COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Grandine, 2017 ONCA 718

DATE: 20170915

DOCKET: C59971

MacPherson, Simmons and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Philip Grandine

Appellant

Michael W. Lacy and Adam
    Posluns, for the appellant

Roger Shallow, for the
    respondent

Heard: April 20, 2017

On appeal from the conviction entered on December 4,
    2014, and the sentence imposed on January 9, 2015, by Justice Robert A. Clark
    of the Superior Court of Justice, sitting with a jury.

Brown J.A.:

I.

OVERVIEW

[1]

Karissa Grandine drowned in her bathtub on October 17, 2011. She was 20
    weeks pregnant at the time. Her husband, the appellant 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.

[2]

The appellant appeals his conviction for manslaughter and seeks leave to
    appeal his sentence.

[3]

The appellant advances one ground of appeal in respect of his
    conviction: 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 submits this resulted in an unfair trial.

[4]

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

[5]

For the reasons that follow, I would allow the conviction appeal and
    direct a new trial on the offence of manslaughter.

II.

SUMMARY OF EVENTS

[6]

Only a brief review of the evidence is required for purposes of this
    appeal.

[7]

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.

[8]

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

[9]

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 couples home computer to block the
    appellants access to pornography. The Grandines agreed, and they installed a
    filtering program called K-9; Ms. Grandine controlled the programs password.

[10]

The appellants 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.

[11]

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.

[12]

Ms. Grandine stayed home from work the next day, Friday. That evening, the
    appellant took his wife to the emergency room at St. Michaels Hospital. The
    attending physicians were unable to make a diagnosis, but Ms. Grandines
    condition improved. She stayed the night at the hospital.

[13]

Blood samples taken at that time were re-tested following Ms. Grandines
    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.

[14]

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.

[15]

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.

[16]

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.

[17]

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 Grandines home
    computer showed someone had disabled the K-9 pornography filter shortly before
    the 911 call was placed.

[18]

Blood tests taken at Ms. Grandines 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.

III.

THE CONVICTION APPEAL

[19]

The appellant submits the trial judges 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.

[20]

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 judges answer to the jury and its effect on
    trial fairness.

A.

The
    theories of liability set out in the Crowns opening, the closings and the
    charge

The Crowns opening

[21]

From the start of the trial, the Crown 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: [T]he Crown
    will be asking you to find that Philip Grandine  was responsible for the
    sedation and drowning death of Karissa Grandine.

Pre-charge discussions

[22]

During discussions with the trial judge prior to the closings, Crown
    counsel indicated 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 shes on her feet, hes 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.

[23]

At the pre-charge conference on November 25, 2014 Crown counsel stated:
    [T]he Crown further contends that however she came to be in the bath, the
    accused either held the deceaseds head under the water to drown her or simply
    waited for the inevitable outcome of a semi-conscious woman in a filled
    bathtub.

The parties closings

[24]

In her closing, Crown counsel explained to the jury the Crowns theory
    about how the appellant killed his wife:

[N]ow 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.

[25]

Defence counsel, disclaiming any involvement by the appellant in the
    events surrounding Ms. Grandines 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.

[26]

During the ensuing discussions with counsel about the charge, the trial
    judge explained he was trying to focus the jury on what really matters here,
    whether they are satisfied or not that this man put his wife in a bathtub full
    of water having drugged her. The trial judge also commented that whether the
    appellant did or did not administer [the drug] obviously is the central issue
    of this case.

The charge

[27]

The trial judge charged the jury on 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 s. 245 of the
Criminal Code
 the administration of a
    noxious thing - as the possible basis for the jury to find the appellant had
    caused Ms. Grandines death by means of an unlawful act. He stated s. 245
    required the Crown to prove beyond a reasonable doubt two essential elements:
    (i) that the accused administered a thing to his wife; and (ii) that the thing
    was noxious. The trial judge 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; Intent; and Planning and deliberation.

[28]

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 defences position that the evidence created a reasonable doubt Ms.
    Grandines death was the result of either an accident or suicide. Turning to
    the position of the Crown, the trial judge stated:

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

[29]

He then instructed the jury:

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.

[30]

The trial judge provided the jury with copies of his charge for
    reference during their deliberations.

B.

The jurys
    question and the ensuing discussions

The question and its context

[31]

The trial judge concluded his charge on the afternoon of December 2,
    2014. On the evening of December 3, the jury sent the following question to the
    trial judge:

Re: Sections [319] to [322] (pages
    60-61)

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)?

[32]

Sections 319 to 322 of the charge appeared in the part dealing with the
    elements of first degree murder, specifically the section entitled: Did Mr.
    Grandine cause death by means of an unlawful act? To place the jurys question
    in context, it is worth reproducing that section of the charge; the sections
    referenced by the jury are highlighted:

[316] Turning to the second
    essential element, the Crown must prove that the accused caused Mrs. Grandines
    death by means of an unlawful act.

[317] It is not always a crime to
    cause another persons death as, for example, where a person causes the death
    of another human being acting in self defence. There is no evidence of self
    defence and you may not consider that defence in this case. I mention it merely
    to illustrate that causing the death of another human being is not always
    unlawful.

[318] 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.

[319] 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?

[320] 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.

[321] 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. It is, however, for you
    to say.

[322] 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.

[323] If 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 find the accused 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. (emphasis added)

[33]

On the evening of December 3, the trial judge reviewed with counsel two
    drafts of a proposed answer to the jurys question.

[34]

I repeat the jurys question for ease of reference:

Re: Sections [319] to [322] (pages
    60-61)

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)?

First draft answer

[35]

The trial judge started his first draft answer by setting out his
    understanding of the jurys question: [I]t presupposes that Karissa Grandine got
    in the bathtub of her volition, without any encouragement or coaxing by the
    accused and without any physical involvement on his part.

[36]

The draft answer 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. The draft continued:

[5] 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 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
. [emphasis added]

[37]

The draft concluded:

[7] 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 Grandines 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.
    [emphasis added]

[38]

Crown counsel agreed with the proposed answer. Defence counsel expressed
    a concern it did not capture fully the earlier portion of the charge dealing
    with the elements of s. 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 consider his position. He instructed
    the jury to stop deliberating.

Second draft answer

[39]

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:

[5] 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 o
f (i) his act of having given her the drug and (ii)
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. (emphasis added)

[40]

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.

[41]

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
. Second, he 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.

[42]

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

Third draft answer

[43]

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 jurys question found in the first two drafts, but the balance of the
    draft contained three major changes.

[44]

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.

[45]

Second, the draft added a further basis upon which the jury could find
    the appellant had committed an unlawful act - s. 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:

[2] 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 wifes death.
    Whether it does or does not suffice is for you to say.

[46]

The draft answer reviewed in detail the elements of s. 215. It stated
    failing to provide the necessaries of life would include failing to protect Ms.
    Grandine from the danger of drowning. On the element of the absence of any
    lawful excuse, the draft read: There 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.

[47]

Third, the draft introduced an express statement the appellant could be
    culpable even if he did not administer lorazepam to his wife. Proposed para. 22
    stated:

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,
    provided that you are satisfied that he actually knew that she had enough
    lorazepam in her system that she would be putting herself in danger by getting
    into the tub.

[48]

When he provided counsel with the third draft for their review, the
    trial judge stated:

Essentially, what it does is set out another unlawful act which
    is an offence under s. 215 of the
Criminal Code
So that is the
    thrust of this. It seems to me that if [the accused] knew,
irrespective
    indeed of whether he administered the lorazepam to her
, if he knew 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. (emphasis added)

[49]

Defence counsel strongly objected to the third draft because were dealing
    with a completely different case than the case that was presented and the case
    that was prepared for in relation to the trial. He argued he had proceeded on
    the basis that the administration of a noxious substance  s. 245 of the
Criminal
    Code
 constituted the unlawful act in question. Defence counsel submitted
    section 215 is an entirely different  aspect to the case. Given the
    circumstances of the case, its not one that I think could reasonably have been
    foreseen. To which the trial judge responded:

Well, that may be, but [the jury] have seen it and they have
    asked me a question about it, and now I am obligated to instruct them on the
    applicable law. So the question here is not what anybody foresaw, it is a
    question of dealing with the present. They have come up with a third scenario.
    I have to address that. The question is, do these instructions address it, yes
    or no? What you foresaw, or Crown counsel foresaw, is, with great respect,
    neither here nor there. They are the finders of fact. I told them, quite
    properly in my view, that they were entitled to consider any other factual
    situation that occurred to them on the evidence. This is one such situation,
    and now I am obliged to deal with it. So what does it matter what anybody
    anticipated? They are not bound by what you anticipate. They are bound by the
    evidence, and this is something that is revealed to them on the evidence and I
    have to address it.

[50]

Defence counsel queried whether s. 215 was appropriately applicable. He
    asked for more time to consider the draft answer. A very brief adjournment of
    15 minutes was granted.

Fourth draft answer

[51]

Upon resuming, the trial judge distributed a fourth draft answer, which
    expanded the first paragraph of the previous drafts, but otherwise tracked the
    language of the third draft.

[52]

Defence counsel re-iterated his concern that the answer affected how
    one might have conducted the trial, especially in light of the requirement it
    would seem of lawful excuse. He also objected to the addition of the paragraph
    entitling the jury to find liability even if the accused had not administered
    the lorazepam. The trial judge asked Crown counsel for her position on whether
    he should remove that paragraph; Crown counsel did not object to its removal.

The answer given to the jury

[53]

The answer given by the trial judge to the jury tracked the language of the
    fourth draft answer, with one significant deletion.

[54]

The trial judge told the jury he understood their question to presuppose
    that: (i) the appellant knew his wife had enough lorazepam in her system that
    she would likely experience side effects; and (ii) the wife got into the tub of
    her own volition without any encouragement, coaxing, or physical involvement
    on his part.

[55]

He then discussed the duty imposed by s. 215 of the
Criminal Code
,
    concluding with the following instruction:

If you are satisfied beyond a reasonable doubt (1)
    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 (2) that the accuseds 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.
    It is for you to say.

[56]

Finally, the trial judge did not instruct the jury, as he had proposed
    in the third and fourth drafts, that the duty applied to the appellant even if
    he did not administer the lorazepam to his wife. The answer was silent on that
    issue.

[57]

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

C.

The issues
    raised

[58]

Both parties agree the jurys question sought to clarify whether the
    appellant had to be physically involved in putting or assisting the deceased in
    the bathtub or whether it was enough that he drugged her surreptitiously and
    then knowingly allowed her to take a bath.

[59]

However, the appellant submits the trial judges answer to the jurys
    question contained three errors: (i) it misapprehended the question asked and,
    consequently, failed to answer it; (ii) there was no evidence to support the
    alternative theory of liability left with the jury by the answer; and (iii)
    leaving an alternative theory of liability with the jury compromised the
    fairness of the trial. Instead of answering a question raised in the context of
    that part of the charge dealing with the unlawful act of administering a
    noxious thing, the trial judge introduced an alternative theory of liability
    into the case under which the jury could find the appellant liable even if he
    did not administer the lorazepam, but was aware his wife had consumed the drug.

[60]

In response, the Crown submits the answer did not inject a new theory of
    liability, which remained that the appellant administered lorazepam to his
    wife. The instruction was legally correct, assisted the jury in resolving their
    factually-specific question, and did not compromise the appellants ability to
    make full answer and defence. The original charge was replete with admonitions
    that to find the appellant guilty, the jury had to be satisfied beyond a
    reasonable doubt that the appellant administered lorazepam to his wife. In the
    section of the charge dealing with causation, the instructions also required
    the jury to first exclude the possibility that the deceased might have drugged
    herself, either by accident or intentionally, before considering whether the
    appellant drugged his wife. The jury could not have reached the question
    whether the appellant caused his wifes death by an unlawful act without
    already concluding that he had drugged his wife.

[61]

The crux of this appeal involves two questions: Did the trial judges
    answer to the jurys question introduce a new, alternative theory of liability?
    If it did, was the appellants ability to present a full and fair defence
    prejudiced? As I will explain below, the answer to the jurys question
    introduced a new, alternative theory of liability without affording the
    appellant an opportunity to respond to it, compromising the fairness of the
    trial. Since I would direct a new trial on the offence of manslaughter, I do
    not consider it advisable to determine whether there was sufficient evidence to
    support leaving the alternative theory of liability with the jury.

D.

The
    applicable legal principles

[62]

Jury questions indicate some jurors need help. They are having a problem
    with an issue in the case. A question usually concerns an important point in
    the jurys reasoning, identifying an issue on which the jury requires
    direction:
R. v. W.D.S.
[1994] 3 S.C.R. 521, at paras. 14 - 18;
R.
    v. M.T.
, 2012 ONCA 511, 289 C.C.C. (3d) 115, at para. 114. Answers to jury
    questions are extremely important, carrying an influence far exceeding
    instructions given in the main charge. The practical reality is that such
    answers will be given special emphasis by jurors:
R. v. Naglik
, [1993]
    3 S.C.R. 122, at p. 139;
W.D.S.
, at para. 16. Consequently, a trial
    judge must fully and properly answer a question asked by the jury:
R. v.
    Stubbs
, 2013 ONCA 514, 300 C.C.C. (3d) 181, at para. 95.

[63]

Where, as in the present case, the jurys question signals 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 Crown or defence counsel at trial:
R. v. Ranger
(2003),
    67 O.R. (3d) 1 (C.A.), at para. 135. A trial judge may do so because the jury
    is not bound by the theories of the Crown or defence when considering the
    evidence. While the Crown 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 elements of the offence:
Ranger
, at paras. 134 and 135. Accordingly,
    there is no general proposition that once the Crown 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:
R. v. Groot

(1998),
41 O.R. (3d) 280
,
at
    p. 9,
129
    C.C.C. (3d) 293 (C.A.)
, affd
[1999] 3 S.C.R. 664
,

144 C.C.C. (3d)
    287
.

[64]

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:
R. v. Largie
, 2010 ONCA
    548, 101 O.R. (3d) 561, at para. 161. Where the trial judge instructs the jury
    on a material point in a manner that does not accord with the position advanced
    by either party, a question may arise whether the instruction affected the
    fairness of the trial:
Ranger
, at para. 136. Trial fairness concerns will
    be greater when the instruction relates to a theory of liability not previously
    advanced by the Crown:
Ranger
, at para. 136. 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:
Ranger
, at para. 138.

E.

Analysis

Did the answer make available to
    the jury a new theory of liability inconsistent with how the trial had
    proceeded?

[65]

The appellant submits the trial judges answer introduced a new theory
    of liability inconsistent with how the trial had proceeded. I agree.

[66]

The jury indicated their question concerned that part of the charge
    dealing with whether the appellant caused death by means of an unlawful act. The
    trial judge had rooted his unlawful act instructions in s. 245 of the
Criminal
    Code
, the administration by the appellant of a noxious thing to his wife,
    instructing the jury, at para. 322: 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 the parties.

[67]

The jurys question focused on one aspect of the chain of events leading
    to Ms. Grandines death  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
    record reveals that counsel and the trial judge understood the  jurys 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)?

[68]

The appellant submits that when the question is understood in that way,
    no new unlawful act had to be introduced for the jurys consideration. There is
    merit to that argument. The first two draft answers prepared by the trial judge
    would have clearly answered the jurys question in the context of the theory of
    liability advanced by the Crown to that point in the trial. However, the issue on
    this 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.

[69]

The trial judges 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 wifes death  namely, s. 215 of the
Criminal Code
.

[70]

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 [s. 215]
    duty I have been discussing 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 judges initial charge that the appellants
    culpability depended on a finding that he had administered lorazepam to his
    wife.

[71]

As matters transpired, the trial judge removed that proposed language
    from the final answer he gave to the jury. The Crown submits that by so doing,
    the trial judges answer to the jury stayed within the compass of the Crowns
    case that a conviction required finding the appellant had administered
    lorazepam to Ms. Grandine.

[72]

I cannot accept that submission, for three reasons. First, it does not
    accord with how the trial judge understood his answer. During the sentencing
    submissions a week after the appellants conviction, the following exchange
    took place between defence counsel and the court:

Defence counsel
: Your Honour 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 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 didnt require a finding of administration. Now, what
    ultimately happens is

The Court
:
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 jurys 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?
(emphasis added)

[73]

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.

[74]

Second, the language of the answer uncoupled the appellants 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  namely, the appellant knew his wife was under the influence
    of lorazepam.

[75]

Third, I do not accept the Crowns submission that the jury could not
    have reached the question whether the appellant caused his wifes death by an
    unlawful act without already concluding that he had drugged his wife. The trial
    judges instructions on causation preceded his instructions on whether the
    appellant caused his wifes death by an unlawful act. The penultimate paragraph
    in the causation instructions required the jury to acquit the appellant if they
    were not satisfied 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 the Crown suggests, they would never have reached paras. 319 to 322.
    The penultimate paragraph of the causation instructions 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.

[76]

As a result, the trial judges answer expanded the basis upon which the
    appellant could be found guilty of the offence charged. The answer opened the
    door to finding culpability in a way incompatible with the key premise on which
    the case had been conducted, namely that to convict the appellant the jury was
    required to find he had administered lorazepam to his wife:
R. v. Luciano
,
    2011 ONCA 89, at para. 168. 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 jurys decision-making process by
    permitting a new route to culpability:
R. v. Vivian
, 2012 ONCA 324, at
    para. 61.

[77]

The appellant submits the alternative theory of liability introduced by
    the trial judge in his answer to the jurys 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. I accept that submission as an
    accurate description of the record. It distinguishes this case from those
    relied upon by the respondent where the alternative basis of liability had been
    a live issue during the trial: see,
Largie
, at paras. 143 and 164;
R.
    v. Pickton
, 2010 SCC 32, [2010] 2 S.C.R. 198, at paras. 21-24;
Groot
,
    at paras. 23 and 25.

Did the answer undermine trial
    fairness?

[78]

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 jurys 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 jurys
    deliberations.

[79]

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 drafts, as described in paras. 44-46 and 55 above. 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 - failing to provide
    the necessaries of life - thereby opening a door to finding the appellant
    culpable without needing to find he had administered lorazepam to his wife. The
    answer thereby undermined the crux of the appellants defence  namely, he
    should be acquitted if the jury could not conclude beyond a reasonable doubt
    that he had administered lorazepam to his wife.

[80]

The appellant submits 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 jurys question. The appellant argues that since he had no notice of the
    new theory of liability prior to the close of evidence and counsels 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.

[81]

I accept the appellants 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 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
    trials working premise that the appellants 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.

[82]

In the result, the trial judge instructed the jury they could treat s.
    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 appellants ability to make full answer and
    defence to the charge; it materially compromised trial fairness.

[83]

The respondent Crown submits that, in any event, this court should apply
    the curative proviso because the strength of the Crowns case belied any
    realistic possibility that a properly instructed jury would reach a different
    verdict. I do not accept this submission. In this case, the procedural error
    was sufficiently grave to result in the denial of a fair trial, causing a
    miscarriage of justice. Accordingly, no remedial provision applies:
R. v.
    Khan
, 2001 SCC 86, [2001] 3 S.C.R. 823, at paras. 27, 69 and 71.

IV.

DISPOSITION

[84]

For the reasons set out above, I would grant the appellants appeal from
    his conviction for manslaughter. The Crown has not appealed the appellants
    acquittal on the first degree murder charge or on the included offence of
    second degree murder. Accordingly, I would direct a new trial on the charge of
    manslaughter:
R. v. Noureddine
, 2015 ONCA 770, 128 O.R. (3d) 23, at
    paras. 75 and 76. In light of this disposition, there is no need to consider
    the appellants sentence appeal.

Released: JCM Sep 15
    2017

David
    Brown J.A.
I agree. J.C. MacPherson J.A.
I agree. Janet Simmons J.A.


WARNING

The President of the panel hearing this
    appeal directs that the following should be attached to the file:

An order restricting publication in this
    proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2)
    of the
Criminal Code
shall continue.  These sections of
the Criminal
    Code
provide:

486.4(1)       Subject to subsection
    (2), the presiding judge or justice may make an order directing that any
    information that could identify the victim or a witness shall not be published
    in any document or broadcast or transmitted in any way, in proceedings in
    respect of

(a)     any of the following offences;

(i)      an offence under section 151,
    152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2,
    173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281,
    286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence under this Act, as
    it read at any time before the day on which this subparagraph comes into force,
    if the conduct alleged involves a violation of the complainants sexual
    integrity and that conduct would be an offence referred to in subparagraph (i)
    if it occurred on or after that day; or

(iii)     REPEALED: S.C. 2014, c. 25,
    s. 22(2), effective December 6, 2014 (Act, s. 49).

(b)     two or more offences being
    dealt with in the same proceeding, at least one of which is an offence referred
    to in paragraph (a).

(2)     In proceedings in respect of the
    offences referred to in paragraph (1)(a) or (b), the presiding judge or justice
    shall

(a)     at the first reasonable
    opportunity, inform any witness under the age of eighteen years and the victim
    of the right to make an application for the order; and

(b)     on application made by the
    victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in
    proceedings in respect of an offence other than an offence referred to in
    subsection (1), if the victim is under the age of 18 years, the presiding judge
    or justice may make an order directing that any information that could identify
    the victim shall not be published in any document or broadcast or transmitted
    in any way.

(2.2) In proceedings in respect of an
    offence other than an offence referred to in subsection (1), if the victim is
    under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the
    victim of their right to make an application for the order; and

(b) on application of the victim or the
    prosecutor, make the order.

(3)     In proceedings in respect of an
    offence under section 163.1, a judge or justice shall make an order directing
    that any information that could identify a witness who is under the age of
    eighteen years, or any person who is the subject of a representation, written
    material or a recording that constitutes child pornography within the meaning
    of that section, shall not be published in any document or broadcast or
    transmitted in any way.

(4)     An order made under this section
    does not apply in respect of the disclosure of information in the course of the
    administration of justice when it is not the purpose of the disclosure to make
    the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s.
    8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c.
    13, s. 18..

486.6(1)       Every person who fails to
    comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or
    (2) is guilty of an offence punishable on summary conviction.

(2)     For greater certainty, an order
    referred to in subsection (1) applies to prohibit, in relation to proceedings
    taken against any person who fails to comply with the order, the publication in
    any document or the broadcasting or transmission in any way of information that
    could identify a victim, witness or justice system participant whose identity
    is protected by the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Hamilton, 2017 ONCA 735

DATE: 20170921

DOCKET: C59121

Laskin, Pepall and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jomo Kenyatta Hamilton

Appellant

Carol Cahill, for the appellant

Rochelle Direnfeld, for the respondent

Heard and released orally: September 15, 2017

On appeal from the conviction entered on June 26, 2013,
    and the sentence imposed on September 6, 2013, by Justice Gisele M. Miller of
    the Superior Court of Justice, sitting with a jury.

REASONS FOR DECISION

[1]

Jomo Hamilton was convicted of sexual assault and sexual interference.
    The victim was the 13 year old daughter of Mr. Hamiltons friend. Over the
    course of a number of months, Mr. Hamilton engaged in multiple acts of anal
    intercourse with the victim, as well as one act of vaginal intercourse. The appellant
    appeals against conviction and sentence.

[2]

The main ground of appeal is that the trial judge erred in admitting
    into evidence a partial recording of a telephone call between the appellant and
    the victims mother. The appellant apologizes in the recorded part of the
    statement. He appears to be crying.

[3]

The appellant argues that there was insufficient context that would
    permit the jury to understand the meaning of the appellants words. Here, the
    trial judge was satisfied that the evidence of the victims mother could
    provide the requisite context to render the statement admissible. This was a
    finding that was available to the trial judge on the record. It was then for
    the jury to consider the mothers evidence in its entirety, and determine
    whether, if believed, it provided sufficient context to allow the partial
    recording to have any value.

[4]

We are not persuaded that the statement contained improper demeanour
    evidence. This was not a situation in which the mother gave her impressions of
    the appellants attitude, emotions or state of mind. Here, the mother described
    what she heard. Moreover, the appellant can be heard crying in the recording.

[5]

On appeal, Ms. Cahill argues that the trial judge should have instructed
    the jury to approach this evidence with caution. However, counsel at trial (not
    Ms. Cahill) did not request such a warning, and there was no subsequent
    objection. We can see no error in the trial judges charge.

[6]

Ms. Cahill makes similar submissions about the set of text messages that
    were entered into evidence. The argument is that the text messages were
    incomplete. It is argued that the trial judge ought to have told the jury to
    exercise caution because of the lack of context. Defence counsel made this
    argument before the jury, and this was repeated in the trial judges charge. We
    can find no error in the trial judges ruling to admit this evidence, nor any
    inadequacy in her instructions.

[7]

The appeal against conviction is dismissed. The appeal against sentence
    is dismissed as abandoned.

John
    Laskin J.A.

S.E.
    Pepall J.A.

G.T.
    Trotter J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Hayne, 2017 ONCA 704

DATE: 20170911

DOCKET: C62657

MacPherson, Rouleau and Miller JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Joel Hayne

Appellant

Kathryn Wells, for the appellant

Luke Schwalm, for the respondent

Heard: September 8, 2017

On appeal from the conviction entered on June 22, 2016 and
    the sentence imposed on July 14, 2016 by Justice J.E. Allen of the Ontario
    Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

The appellant appeals his conviction for driving a motor vehicle while
    disqualified.

[2]

The sole issue on the appeal is the trial judges treatment of the
    identification issue at trial. The appellant contends that the trial judge
    erred in two respects.

[3]

First, the appellant submits that the trial judge did not take proper
    account of the frailties of the identification evidence of Officer Snyder.

[4]

We do not accept this submission. This was not a generic description
    trial. The core of Officer Snyders identification of the appellant as the
    driver of the car that he declined to chase in a residential neighbourhood was
    his matching of a photograph of the appellant in his possession with the face
    of the driver in the Cadillac Escalade as it passed by him in his police
    cruiser. The circumstances for this match were excellent  the car approached
    him at low speed (15  20 kilometers per hour), he had a clear view of the
    appellants face for several seconds, the view was through the clear glass
    front window of the Escalade, and the view was coupled with three different
    comparisons of the drivers face and the face in the photo in his cruiser.

[5]

Second, the appellant contends that the trial judge erred by relying on
    Melissa Roberts evidence as confirmatory of Officer Snyders identification
    evidence.

[6]

We disagree. The trial judge properly used Ms. Roberts evidence to
    assist in connecting the appellant to the car which, the parties agreed, was
    the car that passed by Officer Snyder.

[7]

The conviction appeal is dismissed.

[8]

The appellant also appeals his four year sentence.

[9]

The appellant has been convicted of many driving offences in the past,
    including the same offence of driving while disqualified. His sentence for his
    most recent offence in this category was three years. Hence the four year
    sentence imposed by the trial judge cannot be said to be unfit or unreasonable.

[10]

The
    sentence appeal is dismissed.