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BASI-VIRK: Supreme Court secret witness decision may derail case

A Supreme Court of Canada decision expected shortly could either delay the long-awaited B.C. Legislature Raid corruption trial of three former B.C. government aides by up to a year – or kill the case altogether.

Special Prosecutor Bill Berardino told B.C. Supreme Court Wednesday he believes the Supreme Court of Canada will announce if it will hear his appeal about potential secret witness testimony within the next week to two weeks.

If the Supreme Court of Canada agrees to hear the appeal, a one-day hearing is expected sometime this spring, possibly in March 2009, and a ruling could take many months more, almost certainly pushing the trial past the May 12, 2009 provincial election date.

But if the Supreme Court of Canada declines to hear the appeal, Berardino has previously hinted he might simply drop all charges against former B.C. government aides David Basi and Bob Virk and Aneal Basi on allegations of corruption connected to the $1 billion BC Rail privatization in 2003 - ending the case without it ever going to trial.

Berardino is appealing two BC lower court decisions allowing defence lawyers to be present to hear arguments about why the prosecution wants a witness to testify in secret.

And starting November 24 B.C. Supreme Court Justice Elizabeth Bennett will hear up three weeks of arguments over disclosure of nearly 400 RCMP documents related to the corruption investigation followed an unprecedented police raid on the B.C. Legislature on December 28, 2003 - almost five years ago.

The only hint of the potential political impact that the trial could have came when Virk's lawyer Kevin McCullough told Bennett that a Freedom Of Information request filed by the defence for government documents was producing significant results.

"The disclosure we've gotten has been voluminous and extremely relevant," McCullough said. That FOI process is also subject to a vetting process by the government and any documents it refuses to release may end up in BC Supreme Court for adjudication by Bennett.

The defence filed an application to be heard Monday seeking that Bennett give "orders or directions" on disclosure because they argue that "the RCMP continues to assert privilege" over up to 400 documents in dispute.

Outside court David Basi's lawyer Michael Bolton said that the application deals with: "The nature of privilege - which kind of privilege it is, the description of the subject matter - if it is similar to documents the Special Prosecutor has already released to the defence."

Bolton said the pre-trial court hearing will likely deal with the issue document by document and that the defence has not seen any of the RCMP evidence in question.

"We're seeking further and better descriptors," Bolton said of the short summary the defence has been provided about what the content of each document is.

The Supreme Court of Canada appeal would hear evidence about whether an initial decision by Justice Bennett - subsequently upheld by the BC Court of Appeal - should stand.

Bennett ruled that defence lawyers could be present in court to hear testimony about why the Special Prosecutor wants the identity of one witness to remain completely secret - including banning not only the public and media but defence lawyers from that hearing.

Bennett's ruling would have allowed the defence to be in court to hear the arguments provided they gave an undertaking not to disclose any of the testimony to their clients or anyone else, while the public and media would be excluded.

The BC Court of Appeal ruled 2-1 to uphold Bennett's ruling but legal observers believe that because of the split ruling and the importance of the issue of secret witnesses for future cases, the Supreme Court of Canada is likely to agree to hear Berardino's appeal.

If so, a one-day hearing in Ottawa before the full Supreme Court of Canada would take place, with all defence and Special Prosecutors team lawyer flying to the capital to give their arguments.

The Supreme Court of Canada can make decisions quickly but it can also take up to one year or more to rule.

In the appeal of Dr. Jacques Chaouilli - the Quebec doctor who argued that preventing patients from seeking private medical treatment violates the Quebec Charter of Rights - the Supreme Court of Canada heard arguments in June 2004 and rendered its decision in June 2005 - a full year later.

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