Special Prosecutor in Basi-Virk drops bombshell - wants defence, media, public excluded from in-camera hearing on secret witnesses

Special Prosecutor Bill Berardino dropped a bombshell in BC Supreme Court Friday, telling Justice Elizabeth Bennett that he wants defence counsel excluded from attending an application on whether secret witnesses could testify in camera in the Basi-Virk trial.

Defence counsel for David Basi, Bob Virk and Aneal Basi appeared stunned by the submission by Berardino, telling Bennett they will make arguments against their exclusion when the application is made December 3. The media and public would also be excluded.

There was no discussion of who the secret witnesses who do not want to be identified were and outside court Berardino and defence lawyers declined all comment on the issue, citing the justice's ruling in court.

UPDATE

Berardino told reporters after the hearing that he cannot comment in any way on the in-camera secret witness application.

When asked how reporters should find out how to deal with or challenge the possibility of being excluded, Berardino said: "I think like every good citizen, you should consult a lawyer."

Kevin McCullough, defence counsel for Bob Virk, had little more to say.

"With in-camera applications lawyers can't say anything," McCullough said outside the courtroom. "Historically in-camera issues have been around safety issues, organized crime."

In court, McCullough told Bennett that emails from key Crown witness Erik Bornmann which have recently been disclosed to the defence are highly relevant and should have been previously been provided.

"The Bornmann emails are out of this world. There are thousands of them," McCullough said. "How these material were not disclosed before June 4, 2007 will have to be dealt with - I'm trying to be constructive here."

"Dates, times, lobbying connections, what high officials are telling them," McCullough continued.

Michael Bolton, legal counsel for David Basi, told the court the Bornmann emails were highly relevant to their defence, which in part argues that Basi and Virk, both former provincial government ministerial assistants, were merely following the orders of higher ups in government.

In the Basi-Virk case police allege Bornmann bribed Basi and Virk to obtain confidential government documents related to the $1 billion privatization of BC Rail in 2003. Basi and Virk face breach of trust and fraud charges, while Aneal Basi, Dave's cousin and a former government communications officer, faces money laundering charges alleged related to the payment of bribes.

"The emails 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," Bolton said. "This is very critical stuff and we don't know how much more of it there is."

The hearing also dealt at length with ongoing disclosure of evidence problems that have delayed the trial several times.

2nd UPDATE

McCullough told Justice Bennett that the application to exclude defence lawyer 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 to Bennett: "We'll deal with defence counsels' right to be present."

McCullough: "I think we've figured it out...."

Bennett: "No, just don't say anymore."

Bennett had earlier told Berardino, before the request to exclude the defence counsel was made, that the in-camera application would be heard in court on December 3.

"You have to notify the media if you intend to hold an in-camera hearing," Bennett said.

When Berardino seemed to object, Bennett asked him if there was "another issue."

Berardino then passed Bennett a previous case judgement and asked her to read "paragraph 46".

"Yes, there is another issue," he said.

Bennett replied: "I understood you were talking about people we've discussed before. This is something else."

Bennett ended the court session by outlining the upcoming schedule of pre-trial hearings.

Starting December 3 the in-camera application will be heard after, presumably, dealing with the issue of exclusion of defence counsel and media.

Starting December 10 there will be hearings on the issue of provincial government documents where solicitor-client privilege is being claimed.

Starting December 17, depending on the earlier hearings, there may be meetings between the Special Prosecutor and the defence to resolve other disclosure issues.

And starting January 7, 2008 the court will hear arguments on "vetts" of the BC Rail and federal Department of Justice documents - that is, what information should or should not be disclosed to the defence and its relevance to the case.

Of course, one other important date should be mentioned - on December 28 this case celebrates its 4th birthday. On December 28, 2003 the BC Legislature was raided by police in an unprecedented action that has yet to result in a trial.

3rd UPDATE

More on the secret witness issue

The most likely case Special Prosecutor Berardino was referring Justice Bennett to is Named Person v. Vancouver Sun at the Supreme Court of Canada, which rendered a judgement on October 11, 2007.

That case, arising out of the investigation into the bombing of Air India Flight 182 killing all 329 aboard on June 23, 1985.

The issue in question was whether a police informant could give testimony without being identified. That informant was also fighting deportation to a foreign country to face criminal charges there.

Here is part of that Supreme Court of Canada judgement:

"The appellant Named Person informed the judge, during an in camera portion of extradition proceedings, that he was a confidential police informer, and on that basis requested some disclosure from the appellant Attorney General, who was acting on behalf of the state requesting the Named Person’s extradition.

The judge asked the parties for submissions as to whether the proceedings ought to remain in camera and sought the assistance of an amicus curiae.

On the basis of the latter’s submissions, the judge sent a letter to a number of counsel who act for certain media groups, requesting that they attend a hearing on a specified date having filed undertakings of confidentiality and undertakings not to disclose anything learned at the hearing to their clients. A number of counsel for media groups, including the respondents, attended at that hearing.

At a subsequent hearing, the respondents applied for an order that they be allowed to review the documents prepared by the amicus curiae upon filing undertakings of non‑disclosure.

The judge allowed the application and ordered that counsel for the respondents as well as specific representatives of each respondent be allowed to review the amicus documents on each individual filing an undertaking of confidentiality.

The Named Person and the Attorney General appealed that order to this Court."

The section that Special Prosecutor Berardino may have referred Justice Bennett to was Paragraph 46. 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."

So when it comes back to the Basi-Virk case, the question everyone will want to know is clear - who is the confidential informer?

And it should also be noted that there appear to be two separate applications for in-camera witnesses.

Lastly, the Named Person case was deemed important enough that in addition to the Vancouver Sun there were many other media outlets who joined the action. Here are details:

Between:

Named Person and Attorney General of Canada on behalf of the Requesting State
Appellants

v.

The Vancouver Sun, The Province, BCTV, Canadian Broadcasting Corporation, CKNW, CityTv and CTV, a Division of Bell Globemedia Inc.

Respondents

‑ and ‑

Attorney General of Ontario and Law Society of British Columbia

Interveners