CITATION: R. v. Cole, 2015 ONSC 200

BARRIE COURT FILE NO.: CR-13-113

DATE: 20150112

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Applicant

– and –

MARGARET LEE COLE

Respondent

M. Flosman and M. Villamil, for the Applicant Crown

J. Dennis and A. Kwan, for the Respondent Accused

HEARD: December 15, 2014

RULING ON THE ADMISSIBILITY OF THE CHAPMAN LETTERS

DiTOMASO J.

THE APPLICATION

[1] A voir dire was held on December 15, 2014 in respect of the Crown’s pretrial motion to determine the admissibility of the Chapman letters.

[2] The Crown seeks leave to place in evidence at the trial of this matter two letters dated April 6, 2009 (Exhibit 1) and March 18, 2009 (Exhibit 2) signed by Ronald Chapman, Barrister and Solicitor, former solicitor of the accused Margaret Lee Cole, and on his letterhead.

[3] The Crown alleges that these letters are “cut and paste” forgeries created by Ms. Cole. The Crown asserts that these letters are vital to a proper understanding of this case in that the letters show Ms. Cole was practiced in the art of manufacturing realistic looking forgeries by grafting her own words onto a previously existing document above a genuine signature. It is submitted that this is a skill that she would put to use in 2011 when she created a fictional Will in the name of Richard Humble without his knowledge, named herself as a beneficiary, attached it to Mr. Humble’s genuine signature and then set fire to Mr. Humble’s home. On April 9, 2011 Mr. Humble died as a result of burns suffered in the fire.

[4] Ms. Cole stands charged that on or about April 9, 2011, at the Township of Severn, she did commit first degree murder of Richard Humble.

BACKGROUND

The Chapman Letters

[5] Between 1999 and 2007 Ms. Cole was involved in a wrongful dismissal suit with her former employer. Her lawyer at the time was Ronald Chapman. During the course of the matter she borrowed large sums of money from her brother Randy Cole and his wife Mary Anne Cole to pay her lawyer’s bills and other incidentals. In the end, Ms. Cole received a settlement in the matter but did not repay the full debt owed to her brother and sister-in-law.

[6] In 2009, the debt to Randy and Mary Anne Cole still remained unpaid. As a result, they brought pressure to bear on Ms. Cole in hopes she would repay the debt. In response to this pressure and in an attempt to stave off their calls for repayment, it is submitted that Ms. Cole provided the Chapman letters to Randy and Mary Anne Cole. These letters are the subject of the Crown’s application.

[7] The Crown submits that the April 6, 2009 letter (Exhibit 1) is designed to placate her creditors with the promise of monies forthcoming and, the last paragraph, to dissuade them from pressing their case.

[8] Further, the Crown submits the letter of April 6, 2009 is written on the letterhead of Ronald Chapman, Barrister and Solicitor and bears his signature. While the signature and the letterhead are genuine, the Crown asserts the body of the letter is not.

[9] In respect of the letter dated March 18, 2009, again, it is on the letterhead of Ronald G. Chapman, Barrister and Solicitor. The Crown submits that this letter as well is a false document created by Ms. Cole for her own benefit. It contains the genuine signature of Mr. Chapman endorsed on a fake letter.

[10] The Crown asserts that these letters represent the template for what will come with greater skill and deception on the part of Ms. Cole two years later.

The Current Charge

[11] On April 9, 2011, Richard Humble, aged 82 died in a fire at his home in Washago. The Office of the Fire Marshall investigated the fire but was unable to establish the cause.

[12] The Crown describes the accused, Ms. Cole, as the “erstwhile caregiver” to Mr. Humble. In the days following Mr. Humble’s death, it is alleged she produced a signed and witnessed Last Will and Testament of Richard Humble that made her beneficiary to a substantial portion of his Estate. She seemed to be the only person aware that Mr. Humble had changed his Will in such a fundamental way and there were a number of documents that came to light in and around that time that seemed to give credence to the notion that Mr. Humble had indeed included her in his Will.

[13] A Continuing Power of Attorney for Property was found at Tab 2 of the Crown’s Application and a Power of Attorney for Personal Care was found at Tab 3. Both were signed by Mr. Humble and dated March 24, 2011. Both were duly witnessed and both designated Ms. Cole as his attorney.

[14] The Will itself was dated March 31, 2011, signed by Mr. Humble and like the Powers of Attorney, duly witnessed. This document was found at Tab 4 of the Crown’s Application.

[15] At Tab 5 was found a letter dated March 31, 2011 to Chrisandra Firth, Barrister and Solicitor, above the signature of Richard Humble. Ms. Firth had been Mr. Humble’s solicitor and had prepared his existing Will some years earlier. This letter (which was not received by Ms. Firth until April 13, 2011 – see Agreed Statement of Facts regarding Canada Post and Exhibit 59 at Tab 9 of the Crown’s Application) clearly stated that Mr. Humble had revoked his previous Will and was asking for any documentation that may be in Ms. Firth’s possession.

[16] The Crown submits that expert evidence will show the signatures on all four of these documents to be that of Mr. Humble. While on the surface, it would appear that all was proper in respect of the changing of the Will, the Crown submits that other factors were in play.

[17] In 2011 Ms. Cole was once again having significant financial problems. Her brother Randy and Mary Anne Cole were pressing her for payment of the unresolved debt. In the days leading up to the fire, Ms. Cole deposited into her account two cheques drawn on the account of Richard Humble in the total amount of $65,000. The Crown submits these cheques bore the forged signatures of Richard Humble. At this time, the debt to her brother and sister-in-law totalled close to $200,000. Allegedly, inclusion in Mr. Humble’s Will would have solved Ms. Cole’s financial problems.

[18] Further, there is evidence that the Will was created in secrecy on Ms. Cole’s computer beginning on April 4, 2011, mere days before Mr. Humble’s death and many days after the purported date of signing. The Will and both Powers of Attorney name as witnesses two confederates of Ms. Cole. Their evidence will be that they witnessed the Will and Powers of Attorney some days after Mr. Humble perished in the fire.

[19] The letter to Chrisandra Firth although dated March 31, 2011 was probably created on Ms. Cole’s computer at the same time as the Will (created April 4, 2011) and not mailed until either April 8 or 9, 2011. Only Mr. Humble and Ms. Cole were present at the signing of these various documents.

[20] The Crown asserts that each of these documents is a fake; that Richard Humble never had any intention of making the accused Margaret Lee Cole a beneficiary of his Will; and that Mr. Humble did not knowingly sign the documents described.

[21] It is the theory of the Crown that Mr. Humble, at the behest of Ms. Cole, unwittingly appended his signature to a number of papers or documents and that he was neither aware of the true nature of what he was signing nor the intention that came with Ms. Cole’s request.

[22] With those signatures in hand, the Crown asserts that Ms. Cole then melded them with a document that she created to produce the Will and supporting documentation which were all false. The net effect of these documents was to give the impression that Mr. Humble had, without disclosing his intention to anyone else, decided to make Ms. Cole a significant beneficiary of his Estate upon his death. At the heart of this Application is the admissibility of the Chapman letters which, according to the Crown, provide a window through which one can view how Ms. Cole committed fraud through specifically manipulating forged documents for her own benefit.

POSITION OF THE CROWN AND DEFENCE

Position of the Crown

[23] The Crown seeks to admit the two Chapman letters as extrinsic evidence (or similar fact evidence of prior discreditable conduct). It is submitted that the accused Margaret Lee Cole created a number of false documents to which she appended Mr. Humble’s real signature. These documents were described as the Powers of Attorney, Will and letter to Chrisandra Firth. These forgeries were created at the same time to create the illusion that Mr. Humble had legitimately changed his Will.

[24] The Chapman letters provide insight as to Ms. Cole’s methods in fixing Mr. Chapman’s bona fide signature to two false letters. The Crown asserts that this is the same modus operandi employed by Ms. Cole in fabricating forged documents signed by Mr. Humble.

[25] The Crown submits that the Chapman letters are very important as they display a similarity in purpose and method between those documents and the Chrisandra Firth letter. It is submitted that the Chapman letters were designed by Ms. Cole to dissuade persons from pursuing her for monies owing. The Firth letter was also designed by Ms. Cole to dissuade persons from investigating too deeply about the bona fides of Mr. Humble’s changed Will.

[26] As to the methodology employed by Ms. Cole, expert evidence contained in the Crown’s Application at Tabs 7 and 8 (reports of Peeter Pajos, Centre of Forensic Sciences) identified the “cut and paste” method of forgery regarding the Chapman letters, Will and Firth letter. As well, Mr. Pajos provided expert evidence in respect of signatures on the forged cheques.

[27] The Crown submits that the Chapman letters are admissible. The tests for admissibility have been satisfied. The Chapman letters are relevant, material and have probative value. Lastly, the probative value of the Chapman letters outweighs their prejudicial effect. Accordingly, the Crown submits the Chapman letters ought to admitted into evidence.

Position of the Defence

[28] On behalf of Ms. Cole, it is conceded that the factors of relevancy and materiality have been satisfied by the Crown in respect of the Chapman letters. The defence also concedes that there is evidence of probative value. The seven factors set out in R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908 were reviewed in this regard.

[29] The main argument on behalf of the defence is that moral prejudice outweighs probative value. The defence submits, by any other name, the evidence being proposed by the Crown is inadmissible propensity evidence which promotes prejudicial reasoning of the worst kind. The defence submits that the Chapman letters being so prejudicial, outweigh their probative value and they should therefore be excluded.

ANALYSIS

Evidence

[30] On the voir dire, Mary Anne Cole, sister-in-law of the accused Margaret Lee Cole and Lisa Whiting, long-time law clerk to Ronald Chapman, Barrister and Solicitor, both testified.

Evidence of Mary Anne Cole

[31] She is the sister-in-law of the accused. She is married to Randy Cole, brother of the accused. In 2009 there was frequent contact with the accused. Mary Anne Cole saw the accused four to five times a month and talked to her every day.

[32] Her evidence was that she and Mr. Cole had loaned substantial amounts of money approximately $200,000 to the accused ostensibly in connection with a wrongful dismissal action brought by the accused against her former employer.

[33] Up until 2009, no monies were repaid. Many efforts were made by Mary Anne Cole and her husband Randy to collect repayment of the debt from the accused but without success. Although many promises were made, no monies were ever repaid to Mary Anne Cole and her husband. The accused always had some reason for not being able to attend any face to face meetings regarding repayment.

[34] The next event was the receipt by Mary Anne Cole of a letter dated March 18, 2009 from Mr. Chapman to the accused. This is the letter that refers to the amount of $419,260. She does not believe that she spoke to the accused about this letter and a subsequent letter received dated April 6, 2009.

[35] In respect of the letter dated March 18, 2009, Mary Anne Cole never contacted the offices of Ronald Chapman nor did she speak with Lisa Whiting.

[36] These letters came in an envelope addressed to Mr. Cole. She does not remember if the return address was marked on the letters.

[37] She subsequently received a letter dated April 6, 2009 being a letter from Mr. Chapman to the accused. The first paragraph of the letter referred to a telephone conversation between Mr. Chapman and Ms. Cole advising that the Department of Justice was taking into consideration the possibility of providing both the funds to her owed by Four Seasons Aviation. The second paragraph of the letter stated that the Government would then recover the funds through Canada Revenue Agency. Ms. Cole testified that she did not believe the accused and wanted to know if everything was legitimate.

[38] Paragraph 3 of the letter related to a discussion between Mr. Chapman and the accused regarding Mary Anne Cole. It is alleged that Mr. Chapman suggested that the accused let Mary Anne Cole know about the kind of people the accused was dealing with and specifically Ms. Rucchetto’s schizophrenia. Mary Anne Cole never heard of this person. The letter also went on to talk about many people trying to help recover these funds insinuating that they were very knowledgeable and capable of dealing with this recovery on their own with the Department of Justice and the Privacy Commissioner. Ms. Cole had no knowledge of any such reference. She never heard of the involvement of the Privacy Commissioner before.

[39] She was skeptical about these letters that she had received. In between receiving the two letters, Mr. and Mrs. Cole were trying to set up appointments with the accused but something always came up.

[40] While Mr. Cole gave up pursuing his sister in frustration, Mary Anne Cole did not.

[41] Mary Anne Cole testified that she believed the accused wrote these letters. The text was crooked and looked like a cut and paste job. Further, the text and language was not that of a lawyer.

[42] Even though one letter suggested that the accused was successful in her lawsuit, Mary Anne Cole and Randy Cole still had not received any money. There was nothing about what was said in the letters that led Mary Anne Cole to believe that these letters came from the accused.

[43] I accept the evidence of Mary Anne Cole as credible and reliable. She presented as a witness who knew what she was talking about. Her truthful evidence was not shaken or controverted on cross-examination.

Evidence of Lisa Whiting

[44] Ms. Whiting has been employed as the law clerk for Ronald Chapman, Barrister and Solicitor for almost 25 years. She described her duties which would include drafting pleadings and correspondence for Mr. Chapman. Routinely, Mr. Chapman would provide her with a memo, she would draft the correspondence for his approval, and he would sign off on the correspondence.

[45] She testified that she was familiar with Mr. Chapman’s letterhead and his signature. Ms. Whiting had a more formal letterhead.

[46] She was familiar with the accused Margaret Lee Cole with whom Mr. Chapman had a solicitor and client relationship. She testified that correspondence had been sent to the accused by mail and by fax.

[47] She was testified in respect of Exhibit 1, the April 6, 2009 Chapman letter. This letter is on her letterhead. She testified that she did not write this letter. The date and the bottom of the letter are not “justified” meaning that they were not aligned with the “re: line and the signature line”. The left hand margin was not aligned. The date was not aligned and the three paragraphs that form the body of the letter were not aligned.

[48] As for the content of the letter, neither the Department of Justice nor the Privacy Commissioner were involved in this case. The last sentence of paragraph 1 is grammatically incorrect.

[49] As for paragraph 2 of the letter Ms. Whiting was not aware that Canada Revenue Agency was involved in this case. As for the last paragraph (paragraph 3), she would not have capitalized “sister-in-law” and the wording contained in that paragraph was not her wording. Further, it was not something that Mr. Chapman would say that his services would only cost the accused money and that she was very knowledgeable and capable of dealing with this matter on her own.

[50] While the letter is finished appropriately with “yours very truly,” the letter references an enclosure but the body of the letter does not indicate any enclosure.

[51] If this letter existed it would have been saved in Mr. Chapman’s document system. Only Mr. Chapman and his assistant would have access to the letter. The system was searched for this letter dated April 6, 2009. Ms. Whiting testified there was no correspondence sent to the accused on that date.

[52] She was questioned about Exhibit 2 being the letter dated March 18, 2009. Again, she recognized her letterhead. She went through the text of the letter. Neither she nor Mr. Chapman wrote this letter. The date of the letter and the body of paragraphs 1 and 2 were not lined up with the rest of the letter. The signature was Mr. Chapman’s signature. This letter was not sent to the accused on March 18, 2009.

[53] As to the contents of the letter, a reference to “judgments” in the plural is incorrect. There were no transcribed judgments. The amount of $419,260 is incorrect.

[54] The amount of $381.70 was not the amount owing on the file. Further, Mr. Chapman would not informally refer to Ms. Whiting as “Lisa”.

[55] Ms. Whiting testified that between March 18, 2009 and April 6, 2009, the accused’s file was not active. The last dealing with the accused was in February of 2007. There was correspondence sent to the accused in October of 2009. No other civil proceedings were involved regarding this file. No other family members were written to by Mr. Chapman. The only correspondence was directed to the accused.

[56] Ms. Whiting presented as a knowledgeable and trustworthy witness. Her truthful evidence was credible, reliable and accepted by this court. Ms. Whiting was not cross-examined. Her evidence is uncontroverted and unchallenged.

General Applicable Principles

The general exclusionary rule

[57] Instances of misconduct on the part of the accused extrinsic to the charge before the court are inadmissible unless the prosecution satisfies the Court on a balance of probabilities that the evidence to be proffered meets the threshold for admission and that the probative value of same outweighs its prejudicial effect.[^1]

[58] Extrinsic misconduct describes evidence on the part of the accused that does not form part of the offence. Extrinsic misconduct includes conduct that occurs before, at the same time, or after the actions that underpin the subject matter of the charge.[^2]

The Threshold Test

[59] When evidence of extrinsic misconduct is tendered for admission, there are four questions that must be affirmatively answered before the probative value/prejudicial effect analysis can be undertaken:

(1) Is the conduct that of the accused?

(2) Is the evidence relevant?

(3) Is the evidence material?

(4) Is the conduct discreditable to the accused?[^3]

(1) Is the conduct that of the accused?

[60] It is clear from the evidence that Ms. Cole created the Chapman letters. The original signature of Mr. Chapman was affixed to “cut and paste” letters which did not originate from Mr. Chapman’s office. Ms. Cole was in possession of letterhead from Mr. Chapman’s office as he had been her solicitor in respect of her wrongful dismissal case. Many pieces of correspondence had been sent from Mr. Chapman’s office to Ms. Cole but not the letters dated March 18, 2009 and April 6, 2009. I accept the uncontroverted evidence of Mary Anne Cole and Lisa Whiting as well as the evidence contained in the reports of Peeter Pajos in finding that Ms. Cole created the Chapman letters.

(2) Is the evidence relevant?

[61] Counsel for the accused had conceded relevance.

[62] Nevertheless, in R. v. Luciano, relevance has been described as follows:

Relevance is not an inherent characteristic of any item of evidence. Relevance exists as a relation between an item of evidence proposed for admission and a proposition of fact that the proponent seeks to establish by its introduction. Relevance is a matter of everyday experience and common sense. Attaching a label like “evidence of after-the-fact conduct” or “post-offence conduct” to an item of evidence does not establish its relevance. An item of evidence is relevant if it renders the fact it seeks to establish slightly more or less probable than it (the fact) would be without the evidence, through the application of everyday experience and common sense.[^4]

A piece of evidence is not irrelevant merely because it can be interpreted in more than one way, or more than one inference can be drawn from it. There must be some connection or nexus between the evidence and a fact in issue. Relevance must be established in the context of the case as a whole.[^5]

Provided the inference advanced is one that is reasonably available on the evidence, the Crown has established that the evidence is relevant.[^6]

[63] Relevance must be established in the context of the entire case.[^7]

[64] What is essential is that the item of evidence must reasonably show, by the application of every day experience and common sense that the fact is slightly more probable with the evidence than it would be without it.[^8]

[65] Provided the inference advanced is one that is reasonably available on the evidence, the proponent has established that the evidence is relevant.[^9]

[66] I find the Chapman letters are relevant as they show:

(a) Such forgeries are possible

(b) The accused is capable of creating such forged documents

(c) The accused’s modus operandi for committing fraud is the creation and use of such forgeries.

[67] The evidence is relevant as it speaks to Ms. Cole obtaining legitimate signatures, affixing them to fabricated and false documents in order to create the aura of legitimacy to suit her own purposes. The Chapman letters were of the “cut and paste” variety. Mr. Chapman never authored those letters and never signed them.

[68] The same conduct on the part of the accused is attributed to the creation of the Will, Powers of Attorney and the Chrisandra Firth letter. The Crown asserts that while Mr. Humble’s signatures are genuine, his signatures appear on documents created by Ms. Cole – which documents are forgeries signed without Mr. Humble’s knowledge. The Crown submits that this is one circumstance that the jury can consider in order to determine if the fire that killed Mr. Humble was deliberately set by the accused.

(3) Is it material?

[69] The defence has also conceded materiality.

[70] Nevertheless, in R. v. Luciano, materiality is described in the following way:

To make its way into a criminal trial, an item of evidence must also be material. Evidence is material if what it is offered to prove or disprove is a fact in issue. What is in issue is determined by and a function of the allegations contained in the indictment and the governing procedural and substantive law. If the fact the evidence is offered to prove is not in issue, for example because of an admission, the evidence is immaterial: Candir at para. 49.

In a prosecution for unlawful homicide charged as murder, evidence that tended to show the identity of the killer and the killer’s state of mind contemporaneous with the killing would be material.[^10]

[71] The fact in issue is whether the genuine signature of Mr. Humble is affixed to a genuine Will and supporting documents. The Crown submits that while the signatures are genuine, the Will and those supporting documents are fakes and, further, Mr. Humble’s signatures were secured under false pretences. In addition, the Crown submits that if the Will is a fraudulent document and if it was created before the fire that killed Mr. Humble was set, then the Will alone is a powerful piece of evidence of planning and deliberation. The Chapman letters constitute one piece of circumstantial evidence suggestive that the Will (and supportive documentation) is not genuine. I find that the Chapman letters are material and constitute one piece of circumstantial evidence suggestive that the Will and supporting documentation are not genuine.

(4) Is the conduct discreditable to the accused?

[72] The answer to this question is yes.

[73] As the four questions posed by Watt J.A. in Luciano by way of a threshold test have been answered affirmatively, the balancing process begins with an assessment of the probative value of the proposed evidence, namely; whether the probative value of the evidence outweighs its prejudicial effect.

[74] In R. v. B.(L.), the Court of Appeal set out guidelines for assessing the probative value of evidence as well as an assessment of the prejudicial effect of that proposed evidence.

[75] First, in assessing the probative value of the proposed evidence, the Court of Appeal states that consideration should be given such matters as:

(i) The strength of the evidence;

(ii) The extent to which the proposed evidence supports the inference sought to be made from it (this factor will often correspond to the degree of similarity between the prior misconduct and the conduct forming the subject – matter of the charge); and

(iii) The extent to which the matters it tends to prove are at issue in the proceedings.[^11]

[76] Defence counsel has also conceded that there is evidence of probative value.

[77] He reviewed the seven factors set out in R. v. Handy at para. 82. There, the Court set out factors connecting the similar facts being proposed to the circumstances set out in the charge.

[78] Defence counsel submitted:

(1) As for proximity of time of the similar acts, the impugned conduct of the accused occurred two years apart;

(2) To the extent that the other acts are similar in detail to the charged conduct, it was conceded that the two Chapman letters were similar for the same purpose, i.e., attaching genuine signatures to false documents to further the accused’s purposes;

(3) As for the number of occurrences of the similar acts, the Chapman letters as well as the Will and supporting documents were identified. While it was submitted that the outcomes were different, the genuine signatures were melded onto each of the impugned documents;

(4) (5) and (6) There were no intervening events;

(7) This fact relates to the other factor which would tend to support or rebut the underlying unity of the similar acts. Nothing further was offered in respect of this point.

[79] I find that the Chapman letters represent strong evidence. They support the proposition proposed by the Crown that Ms. Cole obtained the signatures of Mr. Humble – genuine signatures attached to false documents without his knowledge. The accused 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.

[80] I accept the Crown submissions that the Chapman letters provide overwhelming probity. They serve as a template for what Ms. Cole 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;[^12]

(2) The proposed evidence demonstrates that the accused Margaret Lee Cole has some experience and facility in creating such documents;

(3) The proposed evidence illustrates Ms. Cole’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 Ms. Cole became much more adept in providing the finished product of Mr. Humble’s changed Will.

[81] The evidence supports the plausibility that Ms. Cole was entirely capable of obtaining Mr. Humble’s signatures without his knowledge and appending them to false documents. The proposed evidence supports that not only she is capable of creating such false document 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.

[82] The Chapman letters have a particular importance when viewed with the creation of the false documents by Ms. Cole two years later. This proving or disproving the bona fides of the Will is central to a critical issue in this trial, namely, the identity of the person who set the fire. If the Will and supporting documents are fakes created by Ms. Cole and if other evidence establishes that they were created before the fire, then these documents touch upon issues of planning and deliberation.

[83] The trial judge will instruct the jury that they can only find the accused guilty on the basis of circumstantial evidence where they are satisfied that guilt is the only reasonable conclusion to be drawn from the whole of the evidence. The Chapman letters are but one piece of the evidence but an important piece. The Chapman letters go to not only who created the documents but who started the fire and to the improbability of coincidence.

Prejudice

[84] The second step in the balancing process involves an assessment of the prejudicial effect of the proposed evidence. The final step in the decision about admissibility requires the judge to balance probative value and prejudicial effect and to determine where the balance falls.

[85] In assessing the prejudicial effect of the proposed evidence, consideration should be given to the following matters:

(i) How discreditable it is;

(ii) The extent to which it may support an inference of guilt based solely on bad character;

(iii) The extent to which it may confuse issues; and

(iv) The accused’s ability to respond to it.[^13]

[86] The main thrust of defence counsel’s argument addresses the question of moral prejudice of weighing probative value. He argues that propensity evidence by any other name is still propensity evidence and this is exactly what the Crown improperly proposes to do regarding the Chapman letters. He relies upon the principles set out in R. v. Handy, found at para. 31 (“general disposition or propensity and the general exclusionary rule). Para. 72 (the prohibition against proof of general disposition of bad character, “moral prejudice”) and para. 139 (moral prejudice).

[87] It is submitted that the moral prejudice inherent in the Chapman letters outweighs the probative value it generates. It is submitted that the Chapman letters are proffered as evidence to show her general bad character. The defence submits that the admissibility of the Chapman letters is nothing more than evidence of “bad personhood” in that if the accused forged the Chapman letters then she must have forged the Will and supporting documents. The proffered evidence is so prejudicial that it outweighs the probative value and therefore the evidence of the Chapman letters ought to be excluded.

[88] With respect, I disagree.

[89] It is well established that propensity reasoning in and of itself is not prohibited. Rather it is propensity reasoning that is based solely on the general bad character of the accused as revealed through evidence of discreditable conduct which is prohibited. The forbidden line of reasoning is that which leads to the conclusion that the accused committed the offence with which she is charged based, not on the strength of the evidence which has a connection to the issues in the case, but rather, on the strength of the evidence that she is “a bad person” who would have a tendency to commit this offence. Only evidence with a real connection to the case will be admitted as opposed to evidence that merely adds to the risk of a wrongful conviction. As a final safeguard, whenever this kind of evidence is admitted, the jury must be directed to consider it in relation to the relevant issues in the case and to guard against jumping to unwarranted conclusions based on bad character alone.[^14]

[90] I do not agree that the Chapman letters are being proffered solely for the purpose of prohibited propensity evidence. Rather, this evidence is being proffered to establish that the accused forged Mr. Humble’s Will and related documents. It is not being tendered to simply blacken her character or to infer guilt from general disposition or propensity. While the evidence points to Ms. Cole’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. I find the Chapman letters will not confuse the issues, create the risk of an unfocused trial and produce a wrongful conviction. Further, I am not of the view that the evidence is of the prohibited kind, inferring from general disposition or propensity. The jury will hear some evidence in respect of the debts owed to Randy and Mary Anne Cole to show Ms. Cole’s financial situation. The proposed evidence of extrinsic misconduct is not so egregious in comparison to the case as a whole so as to distract a jury from the issues they have to decide or inflame their passions against the accused. The Chapman letters will not cloud the jury’s judgment. Rather, I find the Crown proffers the Chapman letters to show that the accused forged the Will and related documents rather than prove and convict the accused because of what she is, rather than what she did.[^15]

[91] Ms. Cole had adequate opportunity to respond to this evidence. Mary Anne Cole was called as a witness and cross-examined by defence counsel. Lisa Whiting was also called as a witness on this voir dire and was not cross-examined by defence counsel. I have found the evidence of these witnesses to be credible and uncontroverted. I have also accepted the expert evidence of Peeter Pajos as set out in his reports dated October 9, 2013 and October 11, 2011 found in the Crown’s Application.

Balancing Probative Value Against Prejudice

[92] In R. v. Handy, the court addressed the weighing up of probative value versus prejudice as follows:

As probative value advances, prejudice does not necessarily recede. On the contrary, the two weighing pans on the scales of justice may rise and fall together. Nevertheless, probative value and prejudice pull in opposite directions on the admissibility issue and their conflicting demands must be resolved.[^16]

[93] Like other admissibility rules, the rule that generally excludes evidence of extrinsic misconduct tendered by the prosecutor allows its introduction by exception. The exception becomes engaged when the probative value of the evidence exceeds its prejudicial effect.[^17] The final step in the decision about admissibility requires the judge to balance probative value and prejudicial effect and to determine where the balance falls.[^18]

[94] I find that the probative value of the Chapman letters outweighs their prejudicial effect and therefore, they ought to be admitted into evidence. The balancing of probative value and prejudicial effect favours admission on the basis of reasons stated above. Ms. Cole’s forgery of the Chapman letters provides insight regarding her alleged forgery of Mr. Humble’s Will and supporting documents. It supports her modus operandi and the purpose for the falsification of documents, namely, to further her own ends. In respect of the Chapman documents, that end was to deflect or defer the payment of an outstanding debt to Randy Cole and Mary Anne Cole. With respect to the changed Will of Mr. Humble, the forgery as alleged by the Crown was motivated by greed and the necessity to resolve her financial problems. Further, it may also provide some basis upon which the jury could infer planning and deliberation on the part of Ms. Cole and that she set the fire that killed Mr. Humble. I am aware that the jury requires instruction in respect of the nature and use of circumstantial evidence. Ultimately, I find that the prosecution has satisfied this court on the balance of probabilities that in the context of this particular case, the probative value of the proposed evidence in relation to issues identified outweighs its potential prejudice and therefore justifies its reception.

CONCLUSION

[95] For the foregoing reasons, the Crown’s Application is granted. The Chapman letters constitute admissible evidence.

DiTOMASO J.

Released: January 12, 2015

[^1]: R. v. Luciano,2011 ONCA 89, [2011] O.J. No. 399 (C.A.), paras. 217 – 222, R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, paras. 41, 49 and 55

[^2]: R. v. Luciano, supra, paras. 218 and 223-225

[^3]: R. v. Luciano, supra, at para. 227

[^4]: R. v. Luciano, ibid, para. 204

[^5]: R. v. Luciano, ibid, para. 205, See also R. v. Underwood, 2002 ABCA 310, [2002] A.J. No. 1558 (C.A.), para. 25

[^6]: R. v. Luciano, supra, at para. 242

[^7]: R. v. Luciano, ibid. para. 205

[^8]: R. v. Luciano, ibid. para. 204

[^9]: R. v. Luciano, ibid, para. 242

[^10]: R. v. Luciano, supra, paras. 207-208

[^11]: R. v. B.(L.), 1997 3187 (ON CA), [1997] O.J. No. 3042 (Ont.C.A.) at paras. 23 and 24; R. v. Luciano, supra, at para. 230

[^12]: R. v. Kowall, 1996 411 (ON CA), [1996] O.J. No. 2715 (C.A.) at paras. 22 - 24

[^13]: R. v. B.(L.), supra, at paras. 23 and 24; R. v. Luciano, supra, paras. 232 - 235

[^14]: R. v. B.(L.), supra, at paras. 45-46, 48 and 49

[^15]: R. v. Handy, supra, at para. 139; R. v. Luciano, supra, at paras. 217-222

[^16]: R. v. Handy, supra, at para. 149

[^17]: R. v. Luciano, supra, at para. 222, R. v. Handy, supra, at paras. 41 and 49

[^18]: R. v. Luciano, supra, at para. 234; R. v. Handy, supra, at para. 149