Thursday, November 19, 2009
Supreme Court of Canada ruling on Basi Virk
.
The appeal by Crown Prosecutor Berardino in the Basi Virk Basi trial rested upon the argument that no one but himself, his legal team and BC Supreme Court Justice Elizabeth Bennett should be permitted to hear the evidence to be given by the Secret Witness, with defence lawyers, media and the public excluded in order to protect the identity of the witness. Berardino first took his appeal to BC Court of Appeal, which didn't agree. Berardino then took his appeal to the highest court in Canada: the Supreme Court of Canada. Their ruling was made public on Nov. 19, 2009.
Bill Tieleman was the first to announce:
Basi-Virk Special Prosecutor Bill Berardino has won a landmark appeal in the Supreme Court of Canada this morning when the court overturned two BC lower court rulings on the issue of secret witness testimony in the BC Rail corruption case.
Read more at Bill Tieleman's web-site.
Here is the summary decision set down by the Supreme Court's justices [abridged]:
"The accused were charged with corruption, fraud, and breach of trust under the Criminal Code.
Given that some material produced on an application for disclosure had been blacked out, defence counsel applied for “unredacted” copies.
The Crown objected, claiming informer privilege. The Crown contended that the claim could not be properly established without live testimony by a police officer, and insisted on an in camera and ex parte hearing.
Defence counsel objected to the ex parte nature of the hearing and applied for permission to attend, without their clients.
When the trial judge held that defence counsel could participate fully in the in camera hearing so long as they were subject to a court order and undertakings, the Crown invoked s. 37 of the Canada Evidence Act (“CEA”), which provides for non‑disclosure where a public interest is at stake.
The trial judge affirmed her previous decision, and the Court of Appeal, in a majority decision, dismissed the Crown’s appeal made pursuant to s. 37.1 CEA and upheld the trial judge’s ruling.
The Crown then appealed to this Court on the issue of whether the trial judge erred in permitting defence counsel to attend the in camera hearing, and the accused cross‑appealed on the issue of whether the Court of Appeal had jurisdiction to hear the Crown’s appeal.
Held: The appeal should be allowed and the cross‑appeal dismissed.
While everyone charged with a criminal offence in Canada is constitutionally entitled to full and timely disclosure of all relevant material under the control of the Crown, the entitlement to disclosure is neither absolute nor unlimited.
Where informer privilege has been claimed by the Crown, an accused’s constitutional right to make full answer and defence does not alone trigger an exception to the privilege.
It is only where innocence is at stake that the privilege yields and information tending to reveal the identity of the informant can be disclosed.
The strictness of the privilege is not relaxed when s. 37 CEA is invoked to protect it, and the privilege is not amenable to the sort of public interest balancing contemplated by s. 37(5).
No one outside the circle of privilege may access information over which the privilege has been claimed until a judge has determined that the privilege does not exist or that an exception applies.
It follows that the trial judge erred in permitting defence counsel to attend the in camera hearing to determine the existence of an informer privilege where, in the course of the hearing, information tending to reveal the identity of the putative informer is bound to be revealed.
However, where a hearing is required to resolve a Crown claim of privilege, the accused and defence counsel should be excluded from the proceedings only when the identity of the confidential informant cannot be otherwise protected.
And, even then, only to the necessary extent. The trial judge will be in a better position to decide how best to craft safeguards that mitigate any potential unfairness arising from the ex parte nature of the proceedings.
Lastly, s. 650 of the Criminal Code applies only to the presence of the accused at trial and has no application to the trial judge’s decision under s. 37 CEA. An application under s. 37 is a discrete proceeding, separate from and only ancillary to the criminal trial, and is therefore not caught by s. 650. [1] [23] [34] [43‑44] [50] [53] [58]
The trial judge’s decision amounted to a “disclosure order” within the meaning of s. 37.1 CEA and the Court of Appeal had jurisdiction to hear the Crown’s appeal.
The inevitable result of the trial judge’s decision was to require the Crown to reveal to defence counsel information over which the informer privilege had been claimed.
As defence counsel are outside the “circle of privilege”, permitting them access to this information — even subject to court orders and undertakings — constitutes inevitable disclosure of the information.
While the trial judge sought to restrict this disclosure of privileged information to defence counsel by prohibiting them from sharing it with any one else, her decision constituted an order of disclosure nonetheless.
Furthermore, the trial judge clearly stated that her decision was subject to immediate appeal under the CEA. [16] [30] [32]"
MORE to come, says Bill Tieleman. Many thanks, Bill.
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From Ian Mulgrew, Vancouver Sun ...
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And then there's Vaughn Palmer. Does he give a hoot about BC Rail?
HERE he is at his absolute worst. Like, he didn't know that today's ruling was coming? And this is his best deflection-to-protect-Gordo ploy? Grrrrr. - BC Mary.
P.S. It's only fair, I suppose, to post Palmer's workmanlike column from October 2009 in which he compares the BC Rail trial to the Carrier Lumber trial. See that column HERE.
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Good column by Kirk Makin in The Globe and Mail, Nov. 19, 2009
Note that the Comments section have been "disabled for legal reasons" (which could be the title of a long-running courtroom drama.
For Makin's column, Supreme Court shields informant ID, click HERE.
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The Canadian Press ... click HERE.
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Unabridged
Citation:R. v. Basi, 2009 SCC 52
Date:November 19, 2009
Docket: 32719
Other formats: PDF WPD
SUPREME COURT OF CANADA
CITATION: R. v. Basi, 2009 SCC 52
DATE: 20091119
DOCKET: 32719
BETWEEN:
Her Majesty The Queen
Appellant / Respondent on cross‑appeal
and
Udhe Singh (Dave) Basi, Bobby Singh Virk and Aneal Basi
Respondents / Appellants on cross‑appeal
‑ and ‑
Director of Public Prosecutions of Canada, Attorney General of
Ontario, Canadian Association of Chiefs of Police and
Criminal Lawyers’ Association (Ontario)
Interveners
CORAM: McLachlin C.J. and Binnie, LeBel, Fish, Abella, Charron and Rothstein JJ.
REASONS FOR JUDGMENT:
(paras. 1 to 59)
Fish J. (McLachlin C.J. and Binnie, LeBel, Abella, Charron and Rothstein JJ. concurring)
NOTE: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports.
______________________________
R. V. BASI
Her Majesty The Queen Appellant/Respondent on cross‑appeal
v.
Udhe Singh (Dave) Basi, Bobby Singh Virk
and Aneal Basi Respondents/Appellants on cross‑appeal
and
Director of Public Prosecutions of Canada,
Attorney General of Ontario,
Canadian Association of Chiefs of Police and
Criminal Lawyers’ Association (Ontario) Interveners
Indexed as: R. v. Basi
Neutral citation: 2009 SCC 52.
File No.: 32719.
2009: April 22; 2009: November 19.
Present: McLachlin C.J. and Binnie, LeBel, Fish, Abella, Charron and Rothstein JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA
Criminal law — Evidence — Objection to disclosure of information — Informer privilege — Whether trial judge erred in permitting defence counsel to attend in camera hearing sought by Crown to establish claim of informer privilege — Canada Evidence Act, R.S.C. 1985, c. C‑5, s. 37.
Courts — Jurisdiction — Crown claim of informer privilege — Trial judge ruling that defence counsel could attend in camera hearing sought by Crown to establish claim of informer privilege subject to undertakings and court order — Whether Court of Appeal lacked jurisdiction to hear Crown’s appeal — Whether trial judge’s decision constituted “disclosure order” subject to immediate appeal — Canada Evidence Act, R.S.C. 1985, c. C‑5, s. 37.1.
The accused were charged with corruption, fraud, and breach of trust under the Criminal Code. Given that some material produced on an application for disclosure had been blacked out, defence counsel applied for “unredacted” copies. The Crown objected, claiming informer privilege. The Crown contended that the claim could not be properly established without live testimony by a police officer, and insisted on an in camera and ex parte hearing. Defence counsel objected to the ex parte nature of the hearing and applied for permission to attend, without their clients. When the trial judge held that defence counsel could participate fully in the in camera hearing so long as they were subject to a court order and undertakings, the Crown invoked s. 37 of the Canada Evidence Act (“CEA”), which provides for non‑disclosure where a public interest is at stake. The trial judge affirmed her previous decision, and the Court of Appeal, in a majority decision, dismissed the Crown’s appeal made pursuant to s. 37.1 CEA and upheld the trial judge’s ruling. The Crown then appealed to this Court on the issue of whether the trial judge erred in permitting defence counsel to attend the in camera hearing, and the accused cross‑appealed on the issue of whether the Court of Appeal had jurisdiction to hear the Crown’s appeal.
Held: The appeal should be allowed and the cross‑appeal dismissed.
While everyone charged with a criminal offence in Canada is constitutionally entitled to full and timely disclosure of all relevant material under the control of the Crown, the entitlement to disclosure is neither absolute nor unlimited. Where informer privilege has been claimed by the Crown, an accused’s constitutional right to make full answer and defence does not alone trigger an exception to the privilege. It is only where innocence is at stake that the privilege yields and information tending to reveal the identity of the informant can be disclosed. The strictness of the privilege is not relaxed when s. 37 CEA is invoked to protect it, and the privilege is not amenable to the sort of public interest balancing contemplated by s. 37(5). No one outside the circle of privilege may access information over which the privilege has been claimed until a judge has determined that the privilege does not exist or that an exception applies. It follows that the trial judge erred in permitting defence counsel to attend the in camera hearing to determine the existence of an informer privilege where, in the course of the hearing, information tending to reveal the identity of the putative informer is bound to be revealed. However, where a hearing is required to resolve a Crown claim of privilege, the accused and defence counsel should be excluded from the proceedings only when the identity of the confidential informant cannot be otherwise protected. And, even then, only to the necessary extent. The trial judge will be in a better position to decide how best to craft safeguards that mitigate any potential unfairness arising from the ex parte nature of the proceedings. Lastly, s. 650 of the Criminal Code applies only to the presence of the accused at trial and has no application to the trial judge’s decision under s. 37 CEA. An application under s. 37 is a discrete proceeding, separate from and only ancillary to the criminal trial, and is therefore not caught by s. 650. [1] [23] [34] [43‑44] [50] [53] [58]
The trial judge’s decision amounted to a “disclosure order” within the meaning of s. 37.1 CEA and the Court of Appeal had jurisdiction to hear the Crown’s appeal. The inevitable result of the trial judge’s decision was to require the Crown to reveal to defence counsel information over which the informer privilege had been claimed. As defence counsel are outside the “circle of privilege”, permitting them access to this information — even subject to court orders and undertakings — constitutes inevitable disclosure of the information. While the trial judge sought to restrict this disclosure of privileged information to defence counsel by prohibiting them from sharing it with any one else, her decision constituted an order of disclosure nonetheless. Furthermore, the trial judge clearly stated that her decision was subject to immediate appeal under the CEA. [16] [30] [32]
Cases Cited
Applied: Named Person v. Vancouver Sun, 2007 SCC 43, [2007] 3 S.C.R. 252; referred to: R. v. Fisk (1996), 108 C.C.C. (3d) 63; Mills v. The Queen, [1986] 1 S.C.R. 863; R. v. Leipert, [1997] 1 S.C.R. 281; R. v. Stinchcombe, [1991] 3 S.C.R. 326; R. v. G, [2004] EWCA Crim 1368, [2004] 2 Cr. App. R. 37 (p. 630); R. v. Pilotte (2002), 156 O.A.C. 1; Charkaoui v. Canada (Citizen and Immigration), 2007 SCC 9, [2007] 1 S.C.R. 350.
Statutes and Regulations Cited
Canada Evidence Act, R.S.C. 1985, c. C‑5, ss. 37, 37.1, 37.2.
Criminal Code, R.S.C. 1985, c. C‑46, s. 650.
Authors Cited
Hubbard, Robert W., Susan Magotiaux and Suzanne M. Duncan. The Law of Privilege in Canada. Aurora, Ont.: Canada Law Book, 2006 (loose‑leaf updated May 2009).
APPEAL from a judgment of the British Columbia Court of Appeal (Finch C.J.B.C. and Ryan and Donald JJ.A.), 2008 BCCA 297, 257 B.C.A.C. 253, 235 C.C.C. (3d) 383, 59 C.R. (6th) 165, [2008] B.C.J. No. 1300 (QL), 2008 CarswellBC 1436, affirming a decision of Bennett J., 2007 BCSC 1898, 170 C.R.R. (2d) 275, [2007] B.C.J. No. 2816 (QL), 2007 CarswellBC 3162. Appeal allowed and cross‑appeal dismissed.
William Berardino, Q.C., Janet L. Winteringham, Q.C., Michael Sobkin and Andrea N. Mackay, for the appellant/respondent on cross‑appeal.
P. Michael Bolton, Q.C., and Claire E. Hatcher, for the respondent/appellant on cross‑appeal Udhe Singh Basi.
Joseph J. Blazina and Kevin G. McCullough, for the respondent/appellant on cross‑appeal Bobby Singh Virk.
Joseph Doyle and Erin D. Dance, for the respondent/appellant on cross‑appeal Aneal Basi.
W. Paul Riley and François Lacasse, for the intervener the Director of Public Prosecutions of Canada.
Robert W. Hubbard and Christopher Webb, for the intervener the Attorney General of Ontario.
Greg Preston and Mark Unchulenko, for the intervener the Canadian Association of Chiefs of Police.
Anil K. Kapoor and Lindsay L. Daviau, for the intervener the Criminal Lawyers’ Association (Ontario).
The judgment of the Court was delivered by
FISH J. —
I
[1] Everyone charged with a criminal offence in Canada is constitutionally entitled to full and timely disclosure of all relevant material under the control of the Crown. To withhold that material without justification is to jeopardize impermissibly the right of the accused to make full answer and defence. The entitlement to disclosure must therefore be broadly construed. But it is neither absolute nor unlimited.
[2] The limit that concerns us here is a function of the “informer privilege”, which prohibits disclosure of the identity of confidential informants.
[3] More particularly, we are required to decide whether the trial judge erred in permitting defence counsel to attend the in camera hearing sought by the Crown to establish its claim of informer privilege. With respect, I believe that she did.
[4] The judge’s order was intended to safeguard the privilege by prohibiting defence counsel from disclosing to anyone, including the accused — their own clients — anything they learned at the hearing. In fact, however, the order exposed the privilege to imminent demise, since information tending to reveal the identity of the putative informer was bound to be revealed in the course of the hearing. Defence counsel would thus have been made privy to what the informer privilege is meant to deny them.
[5] For the reasons of Ryan J.A., dissenting at the Court of Appeal, and for the reasons that follow, I would therefore allow the Crown’s appeal and return the case to the trial court for determination of the Crown’s claim of informer privilege in accordance with the procedure set out below.
II
[6] The respondents are charged with corruption, fraud, and breach of trust in relation to the sale of B.C. Rail’s freight railway operations by the provincial government. The decision on appeal was one of a series of pre‑trial orders arising out of a lengthy application for disclosure. In response to their requests, the accused received more than 100,000 documents, including police notes and reports that had been redacted. Some pages were completely blacked out.
[7] Defence counsel applied to the court for “unredacted” copies. The Crown objected, claiming the informer privilege.
[8] The trial judge, Bennett J. (as she then was), proposed that the Crown submit the documents in question under seal, accompanied by an affidavit explaining the basis upon which the privilege was claimed. The trial judge preferred to test the privilege on a paper record that could be edited to protect the privilege, while permitting counsel to respond to the claim.
[9] The Crown contended that it could not properly establish its claim of privilege without approximately one hour of live testimony by a police officer. And the Crown insisted on an in camera and ex parte hearing for that purpose.
[10] Defence counsel objected to the ex parte nature of the hearing and applied for permission to attend, without their clients. They agreed to submit to a court order and undertakings not to divulge any privileged information to anybody, including the accused. Counsel had obtained authorizations from their clients in this regard.
[11] Bennett J., relying in part on R. v. Fisk (1996), 108 C.C.C. (3d) 63 (B.C.C.A.), held that so long as defence counsel were subject to the court order and undertakings, they could participate fully in the in camera hearing: 2007 BCSC 1888, 170 C.R.R. (2d) 260. Justice Bennett’s reasons were based both on the common law of privilege and s. 650 of the Criminal Code, R.S.C. 1985, c. C-46, which establishes an accused’s right to remain present at trial.
[12] In the course of her reasons, Bennett J. noted that the Crown could invoke s. 37 of the Canada Evidence Act, R.S.C. 1985, c. C-5 (“CEA”), which provides for non‑disclosure where a public interest — such as the informer privilege — is at stake. Importantly, the CEA provides the Crown with an immediate right of appeal of certain evidentiary orders.
[13] Section 37(1) reads:
37. (1) Subject to sections 38 to 38.16, a Minister of the Crown in right of Canada or other official may object to the disclosure of information before a court, person or body with jurisdiction to compel the production of information by certifying orally or in writing to the court, person or body that the information should not be disclosed on the grounds of a specified public interest.
[14] The Crown invoked s. 37 upon the release of the Justice Bennett’s reasons. The next day, Justice Bennett issued additional reasons, affirming that even under s. 37, defence counsel could attend the in camera hearing, subject to undertakings and a court order: 2007 BCSC 1898, 170 C.R.R. (2d) 275. The Crown immediately inscribed the appeal that concerns us here.
[15] In the Court of Appeal (2008 BCCA 297, 59 C.R. (6th) 165), Finch C.J.B.C. held that the court lacked jurisdiction to hear the Crown’s appeal. In his view, Bennett J.’s decision did not amount to a “disclosure order” within the meaning of s. 37.1 of the CEA and was for that reason not subject to immediate appeal under that provision. In the alternative, Chief Justice Finch held that the procedure devised by the trial judge was permissible. Donald J.A. concurred on the latter ground only.
[16] Ryan J.A. dissented. She found that the trial judge’s decision did indeed constitute a “disclosure order” subject to immediate appeal under the CEA. With regard to the substance of Bennett J.’s order, Justice Ryan concluded that the presence of defence counsel at the in camera hearing would result in a breach of the informer privilege.
[17] In Justice Ryan’s view, the court order and undertakings not to disclose did not cure this breach. As the sole exception to the privilege — where innocence is at stake — was not engaged, defence counsel could not be permitted to attend the hearing.
[18] The Crown now appeals, with leave, to this Court. And the accused, in their cross‑appeal, submit that the Court of Appeal lacked jurisdiction to hear the Crown’s “interlocutory” appeal (Factum on Cross-Appeal of Mr. Virk, at para. 14). I shall first consider the jurisdictional issue and then turn to the merits of Justice Bennett’s order.
III
[19] The Court has indeed held, as the appellant submits, that “all criminal appeals are statutory and that there should be no interlocutory appeals in criminal matters”: Mills v. The Queen, [1986] 1 S.C.R. 863, at p. 959. This is, of course, a criminal matter, but the appeal relates to an incidental and separate proceeding under s. 37 of the CEA and Parliament has expressly provided in ss. 37.1‑37.2 of the CEA for an immediate appeal as of right to the court of appeal, and further appeals, with leave, to this Court.
[20] This right of appeal is limited by the CEA, however, to a “determination under any of subsections 37(4.1) to (6)”. Section 37(6) is concerned with prohibition orders and has no application here. The jurisdiction of the Court of Appeal thus depended on whether the trial judge’s decision amounted to a determination under either s. 37(4.1) or s. 37(5).
[21] Section 37(4.1) provides that a court “may authorize by order the disclosure of the information” over which privilege is claimed “[u]nless the court . . . concludes that the disclosure . . . would encroach upon a specific public interest”. Section 37(5) adds that even where a specified public interest is engaged, disclosure may nevertheless be ordered — subject to conditions — if the public’s interest in disclosure outweighs a specified public interest that militates against disclosure.
[22] The “specified public interest” at issue in this case is the protection of the identity of informers, more generally known as the “informer privilege”. The informer privilege is a class privilege, subject only to the “innocence at stake” exception. It is not amenable to the sort of public interest balancing contemplated by s. 37(5): R. v. Leipert, [1997] 1 S.C.R. 281, at paras. 12‑14. I shall have more to say later about the purpose and scope of the privilege.
[23] When s. 37 is invoked to protect the informer privilege — a relatively rare occurrence, since the claim of privilege will usually be settled under the common law alone — its strictness is not relaxed. See R.W. Hubbard, S. Magotiaux and S.M. Duncan, The Law of Privilege in Canada (loose-leaf), at p. 3‑44.
[24] Recognizing the unique nature of the informer privilege, the trial judge found it unnecessary to engage in the “balancing” required under s. 37(5). She held instead that the substantive law on the scope of the privilege permitted defence counsel to attend the in camera hearing she had ordered.
[25] In the language of s. 37(4.1), then, the trial judge concluded that in camera disclosure to defence counsel, subject to a court order and undertakings, did not encroach upon the “specified public interest” — that is, the informer privilege invoked by the Crown. In my view, this decision amounts to an order for disclosure — albeit extremely limited disclosure — under s. 37(4.1).
[26] The respondents — appellants on the cross‑appeal — raise two main arguments in support of the contrary conclusion that the trial judge’s decision was not an order of disclosure subject to immediate appeal.
[27] First, they submit that the trial judge’s decision was not an order of disclosure, but only a “procedural ruling” (Factum of the Respondent U. S. Basi on Appeal and Cross‑Appeal, at para. 37; Factum of the Respondent Virk on Cross‑Appeal, at para. 39; Factum of the Respondent A. Basi on Appeal and Cross‑Appeal, at para. 164.)
[28] Second, even if the decision can be characterized as an order, respondents contend that it did not authorize disclosure, but merely prescribed a procedure to be followed in determining whether the informer privilege had been established. The respondents contend that the CEA does not contemplate immediate appeals of “procedural” decisions of this sort.
[29] In my view, these arguments all fail: They favour form over substance and recast the judge’s order in an erroneous light.
[30] The inevitable result of the trial judge’s decision was to require the Crown to reveal to defence counsel information over which the informer privilege had been claimed. As defence counsel are outside the “circle of privilege”, permitting them access to this information — even subject to court orders and undertakings — constitutes inevitable disclosure of the information. And while the trial judge sought to restrict this disclosure of privileged information to defence counsel, who were prohibited from sharing it with any one else, her decision constituted an order of disclosure nonetheless.
[31] If there remained any doubt as to the nature of the trial judge’s decision, the trial judge settled it herself. The last sentence of her additional reasons reads:
The in camera hearing is suspended to give the Crown the opportunity to determine whether it wishes to appeal this ruling, which it has the right to do under s. 37 of the Canada Evidence Act. [para. 23]
[32] The trial judge could not have been more clear that she was making a determination that was properly subject to immediate appeal. There is no reason to conclude that the trial judge misunderstood the nature and consequences of her own order.
[33] I would therefore dismiss the cross‑appeal.
IV
[34] The decisive question on this appeal is whether defence counsel can be permitted to attend an in camera hearing to determine the existence of an informer privilege where, in the course of the hearing, information tending to reveal the identity of the putative informer is bound to be revealed.
[35] Before turning to that issue, it will be helpful to consider generally the purpose, scope and operation of the informer privilege and the governing principles set out by Bastarache J. in Named Person v. Vancouver Sun, 2007 SCC 43, [2007] 3 S.C.R. 252.
[36] The privilege arises where a police officer, in the course of an investigation, guarantees protection and confidentiality to a prospective informer in exchange for useful information that would otherwise be difficult or impossible to obtain. In appropriate circumstances, a bargain of this sort has long been accepted as an indispensable tool in the detection, prevention and prosecution of crime.
[37] The informer privilege has been described as “nearly absolute”. As mentioned earlier, it is safeguarded by a protective veil that will be lifted by judicial order only when the innocence of the accused is demonstrably at stake. Moreover, while a court can adopt discretionary measures to protect the identity of the informer, the privilege itself is “a matter beyond the discretion of a trial judge.” (Named Person, at para. 19).
[38] Whenever informer privilege is claimed, or the court of its own motion considers that the privilege appears to arise, its existence must be determined by the court in camera at a “first stage” hearing. Even the existence of the claim cannot be publicly disclosed. Ordinarily, only the putative informant and the Crown may appear before the judge. In Named Person, however, the Court considered that an amicus curiae may be necessary or appropriate, particularly where the interests of the informant and the Crown are aligned: Named Person, at para. 48.
[39] In determining whether the privilege exists, the judge must be satisfied, on a balance of probabilities, that the individual concerned is indeed a confidential informant. And if the claim of privilege is established, the judge must give it full effect. As we have seen, Named Person established that trial judges have no discretion to do otherwise.
[40] Finally, the informer privilege belongs jointly to the Crown and to the informant. Neither can waive it without the consent of the other.
[41] Though Named Person held that “first stage” hearings must be held in camera, the Court was not called upon to consider whether the hearings must proceed ex parte as well. That is because the privilege was claimed in that case by the informant — the very person before the court on extradition proceedings. And he claimed the privilege not to keep the information out of the hands of any party to the proceedings, but rather to prevent media organizations from accessing information relating to his activities as a police informant. In those unusual circumstances, all of the parties to the proceeding had access to the privileged information; it was only third parties who were excluded.
[42] Like Named Person, this case concerns a claim of informer privilege. Unlike Named Person, however, this case does not concern a fugitive-informant who seeks to prevent disclosure of information to which he is already privy. Rather, it concerns the accused, who seek to obtain disclosure of information which the Crown feels bound to deny them. But these distinctions, significant as they are, do not turn the tide in the respondents’ favour.
[43] It is true, of course, that the respondents are in jeopardy of criminal conviction and its consequences. Their s. 7 right to make full answer and defence is therefore plainly engaged: R. v. Stinchcombe, [1991] 3 S.C.R. 326. The Court has made clear, however, that the right to make full answer and defence does not alone trigger an exception to the informer privilege: Leipert, at paras. 23‑25. It is only where innocence is at stake that the privilege yields and information tending to reveal the identity of the informant can be disclosed.
[44] It thus remains as true in this case as it was in Named Person that “[w]hile the judge is determining whether the privilege applies, all caution must be taken on the assumption that it does apply” (para. 47). No one outside the circle of privilege may access information over which the privilege has been claimed until a judge has determined that the privilege does not exist or that an exception applies. It follows that the trial judge erred in permitting defence counsel to hear the testimony of an officer tending to reveal the identity of the putative informant at the “first stage” hearing.
[45] To hold otherwise is to place defence counsel in an awkward and professionally undesirable position. The concern is not that defence counsel would intentionally violate their undertakings or the court order; rather, it is that respecting the undertakings and court order would, at best, strain the necessary relationship between defence counsel and their accused clients.
[46] Defence counsel would have to remain constantly on guard never to say or do anything, even inadvertently, that might tend to reveal the informant’s identity. This exceedingly onerous constraint would by its very nature “prevent frankness and fetter the free flow of information between lawyer and client”, and otherwise impair the solicitor‑client relationship: R. v. G, [2004] EWCA Crim 1368, [2004] 2 Cr. App. R. 37 (p. 630), at pp. 634‑35. In certain cases, defence counsel might feel bound to withdraw their representation, caught in a conflict between their duty to represent the best interests of their client and their duty to the court not to disclose or to act on the information heard in camera: R. v. G., at pp. 635‑36.
[47] It is true that defence counsel gave their undertakings of non-disclosure with the consent of their clients. At the time, however, the privileged information was otherwise inaccessible to both the accused and their counsel. Once the information is in the hands of their counsel, the consent freely given beforehand might understandably be viewed by the accused as consent given without choice. And consent thought to have been given without choice, even if not repudiated, is bound to be resented.
[48] In support of the trial judge’s order, the respondents cite s. 650 of the Criminal Code, which codifies the accused’s right to be present at trial. Indeed, the trial judge’s first decision on the common law privilege claim rested, in part, on this provision: Section 650 was invoked by the judge in concluding that counsel should be permitted to attend subject to a court order and undertakings.
[49] Section 650(1) reads:
650. (1) Subject to subsections (1.1) to (2) and section 650.01, an accused, other than an organization, shall be present in court during the whole of his or her trial.
[50] Clearly, s. 650 has no application to the trial judge’s decision under s. 37. By its very terms, it applies only to the presence of the accused at trial. An application under s. 37 of the CEA is a discrete proceeding, separate from and only ancillary to the criminal trial. Accordingly, it is not caught by s. 650: R. v. Pilotte (2002), 156 O.A.C. 1, at para. 46.
[51] This case concerns an application for disclosure only. The Crown does not seek to rely upon the redacted portions of the documents in order to prove guilt. Indeed, the Crown could not introduce the withheld information as evidence at trial without providing it to the defence. This is therefore not a case where the Crown seeks to use information against a person without permitting that person to see the information. Compare Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9, [2007] 1 S.C.R. 350.
[52] Of course, withheld material over which the informer privilege is claimed might in some instances assist the defence, for example, by providing a trail to other relevant and helpful evidence, or in preparing and conducting the cross‑examination of Crown witnesses. The withheld material might could even be indicative of innocence, while still falling outside the narrow “innocence at stake” exception to the privilege. It is therefore essential that claims of privilege be resolved accurately and fairly, bearing in mind that ex parte proceedings raise serious procedural fairness concerns of particular significance in the conduct of criminal prosecutions, where the liberty of the accused is at stake.
[53] Where a hearing is required to resolve a Crown claim of privilege, the accused and defence counsel should therefore be excluded from the proceedings only when the identity of the confidential informant cannot be otherwise protected. And, even then, only to the necessary extent. In determining whether the claim of privilege has been made out, trial judges should make every effort to avoid unnecessary complexity or delay, without compromising the ability of the accused to make full answer and defence.
[54] Throughout, it should be remembered as well that the interest of accused persons in being present (or, at least, represented) at any proceeding relating to the charges they face remains a fundamental one, even where s. 650, by its very terms, has no application. An ex parte procedure is particularly troubling when the person excluded from the proceeding faces criminal conviction and its consequences.
[55] In order to protect these interests of the accused, trial judges should adopt all reasonable measures to permit defence counsel to make meaningful submissions regarding what occurs in their absence. Trial judges have broad discretion to craft appropriate procedures in this regard.
[56] Measures that a trial judge may wish to adopt in assessing a claim of informer privilege include inviting submissions on the scope of the privilege — including argument as to who constitutes a confidential informant entitled to the privilege — and its application in the circumstances of the case. Defence counsel may be invited as well to suggest questions to be put by the trial judge to any witness that will be called at the ex parte proceeding.
[57] In appropriate cases, fairness may require the court to provide the defence with a redacted or summarized version of the evidence presented ex parte — edited to eliminate any possibility of disclosing the informant’s identity — so as to permit the trial judge to receive additional submissions from the defence on whether the privilege applies in the particular circumstance of the case. In particularly difficult cases, the trial judge may appoint an amicus curiae to attend the ex parte proceeding in order to provide assistance in assessing the claim of privilege.
[58] In the present case, permitting defence counsel to make submissions and to propose questions to be put by the court to the witness at the ex parte hearing might well have been appropriate. The trial judge, however, will be in a better position to decide how best to craft safeguards that mitigate any potential unfairness arising from the ex parte nature of the proceedings. The adoption of appropriate initiatives is therefore best left to the trial judge.
V
[59] For all of these reasons, I would allow the appeal, dismiss the cross-appeal, and return the case to the trial court to be proceeded with in accordance with the judgment of the Court in this case.
Appeal allowed and cross‑appeal dismissed.
Solicitors for the appellant/respondent on cross‑appeal: Hunter Litigation Chambers, Vancouver.
Solicitors for the respondent/appellant on cross‑appeal Udhe Singh Basi: Bolton & Muldoon, Vancouver.
Solicitors for the respondent/appellant on cross‑appeal Bobby Sing Virk: McCullough Blazina Dieno & Gustafson, Victoria.
Solicitors for the respondent/appellant on cross‑appeal Aneal Basi: Johnson Doricic Doyle Sugarman, Vancouver.
Solicitor for the intervener the Director of Public Prosecutions of Canada: Public Prosecution Service of Canada, Vancouver.
Solicitor for the intervener the Attorney General of Ontario: Attorney General of Ontario, Toronto.
Solicitor for the intervener the Canadian Association of Chiefs of Police: Edmonton Police Service, Edmonton.
Solicitor for the intervener the Criminal Lawyers’ Association (Ontario): Anil K. Kapoor, Toronto.
Received, with thanks, from:
D.Love
Victoria, BC
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Top Court protects informant's identity
Toronto Star - Nov. 19, 2009
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Bill Tieleman's column is also posted on The Tyee for Nov. 19, 2009 where I asked him the question about the testimony of the secret witness. Would it become part of the regular court transcript? Or would it be sealed and kept secret forever? Bill came forward with this reply:
Secret witness but public evidence
Tieleman 12 hours ago
Thanks for your kind words Mary - most appreciated.
My understanding is that while the discussion between the Special Prosecutor and Justice MacKenzie about the reasons why the informer cannot in any way be identified would remain secret, any actual testimony that informer gave which would be used in the trial would be public knowledge and reportable.
Obviously there would be little if any indication as to why this secret witness had information useful to the prosecution and I have no idea how the court would deal with the lack of defence cross examination at this point but we will no doubt find out in due course if the trial proceeds - which I very much hope is the case.
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The appeal by Crown Prosecutor Berardino in the Basi Virk Basi trial rested upon the argument that no one but himself, his legal team and BC Supreme Court Justice Elizabeth Bennett should be permitted to hear the evidence to be given by the Secret Witness, with defence lawyers, media and the public excluded in order to protect the identity of the witness. Berardino first took his appeal to BC Court of Appeal, which didn't agree. Berardino then took his appeal to the highest court in Canada: the Supreme Court of Canada. Their ruling was made public on Nov. 19, 2009.
Bill Tieleman was the first to announce:
Basi-Virk Special Prosecutor Bill Berardino has won a landmark appeal in the Supreme Court of Canada this morning when the court overturned two BC lower court rulings on the issue of secret witness testimony in the BC Rail corruption case.
Read more at Bill Tieleman's web-site.
Here is the summary decision set down by the Supreme Court's justices [abridged]:
"The accused were charged with corruption, fraud, and breach of trust under the Criminal Code.
Given that some material produced on an application for disclosure had been blacked out, defence counsel applied for “unredacted” copies.
The Crown objected, claiming informer privilege. The Crown contended that the claim could not be properly established without live testimony by a police officer, and insisted on an in camera and ex parte hearing.
Defence counsel objected to the ex parte nature of the hearing and applied for permission to attend, without their clients.
When the trial judge held that defence counsel could participate fully in the in camera hearing so long as they were subject to a court order and undertakings, the Crown invoked s. 37 of the Canada Evidence Act (“CEA”), which provides for non‑disclosure where a public interest is at stake.
The trial judge affirmed her previous decision, and the Court of Appeal, in a majority decision, dismissed the Crown’s appeal made pursuant to s. 37.1 CEA and upheld the trial judge’s ruling.
The Crown then appealed to this Court on the issue of whether the trial judge erred in permitting defence counsel to attend the in camera hearing, and the accused cross‑appealed on the issue of whether the Court of Appeal had jurisdiction to hear the Crown’s appeal.
Held: The appeal should be allowed and the cross‑appeal dismissed.
While everyone charged with a criminal offence in Canada is constitutionally entitled to full and timely disclosure of all relevant material under the control of the Crown, the entitlement to disclosure is neither absolute nor unlimited.
Where informer privilege has been claimed by the Crown, an accused’s constitutional right to make full answer and defence does not alone trigger an exception to the privilege.
It is only where innocence is at stake that the privilege yields and information tending to reveal the identity of the informant can be disclosed.
The strictness of the privilege is not relaxed when s. 37 CEA is invoked to protect it, and the privilege is not amenable to the sort of public interest balancing contemplated by s. 37(5).
No one outside the circle of privilege may access information over which the privilege has been claimed until a judge has determined that the privilege does not exist or that an exception applies.
It follows that the trial judge erred in permitting defence counsel to attend the in camera hearing to determine the existence of an informer privilege where, in the course of the hearing, information tending to reveal the identity of the putative informer is bound to be revealed.
However, where a hearing is required to resolve a Crown claim of privilege, the accused and defence counsel should be excluded from the proceedings only when the identity of the confidential informant cannot be otherwise protected.
And, even then, only to the necessary extent. The trial judge will be in a better position to decide how best to craft safeguards that mitigate any potential unfairness arising from the ex parte nature of the proceedings.
Lastly, s. 650 of the Criminal Code applies only to the presence of the accused at trial and has no application to the trial judge’s decision under s. 37 CEA. An application under s. 37 is a discrete proceeding, separate from and only ancillary to the criminal trial, and is therefore not caught by s. 650. [1] [23] [34] [43‑44] [50] [53] [58]
The trial judge’s decision amounted to a “disclosure order” within the meaning of s. 37.1 CEA and the Court of Appeal had jurisdiction to hear the Crown’s appeal.
The inevitable result of the trial judge’s decision was to require the Crown to reveal to defence counsel information over which the informer privilege had been claimed.
As defence counsel are outside the “circle of privilege”, permitting them access to this information — even subject to court orders and undertakings — constitutes inevitable disclosure of the information.
While the trial judge sought to restrict this disclosure of privileged information to defence counsel by prohibiting them from sharing it with any one else, her decision constituted an order of disclosure nonetheless.
Furthermore, the trial judge clearly stated that her decision was subject to immediate appeal under the CEA. [16] [30] [32]"
MORE to come, says Bill Tieleman. Many thanks, Bill.
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From Ian Mulgrew, Vancouver Sun ...
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And then there's Vaughn Palmer. Does he give a hoot about BC Rail?
HERE he is at his absolute worst. Like, he didn't know that today's ruling was coming? And this is his best deflection-to-protect-Gordo ploy? Grrrrr. - BC Mary.
P.S. It's only fair, I suppose, to post Palmer's workmanlike column from October 2009 in which he compares the BC Rail trial to the Carrier Lumber trial. See that column HERE.
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Good column by Kirk Makin in The Globe and Mail, Nov. 19, 2009
Note that the Comments section have been "disabled for legal reasons" (which could be the title of a long-running courtroom drama.
For Makin's column, Supreme Court shields informant ID, click HERE.
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The Canadian Press ... click HERE.
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Unabridged
Citation:R. v. Basi, 2009 SCC 52
Date:November 19, 2009
Docket: 32719
Other formats: PDF WPD
SUPREME COURT OF CANADA
CITATION: R. v. Basi, 2009 SCC 52
DATE: 20091119
DOCKET: 32719
BETWEEN:
Her Majesty The Queen
Appellant / Respondent on cross‑appeal
and
Udhe Singh (Dave) Basi, Bobby Singh Virk and Aneal Basi
Respondents / Appellants on cross‑appeal
‑ and ‑
Director of Public Prosecutions of Canada, Attorney General of
Ontario, Canadian Association of Chiefs of Police and
Criminal Lawyers’ Association (Ontario)
Interveners
CORAM: McLachlin C.J. and Binnie, LeBel, Fish, Abella, Charron and Rothstein JJ.
REASONS FOR JUDGMENT:
(paras. 1 to 59)
Fish J. (McLachlin C.J. and Binnie, LeBel, Abella, Charron and Rothstein JJ. concurring)
NOTE: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports.
______________________________
R. V. BASI
Her Majesty The Queen Appellant/Respondent on cross‑appeal
v.
Udhe Singh (Dave) Basi, Bobby Singh Virk
and Aneal Basi Respondents/Appellants on cross‑appeal
and
Director of Public Prosecutions of Canada,
Attorney General of Ontario,
Canadian Association of Chiefs of Police and
Criminal Lawyers’ Association (Ontario) Interveners
Indexed as: R. v. Basi
Neutral citation: 2009 SCC 52.
File No.: 32719.
2009: April 22; 2009: November 19.
Present: McLachlin C.J. and Binnie, LeBel, Fish, Abella, Charron and Rothstein JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA
Criminal law — Evidence — Objection to disclosure of information — Informer privilege — Whether trial judge erred in permitting defence counsel to attend in camera hearing sought by Crown to establish claim of informer privilege — Canada Evidence Act, R.S.C. 1985, c. C‑5, s. 37.
Courts — Jurisdiction — Crown claim of informer privilege — Trial judge ruling that defence counsel could attend in camera hearing sought by Crown to establish claim of informer privilege subject to undertakings and court order — Whether Court of Appeal lacked jurisdiction to hear Crown’s appeal — Whether trial judge’s decision constituted “disclosure order” subject to immediate appeal — Canada Evidence Act, R.S.C. 1985, c. C‑5, s. 37.1.
The accused were charged with corruption, fraud, and breach of trust under the Criminal Code. Given that some material produced on an application for disclosure had been blacked out, defence counsel applied for “unredacted” copies. The Crown objected, claiming informer privilege. The Crown contended that the claim could not be properly established without live testimony by a police officer, and insisted on an in camera and ex parte hearing. Defence counsel objected to the ex parte nature of the hearing and applied for permission to attend, without their clients. When the trial judge held that defence counsel could participate fully in the in camera hearing so long as they were subject to a court order and undertakings, the Crown invoked s. 37 of the Canada Evidence Act (“CEA”), which provides for non‑disclosure where a public interest is at stake. The trial judge affirmed her previous decision, and the Court of Appeal, in a majority decision, dismissed the Crown’s appeal made pursuant to s. 37.1 CEA and upheld the trial judge’s ruling. The Crown then appealed to this Court on the issue of whether the trial judge erred in permitting defence counsel to attend the in camera hearing, and the accused cross‑appealed on the issue of whether the Court of Appeal had jurisdiction to hear the Crown’s appeal.
Held: The appeal should be allowed and the cross‑appeal dismissed.
While everyone charged with a criminal offence in Canada is constitutionally entitled to full and timely disclosure of all relevant material under the control of the Crown, the entitlement to disclosure is neither absolute nor unlimited. Where informer privilege has been claimed by the Crown, an accused’s constitutional right to make full answer and defence does not alone trigger an exception to the privilege. It is only where innocence is at stake that the privilege yields and information tending to reveal the identity of the informant can be disclosed. The strictness of the privilege is not relaxed when s. 37 CEA is invoked to protect it, and the privilege is not amenable to the sort of public interest balancing contemplated by s. 37(5). No one outside the circle of privilege may access information over which the privilege has been claimed until a judge has determined that the privilege does not exist or that an exception applies. It follows that the trial judge erred in permitting defence counsel to attend the in camera hearing to determine the existence of an informer privilege where, in the course of the hearing, information tending to reveal the identity of the putative informer is bound to be revealed. However, where a hearing is required to resolve a Crown claim of privilege, the accused and defence counsel should be excluded from the proceedings only when the identity of the confidential informant cannot be otherwise protected. And, even then, only to the necessary extent. The trial judge will be in a better position to decide how best to craft safeguards that mitigate any potential unfairness arising from the ex parte nature of the proceedings. Lastly, s. 650 of the Criminal Code applies only to the presence of the accused at trial and has no application to the trial judge’s decision under s. 37 CEA. An application under s. 37 is a discrete proceeding, separate from and only ancillary to the criminal trial, and is therefore not caught by s. 650. [1] [23] [34] [43‑44] [50] [53] [58]
The trial judge’s decision amounted to a “disclosure order” within the meaning of s. 37.1 CEA and the Court of Appeal had jurisdiction to hear the Crown’s appeal. The inevitable result of the trial judge’s decision was to require the Crown to reveal to defence counsel information over which the informer privilege had been claimed. As defence counsel are outside the “circle of privilege”, permitting them access to this information — even subject to court orders and undertakings — constitutes inevitable disclosure of the information. While the trial judge sought to restrict this disclosure of privileged information to defence counsel by prohibiting them from sharing it with any one else, her decision constituted an order of disclosure nonetheless. Furthermore, the trial judge clearly stated that her decision was subject to immediate appeal under the CEA. [16] [30] [32]
Cases Cited
Applied: Named Person v. Vancouver Sun, 2007 SCC 43, [2007] 3 S.C.R. 252; referred to: R. v. Fisk (1996), 108 C.C.C. (3d) 63; Mills v. The Queen, [1986] 1 S.C.R. 863; R. v. Leipert, [1997] 1 S.C.R. 281; R. v. Stinchcombe, [1991] 3 S.C.R. 326; R. v. G, [2004] EWCA Crim 1368, [2004] 2 Cr. App. R. 37 (p. 630); R. v. Pilotte (2002), 156 O.A.C. 1; Charkaoui v. Canada (Citizen and Immigration), 2007 SCC 9, [2007] 1 S.C.R. 350.
Statutes and Regulations Cited
Canada Evidence Act, R.S.C. 1985, c. C‑5, ss. 37, 37.1, 37.2.
Criminal Code, R.S.C. 1985, c. C‑46, s. 650.
Authors Cited
Hubbard, Robert W., Susan Magotiaux and Suzanne M. Duncan. The Law of Privilege in Canada. Aurora, Ont.: Canada Law Book, 2006 (loose‑leaf updated May 2009).
APPEAL from a judgment of the British Columbia Court of Appeal (Finch C.J.B.C. and Ryan and Donald JJ.A.), 2008 BCCA 297, 257 B.C.A.C. 253, 235 C.C.C. (3d) 383, 59 C.R. (6th) 165, [2008] B.C.J. No. 1300 (QL), 2008 CarswellBC 1436, affirming a decision of Bennett J., 2007 BCSC 1898, 170 C.R.R. (2d) 275, [2007] B.C.J. No. 2816 (QL), 2007 CarswellBC 3162. Appeal allowed and cross‑appeal dismissed.
William Berardino, Q.C., Janet L. Winteringham, Q.C., Michael Sobkin and Andrea N. Mackay, for the appellant/respondent on cross‑appeal.
P. Michael Bolton, Q.C., and Claire E. Hatcher, for the respondent/appellant on cross‑appeal Udhe Singh Basi.
Joseph J. Blazina and Kevin G. McCullough, for the respondent/appellant on cross‑appeal Bobby Singh Virk.
Joseph Doyle and Erin D. Dance, for the respondent/appellant on cross‑appeal Aneal Basi.
W. Paul Riley and François Lacasse, for the intervener the Director of Public Prosecutions of Canada.
Robert W. Hubbard and Christopher Webb, for the intervener the Attorney General of Ontario.
Greg Preston and Mark Unchulenko, for the intervener the Canadian Association of Chiefs of Police.
Anil K. Kapoor and Lindsay L. Daviau, for the intervener the Criminal Lawyers’ Association (Ontario).
The judgment of the Court was delivered by
FISH J. —
I
[1] Everyone charged with a criminal offence in Canada is constitutionally entitled to full and timely disclosure of all relevant material under the control of the Crown. To withhold that material without justification is to jeopardize impermissibly the right of the accused to make full answer and defence. The entitlement to disclosure must therefore be broadly construed. But it is neither absolute nor unlimited.
[2] The limit that concerns us here is a function of the “informer privilege”, which prohibits disclosure of the identity of confidential informants.
[3] More particularly, we are required to decide whether the trial judge erred in permitting defence counsel to attend the in camera hearing sought by the Crown to establish its claim of informer privilege. With respect, I believe that she did.
[4] The judge’s order was intended to safeguard the privilege by prohibiting defence counsel from disclosing to anyone, including the accused — their own clients — anything they learned at the hearing. In fact, however, the order exposed the privilege to imminent demise, since information tending to reveal the identity of the putative informer was bound to be revealed in the course of the hearing. Defence counsel would thus have been made privy to what the informer privilege is meant to deny them.
[5] For the reasons of Ryan J.A., dissenting at the Court of Appeal, and for the reasons that follow, I would therefore allow the Crown’s appeal and return the case to the trial court for determination of the Crown’s claim of informer privilege in accordance with the procedure set out below.
II
[6] The respondents are charged with corruption, fraud, and breach of trust in relation to the sale of B.C. Rail’s freight railway operations by the provincial government. The decision on appeal was one of a series of pre‑trial orders arising out of a lengthy application for disclosure. In response to their requests, the accused received more than 100,000 documents, including police notes and reports that had been redacted. Some pages were completely blacked out.
[7] Defence counsel applied to the court for “unredacted” copies. The Crown objected, claiming the informer privilege.
[8] The trial judge, Bennett J. (as she then was), proposed that the Crown submit the documents in question under seal, accompanied by an affidavit explaining the basis upon which the privilege was claimed. The trial judge preferred to test the privilege on a paper record that could be edited to protect the privilege, while permitting counsel to respond to the claim.
[9] The Crown contended that it could not properly establish its claim of privilege without approximately one hour of live testimony by a police officer. And the Crown insisted on an in camera and ex parte hearing for that purpose.
[10] Defence counsel objected to the ex parte nature of the hearing and applied for permission to attend, without their clients. They agreed to submit to a court order and undertakings not to divulge any privileged information to anybody, including the accused. Counsel had obtained authorizations from their clients in this regard.
[11] Bennett J., relying in part on R. v. Fisk (1996), 108 C.C.C. (3d) 63 (B.C.C.A.), held that so long as defence counsel were subject to the court order and undertakings, they could participate fully in the in camera hearing: 2007 BCSC 1888, 170 C.R.R. (2d) 260. Justice Bennett’s reasons were based both on the common law of privilege and s. 650 of the Criminal Code, R.S.C. 1985, c. C-46, which establishes an accused’s right to remain present at trial.
[12] In the course of her reasons, Bennett J. noted that the Crown could invoke s. 37 of the Canada Evidence Act, R.S.C. 1985, c. C-5 (“CEA”), which provides for non‑disclosure where a public interest — such as the informer privilege — is at stake. Importantly, the CEA provides the Crown with an immediate right of appeal of certain evidentiary orders.
[13] Section 37(1) reads:
37. (1) Subject to sections 38 to 38.16, a Minister of the Crown in right of Canada or other official may object to the disclosure of information before a court, person or body with jurisdiction to compel the production of information by certifying orally or in writing to the court, person or body that the information should not be disclosed on the grounds of a specified public interest.
[14] The Crown invoked s. 37 upon the release of the Justice Bennett’s reasons. The next day, Justice Bennett issued additional reasons, affirming that even under s. 37, defence counsel could attend the in camera hearing, subject to undertakings and a court order: 2007 BCSC 1898, 170 C.R.R. (2d) 275. The Crown immediately inscribed the appeal that concerns us here.
[15] In the Court of Appeal (2008 BCCA 297, 59 C.R. (6th) 165), Finch C.J.B.C. held that the court lacked jurisdiction to hear the Crown’s appeal. In his view, Bennett J.’s decision did not amount to a “disclosure order” within the meaning of s. 37.1 of the CEA and was for that reason not subject to immediate appeal under that provision. In the alternative, Chief Justice Finch held that the procedure devised by the trial judge was permissible. Donald J.A. concurred on the latter ground only.
[16] Ryan J.A. dissented. She found that the trial judge’s decision did indeed constitute a “disclosure order” subject to immediate appeal under the CEA. With regard to the substance of Bennett J.’s order, Justice Ryan concluded that the presence of defence counsel at the in camera hearing would result in a breach of the informer privilege.
[17] In Justice Ryan’s view, the court order and undertakings not to disclose did not cure this breach. As the sole exception to the privilege — where innocence is at stake — was not engaged, defence counsel could not be permitted to attend the hearing.
[18] The Crown now appeals, with leave, to this Court. And the accused, in their cross‑appeal, submit that the Court of Appeal lacked jurisdiction to hear the Crown’s “interlocutory” appeal (Factum on Cross-Appeal of Mr. Virk, at para. 14). I shall first consider the jurisdictional issue and then turn to the merits of Justice Bennett’s order.
III
[19] The Court has indeed held, as the appellant submits, that “all criminal appeals are statutory and that there should be no interlocutory appeals in criminal matters”: Mills v. The Queen, [1986] 1 S.C.R. 863, at p. 959. This is, of course, a criminal matter, but the appeal relates to an incidental and separate proceeding under s. 37 of the CEA and Parliament has expressly provided in ss. 37.1‑37.2 of the CEA for an immediate appeal as of right to the court of appeal, and further appeals, with leave, to this Court.
[20] This right of appeal is limited by the CEA, however, to a “determination under any of subsections 37(4.1) to (6)”. Section 37(6) is concerned with prohibition orders and has no application here. The jurisdiction of the Court of Appeal thus depended on whether the trial judge’s decision amounted to a determination under either s. 37(4.1) or s. 37(5).
[21] Section 37(4.1) provides that a court “may authorize by order the disclosure of the information” over which privilege is claimed “[u]nless the court . . . concludes that the disclosure . . . would encroach upon a specific public interest”. Section 37(5) adds that even where a specified public interest is engaged, disclosure may nevertheless be ordered — subject to conditions — if the public’s interest in disclosure outweighs a specified public interest that militates against disclosure.
[22] The “specified public interest” at issue in this case is the protection of the identity of informers, more generally known as the “informer privilege”. The informer privilege is a class privilege, subject only to the “innocence at stake” exception. It is not amenable to the sort of public interest balancing contemplated by s. 37(5): R. v. Leipert, [1997] 1 S.C.R. 281, at paras. 12‑14. I shall have more to say later about the purpose and scope of the privilege.
[23] When s. 37 is invoked to protect the informer privilege — a relatively rare occurrence, since the claim of privilege will usually be settled under the common law alone — its strictness is not relaxed. See R.W. Hubbard, S. Magotiaux and S.M. Duncan, The Law of Privilege in Canada (loose-leaf), at p. 3‑44.
[24] Recognizing the unique nature of the informer privilege, the trial judge found it unnecessary to engage in the “balancing” required under s. 37(5). She held instead that the substantive law on the scope of the privilege permitted defence counsel to attend the in camera hearing she had ordered.
[25] In the language of s. 37(4.1), then, the trial judge concluded that in camera disclosure to defence counsel, subject to a court order and undertakings, did not encroach upon the “specified public interest” — that is, the informer privilege invoked by the Crown. In my view, this decision amounts to an order for disclosure — albeit extremely limited disclosure — under s. 37(4.1).
[26] The respondents — appellants on the cross‑appeal — raise two main arguments in support of the contrary conclusion that the trial judge’s decision was not an order of disclosure subject to immediate appeal.
[27] First, they submit that the trial judge’s decision was not an order of disclosure, but only a “procedural ruling” (Factum of the Respondent U. S. Basi on Appeal and Cross‑Appeal, at para. 37; Factum of the Respondent Virk on Cross‑Appeal, at para. 39; Factum of the Respondent A. Basi on Appeal and Cross‑Appeal, at para. 164.)
[28] Second, even if the decision can be characterized as an order, respondents contend that it did not authorize disclosure, but merely prescribed a procedure to be followed in determining whether the informer privilege had been established. The respondents contend that the CEA does not contemplate immediate appeals of “procedural” decisions of this sort.
[29] In my view, these arguments all fail: They favour form over substance and recast the judge’s order in an erroneous light.
[30] The inevitable result of the trial judge’s decision was to require the Crown to reveal to defence counsel information over which the informer privilege had been claimed. As defence counsel are outside the “circle of privilege”, permitting them access to this information — even subject to court orders and undertakings — constitutes inevitable disclosure of the information. And while the trial judge sought to restrict this disclosure of privileged information to defence counsel, who were prohibited from sharing it with any one else, her decision constituted an order of disclosure nonetheless.
[31] If there remained any doubt as to the nature of the trial judge’s decision, the trial judge settled it herself. The last sentence of her additional reasons reads:
The in camera hearing is suspended to give the Crown the opportunity to determine whether it wishes to appeal this ruling, which it has the right to do under s. 37 of the Canada Evidence Act. [para. 23]
[32] The trial judge could not have been more clear that she was making a determination that was properly subject to immediate appeal. There is no reason to conclude that the trial judge misunderstood the nature and consequences of her own order.
[33] I would therefore dismiss the cross‑appeal.
IV
[34] The decisive question on this appeal is whether defence counsel can be permitted to attend an in camera hearing to determine the existence of an informer privilege where, in the course of the hearing, information tending to reveal the identity of the putative informer is bound to be revealed.
[35] Before turning to that issue, it will be helpful to consider generally the purpose, scope and operation of the informer privilege and the governing principles set out by Bastarache J. in Named Person v. Vancouver Sun, 2007 SCC 43, [2007] 3 S.C.R. 252.
[36] The privilege arises where a police officer, in the course of an investigation, guarantees protection and confidentiality to a prospective informer in exchange for useful information that would otherwise be difficult or impossible to obtain. In appropriate circumstances, a bargain of this sort has long been accepted as an indispensable tool in the detection, prevention and prosecution of crime.
[37] The informer privilege has been described as “nearly absolute”. As mentioned earlier, it is safeguarded by a protective veil that will be lifted by judicial order only when the innocence of the accused is demonstrably at stake. Moreover, while a court can adopt discretionary measures to protect the identity of the informer, the privilege itself is “a matter beyond the discretion of a trial judge.” (Named Person, at para. 19).
[38] Whenever informer privilege is claimed, or the court of its own motion considers that the privilege appears to arise, its existence must be determined by the court in camera at a “first stage” hearing. Even the existence of the claim cannot be publicly disclosed. Ordinarily, only the putative informant and the Crown may appear before the judge. In Named Person, however, the Court considered that an amicus curiae may be necessary or appropriate, particularly where the interests of the informant and the Crown are aligned: Named Person, at para. 48.
[39] In determining whether the privilege exists, the judge must be satisfied, on a balance of probabilities, that the individual concerned is indeed a confidential informant. And if the claim of privilege is established, the judge must give it full effect. As we have seen, Named Person established that trial judges have no discretion to do otherwise.
[40] Finally, the informer privilege belongs jointly to the Crown and to the informant. Neither can waive it without the consent of the other.
[41] Though Named Person held that “first stage” hearings must be held in camera, the Court was not called upon to consider whether the hearings must proceed ex parte as well. That is because the privilege was claimed in that case by the informant — the very person before the court on extradition proceedings. And he claimed the privilege not to keep the information out of the hands of any party to the proceedings, but rather to prevent media organizations from accessing information relating to his activities as a police informant. In those unusual circumstances, all of the parties to the proceeding had access to the privileged information; it was only third parties who were excluded.
[42] Like Named Person, this case concerns a claim of informer privilege. Unlike Named Person, however, this case does not concern a fugitive-informant who seeks to prevent disclosure of information to which he is already privy. Rather, it concerns the accused, who seek to obtain disclosure of information which the Crown feels bound to deny them. But these distinctions, significant as they are, do not turn the tide in the respondents’ favour.
[43] It is true, of course, that the respondents are in jeopardy of criminal conviction and its consequences. Their s. 7 right to make full answer and defence is therefore plainly engaged: R. v. Stinchcombe, [1991] 3 S.C.R. 326. The Court has made clear, however, that the right to make full answer and defence does not alone trigger an exception to the informer privilege: Leipert, at paras. 23‑25. It is only where innocence is at stake that the privilege yields and information tending to reveal the identity of the informant can be disclosed.
[44] It thus remains as true in this case as it was in Named Person that “[w]hile the judge is determining whether the privilege applies, all caution must be taken on the assumption that it does apply” (para. 47). No one outside the circle of privilege may access information over which the privilege has been claimed until a judge has determined that the privilege does not exist or that an exception applies. It follows that the trial judge erred in permitting defence counsel to hear the testimony of an officer tending to reveal the identity of the putative informant at the “first stage” hearing.
[45] To hold otherwise is to place defence counsel in an awkward and professionally undesirable position. The concern is not that defence counsel would intentionally violate their undertakings or the court order; rather, it is that respecting the undertakings and court order would, at best, strain the necessary relationship between defence counsel and their accused clients.
[46] Defence counsel would have to remain constantly on guard never to say or do anything, even inadvertently, that might tend to reveal the informant’s identity. This exceedingly onerous constraint would by its very nature “prevent frankness and fetter the free flow of information between lawyer and client”, and otherwise impair the solicitor‑client relationship: R. v. G, [2004] EWCA Crim 1368, [2004] 2 Cr. App. R. 37 (p. 630), at pp. 634‑35. In certain cases, defence counsel might feel bound to withdraw their representation, caught in a conflict between their duty to represent the best interests of their client and their duty to the court not to disclose or to act on the information heard in camera: R. v. G., at pp. 635‑36.
[47] It is true that defence counsel gave their undertakings of non-disclosure with the consent of their clients. At the time, however, the privileged information was otherwise inaccessible to both the accused and their counsel. Once the information is in the hands of their counsel, the consent freely given beforehand might understandably be viewed by the accused as consent given without choice. And consent thought to have been given without choice, even if not repudiated, is bound to be resented.
[48] In support of the trial judge’s order, the respondents cite s. 650 of the Criminal Code, which codifies the accused’s right to be present at trial. Indeed, the trial judge’s first decision on the common law privilege claim rested, in part, on this provision: Section 650 was invoked by the judge in concluding that counsel should be permitted to attend subject to a court order and undertakings.
[49] Section 650(1) reads:
650. (1) Subject to subsections (1.1) to (2) and section 650.01, an accused, other than an organization, shall be present in court during the whole of his or her trial.
[50] Clearly, s. 650 has no application to the trial judge’s decision under s. 37. By its very terms, it applies only to the presence of the accused at trial. An application under s. 37 of the CEA is a discrete proceeding, separate from and only ancillary to the criminal trial. Accordingly, it is not caught by s. 650: R. v. Pilotte (2002), 156 O.A.C. 1, at para. 46.
[51] This case concerns an application for disclosure only. The Crown does not seek to rely upon the redacted portions of the documents in order to prove guilt. Indeed, the Crown could not introduce the withheld information as evidence at trial without providing it to the defence. This is therefore not a case where the Crown seeks to use information against a person without permitting that person to see the information. Compare Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9, [2007] 1 S.C.R. 350.
[52] Of course, withheld material over which the informer privilege is claimed might in some instances assist the defence, for example, by providing a trail to other relevant and helpful evidence, or in preparing and conducting the cross‑examination of Crown witnesses. The withheld material might could even be indicative of innocence, while still falling outside the narrow “innocence at stake” exception to the privilege. It is therefore essential that claims of privilege be resolved accurately and fairly, bearing in mind that ex parte proceedings raise serious procedural fairness concerns of particular significance in the conduct of criminal prosecutions, where the liberty of the accused is at stake.
[53] Where a hearing is required to resolve a Crown claim of privilege, the accused and defence counsel should therefore be excluded from the proceedings only when the identity of the confidential informant cannot be otherwise protected. And, even then, only to the necessary extent. In determining whether the claim of privilege has been made out, trial judges should make every effort to avoid unnecessary complexity or delay, without compromising the ability of the accused to make full answer and defence.
[54] Throughout, it should be remembered as well that the interest of accused persons in being present (or, at least, represented) at any proceeding relating to the charges they face remains a fundamental one, even where s. 650, by its very terms, has no application. An ex parte procedure is particularly troubling when the person excluded from the proceeding faces criminal conviction and its consequences.
[55] In order to protect these interests of the accused, trial judges should adopt all reasonable measures to permit defence counsel to make meaningful submissions regarding what occurs in their absence. Trial judges have broad discretion to craft appropriate procedures in this regard.
[56] Measures that a trial judge may wish to adopt in assessing a claim of informer privilege include inviting submissions on the scope of the privilege — including argument as to who constitutes a confidential informant entitled to the privilege — and its application in the circumstances of the case. Defence counsel may be invited as well to suggest questions to be put by the trial judge to any witness that will be called at the ex parte proceeding.
[57] In appropriate cases, fairness may require the court to provide the defence with a redacted or summarized version of the evidence presented ex parte — edited to eliminate any possibility of disclosing the informant’s identity — so as to permit the trial judge to receive additional submissions from the defence on whether the privilege applies in the particular circumstance of the case. In particularly difficult cases, the trial judge may appoint an amicus curiae to attend the ex parte proceeding in order to provide assistance in assessing the claim of privilege.
[58] In the present case, permitting defence counsel to make submissions and to propose questions to be put by the court to the witness at the ex parte hearing might well have been appropriate. The trial judge, however, will be in a better position to decide how best to craft safeguards that mitigate any potential unfairness arising from the ex parte nature of the proceedings. The adoption of appropriate initiatives is therefore best left to the trial judge.
V
[59] For all of these reasons, I would allow the appeal, dismiss the cross-appeal, and return the case to the trial court to be proceeded with in accordance with the judgment of the Court in this case.
Appeal allowed and cross‑appeal dismissed.
Solicitors for the appellant/respondent on cross‑appeal: Hunter Litigation Chambers, Vancouver.
Solicitors for the respondent/appellant on cross‑appeal Udhe Singh Basi: Bolton & Muldoon, Vancouver.
Solicitors for the respondent/appellant on cross‑appeal Bobby Sing Virk: McCullough Blazina Dieno & Gustafson, Victoria.
Solicitors for the respondent/appellant on cross‑appeal Aneal Basi: Johnson Doricic Doyle Sugarman, Vancouver.
Solicitor for the intervener the Director of Public Prosecutions of Canada: Public Prosecution Service of Canada, Vancouver.
Solicitor for the intervener the Attorney General of Ontario: Attorney General of Ontario, Toronto.
Solicitor for the intervener the Canadian Association of Chiefs of Police: Edmonton Police Service, Edmonton.
Solicitor for the intervener the Criminal Lawyers’ Association (Ontario): Anil K. Kapoor, Toronto.
Received, with thanks, from:
D.Love
Victoria, BC
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Top Court protects informant's identity
Toronto Star - Nov. 19, 2009
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Bill Tieleman's column is also posted on The Tyee for Nov. 19, 2009 where I asked him the question about the testimony of the secret witness. Would it become part of the regular court transcript? Or would it be sealed and kept secret forever? Bill came forward with this reply:
Secret witness but public evidence
Tieleman 12 hours ago
Thanks for your kind words Mary - most appreciated.
My understanding is that while the discussion between the Special Prosecutor and Justice MacKenzie about the reasons why the informer cannot in any way be identified would remain secret, any actual testimony that informer gave which would be used in the trial would be public knowledge and reportable.
Obviously there would be little if any indication as to why this secret witness had information useful to the prosecution and I have no idea how the court would deal with the lack of defence cross examination at this point but we will no doubt find out in due course if the trial proceeds - which I very much hope is the case.
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Comments:
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Only one small point at this time...maybe, just maybe, this is a good thing.
Berardino was apparently not prepared to move forward without his 'secret' witness...perhaps now, with the secret testimony, the actual trial WILL go ahead....
On the other hand, this says something very sad about the state of the justice system in this country.
The principle that the accused have a constitutional right to face their accusers is not one to be overthrown so easily...somehow this is a very sad day for the country.
Combined with broad hints that the 'rest' of BC Rail may soon disappear down the memory hole, I won't be cheering much today.
GW
Berardino was apparently not prepared to move forward without his 'secret' witness...perhaps now, with the secret testimony, the actual trial WILL go ahead....
On the other hand, this says something very sad about the state of the justice system in this country.
The principle that the accused have a constitutional right to face their accusers is not one to be overthrown so easily...somehow this is a very sad day for the country.
Combined with broad hints that the 'rest' of BC Rail may soon disappear down the memory hole, I won't be cheering much today.
GW
Anon 7:25,
My head is spinning. Having become so accustomed to disappointments,
I'm having a hard time understanding why I am so pleased by this ruling.
I fully expected the Supreme Court of Canada to rule that the Defence must be present (under certain conditions) while the Secret Witness testifies.
Now I find myself doing the Dance of Joy, thinking that Defence lawyers and Defendants will be excluded ...
and that it can indeed be a weird tiny sealed courtroom scene with only Judge, Special Prosecutor, Secret Witness, and nobody else present, nor a word written about it ...
because doesn't this mean that Special Prosecutor has no more excuses? that he must get this trial moving? Now?
Like, early January 2010? just like Madam Justice MacKenzie said??
.
My head is spinning. Having become so accustomed to disappointments,
I'm having a hard time understanding why I am so pleased by this ruling.
I fully expected the Supreme Court of Canada to rule that the Defence must be present (under certain conditions) while the Secret Witness testifies.
Now I find myself doing the Dance of Joy, thinking that Defence lawyers and Defendants will be excluded ...
and that it can indeed be a weird tiny sealed courtroom scene with only Judge, Special Prosecutor, Secret Witness, and nobody else present, nor a word written about it ...
because doesn't this mean that Special Prosecutor has no more excuses? that he must get this trial moving? Now?
Like, early January 2010? just like Madam Justice MacKenzie said??
.
I can understand your joy that Wild Bill has no excuse to not move forward with trial, however will he actually move ahead, or is he busy trying to think of yet another means of delaying any real progress towards holding accountable those truly accountable for whatever happened to start this sorry excuse for a legal proceeding?
Now that Beraradino has had overturned centuries of precedent why should he stop now? Why not demand that the entire trial be held in camera, not just have a publication ban as already is in place for the related Sooke ALR trial. What reason can there be for the government to not just disappear folks that don't agree with their policies - everything our wonderful government does is privileged - even (or especially)criminal activity.
Wild Bill hasn't even had to use the "national security" trump card yet either, so he has lotsa room to move towards even more secrecy than even Canned Waste/Glow Ball afford him. If Wild Bill can't figure out how to tie transportation infrastructure to national security, he ain't really trying!
Hearing about the charges from an accountant re:the Auditor-General's office, the weaseling PsuedoCons trying to deny any Canadian detainees were tortured, because Mr. Colvin apparently didn't witness PERSONALLY any torture going on and this judgement from our Supreme Court of co-conspiracy makes me feel ashamed to be part of our society this morning.
I guess Stevie is kinda kneecapped now about any chance to chide China over human rights during his upcoming visit, and rightfully so -people who live in (and run) corrupt houses can't really throw mud now can they?
Now that Beraradino has had overturned centuries of precedent why should he stop now? Why not demand that the entire trial be held in camera, not just have a publication ban as already is in place for the related Sooke ALR trial. What reason can there be for the government to not just disappear folks that don't agree with their policies - everything our wonderful government does is privileged - even (or especially)criminal activity.
Wild Bill hasn't even had to use the "national security" trump card yet either, so he has lotsa room to move towards even more secrecy than even Canned Waste/Glow Ball afford him. If Wild Bill can't figure out how to tie transportation infrastructure to national security, he ain't really trying!
Hearing about the charges from an accountant re:the Auditor-General's office, the weaseling PsuedoCons trying to deny any Canadian detainees were tortured, because Mr. Colvin apparently didn't witness PERSONALLY any torture going on and this judgement from our Supreme Court of co-conspiracy makes me feel ashamed to be part of our society this morning.
I guess Stevie is kinda kneecapped now about any chance to chide China over human rights during his upcoming visit, and rightfully so -people who live in (and run) corrupt houses can't really throw mud now can they?
I find it sad, and ridiculous. Two men will now face these accusations coming from someone they likely knew, but will never see, nor know what has been said.
Basically, through the SCC, we've lost our rights to face our accusers directly. At this point I'd be likely to consider what this "secret witness" has to say as hearsay, unless they have documentation that directly shows the involvement of both Basi and Virk.
One upside to it is that the accused might now say to hell with it...and pull out all stops to clear their names...dragging down the entire rotten tree with them. Now THAT would be something to watch. Not that Gordo's about to let that happen.
Something will scuttle this whole thing yet...trial delay maybe? Justice delayed is Justice denied.
Meh, whatever, justice is dead in BC anyway.
Basically, through the SCC, we've lost our rights to face our accusers directly. At this point I'd be likely to consider what this "secret witness" has to say as hearsay, unless they have documentation that directly shows the involvement of both Basi and Virk.
One upside to it is that the accused might now say to hell with it...and pull out all stops to clear their names...dragging down the entire rotten tree with them. Now THAT would be something to watch. Not that Gordo's about to let that happen.
Something will scuttle this whole thing yet...trial delay maybe? Justice delayed is Justice denied.
Meh, whatever, justice is dead in BC anyway.
# posted by 
: November 19, 2009 at 8:31 a.m.
: November 19, 2009 at 8:31 a.m.
You have to read the reasons for judgment Mary: My Legal advisor says that the Supremes seem to be saying that what is appropriate in the preliminary hearing (ie now) may not be the case in the trial itself.. the star chamber thing might not apply in the trial proper…
We may still hear from the 'secret witness'.
Take heart! It may well be that the Supremes decided that the case was important enough for it to go ahead…this may be a slap at Berardino – with a velvet glove of course – and the first firm indication that there actually will be a real trial.
I’m not sure there will be much cheering in the Premier’s Office this morning….
We may still hear from the 'secret witness'.
Take heart! It may well be that the Supremes decided that the case was important enough for it to go ahead…this may be a slap at Berardino – with a velvet glove of course – and the first firm indication that there actually will be a real trial.
I’m not sure there will be much cheering in the Premier’s Office this morning….
Leah,
It's a compromise, for sure. But in a weird way, it does open a door through which, I think, Berardino must go.
The thing is, however, that Defence also wants all those BCR e.mails ...
Meantime, I got to wondering about the testimony of the Secret Witness.
Can anybody answer the question: at what point does his testimony become part of the publicly-available transcript?
I imagine that his testimony would reveal his identity ... therefore ...
is it Off Limits forever? or what?
And Leah, keep telling yourself: this ain't over until we say it's over. And I'm telling you: it ain't over.
.
It's a compromise, for sure. But in a weird way, it does open a door through which, I think, Berardino must go.
The thing is, however, that Defence also wants all those BCR e.mails ...
Meantime, I got to wondering about the testimony of the Secret Witness.
Can anybody answer the question: at what point does his testimony become part of the publicly-available transcript?
I imagine that his testimony would reveal his identity ... therefore ...
is it Off Limits forever? or what?
And Leah, keep telling yourself: this ain't over until we say it's over. And I'm telling you: it ain't over.
.
Funny, I was wondering if my personal response to this was wrong, I felt relieved as Mary commented above. As for V. Palmers editorial, it is totally understandable,(sorry) I watched the Leg. yesterday, I watched J, Horgan question the BC Rail execs salaries. Palmers job is reporting on the Legislature, slanted of course ;) coincidence I really feel, this time. Palmer could have quoted Horgan from yesterday.
"J. Horgan: As staggering as it is that the members on that side of the House don't seem to think it's odd that we're paying a guy a million bucks to run a monopoly ferry system, I think they'll be even more surprised to learn that six years ago they privatized B.C. Rail, but they continue to pay the chief executive officer and the president $500,000 a year to run zero trains on 40 kilometres of track. Now, they may have a miniature train set in the boardroom, but you've got four chief executive officers making $1.2 million — no trains. Is that acceptable — a million bucks for the ferries, $1.2 million for no train? "
and to be clear there is no BC rail Ltd left, as S. Bond states
"Hon. S. Bond: …the disposal of surplus properties for revenue. In fact, they also look after the completion of subdivisions to support economic development, and in fact they monitor the very important B.C. investment railway partnership. So there is work being done.
In addition, like all of the Crowns in British Columbia, we in fact are going to review B.C. Rail Properties.
EM
ps, I posted this without seeing earlier posts and comments.
"J. Horgan: As staggering as it is that the members on that side of the House don't seem to think it's odd that we're paying a guy a million bucks to run a monopoly ferry system, I think they'll be even more surprised to learn that six years ago they privatized B.C. Rail, but they continue to pay the chief executive officer and the president $500,000 a year to run zero trains on 40 kilometres of track. Now, they may have a miniature train set in the boardroom, but you've got four chief executive officers making $1.2 million — no trains. Is that acceptable — a million bucks for the ferries, $1.2 million for no train? "
and to be clear there is no BC rail Ltd left, as S. Bond states
"Hon. S. Bond: …the disposal of surplus properties for revenue. In fact, they also look after the completion of subdivisions to support economic development, and in fact they monitor the very important B.C. investment railway partnership. So there is work being done.
In addition, like all of the Crowns in British Columbia, we in fact are going to review B.C. Rail Properties.
EM
ps, I posted this without seeing earlier posts and comments.
# posted by : November 19, 2009 at 8:51 a.m.
: November 19, 2009 at 8:51 a.m.
Lemme see, Christy Clark's lawyer can peruse anything he wants, but not the lawyers for Basi,Virk and Basi. It's nice to know that Lady Justice is still blindfolded and using those scales, excuse me while I barf!
.
G West,
Thank you for that encouragement ... when you say that we've just had "the first firm indication that the trial will go ahead" ...
I totally agree!
It just took me by surprise, that things could ever open up in BC for the public interest, this way.
I guess we can sink way too deep into gloom, sometimes without even realizing.
You shoulda seen me pop to the surface this morning, though! WooHoo!
Now if we could pry loose those BC Rail e.mails ...
... and what was Pastor Palmer on about this morning, anyway ... ?? Not simply a distraction (although it's that, too) ... I get an impression of somebody kicking dirt, trying to cover up a set of recognizable footprints.
.
G West,
Thank you for that encouragement ... when you say that we've just had "the first firm indication that the trial will go ahead" ...
I totally agree!
It just took me by surprise, that things could ever open up in BC for the public interest, this way.
I guess we can sink way too deep into gloom, sometimes without even realizing.
You shoulda seen me pop to the surface this morning, though! WooHoo!
Now if we could pry loose those BC Rail e.mails ...
... and what was Pastor Palmer on about this morning, anyway ... ?? Not simply a distraction (although it's that, too) ... I get an impression of somebody kicking dirt, trying to cover up a set of recognizable footprints.
.
EM,
Thanks for your report on yesterday's debate in the Legislature.
It raises an old concern: do you ever get the feeling that the BC Opposition isn't really an Opposition at all?
I mean, too little too late seems to be their motto.
.
Thanks for your report on yesterday's debate in the Legislature.
It raises an old concern: do you ever get the feeling that the BC Opposition isn't really an Opposition at all?
I mean, too little too late seems to be their motto.
.
Y' know Mary...you've actually brought my greatest concern to the front - the total lack of opposition in the Leg!
Yes, the BC Rail issue is something I'd like to see totally reversed, and political heads be seen spending real time in jail for...but the NDP are the sorriest excuse I've EVER seen for opposition. What else are they going to let slide by while all eyes are focused on the games? If James is still in there after their great meeting, we're done.
Something has to give in this province politically - and I don't think she has what it takes to give up the goodies, for the good of the province.
Yes, the BC Rail issue is something I'd like to see totally reversed, and political heads be seen spending real time in jail for...but the NDP are the sorriest excuse I've EVER seen for opposition. What else are they going to let slide by while all eyes are focused on the games? If James is still in there after their great meeting, we're done.
Something has to give in this province politically - and I don't think she has what it takes to give up the goodies, for the good of the province.
# posted by : November 19, 2009 at 10:08 a.m.
: November 19, 2009 at 10:08 a.m.
Mr. West and company, I understand your concerns about facing accusers but...
The powers that be,the mafia,the Mexicans,the bloods,scorpions,and thousands of others criminal organizations..
Chicago,Detroit,honour students beaten and killed with 20 witnesses and nobody will talk,Mexico,corrupt police,corrupt government,testifying is a death sentence,same thing in Rio...and all through south America,same thing in Afghanastan.
So the part about facing accusers....I just don`t know,we can`t protect witnesses or their families, yet as Mr. West alludes to......
What kind of justice is it when one can testify without scrutiny.....
I have no answer just a thought,can we invent a failproof lie detector.
Cheers-Eyes Wide Open
The powers that be,the mafia,the Mexicans,the bloods,scorpions,and thousands of others criminal organizations..
Chicago,Detroit,honour students beaten and killed with 20 witnesses and nobody will talk,Mexico,corrupt police,corrupt government,testifying is a death sentence,same thing in Rio...and all through south America,same thing in Afghanastan.
So the part about facing accusers....I just don`t know,we can`t protect witnesses or their families, yet as Mr. West alludes to......
What kind of justice is it when one can testify without scrutiny.....
I have no answer just a thought,can we invent a failproof lie detector.
Cheers-Eyes Wide Open
Another thought, CEWO, is:
how come it's OK for Christy Clark's lawyer to have access ... ?
Do you get the feeling that these nasty, niggling questions and issues are only fostered by the continuing delay of this trial?
... and that it's essential to get this BVB Show on the road soon. In January 2010, like the lady said.
.
how come it's OK for Christy Clark's lawyer to have access ... ?
Do you get the feeling that these nasty, niggling questions and issues are only fostered by the continuing delay of this trial?
... and that it's essential to get this BVB Show on the road soon. In January 2010, like the lady said.
.
Grant:
I didn't realize we were dealing with a Mexican drug cartel in the Basi et. al. trial OR are we?
I don't think anyone is suggesting that "confidential" informants identity be broadcast on Glow Ball (as if they would, if it was not nice to Lord Gord)- however, the fact is that the defense lawyers are members of the bar, members of the "club" and are bound to honour their oaths as much as the judge or our guy (choke) Mr. Berardino!
The most re-assuring idea this morning is that the SCC only ruled that this shielding, even from officers of the court, is okay at this pre-trial stage. I can handle that, but this evidence has to be subject to a bit more if it is to be used at trial. Otherwise we have just gone back about a half century in jurispudence.
After all, this is merely a case of minor functionaries, totally on their own, taking some small bribes, isn't it? - not the stuff of gangland killings!
I didn't realize we were dealing with a Mexican drug cartel in the Basi et. al. trial OR are we?
I don't think anyone is suggesting that "confidential" informants identity be broadcast on Glow Ball (as if they would, if it was not nice to Lord Gord)- however, the fact is that the defense lawyers are members of the bar, members of the "club" and are bound to honour their oaths as much as the judge or our guy (choke) Mr. Berardino!
The most re-assuring idea this morning is that the SCC only ruled that this shielding, even from officers of the court, is okay at this pre-trial stage. I can handle that, but this evidence has to be subject to a bit more if it is to be used at trial. Otherwise we have just gone back about a half century in jurispudence.
After all, this is merely a case of minor functionaries, totally on their own, taking some small bribes, isn't it? - not the stuff of gangland killings!
Wasn`t the initial headline about the legislature raid...
This raid has to do with "Organized crime"
Basi...Drug house on the island, trafficking,who`s moving the drugs,there is more of a connection to organized crime in west Vancouver mansions than in some Surrey crack house.
The big importers,the port,the border...Patrick Kinsella...Gambling,loansharking..Money laundering, such as.....
A 9.999.00 $ weekly limit.
Oh yes indeed,Grant G must be crazier than a shithouse rat to think that there is organized crime in BC!
Cheers
This raid has to do with "Organized crime"
Basi...Drug house on the island, trafficking,who`s moving the drugs,there is more of a connection to organized crime in west Vancouver mansions than in some Surrey crack house.
The big importers,the port,the border...Patrick Kinsella...Gambling,loansharking..Money laundering, such as.....
A 9.999.00 $ weekly limit.
Oh yes indeed,Grant G must be crazier than a shithouse rat to think that there is organized crime in BC!
Cheers
# posted by : November 19, 2009 at 11:22 a.m.
: November 19, 2009 at 11:22 a.m.
Last point...Who ordered the smear job on ex-police Chief Battershell ...
How dare a police chief authorize a raid on da mob bosses house...
"Don`t he know da rules"
"Say hello to my little friend"
Cheers
How dare a police chief authorize a raid on da mob bosses house...
"Don`t he know da rules"
"Say hello to my little friend"
Cheers
Grant G,
I don't know about the headline, but certainly there was a Press Conference on Dec. 29, 2003 in which RCMP Staff Sgt John Ward tried to explain the historic precedent set by the police raid on the BC Legislature. Ward referred to Organized Crime having entered "all levels of society" since "2001".
And certainly, the guy they were tracking -- Jasmohan Singh Bains -- was thought to be Mr Big in Organized Crime on the West Coast.
So tell me why NO mainstream newspaper reported the Bains trial? It took place a few blocks from the Times Colonist building in Victoria. Nothing was written up until I broke the story in Dec. 2008. And then, one story (Ian Mulgrew, Feb 17, 2009, Vancouver Sun), nothing else.
Bains was sentenced to 9 years and a big fine. So, yes, I think you could safely say that Organized Crime had some sort of toehold under the roof of the BC Legislature ...
and you'd think every person working there would want a complete investigation ...
You'd be forgiven for wondering why the government, the police, even the opposition haven't scrambled to bring these issues into court fast.
But on the other hand ...
What the heck does "Say hello to my little friend" mean? This is code for ... what??
.
I don't know about the headline, but certainly there was a Press Conference on Dec. 29, 2003 in which RCMP Staff Sgt John Ward tried to explain the historic precedent set by the police raid on the BC Legislature. Ward referred to Organized Crime having entered "all levels of society" since "2001".
And certainly, the guy they were tracking -- Jasmohan Singh Bains -- was thought to be Mr Big in Organized Crime on the West Coast.
So tell me why NO mainstream newspaper reported the Bains trial? It took place a few blocks from the Times Colonist building in Victoria. Nothing was written up until I broke the story in Dec. 2008. And then, one story (Ian Mulgrew, Feb 17, 2009, Vancouver Sun), nothing else.
Bains was sentenced to 9 years and a big fine. So, yes, I think you could safely say that Organized Crime had some sort of toehold under the roof of the BC Legislature ...
and you'd think every person working there would want a complete investigation ...
You'd be forgiven for wondering why the government, the police, even the opposition haven't scrambled to bring these issues into court fast.
But on the other hand ...
What the heck does "Say hello to my little friend" mean? This is code for ... what??
.
Don`t you remember the "godfather"
Little friend refers to a machine gun/.....
Sorry,I don`t know how to add an accent to that phrase online.
And Patrick Kinsella is/was the lobbyist for Plutonic power...The lobbyist for pay day loans....The lobbyist for casino expansion...the lobbyist for the private liquor stores..
The lobbyist for bingo halls wanting slots...The lobbyist for the race track at the PNE..and the latest,he is lobbying for changes in slot machine oversight at the track,,,,,And for someone who is/was Gordon Campbell`s friend and campaign manager...Collercting paychecks from BC Rail and cn(ALLEDGEDLY)
So do you want to talk about organized crime or fairy tales.
"Gordon Campbell sat on a wall,Gordon Campbell had a great fall,all the king`s horses and all the king`s men couldn`t put Gordon Campbell back together again"
Cheers-Eyes Wide Open
Little friend refers to a machine gun/.....
Sorry,I don`t know how to add an accent to that phrase online.
And Patrick Kinsella is/was the lobbyist for Plutonic power...The lobbyist for pay day loans....The lobbyist for casino expansion...the lobbyist for the private liquor stores..
The lobbyist for bingo halls wanting slots...The lobbyist for the race track at the PNE..and the latest,he is lobbying for changes in slot machine oversight at the track,,,,,And for someone who is/was Gordon Campbell`s friend and campaign manager...Collercting paychecks from BC Rail and cn(ALLEDGEDLY)
So do you want to talk about organized crime or fairy tales.
"Gordon Campbell sat on a wall,Gordon Campbell had a great fall,all the king`s horses and all the king`s men couldn`t put Gordon Campbell back together again"
Cheers-Eyes Wide Open
GG,
Nope, I don't remember The Godfather; never saw it, never plan to see it.
So why the snark? I met you on the tpic of Organized Crime ... and haven't engaged in any fairy tales,
the topic for today being: Secret Witness is allowed in the Basi Virk trial.
Nope, I don't remember The Godfather; never saw it, never plan to see it.
So why the snark? I met you on the tpic of Organized Crime ... and haven't engaged in any fairy tales,
the topic for today being: Secret Witness is allowed in the Basi Virk trial.
No snark intended Mary.
And I always try to add a little humour,it`s the only thing that keeps me sane.
Keep on keeping on BC Mary.
We all owe you a debt of gratitude.
Cheers
And I always try to add a little humour,it`s the only thing that keeps me sane.
Keep on keeping on BC Mary.
We all owe you a debt of gratitude.
Cheers
# posted by : November 19, 2009 at 12:47 p.m.
: November 19, 2009 at 12:47 p.m.
GG,
OK Sweetie (I mean that),
so planting one foot in front of the other,
we soldier on.
I'm not sure if this is humour or not ... I've been seriously been wondering if Gordo is sane. It's that stuff with Kemano and BCUC that's finally made me wonder right out loud ... especially when I keep hearing "This is madness ...!" Well ... is it?
He keeps doing these awful things ... and he keeps hurting people ... and he never learns.
Well ... no, I guess it's not funny. OK, here's one: recently I went downstairs to breakfast and my son-in-law said, "Good morning, how are you feeling today?"
Me: "Just great!"
Drumroll, please ... as small but brilliant grandson piped up with: "Does this mean that Gordon Campbell is in jail?"
.
OK Sweetie (I mean that),
so planting one foot in front of the other,
we soldier on.
I'm not sure if this is humour or not ... I've been seriously been wondering if Gordo is sane. It's that stuff with Kemano and BCUC that's finally made me wonder right out loud ... especially when I keep hearing "This is madness ...!" Well ... is it?
He keeps doing these awful things ... and he keeps hurting people ... and he never learns.
Well ... no, I guess it's not funny. OK, here's one: recently I went downstairs to breakfast and my son-in-law said, "Good morning, how are you feeling today?"
Me: "Just great!"
Drumroll, please ... as small but brilliant grandson piped up with: "Does this mean that Gordon Campbell is in jail?"
.
BC Mary said...to
Henri Paul
OK Sweetie (I mean that),
Aww shucks BC Merry your making me blush....
And I think your a sweetie also.
HP
Henri Paul
OK Sweetie (I mean that),
Aww shucks BC Merry your making me blush....
And I think your a sweetie also.
HP
# posted by : November 19, 2009 at 1:50 p.m.
: November 19, 2009 at 1:50 p.m.
Are there any precedents in the United Kingdom of a political corruption case having a secret witness? Australia/New Zealand? Can anyone think of a comparable case in the United States?
In the British case, it's worth observing that political corruption cases don't generally reach court because the politicians implicated tend to resign or are pressured to resign before the matter can reach the courts. One main reason - to save the public money, as well as to keep facts hidden of course....
In the British case, it's worth observing that political corruption cases don't generally reach court because the politicians implicated tend to resign or are pressured to resign before the matter can reach the courts. One main reason - to save the public money, as well as to keep facts hidden of course....
Mary said, "He keeps doing these awful things ... and he keeps hurting people ... and he never learns. "
The enormity of the mean-spirited incompetence, corruption and narcissism has grown so great that I find that it doesn't matter what legislation is made or orders given: as with all infestations/infections, invariably something foul emerges. The cancer that is the BC Liberal Party has metastasized and infected every region, every system within the body of the province.
"There's [so much] rotten in the state of Denmark!"
You know, Mary, the only pity I maintain for our premier is that he seems to suffer no shame. In him, I see no empathy for others; what a lonely life he must have!
The enormity of the mean-spirited incompetence, corruption and narcissism has grown so great that I find that it doesn't matter what legislation is made or orders given: as with all infestations/infections, invariably something foul emerges. The cancer that is the BC Liberal Party has metastasized and infected every region, every system within the body of the province.
"There's [so much] rotten in the state of Denmark!"
You know, Mary, the only pity I maintain for our premier is that he seems to suffer no shame. In him, I see no empathy for others; what a lonely life he must have!
# posted by : November 19, 2009 at 7:54 p.m.
: November 19, 2009 at 7:54 p.m.
SIG - he's not in the least lonely! Every liberal that says, or does nothing about the issues they KNOW to be wrong, are keeping him company. That's what stuns me...all those people, of one like mind. None have a soul, none have a thought of their own. Are they too afraid to stand up? Are they really as devoid of empathy, as he has shown himself to be? Short answer: Yes.
# posted by : November 19, 2009 at 9:39 p.m.
: November 19, 2009 at 9:39 p.m.
They are lonely together, Leah. If any one of them has the least bit of empathy, I shudder to imagine what that life of quiet desperation must be. I would think that that person goes to bed dreaming of the day that he or she just spills the beans to end the nightmare of a screaming conscience. I wonder, would the RCMP be able to provide protective custody? I imagine that fears of truths finally being acted upon by an enraged populace and a few good RCMP officers acting on the public's behalf would birth sleep-stealing monsters within colluders with a conscience.
# posted by : November 19, 2009 at 10:26 p.m.
: November 19, 2009 at 10:26 p.m.
From Bill's blog:
Anonymous said...
Usually secret witnesses are given privacy because their lives are in danger. Why would anyone's life be in danger for this? Have the police someone who is inside the biker gangs and dont' want to rat him out yet?
We've all assumed that the informant is someone from within the BC Liberal political machine, but the anonymous writer above has hit the nail on the head.... and it all goes back to the RCMP announcement as to who was involved and the requirement to raid the legislature.
There is a professional, criminal element involvement in this trial and if its left to the judge and Crown to take down the testimony of what he/she saw Basi/Virk/Basi doing within the halls of the legislature..... just how is the public being served.... just how much money is this criminal element being paid, AND protect his identify from the BIKERS.
Anonymous said...
Usually secret witnesses are given privacy because their lives are in danger. Why would anyone's life be in danger for this? Have the police someone who is inside the biker gangs and dont' want to rat him out yet?
We've all assumed that the informant is someone from within the BC Liberal political machine, but the anonymous writer above has hit the nail on the head.... and it all goes back to the RCMP announcement as to who was involved and the requirement to raid the legislature.
There is a professional, criminal element involvement in this trial and if its left to the judge and Crown to take down the testimony of what he/she saw Basi/Virk/Basi doing within the halls of the legislature..... just how is the public being served.... just how much money is this criminal element being paid, AND protect his identify from the BIKERS.
# posted by : November 20, 2009 at 7:08 a.m.
: November 20, 2009 at 7:08 a.m.
I think part of the confusion about "organized crime" that appears above is due to the fact that most people think of the Godfather, the Mafia, the Triads or the Bikers when they think of organized crime.
When I think of organized crime I think of the Liberal Party of British Columbia and their capo Gordo! Indeed one could write a parody of the Godfather with Gordo (the loon) played by Marlon Brando, the consigliere would be Colon "sneer" Hansen, the enforcer thug played by Richy Coleman and the wild hare-brained young out of control psycho performed in an acadamy award manner by Kevin "bird brain" Falcon!
When I think of organized crime I think of the Liberal Party of British Columbia and their capo Gordo! Indeed one could write a parody of the Godfather with Gordo (the loon) played by Marlon Brando, the consigliere would be Colon "sneer" Hansen, the enforcer thug played by Richy Coleman and the wild hare-brained young out of control psycho performed in an acadamy award manner by Kevin "bird brain" Falcon!
BTW, as to any threat to the safty of the "secret witness," I'm not a bible thumper but I do recall hearing about the wages of sin being death!
You know, Mary, the only pity I maintain for our premier is that he seems to suffer no shame. In him, I see no empathy for others; what a lonely life he must have!
Says SIG
But no. He is extremely happy frolicking in his ill gotten gains. After all, he also has us, the taxpayer, paying for the holder of his special box.
Says SIG
But no. He is extremely happy frolicking in his ill gotten gains. After all, he also has us, the taxpayer, paying for the holder of his special box.
# posted by : November 20, 2009 at 8:30 a.m.
: November 20, 2009 at 8:30 a.m.
The Campbell is a treacher, whether insane or venal, should come as no surprise if you think back to his mayoralty and his years of service to the realty and development sectors (both in office and out). This was all well-known when he took a run at the orchestrated contest over the Liberal leadership, but the p.r. was that he wasn't going to be in the developers' back pocket (like he was when he was mayor, was the implication).
Remember how we were sold a bill of goods that Bill Vander Zalm wasn't anything like his old, erratic earlier political career. He was going to be different as Premier, he promised as did his buzz....and oh boy, was he ever different, "but".....
Campbell got into power, also promising to be different than when he had been a development promoter/consultant and erstwhile mayor and civil servant/consultant.....it's no surprise, really, that he obeys the same ethic/agenda now that he has absolute power within BC. Absolute power = extreme excess in all ways.....
And yes he has been diferent; much worse, much much much worse.....
Remember how we were sold a bill of goods that Bill Vander Zalm wasn't anything like his old, erratic earlier political career. He was going to be different as Premier, he promised as did his buzz....and oh boy, was he ever different, "but".....
Campbell got into power, also promising to be different than when he had been a development promoter/consultant and erstwhile mayor and civil servant/consultant.....it's no surprise, really, that he obeys the same ethic/agenda now that he has absolute power within BC. Absolute power = extreme excess in all ways.....
And yes he has been diferent; much worse, much much much worse.....
Leah, ....
I put the BLAME on the shoulders of the NDP.
They have hardly raised this issue at all (or any issues, for that matter) never mind called into reason WHY anyone would be paid 500K to manage 40K of rail bed.
The NDP are to blame for all of this. Dont blame the fox.
I put the BLAME on the shoulders of the NDP.
They have hardly raised this issue at all (or any issues, for that matter) never mind called into reason WHY anyone would be paid 500K to manage 40K of rail bed.
The NDP are to blame for all of this. Dont blame the fox.
# posted by : November 20, 2009 at 5:56 p.m.
: November 20, 2009 at 5:56 p.m.
.
Whoa ... Anon 5:56 the NDP Opposition may be lazy, negligent, do-nothings who haven't opposed strongly enough ...
but please don't abuse your own good sense by trying to shift blame from where it belongs, which is
squarely upon Gordo who devised and developed the ways and means of devastating BC ... its resources, its assets, its people.
Are you serious?
.
Whoa ... Anon 5:56 the NDP Opposition may be lazy, negligent, do-nothings who haven't opposed strongly enough ...
but please don't abuse your own good sense by trying to shift blame from where it belongs, which is
squarely upon Gordo who devised and developed the ways and means of devastating BC ... its resources, its assets, its people.
Are you serious?
.
Surely Anon 5:56 jests, Mary. Either that or he is trying out for a career with Canwest or the BC Liberal party.
# posted by : November 20, 2009 at 7:11 p.m.
: November 20, 2009 at 7:11 p.m.
Anon 5:56...that the NDP has been a non-performing opposition is apparent, but to blame them for the current debacle that IS British Columbia is patently ridiculous!
I blame Gordon Campbell and every sycophant that props him and his despotic behaviour, the NDP can only oppose, they cannot make or enact law. They don't control the budget or finances..or anything else that is currently devastating BC. The Liberals do. Own that, be honest about who's doing what - your statement strikes me as disingenuous at best.
That there is still one person in the general public who can defend him amazes me - his actions (or lack of) are apparent to everyone, the rampant corruption completely visible. Those who can defend him, in my opinion, are as narcissistic and dysfunctional as he is.
Sorry, you're going to have to find another pot to stir, another chain to yank - this kid knows better. Tell PAB we say hi, not buying. Thanks.
I blame Gordon Campbell and every sycophant that props him and his despotic behaviour, the NDP can only oppose, they cannot make or enact law. They don't control the budget or finances..or anything else that is currently devastating BC. The Liberals do. Own that, be honest about who's doing what - your statement strikes me as disingenuous at best.
That there is still one person in the general public who can defend him amazes me - his actions (or lack of) are apparent to everyone, the rampant corruption completely visible. Those who can defend him, in my opinion, are as narcissistic and dysfunctional as he is.
Sorry, you're going to have to find another pot to stir, another chain to yank - this kid knows better. Tell PAB we say hi, not buying. Thanks.
# posted by : November 20, 2009 at 10:09 p.m.
: November 20, 2009 at 10:09 p.m.
Not that I would ever use the Flag button on BC Mary's blog but its interesting the means by which Blogger implements the Flag.
They track how many times a blog has been flagged as objectionable, and I can well imagine there's quite a few BC Liberal MLAs and PBAs who would be doing that just to rid the thorn in their sides that this blog has created in relation to the raid on the BC Legislature, but, and here's the interesting part.... Blogger uses something called "Wisdom of Crowds".
Looking sideways at this blog, the crowd that have their own opinions on why the trial must go on, who must be guilty, who are politically motivated to make sure that the trial never takes place, it all comes down to the weight of an ox...we'll call him "El Gordo".
"The Wisdom of Crowds: Why the Many Are Smarter Than the Few and How Collective Wisdom Shapes Business, Economies, Societies and Nations, published in 2004, ISBN 978-0385503860, is a book written by James Surowiecki about the aggregation of information in groups, resulting in decisions that, he argues, are often better than could have been made by any single member of the group. The book presents numerous case studies and anecdotes to illustrate its argument, and touches on several fields, primarily economics and psychology.
The opening anecdote relates Francis Galton's surprise that the crowd at a county fair accurately guessed the weight of an ox (El Gordo) when their individual guesses were averaged (the average was closer to the ox's true butchered weight than the estimates of most crowd members, and also closer than any of the separate estimates made by cattle experts).
The book relates to diverse collections of independently-deciding individuals, rather than crowd psychology as traditionally understood. Its central thesis, that a diverse collection of independently-deciding individuals is likely to make certain types of decisions and predictions better than individuals or even experts, draws many parallels with statistical sampling, but there is little overt discussion of statistics in the book."
Hmmmmmm.
You're the administrator here BC Mary, you must have a pretty long tally of what your readers, citizen columnists, contributors have to say.
What's the average opinion of your readers BC Mary?
Should El Gordo be prepared to be butchered...., or the defendants?
They track how many times a blog has been flagged as objectionable, and I can well imagine there's quite a few BC Liberal MLAs and PBAs who would be doing that just to rid the thorn in their sides that this blog has created in relation to the raid on the BC Legislature, but, and here's the interesting part.... Blogger uses something called "Wisdom of Crowds".
Looking sideways at this blog, the crowd that have their own opinions on why the trial must go on, who must be guilty, who are politically motivated to make sure that the trial never takes place, it all comes down to the weight of an ox...we'll call him "El Gordo".
"The Wisdom of Crowds: Why the Many Are Smarter Than the Few and How Collective Wisdom Shapes Business, Economies, Societies and Nations, published in 2004, ISBN 978-0385503860, is a book written by James Surowiecki about the aggregation of information in groups, resulting in decisions that, he argues, are often better than could have been made by any single member of the group. The book presents numerous case studies and anecdotes to illustrate its argument, and touches on several fields, primarily economics and psychology.
The opening anecdote relates Francis Galton's surprise that the crowd at a county fair accurately guessed the weight of an ox (El Gordo) when their individual guesses were averaged (the average was closer to the ox's true butchered weight than the estimates of most crowd members, and also closer than any of the separate estimates made by cattle experts).
The book relates to diverse collections of independently-deciding individuals, rather than crowd psychology as traditionally understood. Its central thesis, that a diverse collection of independently-deciding individuals is likely to make certain types of decisions and predictions better than individuals or even experts, draws many parallels with statistical sampling, but there is little overt discussion of statistics in the book."
Hmmmmmm.
You're the administrator here BC Mary, you must have a pretty long tally of what your readers, citizen columnists, contributors have to say.
What's the average opinion of your readers BC Mary?
Should El Gordo be prepared to be butchered...., or the defendants?
Concerned citizen asked of Mary:
"Should El Gordo be prepared to be butchered...., or the defendants?"
I beg that his question uses faulty logic in that it presupposes that there should be an either/or answer. Having been reading the Legislature Raids pretty faithfully for years now, I would assert that the majority of readers would wish all of the truth to be exposed and let the chips and the prosecution fall from there. In my experience, Gordon Campbell has not acted as though he is innocent in all of this. I believe that Mr. Campbell would sacrifice any and all beneath him if he was without sin. His narcissistic behaviours show me that he most likely believes all but himself are expendable if it means he maintains power, as nobody is as important as he - except maybe the kindred power-hungry, misguided objectivists: Klein, Harper, Friedman, Bush and Swartzenager.
"Should El Gordo be prepared to be butchered...., or the defendants?"
I beg that his question uses faulty logic in that it presupposes that there should be an either/or answer. Having been reading the Legislature Raids pretty faithfully for years now, I would assert that the majority of readers would wish all of the truth to be exposed and let the chips and the prosecution fall from there. In my experience, Gordon Campbell has not acted as though he is innocent in all of this. I believe that Mr. Campbell would sacrifice any and all beneath him if he was without sin. His narcissistic behaviours show me that he most likely believes all but himself are expendable if it means he maintains power, as nobody is as important as he - except maybe the kindred power-hungry, misguided objectivists: Klein, Harper, Friedman, Bush and Swartzenager.
# posted by : November 21, 2009 at 3:34 p.m.
: November 21, 2009 at 3:34 p.m.
So to split hairs here BC Mary, SharingIsGood is shouting out a "Yea" for "El Gordo".
To make this "Wisdom of Crowds" theory work a little easier perhaps you could have your blog technician set up a "voting booth" with the question based on the weight that El Gordo carries at the Executive Council Meetings....LOL.
To make this "Wisdom of Crowds" theory work a little easier perhaps you could have your blog technician set up a "voting booth" with the question based on the weight that El Gordo carries at the Executive Council Meetings....LOL.
I.i.c.,
If you knew how weary I am, and how painful it is for me to continue sitting in front of this computer (now into the 13th hour for today),
you'll readily understand why I'm going to knock off for the rest of today.
Vote? Something like:
Walk the plank: YES or NO
ya think?
.
If you knew how weary I am, and how painful it is for me to continue sitting in front of this computer (now into the 13th hour for today),
you'll readily understand why I'm going to knock off for the rest of today.
Vote? Something like:
Walk the plank: YES or NO
ya think?
.
IIC,
I thought I was clear: I believe that all guilty parties should be prosecuted. It is not an either or or thing. The "we were just following orders" defense may help someone gain a lighter sentence than the master-minds, but it is time all of the guilty were brought to justice. A thug is a thug - be they corporate or otherwise.
I thought I was clear: I believe that all guilty parties should be prosecuted. It is not an either or or thing. The "we were just following orders" defense may help someone gain a lighter sentence than the master-minds, but it is time all of the guilty were brought to justice. A thug is a thug - be they corporate or otherwise.
# posted by : November 21, 2009 at 7:07 p.m.
: November 21, 2009 at 7:07 p.m.
I.i.c.,
Just a reminder that this blog is very tightly focused on the topic of
BC Rail
and the trial of Basi, Virk, Basi.
.
Just a reminder that this blog is very tightly focused on the topic of
BC Rail
and the trial of Basi, Virk, Basi.
.
I get the impression that I.I.C. is trying to stir the pot, in favor of GC.
# posted by : November 22, 2009 at 7:58 a.m.
: November 22, 2009 at 7:58 a.m.
In the Vancouver Province this morning, Michael Smyth's column, he mentions Barry Penner whereby someone from overseas... that's where the server is coming from... has taken a particular interest in the Environment Minister via a blog.
Now what's stopping anyone from taking the same stance in regards to Mr. Campbell, a fellow politician of Mr. Penner's to highligh what he has said and done in regards to BC Rail.
"Victoria insiders love this new website
online smackdown: There's more than one way to attack political enemies
By Michael Smyth, The Province November 22, 2009
Savagely slime 'em or lovingly lather 'em: When it comes to attacking your political enemies, there's more than one way to put the smack down. SNIP
The site is hosted on anonymous out-of-country server. I suspect it's getting a record number of hits from government computers.
"We don't know who's behind it," Penner said yesterday. "I thought maybe it was my mom, but she denies it."
Whether their ammunition is slander or sarcasm, the Liberals' enemies are having an impact: The NDP has opened a cavernous 14-point lead in a new poll. For Carole James and company, that's even more AWESOME than Barry Penner."
http://www.theprovince.com/news/Victoria+insiders+love+this+website/2252811/story.html
Now what's stopping anyone from taking the same stance in regards to Mr. Campbell, a fellow politician of Mr. Penner's to highligh what he has said and done in regards to BC Rail.
"Victoria insiders love this new website
online smackdown: There's more than one way to attack political enemies
By Michael Smyth, The Province November 22, 2009
Savagely slime 'em or lovingly lather 'em: When it comes to attacking your political enemies, there's more than one way to put the smack down. SNIP
The site is hosted on anonymous out-of-country server. I suspect it's getting a record number of hits from government computers.
"We don't know who's behind it," Penner said yesterday. "I thought maybe it was my mom, but she denies it."
Whether their ammunition is slander or sarcasm, the Liberals' enemies are having an impact: The NDP has opened a cavernous 14-point lead in a new poll. For Carole James and company, that's even more AWESOME than Barry Penner."
http://www.theprovince.com/news/Victoria+insiders+love+this+website/2252811/story.html
# posted by : November 22, 2009 at 8:02 a.m.
: November 22, 2009 at 8:02 a.m.
Anon 8:02,
Bravo! Bravo! to you, and Bravo! to the out-of-country web-site owner for this clever new addition to journalism.
I emphasize (above) that the web-site could be closer to home than "overseas" -- my guess would be a U.S. base ... and by the choices and comments mentioned here (I haven't looked it up yet), I'd guess it's a Canadian who has taken this path to get where he/she needs to go.
Why Barry Penner, I wonder.
U-no-Hoo would be my first choice ... and holy catfish ... think of the ACRES of photos U-no-Hoo has on file! Then, picture it ... a pastoral scene captioned "Lara Dauphinee" ...
this could put some za za zhu into the daily drudgery of reporting what ISN'T happening in the BC Rail Case on any given day. Month. Year.
.
Bravo! Bravo! to you, and Bravo! to the out-of-country web-site owner for this clever new addition to journalism.
I emphasize (above) that the web-site could be closer to home than "overseas" -- my guess would be a U.S. base ... and by the choices and comments mentioned here (I haven't looked it up yet), I'd guess it's a Canadian who has taken this path to get where he/she needs to go.
Why Barry Penner, I wonder.
U-no-Hoo would be my first choice ... and holy catfish ... think of the ACRES of photos U-no-Hoo has on file! Then, picture it ... a pastoral scene captioned "Lara Dauphinee" ...
this could put some za za zhu into the daily drudgery of reporting what ISN'T happening in the BC Rail Case on any given day. Month. Year.
.
Interesting, don't you think, that Penner would actually acknowledge that "We don't know who's behind it."
"We don't know who's behind it," Penner said yesterday. "I thought maybe it was my mom, but she denies it."
Has the BC Liberal government spent hours trying to solve the Who-Dunit of the century on who, as Mr. Smyth calls it, the slime or lathering of Mr. Penner.
Just how much time and money would, or has the BC Liberals spent, trying to figure out who are writing to this blog of BC Mary's or Mr. T's. Over at the Pacific Gazetteer he actually keeps track of how many times his web site has had visits from government of bc computers.
If the government has taken the extraordinary steps of slapping down Liquor Control officers and Sheriffs for misuse of computers via emails by imposing suspensions, fines and firings, why haven't these same officials taken care of those who visit sites that have absolutely nothing to do with the running of business of government.... or is that the difference. What BC Mary has going here, the tragedy of the sale of a Crown Corporation when the BC Liberals promised not to, has everything to do with the government business. Has every visit by a government computer been sanctioned by El Gordo himself because the comments here strike at the credibility of his government.
I wonder how Mrs. Penner, Barry's mother feels about his lack of confidence by suggesting to the press that he honestly believed that it was she who has been sliming and lathering her own son?
"I thought maybe it was my mom, but she denies it."
Someone gets slimed and the first person the slimer thinks of is his mother, joking or otherwise, why have that kind of comment put in print to be spread around the world on the WWW?
There's a public apology owed here by Minister Penner to Mrs. Penner.
"We don't know who's behind it," Penner said yesterday. "I thought maybe it was my mom, but she denies it."
Has the BC Liberal government spent hours trying to solve the Who-Dunit of the century on who, as Mr. Smyth calls it, the slime or lathering of Mr. Penner.
Just how much time and money would, or has the BC Liberals spent, trying to figure out who are writing to this blog of BC Mary's or Mr. T's. Over at the Pacific Gazetteer he actually keeps track of how many times his web site has had visits from government of bc computers.
If the government has taken the extraordinary steps of slapping down Liquor Control officers and Sheriffs for misuse of computers via emails by imposing suspensions, fines and firings, why haven't these same officials taken care of those who visit sites that have absolutely nothing to do with the running of business of government.... or is that the difference. What BC Mary has going here, the tragedy of the sale of a Crown Corporation when the BC Liberals promised not to, has everything to do with the government business. Has every visit by a government computer been sanctioned by El Gordo himself because the comments here strike at the credibility of his government.
I wonder how Mrs. Penner, Barry's mother feels about his lack of confidence by suggesting to the press that he honestly believed that it was she who has been sliming and lathering her own son?
"I thought maybe it was my mom, but she denies it."
Someone gets slimed and the first person the slimer thinks of is his mother, joking or otherwise, why have that kind of comment put in print to be spread around the world on the WWW?
There's a public apology owed here by Minister Penner to Mrs. Penner.
I.i.C.,
Prove me wrong and I'll prepare to apologize ... but:
I can't help thinking that you've just laid a trap
... a trap worthy of the Public Affairs Bureau as they go about their (apparently) lawful business.
But if you think for one moment that I'm going to divulge the stats. on this site -- which, in my view, would be a breach of the commentors' confidentiality -- no, it ain't gonna work ... so you must return to your drawing board and work out another, different plan.
I'll tell you this much: when I first learned how to read the stats., it totally freaked me out; like, for about 10 minutes. Then I realized that I have a closer connection to some of the people I'd like to talk to, than I had ever imagined, and from that point on I wrote differently. It helped me to know. But I don't see where it's anything beyond that. Would you pay more attention to The Legislature Raids if you knew that Elizabeth II reads it every day? No, I didn't think so.
Why don't you turn your good brain to work on something helpful to the BC Rail Case, like those missing e.mails -- where are they now? ... how many are still pending? ...
and did you know btw that in the trial agreement between 46 U.S. State attorneys-general and the major tobacco companies: there was a condition by which the tobacco companies were obliged to post "on dedicated web sites, all of the documents used in the discvery phase of legal actions brought by the states against the tobacco industry for Medicaid costs associated with smoking-related diseases? More than 40 million pages of documents were made public ..." 40 million pages of documents! [Not a Conspiracy Theory by Donald Gutstein, p.165-166]
Think about that. We're still pleading to see the BC Rail documents; but that big tobacco case [Bill Berardino played a part in that too] not only got their evidence but put it online where everybody could see it.
.
Prove me wrong and I'll prepare to apologize ... but:
I can't help thinking that you've just laid a trap
... a trap worthy of the Public Affairs Bureau as they go about their (apparently) lawful business.
But if you think for one moment that I'm going to divulge the stats. on this site -- which, in my view, would be a breach of the commentors' confidentiality -- no, it ain't gonna work ... so you must return to your drawing board and work out another, different plan.
I'll tell you this much: when I first learned how to read the stats., it totally freaked me out; like, for about 10 minutes. Then I realized that I have a closer connection to some of the people I'd like to talk to, than I had ever imagined, and from that point on I wrote differently. It helped me to know. But I don't see where it's anything beyond that. Would you pay more attention to The Legislature Raids if you knew that Elizabeth II reads it every day? No, I didn't think so.
Why don't you turn your good brain to work on something helpful to the BC Rail Case, like those missing e.mails -- where are they now? ... how many are still pending? ...
and did you know btw that in the trial agreement between 46 U.S. State attorneys-general and the major tobacco companies: there was a condition by which the tobacco companies were obliged to post "on dedicated web sites, all of the documents used in the discvery phase of legal actions brought by the states against the tobacco industry for Medicaid costs associated with smoking-related diseases? More than 40 million pages of documents were made public ..." 40 million pages of documents! [Not a Conspiracy Theory by Donald Gutstein, p.165-166]
Think about that. We're still pleading to see the BC Rail documents; but that big tobacco case [Bill Berardino played a part in that too] not only got their evidence but put it online where everybody could see it.
.
http://www.scc-csc.gc.ca/faq/faq/index-eng.asp#f7
7. Are Supreme Court proceedings televised or webcast and how can I obtain a copy of a hearing transcript and/or video?
Basi Virk Basi hasn't shown up on the schedule, yet. They are looking for a sponsor. LOL
7. Are Supreme Court proceedings televised or webcast and how can I obtain a copy of a hearing transcript and/or video?
Basi Virk Basi hasn't shown up on the schedule, yet. They are looking for a sponsor. LOL
# posted by : November 22, 2009 at 11:24 a.m.
: November 22, 2009 at 11:24 a.m.
Mary, your writing about not having courts enough to try criminals, the privatization of power at the Alcan plant and the killing of the town of Kitimat, etc. is a thread well worth reading. I hope your readers take the time to ponder all of the points you made. Such insight!
SIG
SIG
# posted by : November 22, 2009 at 2:38 p.m.
: November 22, 2009 at 2:38 p.m.
[45] To hold otherwise is to place defence counsel in an awkward and professionally undesirable position. The concern is not that defence counsel would intentionally violate their undertakings or the court order; rather, it is that respecting the undertakings and court order would, at best, strain the necessary relationship between defence counsel and their accused clients.
This and subsequent sections make a strange logic about protecting the defence's relationship with their client(s). Why does this same logic not apply to the disclosure of evidence to Christy Clark's lawyer?
I don't think there's any doubt the Gordon Campbell machine know exactly who the secret witness is, also......
This and subsequent sections make a strange logic about protecting the defence's relationship with their client(s). Why does this same logic not apply to the disclosure of evidence to Christy Clark's lawyer?
I don't think there's any doubt the Gordon Campbell machine know exactly who the secret witness is, also......
I wondered the same thing, Skookum1. The difference is that it is not in relation to the secret witness and I don't remember that the defense made application to be there. Whatever the case, Clark's lawyer having access doesn't pass the smell test in my books. At present, Clark is not accused of anything. I have no idea whay her lawyer should have access, if she were but a witness.
# posted by : November 23, 2009 at 7:32 a.m.
: November 23, 2009 at 7:32 a.m.
Our new visitor known as IIC sez:
"If the government has taken the extraordinary steps of slapping down Liquor Control officers and Sheriffs for misuse of computers via emails by imposing suspensions, fines and firings, why haven't these same officials taken care of those who visit sites that have absolutely nothing to do with the running of business of government.... "
These officials take care of those who visit Mary's site, and mine and all other sites they can find that are critical of Lord Gord and the ongoing theft of British Columbia. The largest newsroom in British Columbia, apparently paying better than the actual news media can afford - with our tax dollars, the Public Affairs Bureau was created to monitor the news from all sources for the express purpose of creating the spin to deal with anything unfavorable.
So the many, many visitors from various government agencies and locations that monitor the Gazetteer, Mary, Bill T, Laila, me and more aren't goofing off on company time - THEY ARE DOING WHAT WE ARE PAYING THEM TO DO! Not that that makes it right by any means!
I think Mary should add Google Ads, she'd be able to finance a trip to the Caribbean on PAB hits alone! It would be interesting to see what Google would choose to accompany the Ledge Raids, adds for Shyster Lawyers, Hedge Funds, methods to beat the breathalyzer, evidence destruction kits, private clinics, Accenture Ads and package tours of Maui!
I know in a province with Global/Canwest already acting as a PR firm for the BC liaRs, at no cost, indeed donating to the Party financially as well - the PAB seems a lot like overkill, but as Goebbels taught us all, you can't repeat a lie too much, if what people to believe the lie is truth.
SIG has a good point with:
"At present, Clark is not accused of anything. I have no idea whay her lawyer should have access,"
Doesn't everybody find it interesting how many people, not charged in this case, find it necessary to have lawyers in Supreme Court to monitor the goings on, watching out, one can only assume, for their clients interests. I could be incomplete or wrong in an instance or two, but I seem to recall lawyers representing Kinsella, Dobell, Gary Collins, Lord Gord, the cabinet as a body being present at different times - not that they generally are anxious to state their business being there - and of course they need not do so unless they choose to engage the court on their client's behalf (ie. whether Kinsella's emails are PRIVILEGED or not)!
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"If the government has taken the extraordinary steps of slapping down Liquor Control officers and Sheriffs for misuse of computers via emails by imposing suspensions, fines and firings, why haven't these same officials taken care of those who visit sites that have absolutely nothing to do with the running of business of government.... "
These officials take care of those who visit Mary's site, and mine and all other sites they can find that are critical of Lord Gord and the ongoing theft of British Columbia. The largest newsroom in British Columbia, apparently paying better than the actual news media can afford - with our tax dollars, the Public Affairs Bureau was created to monitor the news from all sources for the express purpose of creating the spin to deal with anything unfavorable.
So the many, many visitors from various government agencies and locations that monitor the Gazetteer, Mary, Bill T, Laila, me and more aren't goofing off on company time - THEY ARE DOING WHAT WE ARE PAYING THEM TO DO! Not that that makes it right by any means!
I think Mary should add Google Ads, she'd be able to finance a trip to the Caribbean on PAB hits alone! It would be interesting to see what Google would choose to accompany the Ledge Raids, adds for Shyster Lawyers, Hedge Funds, methods to beat the breathalyzer, evidence destruction kits, private clinics, Accenture Ads and package tours of Maui!
I know in a province with Global/Canwest already acting as a PR firm for the BC liaRs, at no cost, indeed donating to the Party financially as well - the PAB seems a lot like overkill, but as Goebbels taught us all, you can't repeat a lie too much, if what people to believe the lie is truth.
SIG has a good point with:
"At present, Clark is not accused of anything. I have no idea whay her lawyer should have access,"
Doesn't everybody find it interesting how many people, not charged in this case, find it necessary to have lawyers in Supreme Court to monitor the goings on, watching out, one can only assume, for their clients interests. I could be incomplete or wrong in an instance or two, but I seem to recall lawyers representing Kinsella, Dobell, Gary Collins, Lord Gord, the cabinet as a body being present at different times - not that they generally are anxious to state their business being there - and of course they need not do so unless they choose to engage the court on their client's behalf (ie. whether Kinsella's emails are PRIVILEGED or not)!
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