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Basi-Virk prosecutor wins landmark appeal

Basi-Virk Special Prosecutor Bill Berardino has won a landmark appeal in the Supreme Court of Canada this morning when the court overturned two BC lower court rulings on the issue of secret witness testimony in the BC Rail corruption case.

The Supreme Court of Canada's decision means testimony about why a police informer must have his or her identity protected will take place with defence counsel, media and the public all excluded - leaving only trial judge Anne MacKenzie and the Special Prosecutor team present in BC Supreme Court.

The decision also means the trial of David Basi, Bob Virk and Aneal Basi will proceed as early as January 2010 - unless defence lawyers are successful in having it dismissed with an abuse of process motion they plan to introduce soon.

The 7-0 decision by the Supreme Court of Canada's justices is a blow to the defence, which strongly objected to being excluded even from any discussion in court as to why the police informer's identity had to be so rigorously protected.

The Supreme Court of Canada ruling makes clear it is a difficult issue:

"Where a hearing is required to resolve a Crown claim of privilege, the accused and defence counsel should therefore be excluded from the proceedings only when the identity of the confidential informant cannot be otherwise protected. And, even then, only to the necessary extent. In determining whether the claim of privilege has been made out, trial judges should make every effort to avoid unnecessary complexity or delay, without compromising the ability of the accused to make full answer and defence," Justice Morris Fish wrote in delivering the ruling.

And the decision throws the issue of how to deal with the secret witness testimony back to Justice Mackenzie:

"In the present case, permitting defence counsel to make submissions and to propose questions to be put by the court to the witness at the ex parte hearing might well have been appropriate. The trial judge, however, will be in a better position to decide how best to craft safeguards that mitigate any potential unfairness arising from the ex parte nature of the proceedings. The adoption of appropriate initiatives is therefore best left to the trial judge," the court ruled.

But the judges made clear Bennett's ruling, and a 2-1 decision to uphold it by the BC Court of Appeal, were wrong. As Justice Fish wrote for the court:

The limit that concerns us here is a function of the “informer privilege”, which prohibits disclosure of the identity of confidential informants.

More particularly, we are required to decide whether the trial judge erred in permitting defence counsel to attend the in camera hearing sought by the Crown to establish its claim of informer privilege. With respect, I believe that she did.

The judge’s order was intended to safeguard the privilege by prohibiting defence counsel from disclosing to anyone, including the accused — their own clients — anything they learned at the hearing.

In fact, however, the order exposed the privilege to imminent demise, since information tending to reveal the identity of the putative informer was bound to be revealed in the course of the hearing. Defence counsel would thus have been made privy to what the informer privilege is meant to deny them.

…Read the rest of the story on Bill Tieleman’s blog.

Bill Tieleman is a regular Tyee contributor who writes a column on B.C. politics every Tuesday in Vancouver 24 hours. E-mail him at weststar@telus.net.

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