Her Majesty the Queen v. Edelenbos [Indexed as: R. v. Edelenbos]
71 O.R. (3d) 698
[2004] O.J. No. 2810
Docket No. C35734
Court of Appeal for Ontario,
Cronk, Armstrong and Lang JJ.A.
July 5, 2004
Criminal law -- Evidence -- Character evidence -- Trial judge erring in permitting Crown to lead evidence of victim's good character beyond what was necessary to rebut certain statements by accused -- Case against accused so overwhelming that any new trial would inevitably result in conviction -- Trial judge's error not resulting in miscarriage [page699] of justice -- Curative proviso applying -- Criminal Code, R.S.C. 1985, c. C- 46, s. 686(1)(b)(iii).
Criminal law -- Evidence -- Witnesses -- Competence and compellability -- Accused arguing rule regarding spousal incompetence should be extended to common law spouses to prevent his common law spouse from testifying against him -- Trial judge did not err in ruling common law spouse competent to testify -- Witness would not have been prevented from testifying even if spousal incompetence extended to common law spouses as she had severed spousal relationship with the accused before trial -- Appeal from conviction for first degree murder dismissed.
Criminal law -- Trial -- Charge to jury -- Murder -- Trial judge providing jury with nuanced definition of "likely" in context of phrase "likely to cause . . . death" in s. 229 of Criminal Code -- Definition unnecessary and potentially confusing -- Trial judge who intends to provide jury with definition of everyday word should advise counsel during pre- charge conference and permit counsel to make submissions -- Definition not prejudicing defence in circumstances of this case -- Appeal from conviction dismissed -- Criminal Code, R.S.C. 1985, c. C-46, s. 229.
The accused was charged with first degree murder. He admitted that he sexually assaulted and strangled the victim at her home, but claimed that he did not intend to kill her and only strangled her to stop her from screaming. The Crown's case against the accused was strong. The principal issue for determination at trial was whether the Crown had established beyond a reasonable doubt that the accused intended to cause the victim bodily harm that he knew was likely to cause her death, and was reckless whether death ensued or not. The trial judge's charge to the jury followed the accepted pattern regarding the intent required for murder and the difference between murder and manslaughter. However, the trial judge gave the jury a novel explanation of the meaning of "likely" in the phrase "means to cause bodily harm that he knows is likely to cause . . . death" in s. 229 of the Criminal Code. The accused was convicted of first degree murder. He appealed, arguing that the trial judge erred in defining the word "likely" in his charge to the jury, in holding that the accused's common law wife was competent to testify for the Crown and in admitting evidence of the good character of the deceased.
Held, the appeal should be dismissed.
It was unnecessary and potentially confusing to the jury for the trial judge to engage in a nuanced discussion of the precise meaning of "likely" in the circumstances of this trial. The facts did not call for an analysis of where "likely" stands on the spectrum from possible to probable. The jury in this case would have given the word "likely" its common sense plain language meaning. Where the jury does not need an analysis of a commonplace everyday word, the trial judge should avoid entering into the possible shades of its meaning. There may be cases where the trial judge may feel that the circumstances call for elaboration or definition. If so, before providing such an elaboration or definition, particularly one that has apparently not been used in a Canadian context, the trial judge should so advise counsel during the pre-charge conference. Each counsel should then be given an opportunity to make submissions. No such opportunity was given in this case. The trial judge did not advise counsel about his research in the area or his intention to depart from the standard charge. However, the definition given by the trial judge to the jury did not operate to the prejudice of the defence for a number of reasons, including the relative brevity of that part of the charge and the fact [page700] that the trial judge's instructions following the definition of "likely" made the Crown's burden with respect to intent very clear. Reading the charge as a whole, the jury would have appreciated that the Crown was obliged to prove the accused's subjective intent to cause bodily harm that was likely to cause the victim's death.
The trial judge did not err in holding that the accused's common law spouse was competent to testify for the Crown. She had permanently terminated her relationship with the accused by the time she testified and was no longer his common law spouse. Thus, even if the common law rule of spousal incompetence was extended to common law spouses, it would not apply to this witness.
In his initial statement to the police, the accused said that the victim had a drinking problem and that she had planned to go out later on the night of the killing. Neither statement was true. The Crown called the victim's sister, who said that the victim rarely drank alcohol and that she would likely have tidied her dinner dishes if she had planned on going out later that evening. The sister also described the victim's non- confrontational nature and spoke of the victim as a dedicated and committed teacher who was interested in pursuing a second career in holistic medicine. She described how the victim had cared for their mother during her dying days, the victim's prolonged grief over her mother's death, and the fact that the victim had died in a room which was named in honour of her mother. The trial judge did not err in admitting evidence that rebutted the accused's statements about the victim's alleged drinking problem and her plans for later that evening. That evidence was relevant to prove the falsity of the accused's statement to the police and was circumstantial evidence of his guilt. However, the trial judge erred in admitting irrelevant evidence and evidence going solely to the issue of the victim's good character. That evidence was prejudicial to the accused. Further, once the evidence was admitted, the jury was not charged as to the purposes, if any, for which it could be used, or cautioned against its use. However, this was an appropriate case for the application of the curative proviso. The Crown's case against the accused was formidable, and his claim that his only purpose in choking the victim was to stop her screaming was belied by the forensic evidence. Assuming that a trial proceeded without the admission of the good character evidence, the Crown had met its onus of demonstrating that the remainder of the evidence about the accused's intent was so overwhelming that any new trial would inevitably result in the same conviction. There was no miscarriage of justice.
APPEAL from a conviction entered by McIssac J., sitting with a jury, on May 25, 2000, for first degree murder.
Cases referred to R. v. Cooper, 1993 147 (SCC), [1993] 1 S.C.R. 146, 103 Nfld. & P.E.I.R. 209, 146 N.R. 367, 326 A.P.R. 209, 78 C.C.C. (3d) 289, 18 C.R. (4th) 1; R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823, 160 C.C.C. (3d) 1; R. v. Piri, [1987] N.Z.L.R. 66; R. v. Salituro, 1991 17 (SCC), [1991] 3 S.C.R. 654, 131 N.R. 161, 8 C.R.R. (2d) 173, 68 C.C.C. (3d) 289, 9 C.R. (4th) 324; R. v. W. (L.K.) (1999), 1999 3791 (ON CA), 138 C.C.C. (3d) 449, [1999] O.J. No. 3575 (C.A.) Statutes referred to Canadian Charter of Rights and Freedoms, s. 15 Criminal Code, R.S.C. 1985, c. C-46, ss. 229, 686 Authorities referred to Grant, I., D. Chunn and C. Boyle, The Law of Homicide, looseleaf (Scarborough: Carswell, 1994) Watt, D., Ontario Specimen Jury Instructions (Criminal) (Toronto: Carswell, 2002) [page701]
Susan M. Chapman, for respondent. David E. Harris, for appellant.
The judgment of the court was delivered by
LANG J.A.: --
Introduction
1After a 40-day jury trial, Mr. Edelenbos was convicted of the first degree murder of Eileen Coffey. At the beginning of trial, Mr. Edelenbos admitted that he had gone to Ms. Coffey's home on January 5, 1998, and sexually assaulted and strangled her. His defence to murder was one of intention: he said that he strangled Ms. Coffey to stop her from screaming and that he did not intend to kill her, and should therefore be convicted of manslaughter.
2The requirement for subjective intent for murder is set out in s. 229 of the Criminal Code, R.S.C. 1985, c. C-46. The Crown must either establish that the accused intended to cause the victim's death or meant to cause bodily harm "that he knows is likely to cause his [or her] death, and is reckless whether death ensues or not".
3Mr. Edelenbos appeals his conviction submitting that the trial judge erred in:
(1) defining the word "likely" in his jury charge regarding the intent requirement for murder;
(2) holding that Mr. Edelenbos's common law wife was competent to testify for the Crown; and
(3) admitting evidence of the good character of the deceased.
4I would not give effect to any of these grounds of appeal. Accordingly, I would dismiss the appeal.
Facts
5Mr. Edelenbos knew Ms. Coffey through his father, who had dated a woman boarding at Ms. Coffey's home. Early on the morning of January 5, 1998, knowing that Ms. Coffey's boarder was out of town, Mr. Edelenbos went to her home. He did not try to enter. Instead, he went to his job at the local landfill. During [page702] his shift, and immediately afterwards, he consumed some rye and beer. He returned to Ms. Coffey's home at approximately 5:00 p.m. He gained entry, sexually assaulted Ms. Coffey, hit her in the face, broke her nose and strangled her. Mr. Edelenbos testified that he put his hands around Ms. Coffey's neck to stop her screaming, not to kill her.
6Afterwards, Mr. Edelenbos tried to eliminate any evidence of the killing. He washed all blood from the area. He wrapped Ms. Coffey's body in a carpet and put it in the back of his truck. He then returned to the house to move a La-Z-Boy recliner onto Ms. Coffey's driveway. He accomplished this meticulous clean-up over a prolonged period of time: his truck was in Ms. Coffey's driveway for almost three hours. The home appeared to be immaculate; however, with special equipment, the forensic team later detected blood, both in the home and in the truck.
7Around 8:30 p.m., with the body in his truck, Mr. Edelenbos drove home to his common law wife, Bernadette Wadden, and their six-month-old child. At trial, Ms. Wadden testified that on his arrival, Mr. Edelenbos appeared to have been drinking, but was not drunk. She chastised him because drinking alcohol violated the terms of his parole. Shortly after his return home, Ms. Wadden let him feed their child, indicating that she did not feel that Mr. Edelenbos was significantly affected by his alcohol intake. Afterwards, Mr. Edelenbos had a bath and went to bed.
8Mr. Edelenbos got up a few hours later. He drove to the landfill, where he dumped Ms. Coffey's body. He used the landfill's power washer to clean the back of his truck. He then returned to Ms. Coffey's residence, picked up the La-Z-Boy recliner from the driveway, returned to the landfill and dumped the recliner. Various witnesses, mostly co-workers, testified at trial about Mr. Edelenbos's disposal efforts.
9The next day, in an attempt to see if he was under suspicion, Mr. Edelenbos tried to report to his parole officer. Later, he called his parole officer to say he had visited Ms. Coffey the night she disappeared. Mr. Edelenbos also went to the police station and provided a videotaped statement, which, at trial, he admitted was false. At the time Mr. Edelenbos made his statement, the police noted marks on his neck, elbow, and right wrist. He remained under police surveillance until his arrest. Over the next two months, the police located both Ms. Coffey's body and her recliner at the landfill.
10Despite the damage done to the body at the landfill, an autopsy identified the cause of death as manual strangulation. As well, blunt force injuries to Ms. Coffey's face and neck were detected and it was determined that her nose had been broken. The jury [page703] heard evidence about the dynamics and effects of strangulation. Ms. Coffey's neck injuries fell at the more severe end of the spectrum.
11The Crown's case against Mr. Edelenbos was strong. The principal issue for determination at trial was whether the Crown had established beyond a reasonable doubt that Mr. Edelenbos intended to cause Ms. Coffey bodily harm that he knew was likely to cause her death, and was reckless whether death ensued or not. It is in this context that we must consider the trial judge's alleged errors.
Analysis
(1) Did the trial judge's charge on the meaning of "likely" constitute reversible error?
12For the most part, the trial judge's charge to the jury followed the accepted pattern regarding the intent required for murder, and the difference between murder and manslaughter. However, the trial judge gave the jury a novel explanation of the meaning in s. 229 of "likely" in the clause "means to cause him bodily harm that he knows is likely to cause his death".
13As applicable in this case, the current Ontario Specimen Jury Instructions (Criminal) (Toronto: Carswell, 2002), prepared by Watt J. of the Ontario Superior Court of Justice (the "Watt Charges"), would have had the judge tell the jury:
The crime of murder requires proof of a particular state of mind. For an unlawful killing to be murder, Crown counsel must prove that Mr. Edelenbos meant either to kill Ms. Coffey or meant to cause Ms. Coffey bodily harm that Mr. Edelenbos knew was likely to kill Ms. Coffey, and was reckless whether Ms. Coffey died or not. The Crown does not have to prove both. One is enough. All of you do not have to agree on the same state of mind, as long as everyone is sure that one of the required states of mind has been proven beyond a reasonable doubt.
If Mr. Edelenbos did not mean to do either, Mr. Edelenbos committed manslaughter.
(Emphasis in original)
Although the Watt Charges were not distributed until 2002, the charge often used in 2000 was similar in content. It is relevant to observe that the Watt Charges contain no definition of "likely".
14Instead of using the standard charge however, the trial judge gave the following definition of "likely":
Likely means more than a possibility. It involves a substantial degree of probability. However, it does not mean more likely than not in the mathematical sense of 51 percent. The phrase is meant to convey the notion of a substantial or real chance, as distinct from a mere possibility. Likely to cause death means could well cause death. A fine calculation that the odds were against death, although the risk was plainly there, is no defence. By [page704] using the word "likely" the legislators were trying to get at killings where the risk was subjectively so appreciable that to engage in the conduct would be seen as a virtual equivalent of an intentional killing. A likelihood is a real risk, a substantial risk or something that might well happen.
15In choosing this definition, the trial judge relied on Isabel Grant, Dorothy Chunn, and Christine Boyle in The Law of Homicide, looseleaf (Scarborough: Carswell, 1994). They argue, at pp. 4-44 to 4-46 that, in some circumstances, the difference between knowing that death is "likely" and that death is "possible" distinguishes murder from manslaughter. They look to foreign case law to support this approach, particularly the New Zealand Court of Appeal decision in R. v. Piri, [1987] N.Z.L.R. 66.
16No Canadian cases were brought to our attention that discuss the meaning of "likely" in the context of s. 229. It would seem that the need for such a discussion has probably not arisen. In my view, the need did not arise in this case. It was unnecessary and potentially confusing to the jury for the trial judge to engage in a nuanced discussion of the precise meaning of "likely" in the circumstances of this trial. The facts simply did not call for an analysis of where "likely" stands on the spectrum from possible to probable. The jury in this case would have given the word "likely" its common sense plain language meaning, as other juries have across Canada.
17The purpose of the Ontario Specimen Criminal Jury Trial Project, chaired by Watt J., was to help judges draft jury instructions in plain language. The resulting Watt Charges do not include a definition of "likely" in the standard murder instructions. In my view, this is because juries are able to apply "likely", in accordance with its established ordinary meaning, to the particular context.
18Where the jury does not need an analysis of a commonplace everyday word, the trial judge should avoid entering into the possible shades of its meaning. I recognize, however, that there may be cases where the trial judge may feel that the circumstances call for elaboration or definition. If so, before providing such an elaboration or definition, particularly one that has apparently not been used in a Canadian context, the trial judge should so advise counsel during the pre-charge conference. Each counsel should then be given an opportunity to make submissions.
19No such opportunity was given in this case. The trial judge did not advise counsel about his research in the area or his intention to depart from the standard charge. At the conclusion of the charge, defence counsel objected to the instruction on the meaning of "likely". The trial judge then explained his reasoning. While defence counsel, at that time, did not persist with his [page705] objection, he simply was not given an adequate opportunity to consider and research the matter. In any event, the absence of an objection is not fatal to an appeal.
20As I have said, the circumstances of this case did not require an analysis of the meaning of "likely"; indeed, in my view, it would be a most exceptional situation that would ever require such an analysis. The issue here, therefore, is whether the definition given by the judge to the jury operated to the prejudice of the defence. I conclude that it did not, for five reasons.
21First, the challenged instruction must be considered in context. It comprised three-quarters of a page in a succinct 45-page charge. The jury was not given a copy of the jury charge to take with them into their deliberations. Accordingly, the jury would not have laboured over the precise words of the instruction. Rather, it would have been left with an impression of the judge's definition of "likely".
22Second, in the course of his instruction, the judge referred to "likely" as being a "substantial degree of probability", not a "mere possibility", a "substantial risk", and on two occasions, as "something that might well happen". While he spoke of a "real chance" or "real risk", he also said murder was conduct virtually "equivalent to an intentional killing", a definition consistent with the authorities: see R. v. Cooper, 1993 147 (SCC), [1993] 1 S.C.R. 146, 78 C.C.C. (3d) 289.
23Third, during the charge, a copy of the relevant provision of the Criminal Code was projected onto a screen for the jury, including its reference to "likely" to cause death. That provision does not include a definition of "likely". The trial judge provided the jury with a copy of s. 229 when they retired for their deliberations, while he did not give them a copy of his jury charge.
24Fourth, the trial judge himself used the word "likely" repeatedly in his charge, showing that he assumed the term did not need repeated or complex analysis. After he provided the definition of "likely", the trial judge referred simply to "likely" to cause death on 12 further occasions. As well, immediately after the definition, the trial judge instructed the jury that "recklessness" was "redundant" or "almost an afterthought". He said that"if the Crown establishes the first two elements beyond a reasonable doubt -- that an accused person intended to cause bodily harm and that he or she knew that it would likely cause death then this by itself, or these two elements by themselves, meet the test for recklessness."
25Finally, the trial judge's instructions following the definition of "likely" made the Crown's burden with respect to intent very clear. The trial judge instructed the jury that the critical issue was whether the Crown had established beyond a reasonable [page706] doubt that Mr. Edelenbos meant to cause Ms. Coffey's death or meant to cause her bodily harm that he knew was "likely" to cause her death. He canvassed the evidence of the effect of Mr. Edelenbos's inebriation on the capacity to form intent and the need for the Crown to prove Mr. Edelenbos's appropriate level of subjective intent.
26Quite rightly, he omitted the part of the standard jury charge that says it may be inferred, as a matter of common sense, that a sane and sober person usually intends to cause predictable consequences. There was evidence that Mr. Edelenbos had been drinking. The trial judge said:
The critical issue in this trial is whether or not the prosecutor has established beyond a reasonable doubt that Martin Edelenbos either meant to cause the death of Eileen Coffey, or meant to cause her bodily harm that he knew was likely to cause her death. The intoxicating effect of alcohol is well known. Intoxication which causes a person to cast off restraint and act in a manner in which he or she would not have acted if sober affords no excuse for the commission of an offence while in that state if he or she had the intent required to constitute the offence. A drunken intent is nonetheless an intent. The offence of murder is not committed if the accused lacked the intent to either cause the death of Eileen Coffey, or to cause her bodily harm that he knew was likely to cause her death. Intoxication could compromise the formation of:
The intent to cause death;
The intent to cause bodily harm; or
The appreciation that the intended bodily harm was likely to cause death.
The Crown is entitled to prove either intent beyond a reasonable doubt. If the intent to cause bodily harm for the second type of murder has been so proved, then the Crown must go on and also prove beyond a reasonable doubt that he knew that such bodily harm was likely to cause death. In considering whether the Crown has proved beyond a reasonable doubt either of these scenarios you should take into account Mr. Edelenbos's consumption of alcohol, along with the other facts which throw light on his state of mind at the time the offence was allegedly committed.
27The trial judge reviewed the evidence about alcohol consumption and said:
Once he assaulted Ms. Coffey he only meant to stop her screaming when he put his hands, or hand on her throat. He denies either intending to kill her, or intending to cause her bodily harm. He denies any appreciation that his assault was likely to cause her death. He swore that the lethal nature of his assault was not evident to him because of the extent of his intoxication. He insists that the only intent he had was to stop her from screaming, despite his concession in the sober confines of this courtroom that the obvious purpose of putting one's hands around another's throat is to stop them from breathing.
To prove either the intent to cause death, or the intent to cause bodily harm that Mr. Edelenbos knew was likely to cause death, the Crown relies on [expert evidence]. [page707]
28The judge went on to describe the expert evidence about the severity of the injuries to Ms. Coffey and the evidence that Mr. Edelenbos was in sufficient control to carry out a thorough clean-up after the killing.
29Taking into consideration the instructions given by the trial judge after the definition of "likely", and reading the charge as a whole, I conclude that the jury would have appreciated that the Crown was obliged to prove Mr. Edelenbos's subjective intent to cause bodily harm that was likely to cause Ms. Coffey's death.
30Accordingly, I would not give effect to this ground of appeal.
(2) Did the trial judge err in holding that Mr. Edelenbos's common law wife was competent to testify for the Crown?
31Over the objections of the defence, Mr. Edelenbos's common law wife, Bernadette Wadden, testified for the Crown. She said that Mr. Edelenbos was not significantly inebriated when he came home on the evening of the killing. She also testified that Mr. Edelenbos later admitted to her that he took Ms. Coffey's body to the landfill.
32It was the defence position that the judge should have prohibited Ms. Wadden from testifying for the Crown by extending the common law rule of spousal incompetence for married persons to common law spouses. By doing so, the trial judge would have treated common law spouses on an equal footing with married spouses.
33The trial judge agreed that, in violation of s. 15 of the Canadian Charter of Rights and Freedoms, the common law rule created inequality between married and common law spouses. He did not, however, find that common law spouses, like married spouses, should therefore be prohibited from testifying for the Crown. Instead, he struck down the rule of spousal incompetence in its entirety, holding that both married and common law spouses should be equally competent to testify against their spouses on behalf of the Crown.
34The trial judge correctly concluded that Ms. Wadden was competent to testify for the Crown.
35The common law rule of spousal incompetence to testify has been judicially adapted to reflect society's changing values. For instance, married persons may now testify against their spouses if they are irreconcilably separated. In R. v. Salituro, 1991 17 (SCC), [1991] 3 S.C.R. 654, 68 C.C.C. (3d) 289, the Supreme of Court of Canada recognized that, in such circumstances, there is no longer any matrimonial harmony to protect. [page708]
36The court in Salituro, however, emphasized the need to balance judicial interpretation of the common law rule with legislative law reform. Iacobucci J. declined to abolish the rule of spousal incompetence in its entirety, saying, at pp. 677-78 S.C.R., pp. 306-07 C.C.C.:
Absent parliamentary intervention, I would conclude that changing the common law rule to make spouses who are irreconcilably separated competent witnesses for the prosecution would be appropriate. Although the principles upon which this change is based would appear to favour abolishing the rule entirely and making all spouses competent witnesses under all circumstances, policy considerations and uncertainty as to the consequences of such a change suggest that a more cautious approach is appropriate. The parties before us did not argue for such a change, and in my opinion a far-reaching change of this kind is best left to the legislature. However, expanding the exceptions to the common law rule to include irreconcilably separated spouses is precisely the kind of incremental change which the courts can and should make. The courts are the custodians of the common law, and it is their duty to see that the common law reflects the emerging needs and values of our society.
37Thirteen years later, there has been no legislative reconsideration of the common law rule. Indeed, it is increasingly criticized as archaic. Nonetheless, this case did not require judicial intervention on this point.
38Such intervention was unnecessary because, at the time of her testimony, Ms. Wadden and Mr. Edelenbos were no longer common law spouses. At the beginning of trial, on March 6, 2000, Ms. Wadden terminated her relationship with Mr. Edelenbos when she learned that he admitted to sexually assaulting and killing Ms. Coffey. On her uncontradicted evidence, she and Mr. Edelenbos were thereafter irreconcilably separated. On May 2, 2000, when she testified for the Crown, Ms. Wadden waived any spousal privilege. Thus, even if the common law rule of spousal incompetence was extended to common law spouses, it would not apply to Ms. Wadden. Ms. Wadden was competent to testify for the Crown. The trial judge was correct in permitting her to do so.
(3) Did the trial judge err in admitting evidence of the good character of the deceased?
39Early in the trial, the Crown called Ms. Coffey's sister, Pauline Coffey, to testify about the deceased's character and habits, including that Ms. Coffey rarely drank alcohol, never screamed, and was a woman of exemplary character and disposition who led an ordered life.
40The defence submits that the trial judge erred in admitting evidence as to Ms. Coffey's character and disposition. This good character evidence, the defence argues, was both irrelevant and seriously prejudicial to Mr. Edelenbos. [page709]
41The Crown submits that the trial judge properly exercised his discretion in allowing this evidence, much of which was relevant either to Mr. Edelenbos's credibility or to the issue of his intent.
(i) The evidence
42In his initial statement to the police, Mr. Edelenbos said that Ms. Coffey had a drinking problem and that she had planned to go out later on the night of the killing. Neither statement was true.
43On these issues, the Crown called Ms. Coffey's sister, Pauline, who said Ms. Coffey rarely drank alcohol and that she would have likely tidied her dinner dishes if she had planned on going out later in the evening. She also described Ms. Coffey's non-confrontational nature and her refusal to participate in a confrontational labour strike. In testifying about this peaceful disposition, Pauline Coffey said she never saw her sister act confrontationally or aggressively. To the contrary, she was more likely to cry when faced with aggression.
44She spoke of her sister as a dedicated and committed teacher, a person who was a "giver", and a person who -- nearing retirement -- was interested in pursuing a second career in holistic medicine.
45She also gave biographical evidence about her deceased sister, evidence about the care her sister gave to their mother during her dying days, the prolonged grief Ms. Coffey experienced after their mother's death, and the addition to her home of the "Rose" room, so described in honour of their mother, Rose. Pauline Coffey testified that it was in this room that Ms. Coffey died.
46Part way through this character evidence, the defence objected. The trial judge ruled:
I understand the defence objection. However, I am persuaded that for the purposes articulated by Mr. Flosman, specifically to put the personality of Eileen Coffey before the jury as a circumstance for them to infer that she reacted or probably would have reacted in a certain manner to confrontation with Mr. Edelenbos, is, in my opinion, a critical issue for assessment by the jury. I am satisfied that the potential prejudice of the evidence is outweighed by its probative value.
I would instruct Mr. Flosman, however, to be discreet and be careful in relation to how that issue is approached, because you could very well go over the line that would cause me to revisit this ruling.
47At the end of this ruling, the Crown said that the evidence was also relevant to refute Mr. Edelenbos's statement that Ms. Coffey had a drinking problem. The trial judge responded with the following addendum to his ruling: [page710]
Well, that is an issue that has obviously been raised and the Crown has to deal with it and I see that point as being a legitimate one that has to be canvassed as well. But, as I indicated, this could easily go over into the area where its probative value could be outweighed by prejudice and I just ask counsel to be careful in the questions.
(ii) Analysis
48The trial judge did not err in admitting evidence that rebutted Mr. Edelenbos's statements about Ms. Coffey's alleged drinking problem and her plans for later that evening. That evidence was relevant to prove the falsity of the appellant's statement to the police and was circumstantial evidence of his guilt.
49The trial judge erred, however, in admitting irrelevant evidence and evidence going solely to the issue of Ms. Coffey's good character. In particular, the evidence about care given to her mother and her reaction to her mother's death, including her addition of the "Rose" room, was irrelevant. So too was it irrelevant that Ms. Coffey had been a dedicated teacher interested in holistic medicine. Further, evidence about Ms. Coffey's generally non-confrontational character was not probative of how she would have reacted to an extraordinary series of events, namely, Mr. Edelenbos's unexpected, violent, and unprovoked sexual and physical assaults.
50This evidence was prejudicial to Mr. Edelenbos. Further, once the evidence was admitted, the jury was not charged as to the purposes, if any, for which it could be used, or cautioned against its use.
51The defence argues that the prejudicial effect of this good character evidence with respect to the victim was exacerbated by the evidence of Mr. Edelenbos's bad character, including information that he was on parole when he committed this offence. Even though the trial judge cautioned the jury with respect to the use to be made of the latter evidence, the defence argued that Mr. Edelenbos was prejudiced by the evidence of Ms. Coffey's good character when juxtaposed with the evidence of his own bad character.
(iii) Curative proviso
52In light of the improper admission of parts of the good character evidence concerning the deceased, the question arises whether a new trial is required, or whether this is an appropriate case to apply the curative proviso. The answer to this question turns on the seriousness of the prejudice occasioned by the admission of the impugned evidence concerning the deceased.
53Section 686(1)(b)(iii) of the Criminal Code is used in exceptional circumstances to uphold a conviction if the court is "of the opinion that no substantial wrong or miscarriage of justice has occurred". [page711]
54Where the Crown asks this court to apply the proviso, it must establish: "(i) that the error was minor and inconsequential and could not possibly have affected the verdict; or (ii) that although the error was potentially serious, the evidence is so overwhelming that the verdict would inevitably have been the same had the jury been properly instructed": R. v. W. (L.K.), 1999 3791 (ON CA), [1999] O.J. No. 3575, 138 C.C.C. (3d) 449, (C.A.), at para. 95; and see R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823, 160 C.C.C. (3d) 1.
55In the circumstances of this case, the error was more than minor or inconsequential. It may have caused the jury to consider Mr. Edelenbos's actions that night as even more malevolent given Ms. Coffey's quiet and kind disposition. This, in turn, would pose the risk that the jury may have been motivated by sympathy for Ms. Coffey in deciding the case, rather than basing its determination on its assessment of the admissible evidence.
56In my view, it is unlikely in this case that the jury resorted to such prohibited reasoning. I say this for several reasons.
57First, the prejudice occasioned by the error was reduced by the fact that Pauline Coffey's entire testimony took only 70 minutes, was given on the 20th day of a 40-day trial, and was not referenced again during the balance of the trial. Further, Ms. Coffey's kind disposition was obviously irrelevant to the main question that was clearly put to the jury: Mr. Edelenbos' intention. From the outset, this case was only about Mr. Edelenbos's intention at the time of strangling Ms. Coffey.
58Second, while Mr. Edelenbos claimed that his only purpose in choking Ms. Coffey was to stop her screaming, the forensic evidence belied this explanation. That evidence included details about the number and extent of traumatic injuries to her throat and neck area. Those physical injuries fell at the severe end of the spectrum. Mr. Edelenbos's explanation of his efforts to stop Ms. Coffey's screaming made little sense. They were in her detached home and Mr. Edelenbos knew that no one else was in the home.
59Third, the evidence established that Mr. Edelenbos planned the attack on Ms. Coffey. He waited until her boarder was out of town. He stalked her on the morning of the attack. He later gained entry to her home and assaulted her. He knew she could identify him. He admitted that he killed her and, thereafter, hid her body in the landfill.
60Thus, Mr. Edelenbos's admitted conduct resulted in a formidable case for the Crown.
61In addition, on the question of intention, Mr. Edelenbos's primary position at trial rested on the argument that his alcohol [page712] consumption left him unable to form the necessary intent. His conduct, however, which was relevant to his state of mind and his ability to form the requisite intent, said otherwise. He spent several hours in the home thoroughly and efficiently attempting to remove all signs of the crime. He then went home and fed his child. He was not too intoxicated to do so. The jury clearly did not accept that Mr. Edelenbos was so impaired as to be unable to form the requisite intention.
62Finally, the jury was properly charged and clearly told that the issue was the "subjective intent of the attacker" and "what the aggressor had in his or her mind by way of intention at the time of the assault". It was also told about the need for the Crown to prove specifics about the accused's intention. The jury was cautioned at length about the potential effects of alcohol on Mr. Edelenbos's ability to form the requisite intention. The jury obviously concluded, on this overwhelming evidence, that Mr. Edelenbos formed the requisite intent.
63Accordingly, assuming that a trial proceeded without the admission of Pauline Coffey's good character evidence about her sister, it is my view that the Crown has met its onus of demonstrating that the remainder of the evidence about Mr. Edelenbos's intent was so overwhelming that any new trial would inevitably result in the same conviction. No miscarriage of justice has occurred; the proviso applies.
Conclusion
64For the reasons given, I do not accept any of the appellant's three grounds of appeal. In the result, I would dismiss the appeal.
Appeal dismissed.
