R. v. Griffin (J.) et al., (2009) 388 N.R. 334 (SCC)

• Judge: Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein, JJ.
• Court: Supreme Court (Canada)
• Case Date: June 18, 2009
• Jurisdiction: Canada (Federal)
• Citations: (2009), 388 N.R. 334 (SCC);2009 SCC 28;244 CCC (3d) 289;[2009] 2 SCR 42;388 NR 334;307 DLR (4th) 577;67 CR (6th) 1;[2009] SCJ No 28 (QL)

R. v. Griffin (J.) (2009), 388 N.R. 334 (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: [2009] N.R. TBEd. JN.013

Her Majesty The Queen (appellant) v. John Griffin (respondent)

(32649)

Her Majesty The Queen (appellant) v. Earl Roy Harris (respondent)

(32650; 2009 SCC 28; 2009 CSC 28)

Indexed As: R. v. Griffin (J.) et al.

Supreme Court of Canada

Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein, JJ.

June 18, 2009.

Summary:

The accused were jointly tried for first degree murder by a judge and jury. Griffin was convicted of first degree murder. Harris was convicted of the included offence of manslaughter. Both accused appealed their convictions.

The Quebec Court of Appeal, Côté, J.A., dissenting, in judgments reported 2008 QCCA 824 and 2008 QCCA 825, allowed the appeals and ordered a new trial. The court held that the trial judge misdirected the jury on the application of the burden of proof to circumstantial evidence and on the permissible use of a statement made by the deceased shortly before he died. The Crown appealed.

The Supreme Court of Canada, LeBel and Fish, JJ., dissenting, allowed the appeals on both grounds and restored the convictions. There was no error in instructing the jury on the burden of proof as applied to circumstantial evidence. The statement made by the victim before he died was properly admitted and the trial judge's jury charge on the limited use of that statement was satisfactory.

Criminal Law - Topic 4351

Procedure - Charge or directions - Jury or judge alone - Directions regarding burden of proof and reasonable doubt - A jury asked the trial judge whether a reasonable doubt could be based on feelings or intuition - The trial judge responded no, that whether they found a reasonable doubt or no reasonable doubt "you should individually be in a position to be able to explain your position ... so that you're able as a judge to explain why you are supporting a particular position" - The trial judge then gave examples, such as not believing a particular witness or rejecting certain evidence - The accused argued that telling a jury that they had to be able to explain their point of view and identify specific reasons for their reasonable doubt shifted the burden of proof - The Supreme Court of Canada held that there was no error - The impugned instruction simply cautioned jurors to base their verdict not on feeling or intuition, but on a serious consideration of the evidence - The trial judge did not complicate the jury's task by suggesting that a reasonable doubt was a doubt for which a reason could be supplied - At one point in the charge, the trial judge stressed to the jury that they would "not be called upon to justify your final verdict to anyone" - The trial judge correctly instructed the jury that a reasonable doubt was based on "reason and common sense" and "must logically be based upon the evidence or lack of evidence" - The jury instruction would not have led the jury to apply a standard of proof lower than proof beyond a reasonable doubt - See paragraphs 39 to 47.

Criminal Law - Topic 4358

Procedure - Charge or directions - Jury or judge alone - Directions regarding circumstantial evidence - The victim, Griffin and Harris were involved in the drug trade - The victim owed Griffin a significant drug debt, feared him and was in hiding - Griffin was looking for him - The victim was shot - The victim's girlfriend identified the shooter as Griffin - All other evidence against Griffin and Harris was circumstantial, including cell phone records showing them to be in the area at the time of the shooting - Griffin was convicted of first degree murder - Harris was convicted of manslaughter - The trial judge properly charged the jury that to find guilt on the basis of circumstantial evidence they had to be convinced beyond a reasonable doubt that guilt was the only reasonable inference - However, elsewhere in the jury charge, the trial judge stated that "if there is an equally rational inference" and "if there is a second inference that's as reasonable" the jury could not find guilt on the basis of the circumstantial evidence - An objection to the use of "equally rational inference" led to a recharge that properly stated the burden of proof respecting circumstantial evidence but did not specifically highlight and correct the impugned wording of the prior charge - At issue was whether the use of the words "equally rational" and "as reasonable" detracted from the otherwise proper jury charge by leading jurors to believe that they could acquit only if they found that any innocent inference had to be of equal weight as the inference of guilt - The Supreme Court of Canada stated that "read in context ... it becomes apparent that the words 'equally rational' and 'as reasonable' were not used as measures of the comparative value or weight of a non-guilty inference, but, as the judge himself explained to counsel, to describe the quality of any inference, guilty or otherwise, which might be drawn from the circumstantial evidence." - The accused conceded that the clarifying recharge was correct - The court rejected the submission that "this final charge could not have rectified any possible confusion that may have resulted from the use of the impugned language because the trial judge failed to refer back to the problematic phrases employed in the earlier instructions." - The court stated that "it was sufficient that the trial judge called the jury's attention to his last instruction on circumstantial evidence, and then corrected the potentially ambiguous 'equally rational inference' language with a clear and complete direction" - See paragraphs 27 to 38.

Criminal Law - Topic 4379.2

Procedure - Charge or directions - Jury or judge alone - Directions regarding evidence admissible for limited purpose - The victim, Griffin and Harris were involved in the drug trade - The victim owed Griffin significant monies and was hiding from Griffin for fear of harm - Griffin unrelentingly pursued him and allegedly threatened the victim's friend into divulging his location and arranging a meeting - The victim was shot to death - The victim's girlfriend identified Griffin as the shooter - All other evidence was circumstantial - The trial judge admitted into evidence the victim's statement to his girlfriend, made two weeks before his death, that "if anything happens to me it's your cousin's family", which was understood to be Griffin - The Supreme Court of Canada held that the judge did not err in admitting the evidence under the "state of mind" exception to the hearsay rule for the limited purpose of showing that the victim feared Griffin - Declarations of present state of mind were admissible where the declarant's state of mind was relevant and the statement was made naturally, in non-suspicious circumstances - A victim's state of mind might be relevant to an accused's motive - Evidence of motive was relevant and admissible particularly, on the issues of identity and intention, where the evidence was purely circumstantial - The evidence that Griffin had a motive to harm the victim was overwhelming - The victim's stated fear of Griffin was evidence that tended to rebut the accused's assertion that some other drug debt creditor might have had a motive to kill the victim - The court stated that "the trial judge correctly appreciated that the deceased's mental state was highly probative of the issue of motive and that it took on additional probative value in that it tended to rebut the specific defence proposition that someone other than Griffin may have had a motive to kill [the deceased]" - There was no error in finding that the statement's probative value outweighed its prejudicial effect and an appropriate limiting instruction was given to the jury on its use of the statement - The jury was properly instructed not to use the statement to prove Griffin's state of mind or to conclude that Griffin intended to harm the victim - The instruction accurately set out the purpose for which the statement was admitted - The court stated that "there was nothing particularly complex about the limited use the jury could make of this evidence. That a statement made by [the victim], about the person he feared at the time, could only go to establishing his state of mind and not that of Griffin or anyone else, is at its core a proposition that entirely accords with common sense, the very attribute which gives the jury its strength" - See paragraphs 48 to 75.

Criminal Law - Topic 4391

Procedure - Charge or directions - Jury or judge alone - Redirection or further direction - [See Criminal Law - Topic 4358 ].

Criminal Law - Topic 5210

Evidence and witnesses - Admissibility and relevancy - Statements prejudicial to the accused - [See Criminal Law - Topic 4379.2 ].

Evidence - Topic 306

Circumstantial evidence - Rule in Hodge's Case - Whether evidence consistent with other rational conclusions - [See Criminal Law - Topic 4358 ].

Evidence - Topic 1631.1

Hearsay rule - Hearsay rule exceptions and exclusions - Statements of deceased persons - State of mind - [See Criminal Law - Topic 4379.2 ].

Cases Noticed:

R. v. Cooper, [1978] 1 S.C.R. 860; 14 N.R. 181, refd to. [para. 33].

R. v. Fleet (M.) (1997), 104 O.A.C. 394; 120 C.C.C.(3d) 457 (C.A.), refd to. [para. 33].

R. v. Guiboche (G.F.) (2004), 180 Man.R.(2d) 276; 310 W.A.C. 276; 183 C.C.C.(3d) 361; 2004 MBCA 16, refd to. [para. 33].

R. v. Tombran (T.) (2000), 129 O.A.C. 51; 142 C.C.C.(3d) 380 (C.A.), refd to. [para. 33].

R. v. Lifchus (W.), [1997] 3 S.C.R. 320; 216 N.R. 215; 118 Man.R.(2d) 218; 149 W.A.C. 218, refd to. [para. 43].

R. v. Naglik, [1993] 3 S.C.R. 122; 157 N.R. 161; 65 O.A.C. 161, refd to. [para. 45].

R. v. W.D.S., [1994] 3 S.C.R. 521; 171 N.R. 360; 157 A.R. 321; 77 W.A.C. 321, refd to. [para. 45].

R. v. Brydon (J.L.), [1995] 4 S.C.R. 253; 188 N.R. 321; 65 B.C.A.C. 81; 106 W.A.C. 81, refd to. [para. 45].

R. v. Seymour (J.), [1996] 2 S.C.R. 252; 197 N.R. 81; 76 B.C.A.C. 1; 125 W.A.C. 1, refd to. [para. 45].

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

R. v. Starr (R.D.), [2000] 2 S.C.R. 144; 258 N.R. 250; 148 Man.R.(2d) 161; 224 W.A.C. 161; 2000 SCC 40, refd to. [para. 55].

R. v. R.P. (1990), 58 C.C.C.(3d) 334 (Ont. H.C.), refd to. [para. 55].

R. v. Lewis, [1979] 2 S.C.R. 821; 27 N.R. 451, refd to. [para. 60].

R. v. Assoun (G.E.) (2006), 244 N.S.R.(2d) 96; 774 A.P.R. 96; 2006 NSCA 47, refd to. [para. 61].

R. v. Foreman (R.E.) (2002), 166 O.A.C. 60; 6 C.R.(6th) 201 (C.A.), refd to. [para. 62].

R. v. Pasqualino (C.) (2008), 239 O.A.C. 59; 233 C.C.C.(3d) 319; 2008 ONCA 554, refd to. [para. 63].

R. v. Lemky (T.R.) (1992), 17 B.C.A.C. 71; 29 W.A.C. 71 (C.A.), affd. [1996] 1 S.C.R. 757; 194 N.R. 1; 73 B.C.A.C. 1; 120 W.A.C. 1, refd to. [para. 63].

R. v. Blackman (L.), [2008] 2 S.C.R. 298; 376 N.R. 265; 239 O.A.C. 368; 2008 SCC 37, refd to. [para. 66].

R. v. Couture (D.R.), [2007] 2 S.C.R. 517; 364 N.R. 1; 244 B.C.A.C. 1; 403 W.A.C. 1; 2007 SCC 28, refd to. [para. 66].

R. v. Corbett, [1988] 1 S.C.R. 670; 85 N.R. 81, refd to. [para. 72].

R. v. Moon, [1969] 3 All E.R. 803 (C.A.), refd to. [para. 83].

R. v. Seguin (1979), 45 C.C.C.(2d) 498 (Ont. C.A.), refd to. [para. 83].

R. v. Boyd (J.D.) (1999), 118 O.A.C. 85 (C.A.), refd to. [para. 83].

R. v. Carpenter (J.D.) (1993), 65 O.A.C. 220; 14 O.R.(3d) 641 (C.A.), refd to. [para. 83].

R. v. Cavanaugh (1976), 15 O.R.(2d) 173 (C.A.), refd to. [para. 83].

Shapiro v. Wilkinson, [1943] O.R. 806 (C.A.), refd to. [para. 83].

R. v. Russell (M.E.), [2000] 2 S.C.R. 731; 261 N.R. 339; 266 A.R. 379; 228 W.A.C. 379; 2000 SCC 55, refd to. [para. 85].

R. v. Beauchamp (A.), [2000] 2 S.C.R. 720; 262 N.R. 119; 2000 SCC 54, refd to. [para. 85].

R. v. Gagnon (L.), [2006] 1 S.C.R. 621; 347 N.R. 355; 2006 SCC 17, refd to. [para. 86].

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. 89].

R. v. Mapara (S.) et al., [2005] 1 S.C.R. 358; 332 N.R. 244; 211 B.C.A.C. 1; 349 W.A.C. 1; 2005 SCC 23, refd to. [para. 89].

R. v. Khan, [1990] 2 S.C.R. 531; 113 N.R. 53; 41 O.A.C. 353, refd to. [para. 89].

R. v. Hawkins (K.R.) and Morin (C.), [1996] 3 S.C.R. 1043; 204 N.R. 241; 96 O.A.C. 81, refd to. [para. 89].

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. 89].

R. v. D.D., [2000] 2 S.C.R. 275; 259 N.R. 156; 136 O.A.C. 201; 2000 SCC 43, refd to. [para. 98].

R. v. Cowell, [2002] O.J. No. 4783 (Sup. Ct.), refd to. [para. 99].

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. 108].

R. v. D.W., [1991] 1 S.C.R. 742; 122 N.R. 277; 46 O.A.C. 352, refd to. [para. 108].

R. v. Spence (S.A.), [2005] 3 S.C.R. 458; 342 N.R. 126; 342 O.A.C. 150; 202 C.C.C.(3d) 1; 2005 SCC 71, refd to. [para. 108].

Shepard v. United States of America (1993), 290 U.S. 96, refd to. [para. 108].

R. v. Khan (M.A.), [2001] 3 S.C.R. 823; 279 N.R. 79; 160 Man.R.(2d) 161; 262 W.A.C. 161; 2001 SCC 86, refd to. [para. 110].

Authors and Works Noticed:

Canada, Law Reform Commission, Report on Evidence (1975), p. 69 [para. 95].

Paciocco, David M., and Stuesser, Lee, The Law of Evidence (5th Ed. 2008), p. 135 [para. 98].

Sopinka, John, Lederman, Sidney N., and Bryant, Alan W., The Law of Evidence in Canada (2nd Ed. 1999), p. 287, § 6.292 [para. 103].

Counsel:

Thierry Nadon and Geneviève Dagenais, for the appellant;

Louis Belleau, for the respondent, Griffin;

No one appeared for the respondent, Harris.

Solicitors of Record:

Poursuites criminelles et pénales du Québec, Montreal, Quebec, for the appellant;

Filteau Belleau, Montreal, Quebec, for the respondent, Griffin.

These appeals were heard on November 14, 2008, before Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein, JJ., of the Supreme Court of Canada.

On June 18, 2009, the judgment of the Supreme Court of Canada was delivered in both official languages and the following opinions were filed:

Charron, J. (Binnie, Deschamps, Abella and Rothstein, JJ., concurring) - see paragraphs 1 to 75;

LeBel and Fish, JJ., dissenting - see paragraphs 76 to 111.