Wednesday, June 11, 2008


Berardino's wild appeals court action

The BC Rail Scandal in the Courts. The Wild Appeals Court Action of Special Crown Prosecutor William Berardino, and the Growing Repression of Freedoms in Canada. June 10, 2008.

Robin Mathews

The "small" story in Vancouver, B.C., is close to incredible. On November 23, 2007, William Berardino told Madam Justice Elizabeth Bennett, presiding judge on the cases of Dave Basi, Bobby Virk, and Aneal Basi, that he would bring before her on December 3 a request to have some witnesses appear in camera to give their testimony. (The three men accused - Basi, Virk, and Basi are former cabinet aides of the Gordon Campbell cabinet - charged, variously, with fraud and breach of trust.)

As the weeks have passed Berardino requested that one of the witnesses (a police officer) give testimony to put matters in context - not only in camera but, as they say, "ex parte" which means in this case without the accused or counsel for the accused present. Normally, such a request would be squashed out of hand as being contrary to the primary principles of fair trial, the rights of the accused, and the principle of open courts as fundamental to democratic society.

But (apparently arising out of the Air India trial) the Supreme Court of Canada has made a ruling that may be argued (but not necessarily convincingly) that an informer has an almost absolute privilege to disguise identity - once evidence shows he/she is an informer in danger. That "informer privilege" may be argued to trump all other principles mentioned just above. And so William Berardino argues that the witness to give testimony must be heard "ex parte" and in camera to protect the identity of an informant in danger who might be identified in the testimony. He apparently told the presiding judge that documents as evidence would not be sufficient; an hour of direct police officer accounting would be necessary. And during that accounting, the identity of the informant might become clear.

Defence made some efforts to compromise. Counsel would be present, but not the accused. The event would be in camera (press and public excluded) and Defence counsel would guarantee absolute confidentiality. That did not satisfy the Special Crown Prosecutor. Madam Justice Bennett carefully examined precedent and practice and declared that counsel for the accused had to be present. William Berardino then appealed to a three person Appellate Court to have Madam Justice Bennett's ruling struck down. (Appeal Court Judges Anne Ryan, Ian Donald, and Chief Justice Lance Finch hearing the appeal, June 9 to June 11.)

Berardino argued (June 9) that the Madam Justice Bennett had made a serious error. Her ruling he said is "completely incorrect". Disagreeing strongly with Defence, he argued that "informant privilege" means that only the judge, the police, and the Crown have the right to know the identity of the informant. On June 10, Defence (Jim Blazina and Michael Bolton) argued that the privilege in no way excludes counsel for the accused - the final and basic point at issue.

William Berardino's position on June 9 appears to have been, to quote Mark Hume (Globe and Mail, June 10, 08, A1), "that the Crown will not proceed if courts demand defence lawyers be given the indentity of an informant". The position stands almost as an ultimatum, and one has to ask from whom it comes, ultimately.

I wrote in another piece on the BC Rail Scandal in the Courts that since Gordon Campbell unilaterally changed the protocol for deciding if cabinet materials would be claimed as "privileged" documents, all court activities on the matter are political. Campbell unilaterally changed a nearly four year protocol that was working and named a Deputy Attorney General as arbitrar of privilege for cabinet materials. He did that, apparently, without any consultation of the kind one might expect. (Campbell also apparently, earlier, permitted his uncleared Deputy, Ken Dobell, to violate the protocol in place.) Gordon Campbell, I allege, thereby entered the legal process as an actor. As the political leader of a government out of which charges against the accused have come he has, I allege, tainted all further court processes.

That action by the premier of the province throws into highlight the fact that the BC Rail Scandal has been a part of the charges against Basi, Virk, and Basi, inevitably, from the beginning. Charges of political behaviour have dogged the hearings leading to trial. The Gordon Campbell cabinet alienated BC Rail from the people of the province corruptly, and parts of the agreement which alienated it are still secret. The charges against the three men arise directly out of the processes by which BC Rail was "sold".

Michael Bolton (June 10) attempted to suggest that the strange demands of William Berardino must be seen in the context of the political and often turbulent milieu in which the years of hearings have been conducted. He was quickly silenced. The problems that faced Madam Justice Bennett (and the Defence) specifically in relation to the "confidential informant" are that

(a) there is no factual evidence to support the claim the informant's identity will be revealed.

(b) The so-called confidential informant appears to have been well known to the seven major investigators (a strangely wide area of confidentiality).

(c) Crown would not write an affidavit for the judge's eyes only to provide a very basic ground of evidence. She said, quite simply, that she needed evidence to make a determination, otherwise Defence would have to be present. Moreover, she believed that there was merit in the presence of Defence counsel.

(d) The so-called "confidential informant" may not be an informant at all. He may be a Liberal of significance whose identity released would explode the political container in which the case is being carried - and so must be hidden. In fact, candidates are being put forward as the Mr. X. Wild rumour offers him as a highly placed federal Liberal then, no longer a Liberal now, who may be a Citizenship Court Judge. He may, wild rumour speculates, have known Dave Basi in the context of work he did for the federal Party. Etcetera.

(e) Finally (for now), continuing problems with the RCMP make the hearing of testimony from an RCMP officer without Defence present a matter of deep concern.

That last opens the issue which the three Appellate Court judges almost openly refused to hear. And for good reason - which will follow a short description of the "political and turbulent" milieu of the hearing process thus far. From the beginning Defence has loudly maintained that the Special Crown Prosecutor has been lax in providing disclosure of evidence to the Defence. A part of that alleged delay, inadequacy, obstruction (?) has originated, it is alleged, with the RCMP. In fact, Defence has conveyed the idea, I believe, that the RCMP "decided" what would be disclosed, often. I have said, in other reports, that I believe Madam Justice Elizabeth Bennett (consciously or unconsciously) has abetted delay by failing to demand and to insist upon prompt, clean, full disclosure of materials from the RCMP and the Special Crown Prosecutor. I believe she should have presented them with the possibility of being charged with contempt of court.

But the problem with that may be

(a) the problem of "the club" refusing to see imperfection in its own members. It may be more darkly

(b) the result of a hidebound hierarchy with political loyalties that prevented necessary action. It may be

(c) that I don't understand proper court procedure.

Whatever the case, Michael Bolton (June 10) made two kinds of argument. The first was argument supporting the claim that the Supreme Court ruling in no way absolutely invalidates Defence knowledge of a confidential informant. Then, secondly, Bolton moved to the "political and turbulent milieu" out of which, he apparently believes, the appeal of the Special Crown Prosecutor must be seen to have come - and believed the judges should know of that milieu, too. He was apparently vexed that the Special Crown Prosecutor should have suggested the Defence counsel might not be trustworthy enough to have confidential knowledge of the informant's identity (a political and turbulent suggestion?).

Bolton began to speak of the complexity of the issue, in which Bruce Clark might be a key witness against the accused, a member of an MLA's family, brother of Christy Clark, brother-in-law of Mark Marissen, high profile Liberal Party figure. Asked by Madam Justice Anne Ryan where he was "going", Bolton asserted that the information was material because it showed what the judge is dealing with. What more he wanted the judges to recognize was lost in obvious protestation.

I say above that the Appellate judges refused to hear such matter, and I say that is so for good reason. If Michael Bolton had been allowed to continue, to describe the political and turbulent milieu in which the Basi, Virk, and Basi hearings have existed, he might have forced the judges to consider the astonishing delays that have dogged the process. And they might have had to ask themselves what role the Special Crown Prosecutor has had in the delays of disclosure. And they might have discovered they had to find him at fault in the matter. Then what would they do? Better to close off that line of thought altogether, and fast.

That brings to mind the "biggest trial against police officer corruption" in Canada which recently was thrown out of court (because of delays, etc.) by a Toronto judge - who, it seems, did not discipline disclosure and who permitted a Special Crown Prosecutor room for endless delays.

The story told here brings to mind, also, movements against democratic society in Canada which are appearing on all sides. Stephen Harper government action against effective Freedom of Information structures are, in fact, increasingly obstructing information (which the public has a right to acquire) in a way that is destructive of our freedoms. Information control by that government (Lawrence Martin, Globe and Mail, May 5 08) has created what can only be described as a semi-fascist "enemies' list". Donald Savoie's recent book, Court Government and the Collapse of Accountability in Canada and the United Kingdom, describes a federal government gagging elected representatives on behalf of "courtiers" - unelected power figures making policy outside of parliamentary space. My own experience of RCMP inadequacy in Alberta is shocking and reaches from the lowest levels into the top national echelons of the force. I write of it in a forthcoming vivelecanada column. What I write about and reveal there may be related to alleged RCMP behaviour in the BC Rail Scandal.

In B.C. the Gordon Campbell government is being hit and hit with revelations of insider favours, and lobbyists working without registering and without reporting their activities. Two of Campbell's closest political allies, Patrick Kinsella and Mark Jiles, have been working on behalf of huge corporations such as Alcan, Accenture, and B.C. Motion Picture Production Industry Association from resumes that list strong relationships with B.C. politicians like Colin Hansen, Kevin Falcon, and Olga Illich as well as federal cabinet minister David Emerson (who has worked closely with Gordon Campbell). All this information from Sean Holman, independent net writer. Both Alcan and Accenture would be judged by many British Columbians to be working actively against B.C. interests.

A further test of the state of justice in the country, and especially in B.C., will be provided when the three judges of the B.C. Appeals Court hand down their judgement on William Berardino's appeal to reject the decision made by Madam Justice Elizabeth Bennett that Defence counsel must be present at the in camera testimony received from a police witness in the Basi, Virk, and Basi case. If the judges find for William Berardino, we may be sure they are forging a precedent that will continue the destruction of fair trials, open courts, and the rights of the accused in Canada.



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