The loss of thousands of cabinet and executive branch e-mails concerning the biggest privatization deal in British Columbia's history is so shocking that defence lawyers in a politically charged trial still can't believe it has happened.
Both inside and outside the Supreme Court of B.C. yesterday, lawyers were expressing disbelief that e-mails from 2001 to 2005 related to the $1-billion sale of BC Rail could have been purged from the government's data system while a trial concerning the deal was before the courts.
"At the moment, our view is that these must be recoverable," said Michael Bolton, who, together with other defence attorneys, has sent a letter to the government's lawyer asking for a detailed explanation of how a data search was done.
"We don't accept at face value that these things have been lost … because e-mails are recoverable as long as there are backup or storage tapes," Mr. Bolton said.
Court was told on Monday that e-mails being sought by the lawyers defending three former provincial employees - Dave Basi, Bob Virk and Aneal Basi - are not recoverable because the government doesn't keep electronic backup tapes more than 13 months.
Wiped out, according to George Copley, a lawyer representing the B.C. Executive Council, are four years of tapes covering the crucial period when the government negotiated the sale of BC Rail to CN Rail.
Mr. Copley filed affidavits from government officials saying none of the e-mails can be recovered.
That would mean possibly tens of thousands of e-mails sent to and from those at the top executive level of the B.C. government have vanished, leaving a gaping hole in the official record of the BC Rail deal.
Mr. Bolton said it would be premature to speculate on how that might affect the trial, but he did say that other cases have collapsed when it was found important evidence had been destroyed.
"It's a serious matter if evidence that ought to have been preserved, that is relevant and material, has been allowed to disappear," he said.
Mr. Bolton said at issue are the e-mail records of "15 or 20 key individuals - all witnesses in the case," including Premier Gordon Campbell and his closest staff members.
Dave Basi and Mr. Virk are accused of leaking details about the pending rail deal to a Victoria lobbying firm that was representing a rival bidder to CN Rail.
But the defence is arguing the accused men were acting on the orders of their superiors - and they maintain the e-mails could prove that.
Kevin McCullough, who represents Mr. Virk, told court almost all the government information is in e-mail traffic.
"In the time period … we were fully engaged … in the electronic age, where e-mails really are the way individuals communicate. … The days of faxing [a document]or even mailing it were dead," he said.
Mr. McCullough said there clearly was extensive e-mail traffic surrounding the deal, and he referred to a statement that David Morhart, an assistant deputy minister on the BC Rail evaluation committee, gave to the RCMP in 2004.
"I'm one that saves all my e-mail files. So there's some 2,000 documents there if you ever want them," Mr. Morhart told police.
Those e-mails, however, are among the files the government says it can't recover.
Mr. Campbell said he wouldn't comment on the deleted e-mails because the case is before the courts.
"I'm not going to be talking about that," Mr. Campbell told reporters.
He said the government has rules for storage of important documents, such as e-mail.
"The records that should be kept under the law, have been kept," he said.
Court has not yet heard how and why the e-mails vanished from the government record.
With reports from David Ebner and Justine Hunter
Mark Hume