Court of Appeal for Ontario

Date: 2021-01-12 Docket: C58788

Strathy C.J.O., Rouleau and Coroza JJ.A.

Between

Her Majesty the Queen Respondent

and

Ian Charles Borbely Appellant

Counsel: David M. Humphrey and Jill D. Makepeace, for the appellant Andreea Baiasu and Nicole Rivers, for the respondent

Heard: November 23, 2020 by videoconference

On appeal from the conviction entered by Justice Bruce Glass of the Superior Court of Justice, sitting with a jury, on March 23, 2013, and from the sentence imposed on June 7, 2013.

Rouleau J.A.:

1The appellant was convicted of second degree murder and offering an indignity to human remains for killing his common law spouse, Samantha Collins, dismembering her remains with a saw, and concealing her dismembered remains in four Home Depot brand paint pails wrapped in garbage bags. The pails were discovered three years after Ms. Collins’ disappearance in a wooden crate under a cottage in the Bracebridge, Ontario area. The appellant received a sentence of life imprisonment without parole eligibility for 17 years for the second degree murder of Ms. Collins, as well as a concurrent sentence of 5 years for offering an indignity to the human remains of Ms. Collins.

A. Brief Factual Overview

2The appellant, Ms. Collins, and their young son lived together in an apartment in Bracebridge. Ms. Collins disappeared on March 22, 2007. On the morning of March 22, 2007, following three telephone calls to the appellant, Ms. Collins called the daycare where her son had been dropped off to insist that the appellant’s parents did not have permission to pick up her son. Shortly thereafter, Ms. Collins placed a call to Jeremy Crease, the appellant’s former employer, inquiring about whether he would help with their rent payment that was overdue, since he had told the appellant he would pay their rent. The appellant and Ms. Collins were to appear before the Landlord and Tenant Board that morning to respond to their landlord’s application to evict them for non-payment of rent. Mr. Crease advised Ms. Collins that he had never had such a conversation with the appellant and would not be able to assist with their rent payment.

3The Crown’s theory was that Ms. Collins was murdered shortly after this telephone conversation with Mr. Crease. Her dismembered remains were found three years later, on July 5, 2010, in four paint pails that were wrapped in garbage bags and concealed in a wooden crate under a cottage in the Bracebridge area owned by Dr. Peter Vadas (the “Vadas cottage”). Dr. Vadas had previously hired the appellant and Mr. Crease to assist with renovations of the cottage, which were carried out from the fall of 2007 through the summer of 2009.

4In the early spring of 2010, the appellant contacted Dr. Vadas to inquire if he would like him to open the cottage for the season. By then, Mr. Crease had left Bracebridge and was not involved in the continuing work. Dr. Vadas authorized the appellant to perform further work on the cottage. On May 10, 2010, Dr. Vadas gave the appellant the keys to access the property. Between May 10, 2010 and May 22, 2010, the appellant completed work to open the cottage. The appellant completed further work on the cottage in June 2010. On June 13, 2010, the appellant returned the keys to Dr. Vadas. The wooden crate in which Ms. Collins’ remains were found was made of similar material to those used in the renovations.

5The cause of Ms. Collins’ death was determined to be blunt impact head trauma. Four lacerations on the back of Ms. Collins’ head indicated there were four impacts with a blunt elongated object. One or more of those blows caused a “fractured system”, or a series of cracks, at the back of the skull, as explained by Dr. Michael Pollanen. Two open wounds on Ms. Collins’ right hand were also observed.

6On May 3, 2011, the appellant was arrested while driving his vehicle. Upon executing a search warrant on the vehicle, the police seized a sealed envelope. It was marked “Attn – Michael Anne MacDonald – Lawyer”. The police placed the sealed envelope into another sealed envelope that would not be opened until the court could rule on it. The envelope contained a 23-page notebook of handwritten notes made by the appellant that included information about his relationship with Ms. Collins and her behaviour in the period of three to six months prior to her disappearance. It also contained details regarding an argument that most likely occurred immediately prior to Ms. Collins’ disappearance.

B. Grounds of Appeal

7In his factum, the appellant focussed his conviction appeal on three distinct grounds. He submits that the trial judge erred by:

1. finding that the contents of the sealed envelope addressed to the appellant’s lawyer were not subject to solicitor-client privilege;
2. dismissing the appellant’s application to adduce evidence pertaining to Mr. Crease as an alternate suspect; and
3. failing to leave manslaughter with the jury as an available verdict.

The appellant requests that the appeal be allowed, and a new trial be ordered.

8In the alternative, the appellant seeks leave to appeal his sentence. If leave is granted, the appellant seeks a reduction in the 17-year parole ineligibility period. He submits that the trial judge erred by placing undue weight on post-offence conduct as an aggravating factor resulting in an unfit sentence.

9For the reasons that follow, I would dismiss the appeal.

C. Analysis

(1) Conviction Appeal

(a) The pre-trial ruling regarding the sealed envelope and solicitor-client privilege

10The parties brought a joint application before the trial judge to determine whether the contents found in the sealed envelope were subject to solicitor-client privilege. The trial judge reviewed the contents and ruled that they were not privileged: R. v. Borbely, 2012 ONSC 5713. He characterized the contents, a small notebook, as a diary of some of the events of the appellant’s life rather than communications to a solicitor. He considered the police’s seizure of the envelope as akin to a third party hearing the communication, which means that privilege would not exist.

11The trial judge therefore allowed the notebook to be disclosed to both parties. Neither the Crown nor the appellant referred to or filed the notebook into evidence at trial.

12The appellant maintains that the trial judge erred, and that the notebook met the requirements for solicitor-client privilege, namely that the notebook:

1. was a communication between solicitor and client;
2. involved the seeking or giving of legal advice; and
3. was intended to be confidential.

13The appellant accepts that if the notebook were a diary written before a lawyer was retained, it would constitute real evidence that pre-existed the solicitor-client relationship and would therefore not be covered by privilege. He submits, however, that on the face of the document, it has none of the appearance of a diary. It clearly contains information that a lawyer would want to know. The fact that the notebook was located in a sealed envelope addressed to counsel and was found in a vehicle as the appellant was presumably driving to deliver it to a lawyer makes it apparent that it was prepared for the purpose of seeking legal advice.

14Although the appellant led no evidence as to the origin of or reasons for the preparation of the notebook, he argues that his trial counsel’s submissions on the application explained that, at the time of his arrest, he was en route to deliver written instructions to his lawyer. Trial counsel submitted that the envelope contained instructions for the lawyer following discussions the lawyer had with the appellant. These submissions were not challenged by the Crown. In the appellant’s view, the submissions provided the necessary basis for privilege and were not given proper consideration by the trial judge in his review of the contents of the notebook.

15The appellant maintains that the curative proviso cannot be applied to correct this error: Criminal Code, R.S.C. 1985, c. C-46, s. 686(1)(b)(iii). Any breach of solicitor-client privilege is a serious violation of s. 7 of the Canadian Charter of Rights and Freedoms. As explained by the appellant, he suffered prejudice even though the contents of the envelope were never adduced as evidence at trial. This is because it might have served to dissuade the appellant from testifying, thereby benefitting the Crown. Had the appellant decided to testify, he could have been cross-examined by the Crown on the events described in the notebook.

16I do not agree with these submissions. From my review of the transcripts, I agree with the Crown that the appellant never advanced a formal claim of privilege over the notebook. Rather, the appellant joined the Crown in asking the trial judge to review the contents of the envelope and determine whether they were privileged or not. No evidence was led to provide an evidentiary foundation for a claim of privilege, and, specifically, no evidence that the notebook was itself a communication or that it was prepared for the purpose of obtaining legal advice was advanced. The submissions of the appellant’s trial counsel to the effect that the appellant prepared written instructions for trial counsel were simply submissions. The trial judge was left to make his own assessment based on his review of the contents and the circumstances of the discovery. Given this context, I see no basis to interfere with the trial judge’s assessment of the notebook and its contents as constituting a diary of some of the events in the appellant’s life.

17In any event, I also agree with the Crown’s submission that, even if the trial judge erred and ought to have found that the notebook was a privileged communication and ought not to be disclosed to the Crown, this is the case where the curative proviso can and ought to be applied.

18As mentioned earlier, the notebook was not entered into evidence at trial. The suggestion that the appellant did not testify at trial because the notebook had been disclosed to the Crown is purely speculative and was not raised as an issue by defence counsel at trial. Further, there is no fresh evidence on appeal that this issue affected the appellant’s decision not to testify. In any event, the contents of the notebook did not advantage the Crown in any measurable way, as the notebook did not contain any significant information that was not otherwise known to the Crown.

(b) The pre-trial ruling regarding alternate suspects

19At trial, the defence brought an application to adduce evidence of three possible alternate suspects: an unidentified but known stalker to Ms. Collins; Ms. Collins’ former sponsor at the local Alcoholics Anonymous in Bracebridge; and Mr. Crease, the appellant’s former employer. The trial judge dismissed the application: R. v. Borbely, 2013 ONSC 48. After setting out the test, namely that the defence must show there is some basis upon which a reasonable jury could acquit based on the defence of third-party involvement, he found that there was no evidence linking any of the three possible alternate suspects with the death and dismemberment of Ms. Collins. In particular, the trial judge noted that none had any motive to kill Ms. Collins.

20With respect to Mr. Crease, the alternate suspect that is the subject of the appeal, the trial judge found that, at most, he had access to the Vadas cottage while working with the appellant, and Ms. Collins called Mr. Crease before her disappearance to enquire about him helping with rent. There was, however, no evidence on the record showing that Mr. Crease had returned to the Vadas cottage in the spring of 2010, and the evidence with respect to contacts with Ms. Collins was that, other than the telephone call, they had only met once.

21The trial judge concluded that there was no air of reality to Mr. Crease being an alternate suspect.

22The appellant submits that the trial judge focussed on animus and motive but did not adequately consider Mr. Crease’s connection with the crime as directed by R. v. Grandinetti, 2005 SCC 5, [2005] 1 S.C.R. 27, at paras. 47-48. The evidence in this case was purely circumstantial and a number of the facts linking the appellant to the crime applied equally to Mr. Crease. Specifically, the appellant argues that there were facts linking both he and Mr. Crease to the dismemberment and discovery of the body. Both of them worked at the same properties, including the Vadas cottage, where the body was found, and the residence of Robert Colley, a property that was suspected to have been the location where the body was dismembered. In addition, some of the tools and materials used at those work sites may have been used in the dismemberment and storage of the remains.

23According to the appellant, while there is no evidence of motive, these facts, together with the telephone conversation Mr. Crease had with Ms. Collins on the day of her disappearance, constitute a sufficient connection between Mr. Crease and the crime to justify granting the application to adduce evidence at trial of Mr. Crease as an alternate suspect.

24I disagree. The connections cited by the appellant were of little relevance. The work Mr. Crease carried out at the Vadas cottage had ended sometime well before the body was likely placed under the cottage. By the time the body was likely placed at the Vadas cottage and discovered, Mr. Crease had moved away from the community and, although he still had a key to the Vadas cottage, there is no evidence he returned to the property in that time frame. Furthermore, Mr. Crease had virtually no connection to Ms. Collins. The connection is limited to that one telephone conversation and an earlier contact. Mr. Crease and Ms. Collins were practically strangers.

25The trial judge correctly instructed himself in accordance with the well-established authorities, including Grandinetti, and went on to observe that beyond the very limited links, “there is no evidence relevant to Mr. Crease being involved with the death of Samantha Collins. There is no nexus between Jeremy Crease and the deceased. There is no animus between them. Nor is there any motive for him to have killed Samantha Collins and dismembered her body.” The trial judge’s finding that there was no air of reality to the proposed alternate suspect is fully supported by the record.

(c) Leaving manslaughter with the jury as an available verdict

26The appellant argues that manslaughter ought to have been left with the jury as an available verdict. He acknowledged that, at trial, the defence confirmed that manslaughter was not being advanced and that trial counsel would not be presenting it to the jury. This “all or nothing” approach was also taken by the Crown, but, in the appellant’s submission, this did not absolve the trial judge from carrying out his duty to scrutinize the evidence and instruct the jury on all avenues of conviction if there was an air of reality to them, irrespective of the Crown and defence positions.

27In the appellant’s view, there was an air of reality to manslaughter as a verdict. In particular, the Crown’s closing submissions invited the jury to infer that the appellant killed Ms. Collins after an argument that escalated to a point where he could not control her. The stressors that escalated the argument included financial problems, a pending eviction, child custody issues, and deceit by the parties, including Ms. Collins’ possible infidelity. As explained by the appellant, there were significant stressors at play between him and Ms. Collins that may have caused him to act irrationally. As a result, the killing could have been carried out in a blind rage. The four blows to Ms. Collins’ head and the appellant’s post-offence conduct are not inconsistent with such a possibility.

28Finally, the appellant maintains that if an air of reality to manslaughter existed in this case, the curative proviso ought not to be applied. The appellant submits that if the jury had been properly instructed as to the availability of manslaughter, they would not necessarily have returned a verdict of second degree murder.

29I do not accept these submissions. As noted by the Crown, the record shows that, in several instances, defence counsel maintained that manslaughter was not available. He appeared to concede that the requisite intent for murder was present in this case. For example, during the Crown’s pre-trial motion to tender autopsy photographs as probative regarding intent, the appellant’s trial counsel indicated that the photographs should not be entered as evidence for that purpose, as “[c]learly, this young woman was murdered by someone who struck her on the head intending to kill her.” As noted by this court in R. v. Chalmers, 2009 ONCA 268, 243 C.C.C. (3d) 338, at para. 58, “The position taken by the appellant is a telling indicator of the defence view of the air of reality of manslaughter in the crucible of [the] trial.”

30Further, the nature of Ms. Collins’ injuries and inference that the perpetrator intended the natural and probable consequences of the act gives strong support for the conclusion that there was no air of reality to manslaughter as a verdict. The only evidence of the circumstances of the killing were that Ms. Collins suffered four significant blows to the back of her head, causing a “fractured system” at the back of the skull, and injuries to her right hand. The common sense inference from the four blows is that the perpetrator of the injuries intended the natural and probable consequences of his acts.

31The appellant relies on Chalmers for his submission that the injuries of Ms. Collins are not sufficient to exclude manslaughter as an available verdict. In Chalmers, despite the nature of the deceased’s injuries, injuries similar to those in the present case, the court found that there was a “marginal” air of reality to manslaughter: Chalmers, at para. 66. That case, however, is somewhat different. In Chalmers, there was evidence that the accused “crack[ed]” and the assault was just a “blur”, providing some basis, if considered in isolation, to support leaving manslaughter to the jury: Chalmers, at para. 58. There is no such evidence here.

32I also reject the appellant’s suggestion that the Crown’s theory of the case offered an air of reality to a verdict of manslaughter. The Crown had invited the jury to find that the appellant had killed Ms. Collins during an argument about their finances and the custody of their child. This suggested that the appellant meant to kill Ms. Collins and was motivated either by jealousy, frustration, or fear of losing his child. In the absence of other evidence, however, it would be pure speculation to find that, when he hit her four times on the back of the head, he did not intend to either kill her or cause bodily harm that he knew was likely to result in her death.

33Given the conclusion on this issue, I need not deal with the curative proviso issue.

(2) Sentence Appeal

34The appellant submits that the trial judge erred in principle by placing undue weight on aggravating factors and too little weight on the unanimous recommendation made by the jurors that the parole ineligibility period should be 10 years: R. v. Borbely, 2013 ONSC 3355. The result, in the appellant’s view, is that the imposition of the 17-year parole ineligibility period is unduly harsh and excessive. The appellant further submits that a 13-year parole ineligibility period would be appropriate in all of the circumstances.

35The appellant relies on this court’s decision in R. v. McKnight (1999), 135 C.C.C. (3d) 41 (Ont. C.A.), at para. 48, where Laskin J.A., writing for the majority, held that the parole ineligibility range for brutal second degree murders of their unarmed spouse or partner is 12 to 15 years. The appellant also relies on R. v. Teske (2005), 202 O.A.C. 239 (C.A.). In the appellant’s view, Teske involved a murder similar to the present case. In fact, he argues that the aggravating factors in that case were greater, given that the accused had committed a prior domestic assault against his wife, a feature that is absent in this case. In Teske, at paras. 105-06, this court reduced a 16-year parole ineligibility period to 13 years on the basis that the trial judge had erred in principle by failing to clearly explain why a departure from the McKnight range was warranted.

36I would not interfere with the imposed sentence. It is well established that the weight to be given to aggravating factors is a matter in the trial judge’s discretion: McKnight, at para. 35; R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at paras. 43-46; R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 78. The jury’s recommendation is not binding. Here, as in R. v. Olsen (1999), 131 C.C.C. (3d) 355 (Ont. C.A.), at paras. 56-57, the jury’s recommendation was unrealistic and unreasonable. In fact, the appellant does not suggest that a 10-year parole ineligibility period is appropriate in this case. Instead, the appellant seeks a parole ineligibility period of 13 years, as this court held in Teske. As a result, the trial judge was entitled to give the jury’s recommendation “little or no weight”: Olsen, at para. 57.

37Furthermore, the trial judge was aware of and referenced McKnight in his reasons. In referencing McKnight, the trial judge cited the mental health issues involved, the accused’s positive prospects for rehabilitation, and the accused’s expressed remorse for his actions. Those mitigating factors are not present in this case. Unlike in Teske, here, the trial judge gave clear, detailed, and cogent reasons that explained why he was imposing a sentence outside of the McKnight range.

38Despite the range established in McKnight, there are factually similar cases to the present case in which a 17-year parole ineligibility period was imposed: see R. v. Keene, 2020 ONCA 635; R. v. French, 2017 ONCA 460. In the recent case of Keene, this court distinguished McKnight and upheld a 17-year parole ineligibility period for an accused. In that case, the accused, having invited the victim into his home, strangled her, dismembered her body, and disposed of the body parts at various locations, where they would likely be found by passers-by, to deceive the police. Like the appellant in this case, Andrew Keene had no criminal record, did not express remorse for his actions, and took elaborate steps to dismember the body and conceal the crime. I agree with the appellant that in Keene there were aggravating factors not present here, particularly the fact that the body parts were distributed around the city to be discovered by passers-by and the fact that drugs may have been involved in drawing the victim into the accused’s home. As noted by the Crown, however, there is at least one significant aggravating factor in the present case that was not present in Keene. The appellant was in a domestic relationship with Ms. Collins and therefore abused his intimate partner in committing the offence, which is an aggravating factor as set out in s. 718.2(a)(ii) of the Criminal Code.

39The post-offence conduct of the appellant also reveals other aggravating factors that were properly considered by the trial judge. Notably, following the death and dismemberment of Ms. Collins, the appellant used Ms. Collins’ bank account for his own personal use and benefited from her monthly disability payments. Furthermore, there was extensive disrespect toward Ms. Collins after the offence, including villainizing Ms. Collins as a terrible mother who had abandoned her child. Notably, by concealing Ms. Collins’ remains for three years, the appellant further propagated the falsehood that Ms. Collins simply disappeared and abandoned her child, and he prevented those close to Ms. Collins to achieve closure. The trial judge did not, as the appellant suggests, place undue weight on post-offence conduct as an aggravating factor. In the end, it was for the trial judge to weigh all of the factors, including the appellant’s post-offence conduct, in determining an appropriate parole ineligibility period. I see no error in his conclusion.

D. Disposition

40For these reasons, I would dismiss the conviction appeal.

41Although I would grant leave to appeal the sentence, I would dismiss the sentence appeal.