ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR 11-4
DATE: 2012-10-09

BETWEEN:

HER MAJESTY THE QUEEN Crown – and – IAN CHARLES BORBELY Defendant

D. Kasko, for the Crown
M. MacDonald & J. Herbert, for the defendant

HEARD: October 4, 2012

Justice B. Glass

Crown Motion to Remove Defence Counsel from the Record and Defence Motion for Directions for Pre-Trial Motions

[ 1 ] Mr. Borbely is charged with second degree murder and offering an indignity to a dead human body. Pre-trial motions are scheduled to commence October 9 th , 2012 and are to proceed for up to six weeks. The trial is to commence January 7, 2013 and is to last up to 12 weeks.

[ 2 ] The Crown and Defence advise that Ms. MacDonald was counsel for a person who will be a Crown witness at the trial. The client was Jeremy Crease. He was a client in a criminal prosecution that concluded in early 2007. The file has been in off-site storage for years.

[ 3 ] Ms. MacDonald has not reviewed the file for years. She did not even recognize the name of the client at first.

[ 4 ] The Crown noticed that a statement given to the police by Mr. Crease made reference to Ms. MacDonald having been his lawyer in the past. Mr. Kasko contacted Ms. MacDonald to bring this to her attention.

[ 5 ] Ms. MacDonald recognizes that she could have a conflict at the trial proper if Mr. Crease is alleged to be a third party suspect. She accepts that she cannot serve as counsel for the trial before the jury.

[ 6 ] Ms. MacDonald has contacted Paul Cooper who is prepared to conduct the trial commencing on January 7, 2013; however, he is not available for the pre-trial motion dates. He has advised her that he is content that she and Mr. Herbert do the pre-trial motions, which he has reviewed.

[ 7 ] Mr. Borbely consents to Mr. Cooper becoming lead counsel and to Mr. Herbert acting as co-counsel for the trial proper. Mr. Borbely consents to Ms. MacDonald and Mr. Herbert conducting the pre-trial motions with the exception of any motion that might relate to Mr. Crease.

[ 8 ] If there is any motion related to Mr. Crease, then Ms. MacDonald will not be involved with it.

[ 9 ] Ms. MacDonald and Mr. Herbert request to continue with the pre-trial motions.

[ 10 ] The Crown opposes either Ms. MacDonald or Mr. Herbert being counsel on the pre-trial motions because of a potential conflict of interest. The Crown opposes Mr. Herbert continuing with Mr. Cooper as co-counsel at the trial proper on January 7, 2013 because he is an associate of Ms. MacDonald and has a conflict. The conflict is Mr. Crease being a former client of Ms. MacDonald to whom she owes a duty of loyalty as well as a duty to the current client, Mr. Borbely.

[ 11 ] Ms. MacDonald and Mr. Herbert argue that Mr Herbert was not part of Ms. MacDonald’s firm in 2007 when she acted for Mr. Crease, that he has not met Mr. Crease and that he has never seen the old file. They undertake that Ms. MacDonald will keep the file sealed in off-site storage and not disclose it or its contents to Mr. Herbert.

Issues

[ 12 ] Is Ms. MacDonald in a conflict of interest position for the pre-trial motions?

[ 13 ] Is Mr. Herbert in a conflict of interest position for the pre-trial motions?

[ 14 ] Is Mr. Herbert in a conflict of interest position to continue as co-counsel for the trial proper with Mr. Cooper?

[ 15 ] If Mr. Herbert is in a conflict of interest position, can any step be taken to accommodate him continuing as co-counsel?

Analysis

[ 16 ] Ms. MacDonald has a duty of loyalty to her former client, Jeremy Crease. She cannot conduct the trial of Mr. Borbely and attack the credibility of Mr. Crease. However, for the pre-trial motions, there is no one that will involve Mr. Crease.

[ 17 ] There is no conflict of interest at this stage for Ms. MacDonald or Mr. Herbert.

[ 18 ] Should a motion be brought by either side focusing on Mr. Crease, then Ms. MacDonald could not act on that motion.

[ 19 ] Ms. MacDonald can continue to act for the pre-trial motions that will commence on October 9, 2012.

[ 20 ] With respect to Mr. Herbert, he is an associate of Ms. MacDonald in a small law firm in a small community. It is difficult for a small law firm to create walls of silence so that others in the firm do not have access to particular files in order to protect the confidentiality of a client or former client. However, people can do so.

[ 21 ] In this case, Mr. Herbert has never met Mr. Crease. He has never seen the old files of Mr. Crease. Those files are in storage away from the law office he shares with Ms. MacDonald. Ms. MacDonald undertakes not to reveal any contents of those files. She has a duty of loyalty to Mr. Crease as her former client.

[ 22 ] In R. v. Lewis, 2001Carswell Ontario 3821 (S.C.J.) , Justice Dambrot found that proper protection for the accused and the witness could be accommodated by ordering that the file remain in storage throughout the trial and that the lawyer not discuss it with other counsel.

[ 23 ] In R. v. Brissett, 2005 2716 (ON SC) , [2005] O.J. No. 343 at paragraph 23 , Justice C. Hill listed 9 factors to consider regarding conflicts of interest. They are:

(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.

[ 24 ] All have been addressed by Ms. MacDonald and Mr. Herbert for the pre-trial motions.

[ 25 ] With the proposed method of maintaining a wall of silence for Mr. Crease’s files, the former client of Ms. MacDonald is protected.

[ 26 ] Ms. MacDonald is not in a conflict of interest to act on the pre-trial motions that are currently scheduled. Nor is Mr. Herbert.

[ 27 ] If Mr. Herbert were in a conflict of interest position to continue to act as co-counsel at the trial proper, the following procedure to maintain a wall of silence to the files of Mr. Crease will address the protection of Mr. Crease.

Conclusion

[ 28 ] There will be an order that Ms. MacDonald and Mr. Herbert may continue as counsel of record for the pre-trial motions save and except any motion related to Jeremy Crease.

[ 29 ] There will be a further order that Ms. MacDonald will cease to be counsel of record for the trial proper following Paul Cooper becoming lead counsel of record.

[ 30 ] There will be an additional order that Mr. Herbert may continue as co-counsel with Paul Cooper for the trial proper.

[ 31 ] It is ordered that the files of Jeremy Crease be kept in off-site storage and not revealed to any counsel of Mr. Borbely without further order of the court. In addition, Ms. MacDonald is ordered not to disclose the contents of Mr. Crease’s files to anyone.

Justice B. Glass

Released: October 9, 2012

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