ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR 11-4

DATE: 2013-01-07

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: December 17, 2012

Justice B. Glass

Application by the Crown for the Admission of Evidence of Discreditable Conduct

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

Introduction

The Crown applies to introduce evidence of discreditable conduct of Ian Borbely

[1] The Crown seeks to introduce discreditable conduct so that the jury might understand the narrative of the relationship between Samantha Collins and Ian Borbely, so that the issues of identity of the killer and motive to kill might be established, and so that the defendant might be shown to have access to tools such as ones used to dismember Ms. Collins as well as showing the means to dispose of such tools.

[2] The Crown submissions about the motive of the defendant to kill Samantha Collins are that Ian Borbely killed Samantha Collins to prevent her from leaving him with their son and secondly to rid himself of Ms. Collins’ presence.

[3] The defence is concerned that much of the proposed evidence of discreditable conduct does not apply to issues in the case, but rather to moral and reasoning propensity considerations by the jury. Such evidence leads to great prejudice to the defendant having a fair trial. The prejudice outweighs any probative value which the defence submits does not exist.

[4] The Crown desires to introduce evidence from Amanda Brooks, Jason Conlon, Kyle Gillard, Mark Hill, and Jeremy Crease. Much of this intended evidence relates to drug use, drug selling and drug buying by both the deceased and the defendant. The Crown states that this is part of the narrative of the relationship between the two partners. Further, the Crown submits that much of the evidence is relevant to motive to kill Ms. Collins, the identity of the person who killed the deceased woman. The Crown anticipates that the defence will introduce evidence of discreditable or bad character of Samantha Collins or witnesses called to testify at the trial thereby justifying evidence that will level the playing field for both the Samantha Collins and Ian Borbely.

[5] The drug evidence is proposed to be introduced through Amanda Brooks, Jason Conlon, Kyle Gillard and Mark Hill.

[6] The defence addresses this issue of drugs pointing out that this is not a drug case in which drugs are an issue with respect to the death of Ms. Collins. In effect, drugs become a red herring for the jury to go off-side regarding drugs.

[7] With Mark Hill, he was at the residence of Samantha Collins and Ian Borbely for dinner one evening when the defendant became angry with Ms. Collins and threw a plate of spaghetti at her. The food and plate did not strike the deceased but rather hit the wall. The young child of the couple was present and cried when this event occurred.

[8] The Crown suggests that the evidence of violence through Mark Hill should be presented to the jury because it demonstrates the defendant as possessive, jealous and controlling with respect to Samantha Collins.

[9] Jeremy Crease was a contractor employer of Ian Borbely in the past. He has evidence to the effect that Ian Borbely stole a chain saw from him and hawked it. Ian Borbely admitted to Jeremy Crease that he took the saw and hawked it. Further, Mr. Borbely admitted to Jeremy Crease that he to taking the saw. When Jeremy Crease contacted the hawk shop, he discovered that there were other tools of his that Ian Borbely had hawked as well. The Crown wants to present this theft information to the jury to show that Mr. Borbely had access to tools other than his own and that he could dispose of them.

[10] The Defence is concerned that the evidence of Ian Borbely stealing tools of Mr. Crease is highly prejudicial. The defendant was a contractor who used tools in any event. To allow the tool evidence from Mr. Crease to be introduced would slant the fact that Mr. Borbely as a contractor with access to tools of his trade was in effect an indication that he must be the guilty person.

The Law Regarding Discreditable Conduct

[11] The starting point for evidence of discreditable conduct is that it is not to be admitted into evidence. Rather, such evidence should only be allowed into the evidence at a trial if its introduction can be justified as material, related to the defendant, has a probative purpose that outweighs any prejudicial effect emanating from its introduction, links the person on trial to the evidence, and is strong evidence.

[12] What is the purpose for which its introduction is sought? If the evidence is material to issues at trial, then it might pass the admissibility consideration. However, if the evidence only shows a tendency or propensity to act in a particular way, it will not carry sufficient probative value to be received. See R. v. Handy (2002), 2002 SCC 56, 164 C.C.C. (3d) 481 at 501.

[13] Probative value assessment requires the judge to determine the purpose for its introduction. The trial judge must be able to instruct the jury on what use they are permitted to make of the evidence. Proving such factors as knowledge, intent, motive, identity, proof of the commission of the offence and the rebuttal of evidence of good character are to be taken into account. If there is not a valid purpose for the presentation of the discreditable conduct evidence, it should not pass muster to be presented to the jury.

[14] Is there a link between the defendant and the discreditable evidence?

[15] Does the evidence demonstrate animus or hostility between Ian Borbely and Samantha Collins?

[16] What is the strength of the evidence in showing the intended inference? The nexus or connectedness of the evidence and the offences alleged must be considered.

[17] Credibility including reliability of the proof of discreditable facts and the manner in which they are proved go to the weight of the evidence.

[18] Is the discreditable conduct important to the principal issues of the case? See R. v. Handy (2002), 2002 SCC 56, 164 C.C.C. (3d) 481 at 505.

[19] If the evidence does not support the inferences sought by the Crown, it ought not to be introduced.

[20] Prejudicial effect of the discreditable conduct leads to assessment of bad character/ moral prejudice, whether the evidence will extend the trial too much, whether proof of such evidence might send the jury away from the central issues of the trial. If the evidence is very dated, if there are so many events that they might overwhelm the jury, if the defendant will be hampered by a lack of available evidence are some of the considerations for the trial judge to assess.

[21] When balancing the probative value of the evidence against the prejudicial effect, the court must consider whether the prosecution can prove the point with less prejudicial evidence, whether editing of the evidence might reduce its prejudice, whether the jury will reason from general disposition to guilt of the defendant after taking into account limiting instructions from the trial judge, whether the trial will become unfocused with the jury being distracted from the issue of guilt or innocence and finally whether the evidence is sufficiently probative to make it “just” to admit. See Handy at p. 521.

Application of the Proposed Discreditable Conduct Evidence

Jeremy Crease

[22] With respect to the witnesses that the Crown seeks to call for discreditable conduct evidence, I conclude that Jeremy Crease is the only one to be accepted. His evidence reveals that while Ian Borbely worked for Mr. Crease he stole equipment used in the contracting business. Jeremy Crease traced the equipment to a hawk shop. Ian Borbely admitted to taking the equipment. The item was a chain saw.

[23] Why would this information be of assistance to a jury in the trial focusing on the death of Samantha Collins? Her body was dismembered and stored in plastic pails. The forensic evidence is expected to reveal that the body of Ms. Collins was cut up with a saw. Although there was forensic testing on saws, there is not a saw in evidence that will be tendered as the saw that was used to dismember the corpse of Ms. Collins.

[24] This evidence demonstrates that along with his trade using saws in contracting work, Ian Borbely also had access to the type of equipment to dismember a body. He had an ability to dispose of such equipment, having taken the stolen saw to a hawk shop. This might provide some understanding about the cutting equipment never being found.

[25] The evidence applies to Ian Borbely and is discreditable. It is material to the issue of proving who killed Samantha Collins and who dismembered her body.

[26] What prejudicial impact does this evidence bring to Mr. Borbely’s trial? I do not conclude that the evidence from Mr. Crease draws out bad character prejudice. It does not show a horrible or deviant disposition on the part of Mr. Borbely. This evidence is very focused so that its reception would not draw out the trial. Nor will it take the jury away from the central issues of the trial. The events that Mr. Crease can relate are not dated from the time of the disappearance of Ms. Collins. Its reception does not tie the hands of the Defence by a lack of available evidence. There is no need to edit this evidence because it already is brief and focused.

[27] The balance between the probative value and the prejudice flowing from the reception of Mr. Crease’s evidence here is such that the probative value does outweigh any prejudice. I do not find prejudice to a fair trial with the reception of this evidence.

Amanda Brooks, Kyle Gillard, Jason Conlon and Mark Hill

[28] With respect to the other proposed witnesses though, I find that although each may demonstrate part of the narrative of the lives of Ms. Collins and Mr. Borbely, it is primarily dwelling on the use of drugs, the sale of drugs by the deceased and the defendant as well as the purchase of drugs by Ms. Collins and Mr. Borbely. There is no evidence anticipated that the death of Samantha Collins is related to drugs or the drug subculture. Drugs or drug involvement are not expected to be part of the motive for killing Samantha Collins. Kyle Gillard spoke of how much cocaine he and Ian Borbely used. The example from Mark Hill that Ian Borbely demonstrated anger to Samantha Collins by throwing a plate of spaghetti at her and hitting the wall does not demonstrate animus. If that evidence were received, there would be evidence that both persons could lose their patience with each other and that Samantha Collins could become physically violent as well. The proposed discreditable conduct evidence from Amanda Brooks, Kyle Gillard, Jason Conlon, Mark Hill relate to drugs. These witnesses do not provide information that provides evidence that is material to issues in this trial. The evidence is not relevant to who killed Samantha Collins or who dismembered her body, motive for the murder, identity of the person perpetrating the offences.

[29] Amanda Brooks is able to say that Ian Borbely went out of the apartment and saw Samantha Collins sitting in a car with a police officer. He told Ms. Brooks that he said words to the effect of “Nice Sam, good job” as if she were a police informant when Amanda Brooks was at their apartment and she was the cocaine supplier for Samantha Collins and Ian Borbely. There is no other evidence to suggest that Ms. Collins was a police informant. There is no anticipated evidence that Ms. Collins was murdered because she was a police informant. Again, this type of evidence is not material to establish any fact related to the murder of Ms. Collins or to the dismemberment of her body. With respect to relevance, it simply is not relevant to the murder of Samantha Collins or her dismemberment. At the end of the analysis about this information from Amanda Brooks, one is left with drug evidence that is nothing more than information that makes people look bad. In other words, Ian Borbely as well as Samantha Collins appear to be two drug users and vendors, but the evidence does not assist the jury to determine who murdered Samantha Collins nor who dismembered her body. The evidence does carry the prejudice of showing the couple to be druggies who might argue with each other but no more. With such a focus, a jury might be drawn away from the murder and dismemberment allegations and might become preoccupied with bad character for both persons. A jury might very well fall into moral prejudice as well as reasoning prejudice. They could simply write off both persons as bad characters and become a hung jury. Most significantly though, Mr. Borbely’s trial is proceeding with allegations that he murdered his female partner and then cut up her body. Improper reasoning by the jury creates an unfair trial for the defendant.

[30] With respect to the discreditable evidence from Amanda Brooks, Kyle Gillard, Jason Conlon, and Mark Hill, might any prejudice be overcome with additional instructions from the trial judge? Juries of the twenty-first century are more sophisticated and more educated than ever before. They should be given credit that they will listen to what the judge instructs them about the use of evidence and what the law is.

[31] I do not doubt that juries are better than ever at doing their job in trials of criminal allegations; however, if the discreditable conduct evidence is not material to facts in issue, if at best it might be slid before the jury as narrative when drug purchasing, drug selling, drug use are not the focus of the trial, then the evidence should not go to the jury. Such evidence is not there to do any constructive work for the jury. Rather, it simply creates confusion and is of no use to determine whether Ian Borbely killed his girlfriend and dismembered her body. The one example of violence and temper from Mark Hill that Ian Borbely got angry with Samantha Collins and threw a plate of spaghetti at her hitting the wall is only inflammatory and not material facts in issue. Even though the evidence relates to conduct of Ian Borbely and is discreditable, it does not pass the remaining requirements for admission as evidence of discreditable conduct.

Conclusion

[32] In conclusion, the only discreditable conduct evidence is that of Jeremy Crease. It may be introduced. The other evidence from Amanda Brooks, Kyle Gillard, Jason Conlon and Mark Hill will not be received.

Justice B. Glass

Released: 2013-01-07