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In the Supreme Court of Canada (On Appeal from the Court of Appeal for British Columbia)

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In the Supreme Court of Canada (On Appeal from the Court of Appeal for British Columbia) File Number: 32719 IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA) BETWEEN: REGINA Appellant/Respondent on Cross-appeal (Appellant) and UDHE SINGH (DAVE) BASI BOBBY SINGH VIRK ANEAL BASI Respondents/Appellants on Cross-appeal (Respondents) FACTUM OF THE RESPONDENT VIRK ON APPEAL (Pursuant to Rule 42 of the Rules ofthe Supreme Court of Canada) and FACTUM OF THE APPELLANT VIRK ON CROSS-APPEAL (Pursuant to Rule 43 of the Rules of the Supreme Court of Canada) REDACTED COPY Solicitors for the Respondent Ottawa Agent for the Respondent Bobby Singh Virk: Bobby Singh Virk: . Kevin G. McCullough Brian A. Crane, Q.C. Joseph J. Blazina Gowling Lafleur Henderson McCullough Blazina Dieno Suite 2600-160 Elgin Street & Gustafson Ottawa, ON, KIP 1C3 2ndFloor, 1011 Fort Street Telephone: 613-786-0212 Victoria, B.C. V8V 3K5 Facsimile: 613-788-3500 Telephone: 250-480-1529 Facsimile: 250-480-4910 Solicitors for the Respondent Ottawa Agent for the Respondent Udhe Singh (Dave) Basi: Udhe Singh (Dave) Basi: P. Michael Bolton, Q.C. Brian A. Crane, Q.C. Claire Hatcher Gowling Lafleur Henderson Bolton & Muldoon Suite 2600-160 Elgin Street Barristers & Solicitors Ottawa, ON, KIP 1C3 Suite 360, 1122 Mainland Street Telephone: 613-786-0212 Vancouver, B.C. V6B 5L1 Facsimile: 613-788-3500 Telephone: 604-687-7078 Facsimile: 604-687-3022 Solicitors for the Respondent Ottawa Agent for the Respondent heal Basi: heal Basi: Joseph M. Doyle Brian A. Crane, Q.C. Johnson Doricic Doyle Gowling Lafleur Henderson Trial Lawyers Suite 2600-160 Elgin Street 2ndFloor, 195 Alexander Street Ottawa, ON, KIP 1C3 Vancouver, B.C. V6A 1B8 Telephone: 613-786-0212 Telephone: 604-688-8338 Facsimile: 613-788-3500 Facsimile: 604-688-8356 Solicitors for the Appellant: Ottawa Agents for the Appellant: W.S. Berardino, Q.C. Jeffrey W. Beedell Michael Sobkin Lang Michener LLP 50 O'Connor Street Hunter Litigation Chambers Suite 300 Suite 2100 - 1040 West Georgia Street Ottawa, ON KIP 6L2 Vancouver, B.C. V6E 4H1 Telephone: 613-232-7171 Telephone: 604-891-2400 Facsimile: 613-23 1-3191 Facsimile: 604-647-4554 Email: [email protected] TABLE OF CONTENTS Page Tab 1 FACTUM OF THE RESPONDENT VIRK ON APPEAL Part I Statement of Facts 1 Overview 1 Response to the Appellant's Statement of Facts 4 ,Disclosure: The Context 4 The Proceedings Below 7 Part I1 Respondent's Position on Issues 12 Part III Statement of Argument 13 The Decision in Named Person 13 The law prior to Named Person 17 The Respondents have the right to a fair hearing 20 Is automatically excluding counsel for the accused really "fair'? 24 The Issue of an Amicus 28 Did the Courts below err in "departing" from Named Person? 30 Part IV Submissions on Costs 35 Part V Nature of Order Sought 3 5 Part VI Table of Authorities 36 Part VII Statutory Provisions 36 Tab 2 FACTUM OF THE APPELLANT VIRK ON CROSS-APPEAL Part I Statement of Facts 37 Part I1 Statement of Issues 43 Part 111 Statement of Argument 44 Part IV Submissions on Costs 52 Part V , Nature of order Sought Part VI Table of Authorities Part VII Statutory Provisions File Number: 32719 IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA) BETWEEN: REGINA AppellantRespondent on Cross-appeal (Appellant) and UDHE SINGH (DAVE) BASI BOBBY SINGH VIRK ANEAL BASI Respondents/Appellants on Cross-appeal (Respondents) FACTUM OF THE RESPONDENT VIRK ON APPEAL (Pursuant to Rule 42 of the Rules of the Supreme Court of Canada) REDACTED COPY Solicitors for the Respondent Ottawa Agent for the Respondent Bobby Singh Virk: Bobby Singh Virk: Kevin G. McCullough Brian A. Crane, Q.C. Joseph J. Blazina Gowling Lafleur Henderson McCullough Blazina Dieno Suite 2600-160 Elgin Street & Gustafson Ottawa, ON, Kl P 1C3 2"* Floor, 1011 Fort Street Telephone: 613-786-0212 Victoria, B.C. V8V 3K5 Facsimile: 613-788-3500 Telephone: 250-480-1529 Facsimile: 250-480-4910 PART I STATEMENT OF PACTS Overview 1. The Crown appeal in this matter arises pursuant to an order of this Court granting leave to appeal from the July lo", 2008 decision of the British Columbia Court of Appeal, which dismissed the appellant's appeal from the December 7th,2007 ruling of Madam Justice Bennett which in turn dismissed the appellant's application, brought pursuant to s. 37 of the Canada Evidence Act, that counsel for the Respondents be excluded from an enquiry into a claim of informer privilege advanced by the Crown on behalf of an unnamed person. 2. Chief Justice Finch dismissed the appeal on the grounds that the ruling of Bennett J. did not amount to an order for disclosure, and therefore the Court was without jurisdiction to hear the matter. In the alternative, Finch C.J. held that Bennett J. had not erred in deciding that the hearing into the claim of informer privilege could proceed, in camera, with counsel for the ~es~ondentspresent although subject to undertakings not to disclose anything heard during the course of the hearing. Justice Donald decided that although the Court had the jurisdiction to hear the appeal, he agreed with Finch C.J. that the trial judge's order was one which was within her power to make, and she had not erred. Ryan J.A. dissented. 3. There are two issues on this appeal. The first issue is whether the Court of Appeal had, or whether this Honourable Court has, the jurisdiction to hear this matter. This issue will be addressed in the Respondent Virk's factum on the cross-appeal. The second issue is whether, assuming that the trial judge's order in this matter does amount to an order for disclosure, the learned trial judge erred in law in deciding that counsel for the Respondents, subject to appropriate court orders and undertakings regarding non-disclosure, could be present at the in camera hearing where evidence would be led which could or would identify the person for whom the Crown sought informer privilege. 4. The Respondent says, with respect, that regardless of any decision which this Court may make either on the issue of jurisdiction or on the merits of the decision itself, a proper resolution of this matter must include an analysis as to how enquiries into claims of informer privilege can best be conducted in a criminal trial so as to protect both the accused's right to make full answer and defence and the claim of privilege which is sought to be established. 5. The Appellant argues that the recent decision of the Supreme Court of Canada in Named Person mandates an in camera exparte hearing in order to determine if informer privilege exists. With respect, this argument is flawed. The Court's decision in Named Person does not stipulate that a hearing to determine whether informer privilege exists must be held exparte. In fact, the Court specifically acknowledges that parties to the action, even where adverse in interest or challenging the existence of the privilege, may be present during the in camera hearing. 6. Madam Justice Bennett was very aware of the need for caution in hearing evidence to determine whether a claim of informer privilege could be substantiated. Her ruling that defence counsel could be present, on undertakings, during the in camera hearing, was a proper exercise of her power to protect the accused's right to a fair trial, a right specifically recognized in section 37.3 (1) of the Canada Evidence Act. 7. It is important to remember the context of the decision made in the case at bar. The application for disclosure of the documents over which a claim of privilege was asserted was informed by allegations of police deception and bad faith. Madam Justice Bennett herself had previously found that there had been "substantial" failures to respect the Accused's disclosure rights. As recognized by Justice Bennett, vetting codes on several of the documents over which the Crown claimed privilege indicated that the material portions All of these circumstances militated in favour of defence counsel's presence during the hearing. 8. The Appellant asserts that an accused necessarily loses all right to participate in a hearing to determine a claim of privilege simply because the Crown m,apriori, that his participation, or the participation of his counsel, would breach the privilege sought to be established. A claim to privilege must be advanced on the basis of evidence, not simply submissions. The Respondent says that an automatic and total exclusion of the accused or his counsel from such an enquiry is both unwarranted and unfair. Response to Appellant's Statement of Facts 9. The Respondent generally agrees with the Appellant's Statement of Facts, with the following exceptions and amplifications: Disclosure: The Context 10. Disclosure in this matter has been both voluminous and contentious. As part of the context in which the documents over which informer privilege is now claimed eventually came to be disclosed to the defence, the following facts are relevant: 11. On December 281h, 2003, the police conducted what has been referred to as the "raid" on the legislature. An Information was laid in the B.C. Rail case in December 2004. Disclosure commenced on January 20", 2005, and a Direct Indictment was filed on January 28th,2005. On March lo", 2005, 11,000 documents were disclosed to the defence. The following day, the Crown advised the Court that the disclosure was "substantially completed" and that final disclosure would be complete in two to three weeks. [Reasons of Bennett .I.of November 14,2006, in Respondents' Record, at pp.
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