Tuesday, June 23, 2009


Missing files leave lawyers for Basi, Virk in disbelief

‘At the moment, our view is that these must be recoverable,' attorney says

Mark Hume
The Globe and Mail - June 23, 2009

Vancouver — The loss of thousands of cabinet and executive branch e-mails concerning the biggest privatization deal in British Columbia's history is so shocking that defence lawyers in a politically charged trial still can't believe it has happened.

Both inside and outside the Supreme Court of B.C. yesterday, lawyers were expressing disbelief that e-mails from 2001 to 2005 related to the $1-billion sale of BC Rail could have been purged from the government's data system while a trial concerning the deal was before the courts.

“At the moment, our view is that these must be recoverable,” said Michael Bolton, who, together with other defence attorneys, has sent a letter to the government's lawyer asking for a detailed explanation of how a data search was done.

“We don't accept at face value that these things have been lost … because e-mails are recoverable as long as there are backup or storage tapes,” Mr. Bolton said.

Court was told on Monday that e-mails being sought by the lawyers defending three former provincial employees – Dave Basi, Bob Virk and Aneal Basi – are not recoverable because the government doesn't keep electronic backup tapes more than 13 months.

Wiped out, according to George Copley, a lawyer representing the B.C. Executive Council, are four years of tapes covering the crucial period when the government negotiated the sale of BC Rail to CN Rail.

Mr. Copley filed affidavits from government officials saying none of the e-mails can be recovered.

That would mean possibly tens of thousands of e-mails sent to and from those at the top executive level of the B.C. government have vanished, leaving a gaping hole in the official record of the BC Rail deal.

Mr. Bolton said it would be premature to speculate on how that might affect the trial, but he did say that other cases have collapsed when it was found important evidence had been destroyed.

“It's a serious matter if evidence that ought to have been preserved, that is relevant and material, has been allowed to disappear,” he said.

Mr. Bolton said at issue are the e-mail records of “15 or 20 key individuals – all witnesses in the case,” including Premier Gordon Campbell and his closest staff members.

Dave Basi and Mr. Virk are accused of leaking details about the pending rail deal to a Victoria lobbying firm that was representing a rival bidder to CN Rail.

But the defence is arguing the accused men were acting on the orders of their superiors – and they maintain the e-mails could prove that.

Kevin McCullough, who represents Mr. Virk, told court almost all the government information is in e-mail traffic.

“In the time period … we were fully engaged … in the electronic age, where e-mails really are the way individuals communicate. … The days of faxing [a document] or even mailing it were dead,” he said.

Mr. McCullough said there clearly was extensive e-mail traffic surrounding the deal, and he referred to a statement that David Morhart, an assistant deputy minister on the BC Rail evaluation committee, gave to the RCMP in 2004.

“I'm one that saves all my e-mail files. So there's some 2,000 documents there if you ever want them,” Mr. Morhart told police.

Those e-mails, however, are among the files the government says it can't recover.

Mr. Campbell said he wouldn't comment on the deleted e-mails because the case is before the courts.

“I'm not going to be talking about that,” Mr. Campbell told reporters.

He said the government has rules for storage of important documents, such as e-mail.

“The records that should be kept under the law, have been kept,” he said.

Court has not yet heard how and why the e-mails vanished from the government record.

With reports from David Ebner and Justine Hunter

See Mark Hume's article HERE.

And "Comments" to the article as follows:

Many thanks, Mark, for another excellent report from the Basi Virk / BC Rail courtroom.

It would be great if you'd write about the pivotal date - July 14, 2009 - when further outrages may be perpetrated upon British Columbians.

The Campbell Government lost a railway (Canada's 3rd largest railway, in fact) and who knows, maybe the signed agreement(s) have been "lost", too. God knows, nobody has seen the agreement(s). They're secret. Imagine.

But rumour has it that certain additional benefits are triggered on the 5th anniversary of the deal(s), namely, on July 14, 2009.

For one thing, rumour has it that there's a re-possession clause. Re-possession for cause ... and that CN is in default on at least one such clause (promise to buy 600 new railcars).

Rumour has it that BC Rail lands between North Vancouver and Squamish will be transferred to CN ownership for one lousy dollar. Yeah,$1.00

So I ask you, Mark: do you think it's legal to be giving away Crown assets under a deal we've never seen?

[Reprinted here, in hopes of encouraging others to write, write, write in support of BC RAIL DAY and justice for British Columbians. - BC Mary]

Missing Mails Crucial to Corruption Trial Involving Indo-Canadians

South Asian Observer - June 24, 2009
The First Online South Asian News Source in Canada

Vancouver - Three Indo-Canadians facing corruption trial concerning the biggest privatization deal in British Columbia's history, could have their case weakened considerably for the loss of thousands of cabinet and executive branch e-mails.

The defence lawyers for the three former provincial employees – Dave Basi, Bob Virk and Aneal Basi, in fact, believe the thousands of emails would have cleared their client in the case relating to the $1-billion sale of BC Rail. The e-mails could prove that the accused men were acting on the orders of their superiors, the defence maintains.

The leaked information actually came from inside cabinet because neither Basi nor Virk attended meetings where crucial information about the railway would have been discussed, according to the lawyer.

Basi was the ministerial assistant to then Finance Minister Gary Collins and Bob Virk was the ministerial assistant to then Transportation Minister Judith Reid in 2003 when the RCMP and Victoria police raided their offices in the B.C. legislature and seized documents relating to the privatization of the British Columbia Railway Co. Both were accused of leaking details about the pending rail deal to a Victoria lobbying firm that was representing a rival bidder to CN Rail. CN Rail eventually acquired BC Rail in 2003 for $1 billion.

{Snip} ...

See the full article HERE.


why would the defence be so concerned about the 'missing' e-mails? Is it not in their favour, if this causes the case to fold?

Anonymous 8:57,

Sometimes my head hurts trying to figure out what people mean ...

the way I see it (just guessing here) is that Basi, Virk, Basi would like to have the clear evidence if it proves they were following orders at all times ...

and not have to walk away from a dismissal with the big black clouds of suspicion left hanging over them.

Meantime, would you do me a favour and write a nice polite letter to the BC premier asking to see a copy of the BC Rail deal?

We really need to see that thing before anything more is given away.

Another great article here on Opinion 250.

Does anyone have any idea about the emails newer than 2005? Want to bet they are still around.

There is a huge building east of Vancouver that stores tons of documents, papers and such. If stuff gets trashed within the period of time covered by regulations why have large storage buildings for dead storage?
Dear Mr. Krog,

As a citizen of this Province whose concern level has now become "extreme" - I am writing to you in what is probably our last hope, to respectfully ask that you request an injunction in BC Supreme Court, against any further transfer of assets of BC Rail to CN Rail, until such time as Gordon Campbell produces ALL documents related to this incident. And that those documents must prove beyond doubt that nothing illegal took place, or will take place, in the future.

I request this be done immediately as July 14, 2009 is the date rumored to be our last chance of repossession, and it's also the date of further asset transfer by way of all waterfront properties from North Vancouver to Squamish being transferred to CN Rail for the sum of one dollar. I realize Sir, that this is a "rumor", but ALL rumors are based on fact at some point - and the easiest way to put the matter to rest is to have the current government produce documents that should have been produced at the time of sale. The people of the Province owned BC Rail, we are asking nothing more than is our right to know. One might even consider it an obligation, as it relates to our future generations.

Thank you Mr. Krog, I believe my trust has not been misplaced in you.

Sent this morning at 10:07, I'm not the greatest in the word smithing department, but I hope this message has enough impact along with all the others that I'm sure your readers are sending, to actually get the ball rolling.
Excellent message Leah, if Krog doesn't pursue this he simply isn't doing his job or fulfilling his responsibility to the people of BC.

BTW, I attended a meeting last night in Kaslo re: the Glacier/Howser Creek IPP Project - there were no question over 1,000 people, mostly opposed to the project in attendence yet already today there were "estimates" of 500-700 people on the CBC. This is inexcusable because there was a representative of AXOR at the door with a goddamn clicker, counting for fire marshall purposes- so no one has to ESTIMATE.

I would expect such behavior from GlowBall but the Mother Corp CBC being just another PR firm for Gordo is too much to swallow! I personally saw and spoke to the guy recording the proceedings for CBC radio, so he could have asked the guy with the clicker. I personally was counted as almost number 900 and at least 200 more came in behind me - all seating was FULL and almost all standing room filled shoulder to shoulder (by the way the Engineering specs for capacity of the room are over 1600) with a line up across the gym down the middle of people with questions for the AXOR scammers and/or the sham EAO guys (who by the way were forced to admit that they MAY HAVE actually denied a permit to a project ONCE in their history as the "protector" of our environment) - more like the greasers of the skids for environmental exploitation and devastation in my estimation!
Koot, google Bob Keating - the CEEB reporter who was there. Holman has some stuff about him back in the early part of the decade. Dude worked for the Liberal MLA in Cranbrook, too.

{Sorry for the drift}
First, Kootcoot, your suggestion of applying for an injunction is a brilliant one.

I think Mary and Secondlook are right that the injunction must be our first priority....before all else....we need to act quickly.

Elsewhere Skookum 1 mentioned approaching Squamish First Nations about the urgent need for an injunction. Relative to this idea is an excerpt from hansard, April 21,2004, Jenny Kwan has the floor. Her questions are followed up by an equally significant one by Paul Nettleton.( I'll have to divide this comment into two posts.)

J. Kwan: On Monday of this week the Minister of Transportation told first nations that there's absolutely no threat whatsoever to aboriginal rights and title as a result of the sale of B.C. Rail to CN, but we now know from a leaked contract that publicly owned land can be converted to private land owned for CN for only $1. As we know, a first principle of land claims negotiations is that private property is not on the table.

To the Attorney General: how can first nations in this province have faith in treaty negotiations when the B.C. Rail deal explicitly contemplates the conversion of public land to private land?

Hon. G. Plant: Well, I am very proud of the fact that in the referendum campaign two years ago, the people of British Columbia said they wanted the province at the table negotiating on a basis that private property would not be expropriated, and we have kept to that principle. We will keep to that principle. We will have treaty success in British Columbia consistent with that principle. We will build certainty. We will create economic opportunities for British Columbians, because we're doing what the people of British Columbia want us to achieve at the treaty tables.

Mr. Speaker: The member for Vancouver–Mount Pleasant has a supplementary question.

J. Kwan: The Attorney General completely misses the point. That is exactly what this government is doing — converting public land to private land through the B.C. Rail deal by selling B.C. Rail for $1. The Attorney General said on the radio this morning that there is no need for the government to consult with first nations about B.C. Rail and its deal because it is, according to the government, a lease and not a sale. But according to a legal opinion provided to the Union of B.C. Indian Chiefs, the proposed transfers of land from the Crown to a private company could cause serious problems for treaty negotiations.

Will the Attorney General now admit that the government does have a legal responsibility to conduct meaningful consultations with first nations prior to the conclusion of the B.C. Rail deal?

Hon. G. Plant: Well, I always appreciate the contributions of the Union of B.C. Indian Chiefs to the discussion about the treaty process — except they're not part of the B.C. treaty process. If they would actually become part of the B.C. treaty process, we could sit down and have the successes at the tables in those parts of the province that we're having in other parts of the province.

Let me be clear. Let me be clear that B.C. Rail and the government will discharge the obligations that arise, if such obligations exist, in respect of this transaction. We know that we have the obligation to respect aboriginal rights and title and not to infringe on them, and as we move forward with this transaction, we will comply with those obligations.

Mr. Speaker: The member for Vancouver–Mount Pleasant has a further question.
J. Kwan: Court cases after court cases have established that the province has a legal obligation to consult with the first nations community. Clearly, this government has not done its homework on this deal. The Minister of Transportation is running around…


Mr. Speaker: Please, hon. members. Let us hear the question.

J. Kwan: …telling people that he's got buy-in in the deal from first nations based on their participation in the $15 million trust. We now know that that just isn't true. Not only does participation in the trust not translate into endorsement for the B.C. Rail deal, but the deal itself throws into doubt…


Mr. Speaker: Order, please.

J. Kwan: …basic questions of aboriginal title.


P. Nettleton: Further to my question from earlier this week regarding the giveaway sale of B.C. Rail and the concerns raised by the CSTC chief, Harry Pierre…. In his letter I quoted, he goes on to say: "You should be aware that despite the recent amendments to the British Columbia Railway (Revitalization) Amendment Act, 2003, or Bill 89, a change in control or a transfer of rail tenures in the absence of the adequate consultation and accommodation with CSTC members is not only vulnerable to a legal challenge but will certainly pass a defective title which would become a liability to the acquiring company."

My question is: in this government's desperation to push this deal through, no matter what, has the minister considered the consequences of defective title being passed to CN Rail and the implications not only for CN but also for the provincial government, and its cumulative effect on the people of B.C.? Let's face it: the government's B.C. Rail deal stinks. From every angle it was a bad deal when the Premier first suggested it, and it's an even worse deal now.

"has the minister considered the consequences of defective title being passed to CN Rail and the implications not only for CN but also for the provincial government, and its cumulative effect on the people of B.C.? "

Over and over again the reading of the BC Rail tea leaves certainly leaves little doubt that what we have here is "defective title".... in a myriad of ways. If the premier wants to argue otherwise, then let him produce for the public the documents ( and the e-mails) that give the exact details of this deal so the public can decide for itself.

If this deal is both defective and "before the courts", surely nothing can proceed forward....not legitimately anyway.
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