R. v. Grant, 2015 SCC 9 (Criminal law — Defences — Evidence — Admissibility — Unknown third party suspect)

On appeal from the judgment of the Manitoba Court of Appeal (2013 MBCA 95), pronounced October 30, 2013, setting aside a conviction for second degree murder entered by Joyal A.C.J. and ordering a new trial.

In 2007, G was charged with the first degree murder of D, a notorious cold‑case, on the basis of newly‑tested DNA evidence. G denied any involvement in the murder, and sought to adduce evidence to suggest that, based on themodus operandi and other physical evidence, D’s abductor had also abducted W while G was in custody.

Having found that the same legal test applied to the admissibility of known third party suspect evidence and unknown third party suspect evidence, the trial judge concluded on a balance of probabilities that the alleged abduction of W had not happened. He refused to admit the evidence. G was convicted of second degree murder by the jury. The Manitoba Court of Appeal concluded that G should have been permitted to lead the evidence, allowed his appeal and ordered a new trial.

Held (7:0): The appeal should be dismissed.

While the tests governing known third party suspect evidence and similar fact evidence may provide useful insights into the underlying concerns and principles, they should not be stretched beyond the particular circumstances that they were designed to address. Instead, first principles governing the admissibility of evidence properly balance the competing interests that arise when the defence seeks to lead evidence of an unknown third party suspect.

Defence‑led 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. The trial judge must therefore first determine whether the evidence is logically relevant to an available defence. Where the defence’s theory is that an unknown third party committed the indicted crime, this factual foundation will be established by a sufficient connection between the crime for which the accused is charged and the allegedly similar incident(s) suggesting that the crimes were committed by the same person, coupled with evidence that the accused could not have committed the other offence. Once a sufficient connection is shown, the evidence will be admissible unless its prejudicial effects substantially outweigh its probative value. This assessment is inherently individualized, and is capable of responding to various levels and forms of prejudice. It does not require the accused to satisfy a higher admissibility threshold or require the trial judge to engage in an enhanced evaluation of the evidence. The trial judge may not invade the province of the jury and determine the strength of the evidence.

In this case, the trial judge erred in law in treating the evidence relating to the alleged abduction of W as known third party suspect evidence and in requiring G to establish on a balance of probabilities that the alleged abduction of W took place.  These errors entitled the Court of Appeal to conduct its own assessment of the evidence. It was entitled to conclude that there was evidence upon which the jury could find that the alleged crime against W had occurred and, having regard to the similarities, that it had been committed by the same person who killed D. The evidence that G could not have committed the offence against W and the evidence of similarities between the two offences would have provided some evidence capable of giving the unknown third party suspect defence an air of reality. While an appellate court is entitled to step into the shoes of the trial judge if the record permits, in this case, the Court of Appeal was not in the position to assess and weigh the extent of the probative value and the extent of prejudicial effect of the unknown third party suspect evidence. The trial judge’s legal errors were clearly not minor, and do not attract the application of the curative proviso in s. 686(1)(b)(iii) of the Criminal Code. The verdict would not necessarily have been the same had the trial judge applied the correct principles in determining the test for the admissibility of this defence evidence. As this case must be re‑tried in any event, the balancing of the probative value and the prejudicial effect of the evidence is best left for the trial judge.

The judgment of the Court was delivered by Karakatsanis J.

Neutral citation: 2015 SCC 9. http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/14676/index.do