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

There'sNoDeal
LikeAnIndemnityDealVille


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....

#bcpoli It's now 100% clear if you vote @bcliberal you'll never know why Basi and Virk were paid off #corruption #bcrail
— Merv Adey (@MervAdey) January 29, 2013

OK?


_____
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....

.