ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR 11-4
DATE: 2013-02005
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: February 4 & 5, 2013
Justice B. Glass
Application by Defence for an Order Not Permitting the Introduction of Evidence of Robert Colley
[1] Robert Colley owned property in the Bracebridge area. He employed Jeremy Crease and Ian Charles Borbely to do work at his property.
[2] In 2009, Mr. Colley found a part of a necklace on his gravel driveway. He retained it but it disappeared in time.
[3] Mr. Colley also saw a mark on the cement floor of his carport in March 2007. He cleaned off this mark by washing it away.
[4] No analysis of the alleged blood was ever conducted.
Issues
[5] Is this evidence relevant to a fact in issue in this trial?
[6] Does the probative value of the evidence outweigh the prejudicial effect of its introduction into the trial?
[7] Is the evidence excluded by the operation of an exclusionary rule pursuant to the Charter or a statute or at common law?
Analysis
[8] The only evidence regarding Samantha Collins wearing a necklace is shown on Exhibit 48 which is a photograph of Ms. Collins. One can see a chain necklace in that photograph. The pendant attached to the necklace worn in Exhibit 48 is not a horn of plenty.
[9] There was a horn of plenty attached to the necklace that Mr. Colley found.
[10] Although Exhibit 48 shows a necklace and pendant when the photo was taken in November 2006, there is no evidence that Samantha Collins wore this type of neck jewellery in March 2007.
[11] The mark on the carport cement is nothing more than a mark of a substance. There is no evidentiary foundation for referring to the mark as being blood or for that matter being transmission fluid for example.
[12] The Crown proposes to invite the jury to make inferences from this circumstantial evidence. Because Ian Charles Borbely worked at the Colley property, and because Samantha Collins had a silver necklace, and finally because the necklace or part of one found by Mr. Colley was found at his property, the jury ought to be able to conclude that the necklace belonged to Ms. Collins. The evidence is alleged by the Crown to be relevant to the ownership of the necklace and relevant to the identity of the person who left it there. That is to say that the jury should conclude that Ms. Collins body was at the Colley property and that the necklace was left there by her killer. However, there is no connection between the Colley property and the necklace found on the driveway in 2008 or 2009. It has no connection to Ms. Collins. It is simply an ordinary piece of jewellery.
[13] One might say that a necklace like the one she was known to wear is relevant to where a person might have been and to the location of where the person died or where her body was dismembered. To do so, one must connect the necklace to Ms. Collins. Mr. Colley described a silver necklace with a horn of plenty. That appears to be different from the necklace in Exhibit 48. Without some evidence of connection, it is no more than an object without meaning. That means it does not pass the test of relevance to a fact in issue.
[14] Suppose that it could be shown to be the necklace of Samantha Collins. And suppose that the mark on the carport cement pad were to be the blood of Samantha Collins. Then, you have the deceased person connected to the property of Robert Colley. At that point, you would have it being of assistance to proving that she was there, that she bled there, that she was transported there by someone with the connection of the property and Ian Charles Borbely worked at the property. There you have evidence being useful to showing Samantha Collins not only was at the property.
[15] When you do not have those connectors, you cannot make use of that evidence to establish or infer any fact in issue.
[16] What might be the probative value of this evidence? It goes to locating the site of either the death or the dismemberment of Ms. Collins or both. It helps to identify the person who caused her death and who dismembered her. To get that far, one must have a connector. If the jury is left with no connection between the necklace and the mark on the ground and Samantha Collins, the jury has evidence that cannot lead to an inference of any kind.
[17] In effect, the jury would be left to speculate that this was Samantha Collins’ necklace and blood. Evidence is probative of some conclusion if it ties to events and people involved in the homicide. This evidence is not probative of any conclusion.
[18] When evidence is not relevant and has no probative value, it falls into the category of being prejudicial to the person accused of committing offences. Prejudice is tossing evidence at a defendant during his trial when he cannot have a chance to defend himself against the inferences suggested by the Crown.
[19] Such evidence then leads to letting a jury decide a case without relevant and probative evidence. That is not fair. It cannot be answered by Mr. Borbely.
[20] The conclusion must be that the evidence is to be excluded.
Justice B. Glass
Released: February 5, 2013
Copy and Paste Citation/Style of Cause DELETE EXTRA LINE SPACE IF APPLICABLE
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
Copy and Paste from Party/Defandant DELETE EXTRA LINE SPACE IF APPLICABLE
REASONS FOR JUDGMENT
Judge
Released: [Click and Type Date]