John van Dongen, Abbotsford-South MLA said he is disappointed, but understands and respects why Chief Justice Robert Bauman decided today to dismiss a petition by Auditor General John Doyle in his case versus the Attorney General involving about 100 BC government indemnity agreements.
“I was pleased to be part of the process as an intervener,” said van Dongen, a former solicitor general. “I learned much throughout the court process and gained significant new knowledge about the issues. It was the judge’s decision that the rigorous test prescribed by the recent Supreme Court of Canada decision in Blood Tribe for access to privileged solicitor-client legal advice were not met. The judge also concluded on the evidence before him that the Auditor General had not shown that access to the Basi-Virk privileged documents were absolutely required in order to perform a credible performance audit under the Auditor General’s Act.”
Van Dongen was granted intervener status in the BC Supreme Court case to address the public interest in transparency and accountability from his perspective as an MLA and to make submissions supporting full access to the Basi-Virk documents, as sought by the Auditor General.
“In my submission I wanted to emphasize for the court the high degree of public interest and the need for the complete transparency and accountability regarding all documents (including those for which Basi and Virk claim solicitor-client privilege) relating to the government’s decisions to write-off $6 million in legal fees contrary to established government policy,” said van Dongen.
The Basi-Virk criminal trial came to a sudden and unexpected end in October 18, 2010 with a plea bargain in court and a complete write-off of $6 million of legal fees debt owed by Dave Basi and Bob Virk.
Judge Bauman noted in his ruling that he had “granted intervener status to John van Dongen, a member of the Legislative Assembly who has a strong interest in these matters” and “made thoughtful submissions essentially supporting the position advanced by the Auditor General.”
Van Dongen said he believes that Chief Justice Bauman made some important comments to the public in paragraphs 23 to 25 on page 8 of his decision:
- “. . . I state my conclusion: here as in so many other cases of conflict between other values and the principle of solicitor-client privilege, the privilege must be protected; it must prevail against abrogation by inference. Solicitor-client privilege, as the case law repeatedly reminds us, is fundamental to the proper functioning of our legal system. It is virtually an absolute privilege and must remain so. Properly understood, the privilege does not act as a shield, obscuring from view matters that should be publically aired. But that is the reaction of many in this contest between those who assert the privilege and the Auditor General in his quest for transparency and accountability.”
- “Solicitor-client privilege is not a lawyer’s ‘trick’ to avoid proper scrutiny of her client’s conduct or the steps taken on his or her behalf during the retainer, it is a critical civil right. All citizens must be able to freely discuss their legal positions with their lawyers and to take frank advice thereon, secure in knowledge that this relationship – that between solicitor and client – is as sacred as any secular business relationship can be.”
- “It would be wrong to conclude that the result in this case represents the triumph of secrecy over transparency and accountability. It rather represents the reaffirmation of a principle which is a cornerstone value in our democracy and which has been so for hundreds of years. While the privilege may be abrogated by legislation, clear and unambiguous language doing so is required and even then the legislation must be consistent with the Charter.”
“I appreciate that the judge made a conscious effort to ensure that the public had the opportunity to understand his legal decision in the proper context,” said van Dongen.
To read Judge Bauman’s decision simply