ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR 11-4
DATE: 2012-10-25

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 11, 15, 16,17,18,19,22,23/2012

Justice B. Glass

Voir Dire on Voluntariness of a Statement of the Defendant on May 3, 2011 and a Defence Application Pursuant to the Charter of Rights and Freedoms to Exclude the Statement

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

Introduction

[ 1 ] Ian Borbely has been charged with second degree murder as well as offering an indignity to the body of Samantha Collins by dismembering her body and placing the body parts into plastic pails.

[ 2 ] On July 6, 2010, after Samantha Collins’ body was found, Ian Borbely was interviewed by the Ontario Provincial Police. Mr. Borbely was not charged. He and others were interviewed by police as part of the initial investigation. Mr. Borbely and Ms. Collins had lived together as late as March 22, 2007. After a voir dire was held with respect to the voluntariness of that statement, Defence accepted the statement as being voluntary.

[ 3 ] On May 3, 2011, Ian Borbely was arrested for the charges set out above. The defendant was questioned by police for about six hours. The Crown has sought to introduce that statement as being made voluntarily. A voir dire has been conducted. At the same time, the Defence brought a Charter application to exclude the statement as being one obtained contrary to sections 7 and 10(b) of the Charter.

[ 4 ] The defendant had spoken to his lawyer briefly before the police commenced questioning him. The statement was video and audio recorded. Early in this interview, Mr. Borbely advised Detective Sergeant Coburn that his lawyer was Michael Anne MacDonald and that she had advised him not to give a statement or answer questions. During the course of the interview, Ian Borbely made a similar comment and asked to speak with his lawyer several times. He was not allowed to speak with Ms. MacDonald.

Issues

[ 5 ] Is this statement made voluntarily?

[ 6 ] Has there been any Charter infringement with respect to sections 7 and 10 ?

Background

[ 7 ] The defendant was provided a caution regarding not having to give a statement to the police. He was advised of his right to retain and instruct counsel. However, this was done only for the second degree murder count but not for the second charge of offering an indignity to a human body. Mr. Borbely spoke with Ms. MacDonald, his counsel, after the caution and Charter information was provided for the murder count only.

[ 8 ] When the interview with Detective Sergeant Coburn commenced, there was a caution and right to counsel advice by the interviewing officer for both charges. The accused did not have a second opportunity to speak with his lawyer about the additional charge. Later, when counsel called the police detachment and asked to speak to Mr. Borbely, her call was not put through to the client so that he never did have legal advice about the second charge.

[ 9 ] While in the cells at the police detachment, three undercover officers were placed into the cell area with Mr. Borbely at separate times. There is no sound recording about whether the officers spoke with the accused. The officers were not called by the Crown for this voir dire.

[ 10 ] At the commencement of the interview by Detective Sergeant Coburn, the basic requirements for providing a primary and secondary caution and advice about his Charter right to counsel were followed by the officer. Whenever Mr. Borbely commented that his lawyer told him not to answer questions or that he wanted to follow her legal advice, the officer would move to another topic.

[ 11 ] At times, the accused man spoke of not feeling well and wanting to follow his counsel’s legal advice. The officer retrieved his sinus medication which appeared to assist Mr. Borbely.

[ 12 ] Mr. Borbely appeared to have a full understanding that he did not have to answer questions and that he was not intending to give a statement because his lawyer told him not to do so. Further, as the interview continued, the defendant challenged the interviewers about continuing to ask him questions suggesting that they were trying to trick him into speaking to them about the case.

[ 13 ] There were times when the interviewers suggested that with the information that they had disclosed to Mr. Borbely during the interview, it was a good time to give his side of the story. Detective Sergeant Coburn told Mr. Borbely that if he had nothing to do with the death of Samantha Collins and could clear up the matter by saying the truth, he would be foolish to say nothing by taking the legal advice he had received.

[ 14 ] Mr. Borbely did say he wanted to talk to his lawyer again. He did so many times. He stated that he would not provide a statement on the advice of his lawyer. He told the officers that they were just trying to trick him into saying words that would be twisted later and be used against him. At times he became annoyed with the interviewers.

Position of the Crown

[ 15 ] The Crown submits that the procedure followed by the police was not outside the guidelines expressed by the Supreme Court of Canada wherein police may continue to ask questions of a detainee even when the individual states that he or she does not want to answer questions or provide a statement.

[ 16 ] Even though the second count was not brought to Mr. Borbely’s attention when arrested, it was soon after, and it was a less significant offence than second degree murder. The Crown emphasized that the defendant had an opportunity to speak with his lawyer of choice, and his position did not become one of greater jeopardy during the interview.

[ 17 ] With respect to undercover police officers being placed in the holding cell with Mr. Borbely, the Crown submits that they were not persons in authority. They were not in police uniforms. There basically was nothing to indicate that they were police or persons in authority. Although there was no audio recording for the holding cell area, there is no evidence that any comment was made to Mr. Borbely from any undercover officer.

Position of the Defence

[ 18 ] Defence counsel advised that the accused requested to speak to his lawyer 109 times. This became oppressive and intimidating to the defendant. And further, the lawyer called the police office twice asking to speak to her client. Either this message was not passed along to the interviewing officers, or they chose to ignore the request.

[ 19 ] Ms. MacDonald spoke with the accused man when he had been informed that he was charged with murder but not the second charge of dismembering the body of Samantha Collins. She did not have another opportunity to provide advice to her client prior to or during the police interview. This is submitted to be contrary to section 10(a) of the Charter as well as section 10(b) .

[ 20 ] I have reviewed the transcript for the six hour interview. I noted that Mr. Borbely asked to speak with his counsel about a dozen times. For dozens of other times he stated words to the effect that he did not want to speak or had been told by his lawyer not to answer questions.

[ 21 ] The bottom line for the Defence is that the police conduct was oppressive enough to remove voluntariness on Mr. Borbely’s part when speaking with the officers. The situation was untenable for the prosecution to use the statement at all because the man repeatedly stated that he did not want to answer questions or give a statement on the advice of his lawyer. Further, failure to tell him about the second charge and to allow him to receive legal advice about it is a contravention of the Charter such that the evidence ought to be excluded pursuant to section 24(2) of the Charter.

Methods Used by the Interviewing Officers

[ 22 ] Detective Sergeant Coburn approached the interview in a laid-back manner whereas Detective Allen was direct and blunt about the police evidence. Detective Allen told him a considerable amount of information gathered by the police during their investigation. His parents worked as civilians for the OPP and they probably would not be able to continue with their jobs.

[ 23 ] Both Detective Sergeant Coburn and Detective Allen would comment when Ian Borbely said that his lawyer had told him not to answer questions or not to give a statement. Detective Sergeant Coburn told Mr. Borbely that his lawyer would not want to come to the interview because she would become a witness. The interviewing officers asked the defendant whether anything had changed since he spoke with Ms. MacDonald. At times, Mr. Borbely responded by saying that there had been a change because the officers had provided some disclosure. When Detective Sergeant Coburn spoke with Mr. Borbely, the defendant asked why was the officer making him feel that he was doing something wrong by listening to his lawyer. Detective Sergeant Coburn commented that if Ian Borbely knew that telling the truth would make things right, then he would be foolish if he had nothing to do with the murder and follow the legal advice not to talk. Then, late in the interview Detective Allen told Ian Borbely that he would get to speak with Ms. MacDonald sometime.

Case Law Directions from the Supreme Court of Canada

[ 24 ] Although the Supreme Court of Canada has determined that interviewing police do not have to stop asking questions and that a person does not have the right not to be questioned. In R. v. Singh, 2007 SCC 48 , [2007] S.C.J. No. 48, the Supreme Court noted that if questioning continues, there is a chance that the police might cross the line of removing an operating mind from the person being questioned. Should the interviewing officers continue to question a person to the extent that they reduce his operating mind and in effect undermine his right to silence, a statement might not be admissible into evidence. The Singh decision enunciated that if police continued questioning in spite of the person repeatedly asking to speak to his lawyer and stating that he wished to remain silent, there might be a denial of giving the person a meaningful choice to speak or to remain silent.

[ 25 ] In R. v. Sinclair, 2010 SCC 35 , [2010] S.C.J. No. 35 and R. v. McCrimmon, 2010 SCC 36 , [2010] S.C.J. No. 36, the Supreme Court of Canada dealt with similar situations to the Borbely applications before this court. In both, the police interviewer continued to ask questions even though the person said he did not want to provide a statement, had spoken with a lawyer and asked to speak to a lawyer again but was not given the opportunity to do so. Basically, the Supreme Court noted that the defendant was provided a proper police caution and was advised of his section 10(b) Charter rights. The position of the defendant had not changed during the interview of several hours. The conclusion of the court was that the trial judge was correct in finding the statement to be voluntary and that there was not a Charter infraction. In both of these decisions, the accused person had spoken to a lawyer before questioning began. There was not a change in the position of the accused person warranting the need for another meeting with counsel.

Analysis

[ 26 ] Mr. Borbely clearly understood that he did not have to speak with the police. As often as he said that he wanted to speak with Ms. MacDonald again, he made his understanding known that he did not have to answer questions or give a statement. There was no doubt that he had spoken with Ms. MacDonald prior to his arrest. His lawyer had sent a letter to the police in July 2010 stating that Mr. Borbely as well as his parents did not want to give any statement to the police and that the police should contact her if any further contact was to be made.

[ 27 ] While Detective Sergeant Coburn and Detective Allen interviewed Mr. Borbely on May 3, 2011, Ms. MacDonald called the OPP detachment twice asking to speak with her client. She was not given an opportunity to do so. Of particular concern here is the fact that Mr. Borbely had not been told of the second charge, i.e. offering an indignity to human remains of Samantha Collins by dismembering her body and concealing her remains inside plastic pails. He never received legal advice regarding this count. Although it is a lesser charge than second degree murder, it is an offence that carries a maximum sanction of 5 years imprisonment. This was a significant change in Mr. Borbely’s situation. His jeopardy was affected. He should have had a chance for legal advice about this charge, and he was entitled to know when he was arrested on a highway what his criminal charges were.

[ 28 ] The accused man was in the cells at times with undercover officers. None have been called at this voir dire. There is no audio recording of the persons in the cell with Mr. Borbely. If the officers were persons in authority, they would be necessary witnesses with respect to voluntariness; however, it is evident that they were not there as police officers. Not being identified as police officers, they are not persons in authority. They were not in police uniform.

[ 29 ] The defendant did utter words to both Detective Sergeant Coburn and Detective Allen during the 6 hours of video-recorded interviewing. Unfortunately and without realizing the oversight, the police did not advise him of both charges for which he was arrested prior to him speaking with his lawyer in advance of the police interview. Section 10(a) of the Charter requires that a person be advised promptly of the reason for his arrest or detention. In this case, he was told he was under arrest for murder. There was no mention of the dismemberment of the corpse of Samantha Collins. More significantly, he was not apprised of this second charge prior to speaking with his lawyer prior to the six hour interview. The police did tell Mr. Borbely of the second count prior to the commencement of the interview. Unfortunately, they did not call Ms. MacDonald to advise her, nor did they allow the defendant to speak with her a second time while the six hour interview progressed.

[ 30 ] The jeopardy of Mr. Borbely did change between the time he was arrested for murder and spoke on the phone with Ms. MacDonald and the commencement of a long video-recorded police interview. If there is such a change in a significant way, a person under arrest or detention ought to be afforded an additional opportunity to talk with counsel. Although the second charge regarding dismemberment of a corpse is less serious than murder, it does carry with it a five year maximum custodial sentence.

[ 31 ] With the section 10(a) Charter infringement, there comes a section 10(b) infringement because he did not receive a second chance to speak with his counsel even though he requested the opportunity. The police knew who acted as his counsel. Ms. MacDonald was his counsel and had called the police detachment while the six hour interview was being conducted. She had requested the opportunity to speak with her client, but Mr. Borbely was not allowed to speak with his counsel.

[ 32 ] Continuing to interview the accused when he asked to speak with his lawyer and when police inadvertently did not advise the defendant or his lawyer of another charge places the defendant in a more precarious position. It influences a person’s choice whether or not to speak to the police. This situation is aggravated more so by the defendant asking a dozen times to speak with his counsel again. It is further exacerbated when the defendant told the interviewers often that he did not want to speak, and they continued to speak and engage him in conversation. That leads me to the conclusion that I am not satisfied beyond a reasonable doubt that what he said to the officers was voluntary .

[ 33 ] There was no threat made to Mr. Borbely. The continued questioning and comments about legal advice have been submitted by Ms. MacDonald to be badgering of the defendant. Counsel submitted that the pressure to talk with the police ran down the legal advice that had been given to Mr. Borbely such that he was being denied the opportunity for legal advice. Ms. MacDonald suggested that the officers acted in bad faith as they interviewed Ian Borbely. I do not make any comment on this aspect because I do not find there is a need to do so in light of my other reasons .

[ 34 ] I am further satisfied that the Defence application for a section 10(b) Charter violation has been established on a balance of probabilities. Ian Borbely should have been told of the second charge and allowed to speak with his lawyer again. Although the Defence application did not include a claim that section 10(a) of the Charter, I accept that there was such a failure.

[ 35 ] The Charter application requests that pursuant to section 24(2) of the Charter the statement be excluded from evidence at the trial because the Charter infringement brings the administration of justice into disrepute.

[ 36 ] The Crown has advised that he does not seek to tender the statement as substantive evidence, but rather to cross-examine Mr. Borbely should he testify in a manner contrary to what he told the police on May 3, 2011. I note that the May 3 rd statement is exculpatory as well.

[ 37 ] Not advising a person of a serious charge when arrested, not allowing the person to speak with his counsel a second time after telling the person of the additional charge and advancing with the interview are serious circumstances. Apprising a person of the reasons for his arrest and advising him of the right to retain and instruct counsel are very significant and important rights in our constitution. They are not to be overlooked in a casual manner by our courts. While I do not think the police service here set out to impose a Charter infringement upon Mr. Borbely, they did arrive at that situation. Although one might consider the statement to be exculpatory and not a hazard for an accused person, one must take into account that if admitted it might influence whether or not Mr. Borbely might choose to testify at his trial. In the end, this development affects how Mr. Borbely might respond to very serious accusations in the indictment. The situation is of a serious enough nature so as to bring the administration of justice into disrepute. Pursuant to section 24(2) of the Charter, there will be an order excluding the May 3, 2011 statement of Mr. Borbely from evidence at the trial .

Conclusion

[ 38 ] The statement is not proven beyond a reasonable doubt to be voluntary. It is not admissible. The Crown application to admit the statement as voluntary is dismissed.

[ 39 ] There is a section 10(a) and 10(b) Charter infringement.

[ 40 ] The Defence Charter application is granted.

Justice B. Glass

Released: October 25, 2012