Tuesday, October 13, 2009


The Day in Courtroom 43, Basi, Virk and Basi

By Robin Mathews
October 13, 2009

The morning began with a court packed with 15 lawyers, probably a record to date. There were three or four people during the day in the gallery.

Much of the day was spent upon a management plan for the discovery of [lost] documents, the listing and reporting of relevance among those documents, and a determination of who may see them and to what extent those who do may speak to their clients about the content.

A prime consideration is whether creators or receivers of documents are to be witnesses in the trial - because foreknowledge of other people's documents might/could influence (even unconsciously) the character of witness testimony. Added to that complication are the matters of both possible privilege and privacy matters.

In particular (as example) the materials generated in relation to Christie Clark who was at one time deputy premier and minister of education before withdrawing in late 2004 caused a good deal of discussion. Could her lawyer, Mr. Esson, see materials, (hers and others apparently) and to what extent could he share information in them with her, with others? Defence lawyers argued that Christie Clark's complex relations made the matter important. She is Mark Marrisen's wife. She is brother to Bruce Clark who was found with, it is alleged, confidential cabinet documents at the time of the Search Warrant raids in 2003. She was deputy premier, and as Defence lawyers said, is closely knit into a complex B.C. Liberal network. And she is to be a witness in the trial.

She was, Mr. Bolton for the Defence said, part of a "critical core group in this case".

Information that her lawyer might receive could - considering the complexity of relations - inadvertently flow into the wrong hands.

A column today in the Vancouver Sun, fathered very strangely by Vaughn Palmer (who never comes near the court hearings), features the ruling by Madam Justice Elizabeth Bennett on August 21, very soon before she left for the Appelate Court (and released last week on the Supreme Court website). In that ruling, Justice Bennett is almost enthusiastic about the measures being taken by the Executive Council (the Gordon Campbell cabinet) to resurrect lost or destroyed evidentiary materials. The strange coincidence of Palmer writing the column today was lost on almost no one in the court, I believe.

Madam Justice Elizabeth Bennett says there that she expects: "there is no possibility that this search will not capture all the e-mails sought from those that are available." Her faith in the Gordon Campbell group is wonderful - and warmly reassuring. Except the fact is that many emails may not be "available" because destroyed in one way or another. Madam Justice Anne MacKenzie seems of the same buoyant faith in the Gordon Campbell group as Justice Bennett, constantly challenging Mr. McCullough of the Defence about his apparent suspicion that information flowing to the lawyer for Christie Clark might inadvertently find its way elsewhere.

One began to feel - in the gallery - almost as if suspicion that the Campbell group might want anything but the absolute best for British Columbians could only come from people of mischievous and distinctly lowly mind.

The subject of back-up tapes and restoration took time in the day. And in the light of the optimism shown, the picture began (what with Madam Justice Bennett's optimism - conveyed to the public in Vaughn Palmer's column) to look bright and clear. There appear to be something like 6500 pages of MLA documents, 30,000 MLA e-mails to come; 24,000 Executive Council documents to be recovered - in a grand estimate.

And then the Defence put the Burning Queston. It is a question that I referred to earlier in the letter I wrote to RCMP Deputy Commissioner, B.C., Gary Bass What, asked Defence, is the number, or the dates covered, of evidentiary materials not recoverable? Defence wants to know what will not be available, will not be recovered? That may be a key matter to the trial, and not just because Defence made clear that the unavailable material [which it alleges RCMP did not disclose earlier when it should/might have done so] might well figure into an argument of undue delay in the proceedings.

And in my expression of the matter - put as an ordinary Canadian observing the transactions of the pre-trial events - is it possible that some materials were destroyed on purpose? Is it possible that in the welter of recoverable materials, there are some that were purposefully made unrecoverable?

That is why I said to Gary Bass RCMP Deputy Commissioner in my letter to him that the disappearance, unavailability, unrecoverability of some evidentiary material warrants - in my mind - full RCMP investigation to discover wrongdoing or proof of no wrongdoing whatever.

So far, I await the reply from RCMP Deputy Commissioner Gary Bass. But I am confident that he will reply very soon - the matter being of such importance to the credibility of the RCMP and to the pursuit of justice in the province.

Court convenes tomorrow morning to continue....

Thank you once again, Robin, for your unique report from the centre of the action. I was shocked to know that there were 15 lawyers in Courtroom 43 (and how many journalists?). Very sad, where you say that "there were 3 or 4 people during the day in the gallery" ... where were the other 4,000,000 British Columbians? Two jokes: one in your report, the other where you said privately:

As I was making my way to the court building two men were sitting on a concrete slab waiting for the bus. One said: "Are you a lawyer?" I replied: "No I am not." And as I walked on, he said "You look like one", and then good naturedly said: "No offence meant". I laughed and thanked him.

Nobody writes about the whole scene the way you do, Robin. Thank you. - BC Mary.


Contentious e-mails recovered in B.C. corruption trial

A B.C. Rail train in the North Vancouver Rail Yard November 14, 2003. The provincial government sold BC Rail, the province's railroad, to Canadian National Railway.

Forensic scientists have restored 17 of 20 backup tapes containing MLA records that may be relevant to BC Rail investigation

Mark Hume

Globe and Mail

A large amount of material relevant to the BC Rail corruption trial, thought to have been lost due to purges of government computer systems, has been recovered, the Supreme Court of British Columbia has been told.

A lawyer representing the Speaker's Office informed Madam Justice Anne MacKenzie Tuesday that extensive searches of hard drives and e-mail servers had led to the recovery of many files belonging to MLAs. {Snip} ...

Court wasn't told why the MLA e-mail records could be recovered, while the cabinet records couldn't be.

Mr. Falzon said the government is doing everything it can to respond to an order issued by the court to produce records, for 2003 and 2004, which may be relevant to the case against Dave Basi, Bob Virk and Aneal Basi. The three former government employees are charged with fraud, breach of trust and money laundering concerning the 2003 sale of BC Rail to CN Rail.

Mr. Falzon said there are two boxes now sitting in the Speaker's Office containing 30,000 pages of records that can be copied and released to the court.

Judge MacKenzie said she is satisfied the process is being done as quickly as possible.

“I'm quite confident the applications for third-party records are being resolved as expeditiously as possible by government,” she said.

“I think that if there are any loose ends to be tied up they are on their way,” said Judge MacKenzie, who on Dec. 1 expects to hear a defence motion to have the case dismissed because of unreasonable delays.

Kevin McCullough, who is defending Mr. Virk, said it still hasn't been made clear just how much government material is recoverable and how much isn't.

“You need to know what is truly and finally recoverable … the defence needs to know,” he told Judge MacKenzie.

Outside court, Michael Bolton, who represents Dave Basi, said he is encouraged a lot of the MLA material the court initially had been told was lost has now been recovered.

But he said he still has concerns about gaps in the record.

“There's obviously a considerable body of material which we're going to be receiving,” he said. “The next issue is – what's not recoverable?”

On another matter, Judge MacKenzie ruled that John Esson, a lawyer representing Christy Clark, a former deputy premier, could get copies of pretrial transcripts. Defence lawyers had objected, saying Ms. Clark could be called as a witness, but Judge Mackenzie said Mr. Esson's request was reasonable.

She said, however, he must sign an undertaking assuring the court he will not show or discuss the contents of the transcripts with Ms. Clark, to ensure that her testimony is not tainted, should she be called as a witness.


What farce!
How pathetic Canada looks.
New judge is confident? In the Government!? WTF...
I vote, on Dec.01, that this case be thrown out. Otherwise, this country will go bankrupt recovering the missing cabinets emails. And that will take another 6 years. To be told it will take another 6 years!
Take a look at Vaughn Palmer's column this morning in the Vancouver Sun.

This "farce" as you call it has been nothing but a lead up to the mother-of-all-civil cases after the defendants win by any means, specifically the lack of proper disclosure on the part of the BC Liberals. The rail line may have been sold for a billion dollars but its going to cost the taxpayers of BC that same billion to pay off the debt of a long and drawn out litigation just to preserve that Gordon Campbell's in power when the Olympics come to town.


"Defence in BC Rail case gathers ammo for expected civil action

Lawyers press for more documents, despite motion to dismiss

By Vaughn Palmer, Vancouver Sun October 14, 2009"

Oh, I forgot to mention that when you click on "Related articles" "BC Rail" for some reason Jessica McDonald comes up as well..... is that because someone at the Vancouver Sun believes she was the one that gave the order to shred evidence...
As much as I love your on the scene commentary, Robin, I'm confused by the post above. You keep referring to Justice Bennett, and I thought she was already happily ensconced in her new Sterverino and Gord created sinecure on the Appeal Court bench and safely away from the mess that is the pretend BC Rail Trial.

So who was actually pretending to be the judge today (or yesterday) in the la-la land thing that pretends to be a trial down there at Robson and Smithe.
Koot, old pal,

I just re-read Robin's column and imo he has correctly identified Madam Justice Bennett in the places where she had made the ruling (e.g., on Aug 21) all the way through.

Madam Justice MacKenzie didn't take over the trial of Basi, Virk, Basi until Oct. 13, 2009. At least, not visibly in the courtroom.

As for the pretending part, well, hmmmmm. Now that you mention it, there is a hint of smouldering sulpher and brimstone in the air at times ... and there's nobody to turn to, either ... except

HMTQ, maybe?
Is there a trend of falsily accused, brown skinned men, by this country...
I'm guessing this would fall under trade.

4 W.H.Y?!...
Anonymous 7:06,

No, there isn't "a trend of falsily accused, brown skinned men, by this country ..."

Why do you even ask this question?
As to:7:06,

In this case (Basi-Virk) we do seem to have an instance of brown skinned men being accused of crimes more likely actually committed by white men (with white hair (hi Gord), or no hair (hi "Ferret" and white women, allowed into the boys' club at least temporarily)!

White men of a certain class and connections rarely take a fall for anything in the rigged game known as the BC Justice System - I haven't noticed Kinsella, Dobell, Campbell, Collins, deJong, Coleman or John Les actually facing consequences for anything, ever! Oh yeah, that one guy (Les' replacement) actually had to give up his license - so WE could pay for his driver - and sit in the back (of the Ledge and his car) for awhile - Having to give up a cushy cabinet position and luxuriate in a back bench for a spell is the extent of "punishment" for those in the club!

Failure to register as a lobbyist - no problem

Double or triple dipping and being in extreme conflict of interest - no problem

Bald faced lies (We will not sell BC Rail - we have no plans for an HST, etc.) - no problem

Illegal land zoning/ALR scams for private profite - no problem

Make a deal with your brother to give away forest lands for, yet again, private profit and real estate speculation - with no public oversight and against the public interest - no problem

Scams galore at ICBC - no problem

Money Laundering at casinos - no problem

You need a school bus for your kids to get home from school? Now we have a problem. What's wrong with little kids Walking down the highway, what's a little slush from trucks and such, snow suits do wash and can be replaced. It's not as if a truck or car might actually run over a seven year old sharing the winter highway shoulder with a snowplow's snowbank.

Maher Arah,Mohamed Harkt,Kharda and others, plus B/V/B...all brown skinned. Racial profiing.Deemed terror suspects. Get compensated!
Anon 3:15,

That's just too silly. We have a brown-skinned Governor-General, for heaven sake.

I don't know what % of our population can lay claim to brown skin ... but you're suggesting that there's NO crime happening within the brown-skin ranks ... while acknowledging that there's crime in every other race, religion, age-group and sexual preference in the nation?

Silly. Think about this ...

of the three Accused in the Basi Virk Basi trial, and the trial of Jasmohan Singh Bains, yes, they are all brown-skinned but also yes, they are members of the same family. So who's to blame for that kind of "profiling".

Basi & Virk had pretty nice jobs when they worked for the Campbell government ... was that some kind of evil racial agenda?

It's never comfortable to begin believing that forces beyond our control are shaping our lives. But in this case, I think you should look at the bigger picture.

It's true, there are people who don't give a damn for your welfare or mine or for 98% of the BC population. But in my view that has nothing whatever to do with racial origins. In fact, anybody who tries to tell you that we're divided up into segments who must hate each other on sight - what a tool for mind-control.

Don't let it happen to you. OK?
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