ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR 11-4
DATE: 2012-10-17

BETWEEN:

HER MAJESTY THE QUEEN – and – IAN CHARLES BORBELY Defendant

D. Kasko, for the Crown
M. A. MacDonald & J. Herbert, for the Defendant

HEARD: October 12, 2012

Justice B. Glass

Application by the Defence for an Order Permitting a Challenge for Cause Questioning of the Partiality of all Jurors Regarding Pre-trial Publicity

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 ] The Defence applies for an order permitting all prospective jurors to be challenged for cause on the basis of their partiality based on publicity of the death of Samantha Collins and the wording of count two. Count two charges Ian Borbely with offering an indignity to the body of Samantha Collins by dismembering her body and concealing it in plastic pails.

[ 2 ] Copies of newspaper and internet coverage of the case were filed. The last article was dated April 2012.

[ 3 ] The Defence submits that the very wording of the second count automatically draws the media coverage of the allegations such that they might carry significant prejudice to the person accused of committing the offence.

[ 4 ] The Defence proposed questions for a challenge for cause ask jurors:

[a] Has the publicity respecting this case and particularly the notoriety with respect to “body in the buckets” affected your ability to render an unbiased and impartial decision in this case, based on the evidence presented alone?

[b] Do you harbour a prejudice, as a result of the allegation that Ms. Collins’ remains were dismembered and disposed of in pails, which would affect your ability to act impartially as a juror?

Positions of the Crown and the Defence

[ 5 ] The Crown submits that the publicity is not out of the ordinary. Many cases are covered in media. That alone does not bring an automatic foundation for a challenge for cause of the partiality of all persons on the jury panel. The party making the application has a responsibility to show a foundation for such alleged partiality. All persons called for jury duty are cautioned that they decide the case on the evidence presented without fear, prejudice or bias. This caution is covered at the commencement of a trial and at the end when the jurors are given their final instructions.

[ 6 ] The Crown says the jury instructions can meet the needs of this case and that the defendant has not established a foundation for a challenge for cause.

[ 7 ] The Defence emphasizes that dismemberment mentioned in the second count and reported in media coverage automatically draws emotion from the public from whom jurors are selected. It appears that the Defence is concerned that members of a jury panel will come with some pre-determination of the case.

Analysis

[ 8 ] The Defence submission is focusing on the potential for bias for the type of crime charged with count two. Senior courts have held that such is not a viable foundation. See R. v. Find 2001 SCC 32, [2001] S.C.J. No. 34 from the Supreme Court of Canada. In R. v. Sherratt, 1991 86 (SCC), [1991] S.C.J. No. 21, the Supreme Court of Canada noted there is a distinction between pre-trial publicity involving mere publication of the facts of a case and media misrepresentation of evidence whereby the media reports widely discreditable incidents for the past of the accused person or speculates about the guilt or innocence of the accused.

[ 9 ] The media reports, both standard media and social media, do not fall into the category of exaggeration or speculation. Basically, they refer to the second count on the indictment which alleges offering an indignity to the body of Samantha Collins by dismembering the body and concealing the remains inside plastic pails.

[ 10 ] The media have not taken on extreme or hysteric reporting of the case. There is no report of details regarding dismemberment.

[ 11 ] I am persuaded that Mr. Borbely’s application does not provide any exception to the rulings of the senior appellate courts.

[ 12 ] The challenge for cause application really amounts to one focusing on the type of charge against Ian Borbely with respect to allegations of dismembering the body of a deceased person. This does not require a challenge for cause. Rather, the jury panel and the jury at the end of evidence will be instructed that they make their decision based on the evidence presented during the trial together with my instructions on the law. Jurors will be told from the outset that they do not gather evidence themselves outside the courtroom.

Conclusion

[ 13 ] I am not persuaded that there is a foundation for a challenge for cause. The application is dismissed.

Justice B. Glass

Released: October 17, 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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