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Canwest News Service
The interminable BC Rail corruption trial is back on track after the Supreme Court of Canada emphasized that confidential informants are so essential to the legal system their identities must be jealously guarded.
In a unanimous decision by seven justices Thursday, the high court maintained that only when innocence is at stake should an informant’s cloak of invisibility be pierced.
The court reversed the judge in the infamous raid-on-the-legislature case who ruled defence lawyers sworn to secrecy could attend a pretrial hearing to determine whether prosecutors were fairly invoking confidentiality concerns to keep information hidden.
The high bench said allowing the lawyers to know the source’s identity at this point was fraught with too many risks.
The court added that it was up to judges to protect the rights of the accused at such hearings.
The decision resolves one of the last thorny pretrial concerns in this high-profile breach-of-trust case: defence attempts to gain access to still-unrevealed information in the hands of the Crown.
The appeal was triggered after the defence sought access to edited portions of documents uncovered in the police investigation. The Crown refused, saying the redacted portions would identify its informant.
“Everyone charged with a criminal offence in Canada is constitutionally entitled to full and timely disclosure of all relevant material under the control of the Crown,” Justice Morris Fish said, delivering the decision.
“To withhold that material without justification is to jeopardize impermissibly the right of the accused to make full answer and defence. The entitlement to disclosure must therefore be broadly construed. But it is neither absolute nor unlimited.”
He explained that the law-enforcement practice of guaranteeing anonymity for information is “an indispensable tool in the detection, prevention and prosecution of crime.”
Justice Fish said the identity of an informant can be revealed only if innocence itself turned on that information, and that protecting the source was the paramount issue.
“The Crown does not seek to rely upon the redacted portions of the documents in order to prove guilt,” he said.
“Indeed, the Crown could not introduce the withheld information as evidence at trial without providing it to the defence. This is therefore not a case where the Crown seeks to use information against a person without permitting that person to see the information.”
Special prosecutor William Berardino had threatened to throw in the towel on the six-year-old charges against three ex-senior Liberal civil servants if the country’s top judges did not intervene to protect his informant.
He had proposed an in camera, ex parte hearing at which the judge alone could review the material and satisfy herself that he was not claiming informer’s privilege to hide evidence crucial to the defence.
On Dec. 6, 2007, after hearing complaints about that procedure from defence lawyers, then-B.C. Supreme Court Justice Elizabeth Bennett ruled they could attend the in camera hearing if they swore never to reveal even to their clients what they learned.
In a 2-1 decision July 10, 2008, the B.C. Court of Appeal upheld Justice Bennett’s decision, and that sent Berardino to Ottawa crying foul.
He found support there.
“The concern is not that defence counsel would intentionally violate their undertakings or the court order; rather, it is that respecting the undertakings and court order would, at best, strain the necessary relationship between defence counsel and their accused clients,” Justice Fish said.
“Defence counsel would have to remain constantly on guard never to say or do anything, even inadvertently, that might tend to reveal the informant’s identity. This exceedingly onerous constraint would by its very nature ‘prevent frankness and fetter the free flow of information between lawyer and client,’ and otherwise impair the solicitor-client relationship. In certain cases, defence counsel might feel bound to withdraw their representation, caught in a conflict between their duty to represent the best interests of their client and their duty to the court not to disclose or to act on the information heard in camera.”
The justice concluded the process envisioned by Bennett amounted to a disclosure order — albeit an extremely limited disclosure — as defence counsel are outside the “circle of privilege.”
While the trial judge sought to restrict this disclosure by prohibiting defence counsel from sharing it with anyone else, her decision would have made them “privy to what the informer privilege is meant to deny them.”
“The informer privilege has been described as ‘nearly absolute,’” Justice Fish said. “As mentioned earlier, it is safeguarded by a protective veil that will be lifted by judicial order only when the innocence of the accused is demonstrably at stake. Moreover, while a court can adopt discretionary measures to protect the identity of the informer, the privilege itself is ‘a matter beyond the discretion of a trial judge.’… Finally, the informer privilege belongs jointly to the Crown and to the informant. Neither can waive it without the consent of the other.”
In spite of losing the first two rounds following the favorable Supreme Court decision, Berardino said he was never worried about the outcome and always believed the prosecution would be “vindicated.”
This complicated case has been crawling along since the unprecedented raid on legislature offices Dec. 28, 2003 and an RCMP announcement that organized crime had infiltrated the highest levels of B.C. political life.
Dave Basi, then a senior aide to the finance minister, and Bobby Virk, another Liberal insider working for the transportation minister, were accused of influence-peddling during the privatization of BC Rail.
They are said to have accepted cash, airline tickets and other benefits.
Aneal Basi, a cousin who worked in government communications, was alleged to have laundered money for the pair.
All three denied wrongdoing and maintained they acted with not only the Liberal administration’s knowledge, but also its blessing.
Throughout pretrial proceedings, they claim the bidding process for BC Rail was collapsing and they were under political orders to prop it up.
In the face of the debacle, the government sold the bulk of the company to CN in 2004 for $1 billion, but cancelled the second half of the railway-assets auction.
What was once Canada’s third-largest railway now is a 40-kilometre spur line to Roberts Bank coal terminal, with some land holdings at the ports of Vancouver and Squamish.
With Justice Bennett’s recent appointment to the B.C. Court of Appeal, Justice Anne MacKenzie assumed control of the proceedings and said she hoped to start the trial in January.
This decision clears the way for the closed-door hearing requested by Berardino to resolve the last disclosure issue, and perhaps keep MacKenzie’s dream alive.
Initially set to begin in 2005, however, the trial still could be derailed.
The defence now is complaining that the half-decade of delays has violated the right of the accused to be tried within a reasonable time and is an abuse of process.
They’ll be back in court later this month to set dates for those arguments.
imulgrew@vancouversun.com
