Krog today called on Oppal to use his authority under the Crown Counsel Act to stop further delays in the case of three ex-BC Liberal aides facing corruption charges by directing Special Prosecutor Bill Berardino to drop his attempt to overturn rulings by the BC Supreme Court and the BC Court of Appeal over the issue of a secret witness who is a police informant.
Berardino objects to a ruling by BC Supreme Court Justice Elizabeth Bennett, who decided earlier this year that defence lawyers could be present in the court for an explanation by the Crown as to why it wants a police informer to testify in secret. Even that explanation could lead to the defence identifying the informer, Berardino unsuccessfully argued, and not being able to call the secret witness might mean the entire trial could not proceed.
“Serious disclosure issues, the Campbell government’s privilege applications and its chronic unwillingness to cooperate with the B.C. Rail investigation have plagued this trial right from the beginning. And now, special prosecutor Bill Berardino’s latest move to appeal a B.C. Court of Appeal decision on a secret witness can further delay the trial by up to a year,” said Krog.
David Basi, former aide to then-Finance Minister Gary Collins and Bob Virk, former aide to then-Transportation Minister Judith Reid, both face breach of trust and fraud charges in which is it alleged they provided confidential government documents about the $1 billion privatization of BC Rail to lobbyist Erik Bornmann, who was acting for bidder OmniTRAX at the time. Aneal Basi, a communications officer and David's cousin, is accused of money laundering related to payments made in the case.
“The public interest in getting this trial off the ground far outweighs the other considerations. In light of this, attorney general Wally Oppal must use his legal authority and direct the special prosecutor to drop his appeal to the Supreme Court of Canada. The general public would be much better served in getting the trial underway instead of spending months protecting the identity of a secret witness,” Krog said, citing Section 7 of the Crown Counsel Act.
But outside BC Supreme Court, where a hearing over a proposed publication ban and media objections has concluded, David Basi's lawyer Michael Bolton did not support Krog's call for Attorney-General Wally Oppal to order Berardino drop the appeal.
"It would be highly unusual for the Attorney-General to get involved at this stage," Bolton said. "Other than that I have no comment."
Berardino, in a telephone interview late today, also disagreed with Krog's position. And he said he has asked the Supreme Court of Canada to expedite his appeal in order not to delay the trial.
"Informer privilege is fundamental to the administration of justice and the investigation of crime," he said. "Informer privilege required legal obligations of the court, the Crown and the police and that is not to breach the law of informer privilege."
"Four judges have made four judgements on this issue - the trial judge [Justice Elizabeth Bennett], Justice [Catherine] Ryan [of the BC Court of Appeal, who dissented from the majority decision to reject Berardino's appeal], Chief Justice [Lance] Finch [who upheld Bennett's original ruling against Berardino] and Justice [Ian] Donald [who also upheld Bennett's decision with his own reasons]," Berardino said.
"I would be remiss in not seeking to clarify the lawy in regard to the oustanding judgements to ensure the court, the Crown and the police do not breach the law," he said.
"I'm asking the Supreme Court of Canada to expedite their process so that there will be no delay in the trial," Berardino concluded.
But told of the reaction to his request late Friday, Krog remained undeterred.
"Denying the application for defence counsel to be present is something that goes against the rights of the accused to a fair trial," Krog said by telephone from Nanaimo.
"Taking this to the Supreme Court of Canada will create a significant delay. This issue can be litigated at a later date to see if informer privilege outweighs the rights of the accused, the public interest or whatever," he said.
Krog cited Section 7 of the Crown Counsel Act in suggestion the Attorney-General intervene. That section states:
7(4) If, after a special prosecutor receives the mandate under subsection (2), the Attorney General, Deputy Attorney General or ADAG gives a direction to a special prosecutor in respect of any matter within the mandate of the special prosecutor, that direction must be given in writing and be published in the Gazette.
Meanwhile, media lawyers Roger McConchie and Ludmila Herbst concluded arguments in front of Justice Elizabeth Bennett against a proposed order that would impose a publication ban on about 90 government documents related to the BC Rail deal which the defence is seeking to review and possible use in the trial. McConchie was representing the Globe and Mail newspaper and CTV, while Herbst represented the Vancouver Sun and Province newspapers and Global TV.
Yesterday McConchie suggested the provincial cabinet was trying to impose a "secrecy package" to block public access to the documents.
The defence and government have reached an agreement on access to the documents, which meant both sides argued in court against the media lawyers' requests.
After hearing further arguments and replies from government lawyer George Copley and defence lawyers, Bennett reserved judgement until Friday July 25 at 9 a.m.
Outside court McConchie was encouraged that Bennett had not issued an immediate ruling, despite the fact that both the government and defence opposed his arguments.
"It's clear from the fact that she has reserved judgement until next Friday that this raises issues that are not simple," McConchie said. "They are complex issues of privilege which even to most lawyers are exotic."
McConchie, who has practised law for more than 30 years and has represented the media many times in seeking access to court documents and information, said he was not surprised the defence did not agree with his and Herbst's position.
"Defence lawyers want access to those documents, so I didn't expect their support," he said.