J. Herbert

On a pre‑trial motion, the court was asked to determine whether the contents of a sealed envelope seized from the accused at the time of arrest were protected by solicitor‑client privilege.

The envelope was addressed to defence counsel but contained a small notebook recording events in the accused’s life.

The court held the writings were not communications to a lawyer and therefore did not attract solicitor‑client privilege.

As a result, the materials were not protected from disclosure and could be shared with both parties.

In a prosecution for second degree murder and offering an indignity to a dead body, the Crown sought to remove defence counsel due to an alleged conflict of interest arising from prior representation of a Crown witness by one of the defence lawyers.

The defence requested directions permitting counsel to continue with scheduled pre‑trial motions and proposed safeguards to protect former client confidences.

The court held that no present conflict existed for the purpose of pre‑trial motions because none involved the former client, though the lawyer could not act at the jury trial if the witness became a third‑party suspect.

The court permitted the defence lawyers to conduct the pre‑trial motions, except any motion concerning the former client, and ordered confidentiality safeguards including off‑site storage of the prior client’s file.