Did the church minister really murder his wife? 

                                                           

This is a very long article but it is most informative because you will have a better understanding of the concept of First degree murder, Second degree murder and manslaughter as those charges apply in Canada.  You will also learn how the trial judge tried to screw up the trial of the accused so that the jury would convict the accused man.

And now, I will give you this very interesting case.

Karissa Grandine drowned in her bathtub on October 17, 2011. She was 20 weeks pregnant at the time. Her husband, Philip Grandine, was charged with first degree murder. Following a trial before a judge and jury, he was convicted of manslaughter and sentenced to 15 years’ imprisonment, less four months’ credit for pre-sentence custody.

He appealed his conviction for manslaughter and sought leave to appeal his sentence.

His lawyer advanced one ground of appeal in respect of Grandine’s conviction to wit; the trial judge misapprehended a question posed by the jury following the charge, with the result that his answer left the jury with an alternative route of liability not previously raised during the trial. The appellant (Grandine) submitted that this resulted in an unfair trial.

As to his sentence appeal, the appellant submitted that the trial judge erred in principle and made findings of fact for the purposes of sentencing that were inconsistent with the jury’s verdict or were otherwise unreasonable.

Only a brief review of the evidence is required for purposes of this particular appeal. At the time of her death, Ms. Grandine had been married to the appellant for three years. They lived in a home in Scarborough, Ontario. Ms. Grandine worked as an adjuster for an insurance company. The appellant worked as an associate nurse manager at a residential and long-term care facility; he had also served part-time as the senior pastor at a church in Toronto.

In the late spring or early summer of 2011, Ms. Grandine learned she was pregnant. A few months later, in August 2011, she learned that her husband had started an affair with Ms. Florentino, a parishioner at his church,. The discovery of the affair led her husband to resign as the church’s senior pastor. The Grandines attempted to reconcile through marriage counselling conducted by another pastor.

During the counselling, the appellant revealed he was interested in pornography. The pastor conducting the marriage counselling insisted that a filtering program be installed on the couple’s home computer to block the appellant’s access to pornography. The Grandines agreed, and they installed a filtering program called “K-9”; Ms. Grandine controlled the program’s password.

The appellant’s affair had been marked by a high volume of text messages between Ms. Florentino and himself. Those texts stopped during September and early October, 2011. However, cell phone records filed at the trial disclosed the texting resumed in early October.

On the evening of Thursday, October 13, 2011 the couple held another marriage counselling session with their pastor. The appellant appeared drowsy and unwell. After the session, Ms. Grandine became ill, experiencing symptoms such as fatigue, confusion, loss of coordination, and vomiting.

Ms. Grandine stayed home from work the next day, Friday. That evening, the appellant took his wife to the emergency room at St. Michael’s Hospital. (That was the same hospital I was born in that same month 78 years earlier) The attending physicians were unable to make a diagnosis, but Ms. Grandine’s condition improved. She stayed the night at the hospital.

Blood samples taken at that time were re-tested following Ms. Grandine’s death a few days later. They disclosed the presence of the drug lorazepam in her system. Lorazepam is an anti-anxiety medication and can act as a sedative. Ms. Grandine had not been prescribed lorazepam.

While his wife was in the hospital, the appellant texted Ms. Florentino. He left the hospital in the early morning hours of Saturday, October 15, 2011 and went to see Ms. Florentino.

Ms. Grandine went to work on Monday, October 17, 2011. At 10:49 p.m. that evening, the appellant placed a 911 call. He said he had found his wife submerged in the bathtub at their home.

There was conflicting evidence about the events of that evening. The appellant did not testify at the trial. However, in a statement to the police admitted at trial, the appellant recounted that: he had picked up his wife at the train station after work; they had dinner; watched a program on the internet; and then had sex. The appellant told the police he left the house at about 9:45 p.m. for a run. When he left the house, his wife was in the washroom and the door was closed. He did not know whether his wife was in the bathtub at that time. When he returned from his run around 10:45 p.m., he found his wife drowned in the bathtub.

On the other hand, cell phone records showed the appellant had spoken to Ms. Florentino for approximately 30 minutes between 10:15 and 10:46 p.m., just prior to the 911 call. As well, a subsequent forensic search of the Grandine’s home computer showed someone had disabled the K-9 pornography filter shortly before the 911 call was placed.

Blood tests taken at Ms. Grandine’s autopsy showed a significant amount of lorazepam in her system, although the amount was in a therapeutic range. No evidence was led at trial that Ms. Grandine had ever been prescribed lorazepam. Evidence was led that the appellant exercised some supervision over medications given at the long-term care home where he worked, including lorazepam.  There was no evidence any lorazepam had gone missing at the long-term care home.

The appellant’s lawyer submitted that the trial judge’s answer to a question posed by the jury during their deliberations introduced a new theory of liability incompatible with the way the trial had proceeded to that point, thereby compromising trial fairness.

To examine that submission requires first reviewing the theories of liability advanced during the trial and recounted in the charge, and then assessing the nature of the trial judge’s answer to the jury and its effect on trial fairness.

From the start of the trial, the Crown (prosecutor) advanced the position that the appellant had sedated Ms. Grandine with lorazepam and, by some means, caused her to drown in the bathtub. In her opening, Crown counsel stated to the jury; “The Crown will be asking you to find that Philip Grandine was responsible for the sedation and drowning death of Karissa Grandine.” unquote

During discussions with the trial judge prior to the closings, Crown counsel indicated that she planned to leave with the jury several different possibilities about how the appellant drowned Ms. Grandine. After sedating Ms. Grandine with lorazepam, the appellant could have: (i) assisted a “very, very out-of-it person” to the bathtub; (ii) lifted her out of bed and placed her in the bathtub; or (iii) “somehow ensuring that while she’s on her feet, he’s getting her into the tub.” According to the Crown, the appellant then allowed her to slip under the water, held her head under the water, or set her up to fall in the bathtub.

At the pre-charge conference on November 25, 2014 Crown counsel stated: “The Crown further contends that however she came to be in the bath, the accused either held the deceased’s head under the water to drown her or simply waited for the inevitable outcome of a semi-conscious woman in a filled bathtub.” unquote

In her closing, she said that Crown counsel explained to the jury the Crown’s theory about how the appellant killed his wife:

“Now Mr. Grandine could conduct the actual performance on the Monday and to not only sedate his wife, but to ensure that she made it to the bathtub, either putting her into it himself, assisting her into it, or coaxing a confused and out-of-it drugged, sedated Mrs. Grandine into the tub and then deliberately drowning her or deliberately enabling her to simply lie back and let the water engulf her as she did so, as any of these methods would achieve the same result. Holding her gently under, poking her not as he told the police that he did, but to push her non-resistant form under the water, or simply allowing an unconscious Mrs. Grandine to lay back in that full bathtub and let the water work its way into her lungs and drown her.” unquote

Defence counsel, disclaiming any involvement by the appellant in the events surrounding Ms. Grandine’s drowning, placed before the jury two alternative theories about how she drowned, both based on Ms. Grandine self-medicating herself with lorazepam. First, her death was an accident: having taken the drug, a drowsy Ms. Grandine slipped and drowned when she tried to take a bath. Second, her drowning was a suicide. In either case, the defence contended the appellant was not at home when Ms. Grandine drowned, but was out running.

During the ensuing discussions with the prosecutor and the defense counsel about the charge, the trial judge explained he was trying to focus the jury by saying to them, “What really matters here is whether you are satisfied or not that this man put his wife in a bathtub full of water having drugged her.” unquote The trial judge also commented that whether the appellant did or did not administer the drug which obviously was the central issue of this case.

The trial judge in his charged to the jury explained the elements of first degree murder. Before beginning his instructions on the elements of first degree murder, he explained that as part of proving a charge of murder, the Crown must prove that an accused caused the death of the deceased by means of an unlawful act. The trial judge identified section 245 of the Criminal Code,  and  the administration of a noxious thing as the possible basis for the jury to find the appellant had caused Ms. Grandine’s death by means of an unlawful act.

He also stated that section 245 required the Crown to prove beyond a reasonable doubt. He said that there are two essential elements: (i) that the accused administered a thing to his wife; and (ii) that the thing was noxious.” The trial judge then went on to address the elements of first degree murder, which he identified as: Causation; “Did Mr. Grandine cause death by means of an unlawful act with intent, planning and deliberation. Any one of these three requirements is needed to prove the crime of first degree murder.

The trial judge noted there was no direct evidence about how Ms. Grandine ingested lorazepam or how she came to be in the bathtub. He recited the defense’s position that the evidence created a reasonable doubt Ms. Grandine’s death was the result of either an accident or suicide. Turning to the position of the Crown, the trial judge then stated:

“The Crown asks you to conclude that the accused surreptitiously drugged the deceased and then either he saw to it that she got in the bathtub under her own power, so to speak, or he put her in the bath after she was semi-conscious or unconscious. The Crown further contends that however she came to be in the bathtub, the accused either waited for what he knew would inevitably happen, namely, that she would drown, or he held the deceased’s head under the water to drown her.” unquote

I should point out to my readers that both the defense lawyer and the prosecutor were speculating since there was no evidence submitted to the jury that the Appellant actually was or not in the house at that time.

He then instructed the jury by saying to them, “If any other reasonable factual scenario is apparent to you on the evidence, you are free to consider and, in turn, act on it. I cannot see any, but it is for you to say.” unquote

The trial judge provided the jury with copies of his charge for reference during their deliberations. I don’t know if all judges in jury trials do that but it is a very good practice.

And now, I will give you the decision of the Court of Appeal as they considered if the trial judge was right in what he did when dealing with this case. But first—

It is not always a crime to cause another person’s death, as for example, where a person causes the death of another human being acting in self defense. There was no evidence of self defense and the jury could not consider that form of defense in this case. I mention it merely to illustrate that causing the death of another human being is not always unlawful.

It is, on the other hand, a crime to cause the death of another person by means of an unlawful act. If you were to be satisfied beyond a reasonable doubt that the accused administered a noxious thing to his wife, then, as I have earlier explained, that would amount to an offence, contrary to section 245 of the Criminal Code, and, by definition, as it were, an unlawful act.

Try to imagine that you are one of the members of the jury.

The central issue for you to determine here is not whether the conduct the Crown alleges amounts to an unlawful act. Rather, the issue is whether you are satisfied beyond a reasonable doubt that Mr. Grandine engaged in this conduct. So focus on the conduct. Are you satisfied beyond a reasonable doubt that the accused drugged his wife? And, if so, are you satisfied beyond a reasonable doubt that, having done so, he then caused her to get into (or put her in) the bath tub, where she then drowned?

Speaking generally, not every unlawful act will suffice as a basis upon which to find an accused guilty of manslaughter. Rather, to suffice as a basis upon which to find an accused guilty of manslaughter, the act in question must not only be unlawful, it must also be inherently dangerous; i.e.: the act must involve an objectively foreseeable risk of bodily harm that is more than merely transient or trifling. In other words, it must be obvious to a reasonable person that the unlawful act might cause bodily harm to the victim of the act of someone else.

Turning to this case, I should think that you would have no difficulty in concluding that to surreptitiously administer a dose of a prescription medicine to an unwitting person (knowing that the drug has certain side effects, including sedation, reduced muscle control and possible confusion) and to then cause the person to get into (or put the person into) a bath tub full of water, is an inherently dangerous act involving a risk of bodily harm or death.

If you are not convinced that the accused surreptitiously administered lorazepam to the deceased, and then caused her to get in the bath tub (or put her in the tub), then you must concluded that he was not guilty.

If on the other hand you are satisfied beyond a reasonable doubt that the accused administered lorazepam to the deceased without her knowledge, knowing that it would sedate her, and then caused her to get in the tub (or put her in the bath tub), thereby committing an unlawful act (that was inherently dangerous and had an objectively foreseeable risk of bodily harm that was more than merely transient or trifling), then, the first two essential elements will have been proven and you must conclude that the accused was guilty of at least manslaughter. But your deliberations would not be over. You would be obliged, at that point, to go on to consider the third element of murder, namely, intent.

During the jury’s deliberation, they sent a note to the judge which said, “Is knowledge of Karissa Grandine taking a bath and not stopping her equivalent to causing her to get into the tub knowing she is under the influence of lorazepam?”

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The trial judge started his first draft answer by setting out his understanding of the jury’s question: “It presupposes that Karissa Grandine got in the bathtub of her own volition, without any encouragement or coaxing by the accused and without any physical involvement on his part.”

The draft answer of the judge then stated that unless the jury was satisfied the appellant administered lorazepam to his wife, then there is no proof that he has caused her death by means of an unlawful act and his failure to stop her from getting in the bath would not support the conclusion that he caused her death.” unquote   The draft continued by stating;

“If the accused, knowing that he had given his wife the lorazepam without her knowledge, did nothing to prevent her from getting into the bath tub, then, it would be open to you to decide that he knew that she would be in danger of drowning if she got in the tub. If you are satisfied beyond a reasonable doubt that a reasonable (thinking) person would know that Karissa Grandine would be in danger as a result of the situation the accused had created by giving her the drug without her knowledge, then it is open to you to decide that, by failing to prevent the dangerous situation that would exist if she got in the tub, the accused caused her death by the combination of having given her the drug and then having failed to prevent her from putting herself into a situation that was inherently dangerous and carried with it a risk of bodily harm or death.” unquote   The draft concluded:

“If you are satisfied that the accused created the danger by the unlawful act of administering a noxious thing in combination with his failure to prevent Karissa Grandine from exposing herself to danger, it would be open to you to conclude that the accused caused Karissa Grandine’s death by means of an unlawful act. If you were to come to that conclusion, this second essential element of murder will have been proven.” unquote

The prosecutor agreed with the proposed answer. Defence counsel expressed a concern that it did not capture fully the earlier portion of the charge dealing with the elements of section. 245. The trial judge offered to re-read the earlier portion as part of the answer; defence counsel did not think that necessary. The trial judge adjourned to enable defence counsel to reconsider his position. He then instructed the jury to stop deliberating.

On resuming later that evening, the trial judge provided counsel with a second draft answer. It contained several changes to para. 5 of the first draft, as underlined below:

“If the accused, knowing that he had given his wife the lorazepam without her knowledge, did nothing to prevent her from getting into the bath tub, then, it would be open to you to decide that a reasonable person in his circumstances would have known that she would be in danger of drowning if she got in the tub. If you are satisfied beyond a reasonable doubt that a reasonable person in the position of the accused would have known that Karissa Grandine would be in danger as a result of the situation he had created by giving her the drug without her knowledge, then, having created the potentially dangerous situation by giving her the lorazepam, the accused was under a legal duty to prevent her from coming to harm. It is open to you to decide that, by failing to prevent the dangerous situation that would exist if she got in the tub, the accused caused her death by the combination of his act of having given her the drug and his omission of having failed to prevent her from putting herself into a situation that was inherently dangerous and carried with it a risk of bodily harm or death.” unquote

 As the trial judge stated to counsel, the principal change was the addition of “words that he would be under a legal duty to prevent – having created the situation, he would be under a legal duty to prevent her from coming to harm.” unquote

Defence counsel raised two matters. First, he proposed the trial judge re-arrange the language in the revised para. 5 to stress the objective, reasonable person element of the mens rea. (criminal intent) Second, the defence counsel requested a minor change to the language on causation found in another part of the charge. Defence counsel did not object to the concept of a duty to prevent harm as set out in the first two drafts of the answer.

The trial judge adjourned for the night; stating that he would give the matter further thought and prepare a third draft.

When court re-convened the following morning, the trial judge presented counsel with a third draft answer. It began by repeating the same understanding of the jury’s question found in the first two drafts, but the balance of the draft contained three major changes.

First, the draft omitted the paragraphs in the earlier drafts instructing the jury they had to find the accused administered a noxious thing to his wife in order to conclude he had committed an unlawful act.

Second, the draft added a further basis upon which the jury could find the appellant had committed an unlawful act as per section. 215 of the Criminal Code, which makes it an offence for a person, under a legal duty to provide necessaries of life to his spouse, to fail, without lawful excuse, to perform the duty and endanger the life of the person to whom the duty is owed. Paragraph 2 of the draft answer specifically underscored  that a new unlawful act was being introduced. The judge said in his new instructions to the jury;

“The answer to this question involves discussions of another criminal offence that may suffice as an unlawful act forming the basis upon which you may, in turn, decide that the accused caused his wife’s death. Whether it does or does not suffice is for you to say.” unquote

The judge didn’t mention in his new instructions what that new criminal offence would be. It could be criminal negligence which can be punishable with life in prison.  

 Unfortunately, the draft answer reviewed in detail the elements of section 215. It stated by failing to provide the necessaries of life would include failing to protect Ms. Grandine from the danger of drowning. The draft read to the jury said, “On the element of the absence of any lawful excuse, there is is no evidence before you of any excuse, lawful or otherwise, why the accused failed to provide the necessaries of life. In the absence of any evidence on the point, I cannot see how you could find a lawful excuse, but it is for you to say.” unquote

Keep in mind that the accused stated in court that he wasn’t in his home when his wife drowned in their bathtub. If that was so, he couldn’t have provided the necessaries of life during the time he wasn’t at home and she was drowning. 

The draft had introduced an express statement that the appellant could be culpable even if he did not administer lorazepam to his wife. That would only apply if he was in the house at the time his wife drowned but he claimed he wasn’t in the house at that time. So why would he be liable for her death?

Bear in mind that the duty I have been discussing applies to the accused even if he did not administer the lorazepam to his wife himself.  However, the jury would have to be satisfied that he actually knew that she had enough lorazepam in her system before he left the home that she would be putting herself in danger by getting into the tub. If that is so, then he would have failed in his duty to protect her.  However, if he didn’t know that she had taken the drug before she went into the tub, then he would have no duty placed on him to protect her during that time when she rook the drug before  she got into the tub. 

Far too many innocent persons have been convicted and sent to prison or sentenced to death based entirely on speculation by their juries or their judges. Convictions should be based solely on the facts that are presented to them that they choose  to believe.

However, if the accused actually knew, irrespective indeed of whether he administered the lorazepam to her, that she was full of lorazepam to such an extent that it compromised her ability to protect herself, then he was under a duty to protect her from harm.  And if he chose to ignore that duty after being apprised of the facts that she had taken the drug,  then he would have failed in his duty to protect her and as such, he could be found guilty of manslaughter.

The trial judge said to the jury. “If you are satisfied beyond a reasonable doubt that a reasonable person would have known that Karissa Grandine would be in danger of drowning as a result of having enough lorazepam in her system that she was likely to experience one or more of the side effects it is known to cause and that the accused’s failure to prevent her from getting in the tub carried with it an objectively foreseeable risk of bodily harm or death, then you are entitled to conclude that causation has been established by this means.

When the judge made that statement to the jury, he in effect led them to believe that the accused probably knew that that his wife had the drug in her system and would be in danger if she entered the bathtub. That is an invitation by the judge to the jury to convict the accused of manslaughter based on pure speculation.

The jury retired. Later that afternoon, they returned with a verdict finding the appellant guilty of manslaughter.

Jury questions indicate that some jurors or all of them need guidance when it comes to interpreting the law. They are having a problem with an issue in the case. A question usually concerns an important point in the jury’s reasoning, identifying an issue on which the jury requires direction from the trial judge. 

Answers to jury questions are extremely important since they can have advice that is far exceeding instructions given in the main charge by the trial judge. The practical reality is that such answers will be given special emphasis by jurors when they are determining the guilt or innocence of an accused person.

  Where, as in the present case, the jury’s question signals that it requires assistance in dealing with the evidence, the trial judge may well find it necessary to instruct the jury in a manner that does not accord with the theory advanced by either the prosecutor or defence counsel at trial.

A trial judge may do this because the jury is not bound by the theories of the prosecutor or defence when considering the evidence. While the prosecutor is generally bound to prove the formal particulars of the offence charged, it is not bound to prove the theory that it advances in order to secure a conviction. Rather, a conviction is based on proof of the necessary factual elements of the offence. Accordingly, there is no general proposition that once the prosecutor presents a particular theory of a case, it would be unfairly prejudicial to the accused to allow the trier to convict on a different theory.

However, trial fairness concerns may intervene and foreclose consideration of an alternative basis of liability inconsistent with the way the parties conducted their respective cases.

Where the trial judge instructs the jury on a material point in a manner that is not in accord with the position advanced by either party, a question may arise whether the instruction to the jury affected the fairness of the trial. Trial fairness concerns will be greater when the instruction relates to a theory of liability not previously advanced by the Crown.

When that occurs, the issue becomes whether the accused, in the circumstances of the case, was able to present a full and fair defence. Whether a trial judge's instruction on an alternative theory of liability had an adverse impact on trial fairness can only be determined on a case-by-case basis.

Many years ago, a newspaper man in Ontario was charged with disobeying a police officer. The police officer testified that he ordered the man from the scene of a fire because of his concern that a propane tank nearby might explode. At his trial, the judge said that since propane was an explosive substance, the officer had the right to remove the man from the area. The man’s lawyer quoted an American case that stated that just because propane can explode, it is not officially classed as an explosive substance since it is created to burn, not explode. The judge in that case said he wasn’t interested in American cases. He was wrong and should have kept his mouth shut.  He convicted the man and gave him a $200 fine. Later, the Attorney General of Ontario said that propane is not an explosive substance.

In this case I am writing about, the appellant’s lawyer submitted that the trial judge’s answer introduced a new theory of liability inconsistent with how the trial had proceeded. The Court of Appeal agreed.

The jury had indicated that their question concerned that part of the charge dealing with whether or not the appellant caused death by means of an unlawful act.

The trial judge had rooted his instructions to the jury as per section 245 of the Criminal Code, with respect to the administration by the appellant of a noxious thing to his wife when he said; “If you are not satisfied that the accused surreptitiously administered lorazepam to the deceased, and then caused her to get in the bath tub (or put her in the tub), then you must find him not guilty. Your deliberations would be over.” That portion of the charge reflected the positions taken during the trial by both parties.

The jury’s question focused just on one aspect of the chain of events leading to Ms. Grandine’s death and that was just how she came to be in the bathtub. The Crown had argued that the appellant, after administering lorazepam to his wife, either lifted her into the tub or somehow coaxed and guided her into the tub.

The transcript of the trial  revealed that both counsel and the trial judge understood the  jury’s question as asking about a third possible factual scenario—whether an unlawful act could include the appellant surreptitiously drugging his wife and then allowing her to take a bath. They asked whether that would be equivalent to causing her to get into the tub knowing she is under the influence of lorazepam?

The appellant’s lawyer submitted to the Court of Appeal that when the question is understood in that way, no new unlawful act had to be introduced for the jury’s consideration. There is merit to that argument because the first two draft answers prepared by the trial judge would have clearly answered the jury’s question in the context of the theory of liability advanced by the Crown to that point in the trial. However, the issue on the appeal is not whether the first or second draft answers would have provided a full and proper answer, but the effect and fairness of the answer actually given to the jury.

The trial judge’s ultimate answer offered the jury a new path to a conviction. Gone was the opening reminder that unless the jury was satisfied the appellant administered lorazepam to his wife without her knowledge, there would be no proof he caused her death by an unlawful act. In its place was an instruction that there was “another criminal offence that may suffice as an unlawful act forming the basis upon which you may, in turn, decide that the accused caused his wife’s death as per, section 215 of the Criminal Code.”  

215. (1) Every one is under a legal duty

 (b) to provide necessaries of life to their spouse or common-law partner; and

(c) to provide necessaries of life to a person under his charge if that person

 (ii) is unable to provide himself with necessaries of life.

In both the third and fourth drafts, the trial judge was prepared to conclude the answer by leaving with the jury an instruction that the section 215 duty applies to the accused even if he did not administer the lorazepam to his wife.” Such an instruction would have marked an explicit departure from the trial judge’s initial charge that the appellant’s culpability depended on a finding that he had administered lorazepam to his wife.

As the trial moved on, the trial judge removed that proposed language from the final answer he gave to the jury. The prosecutor submitted that by so doing, the trial judge’s answer to the jury stayed within the range of the prosecutor’s case that a conviction required finding the appellant had administered lorazepam to Ms. Grandine.

The lead judge in the Court of Appeal said, “I cannot accept that submission for three reasons. First, it does not accord with how the trial judge understood his answer.” unquote

During the sentencing submissions a week after the appellant’s conviction, the following exchange took place between defence counsel and the court.”

“Your Honour, the accused was further charged on a different predicate offence, that being the failure to provide necessities of life. Going through the charge, effectively, in that circumstance, Your Honour removed the question of administration (of the drug)  from the jury, in the sense that they could find the predicate offence without a determination as to whether or not my client administered the drugs, or the lorazepam in this case, to be more accurate. In doing so, the jury then had a path to manslaughter, if I can put it that way, that didn’t require a finding of administration.” unquote

In the judge’s reply, he said, “Well, that is right, but the point is that when the facts are ambivalent, I am entitled for the purposes of sentencing as the 13^th juror as it were, to come to my own conclusions, provided that the conclusions are not inconsistent with any conclusion that is implicit in the jury’s verdict. So, I did not say anything to them, as you correctly point out, about who administered it to her. So, their finding that she got in the tub without his assistance does not exclude the possibility that he may have administered it to her, does it? unquote

This exchange reveals the trial judge clearly understood his answer as providing an additional route to culpability without the necessity of finding the appellant had administered lorazepam to his wife. Some members of the jury could well have formed a similar understanding.

Second, the language of the answer uncoupled the appellant’s culpability from the need to find he had administered lorazepam to his wife, a link previously created by the portion of the charge on an unlawful act causing death; a link the trial judge had preserved in the first two drafts of the answer. The ultimate answer added a separate route to culpability based on a different finding which was namely, the appellant knew his wife was under the influence of lorazepam.

Third, the Court of Appeal did not accept the Crown’s submission that the jury could not have reached the question whether the appellant caused his wife’s death by an unlawful act without already concluding that he had drugged his wife. The trial judge’s instructions on causation preceded his instructions on whether the appellant caused his wife’s death by an unlawful act. The penultimate paragraph in the causation instructions required the jury to acquit the appellant if they were not satisfied that the appellant caused the deceased to get into the bath tub or put her in the bath tub. If the jury had been proceeding in the linear fashion that the Crown had suggested, they would never have reached the penultimate paragraph of the causation instructions  by the judge which reads as follows:

“If you are not satisfied that the accused administered lorazepam to the deceased without her knowledge and then caused her to get into the bath tub (or put her in the bath tub) where she then drowned (or he drowned her), you must find Mr. Grandine not guilty. Your deliberations would be over.” unquote

As a result, the trial judge’s answer expanded the basis upon which the appellant could be found guilty of the offence charged. The answer he gave to the jury opened the door for them to find culpability on the part of the accused in a way that was incompatible with the key premise on which the case had been conducted, namely that to convict the appellant, the jury was required to find that he had administered lorazepam to his wife.  Whether any member of the jury went through that new door to reach his or her decision will never be known. Nevertheless, the answer had the real potential to affect the jury’s decision-making process by permitting a new route to culpability.

The appellant’s lawyer submitted that the alternative theory of liability introduced by the trial judge in his answer to the jury’s question in the form of a new unlawful act that did not require his administration of the drug, was not one contemplated by any party to the proceeding nor by the trial judge when he crafted the first two drafts of his answer.

The Court of Appeal members accepted that the submission was an accurate description of the transcript of the trial. It distinguished this case from those relied upon earlier where the alternative basis of liability had been a live issue during the trial.

Did the answer undermine fairness of the trial?

Presiding over a jury trial probably is the most demanding task asked of a judge. Jury trials are imbued with a dynamic volatility that spins off numerous trial management challenges. Jury questions are one such challenge. Presented with a jury question, a trial judge, with the assistance of counsel, must decipher the question, craft a full and proper response, assess the impact of the response on overall trial fairness, and do all of this under the pressure of a relentless time clock. Although a jury’s deliberations can be halted while the trial judge and counsel consider the question, there are practical limits to the amount of time a trial judge can suspend a jury’s deliberations.       

In the present case, the trial judge worked hard to craft a full and proper response, providing counsel with timely, thoughtful draft answers for their review and comment.

However, the third and fourth draft answers, and the answer ultimately presented to the jury, contained material changes from the earlier answers given to the jury. Instead of responding to a question posed by the jury in the context of the unlawful act of administering a noxious thing with an answer framed by the same unlawful act, the trial judge introduced to the jury a new unlawful act on the part of the accused which was; failing to provide the necessaries of life thereby opening a door to finding that the was appellant culpable without needing to determine that he had administered lorazepam to his wife. The answer thereby undermined the crux of the appellant’s defence—namely, that the accused should be acquitted if the jury could not conclude beyond a reasonable doubt that he had administered lorazepam to his wife.    

The appellant’s lawyer submitted that his ability to provide full answer and defence to the charge was compromised by the trial judge failing to afford him an opportunity to respond to the new theory of liability introduced by the answer to the jury’s question. The appellant further argued that since he had no notice of the new theory of liability prior to the close of evidence and counsel’s final addresses to the jury, the trial judge should have allowed him to make a further address to the jury, orally or in writing, dealing with the new theory of liability.  

The lead judge in the panel of three in the Court of Appeal said in his findings; “I accept the appellant’s lawyer’s submissions. In response to the material changes introduced by the third and fourth drafts of the answer, defence counsel stated the proposed answer might well have affected the manner in which the appellant’s lawyer had conducted his defence. Yet, the trial judge made no inquiries about what steps could be taken to mitigate any prejudice. In my respectful view, he should have. The answer introduced an unlawful act not previously contemplated or dealt with during the trial; one that was incompatible with the trial’s working premise that the appellant’s culpability depended upon finding he had administered lorazepam to his wife. In those circumstances, the trial judge was obliged, at a minimum, to canvass and implement reasonable steps to mitigate any trial prejudice caused to the appellant by the injection of a new basis of liability. None were considered.

 As a result, the trial judge instructed the jury that they could treat section 215 of the Criminal Code as a basis for finding unlawful conduct by the appellant without the jury ever hearing any submissions on the issue from the parties. With respect, that was unfair to the parties, especially the appellant. It prejudiced the appellant’s ability to make full answer and defence to the charge; it materially compromised trial fairness.

The Court of Appeal ordered a new trial for the appellant.

When the new trial is finished, I will submit that court’s findings in another article.

I should point out that this isn’t the first time a trial judge has screwed up. In September of this same year this above case was heard, the Ontario Court of Appeal heard another case where the two accused men were convicted of manslaughter.         

Their convictions on the offence of break and enter to commit robbery were stayed. (stopped for the time being)  

They appeal their manslaughter convictions, on various grounds, and seek leave to appeal the sentences imposed.  The Crown also seeks leave to appeal against the sentence imposed on the appellant George Cooke.

It is unnecessary to address all the grounds advanced by the appellants on their conviction appeals.  The Appeal Court was satisfied, as the Crown counsel responsibly conceded, that the jury charge in this case on the critical counts of manslaughter was insufficient to meet the functional requirements for an adequate jury charge.  

In particular, as Crown counsel acknowledged, that the charge failed to adequately relate the evidence to the key issues in the case and the parties’ positions on those issues.

            

Accordingly, the conviction appeals were allowed and a new trial was ordered in respect of all original charges on the joint indictment against the appellants.  In the circumstances, the sentence appeals by the appellants and by the Crown counsel  were moot. (unnecessary)

I hope you found this article informative.