Friday, December 11, 2009
Basi-Virk - Testimony on secret informer happens Monday with defence, public, media excluded; will venue change?
Long-awaited testimony about why the identity of a police informer in the BC Rail corruption case must remain secret will happen on Monday December 14 in BC Supreme Court - but the public, media and even defence lawyers will be barred from the hearing.
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TUESDAY UPDATE - Due to illness I was unable to attend Monday afternoon's planned court session - nor an I able to attend Tuesday's hearing either. But you can read reports from my colleagues Ian Mulgrew of the Vancouver Sun and Mark Hume of the Globe and Mail, who both attended.
The shorthand version is that in the morning Justice Anne MacKenzie heard from Special Prosecutor Bill Berardino about why information about the secret witness could only be discussed in the absence of defence lawyers, media and the public - and MacKenzie agreed.
The hearing continued in the afternoon in open court, and will again today, to discuss other disclosure issues where the Crown is also asserting "informant privilege" in connection to drug investigations it says are not relevant to the Basi-Virk case.
WEDNESDAY UPDATE - I'm still sick but Mark Hume of the Globe and Mail and Robin Mathews for The Legislature Raids have both reported on the court hearing Tuesday - where allegations that David Basi was laundering drug money through the Liberal Party were strongly denied by his lawyer Michael Bolton.
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Only Special Prosecutor Bill Berardino and his legal team and Justice Anne MacKenzie will be in the courtroom, thanks to a decision Berardino won in the Supreme Court of Canada last month that overturned two lower BC court decisions.
And for the first time it was learned that the defence representing David Basi, Bob Virk and Aneal Basi may ask that the venue of the trial be moved from Vancouver to an undisclosed new location, most likely Victoria.
Lawyer Michael Bolton, representing David Basi, also dismissed speculation I have heard the defence might drop its applications to throw the entire case out of court for abuse of process and delay of trial.
"Pure rumour," Bolton told me outside court, while declining further comment.
In fact, in court Berardino and defence lawyers received MacKenzie's approval to being hearing a defence Section 11B application to have the ase dismissed because the Charter of Rights guarantees the accused access to trial without unreasonable delay.
Bolton also declined to discuss the possible change of venue motion, which could make media coverage of the complex trial difficult after nearly six years of pre-trial hearings in Vancouver.
The defendants all live in Victoria, as does Virk's lawyer Kevin McCullough but all other legal counsel are based in Vancouver.
The venue change could be connected to a possible change in the mode of trial from judge only to judge and jury, with jury selection in Vancouver potentially more difficult due to media coverage of the case. However, with Internet access to most reporting, that argument may fall flat if made.
In court Janet Winteringham of the Special Prosecutor team told MacKenzie that as part of the case management discussion around remaining issues on the secret informer question: "We will be discussing the Kevin DeBruyckere April 4, 2007 affidavit."
DeBruyckere is the senior RCMP officer involved in the investigation who also happens to be the brother-in-law of BC Liberal Party Executive Director Kelly Reichert.
The defence has repeatedly raised this issue, with the Crown responding that DeBruyckere disclosed the relationship to his superiors in an appropriate manner.
Reichert, the defence alleges, had conversations with Basi about political dirty tricks, hired Basi through the party for $20,000 to conduct "media monitoring" work and that RCMP wire taps heard Basi and Reichert discussing radio show appearances by Premier Gordon Campbell.
Reichert, the defence alleges, also told Campbell that the RCMP were recommending additional criminal charges against Basi but that the BC Liberal Party had asked the RCMP to not press the charges.
These allegations made in court are, of course, unproven and have not been subject to cross-examination.
Berardino also told MacKenzie that he and the defence have agreed to timing on a defence application that challenges the authorization of search warrants, with submissions to be made in January and a hearing to start February 1.
The pre-trial hearing resumes Monday December 14 at 2 p.m. - the open to the defence, public and media part that is - with arguments on issues related to the secret witness situation.