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.


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.


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.


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:


Named Person and Attorney General of Canada on behalf of the Requesting State


The Vancouver Sun, The Province, BCTV, Canadian Broadcasting Corporation, CKNW, CityTv and CTV, a Division of Bell Globemedia Inc.


‑ and ‑

Attorney General of Ontario and Law Society of British Columbia



Anonymous said...

Very interesting, and like others it would be nice to know who those special people might be. Kep at it Bill DL

Anonymous said...

So the cover up continues unabated.

Can there now be any doubt left about WHO the Special Prosecutor really works for.

So much for the New Era of openness and transparency in BC politics.

Anonymous said...

We have now entered the Twilight Zone...or an incipient police state.

This is unheard of in my experience - this isn't a question of national security and defence lawyers, like the judge and the prosecutor, are officers of the court.

It is hard to imagine that there is no political direction behind this action.

Was Berardino's face red Bill?

It should have been.

BC Mary said...

Berardino's request is an act of desperation.

If Berardino is serious, it means that -- all along -- we are the problem. The public, with its eyes and ears, getting in the way of the Emperor's plans.

And there's only one Emperor in B.C. at this time.

The Special Prosecutor apparently has no sense of judicial independence.

Well, I feel a bit desperate too. Despite the difficulties, I hope that others like me will attend some of the December hearings. I may even mutter "Hear, hear!" from the public gallery, or something revolutionary like that, too.


THANKS for telling us, Bill. I wonder if the CanWest media will say anything at all about it.


Anonymous said...

If the media do not oppose this desperate attempt to silence the media the next application by the special prosecutor will be a complete publication ban. This is contrary to the public interest.

The other case of a "in camera hearing" was the media personality and other women in the Tom Ellison (former Vancovuer teacher in the Quest program charged with having sex with students) trial earlier this year. That publication ban is understandable given the nature of the sex crimes.

I cannot think of another fraud or breach of trust trial where secret witnesses have requested a media, and complete ban of the public sitting in the courtroom.

Who is Berardino trying to protect and more importantly why?

Anonymous said...

What is going on?? Do we live in the old Soviet Union, is this Pakistan where we can have secret hearings without defence counsel, the media and the public in attendance??? Bill help me understand just what the hell is going on here. You state defence counsel were stunned, did they comment, I can't imagine they are very happy. Lets see if canwest writes anything about this.

Anonymous said...

The Glen Clark trial and the 1996 Fudget Budget trial both had senior government officials testify, along with Cabinet Ministers and other witnesses.

I do not recall the request for "in camera" hearings at that time.

This is absolutely astounding given what has occured to date in this trial.

Mr. Berardino has not given straight answers on this case and should be held accountable.

Anonymous said...

Why did this request come now?

9 trial dates have been set and missed, key witnesses have been subpoenaed to testify in 2006 but there was never a request for this type of media/public ban.

The only thing that has changed is that more facts about the many challenges the Special Prosecutor has in defending the actions of the RCMP.

So Mr. Berardino, why now?

G West said...

I think it's a bit of a stretch, in the current action - particularly over an issue which can be distinguished very easily from the Air India case - that the ratio would not apply here.

These circumstances:
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.

are very different from the 'Named' case and the inherent personal danger to the witness in question would, one might surmise, fail to rise to the exceptional level that characterized the Court's ruling in connection to the Air India matter.

I'd be very surprised if Berardino could sustain that argument for total exclusion.

In fact, I suspect the whole dog and pony show may well be just another delaying tactic.

What do you think Bill?

Bill Tieleman said...

Thanks to all posters on this fascinating development.

Given that the original investigation that led to the BC Legislature raid was a drug trafficking case it is certainly possible police informants could be involved.

But there are many other possibilities as well.

I do not believe it is a delaying tactic however - this is going to stir up a media hornet's nest and I doubt that is the best way to delay anything.

BC Mary said...

OK, I'll go back to one of the original guesses: one of the Secret Witnesses is Jasmohan Bains who comes up for trial in 2008.

It's possible, isn't it? that he has agreed to provide testimony in return for some sort of leniency later on?

And he's in a position to give evidence about his cousin, Dave Basi, who he (Jas) phoned 26 times at the Ministry of Finance during the summer of 2003.

It was Jasmohan Bains -- thought to be the new Mr Big on Vancouver Island -- that the RCMP were tracking, wasn't it? when they wanted to raid Basi's office?

I hope that, by outing the secret witnesses, Citizens may make it unnecessary for secret testimony and we may all get to hear what they have to say.



Anonymous said...

What I don't understand is the charges as outlined by the Vancouver Sun:

"The Crown has alleged that Bornmann, then a lobbyist for one of the bidders, paid more than $20,000 to Basi in exchange for confidential information.

Basi's cousin, Anneal Basi, a former government communications officer, is also accused of two counts of money laundering."

$20,000?..... Then how much money will legal defense cost?..... Over a million?..... and how do they get those funds?...... How much is the trial costing the public?..... millions?

If I were the defendants (if guilty), I would plead guilty as charged and get on with life.....

G West said...

Still, that being said Bill, don't you find it a little strange that a case where discovery has become attenuated beyond all imagining should suddenly have the Special Prosecutor thrust into the mix a case whose ratio wasn't even contemplated a little over a month ago?

I'm not saying it isn't good dicta for witnesses who are genuinely in danger of having their lives threatened or their person deported to some place where they may come under criminal sanction. But, this whole business of secret witnesses is just too damn new (it wasn't mentioned till last month) in a case that has been dragging on for YEARS for it not to have a certain odour about it.

Berardino couldn't even rouse himself to 'appear' at several vital hearings after the Defence filed its Notice of Motion in February for God's sake.

How can he now, with straight face, suggest his witnesses need such extraordinary protection when, heretofore, they were not even acknowledged as being in the mix?

If it's not a delaying tactic, it has the appearance of being something far less benign.

Every lawyer I've talked to since about 2pm this afternoon could not believe the guy's chutzpah.

TO them it's far more typical of a last-minute move in defence of someone who has run out of good ideas.

I think the Judge may finally deliver the lecture she should have given the special prosecutor four months ago.

I think the response Madame Justice Bennett gave to Berardino's tactic earlier today as much as indicated that.

Budd Campbell said...

"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."

Does anyone recall the police announcement a few days after the December 2003 raid on the Legislature? Does anyone recall how it talked darkly about a cancer of drugs and organized crime threatening to undermine government itself?

Bill's observation that every press effort will now be turned towards revealing the identity of the confidential informants, just as the trial proceedings turn ever more complex in an attempt to conceal those identities, is an irony that I hope involves no one's real safety. I would hate to think that we are so desperate for more political grist that our media needs to put at risk someone who genuinely needs anonymity.

G West said...

I'll second that, but I can't avoid the juxtaposition of the two events and what 'that' means.

A supreme court decision relating to arcane details relative to the safety of a police informant (who is also being threatened with deportation) pertaining to a case which has already been through and through the legal mill for decades comes down on October 11, 2007.

A bit more than a month later (Nov 16 I believe) the Special Prosecutor advises, whilst dropping another overdue bundle of previously promised and undelivered documentation, that he has some 'secret' witnesses.

A few more days pass and now the Special Prosecutor advises the court that he's going to apply for leave to hold an in-camera hearing on the basis of the precedent so recently established.

I mean really it's just too 'convenient' for words.

Anonymous said...

Mary, the secret witness isn't jasmohan bains. Its two high ranking government officials who are afraid to tell their side of the story in public. why else would defence lawyers be opposed to such a ban.

Anonymous said...

Defence lawyers are officers of the court...they're never going to be sanguine about private tête-à-têtes between crown and judge - especially in the 'marginal' circumstances under which this attempt is being made.

If the ratio of the 'Named' case is going to be stretched to fit the current circumstances (unless, as has been suggested, the informants ARE individuals 'like' Jasmohan Bains who are in danger of being exposed, deported and/or physically threatened in a way analogous to the facts in 'Named') I'd suggest defence counsel will have a lot to say about it.

The media should too. If these are disgruntled government employees it will be an even further stretch to make the ‘Named’ rule apply to them. Unless Gordon Campbell’s caucus discipline has been ratcheted-up a few degrees from the level of ‘Fuck you Elayne’

Budd Campbell said...

G West, I am as suspicious of official requests for anonymity and secrecy as anyone. Documents redacted under "access to information" proceedings to the point where there's little more than blank pages connected by prepositions and articles, the unwillingness to share estimates and projections with the general public on grounds of Cabinet confidences, and last but hardly least the secret proceedings under the Security Act where people have no idea what is being said against them, let alone who said it, are for the most part outrageous.

But I wonder though if we shouldn't trust Judge Bennett to sort the wheat from the chaff, to make up her own mind if these people have reason to fear retaliation from mobsters and possible loss of life or limb, or if they are just political and govenment people trying to avoid political embarassment and a loss of votes and patronage.

G West said...


All things being equal I'd agree with you. But this case has been stretched already to the breaking point and I can't avoid the implication that Berardino - for whatever reason - has created this latest diversion out of whole cloth.

Bennett has been, in my opinion, far too lenient in the matter of disclosure already. Her tone seemed to indicate that the long-snagged skein of her goodwill has finally run out along the trail.

She's about all we have to rely upon at this stage.

My fingers are crossed.