12/03/2012 05:50 EST | Updated 02/02/2013 05:12 EST

Auditor general asks courts for broader access to BC Rail trial files

VANCOUVER - Two years after a pair of former British Columbia ministerial aides pleaded guilty to leaking government secrets, the province's auditor general says he's still in the dark about a controversial $6 million legal payout in the BC Rail saga.

In final arguments Monday in B.C. Supreme Court, the lawyer for Auditor General John Doyle asked the chief justice to compel third-party lawyers to open their files in the case of David Basi and Bobby Virk, in spite of solicitor-client privilege.

"(It) is only for a limited purpose for (the auditor) to be able to do his audit, it's not a breach in terms of exposing solicitor-client privilege to the world," Louis Zivot said outside court.

Legal teams made five days of initial arguments about the scope of the auditor general's powers in September.

The proceedings were launched after Doyle realized he was still missing information pertaining to the unexpected October 2010 agreement that saw the government cover $6 million in legal fees for Basi and Virk.

In August 2011, another judge told the government to open its books to Doyle's office after Basi and Virk agreed they could be passed along. But certain files, held by third-party lawyers, were still withheld. Other documents that were handed over are heavily redacted.

Zivot said that's prevented Doyle from doing his job.

"There isn't sufficient evidence to conduct this audit," he told Chief Justice Robert Bauman.

Although Basi and Virk's files are the central focus of the case, Doyle's lawyer argued that he should have access to about 100 legal payouts dating back 15 years. The files are called indemnity agreements, which in most cases were payments for the legal costs of government employees who were not found guilty.

Among those files, fewer than 30 people have agreed for their files to be opened.

Zivot said the court should affirm Doyle's interpretation of the Auditor General's Act, which he believes already gives him the power to look of the files. But if the judge disagrees, it could mean the only way to get access would be through amending the legislation.

Zivot said getting an answer about the breadth of the auditor's powers is important not only in B.C. but for others across Canada.

"Most of which have similar legislation," he said. "If an auditor does not have access to solicitor-client information to do his audits, they may be impaired in terms of being able to fulfil their complete role as an auditor general."

The saga began in 2003, with a mysterious and shocking police raid on the provincial legislature, and ended with an $18 million trial. Basi and Virk were sentenced to two years house arrest, which expired in October.

The government has not taken a position in the case, but a lawyer known as an amicus curiae was been appointed for unrepresented interests. Michael Frey opposed access to the files.

Independent MLA John van Dongen was also granted intervenor status in the case. Van Dongen is pushing for the files to be released because he believes a complete audit is in the public interest.

Basi and Virk admitted in the fall of 2010 to leaking confidential BC Rail documents, only months into a criminal trial that took six years to commence. The documents were handed to a lobbyist for a U.S. company that was bidding on a section of BC Rail after the Liberal government decided to privatize the railway.