Monday, June 09, 2008


"Bennett's decision violated the informer privilege rule that protects a police informant from being identified," says S.P.


Legislature-raid prosecution says high court must protect informants

VANCOUVER — A B.C. court ruling that would reveal to defence counsel a police informant in the case that led to a police raid on the B.C. legislature violates the Evidence Act, says the special prosecutor at the high-profile trial.

Bill Berardino told a B.C. Appeal Court panel that he will not back away from protecting the police informant.

"The Crown will not breach this privilege," Berardino said as he thumped his finger on a podium in the courtroom.

The Crown is appealing a decision by the trial judge, B.C. Supreme Court Justice Elizabeth Bennett, allowing defence lawyers for three former B.C. government workers to attend an in-camera hearing where the informant will give evidence.

"The trial judge was told the in-camera hearing would identify the informant," he said. "The judge took a fundamental legal rule and changed it in a dramatic way." {Snip} ...

Berardino argued Bennett's decision violated the informer privilege rule that protects a police informant from being identified.

He said if the ruling was allowed to stand it would have a "chilling effect" on all police informants.

"The negative consequences are too great," he told the appeal court.

Berardino said asking defence lawyers to sign an undertaking to ensure confidentiality isn't good enough.

He told the panel about classified documents in a separate case that defence lawyers received after signing a similar undertaking. A few week later those papers - stamped confidential - were being used as part of another lawsuit, he said.

The transcripts of an in-camera hearing involving the informer's information before Bennett last December have been sealed until a decision is made by the appeal court.

Berardino said the Crown was prepared to give defence lawyers a synopsis of what the judge heard, but it didn't want them at the hearing.

"The court has a duty to protect and enforce the informant privileged and not to disclose any information which might tend to identify a police informant."

When someone even raises the question of informant privilege, Berardino said the court has to tread cautiously.

"The judge has made a finding here which is, with respect, pretty remarkable," he said. "She questioned if the person was even an informant."

Appeal Court Justice Ian Donald wondered if defence lawyers in a criminal case didn't have a stronger claim to attend such in-camera hearings and give the judge another point of view.

"It's the opportunity to prevent the court from being bamboozled," he suggested.

Berardino responded that a second opinion would come from another lawyer appointed by the court.

He said the appeal court had two choices, to uphold the informer-privilege rule or "disembowel" the court protection of informants.

Three days have been set aside for the appeal hearing.

The start of the breach of trust trial has been delayed repeatedly, in part because of this appeal.


This is an outrageous affront to the accused's right to a fair trial and the entire justice system of BC.

As someone who reports on whistleblowing and knows the costs well, I cannot comprehend that the Crown and our tax dollars are going towards arguing that an informant's rights mean more than an accused in a proceeding against them. To attempt to deny the defense's counsel to be present to hear the evidence and have an opportunity to examine the informant's testimony and to stand in a courtroom and state that the defense counsel signing an undertaking is not enough, is beyond contempt.

The real "chilling effect" in this case is that the Crown is spending millions of our tax dollars to subvert justice and an enshrined principle and precedent of law that accused have a right to face their accusers. That they have a right to hear and cross examine any testimony, or evidence used to prosecute them.

If centuries of English common-law do not take precedence in this case, our justice system is truly and completely null and void.

For Berardino to have the audacity to tell a Justice "The Crown will not breach this privilege" is a mockery of judicial independence and justice in BC. He is clearly speaking for his overlords, who will do ANYTHING to avoid having the rocks lifted up on their scurrilous dealings. He cannot claim that Madam Justice Bennett made an error here, she was absolutely correct in her judgment. And the informant would still be protected. By making a presumption that defense counsel would breach an undertaking of confidentiality is hostile, contemptuous and malicious. On the basis of actions thus far in this case, I'd say the defense counsel have conducted themselves with nothing but ethics, integrity and are a credit to their profession in their efforts to defend and uphold their clients' civil and human rights.

Berardino should be ashamed of himself as a member of the Bar. In a world full of lawyer jokes, he has sunk beneath all of them.

The public deserves the truth in this case and the accused deserve their day in court, with full knowledge of all of the evidence being asserted against them so they can defend themselves as they have a fundamental legal right to do. I wasn't aware BC had become Guatanomo Bay, but it seems to be heading there fast.
Thanks Mary - I was unable to attend today's Court of Appeal session - and frankly thought we media would be barred at the door!

I intend to be there and posting to my blog and hopefully reporting in 24 hours on Tuesday's event.
someone posted the fact that the Appeal court will review all decisions of the Supreme Court and render their own decision but unfortunately Bill didn't take that advice.

I cannot pretend to be educated in the ways of the law, but it seems to me (as a reader of everything on this website) that the supposed justification by Berardino for the request to bar the defense from the informant hearing was based on a very recent decision (regarding another case from only a couple of weeks earlier) at the time. It appeared from my readings to be an unprecedented request before that time. Now Berardino is indicating that Bennett veered away from long accepted practice by refusing to allow his request and shield this information from the defence. Could someone who knows about such things please clarify?
As the anon above I "cannot pretend to be educated in the ways of the law." However if this "informant" that Wild Bill is so anxious to protect actually has information relating to the commission of a crime, is this informant not OBLIGATED to share that information on pain of being charged with OBSTRUCTION of JUSTICE. Or is it Wild Bill who is attempting to obstruct justice?
Ah! Kootcoot, I believe you've hit the head of the nail about Wild Bill's OBSTRUCTION of JUSTICE.
Isn't this about where the rats start turning on each other?
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