Abbotsford South MLA John van Dongen is disappointed but respectful of the B.C. Supreme Court decision to deny the auditor general access to all documents linked to waiving $6 million in legal fees in the BC Rail case.
On Tuesday, Justice Robert Bauman issued his decision stating auditor general John Doyle's request for the legal documents of former ministerial aides Dave Basi and Bobby Virk violated solicitor-client privilege.
The two men pleaded guilty in October 2010 to breach of trust and receiving benefits in connection with the sale of BC Rail, but taxpayers covered their legal costs.
Doyle went to court to obtain access, among other things, to Basi and Virk's unredacted legal invoices stating it was essential for his audit of the government's handling of the BC Rail case.
Van Dongen, a former Liberal MLA who left the party citing concerns over the BC Rail affair, requested and got intervener status in the case.
Van Dongen said as an intervener he wanted to stress the high degree of public interest and need for transparency and access to all documents connected to the $6 million indemnity.
The MLA noted Bauman concluded the auditor general hadn't demonstrated that access to the privileged documents was absolutely required to undertake a credible audit. He agreed the decision wouldn't appreciably compromise the auditor general's job.
"I don't believe so, not in any significant way around the issues that matter," said van Dongen. "It won't impact his ability to address the real issues bothering the public, which is why the government arbitrarily and suddenly forgave $6 million in debt [to two men who pleaded guilty] contrary to established policy."
Van Dongen said he understood the reasons behind Bauman's decision that was soundly based on legal precedent.
"I knew solicitor-client privilege was considered a fundamental principle of the system," he said, adding he felt the public values of transparency and accountability in this particular case warranted legal consideration.
"However, I accept that legal precedent set some high tests and they weren't met in this case."
In his decision, Bauman wrote that solicitor-client privilege was fundamental to the proper functioning of the legal system.
"It is virtually an absolute privilege and must remain so," said Bauman.
"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."
Citizens must be able to freely discuss their legal positions with their lawyers and feel secure in knowledge that the solicitor and client relationship is "sacred", said Bauman, adding the decision was not "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," he said.