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Stephanie DiGiuseppe, Ruby Shiller Enenajor DiGiuseppe, Barristers

Court of Appeal upholds first-degree murder conviction, rules curative proviso safely applied

Friday, November 05, 2021 @ 9:48 AM | By Amanda Jerome


The Ontario Court of Appeal has upheld a first-degree murder verdict despite finding the trial judge made legal errors in the circumstantial case. Counsel for the appellant said the “case joins a very small subset of cases where the curative proviso is applied and it’s a very high benchmark standard.”

In R. v. Cole 2021 ONCA 759, the court heard that the appellant, Margaret Lee Cole, was found guilty of first-degree murder in the death of Richard Humble, 82, a man the appellant was assisting during a convalescence period.

The court noted that Humble died in a house fire, but there was “[S]trong circumstantial evidence” that Cole “set the fire to intentionally kill” Humble.

According to court documents, Cole “used false documentation to gain access” to the deceased’s “money in the days immediately prior to his death” and there was also “strong evidence” that she “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,” the court noted, adding that at the time of death, Humble “had a stupefying drug in his system that had been prescribed to the appellant.”

The court also noted that “[I]n 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.”

At trial, a jury found Cole guilty “notwithstanding that the cause of the fire could not be determined.”

Although the Court of Appeal acknowledged that the trial judge, Justice Guy DiTomaso of the Superior Court of Justice, 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,” it dismissed the appeal.

Justice David Paciocco, writing for the Court of Appeal, was “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,” applied to “the errors related to the extrinsic misconduct evidence.”

According to court documents, Humble lived “alone and independently” until shortly before his death when he required assistance due to a mild heart attack. The appellant’s father was a friend of Humble’s and she assisted the deceased with getting groceries and medication, as well as arranging support workers.

The court summarized the evidence at trial “as follows: (i) motive; (ii) the sedative; (iii) alibi; (iv) other suspicious circumstances; and (v) extrinsic evidence of the appellant’s prior misconduct.”

With regards to motive, the court noted that Cole was “unemployed and in serious financial trouble when the relevant events were unfolding.”

“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,” explained Justice Paciocco, adding that the Crown “relied heavily on this evidence as proof of pre-planning, and as circumstantial evidence that” Cole “intentionally set the fire that killed Mr. Humble.”

With regards to the sedative evidence, the court noted that a “forensic examination” of a seized computer revealed that “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,” the court explained.

After the fire, police asked Cole “what drugs Mr. Humble had been on.” Cole told them that the deceased “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.” However, the court noted, “[T]here was no confirmation that Mr. Humble had ever been prescribed Amitriptyline.”

According to court documents, Humble had Alprazolam in his system when he died, a drug “typically used to treat anxiety or as a sleep aid.” Except, the deceased had “never been prescribed Alprazolam, but the appellant had.”

The court noted “[T]here was also evidence that the appellant had been accumulating Alprazolam in the days leading up to the fire.”

On the alibi evidence, the court explained that during the police investigation Cole “made statements that, if true, would have provided her with the alibi that she was elsewhere when the fire started.”

“However,” the court added, “the appellant’s timeline was undermined during the investigation, and much of what she said was contradicted.”

The court noted that the “investigation contradicted the key details the appellant had provided about her movements, as well as her overall timeline, on the morning of the fire.” Security camera footage at a long-term care home and gas station contradicted the appellant’s timeline, while the “layer of dust” on items the appellant claimed to have dropped off the morning of the fire in the deceased’s garage contradicted part of her statement to police about what she was doing at Humble’s home before the fire began.

Regarding the “other suspicious circumstances,” the court noted that the Crown had included “aspects of the appellant’s behaviour, were suspicious.”

According to court documents, an electrician inspected Humble’s house after a service call in March. He testified that “Mr. Humble had a post-it note on his bedroom smoke detector recording the date and time he last replaced the batteries …” However, when a member of the fire marshal’s office inspected the smoke detector after the fire, “[it] did not have a battery.”

The Crown also argued that Cole, “knowing there would be a fire, prepared for it.” After the fire, the court noted, Cole provided Humble’s solicitor “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,” the court explained.

The Crown also “presented extrinsic evidence unconnected to the offence charged” after getting an admissibility ruling from the trial judge. According to court documents, the “extrinsic evidence tended to show that the appellant had previously forged documents, namely, the ‘Chapman letters’.”

The court explained that Cole had delivered two letters to her brother and sister-in-law which, in the Crown’s submission, were forged. The letters were to “delay demands that she [Cole] repay an outstanding loan they had made to her of almost $200,000.” The letters were allegedly signed by Cole’s solicitor, Ronald Chapman, confirming that she “would soon receive the money” from a lawsuit. However, the court noted, this was not true.

The Court of Appeal also addressed two parts of the jury charge: “the charge relating to the Chapman letters, and the charge relating to the appellant’s alibi.”

Justice Paciocco noted that Justice DiTomaso “gave the jury an eight-paragraph charge relating to the Chapman letters.” He emphasized paragraph four, which read: “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.”

On appeal, the appellant raised three grounds, while the Crown submitted that the court may apply the proviso if it concluded “the trial judge erred in any respect.”

Because he was persuaded that Justice DiTomaso “did commit legal errors,” Justice Paciocco addressed 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?”

On issue A), Justice Paciocco found that Justice DiTomaso “erred both when (i) admitting the Chapman letters, and (ii) in his charge to the jury relating to those letters.”

“Evidence of extrinsic misconduct is prima facie inadmissible, and therefore only exceptionally admissible, because it ‘brings baggage to the trial,’” he wrote, noting that it 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.”

Justice Paciocco explained that 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.”

He further stressed that “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.”

In his analysis of Justice DiTomaso’s assessment of the proposed extrinsic evidence, Justice Paciocco determined the “shortcomings in the trial judge’s reasoning” 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,” he added.

The appeal judge determined that Justice DiTomaso “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,” he explained.

Justice Paciocco saw “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.”

In concluding that Justice DiTomaso erred in the jury charge relating to the Chapman letters, Justice Paciocco wrote that “the trial judge gave jurors a misleading instruction in this regard.”

He noted that Justice DiTomaso “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,” he stressed, “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.”

On issue B) Justice Paciocco agreed “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,” he wrote, “this error is not a reversible one in the circumstances of this case because it did not prejudice the appellant.”

Justice Paciocco wrote a lengthy analysis on this issue and determined that Justice DiTomaso’s “purpose in outlining” evidence on the appellant’s timeline “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,” he added, before rejecting this ground of appeal.

Justice Paciocco also rejected the appeal on issue C). According to court documents, Cole argued that Justice DiTomaso 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.”

She also argued that Justice DiTomaso 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.”

However, Justice Paciocco did not agree. He noted that “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.”

On issue D), Justice Paciocco determined that this was “an appropriate case to apply the proviso” in the Criminal Code.

“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,” he wrote, acknowledging that the proviso was properly raised by the Crown.

Justice Paciocco was 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,” he wrote, noting that “[E]ach 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,” he added.

Justice Paciocco determined that “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.”

In a decision released Oct. 27, Justice Paciocco, with Justices Bradley Miller and Ian Nordheimer in agreement, dismissed the appeal concluding that “no miscarriage of justice occurred, and that the proviso can safely be applied in this non-credibility case.”

Stephanie DiGiuseppe, Ruby Shiller Enenajor DiGiuseppe, Barristers

Stephanie DiGiuseppe, a partner at Ruby Shiller Enenajor DiGiuseppe, Barristers and counsel for the appellant with Karen Heath, told The Lawyer’s Daily that, in this decision, Justice Paciocco gives a good “overview of two particular areas of law.”

“The first has to do with prior discreditable conduct,” she said, noting there are a lot of decisions on this matter, but it’s still an area where “lawyers and judges can often find confusion in the law.”

“It’s helpful to have an articulation of the law in that area which very carefully distinguishes between particular types of evidence that often fall under the doctrine. So, for example, the difference between evidence tending to prove identity and evidence tending to prove that an illegal act occurred. Justice Paciocco,” she said, “gives us a very articulate and razor-sharp delineation of categories and doctrines.”

The other are, she explained, is “the alibi and the false alibi doctrine,” which is an area that “doesn’t come up all the time, and so it’s always useful to have an articulation of how that doctrine works.”

“Justice Paciocco outlined very carefully another tricky area for trial judges and lawyers, which is the difference between evidence which tends to prove that an alibi is false and evidence that tends to prove that an alibi is fabricated. He gave a lot of practical examples stemming from this case and I think that will be useful to future courts,” she added.

Another practice point DiGiuseppe highlighted was the concessions counsel made at trial and how that impacted the appeal.

“In this particular case, trial counsel made some concessions in the closing address that really affected Ms. Cole’s outcome on appeal in terms of the alibi ground. I do think, as sort of a practice tip, this can be another example that young lawyers can look at to think very hard about when they’re making concessions at trial how those concessions might affect the client’s potential to be successful on any eventual appeal. I know that’s always something that, when I speak to young lawyers they really struggle with and it is helpful to have a practical example of something to keep in mind,” she explained.

DiGiuseppe also noted that the use of the curative proviso is “very rare.”

“This case joins a very small subset of cases where the curative proviso is applied and it’s a very high benchmark standard, so I do think, for appellate lawyers, it is useful to have all of these cases to start to understand how that test can be applied to different factual circumstances,” she added, noting that the proviso here was “being applied to a purely circumstantial case,” which “also doesn’t happen a lot.”

The Ministry of the Attorney General, on behalf of Crown counsel, declined to comment on the decision.

If you have any information, story ideas or news tips for The Lawyer’s Daily please contact Amanda Jerome at Amanda.Jerome@lexisnexis.ca or call 416-524-2152.