Friday, July 18, 2008

Special Prosecutor, defence lawyer reject NDP demand that Attorney-General Wally Oppal intervene in Basi-Virk case to drop Supreme Court appeal

Both the Special Prosecutor and a defence lawyer are rejecting a call from New Democratic Party MLA Leonard Krog that BC Attorney-General Wally Oppal intervene in the BC Legislature Raid case to force the Crown to drop its appeal to the Supreme Court of Canada over the secret witness issue - an appeal that might delay the trial by another year.

Krog today called on Oppal to use his authority under the Crown Counsel Act to stop further delays in the case of three ex-BC Liberal aides facing corruption charges by directing Special Prosecutor Bill Berardino to drop his attempt to overturn rulings by the BC Supreme Court and the BC Court of Appeal over the issue of a secret witness who is a police informant.

Berardino objects to a ruling by BC Supreme Court Justice Elizabeth Bennett, who decided earlier this year that defence lawyers could be present in the court for an explanation by the Crown as to why it wants a police informer to testify in secret. Even that explanation could lead to the defence identifying the informer, Berardino unsuccessfully argued, and not being able to call the secret witness might mean the entire trial could not proceed.

“Serious disclosure issues, the Campbell government’s privilege applications and its chronic unwillingness to cooperate with the B.C. Rail investigation have plagued this trial right from the beginning. And now, special prosecutor Bill Berardino’s latest move to appeal a B.C. Court of Appeal decision on a secret witness can further delay the trial by up to a year,” said Krog.

David Basi, former aide to then-Finance Minister Gary Collins and Bob Virk, former aide to then-Transportation Minister Judith Reid, both face breach of trust and fraud charges in which is it alleged they provided confidential government documents about the $1 billion privatization of BC Rail to lobbyist Erik Bornmann, who was acting for bidder OmniTRAX at the time. Aneal Basi, a communications officer and David's cousin, is accused of money laundering related to payments made in the case.

“The public interest in getting this trial off the ground far outweighs the other considerations. In light of this, attorney general Wally Oppal must use his legal authority and direct the special prosecutor to drop his appeal to the Supreme Court of Canada. The general public would be much better served in getting the trial underway instead of spending months protecting the identity of a secret witness,” Krog said, citing Section 7 of the Crown Counsel Act.

But outside BC Supreme Court, where a hearing over a proposed publication ban and media objections has concluded, David Basi's lawyer Michael Bolton did not support Krog's call for Attorney-General Wally Oppal to order Berardino drop the appeal.

"It would be highly unusual for the Attorney-General to get involved at this stage," Bolton said. "Other than that I have no comment."

Berardino, in a telephone interview late today, also disagreed with Krog's position. And he said he has asked the Supreme Court of Canada to expedite his appeal in order not to delay the trial.

"Informer privilege is fundamental to the administration of justice and the investigation of crime," he said. "Informer privilege required legal obligations of the court, the Crown and the police and that is not to breach the law of informer privilege."

"Four judges have made four judgements on this issue - the trial judge [Justice Elizabeth Bennett], Justice [Catherine] Ryan [of the BC Court of Appeal, who dissented from the majority decision to reject Berardino's appeal], Chief Justice [Lance] Finch [who upheld Bennett's original ruling against Berardino] and Justice [Ian] Donald [who also upheld Bennett's decision with his own reasons]," Berardino said.

"I would be remiss in not seeking to clarify the lawy in regard to the oustanding judgements to ensure the court, the Crown and the police do not breach the law," he said.

"I'm asking the Supreme Court of Canada to expedite their process so that there will be no delay in the trial," Berardino concluded.

But told of the reaction to his request late Friday, Krog remained undeterred.

"Denying the application for defence counsel to be present is something that goes against the rights of the accused to a fair trial," Krog said by telephone from Nanaimo.

"Taking this to the Supreme Court of Canada will create a significant delay. This issue can be litigated at a later date to see if informer privilege outweighs the rights of the accused, the public interest or whatever," he said.

Krog cited Section 7 of the Crown Counsel Act in suggestion the Attorney-General intervene. That section states:

7(4) If, after a special prosecutor receives the mandate under subsection (2), the Attorney General, Deputy Attorney General or ADAG gives a direction to a special prosecutor in respect of any matter within the mandate of the special prosecutor, that direction must be given in writing and be published in the Gazette.

Meanwhile, media lawyers Roger McConchie and Ludmila Herbst concluded arguments in front of Justice Elizabeth Bennett against a proposed order that would impose a publication ban on about 90 government documents related to the BC Rail deal which the defence is seeking to review and possible use in the trial. McConchie was representing the Globe and Mail newspaper and CTV, while Herbst represented the Vancouver Sun and Province newspapers and Global TV.

Yesterday McConchie suggested the provincial cabinet was trying to impose a "secrecy package" to block public access to the documents.

The defence and government have reached an agreement on access to the documents, which meant both sides argued in court against the media lawyers' requests.

After hearing further arguments and replies from government lawyer George Copley and defence lawyers, Bennett reserved judgement until Friday July 25 at 9 a.m.

Outside court McConchie was encouraged that Bennett had not issued an immediate ruling, despite the fact that both the government and defence opposed his arguments.

"It's clear from the fact that she has reserved judgement until next Friday that this raises issues that are not simple," McConchie said. "They are complex issues of privilege which even to most lawyers are exotic."

McConchie, who has practised law for more than 30 years and has represented the media many times in seeking access to court documents and information, said he was not surprised the defence did not agree with his and Herbst's position.

"Defence lawyers want access to those documents, so I didn't expect their support," he said.


Anonymous said...

And so the saga contimues, the lawyers keep making lots of money which we end up paying, and the accused don't get their day in court. A quick route to the Supreme Court of Canada may not really be that quick since the whole thing got going by raiding the legislature, a most unusual occurance. Everyone saw the raid on TV a number of times and since then nothing has gone very far. One hopes the memories of those involved won't be lost due to the delays.

Anonymous said...

Hollow words from Mr. Berardino. The people of BC expect him to get out of his office and into the courtroom in order to begin this trial.

Shame on you Mr. Berardino.

Gary E said...

Given all the delays in this trial, one thing that stands out here is that Berardino himself has requested that The Supreme Court expedite this Appeal.

Anonymous said...

To Gary E;

Berardino asking for the Supreme Court of Canada to expedite his appeal is like the builders of the leaky condos asking their victims to hire them to fix the problem they created in the first place.

What did you expect Bill to say? Maybe you should go back to your secret source in and ask her for a different spin - while you are at it ask her why he doesn't abide by the ruling and get on with it!

I have some water front land in Florida if you believe the spin from the sp.

Anonymous said...

To gary e:

What do you expect the SP to say after all his delays and his refusal to handover key documents.

Why doesn't he just accept the two decisions by Justice Bennett on this issue and the majority decision written by the Chief Justice of the Court of Appeal. Or is that too much to ask from ole Bill??

Come to think of it, why is he protecting Campbell by playing this little game with key documents where the judge herself, let me repeat that, Justice Bennett herself stated "innocence is at stake"?? These are her words!! Didn't ole Bill call it "hogwash" when he was asked why the government is withholding key documents.

I think its been stated here before but I would like to say it again, what a sick and pathetic joke this has become!! There have been 15 court dates that have come and gone all thanks to a special prosecutor who continues to delay and drag his feet. The obvious question is WHY??

This Special Prosecutor should be at the front doors of the legislature demanding key and sensitive government documents should be handed over to the defence - indeed they should be tabled in court and available for all to see. What does an open and accountable government have to hide? Why is a Special Prosecutor who is supposedly free from political interference refusing to carry out his duties with respect to prosecuting this case. WHY WHY WHY?? So many questions and so few answers!!

Budd Campbell said...

I think it's good that the Opposition A-G critic is articulating a position on this matter. It shows that you need some fully qualified people in politics, in Krog's case a lawyer.

However, I would have one critical question for Leonard Krog. If Oppal were to issue such an order, that is that Berardino go ahead without his appeal on the witness anonymity matter to the SCoC, what happens to this case if Berardino resigns in protest? IOWs, if Berardino feels he has no case without the secret witness, and is unwilling to let defence counsel find out who that person is. what's the next step, and how long does that take?

Anonymous said...

Bill the more I try to understand the Special Prosecutor's position the more questions I have.

Question: Can the Special Prosecutor approach this secret witness and try to work out an arrangement? This would be similar to the Tom Elison trial where a witness testifies in secret.

Question: How do we know if this person qualifies for "informant" status? What evidence is there?

Question: How can Berardino claim that the Appeal will be expedited when he has absolutely no control over it? Wouldn't any case request the ability to be expedited? Seems like a hollow claim.

Question: Can a star witness also be a secret witness? For example, could Erik Bornmann be both a star witness and an informant on other people involved with the investigation? Seems to me that this scenario could explain the behaviour of Bill Berardino to try and protect this person to the ends of the legal system in order to maintain Bornmanns credibility.

More delays, more questions and another election on the horizon without a resolution to this scandal.

Anonymous said...

Anyone who thinks STONE-WALLY is going to put Basigate back on track just doesn't get it.

Premier Norman Bates and Stone-Wally will make sure that nothing messes-up their grand 2010 photo-op.

So the "evil empire" having successfully sandbagged this case for five years are pretty sure with the help of BC's butt-kissing media that they can play this out for twenty more months.

After that, just try getting a sober Premier Norman Bates back from Maui to testify about anything.

As for a newly minted Senator Stone-Wally, he will do a Reagan/Iran-Contra and not recall anything 2001.