Tuesday, December 15, 2009
Basi-Virk news for Dec. 15, 2009
Crown acted appropriately with Basi-Virk informer, judge rules
BY IAN MULGREW
CANWEST NEWS SERVICE - DECEMBER 15, 2009
B.C. Supreme Court Justice Anne MacKenzie has ruled the prosecution properly asserted legal privilege to protect the identity of a confidential informant in the B.C. Rail corruption trial.
The justice conducted an in-camera hearing yesterday, sanctioned by the Supreme Court of Canada, at which defence attorneys, the three accused and the public were banned.
After reviewing Crown concerns, MacKenzie said special prosecutor Bill Berardino had acted appropriately.
The previous trial judge, Justice Elizabeth Bennett, who was replaced after being appointed to the B.C. Court of Appeal, initially said the defence could attend the closed-door hearing. But the prosecution balked and appealed all the way to the country's highest court, saying it would consider staying the charges rather than reveal the confidential informant's identity ...
Read Ian Mulgrew's full column HERE.
Our dauntless friend, North Van's Grumps, turns in this report for the BVB hearing of Dec. 15, 2009:
North Van's Grumps writes:
Its settled then, at least that's the way it went today (Dec. 15th, 2009). Madame Justice MacKenzie agrees with Defense Consul that neither the Crown via the Special Prosecutor eg. Ms Andrea Mackay, nor the RCMP were in a position by which they could determine whether the information is relevant or not. And we are talking here about secret informants. That jurisdiction lies solely with the Justtice MacKenzie as stated by Justice Bennett two years ago.
I would like to throw in one other category that shouldn't have had the right to determining what's relevant as evidence .... Ken Dobell as Deputy Minister to the Premier and Cabinet Secretarty.
"Ken Dobell, the former deputy minister to Premier Gordon Campbell, has admitted he reviewed confidential government documents seized by police in the B.C. Legislature raid case without signing an undertaking as required by a protocol created by the Special Prosecutor."
From Bill Tieleman:
"Dobell, speaking to the Globe and Mail's Mark Hume, claimed he was not part of the "political side" of Campbell's office and as cabinet secretary he was part of an "independent, bureaucratic office."
That, Dobell said, meant he had not contradicted Campbell's claim in the Legislature last year that the premier's office was not involved in disclosure of evidence issues.
"There is a special prosecutor involved in this. The Premier's Office does not have a direct input into that ... This Premier's Office is not involved directly with that," Campbell said in 2007.
Dobell now says that his role as cabinet secretary was different.
"The cabinet secretary ... is an independent, bureaucratic office, it's not a political office, and in that sense, nobody in the Premier's office, on the political side, was involved in the issue," Dobell told Hume.
And Dobell says he was never asked by government lawyer George Copley to sign an undertaking as required by the protocol."
December 3, 2007
" Protecting the identity of an informant is paramount. It is not as simple as banning publication of a name or using a pseudonym. For example, and this is a completely invented example, if the informant says that the murder weapon can be found under the water heater, and the informant is not identified by name or description or in any manner, but that person is the only person who knows the location of the weapon except for the suspect, then the disclosure of that information will disclose the identity of the informant. Therefore, I cannot possibly hear the first part of this application in open court. I have no idea what needs to be controlled and what information may reveal the identity of the informant. Further, if something is slipped, as referred to by media counsel, then that is a breach of the privilege and cannot be countenanced."
What happened on December 14, 2009 was a line by line reading of evidence that the Special Prosecutor's Team had highlighted on what they wanted released to the Judge, and she was busily nodding her head in agreement as to the sections... which didn't mean that she was acknowledging an agreement of the information or disagreeing, she was just making a note of it on her laptop comuter. Both the Defense Counsul and the Judge were on the same page.... on that but it was the Crown that was still thinking along the lines that they were calling the shot as though it were still pre-June 4th, 2007 and it was all about Trust and the word FAITH......
Faith that the RCMP had done their job correctly, Faith that Ms. MacKay had done her job correctly, Faith that the Defense Counsuls would accept their highlighted notes without question.
Its as simple as A, B and G.
Yes you read it correctly ABG, not ABC.
The problem for the Defense, and so too for Judges Bennett and MacKenzie was inconsistencies that might show up in the testimoney from secret informers that hadn't verfied. I would go so far as to say Tainted. With verification their testimony might prove faulty because we have to remember here that there is no cross examination
being allowed from the Defense lawyers. ..... its like boxing with a shadow.....
I shouldn't say 'no cross examination' because we saw in the late afternoon of Monday, in Court, a question from the Defense in regards to the Secret Informer(s). We were all booted out from the Court room save for the Judge and Crown Special Prosecutor and team. We were then invited back in and the Defense lawyer rose to raise the general subject matter of Secret Informer status and the reply came..... but can you just imagine what's it going to be like during the Trial!
A street Level receptionist Sheriff sent me off to desk 206 - Court Administration for an answer. "Not all of the court rooms have amplified speakers".... fair enough answer, but as I discovered later in the morning the court room that we are in does have speakers....so why wasn't it being amplified, eh.
During one bout of having us removed this morning for secret talks between the Judge and Crown, I approached a LAWYER, heck the building is full of unemployed-in-between-cases lawyers and the first guy I met was someone called T. Russell who gave me this advice, for free.
I should approach Special Prosecutor Janet Winteringham and ask her to speak more clearly, and louder, to project her voice and the lawyer said .... "just be polite...."
Being a devout coward I suggested to the Admin people that they should perhaps provide headsets just like they have for theatre performances at the Stanley Alliance Theatre on Granville near 11th for their adoring patrons.... to which I heard someone in a nearby line say:
“All the world’s a stage,
And all the men and women merely players:
They have their exits and their entrances;
And one man in his time plays many parts”
~ Shakespeare, from his play "As You Like it."
"First, the applicant must establish, without seeing them, that the records are likely to be relevant to the case. Second, the judge must review the records and decide whether to disclose them based on the balancing the right to make full answer and defence, and the right to privacy." -
On December 15 the Crown introduced the Barislow case with Judge Holmes at the helm which goes a long way to defining, to the satisfaction of the Crown, of why a "Fishing Expedition" should be denied to the Defense.
Robin, do you have more information on Barislow because I spent most of the afternoon yesterday looking for it on the internet.