Bill Tieleman’s 24 Hours Column
Tuesday November 27, 2007
Basi-Virk takes a bizarre turn
By BILL TIELEMAN
The strangest twist in the long-awaited B.C. legislature raid case has seen the Crown apply to have three secret witnesses testify in the breach of trust, fraud and money laundering trial.
And special prosecutor Bill Berardino wants the application for one of the witnesses to be heard without even defence lawyers present - a highly unusual situation last seen in the Air India bombing trial when a police informant wanted on criminal charges in a foreign country wanted to avoid identification.
Berardino asked B.C. Supreme Court Justice Elizabeth Bennett to hold a secret hearing that would exclude defence lawyers, the media and the public in the trial of three former provincial government aides.
Lawyers for David Basi, Bob Virk and Aneal Basi seemed stunned Friday when Berardino said he wanted even the defence absent from a hearing Dec. 3 to consider hearing testimony from a witness without identifying them.
There was no discussion on why the defence would be excluded and outside court Berardino and defence lawyers declined comment.
In court, Berardino referred Bennett to "paragraph 46" of an unidentified judgment that is likely Named Person v. Vancouver Sun, where a criminal informer in the Air India bombing wanted to testify without being named.
The court also heard Virk's defence lawyer Kevin McCullough describe e-mails recently obtained from key Crown witness and former provincial lobbyist Erik Bornmann as "out of this world."
Basi's lawyer Michael Bolton said the e-mails: "Pertain in particular to the conduits of information between the premier's office inner circle and the ministries of Finance and Transportation and the Pilothouse lobbyists ... passing information to key members of the premier's inner circle."
Bornmann is alleged by police to have bribed David Basi and Virk to obtain confidential government documents related to the $1 billion privatization of BC Rail in 2003. Aneal Basi is alleged to have forwarded money from Bornmann to his cousin David.
The secret witness issue drew an immediate reaction from the defence.
McCullough told Bennett that the application to exclude defence lawyers from the in-camera hearing would be opposed.
"If he [Berardino] intends to go in-camera without defence counsel, you'll hear arguments from me," he said.
Then a very interesting interjection occurred.
Bolton said to Bennett: "We'll deal with defence counsels' right to be present."
McCullough then said: "I think we've figured it out...."
But Bennett cut him off: "No, just don't say anymore."
Will the public ever learn who wants to testify without being named? Or why?
Stay tuned for "I've Got A Secret" at B.C. Supreme Court starting Dec. 3.
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13 comments:
Three witnesses? I had thought it was two?
Are you saying two witnesses and one claiming to be an informant?
Did the Special Prosecutor clarify something with you after, like a good citizen, you consulted a lawyer?
I trust that 24 hours will have a lawyer and let us hope that the other media will also be represented.
Hmmmmm.....
Now who could that 'new' third man/woman possibly be?
And could they ever have been offered an immunity deal that fell through?
.
Gosh Bill, now that you spend parts of ypour day scratching for news for free for us, someone suggests the Tyee should provide a lawyer. I use3d to get told, if you have cause for intervenor status, go apply and bring some cash. maybe the posters would like to get some money together so as to get closer to the action. But if it's a in camera event that wouldn't get us any closer than Bill and one or two others have got us in the picture dl
While this is a very weird development, surely we can take it for granted that Judge Bennett will not grant the secrecy requests unless she is satisfied that the witness has a valid fear of violent reprisals.
For Berardino to request secret testimony on the grounds that the witness is a governmental or political type who fears public embarassment or harm to their political party's prospects if they identity or testimony is revealed would be laughed out of court.
Furthermore, to try to dress that argument up, and cloak it in terms of government policy, that there might be some harm to the BC Govt's negotiating strength in some kind of ongoing area of public administration, that this harm might result in some elevated costs or reduced returns to BC taxpayers, isn't going to fly either.
Basically it's going to have to be right back to drugs and criminal gangs, and possibly undercover cops working in that field, just as one of the defence lawyers alluded to last week. I am going to take a SWAG (Scientific Wild-Asses Guess) that these witnesses are either police officers or police informants who were involved in the original drug investigations that led them to Basi and Virk, and that since they are still working the drug beat their identities must be secret.
Not that I get all my wisdom from the Princess Bride, but my belief is that Named Person "does not mean what the SP thinks it means."
First, based on this SCC case, a person wanting an in camera hearing - and to then argue for some testimony thereafter in camera or other pulbication controls - needn't show the likelihood of violent reprisal.
For the first step, they need only say they are a police informer and the court must go in camera to consider if that is the case.
However, the reason that the AG and alleged informer were "alone" before the court in Named Person is that the alleged informer was also the accused - the parties from both sides were, therefore, represented.
I don't believe Named Person delivers the same result, i.e. AG and informed/witness alone before court, in a case where the person claiming the informer privillege is not the accused. The accused's counsel should be entitled to be present to hear and speak to (almost always a Crown witness's) claim of being a police informer and to having police informer privilege.
Second, I can't see how Named Person would apply at all to any person who can't bring themselves in under the police informer privilege. I don't know of any provisions for a person who wants to, or is going to be compelled to, help the Crown's case with actual testimony to have their identity, etc obscured except for victims of sex crimes and, then, most often for those of tender years.
As the SCC notes - police informers don't testify as a rule and their privilege is invoked when the defence asks the police officer witness "who gave you this lead?" and, if they do testify, it is not with privilege.
So, I don't think there is a "high profile person who is planning to testify secretly" rule, at least not one that would appear covered by Named Person or would allow the SP's application be to be heard in the absence of defence counsel.
Anon-Above--
To go back to the PBride one more time.....
Is it, based on your interpretation, utterly 'inconcievable!' that such a person in this case might actually be one of the accused?
Especially, given the 'interesting (and somewhat incongruous) interjection' involveing the two defense lawyers and the judge that Mr. T. pointed out.
Then again, perhaps I'm suggesting a possibility that is actually considerably less likely than our ever getting involved in a land war in Asia.
Oh, wait, hang on a second.
.
Anon 12:06
I agree almost completely with your analysis of 'Named Person' and its very tentative application to this case...and that the secret witnesses (one, two or three) are police informers of one sort or another.
The curious thing is that the mysterious 'secret' witnesses have actually been on the table for months - right under our noses - so this is certainly nothing new.
Please refer to paragraphs 165 - 169 and in paras 197 and 198 of the Notice of Application for Discovery (Feb 26, 2007).
There are two CROWN WITNESSES and one member of the public mentioned.
So that's three - although it's not clear that the two crown witnesses are necessarily asking for anonymity...the 'member' of the public certainly is...
I'll see if I can dig up a copy of the Notice in my files and I'll post the pertinent paragraphs here as soon as I can.
Here they are:
Index of Tip 47 – “Tips from Members of the Public”
165. On June 15, 2006, the Special Prosecutor provided certain documents contained within Tip 47, entitled “Tips from members of the Public” to defence counsel in hard copy.
166. During the Project Room review, the Special Prosecutor advised that an improved index of Tip 47 would be provided to the defence. To date (Feb 26, 2007), the Special Prosecutor has not provided same.
Undisclosed Witness Statement Pertaining to Two Crown Witnesses
167. One document contained within Tip 47 has been described by the Special Prosecutor as a summary of “an interview with a member of the public who provided the RCMP with his opinion of two witnesses on the condition of anonymity”.
168. During the Project Room review, the Special Prosecutor provided more information about this witness statement. Defence counsel learned that his witness provided information with respect to two Crown witnesses, both of whom will be called at trial. Defence counsel immediately requested disclosure of the witness statement.
169. The Special Prosecutor and RCMP have refused to provide this statement, advising that its disclosure would breach the third party rights of this individual and the two witnesses.
Tip 47 comes up again on the final page of the Notice under the heading Relief Sought:
197 An Order that the Special Prosecutor provide an improved index of Tip 47;
198 An Order that the Special Prosecutor provide the witness statement described by the Special Prosecutor as “an interview with a member of the public who provided the RCMP with his opinion of two witnesses on the condition of anonymity”;
Material rendered in italics is mine….
Thanks very much G West - excellent memory on your part and a very useful addition to the fascinating question regarding witnesses.
Bill, can you tell more on 'the project room', review? This is a very intriging tid bit!
Bill,
I'd just add one further detail which supports the idea that this may or may not be a tempest in a teapot.
The idea that the informer must be in mortal danger of being exposed, harassed or killed - or that he/she is necessarily a paid informer, someone with knowledge of the drug scene, or even a bashful and guilt-wracked member of Campbell’s inside group is not a conclusion upon which anyone should hang their speculative hats.
It is equally plausible to argue that the ‘informer’ of Tip 47 – and I would be willing to wager some money on the fact that the ‘secret witness’ Berardino had in mind in his latest submission to the court IS that informer – is simply someone who provided information to the RCM Police in return for a commitment from the cops to keep her/his identity secret.
The complicating factors here are the possible (if not probable) difficulties which frequently arise when the ‘evidence’ provided by such a secret witness comes to court.
We know, from the material in the ‘Notice’ posted yesterday, that the information proffered by the secret witness (let’s call her – Ms X) pertains to two other “Crown witnesses” …neither of whom have been named either to the public or to defence council.
I think that the Special Prosecutor is not willing to name or identify those two Crown Witnesses either – in all probability because naming them might well endanger the confidentiality agreement the police have with Ms X.
So that’s the mystery:
1. A member of the public, Ms X, who has been promised anonymity [please see this SCC case on the subject and the ratio - R. v. Leipert [1997] 1 S.C.R. 281: - Police-informer privilege ] in return for information about the case, and;
2. Information about two other Crown witnesses (whom the crown presumably wants to call), and whom;
3. If they were identified in open court or even (perhaps) to the defence would, by implication and connection to the matter and the individuals involved, violate the anonymity promise the police made – and have every right to make – to Ms X. (The details of the Leipert case are important here).
I think that’s the whole story – interesting, but not something anyone needs to be that concerned about – I’m sure, among them, the Crown, the judge and defence counsel can find a way to permit the two witnesses to testify (in camera if necessary) without violating Ms X’s anonymity.
Of course the media will want to, and certainly should, dip their oar on the subject...but, the principle of permitting members of the public to make anonymous tips which can later be used to 'help' bring wrong-doers to justice is well-established.
You can read the Leipert case here:
http://www.hrcr.org/safrica/arrested_rights/leipert.html
If I were a wagering person, I'd suggest that 'Ms. X' may not be all that far from being the 'spark' that set this whole business alight some 4 or 5 years ago...which is why 'she's' so important to the disposition of the case.
My idle speculation for a snowy Saturday morning...
Fascinating! Thanks G West for an excellent theory that I have to say makes a lot of sense. And for the SCC references as well.
On the "Project Room" question - the Project Room is, as it suggests, where the RCMP based their investigation and kept a lot of files and documents. The defence fought for a long time to get actual access to the room and to the info therein.
Speaking of secret witness, here's what's happening in the trial of Canadian Omar Khadr at the US military base at Guantanamo Bay, Cuba.
Quite an interesting parallel in some ways.
Witness Names to Be Withheld From Detainee
New York Times
By WILLIAM GLABERSON
Published: December 1, 2007
Defense lawyers preparing for the war crimes trial of a 21-year-old Guantánamo detainee have been ordered by a military judge not to tell their client — or anyone else — the identity of witnesses against him, newly released documents show.
The case of the detainee, Omar Ahmed Khadr, is being closely watched because it may be the first Guantánamo prosecution to go to trial, perhaps as soon as May.
Defense lawyers say military prosecutors have sought similar orders to keep the names of witnesses secret in other military commission cases, which have been a centerpiece of the Bush administration’s policies for detainees at Guantánamo Bay, Cuba.
Some legal experts and defense lawyers said the judge’s order, issued on Oct. 15 without public disclosure, underscored the gap between military commission procedures and traditional American rules that the accused has a right to a public trial and to confront the witnesses against him.
Defense lawyers say the order would hamper their ability to build an adequate defense because they cannot ask their client or anyone else about prosecution witnesses, making it difficult to test the veracity of testimony.
The order, the documents show, followed a request by military prosecutors who said they feared terrorist retaliation against witnesses who appeared at Guantánamo proceedings.
“It is conceivable, if not likely, that Al Qaeda members or sympathizers could attempt to target witnesses,” a prosecutor, Maj. Jeffrey D. Groharing of the Marines, wrote to the judge, Col. Peter E. Brownback III of the Army.
The order says that three weeks before trial, prosecutors can abandon the secrecy protections or ask the judge to extend them. Prosecutors have also suggested that they may ask the judge to bar all information identifying witnesses from the trial. “Providing the witnesses’ true identities will add nothing to their testimony,” the prosecutors wrote in a legal filing.
Mr. Khadr’s military defense lawyer, Lt. Cmdr. William C. Kuebler of the Navy, said that while he has been given a list of prosecution witnesses, the judge’s decision requires him to keep secrets from his client and that he would ask Colonel Brownback to revoke the order. He said it treated Mr. Khadr as if he had already been convicted and deprived him of a trial at which the public could assess the evidence against him.
“Instead of a presumption of innocence and of a public trial,” Commander Kuebler said, “we start with a presumption of guilt and of a secret trial.”
Mr. Khadr, the only Canadian detainee at Guantánamo, is charged with killing an American soldier, giving material support for terrorism and other offenses. The documents released by the Pentagon, nearly 700 pages of previously unavailable records of arguments and rulings in the Khadr case in recent months, reflect a battle under way over how much information is to be revealed in public at the Guantánamo trials.
Full story at:
New York Times
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