COURT FILE NO.: CR 11-4
DATE: 2013-01-02
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: December 10, 11, 13, 14, 17/ 2012
Justice B. Glass
Application by the Crown to Introduce Pre-death Statements of Samantha Collins into Evidence at Trial
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
Background
[1] The Crown seeks to introduce several statements purported to be made by the deceased person, Samantha Collins, for the purpose of accommodating the narrative of events in the life of Ms. Collins, to demonstrate her state of mind, and some for the truth of the contents contained therein.
[2] The Defence is concerned that there is a dearth of qualitative information to be of assistance properly for a jury. The statements are short on details. Some witnesses were using drugs with the deceased woman when the statements are alleged to have been uttered several years ago.
[3] Necessity is not an issue because the speaker died in 2007; however, reliability and relevance are very much at stake.
[4] There is not a suggestion that the witnesses have colluded to provide their statements.
The Law
[5] In R. v. Khelawon 2006 SCC 57, [2006] S.C.J. No. 57 and R. v. Moo [2009] ONCA 645, there is a comprehensive outline for courts to consider with an application for the introduction of hearsay evidence using the principled approach. A trial judge will face the concern of whether the evidence is necessary, reliable, and whether its reception is prohibited by a rule of evidence. When the speaker is deceased, the issue of necessity is removed. However, when the statements were made several years ago without a record having been kept, one might be nervous about their accuracy and reliability. Many of the witnesses intended to be called at the trial by the Crown were drug users at the time of the alleged statements by the deceased, as was Samantha Collins. This may impact upon the reliability of statements. Even if they are reliable, the issue of potential prejudice should they be introduced if the jury were to use them improperly must be addressed. Often, mid-trial and final jury instructions can focus the jury in the proper direction for the use of hearsay evidence.
[6] In R. v. P (R.) [1990] O.J. No. 3418, Doherty J. considered evidence presented with respect to the state of mind of the deceased person as an exception to the hearsay rule. Although such evidence falls within field of being an exception to the rule, the evidence must be reviewed by the trial judge to determine whether it is relevant to issues at play in the proceeding, whether it is reliable, and whether the prejudice of its admission might outweigh the probative value of its reception.
[7] In Watt’s Manual of Criminal Evidence (2012) Thomson Reuters Canada Limited, at section 27.07 reviewed Declarations of Mental or Emotional State. Statements of a contemporaneous state of mind or emotion may be admitted to prove the state of mind, the thoughts, the emotions or intentions of a person. Such declarations are often received into evidence as original evidence not requiring a finding of being an exception to the hearsay rule for admission. The author notes that such declarations are admitted as an exception to the hearsay rule. The bottom line though is that if the person’s state of mind is in issue, statements of it are admissible to prove it. The declaration must relate a contemporaneous mental or emotional state. This provides a guarantee of reliability and sincerity so as to reduce hearsay dangers. Examples of such declarations show the intention to do an act such as to go some place. The evidence is presented to demonstrate the state of mind of the person and to support an inference that the person likely acted as she stated.
[8] The evidence must be reliable if it is to be used in the trial. A gap of years between when such statements were made and the disclosure to the police without a record to maintain the accuracy of the statements might reduce the reliability of the statements. The lack of detail in the statements is significant. If the witness simply has a short comment without memory of more of the circumstances surrounding the making of the statement, their trustworthiness is reduced. For example, if statements amount to little more than cocktail gossip, they are not very reliable.
[9] None of the witnesses had maintained a record of the statements. They did not have in-depth recollection of what Samantha Collins said. Rather, most of the statements reflect social intercourse that is short on details. Some are exchanges between Samantha Collins and a witness who were using illicit drugs.
[10] One might be concerned that the message is simple enough that challenging it is difficult with cross-examination. Several of the witnesses were cross-examined during the application hearing.
Dr. Bawa
[11] Dr. Bawa was Samantha Collins’ family physician. There is no dispute about him testifying about her attending his office and advising him on March 13, 2007 that she was moving to another location. On March 6, 2007, Ms. Collins spoke with the doctor about an alleged sexual assault. That meeting will not be referenced because it does not apply to Ian Borbely or any possible alternate suspect. Rather, she had engaged a criminal charge against another male person, who is not part of these trial proceedings. Therefore, there is no relevance to that alleged sexual assault.
Angela Plested
[12] The Crown seeks to introduce the statement of Angela Plested for the truth of information that Ian Borbely was jealous and got crazy when he got jealous. Also, the Crown submits that its introduction is part of the narrative of events. Angela Plested is the mother of Bryan Plested, who was a person with whom Ms. Collins was sexually active in late 2006 and early 2007. She did not have much detail, but she confirmed talking with Ms. Collins who was dating her son. The deceased woman told her that she lived alone, that she had a son and that her ex-boyfriend was a person who became jealous. Ms. Plested only met Samantha Collins about three times. This evidence lacks reliability because the witness did not meet the deceased woman often. When Samantha Collins told Ms. Plested that she lived alone, she was still living with Ian Borbely. The comments are dated and lack detail. If this were not introduced as an exception to the hearsay rule, it would not be admissible pursuant to the principled approach because of its lack of reliability. For example, Samantha Collins lied to the witness about being single with a child when in fact she lived with Ian Borbely. She called him her “ex” as in ex-boyfriend. The prejudice to a fair trial flows from the deceased lying to the witness about being a single mom with a child when she was living with Ian Borbely at the time of any discussion with Ms. Plested. Evidence from Ms. Plested will not be received as a pre-death statement by Samantha Collins.
Stephanie Sedore
[13] The Crown submits that the statement of Stephanie Sedore should be admitted as part of the narrative of events and for state of mind. Stephanie Sedore also lacked detail about what Samantha Collins told her. She said that Ms. Collins told her that she and Mr. Borbely had a fight about her coming home late. Again, this conversation goes back several years. It is too general. It becomes unreliable with the passage of time and the lack of specifics. It has the danger of drawing the jury into bad character focusing. If it were not considered evidence that is an exception to the hearsay rule, the same analysis regarding reliability applies. Further, the introduction of this evidence with its bad character attributes would be prejudicial to Ian Borbely having a fair trial. This witness will not testify about what Samantha Collins told her in pre-death statements.
Nancy Stirling
[14] Crown counsel submits that the pre-death statement of Nancy Stirling goes to the truth of some of the contents, to state of mind and to the narrative. Nancy Stirling worked with Muskoka Interval House, which is a women’s shelter and spoke by telephone with Samantha Collins in 2004 when Aydan was 4 months old and Ms. Collins had been charged with assaulting Ian Borbely. Ms. Stirling met the deceased at family court proceedings in September 2004 as well. In September 2004, Ms. Stirling saw bruises on the arms of Ms. Collins. Ms. Collins said she got bruises on her arm at the time she was charged with assault. This information is presented to go to the truth of the statement and the narrative. Family court was involved because with the criminal charge of assault the local Children's Aid Society became involved and placed the baby with the father’s parents for three months. Ms. Stirling said that the deceased woman told her that she had reconnected with a child to whom she gave birth when she was 16. The Crown asks that this information is tendered for its truth.
[15] She last spoke on the phone with the deceased in April of 2006. During conversations between the two women, the deceased woman spoke of her relationship with Ian Borbely not proceeding well. She does not say that Samantha Collins told her that Ian Borbely actually struck her. Rather, Ms. Collins asked whether she could come to Interval House before she was black and blue. This evidence does not arise from an active memory of Ms. Stirling. The lack of satisfaction with the relationship at home with Ian Borbely is presented by the Crown as going to the state of mind of Samantha Collins. Also, Ms. Collins told Ms. Stirling that Ian Borbely’s family continued to be a problem. This is introduced for state of mind. She has to rely on her notes virtually completely. This information is old and too remote to the year of Ms. Collins disappearing. It will not be received as a pre-death statement. I am not satisfied that it is relevant to the issues at this trial and that it is not reliable either as an exception to the hearsay rule or as hearsay evidence that ought to be admitted under the principled approach. With its age related to the year of the disappearance of Ms. Collins, it is prejudicial to a fair trial for the defendant because it is likely to draw the jurors off course from the issues of the trial whereby the jurors would focus on old information in which Samantha Collins was charged with assaulting Ian Borbely.
Nicole Fowlie
[16] Nicole Fowlie is the sister of Samantha Collins. The Crown seeks to introduce this statement as going to the state of mind of Ms. Collins. She last saw Ms. Collins in 2005 and last spoke to her in January 2006. Then, in supplementary questions in November 2012, the officer referred to her prior statement of July 8, 2010 at page 23 line 990 to 1018 as Ms. Fowlie saying that she last saw her sister in January 2007. In checking the 2010 statement transcript for July 2010, I do not see 2007 at that area, and I only find Ms. Fowlie stating she last spoke to her sister in January 2006. She commented about the family of Ian Borbely suggesting that they might have taken out a loan to get rid of Samantha Collins. She thought Ian Borbely killed Samantha Collins. She said that Samantha Collins told her that she thought that Ian’s mother was trying to take over caring for Aydan and push her out of the way. This is old news from a person who had little to do with Samantha Collins. Further, Ms. Fowlie appears to change dates when she spoke and saw her sister. The reliability of it is questionable as well as its accuracy. Further, the information is dated in being more than a year before the disappearance of Samantha Collins. There was no communication of any type for that time according to her first statement. The accuracy here is questionable. It will not be admitted as an exception to the hearsay rule regarding the state of mind of Ms. Collins. Nor will it be admitted pursuant to the principled approach to hearsay evidence because of its lack of reliability and because much of it is not relevant to the issues of this trial. Much of the statement focuses on the mother of Ian Borbely. The mother is not a party to the proceedings. The introduction of this statement would be far more prejudicial to Ian Borbely’s fair trial because the jury would be directing their attention to non-issues for this trial. The prejudice outweighs any probative value that dated information might have.
Pamela Cain
[17] Pamela Cain talked of Samantha Collins telling her that she and Ian Borbely had problems. No details were provided. Ms. Cain spoke of Ms. Collins making comments about Ian Borbely’s mother as being a tyrant. The mother of defendant is not on trial here so that evidence about her does not appear to be relevant. With a lack of detail, the statement of Pamela Cain is not reliable and will not be introduced for its truth or for state of mind.
Thomas Gould
[18] Thomas Gould was a boyfriend of Pamela Cain. His evidence is in the same category as that of Ms. Cain. It will not be received because it too is lacking in relevance and reliability.
Lori Burtoo
[19] Lori Burtoo says that Samantha Collins was hesitant to leave Ian Borbely because she would not get custody of their son. His parents would be involved with Mr. Borbely in the custody of Aydan. She said that her relationship with the defendant was not a happy one.
[20] The Crown seeks to introduce this statement as going to the state of mind of Samantha Collins. The Defence opposes this evidence being admitted because it is not reliable, there is a shortage of details, that there was no relationship between the two women, and the information is dated.
[21] I note that Ms. Burtoo commented that she thought Ms. Collins only told her information that she wanted Ms. Burtoo to know. This infers that a complete revelation was not made by the deceased. I am persuaded that this evidence lacks reliability because it does not contain many details and there was no relationship between Lori Burtoo and Ms. Collins whereby personal information would be disclosed with specifics. Rather, as Lori Burtoo said, she only thought that Samantha Collins conveyed what she wanted to tell her. The statements are damaging to the defendant in the sense of him not being able to address information lacking in detail, thus resulting in unfairness to his trial. Probative value does not outweigh this prejudicial impact of the pre-death statements. Therefore, the pre-death statements of Samantha Collins to Lori Burtoo will not be introduced.
Rolland Phuegl
[22] Rolland Pfuegl drove a taxi in the Muskoka area and often drove Ms. Collins to a number of locations. He advised that he provided Samantha Collins with taxi rides often at no charge because she was a single mother without income. Ms. Collins spoke of herself as a single person with a child and an ex-boyfriend with whom she did not have a good relationship. She was worried that the ex-boyfriend and his family would try to get custody of her son. She did not tell the taxi driver that she worked at the Purple Pig and had an income. Rolland Phuegl discussed drugs with Ms. Collins. He thought that she was a recovering drug addict, but she supplied him with cocaine. His time estimate of talking with Samantha Collins was 2006.
[23] The Crown submits that this information goes to the state of mind of Samantha Collins regarding retaining custody of her son and being concerned that the ex-boyfriend and his family might succeed in obtaining an order for custody of their son.
[24] Mr. Cooper submits that Samantha Collins had reason to lie to Rolland Pfuegl about events in her life because she managed to get free taxi rides. Further, Ms. Collins did not want to leave the impression that she was engaging in other sexual relations than with Ian Borbely with whom she lived. Mr. Cooper states that the statements to Mr. Pfluegl are not focused to specific dates or time frames.
[25] I might point out that Mr. Pfluegl did refer to 2006 as the time when he spoke to Samantha Collins and provided her with free taxi rides. The bottom line of the pre-death statements of this witness is that Samantha Collins told him she had a child, did not get along with her ex-boyfriend, and was concerned that her ex-boyfriend and his family would get custody of her son.
[26] I am satisfied that this pre-death statement is identified in time and detail sufficiently to be reliable and relevant to the state of mind of Samantha Collins. It may be admitted for this purpose at trial.
Penelope Smith-Bylow
[27] Ms. Smith-Bylow ran the daycare at which Aydan Borbely attended. She is able to state that she received a telephone call from a woman identifying herself as Samantha Collins on March 22, 2007 to advise that Aydan’s grandparents were not allowed to pick him up. The grandparents were identified as Cindy and George Borbely. The father of the child, Ian Borbely, had been the parent with more contact with the daycare centre than had the mother been. This witness had made a note of what the woman’s message had been. There may be an issue about the identity of the person calling this message to the daycare centre. However, accuracy of the message, the date of the message, and the names of the child and the grandparents adds to reliability. The Crown request to use the statement goes to the state of mind of Samantha Collins regarding the child, custody of the child, leaving the Bracebridge area without the child. This statement may be used for the state of mind of the deceased.
Amanda Brooks
[28] Amanda Brooks was a cocaine supplier to Samantha Collins. At one time, she had a physical fight with the deceased at 15 Wellington Street when she attended to respond to Samantha Collins saying that Ms. Brooks had shorted her with the amount of cocaine she had sold to Ms. Collins. She punched the deceased in the nose and she got struck by the deceased as well. Ian Borbely broke up the fight between the two women.
[29] Ms. Brooks says that both Samantha Collins and Ian Borbely at this fight and meeting at 15 Wellington Street told her that there was a hammer on top of the refrigerator and a baseball bat behind the door. Both Samantha Collins and Ian Borbely told Amanda Brooks that they had these items for protection. This information was conveyed to Amanda Brooks when she was very angry and demonstrating her anger at the apartment of the deceased and the defendant. Mr. Kasko seeks to use this information for the truth of its contents. The post-mortem examination discloses that the death resulted from blunt force trauma to the head four times. The Crown seeks to use the information of these objects as the weapons used to cause the death of Samantha Collins.
[30] Mr. Cooper submits that there is no evidence to suggest that the hammer and baseball bat are the objects used to kill Samantha Collins. The prejudice to a fair trial with such evidence is much greater than any probative value that might be drawn from this pre-death statement. The tendency for the jury to become focused on propensity reasoning raises its head with this evidence.
[31] Further, Amanda Brooks told the court that Samantha Collins advised her that she was worried about not seeing her son if she left Ian Borbely. This is proposed to be presented to the jury to show the state of mind of Samantha Collins in that she would not leave Bracebridge without her son.
[32] This witness is very open and clear in her evidence. Having the hammer and baseball bat for protection might be reasonable if one were selling drugs. This information is reliable. However, its relevance is not. One might conclude that such objects are no more significant than one having a heavy bookend or door stop in the residence. There is no connection with the cause of death. The introduction of such would take the jury off-base to speculate that such were the murder weapons. That part of the statement may not be used as pre-death statement.
[33] The pre-death statement that focuses on Samantha Collins being concerned about never seeing her son again if she were to leave the defendant is reliable and relevant to the state of mind of Samantha Collins when considering whether she would leave Bracebridge unannounced and without Aydan. That part of the statement may be introduced for that purpose.
Jeremy Crease & Carrie Leduc
[34] Mr. Crease and Ms. Leduc are husband and wife. They lived at 15 Wellington Street in Bracebridge in an apartment for part of the time when Samantha Collins and Ian Borbely lived there.
[35] On March 22, 2007, Samantha Collins called to say that Ian Borbely informed her that Jeremy Crease would advance them $800 so that they could pay their rent. Mr. Crease had not told Ian Borbely that he would do so. The call initially had gone to Ms. Leduc who then called her husband about the request for money to pay the rent.
[36] Jeremy Crease told Samantha Collins that he would not pay the $800. He called and spoke with Ian Borbely asking why he would tell Samantha Collins such information. Ian Borbely had responded that he was just trying to calm down Ms. Collins who was very upset about them not being able to pay the rent.
[37] The Crown seeks to introduce this information to show the state of mind of Samantha Collins at the time, i.e. March 22, 2007.
[38] I conclude that the statements from both Jeremy Crease and Carrie Leduc are specific for when the phone call occurred, they were specific for content, and they are relevant to the state of mind of the deceased. This was the day that the killing of Ms. Collins is alleged to have occurred. The information is instrumental in showing the mental state of Samantha Collins regarding getting the rent paid and remaining in the Bracebridge area. There is other information about a rent tribunal hearing for not paying rent. This information may be introduced for state of mind purposes.
Heather Spurling
[39] She is a secondary school teacher at the Adult Education Centre in Bracebridge. She was a teacher with Samantha Collins in 2006 and up to mid-February 2007. While Ms. Collins attended she told Ms. Spurling about problems with her mother-in-law who did not think she was a good mother. She talked of problems with her boyfriend because of drugs. The deceased had considered suicide in the past but decided against doing so because of her son.
[40] The Crown wants to introduce this statement regarding drugs and problems with the boyfriend as well as being concerned about being drawn back into drugs for the truth of the contents as well as for the state of mind of Samantha Collins. The Crown wants to use the part of the statement about her mother-in-law considering her to be a poor mother, having issues with her mother-in-law, and considering suicide before returning to school for the purpose of demonstrating the state of mind of Samantha Collins.
[41] The Defence argues that there is a lack of detail and no probative value with respect to problems with the mother-in-law and consideration of suicide. With respect to returning to the drug world and the boyfriend’s use of drugs, the Defence points out that there is a lack of detail.
[42] I conclude that details are lacking for this witness such that the statement lacks reliability for use. The lack of details takes away probative value. This information is too general. The reference to suicide prior to Samantha Collins returning to her education is remote, without detail and therefore not reliable. It might have been relevant and probative had there been more detail, but without it, the statement cannot be used.
Angie McLaughlin
[43] Ms. McLaughlin met Samantha Collins in 2006. One very significant factor is the comment by Ms. McLaughlin that she has a very bad memory. That affects how reliable her evidence might be.
[44] The two women met at kick-boxing classes.
[45] Ms. McLaughlin says that Samantha Collins told her that her boyfriend hit her and was the source of bruises that could be seen by Ms. McLaughlin. Samantha Collins also told her that she wanted to return to Family Court to get full custody of her son, Aydan. She left court documents with Ms. McLaughlin.
[46] There is a lack of detail with Ms. McLaughlin. This affects the reliability of her recollection of pre-death statements of Samantha Collins. The evidence might be relevant for the state of mind of Samantha Collins regarding her son if it were reliable. Without that reliability, the statements become only hearsay evidence without details upon which one might be able to rely. The same applies regarding being struck by Ian Borbely because they just do not have details from which they might be reliable.
[47] The pre-death statements from Ms. McLaughlin will not be presented.
Bryan Plested
[48] This witness had an intimate sexual relationship with the deceased during the last few months of her life. He received many e-mail messages from Samantha Collins. They reflect a mindset to have a relationship with Bryan Plested apart from Ian Borbely. They do not demonstrate that she was to follow Mr. Plested out west in British Columbia when he went there in November 2006.
[49] This evidence may be admitted because the e-mail messages do reflect the state of mind of Samantha Collins. She was afraid to tell Ian Borbely about her relationship with Bryan Plested. The e-mail messages are original evidence as well.
[50] This evidence demonstrates reliability and is admissible as it shows her state of mind.
Calendars with Handwriting of Samantha Collins
[51] The Crown submits that they are original evidence showing the intentions of Samantha Collins provided evidence is presented to establish that the handwriting is that of Ms. Collins.
[52] The calendars cover the years 2006 and 2007.
[53] Several entries have the word “Michelle” who was Samantha Collins’ support worker. Ms. Collins had developed epilepsy and experienced seizures.
[54] The entries reflect intentions of Samantha Collins. For example, there are several notations regarding Michelle. One is March 23, 2007. The Crown seeks to use that entry as evidence of intention by Ms. Collins to be in Bracebridge on March 23rd.
[55] These documents may be introduced into evidence provided the handwriting is established to be that of Samantha Collins.
Jessica Timmins
[56] Ms. Timmins knew Samantha Collins through the Adult Education Centre in Bracebridge. They met in spring months of 2006. This witness last saw Ms. Collins during the Christmas season of 2006. Ms. Timmins had moved from Bracebridge by the beginning of September 2006. It appears that during the interval, the two did not see or talk with each other very often.
[57] Ms. Collins told Jessica Timmins that she did not want to remain with her boyfriend but felt that she had to do so because she had a drug history that he would use against her so that she would not be able to have custody of their son. The boyfriend would use other information about Samantha Collins’ past as well. She thought that she would not succeed in a custody application. Ms. Collins thought that if she lost custody of her son she would not see him again. She had given up another child to adoption when she was in her teens, and she did not want to lose this child.
[58] The Crown position is that this information may be used to demonstrate Samantha Collins’ state of mind, and the Crown suggests that the information about losing custody of Aydan can be used for its truth. The information about the other child can be introduced to show her state of mind regarding not wanting to do any act to influence negatively her second son, Aydan.
[59] The Defence is opposed to the introduction of this hearsay evidence because there is a lack of detail, a lack of a relationship between the two women and it is not reliable. The information about the first child of Samantha Collins is not relevant either.
[60] These pre-death statements will not be introduced into evidence because there is little detail of the contents of the communications between Samantha Collins and Jessica Timmins who do not appear to have had a close relationship but rather an acquaintance connection. There is no record of what was said. The communications were expressed upwards of three quarters of a year prior to Samantha Collins disappearing. I am not persuaded that they are reliable. The information about Ms. Collins’ first child is not relevant to the homicide allegations. Without being reliable, there is no probative value attached to them. If they were introduced, they would be prejudicial to a fair trial for Ian Borbely because of a lack of details and lack of reliability.
Conclusion
[61] The pre-death statements from the following proposed witnesses will be allowed to be introduced:
i. Dr. Bawa with the exception of the March 6, 2007 note regarding a sexual assault allegation to a person not related to this trial;
ii. Rolland Phuegl;
iii. Penelope Smith-Bylow;
iv. Amanda Brooks with respect to losing her son but not with respect to the hammer and baseball bat at the 15 Wellington Street apartment:
v. Jeremy Crease;
vi. Carrie Leduc;
vii. Bryan Plested and the e-mail messages;
viii. The 2006 and 2007 calendars provided the handwriting is proven to be that of Samantha Collins;
[62] The pre-death statements from the following proposed witnesses will not be allowed to be introduced:
i. Angela Plested;
ii. Stephanie Sedore;
iii. Nancy Stirling;
iv. Nicole Fowlie;
v. Pamela Cain;
vi. Thomas Gould;
vii. Lori Burtoo;
viii. Heather Spurling;
ix. Angie McLaughlin;
x. Jessica Timmins
Justice B. Glass
Released: 2013-01-02