ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR 11-4
DATE: 2012-12-21

BETWEEN:

HER MAJESTY THE QUEEN
Crown

– and –

IAN CHARLES BORBELY
Defendant

D. Kasko & J. Costain, for the Crown
P. Cooper & J. Herbert, for the Defendant

HEARD: December 20, 2012

Justice B. Glass

Bail Review Pursuant to Section 523 of the Criminal Code of Canada

There is an order pursuant to section 571 of the Criminal Code of Canada banning publication of the evidence taken, the information given or the representation made and the reasons given until the trial is completed.

Introduction

[ 1 ] On September 22, 2011, Justice E. Quinlan concluded a bail hearing and rendered her decision for charges of second degree murder as well as committing an indignity to a human body by dismembering it.

[ 2 ] The bail hearing was conducted over an 11 day period.

[ 3 ] In her decision, Quinlan J. determined that on a balance of probabilities Ian Borbely had not satisfied the burden of showing that he should be released from custody. There was no concern for the primary grounds.

[ 4 ] However, on the secondary and tertiary grounds, Quinlan J. ordered that the defendant be detained. She provided a very detailed decision covering 74 pages. At page 51 of her reasons, Quinlan J. provided the summary of her conclusions for the secondary grounds not being met. Then, on pages 52-63, Her Honour provided her analysis for considerations of the tertiary grounds and concluded that Ian Borbely had not met the onus for release. Her Honour was not satisfied that the proposed sureties were satisfactory as persons who could manage and control Ian Borbely.

[ 5 ] This application has been brought to me as the trial judge rather than the matter being presented to the Court of Appeal.

[ 6 ] The Defence presents material changes in circumstances as a foundation to release Ian Borbely. There is no submission of error being made by Justice Quinlan.

Issues

[ 7 ] Is the presentation of 19 Centre of Forensic Sciences reports regarding the lack of DNA of Ian Borbely sufficient to be a material change in circumstances?

[ 8 ] If the Centre of Forensic Sciences reports provide a material change in circumstances, does that development satisfy an onus on Ian Borbely so that he might be released from custody?

[ 9 ] Does the defendant have an acceptable plan for release?

Positions of the Parties

[ 10 ] The Defence has filed 19 Centre of Forensic Sciences reports related to this homicide investigation. They were not filed with Quinlan J. at the original bail hearing. The Defence submits that had all of these documents been before the court, the judge would have reflected differently about the detention of Mr. Borbely. In a nutshell, the strength of the Crown’s case would have been seen to be much weaker. That conclusion would have been sufficient for the court to release the defendant from custody.

[ 11 ] The Defence proposes plan of release would have Ian Borbely living at his parents’ residence and being monitored 24 hours per day for every day of the week. He would not see his son except in the presence of another adult. This is an assurance that he would not abscond with his son. The same sureties are proposed. They are his parents and his girlfriend with whom he lives.

[ 12 ] If the Centre of Forensic Sciences reports demonstrate a material change in circumstances, Mr. Cooper submits that this court would then assess whether they would be sufficient to conclude that Quinlan J. would have been likely to have reached another conclusion in September 2011 and would have been likely to release Mr. Borbely.

[ 13 ] The Crown submits that there is not a material change in circumstances. One Centre of Forensic Sciences report was filed. Quinlan J. noted in her reasons at page 59 that there was no DNA evidence linking the defendant to the offence.

[ 14 ] Mr. Kasko points out that the defendant was eliminated as the source of DNA from a drop of blood on a saw. That saw is not shown to be connected to the crime so that in effect it has no meaning to the case. Ian Borbely could not be identified as the source of DNA on the handle of one of the plastic pails in which body parts were located. In effect, Mr. Kasko submits that nothing has changed including the proposed sureties who were proposed to serve with Quinlan J.

[ 15 ] Mr. Kasko states that since no error was cited by the Defence for this review, there is no issue with the reasons given by Quinlan J. for the detention order she made with respect to the secondary and tertiary grounds.

[ 16 ] Mr. Kasko states that if the court finds there to be a material change justifying release of the defendant, the plan for release continues to be flawed in the same way as identified by Quinlan J., i.e. the defendant would not be controllable by the sureties.

Analysis

[ 17 ] I am not persuaded that there is a material change. The lack of evidence specifically linking the defendant to the crime is identified by Quinlan J. In effect, this is not new information that would change the situation for judicial interim release because the end result of the Centre of Forensic Sciences reports is evident in Her Honour’s reasons.

[ 18 ] That means that filing the Centre of Forensic Sciences reports at this review does not change the situation except that time has passed since the bail hearing ended in September 2011. None of the facts have changed. The plan of release is virtually the same as previously given with the exception of the use of an electronic ankle band to locate the person on release. The same sureties are proposed. Although I do not need to assess whether they are satisfactory because I find that there is not a material change in circumstances, I note that there was concern by Quinlan J. that the sureties could not control Ian Borbely. In reviewing the reasons of Her Honour, I would have the same reluctance.

[ 19 ] Without a material change, Ian Borbely has not advanced to show on a balance of probabilities that he should be released from custody. The bottom line is that the case is in the same position it was when Quinlan J. heard the application for judicial interim release. It is a circumstantial evidence case. In Her Honour’s words, it is a reasonably strong circumstantial case for a jury to determine although the Crown’s case is not overwhelming.

[ 20 ] The application is dismissed.

Justice B. Glass

Released: December 21, 2012

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