Wednesday, June 11, 2008

 

Informant may not qualify

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INFORMANT MAY NOT QUALIFY FOR IDENTITY PROTECTION, COURT TOLD

MARK HUME
The Globe and Mail - June 11, 2008

VANCOUVER -- The British Columbia Court of Appeal was told yesterday that a secret police source, whose identity is being protected by the Crown in a political corruption case, may not deserve to be covered by Canada's sweeping privileged informant laws. {Snip} ...

[Special Prosecutor] Berardino has said that it is impossible for him to present any information at that hearing without identifying the informant, so he is asking the Court of Appeal to overrule Judge Bennett, and bar the defence. He argued that under Canada's privileged informant laws, only the police, the Crown and a judge are allowed to know the name of a police source.

However, Jim Blazina, who is representing Mr. Virk, said that while it is clear the courts have a responsibility to protect the identity of a privileged informant, that status is not automatically granted just because the Crown asks for it. A hearing must be held first, he said, at which a judge must hear evidence to justify the granting of privileged informant status.

Mr. Blazina said the law makes clear that a privileged informant can be named only if it is the only way to establish the innocence of an accused. The right of the accused to a fair trial and the right to full defence are not enough to trump the right of a privileged informant to protection, he acknowledged.

"But that doesn't mean the accused have no rights," he told a panel of appeal court judges.

"There is a right to hear the evidence, a right to challenge that evidence ... [and] a right to make submissions to the trial judge about whether that privilege exists or not," Mr. Blazina said. He said the procedure for which the Crown argued would deny the accused those rights.

Mr. Blazina said Judge Bennett ruled correctly when she ordered a hearing that the defence could attend. He said it would be possible to ask questions "around the periphery" of the informant issue, without getting to the substance of who the source was.

That questioning, he said, might help Judge Bennett decide whether privileged informant status is really warranted in this case. He pointed out that Judge Bennett already had concerns about that issue, because in her ruling she noted that "it's not clear cut in this case whether privilege applies."

Mr. Blazina said that in ordering a hearing Judge Bennett wasn't telling the Crown to identify the informant, but only "to go as far as they can" without revealing the identity. Mr. Blazina said the judge could always order the defence counsel to leave the courtroom if any evidence was to be presented that might identify the informant.

He said the hearing should go ahead for however long it could, "be it three minutes or three days," with the defence present. "To exclude defence counsel completely ... with defence counsel having no input whatsoever, is certainly going too far," he argued. {Snip} ...


http://www.theglobeandmail.com/servlet/story/LAC.20080611.BCBASI11/TPStory/National

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DISPUTE OVER INFORMANT'S PRIVILEGE BROADSIDES RAIL TRIAL
Special prosecutor has concerns over identity disclosure in Basi, Virk trial

Ian Mulgrew
Vancouver Sun - Wednesday, June 11, 2008


Five years after the unprecedented raid on the B.C. legislature, the resulting criminal trial on corruption charges may turn on the special prosecutor's objections to a planned in-camera hearing into the role of a key police informant.

Special prosecutor Bill Berardino this week asked B.C.'s highest court to block the trial judge from examining the validity of the informant's claim of privilege in the presence of lawyers representing the three ex-government aides accused of influence peddling. {Snip} ...

Berardino told the B.C. Court of Appeal, however, that any attempt to examine the circumstances surrounding the informant's relationship with the police could reveal his or her identity.

No evidence can be called, he told the panel of senior jurists, including Chief Judge Lance Finch, because even the most benign piece of information could pierce the informant's privilege. He said he cannot allow that to happen.

Defence lawyer Joseph Blazina, though, told the three justices Tuesday that the special prosecutor was issuing an "ultimatum" to the trial judge and trampling on the rights of the three accused.

B.C. Supreme Court trial judge Elizabeth Bennett made two decisions in December that would allow defence lawyers to attend an in-camera hearing she will conduct to determine whether informant privilege should apply in this case.

At the appeal proceedings, which are expected to finish today, Berardino said not only should the accused be barred from such an in-camera hearing but their lawyers should be prohibited as well. He said only the judge and prosecutor should be involved.

In the case of confidential police informants, the law in Canada is clear: Their identity must be protected and cannot be revealed unless innocence itself is at stake.

This is a long-standing rule that goes back centuries in British common law. [See also/scroll down to Bill Tieleman's research quoted below -- "Named Persons vs Vancouver Sun" 2007 -- and Berardino's reference to an Air India witness. - BC Mary]

The reason is fairly obvious.

The identity of an informer must be concealed both for his or her own protection and to encourage others to divulge to the authorities any information pertaining to crimes.

In this case, though, Bennett is concerned about some of the murkiness around the informer's role.

"I have at this juncture been told no circumstances regarding how this person came to the police," she said.

"I appreciate that even the most innocuous disclosure could breach the privilege.

"However, I have not even been told if the witness came to the police in confidence."

She explained these were uncharted waters because normally the prosecution can explain why a confidential witness enjoys such privilege in a sentence or two.

"The Crown [here] says that the privilege will not be apparent to me by simply reviewing the documents and that I need to hear approximately an hour's testimony from a police officer to put everything in context," Bennett said.

She went on to add that it also did not appear that this informant is known only to a single police officer who is his or her handler.

That's odd, too.

"In such [normal] situations, the informant's identity is jealously guarded by the handler," Bennett said.

"It appears that a number of police involved in this investigation are aware of the informer's identity, as are all of the lawyers hired as part of the special prosecutor's team."

The defence said they are not really all that interested in finding out who the informer is, but are more interested in the circumstances in which the informer came to the police.

"The issue I have to wrestle with at this point," Bennett concluded, "is whether the privilege applies at all and how to determine that without violating the privilege.

"Further information is necessary."

She decided to hold the in camera hearing excluding the accused, but allowing their lawyers to remain under vows of secrecy.

But Berardino says even that puts the informant at too great a risk.

If the Court of Appeal won't step in, he says he'll go to the Supreme Court of Canada.

{Snip} ...

imulgrew@png.canwest.com

http://www.canada.com/vancouversun/news/westcoastnews/story.html?id=caf503bc-939d-4c9c-8793-05cb766d28be

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Comments:
Hi Mary

I guess by now I've read almost every article on this Appeal and one nagging thought keeps occuring to me.
Why would Berardino rabidly try to protect this source when the Special Prosecutors office knows who it is? There is apparently more than the "handler" cop within the police departments who know who it is. And if DeBruckyre (spelling?) is to give evidence why this person should not testify then he most certainly would know the identification of that person.

So what difference would it make if the Defence Council knew if they were under oath not to divulge that information. This whole thing just doesn't add up.
 
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