IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

R. v. Basi,

 

2009 BCSC 907

Date: 20090630

Docket: 23299

Registry: Vancouver

Regina

v.

Udhe Singh (Dave) Basi, Bobby Singh Virk
& Aneal Basi

Before: The Honourable Madam Justice Bennett

Oral Reasons for Judgment

In Chambers
June 30, 2009

Counsel for the Crown

W. Berardino,Q.C.,

J. Winteringham, Q.C.

& A. Mackay

 

Counsel for the Accused, Dave Basi

M. Bolton, Q.C.

& C. Hatcher

 

Counsel for the Accused, Bobby Virk

K.G. McCullough

Counsel for the Accused, Aneal Basi

J. Doyle

& E. Dance

 

Counsel for the Government Caucus:

E.L. Montague

Counsel for Gary Collins:

C. Roberts

Place of Hearing:

Vancouver, B.C.


[1]              THE COURT:  This is an application for disclosure of third party records commonly known as an O'Connor application.  The accused are charged with corruption, fraud and money laundering arising from the divestiture of the British Columbia Rail Company in 2003 - 2004.

[2]              Several third party applications are pending.  This particular application relates to a request for the emails of a number of members of the Legislative Assembly, both former and current. 

[3]              The records of the following were sought:  Pat Bell, Bill Belsey, Harry Bloy, Shirley Bond, Gordon Campbell, Christy Clark, Walt Cobb, Rich Coleman, Gary Collins, Roger Harris, Kevin Krueger, Blair Lekstrom, Dennis MacKay, Karn Manhas, Paul Nettleton, Richard Neufeld and Judith Reid.  Added to the application part way through, with the consent of counsel, is Kevin Falcon. 

[4]              A number of those named were or are also Cabinet Ministers.  The records of the Executive Cabinet are sought in another application and will not be dealt with here.

[5]              The application against Mr. Bloy is dismissed by consent.  Counsel agreed that there was no foundation to seek his records.  Mr. Manhas and Mr. Nettleton have consented to their records being disclosed. 

[6]              Everyone else was represented by counsel except Ms. Clark, although she was duly served.  She also did not appear on the application.

[7]              The defence brought a very broad application.  The application was limited in argument to emails and, in one instant, tickets.  However, it is necessary to set out the application in order to address all of the issues raised in it.  The application states:

That all records, documents and information, including information in electronic form (collectively, the "Records") held in any office, storage facility or repository by or on behalf of:

a.         the listed Members of the Legislative Assembly including the Premier and the listed Cabinet Ministers; and

b.         all Caucus committees from June 5, 2001 to the present day.

Which relate to:

(i)         the divestiture of B.C. Rail Freight Division (hereinafter "B.C. Rail") and the proposed divestiture of the Robert's Bank Port Subdivision (hereinafter, "Robert's Bank") and the bidding processes related to same, including but not limited to the B.C. Rail Steering Committee and the B.C. Rail Evaluation Committee;

(ii)        the selection of, and duties assigned to, Legislative Assistants and in particular all Records relating to efforts of Legislative Assistants to influence public opinion through the media with regard to the provincial government, policies or initiatives;

(iii)       the strategy, policy, and any related decision-making pertaining to the influencing, gauging or monitoring of public opinion through media and other public forums;

(iv)       public opinion polling and reports, including by the B.C. Liberal Party, which pertain to public opinion on transportation, finance and budget surplus and deficit issues, and further included but not limited to the divestiture of B.C. Rail and the balancing of the Provincial Government budget;

(v)        the provision by the Provincial Government to Members of the Legislative Assembly (hereinafter, "MLAs") and their staff of cellular telephones, blackberries, computers, or other personal digital assistants, email accounts and other communication devices;

(vi)       the provision by the B.C. Liberal Party to MLAs who are elected representatives of the B.C. Liberal Party of cellular telephones, blackberries, computers, or other personal digital assistants, email accounts and other communication devices;

(vii)      any communications between MLAs and their staff and lobbyists Brian Kieran, Erik Bornmann, and Jamie Elmhirst, their companies including but not limited to Pilothouse, Kieran Consulting, Pacific Public Affairs, K&E Consulting and their respective staff;

(viii)     the acceptance or receipt of any gift or benefit by an MLA including but not limited to:

(1)        Vancouver Canucks tickets or seating in private boxes;

(2)        B.C. Lions tickets or seating in private boxes;

(3)        the use of any facilities at General Motors Place;

(4)        tickets or admittance to the Cirque de Soleil; and

(5)        Famous Players "Big Card".

be produced to this Honourable Court for review pursuant to the procedure set out in R. v. O'Connor, [1995] 4 S.C.R. 411 (S.C.C.).

That is the end of the application. 

[8]              The application in relation to Mr. Falcon is very similar in content.

LAW

[9]              The procedure for the production of third party records in criminal cases is established in R. v. O'Connor, [1995] 4 S.C.R. 411, 130 D.L.R. (4th) 235.  This procedure was statutorily altered for records sought in criminal offences by Bill C-46 and the introduction of s. 278.2 of the Criminal Code, R.S.C. 1985, c. C-46.  However, it is accepted that for non-sexual offences the O'Connor procedure is still the proper procedure to apply.  Indeed, this procedure was affirmed in R. v. McNeil, 2009 SCC 3, 301 D.L.R. (4th) 1.

[10]          In O'Connor, the Court made it clear that it was not establishing a procedure that would “unduly restrict an accused's ability to access information which may be necessary ... [to make] full answer and defence.”  (para. 18).  The Court also recognized that third parties have no obligation to assist the defence.  However, I add that in this case a number of the third parties have been very cooperative with the defence.

[11]          We are presently at the first stage of the O'Connor application in which the defence must satisfy me that the information sought is likely relevant.  The Court in O'Connor, and affirmed in McNeil, made it clear that while the onus is on the defence to establish likely relevance, this onus is not an evidential burden requiring evidence in a voir dire in every case.  The initial threshold to provide a basis for production can be satisfied by oral submissions of counsel.  The Court pointed out that the accused is in a poor position to call evidence when he has not seen the records.  The factual foundation for this case was set out in the Reasons for Judgment of June 4, 2007, 2007 BCSC 788.  Counsel received copies of those Reasons as part of this application.

[12]          The Court in O’Connor, went further and said that viva voce evidence and a voir dire may be required in situations in which the presiding judge cannot resolve the matter on the basis of the submissions of counsel.

[13]          However, the Court also said in O’Connor at para. 20 that there must be a formal written application and a supporting affidavit; notice must be given to the third parties and the record holder; additionally, the record holder must be given a subpoena in order that the records may be produced to the Court.

[14]          Before proceeding further, I wish to address some of the issues raised with respect to this procedure.  I will deal with the question of the subpoena first.  The record holder for the Speakers and for the MLAs is the Speaker of the House and the Clerk of the House with respect to some of the documents.  The MLAs themselves will be the holder of a number of the emails.  There are potentially many.  I was informed that it would take a significant amount of time to recover the emails of the MLAs who are involved in this application.  In fact, it would take days or possibly weeks to recover the documents, if they still exist.  The latter part relating to the existence of the documents I will address another day.  As a result, I did not require that the Speaker or Clerk, or other record holders, search for the records and bring them to court until a finding of likely relevance was made.

[15]          The Speaker and the Clerk have also indicated that they will cooperate with any order for production to me.  Further, the MLAs who are represented have all agreed not to assert to me any form of privilege at this stage of production, but reserve the right to raise it at the second stage. 

[16]          As the onus rests with the person who wishes to raise privilege, I conclude that by not participating in these proceedings Ms. Clark is also not asserting privilege.

[17]          The reasons I gave on March 12, 2009, R v. Basi, 2009 BCSC 756, I set out a framework for this application to proceed.  I reviewed the process as set out in McNeil, and at para. 19, I said the following:

The O'Connor process must be followed in that extensive third party records are shortly going to be engaged in this case.  A proper process is necessary for an orderly progression of the application.  The defence have filed a broadbased application, but no supporting affidavit demonstrating why the documents are likely relevant.  While some of the requests may seem obvious to me, they are not all obvious.  Further, they will not necessarily be obvious to the third party who holds the record or who is targeted as the subject of the record.  For example, the defence want access to cellphone records which may show contact between MLAs and Pilothouse lobbyists in relation to the sale of BC Rail.  I am told by counsel that they know that such contact occurred.  This is the kind of information that should appear in a supporting affidavit and an indication of why it is relevant.  The application needs to be served on the Crown, anyone whose interest is apparent, and a subpoena needs to be served on the record holder.

[18]          The defence have filed a book of materials and have made oral submissions relating to likely relevance.  They did not file an affidavit.  The material they filed came primarily from Crown disclosure, BC Rail documents and a Freedom of Information and Protection of Privacy Act, R.S.B.C. 1996, c. 165, request.  These documents are well known to the Court and there has seemed little point in asking support staff to swear an affidavit setting out where the documents came from. 

[19]          However, there were also submissions in relation to what the defence will be and what the accused will say about the defence.  This case is unusual as two of the accused were in the middle of the BC Rail transaction, and at least Mr. Virk had previous access to many of the documents that he has since received.  Unlike most accused seeking third party record documents, Mr. Virk has seen some of the documents he seeks and is in a better position to file an affidavit than the accused who has absolutely no idea what the content of the documents will be.  On the other hand, it would be very unusual, I think, to require an accused to file an affidavit in a pre-trial application that addresses the content of the defence.  Certainly in an application where prejudice must be shown, the accused's affidavit is common.  However, here the accused would be expected to file an affidavit under oath which could potentially be utilized to his disadvantage.  There may be cases where the only way likely relevance can be established is through the accused's affidavit, and that is the risk an accused would have to assume in order to obtain records.

[20]          The defence here says that if I find I need an affidavit, they should be given an opportunity to produce one given the words in O'Connor that oral submissions will usually suffice.  However, O'Connor also says that supporting material should be accompanied by an affidavit.  On March 12, I indicated that I expected affidavit material to be filed.  The application requires an affidavit.  The defence has had the opportunity to provide one and has chosen not to do so.  The case will be determined on the material that has been filed before me.

[21]          I return to the procedure in O'Connor.  The Court made it clear that there is no balancing of privacy rights at the first stage of the proceeding.  The first stage is solely concerned with “whether the right to make full and answer defence is implicated by information contained in the records” (para. 21).

[22]          The Court in O’Connor defined information as relevant if it was "logically probative to an issue at trial or the competence of a witness to testify" (para. 22).  This also includes the credibility of witnesses and the reliability of the evidence.  The onus is a low one.  The accused do not have to show the specific use to which the information might be put, and this principle was reiterated in McNeil.

[23]          The purpose of the relevance test is to "prevent the defence from engaging in ‘speculative, fanciful, disruptive, unmeritorious, obstructive and time-consuming’ requests for production.  See Chaplin ... at p. 744” (para. 24). 

[24]          I add the comments of McLachlin J., as she then was, albeit in dissent, at para. 194:

Perfect justice in the eyes of the accused might suggest that an accused person should be shown every scintilla of information which might possibly be useful to his defence.  From the accused's perspective, the catalogue would include not only information touching on the events at issue, but anything that might conceivably be used in cross-examination to discredit or shake a Crown witness.  When other perspectives are considered, however, the picture changes.  The need for a system of justice which is workable, affordable and expeditious; the danger of diverting the jury from the true issues; and the privacy interests of those who find themselves caught up in the justice system -- all these point to a more realistic standard of disclosure consistent with fundamental fairness.  That, and nothing more, is what the law requires.

Or as Mr. Justice La Forest said in R. v. Lyons, [1987] 2 S.C.R. 309, 44 D.L.R. (4th) 193, the accused is entitled to “a fair hearing; ... not ... the most favourable procedures that could possibly be imagined" (at 362).

[25]          I turn next to the indictment.  The first six counts are what I will refer to as corruption offences contained in s. 121 of the Criminal Code.  In these counts, the accused are charged with essentially accepting "rewards, advantages and benefits", being “money, meals, travel and employment opportunities” in connection with “matters of government business including a bid by OmniTRAX Inc. to obtain the operating rights of BC Rail”.  Two counts are corruption/fraud offences alleging that they each as a government official disclosed confidential government documents relating to the sale of the BC Rail Freight Division, contrary to s. 122 of the Criminal Code.

[26]          The first six counts, as I understand the allegations, relate to the relationship of Mr. Basi and Mr. Virk with lobbyists from Pilothouse and, in particular, Eric Bornmann, Brian Kieran and Jamie Elmhirst.  It is alleged that both Mr. Basi and Mr. Virk accepted a trip to Denver, Colorado, to watch a football game paid by OmniTRAX Inc.  Pilothouse was the lobbyist on behalf of OmniTRAX for its bid for the BC Rail Freight Division.  Further, that Mr. Bornmann offered to obtain them two jobs with the Federal Liberal Party if they helped OmniTRAX. 

[27]          The defence contends that the bidding process was rigged and that CN Rail was always going to win the bid.  Indeed, letters from other proponents raised this issue.  The defence say that Mr. Basi and Mr. Virk were instructed by their "political masters" to ensure that OmniTRAX stayed in the bidding process as a stalking horse and to give the bid credibility. 

[28]          Further, they submit that part of this process was the agreement by then Finance Minister Collins to award a consolation prize to OmniTRAX, and that was the Roberts Bank Port Subdivision of BC Rail, which was also going up for sale. 

[29]          The defence further says that the sale of BC Rail was a broken election promise that the government undertook in order to balance the budget. 

[30]          The defendants seek records of gifts that other MLAs and staff have accepted in order to establish what the "general practice" was of the government officials.

[31]          The s. 122 offences allege that Mr. Basi and Mr. Virk gave the lobbyists at Pilothouse confidential information regarding the bidding process and the divestiture of BC Rail generally.  There is an allegation that money was exchanged and that Aneal Basi, the third person charged in these proceedings, helped launder the proceeds of this arrangement.  He is charged in Counts 11 and 12. 

[32]          Having set that out, the indictment particularizes little of this and is a fairly general allegation of misconduct.

[33]          Counts 9 and 10 are directed at both Mr. Basi and Mr. Virk and are broad allegations of fraud which spawn most of the third party record and freedom of information disclosure requests.  They are charged with defrauding CN Railway, Canadian Pacific Railway, CIBC World Markets Inc., and the government of British Columbia by “recklessly putting at risk the bidding process for the Freight Division of BC Rail in disclosing to interested third parties confidential government documents and confidential government information including Cabinet confidences”.  The same charge is made with respect to the bidding process for the Port Subdivision.  Here the alleged victims are Macquarie North Ltd. and OmniTRAX; a consortium of CN Rail, CP Rail and the Vancouver Port Authority; TD Securities Inc.; and the Government of British Columbia. 

[34]          As is patently obvious, anything relating to the issue of the disclosure of confidential information to Pilothouse or the three lobbyists will be likely relevant and, indeed, the Crown properly conceded that this was the case.  The Crown has suggested limitations to this relief and I will address that submission when I summarize the relief granted.

[35]          In the material, the defence showed that a number of email accounts were assigned to MLAs depending on their position.  For example, there is an "MLA" account that the general public may access.  There is also a "LEG" account.  The MLAs also use blackberries to send emails.  Further, there is an email where Premier Campbell's assistant is responding to a constituent using his MLA email account.  I frankly see that as a sensible business practice by the Premier.

[36]          The fact that MLAs have more than one email account does not make the content of those accounts likely relevant. 

[37]          Having said that, there is a foundation to support likely relevance with respect to some of the email accounts.  On the material filed, the MLAs that formed the Northern Caucus have exchanges regarding BC Rail that are likely relevant.  This Caucus was very involved in the transaction and the sale was very important to them.  Some were clearly lobbied by Pilothouse.  I am satisfied that if the MLAs that form the Northern Caucus have emails relating to the divestiture of BC Rail and contact with Pilothouse and three lobbyists, those records are likely relevant.  These MLAs are Pat Bell, Roger Harris, Blair Lekstrom, Shirley Bond, Walt Cobb, Dennis MacKay, Paul Nettleton and Richard Neufeld.  I also include the emails of John Brett who was the Legislative Assistant to Mr. Harris.  There is material indicating that he was using his email account to communicate with others on the BC Rail issue. 

[38]          Similarly, emails in relation to the BC Rail transaction of Minister Gary Collins and Minister Judith Reid are likely relevant.  Minister Collins met with members of OmniTRAX in 2003 while under surveillance by the police.

[39]          The defence also submitted that emails of Premier Campbell are key to their defence.  However, I am not satisfied in this application that the Premier has emails that will shed any light on this case.  Further issues are raised in the application for the records of the Executive Cabinet and I will deal with those in the reasons relating to that application.  However, the fact that Premier Campbell had more than one email account and was clearly involved in the sale of BC Rail does not mean that his emails are likely relevant to the defence and I am not satisfied on the O'Connor test that they are likely relevant.

[40]          Also raised is the participation of Mr. Coleman and his Assistant Deputy Minister in relation to the search of the Legislature.  While some of these records relate to Mr. Coleman in his capacity as the Solicitor General, I am satisfied, based on the material before me, that any email record Mr. Coleman or Mr. Begg have in relation to the search of the Legislature is likely relevant and will be produced to me.  The time frame for those emails will be December 1, 2003 to December 30, 2003.  Further, there is evidence that Mr. Coleman was being lobbied by Pilothouse as well, and perhaps was given a benefit in the form of Famous Player tickets.  However, that is a tenuous inference to draw with respect to him receiving a benefit.

[41]          There is further documentation between Eric Bornmann and Brian Kieran which suggests that they had detailed information from a Cabinet meeting which neither Mr. Basi or Mr. Virk attended.  This further strengthens the position of the defence with respect to any email communication with Pilothouse.  Additionally, there is some evidence that Mr. Bornmann was in conversations with Deputy Premier Christy Clark at around the same time.  It is clear that any emails between Deputy Premier Christy Clark and Pilothouse are likely relevant.

[42]          That concludes the documents over which I am satisfied that the defence has met the low threshold of likely relevance.  I will now review the entirety of the application and state where the deficiencies lie and state the relief granted.

[43]          In summary: Any records held by all of the MLAs or the Clerk or the Speaker, including Mr. Falcon and Mr. Campbell, but excluding Mr. Bloy, that relate to communication with Brian Kieran, Eric Bornmann, Jamie Elmhirst, Pilothouse, Kieran Consulting, Pacific Public Affairs, K&E Consulting, on any subject are likely relevant.  To confirm, Mr. Campbell is not exempt from that order.  Any communication with Legislative Assistant John Brett in relation to Pilothouse (and Bornmann, Kieran and Elmhirst) are likely relevant.  There is also material that the Legislative Assistant to Mr. Krueger and Mr. Bell also had contact with Pilothouse.  I believe that person is Mr. Steve Phallo as his name is recorded on a Pilothouse receipt as being the assistant to Mr. Bell.  If these are two different individuals, both of their emails in relation to the lobbyists are likely relevant and will be produced to me.  There are Pilothouse receipts indicating that this individual was taken out for dinner by one or more of the lobbyists.

[44]          There is no evidence that any other staff members engaged in discussions with Pilothouse in this application.  This aspect of the application is dismissed.

[45]          The applications are for emails from June 5, 2001, to the present date; there is nothing to support this broad request and it amounts to nothing more than a fishing expedition.  The time frame on the indictment commences April, 2002, and the Port Subdivision issue and the sale to CN Rail was resolved in 2004.  Therefore, the relevant time frame to give some parameters for the emails, save and except the emails relating to the search of the Legislature, will be January 1, 2002, to December 31, 2004.  This covers three years of email correspondence and the term of the indictment, plus the essential time frame of the Port Subdivision sale and the completion of the BC Rail sale to CN Rail.

[46]          Therefore, with respect to the relief sought:

1(i)       is granted with respect to the Northern Caucus, Minister Collins, Minister Reid and Deputy Premier Clark;

1(ii)      is dismissed.  There is no material to support this request;

1(iii)     is dismissed.  There is no material to support this category of records as likely relevant;

1(iv)     is dismissed.  There is no material to support this category of records as likely relevant;

1(v)      Mr. Izard has already answered this question to the extent necessary.

1(vi)     This request is frankly further fishing for records.  There comes a point in time when a request for information must end. 

1(vii)    is granted with respect to all of the MLAs except Mr. Bloy.  Further, any emails of John Brett, Steve Phallo and the assistant to Pat Bell and Kevin Krueger (if someone different) relating to Pilothouse and the lobbyists, they are also likely relevant.

1(viii)   the only evidential link, and it is tenuous, to MLAs receiving the type of tickets listed in this part of the application is Mr. Coleman and Famous Player Theatre.  The defence submitted that the acceptance of tickets would demonstrate the “general business practice” of the government.  Frankly, I am not entirely sure how that assists the defence given the state of law in the field of corruption.  Additionally, if such a gift was made and is relevant, it was made through Pilothouse and would be captured on any Pilothouse emails.  Therefore, this request is also dismissed.

“E. Bennett J.”                                    

________________________________

                                                The Honourable Madam Justice Bennett