Court of Appeal for Ontario

Date: September 15, 2017

Docket: C59971

Judges: MacPherson, Simmons and Brown JJ.A.

Between

Her Majesty the Queen Respondent

and

Philip Grandine Appellant

Counsel:

• Michael W. Lacy and Adam Posluns, for the appellant
• Roger Shallow, for the respondent

Heard: April 20, 2017

On appeal from: The conviction entered on December 4, 2014, and the sentence imposed on January 9, 2015, by Justice Robert A. Clark of the Superior Court of Justice, sitting with a jury.

Brown J.A.:

I. OVERVIEW

[1] Karissa Grandine drowned in her bathtub on October 17, 2011. She was 20 weeks pregnant at the time. Her husband, the appellant Philip Grandine, was charged with first degree murder. Following a trial before a judge and jury, he was convicted of manslaughter and sentenced to 15 years' imprisonment, less four months' credit for pre-sentence custody.

[2] The appellant appeals his conviction for manslaughter and seeks leave to appeal his sentence.

[3] The appellant advances one ground of appeal in respect of his conviction: the trial judge misapprehended a question posed by the jury following the charge, with the result that his answer left the jury with an alternative route of liability not previously raised during the trial. The appellant submits this resulted in an unfair trial.

[4] As to his sentence appeal, the appellant submits the trial judge erred in principle and made findings of fact for the purposes of sentencing that were inconsistent with the jury's verdict or were otherwise unreasonable.

[5] For the reasons that follow, I would allow the conviction appeal and direct a new trial on the offence of manslaughter.

II. SUMMARY OF EVENTS

[6] Only a brief review of the evidence is required for purposes of this appeal.

[7] At the time of her death, Ms. Grandine had been married to the appellant for three years. They lived in a home in Scarborough, Ontario. Ms. Grandine worked as an adjuster for an insurance company. The appellant worked as an associate nurse manager at a residential and long-term care facility; he had also served part-time as the senior pastor at a church in Toronto.

[8] In the late spring or early summer of 2011, Ms. Grandine learned she was pregnant. A few months later, in August 2011, she learned her husband had started an affair with a parishioner at his church, Ms. Florentino. The discovery of the affair led her husband to resign as the church's senior pastor. The Grandines attempted to reconcile through marriage counselling conducted by another pastor.

[9] During the counselling, the appellant revealed he was interested in pornography. The pastor conducting the marriage counselling insisted that a filtering program be installed on the couple's home computer to block the appellant's access to pornography. The Grandines agreed, and they installed a filtering program called "K-9"; Ms. Grandine controlled the program's password.

[10] The appellant's affair had been marked by a high volume of text messages between Ms. Florentino and himself. Those texts stopped during September and early October, 2011. However, cell phone records filed at the trial disclosed the texting resumed in early October.

[11] On the evening of Thursday, October 13, 2011 the couple held another marriage counselling session with their pastor. The appellant appeared drowsy and unwell. After the session, Ms. Grandine became ill, experiencing symptoms such as fatigue, confusion, loss of coordination, and vomiting.

[12] Ms. Grandine stayed home from work the next day, Friday. That evening, the appellant took his wife to the emergency room at St. Michael's Hospital. The attending physicians were unable to make a diagnosis, but Ms. Grandine's condition improved. She stayed the night at the hospital.

[13] Blood samples taken at that time were re-tested following Ms. Grandine's death a few days later. They disclosed the presence of the drug lorazepam in her system. Lorazepam is an anti-anxiety medication and can act as a sedative. Ms. Grandine had not been prescribed lorazepam.

[14] While his wife was in the hospital, the appellant texted Ms. Florentino. He left the hospital in the early morning hours of Saturday, October 15, 2011 and went to see Ms. Florentino.

[15] Ms. Grandine went to work on Monday, October 17, 2011. At 10:49 p.m. that evening, the appellant placed a 911 call. He said he had found his wife submerged in the bathtub at their home.

[16] There was conflicting evidence about the events of that evening. The appellant did not testify at the trial. However, in a statement to the police admitted at trial, the appellant recounted that: he had picked up his wife at the train station after work; they had dinner; watched a program on the internet; and then had sex. The appellant told the police he left the house at about 9:45 p.m. for a run. When he left the house, his wife was in the washroom and the door was closed. He did not know whether his wife was in the bathtub at that time. When he returned from his run around 10:45 p.m., he found his wife drowned in the bathtub.

[17] On the other hand, cell phone records showed the appellant had spoken to Ms. Florentino for approximately 30 minutes between 10:15 and 10:46 p.m., just prior to the 911 call. As well, a subsequent forensic search of the Grandine's home computer showed someone had disabled the K-9 pornography filter shortly before the 911 call was placed.

[18] Blood tests taken at Ms. Grandine's autopsy showed a significant amount of lorazepam in her system, although the amount was in a therapeutic range. No evidence was led at trial that Ms. Grandine had ever been prescribed lorazepam. Evidence was led that the appellant exercised some supervision over medications given at the long-term care home where he worked, including lorazepam. There was no evidence any lorazepam had gone missing at the long-term care home.

III. THE CONVICTION APPEAL

[19] The appellant submits the trial judge's answer to a question posed by the jury during their deliberations introduced a new theory of liability incompatible with the way the trial had proceeded to that point, thereby compromising trial fairness.

[20] To examine that submission requires first reviewing the theories of liability advanced during the trial and recounted in the charge, and then assessing the nature of the trial judge's answer to the jury and its effect on trial fairness.

A. The theories of liability set out in the Crown's opening, the closings and the charge

The Crown's opening

[21] From the start of the trial, the Crown advanced the position that the appellant had sedated Ms. Grandine with lorazepam and, by some means, caused her to drown in the bathtub. In her opening, Crown counsel stated: "[T]he Crown will be asking you to find that Philip Grandine … was responsible for the sedation and drowning death of Karissa Grandine."

Pre-charge discussions

[22] During discussions with the trial judge prior to the closings, Crown counsel indicated she planned to leave with the jury several different possibilities about how the appellant drowned Ms. Grandine. After sedating Ms. Grandine with lorazepam, the appellant could have: (i) assisted a "very, very out-of-it person" to the bathtub; (ii) lifted her out of bed and placed her in the bathtub; or (iii) "somehow ensuring that while she's on her feet, he's getting her into the tub." According to the Crown, the appellant then allowed her to slip under the water, held her head under the water, or set her up to fall in the bathtub.

[23] At the pre-charge conference on November 25, 2014 Crown counsel stated: "[T]he Crown further contends that however she came to be in the bath, the accused either held the deceased's head under the water to drown her or simply waited for the inevitable outcome of a semi-conscious woman in a filled bathtub."

The parties' closings

[24] In her closing, Crown counsel explained to the jury the Crown's theory about how the appellant killed his wife:

[N]ow Mr. Grandine could conduct the actual performance on the Monday and to not only sedate his wife, but to ensure that she made it to the bathtub, either putting her into it himself, assisting her into it, or coaxing a confused and out-of-it drugged, sedated Mrs. Grandine into the tub and then deliberately drowning her or deliberately enabling her to simply lie back and let the water engulf her as she did so, as any of these methods would achieve the same result. Holding her gently under, poking her not as he told the police that he did, but to push her non-resistant form under the water, or simply allowing an unconscious Mrs. Grandine to lay back in that full bathtub and let the water work its way into her lungs and drown her.

[25] Defence counsel, disclaiming any involvement by the appellant in the events surrounding Ms. Grandine's drowning, placed before the jury two alternative theories about how she drowned, both based on Ms. Grandine self-medicating herself with lorazepam. First, her death was an accident: having taken the drug, a drowsy Ms. Grandine slipped and drowned when she tried to take a bath. Second, her drowning was a suicide. In either case, the defence contended the appellant was not at home when Ms. Grandine drowned, but was out running.

[26] During the ensuing discussions with counsel about the charge, the trial judge explained he was trying to focus the jury "on what really matters here, whether they are satisfied or not that this man put his wife in a bathtub full of water having drugged her." The trial judge also commented that whether the appellant "did or did not administer [the drug] obviously is the central issue of this case."

The charge

[27] The trial judge charged the jury on first degree murder. Before beginning his instructions on the elements of first degree murder, he explained that as part of proving a charge of murder, the Crown must prove that an accused caused the death of the deceased by means of an unlawful act. The trial judge identified s. 245 of the Criminal Code – the administration of a noxious thing - as the possible basis for the jury to find the appellant had caused Ms. Grandine's death by means of an unlawful act. He stated s. 245 required the Crown to prove beyond a reasonable doubt "two essential elements: (i) that the accused administered a thing to his wife; and (ii) that the thing was noxious." The trial judge went on to address the elements of first degree murder, which he identified as: Causation; Did Mr. Grandine cause death by means of an unlawful act; Intent; and Planning and deliberation.

[28] The trial judge noted there was no direct evidence about how Ms. Grandine ingested lorazepam or how she came to be in the bathtub. He recited the defence's position that the evidence created a reasonable doubt Ms. Grandine's death was the result of either an accident or suicide. Turning to the position of the Crown, the trial judge stated:

The Crown asks you to conclude that the accused surreptitiously drugged the deceased and then either (i) saw to it that she got in the bathtub under her own power, so to speak, or (ii) put her in the bath after she was semi-conscious or unconscious. The Crown further contends that however she came to be in the bath, the accused either waited for what he knew would inevitably happen, namely, that she would drown, or he held the deceased's head under the water to drown her.

[29] He then instructed the jury:

If any other reasonable factual scenario is apparent to you on the evidence, you are free to consider and, in turn, act on it. I cannot see any, but it is for you to say.

[30] The trial judge provided the jury with copies of his charge for reference during their deliberations.

B. The jury's question and the ensuing discussions

The question and its context

[31] The trial judge concluded his charge on the afternoon of December 2, 2014. On the evening of December 3, the jury sent the following question to the trial judge:

Re: Sections [319] to [322] (pages 60-61)

Is knowledge of Karissa Grandine taking a bath and not stopping her equivalent to causing her to get into the tub (knowing she is under the influence of lorazepam)?

[32] Sections 319 to 322 of the charge appeared in the part dealing with the elements of first degree murder, specifically the section entitled: "Did Mr. Grandine cause death by means of an unlawful act?" To place the jury's question in context, it is worth reproducing that section of the charge; the sections referenced by the jury are highlighted:

[316] Turning to the second essential element, the Crown must prove that the accused caused Mrs. Grandine's death by means of an unlawful act.

[317] It is not always a crime to cause another person's death as, for example, where a person causes the death of another human being acting in self defence. There is no evidence of self defence and you may not consider that defence in this case. I mention it merely to illustrate that causing the death of another human being is not always unlawful.

[318] It is, on the other hand, a crime to cause the death of another person by means of an unlawful act. If you were to be satisfied beyond a reasonable doubt that the accused administered a noxious thing to his wife, then, as I have earlier explained, that would amount to an offence, contrary to section 245 of the Criminal Code, and, by definition, as it were, an unlawful act.

[319] The central issue for you to determine here is not whether the conduct the Crown alleges amounts to an unlawful act. Rather, the issue is whether you are satisfied beyond a reasonable doubt that Mr. Grandine engaged in this conduct. So focus on the conduct. Are you satisfied beyond a reasonable doubt that the accused drugged his wife? And, if so, are you satisfied beyond a reasonable doubt that, having done so, he then caused her to get into (or put her in) the bath tub, where she then drowned?

[320] Speaking generally, not every unlawful act will suffice as a basis upon which to find an accused guilty of manslaughter. Rather, to suffice as a basis upon which to find an accused guilty of manslaughter, the act in question must not only be unlawful, it must also be inherently dangerous; i.e.: the act must involve an objectively foreseeable risk of bodily harm that is more than merely transient or trifling. In other words, it must be obvious to a reasonable person that the unlawful act might cause bodily harm.

[321] Turning to this case, I should think that you would have no difficulty in concluding that to surreptitiously administer a dose of a prescription medicine to an unwitting person (knowing that the drug has certain side effects, including sedation, reduced muscle control and possible confusion) and to then cause the person to get into (or put the person into) a bath tub full of water, is an inherently dangerous act involving a risk of bodily harm or death. It is, however, for you to say.

[322] If you are not satisfied that the accused surreptitiously administered lorazepam to the deceased, and then caused her to get in the bath tub (or put her in the tub), then you must find him not guilty. Your deliberations would be over.

[323] If you are satisfied beyond a reasonable doubt that the accused administered lorazepam to the deceased without her knowledge, knowing that it would sedate her, and then caused her to get in the tub (or put her in the bath tub), thereby committing an unlawful act (that was inherently dangerous and had an objectively foreseeable risk of bodily harm that was more than merely transient or trifling), then, the first two essential elements will have been proven and you must find the accused guilty of at least manslaughter. But your deliberations would not be over. You would be obliged, at that point, to go on to consider the third element of murder, namely, intent. (emphasis added)

[33] On the evening of December 3, the trial judge reviewed with counsel two drafts of a proposed answer to the jury's question.

[34] I repeat the jury's question for ease of reference:

Re: Sections [319] to [322] (pages 60-61)

Is knowledge of Karissa Grandine taking a bath and not stopping her equivalent to causing her to get into the tub (knowing she is under the influence of lorazepam)?

First draft answer

[35] The trial judge started his first draft answer by setting out his understanding of the jury's question: "[I]t presupposes that Karissa Grandine got in the bathtub of her volition, without any encouragement or coaxing by the accused and without any physical involvement on his part."

[36] The draft answer then stated that unless the jury was satisfied the appellant administered lorazepam to his wife, "then there is no proof that he has caused her death by means of an unlawful act … [and] his failure to stop her from getting in the bath would not support the conclusion that he caused her death." The draft continued:

[5] If the accused, knowing that he had given his wife the lorazepam without her knowledge, did nothing to prevent her from getting into the bath tub, then, it would be open to you to decide that he knew that she would be in danger of drowning if she got in the tub. If you are satisfied beyond a reasonable doubt that a reasonable person would know that Karissa Grandine would be in danger as a result of the situation the accused had created by giving her the drug without her knowledge, then it is open to you to decide that, by failing to prevent the dangerous situation that would exist if she got in the tub, the accused caused her death by the combination of having given her the drug and then having failed to prevent her from putting herself into a situation that was inherently dangerous and carried with it a risk of bodily harm or death. [emphasis added]

[37] The draft concluded:

[7] If you are satisfied that the accused created the danger by the unlawful act of administering a noxious thing in combination with his failure to prevent Karissa Grandine from exposing herself to danger, it would be open to you to conclude that the accused caused Karissa Grandine's death by means of an unlawful act. If you were to come to that conclusion, this second essential element of murder will have been proven. [emphasis added]

[38] Crown counsel agreed with the proposed answer. Defence counsel expressed a concern it did not capture fully the earlier portion of the charge dealing with the elements of s. 245. The trial judge offered to re-read the earlier portion as part of the answer; defence counsel did not think that necessary. The trial judge adjourned to enable defence counsel to consider his position. He instructed the jury to stop deliberating.

Second draft answer

[39] On resuming later that evening, the trial judge provided counsel with a second draft answer. It contained several changes to para. 5 of the first draft, as underlined below:

[5] If the accused, knowing that he had given his wife the lorazepam without her knowledge, did nothing to prevent her from getting into the bath tub, then, it would be open to you to decide that a reasonable person in his circumstances would have known that she would be in danger of drowning if she got in the tub. If you are satisfied beyond a reasonable doubt that a reasonable person in the position of the accused would have known that Karissa Grandine would be in danger as a result of the situation he had created by giving her the drug without her knowledge, then, having created the potentially dangerous situation by giving her the lorazepam, the accused was under a legal duty to prevent her from coming to harm. It is open to you to decide that, by failing to prevent the dangerous situation that would exist if she got in the tub, the accused caused her death by the combination of (i) his act of having given her the drug and (ii) his omission of having failed to prevent her from putting herself into a situation that was inherently dangerous and carried with it a risk of bodily harm or death. (emphasis added)

[40] As the trial judge stated to counsel, the principal change was the addition of "words that he would be under a legal duty to prevent – having created the situation, he would be under a legal duty to prevent her from coming to harm."

[41] Defence counsel raised two matters. First, he proposed the trial judge re-arrange the language in the revised para. 5 to stress the objective, reasonable person element of the mens rea. Second, he requested a minor change to the language on causation found in another part of the charge. Defence counsel did not object to the concept of a duty to prevent harm as set out in the first two drafts of the answer.

[42] The trial judge adjourned for the night, stating he would give the matter further thought and prepare a third draft.

Third draft answer

[43] When court re-convened the following morning, the trial judge presented counsel with a third draft answer. It began by repeating the same understanding of the jury's question found in the first two drafts, but the balance of the draft contained three major changes.

[44] First, the draft omitted the paragraphs in the earlier drafts instructing the jury they had to find the accused administered a noxious thing to his wife in order to conclude he had committed an unlawful act.

[45] Second, the draft added a further basis upon which the jury could find the appellant had committed an unlawful act - s. 215 of the Criminal Code, which makes it an offence for a person, under a legal duty to provide necessaries of life to his spouse, to fail, without lawful excuse, to perform the duty and endanger the life of the person to whom the duty is owed. Paragraph 2 of the draft answer specifically underscored that a new unlawful act was being introduced:

[2] The answer to this question involves discussions of another criminal offence that may suffice as an unlawful act forming the basis upon which you may, in turn, decide that the accused caused his wife's death. Whether it does or does not suffice is for you to say.

[46] The draft answer reviewed in detail the elements of s. 215. It stated failing to provide the necessaries of life would include failing to protect Ms. Grandine from the danger of drowning. On the element of the absence of any lawful excuse, the draft read: "There is no evidence before you of any excuse, lawful or otherwise, why the accused failed to provide the necessaries of life. In the absence of any evidence on the point, I cannot see how you could find a lawful excuse, but it is for you to say."

[47] Third, the draft introduced an express statement the appellant could be culpable even if he did not administer lorazepam to his wife. Proposed para. 22 stated:

Bear in mind that the duty I have been discussing applies to the accused even if he did not administer the lorazepam to his wife himself, provided that you are satisfied that he actually knew that she had enough lorazepam in her system that she would be putting herself in danger by getting into the tub.

[48] When he provided counsel with the third draft for their review, the trial judge stated:

Essentially, what it does is set out another unlawful act which is an offence under s. 215 of the Criminal Code … So that is the thrust of this. It seems to me that if [the accused] knew, irrespective indeed of whether he administered the lorazepam to her, if he knew she was full of lorazepam to such an extent that it compromised her ability to protect herself, then he was under a duty to protect her from harm. (emphasis added)

[49] Defence counsel strongly objected to the third draft because "we're dealing with a completely different case than the case that was presented and the case that was prepared for in relation to the trial." He argued he had proceeded on the basis that the administration of a noxious substance – s. 245 of the Criminal Code – constituted the unlawful act in question. Defence counsel submitted "section 215 is an entirely different … aspect to the case. Given the circumstances of the case, it's not one that I think could reasonably have been foreseen." To which the trial judge responded:

Well, that may be, but [the jury] have seen it and they have asked me a question about it, and now I am obligated to instruct them on the applicable law. So the question here is not what anybody foresaw, it is a question of dealing with the present. They have come up with a third scenario. I have to address that. The question is, do these instructions address it, yes or no? What you foresaw, or Crown counsel foresaw, is, with great respect, neither here nor there. They are the finders of fact. I told them, quite properly in my view, that they were entitled to consider any other factual situation that occurred to them on the evidence. This is one such situation, and now I am obliged to deal with it. So what does it matter what anybody anticipated? They are not bound by what you anticipate. They are bound by the evidence, and this is something that is revealed to them on the evidence and I have to address it.

[50] Defence counsel queried whether s. 215 was "appropriately applicable." He asked for more time to consider the draft answer. A very brief adjournment of 15 minutes was granted.

Fourth draft answer

[51] Upon resuming, the trial judge distributed a fourth draft answer, which expanded the first paragraph of the previous drafts, but otherwise tracked the language of the third draft.

[52] Defence counsel re-iterated his concern that the answer affected "how one might have conducted the trial, especially in light of the requirement it would seem of lawful excuse." He also objected to the addition of the paragraph entitling the jury to find liability even if the accused had not administered the lorazepam. The trial judge asked Crown counsel for her position on whether he should remove that paragraph; Crown counsel did not object to its removal.

The answer given to the jury

[53] The answer given by the trial judge to the jury tracked the language of the fourth draft answer, with one significant deletion.

[54] The trial judge told the jury he understood their question to presuppose that: (i) the appellant knew his wife had enough lorazepam in her system that she would likely experience side effects; and (ii) the wife got into the tub of her own volition "without any encouragement, coaxing, or physical involvement on his part."

[55] He then discussed the duty imposed by s. 215 of the Criminal Code, concluding with the following instruction:

If you are satisfied beyond a reasonable doubt (1) that a reasonable person would have known that Karissa Grandine would be in danger of drowning as a result of having enough lorazepam in her system that she was likely to experience one or more of the side effects it is known to cause and (2) that the accused's failure to prevent her from getting in the tub carried with it an objectively foreseeable risk of bodily harm or death, then you are entitled to conclude that causation has been established by this means. It is for you to say.

[56] Finally, the trial judge did not instruct the jury, as he had proposed in the third and fourth drafts, that the duty applied to the appellant even if he did not administer the lorazepam to his wife. The answer was silent on that issue.

[57] The jury retired. Later that afternoon, they returned with a verdict finding the appellant guilty of manslaughter.

C. The issues raised

[58] Both parties agree the jury's question sought to clarify whether the appellant had to be physically involved in putting or assisting the deceased in the bathtub or whether it was enough that he drugged her surreptitiously and then knowingly allowed her to take a bath.

[59] However, the appellant submits the trial judge's answer to the jury's question contained three errors: (i) it misapprehended the question asked and, consequently, failed to answer it; (ii) there was no evidence to support the alternative theory of liability left with the jury by the answer; and (iii) leaving an alternative theory of liability with the jury compromised the fairness of the trial. Instead of answering a question raised in the context of that part of the charge dealing with the unlawful act of administering a noxious thing, the trial judge introduced an alternative theory of liability into the case under which the jury could find the appellant liable even if he did not administer the lorazepam, but was aware his wife had consumed the drug.

[60] In response, the Crown submits the answer did not inject a new theory of liability, which remained that the appellant administered lorazepam to his wife. The instruction was legally correct, assisted the jury in resolving their factually-specific question, and did not compromise the appellant's ability to make full answer and defence. The original charge was replete with admonitions that to find the appellant guilty, the jury had to be satisfied beyond a reasonable doubt that the appellant administered lorazepam to his wife. In the section of the charge dealing with causation, the instructions also required the jury to first exclude the possibility that the deceased might have drugged herself, either by accident or intentionally, before considering whether the appellant drugged his wife. The jury could not have reached the question whether the appellant caused his wife's death by an unlawful act without already concluding that he had drugged his wife.

[61] The crux of this appeal involves two questions: Did the trial judge's answer to the jury's question introduce a new, alternative theory of liability? If it did, was the appellant's ability to present a full and fair defence prejudiced? As I will explain below, the answer to the jury's question introduced a new, alternative theory of liability without affording the appellant an opportunity to respond to it, compromising the fairness of the trial. Since I would direct a new trial on the offence of manslaughter, I do not consider it advisable to determine whether there was sufficient evidence to support leaving the alternative theory of liability with the jury.

D. The applicable legal principles

[62] Jury questions indicate some jurors need help. They are having a problem with an issue in the case. A question usually concerns an important point in the jury's reasoning, identifying an issue on which the jury requires direction: R. v. W.D.S., [1994] 3 S.C.R. 521, at paras. 14-18; R. v. M.T., 2012 ONCA 511, 289 C.C.C. (3d) 115, at para. 114. Answers to jury questions are extremely important, carrying an influence far exceeding instructions given in the main charge. The practical reality is that such answers will be given special emphasis by jurors: R. v. Naglik, [1993] 3 S.C.R. 122, at p. 139; W.D.S., at para. 16. Consequently, a trial judge must fully and properly answer a question asked by the jury: R. v. Stubbs, 2013 ONCA 514, 300 C.C.C. (3d) 181, at para. 95.

[63] Where, as in the present case, the jury's question signals it requires assistance in dealing with the evidence, the trial judge may well find it necessary to instruct the jury in a manner that does not accord with the theory advanced by either Crown or defence counsel at trial: R. v. Ranger, 67 O.R. (3d) 1 (C.A.), at para. 135. A trial judge may do so because the jury is not bound by the theories of the Crown or defence when considering the evidence. While the Crown is generally bound to prove the formal particulars of the offence charged, it is not bound to prove the theory that it advances in order to secure a conviction. Rather, a conviction is based on proof of the necessary elements of the offence: Ranger, at paras. 134 and 135. Accordingly, there is no general proposition that once the Crown presents a particular theory of a case, it would be unfairly prejudicial to the accused to allow the trier to convict on a different theory: R. v. Groot, 41 O.R. (3d) 280, at p. 9, 129 C.C.C. (3d) 293 (C.A.), affd, [1999] 3 S.C.R. 664, 144 C.C.C. (3d) 287.

[64] However, trial fairness concerns may intervene and foreclose consideration of an alternative basis of liability inconsistent with the way the parties conducted their respective cases: R. v. Largie, 2010 ONCA 548, 101 O.R. (3d) 561, at para. 161. Where the trial judge instructs the jury on a material point in a manner that does not accord with the position advanced by either party, a question may arise whether the instruction affected the fairness of the trial: Ranger, at para. 136. Trial fairness concerns will be greater when the instruction relates to a theory of liability not previously advanced by the Crown: Ranger, at para. 136. When that occurs, the issue becomes whether the accused, in the circumstances of the case, was able to present a full and fair defence. Whether a trial judge's instruction on an alternative theory of liability had an adverse impact on trial fairness can only be determined on a case-by-case basis: Ranger, at para. 138.

E. Analysis

Did the answer make available to the jury a new theory of liability inconsistent with how the trial had proceeded?

[65] The appellant submits the trial judge's answer introduced a new theory of liability inconsistent with how the trial had proceeded. I agree.

[66] The jury indicated their question concerned that part of the charge dealing with whether the appellant caused death by means of an unlawful act. The trial judge had rooted his unlawful act instructions in s. 245 of the Criminal Code, the administration by the appellant of a noxious thing to his wife, instructing the jury, at para. 322: "If you are not satisfied that the accused surreptitiously administered lorazepam to the deceased, and then caused her to get in the bath tub (or put her in the tub), then you must find him not guilty. Your deliberations would be over." That portion of the charge reflected the positions taken during the trial by the parties.

[67] The jury's question focused on one aspect of the chain of events leading to Ms. Grandine's death – how she came to be in the bathtub. The Crown had argued that the appellant, after administering lorazepam to his wife, either lifted her into the tub or somehow coaxed and guided her into the tub. The record reveals that counsel and the trial judge understood the jury's question as asking about a third possible factual scenario – whether an unlawful act could include the appellant surreptitiously drugging his wife and then allowing her to take a bath. They asked whether that would be "equivalent to causing her to get into the tub (knowing she is under the influence of lorazepam)?"

[68] The appellant submits that when the question is understood in that way, no new unlawful act had to be introduced for the jury's consideration. There is merit to that argument. The first two draft answers prepared by the trial judge would have clearly answered the jury's question in the context of the theory of liability advanced by the Crown to that point in the trial. However, the issue on this appeal is not whether the first or second draft answers would have provided a full and proper answer, but the effect and fairness of the answer actually given to the jury.

[69] The trial judge's ultimate answer offered the jury a new path to a conviction. Gone was the opening reminder that unless the jury was satisfied the appellant administered lorazepam to his wife without her knowledge, there would be no proof he caused her death by an unlawful act. In its place was an instruction that there was "another criminal offence that may suffice as an unlawful act forming the basis upon which you may, in turn, decide that the accused caused his wife's death" – namely, s. 215 of the Criminal Code.

[70] In both the third and fourth drafts, the trial judge was prepared to conclude the answer by leaving with the jury an instruction that "the [s. 215] duty I have been discussing applies to the accused even if he did not administer the lorazepam to his wife." Such an instruction would have marked an explicit departure from the trial judge's initial charge that the appellant's culpability depended on a finding that he had administered lorazepam to his wife.

[71] As matters transpired, the trial judge removed that proposed language from the final answer he gave to the jury. The Crown submits that by so doing, the trial judge's answer to the jury stayed within the compass of the Crown's case that a conviction required finding the appellant had administered lorazepam to Ms. Grandine.

[72] I cannot accept that submission, for three reasons. First, it does not accord with how the trial judge understood his answer. During the sentencing submissions a week after the appellant's conviction, the following exchange took place between defence counsel and the court:

Defence counsel: Your Honour further charged on a different predicate offence, that being the failure to provide necessities of life. Going through the charge, effectively, in that circumstance, Your Honour removed the question of administration from the jury, in the sense that they could find the predicate offence without a determination as to whether or not my client administered the drugs, or the lorazepam in this case, to be more accurate. In doing so, the jury then had a path to manslaughter, if I can put it that way, that didn't require a finding of administration. Now, what ultimately happens is –

The Court: Well, that is right, but the point is that when the facts are ambivalent, I am entitled [for the purposes of sentencing] as the 13th juror as it were, to come to my own conclusions, provided that the conclusions are not inconsistent with any conclusion that is implicit in the jury's verdict. So, I did not say anything to them, as you correctly point out, about who administered it to her. So, their finding that she got in the tub without his assistance does not exclude the possibility that he may have administered it to her, does it? (emphasis added)

[73] This exchange reveals the trial judge clearly understood his answer as providing an additional route to culpability without the necessity of finding the appellant had administered lorazepam to his wife. Some members of the jury could well have formed a similar understanding.

[74] Second, the language of the answer uncoupled the appellant's culpability from the need to find he had administered lorazepam to his wife, a link previously created by the portion of the charge on an unlawful act causing death; a link the trial judge had preserved in the first two drafts of the answer. The ultimate answer added a separate route to culpability based on a different finding – namely, the appellant knew his wife was under the influence of lorazepam.

[75] Third, I do not accept the Crown's submission that the jury could not have reached the question whether the appellant caused his wife's death by an unlawful act without already concluding that he had drugged his wife. The trial judge's instructions on causation preceded his instructions on whether the appellant caused his wife's death by an unlawful act. The penultimate paragraph in the causation instructions required the jury to acquit the appellant if they were not satisfied the appellant caused the deceased to get into the bath tub or put her in the bath tub. If the jury had been proceeding in the linear fashion the Crown suggests, they would never have reached paras. 319 to 322. The penultimate paragraph of the causation instructions reads as follows:

If you are not satisfied that the accused administered lorazepam to the deceased without her knowledge and then caused her to get into the bath tub (or put her in the bath tub) where she then drowned (or he drowned her), you must find Mr. Grandine not guilty. Your deliberations would be over.

[76] As a result, the trial judge's answer expanded the basis upon which the appellant could be found guilty of the offence charged. The answer opened the door to finding culpability in a way incompatible with the key premise on which the case had been conducted, namely that to convict the appellant the jury was required to find he had administered lorazepam to his wife: R. v. Luciano, 2011 ONCA 89, at para. 168. Whether any member of the jury went through that new door to reach his or her decision will never be known. Nevertheless, the answer had the real potential to affect the jury's decision-making process by permitting a new route to culpability: R. v. Vivian, 2012 ONCA 324, at para. 61.

[77] The appellant submits the alternative theory of liability introduced by the trial judge in his answer to the jury's question in the form of a new unlawful act that did not require his administration of the drug was not one contemplated by any party to the proceeding nor by the trial judge when he crafted the first two drafts of his answer. I accept that submission as an accurate description of the record. It distinguishes this case from those relied upon by the respondent where the alternative basis of liability had been a live issue during the trial: see, Largie, at paras. 143 and 164; R. v. Pickton, 2010 SCC 32, [2010] 2 S.C.R. 198, at paras. 21-24; Groot, at paras. 23 and 25.

Did the answer undermine trial fairness?

[78] Presiding over a jury trial probably is the most demanding task asked of a judge. Jury trials are imbued with a dynamic volatility that spins off numerous trial management challenges. Jury questions are one such challenge. Presented with a jury question, a trial judge, with the assistance of counsel, must decipher the question, craft a full and proper response, assess the impact of the response on overall trial fairness, and do all of this under the pressure of a relentless time clock. Although a jury's deliberations can be halted while the trial judge and counsel consider the question, there are practical limits to the amount of time a trial judge can suspend a jury's deliberations.

[79] In the present case, the trial judge worked hard to craft a full and proper response, providing counsel with timely, thoughtful draft answers for their review and comment. However, the third and fourth draft answers, and the answer ultimately presented to the jury, contained material changes from the earlier drafts, as described in paras. 44-46 and 55 above. Instead of responding to a question posed by the jury in the context of the unlawful act of administering a noxious thing with an answer framed by the same unlawful act, the trial judge introduced to the jury a new unlawful act - failing to provide the necessaries of life - thereby opening a door to finding the appellant culpable without needing to find he had administered lorazepam to his wife. The answer thereby undermined the crux of the appellant's defence – namely, he should be acquitted if the jury could not conclude beyond a reasonable doubt that he had administered lorazepam to his wife.

[80] The appellant submits his ability to provide full answer and defence to the charge was compromised by the trial judge failing to afford him an opportunity to respond to the new theory of liability introduced by the answer to the jury's question. The appellant argues that since he had no notice of the new theory of liability prior to the close of evidence and counsel's final addresses to the jury, the trial judge should have allowed him to make a further address to the jury, orally or in writing, dealing with the new theory of liability.

[81] I accept the appellant's submissions. In response to the material changes introduced by the third and fourth drafts of the answer, defence counsel stated the proposed answer might well have affected the manner in which the appellant had conducted his defence. Yet, the trial judge made no inquiries about what steps could be taken to mitigate any prejudice. In my respectful view, he should have. The answer introduced an unlawful act not previously contemplated or dealt with during the trial; one that was incompatible with the trial's working premise that the appellant's culpability depended upon finding he had administered lorazepam to his wife. In those circumstances, the trial judge was obliged, at a minimum, to canvass and implement reasonable steps to mitigate any trial prejudice caused to the appellant by the injection of a new basis of liability. None were considered.

[82] In the result, the trial judge instructed the jury they could treat s. 215 of the Criminal Code as a basis for finding unlawful conduct by the appellant without the jury ever hearing any submissions on the issue from the parties. With respect, that was unfair to the parties, especially the appellant. It prejudiced the appellant's ability to make full answer and defence to the charge; it materially compromised trial fairness.

[83] The respondent Crown submits that, in any event, this court should apply the curative proviso because the strength of the Crown's case belied any realistic possibility that a properly instructed jury would reach a different verdict. I do not accept this submission. In this case, the procedural error was sufficiently grave to result in the denial of a fair trial, causing a miscarriage of justice. Accordingly, no remedial provision applies: R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823, at paras. 27, 69 and 71.

IV. DISPOSITION

[84] For the reasons set out above, I would grant the appellant's appeal from his conviction for manslaughter. The Crown has not appealed the appellant's acquittal on the first degree murder charge or on the included offence of second degree murder. Accordingly, I would direct a new trial on the charge of manslaughter: R. v. Noureddine, 2015 ONCA 770, 128 O.R. (3d) 23, at paras. 75 and 76. In light of this disposition, there is no need to consider the appellant's sentence appeal.

Released: September 15, 2017

"David Brown J.A." "I agree. J.C. MacPherson J.A." "I agree. Janet Simmons J.A."