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.
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