Bill Tieleman’s 24 Hours Column
Tuesday November 27, 2007
Basi-Virk takes a bizarre turn
By BILL TIELEMAN
The strangest twist in the long-awaited B.C. legislature raid case has seen the Crown apply to have three secret witnesses testify in the breach of trust, fraud and money laundering trial.
And special prosecutor Bill Berardino wants the application for one of the witnesses to be heard without even defence lawyers present - a highly unusual situation last seen in the Air India bombing trial when a police informant wanted on criminal charges in a foreign country wanted to avoid identification.
Berardino asked B.C. Supreme Court Justice Elizabeth Bennett to hold a secret hearing that would exclude defence lawyers, the media and the public in the trial of three former provincial government aides.
Lawyers for David Basi, Bob Virk and Aneal Basi seemed stunned Friday when Berardino said he wanted even the defence absent from a hearing Dec. 3 to consider hearing testimony from a witness without identifying them.
There was no discussion on why the defence would be excluded and outside court Berardino and defence lawyers declined comment.
In court, Berardino referred Bennett to "paragraph 46" of an unidentified judgment that is likely Named Person v. Vancouver Sun, where a criminal informer in the Air India bombing wanted to testify without being named.
The court also heard Virk's defence lawyer Kevin McCullough describe e-mails recently obtained from key Crown witness and former provincial lobbyist Erik Bornmann as "out of this world."
Basi's lawyer Michael Bolton said the e-mails: "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 ... passing information to key members of the premier's inner circle."
Bornmann is alleged by police to have bribed David Basi and Virk to obtain confidential government documents related to the $1 billion privatization of BC Rail in 2003. Aneal Basi is alleged to have forwarded money from Bornmann to his cousin David.
The secret witness issue drew an immediate reaction from the defence.
McCullough told Bennett that the application to exclude defence lawyers 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 said to Bennett: "We'll deal with defence counsels' right to be present."
McCullough then said: "I think we've figured it out...."
But Bennett cut him off: "No, just don't say anymore."
Will the public ever learn who wants to testify without being named? Or why?
Stay tuned for "I've Got A Secret" at B.C. Supreme Court starting Dec. 3.
Tuesday, November 27, 2007
Monday, November 26, 2007
Erik Bornmann "out of this world" emails, secret witness hearing without defence lawyers - Basi-Virk revisited
Railgate: Unearthed E-mails 'Out of this World' Says Defence
'Very critical stuff' from premier's 'inner circle.'
View full article and comments here: http://thetyee.ca/News/2007/11/26/Railgate/
By Bill Tieleman
Published: November 26, 2007
TheTyee.ca
NOTE: This Tyee article is a revised version of earlier reports posted on http://billtieleman.blogspot.com/ on Friday in several sections.
Special Prosecutor Bill Berardino dropped a bombshell in B.C. Supreme Court Friday, asking Justice Elizabeth Bennett to exclude defence counsel from attending an application on whether secret witnesses could testify in camera in the B.C. legislature raid trial.
Lawyers 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 Dec. 3. The media and public would also be excluded.
And a defence lawyer described thousands of e-mails obtained from key Crown witness and former provincial lobbyist Erik Bornmann as "out of this world."
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.
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."
Vague allusions
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.
After reading the document Bennett replied: "I understood you were talking about people we've discussed before. This is something else."
The most likely case Special Prosecutor Berardino was referring Bennett to is Named Person v. Vancouver Sun at the Supreme Court of Canada, which rendered a judgement on Oct. 11, 2007. Several media outlets joined forces in an effort to identify a secret witness.
That case arose out of the investigation into the bombing of Air India Flight 182 that killed 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.
McCullough told Bennett that the application to exclude defence lawyers 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.
Michael Bolton (legal counsel for David Basi) 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."
Bornmann e-mails 'out of this world'
The secret witness issue wasn't the only new ground broken in the hour-long session.
In court, McCullough told also Bennett that e-mails from key Crown witness Bornmann, which have recently been disclosed to the defence, are highly relevant and should have been previously provided.
"The Bornmann e-mails are out of this world. There are thousands of them," McCullough said. "How these materials 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.
'Premier's office inner circle'
Michael Bolton told the court the Bornmann e-mails 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 e-mails 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. "Passing information to key members of the premier's inner circle. This is very critical stuff and we don't know how much more of it there is."
'Confidential informer'?
But it was the issue of excluding even defence lawyers from an in-camera hearing that drew the most attention in court.
The "Paragraph 46" that Special Prosecutor Berardino referred Justice Bennett to was almost certainly from Named Person v. Vancouver Sun. 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.
That leaves some obvious questions -- is there a "confidential informer" who supplied police with evidence of wrong doing? And who is that person? Are they involved in other criminal activities, as the Air India informant was?
And it should also be noted that there appear to be two separate applications for in-camera witnesses, with previous mention of applications coming at the last pre-trial hearing, Nov. 16.
There was no mention of excluding defence counsel at that time and Justice Bennett clearly appears to say that there are different applications to be heard.
Pre-trial calendar
The pre-trial hearing also dealt at length with ongoing disclosure of evidence problems that have delayed the trial several times.
Bennett ended the court session by outlining the upcoming schedule of pre-trial hearings.
Starting Dec. 3 the in-camera application will be heard after, presumably, dealing with the issue of exclusion of defence counsel, media and the public. Bennett is expected to hear media arguments against banning reporting and attending the hearing.
Starting Dec. 10 there will be hearings on the issue of provincial government documents where solicitor-client privilege is being claimed.
Starting Dec. 17, depending on the earlier hearings, there may be meetings between the Special Prosecutor and the defence to resolve other disclosure issues.
And starting Jan. 7, 2008 the court will hear arguments on "vets" 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 Dec. 28 this case celebrates its 4th birthday.
On Dec. 28, 2003 the B.C. Legislature was raided by police in an unprecedented action that has yet to result in a trial.
Related Tyee stories:
Railgate: Judge Blows Stack 25,000 new pages of evidence; defence pursues dismissal.
Basi, Virk 'Hung Out to Dry': Lawyer But Crown says aides acted on their own.
Spiderman in a Web of Intrigue The Basi-Virk-BC Rail probe may yield BC's biggest scandal yet. If so, meet the Crown's mysterious star witness: 'Spiderman' Erik Bornman.
What is the B.C. legislature raid case?
Also known as "Basi-Virk," it stems from an unprecedented search of the B.C. legislature on Dec. 28, 2003, that police at the time ominously linked to drug dealing, organized crime and corruption said to extend to the highest levels of government.
Subsequently it became clear the search was in fact connected to the $1 billion privatization of B.C. Rail by BC Liberal Premier Gordon Campbell.
Two former ministerial aides -- David Basi and Bob Virk -- now face charges of breach of trust and fraud for allegedly passing confidential government documents on to lobbyists representing OmniTRAX, one of the corporations that bid for B.C. Rail. Aneal Basi, a former government communications aide and cousin to David Basi, faces money laundering charges.
The case has exposed the extensive political connections between the B.C. and federal Liberal parties, provincial lobbyists, the leadership campaign of former Liberal prime minister Paul Martin and even the RCMP.
The B.C. legislature raid case is currently in the pre-trial defence application stage at B.C. Supreme Court. The trial itself is expected to last six months or more and call dozens of witnesses, including powerful former B.C. Liberal cabinet ministers, political staff, lobbyists and many others.
-- Bill Tieleman
'Very critical stuff' from premier's 'inner circle.'
View full article and comments here: http://thetyee.ca/News/2007/11/26/Railgate/
By Bill Tieleman
Published: November 26, 2007
TheTyee.ca
NOTE: This Tyee article is a revised version of earlier reports posted on http://billtieleman.blogspot.com/ on Friday in several sections.
Special Prosecutor Bill Berardino dropped a bombshell in B.C. Supreme Court Friday, asking Justice Elizabeth Bennett to exclude defence counsel from attending an application on whether secret witnesses could testify in camera in the B.C. legislature raid trial.
Lawyers 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 Dec. 3. The media and public would also be excluded.
And a defence lawyer described thousands of e-mails obtained from key Crown witness and former provincial lobbyist Erik Bornmann as "out of this world."
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.
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."
Vague allusions
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.
After reading the document Bennett replied: "I understood you were talking about people we've discussed before. This is something else."
The most likely case Special Prosecutor Berardino was referring Bennett to is Named Person v. Vancouver Sun at the Supreme Court of Canada, which rendered a judgement on Oct. 11, 2007. Several media outlets joined forces in an effort to identify a secret witness.
That case arose out of the investigation into the bombing of Air India Flight 182 that killed 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.
McCullough told Bennett that the application to exclude defence lawyers 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.
Michael Bolton (legal counsel for David Basi) 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."
Bornmann e-mails 'out of this world'
The secret witness issue wasn't the only new ground broken in the hour-long session.
In court, McCullough told also Bennett that e-mails from key Crown witness Bornmann, which have recently been disclosed to the defence, are highly relevant and should have been previously provided.
"The Bornmann e-mails are out of this world. There are thousands of them," McCullough said. "How these materials 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.
'Premier's office inner circle'
Michael Bolton told the court the Bornmann e-mails 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 e-mails 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. "Passing information to key members of the premier's inner circle. This is very critical stuff and we don't know how much more of it there is."
'Confidential informer'?
But it was the issue of excluding even defence lawyers from an in-camera hearing that drew the most attention in court.
The "Paragraph 46" that Special Prosecutor Berardino referred Justice Bennett to was almost certainly from Named Person v. Vancouver Sun. 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.
That leaves some obvious questions -- is there a "confidential informer" who supplied police with evidence of wrong doing? And who is that person? Are they involved in other criminal activities, as the Air India informant was?
And it should also be noted that there appear to be two separate applications for in-camera witnesses, with previous mention of applications coming at the last pre-trial hearing, Nov. 16.
There was no mention of excluding defence counsel at that time and Justice Bennett clearly appears to say that there are different applications to be heard.
Pre-trial calendar
The pre-trial hearing also dealt at length with ongoing disclosure of evidence problems that have delayed the trial several times.
Bennett ended the court session by outlining the upcoming schedule of pre-trial hearings.
Starting Dec. 3 the in-camera application will be heard after, presumably, dealing with the issue of exclusion of defence counsel, media and the public. Bennett is expected to hear media arguments against banning reporting and attending the hearing.
Starting Dec. 10 there will be hearings on the issue of provincial government documents where solicitor-client privilege is being claimed.
Starting Dec. 17, depending on the earlier hearings, there may be meetings between the Special Prosecutor and the defence to resolve other disclosure issues.
And starting Jan. 7, 2008 the court will hear arguments on "vets" 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 Dec. 28 this case celebrates its 4th birthday.
On Dec. 28, 2003 the B.C. Legislature was raided by police in an unprecedented action that has yet to result in a trial.
Related Tyee stories:
Railgate: Judge Blows Stack 25,000 new pages of evidence; defence pursues dismissal.
Basi, Virk 'Hung Out to Dry': Lawyer But Crown says aides acted on their own.
Spiderman in a Web of Intrigue The Basi-Virk-BC Rail probe may yield BC's biggest scandal yet. If so, meet the Crown's mysterious star witness: 'Spiderman' Erik Bornman.
What is the B.C. legislature raid case?
Also known as "Basi-Virk," it stems from an unprecedented search of the B.C. legislature on Dec. 28, 2003, that police at the time ominously linked to drug dealing, organized crime and corruption said to extend to the highest levels of government.
Subsequently it became clear the search was in fact connected to the $1 billion privatization of B.C. Rail by BC Liberal Premier Gordon Campbell.
Two former ministerial aides -- David Basi and Bob Virk -- now face charges of breach of trust and fraud for allegedly passing confidential government documents on to lobbyists representing OmniTRAX, one of the corporations that bid for B.C. Rail. Aneal Basi, a former government communications aide and cousin to David Basi, faces money laundering charges.
The case has exposed the extensive political connections between the B.C. and federal Liberal parties, provincial lobbyists, the leadership campaign of former Liberal prime minister Paul Martin and even the RCMP.
The B.C. legislature raid case is currently in the pre-trial defence application stage at B.C. Supreme Court. The trial itself is expected to last six months or more and call dozens of witnesses, including powerful former B.C. Liberal cabinet ministers, political staff, lobbyists and many others.
-- Bill Tieleman
Friday, November 23, 2007
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
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
Wednesday, November 21, 2007
More questions raised in Legislature on relationship between ex-DM Finance Paul Taylor and lobbyists Erik Bornmann, Brian Kieran
NDP MLA Leonard Krog questions Finance Minister Carole Taylor in BC Legislature today over the relationship between Basi-Virk lobbyists turned Crown witnesses and Paul Taylor, former Deputy Minister of Finance and now ICBC CEO
The following is from draft transcripts of Hansard from today's Question Period.
KPMG REPORT ON ACTIONS OF PAUL TAYLOR
Leonard Krog: Over a month ago the government released only a summary reporting letter from KPMG into the activities of Mr. Paul Taylor and the B.C. Automobile Dealers Association.
[DRAFT TRANSCRIPT ONLY]
In this House on May 29, the Premier promised that the full review, the terms of reference, the documentation, the process undertaken, the steps taken and the full report will be made available on completion of the review.
The summary reporting letter does not meet the Premier's promised standard. It is quite simply a whitewash, and so my question is very simple. Will the Minister of Finance live up to the government's promise to this House and direct forthwith the release of the full KPMG report as promised?
Hon. Carole Taylor: As has been said in this House, when the proper FOI process has been completed, information will be released.
[DRAFT TRANSCRIPT ONLY]
Mr. Speaker: The member has a supplemental.
Leonard Krog: It's very clear that that process appears to be more of a delaying tactic than a process.
The opposition has received a further relevant e-mail dated January 27, 2003, from Mr. Kieran to Mr. Bornman, part of which reads: "Just got a call from Paul Taylor's wife. She is his message bearer. He suggests we get Omnitrax together with Larry Blain, the new CEO of Partnerships B.C., the P3 agency that Paul engineered. Larry is on holiday at the moment. Paul says all partnerships with government including BCR will be funded by Partnerships. We'll put this together next week."
This clearly shows that the real issue is the relationship between Mr. Taylor and Pilothouse, which KPMG was not instructed to investigate. This e-mail shows that Mr. Taylor was providing Pilothouse with a range of information dealing with the most sensitive and confidential government matters.
Will the Minister of Finance do the right thing and launch today a full inquiry with real powers to investigate the activities of Mr. Taylor?
Hon. Carole Taylor: When the information came forward to the Premier's office, an investigation was launched with KPMG, a reputable firm. They found in their results that, in fact, there was no wrongdoing by Mr. Taylor.
If any new information is available, I would suggest that the opposition make it available to the Premier's office.
The following is from draft transcripts of Hansard from today's Question Period.
KPMG REPORT ON ACTIONS OF PAUL TAYLOR
Leonard Krog: Over a month ago the government released only a summary reporting letter from KPMG into the activities of Mr. Paul Taylor and the B.C. Automobile Dealers Association.
[DRAFT TRANSCRIPT ONLY]
In this House on May 29, the Premier promised that the full review, the terms of reference, the documentation, the process undertaken, the steps taken and the full report will be made available on completion of the review.
The summary reporting letter does not meet the Premier's promised standard. It is quite simply a whitewash, and so my question is very simple. Will the Minister of Finance live up to the government's promise to this House and direct forthwith the release of the full KPMG report as promised?
Hon. Carole Taylor: As has been said in this House, when the proper FOI process has been completed, information will be released.
[DRAFT TRANSCRIPT ONLY]
Mr. Speaker: The member has a supplemental.
Leonard Krog: It's very clear that that process appears to be more of a delaying tactic than a process.
The opposition has received a further relevant e-mail dated January 27, 2003, from Mr. Kieran to Mr. Bornman, part of which reads: "Just got a call from Paul Taylor's wife. She is his message bearer. He suggests we get Omnitrax together with Larry Blain, the new CEO of Partnerships B.C., the P3 agency that Paul engineered. Larry is on holiday at the moment. Paul says all partnerships with government including BCR will be funded by Partnerships. We'll put this together next week."
This clearly shows that the real issue is the relationship between Mr. Taylor and Pilothouse, which KPMG was not instructed to investigate. This e-mail shows that Mr. Taylor was providing Pilothouse with a range of information dealing with the most sensitive and confidential government matters.
Will the Minister of Finance do the right thing and launch today a full inquiry with real powers to investigate the activities of Mr. Taylor?
Hon. Carole Taylor: When the information came forward to the Premier's office, an investigation was launched with KPMG, a reputable firm. They found in their results that, in fact, there was no wrongdoing by Mr. Taylor.
If any new information is available, I would suggest that the opposition make it available to the Premier's office.
Tuesday, November 20, 2007
Vancouver Airport Authority also responsible but not accountable for Taser death of Robert Dziekanski
Bill Tieleman’s 24 Hours Column
Tuesday November 20, 2007
Who Polices YVR?
By BILL TIELEMAN
"This is how Robert felt for over nine hours at the airport: lost, confused, thirsty and hungry, and ignored by all."
- Family friend Jurek Baltakis
The RCMP has rightly been severely criticized for the Tasering of Robert Dziekanski, the Polish man seeking a new life in Canada and instead finding death in custody at Vancouver airport.
However wrong the actions of the RCMP were, they will be held accountable - in Parliament and by voters, who can remove the RCMP's political bosses in the next election.
But another organization responsible for Dziekanski's tragic death can't be held accountable at all - the Vancouver Airport Authority.
That's because the authority, or YVR, is a bizarrely structured body that does not report to either the federal or provincial governments and is ruled by a board of directors appointed in part by business groups and organizations with no responsibility to voters.
That total lack of accountability was clear when YVR president and CEO Larry Berg refused interviews for three weeks.
Yet Dziekanski would be alive today if someone at YVR had found a way to communicate with him, if they had answered his mother Zofia Cisowski's desperate pleas to find Robert in the secure baggage area or if staff had assisted him before RCMP arrived.
YVR's revenue comes from endless airport improvement fees of $5 per person for flights within B.C. and the Yukon and $15 outside of B.C.
That funding pays Berg between $380,000 and $625,000 depending on bonuses, while YVR chair Graham Clarke gets $115,000 a year plus $1,000 per board or committee meeting. Board member committee chairs earn $26,000 per year and non-chairs $20,000 plus meeting fees.
The YVR board has one nominee from each of the Vancouver Board of Trade, the Institute of Chartered Accountants of British Columbia, the Law Society of B.C., the Association of Professional Engineers and Geoscientists of B.C., Richmond city, Vancouver city and Metro Vancouver and two from the Canadian government. The board itself picks additional members.
That means no level of government is responsible. The board and individuals with absolutely no accountability to voters hold the majority of board seats.
The RCMP must be held accountable and an investigation must determine why Tasers are connected to 18 deaths in Canada.
But it's also critical to change the unaccountable structure at YVR so that those in charge have to answer for their decisions at an airport ordinary people pay for but have no say in.
.
Tuesday November 20, 2007
Who Polices YVR?
By BILL TIELEMAN
"This is how Robert felt for over nine hours at the airport: lost, confused, thirsty and hungry, and ignored by all."
- Family friend Jurek Baltakis
The RCMP has rightly been severely criticized for the Tasering of Robert Dziekanski, the Polish man seeking a new life in Canada and instead finding death in custody at Vancouver airport.
However wrong the actions of the RCMP were, they will be held accountable - in Parliament and by voters, who can remove the RCMP's political bosses in the next election.
But another organization responsible for Dziekanski's tragic death can't be held accountable at all - the Vancouver Airport Authority.
That's because the authority, or YVR, is a bizarrely structured body that does not report to either the federal or provincial governments and is ruled by a board of directors appointed in part by business groups and organizations with no responsibility to voters.
That total lack of accountability was clear when YVR president and CEO Larry Berg refused interviews for three weeks.
Yet Dziekanski would be alive today if someone at YVR had found a way to communicate with him, if they had answered his mother Zofia Cisowski's desperate pleas to find Robert in the secure baggage area or if staff had assisted him before RCMP arrived.
YVR's revenue comes from endless airport improvement fees of $5 per person for flights within B.C. and the Yukon and $15 outside of B.C.
That funding pays Berg between $380,000 and $625,000 depending on bonuses, while YVR chair Graham Clarke gets $115,000 a year plus $1,000 per board or committee meeting. Board member committee chairs earn $26,000 per year and non-chairs $20,000 plus meeting fees.
The YVR board has one nominee from each of the Vancouver Board of Trade, the Institute of Chartered Accountants of British Columbia, the Law Society of B.C., the Association of Professional Engineers and Geoscientists of B.C., Richmond city, Vancouver city and Metro Vancouver and two from the Canadian government. The board itself picks additional members.
That means no level of government is responsible. The board and individuals with absolutely no accountability to voters hold the majority of board seats.
The RCMP must be held accountable and an investigation must determine why Tasers are connected to 18 deaths in Canada.
But it's also critical to change the unaccountable structure at YVR so that those in charge have to answer for their decisions at an airport ordinary people pay for but have no say in.
.
Friday, November 16, 2007
Basi-Virk Case - Secret witnesses, 5,000 pages of new evidence, "rant and rave" accusations
Secret witnesses, 5000 pages of new evidence and accusations of defence “ranting and raving” equals another day of the BC Legislature raid case
By Bill Tieleman
Secret witnesses, 5,000 pages of new evidence and accusations by the Special Prosecutor that a defence lawyer was “ranting and raving” marked the latest BC Supreme Court hearing Friday in the BC Legislature raid case.
The testy pre-trial hearing saw verbal fireworks fly as the long-delayed trial of BC Liberal ministerial aides David Basi and Bob Virk on breach of trust and fraud charges heard more accusations of the Crown and RCMP failing to properly disclose evidence to the defence.
Virk’s lawyer Kevin McCullough blasted Special Prosecutor Bill Berardino after the defence received 5,000 more pages of evidence that had been ordered disclosed by Justice Elizabeth Bennett some months ago. McCullough said he had sent Berardino a lengthy letter complaining again of late disclosure.
“There are some monumental disclosure issues, extreme problems of disclosure,” an exasperated sounding McCullough told Bennett.
“We’re still dependent on the RCMP to decide what to disclose. When you hear about what the RCMP decide is relevant you are going to be very, very, very surprised,” McCullough said.
“We’ve just found there’s three more files, an inordinate amount of notes,” he said. “The [RCMP] Team Commander for 18 months – there is not a single note – nothing.”
That accusation brought Berardino to his feet.
“Mr. McCullough can get up right now and rant and rave but there’s a process and I will respond to his letter point by point. But I do not agree with his position,” Berardino said angrily. He told Bennett the Crown would need about 10 days to reply to McCullough.
The trial also heard that two witnesses have requested that their testimony be given in-camera so they could not be identified in the media.
“The in-camera application – I may hear arguments from media counsel and need some time for that,” Bennett said.
There was no indication as to who the witnesses might be or what evidence they might give in the case.
The 5,000 pages of new evidence – which comes on the heels of 25,000 pages of new evidence given to the defence in October – comprises over 4,000 pages from the Integrated Proceeds Of Crime [IPOC] investigation and another 800 pages of hard copy wiretap logs, the court was told.
Michael Bolton, Basi’s lawyer, said the defence was still working through the earlier disclosure, much of it related to the $1 billion privatization of BC Rail in 2003. Basi and Virk are accused of providing confidential government information about the deal to lobbyist Erik Bornmann, who was working for bidder OmniTRAX at that time. Bornmann is now the Crown's key witness against Basi, Virk and Aneal Basi, a former provincial communications aide.
“I’m still going through that material – much of it is significant. Parts of it are notes of officers and are relevant for our disclosure application,” Bolton said. The defence plans to file multiple applications at a scheduled hearing December 3.
But Justice Bennett again warned both Crown and defence that she would not tolerate any further delays.
“As long as we’re clear – motions are going to proceed on December 3,” she said.
The latest developments concerned MLA Leonard Krog, the New Democratic Party critic for the Attorney-General’s Ministry who observed the hearing.
“It’s very troubling when you hear defence counsel talking about ‘monumental problems with disclosure’, despite what Mr. Berardino says,” Krog said in an interview outside the courtroom. “This isn’t a break and enter – it’s a raid on the BC Legislature. People could go to jail. It’s hard to think about a case that’s more important.”
Krog, himself a lawyer, said disclosure is a critical part of any case.
“There’s a tremendous onus on the Crown and the RCMP to disclose everything,” he said. “One can only speculate but on the road to disclosure somebody’s holding it up.”
Bennett confirmed that another pre-trial hearing will be held on Friday November 23 at 9 a.m.
ADDITIONAL INFORMATION November 17:
Bolton told Bennett that part of the new information received includes material from Erik Bornmann's email account.
"It's important material. He's a central witness in this thing," Bolton said.
And McCullough alleged in court that the RCMP had wiretapped calls between the defendants and their lawyers, though he did not provide details.
"Solicitor client calls being listened to, passed on to other officers," he told Bennett.
Still looming is an abuse of process motion that Bolton, McCullough and Joe Doyle, Aneal Basi's lawyer, intend to file in an attempt to throw the entire case out of court.
The defence would argue that the failure of the RCMP and Special Prosecutor to provide timely and full disclosure of evidence has made a fair trial impossible.
Justice Bennett referenced that at an October pre-trial hearing:
"At some point your friends are going to bring in an abuse of process motion and I don't need to hear arguments from anyone today," Bennett said curtly to Berardino, using the court term "friends" to refer to the defence counsel. "I appreciate no one knew how many documents there were and I know everyone is working hard."
The new evidence presented to the defence this week came as a result of Bennett's sweeping order in June that the Crown disclose "every scrap of paper" related to the case after she heard about a wide variety of missing evidence, including RCMP officers' notes.
Bennett filed a 37-page decision at that time granting every one of the defence requests for disclosure.
"The defence is entitled to disclosure in a timely fashion. This rather extensive review of the many problems with this case demonstrates that disclosure has not been sufficiently made in a timely way," Bennett wrote in June.
" I regret that I must make the following order in such broad and sweeping terms. However, given the substantial failure to respect the disclosure rights of the accused, this order is the only way I believe I can ensure that no miscarriage of justice will occur."
At the court Friday, MLA Krog said the lengthy delays and problems in getting to trial almost four years after the police raid on the Legislature paint a troubling picture of the whole justice system in BC.
"It says that we have some real problems in a case that is so important to the public," Krog said. "In fairness, maybe these guys [Basi, Virk and Basi] are innocent and four years later they haven even had a trial."
By Bill Tieleman
Secret witnesses, 5,000 pages of new evidence and accusations by the Special Prosecutor that a defence lawyer was “ranting and raving” marked the latest BC Supreme Court hearing Friday in the BC Legislature raid case.
The testy pre-trial hearing saw verbal fireworks fly as the long-delayed trial of BC Liberal ministerial aides David Basi and Bob Virk on breach of trust and fraud charges heard more accusations of the Crown and RCMP failing to properly disclose evidence to the defence.
Virk’s lawyer Kevin McCullough blasted Special Prosecutor Bill Berardino after the defence received 5,000 more pages of evidence that had been ordered disclosed by Justice Elizabeth Bennett some months ago. McCullough said he had sent Berardino a lengthy letter complaining again of late disclosure.
“There are some monumental disclosure issues, extreme problems of disclosure,” an exasperated sounding McCullough told Bennett.
“We’re still dependent on the RCMP to decide what to disclose. When you hear about what the RCMP decide is relevant you are going to be very, very, very surprised,” McCullough said.
“We’ve just found there’s three more files, an inordinate amount of notes,” he said. “The [RCMP] Team Commander for 18 months – there is not a single note – nothing.”
That accusation brought Berardino to his feet.
“Mr. McCullough can get up right now and rant and rave but there’s a process and I will respond to his letter point by point. But I do not agree with his position,” Berardino said angrily. He told Bennett the Crown would need about 10 days to reply to McCullough.
The trial also heard that two witnesses have requested that their testimony be given in-camera so they could not be identified in the media.
“The in-camera application – I may hear arguments from media counsel and need some time for that,” Bennett said.
There was no indication as to who the witnesses might be or what evidence they might give in the case.
The 5,000 pages of new evidence – which comes on the heels of 25,000 pages of new evidence given to the defence in October – comprises over 4,000 pages from the Integrated Proceeds Of Crime [IPOC] investigation and another 800 pages of hard copy wiretap logs, the court was told.
Michael Bolton, Basi’s lawyer, said the defence was still working through the earlier disclosure, much of it related to the $1 billion privatization of BC Rail in 2003. Basi and Virk are accused of providing confidential government information about the deal to lobbyist Erik Bornmann, who was working for bidder OmniTRAX at that time. Bornmann is now the Crown's key witness against Basi, Virk and Aneal Basi, a former provincial communications aide.
“I’m still going through that material – much of it is significant. Parts of it are notes of officers and are relevant for our disclosure application,” Bolton said. The defence plans to file multiple applications at a scheduled hearing December 3.
But Justice Bennett again warned both Crown and defence that she would not tolerate any further delays.
“As long as we’re clear – motions are going to proceed on December 3,” she said.
The latest developments concerned MLA Leonard Krog, the New Democratic Party critic for the Attorney-General’s Ministry who observed the hearing.
“It’s very troubling when you hear defence counsel talking about ‘monumental problems with disclosure’, despite what Mr. Berardino says,” Krog said in an interview outside the courtroom. “This isn’t a break and enter – it’s a raid on the BC Legislature. People could go to jail. It’s hard to think about a case that’s more important.”
Krog, himself a lawyer, said disclosure is a critical part of any case.
“There’s a tremendous onus on the Crown and the RCMP to disclose everything,” he said. “One can only speculate but on the road to disclosure somebody’s holding it up.”
Bennett confirmed that another pre-trial hearing will be held on Friday November 23 at 9 a.m.
ADDITIONAL INFORMATION November 17:
Bolton told Bennett that part of the new information received includes material from Erik Bornmann's email account.
"It's important material. He's a central witness in this thing," Bolton said.
And McCullough alleged in court that the RCMP had wiretapped calls between the defendants and their lawyers, though he did not provide details.
"Solicitor client calls being listened to, passed on to other officers," he told Bennett.
Still looming is an abuse of process motion that Bolton, McCullough and Joe Doyle, Aneal Basi's lawyer, intend to file in an attempt to throw the entire case out of court.
The defence would argue that the failure of the RCMP and Special Prosecutor to provide timely and full disclosure of evidence has made a fair trial impossible.
Justice Bennett referenced that at an October pre-trial hearing:
"At some point your friends are going to bring in an abuse of process motion and I don't need to hear arguments from anyone today," Bennett said curtly to Berardino, using the court term "friends" to refer to the defence counsel. "I appreciate no one knew how many documents there were and I know everyone is working hard."
The new evidence presented to the defence this week came as a result of Bennett's sweeping order in June that the Crown disclose "every scrap of paper" related to the case after she heard about a wide variety of missing evidence, including RCMP officers' notes.
Bennett filed a 37-page decision at that time granting every one of the defence requests for disclosure.
"The defence is entitled to disclosure in a timely fashion. This rather extensive review of the many problems with this case demonstrates that disclosure has not been sufficiently made in a timely way," Bennett wrote in June.
" I regret that I must make the following order in such broad and sweeping terms. However, given the substantial failure to respect the disclosure rights of the accused, this order is the only way I believe I can ensure that no miscarriage of justice will occur."
At the court Friday, MLA Krog said the lengthy delays and problems in getting to trial almost four years after the police raid on the Legislature paint a troubling picture of the whole justice system in BC.
"It says that we have some real problems in a case that is so important to the public," Krog said. "In fairness, maybe these guys [Basi, Virk and Basi] are innocent and four years later they haven even had a trial."
Tuesday, November 13, 2007
BC NDP left in difficult position defending farmland after supporting ALR removal in Tsawwassen Treaty
Bill Tieleman’s 24 Hours Column
Tuesday November 13, 2007
NDP ditch ALR
By BILL TIELEMAN
The Agricultural Land Reserve is the best legislation I ever passed. Without it in place, agricultural land is a developer's heaven and once the parking lots are paved and the streets are in - the land is gone, there is no going back.
There were many speeches in the B.C. Legislature the past few weeks about the importance of stopping farmland from disappearing and the need to protect our food security and fight climate change.
Several NDP MLAs spoke about how critical the Agricultural Land Reserve has been since 1973 and how it has saved countless farms from development.
But when the vote finally came on a treaty with the Tsawwassen First Nation that will take 500 acres of prime farmland out of the ALR and allow it to be used for Deltaport container shipping expansion, just one NDP MLA said no.
That lone NDP MLA is Michael Sather and for upholding a principle held crucial by his party for more than 30 years he was suspended from the NDP caucus until the legislative session ends.
It takes great courage and conviction to disagree in public with your party's leader and position, particularly to oppose a long-awaited treaty with a First Nation, but Sather has not backed down from defending the ALR and protecting farmland.
"It's pretty stressful overall. I can see why people don't do it very often, but I'm glad that I did," Sather told me.
While some colleagues were unhappy, the MLA for Maple Ridge-Pitt Meadows says the public has been "totally supportive of the position I took."
And the dissident MLA is also surprised that the NDP caucus didn't at least vote against the section of the legislation that removed the 500 acres from the ALR.
"It thought that it would have been a good time for the caucus to show solidarity with the ALR and against the removal of farmland and I'm disappointed they didn't," he says.
Delta-North MLA Guy Gentner was the only NDP MLA to join Sather in voting against the treaty's ALR exemption section.
NDP MLAs Corky Evans and Harry Lali, who also spoke on the importance of protecting farmland and criticized Premier Gordon Campbell for using the treaty to get the farmland for Deltaport expansion, joined Gentner in abstaining on the final treaty vote by leaving the Legislature.
What comes next is clear. Deltaport expansion onto prime farmland begins soon.
The Tsawwassen First Nation becomes a paid partner in paving.
And an NDP caucus that reversed party policy to support removing farmland in one treaty will face a difficult challenge the next time agricultural land is put on the table in treaty negotiations, as it surely will be.
Tuesday November 13, 2007
NDP ditch ALR
By BILL TIELEMAN
The Agricultural Land Reserve is the best legislation I ever passed. Without it in place, agricultural land is a developer's heaven and once the parking lots are paved and the streets are in - the land is gone, there is no going back.
- Former New Democratic Party Premier Dave Barrett
There were many speeches in the B.C. Legislature the past few weeks about the importance of stopping farmland from disappearing and the need to protect our food security and fight climate change.
Several NDP MLAs spoke about how critical the Agricultural Land Reserve has been since 1973 and how it has saved countless farms from development.
But when the vote finally came on a treaty with the Tsawwassen First Nation that will take 500 acres of prime farmland out of the ALR and allow it to be used for Deltaport container shipping expansion, just one NDP MLA said no.
That lone NDP MLA is Michael Sather and for upholding a principle held crucial by his party for more than 30 years he was suspended from the NDP caucus until the legislative session ends.
It takes great courage and conviction to disagree in public with your party's leader and position, particularly to oppose a long-awaited treaty with a First Nation, but Sather has not backed down from defending the ALR and protecting farmland.
"It's pretty stressful overall. I can see why people don't do it very often, but I'm glad that I did," Sather told me.
While some colleagues were unhappy, the MLA for Maple Ridge-Pitt Meadows says the public has been "totally supportive of the position I took."
And the dissident MLA is also surprised that the NDP caucus didn't at least vote against the section of the legislation that removed the 500 acres from the ALR.
"It thought that it would have been a good time for the caucus to show solidarity with the ALR and against the removal of farmland and I'm disappointed they didn't," he says.
Delta-North MLA Guy Gentner was the only NDP MLA to join Sather in voting against the treaty's ALR exemption section.
NDP MLAs Corky Evans and Harry Lali, who also spoke on the importance of protecting farmland and criticized Premier Gordon Campbell for using the treaty to get the farmland for Deltaport expansion, joined Gentner in abstaining on the final treaty vote by leaving the Legislature.
What comes next is clear. Deltaport expansion onto prime farmland begins soon.
The Tsawwassen First Nation becomes a paid partner in paving.
And an NDP caucus that reversed party policy to support removing farmland in one treaty will face a difficult challenge the next time agricultural land is put on the table in treaty negotiations, as it surely will be.
Wednesday, November 07, 2007
Erik Bornmann "good character" hearing set for March 24, 2008
Key Basi-Virk crown witness Erik Bornmann's attempts to become an Ontario lawyer will have to wait until at least March 24, 2008.
That's when the Law Society of Upper Canada, which regulates lawyers in Ontario, has decided it will conduct a "good character" hearing into Bornmann's application.
That application has been on hold for some time and was to have taken place on November 5 but due to delays in the trial of former BC Liberal ministerial aides David Basi and Bob Virk on breach of trust charges, it has again been put off.
Bornmann is alleged by police to have bribed Basi and Virk in exchange for confidential government information on the $1 billion privatization of BC Rail in 2003. Government communications aide Aneal Basi, David Basi's cousin, faces money laundering charges connected to monies alleged paid.
LSUC Acting Communications Director Helen Stone said today that the hearing will take place on March 28, 2008 in Toronto.
A BC Supreme Court update on the Basi-Virk case is scheduled for Friday November 16 at 9 a.m. to determine which matters can go ahead at the December 3 start of defence applications and a second conference will be held on Friday November 23 at 8 a.m.
Tuesday, November 06, 2007
If you are going to cut taxes, Stephen Harper has picked the right one - the hated GST
Bill Tieleman’s 24 Hours Column
Tuesday November 6, 2007
Think before you criticize GST cut
By BILL TIELEMAN
Even a stopped clock is right twice a day.
The federal Conservative government is cutting the goods and services tax by another one per cent.
That means Prime Minister Stephen Harper is actually doing the right thing, something groups usually opposed to Conservative policies actually support, like the Canadian Centre for Policy Alternatives and the National Anti-Poverty Organization.
And it means Harper is rejecting the advice of economic conservatives, like the right-wing Fraser Institute, the Bank of Montreal, the Vancouver Board of Trade, and the C.D. Howe Institute.
But wait! The Canadian Auto Workers also opposes the GST cut. So do the federal New Democratic Party and Liberal Party.
And the CCPA and NAPO have changed their minds since first calling for a GST cut a few years back - now they oppose it!
What's a sensible person to think?
Well, if you are determined to cut taxes, whacking the hated GST is the right thing to do.
The GST is regressive, while income tax is progressive.
To illustrate. Say one person makes $20,000 while another makes $300,000. The first buys a car for $20,000 and at five per cent GST pays $1,000 tax.
The richer fellow buys a $60,000 car and pays $3,000 GST.
The $1,000 GST the lower income person has paid equals five per cent of his income while the richer one has paid $3,000 - but just one per cent of his income in GST.
It's obvious the GST hurts one a lot more than the other.
That's not to say the Conservatives are doing their best to help the poor - far from it. Increasing the GST tax credit, building social housing or creating child-care spaces would all be more effective - but less politically appealing to the Tories.
But opponents to the GST cut should think carefully before criticizing it.
The CCPA, for example, said in a 1999 paper: "No one disputes that it is among the most regressive of all taxes, one that puts a disproportionate financial burden on those least able to pay."
But last year, the CCPA issued another paper claiming: "This is a tax cut which disproportionately favours high-income families. For every dollar of this tax cut received by low-income families, over three dollars goes to families that are not low-income." Whoops - which is it?
And federal Liberal Leader Stephane Dion says if elected he would consider reinstating the two per cent GST cut. Ouch.
Meanwhile Liberal finance critic John McCallum voiced support for other parts of the Conservative fiscal update: "We certainly like the significant corporate tax cuts." Ouch again.
So enjoy the GST tax cut - go buy something and create some jobs - but don't let the Conservatives off the hook when people are still begging in the streets.
Tuesday November 6, 2007
Think before you criticize GST cut
By BILL TIELEMAN
Even a stopped clock is right twice a day.
- Marie Von Ebner-Eschenbach
The federal Conservative government is cutting the goods and services tax by another one per cent.
That means Prime Minister Stephen Harper is actually doing the right thing, something groups usually opposed to Conservative policies actually support, like the Canadian Centre for Policy Alternatives and the National Anti-Poverty Organization.
And it means Harper is rejecting the advice of economic conservatives, like the right-wing Fraser Institute, the Bank of Montreal, the Vancouver Board of Trade, and the C.D. Howe Institute.
But wait! The Canadian Auto Workers also opposes the GST cut. So do the federal New Democratic Party and Liberal Party.
And the CCPA and NAPO have changed their minds since first calling for a GST cut a few years back - now they oppose it!
What's a sensible person to think?
Well, if you are determined to cut taxes, whacking the hated GST is the right thing to do.
The GST is regressive, while income tax is progressive.
To illustrate. Say one person makes $20,000 while another makes $300,000. The first buys a car for $20,000 and at five per cent GST pays $1,000 tax.
The richer fellow buys a $60,000 car and pays $3,000 GST.
The $1,000 GST the lower income person has paid equals five per cent of his income while the richer one has paid $3,000 - but just one per cent of his income in GST.
It's obvious the GST hurts one a lot more than the other.
That's not to say the Conservatives are doing their best to help the poor - far from it. Increasing the GST tax credit, building social housing or creating child-care spaces would all be more effective - but less politically appealing to the Tories.
But opponents to the GST cut should think carefully before criticizing it.
The CCPA, for example, said in a 1999 paper: "No one disputes that it is among the most regressive of all taxes, one that puts a disproportionate financial burden on those least able to pay."
But last year, the CCPA issued another paper claiming: "This is a tax cut which disproportionately favours high-income families. For every dollar of this tax cut received by low-income families, over three dollars goes to families that are not low-income." Whoops - which is it?
And federal Liberal Leader Stephane Dion says if elected he would consider reinstating the two per cent GST cut. Ouch.
Meanwhile Liberal finance critic John McCallum voiced support for other parts of the Conservative fiscal update: "We certainly like the significant corporate tax cuts." Ouch again.
So enjoy the GST tax cut - go buy something and create some jobs - but don't let the Conservatives off the hook when people are still begging in the streets.
Monday, November 05, 2007
Polling on Carole Taylor, Gregor Robertson for Vancouver Mayor underway - Allan De Genova, Park Board Commissioner admits involvement
Who would be a good mayor? Polling firm probes public on Sullivan's performance
By BILL TIELEMAN, 24 HOURS
Vancouver residents are being asked by pollsters, "who would make the best mayor of the city" - with two of the possible candidates being B.C. Liberal Finance Minister Carole Taylor and Vancouver-Fairview NDP MLA Gregor Robertson.
Independent Park Board Commissioner Allan De Genova admits he is connected to the NRG Research Group polling.
"I'm in a bit of a difficult position because I'm somewhat involved in helping bring forward a new candidate but in the near future I'll give you a comment," De Genova said yesterday. "Stay tuned - there is going to be a name where citizens will breathe a sigh of relief."
The third choice on the poll is Sam Sullivan, the incumbent Non-Partisan Association mayor.
De Genova, who left the NPA after a dispute with Sullivan, fired both barrels at the mayor.
"Sam Sullivan - we can only go up from there," De Genova said.
A 24 hours reader said she was called by NRG Research Friday night and asked her views on Sullivan's performance, how he handled the recent civic workers' strike and her opinion on the 2010 Winter Olympics.
But the key question was preference for mayor: Sam Sullivan for the NPA, Gregor Robertson for Vision Vancouver or Carole Taylor running as an independent.
INFORMATION NOT PUBLISHED IN 24 HOURS:
De Genova continued his attack on Sullivan, accusing the mayor of building up a private $400,000 war chest outside the NPA.
"He's running scared - he has to build a war chest of his own. It's a very sad state," De Genova said.
And De Genova said Sullivan is already campaigning for re-election.
"This is the first time in five elections I've seen a mayor run a campaign now instead of two to three months before the election," De Genova said. "He should be putting in a better effort running the city instead of running a campaign."
So that has encouraged De Genova to find a candidate who can defeat Sullivan.
"I'm just working very hard to find the right candidate," he said.
The NRG Research Group poll also asks respondents how they voted in the last provincial election and includes demographic questions such as income level.
NRG Research Group has not yet responded to an email inquiry about the poll but has previously stated it does not comment on clients' polling.
By BILL TIELEMAN, 24 HOURS
Vancouver residents are being asked by pollsters, "who would make the best mayor of the city" - with two of the possible candidates being B.C. Liberal Finance Minister Carole Taylor and Vancouver-Fairview NDP MLA Gregor Robertson.
Independent Park Board Commissioner Allan De Genova admits he is connected to the NRG Research Group polling.
"I'm in a bit of a difficult position because I'm somewhat involved in helping bring forward a new candidate but in the near future I'll give you a comment," De Genova said yesterday. "Stay tuned - there is going to be a name where citizens will breathe a sigh of relief."
The third choice on the poll is Sam Sullivan, the incumbent Non-Partisan Association mayor.
De Genova, who left the NPA after a dispute with Sullivan, fired both barrels at the mayor.
"Sam Sullivan - we can only go up from there," De Genova said.
A 24 hours reader said she was called by NRG Research Friday night and asked her views on Sullivan's performance, how he handled the recent civic workers' strike and her opinion on the 2010 Winter Olympics.
But the key question was preference for mayor: Sam Sullivan for the NPA, Gregor Robertson for Vision Vancouver or Carole Taylor running as an independent.
INFORMATION NOT PUBLISHED IN 24 HOURS:
De Genova continued his attack on Sullivan, accusing the mayor of building up a private $400,000 war chest outside the NPA.
"He's running scared - he has to build a war chest of his own. It's a very sad state," De Genova said.
And De Genova said Sullivan is already campaigning for re-election.
"This is the first time in five elections I've seen a mayor run a campaign now instead of two to three months before the election," De Genova said. "He should be putting in a better effort running the city instead of running a campaign."
So that has encouraged De Genova to find a candidate who can defeat Sullivan.
"I'm just working very hard to find the right candidate," he said.
The NRG Research Group poll also asks respondents how they voted in the last provincial election and includes demographic questions such as income level.
NRG Research Group has not yet responded to an email inquiry about the poll but has previously stated it does not comment on clients' polling.
Friday, November 02, 2007
Ontario Law Society hearing November 5 on Erik Bornmann only to set date for "good character" hearing, Society now says
A correction on an earlier story here and in 24 hours on key Basi-Virk trial Crown witness Erik Bornmann's efforts to become an Ontario lawyer.
Helen Stone, acting communications director for the Law Society of Upper Canada informed me today that the "good character" hearing previously reported by LSUC to be taking place on Monday November 5 in Toronto is actually a "set date application" to establish a future date for a hearing, not the hearing itself.
When that date is set it will be reported here.
Helen Stone, acting communications director for the Law Society of Upper Canada informed me today that the "good character" hearing previously reported by LSUC to be taking place on Monday November 5 in Toronto is actually a "set date application" to establish a future date for a hearing, not the hearing itself.
When that date is set it will be reported here.
Thursday, November 01, 2007
Union of BC Indian Chiefs calls for free vote by BC NDP MLAs on Tsawwassen Treaty in Legislature
Grand Chief Stewart Phillip, President of the Union of BC Indian Chiefs, yesterday sent an open letter to BC NDP Leader Carole James asking that she give NDP MLAs a free vote in the BC Legislature on the Tsawwassen Treaty.
And Phillip is calling on BC NDP MLAs to vote against the Treaty.
MLA Michael Sather was suspended from the NDP caucus after declaring he would vote against the Treaty due to its exclusion of 500 acres of prime farmland from the Agricultural Land Reserve, while NDP MLAs Guy Gentner and Corky Evans have said they will abstain from voting for the same reason.
Chief Phillip has previously strongly criticized the BC Liberal government, denouncing as "unethical, inappropriate and totally unacceptable" its efforts to secure support for the Treaty by flying Tsawwassen First Nation members to Nisga'a territory prior to their referendum vote on the Treaty and by promising money for elders if the Treaty passed.
The letter is reproduced in full below:
UBCIC Open Letter to Carole James concerning Bill 40 - Tsawwassen First Nation Final Agreement Act
October 31, 2007
Carole James Leader of the Official Opposition Room 201, Parliament Buildings Victoria, BC V8V 1X4
Dear Carole:
As President of the Union of British Columbia Indian Chiefs, I am writing to you regarding the stated position of the Official Opposition with respect to Bill 40 - Tsawwassen First Nation Final Agreement Act.
The UBCIC and its member Nations and communities have forwarded repeated proposals, petitions, statements and resolutions presented to governments calling for the resolution of the Land Question, based on recognition and respect for our Aboriginal Title and Rights.
Provincial and Federal policies have moved from one of direct assimilation, to one of claims.
Governments were forced to change their policies of denial and outright assimilation in response to the Supreme Court of Canada's 1973 decision in Calder , which recognized Aboriginal Title as a pre-existing legal right to the land. Indigenous Peoples then successfully fought for the inclusion of Aboriginal Title, Rights and Treaty Rights in s. 35 of the Constitution in 1982.
The Supreme Court of Canada has continued to articulate principles governing the Aboriginal/Crown relationship in decisions such as Delgamuukw , Haida , Taku and Morris. The Court's decisions have eclipsed the 1986 Comprehensive Claims Policy, which is now contrary to law. As you may know, to a large extent, the Comprehensive Claims Policy serves as the basis of the BC Treaty Commission Process.
Provincial laws continue to apply on our territories and interfere with our Aboriginal Title, disrespect our laws which have taken care of the land for centuries, and leave our people living at a standard far below that of British Columbians.
While Canada has been ranked at the highest level in the UN Human Development Index which measures how different countries compare to one another based on the standard of living for their citizens, Indigenous Peoples within Canada are ranked below many Third World countries.
The impact of this disparity in wealth and living conditions upon our people is brutal.
Canada and the provincial government have chosen to focus their efforts and resources on negotiating Treaties within the BCTC process. All Treaties negotiated under the BCTC process are subject to the constraints of the Comprehensive Claims Policy reflecting a denial of Aboriginal Title and a surrender and grant-back process.
First Nations negotiate with the Crown for recognition of specialized Treaty rights; in exchange, they must agree to surrender all of their Aboriginal Title to the totality of their traditional territories.
Negotiating a Treaty under such a Policy is not an option for UBCIC and its members who will never exchange their territory for limited Treaty rights.
Indigenous Nations outside of the BCTC process have been ignored and are expressly excluded from any consultation about the impact of agreements being negotiated within the BCTC process on their Aboriginal Title and Rights.
This deficiency has resulted in a wave of First Nations litigation as we recently saw with the challenges by the Shuswap Nation and Treaty 8 First Nations to the Lheidli T'enneh Final Agreement, and the current challenges by the Semiahmoo, Sencoten Alliance and Cowichan to the Tsawwassen Final Agreement as well as Tseshaht to the Maa-nulth First Nations' Final Agreement. As well, public demonstrations such as the one held at the opening of the current Legislature Session, will continue.
The continued refusal to deal with the Land Question honourably and justly by acknowledging Aboriginal Title as the Supreme Court of Canada has directed only leads to more confrontations.
Indigenous Peoples have spent over three decades and countless billions of dollars in Canadian courts to achieve the recognition of Aboriginal Title, Rights and historic Treaty Rights in British Columbia, and the legal articulation of the corresponding constitutional duties on the Crown.
In spite of court rulings, the provincial and federal positions and policies remain deeply embedded in a political and legal culture which remains unresponsive, not only to Indigenous Peoples, but to the direction provided by the highest court.
It is the opinion of the Union of BC Indian Chiefs that the Official Opposition has no business to support any final agreement arising from the BC Treaty Commission Process.
Clearly, the sole intent and purpose of the BC Treaty Commission Process is to extinguish our Aboriginal Title and terminate our Aboriginal Rights!
As the Official Opposition, we urge you all to listen to the overwhelming majority of Indigenous Nations in BC who stand oppose to the current treaty process but as well to heed the decisions of the Supreme Court of Canada. Such final agreements serve to extinguish Aboriginal Title and terminate our Aboriginal Rights.
Further, the Union of BC Indian Chiefs believes that all parties, provincially and federally, should fully respect the United Nations' Declaration on the Rights of Indigenous Peoples. It is an international human rights instrument and we challenge all parties to take a step forward and work with Indigenous Nations to implement and uphold the principles contained in the Declaration.
Finally, the Union of BC Indian Chiefs fully supports the notion that members of the Official Opposition should be able to express the will of their constituents and their conscience through a free vote on Bill 40.
Sincerely,
Grand Chief Stewart Phillip President
CC: NDP Caucus UBCIC Chiefs Council BC First Nations Leadership Council
And Phillip is calling on BC NDP MLAs to vote against the Treaty.
MLA Michael Sather was suspended from the NDP caucus after declaring he would vote against the Treaty due to its exclusion of 500 acres of prime farmland from the Agricultural Land Reserve, while NDP MLAs Guy Gentner and Corky Evans have said they will abstain from voting for the same reason.
Chief Phillip has previously strongly criticized the BC Liberal government, denouncing as "unethical, inappropriate and totally unacceptable" its efforts to secure support for the Treaty by flying Tsawwassen First Nation members to Nisga'a territory prior to their referendum vote on the Treaty and by promising money for elders if the Treaty passed.
The letter is reproduced in full below:
UBCIC Open Letter to Carole James concerning Bill 40 - Tsawwassen First Nation Final Agreement Act
October 31, 2007
Carole James Leader of the Official Opposition Room 201, Parliament Buildings Victoria, BC V8V 1X4
Dear Carole:
As President of the Union of British Columbia Indian Chiefs, I am writing to you regarding the stated position of the Official Opposition with respect to Bill 40 - Tsawwassen First Nation Final Agreement Act.
The UBCIC and its member Nations and communities have forwarded repeated proposals, petitions, statements and resolutions presented to governments calling for the resolution of the Land Question, based on recognition and respect for our Aboriginal Title and Rights.
Provincial and Federal policies have moved from one of direct assimilation, to one of claims.
Governments were forced to change their policies of denial and outright assimilation in response to the Supreme Court of Canada's 1973 decision in Calder , which recognized Aboriginal Title as a pre-existing legal right to the land. Indigenous Peoples then successfully fought for the inclusion of Aboriginal Title, Rights and Treaty Rights in s. 35 of the Constitution in 1982.
The Supreme Court of Canada has continued to articulate principles governing the Aboriginal/Crown relationship in decisions such as Delgamuukw , Haida , Taku and Morris. The Court's decisions have eclipsed the 1986 Comprehensive Claims Policy, which is now contrary to law. As you may know, to a large extent, the Comprehensive Claims Policy serves as the basis of the BC Treaty Commission Process.
Provincial laws continue to apply on our territories and interfere with our Aboriginal Title, disrespect our laws which have taken care of the land for centuries, and leave our people living at a standard far below that of British Columbians.
While Canada has been ranked at the highest level in the UN Human Development Index which measures how different countries compare to one another based on the standard of living for their citizens, Indigenous Peoples within Canada are ranked below many Third World countries.
The impact of this disparity in wealth and living conditions upon our people is brutal.
Canada and the provincial government have chosen to focus their efforts and resources on negotiating Treaties within the BCTC process. All Treaties negotiated under the BCTC process are subject to the constraints of the Comprehensive Claims Policy reflecting a denial of Aboriginal Title and a surrender and grant-back process.
First Nations negotiate with the Crown for recognition of specialized Treaty rights; in exchange, they must agree to surrender all of their Aboriginal Title to the totality of their traditional territories.
Negotiating a Treaty under such a Policy is not an option for UBCIC and its members who will never exchange their territory for limited Treaty rights.
Indigenous Nations outside of the BCTC process have been ignored and are expressly excluded from any consultation about the impact of agreements being negotiated within the BCTC process on their Aboriginal Title and Rights.
This deficiency has resulted in a wave of First Nations litigation as we recently saw with the challenges by the Shuswap Nation and Treaty 8 First Nations to the Lheidli T'enneh Final Agreement, and the current challenges by the Semiahmoo, Sencoten Alliance and Cowichan to the Tsawwassen Final Agreement as well as Tseshaht to the Maa-nulth First Nations' Final Agreement. As well, public demonstrations such as the one held at the opening of the current Legislature Session, will continue.
The continued refusal to deal with the Land Question honourably and justly by acknowledging Aboriginal Title as the Supreme Court of Canada has directed only leads to more confrontations.
Indigenous Peoples have spent over three decades and countless billions of dollars in Canadian courts to achieve the recognition of Aboriginal Title, Rights and historic Treaty Rights in British Columbia, and the legal articulation of the corresponding constitutional duties on the Crown.
In spite of court rulings, the provincial and federal positions and policies remain deeply embedded in a political and legal culture which remains unresponsive, not only to Indigenous Peoples, but to the direction provided by the highest court.
It is the opinion of the Union of BC Indian Chiefs that the Official Opposition has no business to support any final agreement arising from the BC Treaty Commission Process.
Clearly, the sole intent and purpose of the BC Treaty Commission Process is to extinguish our Aboriginal Title and terminate our Aboriginal Rights!
As the Official Opposition, we urge you all to listen to the overwhelming majority of Indigenous Nations in BC who stand oppose to the current treaty process but as well to heed the decisions of the Supreme Court of Canada. Such final agreements serve to extinguish Aboriginal Title and terminate our Aboriginal Rights.
Further, the Union of BC Indian Chiefs believes that all parties, provincially and federally, should fully respect the United Nations' Declaration on the Rights of Indigenous Peoples. It is an international human rights instrument and we challenge all parties to take a step forward and work with Indigenous Nations to implement and uphold the principles contained in the Declaration.
Finally, the Union of BC Indian Chiefs fully supports the notion that members of the Official Opposition should be able to express the will of their constituents and their conscience through a free vote on Bill 40.
Sincerely,
Grand Chief Stewart Phillip President
CC: NDP Caucus UBCIC Chiefs Council BC First Nations Leadership Council
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