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]
Introduction
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.
2The 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]
Analysis
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.
4It 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.
5The 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.
6I do not think that the Crown has not created an inflammatory opening address. Nor has Mr. Kasko ignored the discreditable conduct evidence ruling.
[7]
Conclusion
The Defence motion for a mistrial is dismissed.
Justice B. Glass
Released: Oral Reasons
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ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
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REASONS FOR JUDGMENT
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