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Railgate: Unearthed E-mails 'Out of this World' Says Defence

'Very critical stuff' from premier's 'inner circle.'

Bill Tieleman 26 Nov

Bill Tieleman is a regular Tyee contributor who writes a column on B.C. politics every Tuesday in 24 hours, the free weekday newspaper, also online at Tieleman can be heard every Monday at 10 a.m. on the Bill Good Show on CKNW AM 980 or at E-mail him at [email protected] or visit his blog at:

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Robert Virk and David Basi.

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.

And a defence lawyer described thousands of e-mails obtained from key Crown witness and former provincial lobbyist Erik Bornmann as "out of this world."

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 allusions

Bennett 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."

Bornmann e-mails 'out of this world'

The secret witness issue wasn't the only new ground broken in the hour-long session.

In court, McCullough told also Bennett that e-mails from key Crown witness Bornmann, which have recently been disclosed to the defence, are highly relevant and should have been previously provided.

"The Bornmann e-mails are out of this world. There are thousands of them," McCullough said. "How these materials were not disclosed before June 4, 2007 will have to be dealt with -- I'm trying to be constructive here."

"Dates, times, lobbying connections, what high officials are telling them," McCullough continued.

'Premier's office inner circle'

Michael Bolton told the court the Bornmann e-mails were highly relevant to their defence, which in part argues that Basi and Virk, both former provincial government ministerial assistants, were merely following the orders of higher ups in government.

In the Basi-Virk case police allege Bornmann bribed Basi and Virk to obtain confidential government documents related to the $1 billion privatization of BC Rail in 2003. Basi and Virk face breach of trust and fraud charges, while Aneal Basi, Dave's cousin and a former government communications officer, faces money laundering charges alleged related to the payment of bribes.

"The e-mails pertain in particular to the conduits of information between the premier's office inner circle and the Ministries of Finance and Transportation and the Pilothouse lobbyists," Bolton said. "Passing information to key members of the premier's inner circle. This is very critical stuff and we don't know how much more of it there is."

'Confidential informer'?

But it was the issue of excluding even defence lawyers from an in-camera hearing that drew the most attention in court.

The "Paragraph 46" that Special Prosecutor Berardino referred Justice Bennett to was almost certainly from Named Person v. Vancouver Sun. That paragraph and the ones immediately before and after, read as follows:

D. The Procedure to Be Followed

45 The interface between the informer privilege rule and the open court principle in the context of a hearing where a party claims to be a confidential police informant must at the same time allow for the protection of the identity of the informer from any possibility of disclosure and the maintenance of public access to the courtroom to the greatest extent possible.

In order to best illustrate how this can be achieved, I will in what follows set out a procedure to be followed in a case such as the one before the Court, where an individual who is in the midst of criminal or quasi-criminal proceedings for some reason discloses to the court his or her status as a confidential informer.

46 In such a proceeding, the parties before the judge will be the individual and the Attorney General of Canada (or the Crown). If the individual wishes to make a claim that he or she is a confidential informer, he or she should ask the judge to adjourn the proceedings immediately and continue in camera.

The proceedings will proceed in camera, with only the individual and the Attorney General present, in order to determine if sufficient evidence exists to determine that the person is a confidential informer and therefore able to claim informer privilege.

47 While the judge is determining whether the privilege applies, all caution must be taken on the assumption that it does apply. This means that under no circumstances should any third party be admitted to the proceedings, and even the claim of informer privilege must not be disclosed. The only parties admitted in this part of the proceeding are the person who seeks the protection of the privilege and the Attorney General. It is the responsibility of the judge at this stage to demand from the parties some evidence which satisfies the judge, on balance, that the person is a confidential informer.

Once it has been established on the evidence that the person is a confidential informer, the privilege applies. I cannot over-emphasize the importance of this last point. The judge has no discretion not to apply the privilege: Bisaillon v. Keable, at p. 93. If the person is an informer, the privilege applies fully.

That leaves some obvious questions -- is there a "confidential informer" who supplied police with evidence of wrong doing? And who is that person? Are they involved in other criminal activities, as the Air India informant was?

And it should also be noted that there appear to be two separate applications for in-camera witnesses, with previous mention of applications coming at the last pre-trial hearing, Nov. 16. There was no mention of excluding defence counsel at that time and Justice Bennett clearly appears to say that there are different applications to be heard.

Pre-trial calendar

The pre-trial hearing also dealt at length with ongoing disclosure of evidence problems that have delayed the trial several times.

Bennett ended the court session by outlining the upcoming schedule of pre-trial hearings.

Starting Dec. 3 the in-camera application will be heard after, presumably, dealing with the issue of exclusion of defence counsel, media and the public. Bennett is expected to hear media arguments against banning reporting and attending the hearing.

Starting Dec. 10 there will be hearings on the issue of provincial government documents where solicitor-client privilege is being claimed.

Starting Dec. 17, depending on the earlier hearings, there may be meetings between the Special Prosecutor and the defence to resolve other disclosure issues.

And starting Jan. 7, 2008 the court will hear arguments on "vets" of the BC Rail and federal Department of Justice documents -- that is, what information should or should not be disclosed to the defence and its relevance to the case.

Of course, one other important date should be mentioned -- on Dec. 28 this case celebrates its 4th birthday.

On Dec. 28, 2003 the B.C. Legislature was raided by police in an unprecedented action that has yet to result in a trial.

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