Thursday, June 12, 2008


Defence wants Premier to testify at Basi-Virk trial

The Globe and Mail - June 12, 2008

VANCOUVER -- Alleging "political interference" in a case that involves an unprecedented police raid on the B.C. legislature, defence lawyers have filed an application to have the Premier testify at a political corruption trial.

In an application for relief filed with the Supreme Court of British Columbia, the lawyers for three former government employees facing criminal charges have asked that Gordon Campbell, deputy attorney-general Allan Seckel and other officials testify in open court about their actions when an aide to the Premier handled documents that police had seized in the case.

The defence is alleging that the Charter rights of Dave Basi, Bobby Virk and Aneal Basi were violated "by virtue of political interference by the provincial government and more particularly the Premier, the Premier's office, agents and staff and the cabinet and its agents and staff." {Snip} ...

Police seized the documents on Dec. 28, 2003, in a raid on the offices of Dave Basi and Mr. Virk, who at the time were top ministerial assistants involved in the government's pending $1-billion sale of BC Rail.

Although about 300,000 pages of government documents have been released to the defence in the disclosure process, there has been a long legal tug-of-war over which documents are relevant, and which the government can withhold from the courts because they are covered by cabinet privilege.

The application was filed after defence lawyers learned that a court-sanctioned protocol for handling documents was not followed.

"The protocol was ostensibly created to transparently allow the provincial government to review the seized hard copy documents and seized electronic documents ... to determine whether it would assert privilege ... and to prevent disclosure of the documents to anyone, including [the] special prosecutor," the application states.

"The protocol was designed to protect the integrity of the investigation from political interference and also to protect the potential rights of accused persons," it says.

The protocol required anyone reviewing the seized documents to sign an undertaking with the court that restricted them from discussing the material with anyone.

The documents were considered so sensitive they were held in a locked evidence room and prosecutors or police did not read the cabinet material until government officials covered by the protocol had read it and waived privilege.

During the disclosure process, however, defence lawyers learned that in 2004, a government lawyer had asked Ken Dobell, who at the time was Mr. Campbell's chief adviser, to review three key documents because the RCMP wanted to use them in questioning Gary Collins, who was then the finance minister and Dave Basi's boss.

Mr. Dobell told the lawyer that privilege should not be asserted over the documents. However, Mr. Dobell was not among those covered by the court protocol.

"In November of 2004, the protocol was violated in an egregious manner, given the highly political nature of this investigation and its potential effects on elected officials," states the application.

"At no time was Mr. Dobell named as a person who could provide instructions on behalf of the provincial government or cabinet with respect to the documents, nor, most significantly, did Mr. Dobell enter into any undertaking in respect of his review of the three documents. ... Mr. Dobell was not restricted in any way in respect of the documents he reviewed," it says.

The application notes that approximately one month after Mr. Dobell reviewed the documents, Mr. Collins, the minister overseeing the sale of BC Rail, resigned from government, saying he had decided to take a private-sector job.

In the application, the defence lawyers complain that the Premier and other government officials have refused to answer questions about the issue, and about a change the Premier announced in the House, in May, 2007, in which he said Mr. Seckel was the person deciding whether documents were privileged.

The application alleges that George Copley, the lawyer representing the government's executive council and the point man in the disclosure process, was not informed of the change in the protocol process.

The application states: "The political interference in respect of the protocol and the documents over which the government asserts its privilege ... has clearly violated the accused persons' right to make full answer in defence in respect of the documents."

It states that the violation "must be remedied at a minimum" by disclosure of all documents over which the government is asserting privilege, and by calling Mr. Campbell, Mr. Seckel and Mr. Dobell to give evidence on the matter. {Snip} ...

Judges unable to reach decision after three days in unique dilemma over protecting informant's identity

The Globe and Mail - June 12, 2008

VANCOUVER -- The British Columbia Court of Appeal reserved judgment yesterday on a difficult legal question concerning when and how the state can throw a cloak of secrecy over all information concerning a witness.

After listening to three days of argument in an appeal stemming from a decision in a political corruption trial, Chief Justice Lance Finch said the court couldn't give an immediate ruling, and didn't know when one would be ready. {Snip} ...

... the matter they face is a difficult one, with all three judges noting at different times that the court may never have faced a dilemma quite like it before.

Being appealed is a decision by Madam Justice Elizabeth Bennett of B.C. Supreme Court, who ruled that defence lawyers could be present at a hearing when special prosecutor William Berardino presents information concerning a secret police witness.

Mr. Berardino argues that ruling was wrong, and he is asking for exclusion of the defence, saying under Canada's strict laws only the police, judges and Crown attorneys have the right to know the identity of a privileged informant.

He said it will be impossible for him to call any evidence, period, without revealing the identity of the informant.

Michael Bolton, representing Dave Basi, has argued that defence attorneys must be present at the hearing if the accused are to get a fair trial.

He asked how defence lawyers could challenge the assertion of informer privilege, for example, if they weren't allowed to ask any questions about the police source.

"If the witness they wish to cloak with privilege is ... someone with material evidence, such as one of the [government's] political operatives ... the defence will have no opportunity to consider pursuing that evidence," he said.

Mr. Bolton said the defence doesn't want to know the informant's identity, just the circumstance under which the police agreed to grant privileged informer status.

Mr. Justice Ian Donald cautioned, however, that the identity of an informer could inadvertently be leaked through a line of questioning.

"What if a review of the informant would put you on a line of inquiry which would make it obvious [who the informant was] to anyone in the know ... in other words connect the dots," he said.

Mr. Bolton replied that the trial judge would be there for guidance and to steer lawyers away from such questions.

Madam Justice Catherine Anne Ryan said if the Crown is correct, then the identity of the informer might come out no matter how cautious the court was, and wondered whether Judge Bennett's ruling wasn't in effect an order to disclose the identity of the informant.

The court has heard that Canada's laws were toughened up after Sept. 11, 2001, to ensure that secret informants have complete protection from being identified.

But she said excluding defence lawyers is an unusual procedure.

"Our whole system is based on the adversary system, where you have both sides [arguing]," she said. "And that's what [Judge Bennett] wants to hear ... you have to have both sides represented."

Joseph Doyle, representing Aneal Basi, said the Crown has put the judges in a difficult position by insisting that nothing can be said without identifying the informant.

"What do you do with this case? What evidence is there to make a decision?" he asked. "At this stage, there is none."

Mr. Doyle summed up the Crown's position this way: "We can't give you any evidence. We can't give you any evidence about why. We just want you out of the room."

He urged the judges to uphold Judge Bennett's ruling.

Defence Wants Premier To Testify At Basi-Virk Trial

VANCOUVER -- Alleging "political interference" in a case that involves an unprecedented police raid on the B.C. legislature, defence lawyers have filed an application to have the BC Premier Gordon Campbell testify at a political corruption trial ...


The defence and the government are on the same side. For Campbell to testify, this will only give the defence a ticket to ride! Throw the case out, and shoot the messenger, for not reporting the whole message in the first place!
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