BACKGROUNDER - Basi-Virk secret witness issue arose in July 2007 - precedents set in Air India bombing case

Today's Supreme Court of Canada decision on the issue of how to deal with testimony by a secret witness for the Special Prosecutor in the BC Rail corruption case has its roots in the Air India bombing trial.

The following excerpt comes from a story first published here and in The Tyee in November 2007:

By Bill Tieleman

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.

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 allusionsBennett 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."