COURT FILE NO.: CR-18-30000425-0000
DATE: 20191025
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Philip Grandine
Defendant
Donna Kellway and Patrick Woods, for the Crown
Amit Thakore, for the Defendant
HEARD: September 4, 2019
mcwatt j.
FINDINGS OF FACT FOR SENTENCING
INTRODUCTION
[1] Philip Grandine was convicted of Manslaughter by a jury on February 28, 2019. There were three routes by which the jury could have come to a finding of guilt based on the legal instructions given to them to decide the case.
[2] The jury could have found that:
the defendant administered lorazepam (a noxious substance) to his wife, Karissa Grandine, without her knowledge, and thereby caused her death when she became incapacitated and drowned in her bathtub; or
Mr. Grandine trafficked (administered) to his wife the lorazepam (a controlled substance), thereby causing her to become incapacitated and caused her death by drowning; or
The deceased unknowingly or knowingly ingested the lorazepam. The defendant, knowing his wife was in a sedated state, and, owing her a duty of care, failed to provide the necessaries of life to her by permitting her or assisting her in getting into the tub where she drowned.
BACKGROUND FACTS
[3] The defendant and the deceased were married and lived together in a small bungalow at 12 Marsh Road, in Toronto. She was approximately 20 weeks pregnant at the time of her death when she drowned in her bathtub on the evening of Monday, October 17, 2011.
[4] The deceased worked as an adjuster for an insurance company.
[5] From May 2010, the defendant, a registered nurse, began working at the O'Neill Centre, a residential and long-term care facility in Toronto.
[6] There were two sides to the Centre. The retirement side of the facility had capacity for 9-10 residents and had about five residents. The Centre also had capacity for 162 other persons in long term care and was at 98% capacity. Near the end of 2010, the defendant was promoted to Associate Nurse Manager and remained in that position until May of 2012. In that capacity, he was responsible for the management of the first floor of the facility, which housed retired persons. The defendant was qualified to receive, administer and destroy drugs at the Centre. There was no evidence of missing drugs and missing lorazepam. However, in his role, Mr. Grandine had access to drugs at the facility which were considered surplus drugs: where a resident had been discharged, moved away and did not take drugs with them; and where a resident passed away; the drugs were discontinued, damaged or expired.
[7] From January 2010 until the late summer of 2011, the defendant also worked part-time as the senior pastor at Ennerdale Baptist Church in the west end of Toronto.
[8] In the spring of 2011, while serving as a pastor, the defendant became sexually involved with, Eileen Florentino, a female parishioner. For several months, he carried on an affair with Ms. Florentino without his wife knowing. Sometime in August 2011, the deceased discovered the affair. The deceased confronted the defendant and he admitted the affair. The defendant then sought advice from a fellow pastor, Steven Hadfield.
[9] Mr. Hadfield told the defendant that he should resign as pastor. The defendant did so and returned to the church he had been attending prior to becoming a pastor.
[10] The defendant and with his wife asked Pastor Hadfield to give them marriage counselling.
[11] The defendant told Pastor Hadfield that he had been using pornography and Mr. Hadfield insisted that, as a condition to his agreeing to counsel the couple, the deceased should install a web filter program on the home computer in order to prevent the defendant from accessing pornography online. The deceased agreed and, on September 5, 2011, she installed the "K-9" web filtering program on the computer the couple shared in their home.
[12] Counselling was arranged and took place at the couple’s home.
[13] On Thursday, October 13, 2011, Pastor Hadfield arrived to find the defendant was alone at home. The defendant appeared to be under the influence of something. His eyes were half-open and his motor ability was affected. He slurred his words, staggered as he walked and just "seemed off balance." Pastor Hadfield concluded that it was not alcohol impairing the defendant as he knew that Mr. Grandine did not drink nor was there the smell alcohol on his breath.
[14] Mr. Grandine told Mr. Hadfield that he was going to drive to pick up his wife at the subway. Concerned that the defendant was too impaired to drive, Mr. Hadfield offered to pick up the deceased. The defendant refused and left to pick his wife up while Mr. Hadfield waited at the home to counsel them. During the counselling, the defendant kept falling asleep prompting Mr. Hadfield to speak loudly to rouse the defendant from slumber from time to time.
[15] Later that evening, after the counselling, the deceased became ill. She began experiencing physical and mental symptoms she could not explain. As a result, the next day, October 14, 2011, she went to the hospital with the defendant at 7pm.
[16] Maria Darvin, the deceased’s mother, also attended the hospital and stayed with the deceased.
[17] The deceased told the emergency room physician that she had been experiencing confusion, disorientation, loss of muscle coordination, and memory loss. She also reported feeling unwell, fatigued, and having been too tired to work; that she had been vomiting and, on one occasion, she had fallen out of bed. Most of the symptoms, however, had disappeared by the time she had gotten to the hospital.
[18] Blood was taken from the deceased that evening. The results of that testing showed that the deceased’s white blood cell count was slightly elevated, but consistent with pregnancy and of no concern at that time. No toxicological screen of the blood was ordered because the deceased had not reported ingesting any drugs. Only later, when the police came to suspect foul play, was the blood taken from Mrs. Grandine, that night, seized. Forensic analysis of that blood revealed a concentration of 40 nanograms per 100 milliliters ("ng") of blood of lorazepam - a central nervous system depressant. The emergency room physician, Dr. Spence, who treated the deceased on October 14, 2011, testified at trial that she had not prescribed lorazepam to Mrs. Grandine as the drug was contraindicated in pregnancy.
[19] As a precautionary measure, the deceased was made to remain in hospital overnight for observation on October 14. She was released on October 15 and went home.
[20] During the hospital visit, Maria Darvin heard the deceased ask the defendant, “Did you put something in my drink?” The deceased also later told her sister, Hannah Darvin, that she had asked her husband that night, “Did you give me a pill” or “did you put something in my drink?”
[21] Maria Darvin noted that while at the hospital on the evening of October 14 and into the morning of the 15th, the defendant appeared "edgy" and indicated several times that he wanted to go home because he was tired. The deceased was adamant that she wanted the defendant to stay with her at the hospital and pleaded with him not to leave her alone there.
[22] Telephone records for that time period, confirmed by the defendant’s girlfriend, Ms. Florentino, showed that, during the time the defendant was at the hospital, he was communicating by text messaging with Ms. Florentino approximately 100 times. And after he left the hospital and drove Mrs. Darvin home, the defendant met Ms. Florentino and they had sexual contact.
[23] On Sunday, October 16, the deceased felt better. She and the defendant attended her aunt's home in Brampton, Ontario, to see some relatives visiting from the United States.
[24] On Monday, October 17, 2011, the deceased went to work.
[25] That evening, at 10:49 p.m., the defendant called 911. He told the police that he had been out for a run and, when he returned home, he had found his wife in the bathtub - not breathing.
[26] On the 911 call, the defendant told the operator that he did not attempt to drain the bath before calling. Later, when speaking to the police on October 18, 2011, he said that he might have had difficulty draining the tub because one of his wife's heels was blocking the drain at the time he discovered her. The defendant also said that he was unable to get his wife out of the tub. And, I find, put on something of an unconvincing show on the 911 recording that he was trying to do so. The deceased was still in the tub when emergency personnel arrived at the house.
[27] The deceased was pronounced dead at the hospital.
[28] A post mortem examination of the deceased was conducted on October 18, 2011. Forensic analysis revealed a concentration 68 ng of lorazepam in her blood. The cause of death was listed as drowning.
[29] "A trace amount" of doxylamine ("Diclectin"), a nausea treatment drug for pregnant women, was found in the deceased’s blood. The drug can be taken as a sleep aid and is available “over the counter”. The drug causes sedation at higher concentrations but is unlikely to cause sedation at lower concentrations.
THE POSITION OF THE PARTIES
[30] The Crown did not argue that the defendant intended to kill his wife. She put to the jury that, unbeknownst to Karissa Grandine, Philip Grandine gave her lorazepam in an amount that he knew its sedative properties would debilitate her, both physically and mentally. The Crown asked the jury to conclude that the defendant had either administered the drug (as a noxious substance) to the deceased or trafficked/administered the drug to her (as a controlled substance), knowing that once she ingested it, she would be in an incapacitated state. Karissa Grandine then, with the knowledge of her husband, entered the tub in that compromised state, where she drowned, incapacitated and unable to rescue herself. The precise mechanism of Karissa Grandine’s death- whether by a loss of consciousness and drowning or by an injury to her head occasioned by her incapacity, was, in the Crown’s submission, irrelevant.
[31] The Crown submits that the third route to liability the defence submits is the basis for the manslaughter verdict is not supported by the evidence led at trial. There is no evidence that Ms. Grandine had access to lorazepam or wanted to take the drug to sedate or harm herself.
[32] The Crown submits that the central issues in this case are:
a. who administered the lorazepam to the deceased on October 13 and again on October 17, 2011; and
b. whether the amount administered on the latter occasion was sufficient to bring on the side effects the drug is known to cause, such that the deceased's ability to protect herself from physical harm was compromised.
[33] The Crown concedes that other factual conflicts must be resolved in terms of what are contended by the Crown to be aggravating factors.
[34] The defence submits that the jury convicted on the third route to Manslaughter – Failing to Provide Necessaries by letting or assisting his wife to get into the tub in her sedated state, where she drowned. There is not enough evidence to support the theory that Mr. Grandine administered or gave the lorazepam to the deceased.
[35] The deceased was depressed about her husband’s affair and there was evidence from the expert witness, toxicologist, Dr. Bugyra, that lorazepam was used to alleviate anxiety. It was just as possible that Mrs. Grandine had been searching for lorazepam on the home computer contrary to the Crown’s theory that it was Mr. Grandine searching for the drug.
[36] There was no evidence that the defendant got any lorazepam from the nursing home he worked for.
THE LAW
[37] It has been acknowledged by both parties that finding the facts for the purpose of sentencing can be more difficult for the sentencing court in manslaughter cases than with other types of offences. As McEachern C.J.B.C., noted in R. v. Gauthier (No. 2), [1996] 78 B.C.A.C. 85, 108 C.C.C. (3d) 231, at para. 41, the British Columbia Court of Appeal set out that "guilty verdicts in manslaughter ...cases... are necessarily ambiguous descriptions of how the offence was committed."
[38] A court, though, is "bound by the express and implied factual implications of the jury's verdict" (R. v. Brown, 1991 CanLII 73 (SCC), [1991] 2 S.C.R. 518, at page 523; Criminal Code, R.S.C. 1985, c. C.46, ss. 724(2)(a)). Therefore, the sentencing judge must find the facts that were "essential to the jury's verdict" [s. 724(2)(a)]. Beyond that, the court "may find any other relevant fact that was disclosed by the evidence at the trial..." (s. 724(2)(b)).
[39] Where there is dispute respecting a fact that is relevant to the determination of a fit sentence, the court is obliged to "request that evidence be adduced as to the existence of the fact unless the court is satisfied that sufficient evidence was adduced at the trial" (s. 724(3)(a)). In this case, no further evidence was led concerning the facts upon which the court should impose sentence and both parties agree that enough evidence was adduced at trial for me to make the factual findings I must make to sentence Mr. Grandine.
[40] The onus of proof is that the party alleging a fact bears the burden of proving it (s. 724(3)(b)) on a balance of probabilities (s. 724(3)(d)), except where the Crown alleges that the disputed fact amounts to an aggravating factor, in which case the Crown must prove the fact beyond a reasonable doubt (s. 724(3)(e)).
[41] "The trial judge is entitled to make up his own mind on disputed questions of fact which are relevant to sentence" (R. v. Tuckey, 1985 CanLII 3509 (ON CA), [1985] O.J. No. 142, 20 C.C.C. (3d) 502 (C.A.); R. v. Tempelaar, [1993] O.J. No. 3409; 95 O.A.C. 235; aff'd 1995 CanLII 133 (SCC), [1993] S.C.C.A. No. 541, 203 N.R. 7).
[42] And, in Gauthier, supra, at para. 49, Southin J.A. set out that "a trial judge is under no obligation, as a matter of law, when sentencing after the verdict of a jury, to give a defendant the benefit of that view of the evidence which is most favourable to the defendant."
[43] The Court of Appeal for Ontario affirmed these principles in R. v. Nelson, [2014] O.J. No. 5729, 2014 ONCA 853, where, speaking for the court at para. 56, Tulloch J.A. stated:
Under s. 724(2)(a)-(b) of the Criminal Code, a sentencing judge must accept as proven all facts that are essential to the jury's guilty verdict and may find other relevant facts disclosed by evidence at trial. A sentencing judge is not permitted to make findings of fact that are "consistent only with a verdict rejected by the jury": R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, at para. 17. The appellant relies on R. v. Cooney (1995), 1995 CanLII 707 (ON CA), 80 O.A.C. 89 (C.A.), to argue that where the factual basis for a jury verdict is uncertain, the sentencing judge must assume that the jury took the most lenient path to conviction. However, this view is inconsistent with the Supreme Court's decision in Ferguson and was expressly rejected in R. v. Roncaioli, 2011 ONCA 378, 271 C.C.C. (3d) 385, at para. 59.
[44] In the Ferguson case, as referred to by Tulloch, J.A., above, McLachlin C.J., speaking for the court at para. 18, stated that "when the factual implications of the jury's verdict are ambiguous, the sentencing judge should not attempt to follow the logical process of the jury, but should come to his or her own independent determination of the relevant facts (Brown; R. v. Fiqia (1994), 1994 ABCA 402, 162 A.R. 117 (C.A.)". In that case, at paras. 21 and 22, the Court found that the trial judge was not permitted to go beyond what was required to deal with the sentencing issues before him or to attempt to reconstruct the logical process of the jury. The Court also commented on the fact that the sentencing judge is not open to finding facts inconsistent with the jury’s verdict or the evidence.
[45] The trial judge erred had erred in Ferguson in his attempts to reconstruct the logical reasoning of the jury. Jurors may arrive at a unanimous verdict for different reasons and on different theories of the case (R. v. Thatcher, [1987] 1 S.C.R. 65). For this reason, it is speculative and artificial to attribute a single set of factual findings to the jury, unless it is clear that the jury must unanimously have found those facts. Where any ambiguity on this issue exists, the trial judge should consider the evidence and make his or her own findings of fact consistent with the evidence and the jury's findings.
THE FACTS FOR SENTENCNG
[46] Routes 1 and 2 to convict on Manslaughter in this case are essentially the same. And part of Route 3 (the act) offers, as an essential element, that Mr. Grandine gave the lorazepam to the deceased. It is only if the jury found in Route 3 that Mrs. Grandine was taking the lorazepam herself and the defendant knew she was taking it and failed to provide her with the necessaries of life (the omission), was he guilty of Manslaughter by Criminal Negligence. This latter finding is what the defence wishes me to find on these facts for sentencing purposes.
[47] The jury must have found, for Route 1, that the defendant administered a noxious thing (the lorazepam) to his wife and that the thing was noxious. The jury was instructed that lorazepam has therapeutic uses and the lorazepam found in the blood taken from the deceased at autopsy was within a therapeutic range. In order to convict of manslaughter, however, they had to find not only that he administered the substance, but:
i. that the accused administered lorazepam to his pregnant wife in an amount sufficient to cause her to experience one or more of the side effects of the drug;
ii. that he expected that she would experience one or more of these effects; and
iii. that his wife was unaware that he had administered the drug to her, such that she would not expect these side effects to occur and would not take steps to avoid situations where her safety could be compromised by these effects;
iv. that it would be open to them to decide that lorazepam was a noxious thing, based on their assessment of all the circumstances in which the accused administered it.
[48] For a conviction through Route 2, the jury had to have found the following beyond a reasonable doubt:
i. that Mr. Grandine trafficked in a substance;
ii. that the substance was lorazepam;
iii. that Mr. Grandine knew that the substance was lorazepam; and
iv. that Mr. Grandine intentionally trafficked in lorazepam.
[49] Included in the definition of trafficking was that Mr. Grandine administered or gave his wife the drug.
[50] With respect to Route 3, the jury was instructed that after they had considered Routes 1 and 2, and if they were not satisfied beyond a reasonable doubt that Mr. Grandine was guilty of Manslaughter by one of those routes, then they should go on to consider Route 3.
[51] The jury was told that for them to find that Mr. Grandine had committed Manslaughter by Criminal Negligence, they had to be satisfied of the following beyond a reasonable doubt:
i. that Mr. Grandine, gave, offered or administered the lorazepam to Mrs. Grandine and knowing that she was in a sedated state, left her to take a bath (the act) or knowing that she had taken the lorazepam, Mr. Grandine left Mrs. Grandine to take a bath and in doing so failed to provide her with the necessaries of life (the omission);
ii. that, in committing either the act or omission set out above, Mr. Grandine showed a wanton or reckless disregard for the lives or safety of others; and
iii. that Mr. Grandine’s act or omission caused Mrs. Grandine’s death.
[52] In addressing the defence position that the jury convicted of Manslaughter after finding that Mrs. Grandine was taking Lorazepam independently of finding out about her husbands’ affair or because of it, and wanted to commit suicide, the evidence does not support a conviction pursuant to the alternative offered regarding an omission in Route 3 to Manslaughter. First and foremost, there is no evidence in this trial that the defendant knew that Ms. Grandine was taking or had taken lorazepam on the night of her death, which is what the jury had to have found to convict on the “omission” branch of Route 3.
[53] The evidence supports that Mr. Grandine administered the lorazepam to the deceased in the days before and on the night of her death and for a specific purpose. Here are the reasons why:
1. Deceased's State of Mind
[54] First, after leaving the hospital on October 15, after the October 14th incident that put her there, and in the days leading up to and including the night of her death on October 17, the deceased did not show signs of depression or any signs of wanting to harm herself or her unborn child. Both the deceased's mother and sister testified that their daughter/sister appeared to be very happy the day before she died when she went to Brampton to see relatives visiting from Texas. She was looking forward to an ultrasound appointment later that week and to learn the sex of her fetus.
[55] Mr. Grandine gave a statement to police on the night his wife died. In it, he told police that the deceased was excited about her pregnancy and happy that her health had appeared to return to normal after the hospital visit the Friday (October 14) before.
[56] Dr. I. Gora, the deceased's physician, inquired about the deceased’s psychological state when he saw her on July 20, 2011 in connection with her pregnancy. He made a note that "her mood [was] good." The defence points out that the deceased did not find out about her husband’s affair until August or early September 2011. After this visit. Therefore, any anxiety or sadness would not be warranted in July. Her mood at that visit in July, however, is consistent with her mood just before she died. And, in fact, Dr. Gora saw the deceased also on September 28, 2011 - a date after the deceased had found out about her husband’s affair. At that time, Karissa Grandine expressed concern that not she, but, rather, her husband might be suffering from depression.
[57] On August 12, 2011, Dr. Berger saw the deceased about her pregnancy and testified that if a patient expressed any negative feelings about her pregnancy, he would have made a note of those feelings. There were no such notes from his visit with Mrs. Grandine. A note he did generate, however, was that the deceased was not interested in screening her baby for Down's Syndrome as, even had there been a positive result, it would not have affected her decision to carry the fetus to term.
[58] The deceased was engaged in marriage counselling with the seeming agreement and full participation of the defendant. She had followed Pastor Hadfield's suggestion that she install a filter on their home computer to prevent the defendant from accessing pornography. The deceased was looking to the future with hope of strengthening her marriage rather than intending to kill herself.
[59] Despite the unhappy state of her marriage and her husband's infidelity, I find that the evidence supports the conclusion that Mrs. Grandine was not interested in ending her life and taking her unborn child with her to the grave.
2. Access to Lorazepam
[60] Lorazepam is a controlled substance and legally available under Canadian law only by prescription. It cannot be purchased “over the counter”.
By the Deceased
[61] Lorazepam is used to relieve anxiety. There is no evidence that the deceased suffered from or ever experienced anxiety. There was no indication that lorazepam is used to overcome sadness or depression. There is no evidence that the deceased had a desire to overcome sadness or depression with medication in general or any benzodiazepine. There was no evidence that the deceased was depressed or had any desire to medicate herself for any emotional state. In particular, it was never suggested, by the parties, to any of the doctors who testified or to Ms. Bugyra, the toxicologist, that lorazepam is used for the purpose of combatting depression on any emotional state other than anxiety.
[62] There is no evidence of any reason the deceased would have to taken lorazepam.
[63] The deceased went for all her medical needs to St. Michael's Hospital. The doctors from whom the court heard had access to a significant portion of the deceased's hospital records and there is no indication in any of those records that she was ever prescribed lorazepam.
[64] When emergency personnel and police attended 12 Marsh Rd. on the evening of October 17, 2011, in response to the defendant's 911 call, neither the police nor other emergency personnel found any evidence of the deceased having taken lorazepam. Even though the police were not looking for evidence of foul play at that time, photos of drugs found in the home were taken that night. Those drugs, related to the deceased, were drugs that not only her doctors believed she was taking, but that the defendant reported to police that she was taking before she died. Those were drugs that were clearly present on site and were photographed on the night of her death. Further, a later more thorough search that was conducted at the execution of a search warrant in the home, yielded other non-related expired prescription drugs. None of them were lorazepam.
[65] Both the absence of any evidence that the deceased ever had a prescription for lorazepam and the presence of several current and expired prescription bottles for drugs, none of which were for lorazepam, supports, beyond a reasonable doubt, that the deceased never had a prescription for lorazepam and had never knowingly possessed lorazepam.
[66] Further, the fact that Karissa Grandine appeared not to know what caused the symptoms she experienced on October 13-14, 2011, all of which are consistent with lorazepam use, also goes to rebut the contention that she was taking the drug herself. She had no knowledge, on October 14, of what was causing her symptoms. It is both illogical and unreasonable to find that she knowingly took lorazepam either on that day or on October 17.
[67] There is no evidence that the deceased had ever knowingly consumed lorazepam. There is no evidence that she had any access to the drug. There is also no evidence that she ever handled the drug or even knew of its existence. There is no evidence that the deceased ever experienced any symptoms, emotions or conditions that would call for the need to take lorazepam. There is no evidence that she ever desired to take lorazepam or that she ever contemplated taking the drug.
By the Defendant
[68] Ms. Cathy Fiori was the Administrator of the O'Neill Centre where the defendant worked. She testified that the Mr. Grandine was responsible for receiving and logging prescription pharmaceuticals into the facility, securing and dispensing them, and, when they were unused or expired, disposing of them. These medications included lorazepam.
[69] The Toronto Police Service examined the computer seized from the defendant's home. They found an electronic file belonging to the O'Neill Centre entitled "June 2011 Drug Reports", which listed pharmaceuticals prescribed for all the Centre's residents and patients for that month. Twenty-six residents were listed as having been prescribed lorazepam. The file was downloaded to the computer on July 10, 2011, using the "Philip" user account and last accessed at that time. However, there is no evidence that any lorazepam was ever unaccounted for at the Centre or that any elderly patient ever complained that they did not get lorazepam that that they had been prescribed.
[70] Even though controls were in place to attempt to prevent possible theft, misuse, or mis-distribution of the drug, Mr. Grandine had access to both the distribution and the destruction of drugs. The residents of the centre consisted of elderly individuals who were vulnerable and dependent on their caregivers to provide them with the appropriate quantity and dosage of their medication. The defendant was one of those caregivers. Although there was no evidence as to exact mental state of all the individuals at the O’Neill Centre or specifically those patients prescribed lorazepam, it was not contested that the patients were not able to administer their own drugs.
[71] The defendant had access to lorazepam at his work place, but as I will deal with later in this ruling, he also canvassed whether he could get the drug elsewhere. Finding out that he could not purchase the drug without a prescription would have determined where he obtained the lorazepam. There is evidence of a Google search conducted on the family computer in which someone inserted the search terms: "buy + lorazepam + Toronto”. For reasons to follow, I find that it was the defendant who conducted that search. There is no evidence, however, that Mr. Grandine purchased lorazepam illegally.
[72] Based on that evidence, combined with the complete lack of evidence that the deceased took or was motivated to take lorazepam, satisfies me beyond a reasonable doubt that it was the defendant who had access to lorazepam and it was he who possessed it to administer to the deceased.
[73] I find that the defendant conducted the online searches for where to acquire lorazepam in Toronto and then took the lorazepam from his workplace.
3. Deceased's Tolerance for Lorazepam
[74] I have found that the deceased had no prior experience with lorazepam and was, therefore, intolerant to the drug. She had no prior experience with it when she was taken to the hospital on October 14 and she did not take the drug herself.
[75] There is no evidence or suggestion that the deceased was attending another physician in the time leading up to her death. The three doctors who treated Mrs. Grandine had access to a significant portion of her St. Michael's Hospital records. The defendant had a thorough knowledge of the deceased’s medical history. None of them found or reported the deceased was prescribed or using lorazepam.
[76] While not all the doctors may have access to all of St. Michael's Hospital records concerning the deceased, Dr. Gora had been her family physician for more than a decade and was familiar with her medical history up to and including after the beginning of her pregnancy. Dr. Gora would have been aware if Ms. Grandine had been prescribed lorazepam. Her obstetrician, Dr. Berger, would also have been aware if she were taking the drug. So too would Dr. Spence, the emergency room doctor, to whom the deceased sought aid in explaining the symptoms she had leading to her hospital visit on October 14.
[77] The symptoms she experienced on October 13 and 14, 2011, as she reported them to Dr. Spence, were consistent with her having ingested lorazepam. The intensity of those symptoms also supports the fact that she had no prior experience with the drug. Also, her complete lack of comprehension as to what was happening to her, which I find as a fact was genuine, also suggests that she had no prior experience with the drug and that she had not knowingly taken it. If she were experienced with the drug, she would have been aware of the effect of it.
[78] I reject the defence argument that doxylamine and lorazepam each can potentiate the sedative effect of the other, such that there is at least a reasonable doubt whether the lorazepam alone would have had any serious effect on the mental or physical condition of the deceased on the night she died. Ms. Bugyra's uncontroverted expert opinion, in the case, was that the amount of doxylamine found in the deceased's blood, was a “trace amount”, which is generally not significant. Therefore, the doxylamine would not likely have had any effect on Mrs. Grandine’s mental or physical state.
[79] I also find that even though the amount of lorazepam in the deceased's blood had been described as a "therapeutic amount,” it can still be inordinately high, or at least high enough to likely bring on the side effects it is known to cause.
[80] The forensic pathologist, Dr. Toby Rose, opined that the lorazepam found in the deceased’s blood, as an anti-anxiety drug, would not itself have been fatal, but can make one confused and sedated. Ms. Bugyra expressed a similar opinion.
[81] Ms. Bugyra testified that possible side effects of lorazepam include sedation, reduced muscle coordination, difficulty concentrating, confusion and blurred vision. Her unchallenged opinion was that if one takes more lorazepam than one is used to, the drug can produce effects that mimic intoxication by alcohol.
[82] She testified that the half-life of lorazepam is between 9 and 16 hours. It is eliminated from the human body by enzymes secreted by the liver. Since the liver ceases to function at death, so too does elimination.
[83] Ms. Bugyra defined sedation as a reduced level of consciousness ranging along a continuum from tiredness, sleepiness, sleep, unconsciousness to coma. Her evidence was that lorazepam is not associated with fatal overdoses - at least by itself. If one were to take enough, one could die, but the drug has a low degree of toxicity. The drug does not have a significant effect on heart rate. In therapeutic amounts, one would expect to see relaxation, sleepiness, or sleep, but not coma.
[84] The term "therapeutic" in this context, she testified, must be juxtaposed against the other terms she used to classify drugs, namely, "toxic" and "fatal." Ms. Bugyra described that, for forensic purposes, all drugs fall into one of those three categories. According to this classification system, where an amount of a drug is neither toxic nor fatal, she considered it, by default, to be within a therapeutic range.
[85] While it would depend on the application, Ms. Bugyra testified that, for anxiety, a typical dosage for lorazepam would be 2 to 3 mg per single administration, with the total amount of the drug consumed not to exceed 6 mg daily.
[86] In order to explain the dosage of lorazepam the deceased would have had to have taken to attain a concentration of 68 ng at her death, Ms. Bugyra referred to a study on the peak concentrations of lorazepam attained by surgical patients who had been administered doses of the drug ranging from 2.5 mg. to 4 mg pre-operatively to reduce anxiety. The study found that the peak concentrations recorded varied between 26 and 55 ng.
[87] Therefore, she found, the concentration in the deceased's blood at autopsy (68 ng) was considerably higher than the highest amount (55 ng) recorded in the study. She opined that the higher peak concentrations recorded in the study resulted, for the most part, from higher amounts administered. Therefore, if the highest concentration from a dose that did not exceed 4 mg was 55 ng, the deceased would have had to have ingested in excess of 4 mg of lorazepam on the night of her death.
[88] Ms. Bugyra opined that if the average dosage of the drug is somewhere between 2 to 3 mg and is not to exceed 6 mg daily, then in Mrs. Grandine’s circumstances, the amount she had ingested was high. Given the side effects of the therapeutic use of lorazepam, she would expect a person in the deceased’s condition to feel calm, sedated and sleepy, but the person would be arousable.
[89] I find as a fact, based on all the expert evidence on this issue, that while the amount of lorazepam that the deceased ingested may have been within a therapeutic range in the sense that it was not sufficient to be considered toxic or fatal, the effect of the drug on her was that if she was not unconscious around the time she drowned, she was, at the very least, sedated.
4. Defendant's Animus and Motive
[90] The Crown argued at trial that the defendant bore a hostile animus toward his wife and that, by extension, he also had a motive to want her dead. As I have already said, however, the Crown did not argue that the deceased intended to kill his wife.
[91] The defendant was unhappy in his marriage. He told his wife’s doctor, Dr. Gora, that, if he had it to do over again, he was not sure that the deceased would have been his first choice as a life partner.
[92] He was unhappy about the discovery of his affair leading to the end of his pastoral role in the church. He was forced to resign in disgrace from his position at the Ennerdale Baptist Church.
[93] Mr. Grandine did not admit his affair to the deceased until the deceased discovered it on her own. And, Mrs. Grandine, having discovered the affair, made it more difficult for the defendant to continue it.
[94] Both the deceased and Pastor Hadfield insisted that the defendant stop the affair. While pretending to have done so, the defendant continued to see Ms. Florentino. The evidence shows that the defendant was consumed with communicating with Ms. Florentino. The amount of text messages, calls and other forms of contact in their relationship was substantial and showed that Mr. Grandine was consumed by it. And a lot of that contact took place when the defendant was with his wife.
[95] As part of the marriage counselling arrangement, the defendant was also forced to stop accessing online pornography, which he admitted to Mr. Hadfield had become an obsession as well. By agreeing to Pastor Hadfield's demand that she install a web filter, the deceased then also precluded Mr. Grandine from using pornography on the home computer.
[96] The defendant resented what he considered to be the impositions his wife had placed on him and, as a result, bore a considerable degree of animus toward her.
[97] The defendant was enamored with both Ms. Florentino and with pornography. On occasions in which his wife was incapacitated, the way for him to pursue both these fascinations were cleared and unimpeded.
[98] The defendant had both a hostile animus toward his wife and a motive to incapacitate her.
5. Computer Searches
[99] The computer searches at the Grandine residence had to have been performed by either the defendant or the deceased. No one else had access to that computer.
[100] I have already found that it was the defendant who performed at least one Google search in which the operator inquired where to buy lorazepam in Toronto; and that Ms. Grandine was not suicidal and there was no reason for her to be suffering from anxiety or using lorazepam. I also find that, if for some reason the deceased wanted lorazepam, there is no apparent reason why she could not have asked either of her doctors, Dr. Gora or Dr. Berger, for a prescription. She never did.
[101] On the other hand, if the defendant wanted to surreptitiously drug his wife, he would not want to ask his own doctor for a prescription for the drug. It would make sense, then, that he would make inquiries about the availability of the drug on the Internet and compare that method to obtaining it from his place of work.
[102] Of particular note in this case are the questions the deceased put to the defendant when they were at St. Michael's Hospital on October 14, 2011. If she had taken the lorazepam, herself, there was no reason why Mrs. Grandine would have asked her husband if he had given her a pill or whether he had put something in her drink. At that time, the couple was in marriage counselling and their relationship was in jeopardy due to the affair. It makes no sense that the deceased would have accused her husband of something so malicious if she had taken the drug herself. By all accounts, she was looking to repair the marriage not damage it further.
[103] The deceased was twenty weeks pregnant and, on all accounts, happy to be so. She was counting on a life with her husband and her child.
[104] The Toronto Police also discovered several online inquiries concerning whether varying amounts of Ativan would be fatal. Sgt. Manoharan examined the couple’s seized computer for certain keywords after Mrs. Grandine’s death became a homicide investigation. One of the terms was "lorazepam"; another was "Ativan." Officer Manoharan found many instances of these terms, but only a small subset was in “allocated space”. As such, it was impossible for him to give an opinion on the date, time, or context of the keyword hits because they were in this type of computer space.
[105] He did find the following: On October 10, 2011, at 21:31:58 and mere seconds later, at 21:32:03, the following inquiry was made of wiki.answers.com: "Would 100 mg of ativan be fatal". A matter of seconds later, at 21:32:23, another inquiry is made of the same source, "Would 85 mg of ativan be fatal". Approximately one minute later, at 21:33:38, there is a further inquiry, "Will you die from 100 mg of lorazepam tabs".
[106] I have already rejected the suggestion that the deceased was contemplating suicide. I also reject any suggestion by the defence that it was the deceased who was making the computer inquiries. I find that it was the defendant, who wished to incapacitate his wife in order to allow him the freedom to pursue the relationship with his mistress and to access pornography on the internet, who made the inquiries.
[107] The deceased had no idea what was wrong with her on October 14, 2011 when she was admitted to hospital. As a result, she could not help the emergency doctor in any decision to screen for drugs. As a result, no drug screen was performed on the blood taken from the deceased on October 14 until after her death. In that sample, the authorities found 40 ng. of lorazepam. It was the defendant who performed these searches, and they were performed prior to the death of Mrs. Grandine. It was the defendant who gave her the drug on October 13 and 17.
[108] The June 2011 Drug Report, found in allocated space on the defendant's computer, showed that approximately 26 residents of the O'Neill Centre were prescribed lorazepam.
[109] Computer searches that were found in allocated space, where the user account could be identified, were done by means of the "Philip" user account. There is no explanation why the deceased would have used her husband’s user identification to do searches of this sort.
[110] The defendant, given his role at the O'Neill Centre, would have been very familiar with lorazepam in terms of its general intended effects on the elderly persons to whom it was administered. The defendant would, therefore, have been familiar with the effect of the drug on his wife and himself, especially after researching the effects of the drug on the internet and testing the drug on himself and Mrs. Grandine on October 13, 2011.
[111] I am satisfied beyond any reasonable doubt that the defendant was the person who did the computer searches involving lorazepam and Ativan.
6. Smoothies
[112] On October 17, 2011, the defendant told the police that he and the deceased had not eaten dinner that night. According to the defendant, they had only had smoothies that the deceased had made. I accept that the deceased drank a smoothie before she died. To get the deceased to ingest lorazepam, the defendant could have put it into some sort of food in which his wife would not notice that she was ingesting it. The smoothie would have been available as one such source.
[113] Who actually made the smoothies is not critical to decide. What is important is that the deceased ate something through which she had unknowingly ingested the lorazepam. The deceased believed the defendant had put something in her drink before her earlier visit to hospital. It was no coincidence, on all the evidence in this case, that on the night of her death, Mrs. Grandine, once again consumed something that was able to act as a medium through which the defendant administered the lorazepam to her.
7. Post Offence Conduct
[114] The defendant acted in ways after his wife’s death that is circumstantial evidence supporting a finding that he was guilty of causing her death by giving her the lorazepam and then tried to divert suspicion from himself as a suspect.
[115] The following behavior supports that finding beyond a reasonable doubt.
[116] Some of the evidence in the trial of post conduct behaviour is evidence of the defendant’s demeanor after his wife’s death. As such, I must be careful in assessing the probative value of that evidence (R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433). A Court must be mindful of the fact that "demeanour evidence is especially susceptible to ... misuse" (R. v. Angelis, 2013 ONCA 70, [2013] O.J. No. 439, at para. 63). Nonetheless, the cumulative effect of the following evidence leaves me satisfied that the defendant was trying to divert suspicion of his wife’s death from himself.
The 911 Call and the Defendant’s Behaviour After Finding His Wife in the Tub
[117] First, while speaking to the 911 operator after discovering his wife’s body in the tub, the defendant’s emotions were feigned and insincere. Although he uttered words that conveyed the impression that he was distraught at his inability to take his wife from the tub, his "emotion" was disingenuous.
[118] Second, during the 911 call, the defendant said that he was unable to lift his wife from the tub in order to perform CPR. The defendant was in his mid-20s when this event took place. Although he is not a particularly large man, the video evidence of the defendant’s build and physical appearance, shows that was not a tiny or puny man. His employer, Ms. Fiori, testified that the physical demands of his job as a nurse involved lifting the aged and ill. The deceased weighed 179 pounds, but someone the size and stature of the defendant, who was a medically trained professional, could have done better than he claimed to have done. The defendant was confronted with an emergency involving his wife and unborn child. He was trained to respond to emergencies. Had he truly intended to get his wife out of the bath, he would have been able to do so or, at the least, would have made more of an effort to do so.
[119] In stark contradiction to his claim that he could lift his wife from the tub, the defendant hours later told the police that on the night the deceased had fallen out of bed, before her hospital stay a few days earlier, he had helped her back into the bed. In his videotaped interview, he said he “-almost really had to kind of carry her- lift her onto the bed.”
[120] The first person to deal with the defendant after the death was a firefighter, Brian Rainey. He testified that the defendant was standing in the bathroom holding a cordless telephone when he arrived. The defendant was making no ongoing effort to get his wife from the tub….or drain the tub of water.
[121] The defendant was a registered nurse. He found his wife unconscious in a bathtub. He did not lift her head out of the water or pull the plug out of the bathtub. The 911 operator had to tell him to do so.
[122] The defendant told the police that he thought that one of his wife's heels may have been blocking the drain in the tub. The firefighters who removed the deceased from the tub, however, were clear that the deceased’s head was towards the taps when they found her. This evidence was never challenged by the defence. And, in his statement to the police, the defendant did not say that he had changed the position of his wife's body prior to the arrival of the firefighters. In fact, the defendant said he was unable to move his wife.
[123] I find as a fact that the defendant’s heel was not blocking the drain. The defendant could have been confused or he could have offered this excuse to explain why he had not let the water out of the tub before the firefighters arrived.
[124] I find that the defendant's call to 911 and his seeming "efforts" to extract his wife from the bath, as they can be heard on the 911 recording, were not in earnest. Rather, the defendant’s behaviour was a pretense and a charade intended to make it appear that he was trying to get the deceased out of the bath, when, in fact, he was not.
The Defendant’s Demeanor
[125] The authorities noted the defendant’s demeanor after his wife had died. It is difficult to say how a person should be expected to act in such a situation.
[126] After the initial firefighters who entered the bathroom dealt with Mr. Grandine, the fire captain, Brian Foster, spoke to the defendant in the dining room of the home. He tried to get some of the deceased’s medical history. Officer Foster testified that when he was speaking to the defendant, he "kept having to bring him back" to the subject of his inquiries. He said the defendant was "distraught" and "nervous” but also said that the defendant was "very nervous", "very stressed," and "hyperactive." There is more than one explanation for this behaviour and it alone does not point to guilt.
[127] Police officers who dealt with the defendant, after the firefighters did, noted his demeanor as “looking a little upset” “and he was crying a little”. During a brief interview at 41 Division, Sgt. Karagan testified that the defendant was “a little emotional”. Later, the morning of October 18, Det. Smythe and D/C Mark McCabe conducted the video recorded interview with the defendant. The video shows the defendant to be very calm and collected throughout and, at one point, making jokes with the officers.
[128] As I have said, this demeanor evidence, on its own, is in no way persuasive of anything. But, along with all the other post offence conduct, the defendant’s demeanor raises concerns about his role in Mrs. Grandine’s death.
Lying to Police
[129] Mr. Grandine deceived Det. Smythe by omitting, from his statement, the fact that he had been having an affair with Ms. Florentino and, more important, that he had been on the phone with Ms. Florentino during half the time he told them that he had been out jogging. When asked where he had jogged on the night his wife died, Mr. Grandine was unable to tell the officers any of the streets along which he said he had jogged for about an hour. Even if in a shocked condition, it is difficult to believe that the deceased did not remember just one of the streets upon which he had been jogging in his neighborhood.
[130] The Crown asks me to find as a fact that the defendant lied to police about being on a jog when, in fact, he remained in his home as his wife was drowning and spoke to Ms. Florentino on the phone and uninstalled the K9 program which was preventing his access to pornography on the house computer.
[131] I am satisfied beyond a reasonable doubt, on all the evidence in this case, that the defendant did not go jogging on the night his wife died. The defendant was at home throughout.
[132] Apart from the defendant's statement to the police that he went out jogging while his wife drowned, the only other evidence that suggests that he was outside his house during the hour or so leading up to the time at which he called 911 is the testimony of Ms. Florentino, which I do not believe.
[133] Ms. Florentio was a Crown witness. In cross-examination by the defence, she testified that she knew the defendant was out of the house when they spoke because she remembered hearing the wind and the sounds of traffic in the background of their cell phone conversation. There is, however, nothing in the evidence to suggest that there was any amount of wind that night and it is incredible that Ms. Florentino would have been able to hear the wind in the background as she spoke to the defendant. Similarly, unless he were jogging on a particularly busy street, it is equally dubious that Ms. Florentino would have heard ambient traffic noise.
[134] It is highly improbable that she would remember, when she was interviewed well after the event, what would have been, at the time, inconsequential aspects of her communication with the defendant. Further, even if she could perceive wind and traffic noises, it is more unlikely that she would later remember such details pertaining to this night when, according to her, and verified by the cell phone records, this was only one of many such conversations on many nights in and around the time Mrs. Grandine died.
[135] I did not believe much of Ms. Florentio’s evidence. She was evasive in her answers about her affair with the defendant where she could side-step the direct evidence of their contact through call and text phone records - contact that called for more connection with one another than she was prepared to admit on the stand. She was a somewhat uncooperative Crown witness. She was an untrustworthy witness.
[136] And, even if Mr. Grandine were outside his house while speaking to Ms. Florentino, I find that he was not out running as he told the police. The telephone cell tower records do not show where the defendant was when he was speaking to Ms. Florentino on the night of his wife’s death.
[137] After rejecting Ms. Florentino's evidence about where the defendant was during her phone call with him, considering the fact that the telephone records do not support that the defendant was jogging during that call, and adding the fact that there was computer activity in the home during the period when the defendant says he was jogging, I find that the defendant was not out jogging in the manner described to the police, including the time that he was speaking to Ms. Florentino.
[138] I find that it was Mr. Grandine who emailed Blue Coat from his home for a temporary password at 10:06 p.m. on October 17, 2011. And it was he who, within the same minute, began uninstalling the K9 program. This was a time at which, if he had been telling the police the truth, he would have been out jogging.
[139] There was no reason for the deceased to need a temporary password for the program. She was the holder of the password. There was no need for the deceased to remove the pornography filter. There was every reason for her to want to keep the pornography filter on the computer.
[140] The defendant lied to the police to cover all this activity up and divert their attention away from his involvement in the death of his wife.
CONCLUSION
[141] I find that the defendant administered the lorazepam to the deceased on October 13 and 17, 2011. He also tested the drug on himself on October 13 to see what the effects of it would be on his wife.
[142] The deceased did not administer the drug to herself.
[143] Specifically, I also find the following:
a. the defendant bore an animus toward his wife;
b. he had a motive to want to see his wife dead or, at the very least, incapacitated;
c. he conducted the computer searches involving the subject of specific drugs, overdoses of drugs and autopsy;
d. the deceased was intolerant to the drug lorazepam;
e. the amount of lorazepam in her blood on both the 14th and 17th of October, 2011 was considerably more than she would have taken, had she knowingly taken the drug to alter her mood;
f. the deceased was not suicidal;
g. the deceased had no knowledge of what was affecting her on October 13 and 14, 2011;
h. the deceased had no access to lorazepam;
i. the defendant had access to lorazepam;
j. the deceased had questioned the defendant regarding whether he had given her a pill or put anything into her drink causing her to be ill before her hospital visit on October 14;
k. the last thing the deceased is known to have eaten on the evening of October 17 was a smoothie; and
l. the defendant lied to the police with the intent to divert suspicion from himself.
[144] I also find that the lorazepam administered to the deceased by the defendant affected her and contributed to her death by drowning.
[145] The deceased was affected to a very significant degree, both physically and mentally, by the lorazepam that the defendant administered to her on October 13.
[146] On October 13, Mr. Grandine was experimenting on himself at the same time as he was experimenting on his wife to determine the effect of the drug. The evidence of Pastor Hadfield of his observations of the defendant are consistent with the defendant having ingested lorazepam.
[147] On October 17, the police found staining on the bedding on the deceased's side of the bed. The staining was dried vomit and, when tested, lorazepam was detected. In addition to all the other untoward symptoms she experienced on October 13 and 14, the deceased reported that she had been vomiting. The state of the house on the evening of her death demonstrates that the deceased kept a very tidy household and on the basis of the odour that vomit would produce in close proximity to where the deceased would lay her head when going to sleep, it is highly unlikely the vomit had been there from October 13-14 and thereafter. The deceased would not have slept on vomit-stained bedding for several days after the event. I find as a fact that the stains resulted from the deceased having vomited on October 17. Although there is no evidence of what other symptoms she suffered on October 17 as a result of ingesting lorazepam, given that she vomited on the night of her death, just as she had done three days earlier, I also find that she must have had enough lorazepam that she would have been experiencing some of the same symptoms she had experienced on the Thursday and Friday before she died.
[148] The side effects of lorazepam are not in dispute. The deceased had 68 ng of lorazepam in her blood at the time of autopsy. By the time her blood had been taken during her visit to St. Michael’s Hospital 3 days before, she had 40 ng of lorazepam in her blood. She was subject, on October 17, to side effects that were similar in kind and in degree to those that she suffered on October 13 to 14.
[149] If the deceased had an amount of lorazepam in her system equivalent to the amount she had on October 13, it was still possible for her to have gotten into her tub even if she was already affected to some degree or other by the drug.
[150] I am satisfied beyond a reasonable doubt that the deceased was affected by the lorazepam the deceased administered to her on October 17, based on:
a. the amount of lorazepam in the deceased's blood on October 14;
b. the symptoms she experienced on October 13-14, including the fact that she experienced vomiting;
c. the fact that she vomited on October 17; and
d. the amount of lorazepam in her system at the time she drowned;
e. that, in and around the time she was in the bathtub, the deceased would have been experiencing one or more of the other side effects lorazepam is known to cause, such as confusion, blurred vision, and/or loss of muscle control.
[151] Those effects were such that they compromised, to some degree, the deceased's ability to look out for her own physical safety. Mrs. Grandine was sufficiently affected by the lorazepam the defendant surreptitiously administered to her that she was less able to protect herself from physical harm, and drowning, than she would otherwise have been had she not been so affected.
Note: This ruling is released October 25, 2019 by email to counsel in order for counsel to prepare for sentencing submissions to be made on Thursday, November 21, 2019. On that date, this judgment will be made an exhibit.
McWatt J.
Released: October 25, 2019
COURT FILE NO.: CR-18-30000425-0000
DATE: 20191025
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
Philip Grandine
Finding of Facts for Sentencing
McWatt J.
Released: October 25, 2019