Basi-Virk: Defence application to throw out charges begins January 11, 2010; RCMP notes can be kept private by Crown

The long-delayed trial of three former BC Liberal government aides could be thrown out of court early next year whan a defence application to have corruption charges stayed on the grounds of unreasonable delay begins January 11 at 10 a.m. in BC Supreme Court.

David Basi, Bob Virk and Aneal Basi will mark the 6th anniversary of the police raid on the BC Legislature on December 28, 2003 still waiting to have their day in court to defend themselves, leading their lawyers to believe they have suffered unreasonable delay and the charges should be stayed.

But as unfortunate and indeed unfair as that is to the accused, in my opinion, the defence's Charter of Rights Section 11(b) application will likely fail.

That is because of a recent precedent setting case in Ontario that saw the Court of Appeal for Ontario overturn an Ontario Superior Court of Justice decision to stay charges in a case that would had gone 56 months before the trial could have been completed.

As I have previously written:

* * * * *
October 29, 2009

The Ontario Court of Appeal overturned a lower court judge's decision to stay charges against five drug squad police officers because of the "unreasonable" delays in bringing their case to court.

"There was no unreasonable delay in this case. This complex case proceeded at the pace contemplated and dictated by the parties," the three member panel of justices decided.

"Admittedly, 56 months is a lengthy period of time, but it was not unreasonable These are very serious charges."

"This case proceeded slowly, but it also proceeded at the pace dictated by its complexity and the actions of all the parties," Justice David Doherty, Justice Marc Rosenberg and Justice Michael Moldaver wrote in their decision.

"Far from this being a case where the vast majority of the 56 months passed because of the Crown's failure to make full disclosure, virtually none of the time can be so characterized," they wrote. "This was a complex case that required and would require significant expenditures of court time."

[The five officers were charged in January 2004 with attempting to obstruct justice, perjury, assault and extortion. They are accused of falsifying notes, robbing and beating drug dealers, and conducting illegal searches between 1997 and 2002.]

In other words, 56 months delay - almost five years - is not sufficient for a stay of charges in a complex case.

* * * * *

In addition to the above, a re-reading of the Appeal Court judgment adds this interesting and clearly relevant line:

"The case also posed unique problems because of the involvement of confidential informants as witnesses, which led to the need for editing and vetting of disclosure materials," the ruling states.

THIS PAST WEEK'S DEVELOPMENTS

I have unfortunately been too ill this past week to attend any court hearings but my colleagues Keith Fraser of the Province newspaper, Mark Hume of the Globe and Mail and Robin Mathews of The Legislature Raids have filed interesting reports on the proceedings, as linked in this paragraph.

The two main developments are the scheduling of the Charter applications detailed above and Justice Anne MacKenzie's decision rejecting a defence request that over 400 RCMP source witness debriefing that have not been disclosed to them be reviewed by the court.

Lastly, watch this space on December 28 for an article marking the 6th Anniversary of the police Raid on the BC Legislature - a story I have been following since the day it happened!
.