ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: Cr 11-4
DATE: 2012-10-10

BETWEEN:

HER MAJESTY THE QUEEN – and – IAN CHARLES BORBELY Defendant
FAMILY YOUTH & CHILD SERVICES OF MUSKOKA Third Party

D. Kasko, for the Crown

M. A. MacDonald and J. Herbert , for the Defendant
L. Hall, for The Family Youth & Child Services of Muskoka

HEARD: October 10, 2012

Justice B. Glass

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

Motion by Defendant for the Release of Third Party Records of Family Youth & Child Services of Muskoka

[ 1 ] The defendant has applied for the release of records from Family Youth & Child Services of Muskoka related to a proceeding involving the defendant, Samantha Collins and their child.

[ 2 ] The third party records are sought as an O’Connor application.

[ 3 ] Mr. Borbely was a party to the proceedings in which he was granted sole custody of the child. The Defence anticipates that the Crown will advance evidence at the trial demonstrating that Mr. Borbely was violent to Ms. Collins, but the Family Youth & Child Services of Muskoka records will likely show that he was not such a person.

[ 4 ] Mr. Borbely charged Ms. Collins with assault at the time the Society became involved.

[ 5 ] Mr. Borbely became the sole custodial parent of the son of the two adults.

[ 6 ] Later, a consent order was made for joint custody between Mr. Borbely and Ms. Collins.

[ 7 ] Further, there is anticipated motive evidence for this trial in which Ms. Collins was intending to leave the area with the child, thereby leading to the defendant killing her.

[ 8 ] The Crown questions the relevance of the file to the issues at trial. However, if the court should order the file or parts of it be released, then the Crown should have a copy.

[ 9 ] The Defence opposes the file being given to the Crown. The police have been investigating this murder for over 2 years. They could have brought an application for access to the records if they thought the contents were relevant.

[ 10 ] Family Youth & Child Services of Muskoka has taken the position that it does not oppose disclosure if the court finds the contents of the file to be relevant with the exception of copies of files from the Toronto Children's Aid Society and Peel Region Children's Aid Society. Both Crown and Defence accept that those files are not relevant to this proceeding. The Family Youth & Child Services of Muskoka also advises that there are some documents that it feels are privileged and should not be disclosed.

Analysis

[ 11 ] The foundation for an O’Connor Application is made out for the production of the file of Family Youth & Child Services of Muskoka because I am satisfied that the likely relevance test is met as the first phase test. This test is not one with a heavy onus.

[ 12 ] Mr Borbely was a party to the proceedings covered by the Family Youth & Child Services of Muskoka file. He was granted sole custody of the child. With the anticipation of the prosecution calling evidence to demonstrate that Mr. Borbely was violent to Ms. Collins, the Defence expects that there is information in the file that demonstrates the opposite. The Defence is not speculating because Mr. Borbely was directly involved in those proceedings.

[ 13 ] This evidence may assist the Defence in making full answer and defence to the charges Mr. Borbely faces.

[ 14 ] Having ordered the production of the records, I have had the opportunity to review them. The records relate to the deceased and the defendant as well as the well-being of their child. The information may assist the defendant in making a full defence to the allegations of murder. The defendant should have an opportunity to review the records as he advances to his trial.

[ 15 ] The balance of the O’Connor criteria are met.

[ 16 ] The Crown has asked that if the records are ordered to be provided to the defendant, the Crown should receive a copy as well. I do not agree. They are records the defendant has applied to receive. The Defence does not have an obligation to provide any information to the prosecution.

Conclusion

[ 17 ] The Family Youth & Child Services of Muskoka records will be copied and provided to the defendant only. These records exclude the Toronto Children's Aid Society and Peel Region Children's Aid Society records as well as privileged solicitor/client documents that counsel have agreed should not apply.

Justice B. Glass

Released: October 10, 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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