said the defence had not proved its theory that the deal was manipulated in favour of CN Rail and that Mr. Kinsella was somehow involved.

“At this point, it is pure speculation whether the bidding process was rigged,” she said.

On another matter, Justice Bennett granted a defence application that will require Mr. Kinsella's lawyer, James Sullivan, to explain who saw sealed court transcripts that the registry accidentally gave to Mr. Sullivan.

“The defence and the court are entitled to know who had access to the transcripts,” she said.

Outside court, Michael Bolton, who represents Dave Basi, said he was pleased with the split rulings and that the judge left a way open to pursue the documents.

“We obviously need to address certain gaps in the evidence and we have to go about sorting out how we do this,” said Mr. Bolton.

“The defence continues to view Mr. Kinsella as a key figure. . .his evidence and his documents will be required. . .[and] we'll be back on this for sure,” said Mr. Bolton.

{Snip} ...

Mark Hume"s complete column HERE.

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Judge dismisses defence application for records of Liberal insider Kinsella

Neal Hall
Vancouver Sun - September 15, 2009

In her last ruling as the long-sitting judge in the Basi-Virk political corruption trial, Justice Elizabeth Bennett on Monday dismissed a defence application to obtain the records of Liberal insider Patrick Kinsella.

Bennett ruled there was not enough evidence to show that Kinsella's records were relevant to the case.

She gave extensive oral reasons for her ruling, then added: "This will be the last time you'll see me on this case."

Bennett was appointed earlier this year to the B.C. Court of Appeal.

The case will resume in court Oct. 13, when a new trial judge, B.C. Supreme Court Justice Anne MacKenzie, will begin hearing pretrial motions.

Bennett has been involved in deciding defence pretrial disclosure applications since 2006. {Snip} ...

It has been almost six years since the police raided the legislature offices of Basi and Virk in December 2003.

The defence has alleged the $1-billion sale of the freight division of the railway to CN Rail was "preordained."

nhall@vancouversun.com

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