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BC Rail trial must be fair, not perfect: judge

The defence team in a long-running political corruption trial has been reminded in the Supreme Court of British Columbia that justice in Canada means a fair trial - not a perfect one.

Madam Justice Anne MacKenzie issued the caution Wednesday as she heard arguments from the lawyers defending two of three former government employees accused of fraud, breach of trust and money laundering surrounding the $1-billion sale of BC Rail.

Kevin McCullough, who represents Bobby Virk, and Michael Bolton, representing Dave Basi, have been pressing the court for an order to make BC Rail provide e-mail records for a key period surrounding the sale - from December, 2003, to February, 2004.

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Court has heard the e-mail records may or may not be on BC Rail computer backup tapes which are in storage, but not indexed, and which would be difficult and costly to search.

A ruling from the court for BC Rail to produce the documents could set the trial back several months from its projected January start.

Citing a judgment in a separate case, by Madam Justice Beverley McLachlin of the Supreme Court of Canada, Judge MacKenzie said the right of the accused to a fair trial has to be weighed against the cost and time spent on disclosure.

She said the public expects not only a fair justice system, but one that is "efficient and affordable" as well.

"The Charter guarantees not the fairest of all possible trials, but rather a trial which is fundamentally fair," wrote Judge McLachlin in a decision made while she was with the B.C. Court of Appeal in 1995.

"What constitutes a fair trial takes into account not only the perspective of the accused, but the practical limits of the system of justice," Judge McLachlin wrote.

"What the law demands is not perfect justice, but fundamentally fair justice," she stated.

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"Which I think is sensible," Judge MacKenzie said.

Her comments were seen as a warning to the defence that a lengthy delay over the disclosure of yet more documents is not something the court will consider lightly.

Mr. Bolton, however, told court the disclosure process has been lengthy by necessity, because it involves hundreds of thousands of pages of government, police and other third-party documents.

"The nature of the case is that it involves humungous amounts [of documents] … I think it is unprecedented in jurisprudence in this country," he said.

Mr. Bolton said the BC Rail e-mails could provide key evidence concerning a period when the government both sold the railway and made a decision not to sell a related port subdivision because police had warned the deal was tainted by fraud.

Mr. McCullough said the e-mails could show the accused men not only did not leak confidential government information for a benefit, as charged, but that government or BC Rail officials did.

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"All of these documents are so important … because they are all about leaking," he said.

Judge MacKenzie asked if the e-mails "might give you an enlarged body of potential leakers?"

Mr. McCullough, who earlier had argued his client only acted on instructions from his superiors, said that was his point.

"Do you think it's a defence to say, 'Well, I was told to do it … I didn't commit a crime because others did.' … Isn't that like saying, 'The devil made me do it, so I'm not guilty?' " Judge MacKenzie asked.

"What [Mr. Virk]is saying is, 'I didn't do it … but that [government]organization I was employed with was completely engaged in that kind of conduct,' " Mr. McCullough replied.

Submissions on the application are expected to continue today.

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About the Author
National correspondent

Mark Hume is a National Correspondent for The Globe and Mail, based in Vancouver, writing news and feature stories on a daily basis about his home province of British Columbia. His weekly column, which often challenges the orthodoxy on environmental issues, appears every Monday. More

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