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.

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

[ 2 ] The 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.

[ 3 ] The 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.

[ 4 ] The 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.

[ 5 ] Historically, 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.”

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

Conclusion

[ 7 ] A 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

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