Monday, March 29, 2010

Publication ban prevents any reporting of today's Basi-Virk pre-trial hearing

I was in BC Supreme Court today for a pre-trial hearing in the Basi-Virk/BC Legislature Raid case.

And because of a ban on publication imposed by presiding Justice Anne MacKenzie, I can't report on any - repeat any - of today's proceedings - or any others that may be scheduled.

Not now and not until a verdict has been reached in the trial that starts May 3.

The only possible bit of news I can report to you is that it appears MacKenzie recognized the error in her original March 2 publication ban - that ban would have prevented media from reporting on the trial itself for its duration!

As previously noted on this blog, MacKenzie's publication ban - instituted on her own order and not requested by either Crown or defence counsel - read as follows:

"Pursuant to s. 648 of the Criminal Code and the inherent jurisdiction of the court, no information about these proceedings including evidence, submissions, rulings and Reasons for Judgment shall be published in any document or broadcast or transmitted in any way until the jury renders its verdict or until further order of the Court."

Note that there is no reference to "in the absence of the jury" - if that phrase were included media could report on all matters the jury was present to hear - in other words, the evidence presented, testimony of witnesses, etc.

However, it appears that on March 4 - two days after the publication ban order was signed by MacKenzie - that the ban was revised to include that phrase.

The Supreme Court of BC website publication ban section now reads as follows:

"Vancouver Supreme Court

Registry Number: 23299

Case Name:R. v. Udhe Singh (Dave) Basi

Date: 04/03/2010

Pursuant to s. 648 of the Criminal Code and the inherent jurisdiction of the court, there shall be no publication in any document or broadcast or transmission of any evidence, submissions, rulings or Reasons for Judgment given in these proceedings in the absence of the jury until the jury renders its verdict or until further order of the Court."

That indicates daily testimony in front of the jury will indeed be reportable - thank goodness!

Meanwhile - I would love to tell you what was discussed in court, which lawyers representing which clients were attending, who else was present, and what was decided - but I can't.

The reasons are rather clear based on the Criminal Code section Justice MacKenzie cites above:

Criminal Code s.648 - Restriction on publication

(1) After permission to separate is given to members of a jury under subsection 647(1), no information regarding any portion of the trial at which the jury is not present shall be published in any document or broadcast or transmitted in any way before the jury retires to consider its verdict.


(2) Every one who fails to comply with subsection (1) is guilty of an offence punishable on summary conviction.

So, you will just have to wait until the trial ends - and hope there are no further restrictions on reporting during the trial itself.



Norm Farrell said...

BCCLA, BCPIAC, Cameron Ward, Joe Arvay, Phil Rankin and other lawyers interested in the public interest - where are you?

Apparently the morally and financially bankrupt Canwest Newspapers won't act to overturn this ban on an important political trial.

Maybe blog world readers can put up $20 each and make this judge account to a higher court. Wouldn't it be nice if an order by the Appeal Court were written by Justice Bennett.

Anonymous said...

I was just on under provincal members and Rich Colemans handle is...colemancountry
they`re taking over!

Anonymous said...

Well Bill, "we only cheat when we can't win" . . . The GREAT SATAN

BC Mary said...

How can a judge make such a blanket ruling forbidding us from knowing or even asking about the evidence being given in a case so important to the public?

Surely this is illegal ... unconstitutional ... and if so, is this the point? Another road-block, another delay?

How unbelievably offensive ... are we really going to put up with this?

G West said...

Can you reading of subsection: (1) - information regarding any portion of the trial at which the jury is not present shall be published in any document or broadcast or transmitted in any way before the jury retires to consider its verdict..

Presumably this is just the usual kind of thing to prevent the publication of specific information from these pre-trial hearings 'after the jury has been impanelled' or from today until the actual trial begins. Is this correct?

Just the method of avoiding tainting of the jury....

Bill Tieleman said...

Thanks Gerry - nothing from today's or any other previous pre-trial hearing in the last 4 years can be published until the trial verdict is delivered.

Only what happens in the court with the jury present can be published.

As such, media cannot print summaries of what has previously happened in the long 6 years since the Raid on the BC Legislature - no discussion of the defence or Special Prosecutor arguments, the disclosure issues - none of it.

No one want to see the jury improperly influenced or the rights of the accused jeopardized but I believe that in a case where there has been so much public discussion for so long these restrictions are unfair and unnecessary.

As to a challenge - we'll see if there is media interest but as I said, the main thing is that restrictions on daily reporting of the trial have been removed it is now clear.

G West said...

So, is anything, for example, your own archives of material published concerning the case - including things revealed at hearings from the time Judge Bennett first sat - embargoed?

DO you, and every other online source that has published 'anything' about the trial (ie reports from the court) both before and after now have to make their archives unavailable until the trial proper starts?

Somehow, this seems very strange and certainly requires clarification.

Too bad Mr Justice Bouck is no longer with us!

MonkeyMan said...

So what you're saying is you're not saying. Riveting. Please tell me you have something better planned for tomorrow in 24 hrs.

Bill Tieleman said...

Thanks again Gerry - GWest that is - I considered not publishing your comment because I really would hate to think that the possible answer is "everything".

I can tell you this - I will not be publishing anything that is based on my previous reporting - none of it - until the trial verdict is reached.

I believe that the publication ban refers to anything newly "published" - not previously - or else CanWest Global, BC Mary, the Tyee and a raft of others would have to hunt down every single article and take it off line - so would InfoMart and other data providers.

This - again, I would hope - would be an unreasonable position for the courts to take.

But I can't give you a definitive answer.

Anonymous said...

The law lost its mind!

Neale Adams said...

Bill, are you making something out of what is pretty routine?
Generally, all courts deny publication of evidence before a trial begins. A pre-trial hearing is just that, "pre-trial."
In the US, a secret panel, the Grand Jury, considers evidence. Publication of its proceedings is banned. And in any case, reporters can't get into the Grand Jury sessions.
In Canada, we aren't that secretive. There is a pre-trial hearing in open court. But you can't broadcast it.
Or am I missing something?
I do agree that if the judge forbid publication of evidence presented during the trial, that would have been unusual, and I'm sure the major media in addition to you would have objected to such a ban.

Anonymous said...

Does that cover information that doesn't pertain to the trial such as the fact that the Special Prosecutor donated money to the BC Liberals while in his position as Special Prosecutor?

G West said...

I know this is tedious Bill, but I think it's also important. Would someone who suggested readers might like to look at a specific piece of your own previous reporting - referring to it as, let's say, material published in, for example, January of 2007, be in violation of the order?

My reading of your answer suggests that since such a reference does not re-publish something which is already in the public realm, it would not be covered?

Thanks for your time and, as always, your reporting is appreciated.

On the other hand, I must say that the way the current judge is handling these matters seems very peculiar!

Bill Tieleman said...

Neale - thanks for your question - I am not a veteran courtroom reporter but Basi-Virk is not your "routine" case.

Yes, publication bans are common in a jury trial - but rarely if ever do you have 6 years pass before the trial in a highly-publicized case involving alleged political corruption at the highest levels.

I can only say that several lawyers I have spoken with were concerned about the original sweeping nature of the ban. Since today's information I've had little time to consult widely but I can assure you that some significant concerns remain.

GWest - I could only guess that referring others to a previously published article without "re-publishing" what was said would not be "publishing" but that's like getting advice from a jailhouse lawyer.

What must be noted is that the entire area of publication bans has been thrown into disarray due to the Internet - a relatively new development compared to the history of centuries of common law practices.

It's also interesting to learn of other publication bans elsewhere.

In Toronto in the case of the murder of Jane Creba, a publication ban was criticized by experts as being out of date with the times.

This is from the National Post September 21, 2009:

***While the Crown and defence often seek publication bans in high-profile cases, there is no academic research that proves that a jury cannot carry out its duties fairly as a result of media reports, said Jonathan Freedman, an emeritus professor of psychology at the University of Toronto.

"It is the evidence that matters," said Freedman, who is an expert on publicity and the impact on juries.

"The one exception is if there is evidence that has been excluded from the jury and it is reported by the media," he explained....

Ryder Gilliland, a lawyer who acted for the media in the Creba case, said bans run counter to a criminal justice system based on faith in the jury system.

"Implicit is an assumption that jurors will not be able to try the case fairly. We think that is wrong," Gilliland said. ***

Regardless of Basi-Virk, this is an important issue for public debate.

Norm Farrell said...

Neale Adams, are you making nothing out of something?

The grand jury process is not equivalent to the state of the Basi/Virk trial. Grand jury is a secret (sort of) process in the USA to determine if a charge should be laid. It is not part of a trial. Hardly a comparable situation.

Why wasn't Canwest in court on March 3 after that initial order?

RossK said...


This is a very naive, and a very general question, but....

(and I'm speaking very generally about all criminal proceedings here)

...Would it not be the case that such bans would be much more likely when a trial is about to go before a judge and jury rather than just a judge?


Bill Tieleman said...

RossK - yes - and that's exactly what has changed in this case - the defence successfully negotiated a change to a jury trial.

Had this been a jury trial all along we might not have been able to report most if any of the pre-trial hearing arguments - in other words, you might not know anything about the Basi-Virk case except that charges were laid.

That's one of the major arguments against a sweeping publication ban in my view - the genie is out of that bottle already.

Anonymous said...

We just finished with the Berlin 1936 Olympic Games here in BC.

And now we start along the same road Germany took in 1944-45 with its secret People's Courts.

Campbell's BC state controlled media doesn't even know there is a trial happening they continue to report on "important issues" like Sandra Bullock and Jessie James.

"Adolf" Campbell will never surrender power even when he trapped in his concrete bunker in Victoria.

So don't be surprised if for some special reasons there are no elections held in BC for a couple of decades.


RossK said...

Thanks Bill.


(and sorry for jumping all over your story on the Coulter-Cult over at the Big's just that I had a couple of sidebars on goings on at Western and Calgary last week that, I believe, support your thesis)

Skookum1 said...

the genie is out of that bottle already.

I think the paradigm is more Pandora's Box.

According to other interpretations (as posted on Mary's blog) it seems that re-publication of previously published materials is not covered. So your listing, for example, of what the defence points will be, from quite a while ago, is "fair game". The judge cannot order sealed which was previously public, or which the previous judge in the case opened for the sake of the public interest. The ban, theoretically, only applies to material presented since the ban was imposed, not before.....

It would be an interesting test case, and potentially with a high media profile, for her to press charges against someone for re-publishing material already in the public domain. It is also not politically viable, or I think even constitutional, for a court to order sealed proceedings published in Hansard.

BTW given Justice Mackenzie's obvious experience in blundering this ban's original incarnation, and the lack of direct comment on the correction, I smell Assistant Chief Justice Dohm's hand in this, and given the suspect nature of the original warrants perhaps he, too, has reasons to want to cover tracks for his own sake.......

Perhaps he will make another cameo appearance in court to re-clarify the ban, particularly if enough people in webspace flout it - "throwing down the gauntlet". This has the makings of a Charter case, if the BCSC wants to overturn the Freedom of Expression guarantees in the Charter. Of course, Campbell could always invoke the notwithstanding clause......which would generate only more media controversy.....

Deep Throat said...


Clearly, what is at issue here is that Premier Campbell is now being allowed to play “chicken” with the “accused” in front of Judge MacKenzie under the cover of “darkness”.

Or, to put it more bluntly in the form of a number of questions:

Why are the citizens of British Columbia now being prevented from finding out that Premier Campbell is still refusing to comply with Judge Bennett’s numerous disclosure Orders?

And will Judge MacKenzie finally enforce those Orders? Or, will the “accused” be forced to take the matter to the Supreme Court of BC and then perhaps to the Supreme Court of Canada?

And will “justice” for the “accused” then finally prevail?

kootcoot said...


"Wouldn't it be nice if an order by the Appeal Court were written by Justice Bennett."

That would be poetic justice! All British Columbian's paying attention with the exception of a "select" few, would dance in the streets!

Deep Throat said...


I think you meant to say:

"Deep Throat,

Wouldn't it be nice if an order by the Appeal Court were written by Justice Bennett. That would be poetic justice!”

Kootcoot, yes it would be “poetic" justice but that will not happen because that is not how the “game” is being played!

SharingIsGood said...

Deep Throat said:
"Kootcoot, yes it would be “poetic" justice but that will not happen because that is not how the “game” is being played!"

To continue Deep Throat's thought:

And... to the public's dismay, we wish this were not a "game". In all seriousness, it is our province and our train set, and most of us are finally getting very tired of the BC Liberals taking our stuff and breaking it all up and/or selling it.

Anonymous said...

Why such surprise? You'd think this was an ethical government.
In my humble opinion, this legal exercise was tits up the second Ms. D was on-board.
Lost e-mails and now this.
That premier jet ride to China? Carbon concerns and conflict, my ass, that was marital status publicity for the election. Fools. Shrewd and scary puppet master. What a pox on BC.