ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-14-159-MO
DATE: 2014-12-29

BETWEEN:

HER MAJESTY THE QUEEN
Respondent

– and –

MARTIN EDELENBOS
Applicant

Michael Flosman and Shannon Curry, for the Respondent

Philip Casey, for the Applicant

HEARD: In Writing

REASONS FOR JUDGMENT ON JUDICIAL SCREENING OF s. 745.6 APPLICATION

FUERST J.

Introduction

[1] Eileen Coffey, a 50 year old school librarian, went missing from her Beeton, Ontario home on January 5, 1998. Two months later, her body was recovered from the Toronto area landfill site where Martin Edelenbos worked. Ms. Coffey had been sexually assaulted. In addition, she suffered blunt force injuries to the neck and face. The cause of her death was manual strangulation.

[2] Mr. Edelenbos was arrested, and tried for Ms. Coffey’s murder. He admitted at trial that he sexually assaulted and strangled her in her home. After cleaning up the crime scene, he disposed of her body in the landfill site. He contended that when he strangled Ms. Coffey, he meant only to silence her screams, and did not mean to kill her.

[3] On May 25, 2000, Mr. Edelenbos was convicted of the first degree murder of Ms. Coffey. He was sentenced to life imprisonment with no eligibility for parole for twenty-five years.

[4] Mr. Edelenbos appealed to the Court of Appeal for Ontario. His appeal was dismissed in July 2004.[^1] The court described the case against him as strong, and his explanation that he choked Ms. Coffey to stop her from screaming as making little sense. The court observed that the evidence established that Mr. Edelenbos, knowing that Ms. Coffey’s boarder was out of town, stalked her on the morning of the attack, then later gained entry to her home and assaulted her there. He realized that she could identify him, and so he strangled her and hid her body in the landfill site.

[5] Mr. Edelenbos now applies under s. 745.6 of the Criminal Code (“the Code”) for an order terminating his parole ineligibility and allowing him to apply for parole forthwith.

[6] The Crown opposes the application. Crown counsel submit that it was not filed within the timelines set out in the Code, and should be dismissed for that reason. Crown counsel further submit that even if the application is considered on its merits, it should be dismissed and Mr. Edelenbos prohibited from applying for release on parole until he has served twenty-five years of his sentence.

The History of the Application

[7] Mr. Edelenbos filed his application with the Office of the Chief Justice of the Superior Court of Justice in late 2013. In March 2014, I was designated by the Chief Justice to conduct a judicial screening of the application under s. 745.61 of the Criminal Code, and decide whether a jury should be empanelled to hear the application.

[8] In addition to his Notice of Application, Mr. Edelenbos filed an affidavit with some, but not all, of his institutional records attached.

[9] Unfortunately, Crown counsel was not served with the application. There was a delay in the screening process while that deficiency was remedied. It then came to light that neither Correctional Service Canada nor Dorchester Penitentiary had been served with the application. There was a further delay while that service was effected.

[10] In the meantime, Crown counsel prepared responding materials. Those responding materials were provided to me in late October 2014. Crown counsels’ two volume set of responding materials included more expansive correctional records, transcripts and documents related to both a previous criminal conviction and to the murder of Ms. Coffey, and Victim Impact Statements.

[11] No written materials were filed on behalf of Correctional Service Canada or Dorchester Penitentiary. Both counsel for Mr. Edelenbos and counsel for the Crown were content that, in accordance with Rule 50.04(8) of the Court’s Ontario Review of Parole Ineligibility Rules,^2 I conduct this judicial screening based entirely on the written materials submitted on behalf of Mr. Edelenbos and the Crown.

[12] For the reasons that follow, I conclude that the application should be dismissed at the screening stage, on both the procedural ground and on the merits.

The Test

[13] Section 745.63(3) of the Criminal Code provides that on a s. 745.6 application, a jury may determine, by unanimous decision, that an applicant’s parole ineligibility ought to be reduced from twenty-five years to a lesser number of years.[^3]

[14] Section 745.61(1) provides that before a jury is empanelled to hear a s. 745.6 application, a judge must determine on the basis of written material, including the application, that there is a substantial likelihood that the application will succeed. This step is referred to as a judicial screening of the application.

[15] At the judicial screening stage, the onus is on the applicant to show on a balance of probabilities that there is a substantial likelihood that the application will succeed.

[16] The criteria to be applied are those set out in s. 745.63(1): the character of the applicant; the applicant’s conduct while serving the sentence; the nature of the offence for which the applicant was convicted; any information provided by a victim at the time of the imposition of sentence or at the time of the application; and any other matters the judge considers relevant in the circumstances.

The Procedural Issue: The Timing of the Application

[17] Mr. Edelenbos was arrested for the murder of Ms. Coffey on March 7, 1998. He had served fifteen years of his life sentence as of March 6, 2013. Under s. 745.6(2.1) of the Code, he was required to file his application within 90 days of that date, in other words by June 6, 2013.

[18] Section 745.6(2.7) permits the Chief Justice or his or her designate to extend the 90 day time limit for making the application to a maximum of 180 days if the person, due to circumstances beyond their control, is unable to make the application within the 90 day time limit. In this case, assuming the granting of the maximum extension, the deadline for filing the application was September 6, 2013.

[19] Mr. Edelenbos’ application is dated November 27, 2013. The affidavit in support was sworn on December 5, 2013.

[20] It is apparent that the application was not filed within either the 90 day or the extended 180 day time limit.

[21] In his affidavit, Mr. Edelenbos provided an explanation for the delay in filing his application. Essentially, he asserted that the delay was beyond his control. He described problems getting the assistance of his institutional Parole Officer, and problems getting legal aid funding because he was incarcerated in New Brunswick rather than Ontario.

[22] While these reasons might merit an extension of time from 90 days to 180 days under s. 745.6(2.7), even with the benefit of the extension the application is significantly out of time. The Code does not authorize the Chief Justice or her designate to grant an extension of time exceeding the maximum 180 days. The applicant did not point to any other authority that would permit the granting of an extension of time beyond the maximum 180 days. Presumably, by providing an ultimate deadline for the filing of an application, Parliament intended to provide a measure of certainty as to when such applications can be brought.

[23] Accordingly, because the application was made out of time, it must be dismissed.

The Application on its Merits

[24] In the event that I am wrong about the statutory timeline, I have considered the application on its merits, applying the criteria set out in s. 745.63(1).

[25] I consider each criterion in turn.

(a) The Character of the Applicant

Personal Background

[26] Mr. Edelenbos is now 51 years old. He was born in Nova Scotia. He moved to Ontario with his family as a teenager. He experienced a childhood and adolescence that was dysfunctional and chaotic. It was marked by conflict between his parents, described as a father who was unaffectionate, and a mother who was an alcoholic.

[27] Mr. Edelenbos had learning difficulties as a child, and was enrolled in special education classes. He also reportedly suffered more than one head injury over the years. Initially, he completed grade 10. Sometime later, he obtained his grade 12 equivalency.

[28] After leaving school, he worked at various trades, including welding.

[29] Mr. Edelenbos began to have a problem with alcohol when he was 15 years old. He also engaged in delinquent behaviour. He is described in a 2013 psychological assessment as having a long and significant alcohol abuse problem.

[30] At the time of Ms. Coffey’s murder, Mr. Edelenbos had been in a common law relationship for 15 years. He admits that there were marital problems. In particular, on one occasion, he choked his wife. Some time after he was charged with Ms. Coffey’s murder, he and his wife separated.

[31] Although he has three children with his former spouse, he has almost no contact with them.

[32] Mr. Edelenbos has a close relationship with a sister who lives in Nova Scotia. He maintains contact with his father. His mother is deceased.

Prior Criminal Activity

[33] Mr. Edelenbos has a prior criminal record. In 1984 he was convicted of fail to remain and theft over $200. In 1990 he was convicted of attempted fraud, and also of aggravated sexual assault. The sexual assault occurred after Mr. Edelenbos flagged down a female on the side of the road, dragged her into the ditch, tried to choke her when she refused to remove her pants, threatened to kill her, tried to force cunnilingus on her, and then had forcible sexual intercourse with her. Mr. Edelenbos pleaded guilty and received a sentence of 8 years in jail on February 27, 1990. He asserted that he was intoxicated at the time of the offence. A psychiatrist who assessed him in connection with his guilty plea described him as having serious difficulties with alcohol.

[34] Mr. Edelenbos was paroled in December 1992. He was bound by, and initially obeyed, a condition that he not use intoxicants. After a few years, his behaviour deteriorated. He began drinking again, a fact that he did not disclose to his parole officer. In December 1997, he and his wife falsely reported their car stolen.

[35] Mr. Edelenbos was still on parole when he committed the murder of Ms. Coffey.

Mental Health Issues

[36] Past institutional psychological assessments indicated that Mr. Edelenbos functions in either the low average or borderline range of intelligence. They also revealed that he has difficulty with memory. Psychiatric notes indicated a high probability of Bipolar Disorder and Attention Deficit and Hyperactivity Disorder, for which Mr. Edelenbos takes medication, and the possibility of Fetal Alcohol Spectrum Disorder. He is prone to drastic mood swings and feelings of intensive anger. He has had transient suicidal thoughts. Since 2012, he has attended individual counselling sessions to address emotional difficulties.

[37] A 2013 psychological risk assessment report, prepared by Michelle Manuel for the purpose of this application, described Mr. Edelenbos as having a serious substance abuse disorder, mainly alcohol. Although his disorder appears to be in remission in a controlled environment, he admittedly has used THC while incarcerated. On three occasions when he was subjected to random urinalysis, he tested positive for the presence of THC.

(b) The Applicant’s Conduct While Serving the Sentence

[38] After sentencing, Mr. Edelenbos was incarcerated for about one year at Millhaven Institution. He was then moved to Joyceville Institution. After only a few months he was transferred to Warkworth Institution, in October 2001. He was detained there or at Bath Institution until October 2011. At that time, he was transferred to Dorchester Penitentiary in New Brunswick, to be closer to his family.

[39] In 2013 he requested a return to Ontario, but that request was not granted. He remains at Dorchester Penitentiary, under a medium security classification.

[40] Mr. Edelenbos’ behaviour during his current sentence is described in an institutional report as being “mostly good”. He has had some institutional charges, including for possession of unauthorized items, but he has not been a major security concern. He has held institutional employment throughout his incarceration, including in the wood shop, and most recently in the upholstery shop. His work performance appraisals have been very good.

[41] Mr. Edelenbos states in his affidavit that while at Warkworth Institution from 2001 to 2005, he took part in a Restorative Justice program. He participated in music ministry programs at both Warkworth and Bath Institutions, and also at Dorchester Penitentiary.

[42] Mr. Edelenbos also states that he has taken “core programming in substance abuse, sexual offending, and anger management”. No confirmation of this was provided, other than a copy of a certificate confirming that he completed the Basic Workshop in Alternatives to Violence, in 2005. In her 2013 psychological assessment report, Ms. Manuel stated that Mr. Edelenbos had not participated in any core programming. This is also noted in a January 2013 institutional report rejecting his transfer request. Ms. Manuel reported that Mr. Edelenbos commenced the Moderate Intensity Sex Offender Program (“SOP”) in 2007, but that he denied the sexual component of his offence. She stated that when it was learned that he was in “an appeal process”, his participation in programming was cancelled until his appeals were exhausted. It is not clear what “appeal process” was ongoing at that time. Ms. Manuel also reported that he refused to participate in phallometric testing. More recently, he was placed on the waitlist for the SOP, but he told Ms. Manuel that he would not attend a program for sexual offenders. He is willing to attend a program to address issues related to violence and substance abuse.

[43] Ms. Manuel reported that Mr. Edelenbos denies elements of sexual assault of Ms. Coffey, which is inconsistent with his testimony at trial and the position that he took earlier in his sentence. For example, for the purpose of an assessment done at Millhaven Institution in September 2000, Mr. Edelenbos said that he engaged in non-consensual touching and cunnilingus with Ms. Coffey before he strangled her.

[44] Ms. Manuel reported that it is unclear whether the murder was motivated by elements of sexual deviancy, specifically arousal or interest in non-consensual sexuality, but that there is evidence suggestive of strong sexual impulses in the past and significant arousal control deficits. While Mr. Edelenbos appears to have some insight into his psychological functioning, he does not offer significant insight into his sexual offending. He appreciates the gravity of his offence, but he cannot explain why he took Ms. Coffey’s life.

[45] Ms. Manuel concluded that on the basis of various actuarial risk assessments, Mr. Edelenbos’ overall risk for sexual recidivism following release to the community fell in the high end of the moderate range, while his overall risk for violence (general or domestic) following release to the community fell in the moderate range. She concluded that because Mr. Edelenbos has not addressed his problem areas or attended any correctional programming, there is little to suggest that he will be able to manage his risk factors effectively if he is released into the community. The prognosis for successful reintegration into the community is poor, in her opinion.

(c) The Nature of the Offence

[46] In January 1998, Eileen Coffey was 50 years old. She was single, and lived in her own home in Beeton, Ontario. She worked as a school librarian. She had a boarder, who at one time was the girlfriend of Mr. Edelenbos’ father. As a result, Ms. Coffey and Mr. Edelenbos had some contact with one another.

[47] Mr. Edelenbos was then 34 years old. He had a common law spouse and three children. He worked at the Keele Valley Landfill site in the Toronto area.

[48] There was evidence at trial that on the morning of January 5, 1998, Mr. Edelenbos went by Ms. Coffey’s home, although he did not go in. He knew that her boarder was out of the province visiting family.

[49] Mr. Edelenbos went to work, but left at 2:35 p.m. He had been drinking. At trial, he testified that he then went to a friend’s home, where he consumed more alcohol and used marijuana.

[50] Ms. Coffey arrived at her Beeton home sometime after 4:45 p.m.

[51] At trial, Mr. Edelenbos testified that he was “feeling horny” and wanted to have sex. He admitted that he drove to Ms. Coffey’s home, to force her to have sex with him. He arrived there at approximately 5:00 p.m. He entered the house and almost immediately attacked, sexually assaulted, and strangled Ms. Coffey. He undid her clothing, removed her pants, penetrated her vagina and anus in some manner, and strangled her to death with his hands.

[52] At some point before her death, he inflicted blunt force injuries to her, including to her face. The pathologist testified that the nature and number of the injuries demonstrated the use of considerable force.

[53] After the murder, Mr. Edelenbos took steps to conceal it and his involvement. He wrapped Ms. Coffey’s body in a carpet and put it in the back of his truck. He removed a chair from the house that might have had evidence on it. He meticulously cleaned the floor in the house to try to remove blood and other evidence. He then drove to the home he shared with his common law wife and their children, fed the baby, washed his clothes, took a bath, and went to bed for a few hours. He got up and drove Ms. Coffey’s body to the landfill site where he worked, and dumped it there. He then went back to her house, retrieved the chair, took it to the landfill site and dumped it too. He also cleaned the back of his truck.

[54] On January 7, 1998, Mr. Edelenbos gave a statement to the police in which he lied about his activities on the night of January 5. He also admitted lying to his common law wife and his parole officer about that night. At trial, he described himself as “a grade A liar”.

[55] Around January 11, 1998, Mr. Edelenbos went to Niagara Falls. He intended to leave the country. He stayed in Niagara Falls for several days, until he was arrested for parole violation. He was later charged with first degree murder of Ms. Coffey.

[56] At trial, Mr. Edelenbos testified that he strangled Ms. Coffey to keep her from screaming. He did not mean to kill her.

(d) Any Information Provided By a Victim

[57] Ms. Coffey’s sister prepared a Victim Impact Statement (“VIS”) in May 2000. Because Mr. Edelenbos was sentenced immediately after the return of the jury’s verdict, she did not have the opportunity to present the VIS in court. In it, she wrote of feeling a depth of pain that could not be explained in words, and of the family having to face the fact that Ms. Coffey was gone forever.

[58] More recently, in a VIS prepared in June 2014, Ms. Coffey’s brother wrote that he thinks of his late sister all the time, that he avoids driving by her house and the landfill site where her body was found, and that his inability to protect her made him fearful for the safety of his entire family.

(e) Any Other Relevant Matters

[59] Mr. Edelenbos states in his affidavit that he caused the strangulation death of Ms. Coffey. He expresses feelings of regret and guilt for his act. However, he provides no details about his offence, or the motivation for its commission.

[60] The extent to which his bare assertions are indicative of true remorse is significantly diminished by the position he has taken when discussing his offence with institutional professionals. In particular, during interviews with Ms. Manuel, Mr. Edelenbos repeated an account of the murder that is significantly at odds with the testimony he gave under oath at trial. He told Ms. Manuel that he had been having an affair with Ms. Coffey for two years before the murder, that they had an argument in the course of which she threatened to tell his wife about the affair and called his son “retarded”, and that he “snapped” and strangled her. He denied any sexual activity with her on the day of her murder. He told Ms. Manuel that he concealed his affair with Ms. Coffey at trial because he did not want to further hurt his wife.

[61] Mr. Edelenbos also told Ms. Manuel that he lied at trial as a result of coaching by his lawyer, and that he believed he would get a lesser sentence if he were perceived as a sexual offender rather than a murderer. He said that he is pursuing a review for the opportunity to make an official record of what really happened, that he does not believe that he should ever be released because he took another person’s life, and that all he wants is to go to a farm camp.

Analysis

[62] No murder is without its disturbing aspects. The nature of the applicant’s offence, however, involved a considerable degree of callousness. Mr. Edelenbos used significant gratuitous violence against a woman he knew, and who, on the evidence adduced at trial, had done him no harm. It is apparent that he targeted Ms. Coffey to be the victim of his sexual aggression, and that he stalked her on the morning of her death. He killed her in her own home. The efforts he made to cover up the murder, and his involvement in it, were extensive and deliberate. The cover-up took both time and thought to execute.

[63] This was Mr. Edelenbos’ second sexually motivated offence, and the second time that he committed a sexually motivated offence while under the influence of alcohol. Of equal concern, it was the third time that he resorted to choking a female who was the victim of his aggression.

[64] The fact that Mr. Edelenbos was on parole for a sexual offence when he murdered Ms. Coffey raises obvious questions about his amenability to supervision in the community under the terms of an early release order.

[65] The application lacks the positive feature of evidence of family support for Mr. Edelenbos’ possible early release. There is no information from either his father or his sister that they would be willing and able to assist him in reintegrating into the community.

[66] Given all of these circumstances, Mr. Edelenbos’ failure to make substantial progress while incarcerated is important. His behaviour during his incarceration has been generally good, but he continues to be classified for medium security. He has taken few rehabilitative steps. He has yet to complete the SOP program, or indeed any core programming with the possible exception of a basic course in alternatives to violence. He refused to participate in phallometric testing. He has demonstrated limited insight into his problems and his offending behaviour. Despite his evidence at trial, he now denies the sexual component of the murder. He claims that Ms. Coffey provoked her own death, that he lied under oath at his trial, and that his lawyer engaged in serious misconduct at his expense. This reflects an entrenched and troubling willingness to foist blame on others, rather than to take responsibility for his own wrong-doing.

[67] In addition, Mr. Edelenbos has a longstanding and significant alcohol abuse problem that has not been addressed through treatment. While there is no evidence that he has used alcohol while incarcerated, there is evidence that he has used another form of intoxicant.

[68] Mr. Edelenbos’ risk of recidivism is of concern. Actuarial risk assessments indicate that his overall risk for sexual recidivism following release to the community falls in the high end of the moderate range, while his overall risk for violence (general or domestic) following release to the community falls in the moderate range.

[69] Based on these assessments, as well as the nature of the offence, Mr. Edelenbos’ present attitude about the offence, and his failure to complete programming while incarcerated, the prognosis for his successful reintegration into the community if he were released on parole is indeed poor.

Conclusion

[70] After applying the criteria set out in s. 745.63(1), I conclude that the applicant has not shown on a balance of probabilities that there is a substantial likelihood that his application to terminate his parole ineligibility and allow him to apply for parole forthwith will succeed before a jury.

[71] The application is dismissed. I order that Mr. Edelenbos may not make another application under s. 745.6(1), given his circumstances and the stage at which he is in serving his sentence.

Fuerst J.

Released: December 29, 2014

ONTARIO
SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN
– and –
MARTIN EDELENBOS

REASONS FOR JUDGMENT On JUDICIAL SCREENING OF s. 745.6 APPLICATION

Fuerst J.

Released: December 29, 2014

[^1]: R. v. Edelenbos (2004), 2004 875 (ON CA), 71 O.R. (3d) 698 (C.A.)

[^3]: That lesser number is determined by a two-thirds vote of the jury: s. 745.63(5).