Court File and Parties
SUPERIOR COURT OF JUSTICE – ONTARIO
RE: her majesty the queen
v.
borislava filipovic, Applicant/Defendant
BEFORE: S.F. Dunphy J.
COUNSEL: Andrea MacGillivray and Alice Bradstreet, for the Respondent
Dragi Zekavica, for the Defendant/Applicant
HEARD at Toronto: June 13-14, 2022
REASONS FOR DECISION – ALTERNATE SUSPECT APPLICATION
[1]
Overview
The defendant Ms. Borislava Filipovic brings this application seeking an order admitting evidence of a possible third-party suspect who may have committed the offences with which she is charged. For the reasons that follow, I find that the defendant has failed at this stage of the proceeding to adduce a sufficient evidentiary foundation to grant the application.
[2]
Background
The defendant faces a total of six counts of attempted murder (two counts), aggravated assault (two counts) and administration of a noxious substance (two counts). These charges arise from an incident that occurred at some time between June 11 and June 12, 2019.
3On the morning of June 12, 2019 father of the defendant, being abroad and unable to reach his family at their Etobicoke apartment, prevailed upon a friend and neighbour to check in on his family for him. The neighbour did so and discovered the defendant, her mother and her twenty month old baby daughter lying in bed and unconscious. Police investigated the scene after the three were taken to hospital and soon discovered several syringes bearing stickers and labels identifying them as coming from Trillium Hospital. It was determined that the three had been administered insulin, a drug prescribed for none of them. For reasons not relevant to this application, police determined that the insulin had been intentionally injected by the defendant into her daughter and mother before injecting herself. She was subsequently charged.
4On this application, the defendant seeks leave to introduce evidence tending to show that it was not she but her estranged husband Mr. Adam Najjar who committed the crime.
[5]
Legal Principles
There appears to be no serious disagreement between the parties as to the standard that I must apply in considering this application. I summarize the relevant principles as follows:
a. The accused may adduce evidence to show that the crime was committed by another by means of admissible evidence. Admissible evidence must be both relevant and possess sufficient probative value to justify its admission: R. v. McMillan 1975 CanLII 43 at para. 24, aff’d 1977 CanLII 19 (SCC), [1977] 2 S.C.R. 824;
b. The trial judge must balance the probative value of the proposed evidence against the prejudicial effect of its admission although the prejudice must substantially outweigh the probative value in the case of evidence relevant to a defence allowable at law: R. v. Grant, 2015 SCC 9 at para. 19.
c. It is essential that there be a sufficient connection between the third party and the crime failing which the proposed evidence would be neither relevant nor probative: R. v. Grandinetti, 2000 SCC 5 at para. 47;
d. The “sufficient connection” between the alternate suspect and the crime must be grounded in evidence and amount to more than mere speculation to avoid distorting a trial’s truth-seeking purpose: R. v. J.B. 2015 ONSC 6301 at para. 15-16; R. v. Brown, 2010 ONSC 6057 at para. 22-24;
e. The defence must demonstrate that there is a basis upon which a reasonable, properly instructed jury could acquit based on the defence. Absent a sufficient connection, the defence would lack the necessary air of reality: Grandinetti, at para. 48, Grant at para. 20; and
f. The “air of reality” test will be satisfied if there is evidence that is reasonably capable of supporting the inferences required for the defence to succeed as opposed to evidence that is fanciful or far-fetched: Grant at para. 20.
[6]
The Evidence
I heard the evidence of Mrs. Ivanka Filipovic (hereafter “Ivanka” to distinguish her from her daughter Borislava Filipovic) tendered by the defence on the voir dire as well as being provided with transcripts of the preliminary inquiry testimony of Ivanka Filipovic and Mr. Adam Najjar.
7On this voir dire, my task is not to decide whether the defence of a third-party suspect is likely to succeed nor is it my task to assess the strength of the Crown’s case that the accused is the one who committed the crimes alleged. My task is to determine whether the evidence sought to be adduced is such that a reasonable, properly instructed jury could properly acquit based on the proposed defence.
[8]
Theories of the Parties
The foregoing being stated, it is necessary to understand the theory of the Crown’s case and the theory of the defence intended to be tendered in order to understand the context in which the proposed evidence fits.
9The theory of the Crown’s case may be succinctly summarized as follows:
a. In June 2019, the accused was in the midst of acrimonious family law proceedings over the topic of access rights of Mr. Najjar to their twenty month old daughter. He had been denied any access to her since February 2018 one month following their separation. The baby was then approximately four months old.
b. On June 3, 2019 and following a hotly contested hearing, Gilmore J. ruled that Mr. Najjar should have supervised access to his daughter, such first visit being re-scheduled to June 15, 2019.
c. Having travelled to Europe to visit his own sick father, Mr. Boris Filipovic – the father of the accused – became concerned when he had not heard from his family on the morning of June 12, 2019. He asked a friend and neighbour to whom he had given a key (Mr. Kasalovic) to check in on them.
d. Mr. Kasalovic entered the apartment with the key and observed no signs of a disturbance. The accused, her mother and child were all found unconscious in the bedroom.
e. Mr. Kasalovic called 911 and emergency responders arrived. Dangerously low blood sugar levels were detected by emergency responders. Needle marks were visible on the child’s thighs.
f. A handwritten letter addressed to “Canada” with apparent attributes of a suicide note was found in the living room apparently signed by the accused. The handwritten letter condemned the decision of Gilmore J. as seeking to “destroy my child”.
g. Insulin pens and needles were found in the bedroom bearing labels from the Trillium Hospital network where the accused worked at the time.
10The theory of the defence case as set forth in the Statement of the Case prepared for this application may be summarized as follows:
a. Mr. Najjar repeatedly beat the accused while she was pregnant with their daughter.
b. After the accused took her daughter and returned to live with her parents in January 2018, Mr. Najjar sent text messages and gruesome photographs to the accused threatening to kill her and to ruin her and her family.
c. In November 2018, Mr. Najjar pleaded guilty to threatening and harassment and was sentenced to 27 days plus probation.
d. Following the separation of the couple in January 2018, the accused took their daughter with her and moved in with her parents in their apartment.
e. Mr. Najjar made repeated visits to the apartment of the parents of the accused after the separation.
f. Mr. Najjar had copied the key to the parents’ apartment from his spouse before their separation and used it to enter the apartment.
g. In June 2019 prior to the incident, two incidents occurred:
i. a white van driven by a middle eastern person followed Ivanka, Ms. Filipovic and her daughter while walking in a park near to their apartment; and
ii. a middle eastern appearing man was seen in the stairwell outside the apartment door.
Mr. Najjar is of middle eastern origins and had threatened to send associates to harm the accused in the past.
h. On several occasions in May 2019 Ivanka detected a strong chemical smell outside the door of the apartment. This made the accused vomit and left Ivanka feeling nauseous or unwell.
i. On June 11, 2019 shortly before her last memories of that day, Ivanka detected the same strong smell, opened an emergency door to air the smell out and and wiped a substance from the door handle of the apartment with toilet paper which she then brought into the unit and threw away.
j. The defence theory is that the substance in question was brought into the apartment when Ivanka tried to clean it off the doorhandle and this then rendered the occupants of the apartment unconscious shortly thereafter. Ivanka identified the substance as chloroform. Once the occupants were rendered unconscious, Mr.. Najjar or an unknown person directed by him was then able to enter the apartment and inject Ms. Filipovic, Ivanka and her daughter Ela using the key possessed by Mr. Najjar.
k. Mr. Najjar admitted at the preliminary inquiry that he did not want an appeal of Justice Gilmore’s order to go forward and did not account for his movements on June 11th.
[11]
Analysis
In my view, the evidentiary record at this juncture is manifestly inadequate to permit the defence theory to be put to a jury. My conclusion in this regard is expressly without prejudice to the defence advancing this request at a later stage of the proceeding should the evidentiary landscape alter from that which I am able to see at this early stage in the proceedings.
12My conclusion in this regard is quite heavily influenced by the fact that Ivanka was able to provide very little in the way of admissible evidence of almost all of the facts upon which the defence theory relies. Ivanka was utterly unable to segregate that which she observed on her own and that which she heard from others or conclusions reached from performing further research into questions long after the fact. The only sources of information pointed to by the applicant in support of the application were facts arising from the testimony of Ivanka (whether viva voce at the voir dire or at the preliminary inquiry) and the preliminary inquiry transcript of Mr. Najjar (who is scheduled to testify on behalf of the Crown at some point either this week or next).
13I shall not go through the evidence of each in detail so much as to refer in summary fashion to the facts alleged by the defendant and the state of the evidentiary record in support of them:
a. Separation of defendant from Mr. Najjar January 2018: admissible evidence of Ivanka confirms; admissions from Mr. Najjar.
b. Tempestuous nature of relationship between defendant and Mr. Najjar prior to separation: admissions from Mr. Najjar, some admissible testimony from Ivanka.
c. Assault of defendant by Mr. Najjar endangering unborn daughter during pregnancy: no admissible evidence. Inadmissible hearsay evidence of Ivanka only.
d. Early 2018 text messages from Mr. Najjar threatening to kill accused and gruesome photos: no admissible evidence from Ivanka, limited admissions from Mr. Najjar including guilty plea and conviction for death threats later that year.
e. Mr. Najjar dropped poisoned formula off in front of apartment door for the baby: no admissible evidence from Ivanka as to any aspect of this allegation, no admissions from Mr. Najjar. Somewhat inconsistent with allegation that he had a key.
f. White van following: some admissible but weak evidence from Ivanka once unqualified opinions excluded but no evidence of any connection to Mr. Najjar.
g. Middle eastern man on stairwell: some admissible but weak evidence from Ivanka once unqualified opinions excluded but no evidence of any connection to Mr. Najjar.
h. Fire alarm incident following early morning text messages from Mr. Najjar: no admissible evidence from Ivanka, no admissions from Mr. Najjar.
i. Duplicate key allegation: very weak evidence from Ivanka who never saw a key but inferred its presence in ambiguous circumstances; admission from Mr. Najjar that he delivered flowers outside the apartment on one occasion in February 2018 when he followed someone through the lobby door.
j. Door handle soaked with chemical with strong odour on June 11: some admissible evidence of Ivanka but pure speculation or inadmissible opinion evidence regarding soporific effect and no connection to Mr. Najjar.
k. Prior incidents in May of same chemical smell: some admissible evidence from Ivanka but pure speculation or inadmissible opinion evidence as to composition (alleges chloroform) and no evidence that had soporific effect on prior occasions.
l. Lack of evidence of Mr. Najjar’s movements on June 11, 2019: No questions directed to Mr. Najjar on that subject. He offered to produce his Presto card records and no evidence that these records were sought, reviewed or under subpoena.
m. Mr. Najjar wanted the accused’s pending appeal of Gilmore J. ruling abandoned: the actual admission goes no further than that he wished to have access to and develop a relationship with a child he had been entirely excluded from seeing and counsel attempting to negotiate that. Provides no basis whatever to infer motive to kill child.
14I conclude that the admissible elements of the proposed elements are a long way from establishing the degree of connection required to pursue a third party suspect application at this juncture. The evidence of motive to harm the child is non-existent and the correspondence between counsel indicates a civil discussion to resolve comparatively minor short-term differences regarding terms of access. The evidence of means of access either to the apartment or to the insulin and injection equipment used in this case is speculative, hearsay or non-existent. There is no evidence of any third party accessing the apartment by breaking in. There is no admissible evidence capable of supporting an inference of a soporific having been used. There is no evidence that Mr. Najjar ever approached the Lake Promenade residence or Ms. Filipovic for considerably longer than one year prior to the incident. The alleged connection of Mr. Najjar to the crime is almost entirely speculative or reliant upon inadmissible evidence.
S.F. Dunphy J.
Date: June 16, 2022