ONTARIO

SUPERIOR COURT OF JUSTICE

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

BETWEEN:

HER MAJESTY THE QUEEN – and – IAN CHARLES BORBELY Defendant

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

HEARD: October 9, 2012

Justice B. Glass

Pre-trial Motion Regarding Contents of Sealed Envelope at Time of Arrest

Pursuant to section 645(5) and section 648 of the Criminal Code of Canada , there is a ban on publication of this motion and order until the jury has commenced their deliberations.

1At the time of his arrest, Mr. Borbely had an envelope in his possession marked on the front: “Attn – Michael Anne MacDonald – Lawyer”.

2The envelope was placed in a sealed envelope. Counsel agreed that the sealed envelope would be given to the pre-trial motions judge who would open it and determine whether the contents were subject to solicitor/client privilege. If they were, the contents would be given to Defence counsel. If not, the contents would be copied for both counsel.

3The contents of the envelope marked as Exhibit A2 do not appear to be privileged communications between solicitor and client. Rather, at most they appear to be a diary of some of the events in the life of Mr. Borbely. That being so, there is no privilege.

4The contents of the envelope are in a small notebook. They are not made out as a communication to a lawyer. The only reference to Ms. MacDonald is the front of the envelope in which the booklet was located. There may have been an intention to make them a communication to counsel, but they never became such.

5Historically, when documents came into the possession of another party regardless of how they were acquired. See Calcraft v. Guest [1898] 1 Q.B. 759 (C.A.) . In 1982, the Supreme Court of Canada in Descoteaux v Mierzwinski 1982 22 (SCC) , [1982] 1 S.C.R. 860, Lamer J. stated:

“In its present state, the rule of evidence…. would not prohibit a third party [ who has come into possession of the communication ] from making such a disclosure.”

6This is similar to a 3 rd party hearing the communication. No privilege exists.

Conclusion

7A copy of the contents of Exhibit A2 will be provided to both counsel. The original will be delivered to the Crown.

Justice B. Glass

Released: October 9, 2012

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ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – Copy and Paste from Party/Defandant DELETE EXTRA LINE SPACE IF APPLICABLE REASONS FOR JUDGMENT Judge