ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR 11-4
DATE: 2012-11--02

BETWEEN:

HER MAJESTY THE QUEEN – and – IAN CHARLES BORBELY Defendant

D. Kasko, for the Crown

M. A. MacDonald & J. Herbert, for the Defendant

HEARD: October 12, 15 & 31, 2012

Justice B. Glass

Pre-trial Motion Regarding Tendering Photographs of Samantha Collins from the Autopsy along with Photographs Taken During Her Life

Pursuant to section 645(5) and section 648 of the Criminal Code of Canada , there is a ban on publication of this motion and order until the jury has commenced their deliberations

[ 1 ] Samantha Collins died as the result of blunt force trauma to her head. She disappeared in March 2007, and there was no word from or about her until July 2010. Her body had been dismembered and parts placed into four plastic pails. The pails were found in a wooden crate when a caretaker at a cottage discovered it. Upon opening the crate, the caretaker detected a noticeable offensive odour and spoke with the cottage owner, who directed the caretaker to contact the police.

[ 2 ] When the police attended, they discovered that the four pails inside the wooden crate contained body parts; however, the identity of the person was not known immediately.

[ 3 ] In time, Samantha Collins was identified from a fingerprint.

Issues

[ 4 ] For what purpose does the prosecution need to introduce the photographs of Samantha Collins?

[ 5 ] If there is no issue in dispute requiring the use of the photographs, should they be excluded?

Position of the Crown

[ 6 ] On the first day of this application, Mr. Kasko for the Crown had submitted that the photographs might be used by the jury to determine intent when considering manslaughter. The photos will show that the skin of the deceased had not decomposed because of the liquid solution in which they had been placed. The autopsy report indicates that four blows from an elongated instrument caused the death. The issue of intent with multiple blows to the head will address the potential of manslaughter. The jewellery found on her fingers along with broken bones on fingers might lead to an interpretation that Samantha Collins’ hand or hands had been forced back and the finger breaks might have occurred when blows were struck to her head. Such injuries might be defensive wounds. Some photos of the skull with the skin pulled back show the extent of skull fracture thus supporting multiple head blows. This again goes to intentional administration of force to Samantha Collins' head. There are photos of Samantha Collins with Brian Plested, an alleged male friend with whom she had a relationship, while she was living with Ian Borbely. This information might infer that the defendant was aware of the relationship. The pictures at the Vadas cottage show where the body parts were found and the containers with some parts and fluid flowing out of a pail. This helps to show the jury what the police found at the beginning of their investigation.

[ 7 ] The photos of the pails into which body parts were placed along with fluid and plastic used to seal the containers are submitted by Mr. Kasko to be probative of the manner in which the body parts were placed into the plastic pails.

[ 8 ] The Crown advises that Dr. Pollanen does not require any photograph to present his evidence regarding the autopsy. None were used by a forensic anthropologist during the preliminary inquiry. Dr. Pollanen has produced for the Crown a diagram of the deceased as he describes the post-mortem examination of Samantha Collins.

Position of the Defence

[ 9 ] Ms. MacDonald emphasizes that there is no probative need for these photographs. The Defence admits that Samantha Collins was murdered, that she was not seen from March 2007, that the autopsy determines that the cause of death is blunt force trauma to the head of Samantha Collins, and that her body was dismembered and disposed of in the buckets in the wooden container. Basically, the Defence submits that this case is not one disputing the details of the death of Samantha Collins; rather, this is a murder allegation with the primary issue being the identity of the person who killed Samantha Collins. Manslaughter is not on the table. Rather, this is all or nothing on the second degree murder allegation.

[ 10 ] Ms. MacDonald advised the court on October 12, 15 and 31 st , 2012 that manslaughter is not to be put to the jury. She will not be counsel conducting the trial; so, she communicated with Mr. Paul Cooper as trial counsel to confirm on October 31 st that manslaughter is not to be presented to the jury.

[ 11 ] The Defence submits that there is no factual issue in dispute for which these photographs are required to prove any issue at the trial of Ian Borbely. Rather, the photographs simply and bluntly are unpleasant and gory and will only serve to inflame the jury in a negative way when considering allegations against the defendant.

[ 12 ] If there is no probative value to their introduction and if there is considerable prejudice to an accused person receiving a fair trial, Ms. MacDonald submits that the photographs ought not to be presented to the jury.

Alternative Considerations

[ 13 ] I brought to the attention of counsel the wording of paragraph 124 in R. v. Bernardo [1995] O.J. No. 1472 in which Justice Patrick LeSage stated:

“Although it is difficult to rationalize why the verbal, but not the pictorial, images may be publicly displayed, I can only try to analogize as I have in an earlier ruling that traditionally we do not display, for public viewing, photographs of dead bodies, close-up photographs of wounds, photographs of autopsies, photographs of exhumations, and similar type evidence. Nevertheless, viva voce evidence of the witnesses who describe what is depicted in the photographs referred to is always heard in open Court.”

Analysis

[ 14 ] When I raised the issue whether there was a need for most of the photographs, Mr. Kasko pointed out that if the court were disposed to exclude photographs, there was a foundation for the photo of the severed right hand of Samantha Collins showing the damage to her right index finger should manslaughter have to be included in the jury instructions because the photo is relevant and probative to intent. Also, a photo of Samantha Collins during her lifetime wearing jewellery should be allowed into evidence. Although the severed right hand photo has a gruesome feature to it, there is probative value

[ 15 ] The bottom line for consideration is a determination of the probative value of evidence together with any prejudice to a fair trial to the person being tried for a criminal offence.

[ 16 ] The suggestions by Crown counsel of probative value appear to be speculative because the Defence has admitted the significant issues for which the photographs might be shown to jurors. The Defence has acknowledged that manslaughter is not advanced as an included offence so that the Crown concerns regarding intent are not present.

[ 17 ] If the photographs do not carry probative value, they do carry prejudice to Ian Borbely being able to have a fair trial without the jurors becoming inflamed. Without a foundation for the photographs possessing a probative value, I am left with the conclusion that the prejudice outweighs the submissions of probative value.

[ 18 ] If the photographs were presented to the jurors to demonstrate evidence of facts that are in issue in the trial, they would be useful to the jury in deciding the case. At this stage, the photographs do not serve such a purpose.

[ 19 ] If Defence were to raise manslaughter during presentation of evidence for Mr. Borbely, I would allow the Crown to present the photographs in reply. If Defence were to request a manslaughter jury instruction after the presentation of evidence from both sides has been completed, I would allow the Crown to re-open its case and to present the photographs in question.

Conclusion

[ 20 ] The photographs including the severed right hand of Samantha Collins will not be filed as exhibits because they are not needed and are unnecessarily inflammatory.

[ 21 ] The diagram prepared by Dr. Pollanen may be filed as an exhibit when Dr. Pollanen testifies regarding the post-mortem examination of Samantha Collins.

[ 22 ] A photograph taken of Samantha Collins with earrings and a necklace taken during her lifetime may be shown to the jury.