ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 13071
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
KIMBERLY LYNN BILLINGS
Applicant
Dallas Mack for the Crown
Leonard Shore for David Anber
HEARD: January 25,2013
REASONS FOR ruling
maranger j
[1] This matter came before me on January 25, 2013. It follows a Crown application heard on November 29, 30, 2012.
[2] The original application requested an order against David Anber, a criminal defence lawyer, relating to disclosure he possessed involving Kimberly Lynn Billings, as well as an order relating to all other disclosure currently in the lawyers possession.
[3] As a result of that application an order was made on December 4, 2012 that specified the following:
That David Ian Anber is to return all disclosure, in any form, provided to him by the Crown Attorney in the matter of R v. Kimberly Billings forthwith, no later than 10 am on Tuesday, December 4, 2012 to the Crown Attorney's office, Ottawa.
That David Ian Anber is to return all electronic disclosure provided to him by the Crown Attorney in all criminal matters in which he has electronic disclosure no later than 4:30 pm on Friday, December 14, 2012 to the Crown Attorney’s office, Ottawa. That the Crown will reasonably endeavour to provide hard copies of the disclosure on those files to Mr. Anber no later than 4:30 pm on Wednesday, December 19, 2012; such efforts may be assisted by Mr. Anber providing to the Crown a list of all matters in which he is currently counsel of record.
That David Ian Anber is to remove, forthwith, from any website or Internet medium any disclosure provided to him by the Crown Attorney in any criminal matter.
That David Ian Anber be mentored by senior defence counsel including, but not limited to, Lawrence Greenspon, Bruce Engel and Douglas Baum, for a minimum of one hour per week for a period of 90 days.
That David Ian Anber scrupulously abide by the Rules of Professional Conduct of the Law Society of Upper Canada and all undertakings he provides hereinafter.
That David Ian Anber is to appear before this court again, within 90 days of this order.
That this orders is to remain in place for a period not exceeding 90 days but is reviewable by this court and may be extended, modified or extinguished at the discretion of the court.
[4] The application on January 25, 2013 sought an order "clarifying the Crown's obligation to make hardcopy disclosure available to Mr. Anber, if the appropriate undertakings are given".
[5] The Crown's office has decided that all future disclosure provided to Mr. Anber is to be reviewed at the Crown's office with a specific protocol to be followed. The Crown clearly does not trust Mr. Anber.
[6] Counsel on behalf of Mr. Anber firstly asks whether the court believed the order of December 4, 2012 by implication was meant to apply to all future disclosure, and if so whether the court would enforce the order in that manner.
[7] On December 4, 2012 the court delivered oral reasons which in part indicated the following:
Counsel representing Mr. Anber together with the assistance of the Ottawa Carleton Criminal Defence Lawyers Association, proposed that the court specifically orders that Mr. Anber only receive hard copies of disclosure in the future. Furthermore, they would undertake for the next three months to provide mentoring to him concerning how he conducts himself as a criminal lawyer and specifically how he would deal with disclosure at all times in the future.
[8] The oral reasons demonstrate that the court believed the protocol in the order of December 4, 2012 was also meant to cover all future disclosure.
[9] The difficulty however, is that the December 4, 2012 order does not specifically cover future disclosure, and the application heard on November 29, 30, 2012 did not deal with future disclosure, only the disclosure currently in the respondent's possession. A Court's understanding or impression is not enforceable.
[10] The court cannot based on the order of December 4, 2012 order the Crown to do anything in relationship to future disclosure.
[11] The matter is remanded to March 18, 2013 to be spoken to before me.
Mr. Justice Robert L. Maranger
Released: February 8, 2013
COURT FILE NO.: 13071
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
– and –
KIMBERLY LYNN BILLINGS
Applicant
REASONS FOR ruling
Maranger J.
Released: February 8, 2013