Sunday, December 06, 2009

 

Basi Virk: When Erik Bornmann testifies, will he have the proper immunity agreement?

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Madam Justice Anne MacKenzie may be making a serious mistake in the run-up to the Basi Virk trial.

A deal has been made with the prosecution's star witness, Erik Bornmann, in which he may receive a pardon if special prosecutor Bill Berardino approves of his testimony after Bornmann finishes testifying.

Bad mistake, in my opinion.

Anything which encourages Erik Bornmann to tell us everything he knows about how BC Rail slid from public ownership into private pockets, is a good thing. Anything that corners him, threatens and frightens him into self-defense mode, is a bad thing. Very bad. And unnecessary.

My guess is that every British Columbian would gladly turn Erik Bornmann out, a free man, to live the rest of his life in peace -- if he will speak the truth which we have waited so long to hear.

I believe that the terms of this man's immunity from prosecution could be -- and should be -- clearly stated before the trial begins, not left to a mini-Kangaroo Court with the special prosecutor presiding.

Defence has argued that (a) by rule, immunity must be unconditional so the witness will be free to tell the truth as he/she sees it and not as Crown sees it. And (b) that is what the Crown prosecutor's manual upholds (c) and to offer any other kind of immunity is abuse of process.

From the Crown Counsel Policy Manual: "Crown Counsel should avoid granting complete immunity from criminal responsibility to an informer or witness unless it is absolutely necessary to obtain the required information or evidence. The granting of a limited form of immunity is generally preferred (an example of limited immunity is where Crown Counsel recommends a less severe sentence than might otherwise be appropriate in return for the cooperation of the informant or witness)."

Erik Bornmann is alleged to have provided bribe-money to the Accused in the BC Rail case. Under the Criminal Code of Canada, both the person who pays a bribe and the person who accepts a bribe are guilty of a criminal offence.

Is it realistic to expect Bornmann will freely admit to any indictable crime and to expand upon the details, if he doesn't have guaranteed immunity from prosecution himself, before the trial begins?

Ham-fisted handling of these details will put an important witness at risk. But if he's willing to tell the truth, the whole truth, to every question the prosecutors ask of him, why not encourage that? why not guarantee his freedom?
B.C. desperately needs to hear the truth of the BC Rail Case. Nothing should stand in the way of achieving that.

That means an immunity must be discussed, agreed, written down, signed, and (whatever it turns out to say) made available to all, before the trial. It would benefit Bornmann, and the public interest.

I cannot see how the crown prosecutor should be given the go-ahead to hold his own mini-Kangaroo Court wherein, in the face of a serious risk to Bornman, no immunity is offered until after he steps down from the witness stand.

Defence lawyers have said that such an arrangement could tempt the witness to give false testimony. At very least, he might hold back information to avoid incriminating himself. This would make a mockery out of the trial; it would add another insult to the citizens who are paying millions for the specific purpose of hearing that information.

But Justice MacKenzie -- very new to this important and complex trial -- has rejected the Defence's motion to hear abuse-of-process application now. "I decline to hear this defence application before trial," said the judge ..."The defence may have leave to bring the application at the appropriate time, which is at the close of the Crown's case, which is after Mr. Bornmann has testified."

MacKenzie said her reasons for judgment would be given at a later date.

I believe that by far the better course of action is for Madam Justice MacKenzie to reverse that ruling in favour of a declared immunity agreement understood, signed, and known to all, before the trial begins.

I would suggest that this should hold true for other Crown witnesses, too.

Let the witnesses speak freely, Justice MacKenzie. Encourage Bornmann and the others to speak. At this late date, anything less would be intolerable for those who love this Province.

- BC Mary.
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Noted in passing: less than 30 minutes after I had posted this editorial, Vancouver Sun Online, also The Province, as well as Victoria Times Colonist (the 3 CanWest daily newspapers) had it. To check it out, type Basi Virk into their Search box. Old listings will appear; but look at the right margin for "Web Results". The Legislature Raids is usually there, but today's listings included my editorial almost before the ink was dry on it. - M.

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Huge thanks to "EM" who found Justice MacKenzie's Ruling on Timing:

IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

R. v. Basi,


2009 BCSC 1685

Date: 20091125

Docket: 23299

Registry: Vancouver

Regina

v.

Udhe Singh (Dave) Basi, Bobby Singh Virk
& Aneal Basi

Before: The Honourable Madam Justice MacKenzie

Ruling on Timing

November 25, 2009

Counsel for the Crown:

W.S. Berardino, Q.C.,

J. Winteringham, Q.C.

& A.N. MacKay

Counsel for the Accused, Dave Basi:

P.M. Bolton, Q.C.

& C. Hatcher

Counsel for the Accused, Bobby Virk:

K. G. McCullough

& T.J. Russell


Counsel for the Accused, Aneal Basi:

J. Doyle

& E. Dance


Place of Hearing:

Vancouver, B.C.



Introduction

[1] The accused are charged with corruption, fraud, and breach of trust in relation to the sale of BC Rail’s freight railway operations.

[2] The accused intend to bring an application pursuant to s. 7 and s. 24 of the Canadian Charter of Rights and Freedoms (the “Charter”) alleging that certain conduct on the part of the RCMP and the special prosecutor (collectively, the “Crown”) constitutes an abuse of process. The subject of the application is the manner in which the Crown entered into an immunity agreement with an important Crown witness, Erik Bornmann. The defence will seek a stay of proceedings or, in the alternative, the exclusion of Mr. Bornmann’s evidence from the trial.

[3] The only issue before me now is the timing of this application. The defence submits that the interests of justice require that it be heard in advance of trial. The Crown, however, contends that it is properly heard at the close of its case.

[4] On November 25, 2009, I ruled, with reasons to follow, that I would not hear the abuse of process application before trial and that the defence had leave to bring it at the close of the Crown’s case. These are those reasons.

Background

[5] It is common ground that the Crown entered into an immunity agreement with Mr. Bornmann whereby the Crown agreed not to prosecute him if he was truthful. The Crown then took an audio-recorded statement from Mr. Bornmann in which he described making cash payments to certain of the accused in exchange for government documents and information.

[6] This immunity agreement is at the heart of the proposed abuse of process application. The accused assert that the Crown offered Mr. Bornmann immunity from prosecution in a manner contrary to law and in violation of the principles of fundamental justice guaranteed by s. 7 of the Charter. They advance two bases for this position.

[7] First, the accused submit the Crown made Mr. Bornmann the offer of immunity prior to ever receiving a statement of the evidence he could provide. This, they say, was contrary to law, practice and the applicable Crown policy, as set out in the Crown Counsel Policy Manual. Under the heading “Immunity from Prosecution – Informants”, the manual states that “[p]olice should know in advance what type of information and evidence the informant can provide prior to a potential informant receiving a grant of immunity.” The defence assert that the Crown instead entered into the impugned arrangement with Mr. Bornmann before it knew the nature and extent of the conduct regarding which it was granting immunity.

[8] The second basis upon which the accused submit that the Crown’s conduct constitutes an abuse of process is that the grant of immunity is not complete, as it is conditional upon Mr. Bornmann giving evidence at trial that is truthful. Mr. Bornmann has thus been placed in a position whereby his grant of immunity is effectively held “in abeyance” until after the Crown assesses his evidence at trial. The accused submit that this is contrary to the authorities, which mandate that an agreement not to prosecute be finalized before the witness testifies so as to remove any inducement for the witness to provide false evidence to suit the Crown’s case.

[9] The accused submit that prior to the immunity agreement, Mr. Bornmann did not freely offer a narrative statement to the Crown. They say that the manner in which he was dealt with by the Crown and the unusual benefits he received, constitute an inducement of such gravity and effect that the entirety of his evidence has been irreparably tainted and rendered inadmissible by virtue of its inherent unreliability. The accused characterize the impugned Crown conduct as a departure from ordinary and reasonable standards of prosecutorial practice such as to shock the conscience of informed members of the public and to amount to an abuse of process.

[10] The accused say that the abuse of process they allege is sufficiently egregious as to warrant a stay of proceedings. In the event the Court finds a stay too severe a remedy in the circumstances, they will seek the exclusion of Mr. Bornmann’s testimony from the evidence at trial pursuant to either ss. 24(1) or (2) of the Charter.

[11] The Crown will take the position on the abuse of process application that the arrangement with Mr. Bornmann was proper and provident, and that his evidence will be tendered in full compliance with the rights of the accused under the Charter.

Positions of the Parties Regarding Timing

Defence

[12] The defence submits that the interests of justice require that the abuse of process application be heard before the commencement of trial.

[13] The abuse of process that the accused allege lies in the manner in which the Crown obtained Mr. Bornmann’s cooperation. Thus, they say that the resultant prejudice is plain and will only be perpetuated should the trial proceed. According to the accused, none of the evidence the Crown intends to call at trial will have any bearing on the Court’s assessment of the seriousness of the impugned conduct or the appropriate remedy. The evidence of Mr. Bornmann, for instance, will not disclose any relevant circumstances in this regard. The accused say that the evidence they will call on the application exists independently of that which will be led at trial, and it is therefore in the interests of judicial economy to hear the application in advance.

[14] The accused further submit that the remedies they intend to seek on the application inform when it should be heard. Should the Court conclude that an abuse of process has occurred and enter a stay of proceeding, the administration of justice and the public will be spared significant expense and time by having that determination made at the earliest opportunity. Alternatively, the exclusion of Mr. Bornmann’s evidence will have a substantial effect on the very nature of the case against the accused and will materially affect the conduct of both the prosecution and the defence at trial. The accused say that it would be impossible for either party, and grossly unfair to them, to embark upon the trial when the admissibility of Mr. Bornmann’s evidence is uncertain.

[15] The accused add that it would be problematic to exclude Mr. Bornmann’s evidence at the end of the Crown’s case. There is a possibility that the trial may be conducted before a jury. Even if it is not, the remedy would likely be inadequate and ineffective, as the Court would be too affected by Mr. Bornmann’s evidence to be able to completely ignore it in analyzing the other evidence. Given the extent to which his evidence permeates that of other witnesses, it would be virtually impossible to extricate it all at the end of the proceedings.

Crown

[16] The Crown responds that neither the existence of a s. 7 Charter breach nor the appropriate remedy for any such breach can be properly determined until the end of the Crown’s case at trial.

[17] The Crown submits that there is no evidentiary record upon which the Court is able to make the ruling sought by the defence in advance of trial. The alleged s. 7 violation is made up of two components: the credibility of Mr. Bornmann and the standards of the community in relation to the securing of evidence. The Crown says the Court cannot assess whether Mr. Bornmann is credible and whether his evidence is irreparably tainted or inherently reliable until after he has testified. Moreover, the Court may ultimately find Mr. Bornmann’s evidence to be reliable on the basis of corroborating evidence tendered by the Crown. The extent to which the Crown corroborates his evidence, and its attendant impact on the assessment of his credibility, simply cannot be assessed until trial.

[18] With respect to the second component, that is, whether the standards of the community have been violated by the manner in which Mr. Bornmann’s evidence was secured, the Crown submits this issue simply does not arise until there has been a finding that his evidence is tainted.

[19] The Crown additionally argues that it is not possible to determine, before trial, whether the accused have suffered any prejudice arising from the allegedly improper immunity agreement. On its face, the agreement compels Mr. Bornmann to tell the truth. Should the Court conclude that he has been truthful, there is no prejudice arising from the agreement and no unfairness to the trial process. The Crown similarly submits the question of remedy also cannot be determined without the proper factual context to be elicited during trial.

[20] An additional reason the Crown posits for hearing the application at the close of its case is that tainted evidence is a matter that goes to weight, as opposed to admissibility. Consequently, Mr. Bornmann must be given the opportunity to testify at trial, and arguments with respect to any tainting of his evidence will go to its weight.

Analysis

[21] Courts have considerable discretion whether to rule on an application or to reserve to a later stage in the proceedings. As Sopinka J. explained in R. v. DeSousa, [1992] 2 S.C.R. 944, at para. 17, this discretion is be exercised having regard to two policy considerations:

a. Criminal proceedings should not be fragmented by interlocutory proceedings which take on a life of their own; and

b. Constitutional issues should not be adjudicated without a factual foundation.

[22] Both of these policies favour disposition of applications at the end of the case. Further, courts should not depart from these policies unless there is a strong reason for doing so. For instance, in some cases the interests of justice may necessitate an immediate decision. Examples of such necessitous circumstances offered by Sopinka J. were cases in which the trial court itself is implicated in a constitutional violation or where substantial on-going constitutional violations require immediate attention. He added that in some cases it will be expedient to decide constitutional questions before proceeding to trial on the evidence; for example, an apparently meritorious Charter challenge of the law under which an accused person is charged which is not dependent on facts to be elicited during the trial. This latter exception is particularly pertinent where the trial is expected to be of considerable duration.

[23] Where the resolution of a Charter application depends on an assessment of the effect of the breach on the trial process, the authorities favour resolution after the evidence on the trial has been heard: R. v. Steadman, 2007 BCSC 1803. Even where the relief sought is a stay of proceedings, the court retains discretion as to when to hear the application: Steadman, citing R. v. La, [1997] 2 S.C.R. 680. As Sopinka J. discussed in La, a decision involving evidence lost by the Crown, the appropriateness of a stay will depend upon the effect of the conduct amounting to an abuse of process or other prejudice on the fairness of the trial. At para. 27, he wrote:

The appropriateness of a stay of proceedings depends upon the effect of the conduct amounting to an abuse of process or other prejudice on the fairness of the trial. This is often best assessed in the context of the trial as it unfolds. Accordingly, the trial judge has a discretion as to whether to rule on the application for a stay immediately or after hearing some or all of the evidence. Unless it is clear that no other course of action will cure the prejudice that is occasioned by the conduct giving rise to the abuse, it will usually be preferable to reserve on the application. This will enable the judge to assess the degree of prejudice and as well to determine whether measures to minimize the prejudice have borne fruit. ...

[24] The accused in the present case say that I must, for the purposes of this application, assume their factual assertions are true and consider how the abuse of process application will play out. However, as they made only oblique references to the evidence they intend to lead on the application, it is not entirely clear to me what factual assertions I am being asked to assume. I further note that the Crown quite strenuously denies the serious allegations of improper conduct. Nevertheless, for the purposes of the present application, I will accept that the defence will tender evidence as described in para. 1 of their reply submissions:

The Applicants will tender evidence that the Crown in this case offered the witness, Erik Bornman, immunity from prosecution in a manner contrary to law and in violation of an accused person’s right to fundamental justice. This occurred when: (1) the Crown made an offer of immunity prior to ever receiving a proffer of the evidence that Mr. Bornman could provide; and (2) in placing the witness Mr. Bornman in the position where his grant of immunity is held in abeyance until after the prosecutor assesses his evidence given at trial.

[25] In arguing that the application should be heard before the trial, the accused contend that Mr. Bornmann’s evidence is irrelevant to the question of whether the foregoing conduct on the part of the Crown amounts to an abuse of process. I do not agree.

[26] In my view, it is not possible to discretely consider the alleged abuse of process without regard to whether the Crown’s conduct has had the effect alleged. As summarized earlier, the thrust of the defence submission is that the manner in which the Crown misused the grant of immunity has irreparably tainted the entirety of Mr. Bornmann’s evidence, thus corrupting the trial process. However, this cannot be known until Mr. Bornmann is examined and, in particular, cross-examined during the Crown’s case at trial. What Mr. Bornmann says under what I anticipate will be rigorous cross-examination is quite relevant in this regard. So, too, is any evidence the Crown may call in support of his testimony. If, at the end of the Crown’s case, I am not satisfied that the impugned Crown conduct had any improper effect on Mr. Bornmann’s evidence, this will necessarily have a bearing on the abuse of process analysis. The converse is also true.

[27] The British Columbia Court of Appeal recently cautioned against making Charter determinations in the absence of a factual record in R. v. Hooites-Meursing, 2008 BCCA 264, 257 B.C.A.C. 76. There, the accused sought a stay of proceedings on the basis of a letter the Crown had sent to a potential Crown rebuttal witness. The trial judge found that the letter had adversely affected the willingness of two defence witnesses to testify, thereby compromising the defence and rendering the trial irreparably unfair. As a consequence, she ordered a stay. The Court of Appeal allowed the Crown’s appeal and set aside the stay. On behalf of the Court, Low J.A. wrote, at para. 21:

In my opinion, the underlying finding of the judge that trial fairness had been irreparably compromised could not, in the circumstances of this case, rise above speculation until the defence evidence was presented at the second trial and anticipated problems became real problems. The proceedings did not progress to that stage. The ruling was premature. I agree with the Crown that the stay of proceedings was entered without the benefit of an evidentiary record. Until there is such a record, the prejudice, if any, to the respondent cannot be known, and it cannot be determined if that prejudice has caused irreparable unfairness to the trial process. The trial judge should have reserved on the defence application until later in the trial, or should have dismissed the application with leave to the defence to renew it at the appropriate time.

[28] In the present case, were I to decide the abuse of process application without assessing the impugned conduct in the context of the evidence as it unfolds at trial, any determination regarding trial fairness would be similarly premature and speculative.

[29] The nature of the relief the accused seek on the application is another factor that militates in favour of hearing it at the end of the Crown’s case. As earlier noted, they seek a stay of proceedings or, in the alternative, the exclusion of Mr. Bornmann’s evidence from the trial.

[30] The seminal authority with respect to abuse of process is R. v. O’Connor, [1995] 4 S.C.R. 411. L’Heureux-Dubé J., on behalf of a unanimous Court on this point, held that the common law doctrine of abuse of process was subsumed under the principles of fundamental justice guaranteed by s. 7 of the Charter, except in rare cases where the Charter did not apply. Thus, in considering whether the judicial process has been abused, the analysis under the common law and the Charter now dovetail.

[31] The most drastic and “ultimate” remedy for an abuse of process is a stay of proceedings. It is appropriate only in the “clearest of cases” where the prejudice to the accused’s right to make full answer and defence cannot be remedied or where irreparable prejudice would be caused to the integrity of the judicial system if the prosecution were continued: O’Connor, at para. 82; R. v. Jewitt, [1985] 2 S.C.R. 128, at para. 25. Whether the abuse of process occasions prejudice to the accused or to the integrity of the justice system, a stay of proceedings will only be appropriate when the following two criteria are met:

a. The prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; and

b. No other remedy is reasonably capable of removing that prejudice.

O’Connor, at para. 75.

[32] Where uncertainty persists about whether the abuse is sufficient to warrant the drastic remedy of a stay, it will be appropriate for the trial judge to consider a third criterion by balancing the interests that would be served by the granting of a stay against the interest that society has in having a final decision on the merits: R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297, at para. 57.

[33] Now that the abuse of process doctrine has merged with the Charter, courts have come to recognize that the balancing of individual and societal interests requires a consideration of lesser remedies as well: O’Connor, at para. 69; R. v. Caster, 2001 BCCA 633, 158 B.C.A.C. 285, at para. 13. Remedies less drastic than a stay of proceedings are available under s. 24(1) of the Charter in situations where the “clearest of cases” threshold is not met but where it is proven, on a balance of probabilities, that s. 7 has been violated. As L’Heureux-Dubé J. wrote in O’Connor, at para. 69:

It is important to recognize that the Charter has now put into judges’ hands a scalpel instead of an axe – a tool that may fashion, more carefully than ever, solutions taking into account the sometimes complementary and sometimes opposing concerns of fairness to the individual, societal interests and the integrity of the judicial system.

[34] L’Heureux-Dubé J.’s observations in O’Connor were echoed by Huddart J.A. in Caster, at para. 21, where she held that the discretion to provide a remedy under s. 24(1) of the Charter was sufficiently broad to permit the exclusion of evidence where the accused had established that its admission would violate his rights under s. 7, even if the evidence had not been obtained in breach of the Charter.

[35] Ultimately, the appropriate remedy will depend on the degree of impairment or prejudice to the accused’s rights: R. v. Dixon, [1998] 1 S.C.R. 244, at para. 35.

[36] Lesser remedies should always be considered before the ultimate remedy of a stay of proceedings. Although the exclusion of evidence is a lesser remedy as compared to a stay, it is, nevertheless, an extraordinary remedy and one that requires a balancing of important interests. Those interests are the seriousness of the Charter-infringing state conduct, the impact of the breach on the Charter-protected interests of the accused, and society’s interests in the adjudication of the case on its merits: R. v. Grant, 2009 SCC 32, at para. 71.

[37] A court is precluded from granting a remedy under s. 24 of the Charter until it has determined that the accused’s Charter rights have actually been violated. When the constitutional violation on which the accused relies for a remedy under s. 24 is that state conduct has deprived him of his right to a fair trial, or that he has been deprived of his liberty in a manner not in accordance with fundamental justice, he must establish actual prejudice. Rarely will the assertion of prejudice suffice: Caster, at para. 48. Accordingly, it is preferable for the court to reserve on such applications until after all evidence has been called so that it is able to determine whether the accused has suffered actual prejudice.

[38] It follows from the foregoing authorities that the threshold for a stay of proceedings for an abuse of process is exceedingly high. However, lesser remedies are available in situations where an accused nevertheless establishes a breach of his rights under s. 7 of the Charter. The accused must demonstrate that prejudice flows from the breach. Further, fashioning an appropriate remedy under s. 24, including the exclusion of evidence, requires the court to engage in a balancing of interests.

[39] Having regard to these principles, it is quite clearly premature to hear the abuse of process application at this time. A fuller evidentiary foundation is necessary to determine whether there has been an abuse of process or a lesser breach of s. 7 of the Charter, as alleged, and what the appropriate remedy should be. Particularly with respect to the accused’s alternative remedy, I find the comments of the Ontario Court of Appeal in R. v. Buric (1996), 28 O.R. (3d) 737, aff’d [1997] 1 S.C.R. 535, to be apposite.

[40] In Buric, a key Crown witness was shown the statements of other witnesses before giving a statement implicating the accused in a murder. There was no recorded account of the witness’s knowledge prior to his being shown the other statements. Before the witness testified, the accused argued that the witness’s evidence was tainted and that its admission would violate his rights under the Charter. Following a voir dire during which the witness testified, the trial judge found that the provision of the statements had tainted the witness’s evidence. He further held that where tainting reaches the level of affecting the fairness of the trial because it is present to the extent of making the evidence manifestly unreliable, the matter becomes one of admissibility, rather than weight. The trial judge declined to enter a stay of proceedings but ordered that the witness be prevented from testifying at trial.

[41] Labrosse J.A. held that the trial judge had erred in excluding the Crown witness and in prematurely concluding that the fairness of the trial had been affected. He wrote, at pp. 747-8:

The trial judge did not have the benefit of the decision of this court in R. v. Dikah (1994), 18 O.R. (3d) 302, 20 C.R.R. (2d) 193, affirmed sub nom. Naoufal v. R., [1994] 3 S.C.R. 1020, 25 C.R.R. (2d) 375, where the trial judge, before the informer had testified, had granted a stay of proceedings on the basis that an agreement for the payment of money between the informer and the police constituted an abuse of process and a violation of the accused’s rights under s. 7 of the Charter. At p. 311 O.R., I stated:

It must be the rare case indeed where a witness is found to be completely untrustworthy before he or she had even given evidence.

My colleague Doherty J.A., in a concurring judgment, went further. He stated at p. 314:

I would add that judicial concerns with respect to the ultimate reliability of an as yet unheard witness are not, standing alone, a proper basis upon which to impose a judicial stay of proceedings. We depend on triers of fact to assess the reliability of evidence and the credibility of witnesses. Where the defence had a full opportunity to explore factors relevant to reliability and credibility before the trier of fact, I see no constitutional or supervisory authority for a trial judge pre-empting the trier of fact’s assessment by entering a stay of proceedings: R. v. D’Amico (1993), 19 C.R.R. (2d) 309, 16 O.R. (3d) 125 (C.A.); United States v. Hodge, 594 F.2d 1163 at p. 1167 (U.S.C.A. 8th Circ. 1979).

These words are appropriate where, as in the present case, the exclusion of evidence of a witness would have the same practical effect as a stay of proceedings. I also see a certain analogy between a paid informer and a witness who is induced to testify for the state and in return is given favourable treatment. Their evidence should generally receive the same treatment.

[42] It is difficult to foresee, Labrosse J.A. further wrote, how a trial will unfold when the witness has not yet been heard.

[43] I recognize that the central issue facing the trial judge in Buric was not Crown or police misconduct but the tainted evidence of the witness. However, as I earlier explained, there is overlap between the two concepts in the case at bar.

[44] Defence counsel rely on the following cases in support of their position: R. v. Byron, 2001 MBCA 81, 156 Man. R. (2d) 154; R. v. Pioneer Construction Inc. (2006), 79 O.R. (3d) 641, 209 O.A.C. 379; R. v. Nunziata, 2005 ONCJ 292, 78 O.R. (3d) 285; R v. Coldwell, [1994] Y.J. No. 54 (S.C.); R. v. Xenos (1991), 43 Q.A.C. 212, 70 C.C.C. (3d) 362 (Que. C.A.); R. v. McDonald, [1983] N.Z.L.R. 252 (Privy Council); and Steadman.

[45] In my view, these cases are all distinguishable from that at bar. Byron, Pioneer Construction and Steadman all involved applications for a stay of proceedings on the basis of unreasonable delay under s. 11(b) of the Charter. It is well-settled that such applications are properly heard before trial. They require an evidentiary foundation based upon the chronology of events before trial, an identification of specific segments of time, and attribution of responsibility under the categories outlined in R. v. Morin, [1992] 1 S.C.R. 771, 71 C.C.C. (3d) 1. That is all information that is independent of the evidence to be heard at trial.

[46] Nunziata was a constitutional challenge to a provision of the Canada Elections Act, S.C. 2000, c. 9. At para. 19, Fairgrieve J. quoted R. v. Martin (1991), 63 C.C.C. (3d) 71; aff’d (1992), 71 C.C.C. (3d) 572 (S.C.C.), a decision in which the Ontario Court of Appeal expressed its concern about the propriety of the lower court dealing with a challenge to the constitutionality of a section of the Export and Import Permits Act, R.S.C. 1970, c. E-17, on a pre-motion hearing, before any plea had been entered or any evidence adduced. The Court expressed the view that the lower court should not, at that early stage, entertain or dispose of an application to enforce a remedy under the Charter, except in those cases where it was abundantly clear that a constitutional right had been infringed or threatened. Citing DeSousa, Fairgrieve J. went on to observe that the Supreme Court of Canada had stated a general rule consistent with the foregoing opinion of Ontario Court of Appeal.

[47] In Fairgrieve J.’s view, it was apparent that the constitutional issue pursued by Mr. Nunziata was not dependent on the evidence to be called at trial. Thus, the most sensible course was to resolve the constitutional issue before trial since it could conveniently be done on the basis of the ample evidentiary record already produced.

[48] That is not the case here, since Mr. Bornmann’s evidence is indeed relevant to the abuse of process application. This is so whether the remedy under consideration is a stay of proceedings, or the exclusion of his evidence.

[49] The defence also relies on Coldwell. However, this case too is distinguishable since counsel there agreed that all the material to support the motion was available before trial. That is not the situation here, as the Crown does not agree. Moreover, Coldwell was decided well before Buric and Hooites-Meursing.

[50] Another decision the defence cites is Xenos. The accused had been charged with arson and attempted fraud. It emerged in cross-examination that the Crown’s key witness had arranged with the insurers of the destroyed premises to be paid $50,000 if the accused was convicted. The trial judge found an abuse of process, but declined to order a stay. He rejected the evidence of the witness but found the accused guilty on the basis of other evidence at trial. The Court of Appeal agreed in principle with the trial judge that a stay was not the only remedy for an abuse of process. It went on to rule that the appropriate remedy was to exclude the witness’s testimony in a new trial before a different judge.

[51] Xenos is of limited assistance since the application for relief on the basis of an abuse of process was made after the court had heard the witness’s evidence.

[52] For the foregoing reasons, I conclude it is not appropriate to hear the abuse of process application at this time. In reaching this conclusion, I have not overlooked the defence submission that the Crown misconduct has already occurred such that the abuse of process is complete. Nevertheless, I exercise my discretion in all the circumstances to have the benefit of a full factual foundation upon which to determine the effect of the alleged Crown misconduct on the trial. I prefer to make that determination with the benefit of all the Crown’s evidence, including direct and cross-examination of Mr. Bornmann, and evidence that, according to the Crown, would support his testimony. Should I find then that the Crown’s conduct in the manner in which it entered into the immunity agreement with Mr. Bornmann amounts to an abuse of process, or to a lesser breach of s. 7 of the Charter, I will fashion an appropriate remedy.

Disposition

[53] I decline to hear the abuse of process application before trial. The defence has leave to bring the application at the close of the Crown’s case.

“A. MacKenzie J.”

___________________________________

The Honourable Madam Justice MacKenzie

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Well ... this gives us something more to ponder, beginning with [5], [6], [7], [8], [9], [10], [11]. So the Special Crown Prosecutors have apparently bungled the matter of agreeing an immunity deal? This does nothing to quiet public anxiety. But Madam Justice MacKenzie goes into detail, explaining how she intends to meet that issue.

I'm going to re-read her ruling another time or two; I hope others will do that, too. And when the next pre-trial hearing is announced, I hope many citizens will be in the Public Gallery watching and listening and taking notes. This is so important. - BC Mary, Dec.8/09.

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Later news from a Toronto case with troubling similarities: HERE.

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Comments:
Two hands clapping for this editorial post.
Bravo!!
 
What you've said seems so obvious that it makes me feel, not for the first time, that I must be dreaming when I read about this endless situation.
 
Great post Mary

Throughout this debacle on Bornman(n) I have had the nagging feeling, as have others, that if the prosecutor doesn't get what he wants then EB will not get immunity. This amounts to coercion. And if the prosecutor preps the witness then the defense has the right to depose before trial begins.
Having said that, we know that the Special Prosecutor is appointed to keep the trial at arms length from government. So the possibility here is that the prosecutor could manipulate a statement of evidence incriminating the defendants only. Thus white washing the involvement of others.
One other thing on the Paying of a bribe. Bornman could have physically paid the money but exactly where did the money come from? That's where the charges should go for "offering a bribe". The charge to Bornman would be in complicity, a bagman.
 
BC Mary, you said:

"Anything which discourages Erik Bornmann from telling us everything he knows about how BC Rail slid from public ownership into private pockets, is a good thing."

Do you mean: "anything which encourages Bornmann to tell us everything he knows...is a good thing."

I agree with you that, if there is immunity in this case, it should abide by the Policy Manual.
 
Anonymous 9:44,

Bless you! I certainly did mean "encourage" ... many thanks for sending me the Fix-It message.

And thanks to all readers who, for some wonderful reason, seemed to understand what I was getting at.
.
 
Gary E, you make some great points one of which I would like to pursue a bit further.

"Having said that, we know that the Special Prosecutor is appointed to keep the trial at arms length from government. "

I would phrase that slightly differently - though your phrasing is exactly what it is supposed to do. In this case it seems more like he was appointed to keep the prosecution even more than an arm's length from government - kinda like Gordo and gang's defense counsel, if you get my drift.

Personally the way Wild Bill and his accomplice Anne are trying to deal with Bornmann's immunity is not only wrong - but grounds for a criminal charge of subborning perjury!

Even in the Alice's Wonderland that passes for the BC Supreme Court, there is no way immunity can (rightly and legally) be granted for anything other than true testimony. Anything else is buying testimony, subborning perjury, and I find it ironic that the government would bribe an accussed briber to further its own criminal enterprise!

I watched 60 Minutes last night and they had an extended piece about the NBA ref who was betting on NBA games (and surprisingly, not using his calls to win bets, just his inside knowledge). The FBI agent who handled his case made it very clear that the criteria for him getting consideration in sentencing (not immunity) was that he told the truth, the whole truth and nothing but. It wasn't a matter of whether he implicated the right people, or that his testimony was pleasing to the federal prosecutor or FBI.

I'm with Skookum in that, perhaps, our only chance to ever get to the bottom of any of Gordo's schemes might be if we can somehow get a civil or criminal investigation/prosecution launched in the US either by regulatory agencies or a spurned customer for BC's resources.

Remember how it is easier to FOI Washington State for info about our own government if it has anything to do with Washington State?
 
Posted Monday, December 07, 2009



http://www.courts.gov.bc.ca/jdb-txt/SC/09/16/2009BCSC1685.htm

Justice A Mckenzie

Ruling on Timing

November 25, 2009
[52] For the foregoing reasons, I conclude it is not appropriate to hear the abuse of process application at this time. In reaching this conclusion, I have not overlooked the defence submission that the Crown misconduct has already occurred such that the abuse of process is complete. Nevertheless, I exercise my discretion in all the circumstances to have the benefit of a full factual foundation upon which to determine the effect of the alleged Crown misconduct on the trial. I prefer to make that determination with the benefit of all the Crown’s evidence, including direct and cross-examination of Mr. Bornmann, and evidence that, according to the Crown, would support his testimony. Should I find then that the Crown’s conduct in the manner in which it entered into the immunity agreement with Mr. Bornmann amounts to an abuse of process, or to a lesser breach of s. 7 of the Charter, I will fashion an appropriate remedy.

Disposition

[53] I decline to hear the abuse of process application before trial. The defence has leave to bring the application at the close of the Crown’s case.


EM
 
What a bunch of meaningless garbage are the lady's reasons for judgement. She may as well have said - "because I say so, and I have an assignment!" It is like an assignment called "justify the unjustifiable in 5 million words or less (or more) and it doesn't matter if it stands up to appeal because the whole purpose is DELAY!

I'm thinking the whole matter called:

Regina

v.

Udhe Singh (Dave) Basi, Bobby Singh Virk
& Aneal Basi

is little more than a complicated and drawn out exercise in obstruction of justice.
 
I seem to recall that Wild Bill (or his designated subs when he hasn't the time to appear) has on various occasions made conflicting statements about the immunity agreement - casting doubt on both exactly what it says AND whether or not there even is one!
 
i just want the trial to begin so everyone can say their peice... GET ON WITH IT ALREADY!!
 
Note for reference later that this decision was posted on the SC judgement page on Monday Dec.07,09

It is very interesting that the Judge referenced Anton Hooites‑Meursing Para. #27
SCC page

32799 Anton Hooites‑Meursing v. Her Majesty the Queen

(B.C.) (Criminal) (By Leave)



Criminal law - Appeals - Stay of proceedings - Crown misconduct - Voir dire evidence - Whether the Court of Appeal erred when it failed to consider whether Crown misconduct merited a stay of proceedings - Whether the Court of Appeal erred when it failed to apply the appropriate standard of review to the stay of proceedings ruling made by the trial judge - Whether the Court of Appeal erred when it failed to treat voir dire evidence as “evidence” for the purpose of determining trial fairness - Whether the Court of Appeal, by overturning the trial judge’s decision without addressing the live issue, ignored material evidence called on the stay application.


The Applicant was charged with second-degree murder. His first trial ended in a mistrial as the jury was unable to render a verdict. At the beginning of his second trial, defence counsel applied for a stay of proceedings, alleging breaches of the Applicant’s ss. 7 and 11 Charter rights.
--------
From a comment re Anton
If Anton wore a wire and got Jamie on tape confessing to the Surrey Six murders.......


EM
 
A VERY good read here about immunity, ...Part VII
POLICY IN CERTAIN TYPES OF LITIGATION
Chapter 35 Table of Contents
35 IMMUNITY AGREEMENTS.35.5.2 The Importance and Reliability of the Person's Testimony or Co-operation
Before offering immunity, Crown counsel should assess the truthfulness and candour of the information-provider. If the person is to testify, Crown counsel should be satisfied that a properly instructed jury would likely view the witness as credible.15

However, truthfulness should not be equated with moral character, as Toy, J. pointedly observed in Re Meier16:

The state when it moves in to prosecute those who have allegedly committed crimes does not have the luxury of picking and choosing their witnesses. The state may have to rely on drunks, prostitutes, criminals, perjurers, paid informers as well as solid citizens to prove their case.

The same point was made by Barrette-Joncas, J., in R. v. Dubois17:

In criminal matters, and particularly in cases of murder, it is not always possible to have a bishop (priest) for a witness as the Crown did in the case of R. v. Vaudry, 500-9-8144-773, also before this court. (translation)

The information-provider must be candid about his or her involvement in criminal activity.18 Crown counsel's obligation, in this regard, is to ask the person whether he or she has been: a) convicted of any criminal offence; b) charged with any criminal offence; and, c) knowingly the object of a criminal investigation. Crown counsel must ensure that the person's full criminal record be placed before the court.19

Worth reading whole page
http://www.justice.gc.ca/eng/dept-min/pub/fps-sfp/fpd/ch35.html#35_3

EM
 
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