ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR 11-4
DATE: 2012-09-05

BETWEEN:

HER MAJESTY THE QUEEN – and – IAN CHARLES BORBELY Defendant

D. Kasko, for the Crown
M. MacDonald, for the Defendant

HEARD: September 5, 2012

Justice B. Glass

THERE IS AN ORDER BANNING PUBLICATION OF ALL INFORMATION PRESENTED AT THIS APPLICATION UNTIL THE JURY HAS COMMENCED THEIR DELIBERATIONS

APPLICATION BY CROWN FOR AN ORDER TO REMOVE MICHAEL ANNE MacDONALD AS DEFENCE COUNSEL OF RECORD

Introduction

[1] The Crown has applied to remove Ms. MacDonald as Mr. Borbely’s defence on an indictment in which the defendant is charged with second degree murder and committing an indignity to the remains of Samantha Collins by dismembering her body and concealing it in plastic pails.

[2] The foundation for the Crown application is that Ms. MacDonald represented another person, i.e. Lloyd Leeder, in 2007 when he was charged with sexually assaulting the deceased, Samantha Collins. The charge was withdrawn by the Crown when Ms. Collins did not appear for court proceedings. Mr. Leeder was interviewed by police, but he was never charged with causing the death of Ms. Collins.

[3] The Crown does not intend to call Mr. Leeder as a witness at the trial with one exception being if the defence should allege that Mr. Leeder is a third party suspect in the death of Ms. Collins.

[4] The Crown is concerned that Ms. MacDonald is wearing two hats, one for her former client, Mr. Leeder, and one for her current client, Mr. Borbely. She cannot do so without acting in conflict for the best interests of each of her clients.

[5] On the other hand, Michael Anne MacDonald has arranged for independent legal advice to be given to Mr. Borbely. That counsel is Kerry Evans who filed an affidavit confirming that he provided advice to the defendant to the effect that he is entitled to change counsel and to the effect that Ms. MacDonald acted for Mr. Leeder in the past. The defendant does not want to change lawyers.

[6] The response to the Crown application is that the defence has no intention of calling Lloyd Leeder as a witness at the trial. Further, the defence will not make a third party allegation that Lloyd Leeder is the person responsible for the death of Ms. Collins.

[7] Judicial pre-trial meetings have been held since the spring of this year. The Crown did not advance its application to remove Ms. MacDonald as counsel until August 29, 2012. This is on the doorstep of pre-trial motions being brought on October 9 th , 2012. The pre-trial motions are scheduled to proceed for up to 6 weeks. The trial is to commence January 7, 2013 and is projected to proceed for up to 12 weeks.

Issues

[8] Is there a conflict of interest here?

[9] If there is a conflict, does it require the removal of defence counsel?

[10] What are the parameters of removing a defendant’s lawyer late in the day especially when the defendant faces a murder charge?

Analysis

[11] There is no evidence at this application to suggest that there is a connection between Ms. MacDonald and the two clients whereby she would be forced to act against the interests of either person. Furthermore, there is no evidence that Michael Anne MacDonald would have evidence in her knowledge that would jeopardize the privileged position of either client. Basically, there does not appear to be any conflict.

[12] If there were a potential for conflict, arrangements could be made to avoid placing either client in jeopardy during the trial. Cases have been presented whereby courts have found ways to protect the clients and to continue with a proceeding.

[13] A defendant should not be precluded from having a counsel of choice without significant foundation.

[14] When the Crown does not advance its application until very late in the day, even more so should the application be reviewed with considerable scrutiny. In this case, can a method be devised to circumvent the problem, as has been done in other cases?

[15] I note that the defendant is being held in custody and has been for more than a year. If he loses his lawyer, the trial no doubt will be delayed with him in custody.

[16] If I had found that there was a conflict of interest, I am satisfied that arrangements could be made to avoid reference to Mr. Leeder, his former charges or in the alternative if he were called, being cross-examined by another counsel with Ms. MacDonald undertaking not to provide any information given to her by Mr. Leeder to another counsel. However, I do not see any need to go to that consideration because there is no evidence of a conflict of interest.

[17] I recognize the consideration of this issue as analyzed by Justice Hill in Brissett, 2716 at paragraph 23 wherein the court listed and analyzed 9 points:

a. Timing of the application;

b. Conflict and the duty of loyalty;

c. The duty of preservation of client confidences;

d. Confidences of the past client and present conflict;

e. Right to counsel of choice;

f. Trial court’s jurisdiction of conflict cases;

g. The circumstances of the current client;

h. Confidence in the administration of justice;

i. The partial disqualification option.

[18] When studying the 9 points outlined by Hill J., I conclude that Ms. MacDonald is not in a position whereby her duty to be loyal to Mr. Leeder and Mr. Borbely is compromised. Mr. Borbely wants Ms. MacDonald to continue to be his counsel. She has represented him on this matter since he was charged. Mr. Borbely has had the benefit of independent legal advice with respect to his position. This defendant has been in custody for more than a year. If Ms. MacDonald were removed as Mr. Borbely’s defence counsel, at the least counsel agree that pre-trial motions would be delayed from October 9, 2012 until the spring of 2013 and the trial would not commence in January 2013 but rather much later.

[19] The Crown could have advanced the disqualification application earlier. The issue was addressed at pre-trial conferences with Minden J. who had advised counsel that he would not schedule the pre-trial motions and the trial until the issue of the disqualification of counsel was concluded. The application was not commenced until the end of August 2012, virtually on the doorstep of the pre-trial motions commencement date. That has the effect of reducing confidence in the administration of justice.

[20] I do not think that there is a need to consider a partial disqualification because there is no apparent conflict of interest.

Conclusion

[21] In conclusion, the application to remove Michael Anne MacDonald as defence counsel of record is dismissed.

Justice B. Glass

Released: September 5, 2012