R. v. Basi, Virk and Basi

2007 BCSC 788 R. v. Basi, Virk and Basi IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Basi, Virk and Basi, 2007 BCSC 788 Date: 20070604 Docket: 23299 Registry: Vancouver Regina v. Udhe Singh (Dave) Basi, Bobby Singh Virk and Aneal Basi Corrected Judgment: The text of this judgment was corrected on page 10, in paragraph 25 on April 29, 2014 Before: The Honourable Madam Justice Bennett Reasons for Judgment Counsel for the Special Prosecutor Janet Winteringham, Andrea McKay & David St. Pierre Counsel for David Basi Counsel for Bobby Virk Counsel for Aneal Basi Counsel for the Executive Council Counsel for the Department of Justice Michael Bolton & Claire Hatcher Kevin McCullough & Kristy Sim Joseph Doyle George Copley, Q.C. Valerie Anderson Date and Place of Hearing April 18-20, 23-24, 27, 30, & May 1-4, 7-10, 15-16, 2007 Vancouver, B.C. [1] David Basi and Bobby Virk are charged with several corruption offences and Aneal Basi is charged with money laundering offences. They bring an application for further disclosure by the Crown. A Special Prosecutor was appointed in December 2003 to act as Crown Counsel. [2] Dave Basi was the Ministerial Assistant for the Minister of Finance, Gary Collins. Bobby Virk was the Ministerial Assistant to the Minister of Transportation, Judith Reid. Dave Basi and Bobby Virk are related. Aneal Basi also worked for the Minister of Transportation and is related to Dave Basi. [3] The context of the disclosure application is critical to understanding why the defence makes certain requests for disclosure. The three accused will be bringing three applications before trial: an application for a stay of proceedings based on an abuse of process, a challenge to the validity of the wiretap authorization and a challenge to the search warrants which were issued against places of business and a residence. Further, the defence at trial, with respect to some of the counts, will be that the accused acted with the knowledge and permission of their superiors, which is a defence to the charges under s. 121 of the Criminal Code. [4] There was a large volume of material filed by all parties on this motion. This material is not evidence in the trial, and indeed, the admission of some of the evidence will be challenged at trial, such as the wiretap calls and information gathered from the results of the execution of the search warrants. In addition, I reviewed affidavits, police continuation reports, correspondence between counsel and many other documents, none of which was under oath (save the affidavits and the evidence of Mr. Priessel) or subject to cross-examination. However, in order to decide the application, it is necessary to set out certain facts. These facts are not factual findings for the purpose of the trial. Indeed, what is known to me now may change. To be clear, the findings made in this context are based primarily on documents and not sworn evidence and, as a result, are limited in their further use. [5] A number of the police officers involved in this case have since been promoted. As a result, I may not state their rank correctly. [6] The charges in this case arise as a result of an investigation eventually named EVERYWHICHWAY, by the Island District Drug Section ("IDDS") of the RCMP. The police were investigating Jas Bains and had a dial number recorder ("DNR") attached to his telephone. A number of calls were made between Mr. Bains and Dave Basi. [7] The police suspected that Dave Basi was laundering drug proceeds for Mr. Bains. They sought a DNR warrant with respect to his cell telephone. The telephone was registered to the Ministry of Financial Services and the registered address was the Parliament Buildings. This application was turned down twice by a provincial court judge as a result of her concerns regarding parliamentary privilege. One of the officers, Corporal Hartwig, noted that they should get the permission of the Speaker of the House to install the DNR. [8] Two wiretap authorizations were granted on the basis of the drug investigation. As a result of what was heard on the wiretap, a corruption investigation commenced. Two more wiretap authorizations were granted, this time with Dave Basi as a target. It does not appear that the two requests for a DNR were disclosed in the Information to Obtain (ITO) for the wiretap authorization. [9] The offences relate to the sale by the government of the Freight Division of BC Rail. It is alleged that Dave Basi and Bobby Virk accepted bribes from Pilothouse, a lobbyist firm and its principals Erik Bornmann and Brian Kieran. Pilothouse represented OmniTRAX, one of the bidders for BC Rail. It is alleged that Aneal Basi laundered some of these bribes for Dave Basi. [10] As a result of further information, several other investigations spun off from the initial drug investigation: an investigation into the sale of B.C. Rail, which is the substance of the charges before me; an investigation into a fraud of the Liberal Party where no charges were laid; an investigation into the Agricultural Land Reserve (ALR), which is the subject of other charges against Mr. Basi and others; and an investigation by the Integrated Proceeds of Crime Unit (IPOC). No decision has been made regarding charges in relation to the proceeds of crime investigation. [11] The wiretaps where Dave Basi was a target were in place between October 13, 2003 to November 7, 2003 and November 7, 2003 to December 11, 2003. It appeared from the information obtained from the wiretap that there were what the police considered suspicious dealings going on in relation to the sale of B.C. Rail. There were two bidders remaining in the bidding process: CN Rail and OmniTRAX Inc. CP Rail had pulled out of the bidding process, apparently because it appeared that it had already been determined that CN would be the successful purchaser. OmniTRAX was also concerned about the bidding process and, through its lobbyists at Pilothouse (and in particular, Erik Bornmann and Brian Kieran) raised its complaints. There was discussion between Dave Basi and Erik Bornmann which suggested that OmniTRAX would receive a "consolation prize" from the government by remaining in the bidding. The purpose of keeping OmniTRAX in the bidding, it is submitted, was to ensure that the process appeared fair and to encourage CN Rail to raise its bid. [12] In November and December, not only was Dave Basi under police suspicion, so was his superior, the Minister of Finance, Gary Collins. This is apparent from the RCMP documents. Dave Basi arranged for a dinner meeting on December 12, 2003, between Minister Collins and two representatives from OmniTRAX, Pat Broe and Dwight Johnson. The police had this dinner meeting under surveillance. After this meeting, which the RCMP thought would confirm claims Dave Basi made that he could deliver the Minister to a meeting with OmniTRAX representatives, and suggest that Minister Collins had authorized the consolation prize, no further documents or comments relating to the investigation of Minister Gary Collins have been disclosed even though the Commissioner of the RCMP had to provide his approval for the surveillance and the Acting Commissioner wanted a written brief on the case. At least some officers were of the view that Minister Collins appearing at the dinner confirmed Dave Basi's claims, yet Minister Collins vanished "off the radar" with, according to the documents disclosed to date, no further mention. This is not a comment on the conduct of Mr. Collins, who is not before the Court. It is solely an observation regarding a significant gap in police note-taking, or more likely, disclosure. Indeed, the written brief requested by Acting Commissioner Bass has never been produced. [13] At some point, and certainly by October 29, 2003, Solicitor General Coleman and his Assistant Deputy Minister Kevin Begg became involved in the investigation. The extent of their involvement is not entirely known, however, Mr. Begg does appear to have directed the RCMP to do certain things and Minister Coleman was involved with the RCMP in obtaining the Speaker's consent to search the Legislature. [14] On December 28, 2003, the offices of Dave Basi and Bobby Virk were searched by the police. These offices were located in the Legislative Assembly. Also searched were the offices of Pilothouse and the home of Erik Bornmann. Mr. Bornmann quickly contacted the police after the searches and offered his assistance. Mr. Bornmann will be testifying in this trial, and the arrangements that were made with him are raised in this disclosure application. [15] The Crown has consented to several of the requests by the defence, both at the outset of the application and during the course of argument. These include, for example, a review of the documents in the IPOC Project Room to ensure that the defence has all the documents in this file or, if the Crown claims that the document should not be disclosed, a description of the document sufficient to permit the defence to make further application, if necessary. [16] This case is complex and involves volumes of material. Already over 100,000 documents have been disclosed by the Crown in electronic form. Yet, problems with disclosure continue. This was best demonstrated when, during the hearing, the Crown received numerous pages of police notes from an officer who had failed to disclose the contents of a second notebook. [17] Another example of the problems with disclosure is that a statement of the main Crown witness, Erik Bornmann, taken in February 2005 was not disclosed until January 29, 2007. I will review more of the difficulties when discussing the specific requests for disclosure. [18] There are categories of disclosure requests as well as individual requests. I will briefly review the general law with respect to disclosure and then address the specific requests. THE LAW [19] Many consider that the law on disclosure commenced with R. v. Stinchcombe, [1991] 3 S.C.R. 326. I would reflect further back into time and consider the important words spoken by Rand J. in R. v. Boucher, [1955] S.C.R. 16 at pp. 23-24: It cannot be over-emphasized that the purpose of a criminal prosecution is not to obtain a conviction, it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proof of the facts is presented: it should be done firmly and pressed to its legitimate strength but it must also be done fairly. The role of prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility. It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings. [20] This passage was quoted in Stinchcombe, at para. 11, when confirming the obligation of the Crown to disclose all relevant information to the defence. More recently, the principle was affirmed in R. v. Trochym, 2007 SCC 6, at para. 79. [21] It is also important not to forget that many of the cases of wrongful conviction point to non-disclosure as the first step down the path to grave injustice. See, for example, the Royal Commission on the Donald Marshall Jr. Prosecution, the Commission on Proceedings Involving Guy Paul Morin and most recently, the Report of the Commission of Inquiry Into Certain Aspects of the Trial and Conviction of James Driskell at pp. 98-110. [22] The police and the Crown can never lose sight of what Sopinka J. said in Stinchcombe, at para. 12: the fruits of the investigation which are in the possession of counsel for the Crown are not the property of the Crown for use in securing a conviction but the property of the public to be used to ensure that justice is done. [23] The law on disclosure was recently summarized by LeBel J. in R. v. Taillefer; R. v. Duguay, 2003 SCC 70 at paras. 59 to 61, and I quote from that judgment: After a period during which the rules governing the Crown's duty to disclose evidence were gradually developed by the provincial appeal courts in recent decades, those rules were clarified and consolidated by this Court in Stinchcombe. The rules may be summarized in a few statements. The Crown must disclose all relevant information to the accused, whether inculpatory or exculpatory, subject to the exercise of the Crown's discretion to refuse to disclose information that is privileged or plainly irrelevant. Relevance must be assessed in relation both to the charge itself and to the reasonably possible defences. The relevant information must be disclosed whether or not the Crown intends to introduce it in evidence, before election or plea (p. 343). Moreover, all statements obtained from persons who have provided relevant information to the authorities should be produced notwithstanding that they are not proposed as Crown witnesses (p. 345). This Court has also defined the concept of "relevance" broadly, in R. v. Egger, [1993] 2 S.C.R. 451, at p. 467: One measure of the relevance of information in the Crown's hands is its usefulness to the defence: if it is of some use, it is relevant and should be disclosed -- Stinchcombe, supra, at p. 345. This requires a determination by the reviewing judge that production of the information can reasonably be used by the accused either in meeting the case for the Crown, advancing a defence or otherwise in making a decision which may affect the conduct of the defence such as, for example, whether to call evidence. As the courts have defined it, the concept of relevance favours the disclosure of evidence. Little information will be exempt from the duty that is imposed on the prosecution to disclose evidence. As this Court said in Dixon, supra, "the threshold requirement for disclosure is set quite low... . The Crown's duty to disclose is therefore triggered whenever there is a reasonable possibility of the information being useful to the accused in making full answer and defence" (para. 21; see also R. v. Chaplin, [1995] 1 S.C.R. 727, at paras. 26-27). "While the Crown must err on the side of inclusion, it need not produce what is clearly irrelevant" (Stinchcombe, supra, at p. 339). This right is a constitutional one. It is protected by s. 7 of the Charter, and helps to guarantee the accused's ability to exercise the right to make full answer and defence (see R. v. Carosella, [1997] 1 S.C.R. 80, at para. 37; Dixon, supra, at para. 22). As Cory J., speaking for this Court, wrote in Dixon, at para. 22: ... where an accused demonstrates a reasonable possibility that the undisclosed information could have been used in meeting the case for the Crown, advancing a defence or otherwise making a decision which could have affected the conduct of the defence, he has also established the impairment of his Charter right to disclosure. [Emphasis in original.] [24] In R. v. Chaplin, supra, the Court reviewed the standard where the defence suspects that there is information that has not been disclosed at paras. 30 to 31: In contrast to the above, in some cases, this being one, the existence of material which is alleged to be relevant is disputed by the Crown. Once the Crown alleges that it has fulfilled its obligation to produce it cannot be required to justify the non-disclosure of material the existence of which it is unaware or denies. Before anything further is required of the Crown, therefore, the defence must establish a basis which could enable the presiding judge to conclude that there is in existence further material which is potentially relevant. Relevance means that there is a reasonable possibility of being useful to the accused in making full answer and defence. The existence of the disputed material must be sufficiently identified not only to reveal its nature but also to enable the presiding judge to determine that it may meet the test with respect to material which the Crown is obliged to produce as set out above in the passages which I have quoted from R. v. Stinchcombe and R. v. Egger, supra. Although the obligation cast upon the defence which I have characterized as "a basis" is in the nature of an evidentiary burden, I prefer not to call it that because it can, and in many cases will, be discharged not by leading or pointing to evidence but by oral submissions of counsel without the necessity of a voir dire. Accordingly, I avoid the terms "air of reality" or "live issue" and other terms used in some of the cases that are more appropriate when used to describe a true evidentiary burden. Viva voce evidence and a voir dire may, however, be required in situations in which the presiding judge cannot resolve the matter on the basis of the submissions of counsel. [25] 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 defence. [26] Material in the possession of the police is deemed to be in the possession of the Crown for this purpose. [27] It is evident from these decisions 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 must then be disclosed. [28] 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 Chaplin needs 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. [29] This is an unusual case, in part because of the fact that the investigation started with one discrete unit of the RCMP (IDDS) and expanded to include a Commercial Crime and an IPOC investigation. The amount of material is voluminous and disclosure has been done primarily electronically. [30] The Crown was hopeful, early on in the proceedings, that disclosure would be accomplished quickly. This was not the case. I add that at this juncture I have little explanation as to why the disclosure process unfolded as it did. However, this is not an abuse of process application. The issues of good faith or bad faith have not been addressed and I will not comment on the process in this regard. [31] This is not the first disclosure application that I have heard in this case. The first was an application made in November 2006, for the defence to attend at the RCMP BC Rail Project Room where the file was kept. The disclosure process up to November 2006 is summarized in those reasons and I will not repeat it here. Suffice to say that disclosure has been ongoing and is still not complete, in spite of the fact that this matter has already been set for trial several times. [32] Defence counsel sought to cross-examine all but one of the affiants in this application. I have concluded that cross-examination is not required at this time. However, I am not foreclosing the possibility of cross-examination at a later date if necessary. [33] There were several main issues addressed as well as specific requests for disclosure. I list them below in the order they are addressed in the Reasons: i) Police Notes ii) Access to the Drug File iii) Arrangement with Erik Bornmann and Brian Kieran iv) Miscellaneous requests. i) POLICE NOTES [34] I noted, in paragraph 22 of my November 2006 Reasons, that Corporal Mar deposed that in May 2006 she was still requesting notes, reports and documents from officers involved in the investigation. This was in spite of the fact that the search warrants were executed in December 2003 and charges were laid in December 2004. I was, to say the least, surprised that the police notes had not all been disclosed at that point. However, during the course of this hearing, Staff Sgt. Bishop discovered a second notebook and disclosed further, relevant notes on May 1, 2007. Other relevant police notes were disclosed in December 2006 and February 2007. [35] Stinchcombe makes it clear that the defence is entitled to the police notes in relation to the investigation subject to any claim of privilege and perhaps third party privacy issues. Many of the officers will be called as a witness and their notes are produceable. Here, the decisions made by the police during the investigation are relevant to the abuse of process argument. Thus, all police notes relating to the investigation, commencing with the drug investigation, are relevant. [36] As noted, Corporal Mar was seeking confirmation that she had all of the notes. She received responses from Staff Sgt. Bishop and Corporal Lawson that they had submitted all their notes. Mid-application, a citizen, Mr. Priessel, called defence counsel and advised that he had notified the police regarding issues he had with Brian Kieran, who will be a witness in the trial. These issues were indirectly relevant to the case and directly relevant to Mr. Kieran's credibility. Mr. Priessel testified regarding these calls to the police. After his court appearance, Staff Sgt. Bishop produced his notes relating to his conversation with Mr. Priessel. I was told by the Crown that he had a second notebook that had been overlooked. [37] The Crown, while conducting interviews, has asked each officer to double- check that they have submitted all their notes. Cpl. Lawson, who in May 2006 told Cpl. Mar that he had submitted all of his notes, discovered 62 pages of notes after his Crown interview and the defence received these notes in February 2007. [38] Perhaps the most disturbing is the production of Inspector Callens' notes, which are relevant for the defence. As a result of the Project Room review, which I ordered in November 2006, the defence requested Inspector Callens' notes. These were produced on December 22, 2006. The first explanation offered for their initial non-disclosure was that the notes were in the drug file, but the Crown from the Department of Justice deemed that they were administrative, and they were therefore not disclosed. The second explanation, which appears in Inspector Callens' affidavit, is that he thought that he had submitted them to the co-ordinator of the drug file, but on reflection (several years later) realized that he must not have done so. This is very important when the discussion turns to the request for access to the drug file. In the meantime, it is another example of notes not being produced. [39] I add the obvious. The defence requested all police notes many, many times. There is no suggestion that the defence were not diligent in their requests. [40] Sgt. Gresham was consulted, apparently more than once, regarding several issues. He has produced no notes. He is apparently part of the "Legal Applications Support Team." The Crown has agreed to follow up on this request. [41] Some of the notes surfaced because they were in different investigation files. I will return to this point when I discuss the issue of access to the drug file. [42] Officer Gartside's notes were not produced until the defence specifically requested them. [43] Notes of other senior officers involved in the case were not produced until February 2007. Notes of main investigators such as Constables Mobbs, Lea and Airey were also not produced until February 2007. [44] Staff Sergeant Buerk, who was one of the people in charge, indicated to Cpl. Mar that he had produced all his notes, yet more of his notes were produced after the Crown interview. [45] The defence were told that Sgt. Finner typed all his notes. In fact, he made handwritten notes and then transcribed them. The Crown has agreed to produce the handwritten notes. [46] Superintendent McRae and Acting Commissioner Bass met with the Speaker of the House to obtain his consent to search the Legislature. Neither has any notes made contemporaneously regarding the content of their conversation with the Speaker regarding the search. I have affidavits of reconstructed memories of the event several years after the fact. [47] Solicitor General Rich Coleman and his Assistant Deputy Minister Kevin Begg became involved with the police during the investigation. They were involved, at least, by October 29, 2003, and continued their involvement after the appointment of the Special Prosecutor. The Crown has requested their notes, and at the time of writing this decision, I have not been advised of their response. The issue, if they do not voluntarily produce their notes, is whether they were acting qua police or otherwise. [48] As noted earlier, Minister Collins was referred to in briefing notes three times in December 2003, up to and including when he was under surveillance on December 12, 2003. However, in spite of the fact that Minister Collins is seen to be having dinner with two persons from OmniTRAX, there is no mention of Minister Collins in any disclosed police note, briefing note, or continuation report until weeks later. It is clear that Minister Collins was under police suspicion in December 2003. Requests were made for briefings to the highest level of the RCMP, yet there is nothing that I have seen in writing that indicates who made the decision to stop pursuing Minister Collins as a suspect and when that decision was made. It would be very surprising that such a document does not exist. Indeed, I must conclude that there are notes or other documents addressing this issue. This was too important a decision not to have documentation. [49] An issue has been raised regarding the relationship between Inspector deBruyckere and Kelly Reichert, who is the Executive Director of the Liberal Party, and well-known to both Dave Basi and especially Bobby Virk. Inspector deBruyckere's wife and Mr. Reichert's wife are sisters. Inspector deBruyckere was the person in charge of the BC Rail investigation from mid-December 2003. In March 2004, Inspector deBruyckere submitted a memo to his superiors regarding this relationship. However, he now deposes that he told his superiors of the relationship long before March 2004. Inspector deBruyckere has not produced any notes about when he told his superiors about this relationship. Inspector Boucher and Staff Sgt. Bishop say they have a recollection of being told about this relationship, yet they apparently have not produced any notes. Given the nature of the investigation, one would expect a significant response from superiors who were told of this relationship. [50] Several concerns have arisen given Mr. Reichert's apparent knowledge of events during the course of the investigation. For example, Mr. Bornmann, the main informant in the case, asked the police if there was an "Officer Reichert" as Mr. Reichert had apparently had lunch with Bobby Virk and had told Mr. Virk that Mr. Bornmann had gone to the police. I add that this information comes only from Mr. Bornmann's statement at this point. Further, there are police notes indicating that Mr. Reichert was going to brief Premier Campbell on certain events. This is not a remote relationship with little relevance to the investigation. I must infer that some notes exist. Apparently some officers kept more than one notebook. The notes of this revelation regarding Inspector deBruyckere's relationship with Kelly Reichert must be recorded somewhere. [51] On May 15, 2007, weeks into this motion, counsel for the defence advised that on the last day of court the previous week, they received a report from Cpl. Reed marked "not for disclosure" which indicates that when he interviewed Kelly Reichert, the Executive Director of the Liberal Party, he turned off the tape and had a conversation with Mr. Reichert regarding whether the Liberal Party wished to proceed with charges in relation to an investigation regarding Dave Basi, which was not BC Rail, but an allegation of fraud on the Liberal Party. Cpl. Reed's notes do not indicate that this conversation even occurred, never mind including any details or the fact that a conversation occurred when the tape was turned off. I am left to question whether there are more relevant documents marked "not for disclosure". Certainly, this leads to the inference that there may well be other such documents. [52] Sgt. Lawson was assigned to look into the background of Dave Basi. During his review and work-up of Dave Basi, Sgt. Lawson discovered that Cpl. Cowan had bought a house from Dave Basi's mother a few years earlier. While this in itself may not be significant, the way it was treated by the RCMP may be. Sgt. Lawson stated in his report that "a member" had purchased a house from Mrs. Basi. He did not say it was Cpl. Cowan, who not only was an RCMP member, but worked in the Commercial Crime section with Sgt. Lawson and was monitoring Dave Basi's calls on the wiretap. Further, Sgt. Illingworth recalled the purchase being mentioned to him "in passing". Again, there are no notes produced of when this was disclosed and to whom. A more thorough review is in order. [53] There is an issue with respect to the notes kept regarding the arrangements made with Erik Bornmann. It appears that Crown Counsel policy may not have been followed in terms of his agreement to testify. Sgt. Lawson filed an affidavit suggesting that it was his decision to treat Mr. Bornmann as a witness. I find it difficult to accept that Sgt. Lawson made this decision without consultation with his superiors and recording such a consultation. Mr. Bornmann has apparently admitted committing serious criminal acts, yet there is no written immunity agreement and no police notes have been disclosed regarding this decision. Again, this was such an important issue, notes must have been made, but not produced. [54] There is also an issue with respect to notes in relation to the wiretap. A wiretap was issued in October 2003. One of the telephones authorized to be tapped under the order was the land-line in Minister Collins' office. This did not occur due to "technical difficulties". However, these difficulties were apparently also not disclosed in the second Information to Obtain when an extension of the authorization was sought in November 2003, and the fact the land-line was not tapped was apparently also not disclosed to Associate Chief Justice Dohm. There have been no notes disclosed relating to the technical difficulties in terms of renewing the wiretap. Some notes must exist. [55] A briefing note was requested and sent to then Commissioner Zaccardelli. The Crown says the defence has the briefing note. The defence position is that they do not know why the Crown is so sure that the document they were given is the note as there is nothing to identify it as such. [56] Given the surprisingly late production of many police notes up to and including during the course of this application, I conclude many notes I have referred to during the recitation of the circumstances may exist, but have not been produced. I make no comment on whether this was due to oversight or intentional, as I have no evidence on these points and these issues are for another day. [57] The Crown submits that, by asking for each officer's notes at the interview, they are uncovering missing notes. The Crown submits that I should not make an order in relation to police notes as they are looking after the matter. [58] While it is commendable that the Crown is doing a final check for notes, it is too little and too late. Police notes are usually the second thing provided to defence counsel, after the Report to Crown Counsel. Disclosure is a constitutional right. As I stated earlier, this right has not been sufficiently respected so far in this process. I say that knowing that massive disclosure has occurred already. At this juncture, the only remedy sought is a disclosure order which clearly has been justified on the unusual facts in this case. [59] The defence is entitled to disclosure in a timely fashion. This rather extensive review of the many problems with this case demonstrates that disclosure has not been sufficiently made in a timely way. The police must take the time now to review all that each has done to ensure the accused's constitutional rights are protected. I regret that I must make the following order in such broad and sweeping terms. However, given the substantial failure to respect the disclosure rights of the accused, this order is the only way I believe I can ensure that no miscarriage of justice will occur. [60] In terms of police notes, I make the following order: Every police officer or civilian who touched or spoke about this investigation, regardless of what branch of the investigation they were involved in and regardless of rank or role undertaken will review every piece of paper he or she has and ensure that it is submitted to the Crown forthwith. This includes but is not limited to notes, briefing notes, continuation reports, e-mail and anything marked "not for disclosure". The Crown may vet the notes for privilege but not for relevance. I have seen some of the vetting for relevance and it is now clear, from the application, that much of what the Crown considered, at the outset, as irrelevant is no longer in that category. This may be tempered if the Crown has concerns about the privacy rights of third parties, who are also protected under the Constitution. Such information may be vetted with proper notice to counsel of its existence, and I will review it and take further steps if necessary. ii) ACCESS TO THE DRUG FILE [61] As mentioned earlier, the drug investigation is what generated the entire process which eventually led to these charges. [62] A drug disclosure package relating to the initial investigation, of some 70,000 pages, was disclosed in 2005. It is electronic, but is in a different computer program than the BC Rail file. While it has a search function, it is primitive and very slow. Defence counsel now seek to review the drug file in a similar way they were permitted to review the BC Rail file and the IPOC file. [63] As noted above, this is the second application for disclosure. The first was an application for a review of the Project Room where the police kept the BC Rail file. This application was opposed by the Crown because they assured me that the Crown had been through the room twice and every document was disclosed or appeared on a list of documents not disclosed. I ordered the review because of the many disclosure problems which are documented in those reasons. The review consisted of the Crown and Sgt. Taylor going through each document, with the defence far enough away that they could not see the document, but were able to check to ensure that each document was either disclosed or identified as not disclosed. I have been advised that 78 documents were discovered that did not appear on either list. Further, as a result of this review, the existence of Inspector Callens' notes came to light. [64] Sgt. Taylor prepared a report outlining how these documents were missed. Much of it was due to human error. Further, in the course of argument, the Crown advised that there were other problems in the creation of the inventory, and that documents were missing because no field had been created in the computer program for documents which were relevant to more than one investigation. The Crown advises that all of these problems have now been fixed. [65] The Crown also demonstrated in Court that there was an index for the drug disclosure. The search function was also demonstrated, which worked for the Crown, but for some reason, worked far less efficiently for the defence during the demonstration. [66] I have noted above the troubling problem with Inspector Callens' notes. First, defence counsel were told that they were in the drug file, but not disclosed because they were deemed administrative. Next, Inspector Callens deposes that he thought they were in the drug file, but on reflection, realized they were not. This raises more questions than it answers. If the first explanation is correct, then it is clear that there is material in the drug file that has not been disclosed and should have been. If the second explanation is correct, why did Inspector Callens think the notes were in the drug file? Probably because that is where he would have submitted them. The Crown submits that Inspector Callens' notes were not in the drug file. I cannot accept this. I do not think anyone at this point knows where they were. They should have been in the drug file. Inspector Callens is reconstructing his memory of the events long after the fact. The first explanation is very detailed and was not made up from thin air. [67] The notes of several officers, including Cst. Lea, Cst. Mobbs and Cst. Airey have been the subject of recent disclosure. They were drug officers. Their notes were not part of the drug disclosure package. The question is, where were these notes? They should have been submitted to the drug file. [68] Further, in submissions, the Crown advised that there was friction between the two sections of the RCMP, that is the drug investigators and the commercial crime investigators, that was serious enough that Staff Sgt. Buerk had to be brought in to mediate. There are no documents disclosed that I am aware of that make any reference to this difference in approach to the investigation. [69] There is information suggesting that documents occasionally get moved from one file to another. [70] The drug investigation is intrinsically linked to the wiretap authorization. It was the basis for the wiretap authorization. Until mid-December 2003, the investigation was under the supervision of Staff Sgt. Buerk, who is from the drug section. There is a significant gap in information for approximately one week, from December 13, 2003. This was during the time of the file changing hands from the drug investigators to the commercial crime investigators. It is likely that some of this information is resting in the drug file. [71] The Crown has not reviewed the entire drug file. [72] The defence has shown, through the history of disclosure in this case, that a review of the drug file is critical to ensure that they have complete disclosure of relevant material. They have shown that there must be documents which are potentially relevant in the drug file. I reach this conclusion in part because, in spite of earlier assurances from the Crown, 78 documents were discovered during the BC Rail review. There was also the discovery of the notes of Inspector Callens, and the late disclosure of the notes of Cst. Lea, who was the informant in the Information to Obtain, and Csts. Mobbs and Airey, who were also drug investigators. [73] The next issue is how should that review be accommodated. [74] The Crown strongly argued that there should be no inspection of the drug file because such an inspection would put informants at risk. The file is kept in seven filing cabinets in the RCMP office. The Crown submits, based on affidavit evidence filed that there are unrelated documents on officers' desks that contain informant information, and informants would be put at risk if defence counsel saw them. I add, parenthetically, the point made by Mr. Doyle, that no counsel here are full-time Crown Counsel and when not acting in this case, are defence counsel. Thus, I find the Crown's argument hollow in this regard. [75] The Crown relied on the decision in R. v. Liepert, [1997] 1 S.C.R. 281, and stressed the importance of informant privilege. I am very alive to the importance of informant privilege. See: R. v. Fisk (1996), 108 C.C.C. (3d) 63 (B.C.C.A.). The police would have a very difficult time with many types of investigations if informants were placed in situations of unnecessary risk. [76] The Crown submitted that Sgt. Taylor could do the review without defence counsel. Although Sgt. Taylor has prepared a thorough report of the BC Rail review process, I cannot allow this type of delegation. The disclosure process in this case has gone beyond what is acceptable, a situation I have already outlined. The disclosure decisions are for the Crown, not for the police. [77] However, the solution is simple and one I raised with counsel. The cabinets can be moved to premises where there is no concern about informant information lying around or informants coming and going. The cabinets can be moved to another office within the RCMP precincts or perhaps to the Crown Counsel's office in Victoria. I leave it to the Crown to find a satisfactory place to conduct the review. The defence, as with the BC Rail review, will not have access to the documents and will simply be checking whether they have the documents or whether the documents appear on a not disclosed list. [78] The Crown submitted that the fact of the review alone would put informants at risk because they would not come forward if they knew this type of review was conducted. This position is unfounded. It is based on speculation that an informer will find out about the review and be misinformed regarding the procedure. The defence will not have any access to informer information. They will simply be checking off documents. [79] A related issue is the question of an index. The index that I was shown was not very useful. The indices for the BC Rail file were also not helpful. During the BC Rail Project Room review, a better inventory was made. The same process will be followed for the drug file review. [80] In summary, the following order is made: The defence will have access to the drug file on the same basis as the BC Rail Project Room. The seven cabinets containing the drug file may be moved to a location where access may be undertaken away from the office of the drug section. The defence will accompany the police and the Crown to this location where a page by page review of the contents of the seven filing cabinets will occur. Defence counsel will not be permitted access to the documents themselves. The purpose of the review is to identify the document, ensure that defence counsel has it, or if not, to ensure that the document appears sufficiently described on a list of documents not disclosed. At the same time the review is undertaken, a more complete inventory of the documents will also be prepared. iii) THE ARRANGEMENT WITH ERIK BORNMANN AND BRIAN KIERAN [81] After the search warrants were executed, it appears that Mr. Bornmann quickly contacted the police with what appear to be efforts to "make a deal". Some arrangements were made through Mr. Bornmann's counsel for Mr. Bornmann to provide statements to the police. As I have mentioned, it appears that this arrangement may not comply with Crown counsel policy in relation to striking immunity agreements with persons who may have been involved in a crime. I have been told that there is no written immunity agreement and the arrangement is simply what appears in correspondence between Mr. Macintosh (counsel for Mr. Bornmann) and Mr. Berardino (the Special Prosecutor). However, in his affidavit, Mr. Macintosh deposed that "I have reviewed a letter from Mr. Berardino dated April 14, 2004, and that letter is consistent with Mr. Bornmann's agreement". This suggests that there is an agreement beyond the letter. However, he later says "I have reviewed the Exhibits attached to this affidavit and confirm that the Exhibits reflect the agreement in its entirety ". The difficulty with this is that it does not say that these letters form the agreement. It says they "reflect" the agreement. The defence submits there must be something more. I will return to this later. [82] The police depose that no "arrangement" has been made for Mr. Bornmann's former partner Brian Kieran to testify. This is also of concern because Mr. Kieran, apparently has also said he paid bribes to Dave Basi and Bobby Virk. If so, one would expect some agreement or at minimum, a decision on why he was not charged. [83] Three additional events have caused the defence concern. The first is that Mr. Berardino participated in teaching an Advocacy course in which Mr. Bornmann was a student. It appears that this was during the time when some discussions were still occurring with Mr. Bornmann's counsel. However, Mr. Berardino did not instruct Mr. Bornmann in a small group, only in a large lecture. [84] I add that both Ms. Winteringham (who is counsel assisting Mr. Berardino) and I also taught this course. Again, it appears that neither of us taught Mr. Bornmann in a small group. [85] In the large lecture, the speaker does not generally know the names of the students. I do not think anything turns on the fact that Mr. Bornmann was a student of Mr. Berardino. Mr. Berardino did not know Mr. Bornmann was a student and therefore no favours in terms of his grades could possibly have been granted. [86] The second issue is in relation to Mr. Bornmann's arrangement. After Mr. Berardino made the arrangements for Mr. Bornmann to be interviewed by the police, which occurred between April 6 and 7, 2004, Mr. Bornmann went to the press and falsely advised the media that he had been exonerated. Numerous media reports were filed in this application reporting these statements by Mr. Bornmann. Further, the police notes make reference to the fact that Mr. Bornmann falsely reported that he had been exonerated. In fact, quite the opposite of exoneration had occurred. Mr. Bornmann, when interviewed by the police, apparently admitted bribing public officials. Ms. McKay (also counsel assisting Mr. Berardino) apparently called Mr. Macintosh on April 14, 2004, to give him a "heads up" regarding this media reporting. What is not known is what Ms. McKay said to Mr. Macintosh or how Ms. McKay knew that there would be media reports. The Crown has declined to answer these questions. [87] The next related event according to Mr. Macintosh, is that Mr. Berardino called Mr. Macintosh on April 14, 2004, and left a message that the "deal with Mr. Bornmann was at an end". The explanations for this differ between Mr. Berardino and Mr. Macintosh. It seems that Mr. Berardino must have been upset by the false reports of Mr. Bornmann's exoneration. However, that is not been made clear. [88] Further, there is an indication in one of Sgt. Finner's reports that Mr. Berardino went to the press to clarify the false exoneration. However, what occurred is murky indeed and may be lost in time as it appears notes were not taken of many of these conversations. [89] The fact of the so-called exoneration was never corrected until I ordered the Information to Obtain be unsealed. In the meantime, Mr. Bornmann was permitted to continue with his lobbying activities, Mr. Bornmann was permitted to article in Ontario, as the Law Society of Upper Canada was not told of his conduct, and Mr. Bornmann was almost called to the Bar of Ontario until the issues came to light when a citizen made a complaint. [90] The explanation offered for not addressing the false reporting by Mr. Bornmann is that the Special Prosecutor was not going to interfere with a person's employment opportunities. However, Crown counsel policy suggests that such information should be shared with bodies regulating professions. [91] There is no question that the defence is entitled to all of the details of any arrangement with Mr. Bornmann. Such arrangement is generally not protected by any privilege. There have been too many wrongful convictions based on informant information which was obtained in dubious circumstances. I do not make such a link at this time; however, that is the reason that the defence is entitled to full disclosure when dealing with immunity agreements. For example, in the Driskell Inquiry, at pp. 99-100, the Honourable Patrick LeSage, Q.C. said this: Although the term "immunity" was used frequently at the Inquiry, when I refer to immunity, I use it in its most generic sense, simply to mean an arrangement struck that results in a person being given favourable consideration concerning criminal conduct. A clear articulation of the procedure to follow when a prosecution witness, particularly a witness of questionable integrity, is being granted "immunity" or any other favourable consideration is discussed by The Honourable Patrick Galligan, Q.C. in the analogous situation of an accomplice, as follows: It has been consistently held by Canadian courts that, before an accomplice testifies against someone with whom the accomplice commited a crime, the charge against the accomplice should have been completely dealt with and the sentence imposed. That is in contrast with the practice said to be followed in some of the courts in the United States where the charge against the accomplice is not disposed of before he or she testifies so that the threat of serious consequences hangs over the witness' head if he or she does not perform as expected by the prosecutor. That practice has been roundly condemned in many Canadian courts. The danger inherent in the practice is well explained by Mr. Justice Rothman, giving the judgment of the Court of Appeal of Quebec, in R. v. Heng (1995), 68 Q.A.C. 309 at page 314: In deferring [the disposition of a charge(s)] until after he or she has given evidence in a case of this kind, there is always the danger that this will be perceived by the witness as a precaution to assure that he does give evidence as he has agreed to do. But there is also a more serious danger that this will be perceived by the witness and others as an inducement to assure not only that the evidence be given but that the evidence be favourable to the prosecution. [emphasis added by Galligan] [92] Ms. Winteringham advised the Court that if I had any questions regarding the arrangement, Mr. Berardino would provide a statement to the court, I presume to answer any questions. Mr. Berardino was unable to attend at this application, so perhaps this is the way he thought best to address my concerns. [93] I have concluded that the Crown must answer the following questions. This will be done in writing and submitted to defence counsel by way of further disclosure. If there is a problem with answering the questions, the Crown may bring the matter back to court. Much as I appreciate Mr. Berardino's offer to address my questions in Court, I do not think this is necessary. I have also been asked by the defence to require Mr. Macintosh attend for cross-examination to clarify some of the points in his affidavit. My hope is that the answers to the following questions will clarify the situation. If not, the defence may renew their application to call Mr. Macintosh. i) What was the content of Ms. McKay's conversation with Mr. Macintosh regarding a "heads up" over publicity and how did she know there was going to be publicity? ii) What was Mr. Berardino's response afterwards? Did he go to the press as suggested by Sgt. Finner, or did he call Mr. Macintosh and leave a message that the deal was off because of the false exoneration? iii) Did Mr. Berardino tell Mr. Bornmann, either through the police or Mr. Macintosh, that Mr. Berardino would not correct the falsity of the exoneration; that he would not advise the government in order to stop the lobbyist activities; or that he would not advise the Law Society of Upper Canada regarding the admission made by Mr. Bornmann? In other words, did Mr. Bornmann, in any way, know Mr. Berardino's policy of not interfering with his employment? [94] Finally, I order that anything relating to Mr. Bornmann's agreement, whether in the hands of the police or the Special Prosecutor, is to be disclosed to the defence. Any document over which privilege or third party privacy issues are claimed must be identified to the defence for further application. iv) Miscellaneous Requests [95] That addresses the significant issues. There are a number of other issues which I will now discuss. The Crown, in a helpful written submission, set out charts with the issues raised by the defence and I propose to rely on the charts to track some of the remaining issues. [96] The defence in their application (paragraph 182) sought access to a review of the IPOC room. The Crown agreed to this at the outset of the application. [97] The defence sought an inventory of all materials which relate to Dave Basi (paragraph 183). As a result of the Crown's concessions and my orders, I expect that the defence will have everything in this regard, subject to the further applications in relation to privilege and vetting. [98] Paragraph 184 is the request for the production of police notes, which has been granted. [99] Paragraph 185 is a request that all RCMP members provide to the Special Prosecutor all information related to this matter and any other investigation pertaining to Dave Basi. This request should be covered by the orders already made. [100] Paragraph 186 is a request for the production of all photos, videos or other information relating to the surveillance operation on December 12, 2003. The Crown indicated it is gathering this material. This will be produced to the defence no later than June 30, 2007. [101] Paragraphs 187 and 188 contain a request for a witness list and a request for witness statements. The Crown has provided a witness list to the defence, which was updated in this application. However, the defence does not have statements or, at least, will say statements from some of these witnesses. The Crown submits that they will provide these statements. The defence is entitled to know what a witness will say before trial. I expect pre-trial motions to consume a large part of the next month, possibly two. I also conclude that it is appropriate, in order to prevent delays in the litigation, to put time parameters on disclosure. The Crown will provide to the defence the statements or will say statements of the witnesses it knows at this point it intends to call at trial no later than July 15, 2007. This does not limit the Crown to the witness list it has provided. Sometimes things change and other witnesses need to be called. However, as the Crown learns of any changes, it will advise the defence forthwith. [102] Paragraph 189 is a request that the Special Prosecutor provide a list of the documents seized by warrant that it intends to tender at trial. The Special Prosecutor submits that it will provide this list before the commencement of the trial. The problem with this position is that the defence may wish to bring a motion to quash the search warrants. If the Crown is not tendering documents seized from the execution of the search warrants or the documents are not objected to by the defence, then there is no need for an application under s. 8 of the Charter of Rights and Freedoms. Therefore, I order that the Crown provide a list of documents it intends to tender from the searches of the Legislature, from Mr. Basi's home and from the accused's financial institutions, by June 30, 2007. I do not know at this point if the defence intends to seek standing to quash the search warrants for other businesses and residences. If they are, they may bring that motion at a later date. [103] The Crown will produce a complete list of documents that it intends to tender at the trial by July 27, 2007. Again, the Crown is not limited to these documents. However, it needs to provide a list of the documents it has, at this point, decided to tender in evidence. [104] In paragraph 190, the defence sought 22 source debriefing reports that related to the investigation. These have been disclosed by the Crown. [105] The defence, at paragraph 191, sought a further inventory of the remaining source debriefing reports in order to make a proper application for disclosure. The Crown opposes this application on the basis of privilege and relevance. The privilege arguments are to be made during the vetting process. The defence may add these debriefing reports to the vetting application and we will address them at that juncture in the context of both privilege and relevance. I have made a ruling in terms of relevance with respect to any outstanding police notes or reports. This ruling will hopefully guide the vetting applications. [106] At paragraph 192, the defence sought audio recordings and transcripts of the intercepted communications. The Crown says it has now provided this to the defence. [107] In paragraph 193, the defence sought information regarding the divestiture of the BC Rail Freight Division, copies of the first and second round bids and any additional information submitted by the final three proponents. Further, with respect to the BC Rail Port subdivision, they seek the first and second round bids and any additional information submitted by the proponents. As there is a fraud alleged in relation to the bidding process, these documents should be provided. I understand the position of the Crown to be that the defence may have the documents, but there must be access restrictions imposed. I understand that the defence does not dispute this. Therefore, this information will be provided subject to the following conditions: there will be no copies made of the documents by anyone. The accused may only view the documents in their lawyer's office. No one is to have access to the documents, except lawyers or articled students working on the case. If further restrictions are required, I will hear submissions on the point. [108] At paragraph 194, the defence seeks documents from the Provincial government in relation to losses incurred as a result of the sale of the BC Rail Freight Division. This part of the application is being addressed by counsel for the B.C. Government, Mr. Copley, and will be addressed at a subsequent time. [109] At paragraph 195, the defence seeks a copy of the briefing note that was provided to Commissioner Zaccardelli in relation to this investigation. The Crown says the defence has this note. The defence submits that they have no assurance this is the right note. In my order relating to police notes, I believe I have covered this point. However, to be clear, I was told that the Commissioner's file in Ottawa was searched and this note appeared from that file. The Commissioner's office is to review their documents and confirm that this is the briefing note that was sent to Commissioner Zaccardelli and that there is nothing else pertaining to this investigation in the file. If there is, the Commissioner's office will produce it to the Crown forthwith. [110] At paragraph 196, the defence requests documents over which Cabinet Privilege is claimed. I have been provided these documents by Mr. Copley. I will review them, determine if any are relevant, and if so, notify Mr. Copley. Mr. Copley will then determine if Cabinet Privilege can be waived over those documents. If not, a further application may be warranted. [111] At paragraph 197, the defence requests an improved index of Tip 47 which is one of the files. The Crown has agreed to provide this information. [112] At paragraph 198, the defence seeks a statement provided by a witness who claims anonymity. The Crown submits that I should review the document in camera and decide whether it is relevant. This statement will be deferred to the vetting hearing. [113] At paragraph 199, the defence seeks better information relating to the vetted documents disclosed recently in Phase 6 and Phase 7 disclosure. The Crown has agreed to do this. [114] In paragraph 200, the documents requested will be the subject of a further application during the vetting application. [115] The defence counsel have sought the drafts of the Information to Obtain the wiretap and search warrants. Solicitor Client privilege is claimed over the drafts and this application will be deferred to the vetting process. [116] There were other requests for documents and briefing notes. I believe these requests have been resolved by the broad disclosure order made regarding the police notes. [117] I believe that complete the requests. If I have overlooked anything, the matter may be raised at the vetting application. [118] In summary: i) the police are to conduct a complete review of all the documentation from the entire Everywhichway investigation and provide the information to the Crown forthwith; ii) the defence will have access to the drug file on the same basis as the review of the BC Rail Project Room; and iii) the Crown is required to clarify certain aspects of the agreement with Erik Bornmann and the police and Crown will disclose everything in relation to this agreement, subject to claims of privilege. "E. Bennett J."