ONTARIO SUPERIOR COURT OF JUSTICE

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 18, 2012

Justice B. Glass

Application by Ian Borbely to Introduce Evidence of Alternate Suspects Being Responsible for the Murder of Samantha Collins

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] The Defence has brought this application on the basis that there are three possible alternate suspects about whom the jury should be apprised. Mr. Cooper submits that each of the persons is shown by evidence to have the opportunity to kill Samantha Collins. Further, the evidence demonstrates that the deceased knew the three persons.

[2] The Crown on the other hand states that there is no nexus between any of the three suspects and the death of Ms. Collins. In a nutshell, there is nothing more than speculation that one of the persons might have killed the deceased.

The Law

[3] With respect to a defence of alternate suspects, a defendant is given the opportunity to point the finger at others who might have committed the offence; however, the accused person cannot send a jury off on a tangent guessing at who might have committed the offence. Evidence that is relevant to the issues may be presented if it is probative to issues arising at the trial.

[4] For the application for the introduction of alternative suspects evidence, the judge is to accept the evidence presented as true for the purposes of determining a ruling at the application. The application judge does so when determining threshold admissibility of the evidence and not to make an ultimate decision about the evidence. The ultimate decision would be the task of the jury if the application is permitted.

[5] R. v. McMillan, 1975 43 (ON CA), [1975] O.J. No. 2247, provided the guideline for assuring that a defendant may point the finger at another person as the perpetrator of an offence rather than the person on trial provided the evidence has sufficient probative value to warrant it being received. The Ontario Court of Appeal stated that “the Courts have shown a disinclination to admit such evidence unless the third person is sufficiently connected by other circumstances with the crime charged to give the proffered evidence some probative value.”

[6] Following the McMillan decision , the courts have held that unless there is a connection between the third party suspect and the offence, propensity evidence alone will not suffice. To be admissible, the court must find that the evidence has an air of reality; that is, it must be evidence which could give rise to a reasonable doubt. This was the reasoning of the Supreme Court of Canada. in R. v. Cinous, 2002 SCC 29, [2002] 2 S.C.R. 3 at para. 49 and in R. v. Fontaine 2004 SCC 27, [2004] 1 S.C.R. 702. Justice D. McCombs made this reference in R. v. Baltovich, [2008] O.J. No. 1609 at para. 6.

[7] Further, in R. v. Grandinetti, 2005 SCC 5, [2005] S.C.J. No. 3, the Supreme Court set out in paras. 47 and 48:

The requirement that there be a sufficient connection between the third party and the crime is essential. Without this link, the third party evidence is neither relevant nor probative. The evidence may be inferential, but the inferences must be reasonable, based on the evidence, and not amount to speculation.

The defence must show that there is some basis upon which a reasonable, properly instructed jury could acquit based on the defence: R. v. Fontaine, (page 43) 2004 SCC 27, [2004] 1 S.C.R. 702 [2004] 1 SCC 27 at paragraph 70. If there is an insufficient connection, the defence of third party involvement will lack the requisite air of reality: R. v. Cinous, 2002 SCC 29.

[8] McCombs J. noted that when a trial judge weighs the probative value and prejudicial effect of the evidence, the court will have to determine whether the evidence would stretch out the trial, mix up the issues for the jury, send the jury on a mission that might be distracting, and lead to speculation and conjecture by the jury. In other words, don’t send the jury on a wild goose chase when there is no foundation for doing so.

[9] In R. v. Tehrankari, 2012 ONCA 718, the Ontario Court of Appeal addressed the issue of whether the trial judge should have allowed an alternate suspect defence to be presented. The defendant was charged with killing his sister-in-law. The accused man sought an order to focus on the former spouse of the deceased woman. The trial judge dismissed the motion on the basis that there was no evidence linking the former spouse to the death. The claim amounted to speculation. The Court of Appeal confirmed that there was not a viable alternate suspect defence present. The former spouses had been separated for some time, had concluded their family issues, and the deceased had continued to work in the office of the former husband. The defendant alleged that the deceased had claimed that her ex-husband had kicked her in an altercation years before her demise. In addition, the deceased had told another person that during the marriage she suffered physical, verbal and emotional abuse during the marriage, and that it ceased in the late 1990’s. This evidence had been elicited during the preliminary inquiry. The death had occurred in 2005.

[10] In Tehrankari , the semen of the defendant was found in the vagina of the deceased. He claimed that DNA thieves had entered his house and milked his prostate to collect his semen. This person was another alternate suspect.

[11] The defendant in Tehrankari had borrowed money from the deceased, who had advised others that she thought the defendant was falling in love with her and that she intended to speak to him. Later, the deceased sent an e-mail to a male friend advising that she had spoken to the defendant and all was well.

[12] Mr. Tehrankari claimed that the ex-husband of the deceased had threatened him to stop seeing the deceased.

[13] The trial judge held that the alternate suspect allegation was without merit. There was an extremely tenuous motive and virtually no evidence linking the ex-husband to the crime. The Court of Appeal at paragraph 36 of its decision stated:

Evidence of a violent disposition or animus towards the deceased, standing alone, will not meet the required threshold. However, if there is evidence that the third person had a motive to commit the crime or threatened the deceased and had the opportunity to carry out the crime, then the evidence of propensity may have probative value: R. v. Murphy, 2012 ONCA 573 at para. 21; R. v. Baltrusaitis (1996), 31 W.C.B. (2d) 184; R. v. McMillan, at p. 168.

The evidence may be direct or circumstantial. Inferences based on the evidence may be drawn, but speculation is not permitted. The evidentiary burden on the accused is discharged if the defence shows that there is some evidence upon which a reasonable, properly instructed jury could acquit based on the proposed defence: R. v. Grandinetti, at paras. 47-48; R. v. Fontaine, 2004 SCC 27, [2004] 1 S.C.R. 702, at para. 70.

[14] At the end of the analysis by both the trial judge and the Court of Appeal in Tehrankari, there was not a valid alternate suspect presentation to be made. Although there was considerable evidence against the defendant in that case, this decision explored the lack of evidence linking the alternate suspect to the murder so that the application basically amounted to speculation.

Factual Background and Analysis for the Unidentified But Known Stalker

[15] Mr. Cooper has presented an application that an unidentified but known stalker, Bruce Tompkins, and Jeremy Crease are three possible killers of Samantha Collins. He alleges that there is evidence that connects each to Samantha Collins sufficiently that a properly instructed jury could reasonably conclude acquit the defendant on the basis of alternate suspect evidence being presented. See R. v. Grandinetti, 2005 SCC 5 at paras. 47-48, R. v. Fontaine, 2004 SCC 27 at para. 70 and R. v. Tehrankari 2012 ONCA 718 at para. 37.

[16] On the other side of the coin, Mr. Kasko for the Crown submits that there is no evidence for a third party suspect defence to be presented to the jury. At most, there is only speculation and such does not draw the evidence into a state of relevance. There is no air of reality to any of the third parties as alternative suspects in the death and dismemberment of Samantha Collins.

[17] The unidentified but known stalker evidence comes from Karen Bullock who spoke with the deceased about a person texting her for the purpose of dating, that he would commit suicide if she did not go out with him and that he was “locked and loaded”. The deceased woman contacted Ms. Bullock at Muskoka Victim Services with information that a male person was stalking her. The purpose of the meeting was to arrange a safety plan for Samantha Collins. This meeting occurred in early March 2007.

[18] The male was a customer at her place of employment, the Purple Pig, which was a bar. No complaint was made to the police about this male person even though Samantha Collins had filed a complaint leading to a sexual assault charge for another male patron at the Purple Pig. The stalker is not the male charged with sexual assault.

[19] Ms. Bullock attended at the Purple Pig with Ms. Collins when attempting to get the employer to pay Ms. Collins’ final pay after she was dismissed following laying the sexual assault charge. A successful outcome led to the employer paying Ms. Collins. While Karen Bullock and Ms. Collins were at the Purple Pig, the deceased pointed to a male patron whom she claimed was the stalker.

[20] Since the commencement of the investigation of the murder of Samantha Collins, Karen Bullock has been interviewed by the police, but she has not been able to identify the male patron pointed out by Ms. Collins. I am advised that the patron is not the other male patron who had been charged with sexual assault and who is not an alternative suspect.

[21] There is no evidence connecting the patron to the murder and dismemberment of Ms. Collins. Further, there is no connection between the stalker and the cottage property of Peter Vadas where the body of Samantha Collins was located in four plastic pails. Basically, there is no nexus between this male person and the crimes. At best, there was only a claim that the male patron would do harm to himself, not to Ms. Collins. To conclude that this person was the perpetrator of the homicide would be nothing more than speculation.

Factual Background and Analysis for Bruce Tompkins

[22] The second alternative suspect is Bruce Tompkins, who was a sponsor for Samantha Collins at the local Alcoholics Anonymous organization in Bracebridge. He had taken on the responsibility in 2004 when he had received his 5-year Medallion. Mr. Tompkins took Samantha Collins many places. He employed her to deliver meat in his truck to a flea market, but she apparently did not take the meat to the selling site. Rather, she claimed to have been successful selling all the meat and paid Bruce Tompkins for the truck load. There is some suggestion that she was using the truck for dealing drugs. In any event, Bruce Tompkins was never out of pocket money because Ms. Collins paid him as if she had gone to the flea market and sold the entire product.

[23] There were occasional times when Ms. Collins stayed over-night at Bruce Tompkins’ residence. Those occasions were when she and Ian Borbely were not getting along. Mr. Borbely approached Mr. Tompkins to ask him if he was engaging in sexual relations with his wife. Mr. Tompkins advised the defendant that there was no sexual activity between Ms. Collins and him. Mr. Tompkins told the police that Ms. Collins had asked about staying at his residence more than on an occasional basis, but he declined pointing out that he had a daughter.

[24] Bruce Tompkins told the police that Samantha Collins had conveyed negative information about him in the local area of Bracebridge.

[25] Bruce Tompkins had a photograph of Samantha Collins in his wallet when the police interviewed him during the summer of 2010.

[26] After Mr. Tompkins discovered that his vehicle was being used for a purpose other than selling meat at the designated flea market, he discontinued having Samantha Collins sell his meat or use his truck. Some of the times Mr. Borbely went with Ms. Collins when she used the truck.

[27] I do not see any evidence demonstrating animus towards Samantha Collins by Bruce Tompkins; nor do I see any motive for Mr. Tompkins causing injury to her. There simply is not evidence relevant to this homicide and dismemberment trial whereby Bruce Tompkins is connected to the death of Ms. Collins. Yes, Bruce Tompkins had contact with Samantha Collins, but that ended with her failing to sell the meat at the local flea market. There does not appear to be any outstanding debt owing from Ms. Collins to Mr. Tompkins. There is no evidence connecting Mr. Tompkins to the cottage of Peter Vadas where the crate with the dismembered body parts of Samantha Collins was found in July 2010.

Factual Background and Analysis for Jeremy Crease

[28] Jeremy Crease is the third potential alternative suspect in the death and dismemberment of Samantha Collins. He was an employer of Ian Borbely when completing major cottage alterations to the cottage of Peter Vadas in the Bracebridge area. The work commenced in the fall of 2007. Mr. Crease and his wife lived in the same building as Samantha Collins and Ian Borbely at 15 Wellington Street. Each couple had an apartment in the building.

[29] Mr. Crease and Carrie Leduc, his wife, moved from 15 Wellington Street to a larger residence in Port Carling. That community is a few kilometres away from Bracebridge. Jeremy Crease testified that he only seen Samantha Collins a couple of times at the residence. There was a time when Samantha Collins telephoned Jeremy Crease to say that Ian Borbely told her that Jeremy would lend them $800 so that they could pay their rent and avoid being evicted from the apartment at 15 Wellington Street; however, Mr. Crease advised Samantha Collins that he had not agreed to do so and did not give them money for rent.

[30] Mr. Cooper submits that there is no need for an application about Jeremy Crease as a third party suspect because the Crown accepted him as being in that category when the Crown moved for an order removing Ms. MacDonald as defence counsel earlier in the pre-trial applications. I do not interpret the circumstances as Mr. Cooper has suggested. I took the position of the Crown to be that if Ms. MacDonald were to advance a third party suspect allegation regarding Jeremy Crease, then she could not continue to represent Ian Borbely because she would have a conflict of interest in attacking a former client. The Crown did not make the argument that Mr. Crease was a third party suspect; rather, Mr. Kasko simply made submissions about Ms. MacDonald serving as Defence counsel if the Defence were applying to introduce Jeremy Crease as a third party suspect.

[31] There is no evidentiary trail to Mr. Crease with respect to Samantha Collins. There is no evidence linking him to her death. There is no evidence indicating motive to kill her. Although he had contact with the Vadas cottage property because he was the main contractor, there is no evidence connecting Jeremy Crease with the Vadas property when the body was found. The most that exists is that Ian Borbely stole saws from Mr. Crease and hawked them, Samantha Collins claimed that Ian Borbely said that Jeremy Crease would give them money to pay their rent so that they would not be kicked out of their apartment, and Jeremy Crease employed Ian Borbely for the main construction work at the Vadas cottage property. Beyond that evidence, there is nothing. In other words, there is no evidence relevant to Mr. Crease being involved with the death of Samantha Collins. One would have to speculate that Mr. Crease was the killer of Samantha Collins on the basis that he met her once, turned down a request for money and employed the defendant when doing contracting work for Peter Vadas.

Analysis Summary for the Three Alternate Suspects

[32] With all three third party suspects presented by the Defence, the conclusion must be that there is no evidentiary connection for any of them to the homicide and dismemberment of Samantha Collins, nor is there motive or animus between them and the deceased. Rather, the stalker evidence, taken at face value, threatened to harm himself, not Samantha Collins. Bruce Tompkins ,taking the evidence presented at face value, was not out of pocket money as a result of Samantha Collins' use of his truck, had terminated contact with her by ceasing to be her sponsor at AA meetings, still had an non-antagonistic attitude about her as could be interpreted from carrying a photograph of Ms. Collins in his wallet, and had not seen her for a long time. He had no connection to the Vadas cottage property where the crate with the four plastic pails containing the body parts of Samantha Collins were located. The evidence regarding Jeremy Crease, taken at face value, would show he had met Samantha Collins once, had spoken to her on the phone once when she called asking him to give her and Ian Borbely money to pay their rent, had moved from the area for work purposes, and is not shown to have been back to the Vadas cottage property in the spring of 2010. 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.

[33] The Tehrankari decision demonstrated that there was considerable evidence implicating the defendant in that case and there was an extremely tenuous motive with virtually no evidence linking the third party to the crime. With Ian Borbely, I conclude that there is just as scant a foundation for a third party suspect application as in the Tehrankari case. The case against Mr. Borbely is a circumstantial evidence case without some of the strong evidence facing Mr. Tehrankari.

[34] I conclude that introducing the alternate suspect evidence in the application of Ian Borbely would send the jury into a speculative exploration of who might have killed Samantha Collins without a foundation for it. The evidence sought to be introduced would not meet a relevance test. There is no air of reality to the application.

[35] Without an air of reality, there is no room for considering the evidence to have any probative value.

[36] The application is dismissed. The third party suspect evidence may not be introduced directly nor through cross-examination.

Justice B. Glass

Released: 2013-01-02