COURT OF APPEAL FOR ONTARIO

DATE: 20211027 DOCKET: C63802

Miller, Paciocco and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Margaret Lee Cole Appellant

Counsel: Stephanie DiGiuseppe and Karen Heath, for the appellant John Patton, for the respondent

Heard: June 14 and 18, 2021 by video conference

On appeal from the conviction entered on March 5, 2015 by Justice Guy P. DiTomaso of the Superior Court of Justice, sitting with a jury.

Paciocco J.A.:

OVERVIEW

[1] Richard Humble, 82 years of age, died in a house fire on April 9, 2011.

[2] Strong circumstantial evidence suggested the appellant, Margaret Lee Cole, set the fire to intentionally kill Mr. Humble. The appellant had volunteered to assist Mr. Humble as he convalesced from illness and used false documentation to gain access to his money in the days immediately prior to his death. There was also strong evidence that the appellant prepared a false will on behalf of Mr. Humble, taking steps to do so both before and after he died. Further, the appellant was at Mr. Humble’s home around the time the fire started, under suspicious circumstances. At the time of his death, Mr. Humble had a stupefying drug in his system that had been prescribed to the appellant. In the days preceding his death, the appellant had conducted relevant Internet searches relating to drug overdoses and accessed websites regarding the drug in Mr. Humble’s system. There was also evidence that the appellant had concocted a false alibi. The jury found the appellant guilty of first-degree murder notwithstanding that the cause of the fire could not be determined.

[3] For the reasons below, I agree with the appellant that the trial judge committed legal errors in: (i) admitting extrinsic evidence of her misconduct on a prior occasion; (ii) directing the jury on the use they could make of that extrinsic misconduct evidence; and (iii) instructing the jury with respect to the appellant’s false alibi.

[4] Nonetheless, I am persuaded that no prejudice arose from the latter error, and that, given the strength of the Crown’s case against the appellant, the curative proviso in s. 686(1)(b)(iii) of the Criminal Code, R.S.C. 1985, c. C-46 (the “proviso”) applies to the errors related to the extrinsic misconduct evidence.

[5] Accordingly, I would deny the appeal and uphold the appellant’s first-degree murder conviction.

MATERIAL FACTS

A. THE FIRE

[6] Mr. Humble, who had worked his whole life in the merchant marine on a fire boat, died in a house fire that began shortly after 8:00 a.m. on April 9, 2011. A neighbour, Janice Lovering, saw the fire and called 911 almost immediately, at 8:20 a.m. She then attempted, unsuccessfully, to rescue Mr. Humble, who was calling for help. Two passersby and another neighbour managed to pull Mr. Humble from the house, but he was badly injured. After languishing for hours, he died in hospital.

[7] The cause of the fire was undetermined. Evidence did not support, nor entirely rule out, that the fire was electrical. No evidence of an accelerant was detected. Mr. Humble did not smoke, nor was there any indication that candles could have started the fire. Although burn holes on the floor were consistent with the fire having been caused by the application of flame to furniture, this evidence was too ambiguous to confirm this as the cause of the fire.

[8] A toxicological examination confirmed that Mr. Humble had an unprescribed sedative medication called Alprazolam in his system at the time of his death.

B. THE APPELLANT BECOMES A SUSPECT

[9] Until shortly before his death, Mr. Humble lived alone and independently. By early March 2011, after undergoing knee replacement surgery and suffering a minor post-operative heart attack, he needed assistance but did not have a readily available support network. His only sister, Joyce Humble, lived overseas. Some neighbours were attentive to his needs. The appellant assisted Mr. Humble in securing his groceries and medication, and she arranged support workers for him.

[10] The appellant’s connection to Mr. Humble was through her father, Everett Cole, who was a long-time close friend of Mr. Humble’s. Evidence, including phone records and observations made by neighbours, suggested that the appellant did not play a significant role in Mr. Humble’s life until the final weeks before his death, during which time she was in frequent telephone and in-person contact with him. Although the appellant was assisting Mr. Humble before his hospitalization in late February, he did not list her as a contact person when admitted to the hospital. Yet, in early March, within days of his discharge from the hospital, the appellant was assisting Mr. Humble with his care and medication. She had also become involved in his financial affairs.

[11] Police learned of the appellant’s connection to Mr. Humble shortly after the fire. The appellant told officers that she was his Power of Attorney (“POA”) and confirmed that she had been at his house early in the morning but had left before the fire started. It soon became apparent to the police that the appellant had a personal financial interest in Mr. Humble’s death, and that the alibi she had provided did not withstand investigation. She was ultimately charged with and tried for first-degree murder. She did not testify in her defence at trial.

C. EVIDENCE AT TRIAL

[12] The evidence the Crown relied upon to secure the appellant’s conviction can be conveniently summarized as follows: (i) motive; (ii) the sedative; (iii) alibi; (iv) other suspicious circumstances; and (v) extrinsic evidence of the appellant’s prior misconduct.

(i) Motive Evidence

[13] The appellant was unemployed and in serious financial trouble when the relevant events were unfolding. According to Pamela Morley, a forensic accountant who testified at trial, the appellant’s debts approximated $350,000 as of April 2011.

[14] Evidence was led during the trial that the appellant had taken steps to gain control of Mr. Humble’s financial affairs, stolen a large sum of money from him, and created a false will in his name so that she could benefit from his death. The Crown relied heavily on this evidence as proof of pre-planning, and as circumstantial evidence that she intentionally set the fire that killed Mr. Humble.

[15] At trial, the appellant’s defence counsel (“trial counsel”) did not seriously contest that the appellant had stolen money from Mr. Humble, nor did he take issue with the fact that she purported to gain money from an invalid will. The core of the defence position relating to the financial evidence was that, even if the appellant was a thief, this was not proof that the fire was intentionally started or that she killed Mr. Humble. Nonetheless, I will describe the evidence about the appellant’s involvement in Mr. Humble’s financial affairs in some detail because of the Crown’s reliance on the proviso in the event we find that the trial judge committed legal errors.

Gaining control of Mr. Humble’s financial affairs

[16] On February 28, 2011, while Mr. Humble was hospitalized, the appellant contacted his solicitor, Ms. Chrisandra Firth. The appellant asked Ms. Firth about the status of Mr. Humble’s will and inquired about being appointed on his behalf as his POA. Ms. Firth recommended that the appellant and Mr. Humble visit her office together. The appellant followed up with an email, but no meeting between her and Ms. Firth occurred.

[17] Subsequently, two documents purporting to appoint the appellant as Mr. Humble’s POA were prepared, without Ms. Firth’s assistance: a Power of Attorney for Personal Care (“PAPC”), and a Continuing Power of Attorney for Property (“CPAP”). The documents, dated March 24, 2011, were created using standard forms. A government-issued booklet for preparing POA documents was subsequently found in the appellant’s home during the execution of a search warrant. The standard form pages had been removed.

[18] The forensic document examiner who gave evidence at the trial, Peeter Pajos, concluded that Mr. Humble’s signature on the POA documents was genuine. However, the Crown’s position at trial was that the documents themselves were not. Mr. Pajos concluded, based on handwriting comparison, that the appellant filled in the content on the POA forms. He determined that Mr. Humble’s name was initially misspelled on the PAPC form and corrected with whiteout. Both documents purport to have been witnessed by Ken Auliffe and Dawn Lashbrook. [1] However, Mr. Auliffe and Ms. Lashbrook testified at trial that they did not witness Mr. Humble execute the POA documents. Indeed, they signed as witnesses at the appellant’s request on or about April 11, 2011, after Mr. Humble had already died.

[19] The Crown relied on other circumstantial evidence to support its position that the POA documents were not genuine. On April 1, 2011, the appellant contacted Manulife Financial to inquire about health benefits for Mr. Humble. She faxed Manulife a letter, again bearing Mr. Humble’s genuine signature, authorizing Manulife to speak to her on his behalf and stating that she was Mr. Humble’s PAPC. During the conversation she requested that Manulife send a change of beneficiary form for life insurance. In fact, Mr. Humble did not have life insurance with Manulife, only a benefit plan that reimbursed for covered medical expenses.

[20] Three days later, on April 4, 2011, the appellant forwarded another authorization letter to Manulife, also dated April 1, 2011. It was identical to the original authorization letter sent on April 1, 2011, except that it stated the appellant was also Mr. Humble’s CPAP. In addition, Mr. Humble’s signature, again genuine, sits closer to the left-hand margin than the signature on the April 1 letter.

[21] During the April 1, 2011 phone call, a Manulife representative asked the appellant to forward a copy of the CPAP. She did not do so until April 12, 2011, after Mr. Auliffe and Ms. Lashbrook had signed the document.

[22] After the fire, the appellant told the police that she had been appointed as Mr. Humble’s POA. She said she had discussed her appointment with Mr. Humble’s sister, Joyce, and with Ms. Firth. In their evidence, both Mr. Humble’s sister and Ms. Firth denied that such discussions had taken place.

The stolen money

[23] On March 7, 2011, Mr. Humble was released from the hospital after recovering from his post-operative heart issues. Four days later, on March 11, 2011, Mr. Humble provided the appellant with a cheque for $4,000. The Crown did not dispute the legitimacy of this payment at trial. Mr. Pajos’ expert opinion was that Mr. Humble filled out the particulars on the face of the cheque and also signed it. Evidence was presented that Mr. Humble gave this money to the appellant to pay for gas and groceries.

[24] The Crown argued, however, that the appellant stole $65,000 from Mr. Humble by forging two other cheques. The first such cheque, dated March 31, 2011, was made payable to the appellant’s son, Cole Martin, for $15,000. Mr. Pajos’ expert opinion was that although the author of the signature on the cheque could not be verified, Mr. Humble did not sign this cheque, and the appellant had written “Cole birthday” on the reference line.

[25] The second cheque, for $50,000 payable to the appellant, is dated April 7, 2011, two days before the fire. In Mr. Pajos’ expert opinion, the signature on the $50,000 cheque was not Mr. Humble’s, and the appellant endorsed the back of the cheque.

[26] When confronted with these two cheques during the police investigation, the appellant said that she had filled them out under Mr. Humble’s direction because he had an arm injury. Regarding the $15,000 cheque, she explained that Mr. Humble wanted her to have the money to support her son’s education. Nobody who had been in contact with Mr. Humble at the relevant time recalled him having an injured arm, including Mr. Humble’s doctor, Dr. Delaney, whom Mr. Humble had visited on April 4, 2011. Mr. Humble also had a lengthy telephone conversation with his sister shortly before his death, yet never mentioned any injury to his arm.

[27] On the evening before the fire, after visiting Mr. Humble at his home, the appellant deposited the $50,000 cheque along with $1,800 in cash into her bank account. Mr. Humble was known to keep large amounts of cash on hand at his home.

The will dated March 31, 2011

[28] On September 7, 1988, Mr. Humble executed a will. His solicitor at the time, Aubrey Ford, was appointed his executor, and his sister, Joyce, was his sole beneficiary. Mr. Ford retired, so on September 11, 2009, Mr. Humble had Ms. Firth prepare a new will in which she would be appointed his executor. Joyce remained his sole beneficiary.

[29] According to the evidence, there was no apparent change in Mr. Humble’s relationship with Joyce after that date. Her evidence was that she communicated often with her brother, including up until his death. They each lived alone. He was the designated beneficiary in her will, and she understood that she was to be the beneficiary of his will. He never suggested to Joyce that he had changed his will, including during their final conversation on April 8, 2011, the day before the fire.

[30] During the trial, the Crown relied heavily on a will created in Mr. Humble’s name, dated March 31, 2011 (the “ink signed will”). The ink signed will purports to revoke Mr. Humble’s prior wills and to appoint the appellant as executor and as the residuary beneficiary of half of Mr. Humble’s estate. Joyce is identified as the residuary beneficiary of the other half of the estate. The Crown position at trial was that the ink signed will was created fraudulently by the appellant. The Crown offered a range of evidence to demonstrate the veracity of this claim.

[31] First, a forensic search of data captured from a computer that could be linked circumstantially to the appellant and that was seized during the search of her home confirmed that: (1) on April 4, 2011, four days after the date shown on the will, someone used the computer to conduct Google searches for instructions on the preparation of wills; (2) files dated between April 4, 2011 and April 11, 2011, contained whole or partial drafts of the March 31, 2011 will, and those drafts had been accessed and amended repeatedly; (3) On April 7, 2011, the day before the fire, the signature page of the will was printed 31 times, and (4) the draft wills had to be recovered by the police using forensic software, because they had been deleted.

[32] Second, it was Mr. Pajos’ expert opinion that although the ballpoint pen signature on the signature page of the ink signed will was Mr. Humble’s signature, he did not write the date next to it. Mr. Pajos also expressed the opinion that the balance of the document had been cut and pasted to create the purported will. He based this opinion on the misalignment of margins and page numbers, inconsistency in the surface texture of pages of the will, and discrepancies in the number of staple holes that could be identified on the pages.

[33] Third, during the execution of a search warrant at the appellant’s home and of her vehicle on April 22, 2011, hard copies of the will were discovered. Mr. Humble’s original signature was on more than one version of the signature page.

[34] Fourth, in an interview with the police, the appellant admitted that she had prepared the March 31, 2011 will but claimed to have done so at Mr. Humble’s direction. She said that the will was executed on the date it bears, March 31, 2011. However, as with the POA documents, the will was purported to have been witnessed by Mr. Auliffe and Ms. Lashbrook, who testified that they, in fact, signed the will days after the fire, and that the appellant had offered them $10,000 to do so. They said that they declined the money but signed after the appellant told them that Mr. Humble had signed the will at the hospital, with the plan to have it witnessed later. Mr. Auliffe and Ms. Lashbrook testified that the appellant contacted them a few days later and alerted them that they might be contacted by the police. The appellant gave them Mr. Humble’s driver’s licence and a description of him so that they could describe him if the police asked.

[35] Finally, on April 13, 2011 Ms. Firth received a letter in Mr. Humble’s name, dated March 31, 2011, containing a copy of the March 31, 2011 will. The letter bore Mr. Humble’s original signature, but the envelope was addressed by the appellant. In an April 9, 2011 statement to the police, the appellant suggested that she had mailed a copy of the will to Ms. Firth shortly after it was purportedly signed, on March 31, 2011. Based on the barcode markings on the envelope used to send the will to Ms. Firth, a Canada Post representative testified that the letter had to have been mailed after 5:00 p.m. on April 8, 2011.

(ii) The Sedative Evidence

[36] The forensic examination of the seized computer revealed that on March 21, 2011, immediately after the appellant’s Facebook and TD Bank accounts had been visited, a Google search was conducted for the key terms “Amitriptyline” and “Amitriptyline overdose”. The titles of websites subsequently accessed included the words Imovane, Xanax, and Amitriptyline. Xanax is also known by its generic name, Alprazolam.

[37] The morning of the fire, the police asked the appellant what drugs Mr. Humble had been on. She told them he had been taking Amitriptyline for a very long time and that doctors had advised him to stop because it is not good for older people. During her police interview on April 22, 2011, the appellant repeatedly mentioned that Mr. Humble had been taking Amitriptyline and suggested that this might explain why he had traces of Benzodiazepine in his system. There was no confirmation that Mr. Humble had ever been prescribed Amitriptyline.

[38] The drug that was identified to be in Mr. Humble’s system when he died was Alprazolam, a sedative from the Benzodiazepine class of drugs that is typically used to treat anxiety or as a sleep aid. Mr. Humble had never been prescribed Alprazolam, but the appellant had. There was also evidence that the appellant had been accumulating Alprazolam in the days leading up to the fire. Shortly before the fire, she had acquired two 30-day prescriptions of Alprazolam, one such prescription from each of two different doctors.

[39] On April 11, 2011, two days after the fire, the appellant contacted the office of one of those doctors and requested a refill of Alprazolam, claiming that she had lost her pills in a fire at the home of an older man she had been looking after. On April 22, 2011 the appellant also told the police her prescriptions were lost in the fire, but in a later statement on June 11, 2012 – after she learned that the police had found Alprazolam during their search of her home – she told the police that she had been mistaken about losing her Alprazolam in the fire.

[40] Dr. McIntosh described Alprazolam as a “very potent, short-acting benzodiazepine”. A forensic toxicologist, Ms. Laura Gorczynski, testified about the drug’s effects. She said that people taking Alprazolam for the first time might experience dizziness, sedation, drowsiness, muscle weakness, incoordination, and/or a potential impairment of judgment. Those effects might be much less in people who have experience with the drug or similar drugs. According to Ms. Gorczynski, a toxic dose could possibly cause unconsciousness or a coma but would be unlikely to cause death unless combined with other central nervous system depressants.

[41] The precise dose of Alprazolam Mr. Humble had in his body when he died is unknown. Ms. Gorczynski testified that the toxicological test of Mr. Humble’s blood serum taken at 10:02 a.m. on April 9, 2011 could confirm only that he had between 1 ng/ml of Alprazolam in his system, an “almost negligible” amount, and a high of 39 ng/ml. Ms. Gorczynski said that the therapeutic concentration for Alprazolam ranges between 20 and 55 ng/ml, but that she would expect to see a chronic therapeutic concentration of anywhere from 20 ng/ml to the “outside range” of 100 ng/ml. She could not “read back” Mr. Humble’s test results to identify the concentration of the drug in his system at any prior point in time because elimination rates vary significantly between individuals. Indeed, Ms. Gorczynski’s evidence was that one-half of the concentration of the drug will disappear from the body every 6 to 27 hours, depending on the person. Moreover, the dose, the time the drug was taken, and its formulation can influence the elimination rate.

(iii) The Alibi Evidence

[42] During the police investigation, the appellant made statements that, if true, would have provided her with the alibi that she was elsewhere when the fire started. However, the appellant’s timeline was undermined during the investigation, and much of what she said was contradicted. Trial counsel did not dispute that the appellant had the opportunity to start the fire. In his closing address to the jury, he acknowledged that the odds were slim that the appellant’s timeline was accurate. Rather than focus on the appellant’s initial account of her movements on the morning of the fire, trial counsel argued that there was no evidence the fire was started by arson, and suggested it was implausible that the appellant would choose to start a fire at around 8:00 in the morning.

[43] The Crown, however, focused primarily on the appellant’s initial account of her movements around the time of the fire. The Crown took the position that the appellant concocted the alibi to hide her guilt. In response, trial counsel did not dispute that the alibi was fabricated. He argued instead that, given the nature of the appellant’s interviews with police, she would have known she was a suspect. He then continued:

What did she do? Maybe not advisedly, but this is what she did. She endeavoured to make the officers believe that she had an alibi. In other words, even if she had nothing to do with starting the fire it sure sounded like the police thought she may have had some involvement. That alone would be cause for concern. Further, I submit, from this point forward she was going to do or say anything in her power to allay suspicions she felt the police had.

[44] I will set out the relevant background that led the parties to take the positions that they did.

[45] On the morning of the fire, two independent witnesses saw a black Dodge pickup truck with an extended cab parked in Mr. Humble’s driveway shortly after 8:00 a.m. The appellant drove a black Dodge Ram 1500 pickup truck with an extended cab at the relevant time.

[46] As indicated, Janice Lovering noticed the fire immediately before 8:20 a.m., when she called 911. The evidence showed that, by that time, the fire had progressed to a point that would have taken minutes after ignition.

[47] From the outset, the appellant volunteered that she had been at Mr. Humble’s house on the morning of the fire, but for an innocent purpose and before the fire started.

[48] Shortly after arriving at the hospital at 10:10 a.m. on the day of the fire, the appellant told Cst. Nick Harris that “she had been rushing around all day sorting out a five-year-old’s birthday”. Around this time, she spoke to Ms. Lovering on the phone and told her she had been at Mr. Humble’s early that morning to drop off some items and thought about “maybe going up the steps and peeking in the window” to see what Mr. Humble was up to, but decided against it.

[49] The appellant then went to the scene of the fire from the hospital. She spoke to Mike Serbinek, a man previously unknown to her who had helped pull Mr. Humble from the fire. She told Mr. Serbinek that she had been at Mr. Humble’s house that morning dropping off a TV and microwave, and had gone to the door and knocked, but the blinds were shut so she put the TV and microwave in the garage.

[50] Cst. Paddon met the appellant at the scene of the fire after learning from Cst. Harris that the appellant claimed to be Mr. Humble’s POA. Cst. Paddon intended to interview the appellant, who was not a suspect at that point. The appellant mentioned to Cst. Paddon before the interview began that she had been at the scene that morning. During the informal audiotape interview that then took place, Cst. Paddon returned to the subject, saying, “you mentioned you were at [Mr. Humble’s] house this morning?” The appellant responded, “Yeah, very early though”. During the ensuing conversation the appellant said that she did not go inside the house because Mr. Humble appeared to be sleeping. She said she “dropped a microwave and a television off [in the garage] ‘cuz I had it in the back of my truck”. When asked what time she was there, the appellant said again, “it was very early”. The appellant estimated that she was at Mr. Humble’s home that morning for 5 to 10 minutes.

[51] The appellant also gave details to Cst. Paddon about going to her father’s nursing home in Orillia, Trillium Manor, after leaving Mr. Humble’s. She estimated that she arrived at the nursing home at 8:00 a.m. and stayed there for around 15 to 20 minutes. She said she then went to Zehrs grocery store, and produced a Zehrs receipt for Cst. Paddon. The appellant said she spent about an hour and a half at Zehrs. Based on the timeline the appellant provided, Cst. Paddon asked whether she would have left Mr. Humble’s home around 7:30, and the appellant agreed.

[52] The next morning, on April 10, 2011, Cst. Paddon informed the appellant that the police had spoken to her father and learned that the appellant was at Trillium Manor at 8:30 a.m., 30 minutes later than she had indicated.

[53] The following day, the appellant called and confronted Cst. Paddon about questioning her father. The appellant also asked why Cst. Paddon had spoken to her husband, Randy. Cst. Paddon explained that she was asking the tough questions that needed to be asked and was looking into timelines to “corroborate what [the appellant] said”. The appellant then told Cst. Paddon that during their interview on April 9, 2011, she had forgotten to mention that after leaving Mr. Humble’s home the morning of the fire, she had stopped at the Cardinal Gas Bar for $50 worth of gas and picked up her mail at the local post office while on route to visit her father at Trillium Manor.

[54] The appellant repeated these route details in a statement she gave to the police on April 22, 2011. In that statement, she estimated that she had left Mr. Humble’s home at 7:15 a.m., reaffirming her claim that she had arrived at Trillium Manor by around 8:00 a.m.

[55] As indicated, the police investigation contradicted the key details the appellant had provided about her movements, as well as her overall timeline, on the morning of the fire.

[56] First, the appellant was captured by a security camera entering Trillium Manor at 8:37 a.m. the morning of the fire. Cst. Steven Barnstaple, an identification officer with the OPP, confirmed that it takes approximately 19 minutes to drive the 23 kilometres between Mr. Humble’s home and the post office, a timeline consistent with the testimony of witnesses that there was a black extended cab truck at Mr. Humble’s home at approximately 8:05 a.m.

[57] Second, security footage from the Cardinal Gas Bar confirmed that the appellant did not, in fact, stop there on the morning of the fire, nor at any other time on April 9, 2011.

[58] Third, security footage from Trillium Manor showed that the appellant had not been there for 15 to 20 minutes, as she had told police only two hours later. She had, in fact, been inside Trillium Manor for only three minutes or so, leaving just before 8:40 a.m.

[59] Fourth, Cst. Barnstaple testified that, although the morning of the fire there had indeed been a TV sitting on top of a microwave in Mr. Humble’s garage, in his view those appliances had not recently been moved. He said that they were covered in a layer of dust consistent with the dust on other items in the garage. Cst. Barnstaple further explained that, had either appliance been recently carried, there should have been a void in the dust along the edge where it would have rubbed against the body of the person carrying it. He testified there was no such void in the dust when he examined the appliances. [2]

(iv) Evidence Regarding Other Suspicious Circumstances

[60] The Crown contended that other circumstances surrounding the fire, including aspects of the appellant’s behaviour, were suspicious.

[61] First, evidence showed that on March 28, 2011, Chad Hamilton, an electrician, inspected Mr. Humble’s home following a service call. Mr. Hamilton testified that Mr. Humble had a post-it note on his bedroom smoke detector recording the date and time he last replaced the batteries, and said that Mr. Humble was adamant that the batteries on his smoke detectors were up to date. Steven Klimpel, from the Fire Marshall’s office, inspected the bedroom smoke detector after the fire. It did not have a battery. None of the witnesses who were present at the fire heard any alarm.

[62] Second, the appellant said that on April 7, 2011 she had cancelled Mr. Humble’s appointment with his accountant because he was too tired to go. She said she knew he was tired that day because she had entered his home and found him asleep. However, when the police confronted the appellant with the implausibility of her claim that she had not entered the house to check on Mr. Humble the morning of the fire, she said she would never do so. The Crown made further challenges to the plausibility of the appellant’s claim that she had not entered Mr. Humble’s house the morning of the fire. She told police, on June 11, 2012, that when she went to Mr. Humble’s home on April 8, 2011, the day before the fire, he was tired and not feeling well, so she closed his blinds before leaving that afternoon. Phone records show that the appellant placed four phone calls to Mr. Humble’s home that evening, between 9:00 p.m. and 10:30 p.m. None of those calls were answered. Yet, notwithstanding that she had a key to Mr. Humble’s home and claimed in her police interview of April 22, 2011 to have left her prescription drugs and laptop there, the appellant said that she did not enter the home on the morning of the fire, either to check on Mr. Humble or to retrieve her property.

[63] Third, the Crown argued that the appellant, knowing there would be a fire, prepared for it. After the fire, the appellant provided Ms. Firth with a detailed list of the contents of the house, as if the list had been prepared in advance. According to the Crown, the appellant’s deposit of $1,800 in cash the evening before the fire suggested that she had removed the money from Mr. Humble’s home so it would not get burned. After the fire, the appellant had possession of the documents she would need to secure Mr. Humble’s financial assets after his death, including: his will; the tax documents that would be required to secure his anticipated tax refund; the documents needed to secure outstanding benefits from Manulife; and his health card and driver’s licence. None of these items were in Mr. Humble’s home when it burned.

(v) The Chapman Letters

[64] After obtaining an admissibility ruling from the trial judge, the Crown presented extrinsic evidence unconnected to the offence charged. That extrinsic evidence tended to show that the appellant had previously forged documents, namely, the “Chapman letters”. I will describe this evidence before outlining the trial judge’s ruling on its admissibility.

[65] The Chapman letters were two letters which, in the Crown’s submissions, had been forged by the appellant and delivered to her brother, Randy Cole, and her sister-in-law, Mary Anne Cole, to delay demands that she repay an outstanding loan they had made to her of almost $200,000.

[66] Randy and Mary Anne each testified that they lent this money to the appellant so that she could pursue a wrongful dismissal lawsuit which ran from 1999 to 2007. The money was still outstanding in 2009, and Randy and Mary Anne were pressing the appellant for repayment. The appellant furnished them with two letters purportedly signed by her solicitor, Ronald Chapman, confirming that she would soon receive the money from her lawsuit. The letter dated March 18, 2009 represented that the appellant had been successful in the lawsuit and would recover more than $400,000. The subsequent letter dated April 6, 2009 represented that the government was considering paying the amount owing to the appellant. Neither claim was true.

[67] The Crown presented evidence, including from Mr. Pajos, that the Chapman letters were forgeries created using a cut and paste technique that grafted Mr. Chapman’s authentic letterhead and signature onto the body of the letters. The text of both letters was crooked and did not align.

[68] Lisa Whiting, Mr. Chapman’s law clerk, prepared letters on behalf of Mr. Chapman. Ms. Whiting testified that she would have been the one to prepare the Chapman letters had they been genuine, but that she did not do so. According to Ms. Whiting, the Chapman letters contained inaccurate information, used language that would not have been used, were not properly formatted, and were not retained in the firm’s electronic files. Ms. Whiting also testified that the appellant had access to Mr. Chapman’s letterhead and signature from prior correspondence.

[69] In considering whether to admit the evidence of the Chapman letters, the trial judge noted trial counsel’s position that, although the Chapman letters were relevant, material, and had probative value, any such probative value was outweighed by the moral prejudice that their admission would create.

[70] Ultimately, the trial judge decided to admit the Chapman letters. In doing so, he ruled that they were strong evidence, explaining as follows:

[The Chapman letters] support the proposition proposed by the Crown that [the appellant] obtained the signatures of Mr. Humble – genuine signatures attached to false documents without his knowledge. The [appellant] had a practiced expertise in this type of forgery as evidenced by her creation of the two false Chapman letters. She grafted upon the genuine signature of Mr. Chapman and his letterhead, documents of her own creation with the intent of creating a new letter altogether to advance her purposes. There is a distinct similarity regarding her conduct in the fabrication of the Chapman letters with her conduct in the creation of the false Will and related documents.

I accept the Crown submissions that the Chapman letters provide overwhelming probity. They serve as a template for what [the appellant] would do two years later. The proposed evidence supports the inference that the Will and supporting documents were forged for the following reasons:

(1) It establishes that a person can create a fabricated document to which a genuine signature is annexed without the signatory ever knowing that the document was being signed; (2) The proposed evidence demonstrates that [the appellant] has some experience and facility in creating such documents; (3) The proposed evidence illustrates [the appellant’s] modus operandi for committing fraud. The Crown asserts that the motive in this case was greed – obtaining substantial sums of money in short order – and falsification of documents was the mechanism by which the motive was satisfied; and (4) While the Chapman letters were a rather unsophisticated attempt at forgery (cut and paste) forensic evidence will suggest that [the appellant] became much more adept in providing the finished product of Mr. Humble’s changed Will.

The evidence supports the plausibility that [the appellant] was entirely capable of obtaining Mr. Humble’s signatures without his knowledge and applying them to false documents. The proposed evidence supports that not only she is capable of creating such false documents but also she has actually done so in a very specific way. Her methodology not only addresses that she forged documents in the past but also goes to the manner in which those forgeries were executed.

[71] Next, the trial judge went on to consider the prejudicial effect of the evidence. In doing so, he noted that the evidence was not being tendered to “simply blacken” the appellant’s character or to “infer guilt from general disposition or propensity”. He then said as follows:

While the evidence points to [the appellant’s] discreditable conduct, the jury will hear other evidence of discreditable conduct such as evidence of forgeries in her possession, that she suborned two persons to falsely witness a Will and that she had in her possession forged cheques in the name of the deceased.

[72] The trial Crown referred to the Chapman letters only twice in his closing submissions. In an extremely brief argument, he asserted that the Chapman letters answered the question of how Mr. Humble’s original signature came to be on forged documents. In each case, the appellant inserted false text into documents while under financial pressure. The trial Crown said that the Chapman letters showed that “in April of 2011, [the appellant] obtained Mr. Humble’s signature under false pretences and put it on a document he never had any intention of signing.” He further argued that “the Chapman letter[s] … tell us that [the appellant] has the ability and thus means to put a genuine signature on a fake document.”

THE JURY CHARGE

[73] Only two parts of the jury charge are relevant to this appeal: the charge relating to the Chapman letters, and the charge relating to the appellant’s alibi. I will summarize each in turn.

A. JURY charge ON THE CHAPMAN LETTERS

[74] Under the heading, “Evidence of Extrinsic Similar Acts to Prove Identity of Perpetrator of Known Crime”, the trial judge gave the jury an eight-paragraph charge relating to the Chapman letters:

1. You are trying [the appellant] on a charge of first degree murder of Richard Humble. You are not trying her for any other conduct.

2. You have heard evidence that [the appellant] has done other things that may be similar to things for which she has done in this case [sic]. Be careful not to jump to the conclusion that just because the acts seem similar, the same person must have done all of them. You may but do not have to conclude that these other things and the things done in this case are so similar that the same person likely did all of them.

3. In deciding whether these other things and the things done in this case are so similar that the same person likely did all of them, you should consider these circumstances: You heard evidence about the Ronald Chapman letters … You heard evidence how these letters were cut and paste jobs fabricated by [the appellant]. Original signatures of Mr. Chapman were written on fabricated letters. In the present case, you have heard evidence about original signatures of Richard Humble being written on false documents such as the Powers of Attorney and Last Will and Testament of Richard Humble.

4. If you conclude that these other things and the things done in this case are so similar that the same person likely did all of them, you may use the evidence of the other acts, along with the rest of the evidence, in reaching your verdict in deciding whether it was [the appellant] who committed the offence charged.

5. If you conclude that [the appellant] did the other similar things in the past, you must not use the evidence of that conduct to conclude or to help you conclude that [the appellant] is a person of general bad character or disposition who likely committed the offence charged because of that general bad character.

6. Further, if you conclude that [the appellant] did the other similar things in the past, you must not punish [the appellant] for that conduct by finding her guilty of the offence charged, simply because she did those other things.

7. If you do not or are unable to conclude that these other things and the things done in this case are so similar that the same person likely did all of them, you must not use the evidence of these other acts in deciding whether it was [the appellant] who committed the offence charged.

8. Whether or not you use the evidence of the other things to help you decide this case, you must not find [the appellant] guilty of the offence charged unless Crown counsel has satisfied you of all the essential elements of that offence beyond a reasonable doubt. [Emphasis added.]

B. JURY charge ON ALIBI

[75] The trial judge charged the jury on the use of post-offence conduct generally, and identified several things alleged to have been done by the appellant after the fire that could support inferences related to the commission of the offence charged. He then gave instructions on “fabricated explanations” that zeroed in on the appellant’s purported “alibi that she visited her father … at Trillium Manor followed by grocery shopping at Zehrs at the time of the fire”. He recounted the statements made by the appellant to the police about her movements the morning of the fire.

[76] The trial judge then described how the principles in R. v. W.(D.), [1991] 1 S.C.R. 742 would apply to the appellant’s evidence that she was someplace else when the fire started. This included telling the jury that, even if they completely rejected the appellant’s alibi evidence, they were still required to decide on all the evidence whether she was guilty beyond a reasonable doubt. The trial judge continued as follows:

5. There is evidence upon which you may but do not have to find [the appellant] fabricated or made up the evidence that she was someplace else when the offence was committed and she did not set the fire. Consider the evidence of independent witnesses who place [the appellant] at Mr. Humble’s door within minutes of the fire. Her black Dodge Ram 1500 quad door pickup truck was seen in Mr. Humble’s driveway at that time. She had a key to Mr. Humble’s house. Consider the videotape evidence of her non-attendance at the Cardinal Gas Bar at any time on April 9, 2011 even though she reported after her interview with Detective Constable Paddon and Detective Constable Young that she remembered going to the Cardinal Gas Bar and Washago Post Office. Consider the evidence of P.C. Barnstaple about dust on the TV and microwave suggesting these items had been placed in Mr. Humble’s garage before the morning of the fire. Consider the statements of [the appellant] about the creation of fraudulent Powers of Attorney, the fraudulent changed Will, the forged cheques totalling $65,000, the forged cheque to Ted Burton, the evidence about her dire financial circumstances and debts owed to her brother Randy Cole and [others]. There was also evidence about the creation of other false documents such as the Chrisandra Firth letter.

6. There is a big difference between disbelief of a version of events and fabrication of that same version of events. Disbelief of a version of events does not mean that the version of events was fabricated. Not at all. Evidence that leads you only to disbelieve a version of events is not independent evidence that the version of events was fabricated.

7. Mere disbelief of evidence that [the appellant] was someplace else when the offence was committed and she did not set the fire means that you treat that evidence as if it had never been given. In other words, ignore it and consider the rest of the evidence in deciding the case.

8. However, if you are satisfied on the basis of the independent evidence that I have told you about that the statements are not just false but were actually fabricated or made up by [the appellant], then you must next consider the reason why [the appellant] fabricated or made up the evidence.

9. If you find that [the appellant] fabricated, in other words made up this version of events because she was aware that she did what is alleged, you may take that finding into account, along with the rest of the evidence, in deciding whether Crown counsel has proven the guilt of [the appellant] beyond a reasonable doubt.

10. On the other hand, if you do not or are unable to find that [the appellant] fabricated or made up this version of events because she was aware that she did what is alleged, you are not entitled to use this evidence in the way I have described and must decide the case without its assistance.

THE ISSUES

[77] The appellant raises three grounds of appeal. The Crown submits that we may apply the proviso if we conclude the trial judge erred in any respect. Since I am persuaded that the trial judge did commit legal errors, I will address four issues:

A) Did the trial judge err (i) by admitting the “Chapman letters” as extrinsic evidence of misconduct, or (ii) in his jury charge on the use of that evidence? B) Did the trial judge err in the jury charge on fabricated alibi? C) Did the trial judge err in his treatment of the Alprazolam evidence? D) Does the proviso in s. 686(1)(b)(iii) of the Criminal Code apply?

ANALYSIS

A. DID THE TRIAL JUDGE ERR REGARDING THE CHAPMAN LETTERS?

[78] In my view, the trial judge erred both when (i) admitting the Chapman letters, and (ii) in his charge to the jury relating to those letters. I will explain these errors in turn.

(i) The Admissibility Errors

The governing legal principles

[79] Evidence of extrinsic misconduct is prima facie inadmissible, and therefore only exceptionally admissible, because it “brings baggage to the trial”: R. v. Luciano, 2011 ONCA 89, 267 C.C.C. (3d) 16, at para. 219; R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 37. Indeed, it can create “reasoning prejudice” by distracting jurors from their proper focus on the charge particularized in the indictment and by lengthening the trial process: Luciano, at para. 220. The admission of extrinsic misconduct evidence can also adversely affect the ability of accused persons to defend the charged offences, since resisting proof of the extrinsic misconduct will invariably consume what are often limited defence resources: Handy, at para. 146.

[80] Admitting extrinsic evidence also creates the risk of “moral prejudice” by showing that the person charged has a discreditable, or even a criminal disposition, the kind of person capable of committing the charged offence: Luciano, at paras. 219; Handy, at para. 139. Put another way, if the trier of fact learns of the bad character of the accused, they may more readily believe the criminal allegation, or to think that the accused otherwise deserves to be punished.

[81] As such, extrinsic misconduct evidence is only admissible in those exceptional cases where the benefits of admission outweigh the costs. The test that provides for the exceptional admissibility of presumptively inadmissible extrinsic evidence of misconduct was settled in Handy, at para. 55:

The onus is on the prosecution to satisfy the trial judge on a balance of probabilities that in the context of the particular case the probative value of the evidence in relation to a particular issue outweighs its potential prejudice and thereby justifies its reception.

[82] As Binnie J. made clear in Handy, at para. 76, “[t]he principal driver of probative value … is the connectedness (or nexus) that is established between the similar fact evidence and the offences alleged”. Connectedness refers to the logical chain of permissible reasoning that enables the extrinsic evidence to inform the issue the evidence is offered to prove. Therefore, for a proper evaluation of connectedness to occur, the issue that the extrinsic misconduct evidence bears upon must be precisely identified: Luciano, at para. 230.

[83] Evidence of extrinsic misconduct which does no more than “blacken” an accused’s character is inadmissible: Handy, at para. 31. In other words, a chain of reasoning between the extrinsic misconduct evidence and the issue sought to be proved will not be permissible if its relevance depends on the inference that the extrinsic misconduct evidence shows the accused to have the kind of general discreditable disposition or bad character to be capable of committing the offence charged: Handy, at paras. 31-36, 65, and 68. To fortify a conviction by relying on the general inference that ‘the accused is the type of person to commit this kind of offence so they may have done so’ carries the risks of illogically and unfairly disregarding the possibility of rehabilitation, and encouraging the police to “round up the usual suspects”: Handy, at para. 38.

[84] In addition, convicting a person because of the type of individual they are, rather than what they are proved to have done, is contrary to the basic principle that an accused person is presumed innocent unless and until the Crown proves that they have committed the specific offence alleged: Luciano, at para. 219; Handy, at para. 43.

[85] Therefore, if evidence depends solely on a forbidden chain of general reasoning for its connectedness, its probative value will not outweigh its prejudice. Even if the evidence does not depend for its relevance on a forbidden chain of reasoning, the evidence will not be admissible if the probative value of the evidence relating to the permissible inference does not outweigh the prejudicial effect the evidence will have.

[86] On appeal, a trial judge’s determination as to the balance between probative value and prejudice is entitled to deference, but only in the absence of: (1) a legal error in the assessment process; (2) a misapprehension of material evidence; and (3) an unreasonable result: Luciano, at para. 234.

[87] As explained below, in admitting the Chapman letters, the trial judge committed legal errors in his assessment of the proposed extrinsic evidence of misconduct and arrived at unreasonable conclusions that were central to his decision to admit that evidence.

The reasoning errors and unreasonable conclusions on probative value

[88] The trial judge concluded that the Chapman letters helped establish that the appellant obtained Mr. Humble’s signatures without his knowledge and approval and appended those signatures to false documents. He said that the appellant’s use of false financial documents was circumstantial evidence of “planning and deliberation on the part of [the appellant] and that she set the fire that killed Mr. Humble”. Put simply, the trial judge admitted extrinsic misconduct evidence of the Chapman letters as proof of the appellant’s act of falsifying financial documents relating to Mr. Humble’s estate. If the jury were to find that the appellant falsified those documents, this finding could then be used, with other evidence, to prove that Mr. Humble was murdered, and that the appellant murdered him.

[89] In his ruling, the trial judge identified three avenues of “connectedness” between proof of the Chapman letters and the inference that the appellant had falsified financial documents relating to Mr. Humble’s estate. In my view, the trial judge’s analysis of each of these chains of reasoning was flawed.

[90] First, the trial judge reasoned that the Chapman letters showed that a person can create a fabricated document to which a genuine signature is annexed. Yet, for evidence to have probative value it must address a live issue in the case: Handy, at paras. 73-74. There was never any suggestion that a genuine signature could not be annexed to a fabricated document. Indeed, at the ensuing trial, the Crown called Mr. Pajos who testified about genuine signatures being cut and pasted onto fabricated documents, but Mr. Pajos was not even cross-examined by the defence on this point. Accordingly, this theory of admissibility – that the Chapman letters prove that genuine signatures can be annexed to a fabricated document – did not address a live issue in the case. It therefore lacked probative value; the trial judge was wrong to have relied upon it in admitting the Chapman letters.

[91] Second, the trial judge concluded that the Chapman letters demonstrated the appellant “has some experience and facility in creating such [forged] documents”. I recognize that, in expressing this conclusion, the trial judge was not intending to invoke the prohibited bad character inference I described above. Read in context of his entire ruling, the trial judge was effectively reasoning that: (1) creating the alleged forgeries of Mr. Humble’s documents required special skill or capability, and (2) evidence of the Chapman letters proved that the appellant has such special skill or capability. This specific line of reasoning is not per se prohibited. However, the problem with its application in this case is that there was no evidentiary basis supporting either of the premises underlying it.

[92] With respect to the first premise, as the appellant points out, there was no evidence led as to the particular technique that was used to secure Mr. Humble’s signature on blank documents, or to create the documents that were allegedly forged to gain access to his property, other than that a computer and printer were used and that cutting and pasting occurred. Manifestly, it would take no special skill or capability to secure original signatures from Mr. Humble on blank documents. Unfortunately, this is commonly done under false pretences. Similarly, there would appear to be nothing sophisticated in cutting and pasting. Mr. Pajos, the forgery expert, never suggested there was. Without a foundation for concluding that special skill would be required to produce the alleged Humble forgeries, there could be no probative value in proving, through the Chapman letters, that the appellant had special skill.

[93] The second premise – that the Chapman letters show the appellant had special skill – is even more problematic. The Chapman letters cannot fairly be described as the product of specialized skill. They were crude forgeries, even to the unpracticed eye of Mary Anne Cole. The margins in the Chapman letters did not even align. As the trial judge himself noted in his ruling, “the Chapman letters were a rather unsophisticated attempt at forgery (cut and paste)”. The trial judge also stated that “forensic evidence will suggest that [the appellant] became much more adept in providing the finished product of Mr. Humble’s changed will”. Given these findings, it is unclear how the Chapman letters could serve to prove that the appellant had the skill or capability necessary to undertake the alleged Humble forgeries, even if the alleged Humble forgeries would have required special skill.

[94] The shortcomings in the trial judge’s reasoning I have just described are serious. If the Chapman letters do not show that the appellant had specialized criminal experience, they show only that she had criminal experience. The available inference is reduced to the prohibited general inference that because the appellant created fraudulent documents before, she may have done so again.

[95] The trial judge relied on modus operandi reasoning as his third and final gateway to admissibility. To be sure, establishing that an accused previously used the same modus operandi employed in the crime charged is the paradigm way of demonstrating the probative value of extrinsic misconduct evidence. In fact, even though modus operandi reasoning is not the only gateway to the admissibility of extrinsic misconduct evidence, modus operandi reasoning is employed so commonly that the admissibility test for such evidence is commonly referred to as the “similar fact evidence rule”: see e.g., Handy, at para. 90.

[96] However, for the requisite probative value to exist, the modus operandi that is relied upon must be sufficiently specific that it will support the desired chain of reasoning without depending upon “pure” general bad character inferences: Handy, at paras. 91-92. I have already addressed why the evidence in this case cannot support the conclusion that there was a common and specific modus operandi between the Chapman letters and the alleged Humble forgeries. Indeed, the sole similarity between the Chapman letters and the alleged Humble forgeries is that they both involved cutting and pasting to annex original signatures to falsified documents; in the case of the Chapman letters, using an unidentified technique that produced unsophisticated forgeries and, in the case of the alleged Humble forgeries, using an unidentified but more adept technique that produced a more believable finished product.

[97] Beyond this, the trial judge described the modus operandi as falsifying documents to obtain substantial sums of money out of greed. With respect, using falsified documents to obtain substantial sums of money to satisfy greed is a ubiquitous kind of crime, not a modus operandi, let alone a modus operandi specific enough to establish that the alleged Humble forgeries were indeed forgeries.

[98] Therefore, in my view, the trial judge erred in identifying and evaluating the probative value of the Chapman letters. The only thing this evidence tended to prove was the appellant’s dishonesty, and her readiness to resort to the wrongful conduct of falsifying documents for personal gain. As this evidence does no more than “blacken” the appellant’s character, it was not admissible and the trial judge erred in finding to the contrary.

The alleged error on moral prejudice

[99] The appellant also contends that the trial judge erred in his evaluation of the moral prejudice that would arise if the Chapman letters were admitted. In assessing the risk of moral prejudice, the trial judge said as follows:

While the evidence points to [the appellant’s] discreditable conduct, the jury will hear other evidence of discreditable conduct such as evidence of forgeries in her possession, that she suborned two persons to falsely witness a Will and that she had in her possession forged cheques in the name of the deceased.

[100] The appellant argues that the trial judge erroneously concluded that the risk of moral prejudice that would be caused by admitting the Chapman letters would be reduced since other proof of discreditable conduct by the appellant would be admitted in any event. If this is indeed what the trial judge meant, I agree with the appellant that he erred. The fact that an accused already faces a risk of prejudice cannot be a justification for adding to that risk with additional prejudicial evidence.

[101] To be clear, it is not an error for a trial judge, in assessing the degree of additional prejudice that extrinsic misconduct will add, to consider that the extrinsic misconduct is more or less prejudicial than the charged allegation: Handy, at para. 140. Accordingly, if this is all the trial judge was saying, then he did not err in evaluating the risk of prejudice. However, I am not confident that the impugned passage should be given this benign reading, as the trial judge separately commented later in his reasons that “the extrinsic evidence is not so egregious in comparison to the case as a whole”.

[102] Nevertheless, as I have already found error in the trial judge’s probative value reasoning, I need not resolve whether he erred in evaluating moral prejudice. I address this issue only to clarify the distinction between (a) the permissible exercise of comparing relative prejudice arising from the charged conduct and proposed extrinsic misconduct evidence to gauge the degree of prejudice that the extrinsic misconduct evidence may cause, and (b) the impermissible exercise of discounting the degree of additional prejudice that extrinsic misconduct evidence carries simply because a risk of prejudice already exists arising from other admissible evidence.

(ii) The Jury Charge Error

[103] Any time extrinsic evidence of misconduct is admitted it will reveal the bad character of the accused. Given the seductiveness of the prohibited lines of reasoning, after admitting extrinsic misconduct evidence a trial judge must “explain [to jurors] its permitted use and … inoculate jurors against its prohibited use”: R. v. McDonald, 2017 ONCA 568, 351 C.C.C. (3d) 486, at para. 86; Luciano, at para. 116.

[104] I see no issue with the trial judge’s direction relating to the prohibited use of the Chapman letters. However, even had the trial judge been correct in admitting the Chapman letters, he failed to correctly explain to jurors the permitted use to which the Chapman letters could be put. Indeed, in my view, the trial judge gave jurors a misleading instruction in this regard.

[105] Specifically, as shown by the underlined portions of the jury charge that are reproduced above, at para. 74 of these reasons, the trial judge repeatedly told the jury to consider whether the things allegedly done were “so similar that the same person likely did all of them”. This is a proper charge if extrinsic misconduct evidence is admitted as proof of the identity of the person who committed an alleged crime based on modus operandi. However, the Chapman letters were not admitted as proof of identity. Rather, they were admitted as evidence that documents under the appellant’s control relating to Mr. Humble’s estate were forged.

[106] It is true that if a jury were to rely on the Chapman letters in finding that the appellant forged documents relating to Mr. Humble’s estate, this would serve as proof of motive which, along with other evidence, would assist in establishing that the appellant murdered Mr. Humble. But that does not make this a case about identity. The appellant was the only suspect. The real issue was whether a crime even occurred, specifically, whether there was a reasonable doubt that Mr. Humble died accidentally, or whether the appellant committed the act of intentionally starting the fire that killed him, with the premeditated intention of doing so. By directing the jury to use the Chapman letters to determine whether the same person committed all the relevant acts, the trial judge pointed jurors to the wrong issue, while failing to furnish jurors with any assistance in identifying a permissible chain of reasoning between the Chapman letters and a finding that the appellant had forged documents to get access to Mr. Humble’s estate. I am persuaded that this jury charge did not functionally assist the jurors in understanding the applicable legal principles or how to apply them. Instead, in my view, the charge misled them and amounted to a misdirection.

[107] This misdirection appears to have occurred because the trial judge relied too heavily on a standard form jury charge without adapting it fully to the circumstances of the case. This court has cautioned trial judges in the past about the proper use of standard form jury charges where case specific issues are raised: see e.g., R. v. Baltovich (2004), 73 O.R. (3d) 481 (C.A.), at para. 78; R. v. McFarlane, 2020 ONCA 548, 393 C.C.C. (3d) 253, at para. 79. Standard form jury charges are of tremendous assistance, but they must be tailored to the specific circumstances of each case. This is particularly so for limiting instructions relating to admissible evidence such as similar fact evidence, since the limited uses to which evidence can be put turn on fact-specific considerations of logical relevance. Unless the standard form jury charge is modified to reflect the case-specific basis for admission of extrinsic misconduct evidence, a misdirection is likely to occur.

[108] Accordingly, I would conclude that the trial judge erred in charging the jury relating to the Chapman letters.

B. DID THE TRIAL JUDGE ERR IN THE JURY CHARGE ON ALIBI?

[109] I would reject the appellant’s contention that the trial judge erred in inviting the jury to consider whether the appellant fabricated her alibi in order to conceal her guilt.

[110] However, as I will explain, I would agree with the appellant that the trial judge erred in outlining for the jury what evidence it could use in determining whether the appellant’s alibi was fabricated. Nevertheless, in my view, this error is not a reversible one in the circumstances of this case because it did not prejudice the appellant.

(1) The Governing Legal Principles

[111] There is a material difference between a false alibi and a fabricated alibi. A mere finding that an alibi is false or inaccurate – a finding of disbelief – operates like the rejection of any exculpatory evidence. The alibi evidence is simply removed from consideration, but the fact that an accused gave or encouraged the alibi does not operate as affirmative evidence of guilt or strengthen the Crown’s case: R. v. Coutts (1998), 40 O.R. (3d) 198 (C.A.), at p. 203, leave to appeal refused, [1998] S.C.C.A. No. 450; R. v. Al-Enzi, 2021 ONCA 81, at para. 38.

[112] However, a finding that an accused knowingly and intentionally fabricated or encouraged a false alibi can serve as evidence of guilt if it can also be inferred that the accused fabricated or participated in the fabrication of the alibi for the purpose of deflecting their guilt: Al-Enzi, at para. 38; R. v. Hibbert, 2002 SCC 39, [2002] 2 S.C.R. 445, at paras. 61-63. A fabricated alibi is incriminating after-the-fact conduct, not unlike destroying evidence or fleeing the scene of a crime to avoid detection.

The role of independent evidence of fabrication

[113] If a finding that an alibi is false or inaccurate could alone be used to infer that the alibi was also fabricated, the critical distinction between a disbelieved or false alibi and a fabricated one would disappear, and mere disbelief would improperly be treated as evidence of guilt: R. v. Baltovich, at para. 99. Similarly, it would become “far too easy to equate disbelief of an accused’s version with evidence of guilt” if the law did not require “evidence of concoction apart from evidence which contradicts or discredits the version of events advanced by the accused”: Coutts, at p. 203. Therefore, before an inference of fabrication may be drawn, there must be “other” or “independent” evidence of fabrication: Hibbert, at para. 67; R. v. O’Connor (2002), 62 O.R. (3d) 263 (C.A.), at para. 21.

[114] The requirement of “independent” evidence of fabrication does not mean that the nature, timing, and content of the alibi itself cannot support a finding of fabrication. It means that the evidence of fabrication must be separate from, or independent of, the evidence that points to an accused’s guilt by showing their alibi to be false: R. v. Ching, 2019 ONCA 619, 378 C.C.C. (3d) 284, at para. 47.

[115] Indeed, evidence that merely puts the accused at the crime scene, contrary to an alibi, cannot ground an inference of fabrication. Without more, such evidence is equally consistent with the accused having been honestly mistaken about their whereabouts at the time: Hibbert, at para. 61.

[116] In contrast, the nature, timing, and content of an alibi – in other words, the circumstances surrounding an alibi – can, in some cases, furnish evidence of fabrication: O’Connor, at paras. 24-27. For example, the fact that an accused pre-emptively volunteered a false alibi before they became a suspect can furnish circumstantial evidence that the alibi was prepared by the accused and then planted to mislead the police, particularly where that false alibi was detailed in nature: Al-Enzi, at para. 52; O’Connor, at para. 31.

[117] Another circumstance capable of serving as independent evidence of fabrication arises where significant parts of an alibi narrative are found to be deliberately and demonstrably false, rather than mere errors: R. v. Polimac, 2010 ONCA 346, 254 C.C.C. (3d) 359, at paras. 92 and 105, leave to appeal refused, [2010] S.C.C.A. No. 263; R. v. Hall, 2010 ONCA 724, 263 C.C.C. (3d) 5, at para. 165, leave to appeal refused, [2010] S.C.C.A. No. 499. For example, depending on their nature, contradictions between two or more versions of an alibi statement may circumstantially suggest that at least one of those versions must have been concocted: R. v. Shafia, 2016 ONCA 812, 341 C.C.C. (3d) 354, at para. 288, leave to appeal refused, [2017] S.C.C.A. No. 17. Likewise, dubious explanations for an admitted lie may invite an inference of fabrication: R. v. Selvanayagam, 2011 ONCA 602, 285 O.A.C. 134, at para. 32.

[118] Even the timing and subject matter of false information may, in certain cases, support an inference that an accused fabricated that false information: R. v. Stevenson, 2014 ONCA 842, 317 C.C.C. (3d) 385, at para. 93, leave to appeal refused, [2015] S.C.C.A. No. 37; Polimac, at para. 105. This could include changes made by an accused to their alibi story over time, as new information comes to light: R. v. Bradey, 2015 ONCA 738, 127 O.R. (3d) 721, at paras. 161 and 177.

[119] Moreover, evidence of dishonest efforts by an accused to deflect suspicion from themselves can also serve as independent evidence that may assist in showing the false alibi offered was fabricated: R. v. Blazeiko (2000), 48 O.R. (3d) 652 (C.A.), at para. 8; R. v. Hazel, 2009 ONCA 389, 95 O.R. (3d) 241, at para. 20.

[120] Ultimately, in order for independent evidence relating to a false alibi to be incriminating, it must be possible to reasonably infer from the totality of the evidence that: (1) the accused knowingly offered a false alibi, and (2) the accused deliberately did so because they had a culpable state of mind: R. v. Jones (2006), 81 O.R. (3d) 481 (C.A.), at para. 6.

Instructing a jury on an allegedly fabricated alibi

[121] In a jury trial, to equip a jury for their deliberations, a proper charge must instruct jurors to apply the principles outlined above that are relevant to the particular case.

[122] To begin, a trial judge must not invite jurors to infer that a false alibi is a fabricated alibi unless there is independent or “extrinsic” evidence that the statement was fabricated: Blazeiko, at para. 7.

[123] Where there is independent evidence that an alibi may have been fabricated, the trial judge must explain to jurors the difference between evidence leading to the mere disbelief of an alibi, and independent evidence of fabrication. The trial judge should then “carefully outline what evidence is capable of constituting independent evidence of fabrication”: O’Connor, at para. 38. If, after a functional analysis, it is determined that the trial judge has failed to do so, and that this failure prejudiced an accused’s right to a fair trial, a reversible error will have occurred: Al-Enzi, at paras. 43-45.

[124] Jurors must also be directed that if they find the accused fabricated the alibi, they may consider whether the accused did so for the purpose of concealing their involvement in the offences charged: Al-Enzi, at para. 41. The jury should be told that they may not treat a fabricated alibi as evidence of guilt unless they find that the reason the accused fabricated the alibi was to deceive as to their guilt.

(2) The Alleged Errors in the Jury Charge

[125] During oral argument, the appellant submitted that the trial judge committed two errors in his fabricated alibi charge. First, the appellant urged that it was an error to give such a charge at all, because there was no independent evidence of fabrication. [3] Second, the appellant argued that the trial judge erred in outlining for the jury the evidence capable of establishing fabrication by offering examples that are legally incapable of doing so. I will address each alleged error in turn.

(i) The foundation for fabrication

[126] I do not agree with the appellant that the first alleged error occurred. There was ample evidence that would enable a reasonable jury to conclude that the alibi was fabricated.

[127] First, from the outset – even before the appellant was a suspect – she repeatedly claimed in varying levels of detail that she had an alibi. She told Cst. Harris during their brief meeting shortly after the fire that she had spent the morning preparing for a birthday party. She told Ms. Lovering that she had been at Mr. Humble’s house before the fire and offered an unsolicited innocent explanation as to why she was there. She gave Mr. Serbinek, a stranger, an even more detailed innocent explanation of why she was at Mr. Humble’s house prior to the fire. Then, while the appellant was engaged in a routine non-suspect interview with Cst. Paddon regarding her movements on the day in question, she emphasized how early she had left Mr. Humble’s house, producing time estimates and a receipt to confirm her presence at Zehrs, many kilometres from the scene of the fire. When the appellant learned that the police had information that she had been at her father’s nursing home much later than she had told them, the appellant initiated contact with Cst. Paddon and offered additional details about her whereabouts that, if true, would have delayed her arrival at the nursing home, thereby keeping her alibi intact. One of those details, about being at Cardinal Gas Bar, in fact proved to be false. I am persuaded that a jury could infer, based on all of this evidence, that the appellant was anxious to plant a false version of events in order to deflect suspicion, and that she falsely attempted to modify the alibi as it fell into question.

[128] Moreover, there was evidence available to the jury from which to infer that the television and microwave had not been moved the morning of the fire. Only two to three hours after the fire, the appellant offered the delivery of the television and microwave as her innocent explanation for being at Mr. Humble’s house that morning. In my view, a jury could well conclude from these circumstances that this explanation was a fabrication, rather than a mistaken belief.

[129] The same is true about the evidence contradicting the appellant’s claim, made only two to three hours after she had been at her father’s nursing home, that she had stayed there for 15 to 20 minutes when in fact she had stayed there for only 3 minutes. In my view, the timing of this false information could support an inference of fabrication.

[130] There was also a strong foundation for the jury to infer that the appellant undertook a concerted campaign to provide the police with misinformation tending to exculpate her. This included the facts that the appellant pre-emptively and falsely disclosed that Mr. Humble had changed his will to make the appellant a beneficiary; erased the work she had done on the will from her computer; gave the police misleading information about when the will had been sent to Mr. Humble’s lawyer; falsely claimed to have forgotten her Alprazolam prescription at Mr. Humble’s house; and attempted to suborn Mr. Auliffe and Ms. Lashbrook to obstruct justice with false information about when they had witnessed the will and POA documents. In my view, a jury could well infer that the appellant’s alibi, proved to have been false, was not simply offered in error but was part of this overarching campaign of misinformation.

[131] Finally, there was trial counsel’s admission that the alibi was fabricated, albeit for the “innocent” purpose of convincing the police to stop pursuing the appellant as a suspect despite her innocence. If the jury rejected this innocent explanation for the admitted fabrication, it could well infer that the alibi was fabricated by the appellant to conceal her guilt.

[132] Simply put, this was not a case without a foundation for finding that the alibi was fabricated to conceal the appellant’s guilt. To the contrary, in my view, the evidence in this case provided a powerful basis for finding fabrication.

(ii) Evidence capable of establishing fabrication

[133] I do agree with the appellant, however, that the trial judge erred in outlining the evidence capable of establishing fabrication. He offered jurors four items of evidence for their consideration: (1) evidence placing the appellant at the scene of the fire within minutes of ignition; (2) evidence that the appellant was not at the Cardinal Gas Bar the day of the fire; (3) evidence that the items the appellant said she placed in Mr. Humble’s garage had not been moved that morning, and (4) the appellant’s creation of false documents coupled with her dire financial circumstances. In my view, none of these pieces of evidence, standing alone, can establish fabrication.

[134] Evidence placing the appellant at the scene shortly before the fire could, if believed, prove that the alibi was false, but it could not contribute to a finding that the appellant knowingly and intentionally fabricated the alibi. That evidence provided no logical pathway for inferring that the appellant was not simply mistaken about what time she was at Mr. Humble’s house and instead must have lied to conceal her guilt for his murder.

[135] Evidence that the appellant was not at the Cardinal Gas Bar shows that part of her alibi was false, but the fact that she was not at the Cardinal Gas Bar does not prove fabrication, standing alone, for the same reasons that proof of her presence at the scene shortly before the fire does not do so. What does show fabrication, however, is the timing of the appellant’s claim that she was at the Cardinal Gas Bar. She divulged this new detail shortly after learning that the alibi she had already offered would not work unless her arrival at her father’s nursing home was delayed. If true, the false detail about stopping at the Cardinal Gas Bar would have delayed her arrival. Yet, this is not what the trial judge told the jury. He simply pointed to the fact of the contradiction, rather than the timing of the contradicted claim.

[136] Although perhaps somewhat less clear, the same problem occurs with the direction to the jury that evidence contradicting the appellant’s claim that the television and microwave had been moved was independent evidence of fabrication. Once again, standing alone, the inaccuracy of the appellant’s claim that she moved the television and microwave is not evidence of fabrication, but the timing of that contradicted claim is. The appellant began telling people that she moved the television and microwave within a couple of hours of having allegedly done so. It is not realistic that in such short order she would have been mistaken about the detailed innocent explanation she had just offered for being at the house. Given the relative timing of this false statement, if the jury was to find that the television and microwave had not been moved, the only reasonable inference would be that the appellant had been lying. Perhaps this is what the trial judge had in mind. If so, however, in my view he should have given the jury more assistance on the matter.

[137] Finally, the appellant’s creation of false documents, alone, could not serve as evidence of fabrication. The existence of the false documents could only show the appellant’s dishonest character. This is not a proper basis upon which to infer that an alibi was fabricated. By contrast, the lies the appellant told to the police about those documents could have been used to show that the false alibi was part of a broader concerted effort to intentionally mislead the police. However, this is not what the trial judge told the jury.

[138] Therefore, in my view, the trial judge erred in instructing the jury, in the way that he did, that the four items discussed above could serve as independent evidence of fabrication.

[139] However, in the circumstances of this case, I am not persuaded that this constitutes reversible error. The trial judge’s purpose in outlining this evidence was to permit the jury to determine whether the alibi was fabricated. Given trial counsel’s admission that the alibi was indeed fabricated, there was no need for this exercise. Once that concession was made by trial counsel, the only live issue remaining for the jury was whether the alibi was fabricated to protect her innocence or to conceal her guilt.

[140] Accordingly, I would reject this ground of appeal.

C. DID THE TRIAL JUDGE ERR ON THE ALPRAZOLAM EVIDENCE?

[141] The appellant argues that the trial judge erred in admitting the Alprazolam evidence because there was no proof that the appellant caused Mr. Humble to take the drug, nor any evidence that he had enough Alprazolam in his system to sedate him, let alone to kill him.

[142] Relatedly, the appellant argues that the trial judge erred in leaving the jury with the Crown’s alternative theory that the appellant intended to kill Mr. Humble by overdose when she administered him Alprazolam, and only started the fire the next morning after discovering that she had failed to kill him by overdose. The appellant says this theory is circular.

[143] As I will explain, I would not agree that the trial judge erred in admitting the Alprazolam evidence, or in leaving the Crown’s alternative theory with the jury.

The clinical evidence regarding Alprazolam

[144] I accept that the clinical evidence about the amount of Alprazolam Mr. Humble had in his system was uncertain. This is due to the inherent limitations of clinical evidence of this type; that evidence confirmed that Mr. Humble had consumed the drug but could not verify the quantity of the drug in his system. Depending on the time it was administered and Mr. Humble’s elimination rate, the dose may have been negligible, but it may also have been significant. Neither of these variables were known.

[145] However, the jury was not confined to the clinical evidence. In my view, there was a network of circumstantial evidence that, along with the scientific proof that the drug was in Mr. Humble’s system, could enable a jury to reasonably infer that the appellant not only administered the drug, but that she did so as part of a plan to cause Mr. Humble’s death.

The circumstantial evidence regarding Alprazolam

[146] First, there was evidence before the jury that Alprazolam, the drug found in Mr. Humble’s system, is a fast-acting and powerful sedative. There was also evidence suggesting that Mr. Humble may have been sedated the evening before the fire. Specifically, the appellant described Mr. Humble as having been tired that evening. She tried calling him four times between 9:00 p.m. and 10:30 p.m., but he did not answer. Ms. Lovering was concerned about Mr. Humble’s well-being that evening because his house lights were normally on until close to 9:00 p.m., but she noticed that his house was dark much earlier. Moreover, although Mr. Humble’s inability to escape the fire may have been caused by the effects of the fire itself, the fact remains that he failed to escape while a drug was in his system which is known to cause dizziness, sedation, drowsiness, muscle weakness, incoordination, and/or impaired judgment.

[147] Second, there was a solid circumstantial foundation for an inference that the appellant was the source of the Alprazolam in Mr. Humble’s system. He did not have a prescription for the drug, but the appellant did. As someone who had assumed a caregiving role for Mr. Humble and assisted him by picking up a prescription for his own medication, the appellant was in position to furnish Mr. Humble with the drug. She was with Mr. Humble at his house the evening before the fire, giving her the temporal opportunity to give him the Alprazolam. She also had a significant amount of the drug to give. Moreover, there was a basis for inferring that much of the excess quantity of the drug the appellant possessed may have been consumed within days of the fire or prior, since she took steps to acquire more Alprazolam after the fire. It would have been open to a jury to infer on this record that Mr. Humble consumed some of the Alprazolam acquired by the appellant.

[148] Third, and most importantly, there was a foundation for inferring that the appellant caused Mr. Humble to take the Alprazolam as part of a plan to cause his death. She knew the drug was a sedative because she took it herself. I have already mentioned that in the days leading up to the fire she acquired two monthly prescriptions of the drug, giving her extra doses that would be available to administer to Mr. Humble. Of most concern, the appellant conducted an Internet search for information about Alprazolam, and about Amitriptyline overdoses, a drug the appellant told the police Mr. Humble was taking but which was not prescribed to him.

[149] Finally, after the fire, the appellant offered police a possible “innocent” explanation for how Mr. Humble could have self-medicated with Alprazolam, by telling them that she had left her prescription at his house, where it supposedly remained at the time of the fire. Notably, this account was not true; the appellant later retracted it after she was found in possession of Alprazolam. Given all the other independent circumstantial evidence in this case, it was open to the jury to have inferred that the appellant fabricated this account to hide her guilt.

[150] I appreciate that each of the inferences I offer are mere possibilities. However, viewed cumulatively, they reinforce my view that there was a solid basis both for the admission of the Alprazolam evidence, and for the Crown theory on how the drug was used by the appellant.

[151] Accordingly, I would reject this ground of appeal.

D. DOES THE PROVISO APPLY?

[152] As I have explained, in my view, the trial judge committed legal errors in admitting the Chapman letters as extrinsic misconduct evidence, and in his related jury direction. However, it is settled law that the curative proviso in s. 686(1)(b)(iii) of the Criminal Code may be applied, in an appropriate case, to similar fact evidence errors: R. v. Gul, 2021 SCC 14. As I will explain, I see this as an appropriate case to apply the proviso. In my view, notwithstanding the risk of prejudice that extrinsic misconduct evidence can present, the legal errors the trial judge made did not cause a miscarriage of justice because there is no reasonable possibility that the verdict would have been different had those errors not been made: see, R. v. Brown, 2018 ONCA 481, 361 C.C.C. (3d) 510, at para. 74.

[153] In support of this conclusion, I will address two sub-issues relating to the application of the proviso: (i) whether the proviso was properly raised before this court; and (ii) whether the evidence against the appellant was overwhelming enough to warrant applying the proviso and upholding her conviction.

(i) Whether the Crown Properly Raised the Proviso

[154] In my view, the proviso was properly raised before us. The application of the proviso was in issue because the Crown expressly invoked it relating only to the alleged legal errors in the jury charge relating to alibi. In the circumstances, the appellant not unreasonably assumed the Crown was confining its invocation of the proviso to the alibi issue and did not intend to invoke it with respect to the alleged errors regarding the Chapman letters.

[155] However, it is settled law that an appellate court may apply the proviso where the Crown has invoked it “implicitly”: see, R. v. Ajise, 2018 ONCA 494, 361 C.C.C. (3d) 384, at para. 32, aff’d 2018 SCC 51, [2018] 3 S.C.R. 301; R. v. Hudson, 2020 ONCA 507, 391 C.C.C. (3d) 208, at para. 49. In my view, the Crown implicitly invoked the proviso with respect to the Chapman letters.

[156] First, it is fair to say that the overall theme of the Crown’s response to the appellant’s entire appeal was that at trial there was a “mountain of circumstantial evidence” against her. The Crown refers to this “mountain of circumstantial evidence” in the first and last paragraphs of its responding factum. Similarly, in the third paragraph, the Crown derides the narrowness of the appellant’s grounds of appeal in the context of an “exceptionally powerful case”. During oral argument, the Crown opened its submissions with a lengthy overview of the overall case before addressing the alleged legal errors.

[157] Second, the proviso arguments the Crown expressly makes in addressing the fabricated alibi errors are equally applicable to legal errors regarding the Chapman letters.

[158] I am therefore satisfied that the Crown, by implication and in substance, invoked the proviso relating to all legal errors alleged in this appeal.

[159] Mindful that the appellant may have been misled by the fact that the Crown referred expressly to the proviso only in the context of the ground related to the jury charge on the fabricated alibi, we invited the parties back before us for additional submissions to address the application of the proviso more generally. Not surprisingly, the Crown confirmed its intention to rely on the proviso for all legal errors. More importantly, the appellant was given an opportunity to address the application of the proviso to the Chapman letter errors.

[160] Having heard the parties’ arguments regarding the proviso, I will now explain why I am persuaded that this is one of the rare cases where the proviso should be applied.

(ii) Whether the Crown’s Case Was Sufficiently Overwhelming

[161] I appreciate that in order for the proviso to be used to cure legal errors on the basis of the strength of the Crown’s case, the evidence must be “so overwhelming that a reasonable and properly instructed jury would inevitably have convicted”: R. v. Van, 2009 SCC 22, [2009] 1 S.C.R. 716, at para. 36. See also, R. v. Sekhon, 2014 SCC 15, [2014] 1 S.C.R. 272, at para. 53.

[162] I also appreciate that the ‘overwhelming evidence’ standard is a “substantially higher one than the requirement that the Crown prove its case ‘beyond a reasonable doubt’ at trial”: R. v. Trochym, 2007 SCC 6, [2007] 1 S.C.R. 239, at para. 82. This high standard is appropriate because if the proviso is relied upon, the accused stands convicted based not on an actual jury verdict rendered according to law, but on an appellate court’s assessment as to what the jury would have done had the legal error or errors not occurred.

[163] Nonetheless, I am persuaded that it is in the interests of justice to apply the proviso in this circumstantial evidence case, and that the Crown has discharged its burden of establishing that no miscarriage of justice occurred. Circumstantial evidence has been likened to the strands of a rope: see e.g., R. v. Morgan, 2013 ONSC 1522, [2013] O.J. No. 1211, at para. 66. Each strand may not be able to bear the weight of the case on its own, but when woven together those strands can form a powerful rope capable of hoisting a weight that can crush any pretense to reasonable doubt. Such is the case here, even without definitive proof of the cause of the fire.

[164] Indeed, I am confident that, even without the Chapman letters, the jury that tried the appellant – or any jury for that matter – would have had no difficulty in finding that the appellant stole large sums of money from Mr. Humble shortly before he died, and that the appellant falsified his will. The evidence that the appellant had stolen money from Mr. Chapman was strong enough that trial counsel did not seriously dispute it, and the evidence that the appellant had falsified the will was overwhelming, even setting aside the Chapman letters. Not surprisingly, therefore, the trial Crown made only brief mention of the Chapman letters in his closing submissions to the jury. This is not a case where the prejudicial impact of the extrinsic misconduct evidence could have influenced the outcome.

[165] I do not agree with the appellant that this evidence makes only for a powerful case of elder abuse, but not of murder. Had Mr. Humble survived, he likely would have discovered the thefts. It was in the appellant’s interest to ensure that this did not happen. As for the false will, while Mr. Humble was alive the appellant could have hoped for nothing more than to use it to inherit half of the remainder of his estate when he died of natural causes at some indeterminate point in time, if he did not execute a new will in the interim. But if he died immediately, she would get the money she urgently needed without delay.

[166] It is also revealing that the appellant asked Manulife to send a change of beneficiary form for a life insurance policy that she appears to believe existed. Like the benefit of a will, life insurance is useful to the beneficiary only once the insured dies. Further, not only did the appellant have good reason to want Mr. Humble dead, she was the one who had recently created the circumstances in which she would benefit from his immediate death. In my view, any jury would readily see this.

[167] The appellant’s opportunity to start the fire also became clear once her alibi disintegrated at trial. I appreciate that motive and opportunity, standing alone, may not prove guilt, even when the existence of the crime is not in issue. However, the appellant’s motive and opportunity must be examined in the context of the other evidence. The appellant was at the scene of the fatal fire, around the time the fire began, after having conducted Internet research on drug overdoses and a sedating drug that she had taken extraordinary steps to acquire in the days leading up to the fire, a drug which was found in the deceased’s body during the post-mortem. In my view, the inference that the appellant caused the drug to be there was irresistible on this evidence, as was the inference that she started the fire.

[168] Moreover, there was specific evidence that the appellant anticipated the fire and prepared for it. Recall her inventory of the contents of Mr. Humble’s home, her large cash deposit the evening before the fire, and her possession of financial and personal documents useful in accessing Mr. Humble’s assets after he died, documents one would expect to have been in Mr. Humble’s possession at the time of the fire. Add to this the evidence that the smoke detector battery had been removed almost immediately before the fire. On the evidence, this was not something Mr. Humble would have done, but it is something that the appellant had ample opportunity to do, given her recent intervention in all aspects of Mr. Humble’s life and her frequent attendance at his home.

[169] Then there was the powerful evidence of incriminating after-the-fact conduct that can only reasonably be explained by the appellant’s desire to hide her guilt. This includes her retracted explanation for how Mr. Humble may have had a drug prescribed to her in his system at the time of his death; her deletion of computer documents used to create the will; her lies relating to the creation of the will; and, most significantly, her fabricated alibi. These are not the acts of an innocent party. They speak loudly to the appellant’s guilt.

[170] In my view, in these circumstances and on this evidence, even without the erroneously admitted Chapman letters, a reasonable and properly instructed jury would invariably disregard any suggestion that an innocent, accidental fire happened to start around the time the appellant was present, and that it happened to kill the person whose death would enrich and protect her.

(iii) Conclusion on the Proviso

[171] I would therefore conclude that no miscarriage of justice occurred, and that the proviso can safely be applied in this non-credibility case.

CONCLUSION

[172] For the reasons above, I would dismiss the appeal.

Released: October 27, 2021 “B.W.M.” “David M. Paciocco J.A.” “I agree. B.W. Miller J.A.” “I agree. I.V.B. Nordheimer J.A.”

Footnotes

[1] By the time of trial, Mr. Auliffe and Ms. Lashbrook had married, such that Ms. Lashbrook appeared as a witness using her chosen married name, Dawn Auliffe.

[2] In a photograph of the microwave and TV tendered at trial, trial counsel identified what he suggested was a void in the dust on the edge of the television. Cst. Barnstaple suggested that this effect may have been produced by the camera flash but based on his direct observations, there was no void in the dust.

[3] This ground of appeal is not advanced in the appellant’s factum, where the appellant concedes that there “may have been evidence from which the jury could infer fabrication in this case”.