Campbell Refuses to Shed Light on His Office's Involvement

In May 2007, Premier Gordon Campbell’s remarks during an estimates debate brought to light an abrupt and unexplained change to the process in place within the government to vet documents related to the B.C. Rail corruption trial.

Six government affidavits were recently acquired by the Official Opposition in an attempt to examine and highlight that abrupt change.

Below are some themes, which can be found within the pages of the six affidavits. Detailed backgrounders on each of these explanatory notes can be made available upon request.

1) Document vetting protocol changed in 2007 abruptly and without explanation
During estimates debate in May 2007, in response to a question from NDP leader Carole James regarding the protocol for the review of and assertion of privilege in regards to the documents seized, Premier Gordon Campbell said, “In terms of the screening of cabinet documents, all those documents will be available to the Deputy Attorney General. He will make the decision vis-à-vis cabinet confidentiality or any of those issues in consultation with the special prosecutor. He will make the decision without any further consultation with me or anyone in the Premier's office.” [Hansard, May 28, 2007]

However, the initial protocol laid out in January 2004 was radically different than the one described by Premier Campbell in May 2007. Below is a description:

Immediately following the December 2003 raids on the B.C. Legislature, a protocol was put in place for the review of the documents seized.

On January 14, 2004, this protocol was provided to Associate Chief Justice Patrick Dohm. It required the documents identified by Justice Dohm as relevant or potentially relevant to be reviewed by Deputy Cabinet Secretary Joy Illington whose role it was to instruct the solicitor to assert or not assert privilege.

A January 12, 2004 email shows Deputy Attorney General Allan Seckel and Premier Gordon Campbell’s key advisor Ken Dobell discussed the process prior to the submission of the final protocol to Justice Dohm.

A November 24, 2004 memo from the lawyer for the Executive Council George Copley to Ken Dobell reveals that on at least one occasion, Copley received instructions directly from Dobell on whether to waive or assert privilege over documents seized during the raid on the Legislature.

On June 16, 2005, Elizabeth MacMillan replaced Joy Illington as Deputy Cabinet Secretary and took over Illington’s role as outlined above.

In a January 13, 2006 email from Copley to MacMillan, it becomes clear Copley expected instruction to come from someone in the ‘Premier’s Office’.

An August 24, 2007 memo was the first indication of Copley approaching Seckel for instructions on whether or not to continue to assert privilege. This was the first practical indication of the abrupt change in the vetting process that had been suggested by Premier Campbell in the May 2007 estimates debate. Until the time the Premier made his comments, there had been no indication the protocol was going to be changed, nor had there been an explanation for the need for it to be changed.

2) Krog requests explanation on protocol contradictions
On February 25, 2008, NDP attorney general critic Leonard Krog wrote to Seckel seeking information regarding issues of privilege relating to the B.C. Rail corruption trial.

On February 26, Seckel responded, writing that, with the exception of the questions relating to parliamentary privilege, “…the answers to your questions can be found in affidavits filed on behalf of the Government of British Columbia in Regina v. Basi, Virk and Basi and are part of the court record in that case. I believe it is best that the court record stand as the full answer to your questions.”

On February 29, Krog wrote to Justice Dohm to request that the government affidavits be made publicly available.

On March 10, Justice Bennett issued a memo requesting staff to release the affidavits to the Official Opposition as well as public at large.

On April 2, the Official Opposition received copies of these affidavits.

On April 3, at the earliest opportunity following review of the affidavits, Krog rose in the House to register a point of privilege. The correspondence is here.

3) ‘Innocence at stake’ document still not disclosed
On Jan. 31, 2008, Judge Bennett ruled on the relevance of 140 emails that hadn’t been previously revealed to her. She ruled 92 of these documents to be relevant, three as significantly relevant and one so fundamentally important it could affect ‘innocence at stake’.

The ‘innocence at stake’ email has not yet been disclosed to defence counsel. Solicitor-client privilege has been asserted in relation to this document.

In a February 7, 2008 letter, Copley offers to disclose and provide copies of this document to the defence with the condition that defence counsel sign an irrevocable undertaking not to disclose or talk about the document or its contents.

4) The Consolation Prize Document
Defence counsel’s case pivots on their allegation that the Campbell Government had already delivered the B.C. Rail deal to CN Rail before the final bids were even considered.

At the core of defence’s argument is the suggestion that then Finance Minister Gary Collins had authorized a “consolation prize” to losing bidder OmniTRAX, and that Dave Basi and Bob Virk were simply following Collins' orders to deliver the B.C. Rail-owned Roberts Bank spur line to OmniTRAX in exchange for OmniTRAX remaining in the bidding process.

In July 2007, Justice Bennett reviewed a number of documents seized from the Legislature for relevance to the defence’s case. One of the documents determined as relevant to the defence is identified by Justice Bennett as related to the “consolation prize”.

The complete affidavits and the affidavit documents sorted by subject are available below.

Affidavit Documents Sorted by Subject

The Six Complete Affidavits

BC Rail Corruption Trial - The Timeline