Thursday, October 29, 2009

Could delay of trial throw out Basi-Virk case? Ontario Court of Appeal overturns delay of trial case with BC Legislature Raid implications

Ontario Court of Appeal overturns lower court stay of charges over length of time going to trial, with clear implications for Basi-Virk case

On Wednesday the Ontario Court of Appeal made a ruling that could have significant impact on the Basi-Virk, BC Rail corruption case, increasing the likelihood it will actually go to trial.

The Ontario Court of Appeal overturned a lower court judge's decision to stay charges against five drug squad police officers because of the "unreasonable" delays in bringing their case to court.

"There was no unreasonable delay in this case. This complex case proceeded at the pace contemplated and dictated by the parties," the three member panel of justices decided.

"Admittedly, 56 months is a lengthy period of time, but it was not unreasonable These are very serious charges."

"This case proceeded slowly, but it also proceeded at the pace dictated by its complexity and the actions of all the parties," Justice David Doherty, Justice Marc Rosenberg and Justice Michael Moldaver wrote in their decision.

"Far from this being a case where the vast majority of the 56 months passed because of the Crown's failure to make full disclosure, virtually none of the time can be so characterized," they wrote. "This was a complex case that required and would require significant expenditures of court time."

[The five officers were charged in January 2004 with attempting to obstruct justice, perjury, assault and extortion. They are accused of falsifying notes, robbing and beating drug dealers, and conducting illegal searches between 1997 and 2002.]

In other words, 56 months delay - almost five years - is not sufficient for a stay of charges in a complex case.

Given that there are literally "millions" of pages of evidence in the Basi-Virk case and that there is an outstanding appeal to the Supreme Court of Canada by the Special Prosecutor over the issue of a "secret witness" with still no decision and that there have been issues of Parliamentary privilege, solicitor-client privilege and cabinet privilege, I highly suspect that "complex" doesn't begin to describe this case.

There's still another potential wrinkle - the defendants, backed by the Toronto Police Association - their union - may seek leave to appeal the case to Canada's highest court - the Supreme Court of Canada.

At the time the case was stayed, the NDP opposition was furious in the Ontario Legislature.

Does this sound familiar: "It's despicable that the biggest corruption investigation in the history of Canadian policing was thrown out because of unreasonable delays."

That was NDP Member of the Provincial Parliament Peter Kormos when the case was originally thown out of court for delay.

I can easily hear BC NDP MLA Leonard Krog saying nearly the same thing if Justice Anne MacKenzie were to toss the Basi-Virk case - but this decision, if upheld by the Supreme Court of Canada - makes that unlikely.



Anonymous said...

I bet that the trial will be delayed again because of the Olympics.

Could you imagine BC's Greatest Leader the subject of an on-going trial while the world's press are here!!??

So at the very least the "Honourable" Gordon Campbell Premier of BC will escape the shame until at least April 2010.


Anonymous said...

Bill, I think that the Leg Raid case has had many examples of the Special Prosecutor and the RCMP failing to disclose critical evidence and that lead to the decision by Justice Bennett to order the special prosecutor to disclose "every piece of paper".

Having said that, the issue that truly impacts the delay of this case proceeding is the Special Prosecutor appealing decisions from the Supreme Court of BC and the Appeal Court of BC. We continue to wait until the Supreme Court of Canada delivers a decision.

Ron said...

Thanks for keeping us up-to-date Bill.

This,and the previous item help a concerned citizen such as myself to better understand this complex case. I also found your A to Z directory particularly helpful.

Leonard Krog's observations also give a useful perspective.

Keep up the good work, Bill.

Anonymous said...

And will it be the prosecution that brings this precedent to the judge's attention?