VANCOUVER - The judge at the Basi-Virk trial ruled Wednesday that a defence abuse-of-process application should be heard at the end of trial, not before.

B.C. Supreme Court Justice Anne MacKenzie sided with special prosecutor Bill Berardino, who argued the defence application should be heard after all the evidence is heard.

“I decline to hear this defence application before trial,” the judge said, adding the defence can renew its application at the end of trial after the testimony of Erik Bornmann, who was offered a Crown deal for immunity from prosecution.

The defence lawyers had argued that the application should be heard before the trial starts to determine whether there had been a misuse of the deal offered to Bornmann, which the defence alleged breached the constitutional rights of three former government aides accused of corruption.

“We say that the trial fairness is impaired,” defence lawyer Tim Russell argued about the immunity deal reached in 2004 with Bornmann, who is expected to be a key Crown witness.

The defence took the position that Bornmann’s testimony will be tainted by the immunity deal, so charges should be stayed, thereby saving taxpayers thousands of dollars because the trial would end before hearing months of testimony.

Crown communication counsel Robin Baird said immunity from prosecution deals are very rare.

"We don't do it ever for minor stuff," Baird said. "It very rare and it only happens in very serious cases when we deem it necessary to bring a viable prosecution."

He said such deals have to be discussed thoroughly by the prosecutor and the deal must be approved at a high level – by a regional Crown or deputy regional Crown, and the assistant deputy attorney general must be advised.

Bornmann, now 33, was a lobbyist representing a U.S. company, OmniTrax, when it was bidding to buy BC Rail operations in 2003.

He allegedly paid more than $24,000 in bribes to two senior provincial government ministerial assistants, Dave Basi and Bob Virk, in exchange for confidential information about the BC Rail bidding process. Aneal Basi is also charged in the case.

CN Rail was the successful bidder, buying BC Rail freight operations for $1 billion in 2004 in what has become a controversial privatization deal.

Bornmann, a key B.C. federal Liberal party organizer at the time, signed a Crown immunity agreement and was never charged.

The trial has been delayed for years by a series of pre-trial applications seeking Crown disclosure. About one million documents have been disclosed so far to the defence.

The case first arose with an unprecedented police raid of the legislature on Dec. 28, 2003.

nhall@vancouversun