ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR 11-4
DATE: 2012-11-14

BETWEEN:

HER MAJESTY THE QUEEN
The Crown

– and –

IAN CHARLES BORBELY
Defendant

D. Kasko, for the Crown

M. A. MacDonald & J. Herbert, for the Defendant
HEARD: October 31, November 2, 5,6/ 2012

Justice B. Glass

Application by Crown to Introduce Private Communications Lawfully Intercepted

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 ] On April 1, 2011, a Part VI Authorization to intercept private communications was issued by the Honourable Justice M. Brown.

[ 2 ] Several telephone communications were intercepted and recorded. The Crown seeks permission to use them for one or more purposes by introducing them into evidence during the trial.

[ 3 ] They are:

a. The relationship between Samantha Collins and Mr. Borbely;

b. Animus/motive of Mr. Borbely to commit murder;

c. Intent and deliberation;

d. The identity of Mr Borbely as the person who killed Ms. Collins;

e. The propensity of Mr. Borbely to commit violence;

f. Consciousness of guilt on the part of Mr. Borbely;

g. The opportunity for Mr. Borbely to commit the offences;

h. The character of Mr. Borbely should he put his character into issue during his trial.

Position of the Crown

[ 4 ] The Crown position is that the evidence is relevant to active issues that will arise during the trial. Further, the Crown emphasizes that the probative value of the evidence outweighs prejudice to the Defence. Should there be prejudice to a fair trial for Mr. Borbely, a specific instruction from the trial judge can balance the field.

[ 5 ] There are 17 telephone intercepts. Some occurred prior to his arrest and some after his arrest when he was in custody. Crown counsel emphasizes that there is no one call in which Ian Borbely blatantly admits to his involvement in the offences; rather, one must listen to several to understand what is being said. At times, the defendant and people to whom he is speaking talk in subtle ways as if in code.

Position of the Defence

[ 6 ] The Defence urges the court to exclude these telephone intercepts because they are nothing more than prejudicial to a fair trial for Mr. Borbely without any probative value. The Defence does not agree with the interpretations that the Crown places on the words in the intercepts. Some reveal Mr. Borbely telling others about discussions he had with his lawyer and possible courses of action that he might take. Mr. Herbert submits that playing these intercepts amounts to denigrating defence counsel.

Analysis

[ 7 ] The Defence is concerned that this evidence is prejudicial to Mr. Borbely engaging in a fair trial without there being probative value derived from these telephone intercepts. I conclude that these intercepts are at least within the categories for admissibility addressed below, except for character and propensity to violence which is dealt with differently. They carry probative value for the various purposes proposed. They are not loaded up against Ian Borbely so as to remove his right to have a fair trial. The jury will have the final determination of whether or not the interceptions of telephone communications do establish the points addressed by the Crown. At this stage though, the evidence is admissible so that the triers of the facts of this case can advance their decision-making towards a verdict for each count on the indictment.

[ 8 ] When analyzing the evidence that I find to be admissible here, I conclude that it falls within R. v. L.B. (1997), 1997 3187 (ON CA) , 116 C.C.C. (3d) 481 from the Ontario Court of Appeal. At the end of the consideration of this evidence, one is left with the conclusion that weighing the probative value and the prejudicial impact of such evidence results in being satisfied that there is probative value to have this evidence available to the jury and there is not prejudice to the defendant whereby his opportunity to have a fair trial is removed. If the negative feature of the evidence is difficult for the Defence only from the aspect that it is not favourable to the defendant, there is not a prejudice to the Defence that impacts upon a fair trial.

[ 9 ] With respect to the analysis of post-offence conduct and consciousness of guilt, the guidance from the Supreme Court of Canada and the Ontario Court of Appeal in R. v. White, 1998 789 (SCC) , [1998] S.C.J. No. 57 and R. v. Peavoy, 1997 3028 (ON CA) , [1997] O. J. No. 2788 is applicable and supports the admission into evidence of this evidence.

[ 10 ] The intercepts for propensity to violence considerations are limited to being used by the Crown should the defendant place his character in issue and advance a third party suspect allegations. This evidence will be subject to further submissions if and when third party suspect evidence is presented during the trial. The guidelines in R. v. Handy, (2002), 2002 SCC 56 () , 164 C.C.C. (3d) 481, R. v. Parsons 1993 3428 (ON CA) , [1993] O.J. No. 1937, and R. v. McMillan 1975 43 (ON CA) , [1975] O.J. 2247. In R. v. Brown 1999 2539 (ON CA) , [1999] O.J. No. 2983, the Ontario Court of Appeal provided a helpful guide to the introduction of character evidence by the Crown after a defendant has placed character in issue.

[ 11 ] I am not satisfied that the Defence is correct to submit that the information between solicitor and client cannot be considered when the client makes the decision to divulge that information to other persons. When such action by the client occurs, the privilege of communications between solicitor and client is waived. Should an accused person discuss the legal advice and the contents of meetings with counsel, the defendant does so at her or his peril. That is what has occurred when Mr. Borbely told his parents and his female partner what he and his lawyer discussed about the allegations he faces.

[ 12 ] Many of the intercepted conversations have to be interpreted in the context of the situations being discussed along with some of the other intercepts in order that one might have an understanding of the meaning of the discussions.

[ 13 ] For example, references to Samantha Collins if isolated into one sentence sound bites in an intercept do not provide any meaning. If the more complete intercept is heard along with others that relate to similar topics, then one garners an understanding of the conversations on the telephone.

[ 14 ] As one listens to the participants, one understands that Mr. Borbely and his mother, father and girlfriend, the speakers, have some concern about the potential that their conversations might be heard by the investigating police service. When a speaker cautions about watching what one is saying, they often go into what might be classified as coded or encrypted language to disguise what they are saying.

[ 15 ] The Defence counsel, Ms. MacDonald, had provided a letter to the OPP on July 22, 2010 after the dismembered corpse of Samantha Collins had been found and after the police had spoken with Ian Borbely not as a suspect but simply as a person who had worked at the cottage property at which the corpse was located in 4 plastic pails within a sealed wooden crate. At that stage, the police did not know the identity of the corpse. Ms. MacDonald sent a letter directing the police that the members of the Borbely family did not wish to provide any statement to the police and that all communications with them should be directed through her.

[ 16 ] During some of the phone intercepts, the participants make it clear that they must be careful what they say. At various times, the defendant uttered harsh language about forceful physical actions he might use. His mother, Cyndy Borberly, would caution him about what he was saying on the phone. Then, Ian Borbely would couch his words in less direct ways.

[ 17 ] The intercepted calls provide an outline for the jury to determine whether Ian Borbely did not like Samantha Collins. He talked of her drug use. But one must take into account that there is expected to be evidence of drug use by Mr. Borbely as well. This is part of the narrative of the life of the two people. There is no suggestion that drugs were involved in the death of Ms. Collins.

[ 18 ] There is discussion about Samantha Collins taking the child of her and Ian Borbely. There is considerable talk about custody of the child following the arrest of Ian Borbely for the murder of Samantha Collins. The family of Samantha Collins are evidently involved in seeking custody of the child.

[ 19 ] Many of the telephone intercepts provide considerable understanding of the kind of relationship that Samantha Collins and Ian Borbely had when they lived together prior to her disappearance in March 2007. There is some talk by Ian Borbely that reveals that he was concerned that Samantha Collins was going to take their son and leave and that he was very opposed to doing so. That alone can be presented by the Crown as a possible motive for Mr. Borbely killing Samantha Collins.

Propensity to Violence Evidence

[ 20 ] The issue of Ian Borbely being concerned about Samantha Collins taking their child and leaving along with Mr. Borbely speaking in terms of being a physically violent person might demonstrate intent with respect to causing her death as well as demonstrating that the alleged murder was deliberate. That evidence might refute accident for example. Further, evidence demonstrating that Mr. Borbely possessed a propensity to physical violence should he place his character in issue is important.

[ 21 ] Examples are shown when Mr. Borbely talks on the phone about how he could have strangled his current female companion for events the previous night, or when he describes driving his motor vehicle in a way that caused another driver to have to take evasive action or when he talks of a child at the residence of his partner and himself needed physical discipline, one might be concerned about a propensity toward violence.

[ 22 ] There is an anticipation that the Defence will introduce evidence of a third party suspect as the one who killed Samantha Collins. If that development should occur, the Crown submits that it is able to rebut such evidence by calling evidence to demonstrate the defendant’s propensity towards violence by presenting the following intercepts:

a. April 15, 2011 at 17:35:03 for intercept session 613 at Tab 7 of the application record. This is Exhibit 6 on this application.

b. May 1, 2011 at 12:56:57 for intercept session 1449 at Tab 8 of the application record. This is Exhibit 7 of this application.

c. May 10, 2011 at 9:39:51 for intercept session 938 at Tab 9 of the application record. This is Exhibit 8 of this application.

d. May 14, 2011 at 19:49:29 for intercept session 1038 at Tab 17 of the application record refers to Mr. Borbely hitting his fists against the jail walls when speaking with his mother. This is Exhibit 16 of this application.

[ 23 ] Although there is an anticipation that Mr. Borbely might raise a third party suspect issue at the trial, the details are not known to the court at this time. Although these intercepts might be relevant and might become admissible after consideration of their probative value and possible prejudicial effect, I am not prepared to make a ruling in a vacuum at this time. The topic may be revisited should a third party suspect issue arise during the trial. In paragraph 10 above, I have referred to the Parsons, McMillan and Brown decisions regarding character evidence being raised by an accused person.

Consciousness of Guilt, Identity of the Perpetrator, Animus/Motive Evidence

[ 24 ] At another time, Ian Borbely tells his partner, Amy Lebeau, that he will have to whisper information in her ear about Samantha Collins as if he knows what happened to Ms. Collins. This may demonstrate alleged consciousness of guilt that should be left to a jury to determine. When he speaks of pleading guilty to manslaughter, Mr. Borbely indicates consciousness of guilt and the identity of the person who killed Ms. Collins.

[ 25 ] Where the phone intercepts show animus and motive for Mr. Borbely to commit murder, the phone calls are relevant to the issues to be determined by the jury.

[ 26 ] Some of the conversations may demonstrate to the jury information that might assist in identifying who killed Samantha Collins.

[ 27 ] The following telephone intercepts may be used under this heading:

a. April 15, 2011 at 20:58:35 for intercept session 205 at Tab 3 of the application record is relevant to consciousness of guilt and the identity of the person who killed Samantha Collins. This is found at Tab 3 of the Crown’s application record. At page 2 lines 22 to 29 there is a summary rather than a transcription of what was said for several minutes because those comments are not relevant and are not necessary for an understanding of the remainder of the conversation. That area can be excised. This is Exhibit 1 of this application.

b. April 21, 2011 at 19:26:06 for intercept session 299 at Tab 4 of the application record is relevant to consciousness of guilt, identity of the person who killed Samantha Collins, animus towards Samantha Collins, and narrative relating to the relationship between Samantha Collins and Ian Borbely. The Crown sought to have this intercept also apply to demonstrate the voluntariness of Mr. Borbely’s post-arrest statement; however, I ruled earlier that the statement was not admissible. Therefore, it may not be used for establishing voluntariness of the May 3, 2011 statement. The Crown may still use this intercept as it refers to whether one would give a statement to the police because it pre-dates a statement of May 3, 2011. It is referring to whether one would give a statement to the police. This is Exhibit 2 of this application.

c. May 11, 2011 at 17:58:24 for intercept session 979 at Tab 10 of the application record is relevant to consciousness of guilty and the identity of the person who killed Samantha Collins. This is Exhibit 9 of this application.

d. May 11, 2011 at 18:19:32 for intercept 344 at Tab 5 of the application record is relevant to consciousness of guilt of the person who killed Samantha Collins. This is Exhibit 3 of this application.

e. May 11, 2011 at 19:36:26 for intercept session 988 at Tab 11 of the application record is relevant to the issue of animosity of Ian Borbely towards Samantha Collins and consciousness of guilt. This is Exhibit 10 of this application.

f. May 12, 2011 at 10:55:22 for intercept session 996 at Tab 12 of the application record is relevant to consciousness of guilt, the identity of the person who killed Samantha Collins, animus towards Samantha Collins, motive to kill Samantha Collins and narrative of the relationship between Ms. Collins and Mr. Borbely. This is Exhibit 11 of this application.

g. May 13, 2011 at 9:45:26 for intercept session 1010 at Tab 13 of the application record is relevant to animus towards Ms. Collins, motive to kill Ms. Collins and narrative relative to the relationship between Ms. Collins and Mr. Borbely. This is Exhibit 12 of this application.

h. May 13, 2011 at 10:12:02 for intercept session 1011 at Tab 14 of the application record is relevant to animus towards Ms. Collins by Mr. Borbely as well as motive to kill Samantha Collins. This is Exhibit 13 of this application.

i. May 13, 2011 at 14:21:55 for intercept session 1015 at Tab 15 of the application record is relevant to the issue of the identity of the killer of Samantha Collins. The defendant tells his father that he knows the kind of tools the police would be looking to locate with respect to their investigation into the death of Samantha Collins. This is Exhibit 14 of this application.

j. May 14, 2011 at 9:46:36 for intercept session 1026 at Tab 16 of the application record is relevant to the identity of the person who perpetrated the murder of Samantha Collins. This is Exhibit 15 of this application.

k. May 16, 2011 at 18:09:25 for intercept session 414 at Tab 6 of the application record is relevant to both consciousness of guilt and the identity of the person who perpetrated the murder of Samantha Collins when Mr. Borbely spoke with Amy Lebeau. Ms. Lebeau had commented that they did not know what happened to Samantha Collins. Then, Ian Borbely told her that he would have to whisper in her ear and that it would blow her mind indicating an awareness of what had happened. This is Exhibit 4 of this application.

l. May 21, 2011 at 19:28:12 for intercept session 1176 at Tab 19 of the application record is relevant to establishing animosity of the defendant to Samantha Collins and identity of the killer of Ms. Collins. This is Exhibit 18 of this application.

Telephone Intercepts That May Not Be Introduced into Evidence

[ 28 ] May 16, 2011 at 17:43:55 for intercept session 1067 at Tab 18 of the application record was advanced regarding the issue of voluntariness of statements to persons in authority; however, the statement of May 3, 2011 was not ruled admissible. Therefore, this intercept cannot be used for that purpose. This is Exhibit 17 of this application.

Transcripts of Intercepted Communications

[ 29 ] The Crown shall provide transcripts of the telephone intercepts that are played during the trial. They will assist the jury in following the audio recording. They will be made exhibits at the time of presentation. The jury will be cautioned that the transcripts are to assist them. If the jurors conclude that they hear different words than those in the transcripts, the evidence is what they determine they hear rather than the printed words in the transcripts.

Conclusion

[ 30 ] The intercepted communications that may be introduced into evidence are intercept sessions 205 (Exhibit 1), 299 (Exhibit 2), 979 (Exhibit 9), 344 (Exhibit 3), 988 (Exhibit 10), 996 (Exhibit 11) , 1010 (Exhibit 12), 1011 (Exhibit 13), 1015 (Exhibit 14), 1026 (Exhibit 15), 414 (Exhibit 4), and 1176 (Exhibit 18).

[ 31 ] The intercepted communication that may not be introduced into evidence is intercept session 1067 (Exhibit 17).

[ 32 ] The intercepted communications that may be revisited are intercept sessions 613 (Exhibit 6), 1449 (Exhibit 7), 938 (Exhibit 8), and 1038 (Exhibit 16). Should the defendant place his character in issue and/or introduce third party suspect evidence, the Crown may return to these communications.

Justice B. Glass

Released: November 14, 2012