Where does solicitor-client privilege fit into the equation?

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Hearings resume at 0930 hours(9:30 am) this morning, Thursday, 08 January 2009.  Assistant Crown attorney Alain Godin will take the stand.

Godin is the Crown who lost the Harvey Latour prosecution because he had no proof that Harvey Latour had a tattoo. He also lost Father Kenneth Martin, Sandy Lawrence and Father Paul Lapierre. Lapierre was found guilty on charges in Quebec – the same victim, Claude Marleau.

Marleau was a complainant in all those cases.  That they were lost is a disgrace.

In fairness I must say that I don’t know that the losses can all be laid at Godin’s feet.  There were judges on the bench who came up with some pretty wild acquittals.  But the truth of the matter too is that Godin fell short of the mark time and time again in the courtroom. It was painful to watch.

But, guess who was the defence lawyer in all four Project Truth trials prosecuted by Godin which ended in acquittal?  Former Cornwall Crown attorney Don Johnson!

Johnson was also defending Dr. Peachy.  Peachy died before standing trial.

He defended Nelson Barque too.

And we heard yesterday or the day before that he is currently defending Marcel Lalonde.

And I got the impression that he is perhaps currently involved in something to do with Jean Luc Leblanc?

There’s not a shadow of doubt that the alleged molesters of Cornwall feel comfy cosy putting their fate in the hands of this former Crown. Since changing hats and becoming a criminal defence lawyer how many of Cornwall’s real and “alleged” paedophiles has Johnson represented?  Off hand I don’t know, but it’s a fair few.  At some point I will have to do a tally.

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They reached yet another low in the Weave Shed yesterday.

As far as I can see both Don Johnson and Michael Neville have waived what they are calling David Silmser’s solicitor client privilege:  Johnson must have spat it out to commission counsel, and Neville spat it out to the whole whole world.

And Glaude did nothing!

I say “what they are calling” Dave’s solicitor-client information because I truly question the nub of this dirty fiasco, which is apparently Johnson and Neville’s version of Dave’s instructions to Don Johnson when Johnson was his lawyer and which should therefore fall under solicitor client privilege.

Here’s how this one played out…

First, in order to understand this one it is necessary to know that prior to any witness taking the stand commission counsel put together a bit of a recap of the evidence which they anticipate will be given by the witness.  It is referred to as the A.E.:  anticipated evidence.

The AE is distributed to all parties with standing. We don’t see the AEs, nor do we know their contents. We do however hear the lawyers referring to the AEs.

According to yesterday’s events the AE for Don Johnson makes reference to what he, Don Johnson, claims he was told by David Silmser in February 1993.  According to Dallas Lee, the reference in the AE is limited a very brief single bullet of information.

Now a little background….

You may recall that Dave retained Don Johnson very briefly in early 1993 and in very short order fired him.

Cornwall Police Service Constable Heidi Seblaj’ notes touch on this.

In her notes of 18 February 1993 Sebalj wrote:

Advised he has retained a lawyer. “Got drunk” met Don Johnson at a bar. States he knows him for some time. Told him the story. He never questioned it. Didn’t ask for any money. Said ‘I’ll take the case.’ V [victim/Dave] advises he wants Don to go to the Diocese and go through their lawyers re settlement. Wants to know what they are offering. ‘Not taking settlement’will pursue it after all criminal charges are done. Wants Don to know what’s going on – then stated ‘want to take them to the cleaners, going for the full amounts strong and hard.’

While Dave was on the stand and under cross examination by David Sheriff Scott (Diocese and Larocque) he denied that the meet had taken place in a pub.  Dave said it was in a restaurant.  He also, witness the following, denied that anyone was drunk and expressed concern regarding the accuracy of Sebalj notes:

MR. SILMSER: Nobody was drunk; so I don’t know where that came from?

MR. SHERRIFF-SCOTT: Well, it’s in her notes. I’m not particularly concerned about that one from the point of view of a question. It’s something that’s recorded there.

MR. SILMSER: But I am because if these notes are incorrect, a lot of her notes may not be correct all the way through here.

Sebalj’ notes of 22 February 1993 reference Dave’s firing of Johnson:

“Advised he fired Don Johnson on Friday. Says he was doing things without his approval. States he will get a lawyer when the criminal work is done and will retain an Ottawa lawyer”.

It would appear therefore that for a period of a week or less Dave considered that Don Johnson was his lawyer, and, according to Dave, that Johnson did not ask for money.

And now to the related events of the past two days in the Weave Shed…

On Tuesday the matter of Johnson as Dave’s lawyer was broached by commission counsel Karen Jones.  Jones made reference to the Sebalj note of 22 February 1993.  She told Johnson she would allow him to make a decision on the issue of privilege and added “This has just come out in the Inquiry and I –- if you wish to, you can make a response.”

Johnson – who has next to no recall of any of his dealings as Crown with allegations against Cornwall’s real and “alleged” paedophile allegations – replied that he was never retained by Dave. As you will see, he seems to recall with great clarity that he was approached by Dave in a bar, later saw him the office, and that he told Dave in no uncertain terms to get out of his office:

I kept a lot of my files. I haven’t destroyed all of them and I do not have a file on a David Silmser, I was never retained by a David Silmser. Mr. Silmser approached me in a bar, said he wanted to talk to me about something, I told him I don’t talk business in a bar, if he wanted to speak to me he had to make an appointment. He showed up at my office, told me about what his game plan was, and I asked him to leave. I gave him a choice of two ways of leaving.

There was not a boo from Johnson about solicitor-client privilege.

That was about it for Tuesday.

Yesterday things moved off in a new direction. And the issue of solicitor-client privilege was on the burner.

Under cross examination by Dallas Lee the issue of the David Silmser contact was addressed again.

In this instance Johnson seemed ready and willing to give his account of what happened between he and Dave, but he expressed an appropriate albeit minimal hesitancy to carry on because of solicitor-client privilege.  I say minimal because Johnson actually seemed to be waiting for someone to tell him or order him to carry on and he would happily oblige.  It was clear he was in no way, shape or form about to protest that he could not and would not speak further because in so doing he would be violating a client’s solicitor client privilege.

The issue of solicitor client privilege was on.

In short order Johnson was excused, and Michael Neville himself jumped in to lend his two cents worth.

Neville, I would say, took it upon himself to waive Dave’s privilege.  And as far as Neville is concerned, Dave has already waived his privilege!  He huffed and puffed along, railing that Dave had waived his privilege by “impugning” Don Johnson to Heidi Sebalj, and then he managed to get on record and out into the public domain what he claims Johnson’s anticipated evidence would be, namely that – according to Neville  – Dave told Johnson he, Dave, wanted to trade off his criminal complaint for money!

I believe it was at this point that Neville got into talk of an  exception to solicitor-client privilege being something called “Future crimes exception” whereby if advice is sought from a lawyer which would constitute a criminal offence the privilege is waived!!!

I googled future crimes exception.  This is an external link to an article from Ontario.  There are others.  Take a look around the net with a google.

God help us.  When, if ever, will all of this character assassination of David Silmser come to a merciful end?

Do I understand correctly that Neville for sure, and probably Johnson, are perhaps accusing Dave of criminal activity in his dealings with Johnson?  That’s how it looks to me.  I must say that in my brief browsing I think it’s a pretty heavy implication for Neville to make by blithely coupling “future crimes exception” with Dave and frantically getting it onto the record while broadcasting it in the public domain.

Anyway, fact or fiction, true or false it gives one pause to reflect on this myth of solicitor-client privilege.  Neville just threw it out there.  He presumably doesn’t know any more about the whole matter than a small bullet in the AE, but, he seemed to get a lot of mileage with those meagre offerings and ran with it.  He decided Dave’s solicitor client privilege isn’t worth a hoot.  Seems he wasn’t about to forego a golden  opportunity to malign David Silmser one more time.

As for Johnson, apparently the long silent Don Johnson divulged this startling information to commission counsel when he, Johnson, was preparing to testify at the inquiry.

So, where does solicitor-client fit into that equation?   Is it alright for a lawyer to violate the privilege if he’s talking to lawyers at an inquiry?  Is that how it works?

How pathetic!  How disgusting!

Anyway, there was not a boo from Glaude while Neville railed on.  Not a boo. No chastisement.  No knuckle rapping.  I think I heard a few lame “wells” emanating from the commissioner, but that was it.  It was Neville’s moment.  He took control of the Weave Shed.  He had his say.  He got it what he wanted to get onto the record and out into the public domain:  Dave is nothing but a good for nothing criminal money grubber and the former Crown attorney of Cornwall has the goods to prove it.

And Justice Normand Glaude let it happen!  Neville seems to do that to him.

Dallas Lee (Victims Group) objected.  Lee noted that Neville seemed to have a great deal more information about Johnson’s anticipated evidence than did he, and he noted that there was but one bullet in the AE and none of the details which came from Neville, and he questioned where Neville was getting his information.

Neville was back up in a flash, sputtering on that he was simply going by what was in the AE and that he was prepared to read the AE aloud, and when Glaude said “no” to the read-aloud part he passed a highlighted copy to Glaude, and he noted in the process, interestingly enough and most emphatically, that what he had had to say was his understanding of things and that it’s in the AE.

Lee said he and Neville would have to agree to disagree on what the AE says.  He also noted that Neville had said Dave suggested he wanted Johnson to trade off the criminal complaints for money and that he, Lee, doesn’t see that anywhere in the AE.

At the end of it all, and thanks I do believe to Dallas Lee and Lee alone, a decision was made for the commission to contact Dave and his lawyer to see if Dave is prepared to waive his solicitor-client privilege.

Lee added that he has no confidence that Johnson is protecting a privilege claim for Silmser and that Johnson is quite content to carry on if Glaude so orders.

Johnson will be called back for further cross-examination on this matter after word has been received from Dave.

I have no idea if there is any more to all this than Neville has already blurted out.  What I do know is (1)  Johnson clearly shared with commission counsel and who knows who else his version of his solicitor-client discussions with Dave, and in so doing I do believe he has already violated Dave’s solicitor client privilege, and (2) Michael Neville seems to be well versed in this whole mess and is chomping at the bit to give Dave another run through the gutter and back.

God love you Dave.  This has come out of nowhere.  You and Pam stay strong.  My thoughts and prayers are with you.

And well done Dallas Lee.  Dave is not a member of the Victims Group but you looked out for his best interests.  Good for you for caring, and for acting.

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Two more comments and I’ll call it a day:

(1)  Don Johnson was retained by Doug and Nancy Seguin to request an inquest into the death of Ken Seguin, Doug Seguin’s brother.

On 24 January 1994 Johnson wrote a letter outlining that request to Crown Murray MacDonald.  MacDonald did not feel there was a need for an inquest.  That, according to Johnson, was the end of that.

(2)  Looks like Dr. John Bradford was way off the mark on his take on Jean Luc Leblanc in 1996.

Bradford is the Clinical Director of the Sexual Behaviour Clinic at the Ottawa Royal Hospital.  He is frequently called upon to assess those accused of sexual crimes.

In a 30 October 1996 report to Mr. Donihee re Jean-Luc Leblanc Dr. Bradford wrote:

“Mr. Jean-Luc Leblanc is a 42 year-old male who clearly has egocentonic homosexuality …”

“Against this background, I would humbly recommend at the discretion of the Court that he is fit to proceed with trial and assist in his own defence according to the usual criteria. There is no evidence that he comes within Section 16 of the Criminal Code of Canada with regard to criminal responsibility. I believe a noncustodial disposition with a probation order, possibly with conditions of psychiatric treatment to allow more formal monitoring, is likely the appropriate disposition in this case.”

Johnson has no recollection of the case, but says it was based on that Bradford letter that a decision was made that Leblanc could be put on parole without incarceration after he entered a guilty plea.

Leblanc is considered a dangerous risk to re-offend.  He was denied parole in 2008.  Read the Freeholder article. 

As I say, looks like Bradford was way off the mark here.

(3) One final thing.  Johnson has no recollection that he was a member of the Child Abuse Prevention Council back in the mid 80s.  None.

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I had hoped to go through the transcripts.  It’s now the wee small hours and they still aren’t up.  I give up 🙂 I went through the tape of the day and left it at that

Enough for now,

Sylvia

([email protected])

This entry was posted in Alexandria-Cornwall Diocese, Cornwall, David Silmser, Project Truth and tagged , , . Bookmark the permalink.

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