Saturday, November 28, 2009
CROWN COUNSEL POLICY MANUAL and Justice MacKenzie's ruling in Basi Virk
Was there -- or was there not -- an immunity granted to Erik Bornmann, the star witness for the Prosecution in the Basi Virk trial, who allegedly paid bribe money to one of the Accused?
If there was an authorized immunity, what are its terms?
Should the immunity terms be fully revealed before the trial? -- or after the trial?
The CROWN COUNSEL POLICY MANUAL proves the point beyond any doubt (as understood by those who were in court last week) that the Basi Virk Defence has been arguing strictly on the law and protocol as written. The Basi Virk defence was seeking assurance that, as the CROWN COUNSEL POLICY MANUAL stipulates: an immunity agreement must be understood, written down, and signed before trial.
Furthermore, Defence was adamant that total immunity should be granted before the trial so that Bornmann could answer without trimming his words to avoid unforeseen charges against himself. As I see it, with total immunity Bornmann could fully answer every question we need to ask.
Special Prosecutor Berardino, on the other hand, at first denied that there was an immunity agreement; then was said to have torn up Bornmann's immunity agreement; and currently appears to be offering Bornmann immunity conditional upon Crown's approval of his testimony when completed.
After reading the CROWN COUNSEL POLICY MANUAL, Immunity from Prosecution - Witnesses & Informants (see below), it is easy to see the necessity of providing the Star witness with total immunity which is written, signed and understood by all concerned (including the people of British Columbia).
But this places Madam Justice MacKenzie in error when she made an oral ruling last week choosing the Berardino option ... meaning that (a) we won't know if Erik Bornmann told us the truth, or (b) whether he told us everything he could have said, to help restore the wrongs that were allegedly done. We'll have the judge's Reasons for Judgment next week, she said.
I leave it to others to explain for themselves why two professional journalists presented that story as if it was all about what Bornmann may or may not be going to say when he takes the witness stand. It wasn't. It was about the law and about whether the fair-minded Crown Counsel Policy was being followed. MSM journalists corrected their news reports later .
But here's the thing: if such a misunderstanding could occur in the courtroom, over the objections of the Basi Virk defence team, and be taken up by the judge as well as the media, it's obviously time to review the crystal-clear rules governing a matter so important. It comes down to obtaining credible testimony in return for granting a precious immunity.
- BC Mary.
BC Criminal Justice Branch,
Ministry of Attorney General
CROWN COUNSEL POLICY MANUAL
Effective date: November 18, 2005
Immunity from Prosecution - Witnesses & Informants
The granting of immunity from prosecution is an extraordinary exercise of prosecutorial discretion by Crown Counsel. Immunity may be granted to an informant in return for providing information to assist an investigation by the police or to a witness in return for giving evidence at trial.
"Immunity" includes all forms of prosecutorial consideration that can be granted in return for information or testimony, including the reduction or staying of charges, an agreement by Crown Counsel to a less severe sentence or an agreement concerning judicial interim release.
The decision to grant immunity should be made by Regional or Deputy Regional Crown Counsel, and the Assistant Deputy Attorney General should be advised.
Immunity should be granted only where:
1. the evidence or information is crucial to the prosecution of a serious charge and the overriding public interest requires it;
2. there is no other viable means to obtain the information or evidence, or it is not practicable, because of a significant risk to public safety, for the police to simply continue their investigation
3. the value of the information or evidence outweighs any risk to public safety or lessening of public confidence in the administration of justice which may result from the granting of immunity; and
4. the evidence or information offered by the informant or witness relates to criminal involvement of the accused that is more serious than or, in exceptional cases, is at least as serious as, the criminal involvement of the informant or witness.
Crown Counsel should avoid granting complete immunity from criminal responsibility to an informer or witness unless it is absolutely necessary to obtain the required information or evidence. The granting of a limited form of immunity is generally preferred (an example of limited immunity is where Crown Counsel recommends a less severe sentence than might otherwise be appropriate in return for the cooperation of the informant or witness).
Since immunity is granted in one case for the purpose of advancing another, it should not be granted unless:
1. a senior member of the police department or detachment concerned requests it in writing, including an explanation of why the information or evidence is necessary and why the value of that information or evidence outweighs any risk to public safety or lessening of public confidence in the administration of justice which may result;
2. Crown Counsel receives from the police full disclosure of the offences from which immunity is sought and of all other known or suspected criminal activity in which the informant or witness is involved; and
3. in the case where charges against the informant or witness arise from other jurisdictions, Crown Counsel and the other police agencies responsible for those charges have been consulted by the police investigators requesting immunity and have provided their written consent to it.
All grants of immunity, and any other benefits conferred in return for testimony or information, should be clearly defined and documented.
Under the Crown Counsel Act, Crown Counsel have the sole responsibility to make all prosecutorial decisions, including whether to grant immunity in order to secure information or evidence.
Crown Counsel should bear in mind the potential effect that a grant of immunity may have on the weight to be given to a witness' evidence.
Where Crown wishes to assess the reliability of the information or evidence offered, Crown Counsel may consider the factors described in the policy on in-custody informers (INC 1).
Informer Witness Registry
When Crown Counsel first learns of an offer of information or evidence by an informant or witness, Crown Counsel should provide pertinent information to the Informer Witness Registry (see the Practice Bulletin entitled Informer Witness Registry).
At the same time, Crown Counsel may ascertain whether the registry contains any relevant history concerning the informant.
Negotiating with a Prospective Witness with Respect to a Grant of Immunity
When a witness is to give evidence for the Crown in return for a grant of immunity, he or she must enter into a written immunity agreement with Crown Counsel. Crown Counsel should make every effort to ensure that the witness has the assistance of counsel before entering into any agreement. Crown Counsel should avoid negotiating directly with the witness. It is preferable that the negotiation should be handled by a Crown Counsel other than the Crown Counsel who has conduct of the preliminary inquiry or trial.
Documenting the Agreement
Conditions of a grant of immunity should be in writing and signed by the informant and Regional or Deputy Regional Crown Counsel.
Crown Counsel should not agree to immunity in exchange for testimony unless the witness signs a written statement or will-say of the witness' evidence. Recommended conditions in any agreement involving testimony include that the informant:
a) confirm the substantial truth of the will-say provided
b) shall tell the entire truth to the police, Crown Counsel and the court
c) shall testify at all proceedings in relation to any matter arising from the information which they provided
d) shall testify truthfully at all times
e) shall not withhold evidence of his or her involvement in any matters referred to in his or her evidence or statements
f) shall expect no further benefits than those documented in the agreement.
If the witness testifies, the immunity agreement must be disclosed to defence, and it should be entered in court as an exhibit.
Tracking the Informant
After completing an agreement with a witness, Crown Counsel should ask the police handling the case to keep Crown Counsel advised of the status of the witness, payments made, and agreements to relocate, so that Crown Counsel can make appropriate disclosure to defense counsel before trial (see policy DIS 1).
Those of us following the BC Rail Case closely, will have to reconcile what is written above, in law ... as compared to what the Crown Prosecutors have been saying in the pre-trial hearings of Basi, Virk, and Basi.
Basi Virk defence hammers at secret Erik Bornmann immunity deal
By Bill Tieleman - April 27, 2007
Click HERE for this, in full.
The defence in the trial of former BC Liberal government ministerial aides David Basi and Bob Virk today alleged the Crown has deliberately refused to disclose details of a secret immunity agreement with key Crown witness Erik Bornmann.
And Kevin McCullough, lawyer for Virk, alleged in BC Supreme Court that Special Prosecutor Bill Berardino actually cancelled an immunity deal with Bornmann after the former provincial lobbyist implicated in the BC Rail deal told media he had been cleared of any wrongdoing by the RCMP and Special Prosecutor.
But McCullough says that ultimately the deal was not terminated and alleged that both the RCMP and the Special Prosecutor allowed Bornmann to falsely claim he had been exonerated in order to continue his highly-paid business lobbying the Gordon Campbell government for corporate clients.
These are defence allegations only, unproven in court and the Crown has not yet responded to them. The defence is arguing a disclosure application before Justice Elizabeth Bennett.
McCullough alleged that Bornmann's statement to media that he had been exonerated was false.
"Mr. Bornmann had bribed public officials, had made submissions that he had committed criminal offences," McCullough alleged.
McCullough also alleged that the Special Prosecutor had been "stonewalling" all defence requests for details about the deal, why it was apparently cancelled in a phone message to Bornmann's lawyer and why despite knowing Bornmann had not been cleared neither the RCMP nor Berardino corrected the record.
"When the Special Prosecutor chose to cut the immunity deal with Mr. Bornmann they were obligated to disclose the details," McCullough said. "It's an absolute stonewall to providing that information."
On Tuesday in court Janet Winteringham, Berardino's associate, had objected to McCullough's characterization of Berardino's conduct in the case, saying it amounted to an allegation of "prosecutorial misconduct."
McCullough also said it was strange that the RCMP had never requested the financial or tax records of Erik Bornmann in their investigation.
McCullough said that Aneal Basi, a former government communications aide alleged to have laundered payments by Bornmann to David Basi for confidential government information on the BC Rail deal, was actually issued a T-5 income tax receipt by Bornmann but that was never sought by RCMP.
No written immunity deal for Bornmann, Crown claims in Basi-Virk trial - to defence disbelief; case adjourns till Tuesday
Crown opposes defence request for Special Prosecutor statement on what happened with Bornmann immunity deal in Basi-Virk case
Click HERE to see Bill Tieleman's report dated May 18, 2007:
Key Crown witness Erik Bornmann has no written immunity from prosecution agreement in the B.C. Legislature raid case, a special prosecutor told B.C. Supreme Court Thursday.
That provoked an exasperated response from defence lawyers, who are demanding that senior Special Prosecutor Bill Berardino make a statement on what they still call a Crown immunity deal.
Justice Elizabeth Bennett got the surprise answer from Special Prosecutor Janet Winteringham, who has handled most Crown duties during Berardino’s unexplained absence from the proceedings.
“The only question I had – was there an immunity agreement as outlined in Crown policy and the answer is there was not. But there’s no written agreement signed by Mr. Bornmann?” Bennett asked.
“No, there’s not, “Winteringham replied.
Michael Bolton, representing David Basi, the ex-ministerial aide charged with breach of trust and fraud for alleging giving lobbyist Bornmann secret government documents in the $1 billion B.C. Rail sale, said there is a deal.
“There’s got to be full disclosure of the deal between Mr. Bornmann and Mr. Berardino on immunity,” Bolton said. "What were the inducements in this deal to Mr. Bornmann to change his statement and give the statements he gave in April implicating my client? I need that in order to properly defend my client."
But Winteringham said no to the request for Berardino to hold forth.
“Just so it’s clear, the Crown opposes an order to have Mr. Berardino make a statement on this issue,” Winteringham said. "I’ve spoken to Mr. Berardino, since he can’t be here, and that is his position."
Columns re-posted in full by generous permission of Bill Tieleman.
How BC Mary did you manage to copy this Immunity document and manage to write into your version a spelling error eg.
"is where Crown Cunsel recommends a less severe sentence"
Now if the NPA crowd at City hall had intentionally put different spelling errors into each of the documents that were circulated to council members the NPA and the Police and Mr. Peck would know who was the thief.
So, BC Mary, do you trust your Source?
Thanks for the proof-reading, Anon 10:21.
No mystery here.
If you read the posting, you'll see that there was a discrepancy between what the Special Prosecutor was saying about deciding after Bornman's testimony whether the immunity deal would be honoured ...
as compared to what Defence was arguing, i.e., entirely on the Law according to Crown Counsel Policy.
As explained, the bloggers in court picked up on that; the MSM professionals didn't.
So I went looking for that Crown Counsel Policy Manual. It's easy enough to find in the Attorney General's web-site.
Trouble is, it's in PDF.
As you know, I am a duffer when it comes to these things. I couldn't copy-and-paste, of course. So all I could do was print it out ...
and type the whole thing back into my site.
Wed. morning notes
A Sheriff (not RCMP)is sitting in the court room today,(Wed.)he was not with Us yesterday, I joked with him that my family told me to behave myself in the Court room, and was he here to make sure I did. So I asked why was he here today, and not yesterday, he said there was lots of high profile cases in the building, he did not return after the morning break, but returned for the afternoon.
Could it have been because Basi had been in the Court house earlier in the day Tuesday for the A.R.L case, I could not find the room that went on in, Keith Fraser said he was there.
Re the Crown Counsel Policy Manual, I went to the Court Library, could only find the 2005 version, the 1999 version was not available, which is the policy that the Crown depended on as Bornmans agreement was made April 2004, stated Bernadino,prior to updated Nov 18,2005 version.
Will seek the Oct.1 1999 one.
I got two copies of the policy manual, and gave one copy to Keith and Neal to share, they appeared very grateful.
more once I catch up.
EM (hopefully I now will show up as EM not annonymous,NVG asked why I didnt have handle :)
"On Tuesday in court Janet Winteringham, Berardino's associate, had objected to McCullough's characterization of Berardino's conduct in the case, saying it amounted to an allegation of "prosecutorial misconduct."
An allegation of "prosecutorial misconduct" seems eminently appropriate in this case to me, and not just on this matter.
I'm tingling with anticipation about Justice Mackenzie's promised reasons for judgement that are supposedly coming next week. Aren't there other explanations that are supposed to be forthcoming from this icon of justice? I'm dusting off my handbook of Clintonesque Parsing of the English Language so I'll be able to understand her explanations!
Good to hear from you again. I was told, on good authority, that the bases of the Policy Manual doesn't change much from one revision to the next ...
I thought it was an incredibly reassuring document, the way it was so CLEARLY worded that anyone could grasp its meaning and intention ...
except ... ??
but interesting to know that you provided Fraser & Hall with a copy.
I'm looking forward to hearing more from you. Were you in court when MacKenzie gave her oral ruling that the Bornmann immunity deal would be considered AFTER the trial? I can't see how that squares with what's in the Crown Counsel Manual.
Kootcoot you read far too much into a simple spelling error checker correcter to think that would only be a PAB that would take the time to point it out.
Look, above, inadvertently I spelled your name Kookcoot, and it didn't look right so I curtsied up to what you wrote and realized what the correct spelling of your name is.
In Anons comment to BC Mary on Cunsel there were so many other Counsels written that would be easy to miss ONE, but not if it were a simple Cut and Paste.
Congratulations BC Mary on doing it your way, but perhaps there are those that write here who could explain an easier method to make your day a lot shorter than the typical 13 hours that you usually put in.
Have a nice Sunday BC Mary, you too Kootcoot.
Hello again, Anon 9:45 ...
and did you hear those howls of anguish echoing off B.C. canyon walls like a BC Rail train whistle?
Where you say: perhaps there are those that write here who could explain an easier method ...
you wouldn't believe [cue the howls of anguish] how many good and true cyber-friends have tried to explain such simple things to me as how to create a hyperlink. It took me months to figure that out ... and I can still do it only on a TLR posting, not on a comment or an e.mail.
Not their fault. Not my fault either. Seems I need to have somebody standing right beside me, pointing to this and that. But it sorta works out OK, don't you think?
Now tell us: did you really think I stole something?
I see no error of substance here.
Mary (and the citizen journalists) who were present IN the courtroom followed up on an issue of substance that the MSM initially did not.
To falsely equate that with what went on with the Olympic Village Boondoggle is ridiculous in the extreme.
Good work Mary et al.
And a very good sub-point by EM re: which policy was actually in place in Apr 2004 when the (supposed) deal went down.
Thanks very much everyone.
Maybe I'm getting carried away just a bit ... but it seems to me that the actions of the Special Prosecutorial team is almost ... well, er ... suspect, in the circumstances. And deserving of much closer attention.
I'm looking forward anxiously to reading Justice MacKenzie's "Reasons for Judgment" which I think will be available next week. I'll keep watching for that. Maybe EM and Leah and NVG will help ...
And extra thanks to you, RossK.
No, but there's people out there like Kootcoot has written, that go through their salaried lives leaving little carbon imprints just to discover who's willing to copy government documents without realizing that there are multiple copies.
I'm sure GC has given the instructions to make sure that this takes place, why else would EM need to provide copies to the MSM......
Anonymous 10:21, 10:57 & 9:45,
There's something you aren't telling us.
You did think I was doing something underhanded when I copied this public document for others to see. You did.
Nothing wrong with vigilance and I commend you for that.
But I still have a feeling you know some things, and that you aren't being as forthright as you expect others to be.
Over to you ...
Sometime, I cant remember when, what day, Mccullough confirmed for Me, cause I heard it, that Bornman testified at the ALR trial in January, he told Me it was January 2008. Could it be that Bornman's immunity deal was for the ALR case?
Just wondering, could be way off base. Still too tired to make my notes cohesive, and with all the comments making me second guess things. thoughts??
It could be that, if Erik Bornmann did testify at Dave Basi's A.L.R. trial,
it's just possible that Bill Berardino was shaking his head because there's a publication ban on that trial ... they shouldn't have been discussing that A.L.R. trial during the BC Rail trial ... that is, (if they were discussing the A.L.R. trial ...
and so you can see why, right there: one trial should not be spilling over onto another trial.
The important fact i.m.o., is that last week Defence was seeking assurance that Bornmann's immunity deal in the Basi Virk Basi Case was correctly based in the law; whatever the deal was, Defence was asking for a copy of the deal, because the Policy Manual clearly says that it should have been written, signed by both parties, and revealed to the defence and the public. Revealed, like, right about now.
The offensive aspect of it is (so far as I can see) that Bornmann appears to be expected to testify under a serious threat to his own future ... that is to say: if he tells the court everything he knows about key events in the sale of BC Rail, he may become vulnerable himself to further charges ... and so he might understandably hold back information.
As I see it: Defence is willing to see 100% immunity granted before the trial begins, in the interests of getting the truth, the whole truth, and nothing but the truth.
What say you?
Perfectly designed to force a witness to say whatever the prosecution wants - an illegal act in itself, as far as I'm concerned.
If that's not Berardino's intent, there should be NO issues with writing out the immunity contract. Anything else, makes me not only suspect every word coming out of Bornmann's mouth, but Berardino's as well. And he's one man in this debacle who must not only BE completely honest, he must be SEEN to be.