



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Cole, 2021 ONCA 759

DATE: 20211027

DOCKET: C63802

Miller, Paciocco and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Margaret Lee Cole

Appellant

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. Humbles 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.
    Humbles 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 appellants false alibi.

[4]

Nonetheless, I am persuaded that no prejudice arose from the latter
    error, and that, given the strength of the Crowns 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 appellants 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
    appellants connection to Mr. Humble was through her father, Everett Cole, who
    was a long-time close friend of Mr. Humbles. Evidence, including phone records
    and observations made by neighbours, suggested that the appellant did not play
    a significant role in Mr. Humbles 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 appellants 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. Humbles 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 appellants conviction can be conveniently
    summarized as follows: (i) motive; (ii) the sedative; (iii) alibi; (iv) other
    suspicious circumstances; and (v) extrinsic evidence of the appellants 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 appellants 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. Humbles 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 appellants 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 appellants involvement in Mr. Humbles financial affairs in
    some detail because of the Crowns reliance on the proviso in the event we find
    that the trial judge committed legal errors.

Gaining control of Mr. Humbles 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. Humbles 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. Humbles POA were
    prepared, without Ms. Firths 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 appellants 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. Humbles signature on the POA documents was genuine.
    However, the Crowns 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. Humbles 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 appellants 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. Humbles genuine signature, authorizing Manulife to
    speak to her on his behalf and stating that she was Mr. Humbles 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.
    Humbles CPAP. In addition, Mr. Humbles 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.
    Humbles POA. She said she had discussed her appointment with Mr. Humbles
    sister, Joyce, and with Ms. Firth. In their evidence, both Mr. Humbles 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 appellants 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. Humbles, 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. Humbles 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 sons education. Nobody who
    had been in contact with Mr. Humble at the relevant time recalled him having an
    injured arm, including Mr. Humbles 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. Humbles 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. Humbles name,
    dated March 31, 2011 (the ink signed will). The ink signed will purports to
    revoke Mr. Humbles prior wills and to appoint the appellant as executor and as
    the residuary beneficiary of half of Mr. Humbles 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. Humbles 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 appellants home and of her vehicle
    on April 22, 2011, hard copies of the will were discovered. Mr. Humbles
    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. Humbles 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. Humbles drivers 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. Humbles name, dated March
    31, 2011, containing a copy of the March 31, 2011 will. The letter bore Mr.
    Humbles 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 appellants 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. Humbles 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 drugs
    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. Humbles 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. Humbles 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.
    Gorczynskis 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 appellants 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 appellants timeline was
    accurate. Rather than focus on the appellants 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 appellants 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 appellants 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. Humbles 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. Humbles 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-olds birthday. Around this time, she spoke to Ms. Lovering
    on the phone and told her she had been at Mr. Humbles 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. Humbles 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. Humbles 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.
    Humbles] 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. Humbles home that
    morning for 5 to 10 minutes.

[51]

The
    appellant also gave details to Cst. Paddon about going to her fathers nursing
    home in Orillia, Trillium Manor, after leaving Mr. Humbles. 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. Humbles 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. Humbles
    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. Humbles
    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. Humbles home and the post office, a timeline consistent
    with the testimony of witnesses that there was a black extended cab truck at
    Mr. Humbles 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. Humbles 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 appellants behaviour, were suspicious.

[61]

First,
    evidence showed that on March 28, 2011, Chad Hamilton, an electrician, inspected
    Mr. Humbles 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 Marshalls 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. Humbles
    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 appellants claim that she had not
    entered Mr. Humbles house the morning of the fire. She told police, on June 11,
    2012, that when she went to Mr. Humbles 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. Humbles 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.
    Humbles 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 appellants deposit of $1,800 in cash the evening before the
    fire suggested that she had removed the money from Mr. Humbles home so it
    would not get burned. After the fire, the appellant had possession of the
    documents she would need to secure Mr. Humbles 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 drivers licence. None of these items were
    in Mr. Humbles 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 judges
    ruling on its admissibility.

[65]

The
    Chapman letters were two letters which, in the Crowns 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. Chapmans 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. Chapmans 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
    firms electronic files. Ms. Whiting also testified that the appellant had
    access to Mr. Chapmans letterhead and signature from prior correspondence.

[69]

In
    considering whether to admit the evidence of the Chapman letters, the trial
    judge noted trial counsels 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 appellants]
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. Humbles
    changed Will.

The evidence supports the plausibility that [the appellant] was
    entirely capable of obtaining Mr. Humbles 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 appellants character or to infer guilt from general disposition or
    propensity. He then said as follows:

While the evidence points to [the appellants] 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. Humbles 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. Humbles 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 appellants 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 appellants 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 appellants evidence that she was someplace
    else when the fire started. This included telling the jury that, even if they
    completely rejected the appellants 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. Humbles door within minutes of the fire. Her black Dodge Ram
    1500 quad door pickup truck was seen in Mr. Humbles driveway at that time. She
    had a key to Mr. Humbles 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. Humbles 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 accuseds
    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 judges 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. Humbles signatures without his knowledge and approval
    and appended those signatures to false documents. He said that the appellants
    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 appellants act of falsifying
    financial documents relating to Mr. Humbles 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. Humbles estate. In my view, the trial
    judges 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. Humbles 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.
    Humbles 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. Humbles
    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 judges 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
    appellants 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
    appellants 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 appellants] 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 judges 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 judges 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 appellants control relating to Mr. Humbles 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. Humbles 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. Humbles 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
    appellants 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 appellants 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 Crowns 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 accuseds 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. OConnor
(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 accuseds 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:
OConnor
,
    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;
OConnor
, 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:
OConnor
, 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 accuseds 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. Humbles 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. Humbles 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.
    Humbles 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 fathers 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. Humbles 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 appellants claim, made only two to three hours
    after she had been at her fathers 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. Humbles
    lawyer; falsely claimed to have forgotten her Alprazolam prescription at Mr.
    Humbles 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 appellants
    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 counsels 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 appellants 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. Humbles garage had not been moved that morning, and (4)
    the appellants 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. Humbles 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 appellants 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 fathers 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 appellants claim that the television and microwave
    had been moved was independent evidence of fabrication. Once again, standing
    alone, the inaccuracy of the appellants 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
    appellants creation of false documents, alone, could not serve as evidence of
    fabrication. The existence of the false documents could only show the
    appellants 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 judges purpose in outlining this evidence was to permit the
    jury to determine whether the alibi was fabricated. Given trial counsels
    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
    Crowns 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 Crowns 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. Humbles 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. Humbles 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. Humbles death.

The circumstantial evidence regarding Alprazolam

[146]

First, there was
    evidence before the jury that Alprazolam, the drug found in Mr. Humbles 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. Humbles 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. Humbles 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. Humbles 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, affd 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 Crowns response to the appellants 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 appellants 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 Crowns 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 Crowns 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 courts 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 appellants 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 appellants 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 appellants
    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 deceaseds 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. Humbles home, her large cash deposit
    the evening before the fire, and her possession of financial and personal
    documents useful in accessing Mr. Humbles assets after he died, documents one would
    expect to have been in Mr. Humbles 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. Humbles 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 appellants 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 appellants 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.





[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 appellants factum, where the
    appellant concedes that there may have been evidence from which the jury could
    infer fabrication in this case.


