Friday, July 11, 2008


BC Court of Appeal decision - News clippings for July 11, 2008

Crown loses bid to protect secret informant
Appeal court ruling gives Basi-Virk defence counsel access to hearing where source would be named

The Globe and Mail - July 11, 2008

VANCOUVER -- The special prosecutor in a political corruption case has lost an appeal in which he sought to protect the identity of a secret police informant by keeping defence counsel out of a closed court hearing.

In a 2-1 decision, the Court of Appeal for British Columbia dismissed the Crown's arguments and upheld a ruling by the trial judge, Madam Justice Elizabeth Bennett of B.C. Supreme Court, who had said defence counsel had a right to attend a hearing on the contents of a police officer's notes, in which the secret informant is named.

The ruling leaves William Berardino, the special prosecutor in the case against Dave Basi, Bobby Virk and Aneal Basi, with a difficult decision.

If he appeals to the Supreme Court of Canada, the oft-delayed trial, which is being closely watched because of its political implications, could be pushed back well into next year.

That could lead to a defence motion to dismiss the case because, nearly five years after the accused were charged, it has still not come to trial.

But if Mr. Berardino doesn't appeal, he will have to attend a hearing before Judge Bennett, with defence lawyers present, in which the closely guarded identity of the secret informant would be revealed.

Mr. Berardino has said in court it would be impossible for him to present evidence in the hearing without identifying the secret informant who dealt with RCMP Inspector Kevin DeBruyckere, the lead investigator in the case that involved an unprecedented police raid on the B.C. Legislature in 2003.

Mr. Berardino couldn't be reached for comment yesterday, but he told the Court of Appeal that protecting the privileged identity of the secret informant was paramount.

"This Crown will not breach this privilege in this case. ... We will not resile from this position," he said in court.

That comment has led to speculation that Mr. Berardino might be prepared to abandon the case, rather than identify the informant, but he has not elaborated on the full implications of his remark.

{Snip} ...

Leonard Krog, justice critic for the New Democratic Party, urged Mr. Berardino to forget the appeal.

"I can't think of a case in which there is greater public interest. Mr. Berardino needs to get out of his office and back into the courtroom," he said.

"Notwithstanding Mr. Berardino's musings about abandoning this case, the Court of Appeal has spoken, he should follow the judges' direction and get on with doing his job, which is prosecuting."

Two of the appeal court judges, Chief Justice Lance Finch and Mr. Justice Ian Donald, rejected the Crown's arguments, but a third, Madam Justice Catherine Anne Ryan, dissented.

Chief Justice Finch said Judge Bennett's ruling was not an order to disclose the identity of the secret informant, but rather was a decision that the defence had a right to be present at a hearing to determine "whether there is any basis on which informer privilege can be asserted."

He said Judge Bennett was "fully aware of the importance of informer privilege. She was also alive to the accused's right to a fair trial."

Judge Donald agreed and said even if Judge Bennett's ruling did authorize disclosure of the informant's identity, it was within her discretion to do so.

Judge Bennett had ruled defence counsel could attend the hearing, but would be forbidden from revealing the informant's identity to anyone, including their clients.

"The sanctions against disclosure are powerful enough to keep the secret closely held. If defence counsel were to disclose the informant's identity in breach of the court-ordered undertaking, they would likely bring their careers to an end," Judge Donald said.

But Judge Ryan disagreed, and said "it bears noting the mischief that would be caused" if defence lawyers were allowed to learn who police had as secret informers.

"First, and most obviously, what informer would be confident giving information to the police about someone he or she rightly fears, knowing that the lawyer for that person can learn his identity?" she asked. {Snip} ...

B.C. Appeal Court rejects bid to bar defence in leg raid case from hearing
Canadian Press - July 11, 2008

VANCOUVER — Defence lawyers in the B.C. legislature raid case have won the right to be present during a closed hearing that could reveal the identity of a confidential police informer, a ruling which could affect how courts treat them in future.

The B.C. Court of Appeal on Thursday dismissed a bid by special prosecutor Bill Berardino in the marathon political corruption trial to exclude defence counsel from the closed pre-trial proceeding about the disclosure of evidence.

{Snip} ...

The case has been complicated partly because there are overlapping investigations involving not just the BC Rail sale, but money laundering, drugs, the province's Agricultural Land Commission and a related proceeds-of-crime probe.

The Crown has already provided about 250,000 pages of documents over and above those seized during the legislature raid.

The case itself is scheduled to proceed Monday when Bennett will hear arguments about cabinet claims of solicitor-client privilege over certain documents the defence wants disclosed.


Appeal Court rules against secret witness request


{Snip} ...

The ruling leaves the entire case in doubt, as Berardino suggested during the B.C. Court of Appeal hearing that the Crown might not be able to proceed if the secret witness could not give evidence without fear their identity would be disclosed.

{Snip} ...

McCullough says the defendants are anxious to begin the trial.

"Our clients have had their lives on hold for four and a half years and any further delay is something that neither counsel nor their clients are looking forward to. I hope it doesn't happen,""he said.


Defence lawyers will be allowed to attend Crown witness hearing
Keith Fraser,
The Province - July 11, 2008

Lawyers for three former B.C. government aides facing corruption charges will be allowed to attend a hearing to determine whether a Crown witness is a bona fide police informant, B.C.'s highest court has ruled. {Snip} ...

In December, B.C. Supreme Court Justice Elizabeth Bennett ruled that the defence could attend the hearing on an undertaking that they keep the information confidential.

Berardino appealed that ruling but in a split decision, the B.C. Court of Appeal has dismissed his application. B.C. Court of Appeal Chief Justice Lance Finch and Justice Ian Donald both agreed that Berardino was wrong but for different reasons and wrote different judgments. Justice Catherine Ryan wrote a dissenting opinion.

Berardino, who was adamant during the appeal hearing that it was an issue critical to the Crown, said outside court that there were three separate reasons with three distinct analyses that he is reviewing. He has 10 days to decide whether to seek leave to appeal to the Supreme Court of Canada. {Snip} ...


"This Crown will not breach this privilege in this case. ... We will not resile from this position," he said in court.

Sorry, I guess I'm missing something here again. The Special Prosecutor is appointed so the trial can be conducted at Arms length from the Government (Crown)
Am I misreading his statement?

He has also claimed that the witness' protection is "paramount"
I haven't seen that in any legislation, anywhere. But what I have read in legislation is that "the public interest is paramount". And it was stated in court by Madam Justice Elizabeth Bennett.

Berardino seems to be morphing a lot of legislation. I wonder at whose bidding?
Last night I spoke with someone who was present at the BC Court of Appeal Hearing. He found that it was interesting that Catherine Ryan should be the dissenting judge among the three. He says that when Mike Bolton brought up the names of Bruce Clark and Mark Marissen in his argument, Justice Ryan quickly interrupted him, challenging him as to the relevance of bringing up these names. Due to her intervention, Bolton was not allowed to go any further in what he had to say about Clark and Marissen. Bolton
did confirm that documents pertaining to BC Rail were found in Bruce Clark's possession.
RE: anon 11:38
This judge is in 'conflick of interest'. How do we get her replaced?
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