SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CRIMJ(P)754/10
DATE: 2012 08 15

RE: HER MAJESTY THE QUEEN v. MIKE LEONARD RUTIGLIANO and BARRY PIERSON

BEFORE: HILL J.

COUNSEL:
S. Fenton, for Her Majesty the Queen
S. Hutchison and O. Wigderson, for Mr. Rutigliano
J. Wilkinson, for Mr. Pierson

HEARD: August 14, 2012

E N D O R S E M E N T

[ 1 ] As an interim and sub-motion within an ongoing pre-trial Charter motion relating to asserted breaches of section 8 of the Charter during the investigation stage in this case, Mr. Pierson made application for the Court to:

(1) Declare that the “daily call summaries” and corresponding audio recordings for the following sessions that were produced to Mr. Pierson’s counsel, by the Court-appointed Referee, Susan Champan, are solicitor-client privileged:

(a) On line 416-726-1317: sessions 623 and 624; and

(b) On line 647-898-8435: sessions 350, 2047, 2052, 2092, 2093, 2106, 2108, 2110, 2112, 2302, and 2167.

(2) Require the Crown or the RCMP to provide to Mr. Pierson copies of the audio recordings of the above session numbers, except to the extent that the sessions are text messages and therefore the summaries capture the entire content of the communication.

[ 2 ] With the Crown consenting, an Order will go for the relief requested in para. 2 supra .

[ 3 ] Turning to the subject of Mr. Pierson’s assertion of solicitor-client privilege in the thirteen (13) session #’s identified, the current application proceeded only with respect to the call summaries relating to session #’s 350 and 2047 with the remainder of the application adjourned sine die.

[ 4 ] Mr. Wilkinson agreed that the onus was upon Mr. Pierson to establish the existence of the privilege. In the end, the determination was able to be made by the court reading the affidavit of Barry Pierson sworn August 12, 2012, as well as the “SC-Copy” of session #’s 350 and 2047 appended as exhibits to that affidavit, as well as the submissions of counsel.

[ 5 ] As a class privilege, solicitor-client privilege is, at a minimum, an evidentiary rule of exclusion protected by the courts.

[ 6 ] While session #’s 350 and 2047 relate to Mr. Pierson’s involvement with separate lawyers, there are consistent parallels between the two situations. In each there is a professional retainer relationship in existence. The respective session call summaries reveal the substance of communications between a lawyer, and Mr. Pierson as client, relating to the seeking/giving of legal advice in discreet situations calling for professional legal assistance. Mr. Pierson intended the communications to be confidential.

[ 7 ] On the record here, there is no issue of waiver, severability or any other apparent exception to the existence of the privilege. Accordingly, it is declared that the daily call summaries and corresponding audio recordings for session #’s 350 and 2047 are subject to solicitor-client privilege.

HILL J.

DATE: August 15, 2012

COURT FILE NO.: CRIMJ(P)754/10

DATE: 2012 08 15

SUPERIOR COURT OF JUSTICE - ONTARIO RE: HER MAJESTY THE QUEEN v. MIKE LEONARD RUTIGLIANO and BARRY PIERSON BEFORE: HILL J. COUNSEL: S. Fenton, for Her Majesty the Queen S. Hutchison and O. Wigderson for Mr. Rutigliano J. Wilkinson, for Mr. Pierson ENDORSEMENT HILL J.

DATE: August 15, 2012