BASI-VIRK: Special Prosecutor wins appeal on secret witness at Supreme Court of Canada; defence, media public to be excluded from hearing testimony

Basi-Virk Special Prosecutor Bill Berardino has won a landmark appeal in the Supreme Court of Canada this morning when the court overturned two BC lower court rulings on the issue of secret witness testimony in the BC Rail corruption case.

The Supreme Court of Canada's decision means testimony about why a police informer must have his or her identity protected will take place with defence counsel, media and the public all excluded - leaving only trial judge Anne MacKenzie and the Special Prosecutor team present in BC Supreme Court.

The decision also means the trial of David Basi, Bob Virk and Aneal Basi will proceed as early as January 2010 - unless defence lawyers are successful in having it dismissed with an abuse of process motion they plan to introduce soon.

Former BC Liberal government ministerial assistants David Basi and Virk face breach of trust and fraud charges over allegations they provided confidential information about the $1 billion privatization of BC Rail in 2003 to lobbyists acting for a bidder in exchange for money and other benefits. Aneal Basi,a former government communications staffer and cousing of David Basi, faces money laundering charges related to the case.

The case exploded into public view when police raided the BC Legislature in an unprecedented search for evidence on December 28, 2003 but the case has been repeatedly delayed from going to trial over disclosure of evidence issues. Defence lawyers say there are now "millions" of pages of evidence.

The 7-0 decision by the Supreme Court of Canada's justices is a blow to the defence, which strongly objected to being excluded even from any discussion in court as to why the police informer's identity had to be so rigorously protected.

It is also likely an unwelcome decision for the BC Liberal government of Premier Gordon Campbell, as there was a possibility that without the secret witness' testimony, Berardino might have decided the case could not proceed. Berardino hinted at that previously but later said he would go ahead regardless of how the Supreme Court of Canada ruled.

Berardino was successful in having former Justice Elizabeth Bennett's original decision and a subsequent BC Court of Appeal ruling backing that decision overturned. Bennett was promoted to the Court of Appeal earlier this year and replaced by MacKenzie.

UPDATE 1: BC NDP MLA Leonard Krog says the Supreme Court of Canada decision contains both good and bad news.

"The good news is there's a much better chance that this case goes to trial. The truth has to come out," Krog, critic for the Attorney General, said in an interview.

"But as a lawyer, officer of the court and citizen, it's bad news that not even the accused's legal counsel can be present in court for testimony," he said.

UPDATE 2: Special Prosecutor Bill Berardino says he is pleased with the Supreme Court of Canada decision.

"As a lawyer you receive favourable decisions and accept them and unfavourable decisions and accept them - this is a favourable decision from the Crown's perspective," Berardino said in an interview.

But Berardino declined to comment on the issue of how the secret witness testimony would proceed or if it would have any impact on defence motions to have the case thrown out for abuse of process.

Berardino also told Canadian Press that although there was speculation the Crown would have to drop the case if the Supreme Court upheld lower court ruling, he was confident informer privilege would be upheld.

"We have from the very beginning in terms of our legal analysis is that the position we've taken has been a correct position in law and therefore we never thought we would have to discontinue the case," Berardino said.

UPDATE 3: Defence lawyer Michael Bolton says the Supreme Court of Canada ruling will not impact abuse of process applications that seek to have the case thrown out of court, nor will it stop defence disclosure requests.

"We've read and considered the court's ruling. We will continue with our disclosure request connected with informer privilege claims. The Supreme Court of Canada has laid done some guidelines to be followed by trial judges," said Bolton, who represents David Basi.

"The court has not closed off other avenues through which the judge can safeguard the interests of the accused," Bolton added.

Both defence and Crown will be back in court Tuesday November 24 to discuss the timing of the defence applications, one based on delay of the trial and another on other claims of abuse of process, he said.

The Supreme Court of Canada ruling makes clear informer privilege is a difficult issue:

"Where a hearing is required to resolve a Crown claim of privilege, the accused and defence counsel should therefore be excluded from the proceedings only when the identity of the confidential informant cannot be otherwise protected. And, even then, only to the necessary extent. In determining whether the claim of privilege has been made out, trial judges should make every effort to avoid unnecessary complexity or delay, without compromising the ability of the accused to make full answer and defence," Justice Morris Fish wrote in delivering the ruling.

And the decision throws the issue of how to deal with the secret witness testimony back to Justice Mackenzie:

"In the present case, permitting defence counsel to make submissions and to propose questions to be put by the court to the witness at the ex parte hearing might well have been appropriate. The trial judge, however, will be in a better position to decide how best to craft safeguards that mitigate any potential unfairness arising from the ex parte nature of the proceedings. The adoption of appropriate initiatives is therefore best left to the trial judge," the court ruled.

But the judges made clear Bennett's ruling, and a 2-1 decision to uphold it by the BC Court of Appeal, were wrong. As Justice Fish wrote for the court:

"The limit that concerns us here is a function of the “informer privilege”, which prohibits disclosure of the identity of confidential informants.

More particularly, we are required to decide whether the trial judge erred in permitting defence counsel to attend the in camera hearing sought by the Crown to establish its claim of informer privilege. With respect, I believe that she did.

The judge’s order was intended to safeguard the privilege by prohibiting defence counsel from disclosing to anyone, including the accused — their own clients — anything they learned at the hearing.

In fact, however, the order exposed the privilege to imminent demise, since information tending to reveal the identity of the putative informer was bound to be revealed in the course of the hearing. Defence counsel would thus have been made privy to what the informer privilege is meant to deny them," the ruling states.

Here is the summary of the decision set down by the Supreme Court's justices, which heard the appeal on April 22, 2009:

"The accused were charged with corruption, fraud, and breach of trust under the Criminal Code.

Given that some material produced on an application for disclosure had been blacked out, defence counsel applied for “unredacted” copies.

The Crown objected, claiming informer privilege. The Crown contended that the claim could not be properly established without live testimony by a police officer, and insisted on an in camera and ex parte hearing.

Defence counsel objected to the ex parte nature of the hearing and applied for permission to attend, without their clients.

When the trial judge held that defence counsel could participate fully in the in camera hearing so long as they were subject to a court order and undertakings, the Crown invoked s. 37 of the Canada Evidence Act (“CEA”), which provides for non‑disclosure where a public interest is at stake.

The trial judge affirmed her previous decision, and the Court of Appeal, in a majority decision, dismissed the Crown’s appeal made pursuant to s. 37.1 CEA and upheld the trial judge’s ruling.

The Crown then appealed to this Court on the issue of whether the trial judge erred in permitting defence counsel to attend the in camera hearing, and the accused cross‑appealed on the issue of whether the Court of Appeal had jurisdiction to hear the Crown’s appeal.

Held: The appeal should be allowed and the cross‑appeal dismissed.

While everyone charged with a criminal offence in Canada is constitutionally entitled to full and timely disclosure of all relevant material under the control of the Crown, the entitlement to disclosure is neither absolute nor unlimited.

Where informer privilege has been claimed by the Crown, an accused’s constitutional right to make full answer and defence does not alone trigger an exception to the privilege.

It is only where innocence is at stake that the privilege yields and information tending to reveal the identity of the informant can be disclosed.

The strictness of the privilege is not relaxed when s. 37 CEA is invoked to protect it, and the privilege is not amenable to the sort of public interest balancing contemplated by s. 37(5).

No one outside the circle of privilege may access information over which the privilege has been claimed until a judge has determined that the privilege does not exist or that an exception applies.

It follows that the trial judge erred in permitting defence counsel to attend the in camera hearing to determine the existence of an informer privilege where, in the course of the hearing, information tending to reveal the identity of the putative informer is bound to be revealed.

However, where a hearing is required to resolve a Crown claim of privilege, the accused and defence counsel should be excluded from the proceedings only when the identity of the confidential informant cannot be otherwise protected.

And, even then, only to the necessary extent. The trial judge will be in a better position to decide how best to craft safeguards that mitigate any potential unfairness arising from the ex parte nature of the proceedings.

Lastly, s. 650 of the Criminal Code applies only to the presence of the accused at trial and has no application to the trial judge’s decision under s. 37 CEA. An application under s. 37 is a discrete proceeding, separate from and only ancillary to the criminal trial, and is therefore not caught by s. 650. [1] [23] [34] [43‑44] [50] [53] [58]
The trial judge’s decision amounted to a “disclosure order” within the meaning of s. 37.1 CEA and the Court of Appeal had jurisdiction to hear the Crown’s appeal.

The inevitable result of the trial judge’s decision was to require the Crown to reveal to defence counsel information over which the informer privilege had been claimed.

As defence counsel are outside the “circle of privilege”, permitting them access to this information — even subject to court orders and undertakings — constitutes inevitable disclosure of the information.

While the trial judge sought to restrict this disclosure of privileged information to defence counsel by prohibiting them from sharing it with any one else, her decision constituted an order of disclosure nonetheless.

Furthermore, the trial judge clearly stated that her decision was subject to immediate appeal under the CEA. [16] [30] [32]"


MORE to come....

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