R. v. Grant (M.E.), (2015) 468 N.R. 83 (SCC)

• Judge: Abella, Rothstein, Cromwell, Moldaver, Karakatsanis, Wagner and Gascon, JJ.
• Court: Supreme Court (Canada)
• Case Date: November 14, 2014
• Jurisdiction: Canada (Federal)
• Citations: (2015), 468 N.R. 83 (SCC);2015 SCC 9;[2015] 1 SCR 475;468 NR 83

R. v. Grant (M.E.) (2015), 468 N.R. 83 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2015] N.R. TBEd. MR.001

Her Majesty the Queen (appellant) v. Mark Edward Grant (respondent)

(35664; 2015 SCC 9; 2015 CSC 9)

Indexed As: R. v. Grant (M.E.)

Supreme Court of Canada

Abella, Rothstein, Cromwell, Moldaver, Karakatsanis, Wagner and Gascon, JJ.

March 5, 2015.

Summary:

In 2007, Grant was charged with the first degree murder of 13 year old Candace Derksen that occurred almost 23 years earlier. The Crown's case depended substantially on the recent analysis of small quantities of DNA found at the crime scene. Grant challenged the DNA evidence. He also sought to lead evidence suggesting that an unknown third party suspect had committed the crime. That evidence related to the alleged abduction of 12-year-old P.W. committed within months of the Derksen murder, while Grant was in custody. Grant argued that the modus operandi and other physical evidence indicated that the same person had abducted both Derksen and P.W. The trial judge refused to admit the evidence of the allegedly similar offence. Grant was convicted of second degree murder by the jury. He appealed.

The Manitoba Court of Appeal, in a decision reported at (2013), 299 Man.R.(2d) 202; 90 W.A.C. 202, held that the trial judge erred in not allowing Grant to lead evidence related to the alleged unknown third party suspect. The Crown appealed.

The Supreme Court of Canada dismissed the appeal.

Criminal Law - Topic 4956

Appeals - Indictable offences - New trials - Grounds - Admission of evidence - [See first Criminal Law - Topic 5214.8 ].

Criminal Law - Topic 4960

Appeals - Indictable offences - New trials - Grounds - Error respecting burden of proof - [See first Criminal Law - Topic 5214.8 ].

Criminal Law - Topic 5045

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - What constitutes a substantial wrong or miscarriage of justice - [See first Criminal Law - Topic 5214.8 ].

Criminal Law - Topic 5214.8

Evidence and witnesses - Admissibility and relevancy - That crime committed by another (third party suspects) - In 2007, Grant was charged with the first degree murder of 13 year old Candace Derksen that occurred almost 23 years earlier - Grant sought to lead evidence suggesting that an unknown third party suspect had committed the crime - That evidence related to the alleged abduction of 12-year-old P.W., committed within months of the Derksen murder, while Grant was in custody - Grant argued that the modus operandi and other physical evidence indicated that the same person had abducted both Derksen and P.W. - The trial judge refused to admit the evidence - Grant was convicted of second degree murder by the jury - The Manitoba Court of Appeal allowed Grant's appeal and ordered a new trial - The court held that the trial judge erred in not allowing Grant to lead evidence related to the alleged unknown third party suspect - The Crown appealed - The Supreme Court of Canada dismissed the appeal - The trial judge erred in law in treating the evidence relating to the P.W. incident as known third party suspect evidence - He also erred in requiring the accused to establish on a balance of probabilities that the alleged abduction took place - There was no such evidentiary burden on the accused where he sought to rely on the defence that an unknown third party committed the crime - There was some evidence capable of giving the unknown third party suspect defence an air of reality - R. v. Seaboyer (1991 SCC) required the court to measure and weigh the extent of the probative value and the extent of the prejudicial effect of the evidence - While an appellate court was entitled to step into the shoes of the trial judge if the record permitted, in this case, the Court of Appeal was not in the position to assess and weigh the extent of the probative value of the unknown third party suspect evidence and the extent of prejudicial effect of that evidence - The trial judge's legal errors were not minor, and did not attract the application of the curative proviso in s. 686(1)(b)(iii) of the Criminal Code - The case had to be re-tried - The balancing of the Seaboyer factors was best left for the trial judge - See paragraphs 55 to 63.

Criminal Law - Topic 5214.8

Evidence and witnesses - Admissibility and relevancy - That crime committed by another (third party suspects) - At issue was the appropriate framework for determining the admissibility of defence-led evidence concerning an unknown third party suspect, and to what extent that framework required the trial judge to assess and weigh the evidence - The Crown said that the trial judge had to apply the admissibility tests developed for known third party suspect and similar fact evidence - The Supreme Court of Canada disagreed - The court stated that it was not helpful to slot evidence concerning an unknown third party suspect into categories that were not designed to accommodate it and that the tests governing known third party suspect evidence and similar fact evidence should not be stretched beyond the particular circumstances that they were designed to address - Instead, first principles governing the admissibility of evidence properly balanced the competing interests that arose when the defence sought to lead evidence of an unknown third party suspect - In such cases, the defence had to first establish the logical relevance of the evidence - That might be done by demonstrating a sufficient connection or similarity between the crime charged and another crime the accused could not possibly have committed to support the logical inference that the same person committed both crimes - Once that threshold was met, the evidence would be admissible unless its prejudicial effects substantially outweighed its probative value - See paragraphs 2 to 7.

Criminal Law - Topic 5214.8

Evidence and witnesses - Admissibility and relevancy - That crime committed by another (third party suspects) - The Supreme Court of Canada stated that "any elevated risks of prejudice that arise when an accused seeks to introduce evidence of an unknown third party suspect do not require the accused to satisfy a higher admissibility threshold or require the judge to engage in an enhanced evaluation of the evidence. Existing rules achieve the appropriate balance of maintaining the integrity of the trial process while protecting the right of an accused to make full answer and defence to the charges against her. Thus, defence evidence is admissible where (1) the evidence is relevant to a fact in issue; and (2) the probative value of the evidence is not substantially outweighed by its prejudicial effects. Where the connection between the evidence and a fact in issue at trial is not obvious, the air of reality test may help a trial judge in determining if the evidence tends to prove a defence that may become available. Relevant evidence concerning an unknown third party suspect will only be excluded where its prejudicial effects substantially outweigh its probative value" - See paragraphs 53 to 54.

Criminal Law - Topic 5214.8

Evidence and witnesses - Admissibility and relevancy - That crime committed by another (third party suspects) - The Supreme Court of Canada stated that "the balance of probabilities test governing the admissibility of similar fact evidence does not apply to unknown third party suspect evidence proffered by the accused. The similarity of the acts goes to the relevance of the evidence, but imposing the onus of the Handy test on the accused is neither consistent with the presumption of innocence nor necessary to protect the accused from moral prejudice. Any reasoning prejudice or risks to the integrity of the trial process engaged by this evidence are better addressed directly within the Seaboyer framework" - See paragraph 36.

Criminal Law - Topic 5214.8

Evidence and witnesses - Admissibility and relevancy - That crime committed by another (third party suspects) - The Supreme Court of Canada stated that "the admissibility of evidence concerning an unknown third party suspect is best determined in accordance with the broader, principled approach to the admission of evidence found in Seaboyer. ... In accordance with Seaboyer, once the evidence has been found to be relevant, unknown third party suspect evidence will be admitted unless its prejudicial effects substantially outweigh its probative value. ... there are two components to the Seaboyer analysis. First, in applying Seaboyer, the trial judge must assess the potential probative value of the evidence. Where the evidence relates to an unknown third party suspect, probative value will depend in part on the strength of the connection or nexus between the two events - that is, the degree of similarity between the indicted crime and the allegedly similar incident. ... Second, the Seaboyer test is concerned with the potential prejudicial effects of the evidence. Unknown third party suspect evidence, like Crown-led similar fact evidence, poses a particular risk of reasoning prejudice. ... However, these significant prejudicial effects must nonetheless be evaluated in accordance with the fundamental principles governing criminal proceedings" - See paragraphs 37 to 40.

Criminal Law - Topic 5218

Evidence and witnesses - Burden of proof - Respecting defences - [See first and fourth Criminal Law - Topic 5214.8 ].

Cases Noticed:

R. v. Seaboyer and Gayme, [1991] 2 S.C.R. 577; 128 N.R. 81; 48 O.A.C. 81, appld. [para. 7].

R. v. Grandinetti (C.H.), [2005] 1 S.C.R. 27; 329 N.R. 28; 363 A.R. 1; 343 W.A.C. 1; 2005 SCC 5, refd to. [para. 12].

R. v. Handy (J.), [2002] 2 S.C.R. 908; 290 N.R. 1; 160 O.A.C. 201; 2002 SCC 56, dist. [para. 12].

R. v. D.O.L., [1993] 4 S.C.R. 419; 161 N.R. 1; 88 Man.R.(2d) 241; 51 W.A.C. 241, refd to. [para. 18].

R. v. Corbett, [1988] 1 S.C.R. 670; 85 N.R. 81, refd to. [para. 18].

R. v. Noël (C.), [2002] 3 S.C.R. 433; 295 N.R. 1; 2002 SCC 67, refd to. [para. 19].

R. v. Sweitzer, [1982] 1 S.C.R. 949; 42 N.R. 550; 37 A.R. 294, refd to. [para. 19].

R. v. Harrer (H.M.), [1995] 3 S.C.R. 562; 186 N.R. 329; 64 B.C.A.C. 161; 105 W.A.C. 161, refd to. [para. 19].

R. v. Shearing (I.), [2002] 3 S.C.R. 33; 290 N.R. 225; 168 B.C.A.C. 161; 275 W.A.C. 161; 2002 SCC 58, refd to. [para. 19].

R. v. Arcangioli (G.), [1994] 1 S.C.R. 129; 162 N.R. 280; 69 O.A.C. 26, refd to. [para. 19].

R. v. Cinous (J.), [2002] 2 S.C.R. 3; 285 N.R. 1; 2002 SCC 29, refd to. [para. 20].

R. v. McMillan (1975), 7 O.R.(2d) 750 (C.A.), affd. [1977] 2 S.C.R. 824; 15 N.R. 20, refd to. [paras. 24, 28].

State v. Scheidell (1999), 227 Wis.2d 285, refd to. [para. 26].

United States of America v. Stevens (1991), 935 F.2d 1380 (3rd Cir.), refd to. [para. 29, footnote 2].

Wiley v. State (2002), 74 S.W.3d 399 (Tex. Crim. App.), refd to. [para. 29, footnote 2].

United States of America v. McVeigh (1998), 153 F.3d 1166 (10th Cir.), refd to. [para. 29, footnote 2].

Caldwell v. State (2011), 356 S.W.3d 42 (Tex. App. Ct.), refd to. [para. 29, footnote 2].

Davis v. State (2013), 413 S.W.3d 816 (Tex. App. Ct.), refd to. [para. 29, footnote 2].

R. v. Arp (B.), [1998] 3 S.C.R. 339; 232 N.R. 317; 114 B.C.A.C. 1; 186 W.A.C. 1, refd to. [para. 31].

R. v. C.R.B., [1990] 1 S.C.R. 717; 107 N.R. 241; 109 A.R. 81, refd to. [para. 31].

R. v. Scopelliti (1981), 34 O.R.(2d) 524 (C.A.), refd to. [para. 33].

R. v. Pollock (R.) et al. (2004), 188 O.A.C. 37; 187 C.C.C.(3d) 213 (C.A.), refd to. [para. 33].

R. v. Kendall and MacKay (1987), 20 O.A.C. 134; 35 C.C.C.(3d) 105 (C.A.), refd to. [para. 33].

R. v. Sims (1994), 28 C.R.(4th) 231 (B.C.C.A.), refd to. [para. 33].

R. v. Hamilton (D.W.) (2003), 186 B.C.A.C. 282; 306 W.A.C. 282; 180 C.C.C.(3d) 80; 2003 BCCA 490, refd to. [para. 33].

R. v. Brousseau, 2006 QCCA 858, refd to. [para. 33].

State v. Sullivan (1998), 216 Wis.2d 768, refd to. [para. 38].

R. v. Murphy (A.) (2012), 295 O.A.C. 281; 2012 ONCA 573, refd to. [para. 41].

R. v. Underwood (G.R.) (2002), 320 A.R. 151; 288 W.A.C. 151; 170 C.C.C.(3d) 500; 2002 ABCA 310, refd to. [para. 41].

R. v. Clarke (H.E.) (1998), 112 O.A.C. 233; 129 C.C.C.(3d) 1 (C.A.), refd to. [para. 41].

R. v. Jackson (D.) (2013), 311 O.A.C. 121; 301 C.C.C.(3d) 358; 2013 ONCA 632, affd. [2014] 1 S.C.R. 672; 457 N.R. 1; 320 O.A.C. 36; 2014 SCC 30, refd to. [para. 41].

R. v. T.C. (2004), 190 O.A.C. 380; 189 C.C.C.(3d) 473 (C.A.), refd to. [para. 41].

R. v. Humaid (A.A.) (2006), 210 O.A.C. 68; 37 C.R.(6th) 347 (C.A.), refd to. [para. 41].

R. v. Hart (N.L.), [2014] 2 S.C.R. 544; 461 N.R. 1; 353 Nfld. & P.E.I.R. 222; 1099 A.P.R. 222; 2014 SCC 52, refd to. [para. 44].

R. v. Buzizi (D.), [2013] 2 S.C.R. 248; 444 N.R. 30; 2013 SCC 27, refd to. [para. 45].

R. v. Stinchcombe, [1991] 3 S.C.R. 326; 130 N.R. 277; 120 A.R. 161; 8 W.A.C. 161, refd to. [para. 49].

R. v. Quesnelle (V.), [2014] 2 S.C.R. 390; 460 N.R. 27; 320 O.A.C. 38; 2014 SCC 46, refd to. [para. 52].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 56].

R. v. Khelawon (R.), [2006] 2 S.C.R. 787; 355 N.R. 267; 220 O.A.C. 338; 2006 SCC 57, refd to. [para. 56].

R. v. Morin, [1988] 2 S.C.R. 345; 88 N.R. 161; 30 O.A.C. 81, refd to. [para. 63].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 686(1)(b)(iii) [para. 63].

Authors and Works Noticed:

Heydon, John D., Cross on Evidence (9th Aust. Ed. 2013), p. 713 [para. 29, footnote 2].

Phipson on Evidence (18th Ed. 2013), paras. 22-04, 22-24 to 22-27 [para. 29, footnote 2].

Counsel:

Amiram Kotler and Rekha Malaviya, for the appellant;

Saul B. Simmonds, Vanessa Hébert and Laura Robinson, for the respondent.

Solicitors of Record:

Attorney General of Manitoba, Winnipeg, Manitoba, for the appellant;

Gindin, Wolson, Simmonds, Roitenberg, Winnipeg, Manitoba, for the respondent.

This appeal was heard on November 14, 2014, before Abella, Rothstein, Cromwell, Moldaver, Karakatsanis, Wagner and Gascon, JJ., of the Supreme Court of Canada. The following judgment of the Supreme Court was delivered by Karakatsanis, J., in both official languages on March 5, 2015.