As court rulings go, this one may be without precedent in Canada: an order for a sitting Premier and select members of his staff and cabinet to turn their e-mails over to a court.
It's not a stretch to say Monday's ruling by Madam Justice Elizabeth Bennett of the Supreme Court of British Columbia could determine the future not only of a potentially explosive political corruption trial under way in the province, but the government of Premier Gordon Campbell as well.
"I would say this is virtually unprecedented," lawyer Michael Bolton said about the ruling, which grants the defence access to Mr. Campbell's e-mail correspondence from 2002 to 2004.
"This may be the critical ruling in the case."
Leonard Krog, the New Democratic Party critic for the attorney general, was in the courtroom when the decision was announced and couldn't disguise his glee.
"I think what this means is that nobody in B.C. is above the law," Mr. Krog told reporters. "Including Mr. Campbell himself."
Now, the big question is: Do the e-mails even exist?
The Globe and Mail revealed last week that an affidavit has been filed with the court from the civil servant in charge of the government e-mail delivery system. It states, in part, that e-mails created prior to 2004 were ordered destroyed as recently as May - two years after they were first requested by the defence in this case and in contravention of a government policy that prohibits the disposal of electronic records when they are the subject of a legal proceeding. The same affidavit said some e-mails from 2001 to 2004 were later found and have been kept.
It has yet to be determined who gave the original order during this spring's provincial election campaign to have those electronic records destroyed and why. The attorney general's department has asked the RCMP to look into the matter.
The court proceedings are linked to the famous RCMP raid on the B.C. Legislature in December, 2003, in which files and other records were taken from the offices of ministerial aides Dave Basi and Bob Virk. The pair were later accused of accepting gifts and other bribes from a lobbying firm in exchange for secret government information related to the sale of BC Rail a month before the raid. (A third government aide was charged with money laundering.)
The defence has argued that to the extent that Mr. Basi and Mr. Virk leaked information to lobbyists representing one of the companies bidding for BC Rail, it was a deliberate strategy designed to drive up the price of the asset. Not only that, it was a plan approved by cabinet, including the Premier. Additionally, others were leaking information, too, including cabinet ministers.
The defence has already come into possession of some e-mails through freedom of information applications that have demonstrated the potential importance of some of these third-party conversations. For instance, it has obtained e-mail correspondence between the lobbyists at the centre of the scandal that suggests there was a former deputy finance minister who might have been a key source of insider information for them.
Monday's ruling could be a pivotal one because it suggests the judge believes the e-mails of Mr. Campbell and his cabinet could be critical to the defence. And if that e-mail evidence has been destroyed either through recklessness, negligence or willful failure to preserve then it could be argued that the defence can't fairly defend its clients.
And the case would likely be thrown out.
Mr. Bolton, the lawyer defending Mr. Basi, foresees that possibility.
"Potentially it could lead to a motion for abuse of process, no question," he said outside court Monday.
Which would mean that a case that has likely cost B.C. taxpayers in excess of $20-million could be tossed out because records that should have been kept weren't.
But perhaps more significant is what this could mean for Mr. Campbell.
If the electronic records of the Premier and selected members of his cabinet are found and made public they could be extremely damaging and embarrassing. It would perhaps be worse, however, were it to be revealed that the e-mails of Mr. Campbell's cabinet were available but not those of the Premier. That they had somehow been mysteriously destroyed.
A court case that no one seemed much interested in just a few short months ago suddenly has all the attributes of a political spellbinder.
The parallels with Watergate become more eerie by the day.
Gary Mason