Monday, November 16, 2009

BASI-VIRK - Supreme Court of Canada decision on secret witness issue comes Thursday 6:45 a.m. - will trial proceed?

The most anticipated decision in the BC Rail corruption case of David Basi, Bob Virk and Aneal Basi will come at 6:45 a.m. BC time from the Supreme Court of Canada.

The Court has announced today that it will release its ruling on Special Prosecutor Bill Berardino's appeal of two BC lower court decisions on the issue of a secret witness and how his or her testimony should be handled.

Berardino hinted at one point the trial might not go ahead if the identity of a secret informant could not be fully protected, stating he would not violate the privilege of the witness to remain unknown.

"This Crown will not breach this privilege in this case ... we will not resile from this position," Berardino said last year. He has since said the prosecution will do everything it can to proceed regardless of how the Supreme Court of Canada rules.

The earlier rulings by former Basi-Virk trial judge Elizabeth Bennett and the BC Court of Appeal went against Berardino's request that the court be cleared of not only the public and media but defence counsel as well - leaving just the judge and Special Prosecutor team to discuss why the secret witness's identity and testimony requires as much protection as has only rarely been given - most recently in the Air India trial.

The Supreme Court of Canada heard arguments from both Berardino and defence lawyers on April 22, 2009.

Visit this website Thursday morning for the decision and full analysis of what it means for the likelihood of the trial proceeding.



Kam Lee said...

Berardino, who is he working for? It seems to me that he has a secret agenda. He should have stepped aside when he took those many, many months off. Why was he off? Was he still paid? Is he on the gordo food chain. Would not surprise me. He personally slowed down the trial for those many months. Now he is "protecting" a witness? Who might this be?

Anonymous said...

Here we go, the decision that will impact the rest of this trial.

This has been only 6 years in the making...

Anonymous said...


Regardless of the precedent that this decision will make, I am looking forward to how this may impact on our civil liberties.

Secret witnesses have the ability to challenge our charter freedoms and I trust that BC civil liberties association will voice an opinion.

Eleanor Gregory said...

I think it very timely that the SCC will hand down its decision on this November 19--the 151st anniversary of the reception of English law in British Columbia.

As set out in the Law and Equity Act, R.S.B.C. 1996, c. 253, s. 1, "Subject to section 3, the Civil and Criminal Laws of England, as they existed on November 19, 1858, so far as they are not from local circumstances inapplicable, are in force in British Columbia, but those laws must be held to be modified and altered by all legislation having the force of law in British Columbia or in any former Colony comprised within its geographical limits."

DPL said...

THanks for the heads up Bill. I for one will be checking the Supreme Court of Canada site first thing Thursday morning. Fingers crossed

kootcoot said...

All thirteen BC Rail cultists are holding our collective breath, awaiting the decision of the learned justices - and even more, anticipating the reaction from Wild Bill if the decision goes against his inquisition style request!

"Berardino, who is he working for?"

I keep asking the same question as Kam Lee. I know who is paying Wild Bill for his sporadic services, what I don't know is who is/are really his client(s)!

Kam Lee said...

Berardino, who is he working for? Doesn't work for us. He seems to have many bosses, all named gordo.

kootcoot said...

DPL, I figure I'll hear the short version as I wake up to the early morning news on CBC radio Thursday morning. I don't know if the decision will be covered by CTV or Global, it will depend on the decision and whether it is good for Gordo or not!

I'm not as curious about the actual decision as I am about Berardino's response, if it goes against him.

If the SCofC goes along with Bill, it will be proof that there isn't a functioning justice system in Canada and we will need to start over from the days of the Spanish Inquisition (or earlier) and redo 500 years or more of evolution of common law and open jurispudence.

As a citizen I certainly am getting tired of the Campbells, Harpers et. al. refusing to abide by decisions of the court and appealing everything to the last gasp on my dime (or re-writing the legislation). No one would ever pay a parking ticket if they could appeal everything, all the way, at taxpayer expense!

I used to think Attorney-Generals' and Solicitor-Generals' task was to enforce/administer the law, not fight it on behalf of their political masters.

Skookum1 said...

I"m curious as to the meaning of privilege in the application; does "informant's privilege" mean privilege because of the informant, or is it a passing reference to cabinet privilege; or would that be stated clearly if that was the case? i.e. is the privilege due to the witness being an informant, or is it a privilege that the informant has (or had)? Certainly a possibility IMO....

The other secret proceeding at present, or at best semi-secret, is the ALR case that is under "limited access" - the media (and public?) can attend, nobody can speak of what they've seen/heard. This is to protect the Basi-Virk proceedings, allegedly, and there is a certain logic to that. But what if the same argument is going to be made in that case as is being made in the BVB pre-trial hearings? i.e. that they were acting on the orders of their superiors (with the implication being that chief among those was the Premier), and reflected intentional policy on the part of cabinet?

And could it be that further facts related to BVB that come up in the other trial will not be known about until after a BVB verdict - or dismissal/mistrial?

Transparent government we have little of; transparent justice even less....

Bill Tieleman said...

Skookum1 posted this comment - I accidentally hit reject - here it is:


Fraudulent and conspiratorial sale/giveaway of public assets without due process is what the deleted emails are about; the money laundering is just the dirty bookkeeping. The big fish on the platter are the political and corporate headmen who concocted the deal, and who directed (as is so clearly, clearly evident) the destruction of emails evidence and no doubt exerted political pressure to keep BVB under wraps until Justice Bennett finally opened the lid on first the proceedings...and then on the evidence....with Crown determined, it seems, to shut down both.

This may backfire; couldn't the Supreme Court order the witness to testify, with a threat of contempt, because of the public interest. Is their personal privacy really equal to the whole weight of the argument put forward by defence, and the whole weight of the public interest in the right to transparency in corruption proceedings? Are they so important that their evidence is sufficient to wipe the slate clear of all other evidence and argument, all without any public knowledge of who and why? If it's such compelling evidence, why the secret-identity game? I hope at least one SCC justice chastises Crown, and the witness, for placing personal interests above that of the people, and of democracy.

Venal self-interest is a byword in the country's business set, though, isn't it?

If the witness is afraid of a hit squad....all the more reason for the public to know, I'd say. Probably not teh case, but like the Dick Cheney theory (in which you could plunk GWB, Ross Perot, Bill Gates et al. rather than Cheney) there are bigger - and stranger - things afoot here than just local hornswoggling, I think...."

Bill Tieleman said...

However - I DID reject Skookum1's second comment - because it speculated on the identity of the secret witness.

That, my friends, would be contempt of court - and I have several legal opinions on the issue because I wrote a column on possible candidates for the secret witness and our lawyer at 24 hours kept me out of harms' way or the crowbar hotel by telling us not to publish it.

That's a view confirmed by several other lawyers as well.

So, if anyone wants to speculate knowledgeably about who the secret witness is - don't expect to do it here - this is Canada and we don't discuss the possible identity of secret witnesses protected by the courts!

Deep Throat said...


As i said before there is no secret witness.

Anonymous said...

I'll check your blog first thing in the morning, Bill.

And thanks again for this important public service.

RossK said...

To Deep Throat:

Of course.

As for Secret Esophagi...

Well, that is a different matter entirely.


And as the 14th Cultist, I too very much look forward to your full report Mr. T.


Skookum1 said...

It does amaze me that mere speculations on the identity of the secret witness would be subject to contempt of court......

BC Mary said...

Hey ... hey!

I thought our good friend Krog said there were 19 people interested in the BC Rail Case.

And y'know what? Lately, with further news of Gordo's hopes, dreams, and disasters, I am more convinced than ever that if the BC Rail Case had gone to trial early, and the method challenged (maybe if Krog had helped),

a lot of terrible things would not have happened in B.C.

The template was laid bare with the BC Rail Case and has been repeated again and again ... BC Hydro, BC Ferries, BC Gas, BC Utilities Commission, and more ... each time leaving people poorer, and wondering "Is this madness?"

Yes, I think it is.