SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

v.

IAN CHARLES BORBELY

R U L I N G

ON MOTION SEEKING LEAVE TO CROSS-EXAMINE DETECTIVE SERGEANT PAUL BELL

BY THE HONOURABLE MR. JUSTICE B. GLASS

on Monday, 29 October 2012 at BRACEBRIDGE, Ontario

INFORMATION CONTAINED HEREIN CANNOT BE PUBLISHED, BROADCAST, OR TRANSMITTED, PURSUANT TO THE ORDER OF JUSTICE B. GLASS, SUPERIOR OF COURT OF JUSTICE, DATED 05 SEPTEMBER 2012

A P P E A R A N C E S :

D. Kasko Counsel for the Crown

M. S. MacDonald ) J. Herbert ) Counsel for the accused

MONDAY, 29 OCTOBER 2012

R U L I N G

GLASS, B. (Orally):

With respect to the request for leave to cross-examine Detective Sergeant Bell, leave is denied. It is not necessary.

The issue at stake is the affidavit in support of the authorization before Justice Brown, referenced in paragraph 567 of the affidavit. In particular, that paragraph noted that blood found on a Makita saw was too minuscule to analyse. The source of that information was the minutes of an investigative meeting of January 31^st, 2011.

The evidence from Detective Allen during this application, as well as Detective Ouellette, was that the whole investigative file was on the police hard-drive server. Detective Sergeant Bell would have had access to that server for any of his information when organizing an affidavit for an order to permit the interception of private communications.

There is no need to cross-examine Detective Sergeant Bell, because the information before me includes the fifteen Centre of Forensic Sciences reports. Tabs 11, 13, and 15 are Centre reports respecting blood analysis. In tab 15, dated March 24^th, 2011, the conclusion was that Ian Borbely was excluded as the source of blood noted as Profile 1, which had been checked on a Makita saw. The forensics reports do not establish the identity of the defendant or any male so far as the perpetrator.

The evidence before me establishes that the investigating police service had the fifteen reports before Detective Sergeant Bell signed the affidavit in support of the authorization on March 31^st, 2011.

On the face of the document, there is no suggestion of fabricating evidence for the affidavit; rather, Detective Sergeant Bell`s affidavit shows the source of his information. Detective Allen had testified that he did not answer questions at the bail hearing or at the preliminary inquiry so as to mislead judicial officers; he simply answered the questions asked.

The missing forensics information is apparent with the information before me, so there is no need to conduct a cross-examination of the affiant; rather, the application should proceed on the information before me. Should there be a determination that the application for an authorization fell short of the requirements of the Criminal Code, then a determination of whether or not the situation destroys the authorization will be made.

Basically, the information shows in the affidavit that the source of the blood information being too minuscule was the investigative meeting of January 31^st, 2011.

So, in conclusion, the application for leave to cross-examine Detective Sergeant Bell is dismissed. We will advance to the balance of the application.

PHOTOSTAT COPIES OF THIS TRANSCRIPT ARE NOT CERTIFIED AND HAVE NOT BEEN PAID FOR UNLESS THEY BEAR THE ORIGINAL RED SIGNATURE OF S. J. JANSEN, AND, ACCORDINGLY, ARE IN DIRECT VIOLATION OF ONTARIO REGULATION 587/91, COURTS OF JUSTICE ACT, JANUARY 1, 1990.

FORM 2

Certificate of Transcript (Subsection 5(2))

Evidence Act

I, S. J. Jansen, certify this document is, to the best of my skill and ability, a true and accurate transcript of the recording of the Ruling on the motion seeking leave to cross-examine Detective Sergeant Paul Bell, in the matter of Her Majesty the Queen v. Ian Charles Borbely, in the Superior Court of Justice, held at 3 Dominion Street, Bracebridge, Ontario, taken from recording 2411_01_20121029_084859@120834, which has been certified in Form 1.

(Date) (Signature of Authorized Person)