Monday, October 19, 2009


Basi Virk: Courtroom 43 October 19, 2009

The Day in Courtroom 43: Basi, Virk, and Basi, and support for an RCMP investigation of chief actors in the BC Rail Scandal.

By Robin Mathews - October 19, 2009

The prospect of working back-up tapes to recover emails at a key time of BC Rail transfer to CN Rail (specifically Sept. 03 to Feb 04 - a period of missing records), of finding in them materials relevant to the defence of the accused, of paying the $70 to $100 thousand estimated to do the work - and the delay to the start of the trial - all those things seemed to perturb the new judge on the BC Rail Scandal case - Madam Justice Anne MacKenzie.

And so she pushed the Defence counsel in the morning session. Kevin McCullough for the Defence, feeling his way, too, with a new judge, was plainly unsure how much he needed to tell her in argument for an order of disclosure and how much she already knew.

The day was taken up with discussion and argument concerning the application for disclosure of materials not yet available from BC Rail in regard to the "sale" and the (often) high officials involved in negotiations.

McCullough laid out a careful view from Defence of the trajectory moving from the 2001 election promise not to sell BC Rail, to the so-called "core review" conducted by the Campbell government which put the sale on the agenda, to the 2003 "decision" to sell the Railway, to the 2004 - and after - sale of the asset, the charges against the three accused, the allegation that they were "targetted", and pointers to evidence that the men were under orders and in a culture of complete intention to offload BC Rail and to offload it to CN Rail from very, very early.

McCullough argued the decision to sell to CN was very early. He reminded the judge that Gary Collins was under investigation (2003)- Madam Justice MacKenzie questioned the word, and he maintained that was the status. He mentioned more than once that the withdrawal from investigation of Collins was without a trace of record. McCullough asserted that there must be record of that somewhere. He mentioned that police briefing notes contained mention of the Roberts Bank as "consolation prize" for OmniTRAX staying in the bidding to keep the appearance of a real auction. He reminded the court that a wiretap revealed Dave Basi calling Bobby Virk to tell him "the minister" had authorized a consolation prize.

He went on to remind the court that a few months after the search warrant raids on the legislature offices the government cancelled the sale of Roberts Bank spur line. They had learned, he alleged, from RCMP that the process was tainted. Since the sale of Roberts Bank was a part of the whole sale package, McCullough asked how it was possible that the government did not also cancel the sale of BC Rail as part of a generally soiled process.

He went on to say that Bobby Virk denies ALL allegations against him in charges. McCullough said Virk could not have been defrauding the government if he was following government orders. And he reminded the court that the accused were all, in fact, employees of Gordon Campbell who assigned them to ministers.

To those who have read my letter to Deputy Commissioner Gary Bass requesting full investigation of the major, senior people involved in the "sale" of BC Rail (up to and including Gordon Campbell) to discover if they were involved in legally improper activity, Defence counsel today - as far as I am concerned - underscored, reinforced, and provided additional reason why my request is solid and cannot be ignored or denied by the RCMP.

McCullough pointed out that the documents already received from BC Rail have been key to the development of evidentiary material, and that the remaining ones, therefore, are likely to have the same force.

Once again the right of the Defence to ask for materials without evidence of their existence was argued - the O'Connor decision and others again brought forward to validate the claim that Defence cannot present evidence when its application is to seek the evidence it is being asked to present to make the application valid. And Madam Justice Anne MacKenzie more that once declared she was making her own decisions and would not depend on previous decisions on parallel applications made by Madam Justice Elizabeth Bennett. Her remarks did not suggest strong continuity in the process. But perhaps she was merely making clear that she was wholly independent in her relation to the matters before her.

She suggested that costs of retrieval might figure in acceptance or rejection of the present application, and McCullough for the Defence made very clear that such a consideration has not entered before, though all were aware of the cost factor.

The matters were argued, repeated, gone over - the case presented by the Defence challenged and restated in the afternoon, suggesting a determination by Defence to have clearly on the record the claim of legitimacy for its application. For instance, McCullough showed, by reading key emails concerning BC Rail's connection to major decisions, that before the missing emails and after them, BC Rail transactions were of key importance to the Defence. Madam Justice Anne MacKenzie said that she was not sure that what he had said made credible the need to recover the lost emails between....

Alone in the gallery in the afternoon, I began to get a head ache, slept a little for the first time since covering the hearings, and felt liberated when it was time to close for the day. Tomorrow argument continues for an order to try to recover the lost BC Rail emails. Madam Justice Anne MacKenzie's decision will tell much about the way the wind is blowing in her role as presiding judge. To me, the argument of Defence was solid, and the potential importance of the lost emails almost beyond question.

She may have other ideas....

Tune in to courtroom 43 tomorrow.


Tune in to courtroom 43 tomorrow..... yeah, why isn't it being broadcast.
Robin said:

"He (Defense counsel McCullough) reminded the court that a wiretap revealed Dave Basi calling Bobby Virk to tell him "the minister" had authorized a consolation prize."

Has anyone heard that wiretap (or seen a transcript)?


"59. Is it true that in November 2003, Dave Basi advised OmniTRAX that the then-Minister of Finance had authorized a consolation prize for OmniTRAX in exchange for that company staying in the bidding process?"

"Mr. McCullough said Dave Basi and Mr. Virk set up a meeting between OmniTRAX and Mr. Collins, at which police suspected a "consolation prize" would be offered to keep the U.S. rail company in the bidding." Mark Hume


Does the wiretap still exist or like Air India, the spies within government and government employees, have destroyed the evidence. We need confirmation from the Courts, or as RossK says "Has anyone heard that wiretap?"
Anonymous 6:49,

Please, oh please don't ask me to find it for you amongst the thousands of pages which have been disclosed so far, in this case ...

but ...

I do recall, from the distant mists of way-back-when, reading from an official transcript about this.

About the same time (I think) that the transcript was made public, revealing Dave Basi and Gary Collins discussing how to "rip a new a**hole" for the Mayor of Squamish if she continued to speak out against the sale of BC Rail.
P.S., 6:49:

I have no idea whether or not the wire-tap transcript still exists (I would imagine it does!) ...

or, for that matter, how we would go about accessing it ... when -- if we could ID it ourselves -- we could probably find it ourselves. Right?

But you raise an interesting question: where are all these records now? who's looking after them now?

... and can we expect any more efficiency than we're seeing with the daily court listings??
Thanks to Robin for putting so much time and energy into attending and reporting on these endless courtroom days. Unbelievable that we would otherwise know so little.
To Anonymous 7:13,

YES to that, what you just said.

I hope that Robin Mathews writes one of the books about the functions of the law and of government, as revealed in the tragedy of BC Rail.

Thanks to you, too, for what you just said.
RossK asked first
Management Order, Destruction Order APP(Rsn) REG(Rm) 02:00 PM

73008-2 All the rest same as the above.

Wonder what the applications for management and destruction are for...and of what?


And thanks for the links - I'll go digging....think it might have something to do with a 'breaking-bread' session?

I must wonder what the judge must have thought, seeing Robin fall asleep at what must have been tedious-if-frustrating proceedings....I also wonder what might have been said while he was asleep (especially if Crown counsel had noticed he was asleep....)

Clever, clever Robin ... I wouldn't be the least bit surprised to find out (some day in the future) that he had only wanted to LOOK as if sleeping ...

and that he had one eye open, all the time.

To Leah at 8:50,

Just a reminder ... if you're referring to Basi, Virk, Basi

their File No. is #23299.

But you raise a good question ... does anybody know the answer?

Meantime, I have checked the Court listings at 6:20, 6:40, 7:00, 7:30, and 9:30 AM today and there's still no "correction" ... i.e., no sign of Basi Virk there for today.

But I still think that File #23299 IS in court today ...

... strange doggone world, isn't it?
Re: The Wiretap:

Mary has the story, from Mark Hume, archived here.

Here's the money quote form Mr. Hume:

...(Defense lawyer) McCullough said Dave Basi and Mr. Virk set up a meeting between OmniTRAX and Mr. Collins, at which police suspected a "consolation prize" would be offered to keep the U.S. rail company in the bidding.

Mr. McCullough read a wiretap excerpt (in open court) in which Mr. Basi told Jamie Elmhirst, a lobbyist for OmniTRAX and a member of Pilothouse Public Affairs: "I talked to my boss this morning . . . my boss said emphatically he will ensure they have a consolation prize.""

Imagine that!

Of course, this is Mr. Elmhirst, not Mr. Virk as originally, but in my opinion this is actually a bigger story this way given Mr. Elmhirst's fine friends and most excellent associates.

What was/is, the consolation prize?
Roberts Bank.

Some have dubbed it the 'Quid Pro Quo'

This stuff gets to the heart of the matter.


Because, if true, it smacks of collusion and fraud to fix a process, with malice aforethought, that was supposed to be about open bidding (don't forget CP Rail pulled out because it perceived that the fix was in for CNR from the beginning).


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