COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Grandine, 2015 ONCA 574

DATE: 20150814

DOCKET: M45296

(C59971)

R.A. Blair J.A. (In Chambers)

BETWEEN

Her Majesty the Queen

Respondent

and

Philip Grandine

Appellant

Michael Lacy and Joanna Baron for the appellant

Roger Shallow and Katherin Stewart for the Crown

Heard and Released Orally: August 13, 2015

ENDORSEMENT

Background

[1] Karissa Grandine—the appellant’s pregnant wife—drowned in the bathtub of the couple’s home in October 2011. Mr. Grandine was charged with and tried on a count of first degree murder. The jury acquitted him on the murder charge, but convicted on the included offence of manslaughter. The trial judge sentenced him to 15 years’ imprisonment.

[2] Mr. Grandine has appealed his conviction and sentence. He seeks an order granting his release pending the disposition of the appeal pursuant to s. 679(1) and (3) of the Criminal Code.

[3] For me to grant such an order, Mr. Grandine must establish that:

(a) the appeal is not frivolous;

(b) he will surrender himself into custody in accordance with the terms of the order made; and

(c) his detention is not necessary in the public interest.

[4] The Crown accepts that Mr. Grandine is not a flight risk (b) and that his detention is not necessary for the protection of the public (an aspect of (c)). However, it opposes the application otherwise on the public interest ground and argues strenuously that both the conviction and sentence appeals are frivolous.

[5] A consideration of the public interest factors involves weighing both:

(i) the need to ensure the protection and safety of the public (not in issue here); and

(ii) the need to balance the competing values of enforceability (public confidence in the administration of justice requires that judgments be enforced) and reviewability (public confidence requires that judgments be reviewed and that errors, if any be corrected, especially in the criminal field).

See R. v. Farinacci (1993), 1993 CanLII 3385 (ON CA), 67 O.A.C. 197, (Arbour J.A., at paras. 41-43; R. v. Love, [2012] O.J. No. 4083 (Epstein J.A., in Chambers).

[6] It follows from this that the merits of the appeal and the public interest factors are interrelated, and counsel treated them in that fashion in the argument. It is therefore necessary to spend some time outlining the grounds of appeal and the parties’ positions in relation to them.

The Grounds of Appeal

[7] The Crown’s theory was that—being in the midst of an affair with another woman—Mr. Grandine had surreptitiously drugged his wife with a drug known as lorazepam (a drug with strong sedative effects) and then either caused her to take a bath, with the inevitable result that in her drugged condition she would drown, or deliberately placed her in the bathtub and incapacitated her himself.

[8] The defence theory was that there was insufficient evidence to establish that lorazepam was a contributing factor in Ms. Grandine’s death and, even if there were, there was insufficient evidence to establish beyond a reasonable doubt that Mr. Grandine surreptitiously administered the drug to her. There was evidence that she was suicidal and may have self-administered the drug.

[9] The jury acquitted Mr. Grandine of murder but convicted him on the included offence of manslaughter. After making findings of fact at the sentencing stage that he concluded were available to him on the record, the trial judge sentenced Mr. Grandine to 15 years in prison, essentially on the basis that this was a near murder.

Conviction

[10] Mr. Grandine raises two grounds of appeal on conviction.

[11] First, he submits that the trial judge erred when, in response to a jury question during deliberations, he left a new route to liability with the jury based on a new unlawful act that had not been raised previously by anyone or dealt with by counsel during the evidence or in their closing addresses, or by the trial judge in his charge. This ground of appeal arises from the following.

[12] The trial, jury addresses and instructions to the jury to that point in time had proceeded on the basis that the unlawful act put forward by the Crown—and underpinning a murder or manslaughter conviction—was Mr. Grandine’s surreptitious administration of the noxious drug to his wife (contrary to s. 245 of the Criminal Code). Having done so, the Crown contended, he then caused her to get into (or put her in) the bathtub where she drowned (see Jury Instructions, paras. 318-322, to which there were no objections). In the second day of deliberations, however, the jury asked a question. The question was whether (regarding those paragraphs in the Instructions):

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

[13] The trial judge wrestled with this question overnight and—over the objections of defence counsel—decided that, in response to the question, there was an additional “unlawful act” basis upon which the jury could find liability, namely the failure of a spouse to provide the necessities of life contrary to s. 215 of the Criminal Code. He gave such an instruction, observing that the jury’s question presupposed that Mr. Grandine knew that his wife had enough lorazepam in her system to suffer from its side effects (but not saying anything about his having administered the drug), that he knew she was going to take a bath and would get into the tub on her own volition, but that he took no steps to stop her when he knew the foreseeable risks.

[14] Mr. Lacy contends that the trial judge erred in doing this. The trial judge, he says, in effect turned a question about causation into a question about a completely new unlawful act, leaving it open to the jury to convict on manslaughter without having to worry about whether Mr. Grandine had drugged his wife. This had the effect of changing the entire landscape of the case as it had been tried to that point in time. Mr. Lacy acknowledges that a trial judge’s role is to instruct the jury on all relevant questions of law that arise on the evidence, but he submits that this role is circumscribed by the need to ensure trial fairness: see R. v. Ranger (2003), 2003 CanLII 32900 (ON CA), 178 CCC (3d) 375 (Ont C.A.), at para 133. Mr. Grandine’s right to a fair trial and to make full answer and defence was undermined as a result of this turn events, he says. Finally, he contends that the additional instruction was in itself erroneous because it failed to relate the evidence to the instructions given (indeed, he argues that the record did not support the instructions given).

[15] Mr. Lacy raised a second argument on conviction as well. As I understand the argument, he submits that manslaughter by failing to provide the necessities of life is a different transaction than manslaughter by administering a noxious drug, and therefore could not form the basis for a conviction of the included offence of manslaughter on the charge as pursued against Mr. Grandine. In this respect, he relied on the brief dissent of McEachern C.J.B.C. in R. v. McCune, (1998) 1998 CanLII 15035 (BC CA), 131 C.C.C. (3d) 152 (B.C.C.A.).

[16] On behalf of the Crown, Mr. Shallow submits that these grounds of appeal are frivolous and have no chance of succeeding. He argues that it is clear from the context of the jury’s question—the portion of the Instructions dealing with whether Mr. Grandine had administered the noxious drug to this wife—and from the trial judge’s answer that the answer was related to the causation question and did not take away the need for the jury to consider the administration issue. In any event, if it did, it corrected a previous error in the charge. The trial judge was responsible for providing the jury with correct legal instructions arising from the evidence, and did so. Mr. Grandine’s fair trial rights were not undermined because he and his counsel at all times knew that manslaughter was on the table and that juries are not bound by the factual theories of the Crown, the defence or the judge. The jury was only doing its job based on proper instructions from the trial judge. Mr. Shallow relies on cases such as R. v. Picton (2010), 2010 SCC 32, 257 CCC (3d) 296 (SCC) for the Crown’s position.

Sentence

[17] In terms of the sentence appeal, the main area of dispute is over the trial judge’s findings and whether the trial judge was entitled to make the findings he did for purposes of the sentencing. I do not think much turns on this for purposes of this bail hearing because, even if the appellant wins the day on this issue, the range of sentence to be imposed notwithstanding that, if the conviction stands, would take the matter well beyond the time required for disposition of the appeal.

Discussion

[18] I pause to say at this point—because I know there are members of the family and perhaps the public who are affected by this case in the courtroom—that I recognize, and do not for one moment doubt, or attempt to minimize, the hurt, dismay and upset that family, friends and members of this couples’ community must feel as a result of these tragic events. That is evident from the victim impact statements that were filed on sentencing and, in any event, must be obvious.

[19] My analysis proceeds on the premise that Mr. Grandine has been convicted of manslaughter, however, not murder, even if one accepts that the manslaughter was of a heightened character.

[20] Without commenting further on the merits, and in spite of Mr. Shallow’s careful submissions, I cannot say at this stage that the conviction appeal is frivolous. I am satisfied that, at least on the first ground of appeal, Mr. Grandine has an arguable case to put forward.

[21] With respect to the sentence appeal, the fitness of the sentence depends largely on the view of the facts that is to prevail. The trial judge gave thorough and careful reasons for arriving at the findings that he did and those findings, if legally correct, are entitled to deference. There is a legal issue to be determined on appeal whether he was legally entitled to engage in the exercise as he did, however. The success of that legal argument remains to be seen, but, again, I cannot say that it is frivolous at this stage.

[22] Given those conclusions as to the merits, I am satisfied that the principle of reviewability outweighs the principle of enforceability in the circumstances. It is conceded that Mr. Grandine is not a flight risk. He abided by the terms of his bail for a lengthy period prior to trial without incident. He is obviously supported by a loving and caring family with whom he has strong ties and who are prepared to risk a substantial sum by way of providing security. I do not think, on the record, that he is likely to jeopardize their welfare by putting that at risk.

[23] In the end, I am satisfied that Mr. Grandine has met his onus of establishing that his detention is not necessary in the public interest and that he has an arguable case to put forward. I will grant him an order for his release pending appeal.

[24] I recognize this will be troubling for family and friends of the victim, and perhaps others. However, the ultimate result of this clear tragedy will be determined on the hearing of the appeal, and, for the reasons set out above, I am persuaded that the public interest in the administration of justice will not be undermined by the appellant’s release pending that determination.

[25] Accordingly, an order will go granting Mr. Grandine his release pending the disposition of his appeal in terms of the draft order provided by counsel as amended and on which I have placed my fiat.

“R.A. Blair J.A.”