Mark Borel (“Borel”) has had his attempted murder conviction set aside and granted a new trial by the Ontario Court of Appeal.
The appeal court overturned Borel’s conviction where he was found guilty of dousing his girlfriend in gasoline and setting her afire due to problems with how evidence from three witnesses were handled by the trial judge and her instructions to the jury.
THE CRIME IN QUESTION
Borel and the victim began an affair in September 2010. Although the victim told her husband that the affair was over in December 2010, she continued to see Borel and began drinking more heavily.
On July 23, 2011 around 6:00pm, the victim lied to her husband by telling him that she was going shopping and then to a friend’s house when she was really going to meet up with Borel. The two met in the parking lot of a community centre. At approximately 6:45 pm, Borel called 911. Police and ambulance arrived to find the victim lying on the ground in the parking lot badly burned and smelling of gasoline.
Borel initially told paramedics that he was driving past the community centre and noticed his friend in the parking lot. In contrast, Borel told the police officer at the scene that he did not know the victim. Borel also gave a video taped statement later that evening at the police station and said that he knew the victim and that they had arranged to meet that evening.
Four days later, Borel was arrested and charged with attempted murder. Borel always maintained that he did not douse the victim with gasoline and set her on fire.
At the trial, both Borel and the victim gave conflicting stories of the events that transpired on the night of the alleged incident. According to the victim, who admitted that she had been drinking before she met him in the parking lot, Borel said he had a present for her in his car and showed her a black jug full of gas and swished the gas at her. He then allegedly took a match out of his pocket and threw it at her, setting her on fire.
According to testimony by Borel, when they met in the parking lot they argued about the fact that the victim had been drinking and driving. Borel said that if she wouldn’t take a ride from him or someone else, he was going to the call the police. He proceeded to his car to make a call and then he heard a scream. He found the victim screaming loudly, lying face down, rolling around on the ground and she appeared to be burning. He asked who did this to her and she responded “nobody”. He then called 911.
EVIDENTIARY ISSUES ON APPEAL
At the trial, the Crown prosecutor led evidence from the 911 dispatcher, homicide detective and EMS attendant. At his appeal Borel’s counsel argued that such evidence was admitted by the trial judge in error and the jury was not properly instructed on this evidence.
The issues before the appellate court included:
- The trial judge erred in admitting opinion and demeanor evidence of the 911 dispatcher and in failing to give appropriate instructions to the jury regarding this evidence;
- The trial judge erred in admitting opinion and demeanor evidence of the homicide detective and in failing to give appropriate instructions to the jury regarding this evidence; and
- The trial judge erred in admitting statements that the victim made to EMS personnel during the ambulance ride to the hospital and in failing to give appropriate instructions to the jury as to the proper use of those statements.
With respect to evidence given by the homicide detective, speaking on behalf of the three judges hearing the appeal, Justice Nordheimer stated:
For a jury to hear, from what appeared to them to be a highly experienced police officer, evidence that the appellant was in essence, acting like a person who was guilty of the offence, was highly prejudicial. It was only made worse by the failure of the trial judge to give any form of limiting instruction on its use. The trial judge ought to have told the jury to ignore the detective’s opinions.
According to Justice Nordheimer:
The errors here were not harmless nor trivial. I do not dispute that the case against the appellant was a strong one, but it does not rise to the very high level of being overwhelming.
The appeal court found that there were still a number of questions that were left unanswered, including:
- Why was there gasoline inside the cup holder of the victim’s car?
- Why did Borel not have any gas on his clothes or on the ground?
- What happened to the jug of gas?
These questions may have been enough for at least one juror to have found reasonable doubt that Borel committed the crime of attempted murder.
Given the evidentiary errors made by the trial judge, the appeal court concluded that the fairness of the trial was “infected” and ordered a new trial. The appeal was allowed, the conviction was set aside and a new trial was ordered.
We will continue to follow this case as it proceeds through the courts and will report on any developments in this blog.
In the meantime, if you have any questions regarding criminal charges laid against you or your legal rights, please contact the experienced criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947. Our skilled criminal lawyers have significant experience defending a wide range of criminal charges and protecting our clients’ rights. We offer a 24-hour phone service to protect your rights and to ensure that you have access to justice at all times.