Basi, Virk, Basi Defence plan
Date: Monday, March 05 2007
On 1 March 2007, a 32-page Application for Disclosure was filed with BC Supreme Court by the lawyers for Dave Basi, Bobby Virk and Aneal Basi in the B.C. Rail Case.
After 3 years of waiting, this document represents the first official summary of what caused The Legislature Raids and why these 3 men were charged. Public access to the document is not freely available except by special request.
A learned friend has undertaken to provide a close analysis of this important document.
Presented here is a preview of his first two reports. I can vouch for the author and for his need to remain "Anonymous". Readers will agree, I think, that he has provided a welcome public service for British Columbians who not only lost their railway but have also waited so long to hear how that happened. - BC Mary.
First Report on the Notice of Application for Disclosure
The 32-page document that Robin [Mathews] couldn’t get from Court Registry is a public document with the look of legal seriousness about it. They design these things to fold nicely in three and fit into a lawyer’s pocket conveniently I guess. Of course, the document I have is a copy but, even so, it has the outline of a very official stamp on its cover page from the Vancouver Supreme Court Criminal Registry, dated February 26, 2007.
The very first line of this document says:
TAKE NOTICE that an application for disclosure will be brought before the Trial Judge on behalf of the accused persons, Udhe Sigh (Dave) Basi, Bobby Singh Virk and Aneal Basi (collectively the “Accused”) on April 2, 2007, or as soon as practicable for Orders requiring the Special Prosecutor and the RCMP to provide full disclosure in this matter.
So, be that as it may, and I want to make it clear I am no lawyer, it doesn’t sound to me as if anyone should book their holidays for April and head on down to Vancouver to watch this little bun toss get started.
Still, this is a pretty interesting document. Moreover, since it’s the first real evidence the public has actually gotten to see since the raid on the Legislature in late 2003 and the subsequent laying of charges against the accused it’s worth some special attention.
Let’s just page quickly through it first to familiarize ourselves with the landscape.
First of all, as everyone has been saying and writing, there are 32 pages here and they consist mostly of 200 numbered paragraphs that are in turn divided into 7 sections or divisions labelled with Roman Numerals.
I – Introduction - Paragraphs 1 – 75
From a legal point of view this may well be the ‘introduction’ to the legal business that follows; from the neophyte observer’s point of view these items provide a useful primer to a case that has already been known by a variety of names in the popular imagination. Even the experienced ‘Raids’ aficionado will find things here he or she didn’t know – even someone who has been haunting Mary’s blog since May of 2006 may find things to learn here.
Paragraph 2, for example, tells us that the RCMP launched the investigation that eventually became this case ‘sometime in 2002’ – an operation that they called “Project Everywhichway” and that, by June of 2003 they had already decided that Udhe Singh (Dave) Basi was, in the usual usage of the force, ‘a person of interest in this investigation.’
The press has covered various bits and pieces of this narrative but we’ve never really seen the whole thing laid out like this. It’s quite a story and I wouldn’t be surprised if Mary will publish a lot of it over the next little while. But first, let’s finish our first calm walk through of the whole 32 pages.
Part II is labelled Disclosure Considerations includes paragraphs 76 – 78
These three paragraphs are important stuff – in fact this is the heart of the whole defence case. As such, I think it’s important to quote them whole. These four points will be, it seems pretty clear, the nominal default position for this trial if it ever does get started:
76. The defence intends to seek Charter relief in respect of: (a) the intercepted private communications pursuant to Part VI Authorizations P.67 and P. 73; (b) the searches of the Legislative offices of Messrs. Basi and Virk, and the residence of Mr. Basi.
77. Additionally, the defence seeks a stay of proceedings on the basis of an undermining of the Accused’s right to a fair trial in respect of: (a) the RCMP investigative conduct which irreparably damaged any ability of Mr. Basi and Mr. VIrk to make full answer and defence; (b) the conduct of the RCMP and Special Prosecutor in respect of the dealings with Erik Bornmann; (c) the conduct of the RCMP and Special Prosecutor in respect of the media releases; (d) the continued inability of the Special Prosecutor to provide full disclosure; (e) consenting to a re-election from a jury trial before full disclosure was complete; and, (f) the delay to bringing this matter to trial which is fully attributable to the Crown.
78. The defence takes the position that at no time did Mr. Basi or Mr. Virk act in a fraudulent, deceitful or criminal manner, but rather acted at all times under the direction of their superiors in the highly political circumstance of their Offices. Certain of the disclosure requests are crucial to determining whether Messrs. Basi and Virk had consent to act as they did. These issues in turn affect Aneal Basi.
Second Report on the Notice of Application for Disclosure
As promised, I’m back with some more explication of that 32-page opus that landed on Judge Bennett’s table ( I guess that’s how they do these things) and, through the agency of defence counsels’ generosity got into the hands of the working media in Vancouver last Monday. How do ordinary mortals like members of the public manage to get their hands on such things? Well, that’s a long story and I think I’ll leave it for Robin to tell that one. We have enough to do right here to deconstruct those pages without worrying about where they came from – or at least how ONE member of the public got his hands on a public document.
Part I – the Introduction. “Project Everywhichway”
As I mentioned earlier, this is the real meat of the document from the public’s point of view. Here, laid out in precise detail, step-by-step, is the way this case started – accelerated into the major climax of the actual raid on the legislature and has, since that time, been echoing, in a variety of ways, through the legal, political and media hallways of the province. Some of this was undoubtedly part of the material withheld by Mr. Justice Patrick Dohm and some of it, no question, is going to come up again before this story reaches a conclusion.
First of all, a caution. This is the defence version of the libretto and it’s undoubtedly the one Gary Mason’s been singing from. As Mary’s posted above – thanks again to Bill, there will be an opportunity for the other side – the prosecution, to weigh in on all these issues. I’m not going to try and point this out at every step of this narrative, but it’s a good idea to keep the notion in the back of your mind; after all, a place like the rockpile in James Bay does have a street address that’s hardly a secret. But, we’ll let the RCMP, the Crown and Gary Mason argue about that.
Let’s get started.
As I mentioned in the first installment, the RCMP called their investigation “Project Everywhichway” and their focus, from the start, was Dave Basi. The same Dave Basi who was, if you’ve forgotten, the Ministerial Assistant to the Minister of Finance and Government House Leader, Mr Gary Collins. (¶ 2).
As part of the investigation the RCMP decided to obtain court authorization for a DNR (Digital Number Recorder) warrant(s) for Mr. Basi’s cell phone(s). (There is some confusion in the text about whether or not the singular or plural is correct.)
Her Honour Judge Ehrcke is reported to have rejected the initial requests for a DNR warrant on the basis of possible ‘Parliamentary privilege’. This happened, apparently, at least twice in the period from August to September 2003.(¶ 3 - ¶ 8).
Before a third DNR warrant application was presented, this time to a Justice of the British Columbia Supreme Court, the police changed gears and brought application before Mr. Justice Patrick Dohm for a Part VI Authorization to Intercept Private Communications, “P.67” – for two DNR warrants – which were approved. (¶ 9 - ¶ 10)
Defence makes much of the fact that the Police may not have given appropriate notice to the authorizing judge, although, as a lawyer friend commented, it may well not have been required. Another curious fact hides in ¶ 11 where we’re told that the RCMP did not heed legal advice from their own lawyer, one Les Rose. Again, my lawyer friend commented, ‘That’s curious, how did the defence get that information? It would normally be covered by solicitor-client privilege.” Which I thought was a very good question.
But, despite this foreplay, the P.67 Authorization was signed by Mr. Justice Dohm on October 10, 2003 and the Mounties started monitoring both the Cell phone and the Office phone of Dave Basi on October 13, 2003. (The initial authority covered the period until December 11, 2003)
From ¶ 24 onwards, the document begins to deal with the actual results of the RCMP’s surveillance of Mr. Basi’s Ministerial Office and Cell phone conversations. Paragraphs 24 – 29 contain some of the information about which the public, and those of you who’ve been reading Mary’s blog regularly, have been wondering about ever since December 28, 2003.
The next pre-trial conference is 7 March 2007
The trial is scheduled for 2 April 2007.
For the full reports, subsequent reports, and further details, go to: http://bctrialofbasi-virk.blogspot.com
The Legislature Raids
[Proofreader's note: this article was edited for spelling and typos on March 5, 2007]