COURT FILE NO.: CR-18-30000425 DATE: 20180925
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN – and – PHILLIP GRANDINE
Donna Kellway and Patrick Woods, counsel for the Crown Amit Thakore, counsel for the Accused
HEARD: September 10, 11 and 17, 2018
M.A. CODE J.
REASONS FOR JUDGEMENT ON THREE PRE-TRIAL MOTIONS
A. OVERVIEW
[1] The accused Phillip Grandine (hereinafter, Grandine) was initially charged with the first degree murder of his pregnant wife, Anna Karissa Grandine on October 17, 2011. He was tried by Clark J. and a jury in this Court. On December 4, 2014, the jury acquitted Grandine of murder but convicted him of manslaughter. On January 9, 2015, Clark J. sentenced Grandine to 15 years imprisonment.
[2] Grandine appealed both conviction and sentence and on September 15, 2017 the Court of Appeal allowed the conviction appeal on the basis of one error committed by the trial judge. It concerned the way in which he had answered a question asked by the jury on the evening of their second day of deliberations. See: R. v. Grandine (2017), 2017 ONCA 718, 355 C.C.C. (3d) 120 (Ont. C.A.). As a result of the successful appeal, the present re-trial is on an Indictment that alleges manslaughter. The Indictment particularizes the alleged means as “either… an unlawful act or by criminal negligence… contrary to s. 236(b)”.
[3] The parties scheduled two weeks for pre-trial Motions before me, commencing September 10, 2018. The jury trial is scheduled to proceed on January 28, 2019. At the judicial pre-trial before McMahon J., the parties identified three Motions which were all to be filed in accordance with the Criminal Proceedings Rules, that is, 30 days prior to the hearing.
[4] The Crown filed the two Motions that it had identified, namely, Motions seeking rulings on the admissibility of the accused’s three statements to the police and on the admissibility of various ante mortem statements of the deceased. No defence response was filed in relation to either of these two Motions.
[5] The defence did not file the one Motion it had identified, concerning issue estoppel, until the morning of the first day of the hearing before me. I received and heard the Motion, in spite of its late filing, because it was of fundamental importance and counsel explained that he had been unexpectedly drawn into another fairly lengthy trial during the month of August. I gave the Crown time to consider their position and to respond.
[6] These are my Reasons on the three pre-trial Motions.
B. THE ACCUSED’S THREE STATEMENTS TO THE POLICE
[7] Mr. Thakore, counsel for the defence at both the first trial and before me on the present Motions, confirmed that he had not filed any response to the Crown’s Motion seeking admission of the accused’s three statements to the police. He explained that the common law voluntariness of the three statements had always been conceded. He had been considering raising a Charter of Rights issue, concerning compliance with ss. 10(a) and 10(b), but upon further reflection he had abandoned this issue.
[8] I am satisfied that the accused’s three statements to the police are admissible, if tendered by the Crown at trial. The accused, through counsel, has knowingly waived the need for a voir dire to determine common law voluntariness. See: R. v. Park (1981), 59 C.C.C. (2d) 385 (S.C.C.). In addition, counsel has wisely abandoned any Charter of Rights issue. I have reviewed the records of the three statements. The accused was clearly not detained at the time of the first two statements and there was full compliance with ss. 10(a) and 10(b) of the Charter prior to the taking of the third statement. Accordingly, the three statements are admissible.
C. THE ANTE MORTEM STATEMENTS OF THE DECEASED
[9] The Crown tenders a number of ante mortem statements of the deceased and seeks rulings as to their admissibility, either as hearsay or as non-hearsay. The statements assert or infer the state of mind or intentions of the deceased and they also assert certain underlying or antecedent events that allegedly occurred in the days leading up to Ms. Grandine’s death. Clark J. ruled that all the statements were admissible at the first trial. The defence had conceded the admissibility of most of the statement and challenged only two of the statements. As I read Clark J.’s Reasons, he admitted these two contested statements on two bases: either as non-hearsay circumstantial evidence inferring a state of mind; or as a substantively reliable implied hearsay assertion of that state of mind and certain related events. See: R. v. Grandine, 2015 ONSC 26. Clark J.’s ruling, in this regard, was not challenged on the appeal from conviction.
[10] The relevance of the deceased’s ante mortem statements is clear and obvious, in my view. She died from drowning in the bathtub at the home where she lived with the accused. At the time of her drowning, there was a large amount of a drug known as lorazepam in her system. There is no evidence that she was prescribed this drug or that she ever took it voluntarily. It is prescribed for anxiety and its effect is to depress the central nervous system. The Crown theory at the first trial was that the accused had a motive to kill his wife, as he was having an affair with another woman, and that he obtained and administered the lorazepam surreptitiously, and that the drug facilitated death by drowning. The defence theory was that the deceased obtained and self-administered the lorazepam, before taking a bath, because she was depressed and suicidal due to the state of her marriage. The deceased’s state of mind was highly relevant at the first trial, and it remains relevant at the re-trial, in relation to issues such as accident and suicide which the Crown must negative in order to prove manslaughter.
[11] Mr. Thakore, on behalf of the defence, confirmed that he had not filed any response to the Crown’s Motion. He explained that he had reflected further on the issue and was now content that all of the deceased’s ante mortem statements were admissible, including the two that he had challenged at the first trial. However, this concession is subject of Mr. Thakore’s issue estoppel Motion. If that Motion is successful, it may have an impact on the admissibility of some of the ante mortem statements.
[12] Although the parties are now in agreement as to the admissibility of all the ante mortem statements of the deceased, it is still important to make rulings on each statement. That is because there are distinct routes to admissibility, either as hearsay or as non-hearsay. This will determine how the statements can be used at trial, that is, either as non-hearsay circumstantial evidence inferring a particular state of mind, belief or emotion, or as a hearsay assertion of a state of mind or of some antecedent event. These are matters on which the jury will need to be instructed.
[13] I recently reviewed the law in relation to this issue, in R. v. Millard and Smich, 2017 ONSC 5701, and I simply repeat and adopt what I said in that case (at paras. 13-16):
[13] The parties tender the various out of court statements of Ms. Babcock, sometimes for hearsay purposes and sometimes for non-hearsay purposes, generally in relation to Ms. Babcock’s state of mind. The distinction between hearsay and non-hearsay evidence of the deceased’s state of mind was explained by Doherty J., as he then was, in R. v. Pan (1990), 58 C.C.C. (3d) 334 at pp. 341 and 343-4 (Ont. H.C.J.):
Assuming relevance, evidence of utterances made by a deceased (although the rule is not limited to deceased persons) which evidence her state of mind are admissible. If the statements are explicit statements of a state of mind, they are admitted as exceptions to the hearsay rule. If those statements permit an inference as to the speaker's state of mind, they are regarded as original testimonial evidence and admitted as circumstantial evidence from which a state of mind can be inferred. The result is the same whichever route is taken, although circumstantial evidence of a state of mind poses added problems rising out of the inference drawing process [citations omitted]
Evidence of the deceased's state of mind may, in turn, be relevant as circumstantial evidence that the deceased subsequently acted in accordance with that avowed state of mind. Where a deceased says, "I will go to Ottawa tomorrow", the statement affords direct evidence of the state of mind — an intention to go to Ottawa tomorrow — and circumstantial evidence that the deceased in fact went to Ottawa on that day. If either the state of mind, or the fact to be inferred from the existence of the state of mind is relevant, the evidence is receivable subject to objections based on undue prejudice. [citations omitted]
An utterance indicating that a deceased had a certain intention or design will afford evidence that the deceased acted in accordance with that stated intention or plan where it is reasonable to infer that the deceased did so. The reasonableness of the inference will depend on a number of variables including the nature of the plan described in the utterance, and the proximity in time between the statement as to the plan and the proposed implementation of the plan.
The rules of evidence as developed to this point do not exclude evidence of utterances by a deceased which reveal her state of mind, but rather appear to provide specifically for their admission where relevant. The evidence is not, however, admissible to show the state of mind of persons other than the deceased (unless they were aware of the statements), or to show that persons other than the deceased acted in accordance with the deceased's stated intentions, save perhaps cases where the act was a joint one involving the deceased and another person. The evidence is also not admissible to establish that past acts or events referred to in the utterances occurred. [citations omitted]
[14] Doherty J.’s above reasoning in Pan was subsequently adopted by the Supreme Court in R. v. Smith (1992), 75 C.C.C. (3d) 257 at 266 (S.C.C.) and in R. v. Griffin and Harris (2009), 2009 SCC 28, 244 C.C.C. (3d) 289 at 311 (S.C.C.). Also see R. v. Candir (2009), 2009 ONCA 915, 250 C.C.C. (3d) 139 at para. 56 (Ont. C.A.) where Watt J.A. gave the judgment of the Court and stated:
The prosecutor may tender explicit statements of the declarant’s state of mind or statements that give rise to an inference about the declarant’s state of mind. The former are hearsay and require an exception to establish their admissibility. The latter are not hearsay and are admitted as circumstantial evidence from which the declarant’s state of mind may be inferred: P. (R.) at p. 341. Whether admitted by exception or as beyond the exclusionary reach of the hearsay rule, the statements should be contemporaneous with the state of mind of which they are evidence.
[15] The state of mind exception to the hearsay rule, as discussed in Pan, is closely related to another traditional common law exception admitting statements of intention. In addition, statements asserting a present bodily feeling or emotional condition have been admitted at common law on the basis of similar reasoning. Finally, statements of the deceased that accompany and explain the doing of some relevant act have been admitted. In all these instances, the hearsay utterance is necessary (because of the deceased’s absence as a witness) and generally reliable (mainly because of the contemporaneity of the statement to the state of mind, intention, bodily condition, or accompanying act). See: Lederman, Bryant and Fuerst, The Law of Evidence in Canada, 4th Edition [LexisNexis Canada Inc. 2014], at pp. 334-350; Watt’s Manual of Criminal Evidence, 20th Edition [Thomson Reuters 2017], at pp. 386-394.
[16] The above authorities make it clear that it is only the declarant’s contemporaneous state of mind, emotion, condition, or intention that is admissible and not “past acts or events referred to in the utterances” or some “anterior factual assertion” underlying the present state of mind or intention, as Doherty J. and Lamer C.J.C. put it in Pan, supra at p. 344 and in Smith, supra at pp. 266-7. These “past acts or events” or “anterior factual assertions” can only be admitted for their truth by going beyond the scope of the traditional common law exceptions, that is, by relying on the modern principled exception to the hearsay rule. The necessity criterion for the principled exception is not at issue in this case, given that Ms. Babcock is clearly not available as a witness. The only issue is whether the threshold reliability criterion can be satisfied because the statements are “procedurally reliable,” or “substantively reliable,” or a combination of both, as those terms are understood in the recent case law concerning the principled exception. See: R. v. Khelawon (2006), 2006 SCC 57, 215 C.C.C. (3d) 161 (S.C.C.); R. v. Blackman (2008), 2008 SCC 37, 232 C.C.C. (3d) 233 (S.C.C.); R. v. Bradshaw, 2017 SCC 35, [2017] S.C.J. No. 35.
[14] Applying the above principles in this case to the specific statements that the witnesses attribute to the deceased, they are as follows (as summarized in Exhibit 3 filed on the Motion):
A statement made to her mother, Maria Darvin, when the deceased was taken to hospital on October 14, 2011. This is an important event, three days prior to Ms. Grandine’s death, as she was experiencing symptoms such as disorientation, fatigue, and vomiting. A blood sample was taken at the hospital but it was not screened for drugs at the time. Later testing of this sample, after Ms. Grandine’s death, revealed lorazepam. According to her mother, Ms. Grandine asked the accused at the hospital, “did you give me [a] pill”. I agree with the parties’ two alternative analyses of this statement. On the one hand, it could be treated as a non-hearsay item of circumstantial evidence, inferring the deceased’s belief that she had unwittingly ingested a pill or drug of some kind. The statement does not expressly assert any fact; it simply asks a question. On the other hand, the Crown seeks to use the statement as an implied assertion that the deceased did not knowingly ingest the drug (lorazepam) that was undoubtedly in her system at the time of her hospitalization. See: R. v. Baldree (2013), 2013 SCC 35, 298 C.C.C. (3d) 425 at para. 39 (S.C.C.) where Fish J. stated on behalf of the Court that, “The relevance of the statement thus hinges on the truth of the declarant’s underlying belief.” This implied hearsay assertion, that she did not knowingly ingest the drug, refers to an antecedent event that underlies her present belief. See: R. v. Pan, supra at p. 344 and R. v. Smith, supra at pp. 266-7. Accordingly, it is not admissible under the common law state of mind exception. However, it is admissible under the principled exception because it is “substantively reliable”. There is strong corroborating evidence that Ms. Grandine was under the influence of lorazepam, and so her belief that she had ingested some kind of pill or drug is undoubtedly accurate. More importantly, she was pregnant and she was not well, and she had gone to the hospital voluntarily in order to get help. She had a strong interest in accurate diagnosis and effective treatment for her illness. In other words, the circumstances in which she made the statement are reliable as she had no motive to lie and she had a real interest in accurate and reliable investigation of her illness. In addition, there is no evidence that she was ever prescribed lorazepam or that she had ever taken the drug voluntarily. For all these reasons, the statement is admissible to prove the truth of the implied assertion that she did not knowingly ingest the drug lorazepam;
There are five separate but related statements made by the deceased to her sister, Hannah Darvin. Two of these statements are subject to a similar analysis as the above statement to the deceased’s mother concerning Ms. Grandine’s hospitalization on October 14, 2011. She told her sister, “I even asked Phil [the accused]… ‘did you give me a pill or did you put something in my drink?’”. She also described being “really frightened because I don’t remember a thing… I didn’t know where I was”. Parts of these statements would be admissible under traditional common law exceptions because they assert a state of mind (being frightened and disoriented). However, their real use is the same as set out above, namely, to impliedly assert that she did not knowingly ingest the lorazepam that was in her system on October 14, 2011 when she was taken to the hospital. This implied assertion is “substantively reliable” and is admissible pursuant to the principled exception, for the reasons already set out above. The parties agree with this basis for admissibility;
Two of the statements made to the deceased’s sister relate to Ms. Grandine’s pregnancy. She describes, “making a baby list… telling me all the things she was planning on buying for the baby”, arranging to find out “whether the sex was a boy or a girl”, and attending “to do the ultrasound in the pregnancy clinic” and feeling “kind of sad” because “all the women have their husbands with them and they look so happy”. These are statements of intention (stating her future plans for the baby) and they assert a state of mind (sadness when attending the ultrasound clinic), which are both traditional common law hearsay exceptions. In addition, the antecedent event that she asserts (about attending the ultrasound clinic) is “substantively reliable” because it is corroborated by her obstetrician, Dr. Berger, who testified that she attended for all necessary check-ups during her pregnancy. The overall effect of this evidence is to infer that the deceased was sometimes sad but she was committed to seeing her pregnancy through, in spite of the difficulties in her marriage. These two statements are admissible for their truth. The parties agree with this analysis;
The final statement to the deceased’s sister involves both emails and a phone conversation that took place on August 25, 2011, some six weeks prior to Ms. Grandine’s death. Ms. Darvin, who will testify, describes her sister telling her how she “discovered that Phillip [the accused] was having an affair” and “her anxiety about the affair itself”. Ms. Grandine told Ms. Darvin, “if anything happens to me, remember that I sent you my password. If anything happens to me, here are three emails that I found on his computer… she had stumbled upon these emails which she forwarded to me… There was some fear that she was feeling”. These statements assert the deceased’s knowledge that the accused was having an affair and they express feelings of anxiety and fear. These aspects of the statement are all admissible for their truth pursuant to the traditional common law state of mind exception. In addition, the statement provides necessary context to Ms. Darvin’s testimony, explaining how she came to be in possession of the forwarded emails. Finally, the antecedent event described in the email, explaining how Ms. Grandine discovered the accused’s affair, is “substantively reliable” and is not in dispute. For all these reasons, this statement is admissible for its truth. The parties agree with his analysis;
There are two statements that the deceased made to Steven Hadfield, a pastor who took on the role of marriage counselor after the deceased learned that the accused was having an affair with one Eileen Fiorentino. In one of these statements, the deceased asserts her belief that the accused is still texting and carrying on the affair with Ms. Fiorentino. This assertion of knowledge or belief is admissible pursuant to the traditional common law state of mind exception. It is also “substantively reliable” as the telephone records and Ms. Fiorentino’s own testimony confirm that the affair was ongoing. The other statement is an email that the deceased sent to Mr. Hadfield and copied to the accused. It states that she “downloaded a filtering program for our computer” after doing “some research” concerning “its security and filtering” capabilities. She also thanks Mr. Hadfield for his “compassion to help us through this”. Mr. Hadfield will testify to the effect that one difficulty in the marriage was the accused’s interest in pornography, that he suggested use of a computer filter to control and monitor this activity, and that the deceased agreed with and acted on this suggestion. The email provides necessary context for Mr. Hadfield’s testimony about this aspect of the counseling. The email is also “substantively reliable” as there is evidence that the filter was installed, that the filter password was associated with the deceased, and that this filtering program was deactivated on the home computer shortly before the accused called 911 to report Ms. Grandine’s death on October 17, 2011. In addition, the email was copied to the accused so there is evidence that it was in his possession, inferring his knowledge of the email and arguably inferring his acceptance or adoption, given the accused’s subsequent actions in participating in the counseling. See: R. v. Bridgman (2017), 2017 ONCA 940, 138 O.R. (3d) 721 at paras. 66-77 (Ont. C.A.). Finally, the email expresses an intention or desire “to help us through this”. For all these reasons, the email is admissible for its truth pursuant to both traditional common law exceptions and the modern principled exception. The parties agree with this analysis;
There are nine statements made by the deceased to a close friend, Lynette Him. The Crown does not presently anticipate calling Ms. Him at trial but the defence called her at the first trial. The parties seek a ruling as to the admissibility of her evidence, in the event that she is called at the re-trial by either the Crown or the defence. The first statement is that the deceased “spoke about wanting to have children… she was very excited about having children”. This is a statement of intention or an assertion of a present state of mind. It is admissible for its truth pursuant to traditional common law exceptions. The parties agree with this analysis;
The second and third statements of the deceased to Ms. Him concerned the accused’s use of pornography. She stated that the accused had admitted his interest in pornography during their counseling sessions with Mr. Hadfield, that this was “devastating” to her, that “she completely blocked it” by installing filtering software on their home computer, and that this also allowed her “to keep him from e-mailing this girl”. To some extent, these statements assert a state of mind (being devastated) but they also relate a narrative about past events. That narrative is “substantively reliable” as it is entirely corroborated by Mr. Hadfield’s evidence and by the subsequent forensic analysis of the home computer. These statements are admissible for their truth. The parties agree with this analysis;
The fourth statement of the deceased to Ms. Him was to the effect that the accused told the deceased that he had taken a day off work and had gone on a “day out date” with Ms. Fiorentino and they “had been kissing quite a bit” but they had not yet “consummated the affair”. The deceased was “very upset” because the accused “never did anything like that for her”. This statement asserts a state of mind (being upset) but it also recounts a narrative about past events. That narrative is “substantively reliable” because it is entirely corroborated by Mr. Hadfield and Ms. Fiorentino. It should be noted that the deceased’s statement is itself based on a second layer of hearsay (the accused’s statement to her) but that second layer of hearsay is covered by its own hearsay exception for statements/ admissions of the accused. See: R. v. Starr (2000), 2000 SCC 40, 147 C.C.C. (3d) 449 at paras. 168-174 (S.C.C.). This statement is admissible for its truth. The parties agree with this analysis;
The fifth statement of the deceased to Ms. Him involved a series of observations about her pregnancy and about the future of her marriage to the effect that: “whatever happened, she wanted to forgive him, so even if he left her… she was gonna carry on … raise her baby and carry on”; she found it “very difficult to enjoy” her pregnancy since learning of the accused’s infidelity, she had been “wanting to be pregnant for so long… she just wants to cherish her baby”; “she really hated that the timing was as it was… the long road ahead looked kind of bleak, it looked like she might be a single mom” but “she didn’t hold anything against her baby and she loved her baby”; she said, “I had thought about suicide but I decided that it wasn’t the right way to go, ‘cause of the baby”. These are all classically statements that assert a present state of mind, present emotion, or present intention. They are all covered by traditional common law exceptions to the hearsay rule and are admissible for their truth. The parties agree with this analysis;
The sixth statement of the deceased to Ms. Him is a narrative account of the events that occurred on “Thursday night”, just prior to the deceased’s hospitalization on Friday, October 14, 2011. She stated that Mr. Hadfield was at their home for a counseling session, that the accused was sick and had difficulty participating in the counseling, that when she was “going to bed… at some point during this night he makes her banana smoothie… she said this was the last thing I ate, I didn’t have anything else… by the morning she’s sick as a dog, vomiting, in and out of consciousness she says”, and the accused then took her to the hospital. Ms. Him stated that the deceased “kept repeating to me, Phil [the accused] made me the smoothie, it was the last think I ate”. The admissibility of this statement depends on the principled exception to the hearsay rule as it relates past events and does not assert a present state of mind. The parties agree that it is “substantively reliable” because it is corroborated by Mr. Hadfield’s evidence (about the events of Thursday evening), by the evidence form the hospital (about the deceased’s symptoms and the drug that was in her system), and by the evidence of the deceased’s sister and mother (asking whether the accused had put something in her drink or given her a pill). In addition, the statement relates to the deceased’s efforts to discover how and why she became ill at this point during her pregnancy, which is a matter on which she had a strong interest in accuracy and no motive to lie. For all these reasons, the statement is admissible for its truth;
The seventh statement of the deceased to Ms. Him was to the effect that “there was sexual intimacy… she was willing to let everything be restored… if he wanted to romance her then she was willing, she didn’t lock the door”. To some extent this statement asserts a present state of mind (willingness to consent to sexual relations) but it also asserts the fact of ongoing sexual intimacy after the deceased learned of the accused’s infidelity. This latter aspect of the statement depends on the principled exception. The parties agree, as do I, that it is “substantively reliable” as it is corroborated by the accused’s own statements to the police. Accordingly, the statement is admissible for its truth;
The eight statement of the deceased to Ms. Him was to the effect that she was “anxious about their finances” because it was “difficult to be working full time… she was having so much stress at work and feeling just sick over that… she didn’t quite know how they were going to make their payments for the house”. This is a statement that asserts a present emotion or present state of mind (anxiety and stress). It is admissible for its truth pursuant to traditional common law exceptions. The parties agree with this analysis;
The last statement of the deceased to Ms. Him is in the form of an email. It states, “we [the deceased and the accused] intend to go” to a retreat in early November “called Rebuilding Brokeness in Relationships”. She goes on to state, “I think it will be very profitable and an encouragement”. This is clearly a statement that asserts a present intention and present state of mind. It is admissible for its truth pursuant to traditional common law exceptions. The parties agree with this analysis;
Two doctors cared for the deceased. Her family doctor, Dr. Gora, and her obstetrician, Dr. Berger, both testified. She made various statements to these doctors asserting or implying a positive attitude towards her pregnancy. In particular, she attended for all required tests concerning the pregnancy but she did not want to test for Downs Syndrome. These statements provide necessary context for the evidence of the two doctors concerning their care for the deceased during her pregnancy. They are also items of circumstantial evidence implying a desire to maintain the health of her pregnancy and see it through and not terminate it. Finally, the statements impliedly assert her present intentions about her pregnancy. For all these reasons, the statements are admissible for their truth. The parties agree with this analysis;
Finally, the deceased made various statements to the staff upon her admission to the hospital on October 14, 2011, and to Dr. Spence who attended to her at the hospital. She described the symptoms of illness that had brought her to the hospital, she disclosed the fact that she was taking an anti-nausea drug, and she said nothing about taking the drug lorazepam. These statements recount past events and do not assert a present state of mind. They also impliedly assert that she did not knowingly ingest the lorazepam that was undoubtedly in her system, in that she said nothing about it. The statements depend for their admissibility on the principled exception to the hearsay rule. The parties agree, as do I, that these statements are “substantively reliable”. There is corroboration of her symptoms and of the fact that she was prescribed an anti-nausea drug. In addition, there is no evidence that she was ever prescribed lorazepam or ever knowingly took lorazepam. Finally, the occasion was one where she had a strong interest in accurate reporting, in order to properly diagnose and remedy an apparently significant illness that had arisen during her pregnancy. The hospital staff had their own business or professional interest in accurately recording her contemporaneous utterances on these subjects. For all these reasons, these statements at the hospital are admissible for their truth.
[15] In conclusion on this Motion concerning Ms. Grandine’s ante mortem statements, all of the above summarized hearsay assertions are admissible for their truth. I have not mentioned the criterion of necessity because it is not in issue, Ms. Grandine being deceased and, therefore, unable to attend and testify.
D. THE DEFENCE MOTION CONCERNING ISSUE ESTOPPEL
[16] The third and last Motion concerns issue estoppel, that is, the effect on the present trial of the accused’s acquittal of murder at his first trial. The acquittal was not appealed or reversed and Mr. Thakore submits, on behalf of the defence, that much of the Crown’s evidence to be tendered at the present trial is inconsistent with or controverts that earlier verdict.
[17] Mr. Thakore’s argument begins with the premise that the jury at the accused’s first trial must have decided that he lacked the requisite mens rea for murder, that is, either an intent to kill or an intent to cause bodily harm that was known to be likely to cause death, pursuant to s. 229. Since the jury convicted Grandine of manslaughter, they must also have been satisfied that he caused death by means of an unlawful act, pursuant to s. 222(5). In other words, they found that the actus reus for murder was proved but the mens rea was not proved. The Crown does not dispute this interpretation of the jury’s verdict. I agree that a failure to prove the mental element for murder is the only rational explanation for the verdict.
[18] As noted, the above interpretation of the jury’s verdict is the starting premise for Mr. Thakore’s argument concerning issue estoppel. He submits that the issue that has been finally decided, as between the parties, is that the accused lacked the requisite mens rea for murder at the time of any unlawful act committed by the accused that caused death. Mr. Thakore then submits, as his further premise, that the scope or effect of issue estoppel is to exclude any evidence at the re-trial that is relevant to intent to kill and that could, therefore, be used to controvert that earlier finding of lack of mens rea. In this regard, he relies heavily on one passage found in the reasons of Chief Justice McLachlin, speaking for the majority in R. v. Mahalingan (2008), 2008 SCC 63, 237 C.C.C. (3d) 417 at para. 37 (S.C.C.), where she stated:
Taking the principle of issue estoppel as a principle against relitigation of concluded issues, as advocated in these reasons, the question is whether, on the trial of an accused for an offence, the Crown can lead evidence capable of contradicting facts previously found in the accused’s favour at an earlier trial. In my view, the principle prohibiting such relitigation remains essential to a fair, effective and respected criminal justice system. [Emphasis added]
[19] Relying on the above passage in Mahalingan, which is the authoritative modern decision concerning issue estoppel, Mr. Thakore submits that large parts of the Crown’s case are inadmissible at the re-trial. In particular, he submits that the following evidence is all relevant to intent to kill and “capable of contradicting” the jury’s earlier finding of lack of intent for murder:
The police seized the Grandines’ home computer and carried out a forensic analysis. They discovered that someone had used the computer to conduct research into the drug lorazepam (as well as other drugs), including research as to fatal amounts of lorazepam and research concerning autopsies;
There is a body of evidence relating to Ms. Grandine attending at the hospital on October 14, 2011, three days prior to her death. A blood sample was taken and was subsequently tested for drugs at the C.F.S., after Ms. Grandine’s death. It was found to contain lorazepam. Upon her death on October 17, 2011, there was a somewhat larger amount of lorazepam in her blood. Neither amount was fatal. At the hospital, Ms. Grandine described her symptoms, she was seen by Dr. Spence, and she made statements to the staff, to Dr. Spence, to her mother and to her sister, including questioning whether the accused had given her a pill or had put something in her drink. This evidence is described in more detail above, when discussing the ante mortem statements Motion;
Evidence from the accused’s employer, a long term care facility where he worked as a nurse, to the effect that he was expected to lift and carry patients. Upon discovering the drowned deceased in the bathtub, the accused called 911 and later gave statements to the police. He explained his difficulties draining the bathtub, and lifting or moving the deceased out of the bathtub, as her foot was blocking the drain. When first responders arrived at the house, they found the deceased in the bathtub with her head towards the end where the taps are located; and
A large body of evidence relating to the accused’s infidelity, the marriage counseling that ensued, the disclosure of the accused’s interest in pornography, and the installation (and later removal) of the K9 web filter program on the computer in order to prevent access to pornography. In particular, Ms. Fiorentino testified about the affair she had with the accused, Mr. Hadfield testified about the marriage counseling that he undertook in order to help the accused and Ms. Grandine, and various witnesses testified about the K9 web filter software that was installed on the Grandines’ computer and that was removed by someone on the night of October 17, 2011, shortly before the accused called 911.
[20] The defence submits that all of this evidence was called at the first trial in order to prove that Grandine had a motive to kill his wife (the affair with Ms. Fiorentino), that he planned and prepared how he was going to kill her (the computer research and the testing of lorazepam on October 14, 2011), and that he executed the plan three days later (by administering a larger dose of lorazepam and then placing her in the bath with her head at the end where the taps are located). All of the above evidence is “capable” of being used in the same fashion at the re-trial, inferring intent to kill, and so it is inadmissible pursuant to issue estoppel, as explained in R. v. Mahalingan, supra at para. 37, according to Mr. Thakore’s submission.
[21] The Crown does not dispute that this body of evidence was used in the above fashion, unsuccessfully, at the first trial. Ms. Kellway also concedes, on behalf of the Crown, that the above use of the evidence is prohibited by issue estoppel. However, she submits that the same body of evidence had a secondary use at the first trial, namely, to prove manslaughter, and this will now become the only use of the evidence at the re-trial. Ms. Kellway submits that the unlawful act that caused death was surreptitiously administering lorazepam to Ms. Grandine, after researching and testing the drug, and then helping or placing Ms. Grandine into the bathtub in some fashion, or merely standing by and doing nothing to protect her while she got into the bathtub in a dangerously disabled state. The Crown submits that all of the evidence summarized above, concerning the accused’s affair with Ms. Fiorentino, the researching and testing of lorazepam, the final administering of lorazepam, and then helping or not preventing Ms. Grandine from getting into the bath, is relevant to proving that the accused intentionally committed the alleged unlawful act or acts that caused death. It is no longer necessary to prove that the accused did these acts with intent to kill, indeed the Crown concedes that issue estoppel prohibits this use. The only mens rea for manslaughter is objective foresight of the risk of bodily harm and intention in relation to committing the unlawful act or acts. See: R. v. Creighton (1993), 83 C.C.C. (3d) 346 (S.C.C.). The Crown submits that Grandine’s motive and animus towards his wife was not only relevant to intent to kill but was equally relevant to showing that he intentionally drugged her and knowingly put her into a dangerous position in the bath, or that he passively stood by and let her drown without intervening. Indeed, this is likely the basis on which the jury convicted Grandine of manslaughter at the first trial, after having found that there was reasonable doubt as to intent to kill.
[22] For the reasons that follow, I agree with the Crown’s position. In my view, the evidence that the defence seeks to exclude is equally relevant to manslaughter as it is to murder and issue estoppel does not prohibit this use. As I read the Court of Appeal decision in R. v. Grandine, supra, the Court and counsel for both the Crown and defence accepted that a viable theory of manslaughter in this case was that the accused intentionally and surreptitiously administered lorazepam to the deceased and then put her or assisted her into the bath, or simply stood by and failed to protect her from the dangerous situation that he had knowingly created. That theory of manslaughter was based squarely on the above-summarized body of evidence called at the first trial. In this regard, Brown J.A. stated the following, speaking for the Court (at paras. 58 and 66-68):
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.
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.
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)?”
The appellant [Grandine] 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. [Emphasis added].
The only error committed by the trial judge, when answering the jury’s question, was that he failed to respond with the “first two draft answers” described above. Instead he prepared a third draft answer that introduced an entirely new “theory of liability” concerning manslaughter that had never been relied on at the trial. The correct “theory of liability”, described above, was based on the body of evidence that Grandine now seeks to exclude at the re-trial.
[23] In my view, the flaw in Mr. Thakore’s argument is that he has taken one isolated passage from the Chief Justice’s reasons in R. v. Mahalingan, supra at para. 37, and has used it to greatly expand the scope of issue estoppel, such that any evidence merely “capable” of controverting a prior finding becomes inadmissible. When the Chief Justice’s reasons are read in their entirety, it is apparent that she did not intend this kind of broad exclusionary rule at re-trials or at second related trials. In my view, her reasons indicate that she intended the opposite, that is, a much narrower approach to issue estoppel that focuses on the specific issue decided at the first trial and on the actual intended use of the evidence at the second trial.
[24] As I read the Chief Justice’s reasons for the majority in Mahalingan, there are two points that she consistently emphasized, both of which undermine Mr. Thakore’s argument in the present case. First, she repeatedly stressed that most trials involve multiple issues and it is only the particular issue decided in favour of the accused (assuming it can be identified) that cannot be re-litigated at a subsequent trial. Mr. Thakore conceded in argument that this case was a multi-issue trial. The defence disputed all of the following three essential elements: whether Grandine surreptitiously administered a drug to the deceased (the s. 245 of offence of administering a “noxious thing”); whether he helped her into the bath, put her in the bath, or passively stood by while she got into the bath in a dangerously drugged and disabled condition (causation of death by drowning); and whether he intended to kill her (the mens rea for murder). These three essential elements – unlawful act, causation, and the mens rea for murder – were all disputed. Only the last element was resolved in favour of the accused. In other words, issue estoppel has no application to the first two issues, which are the essential elements of manslaughter.
[25] The second point repeatedly stressed by the Chief Justice in Mahalingan is that issue estoppel focuses on how the evidence is actually being used by the Crown at the second trial, and not on whether the evidence is merely “capable” of being misused for some improper purpose. In this regard, the critical question asked by McLachlin C.J.C. is whether the Crown is “seeking to use the evidence to contradict the factual finding on that issue at the previous trial” or is “trying to contradict the factual finding at the first trial” and whether the jury should receive a “caution not to use the evidence” in the prohibited fashion [emphasis added]. At the present re-trial, the Crown has agreed not to use the evidence “to contradict” the finding concerning lack of intent to kill and invites the Court to caution the jury to only use the evidence in relation to the two disputed elements of manslaughter.
[26] The key passages in R. v. Mahalingan, supra, in relation to the first point about the limited scope of issue estoppel in multi-issue trials, are the following (at paras. 21-24 and 31-33):
Some of the difficulty with the application of issue estoppel appears to find its genesis in a misreading of the majority in Grdic that the fact of an acquittal estops the Crown from re-litigating any fact that was in issue in the first trial, whether or not it can be shown that the particular issue was decided in the accused's favour in the first case… Lamer J. expressly affirmed that a prior acquittal on a different charge “does not mean that, for the purpose of the application of the doctrine of res judicata, the Crown is estopped from re-litigating all or any of the issues raised in the first trial” (p. 825), limiting the scope of issue estoppel to “any issue, the resolution of which had to be in favour of the accused as a prerequisite to the acquittal” (p. 825). Whether the Crown was estopped was discussed as dependent, not on the fact of an acquittal in a previous proceeding, but on whether the issue in question has been decided in the accused's favour in a previous proceeding. On the facts of Grdic, Lamer J. found that the issue of identity had been decided in favour of the accused in the first trial, based on a review of the record of the first trial, including the defence led, and the nature of the case (Grdic, at p. 826).
To the extent that Grdic has been read as preventing the Crown from leading evidence on any issue raised in a previous trial that resulted in an acquittal, this is a misreading of the majority's holding. Only issues which were decided in the accused's favour, whether on the basis of a positive factual finding or a reasonable doubt, are the subject of issue estoppel.
It is thus not every factual issue in the trial resulting in an acquittal which results in an estoppel at a subsequent trial, but only those issues which were expressly resolved or, given how the case was argued, had to be resolved for there to be an acquittal. If a particular issue was decided in favour of the accused at a previous trial, even if the issue was decided on the basis of reasonable doubt, issue estoppel applies. The determination of whether an issue was decided at a first trial, either expressly or necessarily as a prerequisite to an acquittal, must be based on a review of the relevant portions of the transcript of the first trial, in particular, the allegations, the nature of the Crown's case, and the defence's case: Grdic, at p. 826. The accused claiming issue estoppel bears the burden of showing that a particular issue was decided in his or her favour in a previous proceeding.
In a one-issue trial, like Grdic, the effect of issue estoppel is that the Crown will normally be estopped from calling evidence about the central issue in the trial on a subsequent trial (subject to Ollis-exception situations as discussed below, where the Crown is not seeking to contradict the factual finding from the first trial). But a more complex multi-issue trial, depending on the facts, the Crown may not be estopped on all issues. This is because the acquittal must have been based on only one factual issue, or because it may not be possible to discern which issue the acquittal is based on.
I conclude that, properly understood, issue estoppel in Canadian criminal law operates to prevent the Crown from re-litigating an issue that has been determined in the accused's favour in a prior criminal proceeding, whether on the basis of a positive finding or reasonable doubt.
Subsequent cases, however, have read the principle of issue estoppel more broadly. This overbroad reading is the primary source of the difficulties that currently attend the rule.
The most significant extensions of the traditional rule of issue estoppel are first, the view that it operates to bar the Crown from leading evidence on any issue raised in a prior trial which resulted in an acquittal [citations omitted]… issue estoppel does not mean that every piece of evidence led in a first trial which leads to an acquittal is inadmissible in a subsequent trial on another matter. Only issues that were either necessarily resolved in favour of the accused as part of the acquittal, or on which findings were made (even if on the basis of reasonable doubt) are estopped. This would usually include the central issue in the case if it is a one-issue case, or particular issues in a multi-issue case, if the court at the second trial can discern from reviewing the transcript that a finding was made on a particular issue, even if on the basis of reasonable doubt. [Italics of McLachlin C.J.C. in the original, under-lining added for emphasis].
[27] The key passages in R. v. Mahalingan, supra, in relation to the second point, emphasizing the actual way in which the Crown is seeking to use the evidence at the second trial, and not whether the evidence is “capable” of potential misuses, are the following (at paras. 18, 26, 52, and 65):
In short, if an issue supporting an acquittal is resolved in favour of the accused on one offence, on whatever basis, evidence to contradict the finding on that issue cannot subsequently be re-led on different charges.
Moreover, it should follow from these propositions that the Crown is permitted (absent the operation of the other rules of evidence) to lead evidence relating to issues litigated in an earlier proceeding: (1) if the issue was not decided in the accused’s favour in the earlier proceeding; and (2) if the issue was decided in the earlier proceeding, but the Crown is not seeking to use the evidence to contradict the factual finding on that issue at the previous trial.
To establish this, the accused must show that the question was or must necessarily have been resolved on the merits in the accused's favour in the earlier proceeding. It is not enough to show that the evidence was led in the earlier proceeding and an acquittal entered. It must be a necessary inference from the trial judge's findings or from the fact of the acquittal that the issue was in fact resolved in the accused's favour. This approach is consistent with how the requirement is applied in civil cases.
If the Crown is not trying to contradict the factual finding at the first trial, issue estoppel does not apply. The relevant question is whether the Crown is leading evidence which is inconsistent with the factual findings in the first trial (even if those findings were arrived at on the basis of reasonable doubt). A jury charge to this effect, coupled with a caution not to use the evidence underlying the prior acquittal to support reasoning that the accused in fact committed the offence for which he was previously acquitted, suffice to preserve the protections offered by the principle of issue estoppel, without rendering the trial unworkable. [Emphasis added].
[28] I note that in two decisions of the Court of Appeal, decided after Mahalingan, the Court interpreted the decision in a manner that stressed the above passages and the above two points. In R. v. Catton (2015), 2015 ONCA 13, 319 C.C.C. (3d) 99 at para. 26 (Ont. C.A.), Doherty J.A. quoted para. 23 of Mahalingan to the effect that “It is thus not every factual issue in the trial resulting in an acquittal which results in an estoppel at a subsequent trial.” Doherty J.A. stated:
… if a factual issue is decided in favour of an accused at a previous trial, the Crown is precluded from leading evidence at a subsequent trial to prove the contrary. [Emphasis added].
Similarly, in R. v. Skeete, 2017 ONCA 926 at para. 97, Watt J.A. cited para. 26 of Mahalingan and paraphrased it as follows:
… the Crown may lead evidence in a subsequent trial relating to issues litigated at an earlier proceeding… if the issue was decided in an earlier proceeding, but the Crown is not seeking to use the evidence to contradict the factual finding on that issue at the previous trial. [Emphasis added].
[29] The above reading of Mahalingan is to the effect that issue estoppel prevents the Crown from “seeking to use the evidence to contradict the factual finding on that issue at the previous trial”. In other words, the principle at stake concerns how the Crown is actually using the evidence, or trying to use it. The focus is not on whether the evidence is merely capable of being used or misused in a manner that controverts the prior finding. Not only is this reading of Mahalingan based on a consideration of the entirety of McLachlin C.J.C.’s reasons. It is also based on the way in which the leading text writers and the leading authorities have consistently described the doctrine. For example, in R. v. Gushue (1979), 50 C.C.C. (2d) 417 at 421 (S.C.C.), Chief Justice Laskin described issue estoppel as “foreclosing a relitigation” of the decided issue. In R. v. Grdic (1985), 19 C.C.C. (3d) 289 at 294 (S.C.C.), Lamer J., as he then was, held that the issue decided at the previous trial “cannot be relitigated”. In R. v. Duhamel (1984), 15 C.C.C. (3d) 491 at 494 (S.C.C.), Lamer J., as he then was, referred with approval to Moir J.A.’s “thorough exposition of the law” in the Alberta Court of Appeal’s decision in that case, including Moir J.A.’s adoption of the definition of issue estoppel found in Spencer Bower’s leading English text, The Doctrine of Res Judicata, 2nd Ed. 1969, at para. 19, to the effect that the doctrine applies when a final judicial decision “involved a determination of the same question as that sought to be controverted in the litigation in which the estoppel is raised”. In C.U.P.E Local 1394 v. Extendicare Health Services Inc. (1993), 104 D.L.R. (4th) 8 at p. 15 (Ont. C.A.), Doherty J.A. held that issue estoppel means that “the party against whom the issue was decided in the earlier litigation cannot proffer evidence to challenge that result”. Finally, in Lederman, Bryant and Fuerst, The Law of Evidence in Canada, 4th Ed. 2014, at pp. 1350 and 1356-7, the learned authors state that issue estoppel “prevents the contradiction of that which was determined in the previous litigation, by prohibiting the relitigation of issues already actually addressed… the parties cannot call into question issues which have already been decided between them”. [Emphasis added].
[30] It can be seen that issue estoppel has consistently been described as a doctrine that prevents “relitigation” of a decided issue, in the sense of an attempt to use evidence to “contradict” or to “controvert” or to “challenge” or to “call into question” a prior decision. That is not what is happening in the present case. The Crown accepts the earlier decision, that there was no intent to commit murder, and does not challenge that finding. The Crown only seeks to use the evidence from the first trial to prove that the accused intentionally committed an “unlawful act”, and that the accused then caused death by an act or omission committed with objective foresight of the risk of bodily harm. These are the essential elements of manslaughter, and they are issues that were not decided in the accused’s favour at the first trial.
[31] It should also be noted that issue estoppel has been described repeatedly as a rule of evidence, as well as a substantive right or substantive rule of law based on public policy. See: Spencer Bower and Handley, Res Judicata, 4th Ed. 2009, at pp. 2-3; D.J. Lange, The Doctrine of Res Judicata in Canada, 4th Ed. 2015, at pp. 11-12. In terms of the former of these two characterizations, the law of evidence has always recognized the fact that certain kinds of evidence are susceptible to improper use. Indeed, many rules of evidence determine admissibility on the basis of a permissible use, while also controlling against impermissible uses. As Sharpe J.A. put it, speaking for the Court in R. v. Diu (2000), 144 C.C.C. (3d) 481 at para. 144 (Ont. C.A.): “In my view, limiting the use of bad character evidence in the circumstances presented here is consistent with basic principles of evidence law. As the Appellant Diu submits, ‘use follows admissibility’.” Perhaps the best known expression of this approach to evidence law is Chief Justice Dickson’s statement in R. v. Corbett (1988), 41 C.C.C. (3d) 385 at pp. 399-401 (SCC), on behalf of the majority of the Court, where he stated:
In my view, the best way to balance and alleviate these risks is to give the jury all the information, but at the same time give a clear direction as to the limited use they are to make of such information. Rules which put blinders over the eyes of the trier of fact should be avoided except as a last resort. It is preferable to trust the good sense of the jury and to give the jury all relevant information, so long as it is accompanied by a clear instruction in law from the trial judge regarding the extent of its probative value.
In my view, it would be quite wrong to make too much of the risk that the jury might use the evidence for an improper purpose. This line of thinking could seriously undermine the entire jury system. The very strength of the jury is that the ultimate issue of guilt or innocence is determined by a group of ordinary citizens who are not legal specialists and who bring to the legal process a healthy measure of common sense. The jury is, of course, bound to follow the law as it is explained by the trial judge. Jury directions are often long and difficult, but the experience of trial judges is that juries do perform their duty according to the law. We should regard with grave suspicion arguments which assert that depriving the jury of all relevant information is preferable to giving them everything, with a careful explanation as to any limitations on the use to which they may put that information. So long as the jury is given a clear instruction as to how it may and how it may not use evidence of prior convictions put to an accused on cross-examination, it can be argued that the risk of improper use is outweighed by the much more serious risk of error should the jury be forced to decide the issue in the dark.
[32] For the reasons set out above, I am satisfied that Mahalingan should be read in a manner that is consistent with basic principles of evidence law, and with the way in which issue estoppel has always been understood. Applying this approach, evidence from a previous trial will be admissible at a subsequent trial if its use and relevance at the subsequent trial is to issues that were not decided in the accused’s favour at the previous trial. The jury at the subsequent trial can be given a limiting instruction, warning against misuse of the evidence in relation to issues decided in the accused’s favour at the first trial.
[33] In the present case, I am satisfied that the Crown is “seeking to use” the evidence summarized above solely in relation to the three essential elements of manslaughter: the intentional unlawful act of surreptitiously drugging Ms. Grandine; causation of death by drowning due to intentionally placing her in the bath, assisting her into the bath, or standing by and doing nothing while she got into the bath in a dangerously disabled state; and objective foresight of the risk of bodily harm. These uses are not barred by the doctrine of issue estoppel as these three issues were never decided in the accused’s favour at the first trial. If there was evidence that was only relevant to intent to kill and murder, or that was minimally probative in relation to the three elements of manslaughter and was somehow prejudicial, that evidence could be excluded at the present trial. However, no such evidence has been identified. The trial judge can caution the jury that the above summarized evidence is not to be used to infer an intent to kill, that there is no allegation that the accused had an intent to kill, and that the jury should assume in the accused’s favour that he had no intent to kill.
[34] I wish to conclude with one note of caution. Should the Crown chose to allege, in argument before the jury, that the accused had a particular motive in relation to the above three essential elements of manslaughter, the Crown will need to be cautious. Motive is not an essential element of manslaughter (or murder). It is simply an item of circumstantial evidence that may or may not add to the Crown’s proof of elements such as identity and intention. See: R. v. Lewis (1979), 47 C.C.C. (2d) 24 (S.C.C.); R. v. Griffin (2009), 2009 SCC 28, 244 C.C.C. (3d) 289 (S.C.C.). There was some suggestion, in some of the Crown’s written materials filed on the three Motions, that the Crown may allege that the accused had a future intent to kill that did not crystalize at the time of the unlawful act or acts that caused death. However, the Crown clarified during argument that, in the event motive is alleged, the Crown will submit that the accused wished to drug and incapacitate Ms. Grandine so that he could be free to phone and meet with Ms. Fiorentino, in order to pursue his affair with her, and so that he could disable the K9 software on the home computer and view pornography. The evidence called at the first trial tends to infer that this is what he actually did, both on October 14 and 17, 2011, when Ms. Grandine was drugged, as he met with Ms. Fiorentino, had sexual relations with her, phoned her and likely disabled the K9 software, all at times when Ms. Grandine was under the influence of lorazepam. If the Crown intends to go beyond this limited motive, which relates to manslaughter, and intends to allege a more ambitious and complex secondary motive involving some uncrystalized future intent to kill, the Crown must raise the matter in advance with the Court and seek a ruling as to whether this further alleged motive would violate issue estoppel.
[35] I appreciate that Clark J. made findings about a future intent to kill that did not crystalize at the time of Ms. Grandine’s death by drowning, in his reasons for sentence after the first trial. See: R. v. Grandine, 2015 ONSC 18. However, these findings were challenged on appeal on the basis that they were inconsistent with the verdict of the jury, acquitting the accused of murder. The Court of Appeal did not reach this issue. In my view, the Crown must seek leave from the Court before raising any such issue at the re-trial as it may contravene issue estoppel. I would caution the Crown, that this complex theory of motive about a future intent to kill is unnecessary, given that the more limited motive described above is available (should the Crown wish to allege a motive) and it does not offend issue estoppel. In any event, it should be remembered that issue estoppel can be raised at any time during the trial, should some issue arise that potentially engages this important legal principle. As Professor Friedland noted in his seminal work, Double Jeopardy [1969 Oxford], at p. 122:
Issue estoppel can arise at any stage of the proceedings. It can arise at the outset of the trial – and the better opinion is that the accused may raise it before plea – or at a later stage or on appeal to completely bar the second charge. Or, as in Sambasivam v. Public Prosecutor, Federation of Malaya (1950) it can arise during the trial to prevent the Crown from calling into question a previous determination. Whenever it arises, the better opinion is that the matter should be dealt with by the trial judge and not by the jury. This is consistent with the procedure followed on a special plea in Canada as well as on the question of the admissibility of evidence. To leave the matter with the jury involves the danger of prejudicing the accused.
E. CONCLUSION
[36] For all the reasons set out above, the Crown’s two Motions are both allowed, admitting the accused’s three statements to the police and admitting the deceased’s various ante mortem statements. The one defence Motion, seeking to exclude large parts of the Crown’s case on the basis of issue estoppel, is dismissed. However, the defence may raise the matter again, at any point during the trial, should it appear that the Crown’s conduct of the case in any way threatens the doctrine of issue estoppel.
M.A. Code J.
Released: September 25, 2018
COURT FILE NO.: CR-18-30000425 DATE: 20180925
ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – PHILLIP GRANDINE
REASONS FOR JUDGEMENT ON THREE PRE-TRIAL MOTIONS M.A. Code J.
Released: September 25, 2018