Thursday, December 18, 2008

BASI-VIRK: UPDATE ON Tentative date set for Supreme Court of Canada appeal by Special Prosecutor on secret witness issue

UPDATE - 2 p.m. Thursday

Futher to the item below, I have just spoken with Michael Bolton, defence counsel for David Basi.

Bolton confirms that Special Prosecutor Bill Berardino did request and receive an expedited Supreme Court of Canada hearing date on the secret witness issue.

"The Special Prosecutor sought an expedited hearing and the respondents, Basi and Virk, consented to an order for an expedited hearing," Bolton said today in an interview.

I hasten to point out that some posters on this blog and elsewhere have suggested the contrary - that the April hearing date could have been sooner if an expedited hearing was requested - that is simply inaccurate.

On other issues, Bolton confirmed that there was a very brief hearing on Friday December 12 and that further arguments by W.P. Riley, representing the Public Prosecution Service of Canada, will be heard on Monday January 5, 2009 at 10 a.m. When those arguments are concluded Justice Elizabeth Bennett will issue a ruling on claims of litigation privilege and on other disclosure issues.

Pre-trial hearings then resume again the week of January 19, 2009 and also January 26-29 to hear defence arguments that the RCMP should be seen to have deemed to waive privilege on some documents not yet disclosed.

Lastly, hearings on defence Freedom Of Information requests will begin on February 16.

I hope this clarifies some issues and ends speculation regarding the Supreme Court of Canada hearing date.


A tentative date of April 22 has now been set for a one-day hearing by the Supreme Court of Canada in an appeal of two BC court rulings on the issue of secret witness testimony in the BC Legislature Raid case.

The following is the text online at the Supreme Court of Canada's website:

SCC Case Information



Her Majesty the Queen v. Bobby Singh Virk, et al.

(British Columbia) (Criminal) (By Leave)

(Publication ban in case) (Sealing order)

Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch) for information purposes only.

Criminal law - Trial - Procedure

- Whether counsel for the accused may be present at in camera hearing to determine whether informer privilege applies to protect material from disclosure - Jurisdiction of Court of Appeal pursuant to s. 37 of Canada Evidence Act, R.S.C. 1985, c. C-5

- Whether it is a breach of the court’s duty to protect informer privilege to permit defence counsel to learn the identity of an informant or information that might identify an informant on undertakings not to disclose this information

- Whether the first stage of the procedure in Named Person v. Vancouver Sun, 2007 SCC 43, applies such that accused and their counsel are not entitled to attend a hearing to determine a claim of informer privilege where the evidence may or will identify the informer

- Whether s. 37 of the Canada Evidence Act provides the court with discretion to override the substantive rule of law barring disclosure of an informant’s identity

- Whether the Court of Appeal had jurisdiction to hear the appeal in this matter.

The Respondents are charged with corruption, fraud and breach of trust resulting from alleged misconduct while civil servants.

In pre-trial proceedings, they sought disclosure of certain documents and portions of documents.

The Crown requested an in camera, ex parte hearing to determine whether the documents are protected by informant’s privilege.

The Crown seeks to exclude defence counsel from the hearing.


Anonymous said...

seems as though the Van Sun had the exclusive tip on this story.

of course, the Sun did not ask bill berardino the tough questions as to why he could not truly expedite this hearing when there are dates available in Feb 2009. mind you, the media have not asked him any tough questions in the last 5 years. I await berardino's annual quote on the anniversary of the raid where he will state that this "case will go to trial." the only problem is that he will not tell the public that the trial will occur in 2010 because of his delay.

berardino is publicly posturing as "expediting" this case to spin the public. meanwhile, his actions are clearly intending on doing the opposite, namely delaying this case past the 2009 election.

the SCC only agrees to dates in consultation with the appellant (berardino et al). it is through that consultation that dates can be agreed upon. dates are not set simply based upon the whims of the SCC. anyone who attempts to deny this fact is being misleading in order to cover up the true purpose in delaying this case. berardino is more concerned with the impact the testimony and how detailed cross examination of certain witnesses will have during the upcoming provincial election.

the premier's office is constantly monitoring developments in this case and the latest details of which are causing them concern. last I checked, the premier's office did not send people to monitor the legal challenge by the BCTF on the issue of the election gag law.

they are more concerned with the Legislature Raid Case. i wonder why that is...?


BC Mary said...

Bill and PG:

I've just cancelled my subscription to BC's CanWest daily newspapers because they've shown us little or nothing of the Basi Virk developments.

But you've given us confirmation of the April 22, 2009 Supreme Court of Canada date for hearing Bill Berardino's appeal for continuing secrecy in the Basi Virk trial ...

And PG has provided us with some of those tough questions as to why Berardino could not truly expedite this SCC hearing WHEN THERE ARE DATES AVAILABLE IN FERUARY 2009 !!!

There's a lot of talk about shoes in the news lately. I'm waiting for the other shoe to drop in Basi Virk.

Thanks Bill. Thanks PG too.


Anonymous said...

Seems to me that getting leave in a fairly short time should make us all happy. I han't read the Vancouver Sun and anon didn't mention what day. Let's not forget the Supreme Court of Canada gets some really heavy duty stuff to eventually discuss. Thanks Bill for checking out the Court latest bulletins. Wonder where Anon ,PG gets the inside track on available dates? The greatest majority of folks in BC, in my view, don't even remember the raid So any chat on the subject is worthwhile.

Anonymous said...

The SCC summary reads, "Her Majesty the Queen v. Bobby Singh Virk et al. ". Are we to gather from this that the mystery witness's testimony will pertain to the charges against Bobby Virk, rather than those against David Basi or Aneal Basi?

Anonymous said...

Bill allow me to expand on my analysis regarding the setting of the SCC Appeal date.

On Nov 27, 2008 the SCC granted leave for the Appeal. By rule, the Appellant can file their factum within 30 days. The defence can then file their response within 30 days of that and then the Appellant can file a furthur response, if neccessary.

Within those timelines, the papers could be filed by early February, therefore allowing an Appeal to be heard shortly thereafter.

According to the SCC website, there are many dates available in February and March. Here is the link.

That is my rational along with of course, a check for the facts with some lawyers who have argued successfully at the SCC.

I would wonder when Berardino will file his factum in light of the deadlines.

Regardless, I think that you and your readers would agree that the 5 year delay in this case assist the government rather than the defence. My bet is that Berardino doesn't not want to bite the hand that pay him the $300-400 per hour he bills every month for the last 5 years.


Anonymous said...

"Regardless, I think that you and your readers would agree that the 5 year delay in this case assist the government rather than the defence."
Indeed! The defence have only to argue that "justice delayed is justice denied" to have all charges dropped - now that would really assist the government.
I'm afraid you are all losing sight of the forest for the trees...

Bill Tieleman said...

PG - While no one would argue that delays in this case are unbelievable and intolerable, the fact that the defence has not once complained about the approach the Special Prosecutor has taken regarding an expedited hearing in the Supreme Court of Canada appeal would leave me to believe that your complaints are not justified.

Michael Bolton and Kevin McCullough have rarely spared Bill Berardino from criticism in other matters regarding conduct of this case, so I would suggest that they believe he has done exactly what they wished - moved to an expedited appeal as quickly as the very slow wheels of justice turn in this country.

Anonymous said...

The wheels of justice turns slowly, but they're all going down... 'SNAILSKI'

G West said...


With respect, I think you’re a bit of a ‘boy scout’ on this issue.

Defence counsel in this case, and the criminal defence bar generally, do not necessarily have the same ‘interests’ in mind as the public, the press, the prosecution or the government does.

Counsel for the accused are ethically and professionally committed to advancing the interests of Basi, Virk and Basi and no one else and that means defending them against the charges in a variety of ways – all aimed toward achieving a particular outcome for their clients. That’s what they get paid to do. Under some circumstances that may mean a trial; under others they equally serve their clients interests if the judge were simply to dismiss the case. We have known from the beginning of the discovery process that one of the major potential grounds for dismissal will be excessive delay. In fact, it has been clearly spelled out as such from the first filing of their ‘Notice of Application for Discovery’. One ignores this at his or her peril.

The fact that your interlocutors (who sit on the defence side of the aisle in Justice Bennett’s courtroom) haven’t specifically complained to YOU about the possibility that the Special Prosecutor is dragging his feet in expediting the SCC appeal is hardly proof that they won’t use that apparent fact as another argument for dismissal when the time comes. In fact, quite the contrary. Furthermore, the suggestion that the accused and their counsel may well be ‘using’ the singular member of the working press who has been ‘awake’ through this whole process (meaning you) to advance their own ends is something that you, for all your good work, ought not to be unaware is a distinct possibility.

Both defence counsel, the accused and the prosecution, as time and circumstances permit and opportunity guides them, are unlikely not to use the press to advance their own particular points of view.

The public depends, in these days of declining responsibility, increasing irrelevance and failing accountability in the professional media, upon committed working journalists not being ‘taken in’ and furthering the erosion of the public interest.

The other putative bastion of the public interest – or at least as it is meant to be – the office of the Special Prosecutor - seems, on the evidence, to be less concerned with expediting these proceedings than ANY interested member of the public has a right to expect. I hope you’ll continue your good work on this file with a little less ‘human kindness’ and a little more ‘critical skepticism’. Someone has to be willing to tell the truth here – all of it!

Anonymous said...

I believe Gordo and his gang are delaying "Every Which Way" until after April 01, 09 when Gordo's TILMA is to come into effect!
Every thing seems to be connected to April 01, 09.

Anonymous said...

How shameful that 'good' members of the RCMP, can live with the quilt of, NOT BLOWING THE WHISTLE!!This atrocitity has put the safety of all Canadians at risk! Shame on Jamie Graham too!

BC Mary said...


Something you said about that SCC date of April 22, 2009 sticks in my mind. You commented (above):

"Michael Bolton and Kevin McCullough have rarely spared Bill Berardino from criticism in other matters regarding conduct of this case, so I would suggest that they believe he has done exactly what they wished ... "

I think so too.

But I think the Defence is seeing the April 22, 2009 date NOT in expedited terms, but in terms of delay, and more delay.

Would you say -- from your observations of the Defence lawyers in BC Supreme Court lately -- that they're depressed about that?

Nope, I didn't think so. They're altogether too happy about these latest developments, if you ask me. Almost high-fiving.

And nobody has explained the strange way that the "expedited" date was announced, either, in an unsourced remark by Neal Hall. Is that the way to announce a Supreme Court decision of this magnitude?

PG describes Berardino as "publicly posturing as 'expediting' this case to spin the public ..." and my hunch is to believe PG, who then locks in his point by providing those February dates which were available but bypassed.

It all fits too doggone neatly for people who don't want an expedited SCC hearing or, for that matter, who don't want a BCSC trial at all.

Just my feeling.


Anonymous said...

I agree, G West: "Someone has to be willing to tell the truth here – all of it!" This seems to be a tough act for anyone in our politicized justice system or Govt. to do these days.

With respect, Bill I join G West and BCMary in having a critical skepticism of the games being played in the whole putrid political cesspool that lays before us re: the BC Raid on the Leg trial created by the upper echelons of the wheelers and dealers of the BC Supreme Court system, the Govt, the RCMP and the MSM all in one big bed together.

It is what it is - what all big politically tainted trials become to protect their fellow wheelers & dealers of the systems all connected with big vested interests. I'm a measured gambler, but I'd stake my house on this reality.

Of course, G West is correct that the defense, like the Govt have a common desire: make this trial evidence go poof vaporized & suppressed into the bowels of the earth.

Dream on if anyone actually believes that Special Prosecutors are independent from poltical bias! That is a fairy tale long gone. SP have become tools of the poltical agenda of the day; in a prime position to do a lot of sanitizing in their daily duties as they are being fed by the Govt. hand, as another poster suggested.

I aint talkin' from naivety . . . what we are seeing with the Basi/Virk debacle is a pattern where every trick in the political trade is pulled to protect the abusers, the bad boys & girls as strings are pulled left, right and center. I've seen it all up close and personal and it ain't a pretty picture.