ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR 11-4

DATE: 2012-10-31

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 25, 26, 29 & 30/ 2012

Justice B. Glass

Application of Defence to Quash Authorization to Intercept Private Communications and Search Warrant

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

WRITTEN REASONS TO DECISION DELIVERED OCTOBER 30, 2012

The Factual Background

[ 1 ] The defendant has moved to quash an authorization to intercept private communications as issued by the Honourable Justice M. Brown on April 1, 2011 along with related assistance orders for a number recorder, production of telephone records, tracking warrants, and search warrants.

[ 2 ] The Defence seeks a finding of fraudulent misrepresentation to the authorizing judge to the extent that section 8 of the Charter has been infringed. If there has been an unreasonable search and seizure. The actions of the police and the prosecution have been so egregious that they should be described as being unconscionable and all evidence derived from the authorization should be excluded pursuant to section 24(2) of the Charter.

[ 3 ] Leave to cross-examine the affiant, Detective Sergeant Bell, was denied with oral reasons.

[ 4 ] The investigation focused on the death of Samantha Collins, who disappeared in March 2007. Her location was unknown until her body was found in early July 2010 when a wooden crate with four plastic pails and the dismembered body of Ms. Collins was found in the crawl space of a cottage in the Bracebridge area.

[ 5 ] Samantha Collins and Ian Borbely had lived together and had one child of their relationship.

[ 6 ] Prior to the disappearance of Ms. Collins, the relationship between the two had not been pleasant. She had been charged with assaulting Mr. Borbely. The assault charge was later withdrawn. He had obtained an order for sole custody of their son, and then on consent, the couple had agreed to an order for joint custody.

[ 7 ] After Ms. Collins presence was no longer known, the child and Ian Borbely remained together.

[ 8 ] Over the years, people said that Mr. Borbely had said that Samantha Collins left, went out west, went to Oshawa, and was stripping elsewhere. The defendant never reported Ms. Collins as a missing person over the years of her being away.

[ 9 ] When the dismembered corpse of Ms. Collins was found, the police interviewed many people. Once identity of Ms. Collins was determined, the investigation focused more on people who had any connection with her as well as the owner of the property at which her body parts were located. They had an interview with Ian Borbely in July 2010. He declined another interview on the advice of counsel.

[ 10 ] Over the months, the police gathered information that pointed suspicion towards Ian Borbely as the person with whom Ms. Collins lived, who had not reported her missing, and who had told others that she left for other parts of Canada. There was evidence gathered that Mr. Borbely used the debit card of Ms. Collins after she was no longer seen in the Bracebridge area. He did so until the bank stopped such use. He used her cell phone as well. The relationship between the couple had been antagonistic. Both were reported to be drug users and to have disagreements.

[ 11 ] The more the investigation continued, the more the police were eliminating others as suspects. For example, the owner of the cottage property where her body was located, Jeremy Crease who had worked with Ian Borbely at the cottage property, a female person who had been a drug supplier and had a physical confrontation with Samantha Collins before she disappeared, and a female person at a store where the plastic pails had been bought were checked out and eliminated. Jeremy Crease underwent a polygraph examination and was thought by the police to be eliminated as the perpetrator of the death of Ms. Collins.

[ 12 ] During the months following the locating of Samantha Collins’ body in four plastic pails, various items were forwarded to the Centre of Forensic Sciences for analysis.

[ 13 ] A master police investigation file was created and retained on a police hard drive server. Officers with clearance had access to the server for information.

[ 14 ] The police determined that they were advancing as far as they could go with standard police investigative proceedings. That left them with one more possible police investigative process. Such process was an order authorizing them to intercept private communications. Detective Sergeant Bell was the officer in charge of making such an application. He had access to the server for this investigation and compiled an application along with a supporting affidavit providing a detailed outline of the police investigation.

[ 15 ] He obtained an order authorizing the interception of the private communications of Ian Borbely and family members.

[ 16 ] In the supporting affidavit was brief reference to Centre of Forensic Sciences work on the file. There was a paragraph stating inaccurately that a small blood sample on a Makita saw was to miniscule to be analyzed. In fact, there was an analysis completed and it established that Mr. Borbely was not the source of the DNA for that one.

[ 17 ] Other saws and items were analyzed at the Centre of Forensic Sciences as well.

[ 18 ] There were 15 reports from the Centre of Forensic Sciences; however, the affidavit of Detective Sergeant Bell did not refer to them.

Position of the Defence

[ 19 ] The Defence submits that this was either a deliberate holding back of information from the authorizing judge or was negligent on the part of Detective Sergeant Bell in not reporting all of the reports to the judge.

[ 20 ] Ms. MacDonald states that the police and prosecution deliberately held back the information about the Centre of Forensic Sciences reports at the application for the authorization to intercept private communications, at the bail hearing and at the preliminary inquiry. Detective Allen was examined at this application.

[ 21 ] I do not accept that Detective Allen mislead anyone when he testified previously. He answered the questions asked.

[ 22 ] The Defence takes the position that this was a major misleading act by the police. Had the authorizing judge been presented with the information from the Centre of Forensic Sciences, Ms. MacDonald submits that the order would not have been granted.

[ 23 ] The warrants and derivative evidence obtained following the issuance of the order authorizing the interception of private communications should be disallowed as well.

[ 24 ] The authorization to intercept private communications and all evidence flowing from that order ought to be excluded because they are the product of unreasonable search and seizure. Pursuant to section 24(2) of the Charter, the actions of state officials are unconscionable and bring the administration of justice into disrepute.

Position of the Crown

[ 25 ] The Crown argues that the Defence is not correct to take such an extreme interpretation on the situation. Rather, the Crown suggests that the reports that the Defence complains were not drawn to the attention of the court were not a series of reports that proved the innocence of the defendant. If this court were to do anything, this court might edit out the part that inaccurately states that the sample was too miniscule to analyze. That certainly does not leave the court saying that there was nothing left for an authorizing court to use. And the Crown disputes that the shortfall by Detective Sergeant Bell is such as to quash the whole authorization.

[ 26 ] All derivative evidence and search warrants should be accepted as valid.

Analysis

[ 27 ] I agree with the Crown submission that the only information to be removed would be the inaccurate information that Detective Sergeant Bell used. The balance of the information to obtain is substantial and is more than speculation by the police about the information against Mr. Borbely. There is a substantial amount of information gathered by the police that points towards Ian Borbely as the perpetrator of the killing of Samantha Collins. There is no smoking gun. Rather, this is a circumstantial evidence case. The bottom line though is that at this stage there was a considerable body of evidence for an issuing judge to consider.

[ 28 ] The police application was made after they had exhausted other standard avenues of police investigation. There was comprehensive disclosure of the police activity.

[ 29 ] The application by Detective Sergeant Bell outlined a plan of action for the police to move ahead with disseminating information that would get to the family members of the defendant and eventually to him. The information would refer to evidence that only the person who killed Samantha Collins would know. This could lead to the defendant speaking on the phone and elsewhere with others so that he might disclose his involvement with the death of Samantha Collins.

[ 30 ] The supporting orders for tracking warrants, number recorder orders, production of telephone records, assistance orders and search warrants all fell naturally into place with the issuance of an authorization to intercept private communications. The search warrants obtained by Detective Constable Wyatt are within this group of orders.

Answers to the Issues

[ 31 ] Did the police follow the proper procedure within section 185 of the Criminal Code ? Yes.

[ 32 ] Was there an error by Detective Sergeant Bell in his affidavit regarding the Makita saw with a blood sample being analyzed? Yes.

[ 33 ] Does that error destroy the whole of the application and the order? No.

[ 34 ] Does that error coupled with failing to refer to all fifteen Centre of Forensic Sciences reports destroy the authorization so that it ought to be quashed? No. The reason for saying so is that the Centre of Forensic Sciences reports do not establish the innocence of Ian Borbely nor do they establish his guilt. Had such reports been disclosed to Justice Brown, as the issuing justice, there would have been additional evidence to demonstrate that the police were not getting further in their investigation with the Centre of Forensic Sciences reports as well.

[ 35 ] Removing the erroneous reference to the Makita saw leaves more than sufficient information for an authorization to be issued as was done.

[ 36 ] The application to quash the authorization and related warrants and search warrants is dismissed.

Justice B. Glass

Released: October 31, 2012