Tuesday, November 27, 2007


Informer privilege rule vs open court principle

As impatient British Columbians try to sink their teeth into the B.C. Rail Case, one name after another is nominated as the mysterious witnesses who may (or may not) be allowed to testify in camera ... shielded from the public, the media, and even from the Defence lawyers. The Special Prosecutor offered "Paragraph 46" as the precedent for his surprise request.

Thanks to Bill Tieleman who "de-coded" and looked up that particular mystery, we too can see the guidelines which must be followed, if Madam Justice Bennett allows this request.

It's not a simple plea bargain, as I was thinking when I nominated James Seymour Duncan and Anthony Ralph Young who go to trial in 2008 with Dave Basi. These two developers are accused of allegedly bribing Dave Basi for illegal activities to exclude property from the Agricultural Land Reserve for a major Sooke-area development now known as Sun River Estates. It can't be a barter of convenience.

Rather, "Paragraph 46" seems to be talking about a life and death decision involving a police informer who had already been promised this protection. And according to the comment by Kevin McCullough (Virk's lawyer), it's usually a police informer with organized crime connections.

Note especially who is allowed to hear the testimony, as well as who is excluded. Wow.

We owe special thanks to Bill who presented the following excerpts and explanation in his "Rail-gate" article for The Tyee, as well as in his regular column at http://billtieleman.blogspot.com/

The "Paragraph 46" that Special Prosecutor Berardino referred Justice Bennett to was almost certainly from Named Person v. Vancouver Sun [Air India testimony]. That paragraph and the ones immediately before and after, read as follows:

D. The Procedure to Be Followed

45 The interface between the informer privilege rule and the open court principle in the context of a hearing where a party claims to be a confidential police informant must at the same time allow for the protection of the identity of the informer from any possibility of disclosure and the maintenance of public access to the courtroom to the greatest extent possible.

In order to best illustrate how this can be achieved, I will in what follows set out a procedure to be followed in a case such as the one before the Court, where an individual who is in the midst of criminal or quasi-criminal proceedings for some reason discloses to the court his or her status as a confidential informer.

46 In such a proceeding, the parties before the judge will be the individual and the Attorney General of Canada (or the Crown). If the individual wishes to make a claim that he or she is a confidential informer, he or she should ask the judge to adjourn the proceedings immediately and continue in camera.

The proceedings will proceed in camera, with only the individual and the Attorney General present, in order to determine if sufficient evidence exists to determine that the person is a confidential informer and therefore able to claim informer privilege.

47 While the judge is determining whether the privilege applies, all caution must be taken on the assumption that it does apply. This means that under no circumstances should any third party be admitted to the proceedings, and even the claim of informer privilege must not be disclosed. The only parties admitted in this part of the proceeding are the person who seeks the protection of the privilege and the Attorney General. It is the responsibility of the judge at this stage to demand from the parties some evidence which satisfies the judge, on balance, that the person is a confidential informer.

Once it has been established on the evidence that the person is a confidential informer, the privilege applies. I cannot over-emphasize the importance of this last point. The judge has no discretion not to apply the privilege: Bisaillon v. Keable, at p. 93. If the person is an informer, the privilege applies fully.

That leaves some obvious questions -- is there a "confidential informer" who supplied police with evidence of wrong doing? And who is that person? Are they involved in other criminal activities, as the Air India informant was?

And it should also be noted that there appear to be two separate applications for in-camera witnesses, with previous mention of applications coming at the last pre-trial hearing, Nov. 16. There was no mention of excluding defence counsel at that time and Justice Bennett clearly appears to say that there are different applications to be heard.

December 3rd is the next and lengthiest pre-trial hearing.

From today's The Province:

E-mails from inside premier's office might do the trick

Michael Smyth
The Province: Tuesday, November 27, 2007

Two prerequisites for a political scandal to inflict maximum damage on any government: It's got to be visible. And it's got to be simple.

I'm convinced to this day that Gordon Campbell's Liberals deliberately refused to put the NDP's fast ferries into active service for this very reason. {Snip} ...

Last week, lawyers revealed in court that the Campbell government had coughed up thousands of new documents in the case, including e-mails from inside the premier's office.

The e-mails apparently track discussions between Campbell's staff and notorious lobbyist Erik Bornmann, who allegedly paid Basi nearly $30,000 for inside information on the B.C. Rail deal.

"The Bornmann e-mails are out of the world," gushed defence lawyer Kevin McCullough.

The Liberals are nervous as hell about what dirty laundry might spill out of the hamper.

Special prosecutor Bill Berardino, meanwhile, told Justice Elizabeth Bennett that some witnesses want to testify in secret: no public, no media and maybe even no defence lawyers allowed.

Who might these secret witnesses possibly be? Police informants? Campbell's staffers? Campbell himself?

The New Democrats are praying the whole thing explodes into a bombshell court trial -- and the timing could hardly be worse for the government.

The trial is set to begin in March -- just over a year before the 2009 election -- plenty of time for this invisible, complex scandal to morph into something truly damaging for Campbell and the Liberals.




As I indicated in an earlier comment, it wouldn't surprise me if this person was the premier himself. Think about it. Everything he has done since he was in power was the opposite of an election promise. I won't tear up contracts, I won't sell the railway.
So we know that he only reads into things that which he wants to. He doesn't even see the word "police" in the "confidential police informant" part of the decision.
And this brings up the irony of his promise to have "an open and honest government".
So in the next election if he says he is going or not going to do something you can bet the farm he will do the opposite.
And as much as I hate to admit it I think Mishael is correct in his thoughts about the Fast Ferries. They are parked in North Van for the sole purpose of allowing the Liberals to allude to something the NDP did. They could have been sold. Or better yet they could have been put into service.
And another horrible thought just hit me. If it is Campbell then it would be only himself and the attorney general in there with Madam Justice Bennett. And if she consented to this farce we would never know it was him. In this scenario its purely political. Not Judicial.
'Morning, Gary E. You've had your thinking cap on early this morning. Always good to hear from you.

Premier Campbell was my first guess, too, as the Secret Witness. But the way I read Para 44, 45, 46, as well as the comment by Kevin McCullough, it has to be a police informant who was promised protection as part of his willingness to testify. Or he'd probably be murdered by his associates in organized crime.

The other thing I learned from Bill Tieleman's discovery: if it comes to this absolutely secret testimony, not even Judge Bennett is allowed in.

Did you notice that? Only the Attorney General which, in B.C., is that illustrious statesman: Stonewally Himself.

So there's no end of "horrible thoughts" in this story. For example: will the testimony be recorded? and made part of the public record?

Will you be in Supreme Court on December 3, Gary E? Or during the anticipated 3-week session? I hope so.
Just to clarify a point here, the Court hearing would have Justice Bennett, the witness and Special Prosector Berardino - not Wally Oppal. The "Attorney General of Canada" in this instance refers to the Crown, not the person and in any case is not Wally.

"In such a proceeding, the parties before the judge will be the individual and the Attorney General of Canada (or the Crown)."
Fed.Min.of Justice? Does this mean, HOPE for JUSTICE?
Hi Bill,

Thanks, as always. Your guidance is much appreciated.

Here's what throws a reader off the rails, so to speak:

"The proceedings will proceed in camera, with only the individual and the Attorney General present" ... a statement which is repeated in the next paragraph, too. That, as I read it, is only two people.

Which, in my mistaken cloud, seemed to make a bit of sense: placing this secret testimony at arm's length from either the Prosecution or the Defence, but still within "the Crown".

But "the Attorney General of Canada" is only lawyer-speak, you say? And it only means Ol' Bill Berardino? Hmph. I think Defence might have quite a speech underway on that, don't you?

If your patience is holding up, could you please tell us how you think the testimony will be recorded? and whether or not it will become part of the public record, accessible to all?

Again, thanks for helping.
Anonymous 9:31,

Yeah, that's kinda what I was thinking, too, but Bill T. says it's not quite like that.

So the next-best thing is for people to crowd into that courtroom on December 3 onward, thus demonstrating in the nicest possible way that the public is watching, waiting, hoping.

It's a heck of a note when we're grasping at straws, not really sure that any of the paid legal help are there to look after the public's interest.

I would humbly suggest that it is important to read the putative paragraph 46 very closely....

"46 In such a proceeding, the parties before the judge will be the individual and the Attorney General of Canada (or the Crown). If the individual wishes to make a claim that he or she is a confidential informer, he or she should ask the judge to adjourn the proceedings immediately and continue in camera.

The proceedings will proceed in camera, with only the individual and the Attorney General present, in order to determine if sufficient evidence exists to determine that the person is a confidential informer and therefore able to claim informer privilege."

If this is the real deal there does not, a priori, need to be an element of physical danger. Instead, this is a petition to demonstrate that the witness is a confidential informer.

Now, who would fit that bill (Mr. T. excepted of course)?

And would such a person have previously, perhaps, been granted some sort of shakey immunity deal that has since fallen through?


As much as I'd like to think this 'police informer' might be Gordon Campbell...it won't be.

There is no way that Gordon Campbell is going to put himself in a position where he has to, under oath, swear evidence in a court of law and be asked to reply directly and unequivocally about what role he played in the BCRail case.

Remember, this is the same man who assiduously avoids "ever" answering a 'straight' question in the Legislature.

If Gordon Campbell ever finds himself under questioning in this case I think he will shelter himself and his own possible culpability under the terms of the Canada Evidence Act so quickly that it will make your head swim.


This is about police informer(s) - paid or otherwise - that the crown either doesn't want exposed because they have residual value, or because exposure would put them in some kind of personal or allegedly mortal danger.

In my view.

We are, in any case, being diverted - as probably was the Special Prosecutor's intent - from the main issue: The intransigence, foot-dragging and delay on the part of the Crown in meeting the legal obligation the courts and the justice system places on them to provide full and prompt disclosure.

Not ... surely not another transmogrification ... Oh, not ol' knock-him-down-he-pops-right-back-up-again Erik the Needy Bornmann !!!

That would be too freakin' much from that whippersnapper.

But Erik the Needy doesn't fit the outline drawn by Anonymous 11:06.

Surely all that would have to be done is subpoena the guy, put him under oath, and ask him a lot of serious questions. Simple.

True, most everybody he ever knew probably views him with fear and loathing by now ... but physical danger? Naaahh.

Future or residual value? Can't imagine that, either. Naahh.

I think it's Jasmohan Singh Bains. Now there's a guy who knows a lotta lotta discomfiting secrets. And who stands in mortal danger every hour of the day in his chosen lousy profession.

As for Ol' Bill tossing out this Secret Witness thing as a red herring just to distract us ... from ... from? oh, my goodness.

Maybe that federal Attorney General isn't such a bad idea.

Gee, do you think that if they have a super secret special hearing involving ONLY the super secret witness and the crown before Justice Bennett, that Wild Bill (SP) will actually make a point of actually......you know......being there? Bill is special, and secret witnesses ARE very special, so I'm betting he would make an exception and attend.

I do find it curious that his absence for so much of these proceedings is just considered par for the course. Of course for Canned Waste the whole issue (the whole trial, raid, BC Rail scam) is mostly below consideration and unworthy of attention.

I still think the whole thing stinks like something thought up for Gitmo. I mean whoever the witness is, whatever he has to say needs to be at least HEARD by a representative of the defendants, or whatever he/she/it says is meaningless. Lawyers are supposed to be able to take oaths, such as not divulging the identity of super secret dude or dudette, and honour them, or is that also quaint by today's standards. After all break and enter artists and bribers are apparently lawyer material in the Center of the Universe - Ontario.

This trial needs some subpoenae with teeth, some court orders with a TIME requirement, in other words, provide the documents etc. by (fill in the date) or go sit in jail and think about why you didn't comply. I'm pretty sure if I had important docs the police would be searching my house for them now and holding me at bay with Tasers.

Of course the above has been the case for almost four years now. Perhaps everyone will just die before anybody actually finds out anything.

Let's not even attempt to sell the the Judge short and that she doesn't have control of what goes on in her court. As for "In camera", in my limited knowledge it means just that. Things will be said, written down and sealed. A number of us have been at "In camera meetings" and it doesn't become public knowledge unless the court decides sometimes later it's in the pubic interst to hear it. If she does, well after the case is settled, the case will be available to read. Short edition on line. The whole pile, down at the records office. Cabinet documents have been brought into courts before so that may be part of the information package when this is all done, appealed etc. D.Love
Wouldn't it be exquisite irony if the request for "super secret witnesses" and "in camera" sessions, proved to be a strategic mistake immense magnitude?

I mean, thanks to the complicity of Canned Waste/GlowBall this whole affair has had virtual secrecy all along anyway. If this request for a "Star Chamber" piqued everyone's interest, all I can say is (in my Best Montgomery Burns Voice) "Excellent!"
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