The Zailo conspiracists claim the BC rail scandal may have been connected to Lindsay’s murder based on the drug investigation Project EWW and made further false allegations there were drugs in the legislature. They claim there was a huge cover up with regards to the drug investigation and it was covered up by the police and corrupt government officials just like they are now claiming is being done in Lindsay’s case. They made further claims most recently that Jas Bains was facing a new charge in 2019 of “committing an indictable offence” which is completely FALSE. JB was in court Feb/2018 to discuss an extension of the fine payment which was part of his sentencing terms from the original charge in 2003 “Conspiracy to commit an indictable offence”. [ “Mr. Bains was sentenced to nine years’ imprisonment and ordered to pay a fine of $242,170 in lieu of forfeiture. In default of payment of the fine, Mr. Bains was ordered to serve an additional three years.”] The application was granted in 2018 and a new order made. This isn’t the first time JB has been in court in regards to the hefty fine.
On Jan 25, 2019, JB was in court again to make an application to “change to court order” and fix a date for “review of sentence/disposition”. JB will appear in court again Nov/2019.
The sheer volume of inaccurate information and false allegations these people consistently post on social media is astounding.
The following document “Interrelated Police Investigations and Disclosure” should help the conspiracists understand what actually happened during the drug investigation. There were four investigations that morphed from the original drug investigation Project EWW. There were a lot of issues regarding disclosure.
For answers to why the taxpayers were on the hook for Basi/Virks 6 million in legal fees, we may never know. Read document below “Exclusive: Leaked Basi Virk BC Rail privatization documents released” below.
Interrelated Police Investigations and Disclosure – 2011 CanLII Docs 179 (31 page document)
This paper focuses on a simple drug investigation in Canada that eventually led to the wire-tapping of government officials and the search of provincial legislative offices in British Columbia in 2003. The breach of trust, fraud and money laundering charges that followed dominated the media in the months subsequent and resulted in the litigation of noteworthy concepts in the legal areas of disclosure, privilege and the constitutional right to a fair trial. This paper is offered as a primer of the various issues that will most likely be encountered by both the Crown and the defence when the police present electronic disclosure in very large cases stemming from interrelated investigations.
Most criminal defence lawyers want to know exactly what it takes to be able to argue that their client is entitled to a stay of proceedings because the Crown has failed in its disclosure obligations. 1. The fact of the matter is, the test for a stay for an abuse of process is incredibly demanding; in most situations, the remedy will likely be a judicial order for an adjournment and an order for disclosure. 2. A lawyer may then pray that he or she can later argue that a stay is warranted because of the delay and its impact on the client’s right to a speedy trial. 3. The law on what constitutes grounds for a stay for inadequate disclosure is beyond the scope of this paper, but it is important to be conscious of this area of the law and how it has advanced in the past few years.
Crown prosecutors tend to take their disclosure obligations very seriously; they are aware that not to do so may jeopardize the cases they are prosecuting, but also place them in a difficult situation with their governing body. The right to full disclosure is enshrined in the Canadian Charter of Rights and Freedoms, 4. but it has its limitations. There are certain situations where the right to full disclosure will give way to Crown arguments of privilege. It is important that both Crown and defence lawyers know the limits of their respective duties. The defence has an obligation to raise disclosure issues in a timely fashion. The Crown must provide full disclosure save for certain exceptions. A full knowledge of both limits will prevent or assist in stay arguments, and that is the purpose of this paper.
2. Morphing Investigations
In 2002 the RCMP Island District Drug Section (IDDS) began an investigation into various drug targets involved in the organized drug trade in and around Vancouver Island. The IDDS termed this investigation Project “Everywhichway” or Project EWW. The investigation of the drug matter also spread to other parts of Canada. Project EWW flourished through the use of eleven confidential informants. The informants were assigned police handlers and these handlers gave each informant a unique letter of the alphabet as an identifier to preserve that informant’s anonymity. The handlers met frequently with the informants and prepared source debriefing notes which were later compiled into reports. These reports included detailed information on the informant as well as:
• The name of the RCMP handler who prepared the report;
• The names, addresses and other personal information of persons named in the report;
• The information that was provided by the informant at the time of the report;
• Whether or not the information was direct evidence from the informant or hearsay;
• The handler’s views on the reliability of the informant and the reliability of the information which formed the basis of the report.
Informants A, C and G supplied enough information for 448 reports and on twenty-one different occasions they mentioned Dave Basi (Basi) in connection with the target of the drug investigation, Jas Bains. As a result of the confidential informants to the RCMP, 145 warrants and four wiretap authorizations were issued during the IDDS investigation. Basi became a named and primary target in the last two of the wiretap authorizations. The RCMP had a dial number recorder attached to the cell phone of Jas Bains. Since a number of calls were made between Bains and Basi, the police began to suspect that Basi could be laundering money for Bains, and both the Vancouver and Victoria units of the Commercial Crime Section of the RCMP became involved. The Anti-Corruption Investigation Units of the RCMP were also interested, as well as the RCMP Integrated Proceeds of Crime group. As the result of what was heard on the wiretaps, a corruption investigation targeting Dave Basi emerged from the drug investigation targeting Jas Bains. On December 28, 2003, a search warrant was issued for the search of the British Columbia Legislative Building and a number of documents were seized from the offices and personal computers of Dave Basi and Bobby Virk. At the time, Dave Basi was the Ministerial Assistant for the British Columbia Minister of Finance, Gary Collins; Virk was the Ministerial Assistant to the British Columbia Minister of Transportation, Judith Reid. Aneal Basi was also targeted in the investigation and is a co-defendant; he was related to Dave Basi and was employed by the British Columbia Transportation ministry during the relevant time.
As the result of the information obtained from the search of the BC Legislature, the corruption investigation was turned into four separate RCMP investigations with the drug investigation, Project EWW, being the mother investigation of them all. The four investigations that morphed from the original drug investigation into Jas Bains were:
1) An investigation into the sale of BC Rail (BC Rail file 6 );
2) An investigation into a fraud upon the BC Liberal Party;
3) An investigation into a violation of the Agricultural Land Reserve Act 7 (ALRfile); and
4) An investigation by the Integrated Proceeds of Crime unit of the RCMP (IPOC file).
The four investigations were “inextricably linked and not severable,” to quote the pre-trial judge when she later began to rule on disclosure applications. A total of fourteen counts of fraud, breach of trust and money laundering were laid in connection with the sale of BC Rail in December of 2004. Dave Basi and Bobby Virk were charged with the corruption offences and Aneal Basi was charged with money laundering. The Crown alleged that Dave Basi and Bobby Virk accepted bribes from Pilothouse, a lobbyist firm and its agents, Erik Bornmann and Brian Kieran, in exchange for leaking confidential information about the bidding process in connection with the sale of BC Rail. Pilothouse was hired to represent US-based OmniTRAX, which was one of the three original bidders for BC Rail. The other two bidders were CP Rail and CN Rail. When CP Rail pulled out of the bidding process, OmniTRAX had a concern that “the fix was in” for CN Rail to win the bid. It was alleged that OmniTRAX voiced its concerns through Bornmann and Kieran to Basi. At the trial, the Crown hoped to lead evidence that Bornmann had a discussion with Basi to the effect that if OmniTRAX stayed in the bidding process it would receive a “consolation prize” from the government. As long as OmniTRAX stayed in the competition, the process looked legitimate and CN Rail would be encouraged to bid competitively. BC Rail was sold to CN Rail for $1 billion in December, 2004. The trial commenced on May 18, 2010, and the Crown had only called evidence from two witnesses when the proceedings were curtailed by a surprise plea of guilt on the part of the two defendants, Basi and Virk, on Monday, October 18, 2010.
The Crown accepted pleas to two counts each of breach of trust and accepting benefits. The fraud charges against both accused were stayed and the money laundering charges against Basi’s cousin, Aneal Basi, were stayed as well. No charges were laid with respect to the second investigation, the alleged fraud on the BC Liberal Party. Dave Basi also pled guilty to one count of accepting a benefit of $50,000 from a development company in connection with the third RCMP investigation, the ALR file. Both Basi and Virk received a conditional sentence of two years less a day to be served under house arrest.
With the trial now over and the debate about the legal fees a fading issue, we are left to sift through the ashes of the pre-trial disclosure motions. The pre-trial motions were subject to a publication ban instituted by MacKenzie J of the British Columbia Supreme Court in March 4, 2010, until a verdict was reached in the case. The decisions are now once again available for public inspection, and they provide much from which we can learn.
3. Police Problems with Disclosure in Large Investigations
The information involving the BC Rail matter setting out charges against Dave Basi, Bobby Virk and Aneal Basi was laid by the police in December of 2004. Disclosure of the Crown’s case commenced in January 2005 and a direct indictment was preferred on January 28, 2005. Even though a trial date was set for November 28, 2005, it became clear very quickly that the 11,000 documents that had been disclosed up to that point did not constitute complete disclosure and so the prospect of a November 2005 trial date became remote.
Among the problems encountered in those early days of disclosure was the fact that no index for the initial 11,000 documents had been produced. Moreover, the software provided by the Crown for the purposes of document management did not possess a search function, making it very difficult to find documents. Other problems included inadequate lists of withheld Crown documents; these lists were described as being “sparse” by Bennett J, the judge assigned to facilitate the pre-trial disclosure motions.
As the process continued, the Crown released disclosure in phases that were nothing more than “dumps” of material in batches of CD-ROMS. There were many problems with these information dumps. Defence counsel soon found that the materials in the CD-ROMS were disorganized.
Files had been scanned by the police into incorrect file folders and the index was so vague that, without an adequate search function, the material was irretrievable. As late as May 2006 the chief investigating officer was still requesting notes, reports and documents from officers involved in the investigation.
Defence counsel applied to Bennett J to be allowed to attend the RCMP IPOC project room to review the Crown documents because of the many problems discussed above. The Crown opposed a document review on the grounds that the documents housed in the project room were the originals and had not been vetted. The Crown argued that if defence counsel reviewed these documents, the identity of the various private informants would be placed at risk. The defence argued that they were concerned that the Crown had not been sufficiently involved in the disclosure process and that the bulk of the decisions with respect to disclosure had been made at the earliest stages by the police without input from the Crown. By June 2007 over 100,000 documents had been disclosed by the Crown in electronic format. Problems with police disclosure continued to plague the Crown. For instance, the chief Crown witness, Erik Bornmann, gave a statement to the RCMP in Feburary 2005; this statement was not disclosed to the defence team until January 29, 2007.
In the first pre-trial disclosure decision, R v Basi, Virk and Basi, 8 Bennett J reviewed the principles of electronic disclosure set out by Watt J in R v Blencowe 9 and as summarized by LaForme J in R v Hallstone Products Ltd. 10 Aside from principle one which has been refined by R v Stinchcombe, 11 R v Egger 12 andR v Chaplin, 13 these principles still stand as fundamentals to this day for large investigations where the disclosure must be electronic because of its size:
1. There is the duty of the Crown to disclose all relevant material, inculpatory and exculpatory, sufficient to allow an accused to make full answer and defence. Disclosure may be withheld or delayed in certain circumstances and initial disclosure should be made before an accused is asked to elect mode of trial or to plead. Non-disclosure is justified on the basis of: (i) no control by the Crown; (ii) clear irrelevance; and (iii) privilege.
2. The right of disclosure is not absolute nor does it demand production of original material. However, the defence has the right to inspect the original if it is in the control of the Crown. The defence is also entitled to a copy of any such material that the Crown intends to rely on at trial.
3. Disclosure, in cases where there are large numbers of documents such as business records, is complied with by providing defence with photostated copies or CD-ROM.
4. Where materials are the subject of a privacy or security interest, privacy for the defence in viewing them may be limited unless there is a sufficient undertaking given by defence counsel. This would apply in exceptional cases.
5. An accused ought not to bear the costs of “basic disclosure.” Such costs are to be the responsibility of the Attorney General. Basic disclosure is, generally speaking, the Crown brief and it will vary from case to case.
6. Trial judges have the responsibility of resolving disputes regarding such things as timing and adequacy of Crown disclosure.
The defence successfully argued that because of all the disclosure problems they had encountered up to that point, they could not be confident that they had complete disclosure unless they engaged in a document-by-document check with the Crown and the RCMP. The defence indicated that unless this document review was conducted to ensure all disclosure was made, the alternative could be an application for a mistrial or even an abuse application further on in the proceedings. Bennett J agreed and she concluded, largely because of all the Crown problems with disclosure, that the defence had demonstrated they were not on a fishing expedition. She ordered a review on the part of the police and the Crown with defence counsel present. Bennett J ruled that defence counsel could accompany the Crown and the police to the BC Rail project room. In order to preserve informant privilege, defence counsel were not permitted to review any of the documents, but only to be sufficiently advised of the description of the document in order to determine if they had already received it, or if it was on a list of documents not disclosed but adequately described in an index.
4. Access to Disclosure from “Related Investigations”
Having attended and participated in a methodical review of the documents in the BC Rail project room, the defence and Crown discovered 78 new documents of which neither the Crown nor the police were aware.
On June 4, 2007, the defence brought a second motion for disclosure before Bennett J in the Basimatter. This motion involved an application to review the drug investigation file, Project EWW, which was the mother investigation that gave rise to the charges in the sale of BC Rail as well as the IPOC file. The Crown conceded at the outset of the motion that the defence was entitled to review the disclosure available in the IPOC file. Surprisingly, the Crown objected to the defence application to review the material from Project EWW because they submitted there had already had been adequate disclosure of the relevant material in that file. In 2005 the defence had been given 70,000 pages of the drug disclosure package. The drug disclosure package came in an electronic form which had a search function but again, this feature was slow and imprecise. The defence was able to convince Bennett J to allow them to review the drug investigation material by showing that the Crown had not played an active hand in the dissemination or determination of what items should be disclosed. Secondly, the defence convinced Bennett J that even though the Crown maintained that disclosure for the BC Rail matter was complete, certain “holes” in disclosure were indicative that other relevant material must be elsewhere within the RCMP investigative framework, namely the drug investigation:
A) Police Perspective on Disclosure: After reviewing the seminal cases on disclosure and the relevant principles outlined in Stinchcombe, 17 R v Taillefer and Duguay, 18 and Chaplin, 19 Bennett J summarized the purpose of disclosure in her second major decision:
Important principles are stated in these decisions, some of which are particularly applicable to this case. The right of disclosure is a constitutionally protected right. The Crown is obliged to disclose everything it has unless it is not relevant or is protected by privilege. Relevance is defined as the reasonable possibility that the information could be used to meet the Crown’s case, advance a defence or make a decision which could affect the conduct of the case.
Material in the possession of the police is deemed to be in the possession of the Crown for this purpose.
It is evident from these descriptions that the threshold test for relevance is low. It is also crystal-clear that the decision in terms of what is relevant is for the Crown and not for the police. Further, as the case unfolds, the relevance of certain documents may become obvious as the defence emerges. One of the purposes of the relevance test is to avoid “dump truck” disclosure on the defence. However, what may initially appear irrelevant may become relevant as the case unfolds, and then must be disclosed.
The Crown takes the position that much of what was requested does not exist, and therefore, according to Chaplin, cannot be produced. The defence under Chaplinneeds to establish a basis upon which I can conclude that further potentially relevant material does exist. For the reasons that follow, I have concluded that the defence has met this test. There has been a substantial failure to respect the disclosure rights of the accused in this case.
Crown counsel in charge of the BC Rail prosecution admitted that they had not reviewed the disclosure in Project EWW, and this turned out to be a devastating admission. Bennett J was convinced that the defence should be allowed to be present for another review, especially since the notes of many police officers were discovered at the behest of the defence in the first inventory of the BC Rail file which had occurred earlier. Perhaps the most convincing argument came when Inspector Callen’s notes from the BC Rail Project room inventory were discovered in the review of December 22, 2006. Originally Inspector Callen indicated that he had submitted his notes to the drug investigation but because they were of an administrative nature, they were not disclosed. In his affidavit, he testified that perhaps he had never submitted his notes at all, raising some doubt as to the whereabouts of the notes until they were discovered in the course of the BC Rail file review. Bennett J noted at the beginning of her June 4, 2007 ruling that the defence had already put the Court on notice that they planned to challenge the search warrants and wiretaps in the drug investigation, making the material from the drug investigation materially relevant.
In cases where there is to be disclosure of very large amounts of material, the police are usually the first body to assemble the material and they make crucial decisions that are often the determining factors on what is disclosed. In investigations such as the Basi matter where several separate investigations morphed from an original investigation, the tendency on the part of the police is to disclose only the material that, from their point of view, is relevant to a single investigation. Allowing the police to make these initial decisions with respect to disclosure is risky because the police have no idea what the defence may be, nor can they be expected to have such foresight. It becomes essential that defence counsel be fair and open in the initial requests for disclosure by expressing the full reasons for the disclosure to the Crown. The defence in the Basi case correctly stated from the beginning that they would be challenging the validity of the wiretap applications and the validity of the search warrants from the drug file. Obviously, the likelihood of the relevance of the drug investigation material was high.
The Crown’s objection to a review of the drug investigation was not that the material was irrelevant, but that there was the concern that wholesale disclosure of Project EWW in its entirety could put the identity of private informants at risk. Bennett J was of the opinion that the privilege granted to informants could be protected if Project EWW was moved to a neutral location where a page-by-page review of the contents of the seven filing cabinets could occur. Defence counsel were not permitted access to the documents themselves; the Crown and the police were to identify each document and ensure that the defence had it, or at least ensure that the document was sufficiently described on the list of documents to be withheld by the Crown. The Court allowed this second review to defence counsel, but it would later appear that the protection of police informants would require much greater scrutiny and caution from this point on in the case.
B) Holes in Disclosure
Another successful argument that persuaded Bennett J to grant the review of Project EWW was that the defence was able to show that there were many “holes” in the disclosure. For example, the defence was alive to an issue involving Minister of Finance Gary Collins, and the role he played in the matter. From the beginning, the three accused indicated during the course of their numerous disclosure applications that their defence was that they acted with the knowledge and approval of their superiors. From the disclosure in the BC Rail case, it was learned that Minister Collins was under surveillance on December 12, 2003; he was referenced three times in police briefing notes in December 2003. The defence made many requests for briefing notes to the highest level of the RCMP but no notes were ever forthcoming. There were many questions in connection to this issue, especially as to why the investigation on Minister Collins was closed after December 2003. Bennett J found this very strange, especially in spite of the fact that police surveillance placed Minister Collins at a supper involving the two persons connected with OmniTRAX during the material time. This dearth of information with respect to Minister Collins was seen by Bennett J to be a “hole” in disclosure and a deficit that was directly relevant to the main defence.
Another hole in disclosure pointed out by defence was the fact that there was a paucity of information with respect to chief Crown witness Eric Bornmann – so much so that it would appear that the Crown policy may not have been followed in respect of the arrangements made for him to become a chief Crown witness. For example, the Crown immunity agreement had not been disclosed as of the June 4, 2007 ruling on disclosure. The Crown immunity agreement is the contract that the Crown enters into with a witness that spells out the nature of the agreement between the witness and the Ministry of the Attorney General. Such an agreement is to be expected when the chief Crown witness is an unindicted co-conspirator and certain arrangements have been made with the witness with respect to his anticipated testimony. Further, as of the June 4, 2007 disclosure ruling, no police notes had been disclosed that spoke to the issue of how Mr. Bornmann ceased to be a target of the investigation and became instead the chief Crown witness.
Until mid-December 2003 the BC Rail investigation was under the supervision of Staff Sergeant Buerk who was from the drug section of the RCMP and involved in Project EWW. The decisions with respect to Gary Collins would have been made around this time. Also for one week after December 12, 2003, there was a gap in police notes while the command of the BC Rail case was handed over to the commercial crime investigation section of the RCMP. The defence pointed to the fact that these missing notes were essential, especially when it was learned that there was some kind of a methodological disagreement between those involved in the drug investigation and the commercial crime investigation unit as to how to proceed. Bennett J concluded that it was likely that the information with respect to Gary Collins and the police notes for the missing week in December might be located in the Project EWW file, and for this reason, coupled with the others, she ordered the review.
5. Crown Claims of Privilege
In any case where there are interrelated investigations and multiple requests for disclosure, there will no doubt be numerous redactions of information and defence applications for production of the redacted material. The Crown must be in a position to justify these redactions in order to not infringe the principles outlined in Stinchcombeand the cases that followed. The special prosecutor in the Basi case invoked the following types of privilege which led to the next level of pre-trial motions, refined disclosure motions to unveil redactions:
A) Informant Privilege
In February 26, 2007, the defence in Basifiled the third round in a lengthy application for disclosure. One of the many items the defence was seeking was an unredacted set of police notes. The Crown objected to the disclosure of the redacted material in the police notes on the grounds that to do so would breach informant privilege. Throughout the course of the arguments, the Crown offered on several occasions to give the Court a three-minute synopsis of the circumstances leading to the redactions of the notes in the absence of the accused and their counsel. Bennett J requested that the Crown file this synopsis along with the unredacted police notes in a sealed envelope for the Court’s review. The Crown refused, indicating that a simple review of the unredacted documents by the Court alone without the viva voce evidence of a police officer would be insufficient to explain the nature of the privilege. The Crown maintained that the case law made clear that this evidence must be given in camera and ex parte. After reviewing the case law on informant privilege, Bennett J was of the opinion that in deciding whether or not the privilege applied, a pressing issue was whether the accused had a right to be present as per section 650 of the Criminal Code. Bennett J ruled that the hearing would be in camera, but she ruled that defence counsel would be allowed to attend without their clients and subject to a non-disclosure order.
The Crown felt strongly that this ruling on the privilege issue and the presence of the accused’s counsel was incorrect. The next day it invoked section 37 of the Canada Evidence Act. At this session the Crown argued Named Person v Vancouver Sun as authority that a trial judge’s discretion is removed when the Crown makes out a case of informant privilege. Bennett J struggled again with the issue of whether section 650 of the Criminal Codeapplied, allowing for the presence of the accused during the hearing of the pre-trial motion. Seeking a middle ground, Bennett J dismissed the Crown’s section 37 application and ruled that defence counsel could be present according to her reading of R v Fisk 26 and R v Guess.
The Crown appealed and was not assisted by the British Columbia Court of Appeal. 28 Finch CJBC did not view Bennett J’s ruling as a “disclosure order” in the strict sense of the wording of section 37 which allows an immediate appeal to a court of higher authority. He also saw Bennett J’s proposed accommodation of defence counsel as being permissible. Donald JA agreed. Ryan JA disagreed and ruled that in permitting defence counsel to attend for the purposes of the hearing, Bennett J had in fact given a de facto disclosure order. He held that, in so doing, Bennett J had inadvertently breached the informant privilege that the Crown is bound to protect, and that this legitimately triggered the appeal provisions of section 37 of the Canada Evidence Act.
At the Supreme Court of Canada, Fish J delivered the decision for the Court. 31 He noted that while there are to be no interlocutory appeals in criminal matters, the issue arose in a unique context. The motion was informed by section 37 of the Canada Evidence Act and was, in fact, a separate legal proceeding independent of the criminal trial. As far as the jurisdictional issue was concerned, Fish J agreed with Ryan JA and held that, by failing to entertain a balancing of the rights of the accused to disclosure against the duty of the Crown to protect informant privilege as set out in section 37(5) of the Canada Evidence Act , Bennett J had unwittingly created a “disclosure order,” albeit limited, with her ruling.
In her reasons dated December 6, 2007, Bennett J thoroughly analyzed the earlier Supreme Court ruling in Named Person for all principles relevant to the issue of a first stage hearing to decide whether or not informant privilege should apply. Bennett J noted that in Named Person the protection of informant privilege was invoked by an individual also sought by the Canadian immigration authorities, so section 650 of the Criminal Codehad no application. In that case, the “Named Person” was subject to extradition proceedings; s/he was seeking to invoke informant privilege pursuant to the common law so that s/he could keep his/her status as an informant out of the hands of the media who were seeking access to the court record pursuant to the open court principle. In that sense, Named Person involved a third party and the debate centered around whether that third party should be excluded from the proceedings. In Named Person, the Court appointed an amicus curiaeto assist with submissions on whether or not the privilege should apply since the party invoking the privilege was also the subject matter of the proceedings. It was in this context that Bennett J noted that only the media were excluded from the hearing and not the Named Person or his/her counsel; she noted that the Supreme Court was silent on the issue of what the proper procedure would be had the party seeking access to the hearing been the accused. With this in mind, Bennett J mused that, in the circumstances before her, the mere invoking of informant privilege without a determination of whether or not it applies would not trump an accused’s right to his presence at his trial.
The Supreme Court of Canada was quick to address these issues and define the nature and scope of informant privilege. Fish J noted that informant privilege originates when a police officer in the course of an investigation guarantees protection and confidentiality to a prospective informer in exchange for useful information that would otherwise be difficult or impossible to obtain. Noting that this class of privilege, like solicitor-client privilege, is “nearly absolute,” Fish J stipulated that the privilege can only be waived by the informant him/herself, or by the Crown with the consent of the informant. It is a jointly held privilege. This privilege can only be pierced where an opposing party demonstrates that the innocence of the accused is demonstrably at stake. Once the privilege has been demonstrated to exist, the trial judge has little discretion. Fish J outlined the procedure to be followed in a first stage hearing and noted that it should always be held in camera. While the judge is deciding whether or not the privilege is to apply, the party raising the privilege is to be given the benefit of the doubt with respect to the care and caution that must be taken in the dissemination of the evidence during the hearing. Fish J noted the following:
It thus remains as true in this case as it was in Named Person that “[w]hile the judge is determining whether the privilege applies, all caution must be taken on the assumption that it does apply” (para ). No one outside the circle of privilege may access information over which the privilege has been claimed until a judge has determined that the privilege does exist or that an exception applies. It follows that the trial judge erred in permitting defence counsel to hear the testimony of an officer tending to reveal the identity of the putative informant at the “first stage” hearing.
The threshold for the party establishing the privilege is based on the “balance of probabilities” standard. It is the effect of the section 37 proceedings on a criminal trial, however, that has the greatest import on the rights of an accused. In an effort to fully explain the nature and scope of informant privilege, Fish J took great pains to underline the fact that the Charter right to full answer and defence, which includes the right to full disclosure of one’s case as guaranteed by section 7, does not trigger the breaching of informant privilege. It is still good law that the sole exception to this privilege is the “innocence at stake” test as outlined in R v Leipert. As a result, the option fashioned by Bennett J in the Basi case of allowing defence counsel to attend the first stage hearing on informant privilege without their clients subject to non-disclosure undertakings would be ethically problematic for defence counsel. In ruling for this form of attendance on the part of defence counsel, Bennett J was inadvertently preventing defence counsel from enjoying a full and frank relationship with their clients. This surely resulted in a serious fettering of the free flow of information. It is obvious that the duty of defence counsel to their clients and the duty to the court could pose a difficult conflict. The other major concern was the fact that consent with respect to disclosure, so freely given by the accused at the commencement of the hearing, could later become vitiated if new information, given in the course of the hearing, proved relevant to the defence but could not be shared with clients. There is no question that defence counsel could not ethically or legally assume such a burden in relation to their clients and hence the hearing with respect to the existence of informant privilege had to be brought ex parte. Following from this, it is clear that a trial judge’s decision with respect to section 37 of the Canada Evidence Act can in no way involve section 650 of the Criminal Code. Fish J concluded:
In support of the trial judge’s order, the respondents cite s.650 of the Criminal Code, which codifies the accused’s right to be present at trial. Indeed, the trial judge’s first decision on the common law privilege claim rested, in part, on this provision: Section 650 was invoked by the judge in concluding that counsel should be permitted to attend subject to a court order and undertakings.
Section 650 reads:
650. (1) Subject to subsections (1.1) to (2) and section 650.01, an accused, other than an organization, shall be present in court during the whole of his or her trial.
Clearly, s.650 has no application to the trial judge’s decision under s.37. By its very terms, it applies only to the presence of the accused at trial. An application under s.37 of the CEA is a discrete proceeding, separate from and only ancillary to the criminal trial. Accordingly, it is not caught by s. 650.
There are several helpful suggestions that Fish J offered in the closing paragraphs of the decision to enable defence counsel to offer meaningful representation to their clients. Noting the “serious procedural fairness concerns” involved with any process that involves ex parte applications within the context of a criminal proceeding, Fish J was alive to the difficulties connected to the decision that Bennett J had to make. He noted that the decision to exclude defence counsel and their clients from such hearings should be made in circumstances where the identity of the confidential informant cannot be protected in any other way. In an effort to get to the bottom of the privilege, courts are instructed to avoid unnecessary complexity and delay. Fish J urged trial judges to accommodate the accused in the most reasonable fashion possible:
In order to protect these interests of the accused, trial judges should adopt all reasonable measures to permit defence counsel to make meaningful submissions regarding what occurs in their absence. Trial judges have a broad discretion to craft appropriate procedures in this regard.
It is also suggested that defence counsel be given an opportunity to make submissions on the scope, nature and subject of informant privilege and what may or may not take place in their absence. Suggestions for questions that may be put by the trial judge to potential witnesses are to be sought from defence counsel. Finally, Fish J cautioned that in appropriate situations, the defence may have to be presented with a redacted version of the evidence from the record of the ex parte proceedings so that meaningful submissions may be made on the issue of the application of the privilege. For difficult cases, he recommended that an amicus curiae be appointed to assist in the submissions on the issue of the application of the privilege at its first stage.
B) Solicitor-Client Privilege
On December 8, 2008 and January 5, 2009, Bennett J released reasons on a claim of solicitor-client privilege on the part of the RCMP for with respect to numerous documents that were withheld from disclosure or heavily redacted. She explained that each document had been reviewed in court and she had been assisted with the submissions of counsel with respect to each document on the itemized list. In her possession were the complete unvetted documents, as well as the vetted documents, some of which were in the possession of the defence. Bennett J noted in her reasons that she had previously ruled on June 4, 2007 that the prosecutor could no longer vet for relevance but he could still vet for privilege. Because of this ruling, Bennett J was also petitioned to rule when documents were clearly irrelevant. She was careful in addressing this request and in deciding that, she asked for submissions on relevance from both parties.
If a document were found to be relevant and protected by solicitor-client privilege, Bennett J noted that the next phase would likely be a series of submissions on whether or not the privilege had been waived and whether or not the “innocence at stake” exception would apply which would allow for the dissemination of the document. Clearly, disclosure applications in cases involving large amounts of disclosure can be very complicated for counsel and time-consuming for the courts.
Bennett J reviewed the principles that are relevant to a claim of this nature. She noted that solicitor-client privilege can be claimed for legal assistance sought by the RCMP from the Public Prosecution Service of Canada or by the lawyers at the Department of Justice as per R v Campbell. It is imperative that the information provided be legal advice sought in connection with the professional capacity of the government lawyer and given in a situation of confidence. The test for solicitor-client privilege was reviewed by Major J in R v McClure:
Not all communications between a lawyer and her client are privileged. In order for the communication to be privileged, it must arise from communication between a lawyer and the client where the latter seeks lawful legal advice. Wigmore, supra, sets out a statement of the broad rule, at p. 554:
Where legal advice of any kind is sought from a professional legal adviser in his capacity as such, the communications relating to that purpose, made in confidence by the client, are at his instance permanently protected from disclosure by himself or by the legal adviser, except the protection be waived.
As stated, only communications made for the legitimate purpose of obtaining lawful professional advice or assistance are privileged. The privilege may only be waived by the client…
Bennett J noted that advice that is non-legal in nature, such as business advice or policy advice is not afforded protection by this doctrine. Solicitor-client privilege, like informant privilege, is a class privilege which means that there is a prima facie presumption that the document is privileged once the party has invoked the privilege; the onus is clearly on the party searching to gain access to the document to show that the privilege does not apply.
As Bennett J commenced her review of each of the documents where solicitor-client privilege was claimed, she was careful to note whether or not there was a specific request for legal advice and if not, how it was that the advice came to be given. She also ruled on relevance and was careful to excise legal advice from the rest of the document if it did not taint the document and if the document was of use to the defence. Bennett J was exceptionally thorough in her review because she also referenced the Crown list that contained descriptions of the document and commented on whether or not the descriptions were accurate or helpful. In many instances she had to table documents for further discussion because of the fact that claims of solicitor-client privilege were combined with claims of litigation privilege, as is often be the case.
C) Litigation Privilege
As mentioned above, solicitor-client privilege is a recognized privilege placing the onus upon the party seeking disclosure to show how or why the privilege should be waived or breached. Litigation privilege is certainly not a class or “absolute” privilege in the same sense as informant privilege or solicitor-client privilege. It is also not a blanket privilege. Each document must be considered on a “case by case” basis where the onus of proof is on the party invoking the privilege. Defining the nature and scope of litigation privilege became an issue for Bennett J in the Basi case, and it will always be an issue for any case where there are large amounts of disclosure and when investigations have morphed from an original investigation. It is also not uncommon for documents to be possessed of an overlap between solicitor-client privilege and litigation privilege, all the more reason to be in a position to specify each privilege and its scope.
Litigation privilege is still a developing area of the law and the most recent case at the Supreme Court of Canada to discuss this area of privilege was BlankvCanada(Minister of Justice). This case outlines that while litigation privilege is clearly not an absolute privilege, it is distinguished from solicitor-client privilege on the basis of policy considerations. The following passage from Blankis helpful in trying to understand the legal consequences of litigation privilege and how it differs from solicitor-client privilege:
Much has been said in these cases, and others, regarding the origin and rationale of the solicitor-client privilege. The solicitor-client privilege has been firmly entrenched for centuries. It recognizes that the justice system depends for its vitality on full, free and frank communication between those who need legal advice and those who are best able to provide it. Society has entrusted to lawyers the task of advancing their client’s case with the skill and expertise available only to those who are trained in the law. They alone can discharge these duties effectively, but only if those who depend on them for counsel may consult with them in confidence. The resulting confidential relationship between solicitor and client is a necessary and essential condition of the effective administration of justice.
Litigation privilege, on the other hand, is not directed at, still less, restricted to, communications between solicitor and client. It contemplates, as well, communications between a solicitor and third parties or, in the case of an unrepresented litigant, between the litigant and third parties. Its object is to ensure the efficacy of the adversarial process and not to promote the solicitor-client relationship. And to achieve this purpose, parties to litigation, represented or not, must be left to prepare their contending positions in private, without adversarial interference and without fear of premature disclosure.
While solicitor-client privilege applies only to confidential communications between solicitor and client, litigation privilege can apply to non-confidential communications between a solicitor and third parties and to materials that are non-confidential if they are sought for, or prepared for approaching litigation. Secondly, solicitor-client privilege applies the moment there is a confidential communication between a solicitor and her client and remains forever encased by the privilege. As far as litigation privilege is concerned, the lifespan of the privilege is defined by the litigation. Once the litigation ceases, so will the litigation privilege. This can become a tricky issue for interrelated police investigations, as we shall see below. Finally, the policy considerations behind solicitor-client privilege are based on the absolute requirement for full and fair disclosure of information that predicates access to legal advice in Canada. The policy consideration behind the need to protect litigation privilege, however, applies to the trial process. The material protected by litigation privilege encompasses the preparation for and the work product associated with litigation. Litigation privilege protects a process and solicitor-client privilege protects a relationship. These are the major conceptual differences between the two forms of privilege.
1) Dominant Purpose Test
Bennett J correctly noted in her December 8, 2008 decision in R v Basi that litigation privilege is more narrow than solicitor-client privilege in its scope. Litigation privilege includes protecting only documents that were created for the “dominant purpose” of litigation, first adopted in General Accident Assurance Co v Chrusz. In this case a videotape, float sheet and some time sheets that came into the solicitor’s brief from a third party, all of which pre-existed the threat of litigation, were excluded from coverage of litigation privilege by means of the “dominant purpose test.” While these items constituted evidence that supported the plaintiff’s case, they pre-existed the litigation because they had been kept in the ordinary course of business long before the litigation in question. Carthy JA ruled that these items were not covered by litigation privilege because they had been created before, and independently from, the litigation. Carthy JA referred approvingly to, and adopted, Craig JA’s dissent in Lyell v Kennedy:
Craig J.A., in dissenting reasons, put aside the older cases as not manifesting the modern approach to discovery and espoused a rigid circumscribing of litigation privilege. He bluntly concluded at p. 594:
I fail to comprehend how original documents which are not privileged (because they are not prepared with the dominant purpose of actual or anticipated litigation) can become privileged simply because counsel makes photo stated copies of the documents and puts them in his “brief.” This is contrary to the intent of the rules and to the modern approach to this problem. If a document relates to a matter in question, it should be produced for inspection.
FEBRUARY 25, 2009
BASI-VIRK – NDP wins access to 8000 pages of documents related to BC Rail privatization in Supreme Court of BC decision today
The New Democratic Party opposition won a big legal victory in BC Supreme Court today when Justice Elizabeth Bennett ruled that they – and the public – could have access to 8,000 pages of government documents related to the privatization of BC Rail.
The documents contained in 15 binders had been obtained by defence counsel for three former BC Liberal government aides facing corruption charges connected to the 2003 BC Rail deal – David Basi, Bob Virk and Aneal Basi.
The documents will take some time to photocopy but should be available in the court registry by this afternoon.
The court adjourned until the next pre-trial session, scheduled to being March 9 with arguments over parliamentary privilege issues and disclosure of documents.
May 8, 2013
The master agreement also forbids Basi and Virk to disclose any information to the media, meaning the public can’t get the full details on how a taxpayer-funded 6 million dollar loan magically disappeared.
“It is really important that both leaders in this election are going to be required to commit to a specific public inquiry into this $6-million write-off of Basi and Virk legal fees,” says van Dongen. “The attorney generals that have been involved need to be questioned as well.”
Leaked Basi-Vrik documents: Letter from Richard Fyfe
Judge orders BC Rail documents returned or destroyed
Copies of more than one million pages of documents related to a political corruption trial, including confidential material from B.C. government cabinet meetings and internal e-mails among MLAs, must be destroyed or returned to the Crown
In a decision released Tuesday, Associate Chief Justice Anne MacKenzie of the Supreme Court of British Columbia ruled that Dave Basi, Bob Virk and Aneal Basi cannot retain documents they obtained through disclosure in the BC Rail case.
She stated the three former government employees only had the material, which included RCMP files, to prepare their cases – and they are not entitled “to use the material for purposes collateral to making full answer and defence in this proceeding.”
Dave Basi and Mr. Virk, former ministerial aides who were convicted on fraud and breach of trust charges, had argued they should be able to keep the documents and to release them in the event of a public inquiry into the sale of BC Rail.
Aneal Basi, a low-level former government information officer, against whom charges of money laundering were dropped, had wanted to retain the material for use in possible future litigation.
But Judge MacKenzie said when the material was released to them during disclosure, all three were bound by an implied undertaking, and that undertaking has not expired even though the trial has ended.
She ordered lawyers for the three men to “deliver forthwith to the Office of the Special Prosecutor or the RCMP … any and all documents disclosed by the Crown.”
As an alternative, stated Judge MacKenzie, the lawyers can file affidavits with the Crown saying the material has been destroyed.
Crown lawyer Janet Winteringham said much of the material at issue is in electronic form, but there are also substantial paper files.
“It’s got to be over one million pages,” she said.
Michael Bolton, Dave Basi’s lawyer, said the judgment means all the material gathered during the long-running case will not be seen by the public.
“I would conclude its a decision that forecloses any public access to those materials,” he said. “I think the judgment is pretty clear.”
Dave Basi and Mr. Virk were convicted of leaking confidential government files in relation to the government’s $1-billion sale of BC Rail in 2003. They were sentenced to two years less a day under house arrest.