The Legislature Raids

The B.C. Liberal government has been doing "everything possible" to produce relevant e-mails from the premier, cabinet ministers, aides and officials, according the judge who presided over the long-running BC Rail corruption case.

"The work being done by the government is extremely thorough and it is clear to me that it is doing everything possible to comply with the order to produce the documents," B.C. Supreme Court Justice Elizabeth Bennett said in one of her last rulings before leaving the case to accept an appointment to the B.C. Court of Appeal.

Justice Bennett rejected a complaint from the defence that the government had failed to comply with her order to produce e-mails from the premier and about two dozen current and former ministers, staffers and public servants.

Far from agreeing with the defence, Bennett found that the government had gone to expensive and time-consuming lengths to recover the e-mails from a number of sources, including reconstituted backup tapes.

"The government, and when I say government I am referring to the executive cabinet, is still working towards compliance with the order," Bennett said in reasons rendered orally on Aug. 21 and posted in written form on the Supreme Court website late last week.

"The government is in the process of restoring and searching the remaining backup tapes," reported the judge. "All of the personal computers of those still in government have been searched.

"The keyword search being done by those who are undertaking the search is far more extensive and onerous than I had anticipated. I expect that there is no possibility that this search will not capture all of the e-mails sought from those that are available."

She also confirmed that a related search had turned up a much-sought-after trove of e-mails compiled by deputy solicitor-general David Morhart.

He was a member of the panel of officials overseeing the process that led to the de facto sale of the government-owned railway to CN Rail and saved copies of all of the e-mail traffic that came his way during the lengthy transaction.

"I'm one that saves all my e-mail files," Morhart notified the RCMP in the course of their investigation. "So there's some 2,000 documents there if you ever want them."

But as the defence advised the court earlier this year, the Morhart archive did not turn up in the roomful of evidence compiled by police in the course of an investigation that led to charges against three ex-government aides.

Hence the defence decision to seek the e-mails directly from the government via a variety of means, including applications through the court and a request for documents under the government's access-to-information legislation. The latter paid off in the case of the Morhart documents.

"Morhart saved all of his BC Rail e-mails onto a disk when he learned of the charges in this case," Justice Bennett wrote. "This disk was submitted to the ministry of transportation and has been searched, as I understand it, during the [access to information] request."

The judge also cleared up a misunderstanding about e-mail backup tapes that were supposedly destroyed during the recent provincial election campaign.

Backup tapes for the year 2004 were indeed sent out for disposal earlier this year, though not during the campaign. Happily, "none were, in fact, disposed of at this time. ... All were recovered for that period and are in the process of being restored."

Those developments will add to the hundreds of thousands of documents that have already been disclosed to the defence. If leaked, they may generate additional embarrassments for a government beset by self-inflicted troubles.

Still, gaps remain in the e-mail record. There'd be no record today of an e-mail written years ago and not saved permanently at the time. And backup tapes for the early years were routinely written over, long before this year's court order from the judge to produce them.

The defence wanted to cross-examine various witnesses on those and other concerns. Bennett ruled that she could see no good reason to do so: "It would be a complete waste of court time."

Instead she suggested that remaining technical questions could be fielded in writing, through government lawyer, George Copley. "If the defence have any more questions, he is happy to find answers to them as he has, I add parenthetically, throughout this long process."

And if that doesn't satisfy the defence? Tell it to the next judge, as Bennett pretty much indicated in rejecting a defence application for her to remain on the case. She noted that her rulings on disclosure "could not interfere with the new judge's exercise of discretion."

The new judge, Anne MacKenzie, is scheduled to be back in court today to hear another round of applications in the complex proceeding. {Snip} ...

vpalmer@shawlink.ca

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