



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Grandine, 2015 ONCA 574

DATE: 20150814

DOCKET: M45296

(C59971)

R.A. Blair J.A. (In Chambers)

BETWEEN

Her Majesty the Queen

Respondent

and

Philip Grandine

Appellant

Michael Lacy and Joanna Baron for the appellant

Roger Shallow and Katherin Stewart for the Crown

Heard and Released Orally: August 13, 2015

ENDORSEMENT

Background

[1]

Karissa Grandinethe appellants pregnant wifedrowned in the bathtub of
    the couples home in October 2011. Mr. Grandine was charged with and tried on a
    count of first degree murder. The jury acquitted him on the murder charge, but
    convicted on the included offence of manslaughter. The trial judge sentenced
    him to 15 years imprisonment.

[2]

Mr. Grandine has appealed his conviction and sentence. He seeks an order
    granting his release pending the disposition of the appeal pursuant to s.
    679(1) and (3) of the
Criminal Code
.

[3]

For me to grant such an order, Mr. Grandine must establish that:

(a) the appeal is not
    frivolous;

(b) he will surrender himself
    into custody in accordance with the terms of the order made; and

(c) his detention is not
    necessary in the public  interest.

[4]

The Crown accepts that Mr. Grandine is not a flight risk (b) and that
    his detention is not necessary for the protection of the public (an aspect of
    (c)). However, it opposes the application otherwise on the public interest
    ground and argues strenuously that both the conviction and sentence appeals are
    frivolous.

[5]

A consideration of the public interest factors involves weighing both:

(i) the need to ensure the
    protection and safety of the public (not in issue here); and

(ii) the need to balance the
    competing values of enforceability (public confidence in the administration of
    justice requires that judgments be enforced) and reviewability (public
    confidence requires that judgments be reviewed and that errors, if any be
    corrected, especially in the criminal field).

See
R. v. Farinacci
(1993), 67 O.A.C. 197, (Arbour J.A., at paras. 41-43;
R. v. Love
,
    [2012] O.J. No. 4083 (Epstein J.A., in Chambers).

[6]

It follows from this that the merits of the appeal and the public
    interest factors are interrelated, and counsel treated them in that fashion in
    the argument. It is therefore necessary to spend some time outlining the
    grounds of appeal and the parties positions in relation to them.

The Grounds of Appeal

[7]

The Crowns theory was thatbeing in the midst of an affair with another
    womanMr. Grandine had surreptitiously drugged his wife with a drug known as
    lorazepam (a drug with strong sedative effects) and then either caused her to
    take a bath, with the inevitable result that in her drugged condition she would
    drown, or deliberately placed her in the bathtub and incapacitated her himself.

[8]

The defence theory was that there was insufficient evidence to establish
    that lorazepam was a contributing factor in Ms. Grandines death and, even if
    there were, there was insufficient evidence to establish beyond a reasonable
    doubt that Mr. Grandine surreptitiously administered the drug to her. There was
    evidence that she was suicidal and may have self-administered the drug.

[9]

The jury acquitted Mr. Grandine of murder but convicted him on the included
    offence of manslaughter. After making findings of fact at the sentencing stage
    that he concluded were available to him on the record, the trial judge
    sentenced Mr. Grandine to 15 years in prison, essentially on the basis that
    this was a near murder.

Conviction

[10]

Mr.
    Grandine raises two grounds of appeal on conviction.

[11]

First,
    he submits that the trial judge erred when, in response to a jury question
    during deliberations, he left a new route to liability with the jury based on a
    new unlawful act that had not been raised previously by anyone or dealt with by
    counsel during the evidence or in their closing addresses, or by the trial
    judge in his charge. This ground of appeal arises from the following.

[12]

The
    trial, jury addresses and instructions to the jury to that point in time had
    proceeded on the basis that the unlawful act put forward by the Crownand
    underpinning a murder or manslaughter convictionwas Mr. Grandines
    surreptitious administration of the noxious drug to his wife (contrary to s.
    245 of the
Criminal Code
). Having done so, the Crown contended, he
    then caused her to get into (or put her in) the bathtub where she drowned (see
    Jury Instructions, paras. 318-322, to which there were no objections). In the
    second day of deliberations, however, the jury asked a question. The question
    was whether (regarding those paragraphs in the Instructions):

the knowledge of Karissa Grandine taking a bath and not
    stopping her [was] equivalent to causing her to get into the tub (knowing she
    is under the influence of lorazepam)?

[13]

The
    trial judge wrestled with this question overnight andover the objections of
    defence counseldecided that, in response to the question, there was an
    additional unlawful act basis upon which the jury could find liability,
    namely the failure of a spouse to provide the necessities of life contrary to
    s. 215 of the
Criminal Code
. He gave such an instruction, observing
    that the jurys question presupposed that Mr. Grandine knew that his wife had
    enough lorazepam in her system to suffer from its side effects (but not saying
    anything about his having administered the drug), that he knew she was going to
    take a bath and would get into the tub on her own volition, but that he took no
    steps to stop her when he knew the foreseeable risks.

[14]

Mr.
    Lacy contends that the trial judge erred in doing this. The trial judge, he
    says, in effect turned a question about causation into a question about a
    completely new unlawful act, leaving it open to the jury to convict on
    manslaughter without having to worry about whether Mr. Grandine had drugged his
    wife. This had the effect of changing the entire landscape of the case as it
    had been tried to that point in time. Mr. Lacy acknowledges that a trial
    judges role is to instruct the jury on all relevant questions of law that
    arise on the evidence, but he submits that this role is circumscribed by the
    need to ensure trial fairness: see
R. v. Ranger
(2003), 178 CCC (3d)
    375 (Ont C.A.), at para 133. Mr. Grandines right to a fair trial and to make
    full answer and defence was undermined as a result of this turn events, he
    says. Finally, he contends that the additional instruction was in itself
    erroneous because it failed to relate the evidence to the instructions given
    (indeed, he argues that the record did not support the instructions given).

[15]

Mr.
    Lacy raised a second argument on conviction as well. As I understand the
    argument, he submits that manslaughter by failing to provide the necessities of
    life is a different transaction than manslaughter by administering a noxious drug,
    and therefore could not form the basis for a conviction of the included offence
    of manslaughter on the charge as pursued against Mr. Grandine. In this respect,
    he relied on the brief dissent of McEachern C.J.B.C. in
R. v. McCune
,
    (1998) 131 C.C.C. (3d) 152 (B.C.C.A.).

[16]

On
    behalf of the Crown, Mr. Shallow submits that these grounds of appeal are
    frivolous and have no chance of succeeding. He argues that it is clear from the
    context of the jurys questionthe portion of the Instructions dealing with
    whether Mr. Grandine had administered the noxious drug to this wifeand from
    the trial judges answer that the answer was related to the causation question
    and did not take away the need for the jury to consider the administration
    issue. In any event, if it did, it corrected a previous error in the charge.
    The trial judge was responsible for providing the jury with correct legal
    instructions arising from the evidence, and did so. Mr. Grandines fair trial
    rights were not undermined because he and his counsel at all times knew that
    manslaughter was on the table and that juries are not bound by the factual
    theories of the Crown, the defence or the judge. The jury was only doing its
    job based on proper instructions from the trial judge. Mr. Shallow relies on
    cases such as
R. v. Picton
(2010), 257 CCC (3d) 296 (SCC) for the
    Crowns position.

Sentence

[17]

In
    terms of the sentence appeal, the main area of dispute is over the trial
    judges findings and whether the trial judge was entitled to make the findings
    he did for purposes of the sentencing. I do not think much turns on this for
    purposes of this bail hearing because, even if the appellant wins the day on
    this issue, the range of sentence to be imposed notwithstanding that, if the
    conviction stands, would take the matter well beyond the time required for
    disposition of the appeal.

Discussion

[18]

I
    pause to say at this pointbecause I know there are members of the family and
    perhaps the public who are affected by this case in the courtroomthat I
    recognize, and do not for one moment doubt, or attempt to minimize, the hurt,
    dismay and upset that family, friends and members of this couples community
    must feel as a result of these tragic events. That is evident from the victim
    impact statements that were filed on sentencing and, in any event, must be
    obvious.

[19]

My
    analysis proceeds on the premise that Mr. Grandine has been convicted of
    manslaughter, however, not murder, even if one accepts that the manslaughter
    was of a heightened character.

[20]

Without
    commenting further on the merits, and in spite of Mr. Shallows careful
    submissions, I cannot say at this stage that the conviction appeal is
    frivolous. I am satisfied that, at least on the first ground of appeal, Mr.
    Grandine has an arguable case to put forward.

[21]

With
    respect to the sentence appeal, the fitness of the sentence depends largely on
    the view of the facts that is to prevail. The trial judge gave thorough and
    careful reasons for arriving at the findings that he did and those findings, if
    legally correct, are entitled to deference. There is a legal issue to be
    determined on appeal whether he was legally entitled to engage in the exercise
    as he did, however. The success of that legal argument remains to be seen, but,
    again, I cannot say that it is frivolous at this stage.

[22]

Given
    those conclusions as to the merits, I am satisfied that the principle of
    reviewability outweighs the principle of enforceability in the circumstances.
    It is conceded that Mr. Grandine is not a flight risk. He abided by the terms
    of his bail for a lengthy period prior to trial without incident. He is
    obviously supported by a loving and caring family with whom he has strong ties
    and who are prepared to risk a substantial sum by way of providing security. I
    do not think, on the record, that he is likely to jeopardize their welfare by
    putting that at risk.

[23]

In
    the end, I am satisfied that Mr. Grandine has met his onus of establishing that
    his detention is not necessary in the public interest and that he has an
    arguable case to put forward. I will grant him an order for his release pending
    appeal.

[24]

I
    recognize this will be troubling for family and friends of the victim, and
    perhaps others. However, the ultimate result of this clear tragedy will be
    determined on the hearing of the appeal, and, for the reasons set out above, I
    am persuaded that the public interest in the administration of justice will not
    be undermined by the appellants release pending that determination.

[25]

Accordingly,
    an order will go granting Mr. Grandine his release pending the disposition of
    his appeal in terms of the draft order provided by counsel as amended and on
    which I have placed my fiat.

R.A. Blair J.A.


