) ) HER MAJESTY THE QUEEN – v. –, 2013 ONSC 3355

CITATION : R. v. Borbely, 2013 ONSC 3355 COURT FILE NO.: 11-4 DATE: 2013-06-07 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN – and – IAN CHARLES BORBELY Defendant ) ) ) ) ) ) ) ) D. Kasko & J. Costain, for the Crown P. Cooper & J. Herbert, for the Defendant ) ) HEARD: May 10, 2013 Justice B.

Glass Reasons for Sentence for Second Degree Murder and Offering an Indignity to a Human Body by Dismemberment Background [ 1 ] On March 23, 2013, a jury found Ian Charles Borbely guilty of both counts on the indictment. [ 2 ] The deceased person was Samantha Collins who had been a common law partner of Mr. Borbely. The couple had a child who was born in 2004. [ 3 ] Ms. Collins disappeared on March 22, 2007 and her body was not found until July 2010. The body was found in four plastic pails that had been placed into a sealed wooden crate and placed under a cottage in the Bracebridge area.

This cottage had been renovated extensively. Mr. Borbely had been employed by the contractor. [ 4 ] On March 22, 2007, Ms. Collins had called the daycare facility for their child to advise that the parents of Mr. Borbely were not to be allowed to take the child from the daycare. [ 5 ] There had been a concern by Ms. Collins that she could not leave the area with their child because she had lost custody previously when she was charged with assaulting Mr. Borbely.

She had told people that she would never succeed with a custody application and that her partner and his family would oppose her having custody. [ 6 ] Mr. Borbely did not report Samantha Collins as a missing person. She had taken off at other times. Her sister described her as a free spirit. [ 7 ] Ian Borbely told people that Ms. Collins had left with another male, that she went elsewhere and also that he heard she had taken off. He had talked to one person about Samantha leaving and he was upset in the sense that she had left him and their child. To another person he said that she had left him in financial ruin.

To another person at the daycare facility, he said that Ms. Collins thought that leaving was her idea, but he had a smirk on his face when he related this story. This was when he told the person that Samantha Collins would not be coming to the daycare again. [ 8 ] In February 2010, Ian Charles Borbely applied for child care benefits from the Government of Canada and marked the application form that he was single and had become single on March 22, 2007. This was before the body of Samantha Collins was located. [ 9 ] Ian Borbely continued to do work for the cottage owner after the major construction work.

He had a key to gain access to the property through a locked gate. He opened the cottage for the holiday weekend in May 2010. The cottage owner first noticed the box with the plastic pails and body parts after the long May weekend and before he went to Europe in early June 2010. The owner requested the return of the keys because other trades people needed keys to do additional work. [ 10 ] The owner of the cottage and a man who performed grounds work for the owner moved the wooden crate from the crawl space beneath the cottage. When the crate was opened, the plastic pails were discovered.

Upon one of the pails opening, body parts were discovered and the police were called. [ 11 ] Telephone interceptions of a conversation between Mr. Borbely and his mother were introduced at the trial. Mr. Borbely told his mother that he did not kill Samantha Collins. He also told his mother about discussions with his lawyer regarding pleading guilty to manslaughter.

[ 12 ] The jury deliberated for almost three days and returned guilty verdicts to both counts on the indictment. The jury unanimously recommended that Mr. Borbely serve 10 years before being eligible to apply for parole on the second degree murder verdict. Victim Impact Statements [ 13 ] Dorothy Fowlie is the mother of Samantha Collins. She described her experience with depression and her inability to function as she did before her daughter died. She constantly thinks of her deceased daughter and the images of her death. [ 14 ] Dorothy Collins is an aunt of Samantha Joan Collins.

She too has experienced depression and difficulty trying to cope with life since the body of her niece was discovered. [ 15 ] Bill Fowlie is a brother of Samantha Collins. He did not read his statement to the court but rather had a representative from Victim Services read his statement. Mr. Fowlie experiences the loss of Samantha as well. His description does not explain the degree of emotional turmoil that his mother, his aunt and Nicole Fowlie-Smith did. [ 16 ] Nicole Fowlie-Smith is the sister of Samantha Collins.

As with her mother and with Dorothy Collins, Nicole appears to have experienced tremendous emotional upheaval in her life since discovery of Samantha’s body parts. [ 17 ] All four persons filed a written copy of their Victim Impact Statements. All of the statements appeared to be very sincere in advising the court how the loss of Samantha Collins has taken an emotional toll on them. [ 18 ] There is no easy road over which to pass for family members. Pre-Sentence Report [ 19 ] Mr. Borbely’s parents have been married almost 40 years.

It appears that there was no problem with the Defendant and his family during the years he was being raised by his parents. [ 20 ] Tina Martin is a former common law partner who advised that Mr. Borbely was never physically violent with her. He would get angry with her and insult her verbally. That relationship ended when Mr Borbely appeared to lose interest in Ms. Martin and Mr. Borbely wanted to travel and did not want to settle down. When Ms. Martin had become pregnant during this relationship, Mr. Borbely had asked her “When are you going to take care of that?” The pregnancy was terminated when Mr.

Borbely did not support Ms. Martin and she was afraid of raising the child on her own. [ 21 ] Amy Lebeau is the current common law partner of Mr. Borbely. Their relationship commenced in 2009. She has a good relationship with the Defendant and is raising the child of Samantha Collins and Mr. Borbely. She described Mr. Borbely as easy going and a hard worker. She has not felt threatened or intimidated by Ian Borbely. [ 22 ] Ian Borbely confirmed the relationship with Amy Lebeau.

The Defendant reported that Samantha Collins had a bad temper and that they had many arguments during their relationship. [ 23 ] Ian Borbely told the pre-sentence report preparer that Samantha Collins left him in 2007. He was angry with her for not calling him and their child. [ 24 ] Mr. Borbely has worked as a personal trainer in Toronto previously. He also has worked as a bouncer at a local sports bar. [ 25 ] The parents of Mr. Borbely had helped Ian Borbely and Samantha Collins in the past by allowing them to live at their residence when Samantha Collins was pregnant.

Cindy Borbely is the mother of Ian and reported seeing Ms. Collins hit Ian during an argument. George Borbely is the father of Ian and he reported seeing Ian grab Ms. Collins’ hands to stop her from hitting him. [ 26 ] Mr. Borbely attended school until grade 11 when he left school. He works as a carpenter. Trevor Downing has a general contracting and property management business and has employed Ian Borbely. He reported Mr. Borbely to be a good carpenter. [ 27 ] The Defendant admits to using marihuana and cocaine. After the child of the relationship with Samantha Collins was born, Mr.

Borbely reports that he stopped using cocaine, but he started using the substance again with Samantha. Amy Lebeau reports that she has not seen Ian Borbely consume any drug since their relationship commenced in 2009. Ian Charles Borbely Comments to the Court at This Sentence Hearing [ 28 ] Mr. Borbely was given an opportunity to convey comments at this hearing. He did not wish to add any comment beyond the submissions advanced to the court by Mr. Cooper. Position of the Crown on Sentence [ 29 ] The Crown has filed several cases along with a chart for sentencing and parole ineligibility.

At the end of the presentation, the Crown asks that the court order that Ian Borbely serve 17 years before being eligible to apply for parole taking into account retribution, denunciation, general and specific denunciation. [ 30 ] There are significant aggravating factors present in this case. The deceased woman was beaten to death. Her skull had 4 fractures indicating a severe application of force with an elongated object. The body of Samantha Joan Collins was cut into many parts and stored in plastic pails. The deceased was a young mother of a young child who has been deprived of his mother’s companionship.

Offering an indignity to a corpse is an aggravating factor in its own right. [ 31 ] There is no mitigating factor for the court to consider in favour of Ian Borbely.

[ 32 ] The jury returned a recommendation to the court that Ian Charles Borbely not be allowed to apply for parole until he had served 10 years of a life sentence. Mr. Kasko submits that the 10 year figure is a recommendation. A judge is not obligated to follow the recommendation because the judge is the person who has the responsibility for determining the sentence. [ 33 ] With respect to count 2 regarding the dismemberment of the human remains of Samantha Joan Collins, the Crown submits that a concurrent sentence of 5 years be imposed. Position of the Defence [ 34 ] Mr.

Cooper submits that the court should pay close attention to the jury’s recommendations and accept the 10 year recommendation. The jurors are the persons who listened to the evidence and made findings of fact. [ 35 ] Mr. Cooper referenced several cases in which the parole ineligibility period was much less than that recommended by the Crown. [ 36 ] The character of Ian Borbely, the nature of the offence, the circumstances surrounding the commission of the offence and the recommendations of the jury are consistent with setting parole ineligibility at 10 years.

The Defendant does not have a criminal record, has been a person who has worked during his adult years, has been a responsible parent in raising his child and also those of his girlfriend, was not a problem to his parents during his formative years, and for the 6 years since Samantha Collins disappeared he has been a good citizen. Both a former partner, Ms. Martin, and his current partner, Ms. Lebeau, have reported that Mr.

Borbely was not a physically violent person to them in their respective relationships. [ 37 ] The Defence submits that the second degree murder sentence be life without parole for 10 years and that the sentence for count 2 regarding the dismemberment of Samantha Collins’ body be 2 years in custody. [ 38 ] Mr. Cooper emphasizes that the court take into account that a life sentence without parole for 10 years is not a minor sentence. Mr. Borbely will serve many years in custody before being allowed to apply for parole. In other words, 10 years is not in the category of a minor sanction.

Analysis Taking into Account the Character of Ian Borbely, the Nature of the Offence and the Circumstances Surrounding the Commission of Second Degree Murder [ 39 ] The sentencing provisions of the Criminal Code provide an outline of factors reflecting sentencing principles in Canada. A custodial sentence comes last in consideration if other forms of sanction for criminal activity are present. However, with second degree murder, the sentence is life imprisonment without parole eligibility for a number of years. The range is between 10 and 25 years.

That is the time frame when the person may apply for parole, but parole is not an automatic result of an application. If a person receives a life sentence without parole eligibility for more than 15 years, the Criminal Code of Canada provides that the individual may apply for an order allowing him or her to have a hearing to consider whether or not an earlier parole application might be made. [ 40 ] Here, the jury returned a unanimous recommendation of no parole for 10 years. [ 41 ] The maximum sentence that may be imposed for the second count of dismembering the human remains of Samantha Collins is 5 years.

That sentence is concurrent to the life sentence for second degree murder. [ 42 ] When imposing a sentence upon a person for criminal convictions, our courts do not traverse a path of vengeance upon the perpetrator. There was a day when the imposition of criminal sanctions was one of reaping harsh treatment upon persons found guilty. We in Canada moved away from the death penalty as the harshest sanction several decades ago.

Our Parliament gave considerable thought to our country treating people with dignity and respect and at the same time recognizing that victims of crime must be treated with dignity and respect. Gone are the days of dismembering people found guilty of heinous crimes. [ 43 ] This is the conclusion of the sentencing process. I shall outline factors that are to be taken into account for this final stage of Mr. Borbely’s trial.

They will reflect on his character, the manner of perpetrating the crimes, the nature of the offences, circumstances that might be considered to ease the sentence, circumstances that might be taken into account for a greater sentence, general and specific deterrence, general denunciation, and rehabilitation of the accused. Are there mitigating factors? [ 44 ] He has no criminal record. He appears to have continued to be active and interested in the life of his child. Further, Mr. Borbely has maintained employment.

During the 6 years after Samantha Collins died, Ian Borbely has not encountered trouble with the criminal justice system. I do not find that these factors bring the sentence of Mr. Borbely to the stage of a lower or reduced time period for parole eligibility. No criminal record is a positive factor, but it does not elevate him to a level that would in effect discard the overwhelming negative factors that are at play in this case.

Are there aggravating circumstances? [ 45 ] Killing a partner who is the mother of their child and then dismembering her corpse, hiding it for years and placing the body parts in pails is conduct that demonstrates considerable disrespect for a person with whom he was very intimate. [ 46 ] Murder is a heinous act; however, there is an additional feature of negative connotation to murder that accompanies domestic violence.

Courts in Canada have recognized the added feature of denouncing violence to one’s spouse or partner because often such acts of violence arise in circumstances that are not readily seen by people. The privacy of the residence of a couple naturally removes a public feature of this violence. [ 47 ] Following the death of Ms. Collins in March 2007, Ian Charles Borbely used her bank account into which monthly deposits

from the Ontario Disability Pension was made for the deceased. Ms. Collins was in receipt of a disability pension from the Province of Ontario because she had developed epilepsy during her pregnancy. She encountered seizures as a result. Further, the Defendant used the bank account of Samantha Collins for his own personal benefit purchasing such items as a barbeque. [ 48 ] Mr. Borbely reported negatively about Ms.

Collins leaving both their son and him, leaving him financially ruined, leaving him emotionally hurt by her abandonment, and leaving with another male companion as well as conducting her life as a stripper. This left the listener with the impression that Mr. Borbely was a victim of spousal abandonment. Obviously, the jury did not find such to be the case because they found him guilty of murdering Samantha Collins. [ 49 ] These comments about aggravating factors apply to Mr. Borbely. I conclude that he has demonstrated a dark side to life with the killing and dismemberment of Samantha Collins.

General Deterrence [ 50 ] With criminal offences, courts sentencing persons consider varying degrees of denunciation and sanction. For example, stealing a loaf of bread carries with it a much lesser degree of negative connotation than ending a person’s life by murdering her. The more serious the criminal activity, the more the sentencing court will reflect on a need to convey to the public at large the disapproval of such conduct in a more major way.

When the maximum sentence is one of life imprisonment, the offence must be one of the most serious actions undertaken by a person. [ 51 ] When a person is murdered in an egregious manner, the court disapproval must be anticipated to be greater. If one beats a human being to death and then carves up the body, the person demonstrates a greater degree of disrespect for the deceased person and to society in general. [ 52 ] The jury had information about the couple having less than an easy and amicable relationship. There was evidence that Ms. Collins feared leaving Mr.

Borbely because she would not be able to take their son with her. She had lost custody of their son in favour of Mr. Borbely once previously. She called the daycare centre the day of her death to direct that her partner’s parents were not permitted to pick up their son. The intercepted telephone calls following her death reflect animosity from Mr. Borbely to Ms. Collins. Following Samantha Collins' death, the phone intercepts disclose considerable concern by Ian Borbely for custody of their son.

Again, domestic violence rises to the top of the denunciation table whereby one might conclude that everyone in Canada must be made conscious of disapproval of extreme domestic violence whereby a partner is murdered. [ 53 ] The conduct of Ian Charles Borbely calls for the sentencing court to tell all in Canada that such actions will be sanctioned very seriously. The criminal conduct of the Defendant has had a permanent outcome. Samantha Collins is dead. That condition will not change.

Specific Deterrence [ 54 ] As the court has considered general denunciation, so should the court consider specific directions to Mr. Borbely for the murder of Samantha Collins and the dismemberment of her body. [ 55 ] Sometimes, a person commits acts of violence in the heat of the moment after which another person is deceased. For example, an accidental killing of someone in the heat of the moment carries a lesser degree of sanction than one of taking the life of another with the intention of ending a life. [ 56 ] In this case, the evidence for the jury’s consideration included Mr.

Borbely’s denial of killing Samantha Collins. From the verdicts reached by the jury, I can only conclude that the jurors did not accept that denial. [ 57 ] Having been found guilty of killing and dismembering Ms. Collins, the Defendant is left in the position of one performing an awful act and then concealing his actions by dismembering the body of the deceased and hiding it successfully for many years. [ 58 ] Mr. Borbely continues to deny any wrongful act.

For the actions of the Defendant for which he has been found guilty, he must have a message directed to him specifically that his conduct will be met with significant disapproval. [ 59 ] A greater sanction here is to serve a life sentence without an opportunity to apply for parole for a greater time than 12-15 years. In other words, when all analysis is completed in these reasons, the time to be spent in custody will be on the higher side of parole ineligibility.

The Likelihood of Rehabilitation [ 60 ] There is no information that might lead the sentencing court to conclude that particular processes and programs within the correctional system in Canada will rehabilitate Mr. Borbely. One might become a rehabilitated person if he regains his self-respect.

Killing an intimate partner in a very violent manner and then disposing of her body in parts demonstrates considerable disrespect for Samantha Collins, but also, such conduct makes clear a lack of respect for himself as a human being who cannot control his conduct so as to avoid committing the greatest violent act upon the other person. [ 61 ] There may come a day when Mr.

Borbely lifts himself beyond being a violent person who harshly killed his partner and then demonstrated tremendous disrespect for her body by dismembering her corpse. [ 62 ] One can only hope that rehabilitation might be experienced by Ian Borbely sometime in the future. Dismemberment of the Human Remains of Samantha Joan Collins [ 63 ] The dismemberment of Ms. Collins' body carries a maximum sanction of 5 years. The Crown submits that the maximum

sanction be considered even though it will be one to be served concurrently with the life sentence for murder. The Defence submits that asentence of 2 years be considered. [64] Dismemberment is taken into account as an aggravating factor in the murder sentence decision.

Summary of the Analysis [65] When all is assessed, I conclude that the sentence for second degree murder should be life imprisonment without parole formore than 10 years. The circumstances are very serious and reprehensible. [66] I recognize Mr. Cooper’s submission that if the parole ineligibility period were to be 10 years, that is a long time. Further, 10years would be just the time to be able to apply for parole. There is no guarantee that a person is granted parole simply for the asking. [67] The facts of this murder provide an extreme example of the dark side of human nature.

Topping up the ending of the life of ahuman being with an additional act of disrespect for the deceased former partner adds an element of human conduct that is horrifying asone thinks of going through the actions of taking apart a human body. [68] The jury was directed to consider the character of Ian Charles Borbely, the nature of the offence and the circumstancessurrounding the offence when considering recommendations of parole ineligibility. They returned with a recommendation of life withoutparole for 10 years unanimously.

They were not asked for any recommendation about the second count of offering an indignity to thehuman remains of Samantha Joan Collins. [69] As the sentencing judge, I too consider the character of Mr. Borbely, the nature of the offence and the circumstancessurrounding the offence of second degree murder. My comments in paragraphs 1-68 of these reasons do address each of these categories.I have noted observations throughout those paragraphs to set out my conclusions of the topics highlighted. As one reads them, one canget a clear picture of how I have noted the character of Mr.

Borbely, the nature of the offence and the circumstances surrounding theoffence of second degree murder. [70] At this stage of the proceedings, I have the benefit of the recommendations of the jury together with the other features I haveoutlined for consideration of sentencing Mr. Borbely. When I do so, I find that all factors lead to the court considering a sanctionwhereby the period of parole ineligibility ought to be greater than 10 years. [71] In R. v. McKnight, (ON CA), [1999] O.J.

No. 1321, Laskin J.A. from the Ontario Court of Appeal set outa range of 12 to 15 years before being eligible for parole with a second degree murder of a spouse. This decision enlarged the paroleapplication time frame beyond the minimum of 10 years. In McKnight, the Defendant had been found guilty of stabbing his wife manytimes. There were many defensive wounds. The accused man was a doctor and lawyer. His wife was a university professor at the Schoolof Nursing at McMaster University. The Defendant had experienced depression during the marriage.

There was evidence that at the timeof the murder of his wife, the accused was experiencing depression. At the sentence hearing, the Crown had acknowledged that themurder would not have likely occurred if the Defendant were not experiencing depression and having a schizoid personality andhypochondriacal fears. He was not in a state that would have been sufficient to lead to a conclusion of not criminally responsible. Thejury had recommended that the Defendant not be eligible for parole for 20 years. At the sentence hearing, the accused had expressedremorse for his actions.

The Ontario Court of Appeal reduced the period from 17 years to 14 years after reviewing many cases andoutlining a range of 12 to 15 years as an appropriate range for trial courts to consider unless there were circumstances that might warrantfewer years or more years before parole eligibility. [72] In R. v. Wristen, (ON CA), [1999] O. J. No. 4589, Laskin J.A. from the Ontario Court of Appeal justmonths after releasing its decision in McKnight was faced with the same issue in a second degree murder of a spouse. The case was allcircumstantial evidence. The body of the wife of the Defendant was never found.

The accused husband led the investigating policeservice on an extensive search claiming that she had left him. There had been a history of the accused man making death threats to hiswife and he had been convicted of assaulting her. She was making plans to leave the Defendant. The jury was divided onrecommendations for parole ineligibility. Six recommended 12-14 years, 3 recommended 18-20 years and 3 made no recommendation. The Court of Appeal distinguished Wristen from McKnight noting at paragraph 76: “76.

The appellant's second submission is that a period of 17 years parole ineligibility is "demonstrably unfit", or outside an acceptablerange, even for the brutal murder of a spouse. In making this submission, the appellant relies on the recent decision of this court in R. v.McKnight (1999), (ON CA), 44 O.R. (3d) 263. In that case, a majority of the court reduced the period of paroleineligibility of a man convicted of the vicious second degree murder of his wife from 17 years to 14 years.

Laskin J.A. canvassed andrelied on several cases from this province in which "brutal second degree murders of an unarmed wife or girlfriend" had attracted a rangeof 12 to 15 years parole ineligibility. But in McKnight, there were several significant mitigating circumstances that justified reducing theperiod of parole ineligibility and that have no counterpart in the present case.

McKnight had no previous record; he was severelydepressed when the crime occurred and even the Crown's expert conceded that but for his depression, he would not likely have killed hiswife; he expressed sincere remorse for what he had done; and he had positive potential for rehabilitation. Moreover, he made no attemptto cover up his crime or hide his wife's body.” [73] In R. v. Teske, (ON CA), [2005] O.J. No. 3759, the Ontario Court of Appeal faced a concern that the trialjudge had not provided adequate reasons for imposing a greater period for parole ineligibility than the range outlined in McKnight.

Atparagraphs 99-106, Doherty J.A. visited this issue and in particular stated at paragraph 105: “ I agree with the trial judge's observation that in setting an appropriate range for a certain type of offence, an appellate court is notimposing a "ceiling" on the sentences that can be imposed in those kinds of cases. Sentencing remains a vitally individualistic processrequiring a careful exercise of judicial discretion.

That said, however, I think that where the appellate court has described a range for acertain category of offence and a trial judge chooses to go above, or below, that range, it is incumbent on the trial judge to clearly explainwhy he or she has departed from the appropriate range. The trial judge did not do so and, in my view, erred in principle. That errorrequires this court to determine a fit period of parole ineligibility.”

[74] In Teske, the Court of Appeal changed the sentence from life without parole eligibility of 16 years to 13 years. In that case,the accused had reported that his wife had gone missing. The evidence at the trial disclosed that the deceased died after being beaten, thebody was hidden in the house and then incinerated. The Defendant claimed to have been a physically abused person during the marriage.There was no jury recommendation because the trial had proceeded as a judge alone trial. [75] In R. v. Teske, [2001] O.J. No. 1900, the trial judge at paragraphs 26—32 said: “26.

There are, as I have noted, many aggravating factors here. 27 His prepared text apologizing to family and friends is touching, no doubt sincere. But it comes too late. His actions, at the relevanttimes, are indicative of his attitude towards his family, and specifically towards his wife and children. After he killed her, he belittled herto police, casting her as blameworthy for what happened. And in his apology, he never mentioned his children. We know it is hischildren that are most directly affected.

Be that as it may, his apology must be taken as an indication of some remorse on his part. 28 For the reasons I have stated, this murder is not a "normal" murder; it is, in my view, exceptional. It warrants increasing the period ofparole ineligibility beyond the ten-year prescribed by the Criminal Code. 29 I have reviewed the case law submitted by both counsel. I agree that the trial judge's determination of the appropriate period of paroleineligibility is a 'fact sensitive process' as is referred to in the R. v.

Shropshire case, reported at (SCC), 102 C.C.C. (3d)193. 30 I also agree that in cases involving brutal second degree murder in a domestic or family context, a range of twelve to fifteen years as aperiod of parole ineligibility is generally applied in this province. 31 Our Court of Appeal has in the R. v. McKnight case, reported at (ON CA), 135 C.C.C. (3d) 41, recognized thisrange has been applied in our province after its review of recent Ontario case law.

However, in my view, none of the cases cited indicatesuch category of cases are subject to a ceiling within the range set out in the Code. 32 Having considered all the aggravating and mitigating factors, the criteria set out in the Code for determining a proper period of paroleineligibility and mindful of those principles of deterrence (both general and specific) and denunciation that apply to this case inparticular, I conclude that the appropriate period of ineligibility is to be increased to 16 years.” [76] In R. v. Czibulka, 2011 ONCA 82 , [2011] O.J.

No. 372, the Ontario Court of Appeal visited the issue of paroleineligibility for second degree murder in a spousal murder case in which Laskin J. A. for the Court stated: “ 65 As the appellant was convicted of second degree murder, he received a mandatory life sentence. By statute he is not eligible forparole for at least 10 years. As would be expected in a case such as this, the Crown sought an increased period of parole ineligibility: sheasked for 17 years. The defence sought a period of 12 years. The jury made no recommendation.

The trial judge imposed 15 years. 66 The appellant appeals his period of parole ineligibility on the ground that the trial judge erred in principle by fixing the range ofparole ineligibility for a brutal spousal murder at 12 to 17 years. The appellant contends that the appropriate range is 12 to 15 years. Asthe trial judge did not impose a period of parole ineligibility at the high end of the range he considered appropriate, the appellant saysthat if the range is 12 to 15 years, then he should be eligible for parole after 12 to 13 years. 67 I do not accept the appellant's contention. Admittedly, in R. v.

McKnight (1999), (ON CA), 44 O.R. (3d) 263(C.A.), the case relied on by the appellant, a majority of the panel held at p. 276 that "... no two cases are the same but similar cases fromthis province of brutal second degree murders of an unarmed wife or girlfriend suggest a range of 12 to 15 years." However, that range isnot cast in stone for all brutal spousal murders. Sentencing ranges "are guidelines rather than hard and fast rules": see R. v. Nasogaluak2010 SCC 6 at para. 44. Sentencing remains an individualized process.

The range stipulated in McKnight was driven by previous caselaw in this province and by several mitigating considerations in the case itself. These considerations included McKnight's remorse, hismany contributions to the community, and his mental illness, considerations absent in the present case. 68 Moreover, a few months after McKnight was decided, in R. v. Wristen (1999), 41 (ON CA), 47 O.R. (3d) 66(C.A.), another case where an accused was convicted of the brutal second degree murder of his spouse, this court imposed a period ofparole ineligibility of 17 years.

The panel referred to McKnight, yet said at para. 76 "But in McKnight, there were several significantmitigating circumstances that justified reducing the period of parole ineligibility and that have no counterpart in the present case." 69 In the case before us, the trial judge took Wristen to reflect the upper end of the range, and I do not see how he can be faulted fordoing so.

At trial, both Crown and defence accepted a range of 12 to 17 years.” [77] When one reads in the Teske case the sentencing judge’s reasons together with the Court of Appeal reasons for the timeperiod of parole ineligibility, one appreciates the difficulty faced by trial and appellate courts in determining a fit and proper sentence.One gathers a further understanding of the complications with sentencing and parole ineligibility when reading Wristen and morerecently Czibulka. Conclusion of Reasons for Parole Ineligibility for Second Degree Murder

[ 78 ] At the end of the sentencing analysis, the sentencing court attempts to align the facts of the case before it to the principles of sentencing principles and guidance from our senior levels of courts in Canada so that there is a consistency in sentences. In doing so, I find that my outline above of the factors to be considered for Mr. Borbely bring me to the conclusion that Ian Borbely is not at the low end of the scale for parole ineligibility but rather he is over the high end.

I have taken into account his character, the nature of the offence and the circumstances surrounding its commission in my analysis. [ 79 ] The bottom line is that this decision deals with more than the act of ending a person’s life with no demonstration of remorse for having done so. Ian Borbely demonstrated extensive disrespect for the deceased woman shown by carving up her body, placing the parts in plastic pails, concealing the body parts for over 3 years, leaving people with the impression that Ms.

Collins simply ran away with another male person, continuing to take her disability pension funds directly deposited into her bank account, and using funds from the bank account for his own person use. [ 80 ] The cases I have referenced reflect how courts have assessed sentences with the murder of a spouse taking into account varying degrees of conduct by the accused. Mr. Borbely is not in the usual category. He has acted above and beyond the range of 12-15 years without parole eligibility with his actions that I have outlined.

There is no easy way to say that he has demonstrated his dark side by not caring about Samantha Joan Collins at all both in life and in death. He has been found guilty of killing her in a forceful way. Further, Mr. Borbely has been found guilty of offering a great indignity to the human remains of the woman who was his partner. His character, the manner of perpetrating these crimes and the very nature of the offences all lead to a conclusion that a greater than normal custodial period of time prior to parole eligibility should apply. [ 81 ] Mr. Borbely, the sentence for the second degree murder of Ms.

Collins is life imprisonment without parole eligibility for 17 years. You are not eligible for parole until May 2, 2028. However, after serving at least 15 years, you may apply under

section 745.6 of the Criminal Code for a reduction in the number of years of imprisonment without eligibility for parole. If the jury hearing the application reduces the period of parole eligibility, you may then make an application for parole under the Corrections and Conditional Release Act at the end of the reduced period.

Conclusion of the Sentence for Count 2 for Offering an Indignity to the Human Remains of Samantha Joan Collins [ 82 ] The sentence for count 2 of offering an indignity to the human remains of Samantha Joan Collins is the maximum of 5 years which is a sentence concurrent to the life sentence for second degree murder. The outline previously made in these reasons of sentencing principles for specific deterrence, general deterrence, rehabilitation, mitigating factors and aggravating factors all come into play here.

The heinous nature of the dismemberment and secretion of the body parts are extreme and warrant a significant sanction. Additional Orders [ 83 ] There will be an order pursuant to

section 109 of the Criminal Code of Canada prohibiting Mr. Borbely from possessing any firearm, cross-bow, restricted weapon, ammunition, and explosive substance for life. [ 84 ] There will be a DNA order pursuant to

section 487.051 of the Criminal Code of Canada . This order is made because murder is a primary designated offence. Justice B. Glass Released: June 7, 2013