BC Rail affidavit: BC Libs could destroy records before RCMP

Last Friday on “Cutting Edge of the Ledge” Keith Baldrey raised the fate of the millions of pages of evidence gathered in the BC Rail corruption trial.  “I think the RCMP is making an application, now that the investigation is over, to have it shredded,” Baldrey claimed, going on to add, “I think media organizations may indeed go to court to try to access the digital copies”.

Let’s hope the investigative juices kick in and reporters do try to gain access to the evidence.  That’s not the only route though.  There are other places to go for records, paper and digital.  I’m surprised media outlets haven’t gone there already.

For example:  Government electronic records backed up by the systems people and only partially destroyed in 2009.  Yes, only partially destroyed and there in lies a tale.

On July 13th 2009 Rosemarie Hayes swore an affidavit regarding the disposition of digital records maintained by the government of BC.  (is there where I say, obtained exclusively by therealstory.ca?) It was Ms. Hayes second affidavit and was provided to court by government lawyer George Copley to explain how the government could have destroyed electronic records, contrary to government policy.

In Hayes’ first affidavit she stated, “In the normal course of operations, thirteen months of backups are kept at a given time.”  After that the records are destroyed in the normal course of business.

But this wasn’t a normal course of business, according to Hayes’ second affidavit.  “However,” Hayes swears, “the normal operation of that 13 month guideline has been suspended as a result of requests by various ministries and governmental organizations that backup tapes be retained for special purposes such as litigation”.  Further on she adds, “as stated, certain pre-March 2004 tapes were retained because of the earlier litigation requests…”

A scandal ensued when it got out that Hayes swore someone had mysteriously ordered the litigation hold lifted just prior to the May 2009 election.  Backup tape destruction was ordered to begin in May 2009.  “Earlier this year, the holds for backups were released,” Hayes swore. “Starting in May of 2009, WTS (Workplace Technology Services) requested that backup tapes created prior to May of 2004 be over-written or disposed of.”

Gary Mason broke that story in the Globe, basing his report on Hayes’ first affidavit – a document sealed by the court.  What wasn’t revealed was who made the order to lift the hold.  Clearly, it was no ordinary mid-level bureaucrat, tossing out all electronic record backups related to litigation or criminal trials.

Still some records escaped the government’s attempt to destroy back-ups.

“I am advised by Lee Johnson of EAS that, after receiving the request to hold backups for this litigation, EAS employees located some pre-May 2004 litigation and special request tapes that were not yet disposed of,” Hayes swore.  “Some of these tapes fall into the period from June 5, 2001 to present.

In other words back-up tapes of relevant emails and other electronic records exist and have been preserved.  But it is likely they won’t escape destruction much longer.  Once litigation ends the hold can end, unless someone seeks those records under FOI.  That’s the only other way to restore the hold that keeps the records from being destroyed.

According to records destruction policy:

“Records eligible for final disposition must not be disposed of if they are identified as relevant during any of the following:

  • a litigation document discovery process;
  • an inquiry under the Inquiry Act;
  • a request for information under the Freedom of Information and Protection of Privacy Act;
  • or in any other extraordinary situation (e.g., a criminal investigation)”.

Note the second bullet.  A government announcement of an inquiry into the sale of BC Rail would automatically preserve these records.  No wonder the Premier and the Attorney General are so adamant.

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4 Responses to BC Rail affidavit: BC Libs could destroy records before RCMP

  1. North Van's Grumps says:

    Vaughn Palmer said that the evidence would be destroyed until after an Appeal.

    He didn’t clarify who might be launching an Appeal. Certainly not the Special Prosecutor, not The Attorney General (or those who signed off on the $6 million of taxpayers monies), not the Defense team for the Defendants. News media, you know, those guys who had to find seven others to get the $800 together to file an FOI on BC Ferries.

  2. kootcoot says:

    This is the time that Leonard Krog, as justice critic (and member of the brotherhood), should stand up for the people of British Columbia and seek an injunction to stop any further destruction of evidence and records dealing with the STILL suspect BC Rail sale/lease/theft/giveaway! After all injunctions are not just for quelling the people’s right to free speech, protest and to jail and kill elderly grandmothers like Harriet and Betty!

    If Leonard has nothing to even say about this (and I have heard NOTHING much about anything to do with BC Rail as the person who should be watching our back – perhaps he deserves to be a recall target as well. Apparently the “oh so” Special Prosecutor represents the cabinet rather than the people (otherwise he could tell his client THE PEOPLE, about the various backroom deals this trial has been) – after all, client/solicitor privilege shouldn’t apply between Wild Bill and us (we the clients)!.

    Over at the House I’ve designated this week Gordon Campbells Hail Mary Week – cabinet shuffles, interviews, TeeVee appearances – hell he’ll prolly send me a cheque for something or the other by Friday!

  3. RossK says:

    You know, and I’m saying this only half tongue-in-cheek, I’m starting to wonder if….

    Someone, or some organization, should make a strong accusation, based on some of the solid evidence already in the public record, that would trigger civic litigation that would force that material to be held due to the ensuing lawsuit.

    Assuming that such a strategy was effective in saving the material from destruction (and I’m not enough of a legal beagle to know if that is really the case vis a vis the difference between criminal and civil proceedings), would that not be the ultimate in calling their bluff?


  4. Ian:

    If your readers are interested in part of the “organized crime” story that led to the Basi-Virk case being torpedoed by the Special Prosecutor, then they should check out my blog at http://bcrailcasesecrets.blogspot.com

    I believe that Justice MacKenzie is using her ability to “seal” evidence to obstruct justice.

    Arleigh Chase

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