Tuesday, January 29, 2013

BC Rail Deal Decision...It Looks Like It Comes Down To Privilege


The judge has ruled that AG John Doyle will not get the unredacted details of the six million dollar deal that killed the Railgate trial deader than a doornail pretty much instantaneously in the fall of 2010.

I've had a look at the decision.

And, while I'm no lawyer, it looks to me like it comes down to a matter of 'privilege', at least according to judge Bauman.

Here are a few relevant passages:

[11]         While apparently wishing to co-operate in the Indemnities Performance Audit, the government has been properly cautious in ensuring that any privilege enjoyed by third parties is appropriately respected.
[12]         In respect of the Basi and Virk documents which the Auditor General has pursued, including, but not limited to, unredacted legal invoices from their defence lawyers, and access to the independent reviewers (the respondents Ms. Harper and Mr. Jones), who reviewed those accounts, this led to proceedings in this Court. The matter came before Greyell J. He concluded (2011 BCSC 1064) that Mr. Basi and Mr. Virk had waived privilege over the materials then in the hands of the government. In the result, he ordered the government and its counsel (Mr. Richard Butler) to produce to the Auditor General all information, records, etc. in the government’s custody or possession relating to the indemnification of Mr. Basi and Mr. Virk’s legal fees in their prosecution. This included the redacted accounts and disbursement receipts provided with the reviewers certificates.
[13]         I note parenthetically that Mr. Butler initially indicated that the certificates from the reviewers did not attach the actual legal accounts, redacted or otherwise. In this he was in error. He corrected the error in an affidavit filed later in these proceedings. Much was made of this about-face in the media but, as predicted by some, while regrettable, it makes little difference to my disposition of these applications.
[14]         In addition, four potential witnesses in the Basi/Virk prosecution who had also been indemnified by the government waived privilege in respect of information and documents in the possession of government concerning their respective Special Indemnities. Two of these potential witnesses also gave the Auditor General access to all materials in the possession of their reviewers (which would include unredacted accounts and receipts).
[15]         Messrs. Basi and Virk, however, have continued to assert their privilege in respect of documents in the possession of their reviewers. That, and the fact that the Indemnities Performance Audit includes desired access to the files of counsel for all recipients of Special Indemnities, has led to these proceedings....
{snippety doo-dah}
....[18]         On application of the government, I appointed an Amicus Curiae in these proceedings, Mr. Michael Frey. Efforts were then made to contact the other recipients of Special Indemnities who were not yet represented in these proceedings, but whose interests were obviously affected by the broad relief sought by the Auditor General. Thirty-three third party indemnified persons have now waived their solicitor-client privilege over information held by government in respect of their Special Indemnities.
[19]         Clearly, the Auditor General now has considerable material affecting sundry recipients of Special Indemnities; but he pursues the broad relief that I have described.
[20]         The government has made limited submissions before me, as has the reviewer Ms. Harper. In pre-trial proceedings, I granted intervenor status to John van Dongen, a member of the Legislative Assembly who has a strong interest in these matters. Through Mr. Roger McConchie, he has made thoughtful submissions essentially supporting the position advanced by the Auditor General.
[21]         The Amicus, in turn, has addressed the issue surrounding third party solicitor-client privileged information and records in relation to Special Indemnities given by government for the payment of legal expenses for those whose privilege has not been waived to permit access by the Auditor General. The Amicus did not address the issues of Cabinet or public interest privilege or confidence. In respect of these issues, the Auditor General pursues the requested relief notwithstanding the fact that government has provided all relevant documents potentially subject to this privilege in these matters.
[22]         I now turn to the central issues. I will proceed first to briefly summarize the positions of the parties; I will then discuss the legislative scheme; next I will deal at some length with the alleged need for the broad relief sought by the Auditor General. Here I will canvass the expert evidence offered on prevailing Canadian Institute of Chartered Accountants (“CICA”) auditing standards. Finally, I will analyze the relief sought in the context of the cases.
[23]         Before I do so, however, I state my conclusion: here, as in so many other cases of conflict between other values and the principle of solicitor-client privilege, the privilege must be protected; it must prevail against abrogation by inference. Solicitor-client privilege, as the case law repeatedly reminds us, is fundamental to the proper functioning of our legal system. It is virtually an absolute privilege and must remain so. Properly understood, the privilege does not act as a shield, obscuring from view matters that should be publically aired. But that is the reaction of many in this contest between those who assert the privilege and the Auditor General in his quest for “transparency” and “accountability”....

I will leave it to others with much more legal experience to way in on the merits of judge Bauman's decision.

Regardless, as Merv Adey just said on the tweetmobile....


Of course, this decision means that there will be much rejoicing in Snooklandia tonight aided and abetted no doubt by that most 'interesting' Mustel poll that just came out accidentally (on purpose?) today and is currently being steno'ed, straight up, by the VSun....



North Van's Grumps said...

It could be said that the Lawyer / Client (secrecy) Privilege applies equally, between Judges (a lawyer) and Government.

Anonymous said...

Well. The way the theft and corrupt sale of the BCR trial went. How can we be surprised? We knew this would be the way, right from day one. We pay legal fees, for criminals acts. However, we know who the real criminal really is. It isn't the two patsies.

Anonymous said...

A few thoughts now that I've calmed down :-)
1) It is common for one judge to evaluate another's decision and say "your decision is within the boundaries of the law, but I disagree with it." Hence the possibility of appeal
2) Highly recommend a listen to van Dongen CKNW today at 1:30. A calm and reasoned response
3) The public interest is best served by whatever means are available to get to the bottom of this case...why was a sudden decision made to pay the fees in exchange for a guilty plea. That last is a characterization of what happened. It describes a relationship between the plea and the indemnity which I understand is illegal. I may be wrong, but I have yet to find a credible, alternative characterization.

4) The twists and turns of this case since 2003 are long..If you want answers, don't vote Liberal in May. Merv Adey

Anonymous said...

One more point - I don't know because I'm not a lawyer whether this is strictly true, but perhaps Baumann could have gone down the middle by allowing access to doyle with strict non-disclosure conditions for the purpose of coming to sound audit conclusions.

I thought that is what he would do. I wish he had. - Merv

Lew said...

The AG was chasing the billing statements involving third parties to properly comment on where the money went. It seems that he already has the documents that relate to why liability for the fees was exchanged, and who authorized or was involved in that part of the deal.

I believe the general public is more interested in who ordered the existing indemnity agreements to be amended in exchange for the guilty pleas and why, than who the defense lawyers paid for assistance during the trial. Hopefully he will be able to include that information in his report, which one would expect to be near completion since he’s had the information for quite a while.

It should make interesting reading before the election.

Anonymous said...

Hope you're right Lew. But I can't help feeling there must be something germane that was behind the curtain and Doyle wanted to see it. - Merv

Lew said...

Merv, you’re right about matters germane behind the curtain and the curtain never being parted if the Liberals win the next election.

I note that Justice Greyell concluded (2011 BCSC 1064) that Mr. Basi and Mr. Virk had waived privilege over the materials then in the hands of government. I requested a copy of the amended indemnification agreements through the FOI process and have been advised that the government is claiming privilege as the client. Seems that everybody but us has their own curtain…

RossK said...

Thanks for the comments and discussion everyone.

And thanks Lew for the extra info - especially the response you received re: your FOIR.

Part of the reason I chose these particular sections of the decision to highlight was precisely because point 12 notes that the AG is already in possession of the material ordered released by judge Greyell...Thus, I too am hopeful that, at the very least this information will come out in the AG's report.

Regarding the ordering of the indemnity itself...Well, I think we already know a considerable amount about that which came up previously in a discussion with Mr. Geoff Plant which centered around a statement published by Mr. David Loukidelis...I will return to this matter in the near future with more comment.

For those interested in a preview, they may want to peruse.....this.


kootcoot said...

The guy not even qualified to be a genius at an Apple Store has weighed in.

GeoffreyPlant - I wonder if BCs auditor general will waive solicitor client privilege and disclose his legal advice and bills in the Basi Virk case? #bcpoli

I didn't realize that the AG was acting as anyone's attorney and actually the role of the AG is to examine "facts" not protect privilege (read:secrecy) of the criminals otherwise known as our Provincial Government!