Wednesday, November 25, 2009
Basi Virk today: Is "the fix" in?
Is "the fix"in? The day in Courtroom 43.
By Robin Mathews
November 25, 2009.
The day whirled and whirled with argument about an application Defence has made to have actions by the Special Crown Prosecutor, William Berardino, named inappropriate, "abuse of process", and to be remedied by any number of possible rulings. One remedy would be that Erik Bornmann, Prosecution's so-called "Star Witness" could not appear in the trial. Other remedies were available, of course, to the judge.
Erik Bornmann, part of a lobby organization at the time, admits to having paid a bribe concerning the BC Rail Scandal events, and - after - became a key witness for the Crown against the accused, receiving a much discussed and distressed "immunity" guarantee or partial guarantee given to him by the Special Crown Prosecutor, William Berardino.
To ordinary Canadians there is something alarming, almost always, when someone admitting to a criminal act then becomes a protected witness in a court case, sheltered from facing criminal charges for his/her acts. But examples occur, and they often (as in the argument today) provide precedent for cases being fought.
The whole day was engaged in the argument, rich in disagreement and sparkling with references to key precedents.
The arguments boiled down to a few. Defence alleges that William Berardino made a proposal to Erik Bornmann that he will receive immunity from prosecution if he appears in the trial as a Crown witness - against the accused - and tells the truth. Defence argues that Berardino did not offer Bornmann total immunity as (Defence alleges) English, Commonwealth, and Canadian use demands, but offered him immunity if - at the end of the trial - the Crown judges he has told the truth.
Defence called that offer an abuse of process. They called it that for the very simple and obvious reason that standard procedure (they argue) is to give total immunity to such a person who then has no reason to do anything else than tell the truth. With an "if you tell the truth as we judge it, you will get immunity", the witness is likely to try to find what the Crown wants him or her to say and say it as "truth" in order to get the immunity. That suggests a huge danger to the credible operation of the legal system. Defence pointed out that the only credible determinant of truth in a trial is judge and jury or judge in a judge-alone trial. Crown does not and cannot determine truth.
In addition, Defence argued that the application must be heard before trial - for obvious reasons. If there has been abuse of process by the Special Crown Prosecutor, it must be known before trial begins. To bring up the allegation and test it during trial would dizzy the heads of jurers; would be costly; would call for remedy in the middle of trial if proved, etc. etc. And to do it after the whole trial is over would be catastrophic because, in a sense, if upheld - then the whole trial would be in question as an illegitimate action based on an abuse of process.
William Berardino, Special Crown Prosecutor, argued eloquently and well (but off the main issue, Defence claims). He argued, as I understood his position, that Defence was claiming tainted evidence not abuse of process. Because the Defence had used the word tainted to describe the whole presentation of Bornmann and his "evidence" if abuse of process has taken place, Berardino spoke mostly of tainted process. He argued that precedent accepts "immunity" so that justice may be done.
Of key importance, Defence argued that there could not be a choice of when the application will be heard; it must be heard before trial begins. Berardino dissented, preferring, of all, that it be heard after all the evidence is in at the trial.
To the ordinary, unprofessional layman like myself, Defence should carry the day. If the allegation of "abuse of process" (a serious allegation) is baseless, then it should be shown to be baseless at the earliest opportunity and gotten out of the way. Then the trial can be clean and straightforward. If the allegation of "abuse of process" has basis, then remedy may be made BEFORE a trial begins and the trial can be based upon the remedied wrong.
Try as one might to think of a reason why the application should be heard in trial or after trial, one cannot bring a good reason to mind. (This "one", at any rate, certainly can't.)
Madam Justice Anne MacKenzie seemed to me (an observer in the gallery) to hear the Defence with less than complete objectivity. When she declared that Defence was arguing against itself by using both of the terms "abuse of process" and "tainted evidence", Defence acquitted itself reasonably by explaining its (perhaps) unfortunate use of the term "tainted" as describing what the condition would be if the "abuse of process" were allowed to stand. As observer in the gallery, I understood clearly the argument, and the clarification.
Nonetheless, in the closing few minutes of the day, Madam Justice Anne MacKenzie found for the Special Crown Prosecutor - to provide reasons tomorrow (I think she said).
Her ready decision seems to be a part of her wish to move the process along and get to trial. If that is true, and if her action is reasonable, she did well today. But if some other motivation is present, and her action not reasonable, the decision must seem strange.
She wants the argument about "unnecessary delay of process" (which Defence will make) to be heard before Defence thinks suitable; and she wants the argument about "abuse of process" to be delayed far beyond the time Defence believes is warranted. From the extended argument today, it is plain that further allegations of delay could very well surface in the next weeks. To force the application for delay to be heard before all evidence of alleged delay is in seems, simply, somewhat crackpot.
That is why the title of this report reads: "Is 'the fix' in?"
Defence has argued that the Gordon Campbell government pretended an open "sale" of BC Rail while "the fix" was in to sell it to CN Rail and pretend and pretend all the rest about an open, public auction process.
Is the "fix" in for the trial of Basi, Virk, and Basi - to appear to conduct a full and open trial while setting up a process that is predetermined? That is a strong question to ask. The rather strange positions taken by Madam Justice Anne MacKenzie, however, bring the question to my mind. And so I ask the question. An observer who is an ordinary British Columbian must ask all the questions that may be relevant to the preservation of democratic society. They may be painful. But in defence of democracy, they must be asked. And so I ask that question.
Bill Tieleman wasn't in court today but his blog is updated HERE.
Tuesday, November 24, 2009
BASI-VIRK - defence spars with judge over timing of application to throw out case, seeks info connected to secret witnessDefence lawyers and BC Supreme Court Justice Anne MacKenzie sparred Tuesday over an application to have corruption charges against three former BC Liberal government aides thrown out due to delay of the trial.
UPDATE - The Vancouver Sun's Neal Hall reports from BC Supreme Court Wednesday that defence lawyers are claiming a deal between the Crown and key witness Erik Bornmann breaches the constitutional rights of the three accused former aides. The Province's Keith Fraser has also filed an online story. I am unable to attend today's hearing but you can find more at the links to Neal and Keith's stories above or at The Legislature Raids.
Hearing continues Wednesday and Thursday in BC Supreme Court, Vancouver.
"With an "if you tell the truth as we judge it, you will get immunity", the witness is likely to try to find what the Crown wants him or her to say
and say it as "truth" in order to get the immunity.
Isn't that a kind of bribery in itself?
Oh the irony of that!