May 1, 2009

Confidentiality Obligations in the Criminal Process: Allegedly Loose Reading of Allegedly Loose Transcripts

Filed under: 1 — ruleswatch @ 7:18 am

The pre-hearing process of two former British Columbia political aides for allegations of wrongdoing connected with the 2003 sale of BC Rail to CN — already well stocked with bitter public, political recriminations — is confronting interesting legal implications.

BC lobbyist and governing, Liberal Party activist, Patrick Kinsella, angry that he feels his reputation is being implicated in the case has sought to intervene in the criminal proceeding. Kinsella was a lobbyist for the purchaser, CN.

The Globe and Mail writer Gary Mason today says, “Mr. Kinsella had his lawyer, … in the court yesterday requesting standing in the criminal proceedings. That means Mr. Kinsella wants someone there who can interject any time his name is mentioned in less than flattering terms.”

The story is not clear on the status of the motion itself but the outcome will be fascinating and potentially fuel for interlocutory challenge.

More significantly it surfaced, apparently during the application, that Mr. Kinsella’s counsel, at least, has had access to what seems to be evidence taken in “pre-trial” proceedings. Bill Tieleman, for Vancouver daily, 24 Hours reports, “And …[counsel for one of the defendants] raised concerns about who has seen transcripts of the pre-trial hearings obtained by [Kinsell’s lawyer] through a transcript company, saying potential witnesses are not supposed to see them. ‘It’s a very serious issue. These transcripts were out when they ought not to have been…’”

There are obvious potential implications for this and for any actors who have played fast and free with restricted material.

Finally, as one might have gathered, the struggle seems to be no tea party in and around the courtroom either.

Kinsella’s counsel is said in the Globe to have “fire[d] off a letter to the judge… which… suggests Judge Elizabeth Bennett somehow directed the defence to seek Mr. Kinsella’s records related to the sale – and that he’s not happy about it.”

Meanwhile, 24 Hours says, defence allegations (seemingly struggling to keep up with a high octane Kinsella) of cabinet-level interference in the prosecution, failed. “There’s not a scintilla of evidence that [the Attorney General]… has acted improperly,” Bennett said in an oral ruling.

In the interim, in addition to the prospect of making interesting law the file shows every prospect of developing into a kind of jurisprudential “Days of Our Lives.”




Keith Fraser, Canwest News Service Friday, May 1,  reported that Kinsella had received standing because an application had been made for production of documents from him.


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