A political corruption case that has already heard that many government e-mails are missing from the record has now learned more electronic data related to the $1-billion sale of BC Rail may have been lost.
The Supreme Court of British Columbia was told yesterday that after the sale of BC Rail closed in 2004, electronic records were transferred to the buyer, CN Rail.
But those files – contained on about 600 backup tapes – were not inventoried, BC Rail lawyer, Robert Deane, told the court, and it is impossible to tell what they contain without opening and searching the files. He said the tapes “may or may not” contain the e-mails being sought by the defence.
Lawyers defending Dave Basi, Bob Virk and Aneal Basi on charges of trading in confidential government information are seeking the BC Rail e-mail records for 2003 and 2004 as part of a wide disclosure action.
Earlier in the pretrial hearings, the defence was told thousands of cabinet and executive branch e-mails concerning the BC Rail sale could not be retrieved because backup tapes had not been kept more than 13 months.
Mr. Deane said the BC Rail backup tapes have been retained, but the data were compiled and stored on software that neither BC Rail nor CN Rail uses any more.
He said BC Rail would like to help the defence with its application, but is not prepared to engage in a costly “forensic experiment” by trying to retrieve the data without proper software.
Mr. Deane said BC Rail will release the tapes to the defence, but would not bear the cost of any effort to search for e-mail records “the existence of which is unknown.”
Kevin McCullough, who is defending Mr. Virk, said BC Rail has informed him the cost of searching the tapes could be up to $100,000. He said the government should be prepared to foot the bill, but that issue was left unresolved and will be looked at by the court in a later hearing.
Mr. McCullough also complained that BC Rail needs to provide the court with a more detailed explanation on how the data are stored and why they can't be easily recovered.
Madam Justice Elizabeth Bennett said a BC Rail official who had filed an affidavit on the data issue “may be required by the court” to offer an explanation.
Judge Bennett also said the B.C. government is continuing to search its database and it's not yet clear what files exist. She said some of the records the defence is seeking from BC Rail may yet surface in the government search.
“Before you ask BC Rail to embark on a huge, expensive recovery, you might want to wait [for full results of the government search],” she said.
Court also heard objections from a lawyer for former Liberal consultant, Patrick Kinsella, who is opposing a defence application for access to his private records.
Mr. Kinsella, twice co-chair of B.C. Liberal election campaigns, worked as a consultant for BC Rail between 2001 and 2005. The defence alleges he was “a key player” in the deal and may have worked for both BC Rail and CN Rail at the time.
Mr. Kinsella's lawyer, James Sullivan, said the defence has provided the court no evidence to support that allegation. He said the defence application is based on “unsworn speculation proffered as evidence.”
Mr. Sullivan urged the judge to dismiss the application. Earlier this week, Judge Bennett refused a defence application to call Mr. Kinsella for cross examination and she will rule on the document issue on Sept. 14.
Judge Bennett, expected to leave the Supreme Court for a promotion to the B.C. Court of Appeal next month, set dates in October for the court to deal with a defence application regarding the e-mails of 18 former or current MLAs.
