'This is unusual': Amsel lawyers want to restrict testimony of alleged bomb targets
Defence argues Amsel's former lawyers, and alleged bomb targets, bound by rules of solicitor-client privilege
Lawyers in the trial of accused mail bomber Guido Amsel argued in court Wednesday over just how far solicitor-client privilege should extend when an alleged victim is also the former lawyer for the accused.
"This is unusual," Crown attorney Chris Vanderhooft told Judge Tracey Lord. "When a lawyer becomes the claimant, we are in a totally different situation than all the cases I could find dealing with solicitor-client communications."
Amsel, 51, is on trial charged with five counts of attempted murder and several explosives-related offences in connection with bomb packages delivered to two law firms and his ex-wife in July 2015, and a December 2013 explosion at his ex-wife's home in the RM of St. Clements.
Among the witnesses set to testify at the six-week trial are lawyer George Orle and a junior lawyer at his firm, Sarah McEachern, who represented Amsel for a time in a civil case before withdrawing in late 2014.
A bomb package addressed to Orle and delivered to his Stradbrook Avenue law firm was safely detonated by police.
Amsel's lawyers are seeking to limit what the Crown can ask the Orle and McEachern, arguing Amsel has refused to surrender his right to solicitor-client privilege.
Solicitor-client privilege protects communications between a lawyer and a client for the purpose of legal advice.
The need to communicate openly between counsel and client can only happen when the client knows that the communications are not going to be disclosed.- Defence lawyer Jeremy Kostiuk
Amsel lawyer Jeremy Kostiuk argued solicitor-client privilege is necessary for the proper functioning of an adversarial justice system.
"The need to communicate openly between counsel and client can only happen when the client knows that the communications are not going to be disclosed," Kostiuk said.
"When that is compromised, it is the integrity of the justice system that is being compromised."
Vanderhooft said the Crown has no intention of wading into legal-advice communications between Amsel and his then lawyers.
Instead, the Crown wants to question the lawyers about comments Amsel made after McEachern formally withdrew from his case, his demeanour, and related discussions that would put the comments in context.
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The Crown alleges Amsel approached McEachern in a courthouse hallway after she withdrew from his case and asked her if his ex-wife and lawyer had paid her money.
"She replied that she had been trying to help him but she could not anymore, to which he said, 'This is all going to come out in the end,'" Vanderhooft said.
Those comments occurred when McEachern was no longer Amsel's lawyer and did not include legal advice, and therefore cannot be considered privileged, Vanderhooft said.
"When Mr. Amsel asserted that his counsel had been 'paid off' ... he put himself in the position of allowing, we say, both Mr. Orle and Ms. McEachern to provide evidence about the issue and his apparent belief that they had been paid off," Vanderhooft said.
Vanderhooft argued the Crown should also be allowed to question the lawyers about an earlier meeting at which Amsel allegedly reacted angrily to news McEachern was withdrawing from his case.
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"The fact that a client in such a meeting expressed anger or caused the lawyer to be fearful is not privileged," Vanderhooft said.
A blanket ban on solicitor-client discussions "essentially prevents the lawyer who is the victim of the named complainant from being able to testify and give evidence about the breakdown of the relationship with the individual and the reasons for that happening … all things that are relevant to motive and opportunity," Vanderhooft said.
Lord has reserved her decision on the matter. Orle and McEachern will be rescheduled to testify at a later date.