Ontario Superior Court of Justice

Court File No.: CR 11-4
Date: 2013-01-14

ONTARIO
SUPERIOR COURT OF JUSTICE

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: January 14, 2013

Justice B. Glass

Publication Ban for these Reasons Provided on a Motion in the Absence of the Jury Until the Jury Commences Deliberations

[1] On January 10, 2013, the Crown presented an opening address to the jury. The Defence is concerned that the Crown provided information nt the opening address that was the prohibited by pre-trial ruling on discreditable conduct thereby justifying a declaration of a mistrial.

[2] The Crown position is that the application for discreditable conduct dealt with drug dealing and drug use by the defendant and did not focus on the sale or disposal of the clothing of Samantha Collins, thereby not giving cause for a mistrial.

[3] At the Crown application for the admission of discreditable conduct, Mr. Kasko had recommended to the court that evidence from several people be admitted, but I had not ruled in favour of the Crown for many.

[4] It appears to me that the discreditable conduct evidence application focused on the use of illicit drugs, the purchase and the sale of illicit drugs by Ian Charles Borbely noting that such conduct by the deceased is anticipated at the trial. Drugs are not the focal point of the evidence and are not alleged to be the cause or motive for the death of Samantha Collins.

[5] The reference to clothing of Samantha Collins being moved and some being sold after she no longer was seen in the area of Bracebridge simply describes the activities of the defendant. The jury could treat it as evidence from which they could infer that Ian Charles Borbely knew Samantha Collins would not return so that there was no need for her clothing. At the same time, the jury could infer that he could dispose of the clothing because he is not expected to store his former partner’s belongings indefinitely if that is how the evidence is presented to the jury.

[6] I do not think that the Crown has not created an inflammatory opening address. Nor has Mr. Kasko ignored the discreditable conduct evidence ruling.

[7] The Defence motion for a mistrial is dismissed.

Justice B. Glass

Released: Oral Reasons

Copy and Paste Citation/Style of Cause DELETE EXTRA LINE SPACE IF APPLICABLE

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

Copy and Paste from Party/Defandant DELETE EXTRA LINE SPACE IF APPLICABLE

REASONS FOR JUDGMENT

Judge

Released: [Click and Type Date]