



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Borbely, 2021 ONCA 17

DATE: 20210112

DOCKET: C58788

Strathy C.J.O., Rouleau and
    Coroza JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ian Charles Borbely

Appellant

David M. Humphrey and Jill D.
    Makepeace, for the appellant

Andreea Baiasu and Nicole Rivers, for
    the respondent

Heard: November 23, 2020 by
    videoconference

On appeal
    from the conviction entered by Justice Bruce Glass of the Superior Court of
    Justice, sitting with a jury, on March 23, 2013, and from the sentence imposed
    on June 7, 2013.

Rouleau J.A.:

[1]

The appellant was convicted of second degree
    murder and offering an indignity to human remains for killing his common law
    spouse, Samantha Collins, dismembering her remains with a saw, and concealing
    her dismembered remains in four Home Depot brand paint pails wrapped in garbage
    bags. The pails were discovered three years after Ms. Collins disappearance in
    a wooden crate under a cottage in the Bracebridge, Ontario area. The appellant
    received a sentence of life imprisonment without parole eligibility for 17
    years for the second degree murder of Ms. Collins, as well as a concurrent
    sentence of 5 years for offering an indignity to the human remains of Ms.
    Collins.

A.

BRIEF FactUAL OVERVIEW

[2]

The appellant, Ms. Collins, and their young son
    lived together in an apartment in Bracebridge. Ms. Collins disappeared on March
    22, 2007. On the morning of March 22, 2007, following three telephone calls to
    the appellant, Ms. Collins called the daycare where her son had been dropped
    off to insist that the appellants parents did not have permission to pick up
    her son. Shortly thereafter, Ms. Collins placed a call to Jeremy Crease, the
    appellants former employer, inquiring about whether he would help with their
    rent payment that was overdue, since he had told the appellant he would pay
    their rent. The appellant and Ms. Collins were to appear before the Landlord
    and Tenant Board that morning to respond to their landlords application to
    evict them for non-payment of rent. Mr. Crease advised Ms. Collins that he had
    never had such a conversation with the appellant and would not be able to assist
    with their rent payment.

[3]

The Crowns theory was that Ms. Collins was
    murdered shortly after this telephone conversation with Mr. Crease. Her
    dismembered remains were found three years later, on July 5, 2010, in four
    paint pails that were wrapped in garbage bags and concealed in a wooden crate
    under a cottage in the Bracebridge area owned by Dr. Peter Vadas (the Vadas
    cottage). Dr. Vadas had previously hired the appellant and Mr. Crease to
    assist with renovations of the cottage, which were carried out from the fall of
    2007 through the summer of 2009.

[4]

In the early spring of 2010, the appellant
    contacted Dr. Vadas to inquire if he would like him to open the cottage for the
    season. By then, Mr. Crease had left Bracebridge and was not involved in the
    continuing work. Dr. Vadas authorized the appellant to perform further work on
    the cottage. On May 10, 2010, Dr. Vadas gave the appellant the keys to access
    the property. Between May 10, 2010 and May 22, 2010, the appellant completed
    work to open the cottage. The appellant completed further work on the cottage
    in June 2010. On June 13, 2010, the appellant returned the keys to Dr. Vadas. The
    wooden crate in which Ms. Collins remains were found was made of similar
    material to those used in the renovations.

[5]

The cause of Ms. Collins death was determined
    to be blunt impact head trauma. Four lacerations on the back of Ms. Collins
    head indicated there were four impacts with a blunt elongated object. One or
    more of those blows caused a fractured system, or a series of cracks, at the
    back of the skull, as explained by Dr. Michael Pollanen. Two open wounds on Ms.
    Collins right hand were also observed.

[6]

On May 3, 2011, the appellant was
    arrested while driving his vehicle. Upon executing a search warrant on the
    vehicle, the police seized a sealed envelope. It was marked Attn  Michael A
nne MacDonald  Lawyer. The police placed the sealed
    envelope into another sealed envelope that would not be opened until the court could
    rule on it. The envelope contained a 23-page notebook of handwritten notes made
    by the appellant that included information about his relationship with Ms.
    Collins and her behaviour in the period of three to six months prior to her
    disappearance. It also contained details regarding an argument that most likely
    occurred immediately prior to Ms. Collins disappearance.

B.

Grounds of
    Appeal

[7]

In his factum, the appellant focussed his
    conviction appeal on three distinct grounds. He submits that the trial judge
    erred by:

1.

finding that the contents of the sealed envelope addressed to the
    appellants lawyer were not subject to solicitor-client privilege;

2.

dismissing the appellants application to adduce evidence pertaining
    to Mr. Crease as an alternate suspect; and

3.

failing to leave manslaughter with the jury as an available verdict.

The appellant requests that the appeal
    be allowed, and a new trial be ordered.

[8]

In the alternative, the appellant seeks leave to
    appeal his sentence. If leave is granted, the appellant seeks a reduction in
    the 17-year parole ineligibility period. He submits that the trial judge erred
    by placing undue weight on post-offence conduct as an aggravating factor
    resulting in an unfit sentence.

[9]

For the reasons that follow, I would dismiss the
    appeal.

C.

Analysis

(1)

Conviction Appeal

(a)

The pre-trial ruling regarding the sealed
    envelope and solicitor-client privilege

[10]

The parties brought a joint application before
    the trial judge to determine whether the contents found in the sealed envelope were
    subject to solicitor-client privilege. The trial judge reviewed the contents and
    ruled that they were not privileged:
R. v. Borbely
, 2012 ONSC 5713. He
    characterized the contents, a small notebook, as a diary of some of the events
    of the appellants life rather than communications to a solicitor. He
    considered the polices seizure of the envelope as akin to a third party
    hearing the communication, which means that privilege would not exist.

[11]

The trial judge therefore allowed the notebook
    to be disclosed to both parties. Neither the Crown nor the appellant referred
    to or filed the notebook into evidence at trial.

[12]

The appellant maintains that the trial judge
    erred, and that the notebook met the requirements for solicitor-client
    privilege, namely that the notebook:

1.

was a communication between solicitor and client;

2.

involved the seeking or giving of legal advice; and

3.

was intended to be confidential.

[13]

The appellant accepts that if the notebook were
    a diary written before a lawyer was retained, it would constitute real evidence
    that pre-existed the solicitor-client relationship and would therefore not be
    covered by privilege. He submits, however, that on the face of the document, it
    has none of the appearance of a diary. It clearly contains information that a
    lawyer would want to know. The fact that the notebook was located in a sealed
    envelope addressed to counsel and was found in a vehicle as the appellant was
    presumably driving to deliver it to a lawyer makes it apparent that it was
    prepared for the purpose of seeking legal advice.

[14]

Although the appellant led no evidence as to the
    origin of or reasons for the preparation of the notebook, he argues that his trial
    counsels submissions on the application explained that, at the time of his
    arrest, he was
en route
to deliver written instructions to his lawyer.
    Trial counsel submitted that the envelope contained instructions for the lawyer
    following discussions the lawyer had with the appellant. These submissions were
    not challenged by the Crown. In the appellants view, the submissions provided
    the necessary basis for privilege and were not given proper consideration by
    the trial judge in his review of the contents of the notebook.

[15]

The appellant maintains that the curative proviso
    cannot be applied to correct this error:
Criminal Code
, R.S.C. 1985,
    c. C-46, s. 686(1)(b)(iii). Any breach of solicitor-client privilege is a
    serious violation of s. 7 of the
Canadian Charter of Rights and Freedoms
.
    As explained by the appellant, he suffered prejudice even though the contents
    of the envelope were never adduced as evidence at trial. This is because it
    might have served to dissuade the appellant from testifying, thereby
    benefitting the Crown. Had the appellant decided to testify, he could have been
    cross-examined by the Crown on the events described in the notebook.

[16]

I do not agree with these submissions. From my
    review of the transcripts, I agree with the Crown that the appellant never
    advanced a formal claim of privilege over the notebook. Rather, the appellant
    joined the Crown in asking the trial judge to review the contents of the
    envelope and determine whether they were privileged or not. No evidence was led
    to provide an evidentiary foundation for a claim of privilege, and,
    specifically, no evidence that the notebook was itself a communication or that
    it was prepared for the purpose of obtaining legal advice was advanced. The submissions
    of the appellants trial counsel to the effect that the appellant prepared
    written instructions for trial counsel were simply submissions. The trial judge
    was left to make his own assessment based on his review of the contents and the
    circumstances of the discovery. Given this context, I see no basis to interfere
    with the trial judges assessment of the notebook and its contents as
    constituting a diary of some of the events in the appellants life.

[17]

In any event, I also agree with the Crowns submission
    that, even if the trial judge erred and ought to have found that the notebook
    was a privileged communication and ought not to be disclosed to the Crown, this
    is the case where the curative proviso can and ought to be applied.

[18]

As mentioned earlier, the notebook was not
    entered into evidence at trial. The suggestion that the appellant did not
    testify at trial because the notebook had been disclosed to the Crown is purely
    speculative and was not raised as an issue by defence counsel at trial. Further,
    there is no fresh evidence on appeal that this issue affected the appellants
    decision not to testify. In any event, the contents of the notebook did not advantage
    the Crown in any measurable way, as the notebook did not contain any significant
    information that was not otherwise known to the Crown.

(b)

The pre-trial ruling regarding alternate
    suspects

[19]

At trial, the defence brought an application to
    adduce evidence of three possible alternate suspects: an unidentified but known
    stalker to Ms. Collins; Ms. Collins former sponsor at the local Alcoholics
    Anonymous in Bracebridge; and Mr. Crease, the appellants former employer. The
    trial judge dismissed the application:
R. v. Borbely
, 2013 ONSC 48.
    After setting out the test, namely that the defence must show there is some
    basis upon which a reasonable jury could acquit based on the defence of third-party
    involvement, he found that there was no evidence linking any of the three possible
    alternate suspects with the death and dismemberment of Ms. Collins. In
    particular, the trial judge noted that none had any motive to kill Ms. Collins.

[20]

With respect to Mr. Crease, the alternate
    suspect that is the subject of the appeal, the trial judge found that, at most,
    he had access to the Vadas cottage while working with the appellant, and Ms.
    Collins called Mr. Crease before her disappearance to enquire about him helping
    with rent. There was, however, no evidence on the record showing that Mr. Crease
    had returned to the Vadas cottage in the spring of 2010, and the evidence with
    respect to contacts with Ms. Collins was that, other than the telephone call,
    they had only met once.

[21]

The trial judge concluded that there was no air
    of reality to Mr. Crease being an alternate suspect.

[22]

The appellant submits that the trial judge focussed
    on animus and motive but did not adequately consider Mr. Creases connection
    with the crime as directed by
R. v.
Grandinetti
,
    2005 SCC 5,
[2005] 1 S.C.R. 27, at paras. 47-48
. The evidence in this case was purely circumstantial and a number
    of the facts linking the appellant to the crime applied equally to Mr. Crease.
    Specifically, the appellant argues that there were facts linking both he and
    Mr. Crease to the dismemberment and discovery of the body. Both of them worked
    at the same properties, including the Vadas cottage, where the body was found,
    and the residence of Robert Colley, a property that was suspected to have been
    the location where the body was dismembered. In addition, some of the tools and
    materials used at those work sites may have been used in the dismemberment and
    storage of the remains.

[23]

According to the appellant, while there is no
    evidence of motive, these facts, together with the telephone conversation Mr.
    Crease had with Ms. Collins on the day of her disappearance, constitute a
    sufficient connection between Mr. Crease and the crime to justify granting the
    application to adduce evidence at trial of Mr. Crease as an alternate suspect.

[24]

I disagree. The connections cited by the
    appellant were of little relevance. The work Mr. Crease carried out at the
    Vadas cottage had ended sometime well before the body was likely placed under
    the cottage. By the time the body was likely placed at the Vadas cottage and
    discovered, Mr. Crease had moved away from the community and, although he still
    had a key to the Vadas cottage, there is no evidence he returned to the
    property in that time frame. Furthermore, Mr. Crease had virtually no
    connection to Ms. Collins. The connection is limited to that one telephone
    conversation and an earlier contact. Mr. Crease and Ms. Collins were practically
    strangers.

[25]

The trial judge correctly instructed himself in
    accordance with the well-established authorities, including
Grandinetti
,
and went on to observe that beyond the
    very limited links, there is no evidence relevant to Mr. Crease being involved
    with the death of Samantha Collins. 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. The trial judges
    finding that there was no air of reality to the proposed alternate suspect is
    fully supported by the record.

(c)

Leaving manslaughter with the jury as an
    available verdict

[26]

The appellant argues that manslaughter ought to
    have been left with the jury as an available verdict. He acknowledged that, at
    trial, the defence confirmed that manslaughter was not being advanced and that trial
    counsel would not be presenting it to the jury. This all or nothing approach
    was also taken by the Crown, but, in the appellants submission, this did not
    absolve the trial judge from carrying out his duty to scrutinize the evidence
    and instruct the jury on all avenues of conviction if there was an air of
    reality to them, irrespective of the Crown and defence positions.

[27]

In the appellants view, there was an air of
    reality to manslaughter as a verdict. In particular, the Crowns closing submissions
    invited the jury to infer that the appellant killed Ms. Collins after an
    argument that escalated to a point where he could not control her. The
    stressors that escalated the argument included financial problems, a pending
    eviction, child custody issues, and deceit by the parties, including Ms.
    Collins possible infidelity. As explained by the appellant, there were
    significant stressors at play between him and Ms. Collins that may have caused
    him to act irrationally. As a result, the killing could have been carried out
    in a blind rage. The four blows to Ms. Collins head and the appellants post-offence
    conduct are not inconsistent with such a possibility.

[28]

Finally, the appellant maintains that if an air
    of reality to manslaughter existed in this case, the curative proviso ought not
    to be applied. The appellant submits that if the jury had been properly
    instructed as to the availability of manslaughter, they would not necessarily
    have returned a verdict of second degree murder.

[29]

I do not accept these submissions. As noted by
    the Crown, the record shows that, in several instances, defence counsel
    maintained that manslaughter was not available. He appeared to concede that the
    requisite intent for murder was present in this case. For example, during the
    Crowns pre-trial motion to tender autopsy photographs as probative regarding
    intent, the appellants trial counsel indicated that the photographs should not
    be entered as evidence for that purpose, as 
[c]learly,
    this young woman was murdered by someone who struck her on the head intending to
    kill her.
As noted by this court in
R. v. Chalmers
,
    2009 ONCA 268, 243 C.C.C. (3d) 338, at para. 58, The position taken by the
    appellant is a telling indicator of the defence view of the air of reality of
    manslaughter in the crucible of
[the]
trial.

[30]

Further, the nature of Ms. Collins injuries and
    inference that the perpetrator intended the natural and probable consequences
    of the act gives strong support for the conclusion that there was no air of
    reality to manslaughter as a verdict. The only evidence of the circumstances of
    the killing were that Ms. Collins suffered four significant blows to the back
    of her head, causing a fractured system at the back of the skull, and injuries
    to her right hand. The common sense inference from the four blows is that the
    perpetrator of the injuries intended the natural and probable consequences of
    his acts.

[31]

The appellant relies on
Chalmers
for
    his submission that the injuries of Ms. Collins are not sufficient to exclude
    manslaughter as an available verdict. In
Chalmers
, despite the nature
    of the deceaseds injuries, injuries similar to those in the present case, the
    court found that there was a marginal air of reality to manslaughter:
Chalmers
,
    at para. 66. That case, however, is somewhat different. In
Chalmers
,
    there was evidence that the accused crack
[
ed
]
 and the assault
    was just a blur, providing some basis, if considered in isolation, to support
    leaving manslaughter to the jury
:
Chalmers
, at para. 58
. There is no such evidence
    here.

[32]

I also reject the appellants suggestion that
    the Crowns theory of the case offered an air of reality to a verdict of
    manslaughter. The Crown had invited the jury to find that the appellant had
    killed Ms. Collins during an argument about their finances and the custody of
    their child. This suggested that the appellant meant to kill Ms. Collins and
    was motivated either by jealousy, frustration, or fear of losing his child. In
    the absence of other evidence, however, it would be pure speculation to find
    that, when he hit her four times on the back of the head, he did not intend to
    either kill her or cause bodily harm that he knew was likely to result in her
    death.

[33]

Given the conclusion on this issue, I need not deal
    with the curative proviso issue.

(2)

Sentence Appeal

[34]

The appellant submits that the trial judge erred
    in principle by placing undue weight on aggravating factors and too little
    weight on the unanimous recommendation made by the jurors that the parole
    ineligibility period should be 10 years:
R. v. Borbely
, 2013 ONSC 3355.
    The result, in the appellants view, is that the imposition of the 17-year parole
    ineligibility period is unduly harsh and excessive. The appellant further
    submits that a 13-year parole ineligibility period would be appropriate in all
    of the circumstances.

[35]

The appellant relies on this courts decision in
R. v. McKnight
(1999), 135 C.C.C. (3d) 41 (Ont. C.A.), at para. 48, where
    Laskin J.A., writing for the majority, held that the parole ineligibility range
    for brutal second degree murders of their unarmed spouse or partner is 12 to 15
    years. The appellant also relies on
R. v. Teske
(2005), 202 O.A.C. 239
    (C.A.). In the appellants view,
Teske
involved a murder similar to
    the present case. In fact, he argues that the aggravating factors in that case
    were greater, given that the accused had committed a prior domestic assault
    against his wife, a feature that is absent in this case. In
Teske
, at
    paras. 105-06, this court reduced a 16-year parole ineligibility period to 13
    years on the basis that the trial judge had erred in principle by failing to clearly
    explain why a departure from the
McKnight
range
was warranted.

[36]

I would not interfere with the imposed sentence.
    It is well established that the weight to be given to aggravating factors is a
    matter in the trial judges discretion:
McKnight
, at para. 35;
R.
    v. Nasogaluak
, 2010 SCC 6,
[2010] 1 S.C.R. 206, at
    paras. 43-46;
R. v. Lacasse
, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 78
. The jurys recommendation is not binding. Here, as in
R. v.
    Olsen
(1999), 131 C.C.C. (3d) 355 (Ont. C.A.), at paras. 56-57, the jurys
    recommendation was unrealistic and unreasonable. In fact, the appellant does
    not suggest that a 10-year parole ineligibility period is appropriate in this
    case. Instead, the appellant seeks a parole ineligibility period of 13 years, as
    this court held in
Teske
. As a result, the trial judge was entitled to
    give the jurys recommendation little or no weight:
Olsen
, at para.
    57.

[37]

Furthermore, the trial judge was aware of and
    referenced
McKnight
in his reasons. In referencing
McKnight
, the
    trial judge cited the mental health issues involved, the accuseds positive
    prospects for rehabilitation, and the accuseds expressed remorse for his
    actions. Those mitigating factors are not present in this case. Unlike in
Teske
,
    here, the trial judge gave clear, detailed, and cogent reasons that explained
    why he was imposing a sentence outside of the
McKnight
range.

[38]

Despite the range established in
McKnight
,
    there are factually similar cases to the present case in which a 17-year parole
    ineligibility period was imposed: see
R. v. Keene
, 2020 ONCA 635;
R.
    v. French
, 2017 ONCA 460. In the recent case of
Keene
, this court distinguished
McKnight
and upheld a 17-year parole ineligibility period for an
    accused. In that case, the accused, having invited the victim into his home,
    strangled her, dismembered her body, and disposed of the body parts at various
    locations, where they would likely be found by passers-by, to deceive the
    police. Like the appellant in this case, Andrew Keene had no criminal record,
    did not express remorse for his actions, and took elaborate steps to dismember
    the body and conceal the crime. I agree with the appellant that in
Keene
there were aggravating factors not present here, particularly the fact that the
    body parts were distributed around the city to be discovered by passers-by and
    the fact that drugs may have been involved in drawing the victim into the
    accuseds home. As noted by the Crown, however, there is at least one
    significant aggravating factor in the present case that was not present in
Keene
.
    The appellant was in a domestic relationship with Ms. Collins and therefore
    abused his intimate partner in committing the offence, which is an aggravating factor
    as set out in s. 718.2(a)(ii) of the
Criminal Code
.

[39]

The post-offence conduct of the appellant also
    reveals other aggravating factors that were properly considered by the trial
    judge. Notably, following the death and dismemberment of Ms. Collins, the
    appellant used Ms. Collins bank account for his own personal use and benefited
    from her monthly disability payments. Furthermore, there was extensive
    disrespect toward Ms. Collins after the offence, including villainizing Ms.
    Collins as a terrible mother who had abandoned her child. Notably, by
    concealing Ms. Collins remains for three years, the appellant further propagated
    the falsehood that Ms. Collins simply disappeared and abandoned her child, and he
    prevented those close to Ms. Collins to achieve closure. The trial judge did
    not, as the appellant suggests, place undue weight on post-offence conduct as
    an aggravating factor. In the end, it was for the trial judge to weigh all of
    the factors, including the appellants post-offence conduct, in determining an
    appropriate parole ineligibility period. I see no error in his conclusion.

D.

Disposition

[40]

For these reasons, I would dismiss the
    conviction appeal.

[41]

Although I would grant leave to appeal the sentence,
    I would dismiss the sentence appeal.

Released: January 12, 2021

GRS

Paul
    Rouleau J.A.

I
    agree G.R. Strathy C.J.O.

I
    agree S. Coroza J.A.


