R. v. Grant (M.E.), 2013 MBCA 95

• Judge: Chartier, C.J.M., Monnin and Hamilton, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: October 30, 2013
• Jurisdiction: Manitoba
• Citations: 2013 MBCA 95;(2013), 299 Man.R.(2d) 202 (CA)

R. v. Grant (M.E.) (2013), 299 Man.R.(2d) 202 (CA);

      590 W.A.C. 202

MLB headnote and full text

Temp. Cite: [2013] Man.R.(2d) TBEd. NO.005

Her Majesty The Queen (respondent) v. Mark Edward Grant (accused/appellant)

(AR 11-30-07585; 2013 MBCA 95)

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

Manitoba Court of Appeal

Chartier, C.J.M., Monnin and Hamilton, JJ.A.

October 30, 2013.

Summary:

The accused was convicted of second degree murder of a 13 year old girl following a trial before a judge and jury. The accused appealed from the conviction. He also sought to appeal his sentence of life imprisonment without eligibility for parole for the maximum period of 25 years.

The Manitoba Court of Appeal allowed the conviction appeal and ordered a new trial.

Criminal Law - Topic 4306.1

Procedure - Jury - Disclosure of jury proceedings - The accused appealed his conviction for second degree murder and brought a motion to adduce fresh evidence - The court was presented with, inter alia, evidence relating to an allegation of an apprehension of bias on the part of a juror - That evidence was contained in an affidavit from junior counsel at the accused's trial - She deposed to what a jury member wrote to a journalist following the trial - The Manitoba Court of Appeal stated that "Because I have previously come to the conclusion that the appeal should be allowed and the accused granted a new trial, there is no need for me to specifically address the issue of whether the juror's comments amounted to proof of bias sufficient to warrant a new trial. However, without so deciding, I must state that I consider the juror's conduct and the invitation of the journalist to communicate with him to be both unwise and lacking in judgment on both of their parts. It should, however, be noted that both the juror's and the journalist's conduct may well be in breach of the jury secrecy rule: the member of the jury for disclosing information and the journalist for aiding and abetting the juror. ...  once the appeal process will have run its course, and all issues conclusively determined, it will have to be decided whether or not the conduct of this member of the jury and the journalist in question was contemptuous, a breach of a duty to respect the jury secrecy rule or an offence under the Jury Act" - See paragraphs 89 to 95.

Criminal Law - Topic 4351

Procedure - Charge or directions - Jury or judge alone - Direction regarding burden of proof and reasonable doubt - The accused was convicted of second degree murder following a trial before a judge and jury - The accused appealed from the conviction - One ground of appeal was whether a R. v. D.W. type of instruction should have been provided to the jury given the fundamental conflict between the expert DNA evidence adduced by both the Crown and the accused, notwithstanding the fact that the accused himself did not testify - The Manitoba Court of Appeal dismissed this ground of appeal - Given the expansive interpretation that courts had given to D.W., it was clear that its principles should be applied in cases like this one, involving conflicting expert testimony on a critical issue - The judge's charge to the jury complied with the principles underlying D.W., even though he did not use the wording suggested in D.W. with respect to the conflicting expert evidence - He did not have to do so - When the charge was read as a whole, it was clear that the judge respected the substance of the D.W. principles and never placed the jury in the position of choosing between the evidence of the two experts - The judge made it clear that if the jury accepted the evidence of the defence expert, or if that evidence made them unsure about the evidence of the Crown's expert, the Crown could not prove its case beyond a reasonable doubt and the accused should be acquitted - He never shifted the burden away from the Crown - See paragraphs 21 to 35.

Criminal Law - Topic 4352.2

Procedure - Charge or directions - Jury or judge alone - Scientific evidence (incl. DNA evidence) - The accused was convicted of second degree murder following a trial before a judge and jury - The accused appealed from the conviction - The accused asserted that the judge's jury instructions did not reflect a proper balance of the evidence led by the accused and the Crown and that he failed to deal explicitly with the concern that the jury might be overwhelmed by DNA profiling evidence - The Manitoba Court of Appeal dismissed this ground of appeal - The judge dealt with a difficult and complicated matter in a manner that was more than adequate, and managed to render a difficult subject understandable to a non-scientist - The charge was well balanced, thorough and fair - The judge used different words in his review of the evidence, and possibly in setting out the theories of the defence and the Crown, but those were distinctions in style not substance - The judge provided the jury with a general review of DNA evidence and what use could be made of it and then proceeded to review the evidence of all of the witnesses that provided such evidence - The charge was more than adequate - See paragraphs 36 to 44.

Criminal Law - Topic 4365

Procedure - Charge or directions - Jury or judge alone - Directions regarding expert evidence - [See Criminal Law - Topic 4351 ].

Criminal Law - Topic 4865

Appeals - Indictable offences - Grounds of appeal - Verdict unreasonable or unsupported by the evidence - The accused was convicted of second degree murder following a trial before a judge and jury - The accused appealed from the conviction - The thrust of the accused's argument with respect to the unreasonableness of the verdict was directed to the unreliability of the DNA evidence generally, and specifically, to the Crown's main expert, Dr. Chahal - The Manitoba Court of Appeal dismissed this ground of appeal - The court stated that "While the accused's arguments dealing with the reliability of Dr. Chahal's evidence and the reasonableness (or lack thereof) of a conviction grounded on that evidence cause me some unease with respect to the verdict, that unease, however, is not enough to establish an unreasonable verdict, according to [R. v.] W.H. The jury was well aware of the challenges to Dr. Chahal's evidence, firstly, by listening to his evidence, including a strenuous cross-examination; secondly, from hearing from Dr. Waye [the defence expert]; thirdly, by hearing counsel's attack on Dr. Chahal's credibility and the reliability of his conclusions during closing arguments; and, fourthly, by the instructions provided to them by the presiding judge. Notwithstanding, the jurors chose to accept Dr. Chahal's evidence and Dr. Waye's evidence did not raise a reasonable doubt. It was open to the jury to so find. There was evidence, if believed, and it was, on which a properly instructed jury could convict and just because I may view it differently, I cannot conclude that the jury's decision was unreasonable. In the final analysis, the jury came to a verdict that was open to it and it cannot be said that it was unreasonable" - See paragraphs 11 to 20.

Criminal Law - Topic 4970

Appeals - Indictable offences - Powers of Court of Appeal - Receiving fresh evidence - General - The accused appealed his conviction for second degree murder and brought a motion to adduce fresh evidence from Dr. Budowle with respect to new DNA evidence - The Crown argued that Dr. Budowle's evidence was not new, but simply another opinion put forth to challenge the Crown's expert - The Manitoba Court of Appeal stated that because it had decided to allow the appeal and order a new trial, it need not deal with the motion for fresh evidence with respect to new DNA evidence - However, the court stated, in obiter, that "Had I needed to, I would have acceded to the Crown's argument and refused to have Dr. Budowle's evidence introduced as fresh evidence. Although it is strong evidence, I have not been convinced that it is anything but a stronger and weightier attack on the Crown's expert and is not in the realm of real 'fresh evidence'" - See paragraphs 79 to 88.

Criminal Law - Topic 5213

Evidence and witnesses - Admissibility and relevancy - Similar acts - When admissible - [See both Criminal Law - Topic 5214.8 ].

Criminal Law - Topic 5214.8

Evidence and witnesses - Admissibility and relevancy - That crime committed by another - The accused was convicted of second degree murder of a 13 year old girl (Derksen) following a trial before a judge and jury - At trial, the accused had contended that some nine months after Derksen was found, there was a strikingly similar event perpetrated on another girl, P.W., at a time when the accused was in custody - The police never arrested a suspect in connection with that event - It was argued before the judge that the modus operandi and other physical evidence suggested that the same person abducted both P.W. and Derksen - The trial judge remained unconvinced on "a balance of probabilities" that the event pertaining to P.W. had even occurred - As a result, he found that "there could be no useable similarities" between the two cases and that this evidence was "insufficiently relevant and insufficiently probative" - The accused appealed - The Manitoba Court of Appeal stated that "I have difficulty in reconciling the judge's decision to deny the tendering of the evidence on the basis that the incident never occurred in the face of very strong evidence to the contrary. It appears that he applied the balance-of-probabilities standard when all that was required was the 'some evidence' standard. In arriving at his decision, it is clear to me that the judge made factual and credibility findings, conclusions which he was not entitled to make at this point. He appears to rely almost exclusively on the viva voce evidence of P.W. to the exclusion of all of the other evidence before him, including P.W.'s two prior statements, that would, in my mind, justify, at minimum, an issue for the jury to decide as to whether she was in fact abducted and left tied in a boxcar in 1985. ...  It seems to me that this evidence, which I view as very relevant, could provide the basis upon which a reasonable, properly instructed jury could acquit, especially given the nature of the evidence called at the trial. ...  In this case, the only prejudicial effect would be the impact this evidence would have had on the trial process in what was an already complicated and lengthy trial. ...  that concern did not substantially outweigh the probative value. The accused should have been allowed to place the P.W.-incident evidence before the jury" - The legal error was sufficient to set aside the verdict and order a new trial - See paragraphs 45 to 78.

Criminal Law - Topic 5214.8

Evidence and witnesses - Admissibility and relevancy - That crime committed by another - The accused was convicted of second degree murder of a 13 year old girl (Derksen) following a trial before a judge and jury - The judge had refused to allow the accused to adduce evidence of an alleged unknown third-party suspect - The accused had contended that nine months after Derksen was found, there was a strikingly similar event perpetrated on another girl, P.W., at a time when the accused was in custody - The police never arrested a suspect in connection with that event - On appeal, the Manitoba Court of Appeal stated that it had two concerns with respect to the law that was presented by counsel and applied by the judge - First, the law regarding third-party suspects had generally been shaped by cases involving known individuals as opposed to unknown third parties - This was not a case of a known third-party suspect where the defence wished to adduce character evidence pertaining to a third party - It was more akin to similar-fact evidence and it called for a consideration of the law with respect to such evidence - Second, the judge, referred to case law that dealt mostly with the test to apply to similar-fact evidence when tendered by the Crown, as opposed to an accused - When the Crown sought to adduce similar fact evidence against an accused, it had the onus, on a balance of probabilities, to satisfy the judge that the probative value of that evidence outweighed the potential prejudice - That was not the test to apply in those rare situations when the similar-fact evidence was sought to be advanced by an accused - In such circumstances, the power to exclude evidence was narrower - When an accused wished to adduce relevant and admissible evidence, it should be admitted unless its prejudicial effect substantially outweighed its probative value - See paragraphs 72 to 77.

Cases Noticed:

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352, consd. [para. 9].

R. v. W.H. (2013), 442 N.R. 200; 335 Nfld. & P.E.I.R. 1; 1040 A.P.R. 1; 2013 SCC 22, refd to. [para. 14].

R. v. François (L.), [1994] 2 S.C.R. 827; 169 N.R. 241; 73 O.A.C. 161, refd to. [para. 17].

R. v. J.H.S., [2008] 2 S.C.R. 152; 375 N.R. 67; 265 N.S.R.(2d) 203; 848 A.P.R. 203; 2008 SCC 30, refd to. [para. 27].

R. v. Paul (A.) (2009), 249 O.A.C. 199; 2009 ONCA 443, refd to. [para. 28].

R. v. B.D. (2011), 273 O.A.C. 241; 2011 ONCA 51, refd to. [para. 31].

R. v. J.M.M. (2012), 319 N.S.R.(2d) 73; 1010 A.P.R. 73; 2012 NSCA 70, refd to. [para. 32].

R. v. Ly (V.), [2005] O.A.C. Uned. 258; 19 M.V.R.(5th) 183 (C.A.), refd to. [para. 32].

R. v. Jaw (S.G.) (2008), 432 A.R. 297; 424 W.A.C. 297; 2008 NUCA 2, refd to. [para. 32].

R. v. Terceira (J.) (1998), 107 O.A.C. 15; 38 O.R.(3d) 175 (C.A.), refd to. [para. 39].

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. Vuradin (F.) (2013), 446 N.R. 53; 553 A.R. 1; 583 W.A.C. 1; 2013 SCC 38, refd to. [para. 58].

R. v. Cinous (J.), [2002] 2 S.C.R. 3; 285 N.R. 1; 2002 SCC 29, refd to. [para. 60].

R. v. Pappas (B.J.) (2013), 450 N.R. 37; 561 A.R. 228; 594 W.A.C. 228; 2013 SCC 56, refd to. [para. 61].

R. v. Cairney (M.J.) (2013), 450 N.R. 1; 561 A.R. 192; 594 W.A.C. 192; 2013 SCC 55, refd to. [para. 61].

R. v. Mousseau (E.L.) (2007), 212 Man.R.(2d) 308; 389 W.A.C. 308; 2007 MBCA 5, refd to. [para. 62].

R. v. Fontaine (J.), [2004] 1 S.C.R. 702; 318 N.R. 371; 2004 SCC 27, refd to. [para. 63].

R. v. Buzizi (D.) (2013), 444 N.R. 30; 2013 SCC 27, refd to. [para. 64].

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. 65].

R. v. Tehrankari (A.) (2012), 298 O.A.C. 252; 2012 ONCA 718, leave to appeal denied [2012] S.C.C.A. No. 547, refd to. [para. 66].

R. v. McMillan (1975), 7 O.R.(2d) 750 (C.A.), affd. [1977] 2 S.C.R. 824; 15 N.R. 20, refd to. [para. 72].

R. v. Handy (J.), [2002] 2 S.C.R. 908; 290 N.R. 1; 160 O.A.C. 201; 2002 SCC 56, refd to. [para. 73].

R. v. Seaboyer and Gayme, [1991] 2 S.C.R. 577; 128 N.R. 81; 48 O.A.C. 81, refd to. [para. 73].

R. v. Pollock (R.) (2004), 188 O.A.C. 37 (C.A.), leave to appeal denied (2005), 337 N.R. 191; 204 O.A.C. 399 (S.C.C.), refd to. [para. 75].

R. v. Kendall and McKay (1987), 20 O.A.C. 134 (C.A.), refd to. [para. 76].

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181, refd to. [para. 82].

R. v. McBirnie (P.S.) (1992), 59 O.A.C. 1 (C.A.), refd to. [para. 83].

R. v. J.A., [2011] 1 S.C.R. 628; 413 N.R. 1; 275 O.A.C. 6; 2011 SCC 17, refd to. [para. 83].

R. v. Henderson (W.E.) (2012), 284 Man.R.(2d) 164; 555 W.A.C. 164; 2012 MBCA 93, refd to. [para. 85].

R. v. Pan (R.W.); R. v. Sawyer (B.), [2001] 2 S.C.R. 344; 270 N.R. 317; 147 O.A.C. 1; 2001 SCC 42, refd to. [para. 94].

R. v. Sarrazin (R.) et al., [2011] 3 S.C.R. 505; 422 N.R. 214; 284 O.A.C. 170; 2011 SCC 54, refd to. [para. 94].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 649 [para. 93].

Jury Act, R.S.M. 1987, c. J-30; C.C.S.M., c. J-30, sect. 49 [para. 93].

Authors and Works Noticed:

Bryant, Alan W., Lederman, Sidney N., and Fuerst, Michelle K., Sopinka, Lederman & Bryant: The Law of Evidence in Canada (3rd Ed. 2009), para. 5.44 [para. 63].

Counsel:

S.B. Simmonds, V.L. Gama and D.G. Tan, for the appellant;

E.A. Thomson and A.Y. Kotler, for the respondent.

This appeal was heard on April 16 and 17, 2013, before Chartier, C.J.M., Monnin and Hamilton, JJ.A., of the Manitoba Court of Appeal. The following judgment of the Court of Appeal was delivered by Monnin, J.A., on October 30, 2013.