ONTARIO MAN CONVICTED OF SETTING MISTRESS ON FIRE WINS A NEW TRIAL.
Evidence gaps cited by appeals court in 2011 incident
The conviction against an Ontario man found guilty of dousing his girlfriend in gasoline and setting her ablaze has been overturned because significant questions about the evidence went unanswered while inappropriate opinions from police were allowed.
The incident in a Niagara parking lot in 2011 was horrific.
Passersby said it looked “like a zombie movie” when the woman slowly moved toward the road, burnt from her knees to her shoulders.
Mark Borel, 51 when convicted in 2014 of attempted murder, maintained his innocence, and now has a new shot at proving it.
Borel and the woman, who was 13 years his junior, were both married at the time, but not to each other. Their 10-month affair was rocky. He was controlling and sometimes violent and she had a drinking problem, court heard.
In the summer of 2011, they arranged to meet in the parking lot of a community centre in Lincoln, Ont., 40 kilometres west of Niagara Falls.
Sometime after they arrived in separate vehicles, Borel called 911 asking for an ambulance. Emergency crews found a woman on the ground in the parking lot badly burned. Court heard she had serious burns to 60 per cent of her body and smelled of gasoline.
Four days later, Borel was arrested for attempted murder. He consistently denied setting her on fire.
Borel was found guilty by a jury and then sentenced to almost 20 years in prison in 2014 by Ontario Superior Court Justice Linda Walters.
Both the woman and Borel testified at the trial. Each said they were trying to end the relationship. Court read threatening messages from Borel’s email account to her, including one saying “wait till the real fireworks start.” He denied sending them.
The woman told court that in the parking lot Borel said he had a “present” for her and went to his car and returned with a jug of gasoline and started “swishing” gas at her. He then lit a match and threw it at her. He swore at her as he watched her burn, she said.
Borel denied that. He told court they argued in the parking lot because she had been drinking. He told her she shouldn’t drink and drive and if she tried to drive away he would call police.
He said he went to his car to make a call when he heard her screaming. He turned and saw her enter a trail at the edge of the parking lot. He ran after her. He found her burning and rolling on the ground. He said he had no idea how she was burnt.
Court heard that when police arrived at the scene, Borel handed an officer a set of keys, a lighter and matches and said they were hers and were in her hand, court heard.
Police found no evidence of a gas container. Borel’s clothes had no trace of gas on them and his car did not smell of gas. But there was a strong smell of gas in the woman’s car and tests found gas on her driver’s seat, in her purse and in her car’s cup holder.
The appeal court found problems with how evidence from three witnesses were handled at trial.
Court heard from an ambulance attendant who said she spoke to the woman in the back of the ambulance on the way to hospital. She asked who did this to her and offered categories, such as aunt, uncle and husband. The woman shook her head at each option but nodded when she said boyfriend.
The prosecution also led inappropriate opinion evidence from police witnesses: the detective who interrogated Borel and the 911 dispatcher who took his call.
Their testimony should have been curtailed by the trial judge and the jury instructed on what and how it should be used, the appeal court said.
The law can tolerate some errors if a case is so overwhelming the mistakes wouldn’t make a difference. That isn’t the case here.
“The errors here were not harmless nor trivial,” Justice Ian Nordheimer wrote on behalf of a threejudge panel. “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.
“There are questions that arise on the evidence, with which the jury would have had to contend, in arriving at their verdict beyond a reasonable doubt.”
He asked some himself: Why was there gasoline inside the cup holder of the woman’s car? If Borel threw gas on her, how did he not get any on his clothes or on the ground? What happened to the jug she said he brought the gas in? How did her shoes, blood and burned hair get on the trail across the parking lot?
Those questions may have been enough for at least one juror to have reasonable doubt, the court said.
Borel has been in custody since his trial.
“I’m pleased with the result,” said Philip Norton, Borel’s lawyer. “The Court of Appeal recognized the legal errors that happened and dealt with them.”
Norton said a decision on seeking bail has not yet been made.