Thursday, December 06, 2007
Derailing the B.C. Rail trial?
Will Basi-Virk secret witness hearing involving police informer derail whole trial? Veteran lawyer wonders
By Bill Tieleman
The trial of three provincial government aides charged in the BC Legislature Raid case could be further delayed - or even never happen - thanks to a lengthy and legally complex pre-trial hearing today in BC Supreme Court, says a prominent media lawyer.
Veteran lawyer Roger McConchie, representing CTV, the Globe and Mail and the Canadian Press, told reporters outside court that legal wrangling over the right of the Crown to have a judge hear from a police informant in secret - without defence counsel, the media or public in attendance could delay the March 2008 trial date - or even put it off forever.
McConchie described the legal proceedings as like a Russian Matryoshka nesting doll, where each doll conceals another inside.
At stake - a Special Prosecutor application to Justice Elizabeth Bennett for a Section 37 certificate under the Canada Evidence Act that would grant "informer privilege" for a witness and exclude even defence lawyers from the courtroom.
"If the certificate is sustained, counsel for the accused can apply to the Appeal Court. My guess would be if that happens, the March trial date would be delayed," McConchie said.
"If the certificate fails then we're back to this morning's decision and counsel for the defence get to stay. If not, counsel for the accused can file an appeal and if that happens, it's anyone's guess if this is ever going to go to trial," said.
Then McConchie described the whole situation as like a Matryoshka.
"It is a truly nested doll hearing - I've never seen one before. How far down is this series of nested doll in-camera hearings going to go?" McConchie asked.
Bennett has adjourned the Court until 2 p.m. at which time she will hear arguments from defence counsel but she has relaxed the temporary publication ban on proceedings.
Earlier Bennett cited a long list of legal cases before ruling that defence lawyers could remain in the court room to hear the Crown's application given certain undertakings on their part to protect the informant's identity.
That ruling caused Special Prosecutor Janet Winteringham to ask for the Section 37 application, which would again see the defence counsel excluded.
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Bill continued later:
"It is a truly nested doll hearing - I've never seen one before. How far down is this series of nested doll in-camera hearings going to go?" McConchie asked.
A sign at BC Supreme Court Room 54 says it all for this afternoon:
"This Courtroom Is Closed To The Public."
After a lunchtime adjournment Bennett heard arguments against the secret witness application from defence counsel for David Basi, Bob Virk, who face breach of trust and fraud charges, and Aneal Basi, who faces money laundering charges.
All charges stem from allegations by police that Dave Basi and Bob Virk passed on confidential government documents regarding the $1 billion privatization of BC Rail to one of the bidders through lobbyist Erik Bornmann, now the Crown's key witness. Aneal Basi is alleged to have passed on money from Bornmann to Dave Basi.
Unfortunately, I cannot tell you what the defence argued in court because Justice Bennett banned the media, the public and media lawyers shortly after the hearing resumed.
And defence lawyers leaving the closed courtroom for an afternoon break declined all comment, citing the judge's ruling that the hearing proceed in secret.
Bennett did relax the temporary publication ban on proceedings that had been imposed earlier.
That ban had prevented me and other journalists from temporarily even reporting that the secret hearing was about hiding the identity of a police informant, even though we had previously reported it without restriction.
Earlier Bennett cited a long list of legal cases before ruling that defence lawyers could remain in the court room to hear the Crown's application.
"I do not conclude that Named Person applies to the exclusion of defence counsel," Bennett said. "I rule defence may be present, given certain undertakings." Those undertakings, she said, would protect the identity of the informer from being disclosed.
But that ruling caused Special Prosecutor Janet Winteringham to ask for the Section 37 application, which would again see the defence counsel excluded. [Lead Special Prosecutor Bill Berardino was absent today.]
And Winteringham felt Bennett's temper when she first told the Justice that the Crown would delay filing the application.
Winteringham: "I'd like to file it Monday."
Bennett: "That's one sentence - I don't understand. I want it today. When can you have it?"
Winteringham: "Yes. By 11:30 a.m."
"This Courtroom Is Closed To The Public."
After a lunchtime adjournment Bennett heard arguments against the secret witness application from defence counsel for David Basi, Bob Virk, who face breach of trust and fraud charges, and Aneal Basi, who faces money laundering charges.
All charges stem from allegations by police that Dave Basi and Bob Virk passed on confidential government documents regarding the $1 billion privatization of BC Rail to one of the bidders through lobbyist Erik Bornmann, now the Crown's key witness. Aneal Basi is alleged to have passed on money from Bornmann to Dave Basi.
Unfortunately, I cannot tell you what the defence argued in court because Justice Bennett banned the media, the public and media lawyers shortly after the hearing resumed.
And defence lawyers leaving the closed courtroom for an afternoon break declined all comment, citing the judge's ruling that the hearing proceed in secret.
Bennett did relax the temporary publication ban on proceedings that had been imposed earlier.
That ban had prevented me and other journalists from temporarily even reporting that the secret hearing was about hiding the identity of a police informant, even though we had previously reported it without restriction.
Earlier Bennett cited a long list of legal cases before ruling that defence lawyers could remain in the court room to hear the Crown's application.
"I do not conclude that Named Person applies to the exclusion of defence counsel," Bennett said. "I rule defence may be present, given certain undertakings." Those undertakings, she said, would protect the identity of the informer from being disclosed.
But that ruling caused Special Prosecutor Janet Winteringham to ask for the Section 37 application, which would again see the defence counsel excluded. [Lead Special Prosecutor Bill Berardino was absent today.]
And Winteringham felt Bennett's temper when she first told the Justice that the Crown would delay filing the application.
Winteringham: "I'd like to file it Monday."
Bennett: "That's one sentence - I don't understand. I want it today. When can you have it?"
Winteringham: "Yes. By 11:30 a.m."
The secret hearing - and the ban on media and the public - continues on Friday.
It is unclear if or when defence counsel might be excluded too, if Justice Bennett so orders.
It is unclear if or when defence counsel might be excluded too, if Justice Bennett so orders.
Comments:
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Well Mary, the one hunch we had appears to have been accurate:
"I do not conclude that Named Person applies to the exclusion of defence counsel," Bennett said. "I rule defence may be present, given certain undertakings." Those undertakings, she said, would protect the identity of the informer from being disclosed.
The Named Person case (which anticipated throwing out everyone except the Crown) appears not to apply....
I guess we're halfway there...obviously there won't be any appeal of that ruling until after we see what happens tomorrow.
Do we call this a 'victory' or just a time out?
"I do not conclude that Named Person applies to the exclusion of defence counsel," Bennett said. "I rule defence may be present, given certain undertakings." Those undertakings, she said, would protect the identity of the informer from being disclosed.
The Named Person case (which anticipated throwing out everyone except the Crown) appears not to apply....
I guess we're halfway there...obviously there won't be any appeal of that ruling until after we see what happens tomorrow.
Do we call this a 'victory' or just a time out?
It's just a time out G West. Don't forget that Ms Winteringham filed for a section 37 application.
What really stands out for me is Winteringham told the Justice she'd "like to file it Monday" This statement by her (the prosecution) only tells me that they are stalling for every minute they can get. I am more convinced every day that the government doesn't want this trial until after the next election. They don't want you and I to know about the illegal sale of BC Rail.
Mary, here's hoping that Justice Bennett can see through these stall tactics and the reason for them. She's intelligent, so I think she can.
What really stands out for me is Winteringham told the Justice she'd "like to file it Monday" This statement by her (the prosecution) only tells me that they are stalling for every minute they can get. I am more convinced every day that the government doesn't want this trial until after the next election. They don't want you and I to know about the illegal sale of BC Rail.
Mary, here's hoping that Justice Bennett can see through these stall tactics and the reason for them. She's intelligent, so I think she can.
# posted by 
: December 6, 2007 at 5:54 p.m.
: December 6, 2007 at 5:54 p.m.
I'm with gary e on this one G Western One......
Also, I found it very disturbing that, once again, when the going got tough the Special Prosecutor chose to be absent.
Sorry to be so cynical about the latter point but past performance is seriously influencing my view of things. I mean it's not as if Justice Bennett did not make a big deal about how important this week was going to be to the trial.
Last point.....anybody got any feelings/opinions on what Roger McConchie told Mr. T. about this resulting in another delay in the start of the trial?
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Also, I found it very disturbing that, once again, when the going got tough the Special Prosecutor chose to be absent.
Sorry to be so cynical about the latter point but past performance is seriously influencing my view of things. I mean it's not as if Justice Bennett did not make a big deal about how important this week was going to be to the trial.
Last point.....anybody got any feelings/opinions on what Roger McConchie told Mr. T. about this resulting in another delay in the start of the trial?
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Oh I think you're right guys...I guess I'm into wishful thinking - I still wonder if the whole thing will come to a screeching halt tomorrow or not?
Wouldn't you like to see a bit more comprehensive coverage of this case and the issues - not to mention the reason why the Prosecution is using the terms of the Canada Evidence Act to protect a witness.
Some aspects of the Canada Evidence Act, if I'm not mistaken, are very similar to the American concept of pleading the Fifth.
Couldn't possibly be that, could it?
On the other hand, I can think of one potential Crown witness who might like to be able to say: 'I decline to answer this question on the grounds that it might incriminate me.'
But that's hardly a secrecy issue.
On the McConchie question...I wonder if the speculation was about what effect a media appeal of a possible judicial ruling to exclude would have on the fate of the trial.
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Wouldn't you like to see a bit more comprehensive coverage of this case and the issues - not to mention the reason why the Prosecution is using the terms of the Canada Evidence Act to protect a witness.
Some aspects of the Canada Evidence Act, if I'm not mistaken, are very similar to the American concept of pleading the Fifth.
Couldn't possibly be that, could it?
On the other hand, I can think of one potential Crown witness who might like to be able to say: 'I decline to answer this question on the grounds that it might incriminate me.'
But that's hardly a secrecy issue.
On the McConchie question...I wonder if the speculation was about what effect a media appeal of a possible judicial ruling to exclude would have on the fate of the trial.
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