R. v. Grandinetti (C.H.), 2003 ABCA 307

• Judge: Côté, Conrad and McFadyen, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: October 01, 2002
• Jurisdiction: Alberta
• Citations: 2003 ABCA 307;(2003), 339 A.R. 52 (CA)

R. v. Grandinetti (C.H.) (2003), 339 A.R. 52 (CA);

    312 W.A.C. 52

MLB headnote and full text

Temp. Cite: [2003] A.R. TBEd. NO.026

Her Majesty the Queen (respondent) v. Cory Howard Grandinetti (appellant/accused)

(0003-0179-A4; 2003 ABCA 307)

Indexed As: R. v. Grandinetti (C.H.)

Alberta Court of Appeal

Côté, Conrad and McFadyen, JJ.A.

October 31, 2003.

Summary:

An accused appealed his conviction for first degree murder. The grounds of appeal concerned several voir dire rulings in which evidence, including confessions and incul­patory statements, was admitted or excluded. The accused also relied on an alleged abuse of process and Charter rights violations.

The Alberta Court of Appeal, Conrad, J.A., dissenting, dismissed the appeal.

Civil Rights - Topic 3157.4

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Abuse of process - The accused was a suspect in a murder in­vestigation - Undercover police officers pretending to be members of a criminal or­ganization recruited the accused and en­gaged him in criminal activities - After five months the accused had not implicated himself in the murder - The questioning by the officers became more heated, aggres­sive and persistent - The accused confessed his involvement in the murder and was charged - The accused asserted that the police conduct constituted an abuse of process and contravened his s. 7 Charter right to silence - The trial judge rejected the assertions - There was no coercive, op­pressive or threatening police conduct - Section 7 did not apply because the ac­cused was not detained, psychologically or otherwise - The accused participated in the criminal activities because he wanted to ingratiate himself in the criminal organiza­tion - The state did not exercise control over his movements nor did the accused perceive that the state was exercising such control - The Alberta Court of Appeal af­firmed the decision - See paragraphs 43 to 58.

Civil Rights - Topic 3160

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to remain silent and protection against self-incrimi­nation (Charter, s. 7) - [See Civil Rights - Topic 3157.4 ].

Criminal Law - Topic 253

General principles - Abuse of process - What constitutes - [See Civil Rights - Topic 3157.4 ].

Criminal Law - Topic 4379

Procedure - Charge or directions - Jury or judge alone - Directions re evidence of character or credibility of accused - The accused was a suspect in a murder investi­gation - Undercover police officers pre­tending to be members of a criminal or­ganization recruited the accused and en­gaged him in criminal activities - The officers obtained a confession - The ac­cused was charged with murder - The trial judge admitted the evidence of the criminal activities - Although the evidence consti­tuted bad character evidence, it was neces­sary and relevant and the probative value outweighed the prejudicial effect - Im­mediately before the first undercover offi­cer testified and during the jury charge, the trial judge cautioned the jury that the evi­dence was only part of the narrative and while it would have some bearing on the accused's character and disposition, they were not to infer from it that the ac­cused was a person likely to have com­mitted the offence - The Alberta Court of Appeal ap­proved the limiting instructions and the timing of the instructions - See paragraphs 65 to 73.

Criminal Law - Topic 4572

Procedure - Conduct of trial - Seating of accused - An accused appealed his murder conviction, asserting that the trial judge erred in refusing to allow him to sit with counsel during the trial - The accused's counsel asserted that the prisoner's box created a prejudicial appearance and that he required the appellant's assistance dur­ing the trial - The Alberta Court of Appeal dismissed the appeal - The court referred to a prior decision in which it had decided that the seating location of an accused during a trial was a matter solely in the trial judge's discretion - Unless the exer­cise of discretion manifestly precluded the accused from making full answer and de­fence to the charge, that discretion could not be interfered with - See paragraphs 82 to 84.

Criminal Law - Topic 5214.8

Evidence and witnesses - Admissibility and relevancy - That crime committed by another - An accused charged with murder sought to admit evidence respecting the possibility that Papin might be the killer - The evidence related to (1) an incident a year prior to the murder where Papin threatened the victim with a knife after committing a home invasion; (2) the victim agreeing to testify against Papin on drug charges; and (3) the victim having at­tempted to prove that Papin was a police informer - The defence submitted that the evidence disclosed a motive, disposition and opportunity - The trial judge excluded the evidence because there was no evi­dence tending to connect Papin with the murder - The evidence of threats made more than a year before the murder was irrelevant and of no probative value - Evidence respecting the motive and dis­position was hearsay and irrelevant and its prejudicial effect outweighed its probative value - As there was no evidence connect­ing Papin with the murder, the evidence going to motive and disposition was inad­missible - The Alberta Court of Appeal affirmed the decision - See paragraphs 59 to 64.

Criminal Law - Topic 5332

Evidence and witnesses - Confessions and voluntary statements - Voir dire - Neces­sity and purpose of - The accused was a suspect in a murder investigation - Under­cover police officers pretending to be members of a criminal organization re­cruited the accused and engaged him in criminal activities - On the pretext of ensuring that the organization's members were not under police investigation, the officers asked the accused to disclose details of his participation in his aunt's murder - The officers convinced the ac­cused that certain officers, including the one investigating his aunt's murder, were controlled by the organization and could make witnesses and evidence disappear - The accused confessed his involvement and was charged with murder - The trial judge declined to hold a full voir dire and ad­mitted the confession where a "person in authority" did not include a person capable of controlling activities of corrupt police officers who would act illegally and thus influence the prosecution - The Alberta Court of Appeal affirmed the decision - A "person in authority" did not include those acting under a criminal organization's con­trol - The extended definition applied only to persons who acted as agents of the Crown and on its behalf - Accordingly, the obligation to hold a voir dire was not triggered - See paragraphs 18 to 26.

Criminal Law - Topic 5353

Evidence and witnesses - Confessions and voluntary statements - Who is a person in authority - [See Criminal Law - Topic 5332 ].

Criminal Law - Topic 5353.1

Evidence and witnesses - Confessions and voluntary statements - Statements to per­sons not in authority - [See Criminal Law - Topic 5332 ].

Evidence - Topic 7012

Opinion evidence - Expert evidence - Gen­eral - Basis for opinion - The Alberta Court of Appeal stated that "... an expert opinion is admissible, if relevant, even if it is based entirely on hearsay. The expert's opinion is entitled to some weight once there is some admissible evidence to estab­lish the foundation for it. The issue then becomes the weight to attach to the opinion. If there is no admissible evidence to establish the foundation, it is not en­titled to any weight, but the opinion itself is admissible." - See paragraph 80.

Evidence - Topic 7016

Opinion evidence - Expert evidence - General - Admissibility v. weight - [See Evidence - Topic 7012 ].

Cases Noticed:

R. v. M.C.H., [1998] 2 S.C.R. 449; 230 N.R. 1; 113 O.A.C. 97, refd to. [paras. 18, 95].

R. v. Berger (1975), 27 C.C.C.(2d) 357 (B.C.C.A.), refd to. [para. 21].

R. v. Rothman, [1981] 1 S.C.R. 640; 35 N.R. 485, refd to. [para. 22].

R. v. O'Connor (H.P.), [1995] 4 S.C.R. 411; 191 N.R. 1; 68 B.C.A.C. 1; 112 W.A.C. 1, refd to. [para. 30].

R. v. Jewitt, [1985] 2 S.C.R. 128; 61 N.R. 159, refd to. [para. 30].

R. v. Young (1984), 3 O.A.C. 254; 40 C.R.(3d) 289 (C.A.), refd to. [para. 30].

R. v. Regan (G.A.), [2002] 1 S.C.R. 297; 282 N.R. 1; 201 N.S.R.(2d) 63; 629 A.P.R. 63, refd to. [para. 33].

Blencoe v. Human Rights Commission (B.C.) et al., [2000] 2 S.C.R. 307; 260 N.R. 1; 141 B.C.A.C. 161; 231 W.A.C. 161, refd to. [para. 33].

Canada (Minister of Citizenship and Im­migration) v. Tobiass et al., [1997] 3 S.C.R. 391; 218 N.R. 81, refd to. [para. 33].

R. v. Unger (K.W.) and Houlahan (T.L.) (1993), 85 Man.R.(2d) 284; 41 W.A.C. 284; 83 C.C.C.(3d) 228 (C.A.), refd to. [para. 34].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276, refd to. [para. 36].

R. v. Roberts (D.C.) (1997), 90 B.C.A.C. 213; 147 W.A.C. 213 (C.A.), refd to. [para. 38].

R. v. Skinner (J.G.F.R.) (1992), 84 Man.R.(2d) 223 (Q.B.), refd to. [para. 39].

United States of America v. Burns and Rafay (1997), 94 B.C.A.C. 46; 152 W.A.C. 46; 117 C.C.C.(3d) 454 (C.A.), leave to appeal dismissed (1997), 225 N.R. 400; 109 B.C.A.C. 160; 177 W.A.C. 160 (S.C.C.), refd to. [para. 41].

R. v. Jageshur (R.) (2002), 165 O.A.C. 230; 169 C.C.C.(3d) 225 (C.A.), refd to. [para. 42].

R. v. Therens, [1985] 1 S.C.R. 613; 59 N.R. 122; 40 Sask.R. 122, refd to. [para. 48].

R. v. Thomsen, [1988] 1 S.C.R. 640; 84 N.R. 347; 27 O.A.C. 85, refd to. [para. 48].

R. v. Hebert, [1990] 2 S.C.R. 151; 110 N.R. 1, refd to. [para. 53].

R. v. Broyles, [1991] 3 S.C.R. 595; 131 N.R. 118; 120 A.R. 189; 8 W.A.C. 189, refd to. [para. 53].

R. v. Moore (C.A.) (1997), 94 B.C.A.C. 281; 152 W.A.C. 281 (C.A.), refd to. [para. 54].

R. v. McMillan (1975), 23 C.C.C.(2d) 160 (Ont. C.A.), affd. [1977] 2 S.C.R. 824; 15 N.R. 20, refd to. [paras. 61, 127].

R. v. Williams (1985), 7 O.A.C. 201; 18 C.C.C.(3d) 356 (C.A.), leave to appeal refused [1985] 1 S.C.R. xiv; 59 N.R. 160; 10 O.A.C. 319, refd to. [para. 61].

R. v. Khan, [1990] 2 S.C.R. 531; 113 N.R. 53; 41 O.A.C. 353; 59 C.C.C.(3d) 92, refd to. [paras. 62, 157].

R. v. Smith (A.L.), [1992] 2 S.C.R. 915; 139 N.R. 323; 55 O.A.C. 321, refd to. [para. 62].

R. v. Finta, [1994] 1 S.C.R. 701; 165 N.R. 1; 70 O.A.C. 241, refd to. [para. 62].

R. v. S.G.G., [1997] 2 S.C.R. 716; 214 N.R. 161; 94 B.C.A.C. 81; 152 W.A.C. 81, refd to. [para. 69].

R. v. F.F.B., [1993] 1 S.C.R. 697; 148 N.R. 161; 120 N.S.R.(2d) 1; 332 A.P.R. 1, refd to. [para. 69].

R. v. Corbett, [1988] 1 S.C.R. 670; 85 N.R. 81, refd to. [para. 71].

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352, refd to. [para. 71].

R. v. Lavallee, [1990] 1 S.C.R. 852; 108 N.R. 321; 67 Man.R.(2d) 1, refd to. [para. 77].

R. v. Abbey, [1982] 2 S.C.R. 24; 43 N.R. 30, refd to. [para. 78].

R. v. Faid (1981), 30 A.R. 616; 61 C.C.C.(2d) 28 (C.A.), revd. [1983] 1 S.C.R. 265; 46 N.R. 461; 42 A.R. 308, folld. [para. 84].

R. v. Erven, [1979] 1 S.C.R. 926; 25 N.R. 49; 30 N.S.R.(2d) 89; 49 A.P.R. 89, refd to. [para. 102].

R. v. McKenzie, [1965] 3 C.C.C. 6 (Alta. C.A.), refd to. [para. 110].

R. v. R.G.P. (1977), 3 A.R. 524 (C.A.), refd to. [para. 111].

R. v. Cloutier, [1979] 2 S.C.R. 709; 28 N.R. 1, refd to. [para. 127].

R. v. Morris, [1983] 2 S.C.R. 190; 48 N.R. 341, refd to. [para. 127].

R. v. Arcangioli (G.), [1994] 1 S.C.R. 129; 162 N.R. 280; 69 O.A.C. 26, refd to. [para. 128].

R. v. Yebes, [1987] 2 S.C.R. 168; 78 N.R. 351, refd to. [para. 142].

R. v. Seaboyer and Gayme, [1991] 2 S.C.R. 577; 128 N.R. 81; 48 O.A.C. 81, refd to. [para. 143].

R. v. Jackson (1980), 57 C.C.C.(2d) 154 (Ont. C.A.), refd to. [para. 145].

Reference Re R. v. Latta (1976), 30 C.C.C.(2d) 208 (Alta. C.A.), dist. [para. 150].

R. v. Hawkins (K.R.) and Morin (C.), [1996] 3 S.C.R. 1043; 204 N.R. 241; 96 O.A.C. 81; 111 C.C.C.(3d) 129, refd to. [para. 157].

Authors and Works Noticed:

Kerans, Roger P., Standards of Review Employed by Appellate Courts (1994), p. 73 [para. 90].

Sopinka, John, Lederman, Sidney N., and Bryant, Alan W., The Law of Evidence in Canada (2nd Ed. 1999), para. 2.77 [para. 149].

Counsel:

P.C. Fagan, for the appellant;

G. Tomljanovic, for the respondent.

This appeal was heard on October 1, 2002, by Côté, Conrad and McFadyen, JJ.A., of the Alberta Court of Appeal. The decision of the court was delivered on October 31, 2003, including the following opinions:

McFadyen, J.A. (reasons for judgment reserved with Côté, J.A., concurring) - see paragraphs 1 to 86;

Conrad, J.A., dissenting - see paragraphs 87 to 161.